By this time he had lost the nervous and simple style of his youth, and required an editor to make him readable. His great interpreter, Dumont, condensed his views on evidence into the Traité des preuves judiciaires, which was published in 1823. The manuscript of the Rationale was edited for English reading, and to a great extent rewritten, by J. S. Mill, and was published in five volumes in 1827. The book had a great effect both in England and on the continent. The English version, though crabbed and artificial in style, and unmeasured in its invective, is a storehouse of comments and criticisms on the principles of evidence and the practice of the courts, which are always shrewd and often profound. Bentham examined the practice of the courts by the light of practical utility. Starting from the principle that the object of judicial evidence is the discovery of truth, he condemned the rules which excluded some of the best sources of evidence. The most characteristic feature of the common-law rules of evidence was, as Bentham pointed out, and, indeed, still is, their exclusionary character. They excluded and prohibited the use of certain kinds of evidence which would be used in ordinary inquiries. In particular, they disqualified certain classes of witnesses on the ground of interest in the subject-matter of the inquiry, instead of treating the interest of the witness as a matter affecting his credibility. It was against this confusion between competency and credibility that Bentham directed his principal attack. He also attacked the system of paper evidence, evidence by means of affidavits instead of by oral testimony in court, which prevailed in the court of chancery, and in ecclesiastical courts. Subsequent legislation has endorsed his criticisms. The Judicature Acts have reduced the use of affidavits in chancery proceedings within reasonable limits. A series of acts of parliament have removed, step by step, almost all the disqualifications which formerly made certain witnesses incompetent to testify.

of the fourth Lateran Council, who introduced the new in- | quisitorial procedure into the canon law. The procedure was applied to cases of heresy, and, as so applied, especially by the Dominicans, speedily assumed the features which made it infamous. Every safeguard of innocence was abolished or disregarded; torture was freely used. Everything seems to have been done to secure a conviction." Yet, in spite of its monstrous defects, the inquisitorial procedure of the ecclesiastical courts, secret in its methods, unfair to the accused, having torture as an integral element, gradually forced its way into the temporal courts, and may almost be said to have been adopted by the common law of western Europe. In connexion with this inquisitorial procedure continental jurists elaborated a theory of evidence, or judicial proofs, which formed the subject of an extensive literature. Under the rules thus evolved full proof (plena probatio) was essential for conviction, in the absence of confession, and the standard of full proof was fixed so high that it was in most cases unattainable. It therefore became material to obtain confession by some means or other. The most effective means was torture, and thus torture became an essential feature in criminal procedure. The rules of evidence attempted to graduate the weight to be attached to different kinds of testimony and almost to estimate that weight in numerical terms. "Le parlement de Toulouse," said Voltaire, "a un usage très singulier dans les preuves par témoins. On admet ailleurs des demi-preuves,.. mais à Toulouse on admet des quarts et des huitièmes de preuves." Modern continental procedure, as embodied in the most recent codes, has removed the worst features of inquisitorial procedure, and has shaken itself free from the trammels imposed by the old theory and technical rules of proof. But in this, as in other branches of law, France seems to have paid the penalty for having been first in the field with codification by lagging behind in material reforms. The French Code of Criminal Procedure was largely based on Colbert's Ordonnance of Before Bentham's work appeared, an act of 1814 had removed 1670, and though embodying some reforms, and since amended the incompetency of ratepayers as witnesses in certain cases on certain points, still retains some of the features of the un-relating to parishes. The Civil Procedure Act 1833 enacted reformed procedure which was condemned in the 18th century by Voltaire and the philosophes. Military procedure is in the rear of civil procedure, and the trial of Captain Dreyfus at Rennes in 1899 presented some interesting archaisms. Among these were the weight attached to the rank and position of witnesses as compared with the intrinsic character of their evidence, and the extraordinary importance attributed to confession even when made under suspicious circumstances and supported by flimsy evidence.

