A Treatise on Judicial Evidence

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1

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A TREATISE

ow

V

JUDICIAL EVIDENCE.

^^^^^

«

> . . A» BftMII.tf , ^oWr CAVRtV tlAlX STIIEtl^

• /

i/^

A TREATISE

ON

JUDICIAL EVIDENCE,

EXTRACTED FROM THE MANUSCRIPTS OF

JEREMY BENTHAM, ESQ.

>^

BY

M. D U M O N T,

MEMBER OF THE REPRESENTATIVE AN^ SOVEREIGN COUNCIL OF GENEVA,

TRANSLATED INTO ENGLISH.

LONDON:

PUBLISHED BY MRSftUS. BALDWIN, CRADOCK, AND JOY,

PATERNOSTER-ROW.

1825.

/

ll

PREFACE,

A «

I • '

■ f

There is. no branch of jurisprudence in which EnglAiid
is more honourably disting^uished from other coiptries,
than in her law of evidence. Some of its partxcular.dacH
trines,: indeed, having sprung from nice techmqfditie^ In the
forms of pleading, or from institutions and prejudices which
have long since passed away, may be open to just criticiifm :
but, on the whole, the system is in itself excellent, and,
being fixed and definite, confers upon u/s at. least the
inestimable: advantages of certainty and precisicHi, where
the jnrisprudeace of other countries leaves every thing in
vagueness and confusion. Lc^t any person loqk to the con-
duct of /a criminal trial in France, and he will l^am to^i^*
predate rightly the value of a strict siystem of evidence
Uke ojurs.

In this most important branch of law, the influence of
which extends to every species c^ case, it is not; enough tp
have.a bare knowledge of the positive rules which haya
beai laid down. If we would comprehend fully the spirit
and bearing of those rules; if we wo^^d>acquire:acQP^r
plete acquaintance with the nature and application o£ thei
system, as it actually exists; and still more, if we would
qualify ourselves for judging where innovatipn woul4 be
injurious or dangerous, and where altef^tipns m^ghthje

VI PREFACE.

made with advantage ; — ^we must extend our view beyond
the rules themselves, looking upwards to those principles
from which they should en^anate, and forward to those ends
which they should be framed so as to accomplish.

This Mr. Bentham has done in the work which his friend
M. Dumont gave to the world in French, and of which we
^OW^ ptekent an English tran$lation. Our language has a j ust
elaiM to the possession of a treatise written by ah English
law^^ir and jlhilosbph^r oh a subject so peculiarly English* .

Id this tVorifc, Mr. Bentham has explained every part of

the theory of the la\^ of evidence. The nature and species

of judicial proofe — 'the principles and feelings connected

with them — the relation of this to the other branches of

Iftw-^the circtittistances bh which the truth and the influ-

eii'ee of evidence de{>end^^the rrleans of protection against

fiiisehood— the nftode in which evidence may beafiected by

variation^ in the tnanner of bringing it before the court'^-*

tte pebtiliairitied of 6ehain species of evidence«~the different

degretes of 'judicial pit)ofs, and the use that ought to be

made of them in respect of that difference — the grounds on

^hich some kihds of proof may be excluded— the rules to

be att^ttd'ed V6 in discovering, producing, and preserving

jUdici&l prdbfe >,-^^U these subjects, as well as the coUatetal

i6|iibs'cobnecteA with them> ate discussed by Mr. Bentham :

afid in tireatfn^ of them he is not satisfied with stating and

illusi^atihg. general prihdples, but he enters into the m<>st

f » t » •

minute analysts, Which brings distinctly before the mind of

th^ is^iAer eve^ btiahch of the subject, and suggests to him

tfteti^t ti^rf ViHM^ of l^ich it is fittace|»tibie.

PREFACE.

vU

Some will perhaps thinks that Mr. Bentham occasionally
assumes a principle too absolutely, which is true only in a
restricted sense ; that at other times he argues from one
acknowledged truth exclusively, without adverting to
other truths which modify it ; and that he now and then
hastens to conclusions, the logical connexion oT which,
with his premises, might be disputed. But even if any of
his doctrines should be deemed questionable, his work can
scarcely lead others into error : for every part of the subject
is kept so separate ^rom the rest, and all is pres'ented to
the mind so clearly and in such regular analytical order,
that the reader must be sluggish and inattentive indeed,
who is not forced to distinguish the precise grounds upon
which each inference '^rests, and who is not, of course,
enabled to determine, how much weight ought to belong to
the author s conclusions.

n

f

TABLE OF CONTENTS,

BOOK I.

GENERAL IDEAS ON EVIDENCK

CHAP. 1. Of the relations between law and the fonns of procedure,

and between the forms of procedure and evidence

CHAP. 2. Of the ends or objects of procedure . .

CHAP. 3, Of the natural model of legal procedure t,.

CHAP. 4. Of proof in general .. ••

CHAP. 5, Of facts considered as having legal effect • •

CHAP. 6. Of the different kinds of evidence . .

• •

• •

t •

CHAP. 7. Of the grounds of positive persuasion, or the reasons of

belief

• •

• •

CHAP. 8. Of the grounds of negative persuasion, or the reasons of

disbelief . . • •

CUAP» 9. Psychological causes of truth or falsehood in testimony

Examination of the intellectual faculties, and moral
dispositions in relation to testimony

Sec. 1« Moral dispositions

• •

es. L Perception

• «

it*

• •

PAGE
1

2
3
8
9
12

16
17

20
21
22
23
24
26
27

Sec. 2. The intellectual faculti

Sec. 3. Judgment

X Sec. 4. Memory

Sec. 5. Expression

Sec. 6. Imagination

CHAP. 10. Of t^e natural sanction. Its operation in favour of truth 29

CHAP. 11. The moral ot- popular sanction, or honour. Its operation

for and against veracity . . . . . . . . . . 31

CHAP. 12. The religious sanction .. .. ..34

CHAP. 13. The legal sanction; its operations for and against the

truth of testibiony ' .. / ..36

CHAP. 14. What constitutes the average strength of testiniony . • • . 38

CHAP. 15. Circumstances which augment the proving power . . . . ^38

a •

CHAP. 16. Circumstances which diminish the proving power of testi-
mony or invalidating circumstances • • » • . . 39

TABLE OF CONTENTS.

PAGE

CHAV* 17. Mode of expressing different degrees of belief .. ..40

CHAP. 18. Are there cases in which a Judge may pronounce on a

question of fact, according lo liis own knowledge,
without other evidence ? •• .. .. .. ..46

BOOK II.
OF THE SECURITIES AND GUARANTEES OF TESTIMONY.

CHAP. 1. Modes of transgression in testimony •• .. ..49

CHAP. 2. Of the securities or guarantees, which render testimony

worthy of credit . . . . . . .... • . 51

CHAP. 3. The internal securities. 1. Responsive testimony. 2. Par-
ticular. 3. Distinct. 'A, 5. Given with reflection and
unpremeditated. 6, 7. Suggested and not suggested . . 53

QHAP. 4. Of the punishment of false testimony .. ., .. .58

CHAP. 5. Of the punishment applicable to falsehood arising from

rashness . , , , . . . . ... 60

to

CHAF. 6. Reasons why the words ^ false testimony' should be sub-
stituted for perjury . . . « , . . . 61

CHAP. 7. Of shame .. .. .• ., ..62

. . • • • ■

CHAP, 8. Of the examination .. .. ,. •. .,63

Sec.. 1. Exceptions .. .. ..64

Sec. 2. Who ought to be subject to examination . . . . 65

CHAP. 9. Record of the depositions <.« .. •• ..66

CHAP. 10. Of publicity .. .. .. .. ..67

CHAP. 11. Exceptions from publicity of procedure «• ., ..79

CHAP. 12. Of the oath considered as a security • • . , , . 81

1 trr

BOOK III.

«

OF THE TAKING OF TESTIMONY.

chap: 1. Ofmtnesses .. .. .... 88

CHAF 2. Of the appearance of the parties at the .commenceBien^ of

• the cause • • • • • • . . . . • • . . 89

CHAP* 3. Of the advocates . . . . • • . . , . 91

cHAr* 4. Ofthe different modes of examihatipQ ,, «• ,.92

TA8LB 09 €OKTSKT&< X|

»AQ£

c^AP. 5. Of the presence of the^udge at the examiAation. 1. Cafti

in which the separation is uoavoidable. 2. Modifications
of which the system of separation is susceptible. 3, Causes
of this separation . • . . . , . « . . 94

CHAP. 6. Should a witness be allowed to consult notes . . • • 98

CHAP. 7. Of leading questions. 1. First ground of admission; the

facilitating dispatch. 2. Second ground of admission \ to
assist the memory . . , . • • . . %^ 100

CHAP. 8. What persons should have the right of examining . • . . 101

CHAP. 9. Of examination by a friendly or hostile party. Of the affections

Supposed to exist between the examiner and the witness 103

chAf. 10. Comparison of the different modes of examination. 1. Com-
parison of the oral with the epistolary mode. 2. Com«
parison of other modes. ^. . .. .. ..106

chap. 11. May testimony obtained in the epistolary mode, be made the

ground of decision in certain cases, in which the oral
mode is impracticable •• .. .. ..108

chap. 12. Of epistolary examination; how it may be most advan-
tageously applied . . • • . . . . . . 1 09

CHAP. 13. Of the written record of the depositions •• . . . . Ill

CHAP. 14. Of secret confinement .. •• •• .» .» 112

BOOK IV.

PRE-CONSTITUTED EVIDENCE.

CHAP. I. The nature^ origin, and use, of pre-constituted evidence . . 115

GHUP. 2. What law ought to do in relation to pre-constituted evidence 117

CHAP. 3. ^Application of this evidence to facts which have legal effects,

to contracts and testamentary deeds . . ~ . . . . 119

CHAP. 4. Of the pre-constituted evidence, furnished by public offices or

departments . . . . . . . . . . 124

CHAP. 5. Of written reports of cases (prooes verfoaux) . . . . 127

CHAP.. 6. Of the retraction of copies. 1. Its a]^Hcatii}n. 2. Means of

ensuring registration. 3. Total or partial registration . . 129

CHAP* 7. Means of distinguishing an original from a non-original

writing ; an original from a copy • • • • . , 131

CHAP. 8^ Means of establishing the genuineness of a writing. 1, Direct

evidence to establish the genuineness of a deed. 2. Cir-
cumstantial evidence .. .. •• ..133

CHAP. 9. Means of establishing the falsehood of a writii^. 1. Direct

evidence against the genuineness of a deed. 2. CirCum-
sUmtial evidence «. •• .* .. •• 1S8

xU TABLE OF CONTEl^TS.

BOOK V.

CIRCUMSTANTIAL EVIDENCE.

PAGE

CHAP. 1. Definitions, and preliminary ideas .. •. •. 143

CHAP, 2. Real evidence. Table of its principal modifications .. 146

CHAP. 3. Invalidating facts applicable to all real evidence ., ,. 147

CHAP. 4. Inculpatory possession of real e\ddence .. •• ., 148

CHAP. 5. Inculpatory possession of written evidence .. ,.150

CHAP. 6. Obscurity of real e^ddence. Examination necessary to clear

it up .. ^ .. .. .• .. 152

CHAP. 7. Inculpatory circumstances anterior to the crime. Prepara-
tions. Attempts. Declarations of intentions. Threats. 153

Sec. 1. Invalidating circumstances applicable to them . . 153

Sec. 2. Declarations of intention ; invalidating facts regarding

such declarations . . . . . . . . 1 55

Sec. 3. Threats; invalidating facts in regard to threfats . . 155

CHAP. 6. Of extra-judicial acknowledgments . . , . . . 156

CHAP. 9. Of testimony given by a man ^against himself, obtained
. judicially. Intimate connexion between refusal to answer,
a false answer, an evasive answer^ and acknowledg-
ment . . . . • . . • . . 161

CHAP. 10. Of fear indicated by the passive state . . . . . . 165

CHAP. 11. Indications drawn from active behaviour ; clandestineness ;

different modifications . . . . . . • • 168

CHAP. 12. Other indications drawn from active behaviour; fabrication

of evidence or suppression of evidence by subornation, or
the intercepting of testimony .. .. ..171

CHAP. 13. Other indications drawn from active behaviour .. ..172

CHAP. 14. Motives, means, dispositions, reputation, rank or condition —

consequences to be drawn from them . . • • • . 174

Seel. Motives .. .. •. ., .. 174

Sec. 2, Means, oj^rtunity . ,. .. ,. ..176

Sec. 3. Dispositions .. .. .. .. .. .. 176

. . Sec. 4. Reputatitm . * . . « . . . , . 177

Sec. 5. Rank, condition . . . . . . . . ' 177

CHAP. 15. Considerations which oppose the five preceding presumptions 178

CHAP. 16. Rules and general maxims in circumstantial evidence • • 180

Sec. 1. Rules regarding its excluMon and admission . . 180

Sec. 2. Observations on its proving power . . . . • . 181

Sec. 3. Practical maxims .. •• .. •• 182

CHAP. 17. Comparison of direct and circumstantial evidence in regard

of their proving power ^183

•«t

TABLE or CONTSITTS. xtll

BOOK VI.

INFERIOR EVIDENCE ADMITTED IN THE ABSENCE OF THE

MORE PERFECT KINDS.

9

- ^ PAGE

CHAP* 1. Definitions and diTisions .. •• •• .. 190

Seel. Inferior extrajudicial evidence •• .. ^ .. IdQ

Sec. 2. Derived or transmitted evidence • • , . r. . 192

Sec. 3. Qualities common to all the different kinds of inferior

evidence • • . . . . • . . . 193

citAF.2. Of ante-judicial presumptions, between plaintiff and de-
fendant, between prosecutor and accused • • . « 194

Sec. 1. Between plaintiff and defendant, the presumption ought
to be in favour of the former^ to the prejudice of the
latter .. .. •• •• .• ii7~r

Sec. 2. In criminal matters, and, above all, in serious offences,
the presumption ought to be in favour of innocence ;
or, at least, it is necessary to proceed as if this pre-
sumption were established . . . . • • 196

CHAP. 3. Of casual written evidence. Rules to be followed in regard to

its admission . . . . . . . . • . 198

CHAP. 4. Hearsay evidence of the first degree • • . . . . 202

CHAP. 5. Hearsay transmitted through ^veral intermediate persons . . 205

Sec. 1 . Admissibility of hearsay passing through an indefinitive

number of intermediate persons . . . . 207

Sec. 2. The application of mathematics to testimony . . 209

CHAP. 6. Written evidence of a supposed oral testimony , . . . 210

CHAP. 7. Supposed written testimony transmitted orally •• .. 212

CHAP. 8, Of copies or transcripts ,, ., ,. .. 213

Seel. Different modifications •• •• ..213

Sec. 2. Reasons for distrusting copies . / . • . • 214

Sec. 3. Modes of transcribing .. •. ..214

Sec. 4. Copies of copies .» .. •• •• 215

CHAP. 9. Comparison of evidence by copy, with evidence by hearsay 216

CHAP. 10. In what cases, and on what conditions, ought a copy to be

admitted .. .. .. .. .. 218

CHAP. 11. Supposed real evidence, transmitted by oral testimony, or by

writing ., .. .. .. .. 222

CHAP. 12. Securities against inferior evidence . • . . • • 225

JIV TABLE Ot COKTftirTS.

BOOK VII.
OF THE EXCLUSION OF EVIDENCE.

PAGE

CHAP. 1. The vatious sources of exclusion .. .. •• i2^o

CHAP. 2. The various modes of exclusion .. .. .. 227

CHAP. 3. Evils of exclusion .. .. •• .. .. 227

CHAP, 4. The principle of exclusion •• >. •• •• 220

CHAP. 5. Causes which render exclusion always proper .. ..iSdO

CHAP. 6. Cases in which exclusion may be proper, for the purpose of

avoiding delay .» .. .. ,. .. 231

CHAP. 7. Cases in which exclusion may be proper, for the purpose of

avoidiqg vexations . . . . . • . • 2d2

chap; 8. Cases in which exclusion is proper, on occasion of vexation

arising from confession . . . . • • 234

ciiaK 9. Disclosure by relijgious confession .. .. •• 237

CHAP. 10. Exclusion of testimony on the ground of pn>pioquity . . 238

CHAP. 11. Examination of another case of vexation : fielf-inculpation 240

c^AP. 12. Testimony that may be required. — Communications made by

clients to their legal advisers, their counsel, or attorney . . 246

ci{AP. 13. Intellectual infirmity, interest, and dishonesty, considered as

reasons of exclusion . . . . . . . . 247

Sec. 1 . Intellectual infirmity . • . . . . . . 248

Sec. 2. Exclusion on account of interest in the cause . . 248

Sec. 3. Exeluaoii on account of dishonesty . . . . 250

Sec. 4. Exclusion on account of religious opinions . . . . 251

CHAP. 14. Exclusion of parol evidence, in relation to contracts not

written . . . . . • . . . . 2S2

CHAP. 15. Securities against suspicious testimony or inferior evidence 255

CHAP. 16. The onus probandi : who ought to bear it , . , . 257

BOOK VIII.

