The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

APPENDIX A.

CAUTIONARY INSTRUCTIONS RESPECTING EVIDENCE, FOR THE USE OF JUDGES.

CHAPTER I.

PROPRIETY OF CAUTIONARY INSTRUCTIONS, IN PREFERENCE TO UNBENDING RULES.

It has been already shown at length, how fallacious in their tendency, how unfavourable to the interests of truth and justice, with a very few exceptions, the objections commonly made to this or that species of evidence are in general, when the practical result is the shutting a peremptory door against the reception of this or that species of evidence:—or, in the language of English lawyers, where they are considered as constituting peremptory objections to the competency of the evidence. Pernicious, however, as well as ill grounded, as with a very few exceptions they appear to be, in that character—in the character of objections to the credibility or rather to the credit of the evidence,—there are few of them from which information, rational and serviceable information, may not be derived.

Many and many are the occasions on which, of the same proposition of which, in the character of an obligatory rule, the effect cannot but be pernicious,—the effect in the character of a memento would be useful as well as unexceptionable.

Unfortunately, in legislation as in administration, in the senate as in the closet, the exercise of will is easy;—it is the exercise of the understanding that gives trouble.

Though seated in the centre of information—of that privileged sanctuary through which alone lies the road to the pinnacle of wisdom,—though possessing among themselves a share, amounting in some instances even to a monopoly of the efficient causes of wisdom—the rulers of the world have in general been as sparing of their lessons, as they have been liberal of their commands. As to the reputation of wisdom, it is among the appendages of power; and in proportion as men are secure of possessing it, whether they deserve it or no, they are free from anxiety on the score of their not being thought deserving of it.

In the character of a memento, the tendency of a proposition relative to the credit due to a piece of evidence will, in almost every instance, be conducive to rectitude of decision—conducive to the main end of justice: while, in the character of an obligatory rule, of a ground of peremptory exclusion, the effect of a proposition, the same in other respects, will in most instances he pernicious—productive of hardship and injustice, and of that sense of general insecurity of which every instance of injustice, in proportion as it appears to be what it is, is naturally productive.

Of a rule of the monitory kind producing that effect, and that alone, which in each individual instance presents itself to the mind of him to whom it belongs to judge, as suited to the nature of the case, the effect is in each instance purely good, conducive to the ends of justice:—of a rule to the same purport in other respects, but possessing and exercising obligatory force, the effect is in every instance either pernicious or unnecessary;—unnecessary, where in the character of a rule of unobligatory instruction it would have had its influence and guided the current of persuasion—the course of decision;—pernicious, where leaving the judgment unsatisfied, it drags the will by force into a decision condemned and protested against by the judgment.

The amount of the deduction which reason presents as the proper one to be made from the persuasive force of the piece of evidence in question, on the score of the objection made to it, is susceptible of all manner of degrees or modifications in point of quantity. The rule which converts a ground of deduction—a cause of doubt—into an efficient cause of peremptory exclusion, gives to that force, which is thus susceptible of an infinity of degrees, the effect which cannot belong to it with propriety on any other supposition than that of its existing at one and the same invariable degree in every instance.

Though addressed professedly only to judges, instructions, if published, as of course, if sanctioned, they would be, are in effect addressed to all the world. In effect, they are consequently addressed as well to parties as to their advocates. But under the established systems,—even under the system established in England,—it is not every party that has an advocate, since it is not every party that has wherewithal to pay one. Instances are, the common run of trials for predatory offences of indigence, and the petty offences of various sorts, the cognizance of which is given to single magistrates.

As to parties:—on this subject there cannot be an instruction given, of which, if it be of any use, and susceptible of any application, it will not happen to one or other of the parties to be concerned, in point of interest, to claim the benefit of it. But among suitors, especially among suitors too indigent in circumstances to have it in their power to purchase the services of professional assistants, there will naturally be many, not to say a large majority, who, by want of general instruction and mental culture, will be disqualified for turning to account instructions to this effect, or any instructions that could be given them on the subject of evidence by any general rule of law.

It cannot therefore in any case happen but that the care of attending to them and carrying them into effect, in each case for the benefit of the party interested, must rest in some degree upon the judge:—and accordingly they cannot but be considered as addressed to the judges, not in words only, but in design and effect.

Addressed nominally to judges only, but virtually to all ranks without distinction—addressed to them, and received by them, according to the measures of their several capacities and opportunities, they will have a further effect beyond that which they claim in words. By putting the reader upon his guard against those frauds, the exposure to which constitutes so many causes or modes of infirmity in the respective corresponding species of inferior evidence, a natural effect of them will be to prevent the fraud itself, by impressing the persuasion that the effect of this warning given against it will have been to render the attempt perilous, and success hopeless.

In this point of view, a code of instructions to judges respecting the weight of evidence, being in effect a warning against those particular modifications of fraud of which a court of justice is the theatre, constitutes an application of a principle already held up to view: a principle by which, as a means of preventing frauds at large, a system of instructions laying open such frauds as shall have been brought to light by experience, is recommended as one of the instruments by which, in the way of indirect legislation, the legislator has it in his power to ward off crimes.*

In the way of instruction, as contradistinct to regulation, the legislator cannot do harm—he cannot but do good. Harm he cannot do: no, not even should the instruction he gives (unsupposable as the case is) be all of it erroneous and false. Being false, it may prove deceptious, and in so far mischievous. True: but instruction is here considered in contradistinction to—in exclusion of—coercive regulation. Leaving it to the judge to make such use of the instruction as he thinks best—none at all if it appear erroneous, it leaves his will free to profit by such better lights as his own experience and understanding furnish. What if, instead of confining himself to the giving instruction, the legislator had drawn the inference in every case, and converted his erroneous but uncompulsory instructions into compulsory commands?

But the case is scarcely conceivable—certainly not at all probable—in which, by operating in the line of instruction, the legislator can fail of doing good.

The judge, attending to the subject of evidence—to the cases that come before him on that ground, as to any others—no otherwise than as he is called upon to attend to it by this or that individual cause,—his views are naturally limited to the particular and comparatively narrow line on which he is thus called upon to act. The knowledge of the legislator is, or at least might be and ought to be, the aggregate knowledge of the whole state—not to say of the whole world. From each one of the judges subject to his authority, he has it in his power to command the whole result of his opinions and reflections on this as on every other line of action within the limits of his office. The chance which he possesses, or at least is enabled to possess, of procuring for himself correct information, is to the chance possessed by any single judge, as the whole number of the judges is to one.

Not only is it in the power of the legislator, as such, to raise the quantity and value of the accessible mass of information in this line to its maximum, but it is in the power of any and every private and uncommissioned individual, according to the measure of his opportunities and his faculties, to render to mankind the same sort of service,—provided always that the hand of the judge be on each occasion left unfettered, and free to turn to its use the information thus supplied.

The contents of this book are an attempt to render, according to the faculties of the author, this sort of service. Should it be found to bear the test of examination, it may serve as a nucleus to which the mass of desirable information, accumulated by the experience of successive ages, may, as it were by crystallization, aggregate itself.

On the other hand, by way of imperation and coercion, no good can be done—harm cannot but be done:—by coercion imposed upon the judge, the probability of right decision—of decision in conformity to the truth in each instance—cannot be increased, cannot but be diminished.

CHAPTER II.

CONSIDERATIONS PROPER TO BE BORNE IN MIND IN JUDGING OF THE WEIGHT OF EVIDENCE.

1st Cause of Suspicion.—Improbability of the fact deposed to.

The improbability of a fact in itself, may be considered as a sort of counter testimony—a sort of circumstantial evidence, operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved.

The improbability of a fact may rise to such a degree as to render it absolutely incredible—incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence as is actually adduced in proof of it.

If the inference drawn from the improbability of the fact, viz. that it is not true, be just—i. e. if notwithstanding the testimony by which the existence of it is asserted, it really did not exist,—the fault must lie either in the inferences deduced from the testimony, or in the testimony itself. If the testimony itself be to such a degree positive as to assert the existence of the matter of fact in question in direct terms, then the fault cannot be in the inference deduced from the testimony, but must be in the testimony itself. The testimony must either be incomplete or false, or both: though if, as above, it be to a certain degree positive, there may be no room for charging it with being incomplete; and if the fact so asserted be false, the testimony by which the existence of it is asserted, must necessarily be, in some circumstance or other, false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury.

When a fact is considered as being to such a degree improbable as not to be capable of being proved by any quantity even of the best evidence, it is commonly termed impossible.

Improbability or impossibility, is either physical, that is natural, or moral. A fact may be said to be physically improbable, when it is considered as being inconsistent with the established and known order of things—with any of those rules and propositions which have been deduced from the general observation of mankind, and are termed laws of nature: such as, for instance, that which asserts as a known matter of fact, the weight or gravity of all the bodies that we see in, upon, or near to this earth; that property, whereby, if a man jump up from the surface of the earth, he feels himself drawn down again.

A fact is said to be morally improbable, when it is considered as being inconsistent with the known course of human conduct. This species of improbability is confined to such facts as have their place in the human mind: such as the entertaining of such and such perceptions, conceptions, intentions, wishes; the being animated by such and such motives, under the existing circumstances of the case.

The degree of distrust produced in the mind of a judge by the improbability of the alleged fact, when that improbability is of the physical kind, as above, will depend upon the confidence he has in his own knowledge respecting the powers and order of nature so far as the particular fact in question is concerned. If he have any doubt, he will do well to have recourse to scientific evidence—to call in the opinion of such persons as, by their professional situation or reputation, are pointed out to him as being particularly well informed in relation to matters of that sort.

Thus suppose, upon the testimony of two witnesses, a demand made upon a man for money in satisfaction for damage done to a garden by the fall of the first inhabited air-balloon that ever rose: and from reflection on the weight of bodies, suppose the judge to have been inclined to disbelieve the testimony, on the ground of the apparent improbability of the fact. In such case, he would have done well to call in the opinion of some lecturer or lecturers on natural philosophy; and accordingly, supposing him so to have done, he would have learned from them that there was really no inconsistency between what he had always observed and heard concerning the heaviness of bodies in general, and what the witnesses had been deposing concerning the extraordinary lightness of the particular body so raised.

Concerning moral improbability, as above described, every man acting in the situation of a judge will naturally consider himself as competent to pronounce. A man on these occasions looks into his own mind, and asks, as it were of himself, whether it be probable or possible, that in the circumstances in which the person in question is stated by the evidence as entertaining such and such perceptions, conceptions, intentions, wishes, and the like, it could have happened in such circumstances to himself to have entertained any such perceptions, conceptions, intentions, wishes, and the like.

Moral improbability of the fact is a sort of evidence upon which conviction or acquittal turns, in most cases of delinquency, especially when against the defendant there is no other than circumstantial evidence. It is seldom that a man can be deemed guilty, unless his intentions be taken into the account; and when he avers his intentions to have been innocent, it is not possible to prove their having been guilty, otherwise than by the moral improbability of their having been otherwise. When Captain Donellan was convicted of murder by the poisoning of Sir Theodosius Boughton, one of the principal circumstances against him, was his anxiety to have the cup immediately rinsed out. On any other supposition than that of the cup’s containing a poison by which the fatal symptoms were produced, this anxiety and the expression given to it were looked upon as acts without a motive. Should I in that situation have entertained any such anxiety if I had not been guilty? If in that situation I had been guilty, could I have avoided entertaining the like anxiety, although I should hardly have been so incautious thus to betray it? Such were the questions which, in the situation of the jury by whom he was convicted, every man who joined in the conviction, or approved of it, could not but have put to himself.

2d Cause of Suspicion.—Interest.—The testimony of the witness liable to be drawn aside from the line of truth, by the influence of some seducing motive.

There are as many species of interests as there are species of motives:—there are as many species of motives as there are distinguishable sorts of pains and pleasures.

Whatever, on each given occasion, be the complexion of a man’s conduct,—lawful or unlawful, commendable or discommendable, beneficial to society or prejudicial,—it is always the result of the action of some motive or motives, or of the difference in point of force between two lots of contending motives;—an action without a motive is an effect without a cause.

Among motives, there are some, the action of which tends in the main, all the world over, or at least in every civilized community, though in different communities with exceptions more or less considerable, to keep men’s conduct within the pale of probity, of which a main branch is the line of truth.

