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guarantees in a barbarous age, failed to ensure the veracity of a witness, that the judge in mere despair and conscious of his inability to discover the truth, called upon Providence to supply by a special interposition, the want of human judgment, and sagacity. This is the origin of ordeal and trial by battle. Afterwards, we find, that owing to the Roman law, which the church was not able, nor, indeed, willing altogether to corrupt, some rules of evidence were laid down, and a regular system of examination was established. The system of examination still blindly followed in our Court of Chancery, originated beyond all doubt, with the church in the middle ages; and while, notwithstanding the authority of the church, the more beneficial principles of public trial were slowly making their way, the judicial history of Europe teems with evidence of the little reliance that can be placed on human testimony-charges that we know to be impossible, of witchcraft, of direct intercourse with evil spirits, were solemnly confessed by wretched victims, bewildered by terror, and infatuated with superstition. I propose to state the rules of evidence as established by the Law of Justinian, by the Canon Law, by the French Law, as it existed in the time of Pothier, and as it is modified by the Code Napoléon, and to trace, as far as they can be traced, in proceedings confused, flexible, and anomalous, as our criminal trials, where the decision of one judge was often overruled by his successor, the gradual application of the principles of the law of evidence, as it is at present exemplified in English courts of justice.
ROMAN LAW OF EVIDENCE (6). To suppose that any fact can be known to any intellect without evidence, is absurd and implies a contradiction. If a fact is evident to any understanding, there must be evidence
(6) “L'esprit ne sait véritablement que ce qu'il voit avec évidence." Malebranche Recherche de la Vérité, Liv. 3, c. 4.
of it visible to that understanding. No mind created or uncreated can see evidence where there is none, for that is to see that to be which is not; and, therefore, supposing what is impossible, any truth absolutely without evidence, such a truth would be necessarily and for ever unknown. Infinite wisdom will discern what to all other beings is inscrutable; but it will not discern that which does not exist, for to it that non-existence, as to which created minds may doubt, will be certain and apparent.
The word which most nearly corresponds to our term evidence in the Roman law, is probatio; both expressions comprehend everything by which a doubtful matter may be rendered more certain to the judge. It would be erroneous to suppose, from the mutilated fragments of Roman law, which we possess, that the wholesale exclusion of particular classes of witnesses, was in that system a positive and inflexible maxim. The rescript of Hadrian to Varus, to the effect that the judge is best able to ascertain what degree of credit is due to witnesses, shews that many of the objections which later civilians applied to the competence, were, in fact, aimed at the credibility of witnesses (a). So, in the rescript in which that of Hadrian is cited, the general principles of evidence are insisted upon.
“What arguments and in what degree, amount to proof in each case cannot accurately be defined. Sometimes the number of witnesses—sometimes their rank and authority—sometimes the unanimous voice of public fame, establishes the proof of the matter under investigation. All the direction I can give is, that you should not tie yourself down to any one particular species of proof, but allow your own belief to decide, what is and what is not sufficiently established” (6). Much has been written on the subject of the law of evidence, especially in later times, by persons learned in the
(a) Dig 22. 3 ; Cod. 4. 19; Dig. 22; 5 Cod. 4. 20.
(6) Burke, vol. 14. Report of the Committee to inspect Lords' Journals, vide note (p), page 20.
Roman law, and much ingenuity has been employed on the doctrine of indications and presumptions. The subtile disquisitions on these and other matters of jurisprudence, before the complete revival of letters, often degenerate into absurdities so gross that they almost remind the reader of the English reports, and justify the severe censure of Rabelais, who was a complete master of that and every other branch of learning.
So various and fleeting, however, are the motives which govern human affairs, the forms which they assume, and the effects which they produce, that no attempt entirely to methodize the rules of evidence, can be successful and complete. The only universal rule that can be laid down is, that the best evidence should be given of which the case admits. To all other rules, even to the soundest and most general of all, the exclusion of hearsay, exceptions must be numerous, and the wider and more comprehensive the view may be that the student takes of this vast and almost infinite subject, the more disposed will he be to adopt the maxim always acted upon by Lord Mansfield, though frequently rejected by the narrowness of the present age, that it were better there were no rules than that there should be no exceptions.
