The Superiority of Written Evidence.

[Reprinted from the Law Quarterly Review.]

Whether or not the evidence offered in any particular case is sufficient for proof, is generally in modern law a question for the discretion of those with whom the decision rests. It is a matter to be determined not by rule of law but by natural reason and sound judgment. In early law, on the other hand, there is a well-marked tendency to set up an external or objective measure of evidence and test of proof; to make the relation between evidence and proof a matter not of sound discretion but of strict law. For example, we are told that, amongst the Saxons, cases of conflicting testimony were settled by fixed rules as to the relative value of the oaths of different classes of persons. So also if an accused person could procure in his favour the oaths of a fixed number of compurgators he was entitled to acquittal; such evidence constituted proof by rule of law, and whether it satisfied the court or not was a consideration completely irrelevant. Trial by jury itself is another example; for the verdict was taken not as mere evidence for the discretion of the court but as conclusive proof; whereby jurymen naturally ceased to be mere witnesses and became judges of fact.¹ The most notable instance however of this tendency to make the relation between evidence and proof a matter of law is the great division of evidence into the three classes of matter of record, matter of writing, and matter of averment². The two former classes were said to be 'higher' in their nature than the third, and for some purposes matter of record was higher than matter of writing. This rule as to the relative highness of these species of evidence has had numerous and important effects upon our law, and it may be a task not without interest to trace such a principle through the tangled jungle of our legal history. Leaving matter of record for later consideration, we shall now make an examination of the meaning and consequences of the principle that matter of writing is higher than matter of averment.

That a deed was originally merely a species of evidence is a fact obvious enough, though we have come to look on a sealed instrument rather as a formality incident to certain contracts and other

¹ See Fleta II. 63. § 9 ad fin., for some detailed rules as to proof that supply further illustrations.

² 'Averment' is used elliptically for averment by the country, or in some other manner than by record or deed.

page 2 acts in law than as evidence thereof. The common form, 'Now this indenture witnesseth,' may serve to remind us of the true nature of such an instrument. A deed was originally regarded as a written admission of certain facts by the maker of it, and admissible as such in evidence against him. Such evidence was recognised as being better or stronger than the evidence ordinarily available, to wit, good suit or a jury. And in accordance with the tendency already mentioned, this superiority did not remain merely a matter of fact for the guidance of judicial discretion, but became a rule of law, the rule namely that matter in writing is higher than matter of averment. It is to this rule, as we shall see, that most of the peculiar characteristics of deeds owe their existence.

Of the rule in question there are two leading applications: first, that where matter in writing and matter of averment are opposed to each other the former must prevail; secondly, that where matter in writing is available matter of averment is inadmissible instead thereof. In other words, inferior matter is admissible neither in opposition to nor in substitution for superior. Each of these rules will be separately discussed, but before doing so there are two remarks of general application to be made.

In the first place, it is to be noted that when these rules were established a writing meant a writing under seal. When therefore sealing ceased to be the usual method of authenticating a document, it became a question whether the ancient rules were to be extended to all writings or restricted to deeds. As we shall see, this question has been answered differently in different cases, the guiding principle being that if a rule was beneficial it was to be extended to all documents, while technical and antiquated rules were to be restricted to deeds. The accident of the substitution of signature for sealing as a method of authenticating documents gave in fact to English law an opportunity for one of those new departures that have proved so common a method of legal progress.

In the second place, it is to be remarked that although the general principle of the superiority of matter in writing is a rule of evidence, particular applications of it have passed over into the domain of substantive law, and have in many cases become so disguised that their origin is no longer recognised. The extent to which the law of procedure has moulded and modified the substantive law is a noticeable point in the history of our legal system. The remedy has often determined the right rather than the right the remedy.

The first general application of the principle that matter in page 3 writing is of a higher nature than matter of averment is, as we have seen, that where the two come into conflict the higher must prevail. Of this rule there are several important consequences, which, though familiar enough, will he shortly discussed for the purpose of exhibiting their relation to each other as illustrations of a single principle.

