XII

EVIDENCE

1701-1901

BY DAVID TORRANCE, M.A.

WHEREVER the common law prevails in the United States to-day, a body of rules collectively known as the law of evidence forms a part of it. These rules form an important part of our law of procedure, and it is the aim of this chapter to trace in brief outline the growth and development of the more important of them in this country during the past two centuries.

It is sufficiently accurate, for the present purpose, to say that "Evidence," in the legal sense of the word, means "any matter of fact furnished to a legal tribunal — otherwise than by reasoning or a reference to what is noticed without proof- as the basis of an inference in ascertaining some other matter of fact." 1

Definitions.

This "matter of fact" may consist (1) of statements of witnesses made orally in court, or by means of written depositions, or (2) of statements contained in writings, or (3) of facts gathered by the tribunal by the exercise of its own senses upon persons or things brought before it. To be evidence at all, this matter of fact must have probative force with reference to the facts in dispute before the tribunal in proof of which it is offered; that is, it must tend to prove or disprove those facts, must, in the language of the logician, be relevant to them or to some of them; but among the rules

1 Professor J. B. Thayer in Harvard Law Review, III. 143.

of evidence there are, strictly speaking, none for determining when, or under what circumstances, one fact is thus relevant to another fact. That question is determined by the rules of logic, by experience, and by precedent.

From the nature of the case, rules of evidence can come into operation only after the nature and limits of the controversy, in which this matter of fact called "evidence" is offered, have been fixed and determined by the pleadings, and the trial of the disputed facts has begun.

As a general rule this matter of fact is produced before the court and offered for its consideration by the parties to the controversy, and the rules under which it is produced and received constitute the law of evidence.

For our present purpose these rules may be roughly divided into three classes: namely, (1) those which exclude upon various practical grounds matter in itself logically probative; (2) those which relate to writings; (3) those which relate to witnesses.

Nature of the rules of evidence.

This classification excludes from the law of evidence many rules usually treated as forming a part of it. The principal rules thus shut out are the following: those relating to the power and duty of the tribunal to know without proof many things necessary to be known in order rightly to decide the controversy, usually considered under the head of "Judicial Notice;" those for determining upon which of the parties litigant the "burden of proof" rests at any given stage of the trial; those relating to "presumptions" and their operation and effect upon the trial; those relating to the scope, operation, and effect of the so-called "parol evidence rule;" and most of those relating to "alterations" in writings, and to admissions.

The rules relating to these matters, wherever else in the law they may belong, form no part of the law of evidence, as has been clearly shown by Professor Thayer in his Preliminary Treatise on Evidence.

To use the ordinary and apt figure of speech, the commonlaw rules of evidence are the child of the modern system of

trial by jury. Under the ancient mode of jury trial in England, these rules, as they exist to-day, were, most Ancient trials of them, unnecessary and non-existent. by jury.

Under that mode of trial, and lasting well down into the latter part of the fifteenth century, it was neither necessary nor customary for mere informing witnesses to testify before the jury at all.

The jury rendered their verdict upon their own private beforehand knowledge of the facts in the case, and were selected because they possessed such knowledge; and for a long time after informing witnesses began to testify before juries, and well down into the eighteenth century, the power of the jury to render verdicts largely if not entirely upon their own private knowledge was recognized and acted upon.

Under the modern jury system all this is changed: jurors are now selected because of their lack of beforehand knowledge of the facts in controversy, and the jury in rendering its verdict, so far as these facts are concerned, can only act upon knowledge obtained from the evidence given in the case. This radical change in the power and functions of the jury came about quite gradually, and it is probably as difficult to determine the exact time when it became complete as it is to determine at what precise moment daylight ends and darkness begins. Upon this subject Professor Thayer says: "But while the jury's right to go upon their own private knowledge was emphatically recognized in 1670, and continued to be allowed in the books well into the next century, yet the enlarged practice of granting new trials, and the growth and development of it in the seventeenth and eighteenth centuries, was steadily transforming the old jury system into the modern one; and at last it was possible for the judges to lay it down for law that a jury cannot give a verdict upon their own private knowledge."1 The complete change was fairly well established towards the close of the last century. In 1810 Judge Swift says: "Where a judge or juror has knowledge of any matter of fact, they should 1 Preliminary Treatise, 170.

be sworn to testify as other witnesses; a juror may not give private information to his fellows, of any matter of fact within his knowledge; if he does it is sufficient ground to set aside the verdict." 1

It is obvious that until the modern system of jury trial came into being, there could be no law of evidence as we now know it; for not until the jury could act only on the facts produced before it in evidence could the rules for regulating the production of those facts be of prime importance; and so it comes about that most of the common-law rules of evidence are of modern origin.

Early law

At the beginning of the eighteenth century our law of evidence as we know it to-day had substantially no existence; although at this time the principles underlying most of its rules as they afterwards came into being, and some of the rules themselves, were recognized more or less clearly and acted upon.

of evidence.

The specific rules of evidence came into being nearly always in the shape of unrecorded rulings of the Judges made in the trial of causes; by a gradual process of evolution, so to speak; and for that reason it is difficult to state the exact time of their origin, and, for our own present purpose, it is not necessary to attempt to do so.

In the early decades of the nineteenth century the fundamental common-law rules of evidence, as they are known to us, were fairly well established and enforced in practice.

In the main they consist of rules that exclude certain kinds of facts in their nature evidential, and rules that shut out evidential facts coming from certain sources; in other words, they are in the main rules of exclusion, rules which shut out certain probative facts coming from any source, and all probative facts coming from certain sources.

Rules of exclusion.

Let us now look at some of the principal rules of evidence, as they existed about the middle of that century, and briefly note, as far as is possible, their origin and development before and since that period. They will

1 Swift's Evidence, 64.

be considered under the threefold classification herein before

suggested.

The first class includes the rules that shut out, upon various practical grounds, evidence in itself logically probative coming from any source.

Under this class fall the rules, with their somewhat numerous exceptions, that exclude "hearsay," "opinion," and "character" evidence, the rules relating to confessions, and rules other than the above, that exclude matters logically probative on the ground of convenience or necessity, or because they would hinder rather than help the jury in reaching a verdict. Of these in their order.

The "hearsay" rule forbids the reception of statements oral or written, made by persons not parties to the suit nor witnesses therein, offered as evidence of the truth Hearsay.

of the facts asserted in such statements. The

probative force of such evidence depends mainly upon the credit to be given to a person about whom the tribunal may know nothing, and if admitted it would be in effect evidence given by such person without the sanction of an oath, without liability for perjury, and without the safeguard of cross-examination.

Upon these and other grounds "hearsay evidence" is, as a general rule, excluded. This is an old rule antedating the modern jury system, and it is in full force to-day subject to some exceptions. Under the old jury system, when it became customary for witnesses to testify to the jury, the rule was as a matter of course not very rigidly observed; and indeed it may be said, with a good deal of truth, that the rule itself as now enforced, together with its exceptions, is of comparatively modern origin.

Founded upon reasons of necessity, or convenience, or upon the fact that hearsay statements made under certain circumstances can generally be relied upon, quite a number of exceptions to the general rule have come into being. The rigid enforcement of the general rule would, in certain cases, shut out about the only obtainable evidence, as in pedigree