Skip to main content

Full text of "Political Science Of The State"

See other formats

is to do .whatever his client ought to do, so far as he can form
an opinion. The object is not simply in criminal cases to
prove or disprove guilt, but to prove or disprove the propri-
ety of conviction on the evidence submitted by the prosecut-
ing officer. Whether the criminal, if conscious of guilt,
ought not to confess it in open court as a matter of duty, is
not a jural but a moral question. The jural point is to find
out the truth according, to the evidence. In all cases the ad-
vocate is bound to abstain from offering any evidence which
he knows to be false. But he may, even if he knows from
his client that he is guilty, seek to prove that according to
the evidence he cannot legally be shown to be guilty, just as
the client himself, if arguing his own case, might do accord-
ing to the rules of trial.
What evidence ought to be admitted in courts, and whether
for special reasons certain persons, sustaining a close relation
to an accused person, such as a wife, a legal counsellor, or
a spiritual adviser, ought not to be called on to bear witness
in his case, are matters that do not concern us here. There
is a tendency since Bentham's time to introduce a wider range
of proof than was before allowed, to receive the testimony of
the parties themselves and of others before excluded. We may
thus be approaching a time, when, if a man refuses to testify
in his own case, it will be presumptive proof that the case is
a bad one ; as, when torture of slaves was allowed, to refuse
to subject one's own slave to torture when challenged by an
adversary, or to admit the adversary's slave, was a point that
would be pressed before the judges* by the opposing party.
*This was actually pressed at Athens, and in general the testimony
of slaves there was more valued than that of free men, which shows
the untrustworthiness of a free Greek. Comp. Hudtwalcker von d.
Diaeteten, p. 51, and th,e passages there cited in the notes, Demosth.
c. Onet, i., p. 874, is especially in point. On the other hand, the fact
that slaves who could not hold out against pain would often testify
what they thought would free them from torture soonest, was ^urged
against witnesses of this sort. Arist. Rhet. ad Alex., chap, xvi., 2.