66

upon that side which affirms the matter in question: in which our law agrees with the civil; (0)" ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum-negantis probatio nulla sit?" The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and, lastly, upon what point the issue is joined, which is there set down to be determined. Instead of which, (p) formerly the whole record and process of the pleadings was read to them in English by the court, and the [*367] matter in issue clearly explained to their capacities. The nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side: and when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence; and then the party which began is heard by way of reply.

The nature of my present design will not permit me to enter into the numberless niceties and distinctions of what is, or is not, legal evidence to a jury. (4) I shall only, therefore, select a few of the general heads and leading maximis, relative to this point, together with some observations on the manner of giving evidence.

And, first, evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point. Therefore, upon an action of debt, when the defendant denies his bond by the plea of non est factum, and the issue is, whether it be the defendant's deed or no; he cannot give a release of this bond in evidence: for that does not destroy the bond, and therefore does not prove the issue which he has chosen to rely upon, viz., that the bond has no existence.

Again; evidence in the trial by jury is of two kinds, either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs (to which in common speech the name of evidence is usually confined), are either written, or parol, that is, by word of mouth. Written proofs, or evidence, are, 1. Records; and 2. Ancient deeds of thirty years standing, which prove themselves; (16) but 3. Modern deeds; and 4. Other *writings, must be attested and verified by parol evidence of wit[*368] nesses. And the one general rule that runs through all the doctrine of

trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but if not possible, then the best

(0) Ff. 22, 3, 2. Cod. 4. 19. 23.

(p) Fortesc. c. 26.

(q) This is admirably well performed in Lord Chief baron Gilbert's excellent treatise of evidence,-a work which it is impossible to abstract or abridge, without losing some beauty and destroying the chain of the whole, and which hath lately been engrafted into a very useful work, The Introduction to the Law of Nisi Prius, 4to. 1767.

(16) [The same rule applies to wills thirty years old. 4 T. R. 709, note. This rule is laid down in books of evidence without sufficient explanation of its principle, or of the extent of its application. There seems to be danger in permitting a deed to be read merely because it bears date above thirty years before its production, and in requiring no evidence, where a forgery may be committed with the least probability of detection. Chief Baron Gilbert lays down, that where possession has gone agreeably to the limitations of a deed bearing date thirty years ago, it may be read without any evidence of its execution, though the subscribing witnesses be still living. Law of Ev. 94. For such possession affords so strong a presumption in favor of the authenticity of the deed, as to supersede the necessity of any other proof of the validity of its origin, or of its due execution. The court of king's bench have deter mined that the mere production of a parish certificate, dated above thirty years ago, was sufficient to make it evidence, without giving any account of the custody from which it was extracted.

5 T. R. 259.

Upon this subject see 1 Greenl. Ev. §§ 21, 142–145, 570; 1 Stark. Ev. 93, 523; and especially Phillips's Ev. by Cowen, Hill and Edwards, vol. 2, 475–480. It is much safer to say in these cases, and is much nearer strict accuracy, not that the deed proves itself, but that its authenticity may be presumed from the circumstances: such as the long acquiescence of parties interested to dispute it, and who n ust be supposed to have satisfied themselves originally that the eonvey. ance was effectual. But these circumstances are to be proved like other facts.

evidence that can be had shall be allowed. (17) For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed. Thus, in order to prove a lease for years, nothing else shall be admitted but the very deed of lease itself, if in being: but if that be positively proved to be burnt or destroyed (not relying on any loose negative, as that it cannot be found, or the like), then an attested copy may be produced; or parol evidence be given of its contents. So, no evidence of a discourse with another will be admitted, but the man himself must be produced; yet in some cases, (as in proof of any general customs, or matters of common tradition or repute), the courts admit of hearsay evidence, or an account of what persons deceased have declared in their lifetime: but such evidence will not be received of any particular facts. (18) So, too, books of account, or shop-books, are not allowed of

(17) [No rule of law is more frequently cited, and more generally misconceived, than this. It is certainly true when rightly understood; but it is very limited in its extent and application. It signifies nothing more than that, if the best legal evidence cannot possibly be produced, the next best legal evidence shall be admitted. Evidence may be divided into primary and secon dary and the secondary evidence is as accurately defined by the law as the primary. But in general the want of better evidence can never justify the admission of hearsay, interested witnesses, or the copies of copies, &c. Where there are exceptions to general rules, these exceptions are as much recognized by the law as the general rule; and where boundaries and limits are established by the law for every case that can possibly occur, it is immaterial what we all the rule, and what the exception.

