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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER X.

OF EVIDENCE TRANSMITTED THROUGH AN INDEFINITE NUMBER OF MEDIA.

We come now to the case where the information in question presents itself as if transmitted through media, simple or complex, as above described, and in each case with repetitions, in any number, of any one or more of the elements.

The modifications of which this case is susceptible, are evidently infinite. Happily, the conduct that seems proper to be observed in relation to them will be found capable of being determined by a few simple principles.

The first point to be ascertained under this head, is the influence exercised by the number of the media upon the probative force of the information thus conveyed.

For this purpose, instead of the word medium, there may on some occasions be a convenience in employing the word degree.

The mode in which this is to be done, is by reckoning, for every medium through which the evidence passes, a degree. Thus, hearsay evidence through one medium is of the first degree, through two media of the second degree, and so on.

1. In every succession from one medium to another, by which a supposed extrajudicial statement passes, in its way from the supposed percipient or other primary extrajudicial narrator, to the ear or eye of the judge,—it loses a portion of its probative force.

2. This it does of course from the mere consideration of the general chance of incorrectness, and without taking into the account any peculiar chance of incorrectness capable of being produced by the idiosyncratic character of any of the supposed intervening relators.

3. The circumstance of mendacity or bias affords likewise at every step an additional chance or probability of incorrectness, as well as of falsehood in toto: but this chance, depending upon idiosyncratic character and circumstances, is incapable of being estimated, any further than as the situation and character of individuals is taken into the account, and made the subject of special investigation.

4. Conceive divers supposed extrajudicial witnesses of the same remove or degree, each represented as confirming, in tenor or in purport, the supposed statement supposed to have been given by the rest:—for each such witness (credit given to the fact of their having existed in that character,) the evidence acquires a portion of probative force.

5. But the greatest additional portion of probative force capable of being thus acquired, can never be great enough to raise the probative force of a lot of hearsay evidence standing at that degree, to a level with one standing at a higher degree, i. e. in which the number of media it is supposed to have passed through is less.

6. Deponens (for example) states, that, on a certain occasion, a number of persons, whom he names (John Middleman, Thomas Middleman, and others,) concurred in assuring him that they were present when Percipiens was giving an account of a duel fought in his presence between the defendant and Occisus, in the course of which Occisus received his death wound. It is evident that, so far as Deponens is believed, the fact of defendant’s having been the cause of the death of Occisus will acquire an additional, and (setting aside idiosyncrasy) a determinate, portion of probability, for every additional person of which this number is stated as consisting. But, if there were a thousand such supposed intermediate and mutually confirmative extrajudicial relators, this could never impart to the hearsay evidence of Deponens any such degree of probative force, as if Deponens, instead of representing himself as having taken his information through these thousand media all at the same degree, were to represent himself as having himself taken it immediately from the lips of Percipiens.

Recapitulation:—I In the case of transmitted evidence, the probative force of the information presented immediately to the judge, is inversely as the number of degrees. 2. Supposing, at each degree, one witness, and no more; at each degree, it is therefore inversely as the number of media or witnesses. 3. But, at any given degree, it is directly as the number of witnesses standing at that same degree, and supposed to have agreed with one another in their respective extrajudicial statements in relation to the same fact.*

Hence it appears how inconsiderate and inadequate the provision is, of those laws, which, without entering into any such explanations as above, take upon them to obviate misdecision, by requiring, as a necessary ground to the validity of the decision, a specified number of witnesses. The number may be completed, and the probative force of the evidence may in fact, instead of greater, be but so much less, than if there were but one.

On the part of the judge, common honesty, enlightened by common sense, would (it may be thought) be sufficient to supply any such deficiencies on the part of the legislator, and thence to prevent misdecision on this ground. But the instances in which the light of common sense has been extinguished by the vapours of jurisprudential science, are, as it will be seen throughout, but too abundant: and to obviate in that quarter some apprehended deficiency in the article of common honesty, is the undisguised object of the legislator in the framing of such restrictive and exclusive regulations.†

Transmitted evidence purporting to have passed through more media than one, may still be received, whatsoever be the number of such media: to wit, in every case in which makeshift evidence transmitted through no more than one medium would be received—always under the same conditions and restrictions. So likewise in the case where the individual description, or even the number of the media, cannot be ascertained.

To a mind impregnated with the principle of the excluding system, a proposition to this effect cannot but appear in the highest degree alarming. What? let in upon the mind of the judge a deluge of evidence, to the untrustworthiness of which there is no bounds?

