The Rise of Modern Evidence Law

Iowa Law Review

Volumn 84, Issue 3, 1999, Pages 499-560

  Gallanis, T P ^a,b,c,d  

^a OHIO STATE UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

^c UNIVERSITY OF CHICAGO   (United States)

^d UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 0442326412     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (397)

1. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 1-2 (Boston, Little Brown 1898).
2. Id.
3. CROSS & WILKINS: OUTLINE OF THE LAW OF EVIDENCE 2 (Colin Tapper ed., 6th ed. 1986); see also CROSS & WILKINS: OUTLINE OF THE LAW OF EVIDENCE 2 (Roderick Bagshaw ed., 7th ed. 1996) (using the word "admissible" before the word "evidence").
4. CROSS & WILKINS: OUTLINE OF THE LAW OF EVIDENCE 2 (Colin Tapper ed., 6th ed. 1986); see also CROSS & WILKINS: OUTLINE OF THE LAW OF EVIDENCE 2 (Roderick Bagshaw ed., 7th ed. 1996) (using the word "admissible" before the word "evidence").
5. See, e.g., John H. Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY: 1700-1900, 13 at 33-34 (Antonio Padoa Schippa ed., 1987) [hereinafter Langbein, TRIAL JURY];
6. John H. Langbein, The German Advantage in Civil Procedure, 152 U. CHI. L. REV. 823, 829 (1985) (noting the economy of the German approach to taking and preserving evidence);
7. see also JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION 111-32 (2d ed. 1985) (describing the substantive and procedural aspects of the civil law system);
8. KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 280-84 (Tony Weir trans., 2d rev. ed. 1987) [hereinafter ZWEIGERT & KÖTZ].
9. On the common-law approach, see, e.g., ZWEIGERT & KÖTZ, supra note 4, at 284. Note, however, that civil jury trial has been largely abolished in England, JACKSON'S MACHINERY OF JUSTICE 72-73 (John R. Spencer ed., 8th ed. 1989), and that the rules of evidence differ between civil and criminal cases. See CROSS & TAPPER ON EVIDENCE 5-7 (Colin Tapper ed., 8th ed. 1995).
10. On the common-law approach, see, e.g., ZWEIGERT & KÖTZ, supra note 4, at 284. Note, however, that civil jury trial has been largely abolished in England, JACKSON'S MACHINERY OF JUSTICE 72-73 (John R. Spencer ed., 8th ed. 1989), and that the rules of evidence differ between civil and criminal cases. See CROSS & TAPPER ON EVIDENCE 5-7 (Colin Tapper ed., 8th ed. 1995).
11. A word of definition may be appropriate. All rules that channel proof into particular forms - the Statute of Frauds, for example - are in some sense exclusionary. So are rules restricting the competency of witnesses. But these broad senses of the term are not the ones normally used, see, e.g., 1 McCoRMICK ON EVIDENCE § 52 (John William Strong ed., 4th ed. 1992), nor are they the ones I am using in this Article. I am focusing on a narrower concept: rules that block the testimony of otherwise competent witnesses from reaching the jury.
12. THAYER, supra note 1, at 2.
13. Id.; see also 9 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 126-32 (1926); 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW 235-36 (3d ed. 1940). See Thomas P. Gallanis, La Preuve en 'Common Law': Wigmore Aujourd'hui, 23 DROITS 79-90 (1996) for a discussion of Wigmore's view.
14. Id.; see also 9 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 126-32 (1926); 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW 235-36 (3d ed. 1940). See Thomas P. Gallanis, La Preuve en 'Common Law': Wigmore Aujourd'hui, 23 DROITS 79-90 (1996) for a discussion of Wigmore's view.
15. Id.; see also 9 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 126-32 (1926); 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW 235-36 (3d ed. 1940). See Thomas P. Gallanis, La Preuve en 'Common Law': Wigmore Aujourd'hui, 23 DROITS 79-90 (1996) for a discussion of Wigmore's view.
16. EDMUND M. MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF LITIGATION 109 (1956); see also EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 243 (4th ed. 1963) (emphasizing the "adversary system" in connection with the rule against hearsay).
17. EDMUND M. MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF LITIGATION 109 (1956); see also EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 243 (4th ed. 1963) (emphasizing the "adversary system" in connection with the rule against hearsay).
18. See infra notes 12-15 and accompanying text.
19. The words "in their consistent application" deserve emphasis. I am not claiming that exclusionary rules were never discussed or asserted or enforced in litigation until the period covered by this Article. Rather, I am claiming that it was only during this time that these rules cohered and were consistently applied. As Professor Helmholz has recently written in a related context, If one is to speak of the existence of a privilege [against self-incrimination], the privilege must provide protection for ordinary witnesses and criminal defendants in the common run of cases. A legal rule must be a general one, available to all who choose to assert it, if it is to be both effective and treated as an established rule of law . . . . Political trials have always been special. . . . [I]t is to . . . ordinary trials that the historian must look. . . . Richard H. Helmholz, Introduction, in RICHARD H. HELMHOLZ ET AL., THE PRIVILEGE AGAINST SELF-INCRMINATION: ITS ORIGINS AND DEVELOPMENT 12-13 (1990).
20. See Langbein, TRIAL JURY, supra note 4, at 13-39; John H. Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263 (1978) [hereinafter Langbein, Criminal Trial]; John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Evidence]; John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047 (1994); John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1 (1983) [hereinafter Langbein, Shaping].
21. See Langbein, TRIAL JURY, supra note 4, at 13-39; John H. Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263 (1978) [hereinafter Langbein, Criminal Trial]; John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Evidence]; John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047 (1994); John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1 (1983) [hereinafter Langbein, Shaping].
22. See Langbein, TRIAL JURY, supra note 4, at 13-39; John H. Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263 (1978) [hereinafter Langbein, Criminal Trial]; John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Evidence]; John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047 (1994); John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1 (1983) [hereinafter Langbein, Shaping].
23. See Langbein, TRIAL JURY, supra note 4, at 13-39; John H. Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263 (1978) [hereinafter Langbein, Criminal Trial]; John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Evidence]; John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 MICH. L. REV. 1047 (1994); John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1 (1983) [hereinafter Langbein, Shaping].
24. See James Oldham, Truth-Telling in the Eighteenth-Century English Courtroom, 12 LAW & HIST. REV. 95 (1994); 1 JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY, 140-60 (1992) [hereinafter MANSFIELD MANUSCRIPTS].
25. See James Oldham, Truth-Telling in the Eighteenth-Century English Courtroom, 12 LAW & HIST. REV. 95 (1994); 1 JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY, 140-60 (1992) [hereinafter MANSFIELD MANUSCRIPTS].
26. See John M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 LAW & HIST. REV. 221 (1991); JOHN M. BEATTIE, CRIME AND THE COURTS IN ENGLAND, 1660-1800 352-76 (1986).
27. See John M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 LAW & HIST. REV. 221 (1991); JOHN M. BEATTIE, CRIME AND THE COURTS IN ENGLAND, 1660-1800 352-76 (1986).
28. See Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L. J. 713 (1983); Stephan Landsman, From Gilbert to Bentham: The Reconceptualization of Evidence Theory, 36 WAYNE L. REV. 1149 (1990); Stephan Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717-1817, 16 LAW & HIST. REV. 445 (1998); Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990).
29. See Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L. J. 713 (1983); Stephan Landsman, From Gilbert to Bentham: The Reconceptualization of Evidence Theory, 36 WAYNE L. REV. 1149 (1990); Stephan Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717-1817, 16 LAW & HIST. REV. 445 (1998); Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990).
30. See Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L. J. 713 (1983); Stephan Landsman, From Gilbert to Bentham: The Reconceptualization of Evidence Theory, 36 WAYNE L. REV. 1149 (1990); Stephan Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717-1817, 16 LAW & HIST. REV. 445 (1998); Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990).
31. See Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L. J. 713 (1983); Stephan Landsman, From Gilbert to Bentham: The Reconceptualization of Evidence Theory, 36 WAYNE L. REV. 1149 (1990); Stephan Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717-1817, 16 LAW & HIST. REV. 445 (1998); Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990).
32. Depending on the source, Gilbert's first name appears as "Geoffrey," "Jeffray," "Jeffrey," or "Jefferay." This Article follows the Dictionary of National Biography in referring to him as "Geoffrey." 7 DICTIONARY OF NATIONAL BIOGRAPHY 1204 (1908) [hereinafter DNB].
33. See JOHN N. ADAMS ET AL., A BIBLIOGRAPHY OF EIGHTEENTH CENTURY LEGAL LITERATURE 416 (1982) [hereinafter ADAMS]; 3 JOHN N. ADAMS & M.J. DAVIES, A BIBLIOGRAPHY OF NINETEENTH CENTURY LEGAL LITERATURE 267 (1996) [hereinafter ADAMS & DAVIES].
34. See JOHN N. ADAMS ET AL., A BIBLIOGRAPHY OF EIGHTEENTH CENTURY LEGAL LITERATURE 416 (1982) [hereinafter ADAMS]; 3 JOHN N. ADAMS & M.J. DAVIES, A BIBLIOGRAPHY OF NINETEENTH CENTURY LEGAL LITERATURE 267 (1996) [hereinafter ADAMS & DAVIES].
35. It is a pleasure to record that an earlier and expanded version of Part I was awarded the 1996 Mansergh History Prize at Cambridge.
36. GEOFFREY GILBERT, THE LAW OF EVIDENCE (Dublin, S. Cotter 1754). I am grateful to the Main Library at the University of East Anglia for allowing me to use the reprint of this treatise issued in 1979 by Garland Press (New York).
37. See, e.g., HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson & C. Lintot eds. 1761); FRANCIS BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT Nisi PRIUS (London, W. Strahan & M. Woodfall 2d ed. 1775) (based on work by Bathurst).
38. See, e.g., HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson & C. Lintot eds. 1761); FRANCIS BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT Nisi PRIUS (London, W. Strahan & M. Woodfall 2d ed. 1775) (based on work by Bathurst).
39. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 367 (Oxford, Clarendon 1768).
40. Gilbert died in 1726. BIOGRAPHICAL DICTIONARY OF THE COMMON LAW 206 (A.W. Brian Simpson ed., 1984). At his death, he left a number of unpublished manuscripts to his friend Charles Clarke "under special trust that none should be printed." Copy of the Will of the Lord Chief Baron Gilbert, in 1 GEOFFREY GILBERT, THE LAW OF EVIDENCE xliv (Capel Lofft ed., London, A. Strahan & W. Woodfall 1791) (commonly referred to as the fifth edition) [hereinafter LOFFT]. This request was ignored, and over the following forty years many of the manuscripts appeared in print. See Michael R.T. Macnair, Sir Jeffrey Gilbert and his Treatises, 15 J. LEGAL HIST. 252, 258 (1994). The historical evidence strongly suggests that Gilbert's manuscripts were not meant to be published separately. Professors Langbein and Simpson have suggested that Gilbert was writing a general abridgment or legal encyclopedia, BIOGRAPHICAL DICTIONARY, supra at 206 (entry by John H. Langbein), A.W. BRIAN SIMPSON, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 295-96 (1987); while Dr. Macnair has argued that Gilbert was composing a general analytical treatise akin to Blackstone's Commentaries, Macnair, supra, at 259.
41. Gilbert died in 1726. BIOGRAPHICAL DICTIONARY OF THE COMMON LAW 206 (A.W. Brian Simpson ed., 1984). At his death, he left a number of unpublished manuscripts to his friend Charles Clarke "under special trust that none should be printed." Copy of the Will of the Lord Chief Baron Gilbert, in 1 GEOFFREY GILBERT, THE LAW OF EVIDENCE xliv (Capel Lofft ed., London, A. Strahan & W. Woodfall 1791) (commonly referred to as the fifth edition) [hereinafter LOFFT]. This request was ignored, and over the following forty years many of the manuscripts appeared in print. See Michael R.T. Macnair, Sir Jeffrey Gilbert and his Treatises, 15 J. LEGAL HIST. 252, 258 (1994). The historical evidence strongly suggests that Gilbert's manuscripts were not meant to be published separately. Professors Langbein and Simpson have suggested that Gilbert was writing a general abridgment or legal encyclopedia, BIOGRAPHICAL DICTIONARY, supra at 206 (entry by John H. Langbein), A.W. BRIAN SIMPSON, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 295-96 (1987); while Dr. Macnair has argued that Gilbert was composing a general analytical treatise akin to Blackstone's Commentaries, Macnair, supra, at 259.
