BOOKS.

MR. FITZJA...AIES STEPHEN'S INDIAN EVIDENCE ACT.*

Tax Indian Evidence Act,—" Introduction,—Stephen," is likely from its title and appearance to be classed by the public with Day's Conunon Law Procedure Act, Smith's Action-at-Law, and

other dreary publications, of possible utility to lawyers, and of certain dullness to ordinary readers. But the book is in reality a work of a remarkable character, full of interest to anyone, lawyer

or layman, who cares to speculate on the theory of law, and fall of instruction to all persons interested in codification. The

book consists, first, of an introduction on the theory of judicial evidence ; and secondly, of an edition of the Indian Evidence Act.

Neither part can be fully appreciated without reference to the other. The essay unfolds with extraordinary clearness and sagacity the real principles on which the Law of Evidence depends. The Act shows how the law may actually be codified in accordance with the principles expounded in the preface. Introduction and Act together make up 215 pages, containing such a statement both of the theory of evidence and of the actual law of evidence as cannot be collected from Mr. Pitt Taylor's two huge volumes, consisting, as they do, of 1,000 and odd pages. Mr. Stephen's work, in short, exhibits both the ease with which law can be made intelligible by a person who has grasped the principles on which it rests, and the clearness with which a body of legal rules can be stated under a sound and sensible system of codification. The book may be viewed either as an essay on the theory of evidence, or as an example of successful codification, and in each point of view it deserves careful study.

Looked at as an essay on legal theory, Mr. Stephen's book is a specimen of that rarest of productions, a work on the science of law produced by a person frilly acquainted with legal practice. There is, from beginning to end of the essay, not a trace of the affectation and jargon which mar the writings of so-called "scien- tific" lawyers, who know a great deal about jurisprudence in general, but nothing about the laws of England in particular ; or who if they know anything at all of English law, have only attained to the not very important conclusion that Blackstone expressed unsatisfactory theories in loose language. You cannot read a page of Mr. Stephen without feeling that he knows the law of evidence as administered by the Courts of common law from top ;to bottom ; and yet that while versed in the details of this depart- ment of law, he has got bold of the principles of which these details are merely the application. One result of this mastery at once of principle and practice is that he discerns and points out clearly both the merits of the English Law of Evidence and the reasons which make this branch of law, in spite of its merits, hard to be understood. Almost all laymen and not a few lawyers conceive that the defect of English law, and certainly of the rules of evidence, lies in the nature of the law itself. No view is more false :—

"It would be a mistake," writes Mr. Stephen, "to infer from the unsystematic character and absence of arrangement which belonged to the English Law of Evidence, that the substance of the law itself is bad ; on the contrary, it possesses in the highest degree the characteristic merits of English case law. English case law, as it is, to what it ought to be, and might be, if it were properly arranged, is what the ordinary conversation of a clever man on all sorts • The Indian Evidence Act : Intrsnluction, on the Principles of Judicial Ecidence. By James Fltziames Stephen, Q.O. London: Macmillan and Co.

of subjects, written down as he uttered it and as passing circumstances furnished him with a text, would be to the matured and systematic statement of his deliberate opinions. It is full of the most vigorous sense, and is the result of great sagacity applied to vast and varied experience."

This remark, which admits of wide application, is one which no one who wishes either to master or amend the law of' England ought ever to overlook. The defect of the law lies not

in its substance, but in a fault inherent to every system of law -grounded simply on- cases. Such a system inevitably puts for-

ward the exceptions to an undefined rule without stating the rule to which they are exceptions. A little thought will show that this must be so. The questions brought before a Court must always refer to some real or supposed exception to a rule of law. When the rule is perfectly plain and perfectly well known, so that its appli-

cation to the given circumstances of A and B is absolutely clear,. there is in reality no opportunity of appealing to a law court. Add to this, that those cases which simply illustrate the- application of a well-known rule are scarcely ever recorded. Add further, that a court, under the English system, at any rate,.

