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PART I.: Lectures on Law. - James Wilson, Collected Works of James Wilson, vol. 2 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.
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Lectures on Law.
Of the Common Law.
“Sapientissima res tempus,” says the profound Lord Bacon,a in one of his aphorisms concerning the augmentation of the sciences—Time is the wisest of things. If the qualities of the parent may, in any instance, be expected in the offspring; the common law, one of the noblest births of time, may be pronounced the wisest of laws.
This law has, at different times, and for different reasons, been denominated by different appellations. It is sometimes called, by way of eminence, the law of the land, “lex terrae.” At other times, it is called the law of England. At other times again, it is called the law and custom of the kingdom. But its most general and best known appellation is, the common law. Various are the reasons, which have been assigned for this appellation: the best seems to be this—that it is the common municipal law or rule of justice;b the law which is described in the code of king Edward the elder, as expressing the same equal right, law, or justice, due to persons of all degrees.c
The term common law is not confined to the law of England: It is not, says Sir Henry Finch,1 a word new and strange, or barbarous, and proper to ourselves, and the law, which we profess, as some unlearnedly would have it: it is the proper term for other laws also. Euripides2 mentions the common laws of Greece; and Plato defines common law in this manner: that which, being taken up by the common consent of a country, is called law. In another place, he names it, the golden and sacred rule of reason, which we call common law.
This place, continues the same author, in his discourse of law,d is very notable: it opens the original and first beginning of the common law: it shows the antiquity of the name; it teaches common law to be nothing else but common reason—that refined reason, which is generally received by the consent of all.
The antiquity of the common law of England is unquestionably very high. It is worth while to listen to what may be deemed the prejudices—certainly the pardonable ones—of its fond admirers, upon a point so interesting to their partiality.
The realm of England, says Lord Chancellor Fortescue,e was first inhabited by the Britons; it was afterwards ruled and civilized under the government of the Romans: then the Britons prevailed again: next it was possessed by the Saxons: afterwards the Danes lorded it over us: the Saxons were successful a second time: at last, the Norman conquest took place. But, during all that time, England has been constantly governed by the same customs, by which it is governed at present. Neither the laws of the Romans, which are celebrated beyond all others for their antiquity; nor yet the laws of the Venetians; nor, in short, the laws of any other kingdom in the world are so venerable for their antiquity. So that there is no pretence to insinuate to the contrary, but that the laws and customs of England are not only good, but the very best.—Thus far from the predilection of the chancellor.
But, in truth, it is extremely difficult, if not altogether impracticable, to trace the common law of England to the era of its commencement, or to the several springs, from which it has originally flowed. For this difficulty or impossibility, several reasons may be assigned. One may be drawn from the very nature of a system of common law. As it is accommodated to the situation and circumstances of the people, by whom it is appointed; and as that situation and those circumstances insensibly change; so, especially in a long series of time, a proportioned variation of the laws insensibly takes place; and it is often impossible to ascertain the precise period, when the change began, or to mark the different steps of its progress. Another reason may be drawn from the great number of different nations, which, at different successive periods, and sometimes even at the same period, possessed the government, or the divided governments of England. These added, undoubtedly, to the richness and variety of the common law; but they added likewise to the difficulty of investigating the origin of its different parts.
If this investigation is difficult, there is one consolation, that it is not of essential importance. For at whatever time the laws of England were introduced, from whatever person or country they were derived; their obligatory force arises not from any consideration of that kind, but from their free and voluntary reception in the kingdom.
Several writers, some of them very ingenious and learned, think they can discover, in the common law, features, which strongly indicate, that it is of a Grecian extraction. Without adopting implicitly the authenticity of this high descent, it may be well worth our while to examine the particulars, on which the opinion is founded. If they lead us not to this conclusion, they may, perhaps, lead us to something else, which will be, at least, equally valuable and instructive.
The similarity between the idiom of our language and that of the Grecians has persuaded some very sensible men to believe, that the inhabitants of Great Britain were, in a very remote age, connected, in some manner, with the inhabitants of Greece. This similarity is, indeed, very striking. No one, I believe, who is acquainted with the Greek, the Latin, and the English languages, will hesitate to declare, that there is a closer affinity of idiom between the Greek and the English, than between the English and the Latin, or between the Latin and the Greek.
The very idea of a traditionary law, transmitted from generation to generation merely by custom and memory, may be considered as derived, in part at least, from the practice of the Druids, who considered it as unlawful to commit their religious instructions to writing. But we are informed by the penetrating and intelligent Caesar, that, in other business, whether of a publick or of a private nature, they used the Grecian letters—“Gaecis literis utuntur.”f
Pliny3 conjectures that the name of Druid was derived from the Greek word δρνς, quercus, an oak, because they performed their solemn ceremonies in the deep recesses of groves formed by oaks; and because, in their sacrifices, they used the leaves of those trees.g The missletoe, it is well known, was of sacred import in their religious mysteries.
Nathaniel Bacon,4 a gentleman of Gray’s inn,5 wrote a historical and political discourse of the laws and government of England, particularly during the early periods of its history. This discourse, we are informed, was collected from manuscript notes of Mr. Selden,6 so famed for his various and extensive erudition. To the notes of an antiquarian, so celebrated and so profound, attention will be expected in an investigation of the present kind.
In that discourse we are told, that, though it be both needless and fruitless to enter the lists concerning the original of the Saxons; yet, about the time of Tiberius, their government was, in general, so suitable to that of the Grecians, as if not by the remains of Alexander’s army, which was supposed to emigrate into the north, nevertheless, by the neighbourhood of Greece, much of the Grecian wisdom was disseminated among them, before the Roman glory was mounted up to the full pitch; and because this wisdom could never be thus imported but in vessels of men’s flesh, rigged according to the Grecian guise, it may well be supposed that there is some, consanguinity between the Saxons and the Grecians, although the degrees be not known.h
Their country, continues he, they divided into counties or circuits, all under the government of twelve lords, like the Athenian territory under the archontes. These had the judicial power of distributive justice committed to them, together with one hundred of the commons out of each division. The election of these princes with their commission was concluded inter majora,7 by the general assembly, and they executed their commission in circuits, like unto the Athenian heliastick or subdial court, which was rural, and for the most part kept in the open air. In brief, their judicial proceedings were very suitable to the Athenian, but their military more like the Lacedaemonian, whom, above all others, in their manners, they most resembled.i
Austin8 is generally considered as the apostle of the Saxons, who converted them to christianity: but our author suggests, that he was an apostle of another kind—to reconcile them to the see of Rome. To prove this, he adduces a remarkable fact, that the Saxons kept Easter “more Asiatico;” and, against Austin’s will, retained that custom fifty years after Austin began his mission among them.j
In enumerating the different manners of trial among the Saxons, he says, that the last and most usual one was by witnesses, before the jurors, and their votes thereupon: this made the verdict, and it determined the matter in fact. In former time, questionless, it was a confused manner of trial, by votes of the whole multitude; which made the votes hard to be discerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way, who determined controversies by the suffrages of four and thirty, or the major part of them.k
Speaking of a certain regulation concerning dower, which was derived from the Latins, he says; “but the Germans learned from the Greeks otherwise: for the laws both of Solon and Lycurgus forbade it, lest marriages should be made for reward, and not grounded on affection.”l
After having described, in detail, a number of particulars relative to the Saxon government and laws, he makes this general remark: “Nor did the fundamentals alter, either by the diversity and mixture of people of several nations in the first entrance, nor from the Danes or Normans in their survenue; not only because in their original they all breathed one air of the laws and government of Greece; but also they were no other than the common dictates of nature, refined by wise men, which challenge a kind of awe, in the sense of the most barbarous.”m
He concludes his observations concerning the Saxon commonwealth in this expressive manner. “It was a beautiful composure; mutually dependent in every part from the crown to the clown; the magistrates being all choice men; and the king the choicest of the chosen: election being the birth of esteem, and that of merit: this bred love and mutual trust; which made them as corner stones, pointed forward to break the wave of danger.
“Lastly, it was a regular frame in every part, squared and made even by laws, which, in the people, ruled as lex loquens,9 and, in the magistrate, as lex intelligens;10 all of them being grounded on the wisdom of the Greeks, and the judicials of Moses.”n
The history, says an inquisitive writer, of the constitutions of the different European nations may be much elucidated by institutions, ascertained to have existed in their sister countries, during the corresponding periods of their progress. The rise of the constitutions of the Greek and Italian states will derive light from what is known of the Gaulick, German, and Scandinavian tribes.o
Dr. Pettingal,11 in his very learned inquiry concerning the use and practice of juries, differs from Mr. Bacon with regard to the channel, through which the Grecian customs flowed into the Saxon commonwealths: but he admits that those customs were originally derived from Greece. “The likeness,” says he, “of the Greek and Saxon government, supposed to be owing to the neighbourhood of Greece and Saxony, proceeded from a different cause. For, as the Romans took their laws and institutions from Greece, and particularly in the instance of the heliastick court, which was a court of trial by jury, and on which the Romans formed their judicium or jury; so when they sent their colonies into Germany, they sent also their laws and usages along with them, and by these means the wisdom of Greece and the practice of the heliastick court got among the Saxons in the shape of the Roman judicia; and the plan of the Greek government, through the channel of the Roman jurisprudence, laid the foundation of many customs that had a resemblance to the Greek, but in fact were no other than an imitation of the Roman polity, which originally was derived from Athens: so that the jury among the Saxons and northern nations was derived from the Roman judicia, as the causa proxima,12 but both of them drew their origin from the court of δικασι, or jury, among the Greeks. This was the manner, in which the resemblance between the Saxons and Greeks, spoken of by Bacon, was produced.”p
With regard to the institution of juries, he afterwards observes; “where shall we go, with so much propriety, to look for its origin, as among those who, of all mankind, were the depositaries and patrons of equal law and liberty, and which they themselves had learned from the wisdom and good government established in Athens by Solon? For nothing can be so absurd as to imagine, that such a noble political structure, as had distinguished the only two civilized nations of Europe, and whose legal limitations of power and obedience had done honour even to human nature, should, in times future, be the fortuitous result of a tumultuous deliberation, and that of Scythians and barbarians, rather than an imitation of the wisdom of those customs, which had been introduced among them by their conquerors.”q
The particular history of juries will find its proper place elsewhere. Suffice it to mention them now among the group of institutions said to be derived from the Grecians to the Saxons either immediately, or through the intermediate channel of the Romans.
The laws and institutions of Greece flowed into Italy, and were conveyed to the many different states there, through a vast variety of channels.
The first inhabitants of this “terra potens virorum”13 were composed of Grecian tribes, the overflowings of their native habitations, who migrated, in early days, into the southern parts of the Italian continent; from this circumstance, it was denominated Magna Graecia.14 These colonists brought with them their own laws and customs.r These laws and customs were incorporated into one general body, and made a part of the unwritten or customary law of Rome. “The law of the ancient Romans,” says Dr. Burn,15 in the preface to his book on ecclesiastical law,s “had its foundation in the Grecian republicks.”
It is well known, that the Roman system of jurisprudence was much indebted to the wise and peaceful institutions of Numa. There was one, which produced strong, and extensive, and lasting consequences in the Roman republick; and which seems to have furnished an example for later times—the establishment of pagi or villages. The conquered and vacant lands he distributed among the citizens. These he divided into districts, and placed over each a superintendant, in order to induce them to improve in the arts of agriculture. The consequence of this wise regulation was, that the functions of war and peace were frequently discharged by one and the same person. The farmer, the soldier, and the magistrate were often united in the same character; and reflected on each other reciprocal ornament. The respected citizen stepped from the plough to the consulship without being elated; and, without being mortified, returned from the consulship to the plough: Thus the Cincinnati were formed.
Towards the latter end of the third century of Rome, a solemn deputation, consisting of three commissioners, was despatched to Athens, with instructions to obtain a transcript of the celebrated laws of Solon, and to make themselves fully acquainted with the regulations, the manners, and the institutions of the other states of Greece.t
The constitution of Athens had lately received great improvements under the administration of some of her most illustrious citizens, Aristides,16 Themistocles, and Cimon;17 and, at this very time, the splendid Pericles was at the head of her government.
After an absence of about two years, the commissioners returned, with copies of the Athenian laws. The decemvirs, of whom the commissioners were three, were then appointed, with full powers to form and propose a digest of laws for Rome. With much alacrity and zeal they entered upon the execution of the very important trust, with which they were invested by their confiding country. In the arduous business, they received the most valuable assistance from a wise Ephesian, who had been driven, by the hand of envy, from his native country; and who, during his exile, had opportunities of personally observing the principles and characters of men, and the establishments and forms of society. His accumulated treasures of observation and reflection were imparted liberally to the decemvirs. The name of Hermodorus18 was gratefully transmitted to posterity, by a statue erected to his honour in the forum.
The code, which the decemvirs composed, consisted partly of entire laws transcribed from the Grecian originals; partly of such as were altered and accommodated to the constitution and manners of the Romans; and partly of the former laws received and approved in Rome. It was engraved on ten tables, and fixed up in the most conspicuous part of the forum; that the whole people might have an opportunity of perusing and examining it at their conveniency and leisure. When sufficient time had been allowed for those purposes, an assembly of the people was convened. In that assembly, after invocations that what might be done should prove happy and auspicious to the commonwealth, the proposed laws were read. The decemvirs declared, that they had provided, as far as their abilities could provide, that the laws should be equal and impartial to the high and to the low; but that on the counsels and deliberations of the citizens at large, more reliance could be placed; for that the Roman people should have no laws, but such as were ratified as well as ordered by the consent of all.u The ten tables received the solemn ratification of the people. Two more were afterwards added in a second decemvirate. All these formed the celebrated code of the twelve tables; the fountain, as Livy19 honourably denominates them, of all publick and private law. They constituted the foundation of that immense fabrick of jurisprudence, which has extended the influence and the glory of Rome, far beyond the limits and existence of the Roman power.
To the twelve tables, after some time, the responsa prudentum20 began to be superadded. These were the commentaries of lawyers, who accommodated them to the successive practice and proceedings of the courts of justice. This part of the law was denominated, in contradistinction to the laws of the twelve tables, the jus non scriptum, or unwritten law; and having no other name, began then to be called the civil law. By Justinian, it is styled the jurisprudentia media; because it intervened between the laws of the twelve tables, and the imperial constitutions.v
In the free and happy periods of the Roman commonwealth, great regard was paid to customary law. We have already seen,w on another occasion, that it was thought immaterial whether a law received the sanction of the people by their formal suffrage, or by the uniform course of their conduct and manners. Thus did Romans speak and reason while they enjoyed the blessings of liberty. Nor did the spirit of their law change immediately with the spirit of their government. Long after the impure air of despotism tainted the latter, the vital principles of freedom continued the former in a tolerable state of internal health and soundness. Even under the emperours, the opinions of the Roman lawyers, and the decisions of the Roman courts, with regard to property, and to the rights of private persons, seem not to have been vitiated by the principles of their government. The rules of justice among individuals could not prejudice, in the most remote degree, the power or the interest of the emperour, placed above the reach of all private regards; their rights were, therefore, investigated and enforced with a balanced impartiality.x
I have observed, that, in the free and happy periods of the Roman commonwealth, great regard was paid to customary law. Even so late as the time of Justinian, the unwritten law constituted one of the two great divisions, into which the system of Roman jurisprudence was thrown. “Con stat,”y says the emperour, “autem jus nostrum, quo utimur, aut scripto, aut sine scripto; ut apud Graecos των νομων όι μεν εγγαρϕοι όι δε αγραϕοι.” “Our law, which we use, consists, like the law of the Grecians, of what is written, and of what is unwritten.” This passage, by the by, strongly intimates, in the Institutes, a principle of attachment and imitation operating in favour of the Grecian system. This principle appears, in the most explicit manner, from what we find in the next section of the Institutes. “Et non ineleganter in duas species jus civile distributum esse videtur; nam origo ejus ab institutis duarum civitatum, Athenarum scilicet et Lacedaemoniorum, fluxisse videtur. In his enim civitatibus ita agi solitum erat, ut Lace-daemonii quidem ea quae pro legibus observabant, memoriae mandarent: Athenienses vero ea qae in legibus scripta comprehendissent, custodirent.” “The civil or municipal law is divided, with some degree of elegance, into two kinds. For its origin seems to be derived from the institutions of two states—that of the Athenians, and that of the Lacedaemonians. In those states, the manner of transacting their legislative business was such, that the Lacedaemonians trusted to memory for the preservation of their laws; whereas the laws of the Athenians were committed to writing.”
Concerning unwritten or customary law, Justinian thus expresses himself. “Sine scripto jus venit, quod usus approbavit; nam diuturni mores, consensu utentium comprobati, legem imitantur.” “The unwritten law supervenes upon the approbation of usage; for long customs, approved by the consent of those who use them, acquire the qualities of a law.” By the way, it deserves to be remarked here, that the expression, which, on a former occasion,y I cited from an act of parliament as characteristick of the common law of England, is the literal translation of the expression used by Justinian to characterize the unwritten law of the Roman empire—diuturnus—long. The epithet immemorial is used by neither of those very high authorities.