42. Gilbert died in 1726. BIOGRAPHICAL DICTIONARY OF THE COMMON LAW 206 (A.W. Brian Simpson ed., 1984). At his death, he left a number of unpublished manuscripts to his friend Charles Clarke "under special trust that none should be printed." Copy of the Will of the Lord Chief Baron Gilbert, in 1 GEOFFREY GILBERT, THE LAW OF EVIDENCE xliv (Capel Lofft ed., London, A. Strahan & W. Woodfall 1791) (commonly referred to as the fifth edition) [hereinafter LOFFT]. This request was ignored, and over the following forty years many of the manuscripts appeared in print. See Michael R.T. Macnair, Sir Jeffrey Gilbert and his Treatises, 15 J. LEGAL HIST. 252, 258 (1994). The historical evidence strongly suggests that Gilbert's manuscripts were not meant to be published separately. Professors Langbein and Simpson have suggested that Gilbert was writing a general abridgment or legal encyclopedia, BIOGRAPHICAL DICTIONARY, supra at 206 (entry by John H. Langbein), A.W. BRIAN SIMPSON, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 295-96 (1987); while Dr. Macnair has argued that Gilbert was composing a general analytical treatise akin to Blackstone's Commentaries, Macnair, supra, at 259.
43. Gilbert died in 1726. BIOGRAPHICAL DICTIONARY OF THE COMMON LAW 206 (A.W. Brian Simpson ed., 1984). At his death, he left a number of unpublished manuscripts to his friend Charles Clarke "under special trust that none should be printed." Copy of the Will of the Lord Chief Baron Gilbert, in 1 GEOFFREY GILBERT, THE LAW OF EVIDENCE xliv (Capel Lofft ed., London, A. Strahan & W. Woodfall 1791) (commonly referred to as the fifth edition) [hereinafter LOFFT]. This request was ignored, and over the following forty years many of the manuscripts appeared in print. See Michael R.T. Macnair, Sir Jeffrey Gilbert and his Treatises, 15 J. LEGAL HIST. 252, 258 (1994). The historical evidence strongly suggests that Gilbert's manuscripts were not meant to be published separately. Professors Langbein and Simpson have suggested that Gilbert was writing a general abridgment or legal encyclopedia, BIOGRAPHICAL DICTIONARY, supra at 206 (entry by John H. Langbein), A.W. BRIAN SIMPSON, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 295-96 (1987); while Dr. Macnair has argued that Gilbert was composing a general analytical treatise akin to Blackstone's Commentaries, Macnair, supra, at 259.
44. On the timing of Gilbert's treatise, see George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 617 n.161 (1997); Macnair, supra note 22, at 259, 266-67 n.107.
45. For background on Wigmore and his Treatise, see Gallanis, supra note 8, at 79.
46. See 1 WIGMORE, supra note 8, at 237. An earlier version of his account appeared as John Henry Wigmore, A General Survey of the History of the Rules of Evidence, in 2 ASSOCIATION OF AMERICAN LAW SCHOOLS, SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 691-701 (1908). It should be emphasized that the statement in the text does not raise a question of prescience. Writing in the early 1700s, Gilbert obviously did not know anything about mideighteenth-century practice. Rather, the issue I am discussing centers on whether Gilbert's treatise was still a useful summary of the law of evidence when it was published.
47. 1 WIGMORE, supra note 8, at 237.
48. Support for my position can be found in Langbein, Evidence, supra note 12, at 1171-74, 1181-90, but Langbein's point is somewhat different: namely, that English law narrowed the number of cases that had to go to oral jury trial and, within those cases, the issues on which oral evidence had to be received.
49. A detailed discussion of this context is not possible here, but it is important to remember that the scientific revolution of the sixteenth and seventeenth centuries changed not only the way scientists understood the natural world but also the way philosophers, historians and lawyers thought about the more abstract concepts of knowledge, truth, and proof. For an excellent survey, see BARBARA J. SHAPIRO, PROBABILITY AND CERTAINTY IN SEVENTEENTH-CENTURY ENGLAND: A STUDY OF THE RELATIONSHIPS BETWEEN NATURAL SCIENCE, RELIGION, HISTORY, LAW, AND LITERATURE 163-93 (1983).
50. Gilbert's abstract of Locke's Essay was published in 1752. Id. at 311 n.65.
51. GILBERT, supra note 19, at 1.
52. Id. at 1-2.
53. Id. at 130.
54. Id. at 2.
55. On the best evidence rule, see generally, Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 277 (1988).
56. GILBERT, supra note 19, at 3.
57. To take but two examples: copies of documents not authenticated by the appropriate officials, and the depositions of witnesses who were still available to testify, were not the most reliable proofs reasonably obtainable and therefore did not count as evidence. Id. at 18.
58. The section on written evidence occupies 41% of Gilbert's treatise, compared with 2% for the introduction, 9% for unwritten evidence, 4% for evaluating evidence, and 44% for the relationship between evidence and pleading. See Thomas P. Gallanis, Aspects of the Common Law of Evidence, 1754-1824, With Special Reference to the Rule Against Hearsay II-6 (Ph.D. diss., Cambridge University 1997).
59. In addition to the three broad questions, Gilbert's section on written evidence also considered a number of miscellaneous matters. These included the use of, among other things, verdicts and testimony from previous trials, GILBERT, supra note 19, at 22-29 (verdicts), 51-52 (testimony), comparisons of handwriting, id. at 41-42, depositions taken in Chancery, id. at 43-50, and (in attaint) evidence that was not given to the original jury, id. at 34.
60. E.g., Bills and answers filed on the Chancery's English side. Id. at 36-38.
61. See id. at 5-10 (memorials of the legislature and king's courts); id. at 10-36 (sealed versus unsealed public records); id. at 36-38 (public matters not of record); id. at 58-86 (private writings)
62. See id. at 6 (public records); id. at 43 (affidavits); id. at 69 (deeds).
63. E.g., compare id. at 8-9 with id. at 113-99.
64. See id. at 86-104.
65. GILBERT, supra note 19, at 86-104.
66. Id. at 86-87.
67. Id. at 100-01.
68. Id. at 103. The treatise did not specify what this age was, which implies that the age of common knowledge was itself common knowledge. The treatise also emphasized that there was not a fixed age at which children achieved competence; testimony from those under fourteen was unusual, but judges exercised a measure of discretion in individual cases. Id. at 104. For a somewhat later discussion, concentrating on the testimony of injured children, see 1 EDWARD HYDE EAST, A TREATISE ON THE PLEAS OF THE CROWN 441-44 (London, A. Strahan 1803).
69. GILBERT, supra note 19, at 107.
70. Id. at 107-08. Note that he did not mention what is perhaps the principal modern concern about hearsay, namely the inability to cross-examine the original speaker. For the current rationale of the hearsay rule, see CROSS & TAPPER, supra note 5, at 568-70.
71. GILBERT, supra note 19, at 108.
72. Id.
73. See supra note 37.
74. GILBERT, supra note 19, at 116.
75. Id.
76. See supra note 37.
77. Compare GILBERT, supra note 19, at 5-86, with id., at 86-104.
78. See, e.g., 1 McCoRMICK ON EVIDENCE, supra note 6, at §§ 5-32 (providing an extensive discussion of the rules governing the examination of witnesses and placing that discussion at the beginning of the treatise, immediately after the introduction).
79. Some readers may wonder why the year 1755 was chosen rather than 1754, the year in which Gilbert's treatise was published. The answer is straightforward. The notes of Sir Dudley Ryder (described in greater detail in the Appendix) provide a unique window on the rules of evidence in the middle of the eighteenth century. Because those notes cover the period from May 1754 to April 1756, the best choice for a single-year snapshot of the law of evidence in the 1750s is 1755.
80. See my comments in the Appendix on cases from the Court of Exchequer.
81. My comments in this section are based on the 108 cases from the King's Bench and Common Pleas that appear in the English Reports for the year 1755. For more information on nominate law reports and the English Reports, see the Appendix.
82. A fifth topic, dealt with by the royal courts but left untreated by Gilbert, concerned not the presentation of evidence in court but an aspect of pre-trial procedure: the right to inspect books. See Abery v. Dickenson, Sayer 250, 96 Eng. Rep. 870 (1755), and Mayor, Bailiffs, &c. of Exeter v. Coleman, Barnes 238, 94 Eng. Rep. 894 (1755). In both cases, the courts denied motions to inspect for lack of privity.
83. 2 Wils. K.B. 26, 95 Eng. Rep. 666 (1755) (case in C.P.).
84. Sayer 187, 96 Eng. Rep. 847 (K.B. 1755).
85. Sayer 179, 96 Eng. Rep. 844 (1755).
86. Barnes 467, 94 Eng. Rep. 1007 (1755). For parallel reports, see 2 Wils. K.B. 18, 95 Eng. Rep. 662, and Willes 665, 125 Eng. Rep. 1375.
87. 2 Wils. K.B. 23, 95 Eng. Rep. 665 (1755) (case in C.P.).
88. Sayer 223, 96 Eng. Rep. 860 (1755).
89. Sayer 209, 96 Eng. Rep. 855 (1755).
90. Sayer at 210-11, 96 Eng. Rep. at 855.
91. Seven out of 108 equals approximately 6.5 %.
92. My comments in this section are based on the 37 civil cases recorded in the notes of Sir Dudley Ryder for the year 1755. For more information on Ryder's notes, see the Appendix.
93. See, e.g., Clerk v. Dolling, 15 Ryder Notes 29, 30 (1755) [hereinafter Ryder N.B.].
94. See, e.g., Blisson v. Whitaker, 15 Ryder N.B. 45 (1755); Norket v. Newsham, 15 Ryder N.B. 50 (1755); Grant v. Williams, 15 Ryder N.B. 51 (1755).
95. See, e.g., Thomas d. James v. Reeve, 15 Ryder N.B. 27 (1755).
96. Roberts v. Clifton, 15 Ryder N.B. 19 (1755).
97. Id. at 20.
98. Perry v. Gorham, 16 Ryder N.B. 1 (1755).
99. Id. at 1-5, 9.
100. See, e.g., Gattey v. Richardson, 15 Ryder N.B. 41, 42-43 (1755); Morrough v. Jalabert, 15 Ryder N.B. 56, 57-58 (1755).
101. See, e.g., Roberts v. Peake, 15 Ryder N.B. 52, 52-53 (1755).
102. See generally Ryder N.B., passim. It is partly for this reason that I reject one notion that might be gleaned from an inaccurate reading of Professor Langbein's article - namely, that a shift from contractual to tort-based actions may have contributed in an important way to the development of the exclusionary rules. See Langbein, Evidence, supra note 12, at 1178-79, 1183-84. While it is true that eighteenth-century law had a "preference for written evidence," id. at 1183, this meant only (a) that in particular instances a writing might be required, for example by the Statute of Frauds, and (b) that documentary evidence was considered on the whole more reliable than testimony. But this preference should not be taken to mean that eighteenth-century civil cases primarily encountered evidence in the form of writings and thus that rules limiting oral evidence did not have the opportunity to emerge. To the contrary, as Ryder's notes affirm, testimonial evidence was offered in great quantities, and lawyers and judges at the time could have easily objected to hearsay and opinion (for example) if they so wished. It is therefore all the more significant that they did not do so.
