The Online Library of Liberty

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• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

40.

A GENERAL SURVEY OF THE HISTORY OF THE RULES OF EVIDENCE1

By John Henry Wigmore2

THE details of the history of the rules of evidence can best be examined while considering the particular rules each in its place. But it is worth while to notice here summarily the historical development of the general system in its main features, and the relative chronology of the different rules. Some notion can thus be obtained of the influence of certain external circumstances on the rules at large and of some of the individual principles upon the others.3

The marked divisions of chronology, for our law of evidence, may be said to be seven,—from primitive times to 1200 ad, thence to 1500, thence to 1700, to 1790, to 1830, to 1860, and to the present time:

(1) ad 700-1200. Up to the period of the 1200s, the history of the rules of evidence, in the modern sense, is like the chapter upon ophidians in Erin; for there were none. Under the primitive practices of trial by ordeal, by battle, and by compurgation, the proof is accomplished by a judicium Dei, and there is no room for our modern notion of persuasion of the tribunal by the credibility of the witnesses;1 for the tribunal merely verified the observance of the due formalities, and did not conceive of these as directly addressed to their own reasoning powers. Nevertheless, a few marks, indelibly made by these earlier usages, were left for a long time afterwards in our law. The summoning of attesting witnesses to prove a document, the quantitative effect of an oath, the conclusiveness of a seal in fixing the terms of a documentary transaction, the necessary production of the original of a document,—these rules all trace a continuous existence back to this earliest time, although they later took on different forms and survived for reasons not at all connected with their primitive theories.

(2) ad 1200-1500. With the full advent of the jury, in the 1200s, the general surroundings of the modern system are prepared; for now the tribunal is to determine out of its own conscious persuasion of the facts, and not merely by supervising external tests. The change is of course gradual; and trial by jury is as yet only one of several competing methods; but at least a system for the process of persuasion becomes possible. In this period, no new specific rules seem to have sprung up. The practice for attesting witnesses, oaths, and documentary originals is developed. The rule for the conclusiveness of a sealed writing is definitely established. But during these three centuries the general process of pleading and procedure is only gradually differentiated from that of proof,—chiefly because the jurors are as yet relied upon to furnish in themselves both knowledge and decision; for they are not commonly caused to be informed by witnesses, in the modern sense.

(3) ad 1500-1700. By the 1500s, the constant employment of witnesses, as the jury’s chief source of information, brings about a radical change. Here enter, very directly, the possibilities of our modern system. With all the emphasis gradually cast upon the witnesses, their words and their documents, the whole question of admissibility arises. One first great consequence is the struggle between the numerical or quantitative system, which characterized the canon law and still dominated all other methods of proof, and the unfettered systemless jury trial; and it was not for two centuries that the numerical system was finally repulsed. Another cardinal question now necessarily faced was that of the competency of witnesses; and by the end of the 1500s the foundations were laid for all the rules of disqualification which prevailed thenceforward for more than two centuries, and in part still remain. At the same time, and chiefly from a simple failure to differentiate, most of the rules of privilege and privileged communication were thereby brought into existence, at least in embryo. The rule for attorneys, which alone stood upon its own ground, also belongs here, though its reasons were newly conceived after the lapse of a century. A third great principle, the right to have compulsory attendance of witnesses, marks the very beginning of this period. Under the primitive notions, this all rested upon the voluntary action of one’s partisans; the calling of compurgators and documentary attestors, under the older methods of trial, was in effect a matter of contract. But as soon as the chief reliance came to be the witnesses to the jurors, and the latter ceased to act on their own knowledge, the necessity for the provision of such information, compulsorily if not otherwise, became immediately obvious. The idea progressed slowly; it was enforced first for the Crown, next for civil parties; and not until the next period was it conceded to accused persons. Thus was laid down indirectly the general principle that there is no privilege to refuse to be a witness; to which the other rules, above mentioned, subsequently became contrasted as exceptions. A fourth important principle, wholly independent in origin, here also arose and became fixed by the end of this period,—the privilege against self-crimination. The creature, under another form, of the canon law, in which it had a long history of its own, it was transferred, under stress of political turmoil, into the common law, and thus, by a singular contrast, came to be a most distinctive feature of our trial system. About the same period—the end of the 1600s—an equally distinctive feature, the rule against using an accused’s character, became settled. Finally, the “parol evidence” rule enlarged its scope, and came to include all writings and not merely sealed documents; this development, and the enactment of the statute of frauds and perjuries, represent a special phase of thought in the end of this period. It ends, however, rather with the Restoration of 1660 than with the Revolution of 1688, or the last years of the century; for the notable feature of it is that the regenerating results of the struggle against the arbitrary methods of James I and Charles I began to be felt as early as the return of Charles II. The mark of the new period is seen at the Restoration. Justice, on all hands, then begins to mend. Crudities which Matthew Hale permitted, under the Commonwealth, Scroggs refused, under James II. The privilege against self-crimination, the rule for two witnesses in treason, and the character rule—three landmarks of our law of evidence—find their first full recognition in the last days of the Stuarts.