If unwritten law possessed such a dignified rank in the system of Roman jurisprudence so late as even the reign of Justinian; we may be well justified in supposing that this species of law was entitled to a still greater proportion of regard, four or five centuries before that time. Four or five centuries before that time, it was extended to the island of Great Britain.
The jurisprudence, which had been grossly adapted to the wants of the first Romans, was polished and improved, towards the latter years of the commonwealth, by the infusion and operation of the Grecian philosophy. The Scaevolas21 had been taught by precedents and experience. But Servius Sulpicius22 was the first civilian, who established his art on certain and general principles. For the discernment of truth and falsehood, he applied, as an infallible rule, the logick of Aristotle and the Stoicks, reduced particular cases to general principles, and diffused, over the dark and shapeless mass, the light of order, and the graces of eloquence.
The jurisprudence of Rome was adorned and enriched by the exquisite genius of Cicero, which, like the touch of Midas, converts every object into gold. In imitation of Plato, he composed a republick: and for the use of his republick, formed a system of laws. In this system, he expatiates on the wisdom and excellency of the Roman constitution.z
Julius Caesar was the first Roman who visited the island of Great Britain; and, perhaps, he had no great reason to exult in the success of his visit. His own account of his retreat is unfurnished with a decent apology. The poet, whose republican spirit was unbroke to the pliant arts of flattery, says in explicit terms.
Territa quaesitis ostendit terga Britannis.23
The first foundations of an effective conquest and a permanent settlement, which were laid in Britain under the auspices of Rome, were those, which were begun in the reign of the emperour Claudius.24
The character of his administration may be thus described. From the general tenour of his conduct it is plain, that he contemplated the senate as the sovereign power of the whole empire. He made many attempts to introduce an improvement of the constitution, by reviving or reforming antiquated laws, and by enacting salutary new ones: but these attempts he meditated and prosecuted by the advice and with the concurrence of the senate. So far, therefore, as the establishments in Britain were carried on during the administration of Claudius, it is not likely that they were marked by circumstances of uncommon rigour or oppression. Indeed, the acquisitions made in the island during that and some succeeding reigns were both very limited and very precarious.
Julius Agricola,25 who governed it in the reign of Vespasian, Titus, and Domitian,26 was the first who formed a regular plan for completing the conquest, and rendering the acquisition useful to the conquerors. Among the Britons he introduced the Roman civility and laws; he reconciled them to the Roman manners and language; he instructed them in learning and the arts; he taught them to know and to covet all the conveniences and delicacies of life; he employed every soothing contrivance to render their fetters easy, and even fashionable. The inhabitants, taught, by direful experience, how disproportioned their military strength and military skill were to the military strength and military skill of the Romans, and lulled by the flattering scenes of ease and elegance, which were exhibited to their views and wishes, acquiesced in the splendid dominion of their masters, and were gradually incorporated as a portion of the mighty empire of Rome.a
Agricola disseminated the modes of Roman education among the sons of the British nobility; and improved them so well, that, in a short time, those who had most despised the Roman language, applied with ardour, to the study and the profession of Roman eloquence. An affectation of the Roman dress was the natural consequence; and the gown was considered in Britain as a splendid distinction. Luxury succeeded splendour and refinement; and the Britons were Romanised, without reflecting that the arts and accomplishments which were liberal in a Roman, were, in a Briton, servile; and that what they viewed as the accompaniments of politeness, were, in reality, nothing better or nobler than the instruments of subjection.b
The Romans held the possession and the government of the most considerable part of Britain near four hundred years. During that long period, a very frequent and intimate intercommunication of marriages, manners, customs, and laws must have taken place.
In the whole province there are said to have been about one hundred and fifty Roman stations.c These were connected by inferiour fortresses, erected at proper distances, and garrisoned by regular troops. Each of those garrisons attracted the neighbouring inhabitants; a town or village was begun; and a settlement was formed indiscriminately by Roman and by native families. As military service was often rewarded with possessions in land, the example of the Roman officers and soldiers must have spread the knowledge and practice of agriculture, while their industry in the management of their estates contributed to beautify and improve the face of the country.
The connexion with Britain, which the soldiers of the Roman army formed by living in the country, was seldom dissolved, even when they were discharged from the service. They had gradually acquired an attachment to the places where they had long resided, and chose to continue that residence where their attachment was now formed. Their offspring became natural inhabitants; and Britain, in this manner, received fresh accessions of Romans, to supply the place of such natives as were drawn from it, in order to recruit the army in other provinces of the empire.
It was the policy of Rome to extend her jurisprudence wherever she had extended her dominion. This policy promoted her influence and her interest among the vanquished people; and, at the same time, established among them tranquillity and order. This policy was peculiarly necessary in Britain, to prevent the private wars, and restrain the mutual acts of violence and outrage, to which the inhabitants were remarkably addicted. The introduction and establishment of the Roman laws was unavoidably, however, a work of time. For a considerable period, the Roman magistrates confined their operations to the publick administration of the province; while the British chiefs were permitted to retain their ancient jurisdiction in matters of private property, and to determine the controversies of their tenants and dependents.
Some writers are of opinion, that this jurisdiction was gradually circumscribed, and, at last, entirely annihilated; and that, during the long government of the Romans, the original laws and customs of the Britons were disused and forgotten. Perhaps the more probable opinion is, that, during this extended succession of time, the two nations became blended together in their laws and customs, as well as by their intermarriages; so as to be neither wholly Roman, nor wholly British. Those laws, indeed, which related to government and the administration of publick affairs, were, it may be presumed, altogether Roman.
Accordingly, when the exhausted empire was obliged to collect her last expiring efforts around the immediate seat of life and existence; the departure of the Romans from Britain was fatal to all the institutions of government which had been formed, ripened, and established during the long lapse of time, which we have already mentioned. The officers, who directed and managed the administration of the province, and the judges, who, at least in matters relating to publick law, had acquired a complete jurisdiction, retired from a country, abandoned by its master. The courts of justice were shut: government, and the order attendant on government, were dissolved. The rudder of the state knew no hand, which had a right to hold it: the vessel was, therefore, tossed at the pleasure of the winds and waves.
Time, however, and necessity gradually introduced some form of government, though a very simple one. The country was broken into districts, and placed under chiefs. A general of their united forces was appointed. Voltigern27 was the last, who was promoted to that high dignity.
From the foregoing deduction, it is highly probable, that, at the period to which we have now brought our remarks, the system of law in Britain, if, at that period, any kind of law deserved the name of a system, was a motley mixture of Roman and British institutions. The language, at that time used in Britain, was, as we have every reason to believe, a composition of the Roman and British tongues.
Sir William Blackstone mentions three instances,d in which the British jurisprudence bears a great resemblance to some of the modern doctrines of the English law. One is, the very notion itself of an oral unwritten law, delivered down from age to age, by custom and tradition merely. This seems derived from the practice of the Druids, who never committed any of their instructions to writing. This observation suggests a claim, unquestionably, to the notion of a common law subsisting among the Britons. But it, by no means, authorizes an exclusive claim. We have seen that, in the pure times of the Roman commonwealth, a customary law was known and highly respected at Rome. At the time when the Roman law was translated to Britain, it retained its customary qualities in their full vigour and extent.
The second instance mentioned by Sir William Blackstone is, the partible quality of lands by the custom of gavelkind, which still obtains in many parts of England, and, till the reign of Henry the eighth, prevailed universally over Wales. This, says he, is undoubtedly of British original. But the partible quality of lands, if not entirely, yet nearly on the same principles, prevailed among the Romans, as well as among the Britons. Nor was it confined even to those two nations. The Greeks, the Romans, as we are informed in the Commentaries, the Britons, the Saxons, and even originally the feudists divided the lands equally; some among all the children at large, some among the males only.e
The third instance, mentioned by Sir William Blackstone as of British original, is, the ancient division of the goods of an intestate between his widow and children, or next of kin; which has since been revived by the statute of distributions. But it is well known, that the statute of distributions is moulded in the form of Roman as well as of ancient British jurisprudence.f
Well known is the event of the invitation, which Voltigern gave to a body of the Saxons to aid him against his northern enemies.g As it has happened on other occasions, the allies became the masters of those whom they engaged to assist.
We have no complete account of the circumstances which attended the settlement of the Saxons in Britain. From the doleful representations of some early and passionate annalists, our historians, in general, have been led to suppose, that all the Britons, who were not reduced to captivity, were massacred by their barbarous enemies, or, disdaining submission, retreated among the mountains of Wales, or withdrew into the country of Armorica in France; to which country, the name of Bretagne is said to have been derived from those unfortunate refugees. A bold and industrious antiquarian has lately shown, however, that this extraordinary supposition is without any solid foundation. It is, indeed, highly probable, that many of the Britons were subjected to very great hardships, and were obliged even to abandon their native soil. But it appears hard to believe, that the Saxons should be stimulated by barbarity to proceed so far as, contrary to their own interests, to exterminate the ancient inhabitants. There is even complete evidence, that, in some parts of the island, the Britons were so far from being destroyed or obliged to fly their country, that they were permitted to retain a certain proportion of their landed property. This proportion, a third part of the whole, was the same with that allotted to the ancient inhabitants, in some of those provinces on the continent of Europe, which were conquered by the other German tribes.
The language, which spread itself among the Saxons after their settlement in Britain, contained a great proportion of the Latin and British tongues. This large infusion of those different ingredients into the same language, is, of itself, a strong proof, that the inhabitants were compounded of the different nations, by whom those tongues were originally spoken.h
The victorious Saxons were less civilized than the conquered Britons. The latter gradually communicated to the former a portion of that refinement, which had not been entirely effaced from themselves. At last, after a lapse of near two centuries, the two nations, by habits, treaties, commerce, and intermarriages, were entirely blended together; and their union produced such a compound system of manners and customs, as might be expected to arise from the declining state of one, and the improving state of the other. This blending principle would have its effect upon the laws, as well as upon the manners and habits of both nations. The conquerors and the conquered would be incorporated into one people, and compose, as the antiquariani before mentioned expresses himself, a mingled mass of Saxon Britons and British Saxons.
We are told of three kinds of laws used in England during the government of the Saxons: the Mercian law,28 which contained the local constitutions of the kingdom of Mercia; the Dane law, which comprised the customs introduced by those, whose name it bore; and the West Saxon law, a system compiled by Alfred the Great; whose elevated and extensive talents were employed, in the most vigorous manner, for the improvement of the laws and constitution of his country.
These three systems of law were different, rather in unessential forms, than in important principles. For this we have the authority of the very learned Spelman. “Our Saxons, though divided into many kingdoms, yet were they all one, in effect, in manners, laws, and language: so that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change among them, touching laws. For though we talk of the West Saxon law, the Mercian law, and the Dane law, whereby the west parts of England, the middle parts, and those of Suffolk, Norfolk, and the north were severally governed; yet held they all a uniformity of substance, differing rather in their mulcts, than in their canon, that is, in the quantity of fines and amerciaments, than in the course and frame of justice.”j
These distinct codes were afterwards reduced into one uniform digest, for the use and observance of the whole kingdom. This digest was undertaken and commenced by King Edgar:29 it was completed by his grandson, King Edward; and has been since well known and distinguished by the appellation of the Confessor’s laws. It is conjectured to have been chiefly a revival of the code of the great Alfred, accompanied with such improvements as were suggested by subsequent experience.
We have now brought the history of the common law down to the period of the Norman conquest. We have seen its rise taking place, by slow degrees, in ages very remote, and in nations very different from one another. We have seen it, in its converging progress, run into one uniform system, mellowed by time and improved by experience. In every period of its existence, we find imprinted on it the most distinct and legible characters of a customary law—a law produced, extended, translated, adopted, and moulded by practice and consent.
The period through which we have gone is, indeed, peculiarly interesting. “The whole period of our national history before the conquest,” says an English writer, “is the most important and momentous in our annals. It most forcibly lays hold upon the passions by the quick succession and active variety of incidents, and by the decisive greatness of its revolutions. And, what is much more, it is that period of our history, which gives the body and the form to all the succeeding centuries of it. It contains the actual commencement of every part of our publick and private economy.”k
Here we make a pause in the history of the common law. To pursue it minutely from the Norman conquest to the accession of the Stuart line would be a tedious, a disagreeable, but, fortunately, it is an unnecessary task.
The common law, as now received in America, bears, in its principles, and in many of its more minute particulars, a stronger and a fairer resemblance to the common law as it was improved under the Saxon, than to that law, as it was disfigured under the Norman government. How much it was disfigured, and why we should not receive it in its disfigured state, will appear from the following very interesting part of Sir William Blackstone’s Commentaries.
The last and most important alteration, introduced by the Norman conquest, both in our civil and military polity, was the ingrafting on all landed estates, a few only, excepted, the fiction of feodal tenure; which drew after it a numerous and oppressive train of servile fruits and appendages; aids, reliefs, primer seisins, wardships, marriages, escheats, and fines for alienation; the genuine consequences of the maxim then adopted, that all the lands in England were derived from, and holden, mediately or immediately, of the crown.
The nation, at this period, seems to have groaned under as absolute a slavery, as it was in the power of a warlike, an ambitious, and a politick prince to create. The consciences of men were enslaved by sour ecclesiasticks, devoted to a foreign power, and unconnected with the civil state under which they lived; who now imported from Rome, for the first time, the whole farrago of superstitious novelties, which had been engendered by the blindness and corruption of the times, between the first mission of Augustin, the monk, and the Norman conquest.
The ancient trial by jury gave way to the impious decision by battle. The forest laws totally restrained all rural pleasures and manly recreations. And in cities and towns, the case was no better; all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfew.
The ultimate property of all lands, and a considerable share of the present profits, were vested in the king or by him granted out to his Norman favourites; who, by a gradual progression of slavery, were absolute vassals to the crown, and as absolute tyrants to the commons. Unheard of forfeitures, talliages, aids, and fines were arbitrarily extracted from the pillaged landholders, in pursuance of the new system of tenure. And, to crown all, as a consequence of the tenure by knight service, the king had always ready at his command an army of sixty thousand knights, or milites; who were bound, upon pain of confiscating their estates, to attend him in time of invasion, or to quell any domestick insurrection.
Trade, or foreign merchandise, such as it then was, was carried on by the Jews and Lombards; and the very name of an English fleet, which king Edgar had rendered so formidable, was utterly unknown to Europe: the nation consisting wholly of the clergy, who were also the lawyers; the barons, or great lords of the land; the knights or soldiery, who were the subordinate landholders; and the burghers, or inferiour tradesmen, who, from their insignificancy, happily retained, in their socage and burgage tenure, some points of their ancient freedom. All the rest were villains or bond men.
From so complete and well concerted a scheme of servility, it has been the work of generations for our ancestors, to redeem themselves and their posterity into that state of liberty, which we now enjoy: and which, therefore, is not to be looked upon as consisting of mere encroachments on the crown, and infringements of the prerogative, as some slavish and narrow minded writers in the last century endeavoured to maintain; but as, in general, a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman.l
From the deduction, which we have made, it appears, I think, in a satisfactory manner, that the rich composition of the common law is formed from all the different ingredients, which have been enumerated; yet, when we descend to particular principles and rules, it is very difficult, it is often impossible, to ascertain the particular source, from which such rules and principles have been drawn. That some of our customs have been derived from the Grecians, though probably through the intermediate channel of the Romans; that others of them have been derived immediately from the Romans, others from the Britons, others from the Saxons, and others, in fine, from the Normans, seems to be evinced by the reasonable rules of historical credibility. But to say that such or such a particular custom has descended to us from such and such a particular origin, would be often to hazard too much upon uncertain conjecture. It may, however, be done sometimes, upon facts and arguments, which are clear and convincing: and whenever it can be done, it will amply repay all the care and trouble of the investigation. As has been already mentioned, the most proper way to teach and to study the common law is to teach and to study it as a historical science. Under many titles, we shall have an opportunity of pursuing this method.
Besides those particular instances; of which notice will be taken afterwards; there is one pretty general distribution of the common law, according to which, different parts of it may be referred to different nations, by whom, in all probability, they were introduced.
The original frame of the British constitution, different, indeed, in many important points, from what it now is, and bearing, to some of the constitutions which have lately been formed, and established in America, a degree of resemblance, which will strike and surprise those who compare them together—this venerable frame may be considered as of Saxon architecture. To a Saxon origin may also be ascribed much of that part of the common law, which relates to crimes and punishments. One lovely feature, in particular, we have the pleasure to recognise. The ancient Germans, of whom the Saxons composed a part, discriminated punishments, as we are informed by Tacitus,m according to the kind, and proportioned them according to the measure of the crime. “Liberty,” says the celebrated Montesquieu,n “is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime.” With regard to this very interesting part of the law, very wide deviations from Saxon principles have been made in the English criminal code, since the period of the Norman conquest.
The common law, as it respects contracts and personal property, discovers evident traces of the Roman jurisprudence. It has been the opinion of some, that those parts of the common law have been borrowed from the civil law, subsequent to the great legislative era,o when the pandects of Justinian were discovered at Amalfi: I suggest, merely for consideration at present, a conjecture, that many of those parts were incorporated into the common law, during the long period of near four centuries, when the Roman jurisprudence predominated in England.