103. Raymond v. East India Co., 15 Ryder N.B. 69, 69-75 (1755).
104. Id. at 69.
105. Id. at 69, 71.
106. See infra notes 87-89.
107. See, e.g., Coron qui tam v. Daly, 15 Ryder NB. 16, 17 (1755); Chipperfield v. Dinning, 15 Ryder N.B. 34, 35 (1755); Stagg v. Adams, 15 Ryder N.B. 45, 46-48 (1755).
108. See, e.g., Clerk v. Dolling, 15 Ryder N.B. 29, 31; Mellish v. Marsh, 15 Ryder N.B. 60, 61; Fisher v. Maddox, 16 Ryder N.B. 10, 11-15 (1755).
109. 15 Ryder N.B. 27 (1754) (assault & battery).
110. Id. at 28.
111. See, e.g., CROSS & TAPPER, supra note 5, at 555-59.
112. See, e.g., Gobby v. Blisset, 15 Ryder N.B. 53, 54 (1755) (action for assault and battery).
113. Rex v. Pearse, 13 Ryder N.B. 23, 24 (1754) (assault and battery). Although this case and the next one are not from 1755, I have included them to show the sharp contrast with modern notions of expertise.
114. Griffin v. Wheatley, 12 Ryder N.B. 11a, 12 (1754).
115. 15 Ryder N.B. 56 (1755).
116. Id. at 57.
117. Perry, 16 Ryder N.B. 1, 2 (1755).
118. See Morrough, 15 Ryder N.B. 56, 57-58 (1755); Perry, 16 Ryder N.B. 1, 5.
119. Perry, 16 Ryder N.B. 1, 4-5.
120. Cunnick, 15 Ryder N.B. 37, 37-40.
121. My comments in this section are based on the following sources for 1755: 22 criminal trials reported in the notes of Sir Dudley Ryder, one criminal trial reported in the English Reports, and 355 criminal trials reported in the Old Bailey Sessions Papers. For more information on these sources, see the Appendix.
122. See, e.g., Rex v. Moore, Old Bailey Sessions Papers, April 1755, no. 177, at 161 [hereinafter OBSP]; Rex v. Darlow otherwise Barlow, OBSP April 1755, no. 192, at 180; Rex v. Welling, OBSP September 1755, no. 340, at 294.
123. Rex. v. Nichols otherwise Pryer, OBSP October 1755, no. 373, at 332.
124. See, e.g., Rex v. Golden et al., OBSP April 1755, nos. 198-201, at 183 (commitment to prison); Rex v. Philips, OBSP September 1755, nos. 363-364, at 325 (conviction in previous case).
125. See, e.g., Rex v. Clark, OBSP July 1755, no. 254, at 225; Rex v. Souther otherwise Keys, OBSP December 1755, no. 22, at 10.
126. See, e.g., Rex v. Robertson, OBSP July 1755, nos. 283-84, at 252 (accomplice absconded); Rex v. Reddy, OBSP September 1755, nos. 302-03, at 271 (servant too young to testify, according to witness).
127. Rex v. Bradford, OBSP July 1755, no. 267, at 232 (Winwood testified regarding what "somebody" said); Rex v. Hillyard, OBSP July 1755, no. 292, at 258 (stating Knight testified regarding what "a man" told him).
128. See, e.g., Rex v. Matthews, OBSP April 1755, no. 164, at 152-53 (witness testified to words deceased spoke three days before his death); Rex v. Safter, OBSP September 1755, nos. 330-32, at 280 (witness claimed that a dying man named his attacker).
129. Rex v. Carrol, OBSP October 1755, no. 394, at 358-59.
130. Rex v. Adcock otherwise Alcock, OBSP May 1755, no. 208, at 186-87; Rex v. Pool otherwise Easterby, OBSP May 1755, no. 217, at 191-92; Rex v. Folks, OBSP September 1755, no. 312, at 272-73; Rex v. Williams, OBSP October 1755, no. 378, at 336.
131. For an excellent study exploring inconsistencies in eighteenth-century evidence law, see Oldham, Truth-Telling, supra note 13, at 97-117.
132. See, e.g., Rex v. Bear, 14 Ryder N.B. 30, 31 (1755).
133. See, e.g., Rex v. Gift, OBSP January 1755, no. 66, at 55; Haines otherwise Hales, OBSP February/March 1755, nos. 96-97, at 83; Rex v. Billion, OBSP September 1755, no. 333, at 286. The one exception was Rex v. Morris, OBSP July 1755, nos. 265-66, at 230-31.
134. Rex v. Moody, OBSP January 1755, no. 76, at 65 (recording that the defendant's employer was asked whether the defendant "could distinguish between good and evil").
135. Rex v. Brown, OBSP December 1755, no. 39, at 34.
136. I do not mean to suggest a complete dearth of scholarship, see, e.g., CHRISTOPHER ALLEN, THE LAW OF EVIDENCE IN VICTORIAN ENGLAND (1997), but the early nineteenth century has not attracted anywhere near the amount of attention that has been focused on the period up to the 1780s. The most recent work on the early-nineteenth-century law of evidence is the ongoing project by Professor Friedman and Dr. Macnair to map the evolution of the hearsay rule. See Richard Friedman and Michael R.T. Macnair, The Emergence of Hearsay Law (June 23, 1996) (unpublished manuscript, on file with author). (I wish to thank Professor Friedman for giving me a copy of this draft.) The article correctly refers to Wigmore's treatise as still being the "standard historical account." Id. at 1-1.
137. I do not mean to suggest a complete dearth of scholarship, see, e.g., CHRISTOPHER ALLEN, THE LAW OF EVIDENCE IN VICTORIAN ENGLAND (1997), but the early nineteenth century has not attracted anywhere near the amount of attention that has been focused on the period up to the 1780s. The most recent work on the early-nineteenth-century law of evidence is the ongoing project by Professor Friedman and Dr. Macnair to map the evolution of the hearsay rule. See Richard Friedman and Michael R.T. Macnair, The Emergence of Hearsay Law (June 23, 1996) (unpublished manuscript, on file with author). (I wish to thank Professor Friedman for giving me a copy of this draft.) The article correctly refers to Wigmore's treatise as still being the "standard historical account." Id. at 1-1.
138. 1 WIGMORE, supra note 8, at 238.
139. Id. at 237-38. For an expanded discussion and commentary, see Gallanis, supra note 8, at 85-90.
140. 1 WIGMORE, supra note 8, at 238.
141. THOMAS STARKIE, A PRACTICAL TREATISE OF THE LAW OF EVIDENCE, AND DIGEST OF PROOFS IN CIVIL AND CRIMINAL PROCEEDINGS (London.J. & W.T. Clarke 1824).
142. Id. at 19.
143. Id. at 39.
144. Id. at 40.
145. Id. at 41.
146. 1 STARKIE, supra note 119, at 45.
147. Id. at 47.
148. Id. at 47-50.
149. Id. at 50.
150. Id.
151. 1 STARKIE, supra note 119, at 55-68.
152. Id. at 69-72.
153. Id. at 72-73.
154. Id. at 46.
155. Id. at 74-75.
156. 1 STARKIE, supra note 119, at 80.
157. Id. It is important to note, however, that a belief in Christianity was by no means essential; Jews, Muslims, Hindus, or "persons of any sect" were competent to testify. Id. at 81. In each instance, the court would alter the form of the oath to make it the most solemn according to the beliefs and background of the individual witness; a special oath even existed for matriculated members of the University of Cambridge. Id. at 82. (For members of Cambridge, the words "so help you Godwere replaced by "sic te adjuvet Deus et sancta Dei evangelia." Id. at 82-83 n.z.)
158. 1 STARKIE, supra note 119, at 83-84.
159. Id. at 88. This rule only applied to pecuniary and other "legal" interests, however; familial and "natural" ties, such as those between master and servant, did not for the most part prevent witnesses from testifying (the one exception here being the connection between husbands and wives, whom the law viewed as identical persons). Id. at 85. Note that the execution of a release might enable the testimony of a once-interested witness. Id. at 87.
160. Id. at 101.
161. 1 STARKIE, supra note 119, at 96. Depositions and examinations conducted without an opportunity for cross-examination were therefore inadmissible, as were the statements, entries or acts of any stranger. The one exception to this latter rule concerned dying declarations, and even then under very limited circumstances; such statements were only accepted in court if the declarant had been "in extremis and under the apprehension of approaching dissolution," conditions under which it was deemed unlikely that the declarant would have lied. Id. at 101.
162. Id. at 108.
163. Id. at 108-09.
164. Id. at 121-22.
165. Id. at 123-27. For the watered-down modern rule, see CROSS & TAPPER, supra note 5, at 282-84.
166. 1 STARKIE, supra note 119, at 127-28; CROSS & TAPPER, supra note 5, at 543-46.
167. 1 STARKIE, supra note 119, at 128-29; CROSS & TAPPER, supra, note 5, at 286-89.
168. 1 STARKIE, supra note 119, at 132; CROSS & TAPPER, supra note 5, at 284.
169. 1 STARKIE, supra note 119, at 133; cf. generally, CROSS & TAPPER, supra note 5, at 318-20.
170. 1 STARKIE, supra note 119, at 133; cf. generally, CROSS & TAPPER, supra note 5, at 318-20.
171. 1 STARKIE, supra note 119, at 145-49.
172. Id. at 138-44.
173. See generally, id. at 150-374.
174. See, id. at 152-54 (seals), 330-32 (subscribing witnesses).
175. See, id. at 152-60.
176. As an example of documents being admissible for one purpose but not for others, see 1 STARKIE, supra note 119, at 321 (private entries were not evidence for the person who had made them but were admissible against him, as a declaration against interest).
177. Id. at 380.
178. Id. at 381.
179. Id. at 381 n.z.
180. Id. at 381.
181. 1 STARKIE, supra note 119, at 381-82.
182. Id. at 381-84.
183. Id. at 389.
184. Id. at 389-90.
185. Id. at 392-93.
186. 1 STARKIE, supra note 119, at 391.
187. Id. at 392.
188. See generally, id. at 430-34.
189. For discussion, see 1 BAKER JOHN SELLON, THE PRACTICE OF THE COURTS OF KING'S BENCH AND COMMON PLEAS 485-86 (London, A. Strahan & W. Woodfall, 1792).
190. For background, see JOHN H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 157-59 (3d ed. 1990) [hereinafter BAKER, INTRODUCTION].
191. 1 STARKIE, supra note 119, at 435. See generally, BAKER, INTRODUCTION, supra note
192. at 100-01. For American practice around the same time, see Renée B. Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth Century America, 71 NOTRE DAME L. REV. 505 (1996).
193. 1 SELLON, supra note 167, at 486, 501-20.
194. 1 STARKIE, supra note 119, at 436; for examples, see the cases cited in note 190, infra. 172. Id. at 431 n.o (bills of exceptions); see JOHN H. BAKER, THE LEGAL PROFESSION AND THE COMMON LAW: HISTORICAL ESSAYS 298-301 (1986) (discussing the correction of errors in criminal cases). It should be noted here that the motion for a new trial was permitted in misdemeanor cases. See, e.g., Rex v. Parker, 3 Dougl. 242-43, 99 Eng. Rep. 634, 634 (K.B. 1783) (perjury); Rex v. Almon, 5 Burr. 2686, 2690, 98 Eng. Rep. 411,413 (K.B. 1770) (libel); Rex v. White, 1 Burr. 333, 334, 97 Eng. Rep. 338, 339 (K.B. 1757) (nuisance). For the status of these crimes as misdemeanors, see 4 BLACKSTONE, supra note 21, at 136-38 (perjury), 150-51 (libel), 167 (nuisance).
195. 2 STARKIE, supra note 119, at 1.
196. See generally, 2 & 3 STARKIE, supra note 119.
197. 2 STARKIE, supra note 119, at 364-75.
198. Id. at 365. For the very different modern position, see CROSS & TAPPER, supra note 5, at 346-53.
199. 2 STARKIE, supra note 119, at 369.
