there; that, on the trial of Lord Southampton, something said by Lord Essex, previous to the prisoner's being there, was admitted as evidence: and that, in Lord George Gordon's case, evidence of what different persons of the mob had said, though he was not there, had been admitted. But Eyre, C, J., and the other judges, considered the letter, not as an act done in prosecution of the plot, but as a mere narrative of what had passed.

Correspondence,'

said the Chief Justice, very often makes a part of the transaction, and in that case the correspondence of one who is a party in a conspiracy would undoubtedly be evidence, that is, a correspondence in furtherance of the plot; but a correspondence of a private nature, a mere relation of what had been done, appears a different thing.' And with respect to the cases alluded to by Buller, J., the Chief Justice observed, In the cases of Damaree and Lord George Gordon, the cry of the mob at the time made a part of the fact, part of the transaction, and therefore such evidence might properly be received.'

"It is in consequence of the distinction between writings or declarations which are a part of the transaction, and such as are in the nature of subsequent statements, but not part of the res gesta, that the admissibility of writings often depends on the time when they are proved to have been in the possession of co-conspirators; whether it was before or after the time of the prisoner's apprehension. Thus on the trial of Watson, some papers, containing a variety of plans and lists of names, which had been found in the house of a co-conspirator, and which had a reference to the design of the conspiracy, and in furtherance of the alleged plot, were held to be admissible evidence against the prisoner. All the judges were of opinion that these papers ought to be received; inasmuch as there was in the case strong presumptive evidence that they were in the house of the co-conspirator before the prisoner's apprehension: for the room in which the papers were found had been locked up by one of the conspirators. And the judges distinguished the point in this case from a point cited from Hardy's case, where the papers were found, after the prisoner's apprehension, in the possession of persons who, possibly, might not have obtained the papers till afterwards."

§ 124. Bearing in mind these particular cases in which evidence, though not delivered on oath or subject to cross-examination, is in the nature of original evidence, let us return to a consideration of Hearsay commonly so called (3)

(y) Starkie is I think somewhat puzzling to the student in this part of his subject, for in page 53 he makes a distinction between mediate original, and mediate secondary evidence. The general idea of original and secondary evidence makes them correspond respectively with Immediate and Hearsay; and to introduce the same division into one branch (mediate or Hearsay) is confusing. I have therefore abandoned our author here; but must endeavour

MEDIATE EVIDENCE, WHERE RECEIVABLE.

CHAPTER IX.

HEARSAY EVIDENCE, GENERALLY.

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§ 125. It is never receivable if better evidence is procurable and kept back, for otherwise the fundamental rule which requires that the best evidence which each case admits of shall be produced, would be violated. But there are certain subjects which cannot possibly from their very nature admit of the production of immediate evidence, because they are not the subjects of the senses at all; such as relationship, character, custom, prescription and the like. In some of these instances, it is true that immediate evidence possibly might be producible, but very rarely. Character is clearly matter of opinion, and not of the senses: Relationship might occasionally be proved by

to make his meaning clear in a note for the benefit of those students who are perusing his work. Starkie's divisions would stand as follows:Evidence as to kind. 1

Mediate evidence says Starkie (p. 53) of general reputation, pedigree, admissions, declarations accompanying an act, is in its nature original: all other mediate testimony is secondary. Now by this he means simply that as to the first class, there really is nothing behind, which could be of a better quality, or which could possibly be resorted to: whereas with respect to the second class, it pre-supposes the existence of better evidence, the absence of which must be accounted, for before any recourse can be had to the secondary evidence. Let us try this by two examples. Suppose mediate evidence were offered to prove a matter of pedigree, suppose also mediate evidence were offered to prove a fact by means of an entry made in a deceased person's book according to the ordinary custom of his trade. Then these two heads of evidence according to Starkie would stand thus

Mediate evidence offered to prove
1

Pedigree.
Original.

Entry.
Secondary.

Now suppose that the link in the chain of Pedigree to be proved, were 100 years back, it is clear that there is nothing better than the hearsay of the old deceased persons which the witness reports. There is nothing to fall back upon, nothing behind this: nothing in short to be accounted for before such evidence was admissible, and so far it is in the nature of original evidence.

But take the other case: when an entry is produced, and is proved to have been made by a deceased person in the ordinary course of his business, it is receivable in evidence. But if the person who made the entry had been alive, his own testimony would have been better than his entry. He might, it is true, have refreshed his memory by a reference to his book, but the book itself would not have been independent evidence. He would have deposed on oath and subject to cross-examination-whereas, after his death, his entry is not subject to any such tests of its truth. In this case therefore, as there might be better testimony than the secondary or hearsay evidence of the entry, it becomes necessary to satisfy the Court that no such better evidence exists: in other words that the party making the entry is dead, and the source of original evidence being thus exhausted, the secondary evidence of the entry itself becomes receivable: thus illustrating the rule that secondary evidence is never admissible so long as original evidence of the same fact is procurable. This is all that Starkie means by his division or sub-division of mediate testimony into original and secondary. I have adopted with Phillipps the simpler course of considering in what cases hearsay, or mediate evidence is receivable.

the immediate testimony of a midwife, or a surgeon, or a mother, but generally speaking, relationship is not provable by immediate testimony. So of pedigree: suppose the link to be proved existed 100 years back. The witnesses almost to a certainty would be all dead, and in all these cases, cessante ratione cessat lex, hearsay evidence is receivable.