Much of the common law respecting real estates, as it has been received in England since the time of William the Conqueror; and a considerable part of it, as it is still received in that kingdom, particularly the feudal principles and policy, should be referred to a Norman extraction.
Concerning the period, at which the feudal system was introduced into England, there has been long and learned controversy among lawyers and antiquarians. “At the close of the first century,” says Whitaker in his History of Manchester, “our tenures in Britain appear undeniably to have been purely military in their design, and absolutely feudal in their essence. The primary institution of feuds is unanimously deduced, by our historical and legal antiquarians, from the northern invaders of the Roman empire; and the primary introduction of them into this island is almost as unanimously referred to the much more recent epocha of the Norman conquest. But they certainly existed among us before, and even formed the primitive establishment of the Britons.” “They must have existed coeval with the first plantation of the island. They were plainly the joint result of a colonizing and a military spirit. The former providentially animated the first ages of the Noachidae was constantly prosecuted under the discipline of regular order, and the control of regal authority, and had whole regions to partition among the members of the colony. The latter was excited by the frequent migrations of colonists and the numerous invasions of settlements in the same ages, and naturally provided for the security of the colony, by the institution of a military establishment.”p
From Mr. Whitaker’s30 own account, it appears that he is singular in his sentiments with regard to the antiquity of the feudal system. Indeed, if his sentiments are well founded, that system must have been coeval and coextensive with society itself. But from the account which we have alreadyq given of the origin and first principles of society, the inference, we apprehend, may be fairly made, that its first ages were ages of equality, perhaps of some culpable degree of license. The opinion is indeed singular—that rule and subordination in the extreme, in other words, tyranny and slavery, should be necessarily extended with the extension of the human race.
It is remarkable, however, that this very writer makes, with regard to the Saxons, a peculiar exception from this general and almost universal system. “No traces,” says he, “of the primitive feuds appear visible among the Saxons; and they seem to have been the only nation of Germany that did not plant them in their conquests.”r His conjecture, therefore, is, that the Saxons had adopted this improvement from the Britons. He represents the whole Saxon system, in consequence of this adoption, as informed with one strong principle of subordination, which diffused its influence through every part, and formed a scale of dependence from the sovereign to the villain. Thus, one continued chain of subordination was carried regularly from the villain to the monarch; the higher link of the whole being fastened to the foot of the throne, and keeping the whole machine of national power steadily dependent from it.s
Others inform us, and apparently on better grounds, that in the early ages of society, estates in land were free; that they were held in propriety, and not by tenure; that they were hereditary as well as free; that such were the real estates of the Greeks, of the Romans, and particularly of the Saxons; that, among the latter, they were alienable likewise at the pleasure of the owner, and devisable by will. The Saxons were absolutely masters of their land; and were not obliged to transmit it to the blood which the donor intended to favour. It was still, however, considered as the property of a citizen; and, therefore, subjected its owner to the general obligation of taking arms in defence of his country.
The differences between estates in land under the Saxon government, and those which were held under that of the conqueror, will be plain and striking by a short enumeration and contrast. Before the conquest, lands were the absolute proprieties of the owners; they could be devised and transferred at pleasure. No wardship or marriage was due or exacted. In all these things, an alteration was made on the introduction of the feudal tenures. Lands could not be alienated without the consent of the superiour: they could not be devised by will. The heir had no right to enter into the inheritance of his ancestor, until he had paid a relief, and had been admitted by his lord. As to landed estates, therefore, the law introduced by the conqueror might well be denominated a new, a Norman law.
At common law, too, all inheritances were estates in fee simple; of different kinds indeed, qualified and conditional, as well as absolute.t
“When all estates were fee simple,” says my Lord Coke, “then were purchasers sure of their purchases, farmers of their leases, creditors of their debts: and for these, and other like causes, by the wisdom of the common law, all estates of inheritance were fee simple: and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teacheth us.”u
“Out of all the books and reports of the common law,” says the same very experienced judge, “I have observed, that though sometimes by acts of parliament, and sometimes by invention and contrivance of men, some points of the ancient common law have been diverted from its proper channel; yet, in the revolutions of time, it has been, with much publick satisfaction, and to avoid many great inconveniences, been restored to its proper and ancient course. For example; the wisdom of the common law was, that all estates of inheritance should be fee simple, so that one man might safely alien, demise, and contract to and with another. But the statute of Westminster the second created an estate tail, and made a perpetuity by act of parliament, restraining tenant in tail from aliening or demising, but only for his own life. This, in process of time, introduced such trouble and mischief, that, after two hundred years, necessity discovered a method, by law, for a tenant in tail to alien.
“In like manner, by the ancient common law, freeholds could not pass from one to another but by matter of record, or solemn livery of seisin. Against this, however, uses were invented, and grew common and almost universal, in destruction of the ancient common law in that point. But, in time, the numerous inconveniences of this being found by experience, the statute of 27. H. VIII. c. 10. was made to restore the ancient common law, in this particular, as expressly appears by the preamble of the statute itself. Of the same truth, an infinity of other examples might be produced; but these shall, at present, suffice.”v
We have mentioned the common law, as a law which is unwritten. When we assign to it this character, we mean not that it is merely oral, and transmitted from age to age merely by tradition. It has its monuments in writing; and its written monuments are accurate and authentick. But though, in many cases, its evidence rests, yet, in all cases, its authority rests not, on those written monuments. Its authority rests on reception, approbation, custom, long and established. The same principles, which establish it, change, enlarge, improve, and repeal it. These operations, however, are, for the most part, gradual and imperceptible, partial and successive in a long tract of time.
It is the characteristick of a system of common law, that it be accommodated to the circumstances, the exigencies, and the conveniencies of the people, by whom it is appointed. Now, as these circumstances, and exigencies, and conveniencies insensibly change; a proportioned change, in time and in degree, must take place in the accommodated system. But though the system suffer these partial and successive alterations, yet it continues materially and substantially the same. The ship of the Argonauts became not another vessel, though almost every part of her materials had been altered during the course of her voyage.
Again; we are taught both by observation and by experience, that the farther laws reach from their original institutions, the more extensive and the more numerous they become. In the first association of a community, their prospect is not enlarged, their wants are comparatively few: but as the society increases, their views expand, and their wishes multiply: what is the consequence? New laws and provisions, suited to the growing multitude of successive exigencies, must be made. The system, of course, becomes larger and more complex.
The same principle of accommodation in a system of common law, will adjust its improvement to every grade and species of improvement made by the people, in consequence of practice, commerce, observation, study, and refinement. As the science of legislation is the most noble, so it is the most slow and difficult of sciences. The jurisprudence of a state, willing to avail itself of experience, receives additional improvement from every new situation, to which it arrives; and, in this manner, attains, in the progress of time, higher and higher degrees of perfection, resulting from the accumulated wisdom of ages. The illustrious legislators, who have illuminated the political world, such as Solon, Numa, Lycurgus, collected the customs which they found already adopted, and disposed them regularly, with the necessary amendments and illustrations.
The same principle of accommodation, which we have already traced in so many directions, may be traced in still one direction more. It silently and gradually introduces; it silently and gradually withdraws its customary laws. Disuse may be justly considered as the repeal of custom. Laws, which are long unobserved in practice, become laws, which are antiquated in theory. “On strong grounds this rule is received, that laws may be abrogated, not only by the express declaration of the legislature, but, through desuetude, by the tacit consent of all.”w A law ought not, indeed, to be presumed obsolete upon slight pretences; but, on the other hand, a total disuse, for a long period of time, may be justly considered as a sufficient reason for not carrying into effect a disrespected and neglected ordinance.
“It has happened to the law, as to other productions of human invention, particularly those which are closely connected with the transactions of mankind, that the changes wrought by a series of years have been gradually rendering many parts of it obsolete; so that the systems of one age have become the objects of mere historick remembrance in the next. Of the numerous volumes that compose a lawyer’s library, how many are consigned to oblivion by the revolutions in opinions and practice; and what a small part of those, which are still considered as in use, is necessary for the purposes of common business!”x
There are some great eras, when important and very perceptible alterations take place in the situation of men and things: at such eras, the accommodating principle, which we have so often mentioned, will introduce similar and adequate alterations in the rules and practice of the common law. Such considerable changes, together with their extensive influences, diffuse, over many parts of the system, a new air and appearance. At some of those eras, the improvement is as rapid as the change is great. Why should not the present age in America, form one of those happy eras?
During many—very many revolving centuries, the common law has been the peculiar and the deserved favourite of the people of England. It suffered much, as we have seen, from the violence of the Norman conquest; but it still continued the theme of their warmest praise, and the object of their fondest hopes. Its complete restoration was the burthen of every memorial, and the prayer of every petition. The knowledge of this law formed a considerable part of the little learning of the early and unenlightened ages.
Those, who had received the best education, says Selden, in his dissertation on Fleta,y31 applied themselves assiduously to the study of the ancient English laws and manners, which related to government and the administration of civil affairs. From such characters judges and licensed advocates were selected. These laws and manners were taught in the private families of the most illustrious characters of the kingdom, in monasteries, in colleges, in universities. They had no acquaintance with the Theodosian32 or Justinian codes. They taught only the manners of our ancestors, and that law, which, even before the period of which we speak, and down to our own times, is known by the name of the common law of England.
The affectionate manner, in which the great and good Lord Chief Justice Hale speaks of this law, recommends it and him with equal warmth. He introduces it—as the common municipal law of the kingdom—as the superintendent of all the particular laws known in any of the courts of justice—as the common rule for the administration of publick affairs in that great kingdom—as the object, of which that great kingdom had been always tender; and with great reason; not only because it is a very just and excellent law in itself; but also because it is singularly accommodated to the frame of the English government, and to the disposition of the English nation. As such, it is by a long experience, incorporated into their very temperament, and has become the constitution of the English commonwealth.z
In the natural body, diseases will happen; but a due temperament and a sound constitution will, by degrees, work out those adventitious and accidental diseases, and will restore the body to its just state and situation. So is it in the body politick, whose constitution is animated and invigorated by the common law. When, through the errours, or distempers, or iniquities of men or times, the peace of the nation, or the right order of government have received interruption; the common law has wrought out those errours, distempers, and iniquities; and has reinstated the nation in its natural and peaceful state and temperament.
The best kings of England have been always jealous and vigilant to reform what has, at any time, been found defective in that law; to remove all obstacles, which could obstruct its free course; and to support, countenance, and encourage it, as the best, the safest, and the truest rule of justice in all matters, criminal as well as civil.a
We have seen how much the common law has been loved and revered by individuals, by families, and by the different seminaries of education throughout England: let us now see how much it has been respected by even the legislative power of the kingdom.
On a petition to parliament for redress, in the thirteenth year of Richard the second,33 the following remarkable judgment of parliament is entered—It appears to the lords of parliament, that the petition is not a proper petition to parliament; since the matter contained in it ought to be determined by the common law: and, therefore, it was awarded, that the party petitioning should take nothing by his suit in parliament; because he might sue at common law, if he thought proper.b
We have viewed, in a number of instances, the accommodating spirit of the common law. In other instances its temper is decided and firm. The means are varied according to times and circumstances; but the great ends of liberty are kept steadily and constantly in view.
Its foundations, laid in the most remote antiquity, have not been overturned by the successive invasions, or migrations, or revolutions which have taken place. The reason has been already hinted at: it contains the common dictates of nature, refined by wisdom and experience, as occasions offer, and cases arise.
In all sciences, says my Lord Bacon,c they are the soundest, that keep close to particulars. Indeed a science appears to be best formed into a system, by a number of instances drawn from observation and experience, and reduced gradually into general rules; still subject, however, to the successive improvements, which future observation or experience may suggest to be proper. The natural progress of the human mind, in the acquisition of knowledge, is from particular facts to general principles. This progress is familiar to all in the business of life; it is the only one, by which real discoveries have been made in philosophy; and it is the one, which has directed and superintended the instauration of the common law. In this view, common law, like natural philosophy, when properly studied, is a science founded on experiment. The latter is improved and established by carefully and wisely attending to the phenomena of the material world; the former, by attending, in the same manner, to those of man and society. Hence, in both, the most regular and undeviating principles will be found, on accurate investigation, to guide and control the most diversified and disjointed appearances.
How steadily and how effectually has the spirit of liberty animated the common law, in all the vicissitudes, revolutions, and dangers, to which that system has been exposed! In matters of a civil nature, that system works itself pure by rules drawn from the fountain of justice: in matters of a political nature, it works itself pure by rules drawn from the fountain of freedom.
It was this spirit, which dictated the frequent and formidable demands on the Norman princes, for the complete restoration of the Saxon jurisprudence: it was this spirit, which, in magna charta, manifested a strict regard to the rights of the commons, as well as to those of the peerage: it was this spirit, which extracted sweetness from all the bitter contentions between the rival houses of Lancaster and York: it was this spirit, which preserved England from the haughtiness of the Tudors, and from the tyranny of the Stuarts: it was this spirit, which rescued the States of America from the oppressive claims, and from all the mighty efforts made to enforce the oppressive claims, of a British parliament.
The common law of England, says my Lord Coke,d is a social system of jurisprudence: she receives other laws and systems into a friendly correspondence: she associates to herself those, who can communicate to her information, or give her advice and assistance. Does a question arise before her, which properly ought to be resolved by the law of nations? By the information received from that law, the question will be decided: for the law of nations, is, in its full extent, adopted by the common law, and deemed and treated as a part of the law of the land. Does a mercantile question occur? It is determined by the law of merchants. By that law, controversies concerning bills of exchange, freight, bottomry, and ensurances receive their decision. That law is indeed a part of the law of nations; but it is peculiarly appropriated to the subjects before mentioned. Disputes concerning prizes, shipwrecks, hostages, and ransombills, are, under the auspices of the common law, settled and adjudged by the same universal rule of decision. Does a contract, in litigation, bear a peculiar reference to the local laws of any particular foreign country? By the local laws of that foreign country, the common law will direct the contract to be interpreted and adjusted. Does a cause arise within the jurisdiction of the admiralty? Within that jurisdiction the civil law is allowed its proper energy and extent.
But, while she knows and performs what is due to others, the common law knows also and demands what is due to herself. She receives her guests with hospitality; but she receives them with dignity. She liberally dispenses her kindness and indulgence;—but, at the same time, she sustains, with becoming and unabating firmness, the preeminent character of gravior lex.34
There is much truth and good sense, though there is some quaintness of expression, in the following encomium of the common law, which I take from my Lord Coke.e “If all the reason, that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is; because by many successions of ages it has been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm, as the old rule may be justly verified of it, neminem oportet esse sapientiorem legibus: no man ought to be wiser than the law, which is the perfection of reason.” Indeed, what we call human reason, in general, is not so much the knowledge, or experience, or information of any one man, as the knowledge, and experience, and information of many, arising from lights mutually and successively communicated and improved.
To those, who enjoy the advantages of such a law as has been described, I may well, address myself in the words of Cicero,f “Believe me, a more inestimable inheritance descends to you from the law, than from those who have left, or may leave you fortunes. A farm may be transmitted to me by the will of any one: but it is by the law alone that I can peacefully hold what is already my own. You ought, therefore, to retain the publick patrimony of the law, which you have received from your ancestors, with no less assiduity than you retain your private estates; not only because these are fenced and protected by the law; but for this further reason, because the loss of a private fortune affects only an individual, whereas the loss of the law would be deeply detrimental to the whole commonwealth.”
Does this inestimable inheritance follow the person of the citizen; or is it fixed to the spot, on which the citizen first happened to draw the breath of life? On this great question, it will be proper to consider what the law of England, and, also, what the law of reason says. Perhaps both will speak substantially the same language.
By the common law, every man may go out of the realm to carry on trade, or on any other occasion, which he thinks a proper one, without the leave of the king; and for so doing no man shall be punished.g
We are told, however, that if the king, by a writ of ne exeat regnum, under his great or privy seal, thinks proper to prohibit any one from going abroad; or sends a writ to any man, when abroad, commanding his return; and, in either case, the subject disobeys; it is a high contempt of the king’s prerogative, for which the offender’s lands shall be seized, till he return; and then he is liable to fine and imprisonment.h
The discussion of this prerogative, and the cases, in which it may be justly and usefully exerted, it is unnecessary, for my present purpose, to undertake, or enumerate; because if this prerogative was admitted in the fullest extent, in which it has ever been claimed, it would weaken neither the principles nor the facts, on which my observations shall be grounded.