OF THE IMPROBABLE AND rMPOSSTBLT!.

CHAP. 1. Preliminary notions •• .. .. .. 259

CHAP. 2. The impossible cannot be defined : credibility i« not^absqlfite,

but relative to the state of our knowledge *^, . . 260

CHAP. 3. There are no facts aGknowl«4s^d 9J3 ab^utely wredil^le :

some apparent exceptions nol such in reality \ . . . 265

CHAP. 4. Consequences of the preceding .. •• .. 267

CHAP. 5. Distinction between total impossibility, and impossibility in

degree . . • • . . . . , , 268

TABLE OF CONTENTS. Kf

PAGE

CHAP. 6. Facts which are deviations from the acknowledged laws of

nature (faits deviatifs) . . . . . . , , 269

CttAP. 7. Examples of deviatory feicts (feits deviatife) i, e., facts

which are deviations from the regular course of nature 273

CHAP. 8. The nature of the argument drawn from the impossible and

improbable . . . , ; . , , 276

. < ♦ • •

CHAP. 9. Examination of the opinion of certain philosophers, that the

improbability of a Fact is no sufficient reason for rejecting
it in opposition to affirmative testimony . . . . 278

CHAP. 10. Judicial considerations regarding facts, contrary to the usual

course of nature . . . . . . . . . . 283

CH AP. 1 1 . Of the motives which influence the \>e]xet in facts contrary to

the law of nature . , . . . . . , , , 289

BOOK IX. •

OF THE DISCOVERY, PRODUCTION, AND PRESERVATION OF

EVIDENCE.

CHAP. 1. General view .. .. .. ,, ,. 297

CHAP. 2. Of the means to secure the production of evidence . . 300

Sec. 1. Tribunals with appropriate powers and obligations ,. 300

Sec. 2. Tribunals occasionally ambulatory . . . . 301

CHAP. 3. Physical means applicable to the production of evidence . . 303

Sec. 1 . Verbal discussions are necessary on the subject 303

Sec. 2. Source of this diversity of operations . . , , 303

Sec. S. Operations necessary to the production of evidence . , 304

CHAP. 4. The application of rewards and punishments to the procuring

of evidence , . . . . . , . . . 310

Sec. 1. Simple requisitions . . . . . . . . 310

l^ec. 2. Application of rewards .. .. .. ..312

Sec. 3. Use of coercion . . . . . . , . 314

CHAP. 5. Of investigatory procedure, and courts of equity .. .. 314

CHAP. 6. Power of direct and retrograde investigation in a chain of

hearsays .. .. .. .. , .. 319

CHAP. 7» Sources of evidence. — Analytical sketch . . . , 321

CHAP. 8. Means of securing the appearance of a witness . . , , 324

CHAP. 9. Of ordinary securities .. .. .. .. 328

CHAP. 10. Extraordinary securities . . . . . . • • 330

Seel. Pledges and recognizances .. .. •• 330

Sec. 2. Recognizances . . . . . . • • 330

Sec. 3. Personal arrest . . . . . . . . • • 333

Sec. 4. The choice of a'domicile for judicial correspondence 331

XVI

TABLE OF CONTENTS.

Sec. 5. Protections when the witness is in a foreign country,
and has removed previously to Leing summoned . ",

Sec. 6. Death-bed examination . . . •

• •

CHAP. 1 1 . The production of real evidence

CHAP. 12. Rules for the inspection of written e^ddence

CHAP. 13. Of writings .^

CHAP. 14. Course to be followed with refractory witnesses

CHAP. 15. Measures to be taken to prevent the loss of evidence

CH A p. . 1 6. Of anonymous information • • . . /<

PAGE

331
332

333

337.

339

341

346

350

APPENDIX.
The law of England in regard to investigatory procedure

.. 358

^

A TREATISE

. :t

OS

JUDICIAL EVIDENCE.

fir ■ - aBSSsssssKBsam

BOOK I.

GENERAL IDEAS ON EVIDENCE.

CHAPTER. I.

• 4

OF THE BKLATION8 BETWEBN LAW AND THB FOBMS Of VBOCBDiTBBy AKD
BETWBBN THE FOBX8 OF FBOCBDUBE AND BVIDXNCB. <

1 HE object of laws, when they are what, they ought to be, is to
produce, in the highest possible degree, the happiness of the greatest
possible number; but, whether they be good or bad, they can
operate only by creating rights and obligations :«*-rights, which
comprehend all that is good and agreeable, every thing that belongs
to enjoyment and security ; obligations, which comprehend all that
is painful and burdensome, every thing that produces constraint
and privation, but in which the bad is muCh more than compensated
by the resulting good. This is the character, at least, of good lawft.
Bad laws are those, which create obligations, that are either super-
fluous, or more burdensome than use^I.

Tiiese laws would be inefficient,, if the legislature did not, at the
same time, establish other, laws, the object of which is to execute
the former. Such are the laws concerning the forms of procedure.

To mark the difference between them, we shall call the former
the law subgtantive, and the latter the law acljective.*

The final act of the judge is a decision, whatever name it. mflf
bear ; ^idgment, sentence, decree, precept, or mandate* . ^

When an individual addresses himself to a judge, it is to demand
a decision } and that decision must relate either to a matter of &ct or to

^ 9e€ the *[ TreitUo m I^^gislafion/' iol iii, p^ 188; seoond' editton; '

B

I

3 A TREATISE ON

a point of law. In matter of fact the question is, whether the judge
shall hold the fact stated to hini to be true or not ; and in that case,
the decision can have no other foundation than evidence. Where
it is a point of law, the question is, what is the law on such and
such a subject, what right does it confer, or what obligation
does it create, in certain supposed circumstances. The plaintiff
requests the performance of a service of a positive nature, which
consists in being j^t in the enjovment of a righi; } ancl, when his
demand is opposed, the defendant requests the performance of a
service pf a negative nature, which consists in not being sub-
jected to the obligation M'hich his adversary wishes to impose

upon him. •

This applies to penal law, as w^ll as to what is commonly termed
civil law. For, what is the point at issue in penal taw? To decide
whether a certain fact, called a crime, be proved or not ; and con-
sequently whether the accused should be subjected to the obligation
df suffering the legal punishmen|;^of that fact.

In all these questions, the duty of the judge is, to collect all the
proofs op both sides, in the best form pos&iMe ; to compare them $
and to decide according to their proving power.

Thus, the art of procedure is in reality nothing but the art of
fedmtnl«*erinij evidence.

CHAPTER II.

OF THE ENDS> OR OBJECTS^ OF PROCEDURE.

' ' Evert rule of procedure should have reference to one of four
^rids : I. Rectitude of decision ; n. Celerity; iii. Cheapness 5 iv. Free-
dom from unnecessary impediments.

Rectitude of decision is the direct object ; the three others are
collateral objects. The point is, to avoid the accessary inconveni-
«iices, khown under the names of delays, vexations, and expense ;
it he\ng understood, that by these are meant delays, vexations, and
texpense whick are tinnecessary, or in which the bad preponderates j
that is, in which, nfthr balancing their effects, the bad is found to
feutweigh the good.

By the rectitude of decisions, I understand their conformity with
%e law. It is by the law, that the citizens regulate their hopes and
feats. 'The law forms public expectation. Let the decision of the
Jttdgc be conformable to this expectation, and the public is sslUs-
fied;:JifittbiStfixp€Gtati<qib64isappoii^ed, and yMtbaveimmedSiately

the eommeneemeiil; of ii^secuiity^ wd> in fstafis of ittflbrlWMt w

alarm proportionally greater. >

It is easy to form a eonception of justice in Ae abstmet^ etich aa

it would appear to the eyes of an infiOlible judge, well acquainted

with^ll the circumstances of the case; but to distfnguidi tbis ab»»

strtot Justice from legal justice, wouH be a vain and dangemua prtf..

tension, which would givie the judge up to the phanloma of bin q^m

imagiQ^tian, and make blm lose sight of his only tnie guidti, the

law. Thalaw adjective, that is the law of procedure, isigoodf milp

in so far as it lends its aid to the execution of the law substantive. .

What is a false rule in procedure } A xute which tends to maka^

. the decision of the judge contradict the law ; wbich leads him to givtf

• a sentence in opposition to his firm conviction, to sacrifice subritaaoQ.

' to fi>rm, to judge, as a lawyer, altogether differently fi?om what he

' would do as a private pennon. In such cases tibe artists oimdemn the

9rt : it is they who accuse themselves } for, when th^ become jttdgM^

they do Bot ceaise to be men. The manner of acting may be suigeclH^

to CQmjpulsion, the manner of thinking cannot; conduct balonga to

profession; feeling, to nature. If the judge, following the rales of

procedure, acquit a culprit whom he belieyes^ilty in terms of the

law ; if he deny a citizen a right, which, he is convinced, the law

intends to give him ; in sluMrt, if the affaiR end differently from what

it would do according to the integrity of aii unfettered judge; we

may be sure, that the rules are bad.

. In all these cases, the law adjective 4akes from the citizens the
means of. obtaining what the law substantive promises ito thenu
The two tables of the law are in opposition to each ptlier.

Let it not be inferred from these observations, that all fori^]^
should be abolislied, and no rule admitted, except the dispretipi^
of judges. The forms ^nd rules to be avoided are tbose, which lajf
a judge under tlie necessity of giving a judgment contrary to hi^
conviction, and which render procedure the enemy of the la^
substantive.* We shall afterwards see, what are the true safe«,
guards, that should be raised round evidence and judgments.
In regard to what I have termed collateral objects, f^eler|tyy

"f

*

* *' Just the reverse of the maxim which says, that form mnst get the better
of substance, would be a noble one for the courts, and ail asefol 6nie for iho
pnblic, full of justice gnd equity/' This notion must have apppared ridlcqloas
enough to the lawyers of the time of Louis XlV. ; but toj, Bruy^re did not an^N
derstand the matter — a bel esprit, a man of wit, wearing n£it|ier tl|e gpwa of fm
advocate nor Uiat of a magistrate.

of process must that have been/ wlucn Mont^$qiuea <U)V^4~98Lai^tll¥ltll94.1

b2

4 A TABATI8B ON ^'

oheajpnesfl,* fi«edom itom unhecessaiy impediments^ they only re-
quire to be mentioned. But to adapt tlie form of procedure and esta-
blisli a practice conformabla to these ends^ is a task which requires
extraordinary ability and firmness in the legislator; for in this'
career, more than in any other, he has to struggle against seduc-
tive interests* There is no satire^ there is no exaggeration in say-
ing, that the form of procedure has been directed to ends diame-
trically opposite to what should have been its aim ; and, as it were,
with a fixed design- of multiplying expenses, delays, and vexations,
by introducing every thing which could render it unintelligible.
These defects have not always been the result of a system adopted
by the tribunals ; they have been the consequence of those interests
just hinted at, those reductive interests, which are under no
restraint, because public opinion is mute or impotent on abuses
of which, from ignorance, it cannot judge, or is indifferent about
the fate of the litigants, scattered individuals who form no class,
who are daily changing, whose complaints are odious, and who
cannot make the world understand even their most legitimate
grievances. .

CHAPTER in.

09 THE NATUBAL MODEL OF LEGAL PROCiSDVRB.

Much has been said of the pretended necessity of subjecting
political constitutions, and above all, popular constitutions, to some
undefined operation or another, which is to have the effect of bring-
ing thetn back to their original principles; and people have grown
warm with this idea, as if it contained the marvellous secret of
making states renew their growth. This maxim has no foundation
except the vulgar prejudice in favour of older times, a prejudice
which owes all its strength to a false manner of contemplating the
age of the world, by taking its infancy for its maturity;* as if wis-
dom ought to be not directly, but inversely, as experience. What
would be the result of this boasted operation ? Just to lead us
badk from time to time into primitive barbarity. Assuredly it was

* This is an idea to which Lord Bacon is fond of rccnrring, and which he
often expresses with his characteristic -vij^oar of language. '* Antiquity/' says
ke, ^ deserveth that rererence, that men should ma^e a stand thereupon and dis-
cover what is the best way ; but when the discovery is well taken, then to make
progression. And to speak truly, Antiguitas taculi^ jwtntns ntuttdi. These times
are the antient times^when Uie. world is antient, and not those which we account,
crdine ntrogrmdo, by a computaiion backward from ouxae\ye9.''*^Bacon*i Advance-'
miU of f(Mrwg, Book I>-^ Transhtir.

JUPICIAL EVIDENCE. ^

not by periodical restorations^ but by successive ameliorataoiis^ that
Great Britain reached the degree of liberty and prosperity which
she enjoys. This has been demonstrated by the wisest and most
impartial of her historians — * to the utter dismay of those party men,
who would rather found liberty on old titles^ than owe it to the pror
gress of experience and reason.

But there is one branch of legidation^ in which the primitive ages
appear to me to have had the advantage of us ; that branch is legal
.procedure. Without going back to Greece and ancient Rome, even
in England) where it is now so complicated^ it was at first simple.
.We have traces of it in history ; we can follow the progress o( thin
pernicious art^ we can go back to the origin of those oppressive
and unreasonable rules — of that variety of tribunals, each with its
own system^ which multiplies so strangely questions of competenc^-^
of those puerile fictions which are incessantly mixing up the work
of falsehood with the investigation of trutli. The history of this part
of jurisprudence is contrary to that of the other sciences. In the
sciences, we always go on simplifying the processes of our prede-
cessors; in jurisprudence we always go on rendering them more
complicated. .The arts are perfected by producing greater effects
with more easy means ; jurisprudence is deteriorated by multiply-
ing means and diminishing effects.

It is true, that. the simplicity of the primitive form of procedure
was not a merit founded on reason. In this point we must not
applaud antiquity either as antiquarians or sages ; it was a negative
wisdom, a result of ignorance. The desire to evade the laws pro-
duced the subtleties of chicane; the desire to disappoint the arti-
ficers of fraud, produced the necessity of having recourse to parti-
cular expedients. In proportion as the enemy invented hew modes
of attack, the engineers of the law invented on their side new modes
of defence. But they allowed themselves to be seduced by their
own skill, and have multiplied rules on a subject which requires
very few. The ancient model was lost ; its simplicity, which was
its finest feature, made it be despised. We must return to it; but
to prevent us from again departing from it, it is necessary to know
the rational grounds on which it is justified.

It is not necessary that we Should consult history to learn the
mode of procedure in early times; we do not need to lose ourselves
in erudite researches : the naUiral model of a good form of proce-
dure is at our hand, it is within the reach of every body, it is un*
changeable. A kind father in the midst of his family, regulating

1

^••.i">*ii«W*»»W«»WH»-""»^«*'*«WWW«»iW«i^^^»'**''— •" — «i«W^|^«»«l^«P

Hume,

i 4 tnsATiiB on

lh4Sr Hiffisi^ced^ id the ima^ bf a g'ood jiid^e ; the dbtriledtic tribu^
nal is the thie t]r{>e of a political tribunal; Families existed before
«tatfes$ they exist even in states. They have 'a government^ law^
to bib executed^ and disputes to be decided. They have a method
tif trtiving at the knowledge of fitcts. This method is not to be
found in books; common sense, the earliest of legislators, taught it
io the first jfkther of a fainily, and teaches it still to all his successors,
^et th^ revelation of this system of procedure, always followed and
felt^yS misunderstood, is in truth a discovery in legislation. The
tbuhtrymah knows it by instinct ; the lawyer loses sight of it by
Erudition. I am like a lapidary, who would search for a diamond in
a pebble which hais been trodden under foot for ages. The code,
^hich t announce, combines the merit of antiquity with that of
iibvelty j it is an universal practice^ and yet an unexampled ittnoi-

t^ation.

