requirements often differ from those of their own Latin kinsfolk in Europe. Further, the needs of purely continental states and maritime states have not always appeared to be conformable to the same standard. There is, however, a unifying force at work which must not be left out of consideration, as it may in time prove strong enough to weld together even these divergent schools, namely, the influence emanating from the League of Nations. Already international legislation on no small scale is being affected through its various organs and commissions. It is remarkable that among the subjects already dealt with have been those in support of which Grotius and his school prayed in aid the doctrines of the Law of Nature, and to which he and other jurists have given the name of "imperfect rights, such as the freedom of intercourse for the citizens of all states by land and by water.1 A reasonable appreciation of the needs of the whole international society has achieved successes here which centuries of lip-service to the Natural Law theory had failed to produce.

The chief expository work of the international lawyer of to-day in dealing with the large body of rules generally accepted by states is to place them on a rational basis, to give such explanations of the positive law as will appeal to the reasonable man of the day. From premises which to-day are denied or rejected by the current social or legal philosophy many sound rules of law have been evolved and observed as meeting the needs of states. The reasons given for a rule of law by one generation often fail to satisfy another, yet the rule itself is accepted as necessary. In saying that the first duty of the international lawyer of to-day is to rationalise the existing rules of International Law I believe that I am stating

1 Hall's International Law, 8th ed., p. v.

in simpler terms the demand which others are making for the application of philosophical principles to the Law of Nations. It will only be when this reasonableness of the law is accepted that the strongest motive for its observance will have been generated.

So the work of the international lawyer of to-day is in the first place to use the large amount of material to his hand, to expound it and commend it to the instincts of reason, justice, and humanity of states; and secondly, where rules are uncertain or lacking, to propose those which will enable states in their modern complex social relations to fulfil their highest ends. Reason is thus both a check on the customary rules of International Law and a source of rules for the seeker after international right.1

Wherever there is a deep-seated and widespread national sentiment of justice and right which demands satisfaction in regard to other states, the Law of Nations must answer to the call, and the international lawyer who can suggest the appropriate method by which this desire can be satisfied is in the direct line of succession from his spiritual ancestor, Hugo Grotius.

1 J. Westlake; International Law, Vol. I, Peace (1910), p. 14.

According to the Evidence

BY EDWARD JENKS, M.A., D.C.L.

PROFESSOR OF ENGLISH LAW IN THE UNIVERSITY OF LONDON.

Of the several peculiarities which distinguish the English system of administering justice, and systems derived from it, from other systems, there is none more significant (though there are many more striking) than the rule which requires a finding or verdict on a question of fact to be justified as an inference from the evidence given in the case, and from that alone. And by 'evidence' in this connection is meant, of course, sworn (or, at least, legally safeguarded) testimony to the existence of facts, for the most part de visû aut auditû, given by witnesses in open court, and subject to cross-examination. The exceptions from the rule are few, and well-known to lawyers.

The writer of these lines has checked his own theoretical knowledge of this rule by cautious questioning of intelligent and busy practitioners, and has never succeeded in eliciting any doubt as to its observation in present-day practice, civil and criminal. In fact, any question which hints a doubt as to the universality of the rule (beyond the limited extent contained in the well-known exceptions of 'hearsay evidence,' res gestae, and the like), is apt to be regarded by the practitioner as a trap, designed to spring a purely academic surprise upon a man who is "too busy to worry about theories," and to be resented accordingly. It may, therefore, be taken that the rule is as firmly fixed in practice as in theory. And yet it is as certain as anything dependent on historical testimony can be, that, less than three

hundred years ago, the rule was not binding even on a jury, still less upon a judge when he was called upon to determine issues of fact.

Readers of that valuable and original work, A Preliminary Treatise on Evidence at the Common Law, by the late Professor J. B. Thayer, will be familiar with the earlier stages in the transformation of the jury, from a body of neighbours expressly invited to speak of their own knowledge as to certain facts, to a similar body sworn to draw logical conclusions from facts of which they have, ex hypothesi, no personal knowledge, but which have been testified to by the witnesses examined before them. Professor Thayer did not, alas, live to finish his task; though he has done enough to show us how it should be finished. Dr. Holdsworth's concluding volumes, long anticipated with pleasure, will probably give an exhaustive answer to the question with which these pages propose to deal only in outline.

The question may be posed thus. It has been common knowledge, since the works of Brunner, Maitland, and Thayer (to name no others) saw the light, that the English jury of to-day comes by an unbroken line of descent from the 'administrative jury,' if such a phrase may be permitted, of the Anglo-Norman period, i.e. from a body of neighbours sworn to return, of their own knowledge, answers on oath to enquiries-usually of a fiscal character— directed to them by a royal official. Furthermore, it is the peculiar merit of Thayer, that he has traced the steps of this descent, and shown that the filiation is legitimate and direct throughout; finally, that the latest generation retains the strongest marks of its family and race. We need not, therefore, repeat his work. But Thayer has omitted to trace one vital step in his progress-the step which rendered it irregular for a jury to resort to what was, originally, its sole source of information, its own knowledge of the facts

in issue. Such a step is not achieved by drawing psychological distinctions between 'knowledge' and 'inference.' Vaughan, C.J., in Bushell's Case (post) did in fact draw this distinction (Vaughan, p. 142). But he gives it only as one among many reasons for his well-known conclusion. Doubtless juries are entitled, even at the present day, to act "on their own knowledge," in the sense that they may bring to bear upon the facts given in evidence their general experience of the world, in order to aid them at arriving at a correct conclusion.1 But if A is charged with a certain burglary, and one of the jury happens to be the only person who has seen A passing the locus within a few minutes of its commission, that juryman is not (at least in theory) entitled to make use of that knowledge to justify him in returning a verdict of 'guilty,' if, but for that knowledge, he would not have felt himself so justified. Still less is he at liberty to inform his fellow-jurors of that knowledge, except as a witness in open court. When did this strict rule become law?

Certainly not before 1670.2 In that year the famous Bushell's Case was decided by Vaughan, C.J., and has remained, ever since, the leading authority for the rule that no jury can be fined or imprisoned for giving a 'perverse' verdict, i.e. a verdict "contra plenam et manifestam evidentiam."3 In delivering

his celebrated judgment, the Chief Justice expressly asserted, as one of the reasons for the invalidity of the order of committal, that the jury "may have evidence from their own personal knowledge, by which they may be assured, and sometimes are, that what is deposed in Court is absolutely false." and may act accordingly in finding their verdict. And though 1 See R. v. Rosser (1836) 7 C. & P. 649.

2 Though there are traces of the rule before then. See Winfield, History of Conspiracy and Abuse of Legal Procedure, pp. 188, 189. 3 See the words of the order of committal in Vaughan, p. 136. 4 lb. p. 147.