200. See 3 STARKIE, supra note 119, at 1753-58.
201. See supra Part I.C.
202. 1 WIGMORE, supra note 8, at 238.
203. Some readers may wonder why more than one year was included in the snapshot. The reason for this is straightforward. Without the Ryder notes or the Old Bailey Sessions Papers (described in the Appendix), it was necessary to widen the snapshot in order to include enough cases so that my remarks about civil and criminal trials would be well-supported. Even with a five-year window, the available reports of criminal trials are sufficiently scarce that my comments on the law of evidence in such trials are properly described as tentative. See note 218 infra and accompanying text.
204. My remarks in this section are based on the English Reports which for the years 1820-1824 contain approximately 800 reports of cases from the King's Bench and 395 reports of cases from the Common Pleas. On nominate law reporting and the English Reports, see the Appendix.
205. The examples are legion. For a sample from the King's Bench, see Lingard v. Messiter, 1 B. & C. 308, 107 Eng. Rep. 115 (K.B. 1823); Rivers v. Griffiths, 5 B. & Ald 630, 106 Eng. Rep. 1321 (K.B. 1822); Doe d. Lloyd v. Deakin, 4 B. & Ald. 433 K.B., 106 Eng. Rep. 995 (K.B. 1821); Doe d. Grimes v. Gooch, 3 B. & Ald. 664, 106 Eng. Rep. 804 (K.B. 1820). For a sample from the Common Pleas, see Lester v. Kemp, 2 Bing. 30, 130 Eng. Rep. 215 (C.P. 1824); Glasier v. Eve, 1 Bing. 209, 130 Eng. Rep. 85 (C.P. 1823); Calder v. Rutherford, 3 Brod. & B. 302, 129 Eng. Rep. 1301 (C.P. 1822); Stafford v. Hamston, 2 Brod. & B. 691, 129 Eng. Rep. 1133 (C.P. 1821).
206. See, e.g., Edwards v. Evans, 3 East 451, 102 Eng. Rep. 670 (K.B. 1803) (refusing to grant a new trial when one witness called to prove a certain fact was rejected for "incompetency," but another witness had established the same fact); Tyrwhitt v. Wynne, 2 B. & Ald.554, 106 Eng. Rep. 468 (K.B. 1819) (refusing to grant a new trial where an unexecuted deed, though admitted into evidence, was accorded little weight).
207. See Freeman v. Arkell, 2 B. & C. 493, 107 Eng. Rep. 467 (1824); Kine v. Beaumont, 3 Brod. & B. 288, 129 Eng. Rep. 1295 (K.B. 1822); Burt v. Walker, 4 B. & Ald.697, 106 Eng. Rep. 1092 (K.B. 1821); Rex v. Hunt, 3 B. & Ald. 566, 106 Eng. Rep. 768 (1820); Brewster v. Sewall, 3 B. & Ald. 296, 106 Eng. Rep. 672 (K.B. 1820); Hunt v. Andrews, 3 B. & Ald. 341, 106 Eng. Rep. 688 (K.B. 1820).
208. See Jones v. Simpson, 2 B. & C. 318, 107 Eng. Rep. 402 (1823); Warren v. Howe, 2 B. & C. 281, 107 Eng. Rep. 388 (1823); Boase v. Jackson, 3 Brod. & B. 185, 129 Eng. Rep. 1254 (1822); Boone v. Mitchell, 1 B. & C. 18, 107 Eng. Rep. 8 (1822); Coates v. Perry, 3 Brod. & B. 48, 129 Eng. Rep. 1200 (K.B. 1821); Williams v. Sawyer, 3 Brod. & B. 70, 129 Eng. Rep. 1208 (1821); Rex v. Inhabitants of Skeffington, 3 B. & Ald. 382, 106 Eng. Rep. 702 (1820).
209. See Walmsley v. Abbott, 3 B. & C. 218, 107 Eng. Rep. 715 (1824); Drake v. Marryat, 1 B. & C. 473, 107 Eng. Rep. 175 (1823); Wynne v. Tyrwhitt, 4 B. & Ald. 376, 106 Eng. Rep. 975 (1821).
210. See Richadson v. Mellish, 2 Bing. 229, 130 Eng. Rep. 294 (1824); Goss v. Watlington, 3 Brod. & B. 132, 129 Eng. Rep. 1233 (1822).
211. See Stewart v. Lawton, 1 Bing. 374, 130 Eng. Rep. 151 (1823); Orr v. Morice, 3 Brod.& B. 139, 129 Eng. Rep. 1235 (1821).
212. The one exception was Sells v. Hoare, 3 Brod. & B. 232, 129 Eng. Rep. 1272 (K.B. 1822), which held that an oath taken on the gospels by a Jewish witness did not entitle the losing party to a new trial; not only did such an oath remain morally binding, the court concluded, but also the witness had no room to testify falsely because the civil sanction of perjury remained in place.
213. The leading case was Bent v. Baker, 3 T.R. 27, 100 Eng. Rep. 437 (K.B. 1789).
214. See Evans v. Yeatherd, 2 Bing. 133, 130 Eng. Rep. 256 (1824) (applying the rule because the party had a direct interest in the outcome); Moody v. King, 2 B. & C. 558, 107 Eng. Rep. 491 (1824) (refusing to apply the rule because it was not a partnership transaction); Doddington v. Hudson, 1 Bing. 257, 130 Eng1 Rep. 104 (1823) (refusing to apply the rule because the witness had no interest in the verdict); Upton v. Curtis, 1 Bing. 210, 130 Eng. Rep. 85 (1823) (applying the rule because the witness had a direct interest in the outcome); Morgan v. Pryor, 2 B. & C. 14, 107 Eng. Rep. 288 (1823) (refusing to apply the rule because the bankrupt was not sufficiently competent); Bunter v. Warre, 1 B. & C. 689, 107 Eng Rep. 253 (1823) (refusing to apply the rule because parties were joint tenants); Hunter v. King, 4 B. & Ald. 209, 106 Eng. Rep. 914 (1821) (refusing to apply the rule because the party had no interest in the verdict); Ward v. Wilkinson, 4 B. & Ald. 410, 106 Eng. Rep. 987 (1821) (applying the rule because the witness was competent and his testimony would not affect the verdict in his favor).
215. Tomlinson v. Wilkes, 2 Brod. & B. 397, 129 Eng. Rep. 1020 (C.P. 1821); Carter v. Abbott, 1 B. & C. 444, 107 Eng. Rep. 165 (K.B. 1823).
216. See Doe d. Sutton v. Ridgway, 4 B. & Ald. 53, 106 Eng. Rep. 868 (K.B. 1820); Rex v. Mead, 2 B. & C. 605, 107 Eng. Rep. 509 (K.B. 1824).
217. See Doe d. Sutton v. Ridgway, 4 B. & Ald. 53, 106 Eng. Rep. 868; Johnson v. Lawson, 2 Bing. 86, 130 Eng. Rep. 237 (C.P. 1824).
218. See Doe d. Human v. Pettett, 5 B. & Ald. 223, 106 Eng. Rep. 1174 (K.B. 1821).
219. See Rogers v. Jones, 3 B. & C. 409, 107 Eng. Rep. 785 (K.B. 1824).
220. See Gurney v. Langlands, 5 B. & Ald. 330, 106 Eng. Rep. 1212 (K.B. 1822).
221. See Cromack v. Heathcote, 2 Brod. & B. 4, 129 Eng. Rep. 857 (1820); Bramwell v. Lucas, 2 B. & C. 745, 107 Eng. Rep. 560 (K.B. 1824).
222. See Clifford v. Burton, 1 Bing. 199, 130 Eng. Rep. 81 (C.P. 1823).
223. My comments in this section are based on the English Reports, which contain approximately 470 reports of trials atnisiprius between 1820 and 1824.
224. The examples are numerous. For a sample, see Williams v. Munnings, Ry. & Mood. 18, 171 Eng. Rep. 928 (K. B. 1824); Richardson v. Mellish, Ry. & Mood. 65, 171 Eng. Rep. 945 (K.B. 1824); Walmisley v. Abbot, 1 Car. & At. 309, 171 Eng. Rep. 1208 (K.B. 1824); Lacon v. Higgins, 3 Stark. 178, 171 Eng. Rep. 813 (K.B. 1822); Carlile v. Parkins, 3 Stark. 163, 171 Eng. Rep. 809 (K.B. 1822); Wihen v. Law, 3 Stark. 63, 171 Eng. Rep. 768; (K.B. 1821).
225. See, e.g., Doe d. Smith v. Cartwright, 1 Car. & P. 218, 171 Eng. Rep. 1169 (1824) (also reported at Ry. & Mood. 62, 171 Eng. Rep. 944); Hawkins v. Howard, 1 Car. & P. 222, 171 Eng. Rep. 1170 (K.B. 1824); Alexander v. Brown, 1 Car. & P. 288, 171 Eng. Rep. 1199 (K.B, 1824).
226. See Scott v. Waithman, 3 Stark. 168, 171 Eng. Rep 810 (K.B. 1822).
227. For a sample, see Price v. Boultby, 1 Car. & P. 466, 171 Eng. Rep. 1276 (1824); Parkins v. Moravia, 1 Car. & P. 376, 171 Eng. Rep 1238 (1824); Nicholson v. Smith, 3 Stark. 128, 171 Eng. Rep. 797 (1822); Childers v. Boulnois, Dowl. & Ry. N.P. 8, 171 Eng. Rep. 898 (1822); Catt v. Howard, 3 Stark. 3, 171 Eng. Rep. 747 (1820); Ellis v. Ellis, Gow 216, 171 Eng. Rep. 889 (1820).
228. The examples here are legion. For a small sample, see Clark v. Lucas, Ry. & Mood. 32, 171 Eng. Rep. 933 (1824); Martin v. Jackson, 1 Car. & P. 17, 171 Eng. Rep. 1083 (1823); Bottomley v. Wilson, 3 Stark. 148, 171 Eng. Rep. 803 (1822); Morgan v. Price, 3 Stark. 58, 171 Eng. Rep. 766 (1821); Mayer v. Meakin, Gow 183, 171 Eng. Rep. 879 (1820); Blannin v. Taylor Gow 199, 171 Eng. Rep. 885 (1820).
229. See Crowther v. Hopwood, 3 Stark. 21, 171 Eng. Rep. 753 (1823) (infamy) (also reported at Dowl. & Ry. N.P. 5, 171 Eng. Rep. 896); Sells v. Hoare, 1 Car. & P. 28, 171 Eng. Rep. 1089 (1823) (religion).
230. See, e.g., Sewell v. Stubbs, 1 Car. & P. 73, 171 Eng. Rep. 1107 (1824); Carlisle v. Eady, 1 Car. & P. 234, 171 Eng. Rep. 1176 (1824); Sinclair v. Stevenson, 1 Car. & P. 582, 171 Eng. Rep. 1326 (1824).
231. See, e.g., Doe d. Tilman v. Tarver, Ry. & Mood. 141, 171 Eng. Rep. 972 (1824).
232. See, e.g., Doe d. Majoribanks v. Green, Gow 227, 171 Eng. Rep. 893 (1824).
233. See, e.g., Scott, 3 Stark. 168, 171 Eng. Rep. 810 (1824).
234. See, e.g., Schooling v. Lee, 3 Stark. 149, 171 Eng. Rep. 804 (1822); Gale v. Halfknight, 3 Stark. 56, 171 Eng. Rep. 766 (1821). Note that the judges also sometimes discussed the hearsay rule itself, without mentioning any of its exceptions. See, e.g., Foote v. Hayne, 1 Car. & P. 545, 171 Eng. Rep. 1310 (1824).
235. See, e.g., Malton v. Nesbit, 1 Car. & P. 70, 171 Eng. Rep. 1106 (1824).
236. See Lacon, 3 Stark. 178, 171 E.R. 813 (French law); Cosio v. DeBernales, Ry. & Mood. 102, 171 Eng. Rep. 958 (1824) (Spanish law).