A citizen may leave the kingdom: an alien may enter it. Does the former lose?—does the latter acquire the rights of citizenship? No. Neither climate, nor soil, nor time entitle one to those rights: neither climate, nor soil, nor time can deprive him of them. Citizens, who emigrate, carry with them, in their emigration, their best and noblest birthright.i
It is remarkable, however, that, in the charters of several of the American colonies, there is this declaration, “that the emigrants and their posterity shall still be considered as English subjects.” Whether the solicitude of the colonists obtained, or the distrust of the reigning sovereigns imposed this clause, it would be superfluous to inquire; for the clause itself was equally unnecessary and inefficient. It was unnecessary, because, by the common law, they carried with them the rights of Englishmen; it was inefficient; because, if such had not been the operation of the common law, the right of citizenship could not have resulted from any declaration from the crown. A king of England can neither confer nor take away the rights of his subjects. Accordingly, the charter of Pennsylvania, perhaps the most accurate of all the charters, contains no such declaration. When the charter of Massachusetts, soon after the revolution of 1688, was renewed by king William, he was advised by his law council, that such a declaration would be nugatory.k
As citizens, who emigrate, carry with them their laws, their best birthright; so, as might be expected, they transmit this best birthright to their posterity. By the statute 25. Edw. III. says my lord Bacon, which, if you believe Hussey,35 is but a declaration of the common law, all children, born in any part of the world, if they be of English parents, continuing, at that time, as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are, ipso facto, naturalized. If divers families of English men and women plant themselves at Lisbon, and have issue, and their descendants intermarry among themselves, without any intermixture of foreign blood; such descendants are naturalized to all generations; for every generation is still of liege parents, and therefore naturalized; so as you may have whole tribes and lineages of English in foreign countries. And therefore it is utterly untrue that the law of England cannot operate, but only within the bounds of the dominions of England.l
This great man, whose keen and comprehensive genius saw and understood so much, seems to have viewed the principles of colonization and the situation of colonists, with his usual penetration and sagacity. It was his sentiment, that the American colonies should be guided and governed by the common law of England.m
It has been already observed, that there are some great eras, when important and very perceptible alterations take place in the situation of men and things; and that, at such eras, the accommodating spirit of the common law will introduce, into its practice and rules, corresponding and adequate alterations. To the situation of the American colonists, this observation may be applied with singular propriety and force. The situation, in which they found themselves in America, was, in many important particulars, very different from that, in which they had been before their departure from England. The principles of that law, under whose guidance the emigration was made, taught them, that the system, in its particular parts, must undergo changes proportioned to the changes in their situation. This sentiment was understood clearly and in its full extent. By alterations, which, after their emigration, might be made in England, the obligatory principle of the common law dictated, that they should in no manner be affected; because to such alterations they had now no means of giving their consent. Hence the rule, that acts of parliament, made after the settlement of a colony, have, in that colony, no binding operation.
It is highly requisite, that these great truths should be stated, and supported, and illustrated in all their force and extent.
The emigrants, who in the year 1620 landed near Cape Cod, at a place, which they afterwards called New Plymouth, had the honour of planting the first permanent colony in New England. Before they landed, they entered into a political association, which, on many accounts, deserves to be noticed in the most particular manner. It is in these words. “In the name of God. Amen. We, whose names are hereunder written, the loyal subjects of our dread sovereign lord king James, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith, &c. having undertaken, for the glory of God and advancement of the Christian faith, and honour of our king and country, a voyage, to plant the first colony in the northern parts of Virginia, do by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof, do enact, constitute, and frame such just and equal laws and ordinances, from time to time, as shall be thought most meet for the general good of the colony, unto which we promise all due subjection and obedience. In witness whereof, we have subscribed our names at Cape Cod, 11th November, 1620.”n
In this manner was a civil society formed, by an original compact, to which every one consented, and, of consequence, by which every one was bound. During the infancy of the colony, we are told, the legislature consisted of the whole body of the male inhabitants. In the year 1639 they established a house of representatives, composed of deputies from the several towns. These representatives, in the true spirit of the principles, which we have been delineating, determined to make the laws of England the general rule of their government. “To these laws,” says their ancient historian, Hubbard, “they were willing to be subject, though in a foreign land; adding some municipal laws of their own, in such cases, where the common and statute laws of England could not well reach, and afford them help in emergent cases.”o Under the foregoing compact and the principles of legislation, which have been mentioned, this colony long enjoyed all the blessings of a government, in which prudence and vigour went hand in hand.p
In Virginia we see the same principles adopted and ratified by practice. In the month of March 1662, the assembly of that ancient dominion met: with the most laudable intentions, it reviewed the whole body of the laws of the colony. In this review, their object was, “to adhere to the excellent and often refined customs of England, as nearly as the capacity of the country would admit.”q
In Maryland we behold a repetition of the same scene. In the month of April of the same year, the legislature of this colony, with a spirit congenial to that of the common law, declared, that, in all cases where the usages of the province were silent, justice should be administered according to the customs and statutes of England; “so far as the court shall judge them not inconsistent with the condition of the colony.”r
The foregoing principles were recognised even under the arbitrary government of James the second. When he passed a commission—the legality of which is not the present subject, to carry on a temporary administration in Massachussetts, New Hampshire, Maine, Narraghanset, the commissioners were created a court of record for administering affairs civil and criminal, so that the forms of proceedings and judgments be consonant to the English laws, as near as the circumstances of the colony will admit.s
It has been already remarked, that as the rules of the common law are introduced by experience and custom; so they may be withdrawn by discontinuance and disuse. Numerous instances of the conduct of the colonies settled in America evince the force and extent of this remark. Many parts of the common law as received in England, a kingdom populous, ancient, and cultivated, could receive no useful application in the new settlements, inconsiderable in respect both of numbers and improvement.
This principle is fully recognised by the learned Author of the Commentaries on the laws of England. “It hath been held,” says he, “that if an uninhabited country be discovered and planted by English subjects; all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them; and, therefore, are not in force.”t
It has been often a matter of some difficulty to determine what parts of the law of England extended to the colonies, and what parts were so inapplicable to their situation as not to be entitled to reception. On this, as on many other subjects, those who felt had a right to judge. The municipal tribunals in the different colonies decided the question in the controverted instances, which were brought before them; and their decisions and practice were deemed authoritative evidence on the points, to which they related.
The advocates for the legislative power of the British parliament over the American colonies remind us, that the colonists were liable to the duties as well as entitled to the rights of Englishmen; and that, as Englishmen, they owed obedience to their ancient legislature; according, as it is said, to a principle of universal equity; that he who enjoys the benefit shall submit patiently to all its inconveniences.u
It is always proper to guard against verbal equivocation; the source of the grossest errours both in opinion and practice. That it is the duty of some Englishmen to pay obedience to the legislature of England, is admitted very readily. The principles, on which this obedience is due, have been amply illustrated in a former part of our lectures.v Acts of parliament have been shown to be binding, because they are made with the consent or by the authority of those, whom they bind. Such Englishmen, therefore, as have had an opportunity of expressing this consent, or of exercising this authority, are certainly bound to pay obedience to those acts of parliament. But is this the case with all Englishmen? Let us know what is meant by the term. Is it confined to those, who are represented in parliament? In that confined sense, it is conceded that they owe obedience to that legislature. Is it extended to all those, who are entitled to the benefits of the common law of England? In that extended sense, no such concession will or ought to be made: such a concession would destroy the vital principle of all their rights—that of being bound by no human laws, except such as are made with their own consent. It never is the duty of an Englishman, of one entitled to the common law as his inheritance—it never is the duty of such a one to surrender the animating principle of all his rights.
He who enjoys the benefit, it is said, shall submit patiently to all its inconveniences. True: but do Englishmen who are not and cannot be represented in parliament, enjoy the benefit? Unquestionably, they do not. To the inconveniences, then, they are under no obligation of submitting. This is the true inference. The opposite inference burthens the colonists with the inconveniences separated from the benefit: it does more—it burthens the colonists with the inconveniences, augmented in consequence of this very separation. When the benefit of representation is lost; the inconveniences will be increased in a dreadful proportion. This reasoning seems to be just in theory. Let us apply to it the touchstone of fact.
In the journals of the house of commons, we find some short notes taken of a parliamentary debate, in the year 1621, concerning tobacco. The result of this debate was a bill, which was afterwards passed into a law, for preventing the inordinate use of tobacco. Among other short notes on this subject, is the following one, very instructive and interesting—“Mr. Solicitor—loveth England better than Virginia.”w To every claim of obedience to the parliament without representation there, the standing answer and objection ought to be, in reference to the spirit of Mr. Solicitor’s honest, and, indeed, natural declaration—the members of parliament love England better than America.
This important subject deserves to be pursued further. Citizens, who emigrate, carry with them their rights and liberties. When to these rights and liberties, duties and obligations are inseparably annexed, the latter should be performed wherever the former can be enjoyed. But, in some instances, the enjoyment of the former becomes, from the nature and circumstances of things, altogether impracticable. The question, which we now consider, presents to us one of those instances. Obedience to acts of parliament is, as we have seen at large, founded on the principle of consent. That consent is expressed either personally or through the medium of representation. That it cannot be given personally is evident from the case supposed: the citizen has emigrated to another country. The same reason shows, that it cannot be given through the medium of representation. The right of representing is conferred by the act of electing: elections for members of parliament are held within the kingdom: at those elections, the citizen, who has emigrated into another country, cannot vote. The result, then, is unavoidably this: if by the emigration of the citizen, the enjoyment of his right of representation is necessarily lost; the duty of obedience, the consequence of enjoying that right, cannot possibly arise. When the cause is removed, the effect must cease to operate.
In this plain and simple manner, from the principles, which we have traced and established as the foundation of the obligatory force of law, we prove incontestably, that the colonists, after their emigration, were under no obligations of obedience to the acts of the English or British parliament. Principles, properly and surely laid, are eminently useful both for detecting and confuting errour, and for elucidating and confirming truth.
The history as well as the principles of this momentous question ought to be fully developed and known. It is an instructive, and it is an interesting one. It has engaged the attention of the civilized world. It has employed the treasures and the force of the most respectable nations. America, both North and South, almost all the European powers, either as parties or as neutrals, acted or waited in arms for the important and final decision. On one side, it was worth all that it has cost. The auspicious event we have seen and experienced. Its rise, its progress, and its merits, every citizen, certainly every lawyer and statesman, in the United States, should accurately know.
The dependence of the colonies in America on the parliament of England seems to have been a doctrine altogether unknown and even unsuspected by the colonists who emigrated, and by the princes with whose consent their emigrations were made. It seems not, for a long time, to have been a doctrine known to the parliament itself.
Those, who launched into the unknown deep, in search of new countries and habitations, still considered themselves, it is true, as subjects of the English monarchs, and behaved suitably and unexceptionably in that character; but it no where appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king’s name: they treated, or made war with the Indians by his authority: they established governments under his prerogative, as it was then understood, or, as it was also then understood, by virtue of his charters. No application, for those purposes, was made to the parliament: no ratification of the charters or letters patent was solicited from that assembly, as is usual in England, with regard to grants and franchises of much less importance.
My Lord Bacon’s sentiments on this subject ought to have great weight with us. His immense genius, his universal learning, his deep insight into the laws and constitution of England, are well known and much admired. Besides; he lived at that very time when the settlement and the improvement of the American plantations began to be seriously pursued, and successfully to be carried into execution. Plans for the government and regulation of the colonies were then forming; and it is from the first general idea of those plans that we can best unfold, with precision and accuracy, all the more minute and intricate parts of which they afterwards consisted. “The settlement of colonies,” says he, “must proceed from the option of those who will settle them, else it sounds like an exile: they must be raised by the leave and not by the command of the king. At their setting out, they must have their commission or letters patent from the king, that so they may acknowledge their dependency upon the crown of England, and under his protection.” “They must still be subjects of the realm.” “In order to regulate all the inconveniences, which will insensibly grow upon them,” he proposes, that the king should erect a subordinate council in England, whose care and charge shall be, to advise and put in execution all things, which shall be found fit for the good of these new plantations; who, upon all occasions, shall give an account of their proceedings to the king or to the council board, and from them receive such directions as may best agree with the government of that place.x It is evident from these quotations, that my Lord Bacon had no conception, that the parliament would or ought to interpose, either in the settlement or in the government of the colonies.
We have seen the original association of the society, who made the first settlement in New England. In that instrument, they acknowledge themselves the loyal subjects of the king; and promise all due subjection and obedience to the colony: but we hear nothing concerning the parliament. Silence is sometimes expressive: it seems to be strongly so in this instance.
About sixty years afterwards, and during the reign of Charles the second, the general court of that colony exhibit the following natural account of the principles, on which the first settlement was made. “The first comers here,” say they, “having first obtained leave of king James, of happy memory, did adventure, at their own proper costs and charges, through many foreseen and afterwards felt sufferings, to break the ice, and settle the first English plantation in this then uncultivated remote part of your dominions. We have had now near about sixty years lively experience of the good consistency of the order of these churches with civil government and order, together with loyalty to kingly government and authority, and the tranquillity of this colony. May it therefore please your most excellent majesty to favour us with your gracious letters patent for our incorporation into a body politick, with singular the privileges as your majesty has been accustomed to grant to other colonies, so to your majesty’s colony of Connecticut.”y Still no mention is made of parliament: still no application is made to that body. These omissions could not have been owing to accident: they must have been intentional. Before this time, the pretensions of parliament, during the existence of the commonwealth, had been both known and felt; and, at this time, must have been remembered.
By the charter of Rhode Island, granted in the fourteenth year of Charles the second, the king grants and confirms all that part of his dominions in New England in America, containing the Narraghanset Bay, and countries and parts adjacent, &c. Here, also, no notice is taken of the parliament.
The following transactions relating to Virginia, exhibit, in a very striking point of view, the sentiments both of the king and of the colonists, concerning the interference of parliament with the business of colonial administration. Sir William Berkely,36 who, in the year 1639, was appointed governour of that colony, was, among other things, directed to summon the burgesses of all the plantations, who, with the governour and council, should constitute the grand assembly, with power to make acts for the government of the colony, as near as may be to the laws of England.
A discontented party in Virginia contrived, in what particular manner is not mentioned, to have a petition presented, in the name of the assembly to the house of commons, praying a restoration of the ancient patents and corporation government. The governour, the council, and the burgesses no sooner heard of a transaction so contrary to truth and their wishes, than they transmitted an explicit disavowal of it to England; and, at the same time, sent an address to the king, acknowledging his bounty and favour towards them, and earnestly desiring to continue under his immediate protection. In that address, they desired that the king would, under his royal signet, confirm their declaration and protestation against the petition presented, in their names, to the house of commons, and transmit that confirmation to Virginia. The king expresses strong satisfaction with this address; declares that their so earnest desire to continue under his immediate protection is very acceptable to him; and informs them, that he had not before the least intention to consent to the introduction of any company over the colony; but that he was much confirmed in his former resolutions by the address; since he would think it very improper to change a form of government, under which his subjects there received so much content and satisfaction. He transmits to them, under his royal signet, his approbation of their petition and protestation.z
In the colony of Massachussetts, the famous navigation act, made by the English parliament, met with a strong and steady opposition. It was not enforced by the governour annually chosen by the people, whose interest it was that it should not be observed. Of consequence, no custom house was established. The colony carried on the greater part of the trade of the plantations to every quarter of the globe: and vessels from every European country, from France, from Spain, from Italy, from Holland, were crowded together in the harbour of Boston. This prosperous situation excited the envy and the jealousy of the mercantile and manufacturing interests in England. These principles produced, from the merchants and manufacturers, a representation to Charles the second; in which they prayed, that the colonies might receive no supplies but from England; and that the subjects of New England might be compelled to trade according to law. When information of these measures was transmitted to Massachussetts by her agents in England; the general court avowed the conduct of the colony; justified that conduct in point of legality; and stated the sacrifice which it was willing to make of its interests, though not of its rights. It acknowledged that no regard had been paid to the laws of navigation. It urged that those laws were an invasion of the rights and privileges of the subjects of his majesty in that colony, they not being represented in the parliament; because, according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America; but that, as his majesty had signified his pleasure, that those laws should be observed, it had made provision, by an ordinance of the colony, which obliged masters of vessels to yield faithful obedience, and commanded officers to see them strictly observed.a
A letter written in the year 1698 from governour Nicholson of Maryland37 to the board of trade shows that the sentiments of the colony of Massachussetts, with regard to the authority of acts of parliament, had, when the letter was written, become general in the colonies. “I have observed that a great many people in all these provinces and colonies, especially in those under proprietaries, and the two others under Connecticut and Rhode Island, think that no law of England ought to be in force and binding to them without their own consent: for they foolishly say they have no representatives sent from themselves to the parliament of England: and they look upon all laws made in England, that put any restraint upon them, to be great hardships.”b
Of the Nature and Philosophy of Evidence.
Evidence is a subject of vast and extensive importance in the study and practice of the law: it is of vast and extensive importance, likewise, in the business and general management of human affairs.
“Experience,” says Sir William Blackstone, “will abundantly show, that above a hundred of our law suits arise from disputed facts”—and facts are the objects of evidence—“for one where the law is doubted of. About twenty days in the year are sufficient, in Westminster Hall, to settle, upon solemn argument, every demurrer or other special point of law, that arises throughout the nation. But two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England, exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.”a
But evidence is not confined, in its operation and importance, to the courts of justice. Its influence on the human mind, human manners, and human business is great and universal. In perception, in consciousness, in remembrance, belief always forms one ingredient. But belief is governed by evidence. In every action which is performed with an intention to accomplish a particular purpose, there must be a belief that the action is fitted for the accomplishment of the purpose intended. So large a share has belief in our reasonings, in our resolutions, and in our conduct, that it may well be considered as the main spring, which produces and regulates the movements of human life.
