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I. Relevancy.

Sir J. F. Stephen, in his Indian Evidence Act of 1872, proposes the following rules as to relevancy:

"Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others.

"Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place, or at different times and places.

"Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which afforded an opportunity for their occurrence or transaction, are relevant.

"Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

"Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done, or written, by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the page 4 persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy, as for the purpose of showing that any such person was a party to it.

"Facts not otherwise relevant are relevant: (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves, or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

"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.

"Facts showing the existence of any state of mind—such as intention, knowledge, good-faith, negligence, rashness, ill-will, or good-will towards any particular person, or showing the existence of any state of body or bodily feeling—are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

"Where there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant."

To Mr. Whitworth, an English barrister, we are indebted for the following modification of Sir J. F. Stephen's scheme:

"Rule I—No fact is relevant which does not make the existence of a fact in issue more likely or unlikely, and that to such a degree as the judge considers will aid him in deciding the issue.

"Rule III.—Facts which affirm or deny the relevancy of facts alleged to be relevant under Rule II are relevant.

"Rule IV.—Facts relevant to relevant facts are relevant."

Sir J. F. Stephen, in his "Digest of the Law of Evidence," now gives the following as exhibiting his final views, adopting, in part, Mr. Whitworth's phraseology:

"Evidence may be given in any action of the existence or non-existence of any fact in issue, and of any fact relevant to any fact in issue, and of no others. * * * Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction or subject-matter, are relevant to the fact with which they are so connected.* * * Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably may have been,

"The cause of the other;

"The effect of the other;

"An effect of the same cause:

"A cause of the same effect;

or when the one shows that the other must or cannot have occurred, or probably does or did exist, or not; or that any fact does or did exist or not, which in the common course of events would either have caused, or have been caused, by the other; provided that such facts do not fall within the exclusive rules," before stated, "or the exceptions," afterwards stated.

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These exclusions and exceptions are afterwards thus specified: "Similar but unconnected facts. The occurrence of a fact similar to, but not specifically connected in, any of the ways hereinbefore mentioned with the facts in issue, is not to be regarded as relevant to the existence of such facts except in the cases specially excepted in this chapter." The exceptions are:

"Acts showing intention, good faith, etc.;

"Facts showing system;

"Existence of a particular course of business;

"Acts showing that a particular person assumed to be a public officer."

To the analysis just given, however, there are objections which I state in outline in my forthcoming work on Evidence (§ 26), and which I now expand. What is a "cause?" Is not the term open to at least two divergent meanings; and does not the value of the analysis before us depend upon our assuming one of these definitions to be true, where there are many reasons to regard it as untrue? The "cause" of a phenomenon, according to Mr. Mill, is the sum of all its antecedents. The objection to this, however, as is shown by Trendelenberg, in his acute essay on this topic, is, that as all nature is interdependent, everything thus becomes the cause of everything else; and, hence, as all things unite in this lateral causation, all evidence is relevant to every issue, and no issue can be narrowed to any particular line of evidence. On the other hand, if we mean by "cause," as I have heretofore argued in this Review, such an interposition, by a responsible moral agent, as produces specifically the particular phenomenon in litigation, then to say that a particular fact is relevant to prove causation is assuming the very point in issue, which is whether the causation flowed from the particular fact.

