Page:Harvard Law Review Volume 12.djvu/100

80 HARVARD LAW REVIEW. witnesses who only knew what some one else had said to them. Juries, indeed, could say what they " knew ; " but witnesses to juries could only say what they ha'd seen and heard. In the first half of the fourteenth century the judges laid this down as applicable to attesting witnesses. What it meant was that while juries could form opinions from anything they knew, the verdict being given at their peril, while they might act on what they had picked up in any way, and might form a judgment upon such foundations which would count as knowledge, — witnesses could not do this, or rather were not to state it if they did, were not to say what they " thought," or " believed," or had heard from others, or concluded from what we now call circumstantial evidence. This contrast between the function of the jury and that of witnesses, which made it necessary to discriminate and define these points five or six hun- dred years ago, as regards the preappointed witnesses who went out with the jury, — even before witnesses were ordinarily allowed to testify to juries, — has led to a steady and rigid adherence to the general doctrine of hearsay prohibition. But there came a large and miscellaneous number of so-called " exceptions." Some of these were really quite independent rules, whose operation was rather that of qualifications and abatements to the generality of this other doctrine, — rules which were coeval with the doctrine itself or much older. For example, it seems always to have been true, in cases of homicide, that the dying declarations of persons killed were reported and acted on in judicial proceedings. We find these used by a complaint witness as far back as 1202,^ and used in evidence to the jury in 172 1.^ Such declarations in early times, and even in late times, had a peculiar credit allowed them. So in tracing pedigree the family hearsay seems always to have been resorted to. This matter, before jury trial was developed, used to be tried by witnesses,^ who stated cir- cumstantially how they knew what they said ; and hearsay from the family, if confirmed by circumstances, was, probably, always a basis for their testimony. Family hearsay had the aspect of family rep- utation ; and reputation was often reckoned an adequate ground for judicial action. In the thirteenth century we find a witness, in proving another person's age, giving as the basis of his testimony 1 I Seld. Soc. 11; and see, what looks to be about a quarter of a century later, another case in PI. Ab. 104. 2 R. V. Trantor, i Strange, 499. 8 Thayer, Preliminary Treatise on Evidence, 19-21.