In a subject of so great use and extent, it is highly necessary that our first principles be accurate and well founded. It is, however, matter of just and deep regret, that very little has been said, and that still less has been satisfactorily said, concerning the sound and genuine sources and principles of evidence. “An inquiry,” says Eden, in his Principles of penal law, “into the general rules and maxims of evidence, is a field still open to investigation. For the considerations of some very ingenious writers on this subject have been too much influenced by their acquiescence in personal authority, and we are furnished rather with sensible and useful histories of what the law of evidence actually is, than with any free and speculative disquisition of what it ought to be.”b The truth is, I may add, that the philosophy, as well as the law of evidence is a field, which demands and which is susceptible of much cultivation and improvement.
“Evidence, in legal understanding,” says my Lord Coke, “doth not only contain matters of record, as letters patent, fines, recoveries, enrollments, and the like; and writings under seal, as charters and deeds; and other writings without seal, as court rolls, accounts, which are called evidences, instrumenta; but, in a larger sense, it containeth also testimonia, the testimony of witnesses, and other proofs to be produced and given to a jury, for the finding of any issue joined between the parties. And it is called evidence, because thereby the point in issue is to be made evident to the jury. Probationes debent esse evidentes (id est) perspicuae et faciles intelligi.”c1
The learned Author of the Commentaries on the Laws of England describes evidence as signifying that, which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other.d
When we are informed that it is called evidence, because thereby the point in issue is to be made evident to the jury; we are informed of little, if any thing, more than an identical proposition; and, consequently, are not enabled by it to make any considerable progress in the attainment of science.
To say that evidence demonstrates, makes clear, and ascertains the truth of a fact, is rather to describe its effects than its nature. Its effects, too, are described in a manner, neither very accurate nor precise; as I shall afterwards have occasion to show more particularly.
But the truth is, that evidence is much more easily felt than described. We experience, though it is difficult to explain, its operations and influence. A man may have a good eye, and may make a good use of it, though he cannot unfold the theory of vision.
These reflections naturally lead us to one illustrious source of the propriety of a jury to decide on matters of evidence. “It is much easier,” says the Marquis of Beccaria, “to feel the moral certainty of proofs, than to define it exactly. For this reason I think it an excellent law, which establishes assistants to the principal Judge, and those chosen by lot: For that ignorance which judges by its feelings is little subject to errour.”e
Perhaps there is no more unexceptionable mode of expressing what we feel to be evidence, than to say—it is that which produces belief.
Belief is a simple operation of the mind. It is an operation, too, of its own peculiar kind. It cannot, therefore, be defined or described. The appeal for its nature and existence, must be made to the experience, which every one has of what passes within himself. This experience will, probably, inform him, that belief arises from many different sources, and admits of all possible degrees, from absolute certainty down to doubt and suspicion.
The love of system, and of that unnatural kind of uniformity to which system is so much attached, has done immense mischief in the theory of evidence. It has been long the aim and labour of philosophers to discover some common nature, to which all the different species of evidence might be reduced. This was the great object of the schools in their learned lucubrations concerning the criterion of truth. This criterion they endeavoured to find from a minute and artificial analysis of the several kinds of evidence; by means of which they expected to ascertain and establish some common quality, which might be applied, with equal propriety, to all. Des Cartes placed this criterion of truth in clear and distinct perception,f and laid it down as a maxim, that whatever we clearly and distinctly perceive to be true, is true. The meaning, the truth, and the utility of this maxim seem to be all equally problematical.
This criterion of truth was placed by Mr. Locke in a perception of the agreement or disagreement of our ideas. This, indeed, is the grand principle of his philosophy, and he seems to consider it as a very important discovery. “Knowledge,” says he, “seems to me to be nothing but the perception of the connexion and agreement, or disagreement and repugnancy of any of our ideas. In this alone it consists. For since the mind, in all its thoughts and reasonings, hath no other immediate object but its own ideas, which it alone does or can contemplate; it is evident, that our knowledge is only conversant about them.”g “We can have no knowledge farther than we have ideas. We can have no knowledge farther than we have perception of that agreement or disagreement.”h
In order to perceive whether two ideas agree or disagree, they must be compared together: According to this hypothesis, therefore, all knowledge must arise from the comparison of ideas.
Let us try this hypothesis by applying it minutely and carefully to a principle of knowledge allowed by all philosophers—and the only one allowed by all philosophers—to be sound and unexceptionable: I mean the principle of consciousness:—I mean, farther, the most clear and simple appeal, which can possibly be made to that clear and simple principle, I think. This has always been admitted to form a principle and a part of knowledge. According to the hypothesis of Mr. Locke, this knowledge must be nothing but the perception of the agreement—for disagreement cannot enter into the question here—between ideas. What are the ideas to be compared, in order that the agreement may be discovered? I and thought? Let us grant every indulgence, and suppose, for a moment, that existence and thought are nothing more than ideas; and then let us see how the comparison of ideas, and how their agreement in consequence of their comparison, will stand.
How is the knowledge of this truth—“I think”—drawn from the perception of any agreement between the idea of me and the idea of thought? When I think, I am conscious of thinking; and this consciousness is the clearest and most intimate knowledge. But does this consciousness arise from the perception of agreement between the idea of me and the idea of thought? No. From Mr. Locke’s own system, no such knowledge can arise from the perception of any such agreement: because the agreement does not, at all times, take place.
“The mind” says he, “can sensibly put on, at several times, several degrees of thinking, and be sometimes, even in a waking man, so remiss, as to have thoughts dim and obscure to that degree, that they are very little removed from none at all; and, at last, in the dark retirements of sound sleep, loses the sight, perfectly, of all ideas whatsoever.i The knowledge, then, of this truth, that I think, does not arise from the perception of any agreement between the idea me and the idea of thought; since, according to Mr. Locke’s own account of the matter, that agreement does not always subsist.
Let us try this hypothesis—that knowledge is the perception of the agreement or disagreement of our ideas—by another instance; and let us attend to the result. I perceive a small book in my hand. My faculty of seeing gives me not merely a simple apprehension of the book; it gives me, likewise, a concomitant belief or knowledge of its existence; of its shape, size, and distance. By the perception of the agreement of what ideas, is this knowledge or belief acquired? This belief is inseparably connected with the perception of the book; and does not arise from any perception of agreement between the idea of the book, and the idea of myself.
I remember to have dined a few days ago with a particular company of friends. This remembrance is accompanied with clear and distinct belief or knowledge. How does this belief or knowledge arise? Is it from the perception of agreement between ideas? Between what ideas? Between the idea of me, and the idea of my friends? This agreement, I presume, would have been the same, whether we had dined together or not. Is it from the agreement between the idea of me and the idea of dining? But how, from this agreement, will the knowledge of dining with my friends arise? On this state of the supposition, I might have dined with strangers or with enemies.
Let us examine the future, as we have examined the past. If a certain degree of cold freezes water now, and has been known to freeze it in all times past; we believe, nay, we rest assured, that the same degree of cold will continue to freeze the water while the cold continues; and returning, will be attended with the same effect, in all times future. But whence does this belief or assurance arise? Does it arise from the comparison of ideas—from the perception of their agreement? When I compare the idea of cold with that of water hardened into a transparent solid body, I can perceive no connexion between them: no man can show the one to be the necessary effect of the other: no one can give a shadow of reason why nature has conjoined them. But from experience we learn that they have been conjoined in times past; and this experience of the past is attended with a belief and assurance, that those connexions, in nature, which we have observed in times past, will continue and operate in times to come.k
We now see, that our knowledge, which proceeds from consciousness, from the senses, from memory, and from anticipation of the future occasioned by experience of the past, arises not from any perception of the agreement or disagreement of our ideas. These are important parts of our knowledge: the evidence, upon which these parts of our knowledge is founded, is an important part of the system of evidence. All, however, rests on principles, very different from that which is assigned by Mr. Locke, as the sole principle of knowledge. We may go farther still, and say, if knowledge consists solely in the perception of the agreement or disagreement of ideas, there can be no knowledge of any proposition, which does not express some agreement or disagreement of ideas; consequently, there can be no knowledge of any proposition, which expresses either the existence, or the attributes, or the relations of things; which are not ideas. If, therefore, the theory of ideas be true, there can be no knowledge of any thing else: if we have knowledge of any thing else, the theory of ideas must be unfounded. For the knowledge of any thing else than ideas must arise from something else than the perception of the agreement or disagreement of ideas.l
This principle, assigned by Mr. Locke, that knowledge is nothing but a perception of the agreement or disagreement of our ideas, is founded upon another—the existence of ideas or images of things in the mind. This theory I have already had an opportunity of considering, and I shall not now repeat what I then delivered at some length. I then showed, I hope, satisfactorily, that this theory has no foundation in reason, in consciousness, or in the other operations of our minds; but that, on the contrary, it is manifestly contradicted by all these, and would, in its necessary consequences, lead to the destruction of all truth, and knowledge, and virtue; though those consequences were, by no means, foreseen by Mr. Locke, and many succeeding philosophers, who have adopted, and still adopt, his theory concerning the existence of ideas or images of things in the mind.
If this theory has, as we have shown it to have, no foundation—if these ideas have, as we have shown them to have, no existence; then Mr. Locke’s great principle, which represents knowledge and belief, and consequently evidence, upon which knowledge and belief are grounded, as consisting in the perception of the agreement or disagreement of those ideas, must tumble in ruins, like a superstructure, whose basis has been undermined and removed.
It is nevertheless true, that, in our law books, the general principles of evidence, so far as any notice is taken of general principles on this subject, are referred, for their sole support, to the theory of Mr. Locke. This will appear obvious to any one who is acquainted with that theory, and peruses the first pages of my Lord Chief Baron Gilbert’s Treatise upon Evidence. This unfolds the reason why I have employed so much pains to expose and remove the sandy and unsound foundation, on which the principles of the law of evidence have been placed.
Let us now proceed to erect a fabrick on a different and a surer basis—the basis of the human mind.
I am, by no means, attached to numerous and unnecessary distinctions; but, on some occasions, it is proper to recollect the rule, “qui bene distinguit, bene docet.”2 It is possible to blend, as well as to distinguish, improperly. Nature should always be consulted. We are safe, when we imitate her in her various, as well as when we imitate her in her uniform appearances. By following her as our guide, we can trace evidence to the following fourteen distinct sources.
I. It arises from the external senses: and by each of these, distinct information is conveyed to the mind.
II. It arises from consciousness; or the internal view of what passes within ourselves.
III. It arises from taste; or that power of the human mind, by which we perceive and enjoy the beauties of nature or of art.
IV. It arises from the moral sense; or that faculty of the mind, by which we have the original conceptions of right and wrong in conduct; and the original perceptions, that certain things are right, and that others are wrong.
V. Evidence arises from natural signs: by these we gain our knowledge of the minds, and of the various qualities and operations of the minds, of other men. Their thoughts, and purposes, and dispositions have their natural signs in the features of the countenance, in the tones of the voice, and in the motions and gestures of the body.
VI. Evidence arises from artificial signs; such as have no meaning, except that, which is affixed to them by compact, or agreement, or usage: such is language, which has been employed universally for the purpose of communicating thought.
VII. Evidence arises from human testimony in matters of fact.
VIII. Evidence arises from human authority in matters of opinion.
IX. Evidence arises from memory, or a reference to something which is past.
X. Evidence arises from experience; as when, from facts already known, we make inferences to facts of the same kind, unknown.
XI. Evidence arises from analogy; as when, from facts already known, we make inferences to facts of a similar kind, not known.
XII. Evidence arises from judgment; by which I here mean that power of the mind, which decides upon truths that are selfevident.
XIII. Evidence arises from reasoning: by reasoning, I here mean that power of the mind, by which, from one truth, we deduce another, as a conclusion from the first. The evidence, which arises from reasoning, we shall, by and by, see divided into two species—demonstrative and moral.
XIV. Evidence arises from calculations concerning chances. This is a particular application of demonstrative to ascertain the precise force of moral reasoning.
Even this enumeration, though very long, is, perhaps, far from being complete. Among all those different kinds of evidence, it is, I believe, impossible to find any common nature, to which they can be reduced. They agree, indeed, in this one quality—which constitutes them evidence—that they are fitted by nature to produce belief in the human mind.
It will be proper to make some observations concerning each of the enumerated kinds of evidence. In the business of life, and, consequently, in the practice of a lawyer or man of business, they all occur more frequently than those unaccustomed to consider them are apt to imagine.
I. The truths conveyed by the evidence of the external senses are the first principles, from which we judge and reason with regard to the material world, and from which all our knowledge of it is deduced.
The evidence furnished even by any of the several external senses seems to have nothing in common with that furnished by each of the others, excepting that single quality before mentioned. The evidence of one sense may be corroborated, in some instances; and, in some instances, it may be corrected, by that of another sense, when both senses convey information concerning the same object; but still the information conveyed by each is clearly perceived to be separate and distinct. We may be assured that a man is present, by hearing and by seeing him; but the evidence of the eye is nevertheless different from the evidence of the ear.
In the sacred history of the resurrection, a beautiful and emphatical reference is had to this distinct but corresponding and reciprocally corroborating evidence of the senses, by him, by whom our nature was both made and assumed. “Behold,” says he, to his trembling and doubting disciples, who supposed they had seen a spirit, “Behold my hands and my feet, that it is I myself; handle me, and see; for a spirit has not flesh and bones as you see me have: And when he had thus spoken, he showed them his hands and his feet.”m To the unbelieving Thomas, he is still more particular in his appeal to the evidence of the senses, and in the manner, in which the appeal should be made. “Reach hither thy finger and behold my hands; and reach hither thy hand, and thrust it into my side; and be not faithless, but believing.”n
Many philosophers of high sounding fame, deeming it inconsistent with their character to believe, when they could not furnish an argument for belief, have endeavoured, with much learned labour, to suggest proofs for the doctrine—that our senses ought to be trusted. But their proofs are defective, and shrink from the touch of rigid examination. Other philosophers, of no less brilliant renown, have clearly and unanswerably discovered and exposed the fallacy of those pretended proofs: so far they have done well: but very unwisely they have attempted to do more: they have attempted to overturn our belief in the evidence of our senses, because the arguments adduced on the other side to prove its truth were shown to be defective and fallacious. From human nature an equal departure is made on both sides. It appeals not to reason for any argument in support of our belief in the evidence of our senses: but it determines us to believe them.
II. Consciousness furnishes us with the most authentick and the most indubitable evidence of every thing which passes within our own minds. This source of evidence lays open to our view all our perceptions and mental powers; and, consequently, forms a necessary ingredient in all evidence arising from every other source. There can be no evidence of the objects of the senses, without perception of them by the mind: there can be no evidence of the perception of them by the mind, without consciousness of that perception. When we see, and feel, and think, consciousness gives us the most certain information that we thus see, and feel, and think. This, as has been observed on a former occasion, is a kind of evidence, the force and authenticity of which has never been called in question by those, who have been most inclined to dispute every thing else, except the evidence of reasoning.
III. I mentioned taste, or that power of the mind by which we perceive and enjoy the beauties of nature and art, as one of the sources from which evidence arises. This faculty, in its feeling and operations, has something analogous to the impressions and operations of our external senses; from one of which, it has, in our own and in several other languages, derived its metaphorical name.
With the strictest propriety, taste may be called an original sense. It is a power, which furnishes us with many simple perceptions, which, to those who are destitute of it, cannot be conveyed through any other channel of information. Concerning objects of taste, it is vain to reason or discourse with those who possess not the first principles of taste. Again; taste is a power, which, so soon as its proper object is exhibited to it, receives its perception from that object, immediately and intuitively. It is not in consequence of a chain of argument, or a deductive process of our reasoning faculties, that we discover and relish the beauties of a poem or a prospect. Both the foregoing characters belong evidently to consciousness and to the external senses. All the three are, therefore, considered, with equal propriety, as distinct and original sources of information and evidence.
That it is fruitless to dispute concerning matters of taste has been so often said, that it has now acquired the authority and notoriety of a proverb; and its suggestions are consequently supposed, by some, to be dictated only by whim and caprice. Nothing, however, can be farther from the truth. The first and general principles of taste are not less uniform, nor less permanent, than are the first and general principles of science and morality. The writings of Cicero present him to us in two very different characters—as a philosopher, and as a man of taste. His philosophical performances are read, and ought to be read, with very considerable grains of allowance; the beauties of his oratory have been the subjects of universal and uninterrupted admiration. The fame of Homer has obtained an undisputed establishment of near three thousand years. Has a reputation equally uniform attended the philosophical doctrines of Aristotle or Plato? The writings of Moses have been admired for their sublimity by those, who never received them as the vehicles of sacred and eternal truth.
The first and most general principles of taste are universal as well as permanent: it is a faculty, in some degree, common to all. With youth, with ignorance, with savageness, its rudiments are found to dwell. It seems not less essential to man to have some discernment of the beauties both of art and nature, than it is to possess, in some measure, the faculties of speech and reason. “Let no one,” says Cicero, in his excellent book de oratore, “be surprised that the most uncultivated mind can mark and discern these things: since, in every thing, the energy of nature is great and incredible. Without education or information, every one, by a certain tacit sense, is enabled to judge and decide concerning what is right or wrong in the arts. If this observation is true with regard to pictures, statues, and other performances, in the knowledge of which they have less assistance from nature; it becomes much more evident and striking with regard to the judgments, which they form concerning words, harmony, and pronunciation: for concerning these there is a common sense implanted in all, of which Nature intended that no one should be entirely devoid.”o
IV. As a fourth source of evidence, I mentioned the moral sense, or that faculty of the mind, by which we have the original conceptions that there is a right and a wrong in conduct; and that some particular actions are right, and others wrong. Without this last power of applying our conceptions to particular actions, and of determining concerning their moral qualities, our general and abstract notions of moral good and evil would be of no service to us in directing the conduct and affairs of human life.
