that its principal exclusive tests are oath and cross-examination; but that, on the ground of public policy, it also excludes testimony in certain other cases, such for instance as secrets of State, confidential communications, &c., that it annexes effect to instruments and to facts; to the former, according as they are of a public or private character; to the latter, by way of drawing from them certain inferences or presumptions.

§ 100. Our next great division is that of the kinds of evidence. We have thus completed the first part of our subject; namely, the Principles.

PART II.

THE KINDS OF EVIDENCE.

CHAPTER VII.

DIRECT AND INDIRECT EVIDENCE.

§ 101. We have already had occasion to glance at the various kinds of evidence, (See § 33-7, 65) when speaking of the difference between direct and indirect, mediate and immediate, testimony. You will meet with many terms applied to evidence, somewhat confusing at first, because they proceed from different principles of division, and unless this be borne constantly in mind, you will be apt to be puzzled by not getting the branches of the same division properly opposed to each other. Thus you will in the course of your reading meet with such terms as these: original and secondary evidence; primary and derivative; natural and artificial; mediate and immediate; and indirect; collateral and circumstantial; conclusive and presumptive; (f) real and personal; and the like. Many of these terms in point of fact being equally applicable to one and the same kind of evidence, you will fall into all sorts of cross-divisions, if you do not remember the various principles on which evidence has been divided. Thus, direct evidence may, as you will see, consist as well of real as of personal evidence; thus all hearsay evidence is necessarily mediate evidence; thus, all circumstantial evidence is in one sense collateral; though all collateral is not circumstantial.

§ 102. To explain this further; Evidence has been divided, as to

(f) For the sake of clearing away confusion, it may be useful here to explain briefly these terms. The use of them will become apparent as we proceed; and must be learnt by study of the text: the present note merely indicates their application. Direct and indirect have already been explained. Other terms for indirect, are collateral or circumstantial. Conclusive and presumptive evidence are generally used with reference to circumstantial evidence. Direct evidence is divided into immediate and mediate. For the first, primary and original are synonymous. For the latter derivative, hearsay, and in one sense, secondary. Original and secondary evidence are opposed to one another in another sense, that in which the inferior cannot be received till the absence of the superior quality of testimony is accounted for. Personal and real proceed from a consideration of the source of evidence as it comes from person or things. Artificial evidence is applied to that effect which the Law annexes to instruments and facts, which is merely conventional-as opposed to all other, which is natural.

kind, into real and personal evidence (and it is the division principally followed by Mr. Best in his work on the Principles of Evidence() from a consideration of the source when the testimony proceeds.) Thus, if it is delivered by a person, it is called Personal; if it is derived from a thing, it is called Real. But if we remember what was said in § 33-7, 65, as the nature of Direct Evidence, it will be apparent that Real evidence as well as Personal is often of a direct nature. Thus if the point to be proved is a contract, the contract itself, if it has been reduced to writing, when produced, and proved, is itself real direct evidence.

§ 103. The simplest method of explanation which occurs to me, is to bid you always call the point to be proved, the factum probandum and every fact which is produced for the purpose of proving the factum probandum, whether by itself simply, or in connection with other facts, a factum probans.

§ 104. Now whatever other quality these facta probantia may' possess, whatever other names we may call them by, this much is certain, that they must be always either Direct or Indirect. For Direct evidence is that which depends directly upon the senses, independent of any deduction to be drawn from the factum probans ; as where a personal witness declares, I saw A kill B with a sword: here, if the witness is worthy of full credit, the testimony is conclusive. Its validity rests solely upon its credibility. So, if a piece of real evidence be produced, for instance, a written contract, the moment the Judge is satisfied that it has been executed by the party to be charged by it, its credibility being established, it is direct evidence of the factum probandum, viz., that such a contract was executed by the party sought to be charged.

§ 105. But suppose, as often happens, there is no, or not sufficient, direct testimony forthcoming to establish the factum probandum, the Judge will receive indirect evidence, that is to say, evidence which proves or tends to prove the factum probandum indirectly, by means of certain inferences or deductions to be drawn from its existence; and its connection with other facta probantia. Here, the force of the evidence does not rest merely on the credit attached to the factum probans, but to the result which by a process of reasoning it indirectly establishes in the mind of the Judge and this is called circumstantial evidence. It is also called collateral evidence

(g) See Best, § 28, 190.

