EVIDENCE 739 The distinction sometimes drawn between direct and circumstantial evidence is of popular rather than legal interest. The fact in issue may be proved either by the testimony of persons who swear to it as a matter of per sonal knowledge, or by the testimony of persons who swear to other facts from which the existence of the fact in issue is inferred. In the former case the evidence is said to be direct, in the latter circumstantial. The pro bative force of these two sorts of evidence has been dif ferently estimated. On the one hand, it has been said (and this, we should think is the more popular view) that a conclusion arrived at merely from inference is not so trustworthy as the positive assertion of a sane and honest witness who testifies to what he has actually seen or heard. The explanation would seem to be that men have less confidence in their own powers of reasoning than in the assertions of others. It is hardly necessary to point. out that in both cases a process of inference is necessary that we infer the existence of the fact from the fact that the witness swears to it, and that this inference like others is exposed to the chances of error. On the other hand, the numberless instances on which positive direct testi mony as to matters of fact has been subsequently shown to be entirely false or erroneous, has led to the opposite opinion that circumstantial is more trustworthy than direct evidence. Apart from the possibility of deliberate falsehood in the witness, there is the chance of his having been utterly and unaccountably mistaken. Everybody can recall striking instances of this especially in cases of per sonal identity. 1 Accordingly, it has been said, in the phrase of Paley, that " circumstances cannot lie," or, as it was put by Mr Justice Buller in Donnallau s case, " a pre sumption which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence, because it is not within the reach and compass of human ability to invent a train of circum stances which shall be so connected together as to amount to a proof of guilt without affording opportunities for con tradicting a great part, if not all those circumstances." The facts in circumstantial evidence are, however, like the facts in direct evidence, to be taken subject to the possi bility of mistake or falsehood on the person narrating them, and the process of inference has its own peculiar dangers. The anno domini water-mark on writing paper has often been the instrument of convicting persons of forgery; but "it is beyond a doubt," says Mr Wills, "and instances of the kind have recently occurred, that issues of paper have taken place bearing the water-mark of the year succeeding their distribution." Circumstantial evidence corresponds to " facts relevant to the issue," as defined in this article. The English law of evidence is perhaps the most perfect example we possess of what Bentham calls judge-made law. It is substantially the creation of successive genera tions of judges in the courts of common law. It grew up as a thing of custom and practice, and it is not so very long since different customs prevailed on different circuits. Thus, :Lord Ellenborough, in one instance quoted by Sir J. Stephen, spoke of the practice of the Northern and Western Circuits as being different from that of the Oxford Circuit. It was made by judges for juries, and this fact no doubt serves to explain many of its peculiarities. 1 A very remarkable example is given by Mr Wills in his essay on The Rationale of Circumstantial Evidence. Sir Thomas Davenant, an eminent barrister, a gentleman of acute mind and strong understand ing, swore positively to the persons of two men whom he charged with robbing him in the open daylight. But it was proved, on the most conclusive evidence, that the men on trial were at the time of the robbery at so remote a distance from where Sir Thomas was robbed that the thing was impossible. The consequence was that the men were acquitted : and some time afterwards the robbers were taken, and tho articles stolen from Sir Thomas and his lady found upon them. Without adopting Bentham s opinion that these were deliberately intended to subserve the " sinister interests " of the lawyers, we may admit that they were founded largely on distrust of the capacity of the tribunal to which the issues of fact belong. Hence doubtless those number less presumptions by which a conclusion is imposed on the jury until positive evidence is offered to set it aside. Hence also that monstrous system of exclusions by which any person whose position was such as to make it in tho least degree likely or possible that he would tell a false hood, was withdrawn from the hearing of the jury. Only the most contemptuous disbelief in the sagacity of jury men can account for the exclusion of the only witness cognizant of the transaction in question, .simply because he has a slight pecuniary interest in the result. It may be conjectured that if trial by jury had not been the practice of the common law if the judges had acquired the power of deciding issues of fact as well of law many of the most obnoxious rules of evidence would never, have existed. The legislature has interfered mainly for the purpose of putting an end to these exclusions. Certainly the most important of the statutes dealing with the law of evidence are those which make classes of persons, formerly excluded, competent to testify. The source of this continuous reform is to be found in the treatise of Bentham, which, for the first time, examined the traditionary law by the light of practical utility. Starting with the fundamental principle that the great object in judicial evidence is the discovery of truth, he hunted down with merciless rigour the artificial rules which closed out the surest sources of evidence. The success of his attack has been complete. In 1843 the exclusion of persons by reason of interest or crime was abolished (G and 7 Viet. c. 85), but the incapacity of the parties to an action was allowed to remain. This in turn was abolished with certain exceptions by the 14 and 15 Viet. c. 99. By 32 and 33 Viet. c. 68, parties were allowed to give evidence in actions for breach of promise (subject to the requirement of corroboration), and husbands and wives in proceedings for adultery. The last Act of this sort was passed in 1877, and is a curious instance of the guarded way in which the legislature has approached this subject. It simply provides that, on the trial of any indictment or other proceeding for the non-repair of any public highway, bridge, or for a nuisance, or of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses, and compellable to give evidence. Husband and wife are now excluded only in purely criminal cases, and in course of time no doubt that exclusion also will be brought to an end. Religious disabilities (enforced by the necessity of an oath) have also been gradually got rid of by successive enactments, the most important being the 24 and 25 Viet, c. 66, and 32 and 33 Viet. c. 68. With these exceptions, the legislature has left the leading principles of the law untouched. In attempting to give an outline of the law of evidence in this country we shall follow in the main the division adopted by Sir J. Stephen in his very useful Digest. English text books on the law of evidence owe their enormous bulk to the introduction of rules which properly belong to the substantive law, or to the rules of practice in the tribunals. Confining ourselves to the general principles of evidence, we shall notice shortly the following heads : 1st, What facts may be proved in a court of law ; 2d, By what kind of evidence they must be proved ; and, 3d, By whom, and in what manner, the evidence must be
produced.