I. The first of these is the rule that a deed cannot be annulled or altered except by deed. This is clearly the result of the general principle of the superiority of matter in writing. If the plaintiff proves his claim by a deed, the defendant (if he admits the deed) must prove his defence by deed also; otherwise it would be averment against specialty, and the latter would by rule of law prevail. Thus in 20 Edward I¹ a plaintiff says: 'We have put forward a deed which is admitted in court, and you have nothing in hand to certify the court of the truth of your statement, but only make an assertion; judgment as of undefended.' Therefore if the defence is that the deed has been by subsequent agreement annulled or altered, the defendant must produce a deed in support of his statement. This rule of evidence that a deed cannot be proved to have been released or altered except by deed, has naturally passed over into the rule of substantive law that a deed cannot be released or altered except by deed. This rule is commonly expressed in a more or less modified form of Ulpian's maxim: 'Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est².' Thus we read: 'Quomodo quid constituitur eodem modo dissolvitur; a Record by a Record, Writing by Writing, Parliament by Parliament, Parol by Parol³.' This however is rather the adaptation of a formula than the adoption of a rule of Roman law. The maxim in question was applied systematically throughout the Roman law of contracts: a contract per aes et libram must be released per aes et lib ram, a stipulation by acceptilation, and consensual contracts by simple consent. There seems no evidence however as to whether the Roman rule originated in any principle of evidence, or was merely deduced from jus naturale by the ingenuity of Roman jurists. The English rule on the other hand is, in its most important applications, clearly deducible from the principle of the relative value of different kinds of evidence.

This rule has not of course been extended beyond deeds. It is well settled that at Common Law a simple contract, even though reduced to writing, may be rescinded or modified by parol.

II. The second result of the superiority of matter of specialty

¹ Y. B. 20 & 21 Ed. I. 64; see also Y. B. 32 & 33 Ed. I. 8o & 136.

² D. 50, 17, 35.

³ Jenk. 2 Cent. Case 40; see also Shep. Touch., by Preston, 323.

page 4 relates to the defences of payment and of accord and satisfaction. Mere payment was at Common Law no plea to an action on a single bond, for that would have been to allow matter of averment to prevail against matter of specialty. Since the plaintiff proved his debt by specialty, the defendant must prove by evidence of as high a nature that the debt was no longer owing. Accordingly it is said in 34 Edward I¹: 'Since we have your deed, which you have admitted, and which binds you in that debt, and you to loose yourself from that debt have no acquittance but only an assertion, we pray judgment.' In 20 Edward I on the other hand there is an anomalous case in which a tally was allowed in spite of protest to be set up in proof of payment of a recognizance. 'John asked what Robert had to show for the payment. Robert said: See here a tally. John: We think that a recognizance made in the King's Court is the highest matter (la plus haute chose) transacted in Court; so we pray judgment if by a tally which can be defeated by good law, he can defeat the recognizance. Metingham J.: It may be that Robert had no clerk at hand; therefore answer if the tally be your deed or not. . . . John made his law twelve-handed, whereupon Robert was sent to prison for forging the tally².' In Doctor and Student we are told that the rule in question 'is ordained by the law to avoid a great inconvenience that else might happen to come to many people; that is to say, that every man by a nude parol and a bare averment should avoid an obligation; wherefore to avoid that inconvenience the law hath ordained that as the defendant is charged by a sufficient writing, that so he must be discharged by sufficient writing or by some other thing of as high authority as the obligation is³.' Notwithstanding however the approval of the Student of the Common Law, the rule that payment without acquittance could not be pleaded to a single bond was abolished by 4 & 5 Anne c. 3. It may be observed that the rule never applied to covenants, for there the cause of action is based not solely on a deed but also on matter in pais, namely the breach of the covenant, and therefore matter in pais is admissible in answer⁴. Neither did the rule apply to the condition of a bond, the performance or non-performance of the condition lying it was said in pais. 'Sans acquitance home pledera payment de money paiable sur endorcement d'un obligation⁵.'

III. The third application of the rule that matter of specialty must prevail over matter of averment is the doctrine of estoppel by deed.

¹ Y. B. 33-35 Ed. I. 330; see also 20 & 21 Ed. I. 304; 21 & 22 Ed. I. 410: 32 & 33 Ed. I. 184.

² Y. B. 20 & 21 Ed. I. 330.

³ Doctor and Student, I. 12.

⁴ Blake's Case, 6 Rep., 43b.

⁵ Y. B. 12 Henry IV. 23. pl. 6; see Y. B. 21 & 22 Ed. I. 540.