The history of criminal procedure in England has been traced by Sir James Stephen. The modern rules and practice as to evidence and witnesses in the common law courts, both in civil and in criminal cases, appear to have taken shape in the course of the 18th century. The first systematic treatise on the English law of evidence appears to have been written by Chief Baron Gilbert, who died in 1726, but whose Law of Evidence was not published until 1761. In writing it he is said to have been much influenced by Locke. It is highly praised by Blackstone as "a work which it is impossible to abstract or abridge without losing some beauty and destroying the charm of the whole "; but Bentham, who rarely agrees with Blackstone, speaks of it as running throughout "in the same strain of anility, garrulity, narrow-mindedness, absurdity, perpetual misrepresentation and indefatigable self-contradiction." In any case it remained the standard authority on the law of evidence throughout the remainder of the 18th century. Bentham wrote his Rationale of Judicial Evidence, specially applied to English Practice, at various times between the years 1802 and 1812. 1 Reference may be made to a well-known passage in the Essay concerning Human Understanding (Book iv. ch. xv.): "The grounds of probability are-First, the conformity of anything with our own knowledge, observation and experience. Second, the testimony of others touching their observation and experience. In the testimony of others is to be considered (1) the number, (2) the integrity, (3) the skill of the witnesses. (4) The design of the author, where it is a testimony out of a book cited. (5) The consistency of the parts and circumstances of the relation. (6) Contrary testimonies."

that a witness should not be objected to as incompetent, solely on the ground that the verdict or judgment would be admissible in evidence for or against him. An act of 1840 removed some doubts as to the competency of ratepayers to give evidence in matters relating to their parish. The Evidence Act 1843 enacted broadly that witnesses should not be excluded from giving evidence by reason of incapacity from crime or interest. The Evidence Act 1851 made parties to legal proceedings admissible witnesses subject to a proviso that "nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband." The Evidence (Scotland) Act 1853 made a similar provision for Scotland. The Evidence Amendment Act 1853 made the husbands and wives of parties admissible witnesses, except that husbands and wives could not give evidence for or against each other in criminal proceedings or in proceedings for adultery, and could not be compelled to disclose communications made to each other during marriage. Under the Matrimonial Causes Act 1857 the petitioner can be examined and cross-examined on oath at the hearing, but is not bound to answer any question tending to show that he or she has been guilty of adultery. Under the of marriage on the ground of adultery coupled with cruelty or Matrimonial Causes Act 1859, on a wife's petition for dissolution desertion, husband and wife are competent and compellable to give evidence as to the cruelty or desertion. The Crown Suits &c. Act 1865 declared that revenue proceedings were not to be treated as criminal proceedings for the purposes of the acts of 1851 and 1853. The Evidence Further Amendment Act 1869 declared that parties to actions for breach of promise of marriage

"