(4) ad 1700-1790. Two circumstances now contributed independently to a further development of the law on two opposite sides, its philosophy and its practical efficiency. On the one hand, the final establishment of the right of cross-examination by counsel, at the beginning of the 1700s, gave to our law of evidence the distinction of possessing the most efficacious expedient ever invented for the extraction of truth (although, to be sure, like torture,—that great instrument of the continental system,—it is almost equally powerful for the creation of false impressions). A notable consequence was that by the multiplication of oral interrogation at trials the rules of evidence were now developed in detail upon such topics as naturally came into new prominence. All through the 1700s this expansion proceeded, though slowly. On the other hand, the already existing material began now to be treated in doctrinal form. The first treatise on the law of evidence was that of Chief Baron Gilbert, not published till after his death in 1726. About the same time the abridgments of Bacon and of Comyns gave many pages to the title of Evidence;1 but no other treatise appeared for a quarter of a century, when the notes of Mr. J. Bathurst (later Lord Chancellor) were printed, under the significant title of the “Theory of Evidence.” But this propounding of a system was as yet chiefly the natural culmination of the prior century’s work, and was independent of the expansion of practice now going on. In Gilbert’s book, for example, even in the fifth edition of 1788, there are in all, out of the three hundred pages, less than five concerned with the new topics brought up by the practice of cross-examination; in Bathurst’s treatise (by this time embodied in his nephew Buller’s “Trials at Nisi Prius”) the number is hardly more; Blackstone’s Commentaries, in 1768, otherwise so full, are here equally barren. The most notable result of these disquisitions, on the theoretical side, was the establishment of the “best evidence” doctrine, which dominated the law for nearly a century later. But this very doctrine tended to preserve a general consciousness of the supposed simplicity and narrowness of compass of the law of evidence. As late as the very end of the century Mr. Burke could argue down the rules of evidence, when attempted to be enforced upon the House of Lords at Warren Hastings’ trial, and ridicule them as petty and inconsiderable.1 But, none the less, the practice had materially expanded during his lifetime. In this period, besides the rules for impeachment and corroboration of witnesses (which were due chiefly to the development of cross-examination), are to be reckoned also the origins of the rules for confessions, for leading questions, and for the order of testimony. The various principles affecting documents—such as the authorization of certified (or office) copies and the conditions dispensing from the production of originals—now also received their general and final shape.

(5) ad 1790-1830. The full spring-tide of the system had now arrived. In the ensuing generation the established principles began to be developed into rules and precedents of minutiæ relatively innumerable to what had gone before. In the Nisi Prius reports of Peake, Espinasse, and Campbell, centring around the quarter-century from 1790 to 1815, there are probably more rulings upon evidence than in all the prior reports of two centuries. In this development the dominant influence is plain; it was the increase of printed reports of Nisi Prius rulings.1 This was at first the cause, and afterwards the self-multiplying effect, of the detailed development of the rules. Hitherto, upon countless details, the practice had varied greatly on the different circuits; moreover, it had rested largely in the memory of the experienced leaders of the trial bar and in the momentary discretion of the judges. In both respects it therefore lacked fixity, and was not amenable to tangible authority. These qualities it now rapidly gained. As soon as Nisi Prius reports multiplied and became available to all, the circuits must be reconciled, the rulings once made and recorded must be followed, and these precedents must be open to the entire profession to be invoked. There was, so to speak, a sudden precipitation of all that had hitherto been suspended in solution. This effect began immediately to be assisted and emphasized by the appearance of new treatises, summing up the recent acquisitions of precedent and practice. In nearly the same year, Peake, for England (1801), and MacNally, for Ireland (1802), printed small volumes whose contents, as compared with those of Gilbert and Buller, seem to represent almost a different system, so novel were their topics. In 1806 Evans’ Notes to Pothier on Obligations was made the vehicle of the first reasoned analysis of the rules. In this respect it was epoch-making; and its author in a later time once quietly complained that its pages were “more often quoted than acknowledged.” The room for new treatises was rapidly enlarging. Peake and MacNally, as handbooks of practice, were out of date within a few years, and no new editions could cure them. In 1814, and then in 1824, came Phillipps and Starkie,—in method combining Evans’ philosophy with Peake’s strict reflection of the details of practice. There was now indeed a system of evidence, consciously and fully realized. Across the water a similar stage had been reached. By a natural interval Peake’s treatise was balanced, in 1810, by Swift’s Connecticut book, while Phillipps and Starkie (after a period of sufficiency under American annotations) were replaced by Greenleaf’s treatise of 1842.

