When he has heard it, of course he will
judge what weight it is to have upon his mind, or whether it ought not
entirely to be struck out of the proceedings.
Your Committee, always protesting, as before, against the admission of
any law, foreign or domestic, as of authority in Parliament, further
than as written reason and the opinion of wise and informed men, has
examined into the writers on the Civil Law, ancient and more recent, in
order to discover what those rules of evidence, in any sort applicable
to criminal cases, were, which were supposed to stand in the way of the
trial of offences committed in India.
They find that the term Evidence, _Evidentia_, from whence ours is
taken, has a sense different in the Roman law from what it is understood
to bear in the English jurisprudence; the term most nearly answering to
it in the Roman being _Probatio_, Proof, which, like the term
_Evidence_, is a generic term, including everything by which a doubtful
matter may be rendered more certain to the judge: or, as Gilbert
expresses it, every matter is evidence which amounts to the proof of the
point in question.[41]
On the general head of Evidence, or Proof, your Committee finds that
much has been written by persons learned in the Roman law, particularly
in modern times,--and that many attempts have been made to reduce to
rules the principles of evidence or proof, a matter which by its very
nature seems incapable of that simplicity, precision, and generality
which are necessary to supply the matter or to give the form to a rule
of law.
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