From the above summary of the prin cipal rules of evidence existing in the English law, it will be observed that the system is extremely exclusive. Upon the subject of interested witnesses, the law has lately been altered in the way already ex plained. With respect to the reception of secondary and hearsay evidence, it sanc tions no degree or kind of testimony at second-hand (except in the cases above enumerated), but excludes it under all varieties of circumstances. It is true that we ought not to attach so much weight to hearsay evidence as to direct testimony, because it is beyond all doubt that the certainty of obtaining the truth is dimin ished, and that the means and causes of error are multiplied, in proportion as you remove from the actual observer and add links to the chain of testimony. But it may still be questioned whether the abso lute and unconditional rejection of hear say evidence is useful. Also with respect to the mode of proving hand-writing, it might be unsafe wholly to rely upon the evidence of comparison of hands by per sons of experience in that occupation, but there seems no good reason why such proof should not be admissible in aid of the present vague and unsatisfactory mode of proof by the general belief of a witness.
The most plausible reason for the ex clusiveness of the English law of evidence is derived from the nature of the trial by jury, with reference to which it is con tended to be safer to withdraw doubtful evidence altogether from their considera tion, than to leave it to persons who are often uninstructed, and incapable of draw ing correct distinctions upon the subject of testimony, to form a proper estimate of its credibility. But this reason is founded upon an assumption not justified by the fact, namely, that the means of proof actu ally legalized are infallible guides to truth ; whereas the truth is, that many of them are quite as liable to lead to a false conclusion as those which are excluded. In this state of things, therefore, there seems no good reason why all practicable means of attaining to truth, however various in their degrees of effectiveness, should not be committed to juries. This seems indeed to be the growing impression in the profession ; the inclination of the courts of late years being to let in as much light to a cause as possible, and to regard objections to evidence rather as matters of credibility upon which juries may exercise their judgment, than of competency to be wholly withdrawn from their consider ation.
Witnesses in proceedings in Equity are examined upon written interrogatories, as explained in the article Equrrv. The interrogatories are drawn by counsel, according to the instructions which he receives as to the facts which a witness is considered able to prove ; but it frequently happens that the instructions are very de fective, and the counsel is obliged to frame his interrogatories as well as he can, in order to elicit the proof of facts favour able to the party for whom he is employed. Though each several interrogatory, when well drawn, is framed for the purpose of establishing some single and distinct fact, or connected facts, written inter rogatories cannot from their nature be otherwise than long and somewhat dif ficult to comprehend. In the oral ex amination of a witness, it necessarily hap pens that several questions must be asked consecutively for the purpose of com pleting the investigation into and the establishment of every important fact to which the examination is directed. Writ ten interrogatories must be framed on the same principle, and therefore every subse quent part of an interrogatory must be framed on the supposition of every pre vious part being answered in some way ; and, consequently, it is hardly possible in written interrogatories to avoid what is milled making them leading, and at the same time verbose and cumbrous. These
long interrogatories, it is proved by expe rience, areoften imperfectly comprehended by the witnesses, and consequently their evidence is in some respects either incom plete or inaccurate, or both. The inter rogatories which either party proposes to his witnesses are not known to the adverse party until the examination of all the wit nesses on both sides is concluded, when publication is passed, as it is termed, and copies of all the depositions are delivered to the litigating parties under an order of the court.
Witnesses in courts of law are pro duced before the court, and examined by counsel ; after which they may be cross examined by the counsel for the other side. In the equity system thew is of course no cross-examination, in the proper sense of the term ; for one party does not know what the witnesses examined by the opposite party have deposed, and cannot therefbre effectually examine them, as in a court of common law, where the cross examination of a witness follows, and is founded upon what the witness has stated in his examination in chief. If a party to a suit in chancery will cross-examine a witness who is produced by his adver sary for examination, he must examine him on written interrogatories, without knowing what interrogatories have been proposed to him by the opposite party, and without knowing what he has said in his depositions in chief. Such a cross examination must be in general altogether useless, and often dangerous to the inte rest of the party making it; unless the witness is one whom he would him self have examined in chief. Under the 32nd order of the 21st of December, 1833, the last interrogatory before that date commonly in use is in future to be allowed as follows : "Do you know or can you set forth any other matter or thing which may be of benefit or advan tage to the parties at issue in this cause, or either of them," &c. A party, how ever, is not bound to insert this interro gatory; and, indeed, no great harm will result if it is never used. Owing to vari ous causes, such as disinclination on the part of a witness to give himself further trouble, particular affection to one of the litigating parties, or forgetfulness, it might have been anticipated that this general interrogatory would fail in its object; and so far as it has been used, such is said to be the case.
This mode of ascertaining facts in suits in equity is evidently very defective, and has been the subject of considerable com plaint and of lengthened inquiry ; but hitherto nothing has been done to amend the system.
(See Minutes of Evidence taken before the Chancery Commissioners, annexed to their Report of 1826 ; and a pamphlet (1837), by W. A. Garrott, entitled Sugges tions for Reform in Proceedings in Chan cery.) Those who may be inclined to follow this subject further will find it discussed at great length in Bentham's Rationale of Judicial Evidence, a work which has certainly contributed to the formation of more correct opinions on evidence ; but it has neither exhausted the subject, nor is it free from great defects. The rules of the English law of evidence are contained in the treatises of Mr. Phillipps and Mr. Starkie.