These are—1. The motives created by the rewards and punishments administered by the law of the state; 2. The motives depending on good and evil reputation, from whence flow respectively the spontaneous good and ill offices of mankind; 3. The motives created by the affection of benevolence, whether its object be more or less extensive—a man’s family, his friends at large, his province, his country, or mankind; 4. The motives created by religion. In consideration of their most usual tendency (though there is not one of them which by means of some error or other has not been productive of actions pernicious to mankind, and in particular has not drawn aside man’s testimony from the line of truth,)—all these together may be comprised under the common appellation of tutelary or guardian motives.

All motives whatever, not excepting even the motives termed, in consideration of their regular and ordinary tendency, guardian motives, are liable to act in the character of seducing motives on all occasions, and in particular on those occasions where a man is called upon for his testimony by the voice of justice, and thereupon to draw aside the tenor of his testimony from the line of truth.

There are some motives or interests which are most apt to be productive of this sinister effect, and of the sinister tendency of which, on those occasions, it behoves the judge to be more particularly upon his guard; in so much, as the more strongly the situation of a witness exposes him to be acted upon by any one or more of these motives respectively, in such sort that, by swerving from the line of truth, he might procure to himself the gratification of the appetite or passion corresponding to such sinister seducing interest or motive, the stronger the suspicion and distrust with which his testimony will naturally and not improperly be regarded. Not that by any means it follows, that because a man is exposed to temptation, therefore, spite of the utmost efforts of the guardian motives, he will on every occasion yield to it:—but thus much, and thus much only, is the proper practical inference, that the stronger the action of the sinister interests on the part of the witness, the more vigilant ought to be the scrutiny on the part of the judge.

These interests or motives are as follows:—

1. Pecuniary interest:—to which belong the motives created by the desire for money; that is, including all things that are to be bought for money.

2. Enmity:—to this passion belongs the motive which, when excited by injury, real or imagined, is termed revenge. So, even although there be not so much as an imagination of injury, an uneasiness regarded as having the person or conduct of a particular individual for its cause, will be productive of that same passion, which when in the character of a motive it acts upon the will and influences human conduct, is called revenge.

3. Love of Power:—desire of acquiring or preserving power of any kind;—fear of losing it.

4. Desire of gaining or preserving the protection or patronage, the good will and good offices of a particular individual, in the character of a master, patron, or useful friend.

5. Love:—i. e. personal attachment in the case where connected with sexual attraction.

6. Personal attachment; or friendship towards an individual:—the principle by which an individual is led to regard the interests of a friend in the same manner as his own, and to be actuated by them in the same manner and direction as if they were his own, whatsoever difference there may be in the degree of force.

7. Family attachment:—the principle by which a man is led to adopt as his own, the interests of his family,—a circle which may be more or less wide in its extent, and in which exceptions in any number may be included.

8. Party attachment.

9. Self-preservation:—a motive, in the object of which, if taken in its largest sense, are included all pains and dangers, and thence even losses and disappointments of all sorts;—and which, when the danger apprehended is the loss of life (a loss in which the loss of whatever pleasures a man could hope for is involved,) is termed danger of the loss of life. In so far as the pains in question may have legal punishment for their source, the fear of punishments of all sorts is included within the compass of this motive.

10. Love of ease; or aversion to labour; i. e. to the pains which result as the natural accompaniments of labour, when considered apart from the pleasures and sources of pleasure which in the several cases it looks to for its reward.

CHAPTER III.

CONSIDERATIONS RESPECTING THE EFFECTS OF INTEREST IN GENERAL UPON EVIDENCE.

1. There is scarcely one occasion on which, scarcely a species of suit in which, it may not happen to a man to be acted upon at the same time by any number of motives, as above exhibited—by any number of different sorts of interests, besides the guardian motives, the force of which acts in general on the side of truth: and these sinister interests may be acting all of them on the same side, or some on one side, some on another.

2. The efficiency of a motive depends, not upon the species to which it belongs, but on the strength with which it happens to act in each individual instance. There is scarcely a species of motive which is not capable of acting with any degree of force, from the lowest to the highest, or not much short of the highest.

3. A man’s own testimony, given in his own cause, is of all evidence the most, and most properly, exposed to suspicion, where the tendency of it is in favour of that cause:—it is of all evidence the least exposed to suspicion, when the tendency of it is in disfavour of that cause.

4. But even in this case, it cannot be relied upon with perfect safety. In a penal case, a man may by his testimony subject himself to conviction and punishment as for a certain offence, in the hope of avoiding some greater evil; for example, prosecution, and thence conviction and punishment, for some more severely punishable offence. In a non-penal case, a man may, for the advantage of others, with or without collusion, institute a cause for the very purpose of betraying it.

5. Setting aside the indirect counter-evidence that may be opposed to a man’s testimony by the improbability of the fact he deposes to,—it is more easy to disbelieve him where, on the supposition of incorrectness on the part of his evidence, such falsity cannot but have been accompanied with that criminal consciousness which converts it into mendacity, than when it may be accounted for on the supposition of simple incorrectness:—because, in the first case, it cannot have happened but that the mind of the witness must have been subjected to the action of some sinister interest or interests, acting in sufficient force to overcome the united resistance of the whole phalanx of guardian interests.

6. In England, scarcely any crime is so common as that of exculpative perjury;—scarcely any so rare as that of criminative perjury:—especially in the case of the most highly punished species of crimes. The reason is, that in the former case, humanity, i. e. sympathy towards the individual over whose head the rod of punishment hangs suspended, is an interest that acts in opposition to the guardian interests:—in the latter case, its force is exerted on the other side.

7. Among professional depredators, the propensity to exculpative perjury is strengthened by the concurrence of other interests. Not only each gang of specially connected depredators, but the whole class, and, as it were, community of depredators taken together, form, as it were, a particular community of itself, which, like other particular communities, lawful and unlawful, honourable and dishonourable, such as that of divines, lawyers, merchants, &c. has its esprit de corps, its corporate affections, and other interests. Being a community within a community, it has accordingly a popular sanction, a public opinion of its own, distinct from, and in this instance opposed to, the public opinion of the great community, the public at large. This, therefore, is one of the cases in which the force of the popular sanction is divided against itself, and in which that division which is likely to be strongest is on the side opposed to justice.*

8. Among such professional depredators as are either connected and united into gangs by special compact and habits of co-operation, or though it be only by an acquaintance with the particulars of each other’s crimes, the propensity to exculpative perjury is still further strengthened by the influence of the principle of self-preservation. When a member of any such gang comes to be convicted, a natural and frequent result is a disclosure, more or less complete, of the particulars of his former delinquencies, including an indication of the share borne in them by his associates: among the fruits of which indications, is the apprehension of those associates, and the obtaining of evidence sufficient to bring them to punishment.

9. Against criminative perjury, so powerful, so efficacious, is the action of the guardian interests, that, in the character of seductive interests, two of the most powerful motives, viz. love of life, and pecuniary interest—one acting in the greatest possible force, the other acting with more than ordinary force—are scarcely ever known to produce it. Pardon, together with pecuniary reward in masses from £10 up to £1000, are the expedients continually resorted to, in English practice, for the obtaining from an accomplice the necessary mass of evidence, in the case of capital, that is, first-rate crimes. All this while, where self-preservation is out of the question, pecuniary interest, though in a magnitude ever so trifling, and though it be of that comparatively weaker sort which is created by the desire of gain, and not of that stronger sort which is created by the apprehension of loss, is under the same system made to operate as a ground of peremptory exclusion, preventing the testimony from being so much as heard:—and this, too, let the pecuniary interest at stake, and consequently the damage to the party suffering by the perjury, supposing it to take place, be ever so trifling. Pecuniary interest, acting upon the witness by itself, is thus made to shut the door against his testimony: pecuniary interest, when reinforced by another interest infinitely more powerful, acting on the same side,—by an interest which includes all others put together,—no longer shuts the door against, but throws it wide open to the same testimony. All the while, this apparently irresistible invitation to perjury has scarcely ever been productive of its natural, and to appearance unavoidable effect. The reason is nowhere to be found in the joint influence of the two concurring causes, but in the particular difficulty of carrying into effect a plan of perjury in this particular case—a cause which belongs not to the present purpose: the other is the joint influence of the interest of humanity, seconded and supported by a narrow and spurious sort of honour, or regard for a portion of the mass of popular opinion, as above explained. But the force of the action of a principle of humanity, in a case where the tendency of it is to cause one man to save another from a mass of suffering—from a mass of punishment—will naturally be, cæteris paribus, directly as the magnitude of that punishment. Hence, although the force of the motive acting in a sinister direction—viz. self-preservation—is also in this case, by the supposition, as the magnitude of that same punishment, yet such is the force of the principle of humanity, seconded as above, that it almost always gets the better of the sinister interest of the same kind, even when that sinister interest has the allied force of pecuniary interest for its support.

CHAPTER IV.

CONSIDERATIONS RESPECTING THE EFFECT OF PECUNIARY INTEREST UPON EVIDENCE.

1. The value at stake being given, as also the sensibility of the individual to a gain or loss to that amount, as deducible from the state of his pecuniary circumstances in other respects, a man’s testimony is more exposed to just suspicion in the case where he is a party to the suit, than where he is not a party:—as also more where he is plaintiff, than where he is defendant. For a man who is not a party to the suit, that is, has no actual interest of the pecuniary kind in the success of that side in favour of which his testimony tends—can in general gain no advantage—can gain no thanks from the party in whose favour, if the testimony be wilfully false, and at the same time successful, the falsehood operates, unless the party be privy to the falsehood, and in some sort a partaker in the guilt. False evidence, therefore, in this case requires two to be concerned in it:—whereas when the party concerned is the witness, it requires but one.

2. In the situation of a defendant, false evidence in a cause relative to money is not so dangerous in its tendency, viz. in the way of example, on the side of the defendant as on the side of the plaintiff. The reason is, that in the character of a defendant, as such, a man has not in his own power the means of increasing the number of his suits at pleasure: on each occasion, whether the suit to which he is party take place, depends directly at least, not upon himself, but upon another person, the plaintiff. By his falsehood, the utmost he can hope to do, is to exonerate himself from the single particular obligation which another person, in the character of plaintiff, seeks to impose upon him:—in the character of defendant, so long as he confines himself to that character, it is not in his power to impose any sort of obligation upon anybody by any succeeding falsehoods, whatever his success may have been in the first.

On the contrary, if on the part of a plaintiff coming forward as witness in his own cause, false testimony obtain credit, and the fraud is thus crowned with success (though the mischief of the first order—the mischief produced by the falsehood in the individual case in question—be no greater in this case than in either of the others,) the mischief of the second order, the mischief in the way of danger and alarm, is much greater: since, in the character of plaintiff, the number of causes it may happen to a man to be concerned in depends altogether upon his own will and pleasure.

If the matter in dispute be, or be alleged to be, equally within the cognizance of the plaintiff and the defendant, whatever illusion the testimony of the plaintiff might have been in danger of producing will have the testimony of the defendant to counteract it: if, in this case, testimony be in any part opposed to testimony, on which side soever truth is, that side cannot but be supposed to possess a natural advantage.

If the testimony given by the plaintiff in his own behalf find opposed to it the testimony of an apparently uninterested witness, truth must be very apparently on the side of the party witness, if the persuasion produced by it be an overmatch for the prepossession which evidence so circumstanced can scarcely fail to excite.

If on the side of the plaintiff there be, besides his own testimony, that of a non-litigant witness, truth and justice have everything to gain by the examination of the plaintiff himself, and nothing to lose by it. Suppose the testimony on this side correct and true, the confirmation given to the statement of the uninterested witness by that of the party cannot but add more or less to the satisfaction of the judge. Suppose the testimony mendacious, the chance of a contradiction between the two conspirators is a chance over and above what the case would have afforded had the testimony of the plaintiff been excluded.

The case in which the testimony of a plaintiff in support of his own demand, supposing the testimony wilfully false, appears to have the fairest chance, is where, upon the face of it, the fact not having come under the cognizance either of the defendant, or of anybody else but the plaintiff, the supposed false testimony of the plaintiff has neither the testimony of the defendant nor any other testimony to contradict it. But in this case it is provided, that though by the supposition the defendant has it not in his power to give any specific testimony, whereby the force of the plaintiff’s testimony may be combated,—yet it should be matter of obligation as well as right on the part of the defendant, after hearing the plaintiff’s testimony, to declare whether he himself gives credit to it—whether he decidedly believe it—decidedly disbelieve it—or remain in doubt. If he believe it, so may the judge with still less difficulty;—if he be in doubt, doubt from such a quarter may in the mind of the judge afford some confirmation of the plaintiff’s testimony. If the defendant, decidedly and firmly, can take upon him to say that he disbelieve it, and no confirmation come in aid of it from any other source, personal evidence or real, direct or circumstantial, there seems little likelihood that the judge should suffer his decision to be governed by such scanty and suspicious evidence. To testimony thus circumstanced, it will oftener happen to be disbelieved when true, than to be believed when untrue.

