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 On the practicability of codifying Engli 
 
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 ON THE PRACTICABILITY OF CODIFYING ENGLISH LAW; 
 
 WITH 
 
 A SPECIMEN CODE OF THE LAW OF EVIDENCE. 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018742456 
 
ON THE PEACTICABILITY OF 
 
 CODIFYma ENGLISH LAW; 
 
 WITH 
 
 A SPECIMEN CODE 
 
 OF 
 
 THE LAW OF EYIDENCE. 
 311 l^aper 
 
 READ BEFORE THE STATISTICAL AND SOCIAL INQUIRY SOCIETY OP 
 IRELAND, 161H JANUARY, 1872. 
 
 JAMES A.^AWSON, LL.D. 
 
 0»B OP HEE IUJXSIT'3 JDSTICES OP THE COCni OS COMMOlf PLEIS IK IBELAITS ; 
 
 ^usibjnf of t^t Sottclg. 
 
 DUBLIN : 
 EDWARD PONSONBY, 116, GRAFTON STREET. 
 
 187 2 
 

 FOUNDED 1847. 
 
 Presilreiit. 
 
 THE RIGHT HON. MK. JUSTICE LAWSON, P.C, &c. 
 
 ?Ei=1|re6tIients. 
 
 THE RIGHT HON. MOUNTIFORT LONGFIELD, LL.D., P.C. 
 THE RIGHT HON. LORD O'HAGAN, LORD CHANCELLOR. 
 
 RIGHT HON. WM. MONSELL, M.P., P.C. 
 MAJOR-GENERAL RT. HON. SIR THOMAS 
 
 LARCOM, BART., K.C.B., P.C. 
 SIR ROBERT KANE, F.R.S. 
 PROP. INGRASr, LL.D., F.T.C.D. 
 JONATHAN PIM, ESQ., M.P. 
 
 EDWARD BAERINGTON, ESQ., J.P. 
 
 JAMES HAUGHTON, ESQ., J.P. 
 
 J. W. MURLAND, ESQ. 
 
 JOHN LENTAIGNE, ESQ., D.L. 
 
 D. CADLFEILD HERON, ESQ., Q.C., M.P. 
 
 ALEXANDER THOM, ESQ., J.P. 
 
 iKlemliere of fflouittil. 
 
 DAVID ROSS, ESQ., LL.B. 
 HENRY DIX HUTTON, ESQ., LL.B. 
 E. D. MAPOTHER, ESQ., M.D. 
 
 ROBERT McDonnell, esq., m.d., f.r.s. 
 
 PROF. O'SHAUGHNESSY, (QC.C), 
 M.R.LA., F.R.S.L. 
 
 PROF. SLATTERY, (T.C.D.) 
 
 WILLIAM HAUGHTON, ESQ. 
 F. J. POWER, ESQ. 
 ALDERMAN CAMPBELL, J.P. 
 WILLIAM JOHN HANCOCK, ESQ , F.I.A. 
 JOHN RIBTON GARSTIN, ESQ., F.S. A. 
 JAMES MCDONNELL, ESQ. 
 
 Crcafiurer. 
 
 WILLIAM F. LITTLEDALE, ESQ., 9, UPPER ORMOND QUAY. 
 
 senetarits. 
 
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 CONSTANTINE MOLLOY, ESQ., 50, Lower Gardiner-street, 
 JOSEPH T. PIM, ESQ., S2, WUliam- street. 
 
 ISarriitffton Hectuwrs on Social Scicnte. 
 
 ROBERT DONNELL, ESQ., A.M., Barrister-at-Law. 
 WILLIAM MULHOLLAND, ESQ, A.B., Barrister-at- Law. 
 
 asBtstant Secrctars anir Collector. 
 
 MR. H. B. MAGAHAN, 11, Lower Mountpleiisant Avenue, Rathmines. 
 
 The Society was founded for the promotion of .the Study of Statistics, 
 Jurisprudence, and Social and Economic Science. 
 
ON 
 
 THE PRACTICABILITY OF 
 
 CODIFYING ENGLISH LAW; 
 
 WITH A 
 
 SPECIMEN CODE 
 
 OF 
 
 THE LAW OF EVIDENCE 
 
 There is a very natural desire on the part of the public to have our 
 laws simplified and condensed. 
 
 It is a legal maxim that everyone is supposed to know the law, 
 and every person is visited with the consequences of his ignorance, 
 and yet those who have spent their lives in the study of it are often 
 ohHged to confess their ignorance ; and if anyone desires to know 
 what is the law applicable to a particular state of circumstances, he 
 is generally obliged to search through many volumes, and read and 
 consider many decided cases. The written law is to be found at 
 large in the volumes of the statutes, and the unwritten law is not 
 collected in any authoritative form, but is to be looked for amongst 
 the numerous volumes of reports of cases commencing from the very 
 earliest times, and coming down to the present day, and which at 
 present increase at the rate of six or eight volumes yearly. Now 
 the public rebel in feeling against this state of things, and ask 
 why the law cannot be contained in a short code, so that everyone 
 by referring to it could leam what the law is. They entertain an 
 idea that this vast complexity is created by members of the legal 
 profession for their own interest, and that they purposely veil in mys- 
 tery what might be plain and simple; but lawyers are really helpless 
 and passive in this matter, every year a new volume of statutes is 
 added to the existing body of the statute law, and almost every one 
 of these affords the material for litigation, and gives rise to new cases 
 in our reports — thus adding to the body of unwritten or judge-made 
 law. 
 
