Advanced search
Publication Cover
Oxford University Commonwealth Law Journal Volume 10, 2010 - Issue 1
Submit an article Journal homepage
196
Views
0
CrossRef citations to date
0
Altmetric
Original Articles

The Origins of the Indian Evidence Act

J D Heydon Justice, High Court of Australia. This article is based on a lecture given at the University of Oxford on 26 January 2010. I am indebted to Sarah Elliott, Belinda McRae, Kim Pham and Jane Taylor for their assistance. I am also very grateful to the library staff of the Kolkata High Court for their help in procuring Indian material.
Pages 1-76 | Published online: 27 Apr 2015

  • Imperial Legislative Council (India), Abstract of the Proceedings of the Council of the Governor-General of India, Assembled for the Purpose of Making Laws and Regulations, 1872 (Office of the Superintendent of Government Printing, Calcutta 1873) vol XI, 141 (‘Abstract 1872’).
  • Sir John Strachey was the uncle of Lytton Strachey, and served in India for most of his active life. Stephen dedicated his later work, Liberty, Equality, Fraternity, RJ White (ed) (2nd edn CUP, Cambridge 1967) to him.
  • Leon Radzinowicz, Sir James Fitzjames Stephen 1829–1894 and His Contribution to the Development of Criminal Law (Selden Society Lecture, Bernard Quaritch, London 1957) 54–5.
  • Sir Courtenay Ilbert, ‘Sir James Stephen as a Legislator’ (1894) 10 LQ Rev 222, 224.
  • Harold Nicolson, Curzon: The Last Phase 1919–1925 (Constable & Co Ltd, London 1934) 12.
  • Sir George Rankin, Background to Indian Law (CUP, Cambridge 1946) Preface.
  • James Bryce recorded Indian opinion In 1888–9 as holding it to be ‘too metaphysical, yet deficient in subtlety’: Studies in History and Jurisprudence (Clarendon Press, Oxford 1901) vol 1, 128. But he went on to say, at 128: ‘Yet even those who criticized its drafting admitted that it might possibly be serviceable to untrained magistrates and practitioners, and I have myself heard some of these untrained men declare that they did find it helpful’. This is undeservedly faint praise.
  • Frederic Maitland, The Life and Letters of Leslie Stephen (Duckworth & Co, London 1906) 8; Noel Annan, Leslie Stephen (Macgibbon & Kee, London 1951) 4–6.
  • In Mabo v Queensland (No 2) (1992) 175 CLR 1 (High Court of Australia (HCA)) [53] Deane and Gaudron JJ called him ‘probably the most knowledgeable of all the 19th century permanent heads of the Imperial Colonial Office’.
  • Cecil Herbert Stuart Fifoot, Judge and Jurist in the Reign of Victoria (Stevens and Sons Ltd, London 1959) 112.
  • Annan (n 8) 8; Alan George Lewers Shaw, ‘Sir James Stephen‘ in Oxford Dictionary of National Biography (OUP, New York 2004) vol 52, 437.
  • Radzinowicz (n 3) 7.
  • Radzinowicz (n 3) 9.
  • See Merle Mowbray Bevington, The Saturday Review 1855–1868: Representative Educated Opinion in Victorian England (AMS Press Inc, New York 1966) 373–81.
  • Eg, the subjects of the 55 Saturday Review articles reprinted in the three volumes of Horae Sabbaticae (Macmillan and Co, London 1892) are Joinville, Froissart, de Comines, Montaigne, Hooker, Laud, Chillingworth, ‘The Liberty of Prophesying’, Jeremy Taylor, Hacket, Clarendon, Hobbes, Bossuet, Locke, Bayle, Mandeville, Voltaire, Butler, Warburton, Middleton, Hume, Gibbon, Berkeley, Tucker, Paley, Burke, ‘The Federalist’, Paine, Bentham, Cobbett, De Maistre, ‘The Rights of Conscience’, ‘The Temporal and Spiritual Powers' and ‘Moral Controversies’. Leslie Stephen had some criticisms of these essays, but by quite lofty criteria: see The Life of Sir James Fitzjames Stephen (G P Putnam's Sons, New York 1895) 226; KJM Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (CUP, Cambridge 1988) 277 endnote 67.
  • James Fitzjames Stephen, A General View of the Criminal Law of England (Macmillan and Co, London 1863).
  • By 1868, according to Leslie Stephen, the figure had risen to £200: John Bicknell (ed), Selected Letters of Leslie Stephen (Macmillan Press Ltd, London 1996) vol 1, 60.
  • The reasons are persuasively stated by Sir Courtenay Ilbert, ‘The Life of Sir James Stephen’ (1895) 11 LQ Rev 383, 384–5.
  • James Fitzjames Stephen, Defence of the Rev Rowland Williams, DD (Smith Elder & Co, London 1862).
  • See Rande Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (OUP, Oxford 2008) 147. I am indebted to Dr Joshua Getzler for this reference.
  • Leslie Stephen (n 15) 232.
  • Quoted in Leslie Stephen (n 15) 349.
  • William Twining, ‘The Rationalist Tradition of Evidence Scholarship’ in Enid Campbell and Louis Waller (eds), Well and Truly Tried (Law Book Co Ltd, Sydney 1982) 234. See also William Twining, Rethinking Evidence: Exploratory Essays (2nd edn CUP, Cambridge 2006) 56.
  • Radzinowicz (n 3) 37.
  • Sir Owen Dixon, ‘The Law and the Constitution’ in Judge Severin Howard Zichy Woinarski (ed), Jesting Pilate and Other Papers and Addresses (Law Book Co Ltd, Melbourne 1997) 38–9.
  • For example, he wrote several letters to The Times attacking Gladstone's proposals for Irish home rule In 1886: Leslie Stephen (n 15) 461–2.
  • Leslie Stephen (n 15) 464–5.
  • Smith (n 15) 250–1, 317 endnote 32; James Colaiaco, James Fitzjames Stephen and the Crisis of Victorian Thought (St Martin's Press, New York 1983) 206–7.
  • His greatness is well analysed by John Mummery, ‘Lord Bowen of Colwood: 1835–94' in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (OUP, Oxford 2009) 283–311.
  • In 1872, as Attorney-General, Lord Coleridge had requested Stephen to draft an Evidence Code for England along the lines of the Indian Evidence Act. In 1873, he had urged Gladstone to appoint Stephen as Solicitor-General on the ground that he ‘is a very remarkable man with many elements of greatness in him’: quoted in Smith (n 15) 246. In 1884 he had the unusual experience of having his unreported summing up in the Queen's Bench Division in R v Foote attacked by Stephen, a fellow judge, in the Fortnightly Review: see James Fitzjames Stephen, ‘Blasphemy and blasphemous libel’ (1884) 35 Fortnightly Review (New Series) 289. And In 1891, it was Coleridge who drew to Stephen's attention the public criticism which led him to seek medical advice and to resign in consequence of it.
  • The proceedings are described in (1891) 90 The Law Times 431 and (1891) 26 The Law Journal 256. There is an error as to the date in Smith (n 15) 251.