The force with which a sinister interest of the pecuniary class acts upon the mind may be the same, whether it be certain or contingent—acting on both sides, or acting on one side—acting upon the witness singly, or acting upon him as one of a body of men anyhow composed,—a private partnership, a joint-stock company, a set of persons taxed in conjunction for certain purposes, such as the parishioners of the same parish. In these several cases, the interest in question is but the fraction of an interest:—but a fraction of one sum may be equal to the whole of another.

The prospect which an only son has of succeeding to the estate of his father, the estate not being settled upon the son, is but a contingency: but between the force of an interest created by such a prospect, and the force of an interest created by an estate to the same amount settled upon the son, it cannot reasonably be supposed that in effect there should be any material difference. In the money market, interests called contingencies have their price as well as those which are called certainties.

If by a decision in favour of the plaintiff a witness would gain twenty pounds, while by a decision in favour of the defendant he would gain but ten pounds, the force of the interest by which his testimony is drawn to the side of the plaintiff is equal to a force of ten pounds.

If upon the decision in the cause on which the testimony of a witness is to be given, a joint-stock company, with a million for its capital, in which he has a thousandth share, has at stake a sum of ten thousand pounds, the force of the interest by which his testimony is drawn to the side of the company is equal to a force of ten pounds.

Of a quantity of pecuniary interest represented by any given sum (say £100,) the force will be in a prodigious degree different, according as the result of the decision to the witness will be gain or loss to the amount of that same sum. The suffering produced to a man by a loss to any given amount, is much more than equal to the enjoyment that would be produced by gain to that same amount. If a man who has £400 gain £200, his fortune after the increase is to his fortune before the increase, but as 6 to 4. If a man who has £600 lose £200, his fortune after the loss is to his fortune before the loss, but as 4 to 6. If a man who has £400 gain another £400, his condition after the increase is not very high:—if a man who has £400 lose the £400, his condition after the loss is as low as it ever can be. When a man who had originally £400 receives a gain of £400, his fortune is still capable of receiving accession upon accession without end: but when a man whose original fortune was £400 has lost £400, there is no room for any further losses.

A pecuniary interest to act in the character of a cause of falsehood upon the mind of the witness, and thence upon the testimony he exhibits, must be in existence at the very time in which he is occupied in the delivery of such testimony:—the good or evil dependent on the decision for which his evidence is to furnish or help to furnish a ground, must be still in prospect and not in possession at the time. Whether at the time at which the fact in question presented itself, or is supposed to have presented itself to his cognizance, the interest were or were not then in existence, makes to this purpose no material difference. Although the interest were in existence, and his affections consequently exposed to the action of it at the time, yet if at the time of giving his testimony that interest be no longer in existence, its action on his affections is at an end—his testimony is no longer exposed to be influenced by it. Although at the time when the fact presented itself to his cognizance, the interest were not then in existence, nor his affections accordingly exposed to the action of it, yet if at the time of giving his testimony the interest be in existence, and his affections exposed accordingly to the action of it, his testimony is as much or nearly as much exposed to be influenced by it, as if it had already been in existence at the time when the fact presented itself to his cognizance.

Where, by the rules of law, pecuniary interest would operate in the way of exclusion—and to get rid of the objection, and render the witness admissible, expedients have been employed for extinguishing the interest, and thereby neutralizing, as it were, the mind of the witness, by causing it no longer to be exposed to be acted upon, as supposed, by any such sinister force,—so far as consists in the opening of a source of information which would otherwise have been sealed up, and thereby preventing the undue decision or denial of justice that for want of such information might have taken place, the practice undeniably appears to be useful and desirable, and conducive to the purposes of justice. But if on any occasion the effect of it be, as it naturally enough will be, to withdraw the testimony in question altogether from suspicion, and cause it to be regarded as no longer subject to the action of any sinister interest, in this respect the tendency of the operation is fallacious.

Interest in the present instance—pecuniary interest—is created either by hope of gain or fear of loss.

Hope of gain is the most common case,—the witness, for example, to a will, having a legacy depending on the validity of the will.

In this case, two expedients have presented themselves for the clearing away of the interest:—1. One is, the putting the witness in possession of the expected good, the legacy. In this case, he has no longer anything to gain by the confirmation of the will: and is in consequence reputed clear from the action of any sinister interest. 2. Another is the engaging him to give up his right to receive the expected good, the legacy. In this case, he has no longer any assistance to hope for from the law towards the obtainment of the expected good, the legacy:—and in this case also, is in consequence reputed clear from the action of any sinister interest. In this case, the provision of the law would be but incomplete, nor would it extend to all the cases which the expedient was intended to embrace, if the extirpation of the interest depended upon the acceptance of the offer made by the witness to get rid of it. The mere offer has accordingly been deemed sufficient, whether accepted or not accepted:—care being taken to enact, that after an offer to this effect, whether the offer be accepted or not accepted, his right to compel the payment of the money or money’s worth shall be equally at an end.

If, however, it be really supposed, that by any such mechanical process the mind of man can really be cleared of interest, or that the security for truth, for the absence of incorrectness and mendacity, is after the performance of any such ceremony in any considerable degree greater than before, the supposition will upon examination be found delusive. Against simple incorrectness it will be found of little or no use. Against mendacity—against wilful perjury,—it will be found of no use at all.

Mendacity—wilful perjury—out of the question, any departure from the line of perfect correctness, of absolute truth, can have no other cause than that of bias. Whatever deviation from that line may take place in his testimony, the witness himself is not sensible of any such deviation: if he be, so far as he is, so far is his testimony mendacious, and himself a perjurer. In this case, whatever may have been the state of his mental faculties in relation to the facts in question,—his perception—his judgment—his memory, before the operation, it does not seem natural, that by the operation any very determinate or natural alteration should be produced.

But, suppose the bias previously existing and in action, and suppose the legal process to have cleared away this sinister interest, this cause of aberration, from the line of truth,—there remains another, which it is not in the nature of it to clear away, and of which the action will naturally be more powerful than that of the bias itself. This is his regard for his own character,—for his own reputation in respect of veracity,—his sensibility to the pains of the moral sanction. Before the time and occasion for the performance of this legal ceremony can have taken place, he will almost always have given his statement of the affair:—it is from this statement alone that in general the party who has an interest in the restoration of the testimony can obtain that information from which his inducement to put in practice the expedient for the clearing away the objection was derived. But having once given his account of the matter, the witness is concerned, in point of reputation, to abide by it: were he to depart from it in any considerable degree, what he has to lose by such departure is so much of his reputation as is at stake: what he has to gain by such departure is nothing at all. But as it is with mechanical, so is it with human action: to command it, any the least particle of force is sufficient, so long as there is nothing to oppose it on the other side.

In the case of mendacity, the notion of the supposed extirpation of the sinister interest will be found equally delusive. Whatever interest it was that gave birth to the mendacious design, that interest will not be found to have undergone from the process any material change. It will be found, either that the self-same interest will be found still to continue, or that another interest, or group of interests, equally efficient, have been substituted in the room of it: and, at any rate, the interest that respects reputation will be found to apply alike to this case as well as to the other. Saving the extraordinary and not to be looked for case of unbought and thankless perjury, for the benefit of somebody else, mendacity, on the part of a non-party witness, all profit-seeking mendacity,—supposes conspiracy, all conspiracy supposes confidence. But whatever be the ground or cause of confidence, it is not in the power of any such mechanical process as that in question to destroy the confidence, or take away the inducements, whatever they may have been, that led to the performance of the criminal engagement. After the operation, and so far in consequence of it, it may happen to the conspirators to deceive one another; but so it equally might, had no such operation been performed. Moreover, so long as the conspiracy, and the confidence which is connected with and necessary to give birth to it, lasts, the employment of these expedients will be among the necessary, or at least the natural fruits of it. If without the employment of one or other of these expedients, the law excludes the testimony in question, the employment of one of these expedients is necessary to the purpose of the conspiracy. If, although the testimony be admitted, the trustworthiness of the witness be looked upon as increased by the extinguishment of the interest, the expedient of the apparent extinguishment of the interest is a measure that may be regarded as the natural fruit of the conspiracy, though not absolutely a necessary one.

In the above considerations, the efficient cause of the interest is supposed to be the expectation of gain, and not the apprehension of loss. Such in fact accordingly is the most common case:—because the acquisition at stake being most commonly not yet in possession of either: both have something to gain by the event of the suit, neither have anything to lose. The opposite case, however, is not impossible, even on this side—the plaintiff’s side—of the cause. For if the gain to be made by the false witness be not too great for the pocket of the suborning plaintiff, it may happen that the witness takes his payment in the first instance, under the condition of returning it should the decision be adverse:—and in this case, the efficient cause of the interest takes the shape of the apprehension of loss.

But there remains yet another case that may happen; viz. that the side which gives birth to the mendacious conspiracy is the defendant’s side:—in this case, the property at stake is already in the hands of one of the conspirators—the principal in the business,—and the fund being already in hand, there will be no more difficulty, but rather less, in paying him before the termination of the suit than afterwards.

One case indeed there is, in which the effect of the process may be to produce a confidence which is not unmerited. This is where a witness to the transaction, being entitled to an emolument arising out of it—say as before a witness to a will entitled to a legacy given by the will—comes forward of his own accord, and gives up his own just claim, lest other claims—claims of more importance, and which he knows to be just—should be defeated.

But, in the first place, if the man of probity in question think fit to make this sacrifice of his own to other interests (understand pecuniary interests,) he is at equal liberty so to do without any detersive process, as under and in consequence of it. The interest in question, if it be not rendered by the law a ground of exclusion, is at any rate rendered by the nature of men and things in a certain degree a ground of suspicion:—if impelled by the same honourable motives in this case as in the other, he choose not only to gain admittance for his testimony, but in this way to augment its force, there is nothing to prevent him.

In the next place, what in this case is the effect of the operation in question upon the whole body of rights at stake taken together? If it confirm one set of rights, it destroys another:—if it confirm the rights of a man or set of men taken without distinction, it destroys the rights of a man, who by his generosity has been manifested to be a man of superior probity and desert.

In this case, then, it has no other effect than what deserves to be regretted. And upon the whole, if it really clear away any interest at all, it does not clear away any sinister interest; if it clear away interest in any case, it is in such cases, and such cases only, in which that interest had no sinister influence. Its effects, therefore, upon the whole, are reducible to these two: either to the prejudice of a man of extraordinary probity, it deprives a man of his rights without any benefit to truth and justice; or in favour of a witness of ordinary mould is productive of an ill grounded confidence—producing in favour of the testimony so vamped up, a degree of confidence beyond any that properly belongs to it.

CHAPTER V.

SITUATIONS.

To the different situations, relations, and conditions in life—public and private, political and domestic—several different sorts of interests either singly or forming different compounds, are apt to be attached.

1. A certain species and degree of interest may be produced, and is very commonly produced, by the relation between customer and dealer. The action of that interest will be more or less strong, according as the dealings are more or less extensive, more or less regular and established, down to purely casual. Let them be extensive to a certain degree, regular to a certain degree,—and neither of them an uncommon degree—the profit to the dealer may in the way of interest operate as a sort of annuity, subject to increase or decrease with the prosperity of the customer, and thereby dependent on the event of the cause.

If, as a cause or consequence of this relation in the way of pecuniary interest, a relation of friendship, sympathy, and good will, more or less warm, should happen to have taken place, here are two distinguishable species of interest combined in one.

2. The relation between protector and protegé,* between a person seeking advancement in any line, and a person supposed to be able and willing to promote his advancement in that same line, is a relation of much the same nature in this respect as that between dealer and customer; though the ground of expectation not being so open to sense and distinct observation as in the other case, the nature and strength of the interest does not so distinctly exhibit itself to view. It is in nature and degree of course as diversified, in the first place, as the aggregate group of profit-seeking occupations;—as diversified, in the next place, as the ways in which in each occupation it may be in the way of one man to serve and help another, are diversified.