Another criticism I would venture on Sir J. F. Stephen's analysis is, that the distinction made by him between "facts in issue" and "facts relevant to facts in issue" cannot be sustained. An issue is never raised as to an evidential fact; the only issues the law knows are those which affirm or deny page 7 conclusions from one or more evidential facts. This is shown by Sir J. F. Stephen's own illustration: "A," he says, when explaining the supposed distinction, "is indicted for the murder of B, and pleads not guilty. The following facts may be issued: the fact that A killed B; the fact that at a time when A killed B he was prevented by disease from knowing right from wrong; the fact that A had received from B such provocation as would reduce his offence to manslaughter. The following facts would be relevant to the issue: the fact that A had a motive for murdering B; the fact that A admitted that he had murdered B; the fact that A was, after B's death, in possession of property taken from B's person." If we scrutinize the group of facts classified in the last quotation as "facts in issue," we will find that, as they are facts which could not be put in evidence, they are not relevant facts, though they might be relevant hypotheses to be sustained by relevant facts. If counsel should ask a witness whether "A killed B," the question would, if excepted to, be ruled out, on the ground that it called, not for "facts," but for a conclusion from facts, and to such conclusions witnesses are not permitted to testify. Equally summarily would be dismissed the questions whether "A knew right from wrong," and whether "A had received from B such provocation as would reduce his offence to manslaughter." The only way of proving either of these "fact in issue," as they are called by Sir J. F. Stephen, is by means of what he calls "facts relevant to the issue." Did A kill B? We cannot say hat it would be relevant to the issue for a witness to say, "A killed B," for a witness would not be permitted so to testify. No facts are relevant which are inadmissible; and the fact that A killed B, being in this shape inadmissible, is irrelevant. It is, however, admissible—to take up Sir J. F. Stephen's illustration of facts relevant to the issue—to prove that A had a motive for murdering B; the fact that A admitted that he had murdered B; the fact that A was, after B's death, in possession of property taken from B's person. From such facts, taken in connection with facts which lead to the conclusion that A struck the blow from which B died, the page 8 hypothesis that A murdered B is to be verified or discarded. The same line of observations is applicable to the second and third of the "facts in issue" mentioned by Sir J. F. Stephen. The proof of A's inability to distinguish right from wrong, and of the extenuation of his offence through hot blood, can only be made by proving "facts relevant to the issue" from which irresponsibility or hot blood can be inferred. We must, therefore, strike out from the category of relevant facts what Sir J. F. Stephen calls "facts in issue," or what may be more properly called pertinent hypotheses, and limit ourselves to the position that all facts relevant to "facts in issue" (or to pertinent hypotheses) are, as a rule, admissible. If we discard, as ambiguous, the word "fact," and substitute for it the word "condition" (corresponding to the logical "differentia" or incident), then the position we may accept is that all conditions of a pertinent hypothesis are relevant to the issue, and that such conditions may be cither proved or disproved.^*

It may, however, be objected that the definition I now propose is ambiguous in the use of the word "pertinent;" and that, by the introduction of this term, I beg the question at issue. I do not think so. By pertinent hypothesis I mean an hypothesis which, if proved, would logically influence the issue. Suppose, for instance, the question should arise before a duly constituted court, whether Mr. Wells, of the Louisiana Returning Board, was guilty of fraud in the alteration of returns. Relevancy in such an issue would be determinable, according to the definition I here propose, by free logic, and not by technical jurisprudence. The hypothesis set up by the prosecution in such a case would be that Mr. Wells, either for money or to gratify party zeal, tampered with the returns. If this hypothesis be sustained, the defendant, if the prosecution be properly conducted, would be deservedly convicted, and to sustain the hypothesis it would be admissible to prove any of its logical conditions. It would be relevant, for instance, to prove, as a page 9 condition of the hypothesis of corruption, that Mr. Wells took money, or offered to take money, for his action as a return judge; or that he made, personally or through deputy, falsifications in the records; or that by his subsequent conduct he tacitly admitted such falsifications.

It will be seen, therefore, from the illustration just given that the conditions of a pertinent hypothesis, which are as such relevant to an issue, are either prior, contemporaneous, or subsequent. A debt, for instance, for goods sold, as is contended, is sued for. Among the prior conditions of the hypothesis (or contention) of indebtedness may be mentioned the possession by the plaintiff of the goods. As contemporaneous conditions are to be classed what we call the res gestœ, or circumstances of the sale. Among the subsequent conditions is the conduct of the debtor, more or less effectively admitting the debt. Or damages are claimed in a suit for injuring cattle by running them down on a railroad. Among the prior conditions of the liability are the unfenced condition of the road, and the running of the locomotive at full speed over the unfenced sections. Among the contemporaneous conditions are the res gesta. Among the subsequent conditions is an admission of parties entitled to speak for the railroad company. In other cases we may regard as relevant conditions a party's subsequent conduct showing good or bad faith;¹ the subornation of witnesses to give a false account of a past transaction;² subsequent acts of adultery to prove a prior act of adultery;³ subsequent defamatory words to prove the animus of prior defamation.⁴

