As to the Canon Law, your Committee, finding it to have adopted the
Civil Law with no very essential variation, does not feel it necessary
to make any particular statement on that subject.
Your Committee then came to examine into the authorities in the English
law, both as it has prevailed for many years back, and as it has been
recently received in our courts below. They found on the whole the rules
rather less strict, more liberal, and less loaded with positive
limitations, than in the Roman law. The origin of this latitude may
perhaps be sought in this circumstance, which we know to have relaxed
the rigor of the Roman law: courts in England do not judge upon
evidence, _secundum allegata et probata_, as in other countries and
under other laws they do, but upon verdict. By a fiction of law they
consider the jury as supplying, in some sense, the place of testimony.
One witness (and for that reason) is allowed sufficient to convict, in
cases of felony, which in other laws is not permitted.
In ancient times it has happened to the law of England (as in pleading,
so in matter of evidence) that a rigid strictness in the application of
technical rules has been more observed than at present it is. In the
more early ages, as the minds of the Judges were in general less
conversant in the affairs of the world, as the sphere of their
jurisdiction was less extensive, and as the matters which came before
them were of less variety and complexity, the rule being in general
right, not so much inconvenience on the whole was found from a literal
adherence to it as might have arisen from an endeavor towards a liberal
and equitable departure, for which further experience, and a more
continued cultivation of equity as a science, had not then so fully
prepared them.
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