Here, as in the case of the relation between dealer and customer, the relation of sympathy and good will—with the interest created by that relation—is at any rate a very frequent accompaniment to the purely pecuniary relation;—though owing to the tyranny, to the imputation of which one side of the relation, and the insensibility and ingratitude, to the imputation of which the other side is obnoxious, not a necessary and inseparable one.

3. Another interest of the same kind in both respects, is that which attaches to the relation between master and servant: meaning hired servant. So long as it subsists—unless where the determination of it is decided upon—desire of retaining, apprehension of losing, pecuniary advantage, will be certain accompaniments; sympathy and good will on the part of the servant as toward the master, a natural accompaniment, though unhappily not an inseparable one. The interest, simple or compound, produced by it—the magnitude of the interest, will in both branches of it be susceptible of an indefinite multitude of degrees, according to the relative magnitude of the emolument, multiplied by the probable duration of it, as deducible from the past duration or from other circumstances. It will be influenced by the nature of the service, whether domestic or in any line of profit-seeking occupation: by the rank of the servant in the service, in the case of a service comprehending different ranks.

4. In the interest which attaches to the relation between master and bond-servant, including that between master and apprentice (of which last, the apprentice is the species which makes the greatest figure,) the interest which attaches includes the interest which attaches to the relation between master and hired servant, with the addition of all the hopes and all the fears of which the coercive power attached to the superior condition cannot but be productive. So far as fears are concerned, the additional interest with which this relation is pregnant, may be referred to the head of self-preservation; viz. as against the punishments which at all times, and on all occasions, howsoever moderated by law, or morality, or humanity, it is in the power of such master to inflict.

5. In the interest, which in the instance of the child attaches to the relation between parent and child, are included all the interests which attach to the relation between master and apprentice, but all of them naturally existing and acting in much greater force. To these are added, as peculiar to this relation in contradistinction to the other, the two additional interests created by family attachment, and the hopes and fears attached to the prospect of succession, i. e. to the prospect of succeeding to the property, or to a share in the property of the parent, on the occasion of his decease.

6. The interest, which in the instance of the parent attaches to the same relation, contains but one or two of the elementary interests of which the compound interest in the last preceding case is composed—a spice of sympathy and good will, heightened by a spice of family attachment. Yet in so much higher a degree do these efficient causes of partiality exist in this case than in the other, that the inferiority in number is commonly more than compensated for by the superiority of force. Though in point of mere self-regarding pecuniary interest, the profit or loss redounding indirectly to the child from profit or loss accruing to the parent, is much more determinate than the profit or loss redounding indirectly to the parent from profit or loss accruing to the child, yet such, it is generally understood, is the superiority of partiality created in the latter case from natural affection,—from the emotion of sympathy and good will, created and kept up by the view of the physical relation,—that as far as bias is concerned, the testimony of the parent is full as liable to be warped in favour of the cause of the child, as the testimony of the child in favour of the cause of the parent. So fallacious would be the result, if interests were to be merely counted, without being duly weighed.

Yet according to the rules of judging established among lawyers—I mean English lawyers—the partiality of the father or mother to the child is too slight to furnish a ground for the exclusion of their testimony:—while in the estimation of the same sages, the partiality created by the expectation of a sixpence is so irresistibly powerful, that no testimony exposed to so dangerous a cause of seduction, ought so much as to be heard. What would be the reflection of a mother, if, when clasping her child to her bosom in a fit of maternal fondness, she were to be informed that she did not care sixpence for her darling, and that this had been settled of thought and study, from an opinion derived at a vast expense from the experience of ages by the sages of the law?

To the Chinese, who, without his understanding any more of the country and its inhabitants, should hear speak of a nation in which this strength of parental affection was so perfect a secret to the mandarins who governed it, an easy mode of solving the enigma would present itself. “I see how it is in that country,” he would say to himself: “eunuchs are there the only lawyers.” He would little suspect the real truth of the case, which is, that in every lawyer there are two men—the man of flesh and blood, subsisting such as nature formed him, and the man of law, such as he has been formed by a set of scientific rules; that the man of flesh and blood may in point of intelligence be below, or upon, or about the common level as it may happen; but that the man of law is to be found constantly at a prodigious degree below it—has at a prodigious expense of thought and study succeeded in fixing himself at an unfathomable depth below it. That between these two men, though inclosed in the same wrapper, there is no more communication than between the outer and inner surfaces of a Leyden phial; and that the weakest of them all is never so unwise in his own generation, as to govern himself in the management of his own concerns by the rules by which he has been pleased to guide himself in the disposal of other people’s.

7. A group of interests the same in species as those which, on the part of the child, are produced by the relation between parent and child, will on the same part be produced by the relation subsisting between the child and any of those other kindred, who after the decease of the parent, or even during his lifetime, may be considered as a sort of substitutes or representatives of the parent—the grandfather and grandmother, the uncle or aunt, the elder brother or sister, and so on. To each of these relationships a group of interests is attached, and therefore, of causes of partiality, the same in species as those which attach in the relationship between parent and child, varying only in degree. As far as can be determined by general rules, the interest will naturally be regarded as less and less strong,—the cause of partiality consequently less and less powerful, the more remote the relationship, the farther off the superior relation who represents the parent is removed in the line of natural relationship from the person he thus represents. This criterion, however, which in the character of a general criterion is no otherwise good than inasmuch as the nature of things does not afford a better, is liable in each particular instance to be rendered incorrect, and if blindly adopted, fallacious, by an endless variety of causes.

Between the vice-parent and the vice-child (if the expressions may be allowed,) the connexion will be stronger after the decease of the parent than during his life. Why? Because the frequency of the occasions which the junior relation may have for the protective services of the senior relative will naturally be increased by the removal of him to whose protection recourse would naturally have been had in the first instance.

Identity of sex is another circumstance by which the justness of any inference deduced from the mere circumstance of priority in the line of relationship would be liable to be disturbed. Age in the instance of both parties, but especially in that of the junior relation, the child, is another. Both parents dead, the child in infancy, the services of a grandmother on either side may for a time be more immediately useful, whatever be the sex of the child, than those of a grandfather. As the child advances in that career in which the difference between sex and sex grows every day wider, the services of a grandparent of its own sex will be more and more valuable, in comparison of those of the opposite sex. But by the infinite diversity of varieties of which the interior circumstances of families are susceptible in respect of occupation, habits of life, pecuniary wants and pecuniary means, the operation of even these causes of disturbance is susceptible of a vast variety of other disturbances.

If in the instance of any such senior relation, the legal power annexed to the condition of guardian should have come to be superadded to the natural bond of attachment and partiality constituted by natural relationship, an attachment which otherwise would have been the weaker, may, in virtue of this reinforcement, become the stronger. Invested thus with the authority of a father, an uncle may be a person of more importance in the eyes of a niece, than even her grandmother on either side; the aunt to her niece, or even her nephew, than a grandfather on either side;—and so on without end.

Even in the case of that source of inference, the conclusion derivable from it may be disturbed by the circumstance of place of abode. If the house of the guardian relative be the abode of the ward, then this cause of disturbance has no place. But if the ward have for his or her ordinary abode, the house of some other near relative, while the personal intercourse with the guardian relation is unfrequent, or altogether wanting, the truth of any inference pronouncing superior strength of partiality from the mere circumstance of guardianship, must be manifestly precarious.

Even of the merely casual relation or connexion between the person whose testimony is called for, and the person on whose behalf it is called for—even of so slight, flimsy, and fugitive a connexion as it might seem to be, the influence, in the character of an efficient cause of partiality and bias, has in experience been observed to be far from inconsiderable.

This interest appears in species to be much the same as that which in the case of a more permanent connexion engages the affections, and good wishes, and partialities of the protector on the side of the protégé. It is composed of the love of reputation, of the love of power, and of an emotion which grows out of the love of power—sympathy towards the individual who gives occasion for the exercise of it. The service which the party stands in need of at the hands of the witness is a service of more or less importance, according to the importance of the interest at stake upon the event of the suit; at any rate, of no inconsiderable importance. In the case of an individual belonging to the inferior classes, that is, in the case of the great majority of the whole number of individuals in every community, a service of this sort is of such importance as to raise the importance of him who is called upon to render it, in his own eyes:—on an important theatre, he becomes an actor in a scene of real life;—in the party who invokes his assistance he beholds a sort of expectant dependent, whose fate hangs in some sort upon his service;—and in a case where corruption and criminal consciousness are out of the question, he finds his character held up in the circle of his acquaintance in a favourable and honourable point of view, by the certificate of veracity implicitly contained in the demand thus made upon him for the exercise of that virtue.*

Thus much for the case where the group of naturally associated interests are supposed to be all active, and all clubbing their respective influences in the character of causes of partiality, on the same side. But all families are liable to become theatres of dissension; and by every instance of dissension, one or more of these naturally-associated and conjunctly-acting interests may come to be thrown out of the group.

The inference from connexion, natural or civil, permanent or casual, to partiality, will appear still more plainly to be in fault, where the circle of the same family includes both parties in the cause. The affections, and thence the testimony of a witness, may in this case be drawn toward the side of the plaintiff by one species of interest—towards that of the defendant by another; towards the one by pecuniary interest—towards the other by sympathy and good will: or even to each by an interest of the same species, and in a degree altogether indeterminate in either case:—to each by expectation of pecuniary benefit, to a value on one side, or on both, altogether unsusceptible of liquidation.

A consideration in all these cases, manifest even to the most superficial glance, is—how inconsiderable and infallibly inefficient a cause of bias and partiality the assurance of this or that certain but limited sum, expectant upon the event of a cause, upon the determination of it in favour of this or that one of the parties, say the plaintiff, must frequently be, in comparison of the opposite interest created by the apprehension of forfeiting the good will of the other party in the same cause, when upon that good will depends a train of services, till then counted upon as certain, to a value some number of times greater than that of the money to be gained. A point sufficiently manifest in this case is, that if presumption of partiality, as deduced from interest, even pecuniary interest (were there no other species of interest,) were a proper ground, not merely for directing a watchful eye upon the testimony of a witness, but for shutting the door against it altogether, it is rather on the side of the defendant than on the side of the plaintiff, that testimony so circumstanced should be forbidden to be produced.

All things considered, it will be found, that from the countenance of a man, and the tone and turn of his answers, indications much more instructive will generally be obtainable in regard to the state of his affections, considered as liable to operate on his evidence as a cause of bias, than from any such superficial marks as can be afforded by any exterior relation or connexion, domestic or civil, natural or acquired, with all the interests attached: and that, although the influence of these exterior influencing circumstances ought never to be overlooked, yet neither ought it ever to be implicitly relied upon as an indication capable of superseding the demand for looking out for such ulterior lights as may be deducible from the particular circumstances of each individual cause.

CHAPTER VI.

MAKESHIFT EVIDENCE.

§ 1.

Casually written Evidence.

1. Where, by a party standing in the same situation in point of interest, as the deceased* author of a casually written discourse—a letter or memorandum, a statement supposed to be applicable to the question of fact upon the carpet,—any such letter or memorandum is produced, the first care of the judge ought to be, to put himself upon his guard against the characteristic fraud to which this species of evidence is exposed. He will inquire and consider whether it be or be not likely, that under the individual circumstances of the case, in the view of compassing an object which could not be compassed till after his death—such as the advantage of an individual or class of persons dear to him, or the detriment of an individual or class of persons odious to him, the author of the paper should have set himself to fabricate false evidence—evidence of the falsity of which he himself was conscious—in consideration of the security which the hand of death would by that time have afforded him against shame and reproach, as well as against legal punishment.

2. If, under the individual circumstances of the case, mendacity does not appear probable, the next point for the consideration of the judge is—how far it may be probable that, under the same circumstances, incorrectness and so far falsity on the part of the statement, might be produced by the effect of bias.

3. If the correctness of the statement do not appear to have been impaired either in the way of mendacity or by bias, another point for his consideration will be—whether the amplitude of the statement may not have been narrowed to the prejudice of either party by omissions, designed or undesigned.

4. To assist his judgment on the above points, the judge will take into consideration the relation of the writer in question to the cause upon the carpet; viz. whether, had he been alive, he would have been a party to it, sole or in conjunction with other parties: and if not, whether, with reference to him or them who at that time could have been parties, or with reference to those who at the time of the cause upon the carpet are now parties, he would have been in any of the situations, as above enumerated, to which different interests liable to act in the character of sinister interests are naturally attached.