The moral sense is a distinct and original power of the human mind. By this power, and by this power solely, we receive information and evidence of the first principles of right and wrong, of merit and demerit. He, who would know the colour of any particular object, must consult his eye: in vain will he consult every other faculty upon the point. In the same manner, he, who would learn the moral qualities of any particular action, must consult his moral sense: no other faculty of the mind can give him the necessary information.
The evidence given by our moral sense, like that given by our external senses, is the evidence of nature; and, in both cases, we have the same grounds for relying on that evidence. The truths given in evidence by the external senses are the first principles from which we reason concerning matter, and from which all our knowledge of the material world is drawn. In the same manner, the truths given in evidence by our moral faculty are the first principles, from which we reason concerning moral subjects, and from which all our knowledge of morality is deduced. The powers, which Nature has kindly bestowed upon us, are the only channels, through which the evidence of truth and knowledge can flow in upon our minds.
Virtuous demeanour is the duty, and should be the aim, of every man: the knowledge and evidence of moral truth is, therefore, placed within the reach of all.
Of right and wrong there are many different degrees; and there are also many different kinds. By the moral faculty we distinguish those kinds and degrees. By the same faculty we compare the different kinds together, and discover numerous moral relations between them.
Our knowledge of moral philosophy, of natural jurisprudence, of the law of nations, must ultimately depend, for its first principles, on the evidence and information of the moral sense. This power furnishes to us the first principles of our most important knowledge. In dignity, it is far superiour to every other power of the human mind.
V. The fifth kind of evidence, of which I took notice, is that, which arises from natural signs. By these, we gain information and knowledge of the minds, and of the thoughts, and qualities, and affections of the minds of men. This kind of evidence is of very great and extensive importance.
We have no immediate perception of what passes in the minds of one another. Nature has not thought it proper to gratify the wish of the philosopher, by placing a window in every bosom, that all interiour transactions may become visible to every spectator. But, although the thoughts, and dispositions, and talents of men are not perceivable by direct and immediate inspection; there are certain external signs, by which those thoughts, and dispositions, and talents are naturally and certainly disclosed and communicated.
The signs, which naturally denote our thoughts, are the different motions of the hand,p the different modulations or tones of the voice, the different gestures and attitudes of the body, and the different looks and features of the countenance, especially what is termed, with singular force and propriety, the expression of the eye. By means of these natural signs, two persons, who never saw one another before, and who possess no knowledge of one common artificial language, can, in some tolerable degree, communicate their thoughts and even their present dispositions to one another: they can ask and give information: they can affirm and deny: they can mutually supplicate and engage fidelity and protection. Of all these we have very picturesque and interesting representations, in the first interviews between Robinson Crusoe and his man Friday; they are interesting, because we immediately perceive them to be natural. Two dumb persons, in their intercourse together, carry the use of these natural signs to a wonderful degree of variety and minuteness.
We acquire information, not only of the thoughts and present dispositions and affections, but also of the qualities, moral and intellectual, of the minds of others, by the means of natural signs. The eloquence or skill of another man cannot, themselves, become the objects of any of our senses, either external or internal. His skill is suggested to us by the signs of it, which appear in his conduct: his eloquence, by those which appear in his speech. In the same manner, and by the same means, we receive evidence concerning his benevolence, his fortitude, and all his other talents and virtues.
This evidence, however, of the thoughts, and dispositions, and passions, and talents, and characters of other men, conveyed to us by natural signs, is neither less satisfactory, nor less decisive upon our conduct in the business and affairs of life, than the evidence of external objects, which we receive by the means of our senses. It is no less a part, nor is it a less important part, of our constitution, that we are enabled and determined to judge of the powers and the characters of men, from the signs of them, which appear in their discourse and conduct, than it is that we are enabled and determined to judge, by our external senses, concerning the various corporeal objects, which we have occasion to view and consider.
The variety, the certainty, and the extent of that evidence, which arises from natural signs, may be conceived from what we discover in the pantomime entertainments on the theatre; in some of which, the whole series of a dramatick tale, and all the passions and emotions to which it gives birth, are represented, with astonishing address, by natural signs. By natural signs, likewise, the painters and statuaries infuse into their pictures and statues the most intelligible, and, sometimes, the most powerful expression of thought, of affections, and even of character.
Among untutored nations, the want of letters is supplied, though imperfectly, by the use of visible and natural signs, which fix the attention, and enliven the remembrance of private or publick transactions. The jurisprudence of the first Romans exhibited the picturesque scenes of the pantomime entertainment. The intimate union of the marriage state was signified by the solemnities attending the celebration of the nuptials. The contracting parties were seated on the same sheep skin; they tasted of the same salted cake of far or rice. This last ceremony is well known by the name of confarreatio. A wife, divorced, resigned the keys, by the delivery of which she had been installed into the government of domestick affairs. A slave was manumitted by turning him round, and giving him a gentle stroke on the cheek. By the casting of a stone, a work was prohibited. By the breaking of a branch, prescription was interrupted. The clenched fist was the emblem of a pledge. The right hand was the token of faith and confidence. A broken straw figured an indenture of agreement. In every payment, weights and scales were a necessary formality. In a civil action, the party touched the ear of his witness; the plaintiff seized his reluctant adversary by the neck, and implored, by solemn solicitation, the assistance of his fellow citizens. The two competitors grasped each other’s hand, as if they stood prepared for combat, before the tribunal of the pretor. He commanded them to produce the object of the dispute. They went; they returned, with measured steps; and a turf was cast at his feet, to represent the field, for which they contended, and the property of which he was to decide.q
In more enlightened ages, however, the use and meaning of these natural and primitive signs became gradually obliterated. But a libel may still be expressed by natural signs, as well as by words; and the proof of the intention may be equally convincing and satisfactory in cases of the first, as in those of the last kind.
VI. But evidence arises frequently from artificial as well as from natural signs; from those which are settled by agreement or custom, as well as from those which are derived immediately from our structure and constitution. Of these artificial signs there are many different species, contrived and established to answer the demands and emergencies of human life. The signals used by fleets at sea, form a very intricate and a very interesting part of naval tacticks.
But language presents to us the most important, as well as the most extensive, system of artificial signs, which has been invented for the purpose of giving information and evidence concerning the thoughts and designs of men. I mean not that language is altogether an invention of human art; for I am of opinion, that, if the first principles of language had not been natural to us, human reason and ingenuity could never have invented and executed its numerous artificial improvements. But of every language, at least of every refined language now in use, the greatest part consists of signs that are purely artificial. The evidence of language may, therefore, with sufficient propriety, be arranged under that kind of evidence, which arises from artificial signs.
Natural signs, though, as we have seen, susceptible of very considerable extent and variety, yet, when compared with the almost boundless variety and combinations of our conceptions and thoughts, have been found, in every country, and in every period of society, altogether inadequate to the communication of them in such a degree, as to accomplish, with tolerable conveniency, the necessary ends and purposes of human life. Hence the invention and improvement of language; which, as has been already observed, consists chiefly of artificial signs, contrived, at first, in all probability, only to supply the deficiencies of such signs as were natural; but afterwards, as language became refined and copious substituted almost entirely in their place.
But even language, however copious and refined, is, on examination and trial, found insufficient for conveying precisely and determinately all our conceptions and designs, consisting of numberless particulars, combined into numberless forms, and related by numberless connexions. Hence the necessity, the use, and the rules of interpretation, which has been introduced into all languages and all laws. A most extensive field now opens before us. But I cannot go into it. I am confined, at present, to the mere outlines of the philosophy of evidence. Let us therefore proceed.
VII. A seventh kind of evidence arises from human testimony in matters of fact.
Human testimony is a source of evidence altogether original, suggested by our constitution, and not acquired, though it is sometimes corroborated, and more frequently corrected, by considerations arising from experience.
“This is very plain,” says my Lord Chief Baron Gilbert, “that when we cannot see or hear any thing ourselves, and yet are obliged to make a judgment of it, we must see and hear from report of others; which is one step farther from demonstration, which is founded upon the view of our own senses: and yet there is that faith and credit to be given to the honesty and integrity of credible and disinterested witnesses, attesting any fact under the solemnities and obligation of religion, and the dangers and penalties of perjury, that the mind equally acquiesces therein as in knowledge by demonstration; for it cannot have any more reason to be doubted than if we ourselves had heard or seen it. And this is the original of trials, and all manner of evidence.”r
I shall not, at present, make any remarks upon the position—that demonstration is founded on the view of our own senses. It will be examined when I come to consider that kind of evidence which arises from reasoning—probable and demonstrative. But, at present, it is material to observe, that, in the sentiments, which the very learned Judge, whose character and talents I hold in the highest estimation, seems to entertain concerning the source of our belief in testimony, the restraints which are wisely calculated, by human regulations, to check, are mistaken for the causes intended to produce this belief. The true language of the law, addressed to the native and original sentiments of the human mind concerning testimony, is not to this purport—If you find a witness to be honest and upright, credible and disinterested: if you see him deliver his testimony under all the solemnities and obligation of religion, and all the dangers and penalties of perjury; you must then believe him. Belief in testimony springs not from the precepts of the law, but from the propensity of our nature. This propensity we indulge in every moment of our lives, and in every part of our business, without attending, in the least, to the circumspect precautions prescribed by the law.
Experience has found it necessary and useful, that, at least in legal proceedings, the indulgence of this natural and original propensity should be regulated and restrained. For this purpose, the law has said, that, unless a witness appears, as far as can be known, to be honest and upright, credible and disinterested; and unless he delivers his testimony under all the solemnities and obligations of religion, and all the dangers and penalties of perjury; you shall not—It does not say, you shall not believe him. To prevent this act or operation of the mind might be impracticable on hearing the witness: but it says—you shall not hear him. Accordingly, every gentleman, in the least conversant about law proceedings, knows very well, that the qualifications and solemnities enumerated by the learned Judge, are requisite to the competency, not to the credibility, of the witness—to the admission, not to the operation, of his testimony.
The proceedings of the common law are founded on long and sound experience; but long and sound experience will not be found to stand in opposition to the original and genuine sentiments of the human mind. The propensity to believe testimony is a natural propensity. It is unnecessary to encourage it; sometimes it is impracticable to restrain it. The law will not order that which is unnecessary: it will not attempt that which is impracticable. In no case, therefore, does it order a witness to be believed; for jurors are triers of the credibility of witnesses, as well as of the truth of facts. The positive testimony of a thousand witnesses is not conclusive as to the verdict. The jury retain an indisputable, unquestionable right to acquit the person accused, if in their private opinions, they disbelieve the accusers.s In no case, likewise, does the law order a witness not to be believed; for belief might be the unavoidable result of his testimony. To prevent that unavoidable, but sometimes improper result, the law orders, that, without the observance of certain precautions, which experience has evinced to be wise and salutary, the witness shall not be heard. This I apprehend to be the true exposition and meaning of the regulations prescribed by the law, before a witness can be admitted to give his testimony.
It will be pleasing and it will be instructive to trace and explain the harmony, which subsists between those regulations, thus illustrated, and the genuine sentiments of the mind with regard to testimony. To discover an intimate connexion between the doctrines of the law and the just theory of human nature, is peculiarly acceptable to those, who study law as a science founded on the science of man.t
In a former part of these lectures,u I had occasion to take notice of the quality of veracity, and of the corresponding quality of confidence; and to show the operation and the importance of those qualities in promises, which relate to what is to come. It is material to illustrate the connexion, the importance, and the operation of the same corresponding qualities in testimony, which relates to what is past.
By recalling to our remembrance what we have experienced, we find, that those, with whom we have conversed, were accustomed to express such and such particular things by such and such particular words. But, in strictness, experience conveys to us the knowledge only of what is past: can we be assured, that, in future, those who have it in their power to express different things by the same words, and the same things by different words, will, in neither manner, avail themselves of that power? We act, and we cannot avoid acting, as if we were so assured. On what foundation do we so act? Whence proceeds this belief of the future and voluntary behaviour of those, with whom we converse? Have they come under any engagements to do what we believe they will do? They have not; and if they had, what assurance could engagements convey to those, who possessed no previous reliance on the faith of promises?
There is, in the human mind, an anticipation, an original conviction, that those, with whom we converse, will, when, in future, they express the same sentiments, which they have expressed in time past, convey those sentiments by the same language which, in time past, they have employed to convey them. There is, in the human mind, a farther anticipation and conviction, that those, with whom we converse, will, when they express to us sentiments in the same language, which they have formerly employed to express them, mean, by those sentiments, to convey to us the truth.
The greatest and most important part of our knowledge, we receive by the information of others. We are, accordingly, endowed with the two corresponding principles, which I have already mentioned, and which are admirably fitted to accomplish the purpose, for which they were intended. The first of them, which is a propensity to speak the truth, and to use language in such a manner as to convey to others the sentiments, which we ourselves entertain, is a principle, degenerate as we are apt to think human nature to be, more uniformly and more universally predominant, than is generally imagined. To speak as we think, and to speak as we have been accustomed to speak, are familiar and easy to us: they require no studied or artificial exertion: a natural impulse is sufficient to produce them. Even the most consummate liar declares truths much more frequently than falsehoods. On some occasions, indeed, there may be inducements to deceive, which will prove too powerful for the natural principle of veracity, unassisted by honour or virtue: but when no such inducements operate, our natural instinct is, to speak the truth. Another instinct, equally natural, is to believe what is spoken to be true. This principle is a proper and a useful counterpart to the former.
A very different theory has been adopted by some philosophers. No species of evidence, it is admitted by them, is more common, more useful, and even more necessary to human life, than that which is derived from testimony. But our reliance, it is contended, on any evidence of this kind is derived from no other principle than our observation of the veracity of human testimony, and of the usual conformity of facts to the reports of witnesses. If it were not discovered by experience, that the memory is tenacious to a certain degree; that men have commonly a principle of probity and an inclination to truth; and that they have a sensibility to shame, when detected in a falsehood—If it were not discovered by experience, that these qualities are inherent in human nature; we should never repose the least confidence in human testimony.v
If belief in testimony were the result only of experience; those who have never had experience would never believe; and the most experienced would be the most credulous of men. The fact, however, in both instances, is precisely the reverse; and there are wise reasons, why it should be so. The propensity which children, before they acquire experience, discover to believe every thing that is told to them, is strong and extensive. On the contrary, experience teaches those who are aged, to become cautious and distrustful.
“Oportet discentem credere”3 has acquired, and justly, the force and the currency of a proverb. How many things must children learn and believe, before they can try them by the touchstone of experience! The infant mind, conscious, as it should seem, of its want of experience, relies implicitly on whatever is told it; and receives, with assurance, the testimony of every one, without attempting and without being able to examine the grounds, upon which that testimony rests. As the mind gradually acquires experience and knowledge, it discovers reasons for suspecting testimony, in some cases, and for rejecting it, in others. But unless some reasons appear for suspicion or disbelief, testimony is, through the whole of life, considered and received as sufficient evidence to form a foundation both of opinion and conduct.
The reasons for suspecting or rejecting testimony may generally be comprised under the following heads. 1. When the witness testifies to something, which appears to us to be improbable or incredible. 2. When he shows himself to be no competent judge of the matter, of which he gives testimony. 3. When, in former instances, we have known him to deliver testimony, which has been false. 4. When, in the present instance, we discover some strong inducement or temptation, which may prevail on him to deceive.
While experience and reflection, on some occasions, diminish the force and influence of testimony, they, on other occasions, give it assistance, and increase its authority. The reputation of the witness, the manner in which he delivers his testimony, the nature of the fact concerning which his testimony is given, the peculiar situation in which he stands with regard to that fact, the occasion on which he is called to produce his testimony, his entire disinterestedness as to the matter in question—each of these taken singly may much augment the force of his evidence—all of these taken jointly may render that force irresistible.
In a number of concurrent testimonies, there is a degree of probability superadded to that, which may be termed the aggregate of all the probabilities of the separate testimonies. This superadded probability arises from the concurrence itself. When, concerning a great number and variety of circumstances, there is an entire agreement in the testimony of many witnesses, without the possibility of a previous collusion between them, the evidence may, in its effect, be equal to that of strict demonstration. That such concurrence should be the result of chance, is as one to infinite; or, to vary the expression, is a moral impossibility.
To this important kind of evidence we are indebted for our knowledge of history, of criticism, and of many parts of jurisprudence; for all that acquaintance with nature and the works of nature, which is not founded on our own personal observations and experience, but on the attested experience and observations of others; and for the greatest part of that information concerning men and things, which is necessary, if not to the mere animal support, yet certainly to the ease, comfort, improvement, and happiness of human life.
