23 SEPTEMBER 1876, Page 18

A DIGEST OF THE LAW OF EVIDENCE.* This work is

primarily intended by Mr. Stephen for students, but though it will certainly be useful to this class of readers, it is by no means fitted to be a first-book on the subject. However, no one can doubt that it will be a handy book for practitioners and magistrates, who can here find much more quickly than in the standard books the different rules as to the law of evidence, suc- cinctly laid down, with illustrations from judicial decisions. The author has reduced the existing Law of Evidence, as it is to be found in judicial decisions and in the Statute-book, to a number of distinct propositiotp, each of which forms a separate article or subdivision of an article. Of these articles, the book contains 140, and to many of them illustrations are appended, which, in most instances, are drawn from the facts of decided cases. The treatises of English legal writers upon the law of evidence fill several large volumes, so that it is quite refreshing to have certain propositions stated clearly, and free from the verbiage in which they are usually imbedded. As a matter of fact, the law of evidence is of the most simple and intelligible character, and that of England is no exception to this rule, though at first sight quite the contrary view might well be taken. For English text-writers have never made any attempt to separate the rules of evidence, pure and simple, from those portions of actual law and procedure in which they are naturally imbedded, when their immediate source consists of judicial decisions and Acts of Parliament, which last are often very badly drawn, and also not unfrequently deal with all sorts of different subjects. In the last note in this work (p. 177), Mr. Stephen enumerates some of the principal Acts which contain por. tions of our law of evidence. It seems to us that it would be perfectly feasible to consolidate in one Act all the various provisions in the different statutes into which links might be introduced to connect the separate parts one with another. Mr. Stephen truly enough observes that it would be impossible to get in Parliament a really satisfactory discussion of a Bill codifying the law of evidence. But we see no reason why an Act of this sort should not be passed which would form the basis for a code of the law of evidence. The Judicature Acts have done this for the Law of Civil Proce-

* A Digest of the Law of Evidence. By James Fitzjames Stephen, Q.C. London: Macmillan and Co. 1876.

dare, and the Law of Evidence in this modest way is equally capable of being made more systematic in its form.

As has already been pointed out, evidence is by legal writers too often mixed up with other subjects, and even Mr. Stephen, though he is well aware of this common fault, seems to have fallen into the error of not keeping principles of evidence quite distinct on some occasions from law and procedure. No code of evidence can ever be passed until this distinction is clearly and generally grasped. We will give an instance of this fault. Article 99 (p. 103) is headed, "Presumption of Death from Seven Years' Absence." The bodyof the article-then goes on to state that a person shown- not to have been heard of for seven years by those who, if he had . been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death. Now this is quite apart from the principles of evidence,—the presumption drawn from the seven years' absence is a presumption of pure law. It is an arbitrary inference, which has grown up for the purposes of public policy, but is not really founded on evidence. We think, let it be remembered, that Mr. Stephen has kept much more to the strict rules of evidence in this digest than any previous English writer on evidence ; but this, and some other instances -which we could give, show how even a usually clear-headed writer suffers himself to be, at any rate partially, bound by the confused teaching of the leading text-writers. The work itself is. divided into three parts, bearing the titles of " Relevancy," " On Proof," and finally, " Production and Effect of Evidence." But we fail to see why, under the latter head, the author has grouped certain presumptions from facts such as have already been alluded to, and under the second head, presumptions as to the date and signing of documents. Again, the definition of relevancy at the end of chapter ii., would have been better played at the beginning, since the whole chapter deals with relevant and irrelevant facts. The general character of the book can be shown best by a short extract. Taking one at random, we find Article 6 headed " Customs " :—" When the existence of any custom is in question, every fact is relevant which shows how, in particular instances, the custom was understood and acted upon by the parties then interested. Illustration (a) : The question is whether, by the custom of Borough-English, as pre- vailing in the manor of C, A is heir to B. The fact that other persons, being tenants of the manor, inherited from ancestors standing in the same or z'milar relations to them as that in which A stood to B, is relevant." (p. 8.) But this example seems also to show the great difficulty which there is in placing these legal propositions in accurate and yet comprehensive terms. For here the last part of the proposition is scarcely quite correctly stated, —the question in issue is the existence of any custom at all ; the last few lines of the article, as any reader who will consider fora moment will see, assume the existence of the disputed custom. It would have been more accurate to have made the proposition run thus :—When the existence of any custom is in question; every fact is relevant which shows how in particular and similar instances parties then interested acted upon and understood the alleged custom. Indeed, the last half-dozen words might almost be left out, because the actions of persons in previous or parti- cular and similar instances form the evidence of a custom.

But the general plan of the book is that which is in some respects most noteworthy, for it shows what an advance is being made in the systematic study of the law. There have been one or two books published during the last few years which have been moulded in the same groove, as, for example, Mr. Albert Dicey's work on Parties to Actions. But an important subject like the law of evidence has not yet been touched by any writer of reputation such as Mr. Stephen. Yet a book like this cannot hope to super- sede existing clumsy, but useful treatises, such as that of Mr. Pitt Taylor, because judicial precedents are of so much value in legal arguments, that a collection of them will always be sought after by lawyers. The case most resembling that which happens to be under argument will be hunted out and used, as of more influence with the Bench than the most able reasoning. The real value of such a book as this is rather of an educational than a professional kind. It may do a great deal to produce accuracy and dearness of reasoning, and by degrees cause less reliance to be placed on what Mr. Tennyson has called, with unpoetical truth, "the wilder- ness of single instances."

There are two very clear divisions into which law--books may be divided, namely, into those which treat of the theory of a certain subject, and those which contain the actual, positive rules in force. To this latter class the Digest of the Law

of Evidence now under review belongs. The proper manner 'of writing these books is undoubtedly to place the subject-matter, as Mr. Stephen has done here, in a series of distinct propositions. If each of these propositions be clearly understood, they can be applied to various different seta of facts, and form a well-defined basis for legal arguments. The field is thus left clear for those other writers who treat of the theory and history of the subject, and thus the learner of law is enabled much more quickly and clearly to comprehend the subject which he is studying. But Eng- lish legal writers, with some eminent exceptions among those who have discussed the principles of law, have hitherto quite neglected this fundamental distinction ; and Mr. Stephen's book must be credited with showing most lucidly by example how the theory and practice of the law should be divided in legal literature. Another valuable effect of having the law distinctly-stated in this way is that it becomes so much more easy to remedy any defects that may be in it, which stand out with much greater clearness when stated shortly and distinctly. We have here done little more than point out some of the thoughts which this book must suggest,—to criticise its contents would be to write a treatise upon the English Law of Evidence. With regard, however, to the form of the work _itself, it would have been more convenient to the reader if the notes had been at the foot of each page, rather than at the end of the book. Nearly every article has a note to it of more or less length, and thus the reader is obliged to be continually turning the pages backwards and forwards.

Finally, it may be mentioned that the plan andthe distribution of the subject-matter are based on the Indian Evidence Act of 1872, so that when people come hereafter to considerKnglish law from an historical point of view, the effect of Indian legislation upon our home laws will probably be found to have been very considerable, and also most beneficial in its influence. Of course, this is a very recent feature in the history of English law, but at the same time, it is well worthy of being carefully noted by every one who is desirous of studying law for wider and more liberal reasons than the simple desire to collect fees and to advance in an influential _ profession.