5. He will moreover consider, not who was the writer, but who was the author,—not whose hand the writing is, but whose discourse it is,—of whose mind the statement it contains is the expression. A written discourse may be the discourse of a person other than he by whose hand it was written,—either as being a transcript, a discourse transcribed mediately or immediately from an original writing—from a writing of which the writer was the author,—or as having been written from dictation, i. e. from the words as spoken, or from memory.

6. If the plea assigned for the exhibition of the written casual evidence in question—the letter or memorandum—be, not death of the author, but peregrination, the danger of the characteristic fraud will here likewise require to be considered: whether the memorandum or letter obtained from the individual in question were not obtained from him, either in the expectation of his quitting the country of his own accord, or in consequence of a plan for engaging him to quit it after the furnishing of this evidence, or even in pursuance of an agreement already entered into with him for that purpose.

7. The case may be, that the letter or memorandum in question was not penned till after the commencement of the suit in the course of which the question arises, whether such letter or memorandum shall be received in the character of evidence. In this case, the judge may require the party by whom it is tendered to join with the adverse party in taking measures for the subjecting the testimony in question to the truth-insuring process, in its several features of oral examination—judicial scrutiny by the judge, cross-examination by the adverse party or his agent—or such of them as the system of procedure established in the foreign country in question will admit of. And as a means of engaging him to this concurrence, will be the rendering the accomplishment of the process in question a condition sine qua non of the admission of this lot of evidence.

8. In the same way, provision may be made by the judge for giving trustworthiness to a lot of written casual evidence, already in existence before the commencement of the suit. In both cases, the lot of evidence in question, whether the substance of it be or be not admitted in conclusion into the mass of ultimate evidence, serves in the character of indicative evidence.

9. If through poverty, the party by whom the written casual evidence is adduced be unable to join in the measures requisite for subjecting it in the foreign country to the proper examination, it will rest with the judge whether to exclude it, or to receive it into the mass of ultimate evidence. But if the party by whom it is opposed offer to defray the costs of such examination at his own expense, such offer ought to be accepted, subject to the measures necessary to be taken to prevent the other party from being definitively a sufferer by the delay, especially if it appear that the desire of the undue advantage to be gained by delay is the motive, or among the motives, by which such offer has been produced.

10. Supposing the law on this behalf to be as above, and to be generally known and understood,—the less the expense of examination in partibus externis, the less the probable expense of such examination, the less the probability of the characteristic fraud, in so far as concerns the party being at the expense of making it worth the witness’ while to quit his country for the purpose of fabricating such evidence. For, supposing that expense incurred, the design which on this supposition gave birth to the fraud is frustrated. There remains the possible case—that, knowing the witness to be about to go abroad on another account, the party may, without the need of any such expense as above, have engaged him to furnish the makeshift evidence in question, taking his chance for the effect to be produced by it.

§ 2.

Hearsay Evidence.

Hearsay evidence, i. e. oral evidence of oral evidence:—oral evidence sanctioned, scrutinized, and cross-examined, of oral evidence not sanctioned, not scrutinized, nor cross-examined.

1. In the case of hearsay evidence, against the characteristic fraud, the same vigilant precautions will be requisite on the part of the judge as in the case of written casual evidence. To this danger is moreover added that of unintentional incorrectness in the statement given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness.

2. In the case of hearsay evidence of more than one remove, the judge will of course resort at once to the supposed percipient witness;—the attention of the judge, and through him of the parties, will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease: should he be in foreign parts, everything that relates to the provisional admission of his evidence, and to the purification of it, applies to this case, in the same manner as to that, where, between the deposing witness and the supposed percipient witness, there is no supposition of any intermediate pen or tongue.

§ 3.

Evidence extracted in a mode other than the most advantageous.

In this head of instruction, an apparent inconsistency will be apt to present itself at first view. It represents the legislator as surveying his own work, acknowledging its imperfections, and suffering them to continue unamended. Such and such are the different modes of extracting evidence that have been in use: of these, one only is properly adapted to what ought to be its purpose: as for the others, they are more and more unfit, in proportion as they recede from this only proper one. All these unfit ones I continue, notwithstanding their unfitness; and so doing, I now, instead of correcting the evil, proceed to apprise you of it, and put you upon your guard against their respective unfitness, and of the several degrees and causes of it.

Upon a closer inspection, the inconsistency would be found partly real and partly only apparent:—

1. In the first place, to abolish a few ill-grounded rules on the subject of evidence, is one thing: to reform the whole system of procedure, is another thing. The former task would be comparatively short and easy; the other, at best long and difficult. The former task might be accomplished long before the other, or though the other were never to be accomplished.

2. In the next place, although a thorough reform were to be accomplished, and the imperfect modes of extracting evidence were all, as far even as the nature of things permitted, all of them to give way to the only perfect one, still the reform would operate no otherwise than in futuro;—the masses of evidence that had been collected in the several imperfect modes would nevertheless remain such as they were: they could not be regenerated and collected anew according to the perfect mode.

3. In the third place, there are several cases in which, after everything that has been done in the way of reform, after the powers of reformation have been exhausted, the judge is obliged to take up with evidence extracted in a comparatively imperfect and disadvantageous mode:—in which the evidence, such as it is, must continue to be employed by the judge, it not lying within the power of the legislator to cause it to be extracted in any less disadvantageous mode. For example, evidence extracted causâ aliâ, and the witness dead.

1. First case of suspicious evidence,* —the suspicion arising from its having been extracted in the course of another cause, between other parties.

The ground of infirmity here arises from this circumstance, viz. that the party against whom the testimony is produced had no opportunity of encountering it by other evidence.

This ground will be stronger or weaker according to several circumstances:—

It may be that the party, against whom the evidence was produced in the prior cause had exactly the same interest, or what comes to the same thing, an interest equally strong, to do what was in his power to encounter it, as the party against whom it is produced in the case upon the carpet. And though the stakes should not be so great, yet if in the prior cause the interest were adequate and the means adequate, i. e. if in the joint considerations of delay, vexation, and expense, there were nothing that was of a nature capable of deterring or disabling the party from encountering the evidence,—from producing the counter-evidence,—the witnesses whether to the same fact or to the ulterior fact, necessary to the purpose in this,—though the interest itself were less strong, the effect of it upon the conduct of the party in question, and thence upon the fate of the cause, would not in general be naturally different.

In this case, the only infirmity attending the extraneous evidence with reference to the purpose of the principal suit, is what results from this circumstance, viz. that a man cannot in general have the same confidence in the exertions of another as he has in his own. To the party it will accordingly be apt to appear, that if in the prior cause the encountering of the evidence had fallen to his share, instead of that of the actual party in that cause—viz. the party against whom it was produced in that cause—his exertions might have been attended with more success. At any rate, such is the observation which he will naturally be disposed to bring forward as an argument against the competency of the credit of the extraneous evidence. But what weight is due to the observation will rest with the judge of fact to determine, consideration had of the individual circumstances of the principal case.

In this case, the supposition is, that in the principal case the means of encountering the extraneous evidence had been carried off by death, or what is tantamount to death: for if not, the case affords no reason why the evidence should not be permitted to be encountered: just as it might have been encountered, if exhibited in the principal cause in the first instance, without having ever been exhibited in any prior cause.

The present case, being the case in which the objection against the lot of evidence in question is confined to the want of opportunity for its being encountered by other evidence, by the party against whom it is now produced, supposes it free from every other objection—from every other infirmity—and therefore extracted in the best manner, with the benefit of opportunity of cross-examination consequently included.

In this case, the circumstance which principally requires the attention of the judge is the danger of collusion. A case that may happen, and that has sometimes happened, is—that by procurement or otherwise, by collusion with one of the parties to the principal cause, a prior cause has been exhibited for the express purpose of establishing as true, a statement which in reality was not true, and which would have been proved not to be true, had the evidence which the case afforded been adduced. Take, for example, the case of a marriage, a will, or any other contract. Validating facts really took place, and these are accordingly proved by testimony which has nothing of untruth in it. But by other testimony, invalidating facts* would also have been proved:—by which invalidating facts, the testimony in favour of the validating facts might have been encountered, and the effect of it destroyed. This counter-testimony being kept back, and kept back on purpose, the consequence is, that unless an opportunity be afforded of letting in the counter-evidence—the invalidating evidence—the marriage, the will, the contract, which was really invalid, must be deemed valid, and in that respect injustice be done.

Such collusion will not be very apt to take place, unless it be in contemplation of an act of unwariness, real or supposed, on the part of the law, in rendering evidence thus exhibited in a prior cause between one set of parties absolutely conclusive in a posterior cause between other parties, the faculty of encountering it not being allowed. Since in this case, so long as the percipient witness by whose testimony the fallacious testimony may be encountered and corrected, is neither dead nor tantamount to dead, such collusion would not attain its end. It is not, however, impossible, inasmuch as if the only witness or witnesses by whose testimony the fallacy could be dispelled appear likely to be short-lived, the fallacy may in that event be incapable of being dispelled, and success may crown the collusive and dishonest enterprise.

In the case of a plan of fraud of this description, it is but natural that the party to whose prejudice it would redound, should himself be aware of it: but be this as it may, it is the duty of the judge to be upon his guard against it, and act accordingly.

CHAPTER VII.

SCALE OF TRUSTWORTHINESS.

For the purpose of displaying the several modifications of which evidence is susceptible, the simplest and most instructive course that can be pursued is—to take in hand, in the first instance, employing it as a standard of comparison, by reference to which all the other modifications may be explained, that one of the whole number which upon scrutiny, and even upon the first view of it, may be termed the best.

This being premised—it will be in consequence of some determinate features of infirmity different in the case of every such species, that each of them will fail of coinciding with that one of them all which is the best.

What, then, is the best species of evidence—what is that species which, in speaking of evidence in general, we have in view, when, to distinguish it from all others, we apply to it the epithet expressive of the highest degree of value with reference to use? To characterize it, in the first place, by the effect of which it is productive in the way of use,—it is that species of evidence which, in virtue of the natural constitution of the human mind, as certified by general experience, is productive of the strongest and most determinate degree of persuasion on the part of the mind to which it is presented.

How then shall we recognise, and distinguish by inherent and fixed marks—by marks that do not wait to be imprinted by experience, that species which by the light of experience has been shown to be the best, the most persuasive—and not only at the outset the most persuasive, but at the longrun the most instructive—the least apt to give birth to erroneous decisions—to wrong conclusions?

Happily, the species which, when considered with reference to its effects, may be pronounced the safest as well as strongest—in one word, the best—is at once the most simple in its description, and that which presents itself the most frequently in practice: and this not only in the practice of a civilized state of society, but in a still more eminent degree in the original, which is as much as to say, the rudest state.

For the comprehension of the best species of evidence when contemplated in this general and preliminary point of view, a few matters of fact of general notoriety will require to be brought forward, in a station correspondent to that in which mathematicians bring to view their postulates:—

1. The first is—that concerning the fact itself, of which it is inquired whether it be true or no—whether the act, for example, of which it has been alleged that at a certain time and place it was done, whether it was done or no—a statement given by any person affirming his having been an eye-witness of that fact, will be more persuasive, and less in danger of proving fallacious, than a statement by the same person affirming his having been an eye-witness of some other fact, from the existence of which the existence of the fact in question is thereupon to be inferred. In other words, and shorter—direct evidence is better than circumstantial—circumstantial is inferior to direct evidence.

2. Another is—that concerning any fact whatever, a statement given by any person thereby declaring himself to have been an eye-witness of that fact will be more persuasive, and in less danger of being fallacious, than a statement given by the same person declaring himself to have been an ear-witness of a discourse held by another person, whereby that other person declared himself to have been an eye-witness of that same fact.

In other words, and shorter,—the evidence of an eye-witness, or other immediate and percipient witness, is better than hearsay evidence—hearsay evidence is inferior to the evidence of an eye-witness or other percipient and immediate witness.

3. A third is—that where a statement of any kind, made by any person, whether in the character of a witness or in any other character, is committed to writing, the writing itself to which such statement is so committed in the first instance, will in the character of a true and correct representation of such statement, be less in danger of being fallacious, and will as such be in general more satisfactory and persuasive, than any other writing purporting to be or designed to be a transcript of such original writing, and thereby to exhibit in the same order the same words: and this whether such transcript had for the penner thereof another person different from the penner of the original writing, or even though it were the same person writing at another time.