 Pressed by public opinion, which is making itself felt upon tliis 
 subject, our legislators have been struggling to find a remedy. 
 
 First, with respect to our statute law, it is proposed to digest it 
 
and collect it into a convenient form, omitting such statutes as are 
 useless, obsolete, and repealed. This is a very useful work, and is 
 now in progress, and in the end it will considerahly reduce the num- 
 ber of volumes to which we shall have to refer, in order to find out 
 what the statute law is. It is also a work requiring great care and 
 labour, and questions of great nicety arise as to the partial or total 
 repeal of statutes. One of such questions gave rise to a discussion iu 
 the House of Commons last session between two distinguished legal 
 Members of the House. 
 
 Into this part of the subject I do not propose to enter. I desire 
 to consider what may be done to simplify and condense our unwrit- 
 ten law. 
 
 On the 32nd November, 1866, a Eoyal Commission was issued, 
 directed to some of the most eminent judicial persons — and other 
 men of distinguished ability — to enquire into the "expediency of a 
 digest of law, and the best means of accomplishing that object, and 
 of otherwise exhibiting in a compendious and accessible form the 
 law as embodied in Judicial Decisions." 
 
 This Commission made its First Eeport on the 13th May, 1867. 
 It presents a very clear picture of the work to be done with res- 
 pect to the unwritten law. It says : — "The judicial decisions and 
 dicta are dispersed through upwards of 1,300 volumes, comprising, 
 as we estimate, nearly 100,000 cases, exclusive of about ijo volumes 
 of Irish reports, which deal to a great extent with law common to 
 England and Ireland. A large proportion of these cases are of no 
 real value as sources or expositions of law at the present day. Many 
 of them are obsolete, many have been made useless by subsequent 
 statutes, by amendment of the law, repeal of the statutes on which 
 the cases were decided, or otherwise ; some have been reversed on 
 appeal or over-ruled in principle; some are inconsistent with or con- 
 tradictory to others ; many are' limited to particular facts or special 
 states of circumstances furnishing no general rule." It then recom- 
 mends a digest, correctly framed, and revised from time to time, as 
 going far to remedy the evils pointed out. It thus defines a digest : — 
 "A condensed summary of the law as it exists, arranged in syste- 
 matic order under appropriate titles and subdivisions, and divided 
 into distinct articles or propositions, which would be supported by 
 references to the sources of law whence they were severally derived, 
 and might be illustrated by citations of the principal instances in 
 which the rules stated had been discussed or applied." 
 
 It then approves of the digest, and recommends that a portion of 
 it, sufficient in extent to be a fair specimen of the whole, should be 
 in the first instance prepared. 
 
 The Commissioners made their Second Eeport on the nth May, 
 1 870, in which they state what had been done in the interval. They 
 employed three gentlemen of the bar to frame a digest of the law upon 
 each of the following subjects : Mortgages, Easements, and Bills of 
 Exchange. This report admits in substance that the experiment has 
 failed. It states that the gentlemen whose assistance they have had 
 have laid before them materials of considerable value, and have 
 enabled, them to form conclusions as to the conduct of the entire work. 
 
"But we think it uiiadvisable to continue any further this mode of 
 proceeding. _ We have found that the examination and revision of 
 these materials, with that rigorous care and accuracy which would 
 be requisite, would involve considerable further delay and expense ; 
 while on the other hand we have satisfied ourselves that these speci- 
 mens would have again to be revised, and perhaps recast, when the 
 time arrived for inserting them as portion of a complete and syste- 
 matic work." 
 
 Still they recommend the appointment of a commission of three 
 persons to execute a digest as a whole. Mr. Justice WiUes dissents 
 from that report, and pronounces against the further prosecution of 
 the digest, giving reasons in which I entirely concur. The last I 
 have heard about the Commission is that they have been engaged in 
 a litigation with one of the gentlemen employed to prepare the digest 
 as to the amount of his remuneration. Nothing has been done to 
 carry out the suggestions of appointing a paid commission to produce 
 a digest, and I suppose the great probability is that this scheme wiU 
 not be further proceeded with. 
 
 The only result of the process would be the slow and costly pre- 
 paration of a number of text-books, which would in aU probability 
 not be better than those already published, and whose only utility 
 would be that they might serve as materials for a code. The First 
 Eeport states : — "The persons charged with the framing of the digest 
 might be also entrusted with the duty of pointing out, from time to 
 time, the conflicts, anomalies, and doubts, which in the course of 
 their labours would appear. Thus the process of constructing the 
 digest would be conducive to valuable amendments in the law. 
 These amendments would be embodied in the digest in their piroper 
 places. Moreover, such a digest would be the best preparation for 
 a code, if at any future time codification of the law be resolved on." 
 I would venture to say, in answer to this, that it is incurring a 
 great and costly labour for no result. We have already admirable 
 treatises and digests of the law, and every intelligent text-writer does 
 exactly what the commissioners suggest should be done by the framers 
 of the digest — they point out anomalies, regret that some rules were 
 ever laid down which are now established by decided cases, and 
 only to be overthrown by the House of Lords when the point arises. 
 Judges have, in like manner, lamented the existence of certain doc- 
 trines, so firmly established that they are not at liberty to over- rule 
 them. 
 