(6) ad 1830-1860. Meantime, the advance of consequences was proceeding, by action and reaction. The treatises of Peake and Phillipps, by embodying in print the system as it existed, at the same time exposed it to the light of criticism. It contained, naturally enough, much that was merely inherited and traditional, much that was outgrown and outworn. The very efforts to supply explicit reasons for all this made it the easier to puncture the insufficient reasons and to impale the inconsistent ones. This became the office of Bentham. Beginning with the first publication, in French, of his Theory of Judicial Evidence, in 1818, the influence of his thought upon the law of evidence gradually became supreme. While time has only ultimately vindicated and accepted most of his ideas (then but chimeras) for other practical reforms, and though some still remain untried, the results of his proposals in this department began almost immediately to be achieved. Mature experience constantly inclines us to believe that the best results on human action are seldom accomplished by sarcasm and invective; for the old fable of the genial sun and the raging wind repeats itself. But Bentham’s case must always stand out as a proof that sometimes the contrary is true,—if conditions are meet. No one can say how long our law might have waited for regeneration, if Bentham’s diatribes had not lashed the community into a sense of its shortcomings. It is true that he was particularly favored by circumstances in two material respects,—the one personal, the other broadly social. He gained, among others, two incomparable disciples, who served as a fulcrum from which his lever could operate directly upon legislation. Henry Brougham and Thomas Denman combined with singular felicity the qualities of leadership in the technical arts of their profession and of energy for the abstract principles of progress. Holding the highest offices of justice, and working through a succession of decades, they were enabled, within a generation, to bring Bentham’s ideas directly into influence upon the law. One who reads the great speech of Brougham, on February 7, 1828, on the state of the common law courts, and the reports of Denman and his colleagues, in 1852 and 1853, on the common law procedure, is perusing epoch-making deliverances of the century.1 The other circumstance that favored Bentham’s causes was the radical readiness of the times. The French Revolution had acted in England; and as soon as the Napoleonic wars were over, the influence began to be felt. One part of public opinion was convinced that there must be a radical change; the other and dominant part felt assured that if the change did not come as reform, it would come as revolution; and so the reform was given, to prevent the revolution. In a sense, it did not much matter to them where the reform came about,—in the economic, or the political, or the juridical field,—if only there was reform. At this stage, Bentham’s denouncing voice concentrated attention on the subject of public justice,—criminal law and civil procedure; and so it was here that the movement was felt among the first. As a matter of chronological order, the first considerable achievements were in the field of criminal law, beginning in 1820, under Romilly and Mackintosh; then came the political upheaval of the Reform Bill, in 1832, under Russell and Grey; next the economic regeneration, beginning with Huskisson and culminating with Peel in the Corn Law Repeal of 1846. Not until the Common Law Procedure Acts of 1852 and 1854 were large and final results achieved for the Benthamic ideas in procedure and evidence. But over the whole preceding twenty years had been spread initial and instructive reforms. Brougham’s speech of February 7, 1828, was the real signal for the beginning of this epoch,—a beginning which would doubtless have culminated more rapidly if urgent economic and political crises had not intervened to absorb the legislative energy.

