Competence and Evidence in the United States

“Their rules with regard to competence were many and strict, and our lawyers have mentioned it to their reproach. “The Civilians,” it has been observed, “differ in nothing more than admitting evidence; for they reject histriones, etc., and whole tribes of people.” But this extreme rigour as to competency rejected by our law, is not found to extend to the genus of evidence, but only to a particular species,—personal witnesses. Indeed, after all their efforts to fix these things by positive and inflexible maxims, the best Roman lawyers, in their best ages, were obliged to confess that every case of evidence rather formed its own rule than that any rule could be adapted to every case. The best opinions, however, seem to have reduced the admissibility of witnesses to a few heads. “For if,” said Callistratus, in a passage preserved to us in the Digest, “the testimony is free from suspicion, either on account of the quality of the person, namely, that he is in a reputable situation, or for cause, that is to say, that the testimony given is not for reward nor favour nor for enmity, such a witness is admissible.” This first description goes to competence, between which and credit Lord Hardwicke justly says the discrimination is very nice. The other part of the text shows their anxiety to reduce credibility itself to a fixed rule.”

Edmund Burke: Imp. of W. Hastings: Report on the Lords’ Journals