Reasons in support of the rule—arguments à priori, supported and well supported, by arguments à posteriori—are, however, by no means wanting: reasons, and such (it is believed) as will be found satisfactory upon the whole.

1. The main and most striking reason is, that, by the alleged increase in the number of the media, no new facility is given to fraud. On the contrary, it can never answer the purposes of fraud—it would be unfavourable to the purposes of fraud, falsely, or even truly, to represent any such increase. That assurance of correctness cannot but be diminished in proportion to the number of media the evidence has passed through, is a truth, the force of which cannot but be felt by every mind to which it is presented. But a man actuated by fraud, intending deception, to be brought about by mendacity, will of course give to the information the most plausible, the most trustworthy, form, of which it is susceptible: he will never spontancously and unnecessarily multiply causes of untrustworthiness and distrust in regard to it.

A man says what is not only sooner said, but more likely to be believed, and yet not more likely to be detected if false, if he says, I had the fact from Titius, who said he saw it, but is now dead,—than if he says, I had the fact from Titius, who is dead, and who says he had it from Sempronius, who, if Titius is to be believed, gave Titius to understand that he saw it, but being dead also, cannot be called upon for his testimony.

Take, for example, a case from English jurisprudence.* The validity of a will being in question—a will purporting to have been executed in the presence of three witnesses, whose names were entered upon the face of it in the character of attesting witnesses:—two of these supposed witnesses were proved to be dead; the third, on her cross-examination, deposed, that, on her attending one of the other two in his last illness, about three weeks before his death, he pulled the will from his bosom, and acknowledged to her that it was forged by himself.† This evidence (it appears) was received, was credited, and the decision—a decision pronouncing the will a spurious one—grounded upon it. This supposed oral evidence transmitted through oral—this evidence, hearsay evidence as it was, was received and credited. It was regarded as not only veracious, but true, by the proper judges, judging from the whole complexion of the evidence on both sides.

Now to the point in question. Suppose that, instead of being deemed true, it had been deemed false and mendacious, and had been so accordingly. The will was, on this supposition, a genuine one: the story of its having been declared by one of the attesting witnesses to be spurious (spurious as having been forged by himself,) was a mendacious story trumped up by this witness, who, it being false, could not but have been conscious of its being so. Now then, suppose that, instead of saying that what she heard as above, she heard from the supposed forger himself, she had spoken of it as having been heard from John Middleman, now also dead, who said he heard it from the supposed forger, under the same circumstances as above: would the fraud in this shape have presented any more plausible title to credence than in the other? The answer, it should seem, will hardly be in the affirmative.

2. The danger of fraud (i. e. of deception by fraud) not being increased by the number of supposed media,—there remains the danger of incorrectness, i. e. of deception by incorrectness. But in this case, in whatsoever proportion the danger of incorrectness may be thus increased, the danger of deception does not increase with it: for, whatsoever be the danger of incorrectness, it is apparent to every eye, upon the very face of the evidence—apparent to all eyes alike, and in no danger at all of being set down at any value below its real value.

In regard to fraud, a possible observation on the other side is this:—Information being, according to your observation, more likely to be incorrect when transmitted through several media, than if transmitted through no more than one, and so in that light likely to appear to everybody,—a man who, meaning fraud, were to represent the information as having passed through more media than one, might by that device exempt his testimony from the imputation of fraud, and by that means gain for his false testimony, in this complex shape, a degree of credence beyond what could be gained for it by its being presented in the more simple shape. The propriety of this observation might perhaps be admitted: but at any rate it does not seem worth controverting on one side, or worth relying upon on the other side. For a lot of evidence to gain credence, it is not sufficient that it appear exempt from fraud; it must appear correct and true: it is not sufficient that it be regarded as being pure from material error from this or that particular source; it must be regarded as pure from material error from whatever source. But the fresh degree of untrustworthiness it is necessarily tinged with by every medium through which it passes, is essential to its very nature: and it is only in part, and not in the whole, that it can be done away by any marks of comparative purity in no more than one out of whatever may be the number of the media through which it is supposed to flow.

Add to which (if it be worth adding,) that this supposed receipt for putting a varnish of veracity upon mendacious evidence, is on no other supposition a promising one, than that of its remaining a secret—a secret in mendacious hands. But, the secret being now published (not to say that it is of itself sufficiently obvious,) the virtue of it, if it ever possessed any, or would have been capable of possessing any, is already at an end: the eventual offspring of fraud has been torn from her womb and been rendered abortive.

The truth of the above conclusions will be found to receive ample confirmation from general, and (it may be added) even necessary, practice.

