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The Law of Proof in Early Modern Equity
Comparative Studies in Continental and Anglo-American Legal History, Vol. 20
(1999)
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Abstract
This volume is a systematic study of the rules of proof in English Courts of Equity between the later sixteenth and the early eighteenth century. In this period the proof practices of the Courts of Equity were controversial, as contemporary lawyers saw them as linked to the Civil Law, and some perceived a threat to the Common Law tradition. The reality of this linkage and threat has continued to be controversial among historians. In addition, this period saw the early stages of the development of the Common Law of Evidence, which in modern law is a striking divergence from Civil Law systems. The origins of the law of evidence have traditionally been linked to the need for judges to control the jury, but this view has been subject to several recent critiques. The Courts of Equity did not generally use jury trial. This study considers Equity proof rules in their relationships to contemporary Civil and Canon Law proof conceptions, medieval Common Law rules governing proof of facts, and early Common Law evidence rules. It concludes that Equity courts operated a variant of civilian proof concepts, and mediated an influence of these concepts on the origins of the Common Law of Evidence. These findings cast a new light on the debates on these origins, and on the relationship between the Common Law and Civil Law traditions in early modern England.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Contents | 7 | ||
| Chapter One: Introductory | 13 | ||
| I. Equity proof and the origins of the common law of evidence | 15 | ||
| II. Common law, civil law and equity procedure | 25 | ||
| III. A note on the scope and sources of the study | 40 | ||
| Chapter Two: Allegations and Confessions | 46 | ||
| I. Secundum allegata et probata: Variance from the bill | 46 | ||
| II. The confession of the adverse party | 54 | ||
| 1. Compulsion to answer on oath, and its exceptions | 55 | ||
| a) Compulsion | 55 | ||
| b) Exceptions | 60 | ||
| 2. Answer conclusive against the defendant | 74 | ||
| 3. Other admissions | 76 | ||
| a) The bill | 77 | ||
| b) Oral admissions out of court | 78 | ||
| 4. Use of the answer otherwise than against the defendant | 79 | ||
| a) Exceptions | 80 | ||
| b) Co-defendants | 83 | ||
| c) The weight of the oath | 86 | ||
| III. Conclusion | 89 | ||
| Chapter Three: Proof by Documents - Concepts, Contexts and Conditions of Use | 91 | ||
| I. General conceptions of proof by documents | 93 | ||
| 1. Roman-canon principles | 93 | ||
| 2. The common law | 96 | ||
| a) Estoppels, pleading and profert | 96 | ||
| b) Evidence to a jury | 100 | ||
| 3. Proof by documents in equity, according to Ballow | 101 | ||
| II. Conditions for the use of documents | 103 | ||
| 1. Public documents | 103 | ||
| 2. Private documents, as admissions? | 107 | ||
| a) Third party documents | 108 | ||
| b) Documents used for their maker | 111 | ||
| c) Conclusion | 113 | ||
| 3. Proof of documents | 114 | ||
| a) Documentary originals | 114 | ||
| b) Proof of execution | 126 | ||
| 4. Privity and mutuality | 128 | ||
| III. Conclusion | 129 | ||
| Chapter Four: The Weight of Documentary Proof | 131 | ||
| I. Writing preferred | 131 | ||
| 1. Estoppel and relief against it | 131 | ||
| 2. The parol evidence rule | 136 | ||
| II. Writing required | 145 | ||
| 1. Before 1677 | 145 | ||
| 2. The Statute of Frauds | 149 | ||
| a) Origins | 150 | ||
| b) The application of the Statute in equity | 157 | ||
| III. Conclusion: Preference for writings | 164 | ||
| Chapter Five: Proof by Witnesses - Principles and Procedure | 165 | ||
| I. The principles of proof by witnesses in the learned laws | 166 | ||
| II. The examination of witnesses in equity | 169 | ||
| 1. Regularity of examination | 169 | ||
| 2. Control of examination by the court and safeguards against subornation | 173 | ||
| a) Examination by officers of the court | 173 | ||
| b) Examination on interrogatories | 176 | ||
| c) Secrecy | 177 | ||
| d) Re-examination | 178 | ||
| 3. Cross-examination | 179 | ||
| 4. Reprobatio? | 180 | ||
| III. Conclusion | 183 | ||
| Chapter Six: Exceptions to Witnesses | 185 | ||
| I. Wigmore’s arguments | 186 | ||
| II. The classification of exceptions | 188 | ||
| 1. Classification by effect | 188 | ||
| 2. Classification by grounds | 190 | ||
| III. Intellectual incapacity: Children and lunatics | 191 | ||
| IV. Bad character | 192 | ||
| 1. Infamy | 192 | ||
| 2. Infidels | 197 | ||
| 3. Other bad character | 199 | ||
| 4. Status rules | 201 | ||
| V. Bias | 202 | ||
| 1. Parties and persons interested | 203 | ||
| a) The dating and origins of the rule | 204 | ||
| b) Theory, limits and exceptions | 211 | ||
| c) Party oaths in equity | 219 | ||
| 2. Affinity and dependence | 222 | ||
| a) Affinity and dependence: Spouses | 223 | ||
| b) Dependence: Servants and counsel | 224 | ||
| c) Why were the affinity and dependence exceptions in general not ‘received’? | 227 | ||
| VI. Conclusion | 228 | ||
| Chapter Seven: Compulsion to Testify and its Limits | 231 | ||
| I. Compulsion to testify | 231 | ||
| II. Exemptions from compulsion | 233 | ||
| III. Privilege | 235 | ||
| 1. Self-incrimination | 236 | ||
| 2. Legal professional privilege | 236 | ||
| IV. Conclusion | 242 | ||
| Chapter Eight: The Weight of Testimony | 244 | ||
| I. The weight of the oath | 244 | ||
| II. Equity examination and the purpose of cross-examination | 247 | ||
| III. The requirement of two witnesses | 249 | ||
| IV. Conflict of testimony | 254 | ||
| V. Hearsay and opinion | 258 | ||
| VI. Conclusion | 261 | ||
| Chapter Nine: The Burden and Standard of Proof and Presumptions | 263 | ||
| I. The burden and standard of proof | 264 | ||
| 1. Burden | 264 | ||
| 2. Objective and special standards of proof | 265 | ||
| II. Presumptions | 267 | ||
| 1. The importance of presumptions | 267 | ||
| 2. The classification of presumptions | 270 | ||
| 3. How presumptions worked | 271 | ||
| 4. Presumptions of fraud | 273 | ||
| Chapter Ten: Conclusions | 276 | ||
| I. Equity proof, trial by jury, and the origins of the law of evidence | 276 | ||
| 1. Resort from law to equity | 278 | ||
| 2. Law imitates equity | 279 | ||
| 3. Resort from equity to law: the feigned issue | 281 | ||
| II. Equity, common law, and civil law | 289 | ||
| Bibliography | 296 | ||
| Table of Statutes | 309 | ||
| Table of Cases | 310 |