Some of the numerous cases which are found even in modern books may be cited for illustra tion and in confirmation of the text and note.

If the subscribing witness be living and within the jurisdiction of the court, he must be called to prove the execution; or if he cannot be found, and that fact be satisfactorily explained, roof of his handwriting will be sufficient evidence of the execution. Barnes v. Trompowsky, 7 T. R. 266. And the witness of the execution is necessary; acknowledgment of the party who executed the deed cannot be received. Johnson v. Mason, 1 Esp. 89. At least only as secondary evidence. Call, Bart. v. Dunning, 4 East, 53. And acknowledgment to a subscribing witness by an obligor of a bond that he has executed it, is sufficient. Powell v. Blackett, 1 Esp. 97; and see Grellier v. Neale, Peake, 146. But a mere bystander may not be received to supply the absence of the subscribing witness (McCraw v. Gentry, 3 Campb. 232), or only as secondary evidence. See the next case. If the apparent attesting witness deny that he saw the execution, secondary evidence is admissible; that is to say, the handwriting of the obligor, &c., may be proved. Ley v. Ballard, 3 Esp. 173, n. And, as a general rule, it seems that wherever a subscribing witness appears to an instrument, note, &c., he must be called or his absence explained. See Higgs v. Dixon, 2 Stark. 180; Breton v. Cope, Peake. 31.]

See upon the rule requiring the best evidence, 1 Stark. Ev. 641-649; I Greenl. Ev. § 82, et seq. (18) [It is a general rule that the mere recital of a fact, that is, the mere oral assertion or written entry by an individual, that a particular fact is true, cannot be received in evidence. But the objection does not apply to any public documents made under lawful authority, such as gazettes, proclamations, public surveys, records, and other memorials of a similar description, and whenever the declaration or entry is in itself a fact, and is part of the res geste. Stark. on Evid. pt. 1, 46, 47. But it is to be carefully observed, that neither the declarations, nor any other acts of those who are more strangers, or, as is usually termed, any res inter alios acta, is admissible in evidence against any one, as affording a presumption against him in the way of admission, or otherwise. Id. 51.

In cases of customs and prescriptive rights, hearsay or traditional evidence is not admitted antil some instances of the custom or exercise of the right claimed are first proved. The declarations of parents respecting their marriage, and the legitimacy of their children, are admitted, after their decease, as evidence. And hearsay is also received respecting pedigrees and the death of relations abroad. Bull. N. P. 294; 2 Esp. 784. What has been said in conversation in the hearing of any party, if not contradicted by him, may be given in evidence; for not being denied, it amounts to a species of confession. Sec 3 T. R. 707, where the subject of hearsay evidence is much discussed.

The court of king's bench has decided, that a father's declaration of the place of the birth of his son is not evidence after the father's death. 8 East, 539. But it would not, probably, be difficult to prove, that this is of the nature of pedigree, and ought to be admitted, as the father's declaration of the time of his son's birth, which has always been legal evidence. In criminal cases, the declarations of a person, who relates, in extremis, or under an apprehension of dying, the cause of his death, or any other material circumstance, may be admitted in evidence; for the mind in that awful state is presumed to be under as great a religious obligation to disclose the truth, as is created by the administration of an oath. But declar

themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory; and, if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence: (r) for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proofs of fairness and regularity, (s) the best evidence that can then be produced. However, this dangerous species of evidence is not carried so far in England as abroad ;(1) where a man's own books of accounts, by a distortion of the civil law (which seems to have meant the same thing as [ *369] is practised with us), (u) with the suppletory oath of the merchant, amount at all times to full proof. (19) But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I, c. 12 (the penners of which seem to have imagined that the books of themselves were evidence at common law), confines this species of proof to such transactions as have happened within one year before the action brought; unless between merchant and merchant in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted. (20)