In the profession of the law, and in the administration of justice, this kind of evidence acquires an importance very peculiar indeed. To examine, to compare, and to appreciate it, forms much the greatest part of the business and duty of jurors, and a very great part of the business and duty of counsel and judges. It is, therefore, highly interesting to society, that the genuine and unsophisticated principles of this kind of evidence should be generally known and understood. From the very cursory view which we have taken of them, it appears that the rules observed by the common law, in admitting and in refusing testimony, are conformable to the true theory of the human mind, and not to the warped hypotheses of some philosophical systems.
VIII. The eighth source of evidence, which I mentioned, is human authority in matters of opinion.
“Cuilibet in sua arte perito est credendum”4 is one of the maxims of the common law. Like many other of its maxims, it is founded in sound sense, and in human nature.
Under the former head we have seen, that the infant mind, inexperienced and unsuspicious, trusts implicitly to testimony in matters of fact. It trusts, in the same implicit manner, to authority in matters of opinion. In proportion as the knowledge of men and things is gradually obtained, the influence of authority as well as of testimony becomes less decisive and indiscriminate. By the most prudent, however, and the most enlightened, it is, at no period of life, suffered to fall into desuetude or disrepute; even in subjects and sciences, which seem the most removed from the sphere of its operations.
Let us suppose, that, in mathematicks, the science in which authority is justly allowed to possess the least weight, one has made a discovery, which he thinks of importance: let us suppose that he has ascertained the truth of this discovery by a regular process of demonstration, in which, after the strictest review, he can find no defect or mistake: will he not feel an inclination to communicate this discovery to the inspection of a mathematical friend, congenial in his studies and pursuits? Will this inclination be prompted merely by the pride or pleasure of making the communication? Will it not arise, in some degree, from a very different principle—a latent but powerful desire to know the sentiments of his friend, not only concerning the merits, but also concerning the certainty of the discovery? Will not the sentiments of his friend, favourable or unfavourable, greatly increase or diminish his confidence in his own judgment? A man must possess an uncommon degree of self-sufficiency, who feels not an increased reliance on the justness of his discoveries, when he finds the truth of them fortified by the sentiments of those, who, with regard to the same subjects, are conspicuous for their penetration and discernment.
The evidence arising from authority, as well as that arising from testimony, other circumstances being equal, becomes strong in proportion to the number of those, on whose voice it rests. An opinion generally received in all countries and all ages, acquires such an accumulation of authority in its favour, as to entitle it to the character of a first principle of human knowledge.
IX. The ninth kind, into which we have distinguished evidence, is that, which arises from memory. The senses and consciousness give us information of those things only which exist at present. The memory conveys to us the knowledge of those things which are past. The evidence of memory, therefore, forms a necessary link in every chain of proof, by which the past is notified. This evidence is not less certain than if it was founded on strict demonstration. No man hesitates concerning it, or will give his assent to any argument brought to invalidate it. On it depends, in part, the testimony of witnesses, and all the knowledge which we possess, concerning every thing which is past.
The memory, as well as other powers of the mind which we have already mentioned, is an original faculty, and an original source of evidence, bestowed on us by the Author of our existence. Of this faculty we can give no other account, but that such, in this particular, is the constitution of our nature. Concerning past events we receive information from our memory; but how it gives this information, it is impossible for us to explain.w
“All our other original faculties, as well as memory, are unaccountable. He only, who made them, comprehends fully how they are made, and how they produce in us not only a conception, but a firm belief and assurance of things, which it concerns us to know.”x
Remembrance, however, is not always accompanied with full assurance. To distinguish by language, those lively impressions of memory, which, produce indubitable conviction, from those fainter traces, which occasion an inferiour degree of assent, or, perhaps, diffidence and suspense, is, we believe, an impracticable attempt. But every one is, in fact, competent to distinguish them in such a manner, as to direct his own judgment and conduct.
X. Evidence arises from experience; as when from facts already known, we make inferences to facts of the same kind, unknown.
This branch of our subject is of great extent, of much practical utility, and highly susceptible of curious and instructive investigation. But it cannot, on this occasion, be treated as fully as it deserves to be treated.
The sources, from which experience flows, are—the external senses, consciousness, memory. The senses and consciousness give information to the mind of the existing facts, which are placed within the sphere of their operation. These articles of intelligence, when received, are committed to the charge of the memory. From all these faculties, however, there results only the knowledge of such facts as have come, or now come under our notice. But, in order to render this knowledge of service to us in directing our own conduct, and in discovering the nature of things, a further process of the mind becomes necessary. From the past, or the present, or from both, inferences must be made to the future: those inferences form that kind of evidence, which arises from experience.
If an object is remembered to have been frequently, still more, if it is remembered to have been constantly, succeeded by certain particular consequences; the conception of the object naturally associates to itself the conception of the consequences; and on the actual appearance of the object, the mind naturally anticipates the appearance of the consequences also. This connexion between the object and the frequent or constant consequences of the object, is the foundation of those inferences, which, as we have observed, form the evidence arising from experience.
If the consequences have followed the object constantly, and the observations of this constant connexion have been sufficiently numerous; the evidence, produced by experience, amounts to a moral certainty. If the connexion has been frequent, but not entirely uniform; the evidence amounts only to probability; and is more or less probable, in proportion as the connexions have been more or less frequent. That cork will float on the surface of water, and that iron will sink in it, are truths, of which we are morally certain; because these inferences are founded on connexions both sufficiently numerous and sufficiently uniform. We are not morally certain whether oak timber will float or sink in water; because, in some circumstances, it sinks, and, in other circumstances, it floats. But, if the circumstances uniformly attending the contrary effects are specified; then, under that specification, we can tell, with moral certainty, whether the timber will sink or swim.
This evidence, by which we infer what the future will be from what the past has been, is the effect of an original principle, implanted in the human mind. This principle appears in our most early infancy. The child, who is burnt, is soon taught to dread the fire. A great and necessary part of our knowledge is drawn from this source, before we are able to exercise the reasoning faculty. It is an instinctive prescience of the operations of nature, very similar to that prescience of human actions, by which we are made to rely upon the testimony of our fellow men. Without the latter, we could not receive information, by the means of language, concerning the sentiments of those, with whom we converse: without the former, we could not, by means of experience, acquire knowledge concerning the operations of nature. When we arrive at the years of discretion and are capable of exercising our reasoning power, this instinctive principle retains in us all its force; but we become more cautious in its application. We observe, with more accuracy, the circumstances attending the appearance of the object and its consequences, and learn to distinguish those which are regularly, from those which are only occasionally, to be discovered.
On this principle is built the whole stupendous fabrick of natural philosophy; and if this principle were removed, that fabrick, solid and strong as it is, would tumble in ruins to the very foundation. “That natural effects of the same kind are produced by the same causes,” is a first principle laid down by the great Newton, as one of his laws of philosophizing.
On the same principle depends the science of politicks, which draws its rules from what we know by experience concerning the conduct and character of men. From this experience we conclude, that they will bestow some care and attention on themselves, on their families, and on their friends; that, without some temptation, they will not injure one another; that, on certain occasions, they will discover gratitude, and, on others, resentment. In the science of politicks, we consider not so much what man ought to be, as what he really is; and from thence we make inferences concerning the part which he will probably act, in the different circumstances and situations, in which he may be placed. From such considerations we reason concerning the causes and consequences of different governments, customs, and laws. If man were either better or worse, more perfect or less perfect, than he is, a proportioned difference ought to be adopted in the systems formed, and the provisions made, for the regulation of his conduct.
The same principle is the criterion, at least, if it is not the foundation, of all moral reasoning whatever. It is the basis of prudence in the management of the affairs and business of human life. Scarcely can a plan be formed, whether of a publick or even of a more private nature, which depends solely on the behaviour of him who forms it: it must depend also on the behaviour of others; and must proceed upon the supposition, that those others will, in certain given circumstances, act a certain given part.
XI. Evidence arises from analogy, as well as from experience. The evidence of analogy is, indeed, nothing more than a vague experience, founded on some remote similitude. When the circulation of the blood in one human body was verified by experiment, this was certainly a sufficient evidence, from experience, that, in every other human body, the blood, in like manner, circulates. When we reflect on the strong resemblance which, in many particulars, the bodies of some other animals, quadrupeds, for instance, bear to the human body; and especially on that resemblance, which is discovered in the blood vessels, in the blood itself, and in the pulsation of the heart and arteries; we discover evidence, from analogy, of the circulation of the blood in those other animals; for instance, in quadrupeds. In this application of the experiment, however, the evidence is unquestionably weaker than in that, which is transferred from one to another man. Yet, when the analogies are numerous, and evidence of a closer and more direct application is not to be obtained, the evidence from analogy is far from being without its operation and its use.
Its use, we acknowledge, appears more in answering objections, than in furnishing direct proofs. It may, for this reason, be considered as the defensive rather than the offensive armour of a speaker. It rarely refutes; but it repels refutations: it cannot kill the enemy; but it wards offhis blows.
Much of the evidence in natural philosophy rises not higher, than that which is derived from analogy. We learn from experience, that there is a certain gradation in the scale of certain animals: we conclude from analogy, that this gradation extends farther than our experience reaches. Upon the foundation of analogy, the systems of ancient philosophy concerning the material world were entirely built. My Lord Bacon first delineated, and, in some instances, applied the strict and severe method of induction from experiment. Since his time, this has been employed in natural philosophy, with the greatest success.
To the common lawyer, the evidence of analogy is a subject of very great extent and importance.
In speaking of judicial decisions, my Lord Chief Justice Hale distinguishes them into two kinds: one consists of such as have their reasons singly in the laws and customs of the kingdom. In these the law gives an express decision; and the judge is only the instrument, which pronounces it. The other kind consists of decisions, which are framed and deduced, as his Lordship says, by way of deduction and illation upon those laws.
A competition between opposite analogies is the principle, into which a very great number of legal controversies may be justly resolved. When a particular point of law has been once directly adjudged; the adjudication is deemed decisive as to that question, and to every other which, in all its circumstances, corresponds completely with that question. But questions arise, which resemble the decided question only in some parts, in certain circumstances, and in certain indirect aspects; and which, it is contended, bear, in other aspects, in other circumstances, and in other parts, a much closer and stronger resemblance to other cases, which have been likewise adjudged. To stating, to comparing, and to enforcing those opposite analogies, on the opposite sides, much of the business of the bar is appropriated. In discerning the force and extent of the distinctions which are taken; in framing an adjudication in such a manner, as to preserve unimpeached the various former decisions, from which the contending analogies have been drawn; or, if all cannot be so preserved, yet so as that the weaker may be given up to the stronger—in this, much of the wisdom and sagacity of the court are employed and displayed.
The late celebrated dispute concerning literary property will place this subject, and the remarks which have been made concerning it, in a very striking point of view. On one hand, the time which an author employs, the pains which he takes, and the industry which he exerts, in the production of his literary performance, bear the nearest and the most marked resemblance to the industry exerted, to the pains taken, and to the time employed, in the acquisition of property of every other kind. This resemblance, so striking and so strong, between the labour bestowed in this, and the labour bestowed in any other way, justifies the inference and the claim, that he, who bestowed the labour in this way, should be entitled to the same perpetual, assignable, and exclusive right in the production of the labour thus bestowed; and should receive the same protection of the law in the enjoyment of this perpetual, assignable, and exclusive right, as is given and decreed to those who bestow their labour in any other manner. This is the analogy on one side. On the other hand, a book, considered with respect to the author’s right in it, has a peculiar resemblance to any other invention of art; the discovery, for instance, of a new medicine, or of a new machine. Now, in these instances, unless an exclusive right is secured to the inventor by a patent, the law permits the machine or medicine to be used or imitated. Why should not the same liberty be enjoyed in the publication and sale of books? This is the analogy on the other side.
XII. Evidence arises from judgment. By judgment I here mean that power of the mind, which decides upon selfevident truths. This is a much more extensive power than is generally imagined. It is, itself, a distinct and original source of evidence; and its jurisdiction is exercised in all the other kinds of evidence, which have been already enumerated.
“There are conceptions, which ought to be referred to the faculty of judgment as their source: because, if we had not that faculty, they could not enter into our minds; and to those who have that faculty, and are capable of reflecting on its operations, they are obvious and familiar.
“Among these, we may reckon the conception of judgment itself; the notions of a proposition, of its subject, predicate, and copula; of affirmation and negation; of true and false; of knowledge, belief, disbelief, opinion, assent, evidence. From no source could we acquire these conceptions, but from reflecting on our judgments. Relations of things make one great class of our notions or ideas; and we cannot have the idea of any relation without some exercise of judgment.”y
By our senses, we have certain sensations and perceptions. But to furnish us with these, is not the only, nor is it, indeed, the principal office of our senses. They are powers, by which we judge, as well as feel and perceive. A man, who has become blind, may, nevertheless, retain very distinct conceptions of the several colours; but he cannot, any longer, judge concerning colours; because he has lost the sense, the immediate operation of which is necessary in order to enable him to form such judgment. By our ears, we have the ideas of sounds of different kinds, such as acute and grave, soft and loud. But this sense enables us not only to hear, but to judge of what we hear. We perceive one sound to be loud, another to be soft. When we hear more sounds than one, we perceive and judge that some are concords, and that others are discords. These are judgments of the senses.z
Judgment exercises its power concerning the evidence of consciousness, as well as concerning the evidence of the senses. The man, who is conscious of an object, believes that it exists, and is what he is conscious it is; not is it in his power to avoid such judgment. Whether judgment ought to be called a necessary concomitant, or rather an ingredient, of these operations of the mind, it is not material to inquire; but one thing is certain; they are accompanied with a determination that something is true or false, and with a consequent belief. This determination is not simple apprehension; it is not reasoning; it is a mental affirmation or negation; it may be expressed by a proposition affirmative or negative; and it is accompanied with the firmest belief. These are the characteristicks of judgment.a This name is sometimes given to every determination of the mind concerning what is true or what is false.b Under this head, I apply it, and confine it to that degree of judgment, which is commensurate with what is sometimes called common sense: for, in truth, common sense means common judgment.c
Further; judgment is implied in every operation of taste. When we say a statue or a poem is beautiful; we affirm something concerning that poem or statue: but every affirmation or denial expresses judgment. Our judgment of beauty is not, indeed, dry and uninteresting, like that of a mathematical truth. It is accompanied with an agreeable feeling or emotion, for which we have no appropriated term. It is called the sense of beauty.
Judgment is exerted also in the operations of our moral sense. When we exercise our moral powers concerning our own actions or those of others, we judge as well as feel. We accuse and excuse; we acquit and condemn, we assent and dissent; we believe and disbelieve. These are all acts of judgment.d
In short, we judge of the qualities of bodies by our external senses; we judge concerning what passes in our minds by our consciousness; we judge concerning beauty and deformity by our taste; we judge concerning virtue and vice by our moral sense: but, in all these cases, we judge; in most of them, our judgment is accompanied by feeling. Judgment accompanied by feeling forms that complex operation of the mind, which is denominated sentiment.
This train of investigation might be carried much farther; but, at present, we stop here.
Judgment, in the sense in which we here use it, is an original and an important source of knowledge, common to all men; and, for this reason, is frequently denominated common sense, as has been already intimated. In different persons, it prevails, indeed, with different degrees of strength; but none, except idiots, have been found originally and totally without it.
The laws, we believe, of every civilized nation distinguish between those who are, and those who are not, endowed with this gift of heaven. This gift is easily discerned by its effects, in the actions, in the discourse, and even in the looks of a man. When it is made a question, whether one is or is not possessed of this power, the courts of justice can usually determine the question with much clearness and certainty.
The same degree of understanding, which enables one to act with common prudence in the business of life, enables him also to discover self-evident truths concerning matters, of which he has distinct apprehension.
Selfevident truths, of every kind, and in every art and science, are the objects of that faculty, which is now under our consideration. Such truths, or axioms, as they are distinguished by way of excellence, are the foundation of all mathematical knowledge. There are axioms, too, in matters of taste. The fundamental rules of poetry, and painting, and eloquence, have always been, and, we may venture to add, always will be the same. The science of morals is also founded on axioms; many of which are accompanied with intuitive evidence, not less strong than that which is discovered in the axioms of mathematicks. Mathematical axioms can never extend their influence beyond the limits of abstract knowledge. But with axioms in other branches of science, the whole business of human life is closely and strongly connected.
XIII. Evidence arises from reasoning.
One observation, which I made concerning judgment, may be made, with the same propriety, concerning reasoning. It is, itself, a distinct and original source of evidence; and its jurisdiction is exercised also in evidence of every other kind. This suggests a very probable account why reason has been considered by many philosophers as the only source and criterion of evidence: for the powers both of judgment and of reasoning have been frequently blended under the name of reason.
As the conception of judgment should be referred to the faculty of judgment; so the conception of reasoning should be referred to the reasoning faculty, as its source. The ideas of demonstration, of probability, and of all the different modes of reasoning, take their origin from the faculty of reason. Without this faculty, we could not be possessed of those ideas.
The power of reasoning is somewhat allied to the power of judging. Reasoning, as well as judgment, must be true or false: both are accompanied with assent or belief. There is, however, a very material distinction between them. Reasoning is the process, by which we pass from one truth to another as a conclusion from it. In all reasoning, there must be a proposition inferred, and one or more, from which the inference is drawn. The proposition inferred is called the conclusion: the name of premises is given to the proposition or propositions, from which the conclusion is inferred. When a chain of reasoning consists of many links, it is easily distinguished from judgment. But when the conclusion is connected with the premises by a single link, the distinction becomes less obvious; and the process is sometimes called by one name; sometimes by the other.