  • Quoted in John Hostettler, Politics and Law in the Life of Sir James Fitzjames Stephen (Barry Rose Law Publishers Ltd, Chichester 1995) 106.
  • Stephen (n 2) 24–5.
  • Ernest Barker, Political Thought in England: 1848 to 1914 (2nd edn OUP, London 1947) 150.
  • Salisbury, like Stephen, had been driven to journalism by poverty. He committed the scandalous act of marrying so far out of his class as to trigger the refusal of his father, the second Marquess, to support him. By the lights of that nobleman, this point of view was reasonable. The lady was Georgina Alderson, daughter of Baron Alderson, who remains to this day a highly respected judge, but ‘irredeemably middle class' and wanting in money: see Andrew Roberts, Salisbury: Victorian Titan (Weidenfeld & Nicolson, London 1999) 30. In 1875–6 Salisbury, as Secretary of State for India, decided, after the spate of Indian legislation for which Stephen in particular had been responsible had slowed down, that there should be a resumption of activity on codification. See Sir Courtenay Ilbert, ‘Indian Codification’ (1889) 5 LQ Rev 347, 356–7.
  • Lytton Strachey, ‘The First Earl of Lytton’ (1907) 12 Independent Review 332, 333.
  • RJ White, ‘Editor's Introduction to James Fitzjames Stephen’ in Stephen (n 2) 3.
  • Radzinowicz (n 3) 5.
  • Thomas Escott, Society in London (2nd edn Chatto & Windus, London 1885) 142–3.
  • Stephen thought Hobbes to be ‘by far the most powerful thinker of his age’: James Fitzjames Stephen, Horae Sabbaticae (Macmillan and Co, London 1892) Second Series, 51.
  • See Sir James Fitzjames Stephen, A History of the Criminal Law of England (Macmillan and Co, London 1883) vol 2, 82. See also Smith (n 15) 54–60.
  • Radzinowicz (n 3) 10–11.
  • Radzinowicz (n 3) 12–13.
  • See n 41.
  • Mark DeWolfe Howe (ed), Holmes—Laski Letters (Harvard University Press, Cambridge Massachusetts 1953) vol 2, 1207–8.
  • Mark DeWolfe Howe (ed), Holmes—Pollock Letters (Harvard University Press, Cambridge Massachusetts 1941) vol 1, 21.
  • Edmund Cahn, ‘Fact-Skepticism: An Unexpected Chapter’ (1963) 38 New York UL Rev 1025, 1026. Particular borrowings from Stephen's A General View of the Criminal Law of England (n 16) used in Holmes' review of Roscoe's Digest of the Law of Evidence in Criminal Cases (6th edn) in Oliver Wendell Holmes, ‘Book Notices’ (1867) 1 American L Rev 375 are discussed in Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years 1841–1870 (Harvard University Press, Cambridge Massachusetts 1957) vol 1, 267–8; see also Howe (n 46) 213, 227.
  • Richard Posner, Overcoming Law (Harvard University Press, Cambridge Massachusetts 1995) 261.
  • Sir James Fitzjames Stephen, A Digest of the Law of Evidence (Macmillan and Co, London 1876).
  • The 12th edition was In 1936, but it was reprinted with revisions In 1948.
  • See, eg, a New South Wales edition edited by Henry Giles Shaw: Sir James Fitzjames Stephen, A Digest of the Law of Evidence (Macmillan and Co, London 1909).
  • Coleridge made a speech acknowledging Stephen's authorship, after saying: ‘… he had never proposed to do more with the Bill this Session than to introduce it, print it for the consideration of Members, and, if he should have the opportunity, endeavour to pass it into law in a future Session’: Hansard HC vol 217 col 1559 (5 August 1873). The Bill—274—was then withdrawn, and was never reintroduced after the fall of the Gladstone government. Despite Coleridge's statement that he proposed to print it, and Stephen's statement that he believed it was ordered to be printed (see Stephen (n 49) iii), it does not in fact appear to have been printed: see Bills—Public (1873) vol 2, 355, where it is stated that Bill 274 was not printed. An officer of the Parliamentary Archives has advised that no copy exists in its possession. Radzinowicz (n 3) 51 incorrectly suggests that that Bill is what Radzinowicz describes as ‘The Code of Evidence, 69, 1872, Parl. Papers, Bills (1872), vol I, p 685‘: however, the Bill so referred to was introduced while Stephen was still in India. Intrinsically interesting though it is, it does not appear to be traceable to Stephen.
  • Stephen (n 49) iii–vii. Stephen makes it plain that the Bill and the Digest were intended to conform more closely to existing English law than the Indian Evidence Act did.
  • Stephen (n 49) vii.
  • Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and Punishments) (Macmillan and Co, London 1877).
  • Sir James Fitzjames Stephen and Sir Herbert Stephen, A Digest of the Law of Criminal Procedure in Indictable Offences (Macmillan and Co, London 1883).
  • Sir James Fitzjames Stephen, ‘Codification in India and England’ (1872) 18 Fortnightly Rev 644, 654. That was the Penal Code drafted by Macaulay in the 1830s but not enacted until 1860.
  • Colaiaco (n 28) 202–3; Stephen (n 57) 664–5.
  • John Hostettler, The Politics of Criminal Law: Reform in the Nineteenth Century (Barry Rose, Chichester 1992) 182–9; Hostettler (n 32) 175–97.
  • Oliver Wendell Holmes, Jr, ‘Speech to Suffolk Bar Association Dinner, 5 February 1885’ in Richard Posner (ed), The Essential Holmes: Selections From The Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr (University of Chicago Press, Chicago 1992) 222. Similarly, Sir Courtenay Ilbert called him ‘the ablest and most consistent advocate of English codification’: Ilbert (n 35) 366.
  • Editor's note to Ilbert (n 18) 386.
  • GH Knott, ‘Sir James Fitzjames Stephen, Bart’ (1892) 26 American L Rev 489, 493–4.
  • The main relevant provision is art 20(3): ‘No person accused of an offence shall be compelled to be a witness against himself’. It restricts, for example, s 27 (discussed at text to nn 234–5) which is construed so as to conform with it. See Law Commission of India, Sixty-Ninth Report on the Indian Evidence Act 1872 (New Delhi, 1977) (’Sixty-Ninth Report’) [11.27]–[11.41].
  • See, eg, the Indian Oaths Act 1873 (India); the Oaths Act 1969 (India); the Bankers' Books Evidence Act 1891 (India); the Commercial Documents Evidence Act 1939 (India).