With regard to parol evidence, or witnesses; it must first be remembered that there is a process to bring them in by writ of subpoena ad testificandum: which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 100l. to be forfeited to the king; to which the statute 5 Eliz, c. 9, has added a penalty of 10l. to the party aggrieved, and damages equivalent to the loss sustained by want of his evidence. But no witness, unless his reasonable expenses be tendered him, is bound to appear at all; nor, if he appears, is he bound to give evidence till such charges are actually paid him; except he resides within the bills of mortality, and is summoned to give evidence within the same. This compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, are of excellent use in the

(s) Salk. 295.

(t) Gail, observat, 2, 20, 23.

(r) Law of Nisi Prins. 266. (u) Instrumenta domestica, seu privata testatio, seu adnotatio, si non aliis quoque adminiculis adjuventur ad probationem sola non sufficiunt. Cod. 4, 19, 5. Nam exemplo perniciosum est, ut ei scripturæ credatur, qua unusquisque sibi adnotatione propria debitorem constituit. Ibid. c. 7.

tions of a deceased person ought not to be received, unless the court is satisfied, from the cir cumstances of the case, that they were made under the impression of approaching dissolution. Leach's Cases, 400. But the declarations of a felon at the place of execution cannot be received, as he is incompetent to give evidence upon oath; and the situation of a dying man is only thought equivalent to that of a competent witness, when he is sworn. Id. 276.]

Testimony of a witness given on a former trial, where the parties had an opportunity to examine him, may be received if the witness is dead, or is out of the jurisdiction, or insane and unable to testify, or if he has been summoned and is kept away by the adverse party. 1 Greenl. Ev. § 163, and cases cited.

(19) A party's own books of account may be given in evidence in his own favor to prove the accounts upon them, after preliminary proof that they were regularly kept as such, and are books of original entries; that the party kept no clerk, or, if he kept any, giving sufficient reason for not producing him; that some of the articles charged were actually delivered; and by proving also, from other persons who have dealt with him, that he keeps fair and honest accounts. But they are not very satisfactory evidence, and wherever from the nature of the case there must be witnesses who can give direct testimony concerning the account, the party will be required to produce them before giving his books in evidence. See Vosburgh v. Thayer, 12 Johns. 461; Cogswell v. Dolliver, 2 Mass. 217; Thomas v. Dyott, 1 Nott and MeC. 186; Sickles v. Mather, 20 Wend. 72; Burnam v. Adams, 5 Vt. 313; Jackson v. Evans, 8 Mich. 476; 1 Greenl. Ev. § 118, and notes. If anything suspicious appears in the books when presented to the court, they will be excluded. Churchman v. Smith, 6 Whart. 146. There are statutes on this subject in many of the states. The party's own oath is usually required to substantiate the charges. The books can only be made evidence of those things which are properly the subject of book account; not of charges for money loaned, &c. See Bradley v. Goodyear, 1 Day, 105. And upon the whole subject see 1 Phil. Ev. by Cowen, Hill and Edwards, 370–336.

(20) [The entries in the book of a person deceased, not connected with the parties, are of no more avail than hearsay. But the books of an incumbent, respecting the titles of the parish, are evidence for his successor. 5 T. R. 123; 2 Ves. 43.]

thorough investigation of truth: and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had the choice of three things; either to swear to the truth of the fact in question, to deny or abjure it, or else pay a fine of a thousand drachmas. (v)

All witnesses, of whatever religion or country, that have the use of their reason, (21) are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses; though the jury from other circumstances will judge of their credibility. (22) *Infamous persons are such as may be challenged as jurors, [*370] propter delictum; and therefore never shall be admitted to give evidence to inform that jury, with whom they were too scandalous to associate. Interested witnesses may be examined upon a voir dire, if suspected of being secretly concerned in the event; or their interest may be proved in court. Which last is the only method of supporting an objection to the former class: for no man is to be examined to prove his own infamy. (23) And no counsel, attorney, or

(v) Pott. Antiq. b. i, c. 21.