-is never called upon except accidentally to lay down a general principle of law. All it has to do is to determine the applica-

tion of the principle to a particular case, which one party contends' is within and the other without it. Hence as a matter of fact the-

rules of English law have in general to be inferred from the estab- lished exceptions to those rules. This is emphatically the case as- regards the Law of Evidence, principally because this branch of the law is almost wholly the result of judicial decisions, and de- pends to a very limited extent on legislative enactment. Sup- pose that a professor were expounding the theory of legal evidence, the way he would naturally proceed is clear. He- would carefully define the meaning he attached to the term "evidence." He would then lay down what kind of evidence was generally admissible ; and lastly, state the exceptions, if any, to the general rule. Now such an exposition is nowhere to be found in the law of England. The term "evidence"

is used even by the highest authorities with great laxity. It is always assumed both by judges and text-writers that everyone-

knows what evidence is admissible, and all that can be deduced from eases and judgments consists of certain indefinitely expressed maxims as to the kinds of evidence which the Courts will not receive. As Mr. Stephen well puts it, "that part of the law which professes to be founded on anything in the nature of a theory on- the subject may be reduced to the three following rules :—(L)

Evidence must be confined to the matters in issue. (2.) Hearsay evidence is not to be admitted. (3.) In all cases, the best evidence-

must be given."

Now anyone perceives who follows Mr. Stephen's careful- criticism of these three negative rules that they may be summed

up in the following statement :—" No evidence can be admitted. which is not relevant, and of evidence which is relevant, secondary evidence is inadmissible where primary evidence can be obtained."

To put the same thing in a somewhat different shape, the rule is thatall relevant evidence can be admitted. The main exception

embodied in the loosely-expressed maxim requiring the best evidence- is that secondary evidence cannot be admitted if primary evidence can be obtained. The whole meaning and character of the prin-

ciples of evidence depend therefore on what is relevant evidence. But you may read through every case and every text-book contained in

our law libraries without coming upon anything like a definition of what constitutes relevant evidence. The point, that is to say, on- which the whole law turns must be discovered by each man's own- sagacity applied to the decisions and dicta of judges. Mr. Stephen is not content with pointing out that the question of relevancy is-

the inquiry to which every one who studies the law of evidence must apply his mind, but answers this question in a way which we think must be satisfactory to everyone competent to follow out legal speculations. For this answer, which is considered theoretically in the introduction, and which is embodied practi-

cally in the Indian Evidence Act, we must refer our readers to Mr. Stephen's work. We cannot, however, leave the theoretical-

portion of his book without calling attention to one or two of the- many instances in which, when commenting upon English law, he lays down principles which apply to topics far more interesting to men of the world than the peculiarities of our law of procedure. It is, for example, hardly possible to find a neater statement, though it is unfortunately too long for quotation, of the differences- between scientific and legal investigations than that furnished by

the author of the Indian Evidence Act. Take, again, his criticism on the way in which English lawyers, owing in part to ambiguities in the term "evidence," have confused the two totally different in-

quiries whether a fact is relevant, and how it ought to be proved, supposing it to be relevant :—

"Whether an alleged fact," he writes, "is a fact in issue or a relevant fact, the Court can draw no inference from its existence till it believes it to exist, and it is obvious that the belief of the Court in the existence of a given fact ought to depend upon grounds altogether independent of the relation of the fact to the object and nature of the proceeding in which its existence is to be determined If the Court requires the production of the original when the writing of the letter is a crime, there can be no reason why it should be satisfied with a copy when the writing of the letter is the motive for a crime. In shorts the way in which a fact should be proved depends on the nature of the fact, and not on the relation of the fact to the proceeding."

This pregnant remark, is, no doubt, intended merely as a criticism on the mode in which the law sometimes allows a fact to be established in one manner, if the proceeding is, e.g., of a civil nature, and will not allow it to be established in the same manner in another proceeding, e.g., of a criminal nature. But the doctrine laid down is one of supreme importance in all historical investigations, for anyone moderately acquainted with such inquiries must have noticed the tendency of theor- ists to think, in the face of all logic, that the nature and im- portance of the fact to be proved makes it allowable to assume its existence on grounds which would certainly not be accepted as proof of any matter of less interest. Indeed, Mr. Stephen's specula- tion constantly suggests a regret that it did not lie within the scope of his work to trace out the very striking similarities between legal and historical inquiries. Historians, for instance, and lawyers have alike to bear constantly in mind that the amount of evidence of the fact or events into which they inquire is, strictly speaking, limited; and that whatever the importance of coming to a conclusion, a certain conclusion is often absolutely impossible,

because we have no means of increasing our knowledge of the facts on which a sound inference must be based. " With reference

to such,. events " (as the assassination of Cx3ar), "we are tied down inexorably to a certain limited amount of evidence. We know so much of the assassination of Ctesar as has been told us by the historians who are to us ultimate authorities, and we know no more." If this dictum could be impressed on the minds of histori- oal students, we should lose a good deal of pictorial writing and fascinating speculation, but we should be delivered from a whole mass of noxious romance and baseless theory which passes itself off as history.

