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word undergoes in the mouths of the vulgar, before it is adapted to their pronunciation.

An analogy may, moreover, be perceived between the oral tradition of facts, and the transmission of customs or institutions from one generation to another. ("") Usages of this sort, dependent upon the lessons conveyed from parents to children, and upon the imitation of seniors by their juniors, though their substance may remain identical, yet often undergo considerable changes in the descent. However, in the case of customs, and of laws dependent on usage, there is more security against alteration than in the repetition of a story by one person to another, because there is the agreement of many persons in its observance. Besides, unwritten law, or jus non scriptum, though not issued in a written form, is almost always preserved in writing. A similar analogy may be discerned with the transmission of doctrines from master to disciple in a philosophical or literary school.(2) Here, again, though much is preserved in writing, the doctrines undergo a change as they pass through successive generations of teachers.

§ 6 It is partly in consequence of the natural inferiority of secondary to primary evidence, of the small value which belongs to an oral repetition of the account of an original witness, as compared with an account given by the witness himself in his own words, that hearsay evidence is, with certain exceptions, excluded from our courts of common law, both in civil and criminal matters. (") It should, however, be observed, that there

(19) The idea of a tradition-of a passing on or handing down-is often applied to usages and customs, both civil and religious. Thus Horace : Sat. i. 4, 117.

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Traditum ab antiquis morem servare.'

Quisquis ades, faveas; fruges lustremus et agros, Ritus ut a prisco traditus extat avo.'-Tibull. ii. 1, 1. Germanorum consuetudo a majoribus tradita.'-Cæsar, B. G. iv. 7. See also Eurip. Bacch. 201.

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(20) On the oral tradition of doctrines in the Pythagorean sect, see Plutarch, Num. 22.

(21) See Phillipps on Evidence, vol. i. p. 185 (ed. 9, 1843); and for the history of the rule, which is of comparatively recent introduction in our law, ib. p. 208. It may not be superfluous to remark, that the distinction between original and hearsay evidence must not be confounded with the distinction

are certain important reasons which apply to the exclusion of hearsay evidence in courts of law, but which do not extend to evidence for historical purposes. It is important, for the administration of justice, that a witness should give his deposition in person, in order that his manner may be observed, and that after he has been examined by the party on whose behalf he appears, he may be cross-examined by the opposite party and by the court. It is likewise material, that if he gives deliberately false testimony he should be liable to an indictment for perjury.(22) But a historian cannot summon and cross-examine his witnesses; he cannot observe their manner and deportment under examination; nor are they, if they testify falsely, subject to be indicted for perjury. He judges exclusively on written depositions; and provided those written depositions really proceed from the original witnesses, and are an authentic record of their testimony, he is satisfied, and does not object to their being furnished to him by an intermediate party.

between direct and indirect, presumptive, or circumstantial evidence. The latter distinction depends on its proving the matter in issue, or something from which the matter in issue is inferred; whereas the former distinction depends on the witness speaking from his own knowledge, or from the knowledge of others. They are cross-divisions, founded on different principles.

The report from the committee to inspect the Lords' journals upon the proceedings in Hastings' trial (drawn by Burke, and printed in vol. xiv. of his works), argues against the applicability of strict rules of evidence to a parliamentary impeachment, and condemns exclusion of evidence which leads to a failure of justice. It also shows the importance of presumptive or indirect evidence in a case such as that of Hastings; but it says nothing in favour of the admissibility of secondary or hearsay evidence, except so far as it may be understood to include this species of evidence in the general tenour of its reasoning.

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The modern civilians had laid down very strict rules with respect to the necessity of proof by original, not hearsay evidence. Testis debet attestari de his vel quæ vidit vel quæ sensu corporis certa esse percepit; alias dolus præsumitur, nec ignorantiæ vel erroris excusatio prodest.'Menochius de Præsumptionibus, lib. v. præsumpt. 22. Postremo scientiæ causam debent afferre per illum corporis sensum quo percipitur id de quo rogantur; hoc est, ut quod sub aspectum cadit, dicat se vidisse, quod sub auditum, se audivisse asserat, et sic de ceteris.'-Mascardus de Probationibus, quæst. v. n. 126 (vol. i. p. 13). The doctrines of the civil law on this head doubtless influenced the English jurisprudence on the important subject of hearsay.