237. See, e.g., Sutton v. Bank of England, Ry. & Mood. 52, 171 Eng. Rep. 940 (1824) (banking); Sewell v. Corp, 1 Car. & P. 392, 171 Eng. Rep. 1245 (1824) (veterinary profession); Wood v. Wood, 1 Car. & P. 59, 171 Eng. Rep. 1102 (1823) (cloth trade); Todd v. Reed, 3 Stark. 16, 171 Eng. Rep. 752 (1821) (insurance industry).
238. For example, to rebut the credibility of a witness see Sells v. Hoare, Goodwyn & Al., 1 Car. & P. 28, 34, 171 Eng. Rep. 1089, 1091 (witnesses called to swear that they would not believe the testimony of another) or in certain actions involving bad character Bate v. Hill, 1 Car. & P. 100, 171 Eng. Rep. 1118 (1823) (action for seducing the plaintiff's daughter).
239. Because the OBSP in the 1820s did not preserve the cut-and-thrust of evidentiary practice, see, e.g., the following cases from the January 1820 session: Rex v. Doran, no. 211; Rex v. Brown, no. 229; Rex v. Broophy, no. 251; Rex v. Turner, no. 271; Rex v. Summers, no. 313; see also the discussion in the Appendix. My comments in this section rely on the reports of Crown cases in the English Reports (approximately 150 reports for the years 1820-1824) and the six reliable accounts of ordinary criminal trials in Chadwyck-Healey's microfiche collection "British Trials, 1660-1900" [hereinafter BT, and discussed in the Appendix]: Rex v. Thurtell, BT nos. 384-85 (1824); Rex v. Mountague, BT no. 110 (1824); Rex v. Downing, BT no. 814 (1822); Rex v. Smith, BT no. 395 (1821); Rex v. Saxelbye, BT no. 126 (1821); Rex v. Hector, BT no. 166 (1820).
240. See the previous footnote. Note that the other pamphlets from 1820-1824 are either too compressed to be useful, see, e.g., Rex v. Sweet, BT no. 122 (1824), or were published by an interested party, see, e.g., Rex v. Wright, BT no. 172 (1822).
241. A deposition in one instance, see Rex v. Hobson, 1 Lewin 66, 168 Eng. Rep. 961 (1823), and documents from earlier proceedings in the other two, see Rex v. Shaw, Russ. & Ry. 526, 168 Eng. Rep. 932 (1823); Saxelbye, BT no. 126.
242. See Rex v. Waite, Russ & Ry. 505, 168 Eng. Rep. 920 (1823) (held competent); Rex v. Mott, Russ. & Ry. 435, 168 Eng. Rep. 884 (1821) (release).
243. For the contours of the hearsay rule, see Part III, infra. 222. Downing, BT no. 814, at 36.
244. Mountague, BT no. 110, at 137.
245. See, e.g., Thurtell, BT no. 384, at 279 ("I never heard any thing against his character for humanity."). For the modern position, see CROSS & TAPPER, supra note 5, at 346-53.
246. See Hector, BT no. 166, at 41 (trial for forcible entry and detainer of freehold) ("[Q.] When did you first hear that he claimed the house? - [A.] I never heard that Mr. Taylor claimed the house till the 12th of February, but by report.").
247. See Smith, BT no. 395, at 15.
248. See, e.g., Hector, BT no. 166, at 40; Thurtell, BT no. 384, at 236-37.
249. See Rex v. Jenkins, Russ. & Ry. 492, 168 Eng. Rep. 914 (1822).
250. See Rex v. Appelby, 1 Lewin 47, 168 Eng. Rep. 954 (1824).
251. Compare Rex v. Ackroyd, 1 Lewin 49, 168 Eng. Rep. 954 (1824) (confession taken in illegal custody held not admissible), with Rex v. Thornton, 1 Lewin 49, 168 Eng. Rep. 955 (1824) (confession taken in illegal custody held receivable).
252. See, e.g., Rex v. Wright, Russ. & Ry. 456, 168 Eng. Rep. 895 (1821) (medical evidence about insanity); Saxelbye, BT no. 126, at 174-79 (evidence from surgeon about decedent's medical condition); Rex v. Goldstein, Russ. & Ry. 473, 168 Eng. Rep. 904 (1822) (evidence about foreign treasury notes); Thurtell, BT no. 384, at 186-90 (evidence from surgeon about cause of death); Downing, BT no. 814, at 50-59, 71-73 (same).
253. See Rex v. Wright, Russ & Ry. 456, 458, 168 Eng. Rep. 895, 896.
254. See, e.g., CROSS & TAPPER, supra note 5, chs. 13-17; 2 McCORMICK ON EVIDENCE, supra note 6, chs. 24-34; see also Langbein, Evidence, supra note 12, at 1176 (calling the rule against hearsay the "centerpiece of the modern law").
255. CROSS & TAPPER, supra note 5, at 46; see Rex v. Sharp, 1 WLR 7, 11F (1988).
256. See generally, SIMPSON, supra note 22, at 273-320.
257. ADAMS, supra note 17, at 216, 416; ADAMS & DAVIES, supra note 17, microfiche subject catalog s.vv. "Evidence" and "Nisi prius." Please note that I am not counting Blackstone's Commentaries, which relied almost exclusively for its discussion of the law of evidence on Gilbert's treatise. See supra note 21 and accompanying text.
258. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
259. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
260. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
261. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
262. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
263. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
264. The treatises that do not contain information about hearsay are: ANON., A SUMMARY OF THE PRINCIPLES AND PRACTICE OF THE LAW OF PERSONAL AND MIXED ACTIONS AS CONNECTED WITH TRIALS AT NISI PRIUS (London, n.p. 1820); ISAAC ESPINASSE, A PRACTICAL TREATISE ON THE SETTLING OF EVIDKNCE FOR TRIALS AT Nisi PRIUS (London, J. Butterworth 1819); JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE (Edinburgh, A. Constable 1820); ANTHONY HAMMOND, A TREATISE ON THE LAW OF NISI PRIUS (London, W. Clarke 1816); DANIEL MACKINNON, THE PHILOSOPHY OF EVIDENCE (London, S. Brooke 1812); and WILLIAM SELWYN, AN ABRIDGMENT OF THE LAW OF NISI PRIUS (London, A. Strahan 1806-1808). have also excluded from the fifteen HENRY BATHURST, THE THEORY OF EVIDENCE (London, S. Richardson and C. Lintot 1761) for the reason given in the following footnote.
265. HENRY BATHURST & FRANCIS BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI PRIUS (London, H. Woodfall & W. Strahan 1767) [hereinafter INTRODUCTION]. For this Article, I have consulted the Dublin edition, published in 1768, and all subsequent references are to that edition. I should mention, in addition, that I have chosen to discuss the Introduction rather than Bathurst's earlier THEORY OF EVIDENCE, supra note 20, because their treatments of hearsay are virtually identical (compare INTRODUCTION, supra, at 417-19, with THEORY, supra note 20, at 111-13) and only the Introduction went through multiple editions. For publication information, see ADAMS, supra note 17, at 416.
266. JOHN MORGAN, ESSAYS UPON I. THE LAW OF EVIDENCE, II. NEW TRIALS, III. SPECIAL VERDICTS, IV. TRIALS AT BAR, AND V. REPLEADERS (London, J. Johnson 1789).
267. LOFFT, supra note 22. This edition is commonly referred to as the fifth edition of Gilbert's treatise, but it is so different that it deserves to be considered in its own right. Parenthetically, a word should be added about the spelling of Lofft's given name. It is printed on the cover page of his treatise as "Capel," but for the sake of consistency, see supra note 16, I have adopted the DNB's spelling of "Capell." 12 DNB, supra note 16, at 69.
268. ISAAC ESPINASSE, A DIGEST OF THE LAW OF ACTIONS AT NISI PRIUS (London, T. Cadell 2d ed. 1793). The first edition was published in 1789 but is not readily available today. See ADAMS, supra note 17, at 246. Espinasse was also a reporter, but his summaries were of notoriously poor quality. When the reports were cited in court, Mr. Justice Maule apparently "said with some emphasis that he did not care 'for Espinasse or any other ass.'" CHARTRES BIRON, WITHOUT PREJUDICE: IMPRESSIONS OF LIFE AND LAW 88 (1936).
269. ISAAC ESPINASSE, A DIGEST OF THE LAW OF ACTIONS AT NISI PRIUS (London, T. Cadell 2d ed. 1793). The first edition was published in 1789 but is not readily available today. See ADAMS, supra note 17, at 246. Espinasse was also a reporter, but his summaries were of notoriously poor quality. When the reports were cited in court, Mr. Justice Maule apparently "said with some emphasis that he did not care 'for Espinasse or any other ass.'" CHARTRES BIRON, WITHOUT PREJUDICE: IMPRESSIONS OF LIFE AND LAW 88 (1936).
270. THOMAS PEAKE, A COMPENDIUM OF THE LAW OF EVIDENCE (London, E. & R. Brooke & J. Rider 1801).
271. LEONARD MACNALLY, THE RULES OF EVIDENCE ON PLEAS OF THE CROWN (London, Butterworth 1802).
272. A TREATISE ON JUDICIAL EVIDENCE EXTRACTED FROM THE MANUSCRIPTS OF JEREMY BENTHAM, ESQ. (Etienne Dumont ed., London, J.W. Paget 1825); RATIONALE OF JUDICIAL EVIDENCE, ESPECIALLY APPLIED TO ENGLISH PRACTICE (John Stuart Mill ed., London, Hunt & Clarke 1827). On Bentham's authorship and the dating of these works, see Andrew D.E. Lewis, The Background to Bentham on Evidence, 2 UTILITAS 195, 203-16 (1990); Andrew D.E. Lewis, Bentham's View of the Right to Silence, 43 CURRENT LEGAL PROBLEMS 135, 138 (1990).
273. A TREATISE ON JUDICIAL EVIDENCE EXTRACTED FROM THE MANUSCRIPTS OF JEREMY BENTHAM, ESQ. (Etienne Dumont ed., London, J.W. Paget 1825); RATIONALE OF JUDICIAL EVIDENCE, ESPECIALLY APPLIED TO ENGLISH PRACTICE (John Stuart Mill ed., London, Hunt & Clarke 1827). On Bentham's authorship and the dating of these works, see Andrew D.E. Lewis, The Background to Bentham on Evidence, 2 UTILITAS 195, 203-16 (1990); Andrew D.E. Lewis, Bentham's View of the Right to Silence, 43 CURRENT LEGAL PROBLEMS 135, 138 (1990).
274. A TREATISE ON JUDICIAL EVIDENCE EXTRACTED FROM THE MANUSCRIPTS OF JEREMY BENTHAM, ESQ. (Etienne Dumont ed., London, J.W. Paget 1825); RATIONALE OF JUDICIAL EVIDENCE, ESPECIALLY APPLIED TO ENGLISH PRACTICE (John Stuart Mill ed., London, Hunt & Clarke 1827). On Bentham's authorship and the dating of these works, see Andrew D.E. Lewis, The Background to Bentham on Evidence, 2 UTILITAS 195, 203-16 (1990); Andrew D.E. Lewis, Bentham's View of the Right to Silence, 43 CURRENT LEGAL PROBLEMS 135, 138 (1990).
275. A TREATISE ON JUDICIAL EVIDENCE EXTRACTED FROM THE MANUSCRIPTS OF JEREMY BENTHAM, ESQ. (Etienne Dumont ed., London, J.W. Paget 1825); RATIONALE OF JUDICIAL EVIDENCE, ESPECIALLY APPLIED TO ENGLISH PRACTICE (John Stuart Mill ed., London, Hunt & Clarke 1827). On Bentham's authorship and the dating of these works, see Andrew D.E. Lewis, The Background to Bentham on Evidence, 2 UTILITAS 195, 203-16 (1990); Andrew D.E. Lewis, Bentham's View of the Right to Silence, 43 CURRENT LEGAL PROBLEMS 135, 138 (1990).