:

because it is not, as will be shown by example, the very factum probandum, as when A says "I saw B kill C," but something collateral to the factum probandum, from which the mind of the Judge infers the factum probandum. It is also called Presumptive, because upon certain principles which will be considered hereafter, the mind of the Judge raises certain presumptions upon it.

§ 106. Our first great division therefore of the kinds of evidence will be into Direct and Indirect.

§ 107. Before proceeding further, it may be well. in order more vividly to impress the mind of the student, to give an illustration of Indirect evidence, when he will be able to recognize all others whenever they occur. Suppose, for instance, the factum probandum is a murder which A is charged with having committed upon B. It may be that C has actually seen A commit the deed. His testimony to this effect is clearly direct evidence. But let us suppose a second ease, that there was no person about the spot-no direct testimony in short forthcoming-then, if it were found that there were marks of shoes on the snow about the house, and that those marks exactly corresponded with the shoes worn by the prisoner, these facts would be indirect evidence, because their force against the prisoner would not depend solely upon the faith placed in a witness who deposed to the evidence of his senses, but would depend upon a reasoning process carried on in the mind of the Judge, whence he would infer or presume from the collateral circumstances presented to him, that the prisoner was the person who had on the shoes which made the marks: though it will be seen that this is not a necessary or conclusive presumption, however probable; for it is possible that another person may have taken the prisoner's shoes for the express purpose of diverting suspicion from himself; a case which has actually occurred.

§ 108. This instance must suffice. Circumstantial testimony is of course as infinite in its variety as the whole round of human action. Its quality, and the rules under which it is receivable, will be considered at large hereafter.

$109. Bearing in mind this great leading distinction between Direct and Indirect evidence, let us now proceed to enquire into the first branch somewhat more closely. As I have above shown, there can be no doubt of the direct quality, when A says, "I saw such and such a fact," "I heard such and such a statement made by the plaintiff, or the defendant, or the prisoner. But suppose that the witness is not

reporting the evidence of his own senses, but that which he has heard from some third party, it is clear that he is still giving direct evidence. Because if it were admissible, and credited, its force would depend upon faith, and not upon inference. True it is, that the Law of Evidence does not, generally speaking, or except in certain cases which will be specified and examined hereafter, admit such testimony. But this is the result of the excluding tests of oath and cross-examination. The witness who on oath and subject to cross-examination reports the evidence of his own senses, gives immediate evidence; one permitted to report what some third person has told him, gives mediate evidence. He is in truth but a medium for communicating to the Judge what some other person, not before the Court, has said he saw or heard. (h) He is a mere conduit pipe. Whereas the evidence of the first description is im-mediate, delivered through any medium, but originally. dence must be divided into immediate and mediate.

that is to say, not Hence Direct Evi

§ 110. It is superfluous to dwell longer here on the first class of Direct Evidence-immediate.

§ 111 The second class mediate, or as it is more popularly termed Hearsay, is generally not receivable, () being excluded on the grounds already considered under the first head of our subject. It becomes necessary now to consider in detail those exceptive cases in which Hearsay is receivable.

(h) See § 65.

(i) Immediate is derived from in for non, and medium.

(k) In determining whether a piece of evidence tendered is hearsay or not, it is a good criterion to consider whether it is offered subject to an oath and to cross-examination. Suppose the evidence tendered is the deposition of a deceased witness in a former suit. Then the one test of oath is present; but if the testimony formerly delivered was in a suit not between the same parties, it is clear the present parties or at least one of them had not the opportunity of cross-examination, and the evidence is hearsay as against them. Prac tice alone gives facility in detecting grounds for objection. Multa multo exercitamentis facilius quam regulis percipies. The shape in which Hearsay is offered is often very suitable, and by no means in the vulgar form of a witness relating something he has heard from a third person not before the Court: when the absence of both tests-oath and cross-examination-is at once apparent. Yet it is of grave importance to the Pleader to take objection at the moment, for if Hearsay gets unobjected to on the Judge's note, he has a right to deal with it as he thinks fit