But can the lawyer be ignorant of what every body else knows ?
Assuredly not ; but in him we must distinguish between two beings^
strangers to each other — the natural man and the artificial man.
Vht natural man Inay be the friend of truth ; the artificial man is
its ienemy. The natural man may be able to reason with cbrrect^
iiess atid simplicity ; thb artificial man eaii reason Only by the htVp
of subtleties, suppositions, and fictions. The natural man can ^o t6
fcfe object by the straight ;-oad; the artificial man cannot get to it
iiut by endless circuits. If he were going to ask you. What o'clock
is it ? What sort of weather is it ? he would begin by ptitting two
ht three persons between you and himself, by inventing some astro^
logical fiction, and spending weeks or months in preliminary Writ*
ings and questions.^

; , V

II ■ I ■ ■ ■! .11 -^ ^

* I five the ideas of my adthor, lesvhig tbe task of pronouncing on their
Cbrreclo^as to tliose wbo are better acquainted than I am with the different
system^ ofprocedure, and particularly that which he has in view, the pro^
bedure of fnglahd, especially that of the courts of equity. I have suppressed a
freat deill of this polemical matter ; bat I shall here give an example of the
technical rules which he loses no opportunity of combating. ^* In certain cases/'
ba^s he, *' jurisprudence may be denned, the art of being methodically Ignorant
«f wfakt every body knows. , I was present in the King's Bench, in Westminster
Hall, when the Celebrated Wilkes, after having withdrawn himself for some
time from the sentence which awaited him, presented himself unexpectedly U
MCieiTO it; It is impossible to iniagine, how much his unexpected appearance

furRrised and confounded the judge. Form required that he should be sent up
ly Sie ^eriff, instead of coming of his own necord; now, as this form was
awattting, tbo embavtassment, in which Justiee found henelf, was truly comic,
^t last he was told, * Sir, I am willing to believe, for iny own part, that yoii are
there, because yoii say you are, and because I see yon ; but there is no ex*
Umple of liie court having believed it to be its dtzty> in such a matter, to tras(
to itsosmi eyes : therefore, it has nothing to say to you.' Who held this lan-
guage ? iDne of the Hmst gentoses of BngHmd. Bet ef wiiat «se is gemis^
when tied down by rules winch make a maa have eyes without seeing, and ear«
without hearing I '^^Dummt.

JUttlC^AL AVII>BIICB. 7

But itk the bosom of his fkmily^ the lawyer, by the force of good
sense, returns to this simple qiethod from which he is led astray at
the bar by the folly of learning. No one is so deeply tainted With
his judicial practice, as to apply its rules to his domestic aflillrs. He
takes up and lays aside his maxims with his gown. If you would
represent madness — ^but a madness where all is melancholy and
unintelligible — ^you have only to imagine an English barrister car-
rying into ordinary life the fictions^ the rules, and the logic of
the bar.

Let Us now see, what are the most prominent ^Batures in this do-
mestSc or natural form of pix>cedure. The &ther of a family, whet
any diqmte arises among those who are dependant €m him, or when
he finds it necessary to pronounce on some contraveniioil of bis
orders, calld the interested parties before him ; be allows them to
gire evidence In tfa^r own favoiir \ he insists on .an answer to eiwry
question, eved though it should be to their disadvantage ; atui lie
considers their silence as a confession, unless he can see motiVqs
which might induce even the innocent, to remain silent. He makes
bis examination on the spot $ the answer to each question is given
immediately, without its being known what is to follow. He does
not refuse any witness ; he bears every one^ reserving to himself to
apprei^iate the worth of the testimony of each; and he decides,
not according to the number, but the value of the witnesB^g; He
permits each of them to give his narrative at once, in hisoWil waj^,
and with all the circumstances which may be necessary td ^ite
conneidon to the whole. If any of them give contradictory evi-
dence, he confronts them immediately; he makes them measure their
strength with each other ; and truth is the result of the conflict.
He seeks to come promptly to a conclusion, that he may not nou**
rish the seeds of dissension in his fomily ; and because receht Tactn
are most dasily known and proved, he grants iio delay except for
special reasons.

This is a general outline of the domestic or natural form of pro^
cedure; those who are acquainted with the technical or legifl
form of procedure, know how far it agrees with the foiincfr, ot
rather how far it diflfers from it. The fornis, which have so Idn^
reigned in the greatest part of Europe, present a direct contrast to
it in all respects. We must beware, however, of abusing the pafal*
lei, so as to make the domestic, the exclusive type of the legal fen&
of procedure. There are essential differences. From the very cir]-
cumstance that a state is larger than a family, arise other diffictil-
ties in establishing facts, procuribg witnesses^ and securing the per-
sons of th^ accused, ^ther a judge is not a fetherj hehasi

A TBBATISB ON

public responsibility: his judgments must be satisfactory (o .others
as well as to himself. Judicial tribunals^ therefore^ must be sur-
.rounded by other securities than are necessary in the do^iestic
.tribunah

CHAPTER IV.

• OP PROOP IN GENERAL. • - ' . '

/. •; ' • .'J

What is proof? In the most extended signification which can
be given to this word^ it means a fact supposed to be true^ and then
considered as a reason for believing in the existence or iion-exist*
ence of some other fact*

Thus, every proof comprehends at least two distinct fiicts. The
one may be called .the principal fact, the existence or non-existence
of which is to foe proved : the other the^proving fact, wi)lch is em-
ployed to prove the verity or falsehood of the principal fact.

• , ^ Therefore, every decision^ founded on proof, proceeds by way of
infer^ice :. Such and^mch a fact being given, I iftfer tlie existence of
another fact.

, it follows from the. definition, that questions of evidence have a
,much wider application than we. are usually aware of. They occur
in circumstances of life, where one would least suspect that he was
following a logical, and, so to speak, a judicial process ; the manage-
ment of domestic affairs depends entirely on evidence ; our most
frivolous amusements imply the most subtle applications of its
rules.

Look at the hunter. This slight mark on the grass, ^these bent
brambles, these broken branches, these traces on the ground, these
subtile bodies that affect the sense of smell — is all this a sufficient

. 'proof that his prey has passed this way ? He exercises tlie art of
judging without knowing its principles; he reasons by instinct,
precisely as M. Jourdain made prose without knowing it. Why do
I speak of a savage ! Animals themselves draw cqpclusions from

, one fact to another. They judge according to rules ; Montesquieu
would have said, according to natural laws.

The physical sciences have a treatise on the jirt of Observing* It
is a treatise on evidence as applied to a particular end ; it is the art

, of drawing from one fact just conclusions as to another : the object is,

> to know whether all the facts observed correspond with each other.

1 In administration and legislation, there is clearly no way of pro-
ceeding, except by inference, that is, by evidence. The art of
collecting facts, of establishing 'them^ of plaping them in such an

juDicmL EvmBKcB. 9

ordei% that they throw light r«ciprocaQy on each other, and that
all their relations and consequences can be grasped, is the basis of
the sciencesof administration and legislation.

In all these cases proof is a mean for gaining an end.

In common acceptation, proof seems to have a more particular
reference to courts of justice. This 'is its salient point; here its
impoflanceis best felt ; here we believe tliat it exists, or may exist,
in the most perfect form. In reality, in a judicial cause, every
thing concurs to set off this ai^t to the highest advantage : ftcts are
advanced on the one side and on the other; the attack and defence
are intrusted to practitioners trained to this sort of combat ; con-
fined to a narrow field, the combatants advance or retreat according
as a fact is proved or disproved ; and, finally, the pdwer of deciding
is given to men whom we are fond of believing to be as superior in
wisdom as they are in dignity — men set apart by the state to the task
of weighing facts impartially, and of being on their guard against
all fallacies.

We shall afterwards see, that, if there be causes which naturally
tend to bring the art of proof to perfection in the courts, there have
unfortunately been many others, which have effectually perverted it.

CHAPTER V.

OF FACTS CONSIDERED AS HATING LEGAL EFFECT.

• «

To be certain tliat he is acting in conformity with the law, the
judge has, on every occasion, two points to consider ; the one is
a question of fact, the other a question of law. The first consists
in assuring himself that a given fact existed in a given place, at a
given time; the second consists in assuring himself, that the law
has laid down a rule of such or such a nature, applicable to this
individual fact.*

The question of law is decided by the text of the law^ or when
there is no written law, by previous decisions.

The question of fact is decided by evidence. All depends on
facts.

* It is of greater importance in England than elsewhere, to determine what
IS matter of fact, and what is matter of law ; because, in many cases, what
is matter of fact is decided by the jury, and what is matter of law is decided by
permanent judges, called the Court, to distinguish them from the jury. But
the question referred to the jury i$ seldom a qne^tipfi cf pure £i(Ot, without any
mixture of a legal question, * ■ ^ '

h

10 A TEBATMi OV

Ad ftffirmiitive'fiiet if that which expt'esses an affirinative propo^
sition t Riibert has been killed -, James has killed Robert. .

A negative fact is that which is expressed in a negative proposi-
tion. *

Of two faetSj an affirmative with its corresponding negative^ one
must neeessarilf have existed at a given time i|nd place. There*
A>re, of two prdpositloils^ the one affirmative and the other negative,
one must be tnie*

We learn fiusts by the senses; but the senses must be distinguished
into external and internal. By the internal senses, we learn only
those facts which take place in our own mindj by the external
senses we learn all other facts*

Facts, of which I have the perception within myself, are the sub*
jects of experience^ in the so^idt sense of the term ; facts, of which
I have a perception as passing without myself, are the m\^ect of
what is propeHy called obiervathn. I know by experience that
burning occasions pain; I know by observation, what degree Of
beat deveiopd vegetation^

A physical fact n that which manifests itself to the extetnal
senses; a p^yehohgical foci is that which exists* ih the mind. The
shot of a musket, which kills a man, is a physical fact; the inten*'
tion of him who fires it, is a psychological fact.

Psychological facts, as they lie concealed in the interior of man,
can be ascertained only by. physical facts^ which are, as it were, the
index of the watch. In a question of larceny, the intention to take
and use the thing, and the consciousness of having no right to take
iti are psychological facts, which are proved by the iangpage of
the individual^ by the precautions he has taken to secure his escape
or conceal the thing stolen, &c.

A fact may have legal eflfect, that is, may serve as a proof,
either directly or indirectly t directly, if it is immediately con-
nected with the fact to be proved ; indirectly, if the connexion be
more remote.

The fact of arresting the man at the moment of the larceny,
the fact of having seen him give the thing stolen to his comrade^
are direct fact^ ; to find the thing stolen in his possession, afler
some interval of time, would be an indirect fact. The discredit
thrown upon a witness for the prosecution^ by ^ fiiUing into

•«*.«.

* At first siglit it appears singaiarto speAk of a negative fact ; bateviBry
tliifig is a faot whioh is susceptible of being aaaounoed in a proposition. It is a
iMt, that I have been in saoh or sach a place.; that I have not been there, is
likewise a fact, To speak otherwise, wo^ld be to sjj^ftk anintellisibly.

JTTBICIJJi BVIDBMCE*

II

contradictions^ is another example of a fact which operates in-
directly.

In theory we can conceive a fact absolutely simple ; for example^
the existence of an atom in a state of rest, an ini^tantaneous per-
ception in the mind, &c. In practice, there is notUng of this
kind ; a fact^ though it may be spoken of as a single fact, is still in
reality an aggreg^ite of facts.

The fact that a man is guilty of any given crimcj is a very com*
plex species of fact. It may primarily be resolved into the following
facts : I. He has done such and such an act: ii. Tbii^ act was acf
companied by such and such circumstances ; iii. There is a law
prohibiting such an act in such circumstances ; iv. There is no law
permitting this act in any of the^^oircumstances, in which it has beei^
committed.

It is evident that we cannot pronounce whether a man be inpo^

• • •

cent or guilty, without answering several questions of law. as well
as of &ct. . All the facts, which go to convict the accused, are
cidled mmmofyig or inculpatory fects; all tbose^ which go to hip
acquittal, are called jW|/{catofy, or ^oadf^t&ni facts.

In matters not penal, every question is complex. Tp establish
such and such a right, with its corresponding obligation, a greal;
number of facts must be examined. These facts range themselves
under two classes , facU acmsi&iuiixie^ that is, circumstances which
go to establish a rights and /ac^« prit?atit;e, which bring with them
the cessation of that right. ^

Facts co»i«titicti%7e of right. — James demands from Peter an hun-
dred pounds, which* be lent him; Peter denies the loan; James
proves that he gave him the hundred pounds on a certain day, in a
certain place, in certain kiudft of motiey, and at a certain rate of
interest.

Facts privative €f right, — ^The loan of the hundred pounds is aCr
knowledged, but Peter maintains that h^ has repaid them ; James
denies the repayment ; Peter proves, that he repaid him the huitf
dred pounds on a certain day, at a certain place, in certain kiods of
money, and with interest at a certain rate«^

* See the ** Treatise on Legislation/^ vol. iii. chap. xv. of circamstances
eonstitative and privative.

12 A TftSATfU jOK

CHAPTER Vr.

X

OF THE DIFFBBENT KINDJB OF EVIDENCE.

It is not possible to write on our present subject in tbat
didactic order, which advances step by step, witliout ever antici-
pating what is to follow. In speaking of one kind of evidence, we
are forced to allude to other kinds not yet treated of, and to ad-
vance propositions, the demonstration of which is still to come.
Here, then, we must give a general table of all the species of evi-
dence, and define or describe them so far as is necessary to give a
preliminary idea of them : but the several species will not be properly
understood, till after reading the book which treats of them particu-
larly. The dryness of these chapt^i's of definitions is amply com-
pensated by the light which they throw on all the other parts of the
subject.

We have already stated the meaning of a jyi*oof. There is some-
thing deceptive in this word; it looks as if it denoted somethmg
possessed of sufficient power to determine our belief: but we ought
to understand by it only a mean of which we make use to ascertain
the truth of a fact, a mean which may be good or bad, complete or
incomplete.

The means of proof are sufficiently distinct from each other, to
form species or modifications which may be marked by appropriate
designations.

First division. As to its source, proof is drawn either from persons
or things: personal evidence, and real evidence. 'Personal evidence is
that furnished by a human being, and is generally called testimony.
Real evidence is that deduced from the state of things.*

Second division. Direct evidence, and indirect or circumstantial m-
dence. Testimony may apply directly to the principal fact ; Paul saw
John commit the offence in question ; the evidence is direct. Tes-
timony may apply to some fact which is not the criminal act itself,
but which is so connected with it, that if the existence of the fii*st
be established, it {'produces a presumption, more or less sti-ong, of
the existence of the second.

* Paal deposes that he saw John pnrsae James, asing threateniog words.
James is found killed, and John's knife, covered with blood, is found beside the
dead body. The testimony of Paul is a personal proof; the knife is what we
caU a redil proof. We must guard against the meaning ordinarily attached to
the word real; real evidence is not in reality better than any other. This word,
in its technical sense, signifies merely things

This note is for such as do not understand Latin, or the langua^^e of juris-
prudence.

JUDlCIAir BVIBENCB. 13

A theft hf^ been committed in' the hoase b£ A.; his serrant Afsd
on the same night'; this flight is circumstantial evidence against
him;

AH real evidence is circumstantial. A^ is accused of having ut'-
tered base money. Various instruments employed in coining money^
cut pieces of metal^ or metallic filings, are found in his possession*
This is real and circumstantial evidence against him. .

Several authors, in speaking of proofs of this sort, have called them
presumptions, and have added various epithets,.urgent presumption?,
vehement presumptions, weak presumptions,* &c.

Third division. Taken from the state of die will of the witness
deposing, personal vobmtary evidence, and personal involuntary
evidence.

Personal voluntary evidence is that fut'nished on the simple re-
quest of the judge, or even before any request, without menace or
any coercive measure.

Personal involuntary evidence is that extorted by rigour or mea-
sures of constraint, or that whichis given, not by an act of the will,
but in defiance of will, and in spite or all its efforts; it is the effect
>'of internal emotions, which display themselves in the behaviour, the
gestures, the physiognomy of tlie witness. These signs are of the
nature of circumstantial evidence.

A crime has been committed, fmd the accused has made various
statements regarding the principal fact. If these declarations be
considered true, they are of the nature of direct evidence, and are
ranged under the denomination of acknowledgments or confessions /
if they be considered false, they go to the class of -circumstantial
evidence. Falsehoods, evasions, attempts to deceive, furnish pre-
sumptions of guilt.

Fourth division. The evidence in ijuestion may have been pro-
duced when the cause was pending, or antecedently and indepen-
dently of that cause, and without any intention of being used in it.
Hence evidence by deposition, and evidence by document.

Fifth division. Evidence by casual writings, and evidence by prc-
constituted writings.

If the evidence produced in a cause be a writing which was not
made with a view to that cause, that is, wtu9 not framed with any
direct intention on the part of its aXithor that it should be employed
as judicial evidence, it may be called proof by casual uniting. Such
are letters, memoranda, a private journal, &c.

