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PRINCIPLES AND PRACTICE
LAW OF EVIDENCE.
GENERAL PRINCIPLES OF EVIDENCE.
SINCE mathematical or demonstrative certainty is unattainable in any of the affairs of daily life, courts of justice, like individuals, are compelled to be satisfied with that inferior kind of evidence which is called moral. All moral science, of which law is the practical expression, consists intrinsically of inquiry and investigation, which are infinite by nature, but finite by necessity and, in the administration of justice, the exigencies of public and private business require that this limit should be neither recondite nor fanciful, but well defined, according to the maxims and experience of common sense. Therefore moral probability, or, as it is erroneously termed, moral certainty, is the highest degree of proof to which the science of legal evidence aspires. In this respect, the analogy between ethics, or moral philosophy, and the English Law of Evidence is complete. As in ethics, and in all purely transcendental inquiries which seek for [EV.]
knowledge beyond the limits of the senses, the logical result is seldom more than a slight elevation or depression of one of two or more sets of competitive probabilities: so moral philosophy, when applied to the daily business of life, and made a standard and a test of the existence or non-existence of uncertain and disputable facts, gives, as the result, only a greater or less amount of verisimilitude, or probability. The region of evidence lies, therefore, exclusively between moral certainty on the one hand, as its most perfect extreme, and moral possibility on the other, as its most imperfect extreme. It does not look for more than the first, and it will not act on less than the last. Its whole object is to produce those convictions which spring spontaneously from the suggestions of the intuition, as embodied in the conclusions of the reasoning or comparative faculty of the mind; and in every case the last conclusion of the speculative intellect rightly suggests and governs the first outward operation of the practical mind.2 From such a speculative conclusion there may spring also ulterior inferences, connected strictly in a chain of cause and effect: for "if a strong probability be raised by express evidence, unless the probable consequence may be inferred, the business of life could not be conducted, and justice could not be administered." "3 But the fundamental maxims of the law of evidence are not by any means founded on the most approved principles of modern metaphysics.; for, bounded and fallible as the human senses are in their demonstration, yet the science of evidence recognizes in them its best and highest exposition. Thus, as a general rule, the English Law of Evidence may be regarded as primarily always striving after the depositions of eye-witnesses. Yet their statements, although always valuable, are so far from being, as is sometimes supposed, of a demonstrative character, that they are often intrinsically less satisfactory than
1 Cicero De Officiis: Butler's Analogy of Religion,
2 Aristotle, Eth. Nic. lib. 6.
3 Per Lord Campbell, C. J.: Wheelton v. Hardisty, 26 L. J. 278, Q. B.; 31 L. T. Rep. 303.
many other grades of presumptive evidence, which are nominally inferior. Ignorance, passion, prejudice, and other constitutional infirmities of the witness, which are far beyond the sight or conjecture of either a judge or jury, may, and constantly do, without the consciousness of the deponent, distort his evidence so far as to render it absolutely worthless; although it may be delivered with perfect calmness and consistency, and even remain unshaken by the most searching cross-examination. A still more alarming ground for distrust lies in the possibility that the witness may be committing perjury; and the experience of the profession, during the last few years, has added tenfold power to this deplorable hypothesis. The recent act of the 17 & 18 Vict. c. 125, s. 20, by which witnesses professing conscientious objections to an oath may be permitted by the judge, or other presiding officer, to give evidence on mere affirmation, is not likely to lessen the suspicion with which direct evidence has always been regarded by the profession; and, although it is far from the intention of the present writer to question the wisdom of the Legislature in this case, it is necessary to refer to it at a point where the value of direct evidence is being discussed.
It is, however, universally the object of courts to obtain the best evidence; and, generally, direct, or original, evidence, such as has been mentioned, is considered the best. Hence hearsay evidence,-i. e. evidence which is neither the vivâ voce statement on oath of a witness who is present, nor the affidavit, where affidavits are admissible, of a witness who may be produced and cross-examined if necessary, and will be punished for perjury,—is generally inadmissible, because no trustworthy belief, on any matter of importance, can attach to reports of what has been said or done by an absentee, who perhaps may have spoken or acted, either fraudulently or inadvertently, without being under the religious and legal responsibilities of an oath, and without being subject to the test of a cross-examination. Also, direct evidence is viewed as being either
primary or secondary; and it is an inflexible rule, that secondary evidence is inadmissible until the absence of primary evidence has been explained to the satisfaction of the judge. Thus, in a dispute on a contract under seal, the deed is primary evidence, and should be produced to show the terms of the contract. As long as it exists, and can be obtained by reasonable diligence, no other written or oral evidence of its contents will be received; but if it be destroyed, or if it cannot be found after proper search; or if an adverse party, holding it, refuse to produce it, after due notice; then either written or oral evidence may be given by any one who is acquainted with the contents of the deed. The rule is the same in the case of written contracts, not under seal. As long as the writing exists it must be produced, if possible; but if it be impossible to produce it, the judge may, in his discretion, allow the contract to be proved by secondary, i. e. by oral, evidence.
Where neither of these modes of direct evidence can be supplied, and in many cases where they can be supplied, the law permits facts to be proved by that inferior kind of evidence which is usually, but inaccurately, named presumptive or circumstantial. The term is inaccurate, because, according to the premises, even direct evidence, when analysed, is found to be presumptive, and to depend for its weight on a number of circumstantial peculiarities which affect the credibility of the witness or other proof. But presumptive or circumstantial evidence, as distinguished from direct evidence, is understood to be that species of proof which arises from the existence of a fact, and not from the deposition of a witness, or from writings which are substituted for witnesses. Thus it is a legal presumption that persons who act as public officers have been duly appointed as such. If a man be stabbed in a house, and another man be seen running from the house immediately after, with a bloody sword in his hand, the flight, the weapon, and the blood raise, in legal language, a violent presumption that the second