 The essential difierence between a Digest and a Code is, that the 
 digest collates all the law as it is, good and bad, while the code de- 
 clares prospectively what the law is to be. A code should embody 
 the leading principles established by decisions which practice and 
 experience have shown to be sound and wise — rejecting wholly those 
 which are bad, and which reason and experience condemn, and in- 
 troducing such improvements and amendments of the existing law 
 as are required. 
 
 Mr. Justice Willes, in expressing his dissent from the Second 
 Eeport, puts the matter in a very clear point of view. "A code is 
 preferable to a digest in many points of view. A digest gathers 
 
and compiles what lias been, decided or deemed, and amongst other 
 relics it will preserve the conflict of Common Law and Chancery, 
 and the rest ; whereas a code must once and for all lay down uni- 
 form rules of justice to govern every court. Thus, a code will swal- 
 low up at once mischiefs of detail, the instances of which would 
 choke a digest. A really well-considered code, not restricted to a 
 digest of our own jurisprudence, but embodying improvements sug- 
 gested by a comparison of our own laws with those of other coun- 
 tries, might contribute to the gradual formation of international, 
 mercantile, and maritime law." This suggestion, of not only reject- 
 ing in a code such parts of our own law as are unsound, or not 
 adapted to the present state of society, hut of introducing such parts 
 of the laws of other countries as are deserving of adoption, is one that 
 should never be lost sight of by the framers of a code. Thus a code, 
 if properly carried out, and stamped with legislative sanction, would 
 reduce the mass of unwritten law to some simple formulse, would 
 by positive rules get rid of useless and injurious matter which now 
 deforms our law, and would borrow rules from other systems of 
 jurisprudence and engraft them upon our own. 
 
 The very mode in which our system of law has grown into its 
 present shape, demonstrates the utility and necessity of such a pro- 
 cess of purgation, as distinguished from one of mere collation. It 
 has grown slowly, adapting itself, as well as it could, to the growth 
 of society and advance of civilization; but still necessarily retain- 
 ing much both of the form and substance of the early period of its 
 existence — based to a great extent upon principles and maxims 
 which were good in their day, but which are not apphcable to the 
 circumstances of modern society. Take an illustration of this from 
 the law of contracts. The two classes of contracts, according to our 
 law, are contracts under seal, and simple contracts ; a written agree- 
 ment is a parol contract because it is not sealed. Our ancestors could 
 not write, but could use a seal, which was essential to the validity of 
 a deed or other solemn instrument ; and a contract not under seal 
 was considered the same as a mere verbal contract, though it was 
 reduced to writing and signed; hence have arisen chapters of law as 
 to recitals and estoppels, and as to the mode of varying instruments 
 under seal. Thus, if there be a receipt for money in the body of a 
 deed, you are not allowed in a Court of law to show it was not 
 paid ; and if there be a written agreement varying or discharging a 
 contract under seal, you cannot rely on this in a Court of law, but 
 must seek relief in Equity, because there is a legal maxim — Nihil 
 tarn conveniens est naturali cequitati unwmquodqm dissolvi codem 
 ligamine quo ligatum est. 
 
 If we were now codifying the law of contracts, the division would 
 be into written and verbal contracts, and written ones would be di- 
 vided into those which required to be executed in presence of wit-" 
 nesses, and those which do not require any attestation ; and we should 
 thus get rid of all these absurd distinctions. 
 
 Is it then possible to have this work done? Does the complex 
 chararcter of our mixed law, and the multiplicity of decisions and 
 dicta impose an insuperable obstacle in the way of evolving order 
 
from this chaos. I think not. Let us not attempt the impossible 
 A*^ A "^^^^^^^S ^y a code in terms for every case that may arise. 
 A code can only lay down general iDrinciples, leaving to the judges to 
 decide upon their application to the facts of particular cases as they 
 arise ; accordingly, the existence of a code does not prevent the 
 future accumulation of cases, readings, and commentaries. In all 
 cases where a code has been adopted this has been so— in the Eoman 
 Law, in the Code JSTapoleon, and many others. But it strikes me 
 that we have greater facility for codifying than if we had no system 
 of law existing, and were framing a new code of laws for a new 
 country. We have the decisions and dicta of wise and learned men, 
 the masters of our law, laying down the true principles of the law. 
 These principles we may express in the code in language which 
 has already received a judicial interpretation ; and thus, so far from 
 flinging aside, we can utilize the wisdom of our ancestors, and elicit 
 from the decisions the true rules which are thus converted from un- 
 written into written law. 
 
 One great excuse for not doing anything is, that it is part of a large 
 scheme, and that you cannot do any part unless you are prepared to 
 do all. For instance, what was proposed by the Digest Commission 
 was a complete and systematic work. We might none of us live to 
 see this magnum opus completed, and when completed, it would not 
 be what we wanted. The advantage of codification is that we may 
 proceed by steps, we can codify one branch of the law, and then 
 another, and another ;'and try how the experiment succeeds. 
 
 It seems but reasonable, when a person asserts that such a work is 
 practicable, to put him to the test, and ask him to furnish, in writing, 
 an illustration of the mode in which the work may be carried out. 
 
 Accepting this test, I have prepared a Code of the Law of Evi- 
 dence, which I venture to submit as a specimen. It will be printed at 
 the end of this paper ; and I invite the fullest criticism upon it. I 
 am conscious that it will be found to have faults and imperfections, 
 and I claim no merit for it save as it is an attempt to show that a 
 difficult problem is capable of solution. 
 