If the evidence produced in a cause be an authentic writing,
which has been framed according to certain legal forms, with the

14 . . A TBBATISa ON

▼iew of being eyenbiaUy »i^oyed in the dimeter of jadieid evi-
deiiee> it iMy be called preconstitiited evidenee.^

But we must carefully distinguish between preconstituted »v\t
deAci ^jr parte, ihati^ frmm'ed by only one of the parties^ 9uch tti a
merchant's book $ and preconstituted evidence a partibusp that ts,^
framed by. both the interested parties^ such as a contract. The
former kind migbt be called demi-preconstituted evidence*
• sixth divisicm. Evidence independent of every other cause, and
kemmopd evideilcer If the eyidenoe produced be drawn from an
anterior cause, if it refer to depoeitipns which have been judicially
taken, whether in the same country, or in a foreign one, it may be
denominated bcnowed evidence {preiioe emprunHef preuves d^em*
prunt).

' It is necessary to hiark this kind of evidence by a particular natne,
for tliere are many observpitions to be made upon it. This, however^
is not the place for them.

' SeVtoth division. Oiiffnal and derived evidence.
< Testimony is original^ when the witness, who deposes before the
judge on the fact in question, is the identical person who was pre*
sent at the time and place in question, and received by his senses
the perceptions which he -now recounts.

Testimony may be called derived (inor^gma/), when the witness
doei^ ndt i^>eak from his own knowledge, but recites what he has
been told by another, who is supposed tp have been present at the
time and filace in question, and to have related the facts according
to his own immediate perceptions.

' The same distinction is applicable to writings : they are eifher
original or not original ; that is, copies.

Eighth division. Perfect and imperfect evidence.
~ Too much weight must not be given to the term petfectg as if we
Were speaking of absolute perfec^n, of an absolute impossibility of

> « « ■! ■ •

* This word (pr»<tmsti^ah) figures for th« first tima in a liook of jorisprvr
dence. - It throws much light on the snbject of evidence. I hesitated betifeen
two terms, pre-ctahOe and pre-^onstitute, I have preferred the iatter, as express-
ing better that such evidence is the work of the legislator^ w]io previously com-
mands it I have purposely avoided the term of the Frepch haT,preuve litterale ;
it is obscure, ec|tiivocaI, and unmeaning.

V Pre-eOttstitiUed'' is «<iiiaUy new as an Bogltsh term^ and mast seek its jps*
tificatiQi^ on thie a^ime groua^ on which Mr. Bumont defends his original pre-conr
stUuee. in such cases, the great point always is to take care that the thing
ttariced by a new woiiA be suffoienily described. The dooamentary evideiice
denoted by the term in qpestion, is more fully described in the beginning of
the Fourth Book,, thus : '^ What I call pre-constUuted evidence is, that of which tho
er^iitton and preservatfoii has been enfoined by tlie Uiyr as a pre-reqiiisitB ot
^te^g$»fkce of a ririit or (^igatioiv, sq that such right or pb]4;/^tion shall 90t
fie sustaiined withontthe production of ttis bvidehce.^— T.

'I

error. We speak here of a relative perfection^ that which results
from the absence of such iiDperfectipns as it is in our power to dis*
cover and avoid.

If Uiere be any imperfection in' the proving, power of a pioce of
evidence, it will have its origin elpher in the source fron^ wbicl^ that
evidence is drawn, or in ihe form in wjiich it Is given.

There is imperfection in the very source of the evidence, when
the mind of the witness is ill disposed to tell the truth. If thcf
defect lie in his intellectual condition, it may arise from conception,
judgment, memory, or imagination ; each of these faculties may be
so fj^r defective, as to invalidate l^ss or more ev.ery thing he States.
If the defect be in his moral condition, in his will, the c^iise of it
is to be found ip certain motives which, in the given occasion, im-
pel the witness to lie with a strength superior t6 that of the ordi-
nary motives, which generally operate in fav6Ur of the triith.^

There is imperfection in the fornix I would say, almost in the,
mould in which the testimony is cast, when that form excludes any
of the tests which establish its merit by ascertaining it to be accu-
rate and complete. _ '

These tests, these securities, these guarantees of evidence, shall'
all be explained in detail. All kinds of proof, \yhich cannot be
subjected to one or other of these guarantees, will be ranged in the
class of inferior proofe. We shall not always reject them, for there
are cases where they must be admitted from want of better, and
others where they are useful as indices. But the essential point is,
to understand the nature of them well.

The absence of one or other of these guarantees, places a proof in
the class of inferior evidence j where these guarantees are awantr,
ing, it must either be from the nature of things, or from the fault of
tribunals in I'efusirig to admit them. We shall see what is to be
thought of the negligence of legislators and judges who, in the
greater number pf case$^, when it was in their power to pbtaiu regu-
lar and complete evidence, have voluntarily made it descend fi'Om
this pre-eminent station to the degraded class of mutilated and in-
ferior evidence.

These nine principal divisions will make us acquainted with the
whole subject of evidence : but to treat of them in this order would
produce frequent repetitions.

There are only two very distinct classes, the direct and indirect
The first class comprehen^M the oral testimony of a witness to |he
fact, and pre^constituted evidence ; the second class comprehends
i^, and circumstantial, «id deriyed evidence.

10. A f BBATISB ON

CHAPTER VII.

OF TftC GBOUNDA of POSITITE FKAftUASION, OR THB RBA80N8 OP BBLIBF.

What is the cause of the belief produced by testimony? Wliy
do we believe on the authority of others? The most usual, answer
to this question resolves it by experience.*

In the habitual intercourse of life^ affirmation and negation about
a multitude of facts present themselves under an infinite variety of
forms. We find^ most frequently^ that assertions concerning the
existence of such and such facts^ are agreeable to the truth. Hav-
ing found testimony true, in the greater number of cases, during
the past, we have an inclination to trust to it for the present and
the future. Hence, in a word, the disposition to believe.

On the other hand, there are cases, and they are not very rare,
in which we have found ourselves deceived by testimony ; hence
the disposition to doubt or disbelieve.

But as the true assertions greatly surpass the false in number, the
disposition to believe is our habitual state ; diabeli^ is the excep-
tion. To' make us refuse our belief, there must always be a special
cause, a particular objection.

Were it otherwise, social business could not go on ; every 'move-
ment of society would be paralyzed ; we would not dare to act ; for
the rilimber of facts, &lling under the immediate perception oif each
individual, is but a drop in the ocean, compared with those pf which
be can know nothing, except from the report of others.

We believe in testimony for the same reason that we believe in
the existence of matter, that is, on the faith of a general experiesce
confirmed by the experience of each individual.- Act on the pre-
sumption that human testimony is most frequently agreeable to
the truth, and you;will continue to do what you hitherto havie done;
your life will go on in its ordinary course. Act on the. presumption
that testimony is always false, and you will be stopped at your first
step, as if in a desolate country, or in a desert. Act as if testimony
were more frequently false than true, and you will suffer in every
point of your existence ; the remainder of your life> strij^ped of all
its pleasures, will be only a punishment.

, . , . . — — r-^

* Some philosophers, above all, those of the ScoUish school, woa Id, .answer,,
that the proving power of testimony by no iltieans rests on experi^'6,' but
has an anterior and more solid foundation, vi2. an innate semtimi^nt/a.n inrtata
inclination of the human heart to believe what is aQrmed by q^heirl^.. i \Ve shaH^
come back to this opinion in the Eighth Boqk, when treating of theimprobdm'
and the impossible.

JVmCiAh SVIDBNCB. 17

It is, the same hi regard to. the material world. Act as if matter
existed, and you will live as you have lived. Try to act as a disciple
of Kant, or some other German philosophers, and the consequences
will be much worse than if you disbelieved human testimony. Turn
not aside for the wheel that rolls^ or the river that is before you^
and a great philosopher will be crushed or drowned.*

The belief^ which has for its object the existence of matter^ has no
limits^ no exceptions; but belief in the*truth of human testimony
has limits, and very variable limits.

It should be observed here, that there is a natural comiexion be-
tween belief and sympathy. We easily believe those whom we love ;
it never enters into our mind, that they can mean to deceive us ; and
the more pleasure we feel in thinking as they do, the more does the
reciprocal affection increase.

CHAPTER Vlir.

or THE GROUNDS OF NEGATIVE PEBSUASIONy OR THE REASONS OF DISBELIEF.

When a narrative of facts is presented to a judge in the form
of testimony, every circumstance in detail can be to him the mbjeet
of an aflSrmative or a negative judgment ; in a word, he believes or
he disbelieves.

We have already said, that there is no need of a special reason
for believing, or to justify belief; confidence in testimony is ac-
quired, as it were befot>ehand, by the truth of testimony in general.
To disbelieve, to justify disbelief, — a determinate consideration, a
reason, is necessary.

The ultimate result of analysis will always resolve this reason
into some cause, which renders the fidelity or accu Acy of the witness
suspicious.

* Nobody has yet been foand, unless he werermad or wished to desrtoy him-
self, who would not go out of his road to avoid a carriage or a precipice ; but
▼ery subtle philosophers have been found seriously to call in doubt the exist-
ence of the carriage, the precipice, and the river. They have even contrived
to support this paradox by some specious arguments. The sensation, say they,
proves nothing but itself; when we go further, it becomes an induction of the
judgment. Considered in itself, the sensation cannot be erroneous; the judg-
ment, on the other hand, is susceptible of much error. But the peculiarity^
and, I will add, the futility and falsehood of the system, consists in inferring,
that, because the judgment may be deceived, therefore it is deceived whenever
it refers an internal sensation to an external cause. The philosophers, who
have tried to establish this pyrrhonism, acknowledge, it is true, that it would
be absurd to act as if matter did not exist; so that their discovery, though its
truth were proved, would be utterly useless, and, while their system was troe,
it would be necessary to act as if it were false, under pain of immediate *-
struction.

18 A tREATlS^ OW

' 1. -^nlfpiaxm lof the tditntss him$e^; A stifepicloii iteplying: the tex-
l^t^nce of various fcauses, physical, morale ot iht«llectual> Which
tavfe a tehdehcy to makfe his testimony he regarded as fals^^ ihaccii-
hitie, or incomplete.

' 2. Spisdal counier-ie^stimtmy ; that is, a testimony opposed to and
incompatible with that of the first witness. The counter-testimony.
If its proving power be supposed equal in every Inspect ii^ that of
the testimony, will destroy the latter in eflTect and practice.*

Suppose the fact in question to be affirmed by one witness, Smd
(iehled by two, without any special objection to the veracity of any
oUe of them : the same reason, which produced belief in the testi-
mony of the former, operates equally in favour of the latter; but the
t^owei*, which acts on the conviction of the judge in favour of the
negative, is, in this case, as two to one;

If the counter-testimony be comparatively inferior to the original
testimony, the power of the latter is not destroyed ; it is only di-
minished. . \i is the same in those cases, where the contradictory
assertions are not absolutely incompatible. A. was seen by P. in a
eei'tain foom ; he was not seen there by N. : is there any absolute
incompaUbiUty between these two depositions ? It depends on cir-
ieumstances^ on the extent of the place, the number of persons, the
'fiborteir or longer time during which the different actors were pre^^
sent, &c. &c.

J 3. IvhfiirobalMity of the alleged /ad««— ^Wfaat we call improbable
.fiietsj are such as are contrary to the established order of nature.
.They are opposed by a kind o( general counter ^testimony*

When we speak of the course of nature, we must distinguish be-
tween physical and psychological facts. The improbable may
«^xist in both.

A judge canferm his opinion of what is improbable, only from
the indeterminate mass of facts which have come before himself in
the whole course of his life. If the fact affirmed appears to him

* In effect and practice ; the limit marked out by these words is indispen-
sable. For every practical purpose, the effect of the original testimony will be

.destroyed by the counter-testimony; since, in the precise case supposed,
a decision, founded on the existence of a fact thus contradicted, would be

.neither just nor reasonable; but the effect of the original testimony is not
so far destroyed, as to make the case precisely what it would have been, had

.there been no evidence on either side. On the latter supposition, there
would have been no probability of the existence of the fact ; whereas, in the

• case of contradictory and equal testimony, there is still a probability of tbe
existence of the fact, a probability expressed by the proportion of one to one.
Hence it follows, that, if we suppose some , comparative inferiority in the
^nter-testimony, the original testimony will act on the mind with a propor-
WkblI quantity of proving power, and the decision will be founded on tbe belief
of the fact.

ineonipatible with that mass of ftcts^ of whose existence hh h as-
sured by his own personal experience^ he ought to place the f8<ct
affirmed in the^ class of incredible things.

I reserve all that regards improbability, and wliat is called inftpoi'-
sibUUy in the physical division^ for the last boolc of this work.

Psychological proof]^ are those deduced irom certain acts which
indicate a particular state of mind in the agent, whose conduct Is
under examination, whether at a given moment^ or during a certain
period. We consider, for example, how for Jiis intention corres:-
ponded with the actual consequences of his deed, whether he was
awAre of the different circumstanced on which these consequences
depehded, and by what motives he was animated. We consider
][ii^ individual character, that is, his habits and dispositions j habits
formed by a series of acts, and dispositions resulting from the parti-
* cular nature of his sensibility.

' But this state of mind, this interior of man, can be known only
thrbugh material iacts, through external acts. Thus all ^sychblo-
gical evidence depends at last on physical evidence.

What then is psychological or moral improbability ? It means,
that certain actions, ascribed to un individual, do not correspond with
his intentions as learned, from other acts, with his habits, with his
dispositions, such as they are displayed in the ordinary course of his
life. The different kinds of improbability of this nature might be
designated by the word inconsistency : .

Non bene conveniant, nee sede morantur ip una.

In the physical division, the improbable sometimes rises to that
superlative degree, which is called impossible; in the psychological
division, this highest point is not considered to exist in the scale.
'" It is improbable that such or such a man should have acted so,*'
is an expression which we hear every day, but never " it is im-
possible ;*' or, if it be used, every one feels that it is only a rhetori-
cal figure. Nobody ever took literally the words of an ancient
Roman, " It would be easier to turn the sun from his course, than
Fabricius from the path of justice/'

The metaphorical expression, laws of nature^ which arises from
the agreement of natqral fagts with each other, does not extend to
the class of moral and psychological facts, for two very obvious rea-
sons : first, the irregularities and disorders to which the human
microcosm, the moral and intellectual world, is liable ; secondly,
the difficulty of becoming well acquainted with it. It costs us trou-
ble to observe oui*selves, and to unravel the principles of our actions ;
it costs OS much more to observe what passes in the minds of our
fellow men« We are much better acquainted with the material

c2

90 A TftSATISS ON

worM ; in point of certainty, the physical sciences have great ad-
vantages over the metapbysicaL

Still, although the progress made in this department of human
knowledge lias been less sensible, it has already produced remark-
able effects. To analyze motives, to discern the different degrees
of intc^ntion, to unravel the causes which influence sensibility, to
weigh one testimony against another, or a particular testimony
against a general probability — ^all these are operations which imply
a deep study of the human heart. In proportion as psychological
knowlege has been developed, men have renounced the singular
and fantastical expedients to which .they were wont to have re-
course in the investigation of legal truth, ordeals, — ^and judicial
combats, torture, and oaths of purgation. Suits have ceased to be
games of hazard, or scenes of juggling; logicians have taken the
place of exorcists and executioners ; and many a daring man, who
would have defended a hundred acts of injustice sword in hand,
has been afraid to meet, in presence of the public, the looks of an
enlightened j udge. *

CHAPTER IX.

iPSYCBOLOClCAti CArSfiS 01* TRCTH OR PALSfiHOOD IN TBSTtMONY. £XAMI«
NATION OF TBB INTELLECTUAL FACULTIES, AND MOBAL DISPOSITIONS, IN
RELATION TO TESTIMONY.

A TRBATiSB on evideucc would be incomplete, if it did not
present an anatomical table (so to speak) of the human mind. Each
faculty must be separately considered, to asceitain in what state it
ought to be for the purpose of accurately reflecting the truth,
and how far any deficiency in the intellectual or moral consti-
tution may affect the testimony. This might involve us in questions
of abstract metaphysics; but to abstract principles it is not neces-
sary here to have recourse. Whatever may have been the circum-
stances of our life, we mus(. have been always deeply interested in
ascertaining the value of human testimony, since it incessantly

* It mij^htbe said farther, that the epithet impoisible cannot be applied to any
moral act, on account of free will. To affirm the impossibility of any g^ven act,
is to affirm the necessity of the contrary act; to affirm the necessity of any act
by a human being, would be to deny the liberty of his will.

