The influence of Professor J.H. Wigmore on evidence law in Australia

Date01 January 2015
DOI10.1177/1365712714561466
Published date01 January 2015
Subject MatterArticles
EPJ561466 29..51 Article
The International Journal of
Evidence & Proof
The influence of Professor
2015, Vol. 19(1) 29–51
ª The Author(s) 2014
J.H. Wigmore on evidence
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law in Australia
DOI: 10.1177/1365712714561466
epj.sagepub.com
Nigel Wilson
University of Adelaide Law School, Adelaide, South Australia; Barrister, Bar Chambers, Adelaide, Australia
Abstract
Professor John Henry Wigmore (1863–1943) was an immensely significant international jurist.
Much has been written about his accomplishments and scholarship and his influence on Anglo-
American jurisprudence. His influence on Australian law has also been extensive. It has been his
influence upon Australian evidence law and scholarship where his impact has been felt most and
where his legacy continues. This article analyses the influence of Wigmore on Australian evidence
law and scholarship over the last century. 2014 marks the 110th anniversary of Wigmore’s remark-
able Treatise on Evidence, which has had enormous impact on Australian evidence law jurisprudence
and scholarship and immense significance in the common law world. Wigmore’s enduring legacies
in Australia are the pre-eminence and breadth of his scholarship and the clarity, consistency and
considered nature of his analysis of evidential principles. It is anticipated that his influence will con-
tinue unabated in evidence cases of significance in Australian courts and in evidence law reform and
remain a powerful guiding force on Australian evidence scholarship in the 21st century.
Keywords
Australia, courts, evidence, High Court of Australia, Professor J.H. Wigmore
Professor John Henry Wigmore (‘Wigmore’) has been written about from many perspectives and his
scholarship, leadership, industry and personality have been extensively critiqued.1 The intention of this
1. See W.S. Holdsworth, ‘Wigmore as a Legal Historian’ (1934) 29 Illinois Law Review 448; R. Pound, ‘John Henry Wigmore’
(1943) 56 Harvard Law Review 988; F. Frankfurter, ‘John Henry Wigmore: A Centennial Tribute’ (1963–64) 58 Northwestern
University Law Review 443; W.R. Roalfe, John Henry Wigmore: Scholar and Reformer (Northwestern University Press:
Evanston, IL, 1977). Irving Younger has described Wigmore as ‘sovereign among American legal scholars’: see I. Younger,
‘‘‘Theories of Evidence: Bentham and Wigmore’’ by W. Twining, Book Review’ (1987) 5(1) Law and History Review 299 at
299; R. Burns, ‘A Wistful Retrospective on Wigmore and his prescriptions for Illinois Evidence Law’ (2006) 100 Northwestern
University Law Review 131.
Corresponding author:
Nigel Wilson, University of Adelaide Law School, North Terrace, Adelaide, South Australia.
Email: nigel.wilson@adelaide.edu.au

