EVIDENCE, LEGAL. Evidence is either parol or written, the former consisting of the statements of witnesses appearing personally in court, and which statements must be attested by an oath or solemn declaration; the latter consisting of records, deeds, and other writings.
A distinction—popular rather than legal—is commonly drawn between direct and circumstantial evidence. Evidence is said to be direct when the proof depends on the testimony of persons who swear to the fact in dispute as matter of personal knowledge: when the witnesses only swear to other facts from which the fact at issue may he inferred, the evidence is called circumstantial. The latter kind of evidence is usually regarded as inferior in value to direct. Yet it is sometimes held that circumstantial evidence may be the more trustworthy; for either the witnesses may be unaccountably mistaken, or may have designed to deceive, whereas, as Paley said, " circumstances cannot lie." The tendency, both in England and Scotland, of late years, has been to abolish all restric tions on the admissibility of witnesses, and to bring the rule practically to what Black stone stated it to be in theory, viz., "all witnesses that have the use of their reason are to be received and examined." The ground on which witnesses were formerly excluded was untrustworthiness, arising either from the character of the witnesses or their inter est in the suit. Under the former head fell those who were legally infamous (q.v.); whilst the latter included, first, the party to the suit himself, and then all who were connected with him by the ties of family, or even of business, in any appreciable degree. Gradually, however, it came to be seen that, though witnesses subject to these objections were less valuable than others to the party adducing them, it by no means followed that their testimony was of no value at all, and that the safer course in all cases was to examine them, and then to allow their testimony to be invalidated by proof of their interest in the cause direct or indirect, or of their having been convicted of such crimes as to render it unlikely that they should speak the truth. The objections have thus
become objections not to the admissibility or competency, but to the credibility of witnesses. The first of the very important statutes by which these changes were effected was 9 Geo. IV. c. 32, which permitted Quakers and Moravians to substitute a solemn affirmation for an oath; admitted the party whose name had been forged as a witness in prosecutions for forgery; and provided that no misdemeanor (except perjury) shall render a party an incompetent witness after be has undergone the punishment. Then came the Scotch net 3 and 4 Vict. c. 59, afterwards referred to, and the English act 6 and 7 Vict. c. 85, which provided that no person offered as a witness shall hereafter be excluded, by reason of incapacity from crime or interest, from giving evidence either in person or by deposition on any issue or inquiry civil or criminal, but shall be admitted notwith standing he may have an interest in the matter in question, or in the event of the trial or proceeding, and notwithstanding that he may have been previously convicted of any crime or offense. The same principle was extended by 14 and 15 Vict. c. 99 to the par ties to a cause, who are not only competent, but compellable to give evidence on behalf of either or any of the parties—subject only to exception where the question tends to criminate the person examined, or where one (now altered) sued for breach of promise of marriage, or any action or proceeding instituted in consequence of adultery. By 16 and 17 Vict. c. 83, the former statute, 14 and 15 Viet. c. 99, was amended to the effect that the husband or wife of the party shall be in the same position with the party himself, subject only to these exceptions—first, that the husband or wife cannot give evidence for or against each other in criminal proceedings (but now they may in suits for adultery), and that they cannot be compelled to disclose matters which they have learned by communications from each other during the marriage. The statutes by which the corresponding changes were effected in Scotland were 3 and 4 Vict. c. 59, 15 and 16 Vict. c. 27, and 16 and 17 Vict. c. 20.