 Of course I shall not now enter into the details of it ; they can be 
 studied and canvassed by those who understand the subject ; but it is 
 quite necessary to preface it with some explanatory observations, and 
 to justify and vindicate some of the proposals which I have made. 
 
 Our law adopted the maxim that " no one ought to be a witness in 
 his own cause; " and it was the law down to the year 1851, that no 
 plaintiEf or defendant could be examined as a witness. Our ancestors 
 thought it more important that men should not be placed in a posi- 
 tion which would make them subject to a strong temptation to 
 commit perjury, than that the truth should be discovered. We are 
 indebted to the same principle for the Statute of Frauds and Perjuries, 
 under which certain agreements cannot be enforced unless all the 
 terms of them are in writing. It is said that it cost a subsidy to 
 settle its meaning, and the decisions upon it would fill many 
 volumes, and yet it is very questionable whether it has not been 
 more successful in preventing the doing of justice than the com- 
 mitting of fraud. The principle of excluding evidence pervaded 
 
10 
 
 our law. I recollect with what horror most lawyers regarded the 
 innovation of allowing plaintiffs to be called as witnesses, and how 
 they struggled against it in every way. Now we can hardly realize 
 to ourselves how for centuries a law was tolerated, the result of 
 which was that a plaintiff could not recover a demand unless he 
 could afford to keep a clerk or shopman as a witness, and that when 
 a fraudulent claim was made against a defendant he could not he 
 examined in disproof of it. 
 
 Bentham's Eationale of Judicial Evidence happened to faU in my 
 way just as I was commencing to study law ; it made an impression 
 upon me which has not faded, and during my professional life I have 
 seen the principles which he advocated struggling for the mastery, 
 and gradually triumphing over the prejudices of lawyers and the 
 timidity of legislators. If I might sum up these principles in a 
 sentence they would be, that all evidence relevant to the- issue should 
 lie admitted, reserving all ohjections to its weight. What a striking 
 testimony to the soundness of these principles is borne by the Legis- 
 lature, when in the year 1869, in the act 32 and ^i Vict., c. 68, it 
 is recited, " That the discovery of truth in Courts of Justice has been 
 signally promoted by the removal of the restrictions on the admissi- 
 bility of witnesses." In this act almost the last restraint upon the 
 examination of parties is removed, by making the parties to any 
 action for breach of promise of marriage competent to give evidence ; 
 and yet, as showing the timidity of our legislators, and the hnger- 
 ing influence of old prejudices, it is clogged with a condition that 
 no plaintiff in any such action shall recover a verdict, unless their 
 testimony shall be corroborated by some other material evidence in 
 support of such promise. No such rule exists in reference to the 
 proof in any other civil action ; it is borrowed from the rule of our 
 criminal law, which does not allow the testimony of an accomplice 
 to be the ground of a conviction, unless corroborated. The intro • 
 duction of such paltry exceptions is one of the reproaches of our 
 law. This statute may give rise to a chapter of decisions as to what 
 amounts to corroboration in such an action. 
 
 A code of the law of evidence should reject all unmeaning and 
 trivial exceptions, and lay down the broad rule that no witness 
 should be incompetent by reason of being a party or having any in- 
 terest in the suit, or for any other reason. 
 
 There is, however, a matter of vast importance to be determined, 
 viz., whether the same rule should not extend to criminal proceedings. 
 The proposed code deals with this question by providing as follows : 
 — " Any person who in any criminal proceedings is charged ^vith 
 the commission of an indictable offence, or any offence punishable 
 by summary conviction, shall be competent, but not compellable, to 
 give evidence for himself, and if examined shall be subject to cross 
 examination as any other witness." 
 
 This is a proposition which will encounter great opposition, and 
 therefore I am desirous of stating fully my reasons for making it. 
 
 In aU judicial investigations the discova-y of truth should be the 
 great object. The question is, would that be promoted by the in- 
 troduction of this rule? I have no doi\bt that it would, and there- 
 