30
The International Journal of Evidence & Proof 19(1)
article is not to eulogise either Wigmore or his work any further but rather to consider his enduring influ-
ence on a nation whose character shares so much with his own—an independent country with a deep
sense of the importance of democracy and, within it, of independent and effective working courts and
tribunals. It is unsurprising then that, in Australia, the impact of Wigmore’s scholarship on the Law
of Evidence has been well-recognised. It is his lasting influence on that subject for over a century in
Australia which is the central focus of this article.
Specifically, in Australia it is Wigmore’s ‘stupendous undertaking’2—his Treatise on the System of
Evidence in Trials3 (‘Wigmore’s Treatise’), which was the product of at least ten years of monastic
work—which has had the greatest influence and to which reference has been made most often, both judi-
cially and academically. In the High Court of Australia, Wigmore’s Treatise has been described, accu-
rately, as ‘his great work on evidence’.4
2014 marks the 110th anniversary of Wigmore’s Treatise. Nearly a century ago in 1919 a fitting tri-
bute was given to Wigmore and his scholarship on the 25th anniversary of his service at Northwestern
University by the publication of a work in his honour, entitled Celebration Legal Essays. That Festschrift
extended over 600 pages. That work, and not just its length, demonstrated the breadth of Wigmore’s
influence across diverse legal topics from legal philosophy to comparative law. It contained an article
by Professor W. Jethro Brown,5 who was at the time a President of the Industrial Court of South
Australia and also a Professor of Law at the University of Adelaide (formerly at the University of Tas-
mania).6 Professor Brown remarked, in the context of his essay on the development of Australian indus-
trial law:
To people of the old world, and even to people of the new trans-Atlantic world, the trend of events in anti-
podean Australia may seem of little significance. But so far as concerns what I have called ‘the latest phase in
legal evolution’, I am of the opinion that the progress of events in Australia is full of significance for civilized
communities elsewhere.7
It is also the case, as this article will seek to demonstrate, that developments in Australian evidence law,
often heavily influenced by Wigmore, are full of significance and worthy of international consideration.
By way of very brief biographical background, Wigmore lived from 1863 to 1943, during which time
he was Dean of Northwestern Law School for 28 years from 1901 to 1929. In 1943 and at the age of 80,
he died of injuries resulting from a car accident in which he was a passenger in a taxi. While there is no
evidence of Wigmore ever visiting Australia,8 Wigmore’s life spanned numerous significant Australian
legal events commencing with the Federation of Australia in 1901 and the establishment of the High
Court of Australia and its first sitting in 1903, together with numerous landmark decisions which are
referred to in this article.
2. W.R. Roalfe, ‘John Henry Wigmore: Scholar and Reformer’ (1962) 53 Journal of Criminal Law, Criminology and Police
Science 277, 283.
3. A Treatise On The System Of Evidence In Trials At Common Law, Including The Statutes And Judicial Decisions Of All
Jurisdictions Of The United States (Little Brown, 1904). Cited as Wigmore’s Treatise, later editions cited as Wigmore’s
Treatise (Tillers rev., 1983).
4. Azzopardi v R (2001) 205 CLR 50, per McHugh J at [119], but see further below at n. 115 regarding the observation by McHugh
J, at [120], of the inaccuracy of Wigmore’s (and also Professor Holdworth’s) analysis of the historical basis of the privilege
against self-incrimination.
5. W. Jethro Brown, ‘The Latest Phase in Legal Evolution’ in Celebration Legal Essays by Various Authors to Mark the Twenty-
Fifth Year of Service of John H. Wigmore as Professor of Law in Northwestern University (Northwestern University Press:
Chicago, IL, 1919).
6. O. Michael Roe, ‘Jethro Brown: the First Teacher of Law and History in the University of Tasmania’ (1977) 5(3) University of
Tasmania Law Review 209.
7. Brown, above n. 5 at 20.
8. John Henry Wigmore Papers, 1868–2006, Northwestern University Archives, Evanston, IL.
30

Wilson
31
Wigmore was a regular, and often strident, critic of the courts and legal institutions in the United
States of America. However, it has been acknowledged that he was ‘essentially a reformer dedicated
to the piecemeal improvement of and not the destruction or replacement of these institutions’.9 In his
own words, on one occasion Wigmore called passionately on Illinois lawyers to take their place as
‘torchbearers of reform’ of Illinois’ evidence laws.10 As a jurist, Wigmore was both passionate about,
and actively involved in, effective law reform in the United States. In Australia, institutions, parliaments
and courts also play a central role in the well-being of the country and the maintenance of its democratic
values. In addition to the numerous citations of his work in celebrated cases in Australia, Wigmore’s call
to arms for practical, meaningful law reform has also implicitly been taken up in Australia, and his scho-
larship has been frequently cited in support of effective, practical reform.
Australia is a liberal democracy which places a strong emphasis on the separation of powers between
the executive, the legislature and the courts. Australia has both Federal and State legal systems. In the
1970s the enactment of the Federal Rules of Evidence in the United States proceeded nearly a generation
after the ill-fated United States Model Code proposals of the 1940s.11 The pursuit of uniform evidence
laws in Australia followed a generation later, principally upon the commencement of the Federal Court
of Australia on 1 February 1977,12 at which time there was a concerted push for the reform of Australia’s
evidence laws and for their uniformity. In 1985 the Australian Law Reform Commission (ALRC) made
recommendations for uniform evidence laws and prepared draft uniform evidence legislation to that
effect, but yet another decade passed before the Commonwealth Parliament enacted the first Uniform
Evidence Act in 1995 for the Commonwealth Courts and for the Australian Capital Territory. Subse-
quently, uniform evidence legislation has been enacted in New South Wales, Victoria, Tasmania and the
Northern Territory. Currently, only three States (Queensland, South Australia and Western Australia)
continue to swim against the uniformity tide. In Queensland, the Queensland Law Reform Commission
conducted a review of the Uniform Evidence Acts in 2005.13 However, it was constrained by its terms of
reference and did not involve a section-by-section analysis...

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