(22) On the grounds of the exclusion of hearsay evidence in judicial proceedings, see Phillipps, vol. i. p. 206; Starkie on Evidence, vol. i. p. 38, ed. 3, 1842.

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From this explanation, it will be seen that the positions of a historian and of a court of justice, with respect to hearsay evidence, are, in one material point, wholly different. Evidence may be hearsay to a court, which is not hearsay to a historian. A judge considers all evidence hearsay, if the statement of the transaction proceeds from a person who is not produced in court. (23) If, for example, a person present on any occasion has

(23) 'The highest degree of certainty of which the mind is capable, with respect to the existence of a particular fact, consists in a knowledge of the fact, derived from actual perception of the fact by the senses; and even this degree of evidence is obviously capable of being strengthened or weakened by particular circumstances.

*The degree of evidence which ranks the second in the scale, consists of information derived, not from actual perception by our senses, but from the relation and information of others, who have had the means of acquiring actual knowledge of the facts, and in whose qualifications for acquiring that knowledge, and retaining it, and faithfulness in afterwards communicating it, we can place confidence.

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Information thus derived is evidently inferior, in point of certainty, to that knowledge which is acquired by means of the senses, since it is one step removed from the highest and most perfect source. The truth of the fact in question depends upon the powers of perception possessed by another; the opportunity afforded him of applying them; his diligence in making that application; the strength of his recollection; and his inclination to speak or to write the truth. It is, however, upon knowledge thus derived that juries must in general act; they must be informed of the res gesta by those who have been eye and ear witnesses of them; these means of knowledge, and their faithful communication of it, being guarded by the securest means which the law can devise. A third and still inferior ground of belief consists in information which we derive, not immediately from one who has had actual knowledge of the fact by the perception of his senses, but from one who knows nothing more of the fact, than that it has been asserted by some other person. This species of evidence, which is generally termed hearsay evidence, is evidently inferior, in point of certainty, to the former, even for the common purposes of daily intercourse in society; for, although the author of the assertion may be known, and his veracity highly appreciated, there is a greater latitude afforded for deception, mistake, and misapprehension, and for defect of memory; and hence a degree of doubt must result, which must evidently be increased in proportion to the number of persons through whom the communication has been transmitted: and consequently, where the author is unknown, and the number of intermediate parties who have acted in the transmission is also unknown, the knowledge must also be vague and uncertain, even as applied to the common affairs of life. But for the purposes of proof in a court of justice, a still stronger reason operates to the rejection of such evidence, namely, that it cannot be subjected to the ordinary tests which the law has provided for the ascertainment of truth-the obligation of an oath, and the opportunity afforded for cross-examination; for these, or equivalent ones, are the guarantees of truth which the law in ordinary cases invariably requires. In the common course of life, evidence of this nature is frequently, nay usually, acted upon without scruple; but in the ordinary affairs of life

written a letter describing what he observed; or if a witness was examined by a magistrate, and his deposition, given orally in the presence of the accused party, was taken down in writing and acknowledged by him as accurate; the letter, or the deposition, is, in law, hearsay evidence, because the author of the statement is not sworn as a witness, and examined in open court. Now, where a living person has already given a written account of a transaction, or has undergone a preliminary judicial examination, it is right that he should be produced in person to give his oral evidence to the court. (24) But this rule, if enforced indiscriminately, with respect to deceased persons, would lead to serious inconvenience in the administration of justice, and hence it has been relaxed to a great extent with respect to evidence of this description. The exceptions to the rule excluding hearsay evidence have been principally dictated by this motive; thus, in cases of pedigree, the declarations of deceased members of the family:() in cases of public rights, (such as boundaries of parishes, &c.,) the declarations of deceased inhabitants, and the prevalence