276. EAST, supra note 47.
277. ROBERT JOSEPH POTHIER, A TREATISE ON THE LAW OF OBLIGATIONS OR CONTRACTS (William D. Evans ed. & trans. London, A. Strahan 1806).
278. SAMUEL MARCH PHILLIPPS, A TREATISE ON THE LAW OF EVIDENCE (London, A. Strahan 2d. ed. 1815). The first edition was published one year earlier but is not readily available today. See 2 ADAMS & DAVIES, supra note 17, at 833.
279. JOHN FREDERICK ARCHBOLD, A DIGEST OF THE LAW RELATIVE TO PLEADING AND PRACTICE IN ACTIONS REAL, PERSONAL AND MIXED (London, J. Butterworth 1821); JOHN FREDERICK ARCHBOLD, A SUMMARY OF THE LAW RELATIVE TO PLEADING AND EVIDENCE IN CRIMINAL CASES (London, R. Pheney et al. 1822).
280. JOHN FREDERICK ARCHBOLD, A DIGEST OF THE LAW RELATIVE TO PLEADING AND PRACTICE IN ACTIONS REAL, PERSONAL AND MIXED (London, J. Butterworth 1821); JOHN FREDERICK ARCHBOLD, A SUMMARY OF THE LAW RELATIVE TO PLEADING AND EVIDENCE IN CRIMINAL CASES (London, R. Pheney et al. 1822).
281. In keeping with the discussion in Parts I and II, I am here referring to the rule against oral hearsay.
282. See, e.g., 1 LOFFT, supra note 22, at 279-80 (legitimacy, family relationships, pedigree, prescription, custom, general reputation, dying declarations); 1 MORGAN, supra note 239, at 433 (prior consistent and inconsistent statements).
283. 2 POTHIER, supra note 246, at 284-87; PHILLIPPS, supra note 247, at 202-04.
284. See GILBERT, supra note 19, at 107-08; INTRODUCTION, supra note 238, at 417.
285. 2 LOFFT, supra note 22, at 890.
286. PEAKE, supra note 242, at 7.
287. 2 POTHIER, supra note 246, at 283. It is interesting to note that while much of the modern law of evidence is blamed on the jury see, e.g., THAYER, supra note 1, at 235-36, only Starkie's treatise, at the end of our period, emphasized hearsay as a special problem for lay-men "unskilled in the nature of judicial proofs." 1 STARKIE, supra note 119, at 45. The earlier writers - and particularly those who focused on the absence of an oath - made no distinction between judges and juries when describing hearsay's uncertainty and lack of reliability. See, e.g., GILBERT, supra note 19, at 107-08; INTRODUCTION, supra note 238, at 417-19; 1 LOFFT, supra note 22, at 279-81; 2 LOFFT, supra note 22, at 889-91.
288. For a more detailed discussion, see Gallanis, supra note 37, at V-1 to V-80.
289. In the sample, only four cases raised questions of hearsay between 1754 and 1779: Rex v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779); Goodright d. Stevens v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (K.B. 1777); Sayre v. Henry, BT no. 325 (1776); Wright d. Clymer v. Littler, 1 W. Black. 345, 96 Eng. Rep. 192 (K.B. 1761) (also reported at 3 Burr. 1244, 97 Eng. Rep. 812).
290. See, e.g., Wright, 1 W. Black, at 346, 96 Eng. Rep. at 192.
291. See Goodright d. Stevens, 2 Cowp. at 594, 98 Eng. Rep. at 1259 (legitimacy and pedigree); Wright, 1 W. Black, at 346, 96 Eng. Rep. at 192 (dying declarations).
292. Sayre, BT no. 325, at 18.
293. In the sample, only two cases heard in banc between 1754 and 1779 presented a question of hearsay: Wright, 1 W. Black. 345, 96 Eng. Rep. 192, and Goodright d. Stevens, 2 Cowp. 591, 168 Eng. Rep. 202.
294. It should be noted that some types of hearsay were received without controversy. In civil cases, these included admissions or declarations against interest made bythe parties or their privies. See, e.g., Sayre, BT no. 325, at 14; Cecil, BT no. 290, at 15; Barttelot, BT no. 291, at 56. When the admissiblity of such statements was contested, it was not done on the basis of the rule against hearsay. See, e.g., Alban v. Pritchett, 6 T.R. 680, 101 Eng. Rep. 769 (1796) (question whether admission by wife can bind husband); Bauerman v. Radenius, 7 T.R. 663, 101 Eng. Rep. 1186 (1798) (question whether person making the admission was the real party in interest). And in criminal cases, too, witnesses regularly testified about statements made by the prisoner or about what they had "heard" concerning the prisoner's reputation. For examples from the January 1780 OBSP, see Rex v. McCormick, no. 45, at 59; Rex v. Walker, no. 50, at 74, 76; Rex v. Cullen, no. 65, at 81-82.
295. See, e.g., Barttelot v. Hawker, BT no. 291 (1790), at 42; Brown v. Phoenix Assurance Co., BT no. 896 (1789), at 29; Doe d. Mellish v. Rankin, BT no. 106 (1786), at 144-45; In re Arkwright, BT no. 560 (1785), at 160; Rex v. Mills, OBSP January 1785, no. 253, 291, 291 (ruling that a witness claiming to know directions because his master said so is no evidence at all); Sidney v. Perry, BT no. 614 (1782), at 13; Rex v. Gould, OBSP January 1780, no. 46, 61, 61; Rex v. Hall, OBSP January 1780, no. 83, 110, 113 (barring a witness from stating what another person said ina prosecution for stealing wood).
296. See, e.g., Rex v. Dingler, 2 Leach 561, 563, 168 Eng. Rep. 383, 384 (1791); Rex v. Woodcock, 1 Leach 500, 503-04, 168 Eng. Rep. 352, 353-54 (1789); Rex v. Radbourne, 1 Leach 457, 461-62, 168 Eng. Rep. 330, 332-33 (1787); Rex v. Drummond, 1 Leach 337, 337-38, 168 Eng. Rep. 271, 272 (1784).
297. See, e.g., Rex v. Parker, 3 Dougl. 242, 244, 99 Eng. Rep. 634, 635 (K.B. 1783).
298. See, e.g., Bateman v. Bailey, 5 T.R. 512, 513, 101 Eng. Rep. 288, 288 (K.B. 1794) (holding that a bankrupt cannot be called as a witness to prove his bankruptcy, but that "what was said by him at the time in explanation of his own act may be received into evidence").
299. See, e.g., Inhabitants of St. Sepulchre, 4 Dougl. At 388, 99 Eng. Rep. at 911; Inhabitants of Eriswell, 3 T.R. at 707-08, 100 Eng. Rep. at 815-16.
300. See, e.g., Foley, v. Henry, BT no. 306 (1785), at 21; Cecil v. Sneyd, BT no. 290 (1790), at 19-20.
301. See, e.g., Morewood v. Wood, 14 East 327, 329-30, 104 Eng. Rep. 626, 628-29 (K.B. 1791). For another report of this case, see 4 T.R. 157, 100 Eng. Rep. 948-49 (1791).
302. See, e.g., Davies v. Pierce, 2 T.R. 53, 54 100 Eng. Rep. 30, 31 (K.B. 1787); Doe d. Jones v. Richard, Peake Add. Cas. 180, 180, 170 Eng. Rep. 238, 238 (1798).
303. See, e.g., Reed v. Passer, Peake 303, 305, 170 Eng. Rep. 164, 165 (1794); Leader v. Barry, 1 Esp. 353, 354-55, 170 Eng. Rep. 382, 382-83 (1795).
304. See, e.g., Withnell v. Gartham, 1 Esp. 322, 325, 170 Eng. Rep. 371, 372 (1795).
305. See Inhabitants of Chadderton, 2 East at 29, 102 Eng. Rep. at 278 (A.B. 1801) (settlement of paupers); Weeks v. Sparke, 1 M. & S. 679, 686, 105 Eng. Rep. 253, 256 (1813) (private prescriptions).
306. See, e.g., Daniel v. Pitt, 6 Esp. 74, 75, 170 Eng. Rep. 834, 834-35 (K.B. 1806) (admitting statement by an individual who has since died); Rex v. DeBerenger, BT no. 474 (1814), at 189 (same).
307. See Anon., 1 Lewin 91, 91-92, 168 Eng. Rep. 971, 971 (1823). For modern analogs, see CROSS & TAPPER, supra note 5, at 619 (admissibility of hospital records); ADRIAN KEANE, THE MODERN LAW OF EVIDENCE 263-64 (4th ed. 1996) (statements about a physical sensation but not about its cause).
308. See generally, Gallanis, supra note 37, at V-47 to V-76.
309. See id. at IV-15, IV-26, V-3, V-7, and V-13.
310. See, Gallanis, supra note 37, at IV-6 to IV-15.
311. See Gallanis, supra note 37, at IV-15, IV-26, V-3, V-7, and V-13.
312. Compare the two-paragraph treatment of hearsay in GILBERT, supra note 19, at 107-08, with the considerably-expanded discussion in 1 LOFFT, supra note 22, at 279-81, and 2 LOFFT, supra note 22, at 889-91.
313. See Gallanis, supra note 37, at V-7, V-13.
314. See Wright d. Clymer v. Littler, 1 W. Black. 345, 96 Eng. Rep. 192 (K.B. 1761) (admitting evidence of a confession by a dead witness); Drummond, 1 Leach 337, 168 Eng. Rep. 271; 1 LOFFT, supra note 22, at 280.
315. See Goodright v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (K.B. 1777) (allowing evidence of a parent's declarations regarding a child's legitimacy after the parent's death); 1 LOFFT, supra note 22, at 279.
316. See Reed v. Passer, Peake 303, 170 Eng. Rep. 164 (K.B. 1794) (allowing hearsay evidence in a case involving the registration of a marriage); 1 LOFFT, supra note 22, at 279.
317. See, e.g., Morewood v. Wood, 14 East 327, 104 Eng. Rep. 626 (K.B. 1791); Walker v. Broadstock, 1 Esp. 458, 170 Eng. Rep. 419 (1795); 1 LOFFT, supra note 22, at 279.
318. See, e.g., Inhabitants of Eriswell, 3 T.R. 707, 100 Eng. Rep. 815; 2 ESPINASSE, supra note 241, at 785-86.
319. See, e.g., Foley, BT no. 306; Jones v. Perry, 2 Esp. 482, 170 Eng. Rep. 427 (1796); 2 ESPINASSE, supra note 239, at 784-86.
320. See, e.g., Bateman v. Bailey, 5 T.R. 512, 101 Eng. Rep. 288 (K.B. 1794).
321. The earliest instance in our sample was Hoare v. Allen, 3 Esp. 276, 170 Eng. Rep. 614 (1801). For the appearance of res gestae in the treatises, see Gallanis, supra note 37, at IV-26, IV-38.
322. See, e.g., Wright d. Clymer v. Littler, 1 W. Black 345, 96 Eng. Rep. 192 (1761); Rex v. Parker, 3 Dougl. 242, 99 Eng. Rep. 634 (1783); Outram v. Morewood, 5 T.R. 121, 101 Eng. Rep. 70 (1793).
323. See, e.g., Berkeley Peerage Case, 4 Camp. 401, 171 Eng. Rep. 128 (H.L. 1811); Doe d. Sutton v. Ridgway, 4 B. & Ald. 53, 106 Eng. Rep. 858 (1820).
324. See supra notes 252-55 and accompanying text.
325. See, e.g., 1 OLDHAM, MANSFIELD MANUSCRIPTS, supra note 13, at 144. Professor Langbein has recently questioned this working assumption but has left it to other scholars to test it. See Langbein, Evidence, supra note 12, at 1202 ("[A]ggressive adversary procedure in the criminal courts may have set the tone for civil practice as well. [But] I cannot, in a paper centered on sources of the 1750s, resolve issues that require research in the sources for later decades. I can, however, suggest the importance of such an inquiry.").