At bottom, this consciousness of liberty (if by that is meant a power of
acting without motive, or in opposition to the preponderating motive) is a term
invented to cover our invincible ignorance. It is certain that we have a feel-
ing of free will — which means, that we do not know all (he springs which move
oar will; and,. because these springs are invisible, W9 pretend that they do
not exist.

JUDIClAt BVmiSNCK. 21

«

mixes itself up with all we do, and all we think ; consequently, we
have all endeavoured, more or less, to unravel the characters of
truth and falsehood, and the various degrees of probability. Here,
then, we are metaphysicians ^vithout knowing it, and tliis part of
science is founded on familiar observations.

The fidelity of testimony, that is, its accuracy and completeness,
depends on two things — the state of the intellectual faculties of the
witness, and his moral disposition ; his understanding and his will.
Tlie intellectual faculties are ordinarily comprised under four heads:
perception, judgment, memory, imagination. The subject of which
we are treating, requires the addition of a fifth — expression ; by
which I mean the faculty of representing in language what passes
in the mind.

; Section I. — Moral DUpositums.

The moral dispositions, which relate to our subject, are comprised
under two heads, veracity and attention, with their respective con-
ti-aries, falsehood, and rashness or carelessness. Rashness shows
itself positively, by language ; carelessness shows itself negatively by
silence. The rash witness, carried away by conjectures, though
without any purpose to deceive, tells more than he knows, and more
than he saw ; the careless witness, kept back by mere inactivity of
mind, does not take the trouble to come close up to the facts and
circumstances, and omits many which a little application would
have enabled him to recollect.

There is a veracity in a witness, when he sincerely applies him-
self to render his testimony, and the conclusion to be drawn fi-om
it, conformable to the real state of the case. There is falsehood,
when on his part there is a desire, a wish, an effort to make his
testimony, and the conclusion to be drawn from it, at variance with
the real state of the case.

The will to speak falsely depends on two causes : i. The ex-
istence of a seductive motive, that is, a motive which regards the
interest of the witness : ii. The existence of a habit which disposes
him to give way to this interest, a habit of dishonesty.

The term interest must be taken in an enlarged sense. It com-
prehends not only proper and personal interest,^ but likewise that
which consists in sympathies with or antipathies towards others,
whether as individuals or as classes. This is what is called partidUty.

As no act of volition, at least if it possess a certain degree of
energy, can take place, without producing an internal feeling of
that act, falsehood, in its strictest sense, is inseparable from a con-
sciousness of itself} but those ^?viations tp>m the truth, which orl-

3f|* A rBXAISS^ ov

gi^ate in the partialitiea of a. witness, in his favourable or unfovourr
, able prejudices^ may exist ^ut too easily without bis knowledge^,
and give his whole testimony a f^lse tinge ;

Lurida Hant qmecooqiie tpentnr .

Arqaati. Lucr. iv.

When there is no intention to lie^ the false circumstances of a
narrative commonly proceed from inattention.

Partiality can influence inattention. He who has ft bias in his
mindi a determined prejudice^ applies himself entirely to consider
in a fact only that which flatters his own likings; he does not see
what is, but what he desires to see; every thing that wquld
operate the other way escapes him. It was thus that the Jews op-
posed a vulgar proverb to every thing which Christ addressed to
them, — *' Can any good thing come out of Nazareth ? "

When inattention arises from the absence of interest^ that is^
from the non-existence of any n^otive that would make the witness
apply himself to render his testimony accurate and complete^ the.
falsehood, which may be the result^ is to be referred, not to 'm*-
tellectual, but to moral causes.

Section II.— TTfcc intellectual Faculties, 1. Perception.

Supposing the witness to be, in moral disposition, most favour-
able to the truth, the value of his testimony will depend on the
state of his intellectual faculties. An imperfection in any of these
faculties will bring along with it a corresponding imperfection in
his testimony. If perception be in question, the judge is called on
to consider the causes of error which spring from this sour<;e ; to
consider, for example, whether the witness want any of the condi*
tions necessary to correct hearing ; whether there be circumstances;
which may have occasioned mistakes ; whether the words, that he
relates, wexe spoken in a language with which he is fiuniliar ] whe*
ther he only caught, in ' passmg, indistinct and broken sentences^
or gave particular attention to them. These, and many other ob^
servations ought to be taken into account in appreciating the
value of testimony. .

The sense of sight is liable to causes of error peculiar to itself,
with which it is necessary to be acquainted. The witness ought to
have been placed in such a light as would present the whole object-
to him* Ten perBons looking at the «ame scene, at the same quarrel,,
in a state of confusion^ will see olgects very diflferently. Some indi-
viduals have peculiarities of organic conformation, which must be
ktpt in view* There are some who cannot HUtf^f^gr^iis-}^ certain
cotoar^orweiiotaiectedbytliemlikethecenenUtvQfmttii umL

tbq-p }s a r^mar}(fihle difference in different p^rson^ la ll)f fw^t9
of recognising the features pf the bums^n pountenance.

The other seqses^ toncb, smelly taste^ though le^s copst^qtly \n
action^ are likewise subject to alterations and physiological diffe*>
rences, which may have an influence on the truth or falsehood of.
the testin^pny,

Cicero^ when drawing the portrait of a consummate advpci^tej;

embi'aces in his studies all the sciences which were kpown ip his

time* If there be none^ which he may not find necessary in the ysv- .

rie(fy of causes which be is called to plead, much more o^ght i^*

judge to be a man of universal attainments. When we come to trput

of impombilitj/if we shall see that he should not be a sti*angpr even

to the most profound philosophical sciences; but one branch of

study^ at leasts is essential tp him^ though never yet ip|;roducecl

into schools of law — the study of man as a physical and mpfal heing,^

Ue, ifiore than any other^ plight to sayj Him^ani a ffi>e niitii, t^lienifim

puio.

Section III. — Judgment

hei us proceed to Judgment. It woi^ld be e^^tremely desirables
tb^kt the witness should confine his deposition tp a pure and simple
recital of the facts which struck bis sei^ses; but there is so intimate,
a connexion between the impression made pn the organ, and the
act of judgment which follows, the one succeeds the other with :
such prodigious rapidity, that the distinction between feeling ^nd
judging is not perceived, without; a high degree of analytical fktt^nr ,
tiou.

Can the sensips deceive us ? This is a question, whi^h b^^ been
agitated in all the schools of logic. Error is an attribute of (be
judgment alone ; to he deceived, a fal^e judgnient, a judgn^eiM; mpre
or less cpntr^ry to fact, must have been formed : in so fiir as judg**!
m^n|; does not mix itself up with the sensation, the latter i» not sus^* >
ceptible of error; but so soon as judgment mixes itself up with the.
sensation, the sensation becomes susceptible of error. An impres-
sion has either been received or not; so long as you confine your-
self to the statement of this fact, there is no error.

A sensation, similar to that of light, may be produce^ by a very
different cause ; by a slight blow, for instance, when the eyes ar§ .
shut, or by a stream of the galvanic fluid; but it i$ the juc^gvient
which pronounces, that the cause of the sensation is different ^nderi
those different circumstances, for the sensation is the same.

When the cataract is removed from a man born blind, at an 9ge
when his judgment is already formed, ^11 ohjec^s appear, to him to
be eqpUy !^istant^ or in the saqae place, The pi^tpv^ traced ^ tJ^ie

34 A TR£ATISX ON

retina^ cannot differ from that which is formed in the eye of a person
who has gradually acquired the art of seeing. It is his judgment,
then, that is in fault, not the sensation. It is only by degrees, by a
continual exercise of his reason, by comparing the sensation which
an object produces at a certain distance, with that which the same
object produces at a greater distance, that judgment acquires the
art of ascribing to objects their real distances.

The judgment may be misled by precipitation, by ignorance, or
by false opinions. Every one knows the errors of precipitation.
Those which result from false opinions are the most general ; we
shall hereafter have occasion to come back to them. The errors of
ignorance are the most easily distinguished. It is instantly seen from
the condition, the age, the state of mind of a person, whether the
subject, on which he gives his testimony, be beyond the sphere of
his knowledge.

A chemist sees in a particular substance a dangerous poison j a
servant girl sees in it only an innocent powder. A rare plant to the
eyes of a botanist would be but a sorry weed in those of the hus-
bandman. The mineralogist discovers a rich mineral, where the
labourer sees only a heavy stone. The same distinction occurs in
every human pccupation, and in every science.

Idiocy or imbecility is an attribute of judgment. It is occa-
sioned by iveakness and confusion of perception, or by want of at-
tention arising from want of interest, or by an extreme imperfection
of memory. It is a permanent state, and manifests itself to the
judge with sufficient certainty.

Madness, which appears under so many aspects, and may spring
from so many different causes, consists not so much in the debility
of the intellectual faculties, as in the perversion and derangement of
their operations. This malady varies in its degrees as well as in its
effects ; there is no accurate criterion by which it can be recognized,
nor any fixed scale by which it can be measured.

SfiCTioN IV.— iWieiwory.

Another cause of inaccuracy in testimony is the decline of the
memory. Memory may be deficient either from the weakness of
the acts of perception, or from the lapse of time.

Accuracy of conception in regard to a fact has its maximum ; it
does not admit degrees. But it is not the same in regard to its
vivacity, and on this depends distinctness of recollectioh at a distant
period.

The importance of a fact is what contributes most to vivacity of
conception 5 but this importance is susceptible of an infinite variety

JVBTCXAL BVIDBNCB. 25

of degrees, both above and below the ordinaiy average, Tfaerc are
fects (and they are the mosf numerous class) so unimportant, that
they pass like shadow's, without leaving any trace in the memory.
There are others, whose absolute or relative importance to the in-
dividual is so great, that, unless we suppose an almost total decay
of his faculties through age or disease, it is not credible that they
should be effaced from his memory by any length of time. Ask a
man; whether he has been married — whether he once saw a mur-
der perpetrated before his eyes — ^whether his father, with whom he
had lived twenty years, was blind or not ? — no interval of time cau
throw a shadow of doubt on facts like these.

The importance of a fact may lie in the fact itself, or in sbpae
association. A spot of blood observed in a certain place, may serve
to indicate a murder; a knife of a particular appearance may indi-
cate the person of the murderer. These circumstances become
more important to the witness from bdng connected in his mind
with the idea of an atrocious crime ; taken separately, they would
be nothing, they would be forgotten as soon as perceived. In a
butcher's shop, neither bloody knives nor streams of J[)lood excite
any degree of attention.

Forgetfulness is not the only defect to which memory is sus-
ceptible ; there is another — erroneous recollections, false recollec^
tionsj if we may give them that name. Without the least intention
to depart from the truth, without the slightest consciousness of his
error, a person may have a supposed recollection, false not only in
some circumstance, but false throughout.

From my own experience, however, as well as that of other
persons whom I have consulted on this point, it seems to me that
these supposed recollections are weak and indistinct ; they are ac-
companied by a certain degree of doubt; they differ from facts
purely imaginary in this, that they have been deduced from some
real fact; thefe is always some circumstance, by which they connect
themselves with the truth.

Another proof that the supposed recollections ar/weak, is, that
when we communicate them to others, well informed of the events
of which these recollections make a part, their belief acquires a sort
of authority over our own; we begin to doubt ; and if their asser-
tion be strong, we feel our own shaken, and are even inclined to
believe them rather than ourselves. But in all cases where the in-
ternal evidence is clear to a certain point, an external testimony,
which opposes it, has no influence. There are facts as to which we
would remain immoveable, though all mankiqd should ngree to
give them the lie. j

4 pr^t^ded rftcpUectiop^ wl^ioh is ftf se in soiDe ciPcumsUin^ea.
maj be so tiy addi^ipu or substitution. Th§ l^tfer is the more na-
tural and more qommpn. It is composed of two opposite modes of
fal^bopd^ the obliter^tive and the fabricative : a part of the spene
whicl^ was painted in the memory b^s \fem effaced, and a jfelse .
objp9t si(hstituted far the original picture. .

There are two causes which paay refresh ^he memory, and rpn^er .
it more active at thci moinent pf giving testimony, whatever ms^y :
b^ the (}Utance of time.

The one s^cts by intervening relations, when the witness has ofteq,
had occasion to relate the events in question 5 above all> if it h^ b^^ep ,
dpi^e in writing, an operation which excites the atten^^ion i^qre, and
l^ads to gjreater accuracy than an oral recita).

Th^ otber is the result of new incidents, which, from being con-
n^^e4. with tbe fact in question, recall it, by B)eai|s pf associc^tipu^.
tftiicb arf In ^ manner inseparable from it.

" * Section V. — Expression.

. lye. are arrived at another cause, which may render testimony in-
accurate — impropriety of expression. The picture of tbe fact may ^
be correct in the memory of the witness ; but if the copy of it, which
he puts forth in ivords, be not faithful, the truth is disguised by his
l^nguage^ just as much as it cquld have been by his ignorance.
This incapacity tp express himself may clearly pervert his tesjir
m9nyj

Aberrations, arising from this incapacity of expression, may be
greater than those which result from memory. An impp rfect re-
cpUectipn may have many feature^ in conformity with the truth ^.
there is always a firm anc^ solid basis, from >vbich the witness cannot
depart ; but a faulty mode of expression may give ^ sense dh'ectly
op^po^ite to the tm^ onei the confusion of ideas has no bounds.
Tbe ^ffViation may go $0 fiu* as to render the declaration of the fact
absolutely contrary to the intention of the witness. In English,,
wbep cprrectly sppken, two negatives ai'e equivalent to an affirma-
tion n I?ut \t i^ not so in tbe language of the vulgar; with them the .
double negative has still a negative meaning. In French, as spoken
by every qlass^ twp negatives hf^ve not an affirmative power.*

*. , * . , . i : 1 • ; ^ ^^ ■ ■ ^^^

*lj\ a baiUvifsk of Sati ia 17€i|, an pld man paq^ed Martiiy, tli? father of f^
family, was coDdcmned to be broken on the wheel ; and an equivocal expres-
siofii 4rleorrebt]y understood, wais one of the principal causes of his death. He '
was accused of a mprdpr aocL robbery, committed witbifl a few paces of bis ■
house. A witness to the murder being confronted with him, said, " That is ^
not.tB'<^ murderer/' " thank God/' exclaimed the innocent old man, ** here is '
one who does not know me.'' The judge interpreted these words as • fiOafrir •

Qn the otiier hfffii, this kind qf error U mii<^h l^ss ^iieDtthiw^
tbat which li^s iu d^ect Qf memqiy. Fucth^r^ the fq^rmer )|is^4y ;
becomes observable to the eyes of a practised person, at le^i^t yi^h^ii.
it appears in obscure and equivocal phra^e^. A $|a^m^ring witil^ss
may he assisted by questions and reip^ks^ which A^roish hiip withr
the ineans of correcting himself; but a defect of m^ipc^y nuay;
escape observation, and there is no ^leans of reinedying It.

In oral testimony^ timidity is perhaps the mpstj frequent cause off
inaccuracy of expression. The degrees of U may b^ infipilelyt
various, according to the particular disposition of tl^e jndividualif
bis temperament, and his condition i the n^ore qr less pj^iv^te nature
of his habits. AH the causes, which produce timidity, afiSectprinci^-.
pally young unmarried persons, from puberty till some ypai*s b^yopdr
that period. . , ' . )

Timidity, when fully analyzedj is perh^s a); hottom iia^hH^g f^^^f
than an extreme sensibility to the three protecting S£^nctiqp9,--Ttbp
political, the religious, the moral,-«but above i^l, to tl^e l^t.

Timidity is greatly increased t)y the publicity pf the es^fiminc^tiqn ;
aud the erroneous testimony, which may thence arise, i^ one qf the
inconveniences to be put ip the balance against the preponderate
ing advantages of that cardinal security.

Section VI. — Imagination. ^

I speak of this faculty only in the relations which it may have '
to testimony. Its eflFects, in regaitl to real facts, are always opposed^'
to accuracy; nay, the error, which'i'esults from it, is frequently not
merely a deviation from the truth in some circumstances, but a *
creation of facts, false in every point. This happens, when imagi-
nation plays the part of memory ; when it takes the place of recol-
lection.

The ordinary work of imagination is to re-produce facts which '
have once existed ; to combine images and events" laid up in the
stores of memory ; and to grpup them as we please, for our own
amusement, and that of others. But in making this use of imagi-
nation, we neither deceive ourselves, nor does it seek to deceive.
Writers of tales and romances, and other poets, ought to be ranked
among th§ benefactqi's of mankind, nqt among false witnesses.

