Origin of the "Hearsay Rule" but only concerning those which they know to have taken place under their own eyes.8 But it is in the famous mediaeval Spanish Code known as Las Siete Partidas that we find the most elaborate expres sion of the hearsay doctrine. A con siderable portion of the third Partida is devoted to the subject of "Prueva" (proof) and a careful study of its con tents will afford a revelation to those who assume that the law on that subject is mostly modern. Among its provisions are the following : — When a witness is questioned why and how he knows what he testifies to; if he answer, that he knows it, because he was present when the contract was entered into, or the thing done, and that he saw it done, his testimony will be valid. But if he says he heard it from another, it will be of no effect; unless to prove contracts, entered into in such a manner that the witness may testify as to what he heard, as if he should say: "I saw and heard such a one make such a con tract or agreement." But if he were only to declare "that he heard another say, that such and such persons had entered into such an agree ment in such manner, or that one man had killed another"; his testimony would not be legal, because the witness spoke from hearsay only. But if he were to say, "I heard such a one make such a contract" as the law permits to be heard. We also say that the witnesses ought to be interrogated as to the time, the year, month, day and place, when and where the fact took place of which they speak. For if they dis agree among themselves, the one saying it took place in one place, and the other in another; their testimony will be without effect. It was by that means the prophet Daniel destroyed the testimony of the witnesses produced against Susanna; they having disagreed as to the place in which the fact occurred. They ought also to be asked what other persons were present when the occurrence took place; and no other ques tions should be put to witnesses of unsuspected character. But if they were base, suspected persons, equivocating in their testimony, the judge may put to them other questions to con tradict them by their own words: as by asking them what kind of weather it was, when the fact took place? was it cloudy or did the sun shine?
- Forum Judicum (Scott's Translation) Bk. II,
Tit. IV (V).
305
how long had they known the persons of whom they speak? what clothes they wore at the time? For by the answers they make, and the expres sion of their countenances, the judge may infer whether he should believe them or not.' Men sometimes complain of the damage done to their estates or houses, by water conducted thither by means of ancient artificial works, which they pray the judge may be taken away or destroyed. And as it often happens, that the works are so old, that no one living has seen them erected; the ancient sages of the law have thought proper in such cases to admit hearsay testimony, on the witness deposing as follows: "I declare that the water which runs from such a place to such a place, and which causes the damage, is conducted upon works erected by the hands of man." And if he be asked how he knows it, and he answer, that he had heard it from others who saw the works erected, or who had seen those who saw them erected, and that such was the common report; such proof will be sufficient for the plaintiff. We also say, that if the defendant's witnesses declare that they had not seen the works erected, nor had ever heard it said they were erected by the hands of man, and that there was no one living who had heard it so said; but that it was the common report, that they were natural and not artificial works, such testimony will suffice for the defend ant. But in other causes, hearsay testimony cannot he heard, unless in the manner before explained. We moreover say, that the testi mony of a witness, who does not explain how he knows what he declares, but only says he believes it, shall be of no effect.7 It would be difficult to find the rule stated more elaborately and at the same time concretely, in a modern textbook, and the fullness of statement indicates that here, as often elsewhere, the authors of the Partidas borrowed copiously from Roman sources. It is true that hearsay evidence is now received in the courts of Spain 8 in common with other civil law countries.9 0 Third Partida, Moreau & Carleton's Transl., Tit. XVI. Ley 28. 7 Id.. Ley 29. 8 U. S. v. Tan Juanco. 1 Phil. 374. • Ricci, Tratado de las Pruebas (Ed. of Buylla y Posada) 397. "Under the methods based on the