  • Seventeen minor amendments were made later in 1872 by Act XVIII of 1872, and another was made in Act III of 1887: Whitley Stokes (ed), The Anglo-Indian Codes, Adjective Law (Clarendon Press, Oxford 1888) vol 2, 821. For other amendments up to 1912, see Bijay Kisor Acharyya, Codification in British India (SK Banerji, Calcutta 1914) 259. Numerous earlier and later Indian and English statutes have affected the law of evidence without changing the Indian Evidence Act (India): see Stokes 822–7 for those in force up to 1888. Amendments were made before and after 1947, but as a whole these amendments may be described as only minor, save for those geographic extensions made between 1948–51. In this century there have been three major groups of amendments. The Information Technology Act 2000 (India) permitted the reception of electronic records. In 2002, s 146 was amended so as to prevent questions being put to the prosecutrix in rape cases as to ‘her general immoral character’, and s 155(4), which had permitted proof of that character, was repealed: see Indian Evidence (Amendment) Act 2002 (India) ss 2 and 3. In 2006, s 154(2) was inserted. It provides that s 154(1), which gives the court a discretion to permit the person who calls a witness to cross-examine that witness, does not disentitle the person so permitted from relying on any part of that witness's evidence: Criminal Law (Amendment) Act 2005 (India) s 9. It was recommended by the Law Commission of India in One-Hundred-and-Eighty-Fifth Report on Review of the Indian Evidence Act 1872 (New Delhi 2003) (’One-Hundred-and-Eighty-Fifth Report’) 482–6 following a recommendation by the Law Commission in its 1977 Report: see Sixty-Ninth Report (n 63) [86.1]–[86.20]. There were other amendments of less general significance in the 20th century after independence, eg s 111A (presumptions as to offences in disturbed areas), s 113A (presumption as to abatement of suicide by married woman), s 113B (presumption as to dowry death) and s 114A (presumption as to absence of consent in certain prosecutions for rape).
  • In 1977 the Law Commission of India, in its Sixty-Ninth Report, carried out a lengthy and impressive examination of what it called ‘a model piece of legislation’ which was ‘entitled’ to ‘a place of pride in the Statute-book of India’: see Sixty-Ninth Report (n 63) i. But it recommended numerous changes. The Law Commission returned to a consideration of the Act in its One-Hundred-and-Eighty-Fifth Report in 2003. The One-Hundred-and-Eighty-Fifth Report, more than 1000 pages long, was equally impressive. It disagreed with some of the earlier proposals, agreed with others, and made some new proposals. However, even if these Reports were acted on, the fundamental structure of the Act would not be affected. Neither set of proposals has in fact been acted on to any significant extent. The Law Commission of India has examined particular parts of the Indian Evidence Act on other occasions and recommended changes, some of which have not been acted on (see, eg, Law Commission of India, One-Hundred-and-Fifty-Second Report on Custodial Crimes (New Delhi 1994) [11.6]), and some of which have (see, eg, ss 113A, 113B and 114A).
  • Ilbert (n 35) 367.
  • See Stokes (n 65) 849–50.
  • In some of these places it has been amended in ways which have not been paralleled in India itself. See Sixty-Ninth Report (n 63) [1.31]; MC Sarkar, SC Sarkar and Prabhas Sarkar (eds), Sarkar's Law of Evidence (16th edn Wadhwar and Company, Nagpur 2007) vol 2, 2144–5.
  • See Sixty-Ninth Report (n 63) [1.31]. Because it applied in Singapore, it operated in those Islands, and continued to do so after they became an Australian Territory.
  • Taslim Olawale Elias, British Colonial Law: A Comparative Study of the Interaction Between English and Local Laws in British Dependencies (Stevens, London 1962) 253, fn 16.
  • See, eg, in the High Court of Australia: Barry v Heider (1914) 19 CLR 197, 217–18 (discussing s 115 on estoppel, as considered in Sarat Chunder Dey v Gopal Chunder Laha (1892) LR 19 IA 203 (Privy Council)); Williamson v Ah On (1926) 39 CLR 95, 113, 115 (ss 101 and 106 on the burden and standard of proof); Ahern v The Queen (1988) 165 CLR 87, 98–9 (s 10—admissibility of things said, written or done by conspirators in reference to their common intention); Wilson v Anderson (2002) 213 CLR 401 [94] fn 124 (general); Weiss v The Queen (2005) 224 CLR 300 [24] (s 167 on appeals).
  • Smith (n 15) 7.
  • Leslie Stephen (n 15) 235.
  • Leslie Stephen (n 15) 234–5.
  • Sir James Fitzjames Stephen, The Story of Nuncomar and the Impeachment of Sir Elijah Impey (Macmillan and Co, London 1885) vol 2, 271.
  • Leslie Stephen (n 15) 233. For Stephen to have done so before 1869 would have been to repeat the mistake made by James Mill, who spent 12 years writing an erudite History of British India (Baldwin, Cradock and Joy, London 1817), but suffered two great deficiencies: he had never been there, and he spoke no word of any Indian language. In consequence, the work was marred by a profound and unattractive lack of sympathy. Stephen made a different but also stern criticism: that Mill, with ‘excessive dryness and severity of style’, had produced ‘an impression of accuracy and labour which a study of the original authorities does not by any means confirm’: Stephen (n 76) 149.
  • Aeneid, VI, 851–3: Tu regere imperio populos, Romane, memento: Hae tibi erunt artes; pacisque imponere morem, Parcere subjectis et debellare suberbos. Dryden's translation is: But Rome, ‘tis thine alone, with awful sway, To rule mankind and make the world obey: Disposing peace and war thy own majestic way. To tame the proud, the fettered slave to free—These are imperial arts, and worthy thee. Stephen quoted the original in Liberty, Equality, Fraternity (n 2) 113, after describing the pride which Roman governors must have had as civilisation spread over the world under the protection of Roman armed force.
  • According to Sir Harold Nicolson, Stephen said: ‘There is in the Asian Continent an empire more populous, more amazing, and more beneficent than that of Rome. The rulers of that great dominion are drawn from the men of our own people’. These words produced upon George Curzon an apocalyptic effect. ‘Asia’, ‘Continent’, ‘Empire’, ‘amazing’, ‘beneficent’, ‘Rome’, ‘rulers’, ‘dominion’, ‘men’, ‘our own people’,—such were the watchwords which thereafter guided his life. ‘Ever since that day’, he confessed in 1896, ‘the fascination and sacredness of India have grown upon me’. See Nicolson (n 5) 12 (emphasis in original). See also Smith (n 15) 156–7.