11 
 
 fore I propose it. What is tlio course of events now wliich wo fre- 
 quently see m reference to a criminal trial ? A man is tried on a 
 crimmal charge ; the witnesses for the prosecution tell their story ; 
 the prisoner's mouth is closed ; he may be the only person who by 
 a statement of the facts could clear his own character ; but he cannot 
 be heard. It sometimes happens that' after aconviction thus obtained 
 circumstances transpire which lead the executive government to 
 believe that there was a false case made. He is discharged. A 
 prosecution for perjury is instituted against the witnesses in the 
 former case ; and they are convicted upon the evidence of the late 
 convict, coupled ^^dth other evidence and the circumstances of the 
 case as they now appear. May we not truly say that in this case the 
 man is the_ victim of an unjust law ? He has been committed and 
 been in prison, because he was not allowed to tell his own story, and 
 it is a poor atonement to him that his prosecutors are punished by the 
 result of another prosecution and his character at last cleared. The 
 consequences to him may have been ruinous, and cannot be undone. 
 Now what is the position of the juries in both of these cases, who are 
 required to give a true verdict ? Neither jury is allowed to hear the 
 vohole case, only half of it. The first jury were not allowed to hear the 
 accused man, and the second jury, in like manner, are not allowed to 
 hear the former witnesses then arraigned for perjury. Could any 
 system be devised better calculated to prevent the discovery of the 
 truth ? I must confess that when I hear the point pressed upon 
 juries by prisoner's counsel with great force, " Gentlemen, my client's 
 mouth is closed ; if the prisoner were allowed to speak he would 
 clear up this matter ; " and then the jury are asked to assume a cer- 
 tain state of things to have occurred, of which there may be no evi- 
 dence, but which it is suggested the prisoner's evidence, if received, 
 would have established, I say whenever I hear this, I inwardly 
 deplore a state of the law which tends to keep back the truth. At 
 the same time, I neither overlook nor despise the arguments that may 
 be adduced on the other side, and I have endeavoured to weigh them 
 fairly. It is said an accused man is placed in such a position that 
 the temptation to swear falsely, in order to screen himself, is such 
 that he ought not to be placed in that position, and that an oath 
 taken by a person in that position would not have the usual sanction. 
 That is to some extent true ; but it is only the same kind of argument 
 that was used against the admissibility of parties, or persons having a 
 strong interest, as witnesses — their temptation to take a false oath 
 in order to carry the cause in which they had the interest. But the 
 answer is the same — all such objections should be to the weight not 
 to the admissibility of the evidence. The old law excluded a man, no 
 matter how trifling his interest was; and under it a shareholder in a 
 joint stock bank could not have been examined for the bank to 
 prove a fact in an ordinary commercial case, although his interest in its 
 result could not be the thousandth part of a farthing. Now that 
 plaintiffs and defendants, and interested parties, are admitted as wit- 
 nesses, many different degrees of weight are to be attached to the 
 interested evidence according to the circumstances ; in the case put 
 there could be no weight whatsoever against the evidence ; but in 
 
12 
 
 other cases the interest might he so strong, and the circumstances 
 such, that a tribunal would he disposed to attach scarcely any weight 
 at all to the testimony of the interested witness. So in the case of 
 prisoners, if allowed to he examined, there are cases in which the 
 tribunal could attach little weight to the exculpatory oath of the 
 accused ; but there are also cases in which it would weigh consider- 
 ably. In the case of a person really innocent it can hardly be 
 doubted that his evidence would often be of the first importance, 
 and if on cross examination his story continued to be consistent, and 
 truthful, it might be conclusive in his favour. But it is said and 
 said truly, that with respect to persons really guilty, it would operate 
 very unfavourably, for if the prisoner were not examined, the jury 
 would draw an unfavourable inference against him, and if he were, 
 he might be exposed to the rigour of a searching cross examination, 
 and substantially be compelled to convict himself. True; but if the 
 difcovery of truth be the object, do not all these supply strong ar- 
 guments in favour of the change t I disapprove of the French system 
 of interrogating the prisoner ; but the true medium lies between that 
 system and ours, viz. : to allow the prisoner to explain on oath, if he 
 desires, the circumstances of the case, and in that case onli/ to sub- 
 ject him to interrogation. 
 
 Another instance in our criminal law of the desire to withhold 
 full knowledge from a jury, is afforded by the rule as to previous 
 convictions. The law attaches a severer punishment on the com- 
 mission of certain offences if the party has been previously convicted; 
 but in arraigning a prisoner in such a case, the fact of the previous 
 conviction is kept back from the jury, who are required to try the 
 prisoner for the offence without knowing that he had been previously 
 convicted of a similar offence. I observe that Mr. Justice WiUes 
 referred to this rule lately as one that should be altered, and I 
 entirely agree with him. Even in cases where there is not an 
 indictment founded on a previous conviction, the judge generally has 
 in the calendar before him a history of all the previous career of 
 crime and the number of convictions ; but the jury must be kept in 
 the dark upon that matter. I recollect a case tried before me of a 
 respectable-looking man charged with picking a pocket ata race course. 
 The prosecutor positively swore to him as the man who took his 
 watch ; but there was a crowd, and he had only a moment to identify 
 him ; and when he was taken prisoner no watch was found with him. 
 His appearance and demeanour were good, and his manner plausible, 
 and the jury hesitated much before they convicted him. After his 
 conviction, when I stated what appeared upon the calendar as to his 
 previous history, I saw a smile on the faces of the jury, and some of 
 them obviously suggested to the doubting juror how little room 
 there was for his doubts. Our criminal law was in many respects 
 very harsh towards the accused person. Until the Prisoners' 
 Counsel Act was passed, he could not have the advantage of a 
 speech from his advocate. Severe punishments, often capital, were 
 imposed upon trifling offences against property. This unjust harsh- 
 ness appears to have led to the introduction, as a counterpoise to it. 
 
13 
 
 of certain rules highly favourable to the accused, of which this is an 
 instance, and there are many others. 
 
 Again, there is a rule excluding hearsay evidence, which was in- 
 tended to exclude common report or rumour, but which prevents 
 proof being given of what was said by a third person. The existence 
 of this rule renders it impossible for a witness to describe a trans- 
 action as it really occurred. He is proceeding with his narrative, 
 
 and says he met A. B., who said to him. He is immediately 
 
 interrupted, and warned that he is not to teU what A. B. said. This 
 puzzles him greatly — why he should not teU what was said to him ; 
 but the judge sternly tells him, in the language of a high authority, 
 " what the soldier said is not evidence," and thereupon the counsel 
 examining him proceeds, " in consequence of something the soldier 
 said to you, which you are not at liberty to mention, what did you do?" 
 