In other words, and shorter,—in the case of written evidence, a transcript is inferior to an original.

4. A fourth is—that all evidence is liable to produce deception, in virtue of certain causes of untrustworthiness to the operation of which it is exposed according to the sources from whence the evidence proceeds:—if that source be an object belonging to the class of things, i. e. to any other class than that which is composed of declarations or statements made by persons, then by a false colour assumed by or given to the appearance of such evidentiary things:—if that source be a declaration or statement made by a person, then by the action of some cause of aberration by which, no matter at present from what cause—say, for example, the influence of some sinister motive—the declaration or statement given by such person has been made to deviate from the line of truth.

In other words, and shorter,—all evidence is liable to be rendered false by the action of some cause or causes of deception or untrustworthiness.

5. The fifth is—that for diminishing the danger to which as above all evidence stands exposed, viz. the danger of producing deception in the minds of those to whom it belongs to judge, various expedients have been devised—say, for example, examination performed in some established mode under the eye of the judge—all or most of which are more or less employed under the system or judicial procedure in all civilized countries.

In other words, for diminishing the influence of the causes of deception or untrustworthiness in evidence, the influence of certain powers and operations is more or less relied on, and employed and endeavoured to be turned to account, in the character of securities against deception in evidence, or say securities for trustworthiness in evidence:—whence it follows, that in proportion as the efficacy of the securities thus employed corresponds to the intention with which they are employed, any article of evidence in relation to which no use or less use is made of the aggregate force of these securities, will be inferior to an article of the same sort, in relation to which that aggregate force is made the most of.

If, again, the process by which the force of these securities against deception is applied to a lot of evidence be termed scrutinizing, or say scrutinization, proportion to the same effect may be expressed in terms still more concise by saying—evidence altogether unscrutinized, or less perfectly scrutinized, will be inferior to the same evidence more perfectly scrutinized.

Thus far as to such species or lots of evidence as, being compared one with another, are capable of coming into competition. But between two large divisions which include the whole possible extent of the field of evidence, no competition, no choice, can take place. These are the divisions respectively denoted by the terms personal and real evidence.

By personal evidence, I understand all such evidence as consists of discourse or language of any kind, uttered by any being belonging to the class of persons,—uttered by him, and containing or professing to contain any perception derived, or professed by him to have been derived by him from any matter of fact.

By real evidence, I understand all such evidence as is not comprised under the description of personal evidence: all evidence not consisting of a discourse held, or purporting to have been held, by a being belonging to the class of persons.

CHAPTER VIII.

BEST EVIDENCE, WHAT?

The most advantageous mode of extracting and shaping evidence having been discussed as in the preceding chapter, we are now in some measure prepared for entering upon the question—What is the best evidence? Of the several species of evidence before enumerated, which is the best? Answer, in general terms, that which is most conducive to the ends of justice, to rectitude of decision in the first place—to rectitude of decision exclusively,—except in the cases, if such there be, where undue decision or non-decision would be a less evil than the expense or other vexation which might be the necessary attendant on the obtainment of the evidence by which rectitude of decision would be insured.

Another question:—To what purpose the inquiry what is the best species of evidence? Can any mass of evidence be in any case too great?—in any case, can the grounds in which the persuasion of the judge reposes itself be too solid? Suppose two pieces of evidence of different degrees of goodness,—can the superior goodness of the one, afford a reasonable ground for putting an exclusion upon the other? Gold is more valuable than silver: but was that ever a reason to a man for refusing a mass of silver, when he could have it gratis?

On this occasion, one broad line of distinction presents itself in the first instance. In one class of cases, it depends upon the legislator whether the evidence exhibited shall be of one or the other of the two opposite and contrasted species:—in the other class of cases, the species are such as they are; and the choice as between one species or the other of the pair, is beyond the sphere of the legislator’s influence.

In the former class of cases, the evidence as between species and species is the same in substance, and it rests with the legislator to make his option as between shape and shape. In this class of cases, the practical use of the inquiry, which is the best evidence, is clear beyond dispute.

In the other class of cases the question still presents itself, to what purpose seek to ascertain which of the two contrasted species is preferable? The answer is,—the practical use, if any, will depend upon the question, whether the two contrasted species are in conjunction with or in opposition to each other: proposed to be exhibited on the same side of the cause, the one or the other; or on the opposite sides?

If on the same side, to what practical use can the determination tend, supposing it to be determined that the one sort is preferable to the other? To this and this alone:—viz. that in case of superfluity, the inferior sort rather than the superior shall be unexhibited.

If on different sides, to this and this alone—viz. that if on the one side all the evidence exhibited be of the one sort, on the other side all the evidence exhibited be of the other sort, the persuasion should place itself, as of course, on that side which has the superior sort of evidence for its support.

Thus much appears plain and unexceptionable; but a circumstance not to be neglected is, that with a view to practice, the question of superiority as between evidence and evidence lies ultimately—not between one species of evidence and another, but between one individual lot of evidence and another. If in this view the superiority as between sort and sort be worth inquiring about, it is only with reference to and as a means of coming at the solution of the ultimate question, as between individual and individual. From the determination that the first of two contrasted species was preferable to the second, no absolute conclusion could follow as to the superiority possessed by an individual lot belonging to one species in comparison with an individual lot belonging to the other species, on any other supposition than that the least persuasive individual lot of the superior species is in every instance more persuasive than the most persuasive individual lot of the other species. To judge whether this superiority in comparison of species over species be thus uniform and all-extensive, is a question the answer to which must wait, till the time come for bringing the several pairs of contrasted species under review with reference to this purpose.

The examination, to be complete and completely satisfactory, will of course require to be carried through every species of evidence; that is, through every two sorts of evidence which are capable of being distinguished from one another for this purpose; and at any rate, through the several sorts of evidence which have been already indicated.

Let us begin with the class of cases first described. It is that topic of the two which will be most productive of satisfaction—the only one that will be found productive of any very considerable practical use;—unless it be that of serving more effectually to guard the legislature against those illusions—the result of partial and hasty views—by which whole species of evidence have been marked out for inexorable exclusion.

I. First class of cases:—the case in which the question is between shape and shape (and the choice of the shape depends altogether upon the legislator) affords the following pairs of contrasted species:—

1. Scrutinized evidence, and unscrutinized evidence: and in the former case, more perfectly scrutinized, and less perfectly scrutinized.

2. Written and oral: or, to put the distinction upon its proper and clearer footing, evidence expressed by permanent signs, and evidence expressed by evanescent signs.

3. In the case of written evidence—original and unoriginal: that is, in this case autographic, and transcriptious.

I.

Comparison the first—Scrutinized with unscrutinized; and more perfectly with less perfectly scrutinized.

The catalogue of scrutative arrangements has already been brought to view: they are comprised in the mode of proceeding to be pursued in the examination of witnesses:—1. Questions in a series—successive, not simultaneous; that invention, mendacious invention, may have the less light to work by;—2. Answers extemporaneous, and thence unpremeditated and uninstructed;—3. Questions not immutably prearranged, but each succeeding question grounded on, and thence guided by the answer to the question last preceding;—4. Depositions of each preceding deponent kept concealed from each succeeding deponent: that memory, and not mendacious instruction, any more than mendacious invention, may be the guide;—5. Cross-examination; i. e. the testimony which has been extracted by questions put by the party at whose instance the witness is produced, checked and completed by questions propounded on the other side;—6. Confrontation upon occasion as necessary between deponent and deponent; for example, non-litigant witness and defendant; that personal identity may be the more satisfactorily established;—7. Re-examination of a deponent upon occasion; that other depositions given on a preceding examination may be corrected by lights collected as well from the depositions of precedently examined deponents, when communicated to him, as from his own maturer recollections;—8. Publication; certain, or more or less probable, and consequently expectation entertained by each deponent of the publicity of his depositions; and thence an increased chance for the ultimate detection of any errors on his part, designed or undesigned.

If the above arrangements, each of them without exception, have their use, in how high a degree must a lot or an article of evidence that for the depuration and completion of it has had the benefit of their united influence, be superior to one which has not had the benefit of any part of that influence! But moreover, if there be not one of them that in the state of things to which it applies has not its use, it will follow, that by any one of them that can be added, the superiority of the security for the correctness and veracity of the evidence will be increased; by every one omitted, it will be decreased.

II.

Comparison the second—Written Evidence, with oral; or, more expressively and properly, Evidence expressed by permanent signs,—with Evidence expressed by evanescent signs.

If permanence on the part of the character by which a body or an article of evidence is expressed, be necessary to the prevention of subsequent deperition and misrepresentation, as well as for the diffusion of it, upon occasion, with whatever degree of publicity the case may require, it will be evident in how important a degree the written, say rather the permanent form, must be superior to the unwritten, say rather the evanescent.

Establishment—the practice established under both systems, the Roman and the English—will here be apt to suggest another comparison:—oral scrutinized—say completely scrutinized in the best manner; with written unscrutinized, for such in fact is the distinction, the comparison, the option, that blindness and neglect have established and brought to view in the practice of both systems: and which, it may accordingly be asked is preferable, or superior to the other?

I answer—The comparison, in a practical view, is altogether needless. No body of evidence—not any the minutest article of personal evidence—is what it ought to be, unless it be scrutinized, completely scrutinized, in the best and completest manner, and moreover in the written form, at the same time. Between the properties of purity and completeness on the one hand, and permanence on the other, there is not the smallest degree of natural repugnancy. In the best mode, or rather only tolerable mode, of extraction, that which is in use in England in the trial by jury, these properties are actually combined. Each article of evidence—each answer, as fast as it is drawn through the scrutative tests—is laid hold of and rendered permanent by writing.

In Romano-Gallic jurisprudence and legislation, the question is not only started, but decided without doubt or exception; written evidence, the best without dispute. Preuve par écrit, preuve littérale, is the perfection of evidence:—preuve testimoniale, called also preuve orale, is but a makeshift. What is this preeminently superior species of evidence? It is a species of evidence uncompleted, unpurified by any of the scrutative operations:—what is the other, so decidedly inferior, the makeshift sort of evidence? It is the only one of the two that has been subjected to the salutary action of any of these tests,—one that, though not to all, has been subjected to most of them—to all of them, cross-examination excepted (meaning cross-examination by questions propounded by the adverse party:) nor even is that excepted in all cases—viz. in penal cases instituted in prosecution of the most highly penal classes of offences.

And in what ratio is the superiority of such written evidence, in comparison with such oral testimony? On the ground of reason, the question is palpably an absurd one:—the answer is impossible. On the ground of establishment, the answer is plain and clear:—exactly in the ratio of two to one. In a certain class of cases, indeed, oral is thrown out altogether,—it being in those cases good for nothing. In another class of cases, it is however admitted; but where it is admitted, it is inferior to the other, and in that same ratio. How so? Because, in the case of oral testimony, where that species of evidence is admitted to form a ground for a decision, there must be the testimony of two witnesses to warrant a decision:—whereas, in the case of written testimony, where that species of evidence is to be had, the testimony of a single witness serves. Absurdity the first:—to pretend to require the evidence of two witnesses as a necessary ground of persuasion. Absurdity the second:—to accept at the same time of the testimony of a single witness as equivalent. Absurdity the third:—to prefer to almost completely scrutinized evidence, evidence altogether unscrutinized, merely because the signs by which it was expressed at the first moment of exhibition were of the permanent kind, instead of the evanescent. Absurdity the fourth:—to reject this double portion of scrutinized evidence, when half the quantity of unscrutinized evidence is admitted and treated as conclusive. Observe all the while, that the evidence thus styled unwritten is at the time at which the decision comes to be pronounced, just as effectually written as that by which the name of written is monopolized:—the only difference is, that the so-called unwritten, is not written till it has been improved by the action of the meliorative and completive tests. It is true, that in some cases the written evidence will be fresher in the memory than the oral, as in the case of preappointed evidence: but the preference extends much beyond these cases.

And is the procedure of the Romano-Gallic system so completely absurd, then, as it here stands represented? Not exactly so,—not quite so absurd in substance as in appearance. The sort of evidence here in view, under the name of written evidence, is in most cases preappointed, and in some even official evidence: and that it is in the nature of preappointed evidence in general, and more particularly of official evidence, to command a more uniform degree of confidence, to generate a more uniform degree of persuasion than casual evidence, has been already submitted, and will be made more particularly apparent in its place.