  • Leslie Stephen (n 15) 237.
  • Sir James Fitzjames Stephen, ‘University Reform—Cambridge’ (1856) 2 The National Rev 328, 355. See also Stephen (n 57) 647.
  • Stephen's letter to The Times (London 4 January 1878), quoted by Eric Stokes, The English Utilitarians and India (Clarendon Press, Oxford 1959) 300.
  • John Roach, ‘James Fitzjames Stephen (1829–94)' [1956] The J of the Royal Asiatic Society of Great Britain and Ireland 1, 4. See also William Wilson Hunter, A Life of the Earl of Mayo, Fourth Viceroy of India (2nd edn Smith, Elder, London 1876) vol 2, 154–5.
  • Smith (n 15) 133.
  • Stokes(n 82) 274.
  • Stephen (n 57) 649.
  • HS Maine, ‘Mr Fitzjames Stephen's Introduction to the Indian Evidence Act’ (1873) 19 Fortnightly Rev 51, 53.
  • John Viscount Morley, Recollections (Macmillan and Co, London 1917) vol 2, 257 (emphasis in original).
  • Stokes (n 82) 256; Rankin (n 6) 70. Thus the Maharaja of Jaipur was a member when Stephen attended his first meeting: Abstract 1872 (n 1) 423 and the Maharaja of Vizianagram became a member on 31 December 1872: Abstract 1872 (n 1) 633.
  • Leslie Stephen (n 15) 249–50.
  • Rankin (n 6) 70–1.
  • A Select Committee of the Council presented to it a Report and a Bill on 31 March 1871: Imperial Legislative Council (India), Abstract of the Proceedings of the Council of the Governor-General of India, Assembled for the Purpose of Making Laws and Regulations, 1871 (Office of Superintendent of Government Printing, Calcutta 1872) vol X, 457–77 (’Abstract 1871’). On 8 December 1871 Stephen told the Council that the Bill ‘… excited a great deal of public attention and much discussion…’, including ‘memorials’ from individuals, ‘… especially from certain members of the Bar’: Abstract 1871 at 757. On 30 January 1872 he told the Council that amendments had been made in the Bill to meet various criticisms: Abstract 1872 (n 1) 79. On 12 March 1872 Stephen summarised some of the criticisms made and said that in response ‘… many defects…’ had ‘… been… removed…’: Abstract 1872 (n 1) 120; see also 121–36.
  • Cahn (n 47) 1027. See also Leslie Stephen (n 15) 251–2.
  • See n 41 vol 3, 346.
  • See n 57, 666.
  • Quoted in Rankin (n 6) 71–2.
  • See n 41 vol 3, 346. See also n 57, 666.
  • Leslie Stephen (n 15) 250.
  • Discussed at Stephen (n 57) 645–6, 649–50. See also PM Bakshi (ed), Basu's Law of Evidence (7th edn India Law House, New Delhi 2005) vol 1, 13–14; Mahabir Prashad Jain, Outlines of Indian Legal & Constitutional History (6th edn Wadhwa and Co, Nagpur 2006) 390–6.
  • The Act is to be found in Bakshi (n 99) vol 4, 3884–94.
  • Rankin (n 6) 111. See also Sixty-Ninth Report (n 63) [1.11]; Gopal Subramanium, ‘Codification and the Common Law of Evidence in India and Australia’ (Speech, Second Indo-Australian Legal Forum Meet, Australia, 4 June 2009) 7; Acharyya (n 65) 83–4, 257–8, 292; Sarkar (n 69) vol 1, 1–3. See also Impey CJ's direction to the jury trying Nuncomar: Stephen (n 76) vol 1, 141.
  • Sarkar (n 69) vol 1, 1; vol 2, 2184.
  • Imperial Legislative Council (India), Abstract of the Proceedings of the Council of the Governor-General of India, Assembled for the Purpose of Making Laws and Regulations, 1868 (Office of the Superintendent of Government Printing, Calcutta 1869) 506–7 (’Abstract 1868’) vol VII. The speech is also to be found in Bakshi (n 99) vol 4, 3820–4. Stokes said that in the mofussil courts:… there prevailed, in addition to a few rules expressly prescribed by the Regulations made between 1793 and 1834, a vague customary law of evidence, partly formed from the Hedáya and the Muhammadan law-officers; partly from English text-books and the arguments of the English barristers who occasionally appeared in the provincial Courts; partly from the lectures on law delivered since 1855 in the Presidency towns. See Stokes (n 65) 812 (footnote omitted). See also Jain (n 99) 483–4.
  • Abstract 1871 (n 92) 459.
  • Stephen told the Legislative Council on 31 March 1871 that ‘… a well-educated Bar… does not exist in India, and… it would be a great mistake to legislate as if it did’: Abstract 1871 (n 92) 472.
  • For example, Sir Barnes Peacock, who was Chief Justice of the Calcutta Supreme Court from 1859 to 1862 and Chief Justice of the Calcutta High Court from 1862 to 1870, was Law Member of the Governor-General's Council from 1852 to 1859, was influential in securing the enactment of the Penal Code 1860, the Code of Civil Procedure 1861 and the Code of Criminal Procedure 1861, and was a member of the Judicial Committee of the Privy Council from 1872 to 1890. On the pre-1861 court structure as perceived in its last days see William Morley, The Administration of Justice in British India (Williams and Norgate, London 1858) 3–138. I am indebted to Dr Déirdre Dwyer for this reference.
  • Indian High Courts Act 1861 (24 & 25 Vic c 104) s 2.
  • Sir Courtenay Ilbert, The Government of India (2nd edn Clarendon Press, Oxford 1907) 138–40.
  • Stephen (n 16).
  • Stevens & Sons, London 1868. This, unlike his later digests, did not take the form of a code; it was in substance a collection of briefly summarised cases grouped under appropriate headings.
  • JW Paget, London 1825; reprinted Fred Rothman & Co, Littleton, Colorado 1981.
  • Hunt and Clarke, London 1827; reprinted by Garland Publishing Inc, New York and London 1978.
  • Radzinowicz (n 3) 18.
  • Alex Stein, ‘The Refoundation of Evidence Law’ (1996) 9 Canadian J of L & Jurisprudence 279, 281.
  • ‘An Introduction on the Principles of Judicial Evidence' in The Indian Evidence Act (Thacker, Spink & Co, Calcutta 1872) 7.
  • William Twining, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicolson, London 1985) 114.
  • Twining (n 116) 74–5, referring to John Bowring (ed), Works of Jeremy Bentham (Simpkin, Marshall & Co, London 1843) vol IV, 460.
  • Stokes (n 82) 277–8.
  • In a speech to the Legislative Council on 6 September 1870, Stephen said: ‘The object of many of the rules of evidence was rather to bring the proceedings to a point than to aid enquiry into truth’: Abstract of the Proceedings of the Council of the Governor-General of India, Assembled for the Purpose of Making Laws and Regulations, 1870 (Office of Superintendent of Government Printing, Calcutta 1871) vol IX, 401.