 What is said is often just as important as what is done, and I never 
 could understand why the whole narrative should not be admitted. 
 This point arose in a remarkaMe manner in the Tichborne case, where 
 a witness was asked what was said to him by the claimant or some 
 other person whom he met in Australia, and the question was objected 
 to ; but I do not think the point was actually decided. But could any- 
 thing be more calculated to throw Ught upon the case, than if the wit- 
 ness met ashipwrecked sailor in Australia, and he had told that he and 
 seven others had escaped from the wreck of the Bella, and had just 
 been landed ? There is danger of such evidence being fabricated, 
 but if genuine it is often the very best evidence, and therefore I 
 propose that aU evidence of the class should be admitted — leaving 
 the tribunal to judge of its weight. 
 
 Another rule of the law of evidence was animadverted upon in 
 the same case, viz : — that if any piece of evidence, no matter how 
 unimportant, be admitted, and the other party except to its admis- 
 sion, and it be held that it was inadmissible — then, although it could 
 not have had the slightest effect upon the result, the whole of the 
 proceedings fail, and the verdict will be set aside. The Chief Jus- 
 tice appesded to the Attorney-General as a legislator to correct this 
 evU ; but he naturally deprecated an appeal to him in that cha- 
 racter. Now, a very simple clause in the proposed code (No. 1 8, ) 
 removes that objection, I have taken it from the Indian code of 
 civil procedure. Thus what has been long felt to be a reproach to 
 our law would disappear. 
 
 I do not think it is necessary for me here to enter into fuUer de- 
 tail of the clauses which I have introduced into this specimen code. 
 I do not clq,im for it perfection or completeness. My aim has been to 
 give a practical proof that the codification of the English law is not an 
 impracticable or hopeless task. Many persons will, I have no doubt, 
 say that it is impossible that the forty clauses contained in this 
 specimen code, could nearly exhaust the unwritten law of evidence, 
 and that it is therefore imperfect and incomplete. I certainly have 
 not embodied in this short compass the result of all the decisions in 
 the books on the law of evidence. I have not introduced the law of 
 evidence as regards the proofs necessary to sustain particular actions, 
 dealing only with the general rules applicable to the mode of proof; 
 
14 
 
 nor have I adverted to the rule as to not allowing written instru- 
 ments to be varied or explained by parol evidence, for this relates 
 more properly to a code of the law of contracts. In like manner the 
 question of explaining ambiguities in documents by evidence of user 
 or acts of ownership is excluded for the same reason. 
 
 I must again repeat what I believe to be the true office of a code — to 
 put in writing such parts of the unwritten law as are deserving of 
 being preserved in our jurisprudence, omitting those which are trivial 
 or ephemeral, and abohshing those which are faulty. Where the code 
 is silent, the existing decisions must be referred to as authorities, 
 and they illustrate and explain the meaning of the code. Nor 
 would a code abrogate the provisions of the statute law on the same 
 subject, unless they are inconsistent with its clauses, though it will 
 necessarily supersede many of them by expressing in a simple form 
 the result of several Acts. Thus, when we provide that all persons 
 who conscientiously object to taking an oath may take a solemn 
 affirmation, we dispense with various acts passed to allow Quakers, 
 Moravians, and others, to affirm. 
 
 I particularly dwell upon these points, because I beheve that the 
 making of a code so complete and exhaustive that we might burn 
 all our books, would be simply impracticable, even were it desirable. 
 M. Portalis, one of the framers of the Code Napoleon, thus expresses 
 himself: — "We have guarded against the dangerous ambition of 
 wishing to regulate and to foresee everything. The wants of society 
 are so varied, the intercourse between men is so active, their interests 
 so multifarious, and their relations so extended, that it is impossible 
 for the legislator to provide for every emergency. The office of the 
 law is to fix by enlarged views the general maxims of right and 
 wrong, to establish principles fruitful in consequences, and not to 
 descend to the details of all questions which may arise upon each 
 particular topic. It is for the magistrate and jurisconsult, penetrated 
 with the general spirit of the law, to direct their apphcation." 
 
 We have great wealth of learning in decided cases ; we should not 
 throw it away, but utilize it. Let us then be content with the hum- 
 bler task of simplification and expurgation. 
 
 It may be said that I have not taken a fair test, for that the law 
 of evidence is, perhaps, the branch of our law which affords the 
 greatest facilities for codification — and that may be so ; but I will add 
 that it is the one pre-eminently in which a code would be of immediate 
 practical benefit. I believe, however, that the law of contracts, of 
 bills of exchange, .and other distinct branches, are capable of being 
 dealt with in the same way, if approached in the direction indicated 
 by Mr. Justice Willes, and thus gradually our entire law might be 
 codified. 
 
 I must, however, acknowledge that the law of real property in its 
 present state scarcely admits of codification, and any attempt to do 
 it would, I think, convince the person who attempted it of the ne- 
 cessity of a radical reform in that branch of law. This is too large 
 a question to enter upon at present ; it may form the subject of an- 
 other paper; it is enough to say, that as several of the obvious changes 
 involve not merely changes in the law, but important social and polit- 
 
15 
 
 ical questions, the work of the legislator must, in this branch, precede 
 that of the code-maker. 
 