page 5 Estoppel by record has, as we shall see, an analogous origin, though the modern equitable estoppel, or estoppel by conduct, is founded on a totally distinct principle. Speaking generally the rule of estoppel by deed is that matters of fact acknowledged in a deed to be true cannot be denied to be so by the maker of the deed or by those claiming through or under him. The structure that medieval lawyers constructed on this simple foundation is one of the many marvels of English law. This rule, like the others that we have discussed is based on the conclusive presumption of law that verbal evidence is inferior to written. The conflict however between this presumption and actual fact has come out more strongly in the case of estoppel than in any of the other applications of the principle. It became indeed so evident that the rule of estoppel by deed frequently shut out the truth, that its effect in so doing actually came to be regarded as its characteristic element. Thus in the familiar words of Lord Coke: 'It is called an estoppel or conclusion because a man's owne act or acceptance stoppeth or closeth up his mouth to alleage or plead the truth¹.' But the older estoppels were certainly meant to establish the truth, not to subvert it, and with respect to them such a definition is mere satire. The modern estoppel by conduct however has been established with the deliberate intention of making falsehood take the place of truth. It is curious that two principles established with exactly opposite intentions should fall within the same definition. The failure of the original theory on which estoppel by deed was based has led to attempts being made to discover some new and surer foundation for that rule. The modern tendency is to regard it as founded on contract, as arising in fact from a binding agreement to admit certain facts as true².

'Estoppel against estoppel puts the matter at large.' Where there is a conflict of evidence, the higher prevails by rule of law; but where the evidence on each side is in the eye of the law of equal rank, there the matter is at large, that is, is left to the discretion of those with whom the decision rests. Therefore specialty against parol raises an estoppel; the former necessarily prevails. But parol against parol or specialty against specialty leaves the matter at large.

Estoppel by deed is a doctrine established from the earliest times. In 22 Edward I³ we are told that 'nothing contained in a writing can by any exception of the parties be removed.' And again in the same year it is argued that the maker of a deed is estopped by its date: 'You cannot say that; for you have admitted the deed

¹ Co. Litt., sect. 667.

² See Horton v. Westminster Commissioners, 7 Ex. 791.

³ Y. B. 21 & 22 Ed. I. 436.

page 6 and consequently whatever is contained in the deed¹.' No maxim is commoner in the early reports than that a man cannot contradict his own deed, hut its application is more generally an illustration of the other branches of the general rule than of estoppel in the strict sense.

In certain miscellaneous instances estoppel has passed from a rule of evidence into a rule of substantive law. It is obvious that such a principle has a tendency to alter the substantive law. For if A is the legal consequence of B, and C is made conclusive evidence of B, there is a tendency for the element B to be lost sight of, and for C itself to be regarded as the legal antecedent of A. A bond is an undoubted instance of such a process. Originally a bond did not itself create a debt, but was merely evidence of an already existing debt. The debt was constituted by a loan of money or other similar transaction, and a deed was executed whereby the debtor acknowledged that he owed the amount. But by virtue of the principle that matter of averment cannot prevail against matter of specialty, the debtor was precluded from going behind his written acknowledgment. He was therefore bound whether the money had been lent to him or not; the bond ceased to be merely evidence of a debt and became a mode of creating one². Thus Bracton says: 'An obligation may be constituted by writing; as if a man acknowledge in writing that he owes money, then he is bound by this writing whether any money was actually lent to him or not; nor will he be able to plead against the writing that the money was never paid to him, for he has written that he owes it³.' A similar instance is the release under seal, which is merely an acknowledgment of payment operating by estoppel as a discharge of the obligation whether there has been performance or not. Similar to the English release is the Roman acceptilatio, which in effect was a method of discharging an obligation, whilst in form it was a solemn acknowledgment of having received performance.

It is scarcely necessary to observe that the principle of estoppel by deed has not been extended to simple writings. An acknowledgment in writing not under seal is not an estoppel but a mere admission; and in the case of unsealed writings the bond has degenerated into the I. O. U. and the release into the receipt. So in Roman law the chyroyraphum became the cautio and the acceptilatio the apocha⁴.

IV. The fourth and last application of the rule that matter in writing must prevail over matter of averment, is found in the doctrine of the inadmissibility of parol evidence to qualify the effect of written instruments. When a contract has been reduced to writing by the parties thereto, the contents of the writing are conclusive evidence of the terms of the contract, and no parol evidence is admissible to vary the contract as expressed in the writing. 'The law,' says Lord Bacon, 'will not couple and mingle matter of specialty which is of the higher account with matter of averment which is of inferior account in law¹'. It is not usual to treat this rule as an instance of estoppel, yet it is obvious that the principles are identical. In each case the party is precluded by his acknowledgment in writing from disputing what is so acknowledged. In estoppel however what is so acknowledged is matter of fact, while in the case now under consideration it is the terms of an agreement or other act in law. This rule, like the others that have been discussed, has been established from the earliest times. In 20 Edward I an unsuccessful attempt was made to apply it in excluding evidence that a deed absolute on its face was meant to be conditional on marriage: 'She ought not to be answered; for see here her deed which witnesses that the gift was absolute and unconditional, and we pray judgment if in opposition to her own deed she ought to be answered²'. Repeated assertions in this connection that a man cannot deny his own deed meet us in the early reports³. The rule in question has of course been extended to simple writings.

