dicial opinions of the members of that court, during his administration, have been preserved, and little is known, even of their personal history, beyond their names, their appointments to office, and their deaths.

To a philosophical mind, there is little that is gratifying in the reflection, how few are the remembrances of the life and services of such a man as judge Lynde; while so many of his cotemporaries, by some act of physical bravery, or the issue of some fortunate military expedition, fill so large a space in the history of their times.

The life of judge Lynde was long, and its duties must have been various and arduous. At the head of the highest court in the province, a member of the council, a ruling elder in the church, a father of a family, and a wealthy and influential citizen, he seems to have sustained every relation in life with ability, with dignity, and honor.

A brief notice of his death in the Boston Evening Post, gives the following summary of his character: "Inflexible justice, unspotted integrity, affability and humanity, were ever conspicuous in him. He was a sincere friend, most affectionate to his relations, and the delight of all who were honored with his friendship and acquaintance."

Although he was not remembered as a military chief, or a partisan leader, he left behind him an enviable reputation as a scholar, a jurist, and a christian.

E. W.

ART. VII.-RULES OF EVIDENCE.

No. 11.-Hearsay Evidence.

In the case of confessional hearsay, the party, whose supposed hearsay declarations were used, was or might have been present and subject to confrontation and judicial interrogation. No reason, no sufficient reason, it has been seen,

exists for not enforcing his attendance and procuring his testimony under the best possible forms and with the highest securities for trustworthiness. Instead of which, rejecting his testimony, the common law receives his hearsay, confessional declarations under circumstances the most dangerous to the interests of justice, and in utter disregard of the true principles of correct judicial administration.

In the ordinary case of testimony, it is the testifying witness in whom credence is placed and upon whose testimony judgment is formed. In the case of hearsay, whether confessional or other, there are at least two and may be more witnesses, whose conjoint testimony, original and reported, serves as the foundation of judicial decision. When the percipient and the narrating witness are united in the same person, if he speak the truth, the cause terminates. In hearsay, the narrating is avowedly not the percipient witness; he speaks or purports to speak from the narration of others and those others are the efficient witnesses. There may have been no such supposed relators, whose alleged conversations the testifying witness reports; or, being such, their relations may have been partially or entirely false, either from simple incorrectness, incompleteness, temerity or design; or, being true, they may have been misunderstood, misrecollected or misreported.

The same evidence is designated by different names, according as the person, whose rights are thereby to be affected, varies; confession, when used against the party from whose lips it is supposed to have proceeded; hearsay, when offered to affect the rights and interests of individuals other than the party uttering or supposed to have uttered such statements or those succeeding to his rights. As confession, the party, the real witness attainable and excluded, the propriety of its reception has been examined. As hearsay, the witness dead or unattainable, the question of admis

sions is presented under a very different aspect. This question we propose to consider.

Hearsay being an inferior species of evidence should never be received, except in those cases, when from death or other sufficient cause, better proof is unattainable. This subject will therefore be examined in reference only to such cases, for if better evidence is attainable, no sufficient reason for withholding it can be imagined.

In the case now proposed for examination, the real witness, whose supposed statements, verbal or written, constitute the proof offered, has deceased, and his presence and judicial examination are unattainable. In the case of confession, the party being examinable if required, his hearsay declarations are not the best evidence; but here the witness being unexaminable, they are.

It is desirable, that all evidence offered in judicial proceedings should be true; but all evidence offered is not true; yet that circumstance furnishes no sufficient argument for the exclusion of any testimony, unless it can be judiciously foreseen and foreknown that such testimony will be false. To exclude, is to assume such falsehood as certain, before the evidence excluded has ever been heard.

It is equally desirable, that all testimony should have all possible and conceivable securities for trust-worthiness, but if from any cause, the attainment of one or more of those securities becomes physically impracticable, that will not suffice for the rejection of such evidence thus obtained, if it have any the slightest probative force. No circumstance, which gives the least clue to the detection of crime, is disregarded; nor should any evidence, howsoever weak, if of any force, be rejected.

The best evidence, the highest securities for testimonial veracity are required; but the best theoretic evidence, the best theoretic securities, may be unattainable. The best evidence, and the best attainable evidence, mean or should

name one and the same thing. "The meaning' of this rule is, not that courts of law require the strongest possible assurance of the matter in question, but that no evidence shall be given, which from the nature of things supposes still greater evidence behind in the party's possession or power." "It never excludes evidence, which is the best that can then be produced by the party."

If then, these principles be adopted, it would seem to follow, that when the witness is dead, his declarations in whatsoever form attainable should be received. But logical

conclusions, from principles ever so well established, will generally be viewed by the court as legal non sequiturs. Accordingly, this evidence logically admissible, legally is excluded.

Evidence may be true, whatever or howsoever much the securities for trustworthiness may be wanting. It may be true without, it may be false with them all. Whether it will be true or false is given to no prophetic vision to foresee.

All the utmost possible securities for trustworthiness should be obtained, but if from any cause those securities are unattainable, the argument thereby afforded is for caution and circumspection, not exclusion. When evidence with all known securities for truth can be had, nothing will justify the reception of that which is inferior in strength and trustworthiness. These securities unattainable, and the evidence excluded, it being the only existent proof of the subject-matter to which it refers, injustice, misdecision, irremediable, inexcusable, is the inevitable consequence.

While then on the one hand, no evidence should be received without, if obtainable with the highest securities for veracity, so on the other hand no testimony should be excluded on account of any deficiencies, which are unavoidable.

The whole conduct of life, its ordinary transactions, the

11 Phil. Ev. 176.

21 Stark. Ev. 39.

most important mercantile negotiations, all historical facts, the proofs of our religion, are based on evidence, which no court of common law would receive as deserving of any the slightest reliance. It is then abundantly manifest, that the judicial mind is governed by rules which are entirely disregarded in the ordinary transactions of life.

The epistles of Paul, the journal of Columbus, the letters of Washington, would not be adjudged competent to establish any fact, which being in issue might be determined by their production; not because, if received they would not satisfy every individual of the facts therein contained; but because, while having probative force sufficient to command the credence of every mind, to which they should be communicated, it is feared danger would be likely to arise from submitting such testimony to the consideration of the tribunal, by which rights are to be adjudicated upon. Were Paul, or Columbus, or Washington living, the reasoning by which this testimony would be excluded might be considered as unanswerable; dead, their evidence thus delivered satisfactory to every body else, to the judge alone seems without force.1

"In the common concerns of life, evidence of this nature is frequently, nay, usually acted upon without scruple; but in the ordinary affairs, there is, in general, no considerable

1 Not without force, but still worse having force and excluded. "By the rules of evidence established by the courts of law, circumstances of great moral weight are often excluded, from which much assistance might in particular cases be afforded in coming to a just conclusion lest

they should produce an undue influence upon the minds of persons unaccustomed to consider the restrictions and limitations which legal views on the subject would impose." Wright v. Totham, 34 C. L. R. 114. S. C. 33 C. L. R. 456. S. C. 28 C. L. R. 11. S. C. 2 Russ. & Mylne, 19. "Then may acts involving a great sacrifice of present interests and therefore as moral evidence, they may be very cogent; yet does the law more rigid and inflexible resist the weight of such moral evidence, although in the ordinary transactions of common life, common sense and experience might possibly yield to it." S. C. 33 C. L. R. 456–7.

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