  • Stephen (n 16) 206–7. He elaborated these points to the Legislative Council on 31 March 1871: Abstract 1871 (n 92) 461–5.
  • Leslie Stephen (n 15) 272–3.
  • Law of Evidence Act 1845 s 1 (8 & 9 Vic c 113); County Courts Act 1846 s 83 (9 & 10 Vic c 95); Evidence Act 1851 (14 & 15 Vic c 99) (‘Lord Brougham's Act’); Evidence Amendment Act 1853 (16 & 17 Vic c 83); Evidence Further Amendment Act 1869 (32 & 33 Vic c 68). The legislation was the result of Bentham's attacks, with the result that his books lie ‘… like exploded shells, buried under the ruins which they have made…’: James Fitzjames Stephen, Introduction to a Digest of the Law of Evidence (Macmillan and Co, London 1876) xviii.
  • See his speech to the Legislative Council on 31 March 1871: Abstract 1871 (n 92) 454–68.
  • William Mawdesley Best, The Principles of the Law of Evidence (5th edn H Sweet, London 1870). It was the last prepared by Best, and appeared posthumously.
  • For a history of Indian evidence legislation from 1793 to 1872, see Stokes (n 65) 812–17.
  • Stokes (n 65) 815–17.
  • It is summarised by Rankin (n 6) 116–17. The Report and the Bill are in Bakshi (n 99) vol 4, 3798–818.
  • Stokes (n 65) 817.
  • Abstract 1871 (n 92) 458. Maine did not disagree with the draft Evidence Bill: Rankin (n 6) 117. But there had been other disagreements between the Indian Law Commission in London and Maine, as Law Member of the Viceroy's Council in India. Maine regarded the Commissioners as ‘… a perfectly irresponsible body sitting once a week for two hours and including only two gentlemen who have ever been in India’: Smith (n 15) 127. His successor, Stephen, objected to the challenge posed by the Commissioners to the legislative autonomy of the Indian Government: Smith (n 15) 128. For their part, the Commissioners considered that Maine was too slow to adopt their reports: Smith (n 15) 127. The impasse was resolved when the Commissioners resigned during Stephen's term, on 2 July 1870.
  • Stephen told the Legislative Council on 31 March 1871 that the Hadáya was full of ‘… arbitrary rules…’ requiring different facts to be proved by different numbers of witnesses: Abstract 1871 (n 92) 460. According to Maine, that body of law ‘… was no law of Evidence, in the proper sense of the words': Maine (n 87) 52.
  • Stokes (n 82) 301.
  • Leslie Stephen (n 15) 287.
  • Stephen (n 41) vol 3, 344.
  • Leslie Stephen (n 15) 243.
  • Leslie Stephen (n 15) 274.
  • Stokes (n 82) 265.
  • Government of India, Home Department, Calcutta 1872.
  • Stokes (n 82) 277.
  • Hunter (n 83) 178.
  • Maine (n 87) 55. See also Ilbert (n 4) 226.
  • See text to nn 128–9.
  • James Fitzjames Stephen, ‘Legislation under Lord Mayo’ in Hunter (n 83) 201.
  • Abstract 1872 (n 1) 141. In Sarkar (n 69) vol 1, 5, the speech is erroneously attributed to Stephen. Sir George Campbell was one of the original judges of the Calcutta High Court.
  • So thought Maine, who described the predicament of judges sitting without juries in India, particularly if they were administrators as well: Maine (n 87) 54–5. See also Maine's speech of 4 December 1868 to the Legislative Council in Abstract 1868 (n 103) 507.
  • The British Conquest and Dominion of India (Duckworth, London 1989) 881. After he left he maintained a close interest in India. For example, In 1885 he published The Story of Nuncomar and the Impeachment of Sir Elijah Impey (n 76), a defence of Warren Hastings against Macaulay's allegation that Impey CJ was guilty of judicially murdering Nuncomar. He advised Lord Lytton, Viceroy from 1876 to 1880, and ‘wrote to the Viceroy by every mail’: Strachey (n 36) 333. He also wrote many lengthy letters to newspapers defending the conduct of Lord Lytton, attacking the Ilbert Bill, and on other subjects. See Roach (n 83) 13–15; Smith (n 15) 140–51.
  • Adarsh Sein Anand, ‘India’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (OUP, Oxford 2009) 367.
  • Ilbert (n 35) 361.
  • That is, the rule that murder is committed when the accused carries out an act of unintentional homicide while prosecuting a felonious design: see Stephen (n 41) vol 3, 75 (‘a monstrous doctrine’). See also Smith (n 15) 61–5.
  • For example, ‘Suggestions as to the Reform of the Criminal Law' (1877) 2 Nineteenth Century 737, 754; ‘Prisoners as Witnesses' (1886) 20 Nineteenth Century 453, 465–6.
  • Smith (n 15) 58.
  • See text to n 273.
  • See n 16, 201–3.
  • Compare Smith (n 15) 89.
  • Stephen discussed this in A History of the Criminal Law of England (n 41) vol 3, 335. Thus the suggestion in Smith's excellent biography, (n 15) 272 fn 105, that Stephen's retreat from his position favouring the incompetence of the accused (in Stephen, A General View of the Criminal Law of England (n 16) 201–3) to one favouring competence was manifested In 1872 is incorrect.
  • See n 41 vol 1, 440.
  • Stephen, ‘Suggestions for Reform of the Criminal Law’ (n 149) 755. This was reflected in his 1878 Bill for a criminal code: Sir Rupert Cross, ‘The Making of English Criminal Law: (6) Sir James Fitzjames Stephen' [1978] Criminal L Rev 652, 658.
  • See n 41 vol 2, 442.
  • Stephen, ‘Prisoners as Witnesses’ (n 149) 454, 471–2.
  • Sir James Fitzjames Stephen, A General View of the Criminal Law of England (2nd edn Macmillan and Co, London 1890).
  • See n 57, 655.
  • See n 57, 672.
  • Stephen was extremely hostile to over-reporting. See his speech of 16 April 1872 to the Legislative Council: Abstract 1872 (n 1) 406–7.
  • Harrison and Co, London 1843; see Stephen (n 115) 18–51.
  • See also his speech of 31 March 1871 to the Legislative Council: Abstract 1871 (n 92) 469–71.
  • According to the second edition—Thacker & Co Ltd, Bombay 1881—the first edition was published in only a ‘few copies’.
  • See n 49, 135–7.
  • Sir Frederick Pollock, ‘Stephen's Digest of the Law of Evidence’ (1876) 26 Fortnightly Rev 383; Sir Frederick Pollock, ‘Review of The Indian Evidence Act, with Notes by Sir William Markby’ (1897) 13 LQ Rev 223; Sir Frederick Pollock, ‘Review of James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law’ (1899) 15 LQ Rev 86; Stokes (n 65) 820–1; James Thayer, ‘Presumptions and the Law of Evidence’ (1889) 3 Harvard L Rev 141, 144–7; James Thayer, A Preliminary Treatise on Evidence at the Common Law (Rothman Reprints, South Hackensack, New Jersey 1969, reprint of 1898 edn) 266.