The extraordhiary work of the imaginatioq consists in taking its

sion of the crime. He believed them to signify, " I am guilty, and they do
not know m^." Tbey meant just tUe reverse; b^t s^atence wa^i pioi^oaDoed,
&P- ^0. h f«w days after bis execution, his i^noceno^ was diacoyereo|» ^9. &p.

— V^lifliriif $ssai 9ur ks FrobabUita ^sn faU <k Justice* FolUiqufi, tP9K^ii« .^ . .

28 A TABATI9B ON

€mn inventions for realities. In a weak mind^ in a cliild, for ex-
ample, the mere idea of an object may be confounded with a belief
in its existence.

We have all a notion of this state of false belief, from what
passes in dreams, where illusions appear like realities. There is an
age, at which the distinction between dreaming and being awake is
still extremely weak, and a child may occasionally fall into mis-
takes. This error may exist at a more advanced age, from a state
of disease, or from religious opinions, or as the effect of some un-
usual emotion.

The sceptical Hume built part of his system on this principle.
According to him, our belief in the existence of an object was no-
thing but a certain degree of vivacity in the idea produced by that
object. By what kind of photometer is that degree of .vivacity,
which constitutes belief in the existence of a thing, to be distin-
guished from those more feeble impressions, which are not followed
by the same judgment ?

If, at an age when the power of discernment is as yet unformed,
the simple idea of an object can act on the mind as a sufficient
proof of its existence, what will it be when popular opinions have
paved the way for this belief?

In fact, popular opinion acts in favour of an established belief,
like .a body of proofs, all indirect, all very vague, but deriving
strength from their mere multitude. The number of testimonies is
thought to make amends for all the guarantees that are awanting.
Add to this, tl^at assertions are always stronger in proportion to the
improbability of the fact; as if, by natural instinct, the greater
efibrt were made to overcome the greater resistance.

If we go deeper into the human heart, we shall find in it a secret
disposition to believe the marvellous, as if it extended our power,
and gave us the command of supernatural means.

Besides, when these beings of pure creation are the subject, rea-
son is not sufficiently unbiassed to scrutinize the testimony. Fear
comes in ]the way; doubt appears dangerous; we are afraid, lest
we offend thet?e invisible agents ; and there are numerous stories
in the public mouth of the vengeance, which they have taken on
unbelievers.*

These are the causes, which have established the belief in spec-
tres, ghosts, possessed persons, devils, vampires, magicians, sor-

* There is another fear which stops wise men, the fear of persecution.
*' Opinion is called the monarch of the world, and truly it is so ; for when
reason offers to fight against himy reason is condemned tiQ death.'' — Fhil, Dk^

JUPJCIAL SVIDBM^B. 99

cereiis-— all those frightful beings^ who have ceased to play a jmrt in
courts, but still a[>pear in the cottage*

Among the extraordinary operations of the imagination^ there is
one directly the reverse of those of which we have been speakibg.
There we had facts which did not exist, attested as rt al facts ; but
here we have real facts produced by imagination, and which have
no existence but through it. The history of medicine contains a
multitude of examples of this kind, of diseases suspended or cured
by the influence of mental belief— a simple, pure belief— without
any foundation in the action of natural causes. Fit medicina fides.
I need only refer to animal magnetism, which had such numerous
partisans in the capital of France, and to the metallic tractors,
which, abouj; the same time, were so much in fashion in England.

This shows, that, independently of any supernatural belief, great
effects may be produced by the mere power of the imagination.

This analytical view of the causes of inaccuracy in testimony,
may lead to useful results.

L It shows distinctly in what cases we ought to be peculiarly
distrustful of testimony, and how far errors can or cannot be
avoided.

2. We find here the logical principle of the distinction between
culpable falsehood, which is conscious of itself, and innocent falser-
hood, which proceeds from some weakness in the intellectual
faculties.

3. The greater the light that is thrown on the different causes
of inaccuracy, the more numerous do the means become by which
the judge may discover where an untruth exists.

CHAFfER X.

OF *raB NATUBAt flANCT10N-*-IT8 OPBRATION IN FAVOOR OF TRUVH«

To say that the natural sanction operates in favour of truth, is
to say, that, setting aside all political and religious punishments,
and even shame and contempt, still there is a punishment which
attends falsehood, a punishment which is not of human institution,
which acts immediately on the witness, and disposes him to tell the
tfutb, when there is no more powerful counter- motive. This

* The effects of fear on the imagination^ and thence on belief, have heen
observed.. *^ Plura et majora videntar timentibus, eadem non tarn animadver-
tontar in pace : in metu et periculo, quum credantar facilius, turn fing^antur
impunias/' Cic dt Dmnationej 1. iii. — ^Alios timor sibi reddit, alios vehementias
pertarbat et in dementiam transfert. Inde inter bella errayere lymphatici:
nee nsquam plnra exempla vaticinantium invenies qaam ubi formido mentei
rellgione mixta perca58it.^iS^nec0; Natural, Quoitiones, 1, vi. 29.

^ A tRlUTISB ON

^uttlfiAiiiiMt cbtisidtt in tlie ^fibrt^ in ttie mental labour^ Which k
falsehood costs. Truth comes of its owh accord, and places iiself
fipdbtahebusly on the^lips of the witness 5 a sort of violence, a sort
•WF «^ti*ng:gle must be \ised, in order to remove it, and to snbstitutie
4he falsehood which is opposed to it. Now, it h natural to avoid
the rugged path, and take the more easy road. Thfe motive is,
fte Ibve of^ufe; a motive which frequently acts without our kndw-
ing it, but whose influence is greater than is commonly believed.
Let us see, how it operates in the case of testimony.

To report a fact sUch as it presents itself to the mind, is the Work
'Of memory ; to report, as a real fiict, ciccutnstances which never ex-
•Isfted, is the work of indention. Whatever degree of pain may be
attai^hed td the operatibtis of reminiscence, wheii the object is to
^express real fiibts, much more is always required to combine ima-
ginary facts. In a word, the labour of invention is more painful
than that of memory.

Such is the general case, in the statement of even the most Simple
faets J but the truth Uf thid observation \k much more obvious, when
^we have to deal with complicated and multiplied facts, such as those
which form the subject of judicial testimony generally are.* •
i' Here, then, is a pain avoided by him who tells the pure and simple
truth 5 and thus it is, that by the mere force of the natural sanction,
ttmth habitually prevails in testiniony; falsehood is only introduced
occasionally, and always as the effect of some special interest.

But in not this difference between the facility with which the
xtroth, and the difficulty with which falsehood is told, too minute to
explain so great ah efiect ? Are we not ascribing too much power
to a subtile and trifling cause? I answer, tliat those who make this
objection, have not reflected sufficiently on the nature of the human
mind. This love of ease, x^bich, when we wish to blame it, we call
indolence, is.a stronger disposition than we believe it to be; its
.actionon the mind escapes our own notice. ^^ If we consider its power
attentively/' says Rochefoucault, ^^ we shall see, that, in every ren-
jCoatre, it makes itself mistress of our sentiments, our interests, and
our pleasures; it is the remora, which has power to stop the largest
.vessels.'" It should be added, that the power of habit is owing
.almost entirely to this inclination, so little observed ; that is, to our
finding it easier to follow than to change an habitual mode of acting.
(The whole system of otir conduct is determined by almost imper-*
;cfeptible powers. Balances are constructed, which the five-hun-
dredth part of a grain will turn to one side or the other ; the five
jhdtisandth t)art would produce the same effect, were it not fot'
friction and the t»« inerdcew .

Ut it %6 i^bs^i-^3 ha^erefi IMt this iiatdM dls^bstUSfi t6 aVoid
pain has likewise a tendency to render testimony incompletes trhbli-
evfeir a partlcnlair degree of attention is necessary to recall all the
circumstances. The careless and inactive witness gives evfery tWtig
Which occurs eiteily to his membi*y, but will not perform the tilentol
labour necessary to retrace all the details of the feet. Did we trust
to the natiii'fil ^atlctioh alone^ testimony would be too liable to this
imperfection.

It is here that the great utility of ejrambialioft displays itself^ that
important auxiliary, of which we shall have a great deal td say iti
the following^ bbok. It is always suppdsed, thfet there exists in the
exaiminer au interest stiffleient le vatiqiiish the indolence of the
wittiess, and to elicit those answers, Which Will render his evidehCe
complete;

Hlthferto we have been supposing a witfaess who has no interest
opposed to the truth. It is in the neutral isttCie, that the natural
usanction iabis in th^ fevourable sense which we have explained. But
if any opposihgj any seductive niotive exists^ the case is vety
different. There is nd interest^ howevfer weak it may be, Which is
not able to overcome the power of the natural sanction, and to prd- '
duce testimony absolutely false.

k *■<>

CHAPtER XI.

THE MORAL ^R POPIJLAR SANCTION, OR HONOUR — ITS OPERATION FOR AND

AOAINST VBRACITV.

Oott hapt)iness depends at every moment, so to speak, and
much more than we believe, on the state of oilr knowledge. Our
actioiis take a particular direction, according td What' we know of
things or persons | but our own personal knowledge would almost
always prove very insufficient for our guidance} we must often
'borrow that of our fellow men. Even in the most itnportant mat-
ters we have to take our determinatidn according to the testimony
of others, and that testimony is useful only in so fkr as it is tfu^.
False information would place us in a worse state than ignorance.

Hence we see, what rank veracity ought to hold among the vir-
tues ; it rests on the general interest, for truth is the bond of the
social alliance. As this necessity is equally felt by all, it follows,
-that, in all relations between man and man, with a few ca^al ex-
0eptiou39 the popular sanction is strongly pronounced against fals^^
hood»

39 ^ A TEBATlfiB 0N

. The exceptions are few in number^ and may be ranked under
three heads: —

1. Deviations from the truth for the sake o{duty, in cases where
the truth would produce an evil, and none can result from the
untruth; as if you deceive a madman, or an armed asifassin, who
asks, which way his intended victim passed.

2. Deviations from the truth for the sake of humanity or benevo-
lence i as in the case of a physician, who, to save his patient or his
&mily much cruel anxiety, gives hopes which he does not entertain
himself.

3. Deviations from the truth for the sake of urbanity or politejiess,
which are nothing more than benevolence applied to inferior inte-
rests. Such is the case, where criticism is mitigated, or praise a
little exaggerated, for the purpose of giving encouragement.

There is one case, in which a deviation from the truth is simply
permitted. If a man has no right to the information which he
asks, you are not bound to give it; what you owe to another is
limited by the consideration of what you owe to yourself.

With these exceptions, which are to be taken in a confined,
rather than a large sense, veracity is a strict obligation. The
strength of the moral sanction on this point, may be seen in the in-
famy universally attached to the character of Uar. It is acknow-
ledged, that, of all injuries, none contains a more violent provoca-
tion than this reproach.

This imputation, like eveiy other, is most insupportable, when
best deserved : thus we often see the same individual unite the cha-
racters of bully and liar; the one personage protects the other.

He who replies to a groundless charge of lying only by a duel,
gives his reputation for veracity in exchange for the pleasure of
revenge, or the reputation of courage.

Although' honour, however, proscribes lying, it tends no leSs to
make us have recourse to dissimulation, in order to hide the vices
and bad actions which are its consequences. To conceal them is
the first care : to deny them, if we be charged with them, and can
flatter ourselves with keeping them out of sight, is at least a com-
mon disposition.^

* A poet has said,

Snr mes faates je sais sincere,
£t j'aime presqa' autant les dire cjae les falre.
Bat he meant faalts, to which he knew the disposition of a numerous class of
the pnblic was indulgent or faironrable.

Louis XIY. said of his nephew, the Duke of Orleans, when a young man,
that he was a bragger in vice. Bat the vices, of which he boasted, were
siich as fashion protects, or boldness ean adorn. A man may hold out against
censure, but neyex against contempt.

JUDICIAL BVIDBNCB. 33

Here then are two distinct interests of honour, which act against
each other iii the human heart, so soon as the line oif duty has heen
overstepped : shame accompanying the confession, shame accom-
panying the lie.

What will the individual do, thus acted on by these opposite
forces? He will confess, or he will lie, just according to what he
takes for the moment to be the higher interest — ^according as the
one fear gets the better of the other — the fear of being thotight
guilty of the fault in question, or the fear of passing for a liar, if he
be found out. The dilemma, whatever be the occasion, may bring
him into the greatest perplexity ; and the dread of falling into so
cruel a situation is, to every reflecting man, one of the^most pow-
erful safeguards of virtue.

There is one particular case, in which veracity cannot expect the
same assistance from the popular sanction. A corporation, a party,
a sect, a profession, may have interests common to all its members^
but hostile to the body of the nation ; and evei7 association of fhis
nature, contains a corresponding portion of the popular sanction.
There will, therefore, be accredited or tolerated falsehoods, for the
purpose of protecting the small society against the great one.

It has long been observed, that there is a sort of honour and good
faith established among thieves ; but this honour is neither more
nor less, than a disposition to pursue the interest which unites them.
Th^ great community has its popular sanction, which embraces all
interests ; the different communities of thieves, smugglei-s, malefac-
tors, recognized or not recognized as such, have, likewise a portion
of the popular sanction for themselves, and for themselves alone.*

If the moral sanction operates strongly in favour of veracity in
the relations of man to man in the ordinary intercourse of life, it
applies still more strongly to judicial testimony. Its effect is pro-
portioned to the importance of the case, the solemnity of the occa-
sion, and the degree of considerate reflection, which we have a
right to demand from one \yho is called to influence the decbions of
judges, and the highest Interests of society.

It must, however, be observed, that the popular sanction is
much disposed to relax its severity, when the laws in question are
in collision with public opinion, and when there is a disposition to

* Home has remarked, that a man is generally more honest in his private
than in his public character, and, to serve a party, wiH do many things, which
he would not allow himself in relation to his own private interest. Honour is,
to be sure, a powerful restraint ; hut when a man is sure of the approbation of
hii own party in every thing which serves the common interest, he soon learns
to despise the clamours of his adversaries.

r

3i A TRBATI8B ON

favour accused parties^ who are regarded as victims qf tyraupy^
whom it is desirable to rescue from too rigorous a fate. Witnesses
conceal p^yrt of the truth^ or keep it altogether back. These hu-
mane lies are treated with indulgence. Nor is it merely witnesses^
who try to soften down their testimony; the jurors themselves
seek equivocations and evasions, and go out of a court of justice^
as if in triumph, after having solemnly told an authenticated lie.
The grave Black^tone has not feared to give acts of this nature the
softened appellation of 7nerq/ulj)er/t<rte^.

CHAPTER XII.

THB nWhlQlOVB 3ANeTlOK«

The religious sanction, whether taken as it stands in the
Mosaic law, or considered as it appears in the precepts of Christi-
anity, is in the highest degree favourable to the truth of testimony.
The law is formal; it has no restriction, no exception : let your yea
he yea, and your nay^ nay. Such is the command of the teacher ;
and, if taken in its literal sense, in the clear and manifest sense
which his language bears, it does nothing less than prohibit his
disciples to take an oath ; but it does so only for the purpose of
giving the most simple affirmation the same force as an oath.

If this precept has*any fault, it is that of being too general, too
exclusive, of no^ admitting the modifications which we have Imd
down, and which morality demands. These exceptions, it will be
said, are implied in all general rules ; but this is just what gives
interpreters pretexts for e:iqplaining, commenting on, and altering
the sense, till the primitive law can no longer be recognized.
* If from the doctrine of the gospel we turn to the practice of
Christianity, we are astonished to find no conformity between them ;
they even present a contrast, which it is not easy to explain. Wher-
ever the apparent interest of religion, and the real interest of its
ministers, have been able to lend a veil to imposture, thie religious
sanction has never presented the slightest obstacle. The histoiy of
the church for ages is nothing but a chronicle of lies j pious firauds
were consecrated by the highest authority; false miracles, false
saints, false relics, false gospels, false acts of eouaeSs^ fiilse decre^
tals, &Ise donations, false visions and revelatioosy weie sufj^xurted
by the testimony of doctors, bishops, and the most revered pontiff^.
In a Vord) every ima^^able fiUsehood was looked upoa as lawful
}xf every sedj and truth seemed to he bmusiied from the e«rdi in

JUDICIAL BVIDBNCB* 35

the name of that religion^ whicb^ io itself^ is the greatest enemy of
falsehood.

It was established in /principle and in fact^ that the Pope possessed
the power of absolving subjects from their oath of fidelity to fheir
sovereigns. It was established^ likewise^ in principle and in fact^
that faith was not to be kept with heretics ; and it was only with
much difficulty^ that the condemnation of this tenet was extorted
from the council of Constance.