were competent to give evidence in the action, subject to a | Pondering the multitude of exclusionary" rules which had been proviso that the plaintiff should not recover unless his or her laid down by the English courts, Stephen thought that he had testimony was corroborated by some other material evidence could devise a formula by which the principle could be expressed. discovered the general principle on which those rules reposed, and It also made the parties to proceedings instituted in consequence My study of the subject," he says, "both practically and in books of adultery, and their husbands and wives, competent to give has convinced me that the doctrine that all facts in issue and relevant evidence, but a witness in any such proceeding, whether a party principle which forms the centre of and gives unity to all the express to the issue, and no others, may be proved, is the unexpressed or not, is not to be liable to be asked or bound to answer any negative rules which form the great mass of the law." The result was question tending to show that he or she has been guilty of the chapter on the relevancy of facts in the Indian Evidence Act, adultery, unless the witness has already given evidence in the and the definition of relevancy in s. 7 of that act. This definition same proceeding in disproof of the alleged adultery. There are things which were and things which were not causally connected was based on the view that a distinction could be drawn between similar provisions applying to Scotland in the Conjugal Rights with each other, and that relevancy depended on causal connexion. (Scotland) Amendment Act 1861, and the Evidence Further Subsequent criticism convinced Stephen that his definition was in Amendment (Scotland) Act 1874. The Evidence Act 1877 some respects too narrow and in others too wide, and eventually enacts that "on the trial of any indictment or other proceeding dropped. But even in their amended form the provisions about he adopted a definition out of which all reference to causality was for the non-repair of any public highway or bridge, or for a relevancy are open to serious criticism. The doctrine of relevancy, nuisance to any public highway, river, or bridge, and of any i.e of the probative effect of facts, is a branch of logic, not of law, other indictment or proceeding instituted for the purpose of and is out of place both in an enactment of the legislature and in a trying or enforcing a civil right only, every defendant to such compendium of legal rules. The necessity under which Stephen found himself of extending the range of relevant facts by making it indictment or proceeding, and the wife or husband of any such include facts "deemed to be relevant," and then narrowing it by defendant shall be admissible witnesses and compellable to give enabling the judge to exclude evidence of facts which are relevant, evidence." From 1872 onwards numerous enactments were illustrates the difference between the rules of logic and the rules of law. Relevancy is one thing; admissibility is another; and the passed making persons charged with particular offences, and confusion between them, which is much older than Stephen, is to their husbands and wives, competent witnesses. The language be regretted. Rightly or wrongly English judges have, on practical and effect of these enactments were not always the same, but grounds, declared inadmissible evidence of facts, which are relevant the insertion of some provision to this effect in an act creating judicial inquiries. Under these circumstances the attempt so to in the ordinary sense of the term, and which are so treated in nona new offence, especially if it was punishable by summary define relevancy as to make it conterminous with admissibility is proceedings, gradually became almost a common form in legis- misleading, and most readers of Stephen's Act and Digest would lation. In the year 1874 a bill to generalize these particular find them more intelligible and more useful if admissible were provisions, and to make the evidence of persons charged with substituted for "relevant" throughout. Indeed it is hardly too criminal offences admissible in all cases was introduced by Mr unsound and practically useless. The other parts of the work contain much to say that Stephen's doctrine of relevancy is theoretically Gladstone's government, and was passed by the standing com- terse and vigorous statements of the law, but a Procrustean attempt mittee of the House of Commons. During the next fourteen to make legal rules square with a preconceived theory has often years bills for the same purpose were repeatedly introduced, made the language and arrangement artificial, and the work, in spite of its compression, still contains rules which, under a more either by the government of the day, or by Lord Bramwell as scientific treatment, would find their appropriate place in other an independent member of the House of Lords. Finally the branches of the law. These defects are characteristic of a strong Criminal Evidence Act 1898, introduced by Lord Halsbury, has and able man, who saw clearly, and expressed forcibly what he did enacted in general terms that "every person charged with an see, but was apt to ignore or to deny the existence of what he did not see, whose mind was vigorous rather than subtle or accurate, offence, and the wife or husband, as the case may be, of the and who, in spite of his learning, was somewhat deficient in the person so charged, shall be a competent witness for the defence historical sense. But notwithstanding these defects, the conat every stage of the proceedings, whether the person so charged spicuous ability of the author, his learning, and his practical is charged solely or jointly with any other person." But this experience, especially in criminal cases, attach greater weight to FitzJames Stephen's statements than to those of any other English general enactment is qualified by some special restrictions, the writer on the law of evidence. nature of which will be noticed below. The act applies to Scotland but not to Ireland. It was not to apply to proceedings in courts-martial unless so applied by general orders or rules made under statutory authority. The provisions of the act have been applied by rules to military courts-martial, but have not yet been applied to naval courts-martial. The removal of disqualifications for want of religious belief is referred to below under the head of "Witnesses."