Where, then, lies the true comparison?—where the real distinction? Not between written evidence and unwritten, but between preappointed evidence and casual: for though both should be written, or both for ever unwritten, the ground of preference would be the same.

Barring criminal falsification, written evidence, being permanent, expresses itself as itself at all times. Of oral evidence, the identity vanishes as soon as it is exhibited. The next moment it, or rather what professes to be it, is no longer original evidence, but unoriginal, hearsay evidence. Its identity is still questionable, though, when exhibited a second time, it is exhibited by the same mouth.

Written evidence—evidence by permanent signs—may pass through a hundred hands, each taking transcript of it,—each successive transcript taken, not from the original, but from the last preceding transcript: it might in this way pass through a hundred hands, and still in substance—nay even in words—be exactly the same evidence. What would have become of a piece of oral evidence of the same tenor, after it had passed in this same way, each time at the distance of a few days, or though it were but a few hours or minutes, through a hundred mouths?

Suppose in both cases the piece of evidence in question—oral in one case, written in the other—to be brought into existence on any occasion but a judicial occasion,—in any place but a court of justice. On this supposition, the oral evidence, whenever the substance or alleged substance of it comes to be exhibited in a court of justice, cannot exhibit itself but through the medium of another mouth, or at least a separate narrative from the same mouth, and therefore, in the first case, stands upon a footing nowise different, and in the other case but little different, from that of unoriginal hearsay evidence.

In these circumstances may be seen just grounds for preferring written to oral evidence: but these are not the grounds upon which that preference is founded in the cases above referred to.

Comparison the third—Original with transcriptitious Evidence.

The superiority of the former is altogether out of doubt. In the case of transcriptitious evidence, the maximum of ideal perfection would be equality with respect to the original; and at this absolutely highest pitch it will seldom happen to it to stand in the opinion of a judge. Intentional and fraudulent departure on the part of the transcriber will always present a possible cause of departure:—unintentional incorrectness, the result of human infirmity, presents such a cause, the efficiency of which, cannot in any ordinary instance, be regarded as being in a considerable degree improbable. By successive revisals, or even by a single revisal, security may be carried to a degree sufficient for practice even in the most important cases: but mathematically and strictly speaking, absolute equality with the original is a limit towards which a transcript may be ever rising higher and higher, but up to which it can never rise.

From the above three comparisons, the answer to the question, What is the best evidence?—meaning, what is the best of all possible forms in which a mass of evidence given in substance can be presented?—may, it should seem, be exhibited in these words:—The best form to which the testimony of a given person can be consigned is—that in which, being scrutinized in the completest manner, it is in the course of the scrutiny put into the form of a written instrument: whereupon, as often as occasion shall present itself for the taking it into consideration for any judicial purpose, it is the original instrument in question, and not a transcript of it, that is so employed.

From the opinion formed—from even the demonstration obtained of the superiority as between species and species of evidence, the practical conduct proper to be observed by the legislator does not however follow with any such degree of uniformity as at first sight might be supposed:—not even in this class of cases, in which the choice may at first sight appear so completely dependent on the will of the legislator:—

1. In the first place, though in general, and taking together the whole aggregate of individual cases, it depends for the most part upon the legislator, whether to have the evidence in the superior or the inferior shape, yet that is by no means the case in each individual instance. Owing to different causes that will presently be more particularly brought to view—as death—infirmity of mind or body, curable or incurable—unavoidable absence, for example of persons—deperition or displacement of papers,—this or that piece of evidence may not be obtainable in the superior form, and yet may be obtainable in some inferior form. Comes then the question—shall the evidence be employed in the inferior form in which it is obtainable, or shall it be set aside and rejected altogether?

2. In the next place, what in this point of view is the best evidence, may not in every point of view be the most eligible. Rectitude of decision being the main and direct object in view of this and every branch of procedure is the only object to which the inquiry has principally and constantly been directed. But this, though the principal object, is but one of a number of objects, none of which ought for a moment to be lost sight of. Avoidance of the several collateral inconveniences—delay, vexation, and expense,—in these several collateral inconveniences the legislator may observe so many collateral objects, so connected with the main end that, for the avoidance of these, considerable sacrifices of the main object will in many instances be required. Of such or such a description is the best evidence which the case admits of; but to exhibit that best evidence may in this or that case be an operation attended with such a degree of delay, vexation, expense—any or all of these inconveniences—that the difference in point of superiority, between the best when charged with them, and the next best when clear of them, may not be worth the purchase.

In the effect of the docimastic process upon these two different species of evidence, a very considerable effect will readily be perceived. Parol evidence, brought into existence as it is under the influence and by the very operation of the docimastic process, is converted into written evidence—not the whole together, but in parts and gradually as it comes into existence as the words make their way out of the deponent’s mouth.

When a piece of written evidence is subjected to the docimastic process, the result is,—not the original document—the piece of written evidence alone,—but a sort of compound mass, of which the written document forms the basis; the remainder being a mass of parol evidence reduced to writing in its nascent state, and superadded to the original piece of written evidence. The man whose discourse the writing is, is subject to examination vivâ voce, and his answers taken down and put into writing as they issue from his lips: the original writing remains as a standard of comparison for the result of this extemporaneous examination, each serving as a test by the help of which the truth of the other is tried and judged of.

In this view of the matter, a mass of evidence collected upon the best principles, and hereby put into the best shape, will unite three characteristic advantageous properties:—1. Originality,—(original writing being preferred to copies;—and in oral evidence, the narrative of the observing witness himself, to the narration given by one whose information is derived solely from a former narration given by an observing witness speaking out of court;)—2. Triedness, if the term may be allowed;—3. Permanence;—be it oral, be it written, be it in which of the two shapes it will,—at the moment of its first coming into existence, the evidence itself will of course be regarded as preferable to any supposed repetition made of either the purport or the supposed tenor of it:—from the action of the docimastic process, it will receive triedness:—from the written instrument to which it is consigned, it will derive at the instant of its appearance, permanence.

II. Second class of cases:—in each, a pair of contrasted species of evidence, where the distinction turns, not upon the form or mode of exhibition—a circumstance variable at the command of the legislator,—but upon substance—upon the unchangeable nature of the evidence itself.

Comparison the first.—Evidence at first hand with hearsay evidence.—The superiority of first hand evidence over hearsay evidence, even of the first remove, and à fortiori of every ulterior remove, stands upon ground of the same sort with the superiority of original over transcriptitious evidence in the particular case of written evidence—upon ground of the same sort, but upon much clearer and stronger ground. Mendacity apart, in the case of transcriptitious evidence, the only efficient cause of aberration to the action of which it is exposed, is a deficiency of attention:—in the case of hearsay evidence, the same cause operates with augmented force, with the addition of another very powerful cause—failure in point of memory; a cause the force of which goes on increasing ad infinitum with the distance in point of time between the hearing of the supposed extrajudicial statement or narrative, and the supposed repetition made or said to be made of it for the purpose of justice.

Thus much upon the ground of simple incorrectness,—a ground which of itself is amply sufficient to warrant the decided and invariable superiority of first hand over the best possible modification of hearsay evidence.

On the ground of mendacity and fraud, the persuasive force of hearsay evidence stands exposed to further defalcations.

The choice as between evidence at first hand, and hearsay evidence, depends (it may be objected) upon the legislator in this case, as well as in the three former ones:—for where the percipient witness is forthcoming, it depends upon the legislator either to insist upon his coming forward in the character of a deposing witness, or to accept of his testimony, i. e. of what passes for his testimony, through the medium of another person, who in such case takes upon himself the function of a deposing witness. Thus much cannot be disputed:—but in this case the question turns not upon the form, but upon the very substance of the evidence. The question is not, in what form the testimony of a given witness shall be exhibited, but whether, in a case where the testimony of a single witness would be the best, it shall be excluded in this way by the interposition of a second witness.

Where the case affords first-hand evidence, the legislator, if he think fit, may permit or order it to be converted into hearsay evidence. But it will often happen that a lot of evidence—a statement or narrative—is not to be had in any other shape than that of hearsay evidence—the percipient witness not being forthcoming. In these cases, it does not depend upon the legislator to have it converted into first-hand evidence. He must admit it in this shape, or not have it at all.

On another ground—an additional and perfectly distinct ground—the inferiority of hearsay evidence, in comparison of first-hand evidence, has already been established. In all hearsay evidence, in respect of the supposed original, the essential and vital part of it, it is completely and necessarily unscrutinized. It is the essence of hearsay evidence to contain two essentially distinct narrations or statements of the same fact or supposed fact:—the one a narrative or statement indubitably given, the deposition given by the deposing witness;—the other, a narrative or statement said by him to have been given:—the narrative or statement said to have been given at the prior point of time in question, in the other place in question, by the alleged percipient or intermediate witness. The narrative or statement given by the deposing witness may be scrutinized or unscrutinized:—if scrutinized, more or less completely scrutinized;—but the supposed narrative or statement alleged by the deposing witness to have been given by the supposed extrajudicial witness, whether percipient or intermediate, can never be subjected to any the slightest degree of scrutiny.

Comparison the second—Preappointed evidence with casual evidence.—Here, as in some of the preceding cases, the superiority is written upon the face of the very terms themselves. Preappointed evidence is picked evidence: casual evidence is evidence taken as it comes.

Comparison the third—Official with unofficial preappointed evidence.—Subordinate to the distinction between preappointed and casual evidence, is that which applies to preappointed—the distinction between official and unofficial evidence.

Here also the superiority, at least in all ordinary cases, is written in characters not unconspicuous. Unofficial preappointed evidence is evidence picked by individual parties, or perhaps by only one of two contending parties:—official evidence is evidence picked by the legislator, and under him by the administrator, or even by the judge.

Comparison the fourth—In the case of casual evidence, personal with personal—the evidence of a person of one description, with the evidence of a person of another description.

To this head may be referred the numerous causes of exclusion with which the English as well as the Roman law teems in such abundance.

The impossibility of establishing, on the ground of any superiority as between species and species of personal evidence, any determinate superiority as between individual and individual witness—much more to such a degree as to build, either upon the ground of certain falsity or inutility, a peremptory exclusion—has been already more than once indicated, and some foundation at least laid for the establishment of it. Whether the danger of simple incorrectness or bias or mendacity be considered, the degree of credibility is, in the instance of every species of witness that can be described, susceptible, of almost any degree of persuasive force, from the lowest to almost the highest: to the very highest in most cases—to the very lowest in all cases.

On the ground of simple incorrectness, it has been seen that the force of the several causes of aberration from the truth is variable ad infinitum.

So far as mendacity is concerned, it has been seen that veracity or mendacity depends upon the preponderance, as between the several causes of veracity and mendacity,—causes of and obstacles to veracity,—motives acting in the character of tutelary motives—motives acting in the character and direction of seductive motives;—and that the force of all these various elementary and antagonizing circumstances is in each instance susceptible of variation in an indefinite degree;—and that, of the actual degree of force with which they actually operate in each individual instance, it is impossible that any tolerably accurate estimate can be made by any human eye.

Yet from an observation made of the exposure of the mind in question to the action of some one motive acting in the character and direction of a seductive motive, not legislators only, but even judges, have of their own authority taken upon them to shut the door of justice against witnesses in crowds in a vast variety of instances; and thus acting—with the most self-satisfied confidence—with an acquaintance with the anatomy of the human mind below that of babes and sucklings, in the degree in which deliberate error is more remote from truth than simple ignorance.

Comparison the fifth—Personal with real evidence. From a comparison between these two species of evidence, little practical use can be derived. They can never come in competition with each other: and it is seldom that either can supersede the other. Supposing them on opposite sides from the mere statement that on the one side the evidence is of the real kind, on the other side of the personal kind, it is impossible to say with reason which preponderates. Real evidence without personal, is scarcely susceptible of being so perfectly satisfactory as personal is without real, or indeed of being sufficiently satisfactory to afford a reasonable ground for decision of itself. Conception being assumed for the purpose of persuasion, personal evidence may by the number of witnesses be strengthened to such a degree as to render real evidence superfluous:—whereas in some cases (for example, in cases of disputes concerning boundaries,) the matter of fact in question is not capable of being so much as conceived without the help of real evidence.