 In conclusion, I shall only say that the fusion of our courts of law 
 and equity can only be effected by establishing an uniform code 
 binding upon all courts. When that is done, the distinction between 
 the nature of cases may still render it advisable, as a division of la- 
 bour, to leave to different courts the decision of certain classes of 
 cases for which their procedure may be specially adapted. The law 
 in all courts would then be the same, but there would be distinct codes 
 of procedure, according to the nature of the case forming the subject 
 of litigation. 
 
 If it were thought desirable to proceed in this way with the various 
 branches of our law, and if the Legislature were disposed to con- 
 sider and sanction such codes by prospectively declaring them to be 
 law, I have no doubt that many would be found amongst our jurists, 
 possessing an accurate knowledge of the law as it is, and an enlight- 
 ened view as to what it ought to be, who would be willing to devote 
 their energies to the completion of parts of this great work. 
 
PROPOSED CODE 
 
 OF 
 
 THE LAW OF EVIDENCE. 
 
 Whereas, it is expedient to simplify the Law of Evidence ; Be it 
 enacted, etc., as follows : — 
 
 All witnesses shall, before they are examined, take an oath or so- 
 lemn affirmation. 
 
 II. 
 
 The oath shall be administered in such form as the witness shall 
 consider to be binding upon his conscience. 
 
 Any witness who has a conscientious objection to the taking of 
 an oath, may take a solemn affirmation in the form or to the effect' 
 following : — 
 
 " I, A.B., do solemnly promise and declare that the evidence 
 given by me to the court, shall be the truth, the whole truth, 
 and nothing but the truth." 
 
 IV. 
 
 Any witness taking a solemn affirmation shall be subject to the 
 same consequences in all respects as if he had taken an oath. 
 
 No person shall be excluded as a witness by reason of want of re- 
 ligious belief, if he is ready to take a solemn affirmation. 
 
 VI. 
 
 The following persons only shall be incompetent to testify : 
 
 a. Children of tender years, who appear to the judge incapa- 
 ble of understanding the nature of an oath or solemn affirmation. 
 
 b. Persons of unsound miad, who appear to the judge inca- 
 pable of giving rational evidence. 
 
18 
 
 VII. 
 
 No person shall be rejected as a witness by reason of his being a 
 party to the cause or matter, nor by reason of his having any interest 
 direct or indirect in the result. 
 
 VITI. 
 
 Any person who in any criminal proceeding is charged with the 
 commission of an iadictable offence, or any offence punishable by 
 summary conviction, shall be competent, but not compellable, to give 
 evidence for himself; and if examined, shall be subject to cross- 
 examination as any other witness. 
 
 IX. 
 
 Any party to a civU suit, or other proceeding of a civO. nature, 
 shall be competent, and may be compelled, to give evidence as a wit- 
 ness therein, and also to produce any document in. his possession or 
 power, in the same manner as if he were not a party to the suit or 
 proceeding. 
 
 X. 
 
 Husbands and wives shall in every proceeding, both civil and crimi- 
 nal, be competent and compellable to give evidence for or against 
 each other. Provided that any communication made by husband or 
 wife to the other during their marriage, shall be deemed a privileged 
 communication, and shall not be disclosed without the consent of 
 the party making the same, unless such communication shall relate 
 to a matter in dispute in a suit pending between husband and wife. 
 
 A barrister, solicitor, attorney, or clergyman of any religious per- 
 suasion, shall not be bound to disclose any communication made to 
 him confidentially in his professional character, without the consent 
 of the person making the same. 
 
 XII. 
 
 A witness shall not be excused from answering any question rele- 
 vant to the matter in issue, in any civil or criminal proceeding, upon 
 the ground that the answer to such question may tend directly or 
 indirectly to criminate such witness, or expose him to any penalty or 
 forfeiture. Provided that no answer which a witness shall be com- 
 pelled to give, shall be used against such witness in any criminal 
 proceeding, or in any proceeding for a penalty or forfeiture. 
 
19 
 
 XIII. 
 
 Evidence shall not be rejected on the ground that it consists of 
 conversations with, or statements made by, third parties, in case in 
 the opinion of the judge they shall be material, and relevant to the 
 issue. 
 
 XIV. 
 
 The judge shall reject all evidence which is irrelevant to the 
 issue. 
 
 XV. 
 
 Every person produced as a witness shall be subject to be cross- 
 examined by the opposite party, or, at the discretion of the judge, 
 by the party producing him. 
 
 XVI. 
 
 A witness on cross-examination may be asked any question rele- 
 vant to the issue, or any question which, though not relevant to the 
 issue, goes to impeach the credit of the witness, subject to the dis- 
 cretion of the judge as to the allowance of such last-mentioned 
 questions. 
 
 XVII. 
 
 A party may produce evidence to contradict the answers of a 
 witness given upon cross-examination, as to matters not strictly 
 relevant to the issue, in case the judge shall thinlc that such evidence 
 is material to the merits of the case. 
 
 xvm. 
 
 The improper admission or rejection of evidence shall not be 
 ground of itself for a new trial, or for the reversal of any decision in 
 any case, if it shall appear to the court before whom such objection 
 is raised, that independently of the evidence objected to and ad- 
 mitted, there was sufficient evidence to justify the decision, or that 
 if the rejected evidence had been received it ought not to have varied 
 the decision. 
 
 XIX. 
 