  • See text to n 389–92.
  • Stokes (n 65) 819.
  • This type of allegation began at a very early stage, for between the first report of the Select Committee of the Legislative Council In 1871 and its second report In 1872, John Bruce Norton, a former Advocate General of Madras and the author of a textbook on evidence (first published in Madras In 1858; 7th edn In 1869: see Rankin (n 6) 120) alleged that the Bill consisted only of arbitrarily selected portions of Taylor. The criticism has correctly been described as unfair: Alan Gledhill, The Republic of India: The Development of Its Laws and Constitution (2nd edn Stevens & Sons, London 1964) 242. Stephen refuted it with some spirit in his speech to the Legislative Council on 12 March 1872: Abstract 1872 (n 1) 121–8.
  • Hostettler (n 32) 93.
  • Smith (n 15) 283 endnote 65.
  • Smith (n 15) 283 endnote 65.
  • Stokes (n 65) 819 (footnotes omitted).
  • Those sections are discussed at text to nn 163–4.
  • For example, the American Law Institute's Model Code of Evidence (Philadelphia 1942) r 304–8, went much less far than the Indian Evidence Act in this respect. Sections 10 and 12 stand outside this category. Section 10 deals with the admissibility of statements of co-conspirators, and exemplifies the sixth technique discussed at text to n 358. Section 12 provides: ‘In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is relevant’. The provision is obvious and therefore otiose.
  • See text to n 237.
  • John Pitt Taylor, A Treatise on the Law of Evidence (4th edn William Maxwell, London 1864) vol 1[15], [16]. They fall within the fifth technique discussed at text to nn 320–56.
  • It was discussed in n 176.
  • Bill cls 36(1)–(3) and 37, Act s 57, Act II of 1855 ss 2–6: see text to nn 207–8.
  • Bill cl 38, Act s 57, Act II of 1855 s 11: see text to nn 237–8.
  • Bill cl 35, Act s 134, Act II of 1855 s 28: see text to n 297.
  • Cl 29 of the Bill copied Act II of 1855 s 30; s 154 of the Act adopted different language: see text to nn 298–300.
  • Bill cl 30, Act s 157, Act II of 1855 s 31: see text to n 301.
  • Cl 31 of the Bill was based on s 32 of Act II of 1855, which s 132 of the Act follows: see text to nn 241–5.
  • Cl 33 of the Bill was based on s 34 of Act II of 1855; s 145 of the Act is based on part of s 34: see text to nn 227–8.
  • Bill s 34, Act s 159, Act II of 1855 ss 45–6: see text to n 229.
  • Bill cl 33 and Act s 162 are similar to Act II of 1855 s 23: see text to n 222.
  • Bill cl 13, Act s 73, Act II of 1855 s 48: see text to n 240.
  • Bill cl 23(4), Act s 131: see text to n 221.
  • Bill cl 32, Act s 153: see text to n 298.
  • Bill cl 22, Act ss 118, 120: see text to nn 209–12.
  • Bill cl 23(1), Act s 124: see text to n 215.
  • Bill cl 23(2), Act s 122: see text to nn 289–91.
  • Bill cls 6–10, Act ss 40–4: see text to nn 370–2.
  • Bill cl 4(13), Act s 38: see text to n 236.
  • Bill cl 5, Act s 83: see text to n 209.
  • Bill cls 23(3), 24–5, Act ss 126–9: see text to nn 216–20.
  • Bill cl 30 (duty), Act s 131 (privilege): see text to n 221.
  • Compare parts of the Bill cl 4, with parts of the Act ss 32–6: see text to nn 281–6, 363–9, 405–12.
  • Bill cls 14, 17–21, Act ss 79–87, 90: see text below text to n 208, and text to nn 306–8.
  • Bill cls 15–16, Act ss 61–6, 91.
  • Bill cls 11–12, Act ss 68–72: see text to n 239.
  • See text to nn 234–5, 266–79.
  • Stokes (n 65) 819.
  • See text to n 323.
  • Taylor (n 178) vol 1[14], [16].
  • Taylor (n 178) vol 1[5].
  • Act IX of 1840 (India); Act VII of 1844 (India) s 1; Act XV of 1852 (India); Act XIX of 1853 (India) ss 2–4.
  • Civil Procedure Act 1833 (3 & 4 Will IV c 42) s 26; Evidence Act 1843 (6 & 7 Vic c 85) (‘Lord Denman's Act’); County Courts Act 1846 (9 & 10 Vic c 95) s 83; Lord Brougham's Act (n 122).
  • On the other hand, Whitley Stokes thought the seven-years-old rule ‘sensible’, and considered Stephen's failure to re-enact it as having taken place per incuriam: Stokes (n 65) 831 fn 2. This proposition contradicts his theory that Stephen simply copied Act II of 1855.
  • See text to nn 153–5.
  • Taylor (n 178) vol 1[860]–[862].
  • Stokes (n 65) 819 fn 2.
  • See text to nn 377–82.
  • A vakíl was a pleader of a High Court: Anil Chandra Bannerjee, The Constitutional History of India (Macmillan Co of India Ltd, Delhi 1978) vol 2, 146.
  • Taylor (n 178) vol 1[833].
  • Taylor (n 178) vol 1[841].
  • Taylor (n 178) vol 1[834].
  • (1881) 17 Ch 675 (Ch) 682.
  • See text to n 346.
  • Taylor (n 178) vol 2[1211].
  • Wright v Doe d Tatham (1837) 7 A & E 313, 330; 112 ER 488, 495 (Lord Denman CJ).
  • Weiss v R (2005) 224 CLR 300 (HCA) [14].
  • Abstract 1872 (n 1) 129–30; Stephen, The Indian Evidence Act (n 115) 55–6.
  • See text to n 237.
  • 17 & 18 Vic c 125; see Taylor (n 178) vol 2[1301]–[1306].
  • (28 & 29 Vic c 18).
  • Taylor (n 178) vol 2[1264]–[1270], [1307].
  • See text to nn 227–8.
  • See text to n 229.
  • See text to n 222.
  • See text to nn 95–7.
  • Such as R v Gould (1840) 9 C & P 364; 173 ER 870. The position remains obscure at common law even today. For example, the Privy Council excluded both the fact discovered and all parts of the confession that led to it In 1991: Lam Chi-Ming v R [1991] 2 AC 212 (PC).
  • Taylor (n 178) vol 1[824] (emphasis in original).
  • Taylor (n 178) vol 2[1280]–[1281], [1370].
  • Taylor (n 178) vol 1[4].
  • Taylor (n 178) vol 1[20].
  • Taylor (n 178) vol 2[1641]; Sarkar (n 69) vol 1, 1297.
  • Best (n 124) [245].
  • Taylor (n 178) vol 2[1227], [1234], [1308]; Stephen (n 49) art 120 fn 3 was more cautious.
  • Taylor (n 178) vol 2[1308]–[1321].
  • R v Garbett (1847) 1 Den CC 236, 257–8; 169 ER 227, 235–6 (CCR).
  • Taylor (n 178) vol 1[822].
  • The technique has been followed in Australia, for example, in the legislation modelled on the Evidence Act 1995 (Cth) s 128.
  • Rankin (n 6) 134.
  • Best (n 124) [93] fn (j).
  • Abstract 1872 (n 1) 136; see also his speech of 31 March 1871, Abstract 1871 (n 92) 472.
  • Stephen The Indian Evidence Act (n 115) 124 (footnote omitted).
  • Best (n 124) [93].
  • Best (n 124) [503], [509], [529] fn (w).
  • Best (n 124) [86].
  • See text to nn 223–5.
  • See text to nn 206–8.