The main interest to most persons of Mr. Stephen's book will, at the present moment, be of a practical character. "What light," the public will ask, "does the Indian Evidence Act throw on the possibility of successfully codifying English law?" It would be an impertinence to attempt to deal with this question, which might well occupy many articles, at the end of a review ; but as it is of great consequence that the public should see within what limits

Mr. Stephen's code of the law of evidence—for his work is in reality nothing less than this—affords an example which English

legislation can follow, we will make one or two observations which the question raised by Mr. Stephen's work suggests.

It is, in the first place, perfectly clear that neither the author of the Indian Evidence code nor any one else would dream of taking the Act exactly as it stands, and applying it to England. The Act is drawn for India, and pre-eminently fitted for the country for which it is drawn, in which English law must, so to speak, be taught as well as administered. This necessity gives the Act a didactic character, which would hardly be suitable to a law made for the use of the English Law Courts. The explanation and illustrations, for example, with which the Act is filled, are most interesting and ingenious ; but we doubt whether in an English code the explanations ought not in some cases to be omitted, and in others to appear not as explanations, but as provisoes. The utility, again, of the illustra- tions raises a question of great difficulty. Indian experience appears to be decidedly in their favour. In theory, they are open to the objection that they must be either superfluous or noxious. If they in reality merely illustrate, they merely exhibit in a concrete form the working of a rule, already expressed in general terms, which ought to be quite intelligible to a trained lawyer. If they do more than illustrate, they either extend or -curtail the rule itself. But if this be so, either the illustrations suggest an erroneous view of ,the law, or else the rule is not stated with sufficient precision. Still on this matter any sensible person will attach far more importance to the verdict of actual experience than to difficulties presented by a logical dilemma.

It is, again, impossible to read the Evidence Code without feeling that a codifier in India possesses advantages which will not be shared by his imitators in England. Mr. Stephen has been able to handle the law freely, and has quite rightly taken great advantage of this opportunity for free handling. The most important and certainly the boldest sections in the Act are those which contain a definition of relevancy, and the law gains a good deal by Mr. Stephen having thus undertaken to define what evidence is admissible ; but we doubt whether he or anyone else could take exactly the same course, in drawing up a code for England. Any English codifier would, be forced to follow the lines of the existing English law very strictly, and would thus frequently be driven to sacrifice a good deal in bold- ness of design.

But though these and other criticisms inevitably suggest them- selves to any lawyer who reads the Evidence Act, with a view to its direct application to England, no fair or intelligent critic can fail to see in the Act a beautiful specimen of practical codi- fication. It is something much more than the work of a skilful draftsman who expresses existing law in neat language. It is a successful attempt to sum up the existing law of evidence, in a series of perfectly intelligible propositions, arranged systematically, in accordance with a sound theoretical view. It is thus, at once, an exposition and a statement of the law ; and if not, in all respects, such an Act as could be immediately passed for application to England, certainly supplies a model on which any English Evidence Act ought to be drawn. To say the truth, we would ourselves far rather see the Indian Evidence Act applied to England exactly as it stands, than leave the law of evidence uncodified. Section 167 of itself introduces a practical reform which alone would make the Act of inestimable value. The extreme intricacy of the English Law of Evidence arises mainly from the fact that the improper admission or repetition of any evidence may render abortive the whole result of a trial. Section 167 does away with this anomaly, and pro- vides in substance that the improper admission or repetition of evidence shall not be ground for a new trial unless the Court are of opinion that this error led to a wrong result. If this single section were enacted, an end would at once be put to the futile quibbles about evidence by which the time of our Courts is wasted, and the result of the most deliberate verdicts rendered uncertain. For this particular reform we hope the public will hardly have long to wait ; nor ought it now to be long before the whole rules of evidence are reduced to a code. Mr. Stephen has shown us in substance how the thing can be done, and any one who wishes to do it has now little more left for him to do, than by certain slight modifications to turn the Indian Evidence Act into an admirable code of the whole English Law of Evidence.