It was about the same time^ that the casuists established the doc-
trine of equivocation and mental reservation* I shall cite only a
single passage, which may serve for a volume : — " One may swear/'
said the most celebrated of these doctois,* ^' one may swear that
he has not done a thing, though he really has done it ; meaning, in
his own mind, that he did not do it on a certain day, or before ho
was bom, or understanding within himself some similar circum-
stance^ without using words which in any sense may make it
known ; and this is extremely convenient in many circumstances,
and is always extremely just, wherever it is necessary for our
health, our honour, or our welfare."

An oath is a ceremony intended to carry the religious sanction
to the highest possible degree of strength ; it is here surrounded by
evei7 thing that is most solemn and imposing ; and yet it is pre-
cisely in cases of oath, that the efficacy of this sanction has been
most questioned. Many think, it would be better tp suppress it.
It is, say they, either an useless or a deceitful guarantee ; useless for
experienced judges, because they reckon it as nothing ; and de-
ceitful for those who trust to it. This question will be particularly
examined in the last chapter of the foUowii^ book.

Remark on ike Law of ike Hindoos relaiive io TesHmony.

Of all known religions, that of the Hindoos is the only one,
whose religious code (if it is properly understood and properly
translated) expressly allows false testimony in certain cases; and of
the cases which have received this peculiar privilege, several can-
not but appear sufficiently fantastical in the eyes of tf European.f

The following is an example of the permission in a judicial
case:

False ' exculpatory testimony in favour of a person accused of a
capital offence. But there are some exceptions: viz. If the crime

• Saneheas. See the Binth of the Provincial Letters,
t HaOieda Code of the OeiitOQS> printed by the £«st India CompnDy In
1776| cap, ill. *

B2

36 A TREATISB ON

consists^ I. in the murder of a Brahmin; or, ii. (which comes to
the same thing) of a cow ; or, iii» in a Brahmin haying drunk
wine.

^^ In every case where true testimony would deprive a man of his
life, if false testimony can save him^ it is permitted ; and for expia^
tion of his fault, the witness shall perform the poojeh seneshtee; but
if the culprit shall have killed a Brahmin or a cow, or, being of the
caste of the Brahmins, have drunk wine, or shall commit any
other peculiarly odious offence, it is not allowed to give false testi-
mony to save his life/'

The following are examples, where falsehood is permitted in cases
not judicial:

" If a marriage can be brought about for any person whatever,
by means of false testimony, such testimony is allowed. Thus, if a
marriage be exposed to the danger of being broken off on the day
of its celebration, from a failure to give certain articles, in siich a
case, four or five lies are of no importance. Or, if, on the marriage-
day a man promise to give his daughter various ornaments, and he
cannot do it, falsehoods of this sort, told with the intention of
bringing about a marriage, are allowed.'*

'^ If a man, impelled by carnal desire, tell lies to a woman ; if his
own life be exposed to danger, or all his household effects to
damage, or if it be for the benefit of a iJrahminj in such cases
falsehood is allowed."

CHAPTER. XIII.

THE LEGAL SANCTION J IT* OPERATION FOB AND AGAINST THE TRUTH OF

* TESTIMONY.

If to denounce punishnlerit against the false witness were suf-
ficient to prevent false testimony, the task of the legislator would
be easy indeed ; but this is one of those offences, which offer little
of which the direct action of the law can lay hold. Punishment
operates only in proportion to its certainty ; and, unfortunately, in
this^ case there are great difficulties in convicting a witness, es-
pecially if he confine himself to deceiving justice by mutilated
depositions. In important cases, and when the witness is a necessary
one, the means of seduction may be much stronger than the chances
of punishment. From all these considerations it must follow, that
legal penalties will be a very insufficient mean, unless supported by
a good system of procedure. The e:i;amination is a surer guarantee.

JUDICIAL BVIBENCB. 37

and a more efficacious method of getting at the truths than all the
menaces of the law.

Were we to go over the history of tribunals^ 'and select all the
rules of practice which have been established to the prejudice of
truths to the ruin of innocence and honest rights the picture would
be a most melancholy one. In many cases, there has ^been more
«rror than bad faith ; while establishing a course the most opposite
to the interests of justice, men believed they were doing her good
service. But it must be acknowledged, that legislators, timid from
their ignorance, have allowed lawyers to assume absolute empire in
forms of procedure ; and the latter, contemplating every judicial
operation as a source of gain, have laboured to multiply unjust suits,
unjust defences, delays, incidents, expenses. The greater the com-
plication and obscurity which they contrived to introduce into the
system, the more necessary did tJiey render themselves ; the courts
t>f justice have been peopled with harpies, who devour the unhappy
litigants; legal fictions, nullities, superfluous forms, privileged
lies, have covered the field of the law ; and the unfortunate in*
dividual who is oppressed, when obliged to vindicate his rights^
often finds the reparation of an injury more^ ruinous than the injury
itself.

This, it will be said, is merely the. ordinary theme of declamation •
So it is ; but the declamation is founded on facts. It is true, that, to
. establish the truth of these facts, it would be necessary to unfold the
iniquitous and crooked course of the greater part of systems of pro-
cedure ; the difficulty of putting the evil in evidence is what prin*
cipally contributes to support it. Lawyers have put themselves be«-
yond the reach of attack, by ^itapping themselves up in mystery^
and have even tried to extract a title to glory firom this very ob-
scurity, wliich^ like the shade of the manchineel tree, ififfiises poison
all around.

Fortunately, some virtuous men have arisen from the bosom of
the magistracy and the bar, who have enlightened legislators, and
sown some seeds of reform. The effects are already beginning to
show themselves in a great part of Europe ; and it may be hoped^
that the time is not far distant, when oral and public procedure shall
have gained the day against the evil genius of the jurisprudence of
ttie middle ages.

S8 A TftEATISB ON

CHAPTER XIV.

WHAT CONSTITUTES THE AVERAGE 8TENGTH OF TESTIMONY.

As judges are always called on to determine what is the degree
pf proviog power of a testimonyy or to d^ide which of two opposite
testimonies is the stronger, it would be desirable to have a standard,
or average measure^ of probability, which might serve as term of
comparison^ and to which reference might be m^de, to ascertain
whether a given testimony be above or below this middle term*
' But where shall we obtain, this degree of ordinary strength, or
this measure 6f comparison ) We shall find it in an individual, a
single one^ taken at random from the middle class, of ordinary in^
telligence^ of sufficient probity to allow no room for any objec-
tion, deposing as a witness to the lact which is in question (the fact
being always supposed to have nothing improbable in itselQ^ speak*
ing pertinently to all its circumstances, and giving bis deposition
according to the forms best calculated to ensure veracity.*

Testimony thus given, and not counterbalanced by any oppo*
site testimony will naturally dispose the judge to bdieve it.,

Experience, however, teaches us, that, although testimony of tbi9
nature Is found to be true in the majority of cases, there are othei*s,
in which it has been found to be false.

Thus we have a nominal measure of comparison for estimat*
ing the strength of pixx)f. We shall call It a iHX)pf of average
strength, when it reaches this measure ; of superior strength^ when
it, rises above it ; of inferior strength, when it falls below it.

The greater the number of tbe.degrees of strength in the evi-
dence, after deducting every thing opposed to it, the more ceitain
will be its effect in producing conviction in the judge, and justify-
ing his decision to those who may have taken an interest in the case*

CHAPTER XV.

CimCUtfSTAVOES WHICH AUOMBNT THE 9R0VINO POWfiB.

Thb average strength being thus given, we shall find, that it is
susceptible of augmentation according to the source from which the
testimony emanates :
1. We have taken a witness from the ordinary class, and on the

* These forms are explained in the following book. It is not possible always
to avoid anticipating.

JUBlCtAL SVmVNCB. 39

ordinarjr lev^l as to moral and intellectual qualities. Let us now
suppose a witness belonging to a higher class^ of a condition which
presumes a more careful education^ a greater responsibility^ more
sensibility to honour^ in a word^ a known witness; there is no
doubt but the quality of the witness adds to the strength of his testi-
mony.

This is the reason of the importance/ which is attached in prac-*
tice to qficial testimony in general^ and particularly to that of per-
sons clothed with judicial offices.

2. Another and surer source of augmentation in the proving
power^ lies in the number of the witnesses. This mode of increase
can be calculated with arithmetical certainty; but it is impossible
to find the proportion, which shall ascertain, what number of ordi-
nary witnesses are equivalent to a smaller number of witnesses of
superior quality.

If the witnesses, instead of all deposing the same way, be divided,
some being for and others against, then, on the supposition that
they are relatively of equal value, the mode of measuring the
proving power is almost as simple as in the former case. When
they agree, we take the total of the testimonies ; when they dis-
agree, we take the difference ; that is, we take the remainder, after
subtracting the witnesses on the opposite side.

A third source of augmentation in the proving power of testi-
mony, and that, too, to an infinite degree, is the addition of what
is called real and circumstantial evidence.

In regard to preconstituted evidence, it is necessary to observe,
that it is in fact nothing but oral testimony, given through the
medium of a writing, but a testimony invested with all the quali-
ties which can give it superior strength.

CHAPTER XVI.

CtRGUMStANCES WHICH DIMINISH THE PROVING POWER OF TESTIMONY^ OR

INVALIDATING CtRCUMiSTANCES.

The proving power of testimony may be diminished, i. By
the siHtrce from which it emanates 5 ii. By the form in which it is
obtained.

1. The source. — ^Tbe credibility of the witness is diminished by
€vei7 circuffistanee, which trnneunces any imperfection in Ills intel-
lectual or moral qualities. ' We (Bball not repeat what has been
already tsaid on this head in Chapter IX.

40 A TABATIS£ ON

2. The form. — ^In the practice of courts of justice^ we find a
variety of arrangements employed as means of security. In reality,
when applied to testimony, they increase the probability of obtaining
it accurate and complete, and give the judge light on the character
of the deposition. Among these safeguards, we may mention the
oath, the penalties attached to bearing false witness, publicity, viva
voce examination, unpremeditated answers^ the confronting of wit-^
nesses, &c. The union of all these securities constitutes the most
advantageous form in which evidence can be obtained ; and in so
far as form alone is concerned, the omission of any one of them
will produce a proportional diminution in the proving power of
the testimony^ and make it rank as of an inferior species.

The kinds of evidence, to which these securities cannot be ap-
plied, are the following : —

1. Ciraimstantial evidence;* which results, not from the testimony
of persons, but from the existence of certain facts ; facts distinct
from the principal fact in question, but tending to establish the ex-
istence of that principal fact.

2. Real evidence ; that is, all evidence drawn from things. It is
abrtochot circumstantial evidence.

S. Testimony by affidavit; that is, not given on examination,

4. Casual written evidence j as notes, letters, &c»

5. Derived oral testimony j hearsay. .

6. Written testimony ; not original, copies.

7. Testimony given in alia causa; in a cause different from that at
issue.

' 8. Testimony founded on a report concerning a thing; that is, a
report made on the state of a thing, without producing th^ thing
itself.

CHAPTER XVII.

MODK OP EXPRESSING DIPPERENT DBGftEES OP BBUEf.

Nobody can be ignorant, that belief is susceptible of different
degrees of strength, or intensity. In one case we say, I am in-
clined to believe; in another, I believe; in anotlier, I hmws but
these expressions are far from marking all the intermediate shades,
from simple pmbability, up to moral certainty.

■"■^ — "^ -'■': — ' — -- — — ■--;• ' -■

JI7DICIAL BVlDKjNCS. 41

Another fact^ equally notorious^ is^ that these various degrees^ of
which belief is susceptible, have a very strong influence on our
conduct ; it would be more correct to say that all our determinations
depend upon them. We have an obvious application of them in
wagers. He who wagers, stakes one against one, one against two,
or three, or ten, according to the different apparent probabilities.
Insurances, which are a sort of wager, are made at a higher or lower
rate, according as the event in question is more or less probable.

If different degrees of conjectual strength in wagers and in-
surances can be expressed, why should it not be possible to express
likewise tlie different degrees of proving power in testimony ? And
if it can be done, is it not desirable that it should be done ?

Every element ofjudicial evidence is subject to vary in quantity
and degree. Circumstantial proofs, tending to prove the principal
fact, are susceptible of all possible degrees of strength in the mind
of tbe judge. Parol evidence is no less so; the impression, which
it makes on the court, depends in a great measure on the strength
of belief expressed by the witness ; and the strength of this belief
is extremely variable, according to tlie nature of the fact, the state
of his faculties, the distance of the events in point of time, and a
great number of other circumstances.

Since, in ordinary cases, where there is no motive for suspicion,
the belief of the judge is proportioned and conformable to that of the
witness, how important would it be to find a method, by which the
witness might be able to state accurately the different degrees of
belief which he feels !

No one can deny, that for this purpose, ordinary language is ex-
tremely barren and defective. / know ; I believe ; I have reason to
believe that the fact happened so, or nearly so; — and here the grada-
tions terminate. Lawyers themselves have not been able to invent
any thing better.

The language of mathematicians might furnish two different
methods. The first, perfectly accurate, is that which expresses the
doctrine of chances ; but it is not applicable to testimony.

The other is that, which, taking the highest possible quantity as b
finite quantity, divides it into equal parts ; as a circle, for example,
however great it may be, is divided into three Imndred and sixty
degrees ; or like a scale, with a fixed point, fix)m which we set out
to settle the ascending and descending degrees.

Let us adopt this last method, as furnishing the most simple and
usual mode of expression.

Imagine a scale divided into ten degrees. It has a positive side,
inscribed with the degrees of positive belief (that is, affirmative of

412 A TRBATISB ON

the fact in question) ; and a hegative side, inscribed with the de-
grees of negative belief (that is, denying the same fact) ; at the bot-
tom of the scale is 0, denoting the absence of all belief either for
or against the fact in question.

Such is the simplicity of this mode of expression, that it is not
even necessary to imagine a material scale. , The witness says, my
belief is ten or five degrees on the positive side, or ten or five de-
grees on the negative side ; just as> in speaking of the temperature
indicated by the thermometer, we say, that the mercury is ten de-
grees above Zero.

Three'^ersons come forward as witnesses ; they have their choice
of three declarations; 1. 1 believe, that the fact exists; ij. t believe,
that the fact does not exist ; iii, I have no opinion at all, whether
the fact exists or not. They are asked, what degi'ee expresses their
belief most correctly; and each of them, declaring an affirmative
belief^ indicates it by number 1, that is, the weakest degree possible.

Take, now, two other witnesses to the same fact (I am always
supposing the witnesses to be deserving of credit), each of whom
has a maximum belief of 10 degrees.

Their belief may be on the same side with that of the three other
witnesses, or on the opposite side. Let us suppose it to be on thie
same side, that is, afiirmative. Then, of 30 degrees, which is the
utmost that thi*ee witnesses can make up among them, those three
witnesses funiish only three ; while of 20 degrees, which two may
make Up, the two latter witnesses furnish the whole.

Let us suppose, that the belief of the two sets of witnesses is con-
tradictory. Then, the three witnesses give only three degrees for
the afiirmative, while the two give twenty for thenegative.

Observe^ then, the change which the mind of the judge must un-
dergo, according as he has, or has not, means of learning and mark-
ing the diffejrences, which exist in the strength of the belief of the
witnesses. If these differences cannot be appreciated, he must
decide according to the number of witnesses ; and, in the case sup-
.posed^ his decision will be, that the fact exists. I( these differences
can be appreciated, then, as the strength of belief of the witnesses
serves as a guide to the judge, (and what better guide can he have ?)
his decision will be, that the fact does not exist

So much for the witnesses. Turn to the judges, and you will find
•tbe same differences. The united amount of the degrees of belief
of three judges may be less than that of two others.

The want of an accurate method of expressing the real strength of
testimony, has hitherto exposed it to be perpetually misunderstood
and misrepresented.

JCblClAL BVIBKRCB.

43

For the same reason, the strength of opinion in the judges has
been exposed to miscalculation and misrepresentation.

Were this scale of the degrees of belief adopted, I think the three
following propositions might be maintained.

1. It could be employed without confusion, difficulty, or incon-
venience.

2. At first it would be little used ; but it would become more &r
miliar, as general instruction made greater progress.

3. That, in a great number of cases, there would be no necessity
for using it, but it would be employed only in cases of importance.

