Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/777

Rh EVIDENCE 741 fessions ; statements by deceased declarant ; evidence given on a former occasion ; statements made under special cir cumstances ; judgments of a court of justice.&quot; An admission is defined to be a statement suggesting any inference as to facts unfavourable to the conclusion contended for by the person by whom or on whose behalf it is made, and may be given in general in evidence against him. In civil actions, statements of this sort, made without prejudice or on ex press condition that they are not to be used in evidence, may not be admitted. An important class of admissions is that of confessions in criminal cases. A voluntary confes sion may be used in evidence against a prisoner, but a con fession caused by &quot; any inducement, threat, or promise, proceeding from a person in authority,&quot; is not admissible. But a confession made under promise of secrecy, or in con sequence of deception, may be used in evidence. Dying declarations, made in immediate prospect of death, are ad- missable in trials for the murder or manslaughter of the deceased. Declarations made in the ordinary course of business or duty by deceased persons are admitted as relevant to the matter to which they relate. And a decla ration by a deceased person is admissible &quot; if he had peculiar means of knowing the matter stated, if he had no interest to misrepresent, and if it was opposed to his pro prietary interest.&quot; 1 Declarations relating to public rights or customs by competent persons may be used in evi dence after their death. In pedigree cases, statements by deceased blood-relations, made before litigation, are to be admitted. The statutes 11 and 12 Viet. c. 42 and 30 and 31 Viet. c. 35 allow depositions of deceased witnesses to be used in certain criminal cases. la civil cases the evi dence of a deceased witness may be used at a subsequent trial raising the same issues. Among the miscellaneous cases of admissible hearsay evidence may be mentioned facts of a public nature recited in statutes and proclama tions, entries in public records, and statements in maps, and plans, and accredited historical works. Judgments are conclusive proof of &quot; the state of things which they effect,&quot; and as between parties of the facts actually in issue. Another instance of departure from the logical theory of relevancy is the evidence of opinion. The general rule, as enunciated by Stephen (Diyest, part i. c. 5), is &quot; that the fact that any person is of opinion that a fact in issue or relevant to the issue does or does not exist is not regarded as relevant to the existence of such fact.&quot; A distinction, which Sir J. Stephen does not notice, must 1 In the leading case of Higham v. Ridgway, an entry in the book of a deceased man-midwife, stating the birth of a child on a certain day and the payment of his fee for attendance, was admitted in evidence to prove the birth on that day. The acknowledgment of payment was held to be &quot;against the declarant s interest,&quot; and rendered the whole statement admissible. The distinctions made by judges in cases of declarations by persons deceased run very fine. A declaration made by a person in the course of his business or duty will not let in any thing but the statement it was his duty to make. Thus a declaration by a deceased sheriffs officer as to the time and place of an arrest effected by him was admitted so far only as the time was concerned, because it was not his official duty to make a note of the place. If, however, the statement had contained such a note as &quot; received for the same five shillings&quot; (which would be a statement against interest), the evidence as to place would have been admitted. Again, in the Sussex Peerage case, it was held that a declaration made by a clergy man that he had performed a marriage under circumstances which would make him liable to pecuniary penalties was held not to be a &quot;statement against interest&quot; within the meaning of the rule. On the other hand, a statement made by a tenant that he paid rent for his house was -held to be admissible as against interest, because it rebutted the presumption founded on the fact of possession that it belonged to him in fee simple. The tendency of judicial decisions since the principal case (Higham v. Ridgway) has been to limit the operation of the rule. In a recent case, however (Leyden v. Lord St Tyeonards), the judges expressed an opinion that the best rule would be to admit all declarations made by deceased persons, where they had peculiar means of knowing the fact testified, arid had no interest to misrepre sent it. be drawn between two senses in which the word opinion may be used. In common parlance, the belief of a scientific witness on some technical point, and the belief of an ordinary witness as to some fact perceived by himself, would with equal propriety be described as opinion. And it would not be difficult to show that psychologically they are the same thing. The opinion in each case is the result of a process of reasoning. In each case one reasons from a number of facts to a conclusion. The belief of a witness in a question of personal identity is based on a number of facts as to which he has no doubt, e.g., the size, the build, the gait, the clothes of the person in question. The law, however, draws a broad distinction between this kind of inference and the open and deliberate inference as to matters not directly perceived by the senses. It dis tinguishes between facts and inferences, holding in dis regard of psychology that the former are directly perceived; but it does not insist upon absolute certainty in the per ception. A witness may &quot;believe&quot; or &quot;think&quot; or &quot;be of opinion &quot; that he saw A. on a given day, or he may say positively that he did see him. The strength of his per suasion will be considered by the tribunal, but his evidence will not be rejected because his persuasion is weak. Or, as Mr Taylor puts it, &quot; the law does not require him to speak with such expression of certainty as to exclude all doubt.&quot; By opinion then is meant not merely a lower degree of persuasion, a more feeble belief, but a belief held as the result of inference and not of direct perception. There is nothing in the feebleness with which a witness s belief in the existence of a fact is expressed or held to make it irrelevant. But as a general rule, opinion in the other sense is not admissible in evidence at all. It is the business of the tribunal of the jury to form such opinions for them selves. Indeed, the exclusion of opinion in evidence is put on this very ground in some of the decided cases. Thus, in an insurance case, a new trial was granted because the opinion of a witness had been admitted as to whether the communication of particular facts would have varied the terms of the policy the court holding that this was a question for the jury alone. But the general rule has its exceptions, which may almost all be included &quot;in the opinion of experts.&quot; In matters of science and skill requiring special study and education, the opinion of persons so qualified (experts) may be given in evidence. The law of a foreign country, and the examination of hand-writing, are among such matters. But an expert cannot give an opinion as to the existence of the facts on which his opinion is based, although of course he may testify to them if he has perceived them himself. In thus excluding opinion on all but technical subjects, the law is stricter than the logic of ordinary life. The opinion of others tells for something in the formation of our own opinions, and no doubt ought to tell for something. This, however, is not the place for an examination of the influence of authority in matters of reasoning. It is sufficient to point out that in law it is reduced to a minimum. 2. Haw facts that may be given in evidence are to be proved. First of all we must set aside a considerable class of facts which need not be proved, because they are already supposed to be known to the court. The judge takes &quot;judicial notice&quot; of them. These are for the most part facts relating to the constitution, including, of course, the entire body of law administered in all the courts of the country, from whatever source it may be derived. The courts will also take judicial notice of the accession and sign manual of the queen and her successors, of the existence and title of every state and sovereign recognized by her Majesty, of the names, titles, functions, signatures, Ac., of the judges of the supreme court, of the great seal, privy seal, seals of the courts of iustice. ana of certain