(21) [A Mahometan may be sworn upon the Alcoran, a Gentoo according to the custom of India, and their evidence may be received even in a criminal case. Leach's Cases, 52; 1 Atk. 21. But an atheist, or a person who has no belief or notion of a God, or a future state of rewards and punishments, ought not in any instance to be admitted as a witness. 1 Atk. 45; B. N. P. 202. See Peake Rep. 11, where Buller, J., held that the proper question to be asked of a witness is, whether he believes in God, the obligation of an oath, and in the future state of rewards and punishments.]

All persons may give evidence who believe in a supreme superintending Providence who rewards and punishes, and who declare that they consider an oath binding on their conscience. See the leading cases of Ormichund . Barker, Wills, 538; and 1 Smith Lead. Cas. 535. See also Cubbison v. McCreary, 7 W. and S. 262; Jones v. Harris, 1 Strob. 160; Brock v. Milligan 10 Ohio, 121; Bennett v. State, 1 Swan, 411; Central R. R. Co. v Rockafellow, 17 Ill. 541. Some of the United States forbid witnesses being questioned concerning their religious belief. See Cooley Const. Lim. 478, note.

Persons who cannot conscientiously take an oath are allowed to make affirmation, and are under the like penalties with witnesses sworn, in case of false testimony.

(22) ["The old cases upon the competency of witnesses have gone upon very subtle grounds But of late years the courts have endeavored as far as possible, consistent with authorities, to let the objection go to the credit, rather than to the competency, of a witness." Lord Mansfield, 1 T. R. 300.

It is now established that, if a witness does not immediately gain or lose by the event of the cause, and if the verdict in the cause cannot be evidence either for or against him in any other suit, he shall be admitted as a competent witness, though the circumstances of the case may, in some degree, lessen his credibility. 3 T. R. 27. The interest must be a present, certain, vested interest, and not uncertain or contingent: Doug. 134; 1 T. R. 163; 1 P. Wms. 287; therefore the heir apparent is competent in supporting the claim of the ancestor, though the remainderman, having a vested interest, is incompetent. Salk. 283; Ld. Raym. 724. A clerk of the company of wire-drawers is competent, in an action against a person for acting as an assistant, although the verdict might cause the defendant to be sworn, upon which the clerk would obtain a fec. See Stark. on Ev. pt. 4, 745.

A servant of a tradesman, from necessity, is permitted in an action by his master to prove the delivery of goods, though he himself may have purloined them; but, in an action brought against the master for the negligence of his servant, the servant cannot be a witness for his master without a release; for the master may afterwards have his action against the servant, and the verdict recovered against him may be given in evidence in that action to prove the damage which the master has sustained. 4 T. R. 589.

By the 46 Geo. III, c. 37, it is enacted, that a witness cannot refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to a penalty or forfeiture, by reason only that the answer to such question may establish, or tend to establish, that he owes a debt or is subject to a civil suit.

This statute was passed because, upon a point which arose at Lord Melville's impeachment, the high living authorities of the law were nearly divided, whether a witness was compellable to answer such a question. But surely it was agreeable to the law of England, that a man should be compelled to be honest, and where, if he avoided the question, injustice would be done both between the parties before the court, and afterwards between the witness and some other party.]

(23) [A witness may be examined with regard to his own infamy, if the confession of it does not subject him to any future punishment; as a witness he may be asked if he has not stood in the pillory for perjury: 4 T. R. 440; but he cannot be entirely rejected as a witness with

other person, entrusted with the secrets of the cause by the party himself shall be compelled, or perhaps allowed, to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence: (w) (24) but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowledge with out being interested in the cause.

