were competent to give evidence in the action, subject to a proviso that the plaintiff should not recover unless his or her testimony was corroborated by some other material evidence. It also made the parties to proceedings instituted in consequence of adultery, and their husbands and wives, competent to give evidence, but a witness in any such proceeding, whether a party or not, is not to be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless the witness has already given evidence in the same proceeding in disproof of the alleged adultery. There are similar provisions applying to Scotland in the Conjugal Rights (Scotland) Amendment Act 1861, and the Evidence Further Amendment (Scotland) Act 1874. The Evidence Act 1877 enacts that “on the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and 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.” From 1872 onwards numerous enactments were passed making persons charged with particular offences, and their husbands and wives, competent witnesses. The language and effect of these enactments were not always the same, but the insertion of some provision to this effect in an act creating a new offence, especially if it was punishable by summary proceedings, gradually became almost a common form in legislation. In the year 1874 a bill to generalize these particular provisions, and to make the evidence of persons charged with criminal offences admissible in all cases was introduced by Mr Gladstone’s government, and was passed by the standing committee of the House of Commons. During the next fourteen years bills for the same purpose were repeatedly introduced, either by the government of the day, or by Lord Bramwell as an independent member of the House of Lords. Finally the Criminal Evidence Act 1898, introduced by Lord Halsbury, has enacted in general terms that “every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.” But this general enactment is qualified by some special restrictions, the nature of which will be noticed below. The act applies to Scotland but not to Ireland. It was not to apply to proceedings in courts-martial unless so applied by general orders or rules made under statutory authority. The provisions of the act have been applied by rules to military courts-martial, but have not yet been applied to naval courts-martial. The removal of disqualifications for want of religious belief is referred to below under the head of “Witnesses.”
The act of 1898 finishes for the present the history of English legislation on evidence. For a view of the legal literature on the subject it is necessary to take a step backwards. Early in the 19th century Chief Baron Gilbert was superseded as an authority on the English law of evidence by the books of Literature. Phillips (1814) and Starkie (1824), who were followed by Roscoe (Nisi Prius, 1827; Criminal Cases, 1835), Greenleaf (American, 1842), Taylor (based on Greenleaf, 1848), and Best (1849). In 1876 Sir James FitzJames Stephen brought out his Digest of the Law of Evidence, based upon the Indian Evidence Act 1872, which he had prepared and passed as law member of the council of the governor-general of India. This Digest obtained a rapid and well-deserved success, and has materially influenced the form of subsequent writings on the English law of evidence. It sifted out what Stephen conceived to be the main rules of evidence from the mass of extraneous matter in which they had been embedded. Roscoe’s Digests told the lawyer what things must be proved in order to sustain particular actions or criminal charges, and related as much to pleadings and to substantive law as to evidence proper. Taylor’s two large volumes were a vast storehouse of useful information, but his book was one to consult, not to master. Stephen eliminated much of this extraneous matter, and summed up his rules in a series of succinct propositions, supplemented by apt illustrations, and couched in such a form that they could be easily read and remembered. Hence the English Digest, like the Indian Act, has been of much educational value. Its most original feature, but unfortunately also its weakest point, is its theory of relevancy. Pondering the multitude of “exclusionary” rules which had been laid down by the English courts, Stephen thought that he had discovered the general principle on which those rules reposed, and could devise a formula by which the principle could be expressed. “My study of the subject,” he says, “both practically and in books has convinced me that the doctrine that all facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the centre of and gives unity to all the express negative rules which form the great mass of the law.” The result was the chapter on the relevancy of facts in the Indian Evidence Act, and the definition of relevancy in s. 7 of that act. This definition was based on the view that a distinction could be drawn between things which were and things which were not causally connected with each other, and that relevancy depended on causal connexion. Subsequent criticism convinced Stephen that his definition was in some respects too narrow and in others too wide, and eventually he adopted a definition out of which all reference to causality was dropped. But even in their amended form the provisions about relevancy are open to serious criticism. The doctrine of relevancy, i.e. of the probative effect of facts, is a branch of logic, not of law, and is out of place both in an enactment of the legislature and in a compendium of legal rules. The necessity under which Stephen found himself of extending the range of relevant facts by making it include facts “deemed to be relevant,” and then narrowing it by enabling the judge to exclude evidence of facts which are relevant, illustrates the difference between the rules of logic and the rules of law. Relevancy is one thing; admissibility is another; and the confusion between them, which is much older than Stephen, is to be regretted. Rightly or wrongly English judges have, on practical grounds, declared inadmissible evidence of facts, which are relevant in the ordinary sense of the term, and which are so treated in non-judicial inquiries. Under these circumstances the attempt so to define relevancy as to make it conterminous with admissibility is misleading, and most readers of Stephen’s Act and Digest would find them more intelligible and more useful if “admissible” were substituted for “relevant” throughout. Indeed it is hardly too much to say that Stephen’s doctrine of relevancy is theoretically unsound and practically useless. The other parts of the work contain terse and vigorous statements of the law, but a Procrustean attempt to make legal rules square with a preconceived theory has often made the language and arrangement artificial, and the work, in spite of its compression, still contains rules which, under a more scientific treatment, would find their appropriate place in other branches of the law. These defects are characteristic of a strong and able man, who saw clearly, and expressed forcibly what he did see, but was apt to ignore or to deny the existence of what he did not see, whose mind was vigorous rather than subtle or accurate, and who, in spite of his learning, was somewhat deficient in the historical sense. But notwithstanding these defects, the conspicuous ability of the author, his learning, and his practical experience, especially in criminal cases, attach greater weight to FitzJames Stephen’s statements than to those of any other English writer on the law of evidence.
The object of every trial is, or may be, to determine two classes of questions or issues, which are usually distinguished as questions of law, and questions of fact, although the distinction between them is not so clear as might appear on a superficial view. In a trial by jury these two classes Rules. of questions are answered by different persons. The judge lays down the law. The jury, under the guidance of the judge, find the facts. It was with reference to trial by jury that the English rules of evidence were originally framed; it is by the peculiarities of this form of trial that many of them are to be explained; it is to this form of trial alone that some of the most important of them are exclusively applicable. The negative, exclusive, or exclusionary rules which form the characteristic features of the English law of evidence, are the rules in accordance with which the judge guides the jury. There is no difference of principle between the method of inquiry in judicial and in non-judicial proceedings. In either case a person who wishes to find out whether a particular event did or did not happen, tries, in the first place, to obtain information from persons who were present and saw what happened (direct evidence), and, failing this, to obtain information from persons who can tell him about facts from which he can draw an inference as to whether the event did or did not happen (indirect evidence). But in judicial inquiries the information given must be given on oath, and be liable to be tested by cross-examination. And there are rules of law which exclude from the consideration of the jury certain classes of facts which, in an ordinary inquiry, would, or might, be taken into consideration. Facts so excluded are said to be “not admissible as evidence,” or “not evidence,” according