By real evidence, even where the nature of the case does not render it absolutely indispensable—where sophistication, fabrication, and alteration, are out of the question—a degree of satisfaction may in some cases be afforded, beyond any that can be afforded by any admissible quantity of personal evidence.

Suppose evidence of both these descriptions forthcoming on one and the same side, it is impossible to conclude, from the mere contemplation of the specific difference, that either is superfluous:—in this or that particular individual case, it may happen that the real evidence which the case affords may be rendered superfluous by the body of personal evidence: but so may any one part of the body of personal evidence by the rest.*

If evidence be viewed by other eyes than those of the judge, as is very commonly the case, at least in English judicature, it is a sort of real evidence at second hand—a sort of composite evidence—supposed real evidence exhibiting itself through the medium of personal evidence.

Comparison the sixth—Direct with circumstantial evidence.

Here, likewise, the title to superiority will appear almost as soon as the import of the denominations is apprehended. Direct evidence is evidence of the fact itself—evidence from whatever sources drawn, and in whatever shape exhibited. Circumstantial evidence is evidence not so much as tending to produce any degree of persuasion in regard to the existence of the principal fact, any otherwise than in so far as it tends to give birth to a like persuasion in respect of the evidentiary fact. For a persuasion of, to be altogether equivalent to a demonstration of, the principal fact, the connexion between the one and the other must be absolutely an inseparable one: and the instances in which so perfectly close a connexion is discernible will in practice be extremely rare. In point of persuasive force, circumstantial evidence, circumstanced in the same way in all other respects, cannot at any rate rise higher than to an equality with direct evidence: it will very seldom rise so high: and it may fall short of rising to the same height, by any distance on a scale, to the length of which no limits can be assigned.

Not but that circumstantial evidence will in most, if not all cases, be a very desirable addition and corroboration to a mass or lot of direct evidence.

Not but that circumstantial evidence may even suffice to produce the degree of persuasion requisite even for causes of the highest importance—for causes in which even life is at stake. Accordingly, under the English law, though perhaps not under the Roman, capital sentences have been pronounced and executed upon the single ground of circumstantial evidence, without a particle of direct evidence.

It is commonly obtainable with greater facility, in greater quantity, and of a quality less open to suspicion than in the case of direct evidence. It is less easily concealed or suppressed, and more frequently obtainable from less exceptionable, or altogether unexceptionable witnesses.

Written extrajudicial Evidence.

In speaking of the several contrasted and respectively commensurable species of evidence opposed to each other in pairs, it will be necessary to comprehend in the same view the anomalous incommensurable species of evidence, with which no other can be found to contend or match:—I mean that of which some description has already been given under the name of written extrajudicial, and which is also supposed to be unofficial, and in every respect unpreappointed, evidence.

The evidence before spoken of, as well under the name of written as under the name of oral, has been supposed to owe its birth as well as its exhibition to the creative powers of judicature. Even in the case of hearsay evidence, though this could not be affirmed of the supposed narrative or statement of the supposed percipient or any intermediate witness, it is not the less true of the immediate evidence—the evidence of the deposing witness.

Looking a little more closely at this anomalous, but very frequently recurring species of evidence, we shall find it to be analogous in its essential properties to the evidence of a percipient or pretended percipient witness:—the difference is—that it is fixed by virtue of writing, and introduced to the notice of the judge, without the intervention of any person in the character of a deposing witness; that sort of deposition excepted, which consists in the mere act of authentication—the act by which it is presented as being the discourse of such or such an individual, for whose discourse it is intended to pass. To determine the persuasive force possessed by the species of evidence thus denominated, it will be necessary to have examined the nature of hearsay evidence. For it is only by making the analysis, and as it were the decomposition of hearsay evidence, that a correct and clear conception of its nature can be obtained. We shall find it consisting of the first of the two distinct members, of which members at the least, every distinct article of hearsay evidence essentially consists,—I mean the supposed evidence of the supposed percipient, or extrajudicially narrating witness,—but in a fixed and thereby improved state, into which it is put by being consigned to permanent signs. Accordingly, like that frustrum of a piece of hearsay evidence, we shall find it incapable of being subjected to the action of the depurative and completive processes so often mentioned. You might cross-examine the writer if you had him before you, but the writing itself is incapable of being cross-examined.

CHAPTER IX.

ENGLISH LAW SCALE OF TRUSTWORTHINESS.

English lawyers on their parts have their scale of trustworthiness in evidence. It consists of two degrees:—the best evidence, and whatever is not the best. For they speak of the best evidence: and in the form of a rule they have a proposition, of which the best evidence is the subject:—“You must give the best evidence that the nature of the thing is capable of.”* By this description, all evidence but regular evidence extracted in the best mode, in a case where preappointed evidence is out of the question, would be excluded:—all testimony but regular testimony extracted in the mode of jury trial—all makeshift evidence at any rate, not to speak of circumstantial evidence, or any other evidence exhibited by affidavit, or in the way of equity justice.

This description being plainly incompetent, and perceived to be so, the expression has been interpreted by another; that is, translated into a different one:—“You must not exhibit any evidence that supposes evidence of a better sort in your own power.”

One example, and one only, is given by Buller, of the application of this rule: and previously to the giving of this example, the rule itself is taken in hand, and explained in such sort as to be nearly explained away and modified in such a manner as to convey a meaning altogether different from that which, without the explanation, it would have brought to view:—“The true meaning of this rule,” he says, “is, that no such evidence shall be brought, that ex naturâ rei supposes a still greater evidence behind, or in the party’s possession or power.” As to the example, it is that of a man’s offering a copy of a deed or will, where he ought to produce the original:—and the case in which he ought to produce it is immediately explained to be any case except where he “proves the original deed or will to be in the hands of the adverse party, or to be destroyed without his default.”

To judge of this rule by this example (and no other example is given of it, or referred to by it,) it amounts to neither more nor less than this—viz. that in written evidence, and in particular in written preappointed evidence, an original is preferable to a transcript: and of these two articles, and these alone, is the scale of trustworthiness of evidence, as given by Judge Buller, composed, with the work of Chief-Baron Gilbert for his oracle and his theme. And such is the produce of the wisdom accumulated during so many centuries, ending with the present time, by the didactic writers on this subject!

[* ]See Vol. I. p. 567. Uses to be drawn from the Power of Instruction.

[* ]See Letters to Lord Pelham, and Collins on New South Wales.

[* ]The French word protégé is nearly adopted into the English language. There was the most urgent want of it. The word patron, which used to serve for protector, has no correlative to it: client, the correlative to patronus in the language of ancient Rome, is not so in that of England.

[* ]In the language of the English law, a witness whose good wishes are looked upon as being in favour of the party by whom his testimony is called for, is called a willing witness: one whose wishes are looked upon as being adverse to that side, an unwilling witness.

Addressing myself once to a friend whose experience was such as in the case in question was calculated to stamp a particular value on his estimate, I asked him what, if he were obliged to assign a proportion, would be the proportion he should name as between the number of willing and the number of unwilling witnesses. After due reflection, the answer was, the proportion of 30 to 1. The conjecture of another was 20 to 1.

It would, however, be a great mistake, if the magnitude of this ratio were to be imputed to no other causes than those mentioned in the text. Three or four other causes require to be taken into the account: one of these universal and perpetual in its operation; the other arising more particularly out of the actual state of the English law:—

1. Among the several indications which have been mentioned, though far from being the only one, as leading to the discovery of evidence, one is the information expressly given, or free conversation used on the subject, by the percipient witness himself. In this case, the actual and direct information spontaneously given is a scarcely ever failing indication of good will already entertained by the informant towards the party to whom the information is thus voluntarily communicated. Even where no such direct and purposed communication takes place, but the information comes round to the party through a course in some measure accidental, by repetition of the casual conversation of the witness in which it originates, the freedom and publicity of the discourse is at least a mark of the absence of ill will;—inasmuch as, in case of a disposition of that adverse kind, strict silence would be prescribed by it, and every word that could be expected to transpire would be an act exercised in opposition to the supposed wish and purpose.

2. Another cause is, that so far as a man has his choice of witnesses,—and that, of the persons who are pointed out to him by their respective opportunities as likely to have obtained such perceptions as, with relation to the facts in question, have rendered them percipient witnesses,—such and such alone will naturally be called upon by him to come forward in the character of deposing witnesses as he expects to find well disposed, or at least not ill disposed to his side of the cause. But so long as they are not ill disposed, if, before they are thus called upon, they were but neutral, the tendency of the cause already above noticed is, as is there observed, to render them favourable, to range their wishes and partialities on his side.

3. The case is the same, so far as the choice of witnesses results from the choice of facts. Among the evidentiary facts which the cause furnishes, such and such alone will naturally be endeavoured to be established, the evidence of which presents itself to a man as likely to operate in favour of the principal fact which the nature of his claim engages him to establish. If in this way this or that fact appear to make against him, he will turn aside from it, and leave to the other side the bringing forward that fact, with the evidence by which it would be established.

4. A cause particularly connected with the actual state of English jurisprudence, is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whose possession of the required facts is inferred from their situation at the time in question; in a word, from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies, evidence of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another: and the testimony of witnesses, whose evidence being of the hearsay kind, could not with propriety be received into the mass of evidence on which the grounds of the decision are composed, may yet, in the character of indicative evidence, serve to bring to light the testimony of immediate witnesses, who being ill disposed to that side of the cause which stood in need of their assistance, would not have come forward of themselves, nor would have been brought forward at all, but for the indication so obtained.

But the greater the number of unwilling witnesses which are by the above or any other cause excluded, the greater of course must be the number of willing witnesses, in proportion to the whole number brought forward and examined.

[* ]Deceased.] For so long as he is living, the fraud cannot, upon the principles of this work, take place: the success of it being rendered hopeless by the examination of the person in question vivâ voce upon oath.

[* ]No other cause is discussed in the MSS.

[* ]For example—force, intoxication, or permanent insanity.

[* ]Cases, it is true, are not wanting, in which a degree of satisfaction will be afforded by real evidence, beyond the highest that can be afforded by any quantity, at least any admissible quantity, of personal evidence. Among the sources of real evidence, is the relation of cause and effect; and between cause and effect (meaning species of cause and species of effect,) the connexion is in many instances, especially in physical agency, closer by a great deal, and less frequently broken by a great deal, than the connexion, between the fact of the exhibition of this or that lot of human testimony, and the truth of that testimony, i. e. its complete exemption as well from incorrectness as from mendacity. By the existence of a piece of handwriting, the existence of a writer is proved with more complete persuasion than by the testimony of any number of witnesses; though not necessarily with equal certainty the existence of this or that individual in the character of the author of that individual piece of writing:—by the existence of a piece of painting or sculpture, the existence of a painter or sculptor: and though in these last instances, the imitative operativeness of nature may have gone farther than could have been supposed, yet there are lengths up to which, were it to be affirmed to have been stretched, the evidentia rei, even at second hand, and though only reported through the medium of personal evidence, would probably be thought to oppose a more powerful mass of counter-evidence than could be overcome by any admissible number of witnesses.a

[* ]Buller, pp. 225, 277. Gilbert, pp. 6, 7, 41, 84, 85.

[* ]Cases, it is true, are not wanting, in which a degree of satisfaction will be afforded by real evidence, beyond the highest that can be afforded by any quantity, at least any admissible quantity, of personal evidence. Among the sources of real evidence, is the relation of cause and effect; and between cause and effect (meaning species of cause and species of effect,) the connexion is in many instances, especially in physical agency, closer by a great deal, and less frequently broken by a great deal, than the connexion, between the fact of the exhibition of this or that lot of human testimony, and the truth of that testimony, i. e. its complete exemption as well from incorrectness as from mendacity. By the existence of a piece of handwriting, the existence of a writer is proved with more complete persuasion than by the testimony of any number of witnesses; though not necessarily with equal certainty the existence of this or that individual in the character of the author of that individual piece of writing:—by the existence of a piece of painting or sculpture, the existence of a painter or sculptor: and though in these last instances, the imitative operativeness of nature may have gone farther than could have been supposed, yet there are lengths up to which, were it to be affirmed to have been stretched, the evidentia rei, even at second hand, and though only reported through the medium of personal evidence, would probably be thought to oppose a more powerful mass of counter-evidence than could be overcome by any admissible number of witnesses.a

[a]Case of the supposed natural head of Louis XVI. to be raffled for, for a subscription of £10,000.—See Mon. Mag. June 1, 1803, p. 442.