In the United States, the counterpart of this period came only a little later. It seems to have begun all along the line, and was doubtless inspired by the accounts of progress made and making in England, as well as by the writings of Edward Livingston, the American Bentham, and by the legislative efforts of David Dudley Field, in the realm of civil procedure. The period from 1840 to 1870 saw the enactment, in the various jurisdictions in this country, of most of the reformatory legislation which had been carried or proposed in England.

(7) ad 1860. After the Judicature Act of 1875, and the Rules of Court (of 1883) which under its authority were formulated, the law of evidence in England attained rest. It is still overpatched and disfigured with multiplicitous fragmentary statutes, especially for documentary evidence. But it seems to be harmonious with the present demands of justice, and above all to be so certain and settled in its acceptance that no further detailed development is called for. It is a substratum of the law which comes to light only rarely in the judicial rulings upon practice.

Far otherwise in this country. The latest period in the development of the law of evidence is marked by a temporary degeneracy. Down to about 1870, the established principles, both of common law rules and of statutory reforms, were restated by our judiciary in a long series of opinions which, for careful and copious reasoning, and for the common sense of experience, were superior (on the whole) to the judgments uttered in the native home of our law. Partly because of the lack of treatises and even of reports,—partly because of the tendency to question imported rules and therefore to defend on grounds of principle and policy whatever could be defended,—partly because of the moral obligation of the judiciary, in new communities, to vindicate by intellectual effort its right to supremacy over the bar,—and partly also because of the advent, coincidently, of the same rationalizing spirit which led to the reformatory legislation,—this very necessity of re-statement led to the elaboration of a finely reasoned system. The “mint, anise, and cummin” of mere precedent1 were not unduly revered. There was always a reason given,—even though it might not always be a worthy reason. The pronouncement of Bentham came near to be exemplified, that “so far as evidence is concerned, the English practice needs no improvement but from its own stores. Consistency, consistency, is the one thing needful. Preserve consistency, and perfection is accomplished.”2

But the newest States in time came to be added. New reports spawned a multifarious mass of new rulings in fifty jurisdictions,—each having theoretically an equal claim to consideration. The liberal spirit of choosing and testing the better rule degenerated into a spirit of empiric eclecticism in which all things could be questioned and re-questioned ad infinitum. The partisan spirit of the bar, contesting desperately on each trifle, and the unjust doctrine of new trials, tempting counsel to push up to the appellate courts upon every ruling of evidence, increased this tendency. Added to this was the supposed necessity in the newer jurisdictions of deciding over again all the details that had been long settled in the older ones. Here the lack of local traditions at the bar and of self-confidence on the bench led to the tedious re-exposition of countless elementary rules. This lack of peremptoriness on the supreme bench, and (no less important) the marked separation of personality between courts of trial and courts of final decision, led also to the multifarious heaping up, within each jurisdiction, of rulings upon rulings involving identical points of decision. This last phenomenon may be due to many subtly conspiring causes. But at any rate the fact is that in numerous instances, and in almost every jurisdiction, recorded decisions of Supreme Courts upon precisely the same rule and the same application of it can be reckoned by the dozens and scores. This wholly abnormal state of things—in clear contrast to that of the modern English epoch—is the marked feature of the present period of development in our own country.

Of the change that is next to come, and of the period of its arrival, there seem as yet to be no certain signs. Probably it will come either in the direction of the present English practice—by slow formation of professional habits—or in the direction of attempted legislative relief from the mass of bewildering judicial rulings—by a concise code. The former alone might suffice. But the latter will be a false and futile step, unless it is founded upon the former; and in any event the danger is that it will be premature. A code fixes error as well as truth. No code can be worth casting, until there has been more explicit discussion of the reasons for the rules and more study of them from the point of view of synthesis and classification. The time must first come when, in the common understanding and acceptance of the profession, “every rule is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.”1

PART IV.

EQUITY

• 41. Early English Equity.Oliver Wendell Holmes, Jr.
• 42. Common Law and Conscience in the Ancient Court of Chancery.Luke Owen Pike.
• 43. The Origin of Uses and Trusts.James Barr Ames.
• 44. The Development of Equity Pleading from Canon Law Procedure.Christopher Columbus Landgell.
• 45. Courts of Chancery in American Colonies.Solon Dyke Wilson.
• 46. The Administration of Equity through Common Law Forms in Pennsylvania.Sidney George Fisher.