Turn to any established system of judicature, an extensive class of cases may be found (and that the same, or nearly the same, in all,) in which transmitted evidence is received without scruple: whatsoever may be the number of media through which it purports to have been transmitted; or even although the very number, as well as the individuality, of such media be undiscoverable.—The class of cases in question is that in which the principal fact in question, the principal fact to be proved or disproved, belongs to the class of what may be called ancient facts: a fact which, supposing it to have happened, happened so long ago, that it would be in vain to look to any witnesses, forthcoming, and consequently still living, from whose examination it might be proved in the regular and most trustworthy mode. But there is nothing in the mere date of a fact, and that relative, measured from a particular point of time (the time in which the proof of it comes to be called for,) that is capable of rendering it credible upon weaker evidence than would be requisite to gain equal credence for it at another time. That a man of such or such a name, living at such a place, should at that place have been married to a woman of such a name, and had by her children of such and such names, is not a whit more credible if placed at the end of the seventeenth century, than if placed at the end of the eighteenth.

But (except in so far as the application of preappointed evidence may have happened to extend itself to the instances in question,) in former ages, there are no sort of facts that are capable of being established by any other than this weak and long-spun sort of evidence: and yet, for the purposes of legal decision, facts of various descriptions—facts, though placed at ever such remote periods, are, under every system of established law, continually adduced and credited.

Nor can it be said that, if such evidence be at all admissible, no causes except what are of light moment can with propriety be rested upon such slight evidence. In the case where the fact in question belongs to the class of ancient facts, none of those questions of which the great mass of questions of light moment is composed—small debts, slight assaults, and verbal injuries—can ever come upon the carpet. Questions of the greatest moment—questions relative to the title to estates, to immoveables to any amount, to hereditary powers and honours,—of this sort are the questions that come to be tried upon the ground of this slight evidence.*

Truths of the mathematical class—truths in any number, might be heaped together in this field: but in every instance, if attempted to be employed in practice, they would be found either altogether inapplicable, or, if applied, more likely to lead to misdecision than to justice.

Suppose, for example, that a mathematician, taking up the observations brought to view above, were to set to work in his own way, and, because demonstration is the fruit of his own science, fancy he had given certainty to the conclusions capable of being formed in relation to the trustworthiness of evidence. In a series of remotely-transmitted hearsay evidence, every article standing at a degree indicated by a higher number, is lower in the scale of trustworthiness than an article standing at a degree indicated by a lower number. Expressed, as of course it would be, in mathematical short-hand, by single letters instead of words or combinations of letters, a proposition to the above effect might put in a specious claim to the character of irrefragable truth. Yes: but in what way? On the supposition of a matter of fact, not announced, but gratuitously assumed, and, in a mathematical sense, altogether incapable of being proved: viz. that, in each instance,—an article of hearsay evidence at a lower degree being compared with an article of ditto at a higher degree,—in each medium or rank of mediums, the idiosyncratic trustworthiness of the intermediate witness or witnesses were on the same level. Suppose a suit, having for its subject-matter a pecuniary object of inconsiderable value: suppose on both sides a lot of hearsay evidence; on the side of the plaintiff, evidence of the second degree, the deposing witness and the supposed intermediate witness both of them universally known, and known as of the highest rank, as well in the scale of moral reputation as in that of opulence; on the side of the defendant, hearsay evidence only of the first degree, but the reporting witness—the judicial witness—a pauper notorious for mendacity. By the mathematician, the superior weight of evidence would be demonstrated to be on the side of the defendant; while, by everybody but the mathematician, it would be regarded, and, though without demonstration, yet with more reason, as being on the side of the plaintiff.

Add to this, that, in many instances, in which, not without good cause, hearsay evidence of many removes from the supposed source has been employed (for example, in English practice,* ) not only the persons of the supposed intermediate witnesses, but even the number of the degrees, has not been ascertained, nor been capable of being ascertained. The general sense, conception, understanding, of the neighbourhood: in the case of a testimony to this effect, supposing the conception just, there must in every instance have been a matter of fact at bottom—some determinate matter of fact, the conception of which must, through the respective relations of a certain number of intermediate witnesses, singly or in ranks, have been transmitted to the ears of the deposing witnesses.

In a case of that description, the number of degrees not being ascertained, the requisite data not being given, matter for the hand of the mathematician would not be to be found. Truth, however, would be but the better served by the deficiency: for, the mathematician, with his scientific mode of deceit, not being capable of being set to work, no deception could flow from that source.

[* ]The above remarks apply not only to the case of hearsay evidence through many media, but also to that of transcriptitious evidence through many media, or transcripts of transcripts. One remark still remains, which is peculiar to the latter species.