326. I read all cases that fell within six-year increments between 1745 and 1820 (in other words, 1745-50, 1755-60, and so on).
327. On the graph, the columns in black refer to objections by counsel. The columns in white refer to objections made by counsel or the trial judge.
328. Please note that I am referring here to objections raised by counsel (shown in Figure 1 in black). Interventions by judges also occurred, but these were very infrequent (see Figure 1, where the white bars represent the combined number of objections raised by counsel and judges).
329. ROBERT F.V. HEUSTON, LIVES OF THE LORD CHANCELLORS, 1940-1970 115 (1987).
330. As one writer put it in 1819:
331. There are few abuses at the Bar more crying . . . than the mode in which the examination of witnesses is sometimes conducted . . . . [A witness] may enter the box with a resolution to tell a plain straight-forward story, and to adhere closely to the facts within his own knowledge; but if he be not a man of more than ordinary firmness and acuteness, his purpose will be defeated by those who have attained such skill in confusing what is clear, and involving what is simple. CRITICISMS ON THE BAR 109-10 (London, W. Simpkin & R. Marshall 1819) (generally attributed to John Payne Collier).
332. For discussions of these reforms, see CECIL H.S. FIFOOT, LORD MANSFIKLD 52-81 (1936); 1 OLDHAM, MANSFIELD MANUSCRIPTS, supra note 13, at 140-60.
333. See 1 WIGMORE, supra note 8, at 238.
334. BAKER, INTRODUCTION, supra note 168, at 466.
335. Langbein, Shaping, supra note 12, at 124-26; Beattie, Scales, supra note 14, at 226-30.
336. Beattie, Scales, supra note 14, at 227-28.
337. Id. at 227.
338. Id.
339. See Figure 3. These numbers concentrate on criminal practice in London. Information about lawyers on assize is considerably sketchier. There are a few hints here and there that lawyers were more prominent on assize, but none of these dates from the late eighteenth century. See, e.g., CHARLES COTTU, DE L'ADMINISTRATION DE LA JUSTICE CRIMINELLE EN ANGLETERRE ET DE L'ESPRIT DU GOUVERNEMENT ANGLAIS 93 (Paris, H. Nicolle 1820) (based on personal observations from the early nineteenth century); 1 OLDHAM, MANSFIELD MANUSCRIPTS, supra note 13, at 137 (quoting a letter written by Mansfield in August 1758). For the moment, the best guide is probably Professor Beattie's study of the Surrey assizes. The relevant records in Surrey do not survive for the years after 1774; but at least until then, Beattie argues persuasively, the appearance of counsel in Surrey and at the Old Bailey followed the same "broad pattern." BEATTIE, CRIME, supra note 14, at 360. It therefore seems reasonable to assume that the use of lawyers on assize also increased during the 1780s, even though at this point we have no way to quantify that rise.
340. Langbein, Shaping, supra note 12, at 129; see, e.g., Rex v. Smith, OBSP July 1755, no. 268, 232, 234-35.
341. See, e.g., Rex v. Davis, OBSP October 1755, nos. 390-92, 349, 354.
342. Rex v. Newton, OBSP January 1790, no. 128, 139.
343. See Beattie, Scales, supra note 14, at 250-58 (describing the Prisoner's Counsel Act of 1836).
344. For two examples out of many in the British Trials pamphlets, see Onslow v. Horne, BT no. 59 (1770), at 5-19, 31-39; Knowles v. Gambier, BT no. 57 (1757), at 4-11, 33-39, 51-56.
345. For recent commentary, see Beattie, Scales, supra note 14, at 232-36; Landsman, Contentious Spirit, supra note 15, at 548-57.
346. JOHN HAWKINS, THE LIFE OF SAMUELJOHNSON LL.D. 462 (Dublin, Chambers 1787). I owe this reference and the next one to Professor Beattie.
347. PATRICK COLQUHOUN, A TREATISE ON THE POLICE OF THE METROPOLIS 31-32, 246-47 (London, H. Fry 1796).
348. For example, Bearcroft's obituaries in the Annual Register, CHRON., 1796, at 44 and the GENTLEMAN'S MAGAZINE 1796, at 44 contain little information about his legal practice.
349. For example, Bearcroft's obituaries in the Annual Register, CHRON., 1796, at 44 and the GENTLEMAN'S MAGAZINE 1796, at 44 contain little information about his legal practice.
350. MASTERS OF THE BENCH OF THE HONOURABLE SOCIETY OF THE INNER TEMPLE, 1450-1883, AND MASTERS OF THE TEMPLE, 1540-1883 81 (privately printed, 1883) (available in the University Library, Cambridge, under shelfmark LE.7.122); 1 ALUMNI CANTABRIGIENSES: PART II, 1752-1900 202 (J.A. Venn ed., 1954); THOMAS A. WALKER, ADMISSIONS TO PETERHOUSE OR S. PETER'S COLLEGE, 1615-1911 304 (1912).
351. 1 LAW AND LAWYERS 182 (London, Longman et al. 1840) (generally attributed to Archer Polson) [hereinafter POLSON].
352. 1 DNB, supra note 16, at 69-70.
353. According to the OBSP, Adair's first session was held in October 1779; his last session was held in June 1789.
354. 1 DNB, supra note 16, at 69; see, e.g., Brown, BT no. 896.
355. For sketches of his life, see 7 DNB, supra note 16, at 907-08; EDWARD FOSS, A BIOGRAPHICAL DICTIONARY OF THEJUDGES OF ENGLAND 289-90 (London, John Murray 1870); 1 POLSON, supra note 317, at 179, 216-18. For more recent commentary, see Beattie, Scales, supra note 14, at 236-47.
356. 7 DNB, supra note 16, at 908.
357. Beattie, Scales, supra note 14, at 237.
358. Id.
359. See BAKER, INTRODUCTION, supra note 168, at 210-11. On law reporting in the early modern and modern periods generally, see PERCY H. WINFlELD, THE CHIEF SOURCES OF ENGLISH LEGAL HISTORY 183-99 (1925).
360. BAKER, INTRODUCTION, supra note 168, at 211.
361. Id. at 466; 1 WIGMORE, supra note 8, at 238. On nisi prius and trial procedure in general, see BAKER, INTRODUCTION, supra note 168, at 24-26.
362. SWEET AND MAXWELL'S GUIDE TO LAW REPORTS AND STATUTES 125-29 (4th ed. 1962) [hereinafter GUIDE]. The alert reader will have noticed that I did not mention the Court of Exchequer. Between 1754 and 1824, the reporting of Exchequer cases was highly sporadic, id. at 127, as one of the reporters, Robert Forrest, himself lamented. See 13 HOLDSWORTH, supra note 8, at 429 n.9. I have therefore concentrated in this Article on the nominate reports from the King's Bench and Common Pleas, and references to the King's courts at Westminster or to the central royal courts should be taken to exclude the Court of Exchequer.
363. See Langbein, Criminal Trial, supra note 12, at 267-68.
364. See THE OLD BAILEY PROCEEDINGS, PARTS ONE AND TWO: A LISTING AND GUIDE TO THE HARVESTER MICROFILM COLLECTION (n.d.) at 9.
365. Langbein, Criminal Trial, supra note 12, at 271. On the usefulness of the OBSP see also Thomas P. Gallanis, Review of Witnessing Insanity: Madness and Mad-Doctors in the English Court by Joel Peter Eigen, CAMB. L. J. Nov. 1995, at 643-44.
366. On the accuracy of the OBSP, see Langbein, Shaping, supra note 12, at 25-26.
367. For examples from the January 1810 session, see Rex v. Anderson, no. 75, at 49; Rex v. Walters, no. 108, at 68; Rex v. Cheshire, no. 133, at 81.
368. For a similar five-year sampling technique, see Landsman, Contentious Spirit, supra note 15, at 511; Landsman, Hundred Years, supra note 15, at 448.
369. See Langbein, Shaping, supra note 12, at 6-8; Langbein, Evidence, supra note 12, at 1180.
370. On the Ryder notes in general, see Langbein, Shaping, supra note 12, at 6-10. On the usefulness of judges' notes, see James Oldham, Eighteenth Century Judges' Notes: How They Explain, Correct and Enhance the Reports, 31 AM. J. LEGAL HIST. 9 (1987). For the possible origins of judges' notes as connected to motions in bane, see BAKER, INTRODUCTION, supra note 168, at 101.
371. See Langbein, Evidence, supra note 12, at 1177.
372. See, e.g., Fisher v. Perrit, RN 13:19, 21 (1754) (damages awarded to "defendant" rather than to plaintiff, although it is impossible to tell from the transcription whether the mistake was Ryder's or Perrin).
373. It is my intention to prepare a scholarly edition of Ryder's notes for the Selden Society, a task that would involve going back to the original shorthand.
374. For more detail about the collection, see Thomas P. Gallanis, The Chaduyck-Healey "British Trials" Collection, 19 J. LEGAL HIST. 84, 84-87 (April 1998).
375. See Langbein, Evidence, supra note 12, at 1181-93.
376. See 1 OLDHAM, supra note 13, at 140-60.
377. Regular reporting of trials at nisi prius began in 1790 with the well-regarded reports of Thomas Peake. See BAKER, INTRODUCTION, supra note 168, at 466 n.55; Gallanis, supra note 8, at 85. The nominate reporting of Crown cases between 1754 and 1824 was sporadic at best. See GUIDE, supra note 328, at 129.
378. The Berkeley Peerage Case, 4 Camp. 401, 171 Eng. Rep. 128 (H.L. 1811), is not included in these statistics because it was argued in the House of Lords rather than in one of the central royal courts. Still, it is an important case on the law of hearsay, it has been taken into account in the preparation of Part III of this Article. This footnote is included so that the reader will not reach the conclusion that the case has been overlooked.
379. See GUIDE, supra note 328, at 125-26. A word of correction is appropriate with respect to the reports of Henry Barnes and George Wilson, both of which are listed in the Guide under the heading of the King's Bench. Barnes focused exclusively on the Common Pleas; and while Wilson reported some King's Bench cases, he did not do so for any of the years covered by this Article.
380. Wright d. Clymer v. Littler, 1 W. Black. 345, 96 Eng. Rep. 192 (1761); Goodright d. Stevens v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (1777); Rex v. Parker, 3 Dougl. 242, 99 Eng. Rep. 634 (1783); Rex v. Inhabitants of St. Sepulchre, 4 Dougl. 336, 99 Eng. Rep. 910 (1785); Denn d. Goodwin v. Spray, 1 T.R. 466, 99 Eng. Rep. 1201 (1786); Davies v. Pierce, 2 T.R. 53, 100 Eng. Rep. 30 (1787); Rex v. Inhabitants of Eriswell, 3 T.R. 707, 100 Eng. Rep. 815 (1790); Morewood v. Wood, 14 East 327, 104 Eng. Rep. 626 (1791); Barry v. Bebbington, 4 T.R. 514, 100 Eng. Rep. 1149 (1792); Stead v. Heaton, 4 T.R. 669, 100 Eng. Rep. 1235 (1792); Outram v. Morewood, 5 T.R. 121, 101 Eng. Rep. 70 (1793); Bateman v. Bailey, 5 T.R. 512, 101 Eng. Rep. 288 (1794); Rex v. Inhabitants of Chadderton, 2 East 27, 102 Eng. Rep. 278 (1801); Rex v. Inhabitants of Ferry Frystone, 2 East 54, 102 Eng. Rep. 289 (1801); Rex v. Pinkerton, 2 East 357, 102 Eng. Rep. 405 (1802); Roe d. Brune v. Rawlings, 7 East 279, 103 Eng. Rep. 107 (1806); Rex v. Inhabitants of Erith, 8 East 539, 103 Eng. Rep. 450 (1807); Higham v. Ridgway, 10 East 109, 103 Eng. Rep. 717 (1808); Doe d. Webber v. Thynne, 10 East 206, 103 Eng. Rep. 753 (1808); Chapman v. Cowlan, 13 East 10, 104 Eng. Rep. 269 (1810); Doe d. Didsbury v. Thomas, 14 East 323, 104 Eng. Rep. 625 (1811); Barnes v. Mawson, 1 M. & S. 77, 105 Eng. Rep. 30 (1813); Anon v. Moor, 1 M. & S. 284, 105 Eng. Rep. 106 (1813); Weeks v. Sparke, 1 M. & S. 679, 105 Eng. Rep. 253 (1813); Freeman v. Phillipps, 4 M. & S. 486, 105 Eng. Rep. 914 (1816); Rex v. Inhabitants of Debenham, 2 B. & Ald. 185, 106 Eng. Rep. 334 (1818); Hunt v. Andrews, 3 B. & Ald. 341, 106 Eng. Rep. 688 (1820); Doe d. Sutton v. Ridgway, 4 B. & Ald. 53, 106 Eng. Rep. 858 (1820); Wynne v. Tyrwhitt, 4 B. & Ald. 376, 106 Eng. Rep. 975 (1821); Doe v. Human v. Pettett, 5 B. & Ald. 223, 106 Eng. Rep. 1174 (1821); Rex v. Mead, 2 B. & C. 605, 107 Eng. Rep. 509 (1824).