Of course, when the conditions of a pertinent hypothesis are relevant, it is relevant to prove conditions fatal to such an hypothesis. If Mr. Wells were on trial, for instance, it would be relevant to prove that he was absent from Louisiana at the time of the commission of the frauds on the fran- page 10 chise of that state; or that he was himself the ignorant and unsuspecting dupe of others. Or, to turn to adjudicated cases, in a suit against a railroad corporation for negligently firing the plaintiff's farm, it is relevant for the defendant to prove the absence of conditions which would be the probable, if not necessary, conditions of such hypothesis. So, the defendant may show that his engines were so constructed as to make the profuse emission of fire highly improbable; that the coals that escaped fell on the bed of the road, on which there was no accumulation of combustible material; and that the fire by which the plaintiff was injured was traceable to the negligence of other parties. Or, when the hypothesis of the plaintiff is that, when A and B perished in the same ship at sea, A survived B, it is admissible for the defendant to show that before the shipwreck A was stronger than B; that at the time of the shipwreck A was in a better place for the prolongation of life than B; and that after the ship-wreck there were traces of A having escaped the common and immediate death of those remaining in the ship. Or, alibi being the hypothesis set up by the defence, it is admissible to prove even independent crimes committed by the defendant, if such proof refutes the hypothesis of alibi⁵

One of the most interesting illustrations of the doctrine here laid down arises in cases in which accident or casus is set up as a defence. A forged note is passed, and the defence is: "I passed it ignorantly; the whole thing was accident." Or a man is knocked down in the street, and his assailant, when put on trial, says: "This was all accident; I was jostled against him in the crowd." Or a carrier fails to comply with a contract made by him to transport goods from point to point, and sets up casus or vis major as his excuse. In each of these cases it is admissible to meet the hypothesis of vis major, casus, or accident, set up by the defence, by showing in rebuttal a series of other cases forming part of a system with that in litigation, and to which, as a body, the defence in question would be absurd. The rule in such case page 11 is that, when a system is established, the conditions of other members of the system may be proved to affect the case in court, has been further illustrated in cases in which the customs of one manor are put in evidence to affect other manors of the same system. No rule is better established, or more frequently acted upon, than that which precludes the customs of one manor from being given in evidence to prove the customs of another; because, as each manor may have customs peculiar to itself, to admit the peculiar customs of another manor in order to show the customs of the manor in question would be inadmissible as a disconnected fact by the rule above stated, and would put an end to all question as to the peculiar customs in particular manors by throwing them open to the customs of all surrounding manors.⁶ But whenever a connection between the manors is proved, such customs become admissible. It is not enough, it is true, to show merely that the two lie within the same parish and leet; nor even that the one was a subinfeudation of the other; at least, unless it be clearly shown that they were separated after the time of legal memory, since otherwise they may have had different immemorial customs. On the other hand, the customs of manors become reciprocally admissible if it can be proved that the one was derived from the other after the time of Richard the First; and it has been also held, that if the customs in question be a particular incident of the general tenure which is proved to be common to the two manors, evidence may be given of what the custom of the one is as to that tenure for the purpose of showing what is the custom of the other as to the same.⁷

On the same principle, when value is in question, and when certain things are proved to belong to a system, then the market value of such other things is relevant for the purpose of determining the market value of whatever is part of the system.⁸ We must at the same time remember that page 12 a remote period, under different conditions, cannot in any view be taken as a standard,⁹ nor can peculiar associations, likely to give a factitious value, be taken into account.¹⁰ Distant markets cannot be consulted in proof of value;¹¹ though it is otherwise if the markets be in any way interdependent,¹² or sympathetic.¹³ Nor is it admissible for things of a different species to be taken into consideration in determining value;¹⁴ nor should much weight be attached to proof that prices had been offered in private negotiations by third parties; such evidence being open to fraud, and, at the best, indicating only private opinion, not the opinion of a market.¹⁵ And while hearsay is admissible to prove the state of a market,¹⁶ the value of an article, or the extent of a party's income, cannot ordinarily be inferred from the record of a tax assessment. This is the act of a third party, who must be called if obtainable.