One witness (if credible) is sufficient evidence to a jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two, which the civil law universally requires. "Unius responsio testes omnino non audiatur." (x)

out the production of the record of conviction, by which he is rendered incompetent. 8 East, 77. Though it has been held, in some other cases, that a witness is not bound to answer such questions. 4 St. Tr. 748; 1 Salk. 153; 4 Esp. 225, 242. It is quite clear that a man is not bound to answer any questions, either in a court of law or equity, which may tend to criminate himself, or which may render him liable to a penalty. Stra. 444; 3 Taunt. 424; 4 St. Tr. 6; 6 id. 649; 16 Ves. 242; 2 Ld. Kaym. 1083; Mitford's Ch. Pl. 157. As to questions which merely disgrace the witness, there is some difficulty. See Stark. on Ev., pt. 2, 139. Still a witness is in no case legally incompetent to allege his own turpitude, or to give evidence which involves his own infamy: 2 Stark. Rep. 116; 8 East 78: 11 id. 309; or impeaches his own solemn acts: 5 M. and S. 244; 7 T. R. 604; unless he be rendered incompetent by a legal interest in the event of the cause, or in the record. It seems to be an universal rule that a particeps criminis may be examined as a witness in both civil and criminal cases, provided he has not been incapacitated by a conviction of crime. As a clerk, who had laid out money which he had embezzled in illegal insurances was held to be a competent witness for the master against the insurer. Cowp. 197. So a man who has pretended to convey lands to another may prove that he had no title. Ld. Raym. 1003. A co-assignee of a ship may prove that he had no interest in the vessel. Cited in 1 T. R. 301. The parents may give evidence to bastardize their issue: 6 T. R. 330, 331; or to prove the legitimacy: id.; though it is said the sole evidence of the mother, a married woman, shall not be sufficient to bastardize her child. 1 Wils. 340.]

[By statute 14 and 15 Vic. c. 99, all legal objection to the competency of witnesses on the ground of interest is removed, and the parties to suits, and the persons in whose behalf they are brought or defended, are made competent and compellable to give evidence, in behalf of either party, except that a person charged with an offence cannot give evidence against himself, nor is any person compellable to answer a question tending to criminate himself, nor can husband and wife give evidence for or against each other in criminal cases. The cases of actions for breach of promise of marriage, and of proceedings instituted in consequence of adultery, are excepted from the statute. The subsequent statute of 16 and 17 Vic. c. 83, makes the hus bands and wives of parties to suits, or of persons on whose behalf the suits are brought or defended, competent and compellable to give evidence on behalf of either party. But they are not to be made to disclose any communication made or received during marriage, and neither party is a competent witness in a criminal proceeding, or in any proceeding instituted in consequence of adultery. The previous statute of 6 and 7 Vic. c. 85, removed the incapacities of witnesses on account of crime.]

In the United States the tendency of recent legislation is in the direction of the removal of all the common law disabilities of witnesses, leaving the objections from infamy, interest, &c., to have such weight as the jury may see fit to give them as objections to the credibility of the witnesses.

(24) [But the principle and policy of this rule restrain it to that confidence, only, which is placed in a counsel or solicitor, and which must necessarily be inviolable, where the use of advocates and legal assistance is admitted. But the purposes of public justice supersede the delicacy of every other species of confidential communication. In the trial of the duchess of Kingston, it was determined that a friend might be bound to disclose, if necessary, in a court of justice, secrets of the most sacred nature which one sex could repose in the other. And that a surgeon was bound to communicate any information whatever, which he was possessed of in consequence of his professional attendance. 11 St. Tr. 243, 246. And those secrets only, communicated to a counsel or attorney, are inviolable in a court of justice, which have been intrusted to them while acting in their respective characters to the party as their client. 4 T. R. 431, 753.]

For an excellent case on this subject, see Whiting v. Barnes, 30 N. Y. 330. See, also, People v. Blakeley, 4 Park. Cr. R. 176; 1 Greenl. Ev. § 237 to 246; 1 Stark. Ev. 40; 1 Phil. Ev. by Cowen, Hill and Edwards, 130, et seq. In several of the United States statutes have been passed extending similar protection to the communications made to physicians and clergymen, with a view to obtaining their professional advice or assistance.