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• 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.)

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.

[* ]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.