Report No. 69
History of Rules of Evidence in England
The rules of law that underlie most of the provisions of the Indian Evidence Act could be better understood if the history of the corresponding English rules is borne in mind. For this reason, we propose to deal in brief with the history of some of the important English rules.
2.2. Origin in the 17th Century.-
In England, the system known in practice by the title of "The Law of Evidence", began to form about the middle of the seventeenth century. Noting this fact, Best1 comments-
"the characteristic feature which distinguishes it (the English system of Judicial evidence), both from our own ancient system and those of most other nations is, that its rules of evidence, both primary and secondary, are in general rules of law; which are not to be enforced or relaxed at the discretion of judges, but are as binding on the court, juries, litigants, and witnesses as the rest of the common and statute law of the land, and that it is only in the forensic procedure which regulates the manner and order of offering, accepting, and rejecting evidence, that a discretionary power, and even that a limited one, is vested in the bench.
A judge consequently has now no more right to receive prohibited evidence, because he thinks that by so doing justice will be advanced in the particular case, than he has to suspend the operation of the Statute of Mortmain, or to refuse to permit an heir-at-law to recover in ejectment, because it appears that he is amply provided for without the land in dispute. It must not, however, be supposed that this great principle became established all at once; and indeed the gradual development of our system of judicial evidence, from the above epoch to the present day, may be studied alike with advantage and pleasure."
1. Best Principles of Evidence, (1922), p. 100, para. 116.