Report No. 69
2.27. Documentary earlier than oral evidence.-
A few observations about witnesses may now be made. In this connection, it may be stated that documentary evidence came into existence earlier than witnesses in England.1 It has been said-2
"The record authenticated by the King's seal was conclusive This naturally led to the establishment of the doctrine of estopped by deed. Other matters stated under the seal, either of the King, or of private persons, were equally conclusive. In other words, both matters of record and documents under seal were proofs-proofs as conclusive as the older proofs by which in former days men were want to try the truth of their respective allegations.
It may thus be said that the efficacy of these kinds of estoppel was derived, partly from the new fashion of recording pleas and of authenticating the record by the King's seal, and partly from the application of this new idea to the old conception of a trial, it gradually came to be seen that these sealed documents might have another effect. The jury was a body of reasonable men, whose verdict could be guided by the evidence put before them.
And so the difference between the jury and these older modes of trial, which, as we have seen, had a decisive influence on the development of the common law system of pleading3, had an influence equally great on the law of evidence, for, it gradually gave rise to the idea that these sealed documents could be used, not only as providing an absolute proof by creating an estoppel, but also as evidence. Hence we get the growth of the idea that a deed can be used, not only to estop the party as against whom it is produced, but also to give the jury evidence as to the truth of the matters in issue. Gradually, this idea that a deed can be used as evidence, is applied to other writings, and so we get the modern conception of documentary evidence."
1. See also supra.
2. Holdsworth History of English Law, Vol. 9, para. 163.
3. Holdsworth History of English Law, Vol. 3, 613.
2.28. No witnesses.-
There was, thus, no place for the witness as known to us in the old system of procedure, according to which trials were conducted by means of fixed methods of proof. And this fact was emphasised by two connected principles which rendered the modern use of witnesses legally impossible. The first of these principles was that no one ought to be convicted of a capital crime by mere testimony.1The second was that a witness was neither competent nor compellable to testify to a fact, "unless when that fact happened, he was solemnly taken to witness."2 Both these principles profoundly influenced the development of the mediaeval common law on this topic.
1. "Nemo de capitalibus placitis testimonio convicatur", Leg. Henr. xxxi, 5.
2. P. and M. ii 599; Wigmore, iv, 2190.
2.29. Oral evidence later.-
Oral evidence was a later-corner. Maintenance and champerty were crying evils of the time1; and, by these practices, persons were able to use the law courts, instead of the arms of their retainers, to prosecute their feuds whenever they thought this course desirable.2 Nothing was easier than to get a partial jury; and, as the verdict of the jurors was given as the result of their own knowledge or inquiries, it was natural that they should get their instructions from the side whom they favoured.3
The remedy for this state of things, suggested in a Parliamentary petition of 1354, was that all the evidence should be openly produced at the bar, and that, after the jury had been charged and had departed from the bar, no person should be allowed to confer with them.4 But this remedy was plainly insufficient. In the first place, it did not prevent the jury from giving a verdict in accordance with its pre-conceived ideas. In the second place, it did not prevent persons, who were in a position to intimidate the jury, from coming forward and giving evidence at the bar in such a way as to make it quite plain to the jury what the consequences of a hostile verdict might be.
To meet this difficulty the courts so stretched the conception of maintenance, that a witness who, without having any interest or cause to meddle in the litigation, volunteered, his testimony, rendered himself liable to be proceeded against for this offence.5
1. Holdsworth History of English Law, Vol. 3, 394-407; Vol. 5, 201-203; Vol. 7, 524-525.
2. Holdsworth History of English Law, Vol. 2, p. 416.
3. R.P. ii 259 (27 Edn. III, No. 30).
4. Cited Thayer, Preliminary Treatise on Evidence, 124-125.
5. Holdsworth History of English Law, Vol. I, 335; Vol. III, 398; Thayer Preliminary Treatise on Evidence, 125-129.
2.30. How change effected.-
The method by which the Legislature effected this change, was suggested by the existing state of the law1 and as Wigmore has said2: "The lead as furnished by the existing qualification already noted that 'what a man does by compulsion of law cannot be called maintenance' Let an order of the judge commanding such a person's appearance be obtainable as of course before the trial, and the risk of a charge of maintenance would be removed, and no man need fear to come forward as a witness."3
1. Holdsworth History of English Law, Vol. 9, p. 185
2. Wigmore, Vol. 4, 2961, 2190.
3. Wigmore, Vol. 4, 2961, 2190
2.31. Statute of 1562-1563.-
This was the course adopted in England. The Act of 1562-15631, which created the statutory offence of perjury2, enacted that witnesses served with process to attend and testify should be liable to penalty if they did not appear3. And, though the common law courts had no compulsory process, the weapon of subpoena, which had been used by the Council and the Chancery for upwards of a century, was ready to hand, and was adopted by them.
1. 5 Elizbeth, C. 9 (1562).
2. Holdsworth History of English Law, Vol. 4, p. 518.
3. 5 Elizbeth, C. 9, section 12 (1562).