  • Lord Roche, sitting in the Privy Council, described these as ‘magisterial’ confessions in Nazir Ahmad v R AIR 1936 PC 253, 258. For a summary of s 164 see text to n 152.
  • Lawrence James, Raj: The Making and Unmaking of British India (Abacus, London 1998) 205.
  • Stephen (n 41) vol 1, 442 fn 1. Sixty-Ninth Report (n 63) [10.21].
  • Quoted in Sixty-Ninth Report (n 63) [11.8].
  • See R v Ramasamy [1965] AC 1 (PC) 14.
  • See text to n 235.
  • For example, R v Swaffield (1998) 192 CLR 159 (HCA) [151]–[155].
  • James (n 256) 205.
  • Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 126.
  • Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 126.
  • Taylor (n 178) vol 1[802].
  • Sixty-Ninth Report (n 63) [10.21].
  • Taylor (n 178) vol 1[807].
  • Taylor (n 178) vol 1[797].
  • R v Baldry (1852) 2 Den CC 430, 445; 169 ER 568, 574 (CCR), a decision praised by Stephen (n 16) 320–2.
  • Taylor (n 178) vol 1[807].
  • See text to n 234.
  • Pakala Narayana Swami v R (1939) 66 Law Reports: Indian Appeals 66 (PC) 81 (Lord Atkin).
  • Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 126.
  • Taylor (n 178) vol 1[793].
  • Sixty-Ninth Report (n 63) [11.62]–[11.67].
  • Taylor (n 178) vol 1[805].
  • Stephen (n 16) 323. He referred to cases in the 6th edition of Roscoe's Digest of the Law of Evidence in Criminal Cases 45–6 which may be found in Stephen's own 7th edition: Stephen (n 110) 47–8. See also Taylor (n 178) vol 1[804].
  • Stephen (n 16) 323–4.
  • Under the modern common law, a confession which, by reason of the drunkenness of its maker, is involuntary in a ‘basal’ sense is inadmissible: see Tofilau v R (2007) 231 CLR 396 (HCA) [336]–[340].
  • Taylor (n 178) vol 1[648].
  • Also found in the Code of Criminal Procedure 1861 s 371.
  • Quoted in Stokes (n 65) vol 2, 841; see also Rankin (n 6) 129.
  • Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034; Taylor (n 178) vol 1[604].
  • Taylor (n 178) vol 1[571]–[592].
  • Taylor (n 178) vol 1[571].
  • Taylor (n 178) vol 1[12].
  • See text to nn 209–12.
  • Taylor (n 178) vol 2[1219].
  • The same doubt in relation to the English legislation was noticed by Taylor (n 178) vol 1[831]. On the other hand, a footnote to Stephen's A Digest of the Law of Evidence (n 49) art 110, which reflected the Evidence Amendment Act 1853 (Imp) s 3, stated: ‘It is doubtful whether this would apply to a widow or divorced person, questioned after the dissolution of the marriage as to what had been communicated to him whilst it lasted’. The same note appeared in the 12th edition (Macmillan and Co, London 1936) 146, art 119, reflecting in addition the Criminal Evidence Act 1898 s 1(d).
  • Compare the construction given to the Evidence Amendment Act 1853 (Imp) s 3, in Shenton v Tyler [1939] Ch 620 (CA) as applying only while the marriage subsists.
  • See text to n 213.
  • See text to nn 216–20.
  • For differences said to have existed between s 130 and English law, see Stokes (n 65) vol 2, 831–2.
  • Taylor (n 178) vol 1[428] (first sentence).
  • Taylor (n 178) vol 2[1318]. See also Stephen (n 49) art 118.
  • Taylor (n 178) vol 2[869]–[886]; Stephen (n 49) art 121.
  • Taylor (n 178) vol 2[1282]–[1284]; Criminal Procedure Act 1865 (Imp) s 3 (28 & 29 Vic c 18).
  • Sarkar (n 69) vol 2, 2416–33.
  • Taylor (n 178) vol 2[1296]–[1306], [1324]–[1327].
  • Geoffrey Gilbert, The Law of Evidence (6th edn W Clarke & Sons, London 1801) 135: ‘Though hearsay be not allowed as direct evidence, yet it may be in corroboration of a witness's testimony to show that he affirmed the same thing before on other occasions, and that the witness is still consistent with himself’. Stephen quoted this passage in The Story of Nuncomar and the Impeachment of Sir Elijah Impey (n 76) vol 1, 116 fn 1, before saying: ‘I do not think that by the present practice such evidence would be considered admissible, though the propriety of excluding it may admit of discussion’. But he did not go so far in s 157.
  • Taylor (n 178) vol 1[866] fn 2, citing Dickson v Earl of Wilton (1859) 1 F & F 419; 175 ER 790; Beatson v Skene (1860) 5 H & N 838; 157 ER 1415.
  • Robinson v State of South Australia [No 2] [1931] AC 704 (PC); Conway v Rimmer [1968] AC 910 (HL).
  • Sarkar (n 69) vol 2, 2483–4.
  • See text to nn 294–6.
  • Taylor (n 178) vol 2[1035] (emphasis in original).
  • (1833) 5 B & Ad 58, 64–5; 110 ER 713, 716 (‘add to or subtract from, or in any manner… vary or qualify the written contract’).
  • Bank of Australasia v Palmer [1897] AC 540, 545 (PC).
  • Taylor (n 178) vol 1[347] (emphasis in original).
  • Rankin (n 6) 122.
  • Stephen (n 49) art 96.
  • Elkin v Janson (1845) 13 M & W 655, 662; 153 ER 274, 277.
  • Taylor (n 178) vol 1[347] fn 1.
  • R v Turner (1816) 5 M & S 206, 211; 105 ER 1026, 1028.
  • Abrath v North Eastern Railway Co (1883) 11 QBD 440, 457–8 (Bowen LJ) (CA).
  • Dowling v Bowie (1952) 86 CLR 136 (HCA); Vines v Djordjevitch (1955) 91 CLR 512, 519–20 (HCA). The rule is both difficult to apply and controversial. See Adrian Zuckerman, ‘The Third Exception to the Woolmington Rule' (1976) 92 LQ Rev 402.
  • Attygalle v R [1936] AC 338, 341 (PC). See also Seneviratne v R [1936] 3 All ER 36 (PC); Ng v R [1958] AC 173 (PC).
  • Sarkar (n 69) vol 2, 1673–5, 1682–5.
  • See his speech of 12 March 1872: Abstract 1872 (n 1) 122–3.
  • Stokes (n 65) 819.
  • Stephen (n 110).
  • Eg Taylor (n 178) vol 1[521]–[525].
  • Taylor (n 178) vol 1, pt II, ch XIV.
  • See text to n 266.
  • See text to nn 276–80.
  • Taylor (n 178) vol 2[1473]–[1474].
  • Taylor (n 178) vol 1[661]–[662]; Prince v Samo (1868) 7 Ad & E 627, 634–5; 112 ER 606, 609.
  • Taylor (n 178) vol 2[1480], [1486], [1496], [1505].
  • Taylor (n 178) vol 1[40], [585]; vol 2[1274]–[1281], [1668], [1678].
  • Taylor (n 178) vol 1[584].
  • Taylor (n 178) vol 1[328]–[329].
  • Taylor (n 178) vol 1[322]–[326].
  • Taylor (n 178) vol 1[330]–[335].
  • Taylor (n 178) vol 1, pt 1, ch II.
  • Taylor (n 178) vol 1[498], [507]–[508].
  • Taylor (n 178) vol 1, pt II chs IV, V; vol 2, pt II ch XIX, pt III chs IV, V.
  • Taylor (n 178) vol 1[337]–[343], [349]–[362].
  • Taylor (n 178) vol 1[156]–[157].
  • Taylor (n 178) vol 1[155].
  • Taylor (n 178) vol 1[108]–[112].
  • Taylor (n 178) vol 1[129].
  • Best (n 124) [543].
  • Taylor (n 178) vol 1[88]–[90].
  • Taylor (n 178) vol 1[776]–[779].
