CHAPTER VII.

THE PROGRESS OF THE LAW OF EVIDENCE.

THOSE Who have hoped that with the growth of democratic institutions, with increase of education and of national wealth, there would come also peace and order, municipal and international, have oftentimes been grievously disappointed. Progress has been spasmodic and halting, and the world is full of inequalities. But in one respect, at any rate, Great Britain may be congratulated on having steadily marched forward, not swiftly, indeed, sometimes with halts which to-day seem ludicrous, oftentimes with timidity. Her legal system has, in the last hundred years, become clearer, less technical, and more calculated to assist the cause of justice. No more remarkable step in this direction, one which completes the reform of a particular and most important branch of the municipal law of England, is to be found than the passing of the Criminal Evidence Act in 1898. From the beginning of the nineteenth century the law of evidence was continually growing more reasonable and more simple, while at the same time it has been a constant battle-ground of those who have advocated and those who have opposed the amendment of the law both in and out of Parliament.

In 1824 Lord Denman, then an eminent member of the bar, contributed an article to the Edinburgh Review on

the subject of Evidence in Courts of Law. It was based on Bentham's "Traité des Preuves Judiciaires," and put forward views in regard to the law of evidence which, though at the moment they were considerably in advance of the legal and general ideas of the age, were yet, in due time, certain of acceptance. For the theories and opinions of Bentham, who was regarded as an unpractical philosopher, were, by the publication of this article, shown to be accepted by an important and influential section of the legal profession and of the general public, which was determined to put an end to some of the absurd and illogical rules of evidence then in existence. The gist of that article was that there should be no exclusion of the evidence of persons who could throw light on the question which was before the court for decision, with two exceptions. In other words, every party to а civil action, and every prosecutor and prisoner in a criminal trial, ought to be allowed to give evidence, with the exception that confidential communications made by a client to his legal adviser need not be disclosed, and that married persons were disqualified as witnesses for or against each other. The negative of these two main propositions contained in a nutshell the most remarkable and the most startling of the rules of legal practice, in regard to evidence, at the beginning of the present century. The fact that a certain person was interested, in a greater or less degree, in the result of a trial was supposed to prevent him from testifying to the truth. Lord Denman, in the article in question, takes as an example of this practice the case of forgery.

'Unless the crime," he writes, "has been committed in

the presence of witnesses, it can only be proved (in the proper sense of the word) by the individual whose name is said to have been forged. Yet that person is the only one whom the law of England prohibits from proving the fact. The trial proceeds in the presence of the person whose name is said to have been forged, who alone knows the fact and has no motive for misrepresenting it. His statement would at once convict the prisoner if guilty, or if innocent relieve him from the charge; and he is condemned to sit by hearing the case imperfectly proceeding by the opinions and surmises of other persons on the speculative question whether or not the handwriting is his." Unquestionably, at the beginning of the last century English law had lost sight of the fundamental truth which was well stated by Bentham, "that evidence is the basis of justice; to exclude evidence is to exclude justice." There followed from this principle what may be termed the practical rule-" Let in the light of evidence. The exception will be, except when the letting in of such light is attended with preponderant collateral inconvenience, in the shape of vexation, expense, and delay."

Forgetting, as we have said, that the exclusion of evidence is the exclusion of justice, English law made the exception the rule; in other words, there were so many restrictions on their competency that the most important witnesses were excluded from giving evidence.

To those who have seen Bentham's principles in regard to evidence at length carried in their totality into effect, it is hardly possible to understand a state of opinion,

legal and general, which could have retarded this complete developement for a century. For this period, speaking broadly, it took to make them active legal rules. Bentham published his treatise on judicial evidence in 1813; two years before the completion of the nineteenth century the edifice was finally crowned.

The remarkable feature of these movements and changes is the long time it has taken not to effect the establishing of some strange constitutional or legal theories, but to place on the Statute-book and in the Common Law of England rules based, not on subtle philosophies, but on common sense and sound reason.

Bentham on this point represented the modern spirit; it is now a truism to reiterate that utility was the foundation of his philosophical as well as of his legal theories. What we understand by utility has been the characteristic of all the legal changes of the present century. Speed, cheapness, absence of formality and technicality, even perhaps an unreasonable contempt for things which have had their use in times gone by, have been visible in every one of the legal movements of modern times. There never was a more business-like philosopher than Bentham; he epitomised modern thought in regard to English law to an astonishing degree. He saw through a maze of precedent, of forms and technicalities, he put his finger on the object of the law, and he had a perfect contempt for professional tradition and timidity. If there is one thing more than another which the modern man of business, at any rate to a recent date, believed in, it is that lawyers were essentially "fee collecting," that they put their own

interests first and foremost. Bentham wrote of the lawyers in the beginning of the nineteenth century as the man in the street often talked of them at its end. Therefore, in regarding law reforms, in observing how almost everything that Bentham advocated in the beginning of the century has come to pass, it is necessary, while giving him all credit for a rare foresight, not to overrate his influence. He was not, we must repeat, a man who put forward strange theories; he only gave expression to modern opinions before the country was ripe for them. He had not to convert an unbelieving world, because his ideas on English law were those which would occur to every man of common sense when the community as a whole began to interest itself in the subject, and to feel the necessity for a system which was in harmony with modern needs. Bentham, when men read him in more recent years, was in the position of the leader-writer who states in language which the man in the street cannot command the thoughts of that individual. The value of Bentham's writings to the cause of law reform, more especially to the reform of the law of evidence, was that those who saw that the state of things was unsatisfactory found in his writings the remedies for it set out with lucidity, and even with eloquence, and the absurdity of old-fashioned technicalities exposed with keenness and humour. To some extent, of course, the perusal of his writings would set some minds thinking, but, allowing for this, it is certain that Bentham's great merit was that he voiced the feeling of the public as against too conservative lawyers rather in the period which followed his life than during his own time.

R.

L