there is, in general, no considerable temptation to deceive. On the contrary, a legal investigation of a fact which involves the highest and dearest interests of the parties concerned-property, character, liberty, nay, life itself -presents the greatest possible temptations to deceive; and, therefore, that evidence which is admitted before a jury must be guarded and secured by greater restraints and stricter rules than those which are sufficient for the common purposes of life.'-Starkie's Law of Evidence, vol. i. p. 36, n. ed. 3.

Hadrian declared in a rescript, Testibus se, non testimoniis crediturum,' Dig. xxii. 5, § 3. The same emperor laid down, in another rescript, 'Alia est auctoritas præsentium testium, alia testimoniorum quæ recitari solent.'-Ibid. In these passages, the distinction between the oral testimony of a witness present in court, and the written testimony of an absent witness, is taken.

Eisenhart (De Fide Historicâ Commentarius, c. 10) expresses the old doctrine of the civilians thus: Quod si testis scripsit testimonium suum, et tradit illud judici in scriptis, vel eidem legit, non valere ejus testimonium.'

(24) The general rule is, that evidence of the declarations of living persons cannot be received: they must be produced to give their own account to the court.-Phillipps, vol. i. p. 428.

(25) Phillipps, vol. i. p. 211. Hearsay, in the second degree, is receivable in pedigree cases. Thus, the declarations of a deceased lady, that her first husband was accustomed to make certain statements respecting the pedigree of the family, were admitted.-Ib. p. 227.

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of a local traditionary belief on the subject, are admitted.(*) A similar exception is allowed for entries in account books, and in other similar documents, made by a deceased person, if adverse to his interest; (2) for declarations made at the point of death ;(*) and for depositions sworn before a magistrate, where the witness is dead, or unable, from permanent bodily or mental incapacity, to appear in court. (29) In most of these cases, where the rule against hearsay evidence is relaxed, the evidence of the original witness is obtained in an authentic shape; but, as he is not forthcoming, and therefore cannot be examined, his own written record of a fact, or as precise a record of it by others as can be procured, is admitted. Now to the judge, an entry in an ancient book, or a written judicial deposition by a deceased witness, is hearsay evidence; but to the historian, who is satisfied with getting to the fountain-head, without coming into personal contact with the witness, the evidence would be original, and not hearsay. A similar doctrine with respect to the validity of hearsay evidence is laid down in the civil law; and a similar exception is made, from the necessity of the case, as to the proof of

(26) Phillipps, ib. p. 238. Lord Ellenborough, however, has remarked, with reference to cases of this class, that reputation is in general weak evidence,' and that the jury ought to be cautioned against giving it too much weight. Other judges have taken a different view of the probative force of reputation in these cases.-Ib. p. 255. Concerning general reputation, its nature, and the grounds on which it is sometimes admissible in evidence, see Starkie, vol. i. p. 27-30.

(27) Phillipps, ib. p. 323. But the doctrine, that 'where there is a competency of knowledge-or at least peculiar means of knowledge-in an individual making a declaration, and a total absence of interest to pervert the facts to which he has spoken, his declarations would be admissible evidence after his death, even though the declarations did not operate against his own interest' (ib. p. 318), is too extensive; and such declarations are not receivable in evidence. A court of equity, however, as it decides upon written evidence, and does not examine its own witnesses— does not act upon this rule. It allows witnesses to be examined for the purpose of perpetuating their testimony, and their answers can be used as evidence in a suit after their death. A common-law court cannot perpetuate evidence, for the reason explained in the text.

(28) Ib. p. 279. This species of evidence is viewed with distrust by Mr. Phillipps, ib. p. 292.

(29) Ib. vol. ii. p. 64, 71. They are considered the best form of hearsay evidence.

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