The first and most important question presented by the law of evidence, is on whom does the “onus probandi” rest ? This was answered by the civilians; first, by the maxim, that it was for the actor to prove his case ; and secondly, that he who made an allegation was to prove it, “ei incumbit probatio qui dicit non qui negat.” The defendant, on the other hand, who admitted the truth of the plaintiff's case, but answered it by the allegation of some fact, which, if true, put an end to his demand, was bound to prove that allegation.
Reus in exceptione actor est. “If,” says the Code de except. si quidem, “ you say the plaintiff cannot establish his case by proof, no other defence is necessary; but if you confess the
truth of his statement, and assert a reason against its consequences, that is the matter of investigation.”
Thus the general rule of law was clear and certain. That when the fact on which the plaintiff rested his case was denied by his antagonist, the burden of proof was on the plaintiffto this principle and the specified exceptions, every case in the Digest may be reconciled.
When the fact was not denied, by the defendant, when in the words of the Roman jurists, the exceptio became the intentio; as we should say, the plea took the place of the declaration. (c) “ Reus probare debet exceptionem quasi intentionem," and several instances are given in the Digest, 22. 3. 19. “In exceptionibus dicendum est reum partibus actoris fungi oportere, ipsumque exceptionem velut intentionem implere, ut putas si pacti conventi exceptione utatur, docere debet pactum conventum factum esse.” p. 11. As an instance of the application of this rule, the case may be cited in which the heir is sued by a legatee. He defends himself by the Falcidian law, that is, by asserting that the estate of the deceased is insufficient—here the onus of the proof is on the heir. He admits the will and the bequest, and is, therefore, bound to shew why the obligation apparently thence arising does not exist. There is a law in the Code sive possidetis (d), which flings the onus of proof even on the possessor of an estate. Two emancipated sons were in possession of a farm; this farm, after the death of their father, was claimed by his heirs; they alleged that it had been given to them by their father, and it was held that they were bound to prove this allegation. “Mirum quidem plerisque videtur," says Donellus,
cur eos qui possessores erant aliquid probare debere dicant ;" but he adds, there is nothing strange about the matter. “ Nam cum ea prædia fuerint patris decessoris vel ipsâ
(c) Cujac. 7. 872. Anglicé. As it is for the plaintiff to prove his declaration, it is for the defendant who admits and answers it to prove his plea.
(d) Cod. 5. 19, $ 16.
emancipatorum confessione .... constet autem petitores ei hæredes exstitisse" .... “quia possessores factum esse dicunt quod non constat -et adversarii negant ex eâdem regulâ quobare illos oportet.” So the general rule was that the affirmative and not the negative was to be proved; but this rule admitted three exceptions:
First, when although the phrase was negative, it involved an affirmation, “forma verborum negativa re ipsâ affirmativa est,” as if the suitor said that the son was not emancipated, or that his house was not liable to a particular servitude.
Secondly, if the presumption was in favour of the affirmative; so according to the very elegant and refined (e) reasoning of Paulus, in the case where the defendant allowed money to have been paid to him, but asserted that the payment was in discharge of a debt, Paulus held that it was for the plaintiff to shew that the money paid was not a debt.
Thirdly, when the burden of proof was cast on the defendant, who denied a fact on account of his official character, e. g. if the guardians of a ward were insolvent, and unable to liquidate the debts due from them to their ward's estate. The magistrate who appointed them, if he denied that they were insolvent at the time of their appointment, was obliged to prove his assertion.
But it may be remarked, that in most suits, both parties affirm one set of propositions, and deny another; and the rule “nobody is bound to prove a negative,” which common-place people are so fond of quoting, even when it is not false, is liable to great doubt and must be taken with many exceptions.
The trite absurdity, that no one is bound to prove a negative, owes its origin to the misinterpretation of the following passage in the Code, lib. iv. tit. 19, s. 23. “ Actor quod asseverat probare se non posse profitendo, reum necessitate monstrandi
(e) 22 Dig. 22. 3. 25. 1. But if the defendant denied the receipt of the money in the first instance, and the payment of it was proved, the onus of shewing that it was a debt was cast on the defendant.