By confrontation with, and examination by, a transcript of any superior degree, a transcript of any inferior degree may be raised in the scale of trustworthiness to a degree next below that with which it is so compared.

Thus, suppose a transcript of the tenth degree. By examination with the original, it may be endowed with every security for trustworthiness that can be given to a transcript of the first degree, and is thereby raised altogether upon a level with a transcript of that first degree: by confrontation with a transcript of the first degree, it may in the same way be endowed with every security for trustworthiness that can be given to a transcript of the second degree.

[† ]Will it be said, that, when two witnesses are thus made necessary, they must both of them, of course, be deposing witnesses? If any such position were advanced, it would be rejected at any rate by English law. In the case of treason, to ground conviction, there must, indeed, by statute, be two witnesses; but, by jurisprudence, one at least of these two witnesses may be a piece of paper. [The statutes 1 Ed. VI. c. 12, and 5 & 6 Ed. VI. c. 11, render two witnesses necessary in a charge of treason. The 7 & 8 Wil. III. c. 3, requires two witnesses to prove the overt act or acts; either both deponing to the same overt act, or one of them to one, and the other to another overt act of the same treason. The prisoner’s confession may be proved by a single witness, when offered in confirmation of the testimony of the witnesses, or any other collateral matter. Willis’s case, 8 Hargrave’s St. Tr. 254; Crossfield’s case, 26 Howell’s St. Tr. 56, 57. If the overt act is the assassination of the king, or any attempt against his life, or his person, it may be proved under the 39 & 40 Geo. III. c. 93, by a single witness. A confession of the prisoner may also be proved by a single witness. In the case of perjury, two witnesses are necessary to contradict the alleged false statement of the defendant. Q. v. Muscot, 10 Mod. 193. The English law of treason having been, by statute, made part of the law of Scotland, the rules above stated apply to that part of the country. It is worthy of observation, however, that by the principles of the criminal law of Scotland, no man can be convicted of any offence on the testimony of a single witness. The rule has very little effect in practice, as a case scarcely ever occurs in which more than one individual is not cognizant of some portion of the res gestæ; and it is a sufficient compliance with the principle, that the narrative of a percipient witness is confirmed by another, whose statement may have the slightest possible connexion with the criminative circumstances.—Ed.]

[* ]Clymer v. Kettler, Hawk. iv. 428, from 3 Burrows, 1245.

[† ]This is not correctly reported by Hawkins, who has been followed in the text by the Author. In referring to Burrow’s Reports, it appears that it was an action of ejectment, in the course of which, the validity of two wills was called in question, dated respectively 1743 and 1745.—Mary Victor deposed, that William Medlicott pulled out of his bosom the will of 1743, and said it was the true will of John Clymer. This was in her examination in chief: in her cross-examination she added, that Medlicott at the same time acknowledged and declared to her, that the will of 1745 was forged by himself.—Ed.

[* ]The application of evidence to facts of the religious class not coming within the design of the present work, what follows in this note is mentioned in no other character than that of an argumentum ad hominem: but, in that character, applied to all Christian (not to speak of Mahometan and Hindoo) judges, and in particular to English ones, the weight with which it presses seems to be irresistible. Disbelieve transmitted evidence, on the ground of the multitude or the uncertainty of the number of the media through which it purports to have passed, you reject history in general, and all ecclesiastical history in particular. If the facts in support of which evidence of this complexion will naturally be adduced, be, merely on the ground of their having this and no other sort of evidence for their support, to be pronounced incredible, much more must all facts brought to view in the character of a basis of religious opinion be incredible. The supposed facts brought to view for a judical purpose, are all of them of the most ordinary and natural cast: and whatever chance they may have of gaining credence depends upon the vulgarity of their complexion, their conformity in every respect to what is generally understood to be the ordinary course of nature;—e. g. that John and Joan, being married at the usual time of life, had sons and daughters, and having attained a usual age, and being possessed of landed property, left such or such a son, or such and such daughters, to succeed to it. The facts which are the subjects of the earliest period of every ecclesiastical history, are facts more or less deviating from what at present is generally understood to be the ordinary course of nature, or they could not be, what by the supposition they are, facts constituting the subjects of religious faith: that Jared, for example, at the age of 162 years, cohabiting with a woman unknown, begat for his first-born a son named Enoch, and died 800 years afterwards, continuing for an unspecified part of that time to beget sons and daughters.a