 Any entry or statement which would be admissible in evidence 
 after the death of the person who made it, on the ground of having 
 been against interest, or made in the ordinary course of business, 
 shall be admissible, though the person making it be not dead, if he 
 is incapable of giving evidence by reason of his subsequent loss of 
 understanding, or is bond fide and permanently beyond the reach of 
 the process of the Court, or cannot after diligent search be found. 
 
20 
 
 XX. 
 
 Books proved to have been regularly kept in the course of business, 
 or in any pubKc office, shall be admissible as corroborative, but not 
 as independent, proof of the facts stated therein. 
 
 XXI. 
 
 The judge may take judicial notice of all matters of public notoriety. 
 
 XXII. 
 
 In cases of pedigree the declarations of illegitimate members of 
 the family, and of those intimately acquainted vifith the family, shall 
 be admissible in evidence after the death of the declarant. 
 
 No declaration shall be excluded on the ground that it was made 
 after a controversy had arisen, such objection shall only go to the 
 weight of the evidence. 
 
 The contents of an instrument in writing must be proved by the 
 production of the writing, except in the following cases : 
 If it be shown to the satisfaction of the judge : 
 
 a. That it is destroyed or cannot after proper search be found ; 
 
 b. That the production of the writing is physically impos- 
 sible or highly inconvenient ; 
 
 c. That it is in the possession or power of the opposite party, 
 who refuses to produce it at the trial though called on to do so ; 
 
 d. That it is in the hands of a third party who is not com- 
 pellable to produce it, and who refuses to produce it though 
 called on so to do ; 
 
 e. That it is in the hands of a person residing out of the reach 
 of the process of the Court, and that all reasonable efforts have 
 been made to obtaiaits production. 
 
 XXV. 
 
 A receipt, whether signed or under seal, shall not be conclusive 
 evidence of payment, but may be explained. 
 
 XXVI. 
 
 A witness shall not be bound to produce any document in his 
 possession not relevant or mi.terial to the case of the party requiring 
 
21 
 
 its production, nor any confidential writing or correspondence which 
 may have passed between him and any legal professional adviser. 
 
 XXVII. 
 
 A witness, whether a party or not, shall not be bound to answer 
 any question or produce any document relating to affairs of state, 
 the answer to which if given, or the production of which, would be 
 contrary to public policy. 
 
 XX VIII. 
 
 A witness shall be allowed to refresh his memory by any writing 
 made by himself, or by any other person at the time when the fact 
 occurred, or shortly afterwards, or at any other time when the fact 
 was fresh in his memory, and he knew that the same was correctly 
 stated in the writing. In such case the writing shall be produced, 
 and may be seen by the adverse party, who may cross-examine the 
 witness upon it. 
 
 XXIX. 
 
 Whenever a witness may refresh his memory by reference to any 
 document, he may, with the permission of the judge, refer to a copy 
 of said document — provided the judge, under the circumstances, be 
 satisfied that there is sufficient reason for the non-production of the 
 original. 
 
 XXX. 
 
 On matters of public history, literature, science, or art, it shall be 
 lawful to refer for the purposes of evidence to such published books, 
 maps, or charts, as the judge shall consider to be of authority on the 
 subject to which they relate. 
 
 Books printed or published under the authority of the government 
 of a foreign country, and purporting to contain the statutes, code, or 
 other written law of such country, and also printed and published 
 books of reports of decisions of the courts of such country, and books 
 proved to be commonly admitted in such courts as evidence of the 
 law of such country, and written opinions of persons skilled in the 
 law of such country, shall be admissible as evidence of the law of 
 such foreign country. 
 
 XXXII. 
 
 It shall be the duty of the judge to direct the jury as to the ex- 
 istence and nature of the law of a foreign country when same is in 
 issue. 
 
22 
 
 When dying declarations are evidence, they shall be received if it 
 he proved that the deceased was, at the time of making the declara- 
 tion, and then thought himself to be, in danger of approaching death, 
 though he entertained at the time of making it hopes of recovery. 
 
 No person shall be convicted on the testimony of an accomplice 
 alone, unless such testimony be corroborated in some material parti- 
 culars, and the judge shall direct the jury whether there is such cor- 
 roboration. 
 
 XXXV. 
 
 Confessions shall be received in evidence, unless they appear to the 
 judge to have been made under the influence of fear produced by 
 threats. 
 
 XXXVI. 
 
 A confession alone will not be -sufficient to warrant a conviction, 
 without additional proof that the oifence charged has been com- 
 mitted. 
 
 XXXVII. 
 
 "Where an indictment contains a charge of a previous conviction, 
 the prisoner shall be arraigned upon the whole indictment ; and if 
 he pleads not guUty, the previous conviction may be given in evi- 
 dence upon the trial. 
 
 XXXVIII. 
 
 An impression of a document made by a copying machine shall 
 be taken, prima facie, to be a correct copy. 
 
 XXXIX. 
 
 All maps made under the authority of government, or of any pub- 
 lic municipal body, and not made for the purpose of any litigated 
 question, shall, prima fade, be deemed to be correct, and shall be ad- 
 mitted in evidence without further proof 
 
 XL. 
 
 Nothing in this act contained shall be construed so as to render 
 inadmissible any evidence which, but for the passing of this act, 
 
23 
 
 would have been admissible ; nor shall it be construed to alter or 
 aflfect any rule of law or practice which is not inconsistept with the 
 provisions herein contained. 
 
 XLI. 
 
 This act shall come into operation on the day of - 
 
 and shall not extend to Scotland.