§ 126. The following observations sum up the whole matter. (2)

"The chief merit of the English law of evidence, a merit which in some measure atones for that predilection for absurdity which seems to have animated some of its earliest sages, and not quite to have abandoned their posterity, consists in the general exclusion of hearsay evidence; that one man shall not be affected by what another says of him, which he has no opportunity to examine or contradict, is a dictate of natural justice; and however it may be argued that such evidence ought to be admitted, and left to find its own level, yet so long as juries are entrusted with the decision of facts, and those juries in the greater number of instances are taken from a portion of the community peculiarly susceptible of prejudices, any subзtantive alteration of this rule would lead to the most pernicious consequences. Vanæ voces populi non sunt audiendæ, nec enim vocibus eorum credi oportet, quando aut noxium crimine absolvi aut innocentum condemnari desiderant.

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Perhaps the most remarkable exception to this important doctrine is, that by which the English law, dispensing with its formal rules in favor of higher principles, allows hearsay evidence to be given when it tends to explain an act done, and forms part of a particular transaction: nothing can be more sound than the reasoning on which this exception is admitted; an action may bear a totally different interpretation, according to the words by which it is accompanied-nay, in many cases, an action would be altogether unmeaning were it not for words which individuate it, and impart to it a peculiar and distinctive signification; the same cause, therefore, on account of which evidence of the act is given, obliges evidence of the expression with which it is accompanied to be received. Thus, where a question arises as to the validity of an insurance, impeached on the ground of fraud committed by the party for whose benefit it was made, evidence of declarations made by the party whose life was insured is admissible. So where a tradesman leaves his house, evidence may be given of his declarations as to the motives of his absence; so his declarations as to the state of his affairs are evidence, and the answers may be read to letters written by him and requesting assistance. Another exception is, where hearsay is admitted to prove a public right; in such cases that the fact of tradition exists among

(z) Law Mag., N. S. vol. 1, p. 34.

those who have the means of knowledge, and an interest in perpetuating that knowledge, is a circumstance entitled to great consideration; it is a moral fact, not obvious to the senses. No other evidence can be given, that such rights exist, but the prevalence of such traditions among the people. Such a persuasion is the very fact sought to be established; if it can be traced to the period when those rights were exercised, if it be constant and general, if no specific date can be assigned to its origin, hearsay is thus stripped of its most dangerous qualities; it ceases to be the loose random declarations of an individual, and assumes a character of constancy and truth in proportion to its extent and accuracy."

§ 127. Mediate or Hearsay evidence is receivable

1st.

In matters of public and general interest.

2nd. In questions of ancient possession.

3rd. In matters of pedigree.

4th. In cases of dying declarations.

5th. In cases of declarations made against the interest of the person making them.

6th. In the case of entries made in the ordinary course of business.

7th.

Admissions by a party to the suit, his partner, or agent. 8th. Confessions by prisoners.

§ 128. It may be stated generally that except in the abovementioned cases hearsay evidence is not receivable.

CHAPTER X.

HEARSAY IN MATTERS OF PUBLIC INTEREST.

129. It is receivable

1st. In matters of public and general interest.

§ 130. The reasons for the reception of hearsay evidence in these cases is thus explained by Taylor.(«)

“And first, as to matters of public and general interest. The admissibility of hearsay evidence in this class of cases appears to rest mainly on the following grounds :-that the origin of the rights claimed is usually of so

(a) § 416.

r

ancient a date, and the rights themselves are of so undefined and general a character, that direct proof of their existence and nature can seldom be obtained, and ought not to be required; that in matters, in which the community are interested, all persons must be deemed conversant; that as common rights are naturally talked of in public, and as the nature of such rights excludes the probability of individual bias, what is dropped in 'conversation respecting them may be presumed to be true; that the general interest which belongs to the subject would lead to immediate contradiction from others, if the statements proved were false; that reputation can hardly exist without the concurrence of many parties unconnected with each other, who are all alike interested in investigating the subject; that such concurrence furnishes strong presumptive evidence of truth; and that it is this prevailing current of assertion that is resorted to as evidence, for it is to this that every member of the community is supposed to be privy, and to contribute his share."

§ 131. It is necessary to bear in mind the distinction between the terms "public" and "general." Public is used of that which is common to all: as a highway. General of that which concerns many indeed, but not the entire body of the public: as a right of common, in which only the inhabitants of one or more parishes participate. In respect to the former class evidence of reputation from any one is receivable; in respect to the latter, evidence of those actually unconnected with the particular locality would not be admissible.

§ 132. Phillipps, I think, discusses this matter in the most simply intelligible form. He divides it into three heads.

1st. Examples of matters of public and general interest. 2nd. The form under which hearsay is usually presented. 3rd. The qualifications under which it is receivable.

1st. Examples.

§ 133. A boundary between villages; the limits of a village or town: a right to collect tolls: a right to trade to the exclusion of others a right to pasturage of waste lands; liability to repair roads, or plant trees; rights to water-courses, tanks, ghauts for washing; rights of common and the like, will be found the most ordinary in Mofussil practice. It may be useful also to consult Taylor (b) to see in what instances hearsay has been respectively received or excluded in matters of this description.

"It may be here expedient to enumerate a few of the principal questions,

(6) § 420, 421.