A still more striking illustration of relevancy based upon system is to be found in the admissibility of collateral facts when such facts go to indicate constant natural laws. The seasons, for instance, pursue, in the long run, a regular course; and we may, therefore, presume that winter is cold and summer is warm; though this is open to proof that in an exceptional season the winter is comparatively mild, and the summer is comparatively cool. It may be that in a particular page 13 winter, even in a northern climate, we may have no snow-storms; yet we infer that what is usual is continuous, and not only do we take each fall the steps that will enable us to shelter ourselves against snow, but we assume as to any given past winter that there fell in it the usual quantity of snow. So with regard to ice. In New England, for instance, ice crops are usually formed each winter, and these may be stored if due diligence be shown; and on a suit based on lack of diligence in this respect it would be inferred, until the contrary was shown, that the winter was cold enough to produce the usual quantity of ice. Hence it is that casus, or the extraordinary interruption of apparent physical laws, must be affirmatively shown by the party alleging such interruption; and, until such proof, that which is usual is deemed to be constant. In order, however, that evidence based on the constancy of nature should be received, similarity of conditions should be first established. Thus in an action to recover damages for injury caused by removing stones from a river, resulting in the washing away the plaintiff's land, it has been held not error to exclude evidence of the effects of the action of the water at another place and time, the forces and surroundings not being first shown to be alike.¹⁷

One of the most difficult questions that arises in this connection is that which is presented when, to prove that the negligent dropping of fire by a locomotive was the cause of a particular conflagration by which adjacent property was consumed, the effort is made to put in evidence prior fires caused unquestionably by sparks proceeding from engines traveling the same road. Evidence of this class may be offered so as to meet two distinct phases of fact. The first is when a plaintiff, after proving that his house was fired by sparks emitted by engine No. I on the defendant's road, offers to show that on several former occasions sparks were emitted by the same engine in such profusion as to lead to the inference that the engine was either defectively con- page 14 structed or carelessly driven. In such case we must hold the evidence to be admissible. The fact that the engine has frequently caused damage of this kind indicates defects in its construction which impose upon its owner, if not its condemnation, at least the exercise of peculiar care both in its repair and its management; and that such care was applied, the burden, after proof of frequent fires caused by the same engine, is on him to show. On the other hand, suppose that, after the plaintiff proves a firing from engine No. 1, he offers to show a series of prior firings from engines Nos. 2, 3, 4, 5, and 6, without offering to show that there was such identity of construction of the engines, as a mass, as to make it probbable that the defects in engines Nos. 2, 3, 4, 5, and 6 existed in engine No. I. In such case the proof of firing from any other engine than No. 1 would be as irrelevant as, in an action by A for hurt from a kick of a horse belonging to B, it would be irrelevant to show that on other distinct occasions other horses of B had kicked C, D, and E.¹⁸

There is, however, another contingency in which the argument from system does not apply. Suppose, for instance, that when evidence of prior firings by certain specified engines is offered, there is no identification, on the part of the plaintiff, of the engine by which the fire was emitted; or suppose that, though that particular engine is identified, there is no identification of the engines causing the prior fires, is the evidence relevant? We have now to touch a question of probabilities which has already been noticed, and we may adduce, in explanation, the same illustration. Although there were one hundred thousand people of a particular class at a particular place at a particular time, yet it is relevant to prove that A was at that place at that time when the question is whether A did something that could only have been done at that place and time. So, when an offer is made of a series of firings from a series of unidentified locomotives on the same road, such offer is relevant as one of the conditions of an hypothesis which charges a particular locomotive with page 15 the firing. Of weight, if disconnected with other evidence, it cannot be; relevant, for the reasons just stated, it certainly is. "The third assignment of error," so speaks Mr. justice Strong, in giving an opinion to this effect in the Supreme Court of the United States in 1876,¹⁹ is "that the plaintiffs were allowed to prove, notwithstanding objection by the defendants, that at various times during the same summer, before the fire occurred, some of the defendants' locomotives scattered fire when going past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire were among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have caused the fire complained of. The evidence was admitted after the defendants' case had closed. But, whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its admission as rebutting was within the discretion of the court below and not reviewable here. The question, therefore, is whether it tended in any degree to show that the burning of the bridge and the consequent destruction of the plaintiffs' property was caused by any of the defendants' locomotives. The question has often been considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company."²⁰ Or, again, if the defendants should set up the hypothesis of casus, or of one of those occasional mechanical aberrations which due diligence cannot exclude, then it is relevant to show, as militating against this hypothe- page 16 sis, that other engines, constructed on the same general system as that by which the engine occasioning the fire was constructed, had emitted sparks to an extent from which negligence in the construction of the engines, if not in the care of them, may be inferred.²¹ To meet another probable hypothesis such evidence may be relevant. It may be maintained by the defendants that the object fired was beyond the reach of sparks from their engine. In answer to this it has been held relevant for the plaintiff to prove that, a short time before, the defendants' engines, when passing the same point, emitted sparks which fell further than the building for whose firing the plaintiff sues.