[Other References on the subjects of this Part are as follows:

In Select Essays:

Roman Law Influence in Chancery, by T. E. Scrutton (No. 7, Vol. I).

A Century of English Judicature, by V. V. Veeder (No. 20, Vol. 1).

In Other Series and Journals:

Introduction to Select Cases in Chancery, by W. P. Baildon (Vol. X, Selden Society, 1896).

Introduction to Select Cases in the Court of Requests, by I. S. Leadam (vol. XII, Selden Society, 1898).

The Revival of Criminal Equity, by E. S. Mack (Harvard Law Review, XVI, 389; 1902).

Trust and Corporation, by F. W. Maitland; Grünhut’s Zeitschrift fur das Privat- und Oeffentliches Recht der Gegenwart, XXIII. 1 (Vienna, 1904; also privately printed from the English original).

Equity Defences and Specialty Contracts, by J. B. Ames (Harvard Law Review, IX, 49; 1895).

History of Equity in the American Colonies and States, by E. B. Gager; Two Centuries’ Growth of American Law, c. VI (1901; Yale University Studies).

Historical Sketch of the Equitable Jurisdiction of the Court of Chancery, by D. M. Kerby (1890; Yorke Prize Essays).

The History of Chancery in Massachusetts, by E. H. Woodruff (Law Quarterly Review, V, 370; 1889).

Changes in Equity Procedure and Principles, by A. Birrell; A Century of Law Reform, c. III (1901).

Notes on the Introduction of Equity Jurisdiction in Maryland, 1634-1720, by David M. Newbold (Balto. 1906).]

[1 ]This passage forms § 8 of chapter I in “A Treatise on the System of Evidence in Trials at Common Law,” 1904-5 (Boston: Little, Brown & Co.)

[2 ]Professor of law in Northwestern University since 1893, and dean of the faculty of law in the same, since 1901. Harvard University, A. B. 1883, A. M., LL. B., 1887; admitted to the Boston Bar, 1887; professor of law in Keiogijuku University, Tokyo, 1889-1892.

Other Publications: Digest of the Decisions of the Massachusetts Railroad Commission, 1888; The Australian Ballot System, 1889; Notes on Land Tenure and Local Institutions in Old Japan, 1890; Materials for the Study of Private Law in Old Japan, 1892; sixteenth edition of Greenleaf on Evidence, vol. I, 1899; and articles in legal periodicals.

[3 ]The authorities for the ensuing statements will be found cited in detail in the historical sections under the various Chapters.

[1 ]This is indeed elaborately denied by Declareuil, in Nouvelle revue hist. du droit fr. et etr. 1898, XXII, 220 ff.; but all prior students have assumed the contrary. It is no doubt difficult to replace ourselves in the primitive mental attitude.

[1 ]Hawkins, in 1716, and Hale, in 1680, in their treatises on the criminal law, had had short chapters on evidence at these earlier dates.

[1 ]“As to rules of law and evidence, he did not know what they meant; . . . it was true, something had been written on the law of Evidence, but very general, very abstract, and comprised in so small a compass that a parrot he had known might get them by rote in one half-hour and repeat them in five minutes” (1794, Hastings’ Trial, Lords’ Journal, Feb. 25).

[1 ]Compare Campbell’s account of the conditions when he began to report in 1807 (Life, I, 214).

[1 ]“The great controversy now [1851] is upon the Evidence Bill, allowing the parties to be examined against and for themselves. . . . If it passes, it will create a new era in the administration of justice in this country” (Campbell’s Life, II, 292). “Our new procedure (which is in truth a juridical revolution) is now [1854] established, and people submit to it quietly” (Ib., II, 328).

[1 ]Lumpkin, J., in 33 Ga. 306.

[2 ]Rationale of Judicial Evidence, b. X, conclusion. Bentham never failed to preach the impropriety of not furnishing reasons. “ ‘I think, therefore I exist,’ was the argument of Descartes; ‘I exist, therefore I have no need to think or be thought about,’ is the argument of jurisprudence” (b. II, c. X, § 12; so also in b. III, c. IV, note).

[1 ]Mr. Justice Holmes, quoted in the motto prefixed to the preface of Wigmore on Evidence, vol. I.