The facts which, in the case of the Christian religion, constitute the subject-matter and basis of religious faith, do not purport to have been established by any judicial examination, or consigned, in any instance, to an official register, in the character of preappointed evidence. The shape in which they present themselves is uniformly that of transcriptural evidence, which, after having passed through an uncertain number of oral media, fixes itself, at a point of time more or less remote from the fact, in the shape of a written original, of the nature of casually written evidence. If, on his ground, the trustworthiness of an article of transmitted evidence depended, in any such considerable degree, on its proximity to the source, the extraordinary facts which in the Mahometan religion constitute the subject-matter of religious faith, would present, in this respect, a better title to credence than the extraordinary facts which in the Christian religion constitute the subject-matter of religious faith. For the Koran purports to have had for its author (whether in the character of dictator, or of actual scribe, makes little difference) Mahomet himself; by whom, or in whose presence, the extraordinary phenomena in question are stated to have been produced: whereas the New Testament, having, for divers portions of it, divers authors, purports not to have had for the author of any portion of it the founder of the religion preached in it—the person by whose power any of those extraordinary facts were produced; nor yet (in the instance of any portion of it) any person in whose presence they are stated to have been produced.

The purpose in view in these observations, will, I hope, not be misconceived: it is, not the destroying the credit of history in general, or Christian history in particular, but the destroying any objection that, on the ground of English judicial practice, might be opposed to the general rule recommending the leaving the door open to transmitted evidence in general, howsoever multitudinous and uncertain the number of the media through which it may have been transmitted.

[* ]See 1 Phil. Ev. p. 218, and the Note to p. 134, supra.—Ed.

[* ]The application of evidence to facts of the religious class not coming within the design of the present work, what follows in this note is mentioned in no other character than that of an argumentum ad hominem: but, in that character, applied to all Christian (not to speak of Mahometan and Hindoo) judges, and in particular to English ones, the weight with which it presses seems to be irresistible. Disbelieve transmitted evidence, on the ground of the multitude or the uncertainty of the number of the media through which it purports to have passed, you reject history in general, and all ecclesiastical history in particular. If the facts in support of which evidence of this complexion will naturally be adduced, be, merely on the ground of their having this and no other sort of evidence for their support, to be pronounced incredible, much more must all facts brought to view in the character of a basis of religious opinion be incredible. The supposed facts brought to view for a judical purpose, are all of them of the most ordinary and natural cast: and whatever chance they may have of gaining credence depends upon the vulgarity of their complexion, their conformity in every respect to what is generally understood to be the ordinary course of nature;—e. g. that John and Joan, being married at the usual time of life, had sons and daughters, and having attained a usual age, and being possessed of landed property, left such or such a son, or such and such daughters, to succeed to it. The facts which are the subjects of the earliest period of every ecclesiastical history, are facts more or less deviating from what at present is generally understood to be the ordinary course of nature, or they could not be, what by the supposition they are, facts constituting the subjects of religious faith: that Jared, for example, at the age of 162 years, cohabiting with a woman unknown, begat for his first-born a son named Enoch, and died 800 years afterwards, continuing for an unspecified part of that time to beget sons and daughters.a

The facts which, in the case of the Christian religion, constitute the subject-matter and basis of religious faith, do not purport to have been established by any judicial examination, or consigned, in any instance, to an official register, in the character of preappointed evidence. The shape in which they present themselves is uniformly that of transcriptural evidence, which, after having passed through an uncertain number of oral media, fixes itself, at a point of time more or less remote from the fact, in the shape of a written original, of the nature of casually written evidence. If, on his ground, the trustworthiness of an article of transmitted evidence depended, in any such considerable degree, on its proximity to the source, the extraordinary facts which in the Mahometan religion constitute the subject-matter of religious faith, would present, in this respect, a better title to credence than the extraordinary facts which in the Christian religion constitute the subject-matter of religious faith. For the Koran purports to have had for its author (whether in the character of dictator, or of actual scribe, makes little difference) Mahomet himself; by whom, or in whose presence, the extraordinary phenomena in question are stated to have been produced: whereas the New Testament, having, for divers portions of it, divers authors, purports not to have had for the author of any portion of it the founder of the religion preached in it—the person by whose power any of those extraordinary facts were produced; nor yet (in the instance of any portion of it) any person in whose presence they are stated to have been produced.

The purpose in view in these observations, will, I hope, not be misconceived: it is, not the destroying the credit of history in general, or Christian history in particular, but the destroying any objection that, on the ground of English judicial practice, might be opposed to the general rule recommending the leaving the door open to transmitted evidence in general, howsoever multitudinous and uncertain the number of the media through which it may have been transmitted.

[a ]Genesis, v. 18, 19, 20.