Hearsay, or secondary evidence, can at the best only be equal in value to original or primary evidence: inasmuch as it only professes to repeat and reproduce that evidence. A hearsay report is simply a repetition of the oral account of a percipient witness, and the utmost at which it aims is to repeat that account with fidelity.(13) In the vast majority of cases, however, the repetition is not faithful; and the chances of error increase with the number of repetitions which the story undergoes.(") When the process is multiplied on a large scale, the effect resembles the description of Ovid, in his image of the abode of Fame :— Veniunt leve vulgus euntque, Mixtaque cum veris passim commenta vagantur vii. : The flying rumours gathered as they rolled, 3. Printed newspapers; 4. Personal memoirs ; 5. Contemporary histories; 6. Histories written one or two centuries after the events described; 7. Works of ancient historians, relating to remote periods; 8. Histories of antiquity by modern writers.'-Tom. i. p. 64-71; tom. P: 186-93. The four first of these classes are an imperfect enumeration of the materials for history. The sixth and seventh are two ill-defined classes, intermediate between contemporary histories, derived from original information, and histories compiled from existing records. (13) Thucydides remarks that, even with respect to their domestic annals, the Greeks repeated traditionary stories without inquiring into the original evidence; οἱ γὰρ ἄνθρωποι τὰς ἀκοὰς τῶν προγεγενημένων, καὶ ἦν ἐπιχώρια σφίσιν ᾖ, ὁμοίως ἀβασανίστως παρ ̓ ἀλλήλων δέχονται.—1. 20. If, therefore, the original version was false, the most faithful repetition could never cure the defect. (14) Bayle (Dict. art. Balde,' note C) says that a hearsay report should be recorded only in one of two cases: 1, if it is very probable; 2, if it is mentioned in order to be exploded. He again points out the danger of trusting to hearsay reports in historical questions,-Art. 'Chigi,' note G. On the uncertainty of hearsays, see Volney, Leçons d'Histoire; Euvres, ed. 1837, P. 564-6. The English word hearsay appears to be borrowed from the old French oui-dire, used as a noun. (15) Met. xii. 53-8. And all who told it added something new, And all who heard it made enlargements too, In every ear it spread, on every tongue it grew. (16) § 5 The causes of the inferiority of hearsay to primary testimony are not obscure. An oral account is sometimes imperfectly understood, and almost always imperfectly remembered. Many persons are so habitually loose and inaccurate in their narratives, that even without any bias or motive to distort the account, they alter a story in the repetition; they omit material parts; they transpose others—thus altering the chronological series, and perhaps the sequence of cause and effect: they unconsciously supply motives and reasons, and add ornamental touches of their own. Where, however, there is a strong bias in the mind of the repeater; where the account excites in his breast lively feelings of sympathy or antipathy, of admiration or disgust, of fear or wonder; where it relates to circumstances in which he, or those connected with him, have or believe themselves to have, a strong pecuniary interest; where it strikes on a chord of political or religious sentiment-there the probability of a more serious perversion of the facts, unless the person be of strict and conscientious habits as to veracity of narration, is to be apprehended. The temptation to colour, to exaggerate, to extenuate, to suppress, to interpolate malicious or apologetic glosses, to insert inuendoes, to give a sinister meaning to innocent expressions, and to convert accident into design, is, in a case of this kind, almost irresistible, and certainly is not resisted by the great majority of mankind. In an age, or in a class of persons, whose canon of belief still includes supernatural events in the contemporary order of nature, there is a further danger of marvellous incidents being engrafted upon a plain fact, while it is travelling (16) Temple of Fame. Nunquam ad liquidum fama perducitur; omnia, illâ tradente, majora sunt vero.'-Curtius, ix. 2. Any prevailing passion, and especially fear, vitiates the truth of rumour. 'Sic quisque pavendo Dat vires famæ, nulloque auctore malorum Quæ finxere timent.' Lucan, i. 484-6. from mouth to mouth. (") Lastly, oral statements, made casually, or in private, by original witnesses-which often are the foundation of hearsay reports are not uttered with the same care, deliberation, previous refreshing of the memory, and reference to notes, attention to completeness and order of events, and sense of responsibility, as written accounts, or as oral depositions in courts of justice or on public occasions, taken down verbatim in writing at the time. The diminution of accuracy by oral repetition is akin to the effect produced by successive transcriptions of the account of a historical fact. Everybody accustomed to historical investigations knows the importance of going to the fountain-head, of not trusting to second-hand quotations, and to the statements of writers who rely upon ulterior authorities. (18) If, however, compilers who write either with the book open before them, or after a recent inspection of it, are often inaccurate, how much greater is the danger of error from misconception, exaggeration, carelessness, or defect of memory, when statements are repeated by word of mouth! The perversion, mutilation, and distortion which a fact generally undergoes when it is once fairly committed to the keeping of popular rumour, without any controlling or verifying influence-when it is sent down the stream of popular tradition, to drift wherever chance may carry it-may likewise be compared with the changes which a foreign or a learned (17) When mythical accounts grow up in a historical age, and consist in a mere embellishment of facts, the true and the altered version can sometimes be compared. Thus, Livy tells us that the Romans, in the year 205 B.C., in consequence of oracles, applied to King Attalus for permission to remove to Rome a sacred stone, called the mother of the gods, from Pessinus, in Phrygia, which he willingly gave.-xxix. 11, 14. Also Herodian, i. 11. Ovid, in his Fasti, in narrating the same story, says that Attalus at first refused the application, but afterwards granted it, in consequence of a miraculous speech of the goddess.—iv. 265-72. (18) Chacun se mêle de changer quelque circonstance dans ce qu'il cite par ce moyen les faits se gâtent, et se pervertissent bientôt entre les mains de ceux qui les citent.'-Bayle, Dict.; art. 'Tanaquil,' note D. Some remarkable examples of the errors introduced into historical statements by successive transcribers and compilers may be seen in the Memoir of Sebastian Cabot, (London, 1831,) by Mr. Biddle. 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. (1) 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.(") 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. ("1) 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 : Traditum ab antiquis morem servare.' Sat. i. 4, 117. 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. (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.(*) 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. 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. |