We have now discussed the various effects of the conclusiveness of matter in writing; it remains to examine the effects of its exclusiveness, the effect, that is to say, of the rule that when matter in writing is available matter of averment is inadmissible instead thereof. It is a familiar maxim that the best evidence must be produced. It is obvious that this maxim can be applied in those cases alone in which some kinds of evidence have obtained legal recognition as being better than others. One of these cases, and indeed the most important of them, is that of written and parol evidence. Consequently where any contract or other act in law has been reduced by the parties thereto to a documentary form, no evidence thereof is admissible save the writing (or in certain cases secondary evidence of its contents)⁴. It will be seen later on that

¹ Maxims of the Law, Reg. 25.

² Y. B. 20 & 21 Ed. I. 366.

³ See Y. B. 20 & 21 Ed. I. 430.

⁴ This rule is of course distinct from the rule that a document is the only admissible evidence of its own contents. The latter rule is another and distinct application of the principle that the best evidence must be produced. A document is the only instance in which what is sometimes called 'real' evidence has obtained legal recognition as the best. The modern rule is merely the old one as to profert, freed from its character as a technicality of pleading. Fleta III. 14. 2. Dr. Leyfield's Case, 10 Rep. 92 b.

page 8 from the earliest times the same principle has been recognised in the case of matter of record; for example, it was settled in the time of Edward I that the existence of a judgment could not be proved except by the record¹. Equally early and unambiguous instances of the application to deeds of the rule that the best evidence must be produced seem however not to be available². It was settled indeed that when a bond was given for a preexisting debt, the creditor suing for his debt was bound to give the bond in evidence, and could not prove his debt by parol. But this seems in early times to have been based not so much on the fact of the superiority of the written evidence, as on the fact that the production of the bond was necessary for the security of the defendant. It was the custom of the court to 'damn' or cancel the deed on judgment being given for the plaintiff, so that no second action could be brought thereon. Thus there is a case in the time of Edward III³ in which an unfortunate defendant was condemned to pay his bond, notwithstanding a previous judgment and execution, as he had neglected to get his deed damned. No creditor therefore could bring his action on a simple contract if he had a subsequent bond. In II Henry IV⁴ it is said: 'If I am a debtor by simple contract, and then make an obligation for the same debt, I can compel him to bring his action on the obligation, lest I should be charged twice.' This rule of procedure that no action could be brought on the simple contract naturally passed into the rule of substantive law that the simple contract had ceased to exist, and so arose the doctrine of the merger of simple contracts by specialty. Thus in 9 Edward IV⁵: 'By the obligation the contract which is of the baser nature is abated.'

The rule that written evidence of a contract or other act in law is exclusive evidence has of course been extended to unsealed writings. In the case of such writings however it has maintained more completely its character as a rule of evidence, there having been for example no such distinct transformation into the substantive doctrine of merger as we have seen to have taken place in the case of deeds.

It remains to consider the principle of the highness of matter of record. Such matter may for our present purpose be divided into three kinds, the first of which is the record strictly so called. A

¹ Y. B. 20 & 21 Ed. I. 406.

² See Y. B. 33-35 Ed. I. 452.

³ Y. B. 17 Ed. III. 24. pi. II; cf. Y. B. 21 & 22 Ed. 1. 62 & 78.

⁴ Y. B. 11 Henry IV. 79. pl. 21.

⁵ Y. B. 9 Ed. IV. 50. pl. 10. See Y. B. 3 Henry IV. 17. pl. 14.

page 9 judicial record is primarily the testimony of a court (given in appropriate and appointed manner) as to matters therein transacted. To bear record is merely to testify, and the idea of reduction to writing that now attaches to the word 'record' is historically unessential. In respect of its highness, or its 'sublimity' (to use the enthusiastic language of Lord Coke), the record of a court has the same qualities as we have noticed in the case of matter in writing; that is to say, it is conclusive and exclusive. No averment is admissible against it and none instead of it. As to its conclusiveness it is written in the Leges Henrici Primi¹: 'Recordationem Curiae Regis nulli negare licet.' And Glanville says²: 'The justices being present in court and perfectly concurring as to the record, it necessarily follows that their record must be abided by, neither party being allowed to deny it.' So at a later time we are told impressively that 'Records (for the avoiding of infiniteness which the law abhors) are so high and sacred that they import in themselves inviolable truth³.' It was however the record of the superior courts alone that was thus conclusive. That of inferior courts was in general subject to contradiction by witnesses. Hence a record came to mean a conclusive record, and courts were distinguished as those of record and those not of record⁴. As to the exclusiveness of a record on the other hand, it is said in 35 Edward I⁵ that 'A thing which can be averred by the judgment and record of the court is not to be tried by an inquest.'