The act of 1898 finishes for the present the history of English legislation on evidence. For a view of the legal literature on the subject it is necessary to take a step backwards. Early Literature. in the 19th century Chief Baron Gilbert was superseded as an authority on the English law of evidence by the books of Phillips (1814) and Starkie (1824), who were followed by Roscoe (Nisi Prius, 1827; Criminal Cases, 1835), Greenleaf (American, 1842), Taylor (based on Greenleaf, 1848), and Best (1849). In 1876 Sir James FitzJames Stephen brought out his Digest of the Le of Evidence, based upon the Indian Evidence Act 1872, which he had prepared and passed as law member of the council of the governor-general of India. This Digest obtained a rapid and well-deserved success, and has materially influenced the form of subsequent writings on the English law of evidence. It sifted out what Stephen conceived to be the main rules of evidence from the mass of extraneous matter in which they had been embedded. Roscoe's Digests told the lawyer what things must be proved in order to sustain particular actions or criminal charges, and related as much to pleadings and to substantive law as to evidence proper. Taylor's two large volumes were a vast storehouse of useful information, but his book was one to consult, not to master. Stephen eliminated much of this extraneous matter, and summed up his rules in a series of succinct propositions, supplemented by apt illustrations, and couched in such a form that they could be easily read and remembered. Hence the English Digest, like the Indian Act, has been of much educational value. Its most original feature, but unfortunately also its weakest point, is its theory of relevancy.

"

Rules.

The object of every trial is, or may be, to determine two classes of questions or issues, which are usually distinguished as questions of law, and questions of fact, although the distinction between them is not so clear as might appear on a superficial view. In a trial by jury these two classes of questions are answered by different persons. The judge lays down the law. The jury, under the guidance of the judge, find the facts. It was with reference to trial by jury that the English rules of evidence were originally framed; it is by the peculiarities of this form of trial that many of them are to be explained; it is to this form of trial alone that some of the most important of them are exclusively applicable. The negative, exclusive, or exclusionary rules which form the characteristic features of the English law of evidence, are the rules in accordance with which the judge guides the jury. There is no difference of principle between the method of inquiry in judicial and in non-judicial proceedings. In either case a person who wishes to find out whether a particular event did or did not happen, tries, in the first place, to obtain information from persons who were present and saw what happened (direct evidence), and, failing this, to obtain information from persons who can tell him about facts from which he can draw an inference as to whether the event did or did not happen (indirect evidence). But in judicial inquiries the information given must be given on oath, and be liable to be tested by cross-examination. And there are rules of law which exclude from the consideration of the jury certain classes of facts which, in an ordinary inquiry, would, or might, be taken into consideration. Facts so excluded are said to be Inot admissible as evidence," or "not evidence," acces

"

as the word is used in the wider or in the narrower sense. And the easiest way of determining whether a fact is or is not evidence in the narrower sense, is first to consider whether it has any bearing on the question to be tried, and, if it has, to consider whether it falls within any one or more of the rules of exclusion laid down by English law. These rules of exclusion are peculiar to English law and to systems derived from English law. They have been much criticized, and some of them have been repealed

or materially modified by legislation. Most of them may be traced to directions given by a judge in the course of trying a particular case, given with special reference to the circumstances of that case, but expressed in general language, and, partly through the influence of text-writers, eventually hardened into general rules. In some cases their origin is only intelligible by reference to obsolete forms of pleading or practice. But in most cases they were originally rules of convenience laid down by the judge for the assistance of the jury. The judge is a man of trained experience, who has to arrive at a conclusion with the help of twelve untrained men, and who is naturally anxious to keep them straight, and give them every assistance in his power. The exclusion of certain forms of evidence assists the jury by concentrating their attention on the questions immediately before them, and by preventing them from being distracted or bewildered by facts which either have no bearing on the question before them, or have so remote a bearing on those questions as to be practically useless as guides to the truth. It also prevents a jury from being misled by statements the effect of which, through the prejudice they excite, is out of all proportion to their true weight. In this respect the rules of exclusion may be compared to blinkers, which keep a horse's cyes on the road before him. In criminal cases the rules of exclusion secure fair play to the accused, because he comes to the trial prepared to meet a specific charge, and ought not to be suddenly confronted by statements which he had no reason to expect would be made against him. They protect absent persons against statements affecting their character. And lastly they prevent the infinite waste of time which would ensue in the discussion of a question of fact if an inquiry were allowed to branch out into all the subjects with which that fact is more or less connected. The purely practical grounds on which the rules are based, according to the view of

