EVIDENCE, in law, proof, by testimo ny of witnesses on oath, or by writings, or records adduced before a court, or magis trate of competent jurisdiction. It is two fold, either written or verbal ; the former by records, deedi, bonds, or other writ ten documents, thelatter by witnesses ex amined viva voce, and called, technically, parole evidence. It is also either absolute or presumptive ; and may be that which is given in proof by the parties, or which the jury know of themselves, for every thing which makes a fact or thing evident to them, is called evidence.
The system of evidence adopted in Bri tish courts is very comprehensive and re fined. The first rule is, that the affirma tive of the issue, or matter brought in question by the proceedings, shall be proved ; for a negative, generally speak ing, cannot be proved, at least without such circuity as renders it almost impos sible. Where a man is charged with not doing an act which by law he is required to do ; however, this requires some ex ception; but, even then, some evidence is given to prove it. No evidence not relat ing to the issue, or in some manner con nected with it, can be received : nor can the character of either party, unless put in issue by the very proceeding itself; be called in question. The most general and fundamental principle is, that the best evidence the nature of the cause will admit shall be produced ; for if better evidence might have been adduced, its being withheld furnishes a suspicion ad verse to the party in whose power it was to produce it. So that of a written con tract in the custody of the party, no pa role evidence can be received as to its contents. But if a deed be burnt, or de stroyed by accident,upon positive proof of that fact, other evidence may be given of its contents, and it need not be produced.
Witnesses are summoned by writ of subpoena to attend, on penalty of 100/. to the King, and 10/. to the party, by statute 5 Eliz. c. 9. besides damages sustained by their non-attendance. All witnesses, of all religions, who believe in a future state of rewards and punishments,are received, but not persons infamous in law by their crimes, nor persons directly interested in the matter in issue ; and no counsel or at torney shall be compelled to disclose the secrets intrusted to him by his client, but he may give evidence of facts which he knew, by other means than for the pur pose of the cause. One witness is suffi
cient to any fact, except in high treason, when by statutes 1 Edw. VI. c. 12, and 5 and 6 Edw VI. c. 11, two are required, but that is only in treasons of conspiracy against the state, and not treasons relat ing to the coin, &c. The oath of the witness is, to speak the truth, the whole truth, and nothing but the truth ; and all evidence is to be given in open court.
The general rules of evidence are, 1. The best evidence must be given thatthe nature of the thing is capable of. 2. No person interested in the question can be a witness : but to this there are exceptions; as first, in criminal prosecutions ; second ly, for general usage, for convenience of trade, as a servant to prove the delivery of goods, though it tends to clear himself of neglect. 3. Where the witness acquires the interest by his own act, after the par ty who calls him has a right to his evi dence. The third rule is, that hearsay of a matter of fact is no evidence ; but of matter of reputation, such as a custom, it is in some sort evidence. 4. Where a ge neral character is'the matter in issue, particular facts may be received in evi dence, but not where it occurs incident ally. 5. In every issue the affirmative is to be proved. 6. No evidence need be given of what is agreed, or not denied, upon the pleadings.
In criminal eases the same rules pre vail, but evidence of the confessions of the party should be received with caution, and are rejected, when obtained through promises orthreats.Presumptiveevidence should be admitted with caution, and two excellent rules are given by Sir Matthew Hale, that no one should be convicted of stealing goods of a person actually un known, unless there is proof of a felony actually committed ; and none tried for murder,until the murdered body be found.