The standard of legal relevance, particularly in criminal cases, is a very strict one. If the question at issue is how a man acted on one particular occasion, evidence of the way in which he acted on some other similar occasion is not generally admissible, though in ordinary life this would. be considered as sufficient. The effect of this rule is that (with some exceptions) evidence of the prisoner's past offences (if any) is excluded until after the jury has given its verdict, when it is admitted only to guide the judge in passing sentence. A man, it is said, must be tried upon the evidence and that alone, not upon his character or reputation.

The exceptions to this rule resolve themselves into cases the facts of which show a systematic course of conduct, e.g., the habitual receipt of stolen property, or practice of some particular form of fraud, &c. See Rex v. Ball (L. R. [1911], A. C. 47.)

As to the second maxim, it has now sunk to an altogether secondary and subordinate position, and is in practice limited to cases of documentary evidence. In such cases the original document must, if possible, be produced in Court; and a copy will not be admitted in evidence unless it is proved that the original has been destroyed or is in the possession of the other side, who will not produce it after notice to do so. At the same time there is no doubt that this maxim was one of the earliest and fundamental ideas underlying the law of evidence, and though it has now lost its original importance, it has profoundly influenced this branch of the law. Throughout the history of the Law of Evidence we see a struggle constantly going on between the principle embodied in this maxim and an opposite, competing principle, viz., the desire to save the time of the Court. The present Law of Evidence is largely the resultant of this struggle.

The rule as to hearsay is obviously based on the desire

to get the best evidence. The evidence must be that of an actual, percipient witness, not gathered at second hand. To this rule, of course, there are many exceptions.

The last of the four maxims is really not so much a rule of evidence in itself, as a great principle of our law based on common fairness. With it. may be bracketed a similar maxim, that no man shall be condemned without being heard in his defence.

One sometimes sees in text-books a heading, Rules of Evidence peculiar to Criminal Law. This distinction is somewhat misleading. In Rex v. Burdett (4 B. & Ald. 122), in 1820, Mr. Justice Best said: "It has been solemnly decided that there is no difference between the rules of evidence in civil and criminal cases." And in Leach v. Simpson (5 M. & W. 312), in 1839, Mr. Baron Parke said: "The rules of evidence must be the same in civil as in criminal cases." In Rex v. Ball (q. v. s.) similar principles were admitted in argument. What, then, is the meaning of the apparent contradiction implied in the phrase, "Rules of Evidence peculiar to Criminal Cases"? The explanation is this. The difference is one of degree, not of kind. In Criminal law a distinction must be drawn between what is "evidence to be heard" and what is "evidence to convict"; or, in other words, between the admissibility of evidence and the weight of evidence. So far as the former is concerned, there is no difference between the rules of evidence in civil and criminal cases; but so far as the latter is concerned, there is a very considerable difference. Perhaps the best way of putting it is to say that the rules of evidence peculiar to criminal cases are not different from, but are supplemental to, those in civil cases. The reason for this is obvious. English law attaches so great importance to the preservation of life and liberty, that the rules of evidence are applied much more strictly in criminal than in civil cases.

Thus the first rule of evidence is that the burden of proof is on the party who asserts or affirms, not on him who denies; but in criminal cases the prosecution is sometimes called on to prove negative averments-e. g., in false pretences. In addition to this, however, a much stronger degree of proof is necessary in order to obtain a conviction for a crime than to obtain a verdict in a civil case. In Cooper v. Slade (6 H. L. Cas. 772), in 1858, Mr. Justice Willes said: "In civil cases, the preponderance of probability may constitute sufficient ground for a verdict." But in Reg. v. White (4 F. & F. 384), in 1865, Mr. Baron Martin, in summing up a criminal case to a jury, said that in order to enable them to return a verdict against the prisoner, they must be satisfied beyond reasonable doubt of his guilt. And this as a conviction, created in their minds, and not merely as a matter of probability; and if it was only an impression of probability, their duty was to acquit.” Everybody who is in the habit of attending criminal Courts has heard similar language from both judges and counsel on many occasions. The direction that the jury must be satisfied "beyond reasonable doubt" is a somewhat vague and abstract one, but it is the only restriction which English law imposes upon juries in criminal cases. As to what constitutes a "reasonable doubt," it has been said in eloquent terms by a great Irish judge (Kendal-Bushe, C. J.): "To warrant an acquittal the doubt must be not light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as, upon a calm view of the whole evidence, a rational understanding will suggest to an honest heart; the conscientious hesitation of minds that are not influenced by party, preoccupied by prejudice, or subdued by fear."

Another safeguard which English law throws round the prisoner is to be found in the peculiar jealousy with which it regards confessions of guilt. It refuses to accept them

unless it is clearly shown that they were made perfectly voluntarily, and not induced by any threat or promise of a temporal advantage. On the other hand, it admits two classes of evidence which are rejected in civil matters. Contrary to the usual rule against hearsay evidence, it admits in cases of homicide what are known as "dying declarations," i.e., declarations made by a deceased person as to the cause of his death, when he has abandoned all hope of living. Again, a "deposition" when taken with proper formalities before a magistrate is admissible at the trial of the accused, provided the person who made it is dead or there is no reasonable probability that such person will ever be able to travel or give evidence, the deposition purports to be signed by the justice before whom it was taken, and reasonable notice has been given to the person against whom it is to be used of the intention to take such deposition, and he or his counsel or solicitor had opportunity of being present when the deposition was taken and of cross-examining the person who made the deposition. But if the deponent is still alive and well, though not within the British Dominions, his depositions cannot be used. He must come and give evidence in person. No similar provision exists in civil cases if a witness has died or is too ill to travel, unless the evidence has been taken abroad under a Commission.

Reference has already been made to the strong presumption in favour of a prisoner's innocence, and the fact that the burden of proof rests on the prosecution. A prisoner, it has been said, is entitled "to maintain a sullen silence;" and if the evidence produced against him is so weak that no reasonable man could accept it as establishing his guilt, it is the duty of the judge not to allow the jury to find him guilty, without calling on the prisoner to make any reply. To this rule, however, there is one exception which comes into play very frequently. It is known as the

"doctrine of recent possession," though this, like many other elliptical, abbreviated expressions, is a misnomer. The full expression would be "the doctrine of possession of recently stolen property." Where a man is found in possession of property that has been very recently stolen, the law throws on him the obligation of showing how he became possessed of it, and unless he can give a reasonable account of the way in which it came into his possession, he is deemed to have stolen it. This, we believe, is the only instance in English law where the burden of proving his innocence rests on the prisoner. The rule is one of obvious convenience and necessity, and one of the very oldest rules of English law. It was known and acted on in Saxon times; though it has been said in modern times that it is not a rule of law at all, but only a presumption. Be that as it may, it is a very convenient and useful rule of practice, which is applied with great frequency and fairness, as an innocent man has nothing to fear from it, ant it is rapidly hardening into a rule of law proper.

It is very curious to notice how the old prejudice against what used to be called "circumstantial evidence" has now almost completely died out. It was never anything but a dyslogistic expression, an advocate's mode of speaking contemptuously of his opponent's case. All evidence which is not direct and positive is circumstantial. In ninety per cent. of the cases which come before the criminal Courts nothing but circumstantial evidence is possible; and if it were not admitted most crimes would go unpunished. When a criminal meditates a crime he does not as a rule publish his intention from the house-tops. Secrecy is the very essence of criminality. Indeed, nothing is more surprising than the small accidents by which crimes are discovered; a button or a finger print frequently leads to detection.

(To be continued.)