a great judge, may be illustrated by some remarks of Mr Justice Willes (1814-1872). In discussing the question whether evidence of the plaintiff's conduct on other occasions ought to be admitted, he said:

Now it

custom of trade to make such contracts, and no connexion between
Head, 1858, 4 C.B. N.S. 388).
such and the one in question, was shown to exist" (Hollingham v.

There is no difference between the principles of evidence in civil and in criminal cases, although there are a few special rules, such as those relating to confessions and to dying declarations, which are only applicable to criminal proceedings. But in civil the parties, more use is made of evidence taken out of court, such proceedings the issues are narrowed by mutual admissions of as affidavits, and, generally, the rules of evidence are less strictly applied. It is often impolitic to object to the admission of evidence, even when the objection may be sustained by previous rulings. The general tendency of modern procedure is to place a more liberal and less technical construction on rules of evidence, especially in civil cases. In recent volumes of law reports cases turning on the admissibility of evidence are conspicuous by their rarity. Various causes have operated in this direction. One of them has been the change in the system of pleading, under which each party now knows before the actual trial the main facts on which his opponent relies. Another is the interaction of chancery and common-law practice and traditions since the Judicature Acts. In the chancery courts the rules of evidence were always less carefully observed, or, as Westminster would have said, less understood, than in the courts of common law. A judge trying questions of fact alone might naturally think that blinkers, though useful for a jury, are unnecessary for a judge. And the chancery judge was apt to read his affidavits first, and to deter mine their admissibility afterwards. In the meantime they had affected his mind.

The tendency of modern text-writers, among whom Professor

J. B. Thayer (1831-1902), of Harvard, was perhaps the most the field occupied by the law of evidence, and to relegate to other independent, instructive and suggestive, is to restrict materially branches of the law topics traditionally treated under the head of evidence. Thus in every way the law of evidence, though still embodying some principles of great importance, is of less comparative importance as a branch of English law than it was half a century ago. Legal rules, like dogmas, have their growth and decay. First comes the judge who gives a ruling in a parti

cular case.

Then comes the text-writer who collects the scattered

rulings, throws them into the form of general propositions, connects them together by some theory, sound or unsound, and often ignores or obscures their historical origin. After him comes the legislator who crystallizes the propositions into enactments, not always to the advantage of mankind. So also with decay. Legal rules fall into the background, are explained away, are ignored, are denied, are overruled. Much of the English law of evidence is in a stage of decay.

differently according to the taste or point of view of the writer. The subject-matter of the law of evidence may be arranged It will be arranged here under the following heads:-I. Preliminary Matter; II. Classes of Evidence; III. Rules of Exclusion; IV. Documentary Evidence; V. Witnesses.

I. PRELIMINARY MATTER

"It is not easy in all cases to draw the line and to define with accuracy where probability ceases and speculation begins; but we are bound to lay down the rule to the best of our ability. No doubt the rule as to confining the evidence to that which is relevant and pertinent to the issue is one of great importance, not only as regards the particular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point they have to decide. appears to me that the evidence proposed to be given in this case, if admitted, would not have shown that it was more probable that the contract was subject to the condition insisted upon by the defendant. The question may be put thus, Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion? To admit such speculative evidence would, I think, be fraught with great danger.... If such evidence were held admissible it would be difficult to say that the defendant might not in any case, where the question was whether or not there had been a sale of goods on credit, call witnesses to prove that the plaintiff had dealt with other persons upon a certain credit; or, in an action for an assault, that the plaintiff might not give evidence of former assaults committed by the defendant upon other persons, or upon other persons of a particular class, for the purpose of showing that he was a quarrelsome individual, and therefore that it was highly probable that the particular charge of assault was well founded. The extent to which this sort of thing might be carried is inconceivable.... To obviate the prejudices, the injustice, and the waste of time to which the admission of such evidence would lead, and bearing in mind the extent to which it might be carried, and that litigants are mortal, it is necessary not only to adhere to the rule, but to lay it down and by Lord Mansfield's variantstrictly. I think, therefore, the fact that the plaintiff had entered into contracts of a particular kind with other persons on other occasions could not be properly admitted in evidence where no