  • Taylor (n 178) vol 2[1248]; Stephen, (n 110) 111–12; Best (n 124) [148].
  • Taylor (n 178) vol 1[837].
  • Taylor (n 178) vol 2[887].
  • Taylor (n 178) vol 2[1258].
  • This seems not to be a topic dealt with by Taylor, though it is dealt with by Greenleaf: see Sarkar (n 69) vol 2, 2322. The regime set out accords with common law principle.
  • Taylor (n 178) vol 2[1262A]–[1263], [1285]–[1290].
  • The provision follows from the whole of the law about secondary evidence of documents: Taylor (n 178) vol 1, pt II, chs IV, V.
  • Taylor (n 178) vol 2[1293]–[1306], [1324]–[1327]. For the origins of s 153, Exception 1 in Act II of 1855 s 33, see text following n 297.
  • There is no specific English rule, but s 156 accords with principle.
  • Taylor (n 178) vol 2[1614].
  • Taylor (n 178) vol 2[1615].
  • R v Lillyman [1896] 2 QB 167 (Crown Cases Reserved) 177.
  • Taylor (n 178) vol 1[519].
  • Taylor (n 178) vol 1[527]–[532].
  • The first has been substantially restored as a result of judicial construction of s 10: One-Hundred-and-Eighty-Fifth Report (n 65) 54–60.
  • Taylor (n 178) vol 1[539]–[541], [710].
  • See text to nn 266–71.
  • See text to nn 234–5, 275.
  • Crease v Barrett (1835) 1 Cr M & R 919; 149 ER 1353 (Court of Exchequer); Taylor (n 178) vol 1[544]–[569].
  • Text to nn 285–6.
  • The illustration (n) is based on the case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235 (KB).
  • Taylor (n 178) vol 1[516]–[517].
  • Taylor (n 178) vol 2[1429], [1432].
  • Taylor (n 178) vol 2[1574].
  • See text following n 208.
  • Taylor (n 178) vol 2[1489], [1493]–[1494].
  • Taylor (n 178) vol 2[1522]; Stephen (n 49) art 46.
  • Sarkar (n 69) vol 1, 967.
  • Taylor (n 178) vol 2[1435], [1440].
  • Taylor (n 178) vol 1[92].
  • Taylor (n 178) vol 1[868]. Art 98 in Stephen (n 49) reflects the common law rule.
  • Taylor (n 178) vol 1[859].
  • See text to n 213.
  • Taylor (n 178) vol 1[866] (emphasis in original).
  • Taylor (n 178) vol 1[860].
  • Taylor (n 178) vol 1[860].
  • (1890) 25 LR QBD 494 (CA) 498, 500 (’Marks v Beyfus’).
  • Marks v Beyfus (n 381).
  • Stephen (n 49) art 129.
  • Stephen (n 49) art 129.
  • Stephen had expressed this view earlier: Stephen (n 16) 297–8.
  • Stephen (n 49) 174–5. See also Taylor (n 178) vol 2[1313]–[1316].
  • Abstract 1872 (n 1) 137–40.
  • Abstract 1872 (n 1) 131.
  • See text to nn 163–7.
  • See his speech to the Legislative Council on 31 March 1871: Abstract 1871 (n 92) 469.
  • Stephen's speech to the Legislative Council on 12 March 1872: Abstract 1872 (n 1) 123.
  • See his speech to the Legislative Council, 31 March 1871: Abstract 1871 (n 92) 467–9; Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 6–7.
  • (1840) 6 M & W 664; 151 ER 579.
  • Stephen (n 49) art 64, fn 1.
  • Lawless v Queale (1845) 8 Ir LR 382, 385 (QB).
  • Boulter v Peplow (1850) 9 CB 493, 501; 137 ER 984, 987 (CCP).
  • Taylor (n 178) vol 1[381]–[383].
  • Stephen (n 110) 49–50; Taylor (n 178) vol 1[795].
  • R v Gunewardene [1951] 2 KB 600 (CA).
  • Stephen (n 16) 323.
  • Stokes (n 65) 828.
  • Sixty-Ninth Report (n 63) [11.84].
  • Sixty-Ninth Report (n 63) [11.78]–[11.94].
  • One-Hundred-and-Eighty-Fifth-Report (n 65) 187–91.
  • Taylor (n 178) vol 1[630]–[643].
  • Taylor (n 178) vol 1[434]–[446].
  • Stephen, The Indian Evidence Act (n115) 126.408 Sarkar (n 69) vol 1, 870.
  • Taylor (n 178) vol 1[641]–[643].
  • Taylor (n 178) vol 1[549].
  • JH Wigmore, Evidence in Trials at Common Law (Chadbourn rev, Little Brown and Co, Boston 1974) vol 5[1563]–[1568].
  • Malcolmson v O'Dea (1863) 10 HL Cas 593; 11 ER 1155; Taylor (n 178) vol 1[593]–[601].
  • Taylor (n 178) vol 1[327].
  • ‘Explanation’ to s 55, in Stephen, ‘An Introduction on the Principles of Judicial Evidence' (n 115) 175.
  • Roshun Doosadh v Empress (1880) ILR 5 Calc 769 (Calcutta Appellate Criminal Court).
  • Sixty-Ninth Report (n 63) 356–7.
  • Sarkar (n 69) vol 1, 1092.
  • Stokes (n 65) 829–30.
  • Quoted in Bakshi (n 99) 3837.
  • Rankin (n 6) 133.
  • Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 128.
  • Stephen (n 16) 309–10 (footnote omitted).
  • R v Thornhill (1838) 8 C & P 575; 173 ER 624 (Assizes).
  • Taylor (n 178) vol 2[1279], [1280].
  • Taylor (n 178) vol 1[157].
  • Taylor (n 178) vol 1[156].
  • Stephen, ‘An Introduction on the Principles of Judicial Evidence’ (n 115) 133.
  • The common law rule is similar: Taylor (n 178) vol 1[122]–[123].
  • Taylor (n 178) vol 1[171].
  • Taylor (n 178) vol 1[155].
  • Taylor (n 178) vol 1[124]–[139]. In Stephen's A Digest of the Law of Evidence (n 49) 166 it is said: ‘This, like all presumptions, is a very vague and fluid rule at best, and is applied to a great variety of different subject-matters'.
  • Taylor (n 178) vol 1[144]–[148]. See also s 16.
  • Taylor (n 178) vol 1[140]; Sarkar (n 69) vol 2, 1873–7.
  • Taylor (n 178) vol 2[1330] fn 5.
  • For example, the Evidence Act 1938 (UK) s 2(1).
  • Ilbert (n 4) 224.
  • Ilbert (n 4) 227.
  • Frederic William Maitland, ‘English Law (History)’, in Encyclopaedia Britannica (11th edn CUP, London 1910) vol 9, 600, 606, quoted by JGH Hudson, F W Maitland and the Englishness of English Law (Selden Society, London 2007) 29.

Reprints and Corporate Permissions

Please note: Selecting permissions does not provide access to the full text of the article, please see our help page How do I view content?

To request a reprint or corporate permissions for this article, please click on the relevant link below:

Order Reprints Request Corporate Permissions

Academic Permissions

Please note: Selecting permissions does not provide access to the full text of the article, please see our help page How do I view content?

Obtain permissions instantly via Rightslink by clicking on the button below:

Request Academic Permissions

If you are unable to obtain permissions via Rightslink, please complete and submit this Permissions form. For more information, please visit our Permissions help page.

Related research

People also read lists articles that other readers of this article have read.

Recommended articles lists articles that we recommend and is powered by our AI driven recommendation engine.

Cited by lists all citing articles based on Crossref citations.
Articles with the Crossref icon will open in a new tab.