EVIDENCE. Legal evidence denotes the means by which facts are ascertained for judicial purposes. The practical im portance of the subject is obvious from this definition ; and it has accordingly not only attracted much attention from judicial writers, but has formed a pro minent part of the jurisprudence of most eivilised countries, though the particular rules of evidence have been different in different systems of law. The Roman law contains (so far as we now know it) few regulations respecting evidence, the whole subject being comprised in one short chap ter of the Digest, which lays down several positive rules for the exclusion of wit nesses within prescribed degrees of con sanguinity to the litigant parties. In the common law of England, where facts are ascertained by juries, the body of rules and restrictions denominated the law of evidence has been gradually established within the last two centuries. Previ ously to that time, in the infancy of the trial by jury, as we understand that in stitution, the only positive rules respect ing evidence were those which related to the two witnesses in treason required by statutes passed in the reign of Edward VI. This gradual development of restrictions upon the admission of testimony seems to show that, in this country at least, the tendency has been to contract and not to enlarge (as some writers have supposed) the rules of judicial evidence. The ac counts of our earlier judicial proceedings contained in the state trials sufficiently prove that it was the practice formerly to admit without scruple or question every species of testimony ; whereas the present law of evidence is almost wholly composed of restrictive rules.
In giving a compendious view of the principles of the English law of evidence (which are the same at equity as at com mon law, and in criminal and civil pro ceedings) it is proposed—I. To enumerate the limitations which it prescribes to the competency of witnesses ; 2. To give a brief summary of the principal rules by winch the reception of oral evidence is governed ; and 3. To state the principal rules which relate to written evidence.
I. Of the competency of witnesses.—The general. rule of English law upon this subject is, that all persons may be wit nesses in courts of justice who have suffi cient understanding to comprehend the subject of their testimony, and sufficient religious principle to ensure a right sense of the obligation of an oath to speak the truth. Thus very young children are admissible as witnesses, if they have a competent knowledge of the nature of an oath, and a religious apprehension of the consequences of falsehood. All testi
mony, by the law of England, must be given under the sanction of an oath, or affirmation in the case of Quakers and Moravian ; but the form of the oath is immaterial, and nothing is required be yond a persuasion upon the mind of the witness that in swearing to the truth of what he states he is appealing to a Divine Being who will punish him for false hood. A Christian is sworn upon the Gos pels ; a Jew, upon the Old Testament ; and a Mohammedan or other person not a Christian, in such form as he considers binding. [OATH.) To the general rule of the admissibi lity of all persons of sufficient intellect and religious belief there are several im portant exceptions. In the first place, a husband cannot be a witness for or against his wife, nor a wife for or against her husband ; a rule which is said to arise from the identity of interest subsisting in such a connexion. However, in crimi nal prosecutions founded upon personal violence committed by either of these parties upon the other, such testimony is admitted upon the ground of necessity. Secondly, in actions at the common law, a party to the suit cannot be examined as a witness ; but in courts of equity de fendants in a cause may be made wit nesses upon a special application for that purpose ; and in those courts, if a plaintiff consents to be examined as a witness his evidence may be admitted. Thirdly, a person cannot be a witness who has been convicted of treason or felony, or of any offence which involves the erimen falai (such as perjury or cheating), or which is liable to a punishment which the law considers infamous, as whipping, brand ing, or the pillory. This principle of exclusion, which is derived from the Roman law (Digest ii., tit. " De Tes tibus"), is now of little practical im portance, as the recent statutes have en acted that a pardon in felons, or the ac tual endurance of the punishment in felony or misdemeanour, excepting per jury or subornation of perjury, shall have the effect of restoring the competency of the party as a witness. Fourthly, the law of England excludes the evidence of those who have a direct interest in the result of the proceedings in which they are called to testify. The indefinite state of the rule respecting the nature of the disqualifying interest led to much per plexity in its practical application. These rules are, however, now altered by a recent act, which will presently be men tioned.