Under this head may be grouped certain principles and considerations which limit the range of matters to which evidence relates.

1. Law and Fact.-Evidence relates only to facts. It is therefore necessary to touch on the distinction between law and facts. Ad quaestionem facti non respondent judices; ad quaestionem juris non respondent juratores. Thus Coke, attributing, after his wont, to Bracton a maxim which may have been invented by himself. The maxim became the subject of political controversy, and the two rival views are represented by Pulteney's lines

"For twelve honest men have decided the cause
Who are judges alike of the facts and the laws,"

"Who are judges of facts, but not judges of laws." The particular question raised with respect to the law of libel

was settled by Fox's Libel Act 1792. Coke's maxim describes | reasoning or argument. Some so-called presumptions are rules in a broad general way the distinction between the functions of of substantive law under a disguise. To this class appear to the judge and of the jury, but is only true subject to important belong" conclusive presumptions of law," such as the commonqualifications. Judges in jury cases constantly decide what may law presumption that a child under seven years of age cannot be properly called questions of fact, though their action is commit a felony. So again the presumption that every one often disguised by the language applied or the procedure em- knows the law is merely an awkward way of saying that ignorance ployed. Juries, in giving a general verdict, often practically of the law is not a legal excuse for breaking it. Of true legal take the law into their own hands. The border-line between the presumptions, the majority may be dealt with most appropriately two classes of questions is indicated by the "mixed questions under different branches of the substantive law, such as the law of law and fact," to use a common phrase, which arise in such of crime, of property, or of contract, and accordingly Stephen cases as those relating to "necessaries," "due diligence," has included in his Digest of the Law of Evidence only some which #negligence," "reasonableness," "reasonable and probable are common to more than one branch of the law. The effect cause." In the treatment of these cases the line has been drawn of a presumption is to impute to certain facts or groups of facts differently at different times, and two conflicting tendencies a prima facie significance or operation, and thus, in legal proare discernible. On the one hand, there is the natural tendency ceedings, to throw upon the party against, whom it works the to generalize common inferences into legal rules, and to fix legal duty of bringing forward evidence to meet it. Accordingly the standards of duty. On the other hand, there is the sound instinct subject of presumptions is intimately connected with the subject that it is a mistake to define and refine too much in these cases, of the burden of proof, and the same legal rule may be expressed and that the better course is to leave broadly to the jury, under in different forms, either as throwing the advantage of a presump. the general guidance of the judge, the question what would be tion on one side, or as throwing the burden of proof on the other. done by the "reasonable" or "prudent" man in particular Thus the rule in Stephen's Digest, which says that the burden of cases. The latter tendency predominates in modern English proving that any person has been guilty of a crime or wrongful law, and is reflected by the enactments in the recent acts codify- act is on the person who asserts it, appears in the article entitled ing the law on bills of exchange and sale of goods, that certain "Presumption of Innocence." Among the more ordinary and questions of reasonableness are to be treated as questions of more important legal presumptions are the presumption of fact. On the same ground rests the dislike to limit the right of regularity in proceedings, described generally as a presumption a jury to give a general verdict in criminal cases. Questions of omnia esse rite acto, and including the presumption that the custom begin by being questions of fact, but as the custom obtains holder of a public office has been duly appointed, and has duly general recognition it becomes law. Many of the rules of the performed his official duties, the presumption of the legitimacy English mercantile law were "found" as customs by Lord of a child born during the mother's marriage, or within the Mansfield's special juries. Generally, it must be remembered period of gestation after her husband's death, and the presumpthat the jury act in subordinate co-operation with the judge, tions as to life and death. "A person shown not to have been and that the extent to which the judge limits or encroaches on heard of for seven years by those (if any) who, if he had been the province of the jury is apt to depend on the personal idiosyn- alive, would naturally have heard of him, is presumed to be dead crasy of the judge.fT unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it. There is no presumption " (i.c. legal presumption) as to the age at which a person died who is shown to have been alive at a given time, or as to the order in which two or more persons died who are shown to have died in the same accident, shipwreck or battle" (Stephen, Dig., art. 99). A document proved or purporting to be thirty years old is presumed to be genuine, and to have been properly executed and (if necessary) attested if produced from the proper custody. And the legal presumption of a "lost grant," i.e. the presumption that a right or alleged right which has been long enjoyed without interruption had a legal origin, still survives in addition to the common law and statutory rules of prescription.