To pass on to the second species of matter of record. It has been seen that a deed is an admission which by reason of the solemnity of writing cannot be contradicted. There is another species of admission which for an analogous reason is likewise conclusive, namely admission made in a court of record. 'It is a consequence,' says Glanville, 'which naturally results from acknowledging a fact in the King's Court in the presence of the King or his justices, or undertaking to do any particular act, that the party should be compelled to abide by or perform it⁶.' So in 20 Edward I⁷ it is said: 'We tell you that the said Ernald admitted before the King that he had made a charter of feoffment to his son William; . . . and thereupon we pray judgment if in opposition to his own acknowledgment in a court which bears record he can now say that his son William had not a fee.' Such admissions constitute the second species of matter of record, and it is to the estoppel thence

¹ Laws of Henry I, c. 31.

² Glanville VIII. 8 (Beames).

³ 4 Co. Rep. 71 a; see Plowd. 491 a.

⁴ Glanville VIII. 9; Bracton, ff. 156 b & 336 a; Y. B. 32 & 33 Ed. I. 376; Co. Litt. 260 a.

⁵ Y. B. 33-35 Ed. I. 528; sec Y. B. 20 & 21 Ed. I. 406.

⁶ Glanville VIII. 5 (Beames).

⁷ Y. B. 20 & 21 Ed. I. 308; see also Y. B. 21 & 22 Ed. I. 32 & 146.

page 10 resulting that recognizances and fines for example owe their effect.

Judgments constitute the third and last species of matter of record. Such is the authority and dignity of a court of record that a judgment thereof must by the parties thereto, and sometimes by all the world¹, be taken as conclusive proof of the matter so decided, 'Res judicata pro veritate accipitur.²' According to Glanville: 'Those matters that have been once determined in the King's Court by duel remain for ever after unalterable³.' In 5 Edward II⁴ it is said: 'A judgment cannot be defeated except by a judgment, and if you were received to this averment you might defeat a record by an inquest which would be contrary to law.' It may perhaps be considered that estoppel by judgment arises rather from the idea that the same matter should not be discussed twice in a court of justice; but the early reports go to show that, like estoppel by deed, it is based on a principle of evidence: a decision of a court of record that a deed is the deed of A is such cogent evidence of such being the fact, that no averment to the contrary can prevail against it⁵. Recordum and sententia are coupled together in the early authorities as matters admitting of no contradiction⁶.

The effect on substantive law of the conclusiveness of a judgment is worth noting. It is plain that in its origin and essence a judgment is merely declaratory of rights, not creative of them. An action is a dispute as to the rights of the parties; a judgment is the decision of an arbitrator on the point at issue. By virtue of its conclusiveness however a judgment has come to be regarded as creative of rights instead of declaratory of them, just as a bond has come to be regarded as creating a debt instead of merely proving it. Merger by judgment is a secondary result of the same quality of conclusiveness. It is the substantive form of the rule of procedure that two actions cannot be brought for the same cause. When a judgment by virtue of its conclusiveness comes to be regarded as creating a new right instead of declaring an old one, the above rule of procedure becomes transmuted into the rule of substantive law that the right created by the judgment merges and destroys the right on which the judgment is founded. Thus in 9 Edward IV⁷ it is said: 'When a man has judgment on his own prayer, then he has agreed to have the defendant debtor to him by force of this matter of record.' And again in the same case: 'As by

¹ Bracton, f. 420. § 17; Glanville, XIII. 17.

² D. 50, 17, 207.

³ Glanville, II. 3.

⁴ Y. B. 5 Ed II. 149.

⁵ See Y. B. 21 & 22 Ed. I. 100 & 430; Y. B. 33-35 Ed. I. 8 & 64.

⁶ Dialogue de Scaccario, I. 4. Stubbs's Sel. Ch. 176 (ed. 2).

⁷ Y. B. 9 Ed. IV. 50. pl. 10.

page 11 an obligation a contract which is of the baser nature is abated, so by recovery on the obligation it is changed into a duty by matter of record.' In Roman law, on the other hand, the defence of judgment recovered never passed over completely into a rule of substantive law. It was in the case of a certain limited class of actions only that judgment destroyed the cause of action; in all others the defendant had to resort to the equitable plea of res judicata.