381. See Gallanis, supra note 37, at V-2. By way of comparison, I have also calculated for each decade the number of pages taken up by the King's Bench reports. This number increased significantly during the late eighteenth century, and may account for some of the growth in reported cases presenting questions of hearsay. But the largest increase in the number of pages occurred in the 1790s - at least five years after the sharp rise in hearsay cases - indicating that the rise in King's Bench hearsay cases cannot be explained simply by increased reporting. See id., at V-2 to V-4.
382. See GUIDE, supra note 328, at 125-26. Note that the reports of George Wilson, Sir William Blackstone, Sir John Eardley Wilmot, and Capell Lofft - listed in the Guide under the King's Bench - also contain cases heard in the Common Pleas
383. Roe d. Pellatt v. Ferrars, 2 Bos. & Pul. 542, 126 Eng. Rep. 1429 (1801); Ivat v. Finch, 1 Taunt. 141, 127 Eng. Rep. 785 (1808); Peaceable d. Uncle v. Watson, 4 Taunt. 16, 128 Eng. Rep. 232 (1811); Thompson v. Bridges, 8 Taunt. 336, 129 Eng. Rep. 411 (1818); Goss v. Watlington, 3 Brod. & B. 132, 129 Eng. Rep. 1233 (1822); Johnson v. Lawson, 2 Bing. 86, 130 Eng. Rep. 237 (1824); Rawson v. Haigh, 2 Bing. 99, 130 Eng. Rep. 242 (1824). These low numbers raise an obvious question: why did so few disputes about hearsay arise in the Common Pleas? Two answers seem likely. First, the existing studies of patterns in eighteenth- and nineteenth-century litigation indicate that during much of this period the King's Bench was considerably busier than the Common Pleas. See, e.g., Christopher W. Brooks, Interpersonal Conflict and Social Tension: Civil Litigation in England, 1640-1830, in THE FIRST MODERN SOCIETY 360-64 (A.L. Beier et al. eds., 1989). It should therefore not be surprising that the judges of the former encountered the rule against hearsay much more frequently than the judges of the latter. Second, some types of cases that could not have been heard in the Common Pleas may have been particularly likely to generate hearsay questions; cases concerning the settlement of paupers, for example, seem to have been rife with hearsay, and these went exclusively to the King's Bench. See, e.g., Rex v. Inhabitants of Chadderton, 2 East 27, 102 Eng. Rep. 278 (1801); Rex v. Inhabitants of Eriswell, 3 T.R. 707, 100 Eng. Rep. 815 (1790); Rex v. Inhabitants of St. Sephulchre, 4 Dougl. 336, 99 Eng. Rep. 910 (1785).
384. See BRITISH TRIALS 1660-1900: A GUIDE TO THE MICROFICHE EDITION, UNITS 1-3 212 (1991). A nineteenth case, Maddox v. M - y, BT no. 303 (1754), is not included in the sample because the pamphlet is incomplete; pages 9-16, which must contain most of the testimony for the plaintiff, have been omitted.
385. Sayre v. Henry, Earl of Rochford, BT no. 325 (1776); Sidney, Earl of Leicester v. Perry, BT no. 614 (1782); Foley v. Henry, Earl of Peterborough and Monmouth, BT no. 306 (1785); In re Arkwright, BT no. 560 (1785); Doe d. Mellish et al. v. Rankin, BT no. 106 (1786); Brown v. Phoenix Assurance Co., BT no. 896 (1789); Barttelot v. Hawker, BT no. 291 (1790); Cecil v. Sneyd, BT no. 290 (1790).
386. GUIDE, supra note 328, at 127.
387. Reed v. Passer, Peake 303, 170 Eng. Rep. 164 (1794); Withnell v. Gartham, 1 Esp. 322, 170 Eng. Rep. 371 (1795); Digby v. Stedman, 1 Esp. 328, 170 Eng. Rep. 373 (1795); Leader v. Barry, 1 Esp. 353, 170 Eng. Rep. 382 (1795); Walker v. Broadstock, 1 Esp. 458, 170 Eng. Rep. 419 (1795); Jones v. Perry, 2 Esp. 482, 170 Eng. Rep. 427 (1796); Doe d. James v. Richards, Peak Add. Cas. 180, 170 Eng. Rep. 238 (1798); Calvert v. Archbishop of Canterbury, 2 Esp. 646, 170 Eng. Rep. 484 (1798); Foulkes v. Sellway, 3 Esp. 236, 170 Eng. Rep. 599 (1800); Hoare v. Allen, 3 Esp. 276, 170 Eng. Rep. 614 (1801); Rowcroft v. Basset, Peake Add. Cas. 199, 170 Eng. Rep. 243 (1802); Goodtitle d. Braine v. Dew, Peak Add. Cas. 204, 170 Eng. Rep. 245 (1802); Robson v. Kemp, 4 Esp. 233, 170 Eng. Rep. 703 (1802); Doe d. Hindly v. Rickarby, 5 Esp. 4, 170 Eng. Rep. 718 (1803); Daniel v. Pitt, 6 Esp. 74, 170 Eng. Rep. 834 (1806); Fonsick v. Agar, 6 Esp. 92, 170 Eng. Rep. 840 (1806); Earl of Leicester v. Walter, 2 Camp. 251, 170 Eng. Rep. 1146 (1809); Hagedorn v. Reid, 3 Camp. 377, 170 Eng. Rep. 1416 (1813); Dunn v. Slee, Holt 399, 171 Eng. Rep. 284 (1816); Garr v. Fletcher, 2 Stark. 71, 171 Eng. Rep. 576 (1817); Doe d. Majoribanks v. Green, Gow 227, 171 Eng. Rep. 893 (1820); Gale v. Halfknight, 3 Stark. 56, 171 Eng. Rep. 766 (1821); Redford v. Birley, 3 Stark. 76, 171 Eng. Rep. 773 (1822); Schooling v. Lee, Stark. 149, 171 Eng. Rep. 804 (1822); Scott v. Waithman, 3 Stark. 168, 171 Eng. Rep. 810 (1822); Doe d. Tilman v. Tarver, Ry. & Mood. 141, 171 Eng. Rep. 972 (1824); Doe d. Smith v. Cartwright, 1 Car. & P. 218, 171 Eng. Rep. 1179 (1824); Irving v. Greenwood, 1 Car. & P. 350, 171 Eng. Rep. 1226 (1824); Foote v. Hayne, 1 Car. & P. 545, 171 Eng. Rep. 1310 (1824).
388. The reason for this intermediate lull is not apparent and will require further investigation. Note that the overall page length of the nisi prius reports followed a very different pattern of growth and thus cannot explain the ups and downs of hearsay litigation. See Gallanis, supra note 37, at V13.
389. The OBSP remain one of the best guides to the treatment of evidence in eighteenth-century criminal cases. In the years after 1800, however, the OBSP tended increasingly to summarize the testimony presented at trial, rather than reproducing in a more verbatim fashion the exchange of dialogue among the witnesses, the lawyers, and the trial judge. See, e.g., the reports of the following cases, taken more or less at random from the Old Bailey proceedings in January 1810: Rex v. Anderson, no. 75; Rex v. Walters, no. 108; Rex v. Field, no. 121; Rex v. Cheshire, no. 133. Accordingly, for the years 1800 to 1824, I have relied instead on the criminal-trial pamphlets included in the British Trials collection.
390. In other words, I have read all of the cases heard in January 1755, January 1760, January 1765, and so on.
391. Rex v. Gould, OBSP January 1780, no. 46; Rex v. Hall, OBSP January 1780, no. 83; Rex v. Mills, OBSP January 1785, no. 253.
392. Rex v. Grant, BT no. 84 (1800); Rex v. Lambert, BT nos. 102 and 419 (1810); Rex v. Mitford, BT no. 442 (1814); Rex v. Hatfield, BT no. 38 (1820); Rex v. J. Carlile, BT no. 167 (1821); Rex v. M. Carlile, BT nos. 168 and 893 (1821); Rex v. Williams, BT nos. 402 and 612 (1822); Rex v. Wright, BT no. 172 (1822), Rex v. Turnbridge, BT no. 132 (1823).
393. York Lent Assizes, BT no. 410 (1811) (I read the 30 Crown cases in this pamphlet, just to see whether any hearsay evidence was presented; but given the compression of the testimony, it is not surprising that I found no record of any hearsay at all, whether objected to or not); Rex v. Winter, BT no. 137 (1812); Rex v. Bellingham, BT nos. 143 and 757 (1812) (both accounts are too compressed to be useful); Rex v. Weston, BT no. 794 (1812); York Special Commissions, BT no. 600 (1813); Rex v. Thomas, BT no. 76 (1814); Rex v. Davison, BT no. 169 (1820); Rex v. Wedderburn, BT no. 171 (1820); Rex v. Waller, BT no. 715 (1821); Rex v. Flint, BT no. 818 (1821); Rex v. Quiney, BT nos. 853 and 857 (1821); Rex v. Bingley, BT no. 853 (n.d.); Rex v. Flint, BT no. 819 (1823); Rex V. Sweet, BT no. 122 (1824); Rex v. Thurtell, BT no. 123 (1824); Rex v. Fauntleroy, BT no. 849 (1824). Note that two other reports of Thurtell's case, BT nos. 384 and 385, have been included in my sample, despite some compression, because they contain a significant portion of the original dialogue in court.
394. See, e.g., Rex v. Peltier, BT no. 409 (1803); Rex v. Despard, BT no. 483 (1803); Rex v. Thistlewood, BT no. 383 (1817); Rex v. Watson, BT no. 393 (1817); Rex v. Burdett, BT no. 32 (1820).
395. Rex v. Wall, BT no. 215 (1802); Rex v. Folkard, BT no. 56 (1812); Rex v. Booth, BT no. 866; Rex v. Leary, BT no. 97 (1813); Rex v. DeBerenger, BT no. 474 (1814); Rex v. Downing, BT no. 814 (1822); Rex v. Mountague, BT no. 110 (1824).
396. GUIDE, supra note 328, at 129.
397. Rex v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779); Rex v. Drummond, 1 Leach 337, 168 Eng. Rep. 271 (1784); Rex v. Aickles, 1 Leach 390, 168 Eng. Rep. 297 (1785); Rex v. Radbourne, 1 Leach 457, 168 Eng. Rep. 330 (1787); Rex v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (1789); Rex v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791); Anon., 1 Lewin 91, 168 Eng. Rep. 971 (1823).