Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/776

740 EVIDENCE 1. Sir J. Stephen states the general rule as follows : " Evidence may be given in any action of the existence or non-existence of any fact in issue, and of any fact relevant to any fact in issue, and of no others." Relevant facts here means simply facts (other than those in issue) which may be proved, and would include cases of relevancy strictly so-called, i.e., facts relevant in the sense that from their existence you may infer the existence of the facts in issue. There are minor classes of facts, not being facts in issue, and not being relevant facts in this sense, which neverthe less may be proved. For example, " facts which, though not in issue, are so connected with facts in issue as to form part of the same transaction," and "facts which are neces sary to be known to explain or introduce a fact in issue," may be proved ; but to say that they are relevant tends to obscure the theory of relevancy. 1 What facts, then, are to be regarded as relevant to facts in issue ] English law, as we have seen, makes no attempt to answer this question otherwise than by the enumeration of decided cases. The general definition of relevancy in Stephen s Digest is the following : Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably may have been the cause of the other, the effect of the other, an effect of the same cause, a cause of the same effect, or when the one shows that the other must or cannot have occurred, or probably does or did exist, or that any fact does or did exist or not, which iu the common course of events would either have caused or have been caused by the other. 2 There is little doubt that this is a correct statement of the general principle embodied in the decided cases of the law of England. Facts may be proved from which legiti mate inferences may be drawn as to the existence of the facts disputed at the trial, and this inference depends on the existence of a causal connexion between the two sets of facts. The theory of relevancy thus becomes, as Sir James Stephen (Indian Evidence Act) has pointed out, a particu lar case of the general theory of induction; and the ques tion whether facts are relevant to each other or not may become co-extensive with the entire field of human know ledge. Bentham has pointed out, in his chapter on " Real evidence, or evidence from things " (Rationale of Judicial Evidence, book v. c. 3), that "There is scarce an imaginable distinction or observation an indi cation of which could, with reference to the subject of the present work, be charged with being altogether irrelevant ; for in one way or other, and even in each instance in various wnys, there is not an imaginable fact the existence of which is not capable of being taken for the subject of inquiry in a court of judicature. If, therefore, the whole encyclopedia were to be crowded into the body of this work, and into this part of it in particular, there is not a page of it that would, strictly speaking, be irrelevant with regard to the subject of this work." It is perhaps hardly necessary to give instances in illus tration of the general definition of things relevant. The conduct of a person charged with an offence is one of the most common and the most obvious cases. Thus, "any fact which supplies a motive for such an act, or which con stitutes preparation for it, any subsequent conduct of such person which appears to have been influenced by any such act, and any act done in consequence of any such act by or by the authority of that person," may obviously lead to inferences as to the act itself. One of Sir James Stephen s illustrations may be cited : 1 T T? a .] at " edition of t1ie ni ff est > tlie Phrase "deemed to be relevant" is substituted for relevant." Jl ThiS d f nition is Borrowed from a pamphlet on the Theory of relevancy for purposes of judicial evidence, by Geor-e Clifford SeTtr- , 130 ^^ 1 , 875 - Mr Whitworth examines the case of ^v denl Tl ^/i 6 , I 1 Ball6y in 1864 and shows how ^e items of re ^ ne r ther of the atove hea ^ of " The question is whether A wrote an anonymous letter threaten ing B, and requiring B to 7neet the writer at a certain time and place to satisfy his demands. The fact that A met B at that time and place is relevant, as conduct subsequent to and affected by a fact in issue, (an effect of that cause). The fact that A had a reason unconnected with his letter is relevant as rebutting the inference suggested by his presence (the effect of another cause. )" The limit of relevancy is sometimes expressed by the saying that collateral facts are riot admissible in evidence unless pertinent to the issue, but, as usual, we are left to collect the meaning of collateral from the decided cases. The typical case is perhaps that of Holcombe v. Hewson (2 Campbell, 391), where, on a question whether the beer sup plied by plaintiff to defendant was good, the plaintiff was not allowed to prove that the beer he supplied to his other cus tomers was good. In Phillips On Evidence it is stated that an admission by a prisoner that he had committed a similar offence at another time ought not to be received in evi dence. To an enumeration of such cases Eoscoe (Evidence, at Nisi Priiis, p. 89) adds generally that all proof of facts which merely tends to create an unjust prejudice, or unduly to influence the jury, or occupy the time of the court in irrelevant inquiries, is inadmissible ; but if the proof be directly or indirectly pertinent to the issue, it will be admitted; which seems to come to this, that mere simi larity in circumstances or coincidence in time will not make one fact relevant to another unless some causal connexion between them is made apparent. Thus, in the beer case above mentioned, the evidence might have been made relevant by showing that the beer supplied to all the custo mers was the same. Sir James Stephen s Digest contains several headings of exceptions to the rule excluding colla teral evidence, but they will be found, we think, to be all cases of the general rule of relevancy Some bond of con nexion, as cause and effect, will be found to have been established between them. Thus, when the intention of an act is in question (as in the case of a man accused of setting fire to his house in order to get insurance money), other instances of similar acts (as that the prisoner had previously had two houses burnt, each being insured, and the insurance ha.ving been paid) may be adduced. But it must not be supposed that the law admits as evi dence all facts which are, in a strictly logical sense, relevant. The most considerable and important exception is that of hearsay evidence. In ordinary life we should regard a state ment made to us at second hand not only as relevant to the fact it asserts, but as sufficient and satisfactory proof, if both of our informants are persons of creditable character and intelligence. In point of fact, the immense bulk of our knowledge and belief on all sorts of subjects is founded on hearsay evidence, many times more remote than in the case we have supposed. The general rule of law excludes all such evidence. " The fact that a statement was made by a person not called as a witness is not regarded as relevant to the truth of the matter asserted thereby." The reason is sufficiently obvious. A deponent in court tells his story under securities for its truthfulness. He may be cross- examined. He may be punished for telling lies. But for these securities it would hardly be safe, considering the consequences attaching to every issue in a court of justice, to act upon any testimony whatever. These securities do not exist in the case of extra-judicial statements by persons not called before the court, and accordingly, as a general rule, no evidence can be offered regarding them. The ex tent, and perhaps the apparent severity of the rule, may be illustrated by the case in which it was held that, in a ques tion of the validity of a will, the declaration of one attesting witness, since deceased, that he forged it, cannot be offered in evidence. This rule, however, has its exceptions, w r hich are classified

in Stephen s Digest under the heads of " admissions or con-