In a series of legitimate reasoning, the evidence of every step should be immediately discernible to those who have a distinct comprehension of the premises and the conclusion.
The evidence, which arises from reasoning, is divided into two species—demonstrative and moral. The nature, the difference, and the uses of these two species of evidence, it is of great importance clearly and fully to understand.
Demonstrative evidence has for its subject abstract and necessary truths, or the unchangeable relations of ideas. Moral evidence has for its subject the real but contingent truths and connexions, which take place among things actually existing. Abstract truths have no respect to time or place; they are universally and eternally the same.
If these observations are just—and they are agreeable to the sentiments of those who have written most accurately on this subject—we may see the impropriety of my Lord Chief Baron Gilbert’s remark, when he says, that “all demonstration is founded on the view of a man’s proper senses.” From hence we may see likewise the inaccuracy of Sir William Blackstone’s description of evidence, when he mentions it as demonstrating the very fact in issue. The objects of our senses are objects of moral, but not of demonstrative evidence.
By writers on the civil law, the scientifick distinction, upon this subject, is accurately observed. Truths alone, say they,e which depend on abstract principles, are susceptible of demonstrative evidence: truths, that depend on matters of fact, however complete may be the evidence by which they are established, can never become demonstrative.
In a series of demonstrative evidence, the inference, in every step, is necessary; for it is impossible that, from the premises, the conclusion should not flow. In a series of moral evidence, the inference drawn in the several steps is not necessary; nor is it impossible that the premises should be true, while the conclusion drawn from them is false.
In demonstrative evidence, there are no degrees: one demonstration may be more easily comprehended, but it cannot be stronger than another. Every necessary truth leaves no possibility of its being false. In moral evidence, we rise, by an insensible gradation, from possibility to probability, and from probability to the highest degree of moral certainty.
In moral evidence, there not only may be, but there generally is, contrariety of proofs: in demonstrative evidence, no such contrariety can take place. If one demonstration can be refuted, it must be by another demonstration: but to suppose that two contrary demonstrations can exist, is to suppose that the same proposition is both true and false: which is manifestly absurd. With regard to moral evidence, there is, for the most part, real evidence on both sides. On both sides, contrary presumptions, contrary testimonies, contrary experiences must be balanced. The probability, on the whole, is, consequently, in the proportion, in which the evidence on one side preponderates over the evidence on the other side.
Demonstrative evidence is simple: in it there is only one coherent series, every part of which depends on what precedes, and suspends what follows. In demonstrative reasoning, therefore, one demonstration is equal to a thousand. To add a second would be a tautology in this kind of evidence. A second, it is true, is sometimes employed; but it is employed as an exercise of ingenuity, not as an additional proof. Moral evidence is generally complicated: it depends not upon any one argument, but upon many independent proofs, which, however, combine their strength, and draw on the same conclusion.
In point of authority, demonstrative evidence is superiour: moral evidence is superiour in point of importance. By the former, the understanding is enlightened, and many of the elegant and useful arts are improved. By the latter, society is supported; and the usual but indispensable affairs of life are regulated. To the acquisitions made by the latter, we owe the knowledge of almost every thing, which distinguishes the man from the child.
XIV. Evidence arises from calculations concerning chances. This kind of evidence does not occur very frequently. I take particular notice of it, because it is of much importance in some commercial transactions; especially in those relating to ensurances.
Chance furnishes materials for calculation, only when we know the remote cause, which will produce some one event of a given number; but know not the immediate cause, which will determine in favour of any one particular event of that given number, in preference to any other particular event. In calculating chances, it is necessary that a great number of instances be taken into consideration; that the greatest exactness and impartiality be used in collecting them on the opposite sides; and that there be no peculiarity in any of them, which would render it improper for becoming a part of the basis of a general conclusion.
I have now finished the long, I will not say, the complete enumeration of the different sources and kinds of evidence. Between several of them something will be found to be analogous. But, upon the most careful review, it will, I think, appear, that no one of them can be resolved into any other. Hence the propriety of considering and treating them separately and distinctly. Much advantage will, I believe, be reaped from acquiring and exercising a habit of considering them in this separate and distinct manner. For this purpose, it will be proper, when a trial of much variety and importance is perused or heard, to digest, at leisure, those things which are given or which appear in evidence, and refer them to their several sources and kinds. After this has been done, it will be of great use carefully to arrange the different sorts and parts of the evidence, and compare them together in point of solidity, clearness, and force. A habit of analyzing, combining, methodising, and balancing evidence, in this manner, will be a constant and a valuable resource in the practice of the law. Every one, who has observed or experienced that practice, must be sensible, that a lawyer’s time and attention are more employed, and his talents are more severely tried, by questions and debates on evidence, than by those on all the other titles of the law, various, intricate, and extensive as they are.
To wield the weapons of evidence forms an important article in a lawyer’s art. To wield them skilfully evinces a good head: to wield them honestly as well as skilfully evinces, at once, a good head and a good heart; and reflects equal honour on the profession and on the man.
I have, on this occasion, said nothing concerning the artificial rules of evidence, which are framed by the law for convenience in courts of justice. These, unquestionably, ought to be studied and known. Concerning these, much learning may be found in the several law books. Particular rules may be seen, adapted to particular cases. An intimate acquaintance with those rules will be of great practical utility in what I may call the retail business of the law; a kind of business by no means to be neglected; a kind of business, however, which should not be suffered to usurp the place of what is far more essential—the study and the practice too of the law, as a science founded on principle, and on the nature of man. The powers and the operations of the human mind are the native and original fountains of evidence. Gaudy, but scanty and temporary cascades may sometimes be supplied by art. But the natural springs alone can furnish a constant and an abundant supply. He, too, who is in full possession of these, can, with the greatest facility, and to the greatest advantage, display their streams, on proper occasions, in all the forms, and with all the ornaments, suggested and prepared by the most artificial contrivances.
It is generally supposed—and, indeed, our law books, so far as I recollect, go upon the supposition—that the evidence, which influences a court and jury, depends altogether upon what is said by the witnesses, or read from the papers. This, however, is very far from being the case. Much depends on the pleadings of the counsel. His pleadings depend much on a masterly knowledge and management of the principles of evidence. Evidence is the foundation of conviction: conviction is the foundation of persuasion: to convey persuasion is the end of pleading. From the principles of evidence, therefore, must be drawn that train and tenour of reasoning, which will accomplish the aim of the pleader, and produce the perfection of his art.
A rich and an immense prospect opens to my view; but I cannot now attempt to describe it.
THE END OF THE FIRST PART.
[a. ]1. Ld. Bacon. 252. Aph. 32.
[b. ]Hale. Hist. 55.
[c. ]El. Jur. (4to.) 94.
[1. ]Sir Henry Finch (1558–1625) was a famed jurist and member of parliament from Canterbury. He is most famous now for his writings concerning Zionism.
[2. ]Euripides (480–406 bc) was a great Grecian playwright.
[d. ]Finch. 74. 75.
[e. ]De Laud. c. 17.
[f. ]De bel. Gal. l. 6. c. 13.
[3. ]Likely refers to Pliny the Elder (23–79), a Roman author, scientist, and historian who died in the eruption of Mount Vesuvius.
[g. ]3. Rep. Pref. 9 b.
[4. ]Nathaniel Bacon (1593–1660) was an English attorney and politician.
[5. ]Gray’s Inn is one of the four Inns of Court (Lincoln’s Inn, Middle Temple, and Inner Temple being the other three), a place where barristers receive legal training and supervision.
[6. ]John Selden (1584–1654) was an English jurist, scholar, and politician.
[h. ]Bac. on Gov. 9.
[7. ]Between the powerful.
[i. ]Id. 10.
[8. ]Austin is the anglicized name of St. Augustine (?–604), the first Archbishop of Canterbury.
[j. ]Bac. on Gov. 12.
[k. ]Id. 56.
[l. ]Id. 64.
[m. ]Bac. on Gov. 68.
[9. ]A speaking law.
[10. ]Understood law.
[n. ]Id. 70.
[o. ]3. Edin. Phil. Trans. 10.
[11. ]John Pettingal (1708–1781) was an English scholar who wrote a book on juries in the ancient world.
[12. ]Immediate cause.
[p. ]Pett. on Jur. 154. 155.
[q. ]Pett. on Jur. 159.
[13. ]Land of strong honor.
[14. ]Literally “Great Greece,” but the reference is to the Greek colonies in southern Italy.
[r. ]Bever. 2.
[15. ]Richard Burn (1709–1785) was an English legal scholar.
[s. ]P. 1.
[t. ]Livy. l. 3. c. 31.
[16. ]Aristides (530–468 bc) was a great Athenian strategist and statesman. He fell from political grace because of his opposition to Themistocles, but later returned to a position of power.
[17. ]Cimon (c. 507–449 bc) was a great Athenian soldier and statesman.
[18. ]Recounted by Pomponius (de Orig Jur. Dig. 1. tit. 2. s. 4.), and Pliny (H. N. xxxiv. 11).
[u. ]Livy. l. 3. c. 34.
[19. ]Titus Livius, or Livy (c. 59 bc–ad 17), wrote a magisterial history of Rome.
[20. ]Letter of wisdom.
[v. ]Burn’s Ecc. Law. Pref. 1.
[w. ]Ante. vol. 1. p. 469. 470.
[x. ]Consult Gibbon’s Rom. Emp. c. 44. vol. 8. p. 19. and the authorities cited in his notes.
[y. ]Just. Ins. l. 1. t. 2. s. 3.
[y. ]Ante. vol. 1. p. 570. [Footnote letter repeated in original.]
[21. ]A famous family of ancient Rome.
[22. ]Servius Sulpicius Rufus (c. 106–43 bc) was a Roman orator, jurist, and statesman.
[z. ]Consult Gib. Rom. Emp. c. 44. vol. 8. p. 26. 27. and the authorities cited.
[23. ]He showed his frightened back to the Britons he had pursued.
[24. ]Tiberius Claudius Drusus Nero Germanicus (10 bc–54) was the Roman emperor (41–54) who subdued Britannia.
[25. ]Gnaeus Julius Agricola (37–93) was a brilliant Roman general and statesman who was the father-in-law of Tacitus. He was governor of Britannia for just a brief time, but proved himself most capable of reconciling the native inhabitants to Roman rule and customs.
[26. ]Imperator Caesar Vespasianus Augustus, referred to in English as Vespasian (9–79), was Roman Emperor from 69 to 79. His two sons, Titus and Domitian, were subsequently emperors (Titus: 79–81 and Domitian: 81–96).
[a. ]1. Guth. Eng. 40.
[b. ]Tac. Agric. c. 21—Millar. 16. 17.
[c. ]Millar. 10.
[27. ]Voltigern (Vortigern) was a warlord of the Britons in the mid-fifth century, and gets the blame for inviting the Anglo-Saxons into Britain to settle.
[d. ]4. Bl. Com. 401.
[e. ]2. Bl. Com. 215.
[f. ]2. Bl. Com. 516. 517. Bever. 482.
[g. ]2. Whitak. 545.
[h. ]2. Whitak. 235. 236.
[i. ]2. Whitak. 111.
[28. ]The laws of Mercia, one of the kingdoms in the Anglo-Saxon heptarchy. Mercia was located in the present-day Midlands region of England.
[j. ]2. Henry. 277. 278. cites Spel. Rel. p. 49.
[29. ]King Edgar the Peaceful (c. 942–975) consolidated the Anglo-Saxon kingdoms. Edgar’s reign was the height of Anglo-Saxon rule of England.
[k. ]1. Whitak. Pref. 7.
[l. ]4. Bl. Com. 411–413.
[m. ]De mor. Germ. c. 12.
[n. ]Spir. Laws. b. 12. c. 4.
[o. ]About the year 1130.
[p. ]1. Whitak. 262. 264.
[30. ]John Whitaker (1735–1808) was a British historian.
[q. ]Ante. vol. 1. p. 636.
[r. ]2. Whitak. 153.
[s. ]Id. 157. 158.
[t. ]2. Ins. 333.
[u. ]1. Ins. 19b.
[v. ]3. Rep. Pref. 18.
[w. ]D. l. 1. t. 3. l. 32. p. 1.
[x. ]1. Reeve. Pref. 1. Roll. Pref. 3–5.
[y. ]c. 7. s. 7.
[31. ]Fleta refers to a legal commentary written in England c. 1290 by an unknown author in Fleet prison. Seldon first published it in 1647.
[32. ]The Roman legal code as set down by Theodosius II (401–450), who was emperor of the East from 408 to 450.
[z. ]Hale. Hist. 44.
[a. ]Hale. Hist. 44. 45.
[33. ]Richard II (1367–1400) was King of England from 1377 to 1399.
[b. ]Hale. Hist. 46. 47.
[c. ]4. Ld. Bac. 5.
[d. ]Rep. 28. Calvin’s Case.
[34. ]Serious law.
[e. ]1. Ins. 97. b.
[f. ]Mihi credite: major haereditas venit, unicuique vestrum, a jure et a legibus, quam ab ils, a quibus bona relicta sunt. Nam, ut perveniat ad me fundus, testamento alicujus fieri potest: ut retineam quod meum factum sit, sine jure civili non potest. Quapropter non minus diligenter ea, quae a majoribus accepists, publica patrimonia juris, quam privatae rei vestrae retinere debetis; non solum quod haec jure civili septa sunt; sed etiam quod patrimonium unius incommodo demittitur; jus amitti non potest sine magno incommodo civitatis. Cic. pro Coec. c. 26.
[g. ]F.N.B. 85. Jenk. 88.
[h. ]1. Bl. Com. 266. Chal. 26. 27.
[i. ]The law is the birthright of every subject; so wherever subjects go, they carry their laws with them. 2. P. Wms. 75.
[k. ]Chal. 14. 15.
[35. ]Possibly William Hussey (1443–1495), an English politician and judge.
[l. ]4. Ld. Bac. 192.
[m. ]3. Ld. Bac. 581.
[n. ]Chal. 102.
[o. ]Chal. 87. 88.
[p. ]Id. 89.
[q. ]Id. 245.
[r. ]Id. 360.
[s. ]Chal. 417.
[t. ]1. Bl. Com. 107.
[u. ]Chal. 15. 28.
[v. ]Ante. vol. 1. p. 191. et seq. [p. 558]
[w. ]Chal. 72.
[x. ]1. Ld. Bac. 725. 726.
[y. ]Chal. 106. 107.
[36. ]William Berkeley (1605–1677) served as governor of Virginia from 1642 to 1652 and from 1660 to 1677.
[z. ]Chal. 121. 122. 133. 134.
[a. ]Chal. 400. 407. 408.
[37. ]Francis Nicholson (1655–1728) was a governor of several colonies, including New York (1689–1690), Virginia (1699–1705), Nova Scotia (1712–1717), and South Carolina (1721–1725).
[b. ]Chal. 442. 443.
[a. ]3. Bl. Com. 330.
[b. ]Eden 164. 165.
[c. ]1. Ins. 283.
[1. ]Proofs ought to be evident; that is, they ought to be plain and easily understood.
[d. ]3. Bl. Com. 367.
[e. ]Bec. c. 14. p. 39.
[f. ]We give the name of evidence to a clear and distinct view of things and of their relations. 1. Burl. 8.
[g. ]Locke on Und. b. 4. c. 1.
[h. ]Id. b. 4. c. 3.
[i. ]Locke on Und. b. 2. c. 19. s. 4.
[k. ]Reid’s Inq. 437. 438.
[l. ]Reid’s Ess. Int. 552.
[2. ]Who distinguishes well, teaches well.
[m. ]Luke XXIV. 39. 40.
[n. ]John XX. 27.
[o. ]Cic. de Orat. 1. 3. c. 50.
[p. ]To this the evidence arising from the similitude of hands may be referred.
[q. ]Consult Gib. Rom. Emp. c. 44. vol. 8. p. 22. and the authorities cited.
[r. ]Gilb. Ev. 4.
[s. ]Eden’s Pen. Law. 169. 170.
[t. ]Parum est jus nosse, says Justinian in his institutes (l. 1. t. 2. s. 12.) si personae, quarum causa constitutum est, ignorentur. It is to little purpose to know the law, if we are ignorant concerning the persons, for whose sake the law was constituted.
[u. ]Ante vol. 1. p. 627.
[v. ]2. Hume’s Ess. 119. 120.
[3. ]It is necessary to the learner to believe.
[4. ]Any expert in his own art is credible therein.
[w. ]Reid. Ess. Int. 308.
[x. ]Reid’s Ess. Int. 310.
[y. ]Reid. Ess. Int. 500, 501.
[z. ]Reid Ess. Act. 237, 239.
[a. ]Reid. Ess. Int. 501, 503.
[b. ]Id. 504, 533. 534.
[c. ]Id. 523, 530, 531.
[d. ]Reid’s Ess. Act. 474.
[e. ]Encyc. Tit. Jurisprudence. vol. part 2. p. 752. (French.)