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Origin of the


Rule" — Was it the Jury


By Charles S. Lobingier JUDGE OF COURT OF FIRST INSTANCE, MANILA, P. I. THE late Professor Thayer was fond of saying that the rules of exclu sion arose out of the necessity of pre venting the jury from listening to im proper evidence and the implication, at least, that but for the jury system these rules would not now exist. The greatest and most remarkable offshoot of the jury, (he says)1 was that body of excluding rules which chiefly constitute the English Law of Evidence. If we imagine what would have happened if the petit jury had kept up the older methods of procedure, as the grand jury in criminal cases did, and does at the present day — if, instead of hearing witnesses publicly, under the eye of the judge, it had heard them privately and without any judicial supervision, it is easy to see that our law of evidence never would have taken shape; we should still be summing it all up, as Henry Finch did at the beginning of the seventeenth century, L'evidence al jurie est quecunque chose que serve le partie a prover Vissue pur luy. This it is — this judicial over sight and control of the process of introducing evidence to the jury, that gave our system birth; and he who would understand it must keep this fact constantly in mind. Some researches into the history of the Civil Law lead toward the conclu1 Thayer. Preliminary Treatise on Evidence. 180, 181. Cf. 534. "In Scotland, and most of the con tinental states, the judges determine upon the facts in dispute as well as upon the law; and they think there is no danger in listening to evidence of hear say, because when they come to consider of their judgment on the merits of the case, they can trust themselves entirely to disregard the hearsay evi dence, or to give it any little weight which it may seem to deserve. But in England, where the jury are the sole judges of the fact, hearsay evidence is properly excluded, because no man can tell what effect it might have upon their minds." Mans field, C. J., in Berkeley Peerage case. 4 Campb. 401, 416; Thayer's Cases on Evidence, 373, 375.

sion that, so far as the "hearsay rule" is concerned this claim will not altogether hold, but that said rule finds its origin independently of the jury system. Hearsay evidence was generally ex cluded even in the classical Roman Law.2 The rule was especially applicable to selfserving statements, though there were the same exceptions as in our modern English law concerning ancient facts s and dying declarations.4 Yet there was no jury in Rome. The ancient Visigothic compilation, variously known under the names of Forum Judicum or Fuero Juzgo, and published about the middle of the seventh century of our era, reveals no trace of anything approaching a jury system, but we find therein the hearsay rule explicitly announced as follows: — Witnesses shall not give testimony by letter, but present, in person, they shall be required to tell the truth, as far as lies in their knowledge. Nor shall they testify concerning foreign matters,

! Hunter, Roman Law (3d ed.) 1055.

  • ld.; Digest, Lib. XXII, Tit. III. 28.

4 Mascardus, De Probalionibus, Concl. 1080. Pro fessor Thayer recognizes the antiquity of this rule but not, apparently, its Roman origin. He says: — "The use of such declarations in cases of homicide is very ancient, long antedating our law of evi dence, and running back into the very beginnings of trial by jury in criminal cases. Probably it is even far older than that. In 1202, 1 Sel. PI. Cr. (Seld. Soc.) 11, 27, in an appeal of slaying, we read that "the king's serjeant and the two knights who made view of the wounded man (who lived four weeks and a half after the wounding) testify that Robert said that Godard and Humphrey thus wounded him, and that, should he get well, he would deraign this against them, and, should he not. then he wished that his death might be imputed to them."