2. Judicial Notice. It may be doubted whether the subject of judicial notice belongs properly to the law of evidence, and whether it does not belong rather to the general topic of legal or judicial reasoning. Matters which are the subject of judicial notice are part of the equipment of the judicial mind. It would" be absurd to require evidence of every fact; many facts must be assumed to be known. The judge, like the juryman, is supposed to bring with him to the consideration of the question which he has to try common sense, a general knowledge of human nature and the ways of the world, and also knowledge of things that "everybody is supposed to know." Of such matters judicial notice is said to be taken. But the range of general knowledge is indefinite, and the range of judicial notice has, for reasons of convenience, been fixed or extended, both by rulings of the judges and by numerous enactments of the legislature. It would be impossible to enumerate here the matters of which judicial notice must or may be taken. These are to be found in the text-books. For present purposes it must suffice to say that they include not only matters of fact of common and certain knowledge, but the law and practice of the courts, and many matters connected with the government of the country.

4. Burden of Proof.-The expression onus probandi has come down from the classical Roman law, and both it and the Roman maxims, Agenti incumbit probatio, Necessitas probandi incumbit ei qui dicit non ei qui negat, and Reus excipiendo fit actor, must be read with reference to the Roman system of actions, under which nothing was admitted, but the plaintiff's case was tried first; then, unless that failed, the defendant's on his exceptio; then, unless that failed, the plaintiff's on his replicatio, and so on. Under such a system the burden was always on the" actor." In modern law the phrase “burden of proof" may mean one of two things, which are often confused-the burden of establishburden of producing evidence on any particular point either at the beginning or at a later stage of the case. The burden in the former sense ordinarily rests on the plaintiff or prosecutor. The burden in the latter sense, that of going forward with evidence on a particular point, may shift from side to side as the case proceeds. The general rule is that he who alleges a fact must prove it, whether the allegation is couched in affirmative or negative terms. But this rule is subject to the effect of presumptions in particular cases, to the principle that in considering the amount of evidence necessary to shift the burden of proof regard

3. Presumptions.-—A presumption in the ordinary sense is an inference. It is an argument, based on observation, that what has happened in some cases will probably happen in others of the like nature. The subject of presumptions, so far as they are mere inferences or arguments, belongs, not to the law of evidence, or to law at all, but to rules of reasoning. But a legal presump-ing the proposition or issue on which the case depends, and the tion, or, as it is sometimes called, a presumption of law, as distinguished from a presumption of fact, is something more. It may be described, in Stephen's language, as" a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth" (perhaps it would be better to say 'soundness') " of the inference is disproved." Courts and legislatures have laid down such rules on grounds of public policy or general convenience, and the rules have then to be observed as rules of positive law, not merely used as part of the ordinary process of

|