1. As the, use of this instrument is optional, it can occasion no
vexation or embarrassment to a witness. A man will not ask for
the scale, unless he know how to use it. If he does not use it, the
effect of his testimony will be, as if had placed the index at number
10, the highest degree] if he uses it, be will place the index at
number 9, or some lower degree.

2. At. first it will not be frequently used, because it bears a scien-
tific appearance. But accuracy increases with attention ; and ii^
proportion as the attention of men is more closely fixed upon aa
object, discoveries are multiplied, science is extended, and practice
follows slowly in its footsteps. FoUow the progress of the human
mind ; in every thing, it seeks to give additional perfection to an-
cient measures. The electrometer, the calorimeter, the pho*
tometer, the eudiometer, to say nothing of many others, are in^
ventions of our day. Does justice require less precision than
chemistry ?

We have already seen, that, in the ordinary intercourse of life|
nothing is more common, than for men to express the degree of
their belief in a particular fact, with the most rigorous precision.

The love of justice is not a sufcciently powerful principle, with
the great mass oif mankind, to make them bestow on it an equal
degree of attention with that which they give to wagers and in--
surances ; but, if we cannot gain all that might be desirable, is that
a reason for neglecting a partial advantage ? or can it be denied,
that, by means of this scale, a higher degree of accuracy would be
attained, than has been known hitherto ? *

* This is not the first tiiae, that the attempt has been made to denote psycho-
logical, or moral qaalities by numbers. In a work on painting, M. ae Piles
made use of this taetlK^d to anaoiuice his opinion of the different merits of cele*
brated painters. Suppose the qualities to be twelve in number^ and the de-
grees of each quality to be twenty, you have twelve scales, each containing
twenty degrees, arranged in columns, and presenting a XKMD^Mjratlve table..

This original idea has given birth to many imitations.

u

A tJiBATISB dlf

But it is necessary to examine a specious objectionj which may
be started here. ^* A witness/' it will be said, *' may take advan-
tage of this instrument^ to represent his belief at too low a degree,
and thus diminish the proving power of his testimony, contrary to
the truth, and yet without danger to himself. Had he put it on the
fake side, the falsehood would have been discovered in the course
of the proceedings, and he would have incurred the pains of law.
But by placing his testimony on thd true side, though at the bottom
of the scale — at number 1, when it ought to have been at the highest
degree— he strikes out nine-tenths of his evidence, without any
danger^to himself; a diminution, which may turn the balance in
* cases, wh^re there are several witnesses on both sides.'*

1 answer, that, although, in such a case, the witness does put
himself beyond the reach of punishment, yet he will not produce
the evil consequences which he had in view. The counter-evi-
dence, which would have been sufficient to convict him of false tes-
timony, if he had placed his deposition on the false side, will be
sufficient to convict him of insincerity in placing it at the bottom
of the scale on the true side. This abatement in the degree of his
belief will have no corresponding effect on the total amount of the
testimony.

All that can be said on this point is, that, wherever a witness is ex-
posed to the influence of some seductive interest, no good effect is
to be hoped from this more accurate measure of the degrees of be-
lief, because we cannot reckon on a scrupulous adherence to truth
on his part.

^ But there is a great number of cases, in which thfere is no seduc-
tive mterest, no inclinatioi^ to dissemble, no repugnance on the part
of the witness to state the tnie degree of his belief. On the contrary,
he finds a satisfaction in it as a good citizen and an honest man.
. There is no stirer proof of sincerity, than the use of this scale. If it
gave the judge or the witness the faculty of increasing his influence,
the objection would be well founded ; but there is no danger in
leaving them the power to abate it.

^ Let us now consider some particular cases, in which the applica-
tion of this instrument would be of obvious utility.

1. More judges than one, equally divided. In tliis case, all goes on
the supposition, that the strength of their belief respectively is at
the saipe point, and in all of them at its maximum. If the instru-
ment were employed, we should perhaps find, that the strength of
belief was not the same in each, and that, instead of the apparent
equality, there was a preponderatuig strength of belief on the one
side 01* on the other.

JITBICIAL BVIDBKCIS. 45

2. Appeal When judges of appeal do not hear the witnesses
themselves^ on ^ question of fact^ or when there is room to presume^
as happens in reality, that a repetition of their evidence woold alter
the conduct of the witness, and change, so to speak, the colour of
their testimony, it would be extremely useful for the superior
judges to know, what was the difference in the degrees of belief of
the inferior judges.

3. Pardon. Sentence of condemnation having been pronouncedj
it becomes a question for the court, whether it should apply for a
remission of the punishment. One of the most justifiable reasons
for the exercise of this power is, that some doubt has arisen of the
guilt of the accused persons. This doubt sometimes springs from
information obtained after sentence ; but most frequently it exists
at the time in the minds of the judges. Their belief is not equally
strong ; and the divei-sity of opinion among them is manifest, though
the degrees of it& strength are not known.

Were it even thought unadvisable to adopt, as a rule of judicial
decision, the principle of judging according to the sum of the de-
grees of belief, and not according to the number of voices, it might
still be followed as a guide in pardoning.

4. Testimony of a skilled person. Whether the person of skill be
named by the judge or by the parties, it is evident that nothing can
be more favourable to justice than to put witnesses of this sort, en-
lightened witnesses, in a condition to express themselves with the
highest degree of precision which the subject allows,*

* I do not dispnte the correctness of the anthor's principles ; and I cannot
deny, that, where different witnesses have different degrees of belief, it wonld
be extremely desirable to obtain a precise knowledge of these degrees, and to
make it the basis of the judicial decision ; bnt I cannot believe that this sort
of perfection is attainable in^sractice. I even think,Nthat it belongs only to
intelligences superior to ourselves, or at least to the great mass of mankind.

of

distinguishing between two and three, between four and five, and even between
more distant degrees. I make the experiment at this very moment ; I try to
recoUcct, who told me a certain fact ; I hesitate ; I collect all the circnm*
stances ; I think it was A. rather than B. : but shouFd I place my belief ftt
No. 4 or No. 7 ? I cannot tell.

press in numbers, display themselves to the eyes of the judge by other signs.
The readiuess of the witness, the distinctness and certainty of his answers, the
agreement of all the circumstances of bis story with each other ; it is this
which shows the confidence of the witness in himself. Hesitation, a painful
searching for the details, successive connexions of his own testimony — it is
this, which announces a witness who is not at the maximum of certainty. It
belongs to the judge to appreciate these differences^ rathei* than to the witness

46 A TRBATISB ON

CHAPTER XVm.

«

AJIB THSaS CA8BS IN WVICK ▲ JUP«K MAV PBOITOUNCE ON A QUESTION OF FACT,
ACCONDINO TO HIS OWN ^NOWLNOOEi WITHOUT OTHBft SYIPXNGB %

Thb question stated in the title may appear singular at first
Bight ; the answer, which naturally presents itself^ is in the nega-
tive. A judge can pronaunce a decision on a question of fact^ only
in so fai^ as the fact has been established by writing, or proved by
witnesses^ and discussed in presence of the parties, and by the
parties.

Yet there are cases, in which this rule seems to adniit of excep-
tions. ^

1. When the judge has himself been a witness of the fact; when
the transgression, for instance, has been committed before his eyes
while sitting in judgment.

2. When no witness appears on either side, but th^ facts are
established by the express or implicit admission of the parties.

3. When the facts in question are too notorious to require a spe*
cial proof.

4. When facts, advanced by a party, are pronounced to be false,
on the mere ground of their extreme improbability.

Each of these cases requires a separate explanation.

himself; who would be greatly embarrassed, if he had to fix the namerical
amboDt of his own belief.

Were this scale adopted, I should be apprehensive, that the authority of the
testimony would often be inversely, as the wisdom of the witnesses. Reserved
men — mtn who. know what doubt is — ^woaid, in many cases, place themselves
ai inferior degrees, rather than at the highest; while those of a positive and
presumptuous disposition, above all, passionate men, would almosi believe
they were doing themselves an injury, if they did not take their station imme-
diately at the highest point. The wisest thus leaning to a diminution, and the
least wise to an augmentation of their respective influence on the judge, the
scale might produce an effect contrary to what the author expects from it.

The eomparison with wagers and insurances does not seem to me to be ap-
plicable. Testimony turns on past events ; wagers turn on future events : as
a witness, I know, I believe, or I doubt; as a wagerer, I know nothing, but I
conjecture, I calculate probabiJities : my rashness can injure nobody but
myself; and if a wagerer feels that be has gone too far, he often diminishes
the chanocs of loss by betting on. the other side.

It appears to me, that, in judicial matters, the true security depends on the
degcee in which the judges are acquainted with the nature of evidence, the ap-
preciation of testimony, and the different degrees of proving power. These
primciples p«t a balance into their hands, in which witnesses can be weighed
much more accurately, than if they were allowed to assign their own value ;
and even if the scale of the degrees of belief were adopted, it would still be
necessary to leave judges the power of appreciating the intelligence and mo-
rality oi the witnesses, in order to estimate the confidence due to the name-
rical point of belief at wbicii they have placed their testimony.

These are the dilfioulties which have presented themselves to mea in neditat-
log on this new method.

JUDICIAL EVIDBNCE. ^

. ♦

1. When the judge l^as been a direct witness of the fact. What
more can he desire for his belief? Would not any other testimony,
leave more doubt on his mind than his own ?

This observation would be decisive^ if he had only to satisfy
himself; but his own belief would be nothing without that of the
public. It is not enough, that bis decision is just ; it must likewise
appear so. If the offence has been committed publicly, the whole
auditory supplies witnesses. Why then dispense with the regular
form ? There is neither delay, nor expense, nor difficulty in hearr
ing them during the sitting of the court.* '

If the offence has not been committed publicly, but mtraprivatos,
parietes^ nothing would be more dangerous, than to allow him to
unite the characters of judge and witness.

There are Qivil cases, |n which this power is not only without
dangers, but brings a real advantage. Parties are not agreed as to
matters or circumstances of mere locality^^ and the real evidence (o
be drawn from it. The judge may hear witnesses ; but if he can
^o thitheri and take the view himself^ there will be a saving of
time and expense^ as well as greatier certainty.

2. Decit^ions given on the admissions of parties. Here, however,
the absence of testimony is more in appearance than in reality. The
admissions of the parties are, in fact, testifnony under another
name.

When the admissiop is express, in so far as it is a declaration of
a party against his own interests, it takes the name of cor\f€8swns
it is not only a proof, but in general the surest and most credible
proof; it being always uinlerstoqd, that it is not to affect the inte-
rests of a third party.

When the admission is not express, it is of the nature of circum
stantial evidence ; 'silence, for example, non-appearance, flight, &c.

3. Decisions founded on notorious facts. Much precaution is
requisite here. What is notoriety? This is a difficult question
to answer. Where is the Une of demarcation between a fact suffi-
ciently notorious, and one which is not sp } And even if the genera]
belief should be sufficiently established in regard to such a fact, will
it be equally so in regard to this or that important circumstance of
the same fact? What one holds to be notorious, is it notorious to
another ? May not a fact, which the plaintiff considers as notorious,
appear doubtful to the defendant, and even to the judge ? The

* Thus the French code of criminal procedure (Art. 181^ empowers coarts
of jnstioe to decide, without separating, on offences committed before them,
within the precincts, and during the sitting of the court, bat Mways by hearing

48 A TREAtlSB ON

word notoriety U justly suspicious in judicial matters. It is a pre-
text which has been too often used^ when there was no proofj or the
proof was too difficult

Tber^ are cases^ however^ in which the facts are so notorioiisf,
that the adverse party dare not deny them, without exposing him-
self to the imputation of bad faith. To save expense, vexation,
and delay, the party should be required to declare, that he admits
these facts to be true. Shame will prevent him from refusing this,
declaration ; but it should be matter of rule that it \>e called for.

In fact, when there is no doubt on either side, of what use is it
to oblige facts to be proved ? Why not substitute admissions for
proof? All this belongs to systems, which have other interests in
view than tliose of justice.

4. The improbability of a fact may be a sufficiept ground for
rejecting it, notwithstanding the testimony in its favour.

For example, it is deposed that a man has entered a room closely
shut, by passing through the key-hole.

Can the judge refuse the testimony, and send the case out of
court? Doubtless he may. But let us examine it more closely.^
His negative decision, which appears to be founded on no testi-
mony, is on the contrary supported by a mass of notorious facts,
by a sort of universal counter-testimony. I reject you, says the
judge, because you advance a fact incompatible with the best esta-
blished fects ; m sending you out of court, I only pronounce the
judgment of the public, which accuses you of imposture or imbe-
cility.

I do not mean to say by this, that there are not cases in which
the better way would be to hear the witnesses, and to examine
them in the severest form. It is possible, they may all have agreed
to tell the same story ; but the examination will bring out clearly
their incapacity, their madness, or their knavery. If they are im-
postors, they will immediately be disconcerted and contradict them-
selves ; if they are dupes, the fraud and juggling, which hait been
used to deceive them^ will be discovered.

JUBICIAL KVn>BKCB« ^

BOOK 11.

OF THE SECUBITIBS AND GUARAKT*5ES OF TESTIMONT^

' r

■^*»^y ■ ■ ■ 1 ■ » « I

CHAPTER I.

aiODHS or TIUNSORESSION IN TS8TIM0NY*

Although all the modes of transgression in testimony are well
known, and nothing new can be said about them, it is not the less
necessary to mark them distinctly, because they are the fonndation
on which the legislator has to construct a system of precautions;
but, in this path, as in many others, though the dangers are easily
discerned, the means of obviatinsf them are by no means so clear.

To lead to a good decision, testimony ought to possess two quali-
ties ; it ought to be accurate and complete — to contain nothing but
the truth, ahd the whole truth ; that is, a just representation of all
the facts essential to the case*

Testimony may be inaccurate in two ways; i. By posUioe false-'
koody when the witness affirms a fact which did not realty liappen ;
II. By negative falsehoodj when he denies a fact which reatly'did
happen. In other words, testimony is inaccurate by fhlse affirnia-
tion, or by false negation.

Testimony is incomplete, when it does not state some essential
fact, which really happened; false by omission.

In every case, the transgression may be innocent or blameable :
innocent, when it is not intentional: blameable, when the witness
is conscious of bis fault, which implies, likewise! tbat he knows
the importance of his transgression, that is, its probable influence
on the issue of the cause: his transgression then assumes the cha-<
racter of lying.

Eiut even simple error is not blameless in cases where the wit-
ness might have avoided it, had he bestowed on his testimony Oxht
degree of attention, which he was bound to have given. This want
of attention may arise from two causes; from indolent or presump-
tuous carelessness, or from a concealed motive, which, without his
being aware of it, turns him aside from seeking out the triith.

Transgression, when not accompanied with bad faith, is ascribed
to rashiiess, and the testimony resulting from' it is an imprudent or
rash testimony.

If .A naamsB tm \

To these deviations from what constitutes good testimony^ ano-
ther must be added^ — indistinctness.

Indistinctness may be the jeffegt of incApacity, ignorance^ or pre-
cipitation J but it is lilcewise tlie most ordinary resource of bad
fftith. ^n^ WPpg i*^ surest means of success.

Tnere are cases, in which an indistinct deposition inay have the
^effect of a false statement, leaving in the mind- the same idea that
a false assertion would leave. But generally, it is only a mode of
evasion : the witness has recourse lo it^ 5^^^ ^^ ^^Y speak without
saying any thing, and without being exposed to the dangerous im-
pressions, whiclit total silence would produce to his disadvantage.
If. Ay here, written documents are concerned, the success of ^ndii-
^nct language depends much on the largeness of the mass. .|nF§
i^ngfle Pibrase, if it be ya^e, obscure, or unmeaning^i the defeat i§
imm,^diate)y felt ; biit as the volume increases, its tran$par€^c7
dimiaishes ^ and as mental labour beoomes more difficult, in pro-*
poEtjion as it is prolonged^ the creator of this chaos, may lM>pe, that^
lafs^tude will crush the power of attention, and no ray be ableto
penetrftte this mass of darkness.

] The.gi^at. art of evasion cannot exert itself successfully, except
in written language. Examine viva voce^ and the most cra&y will
not be ^le to go on longf be is stopped at his very first attempt;
b^ Uno)} allowed to weave the web ia which he intends to conceal
pimself j iC he persists in equivocal or obscure language, he^befrays
^i^ bfi^/^^b^ ^^^ bis evasive answers turn out more to his disad-
vantage, than silence would have done. . . ;

Practiifal JlesuUs,

. p^ these rfoi^r modes of transgression (false affirm ation^ ials^ a^-
^Qj},. o^)i8fiion, indistinctness), there is none which may not.be
copnutte^ ]^ « witness of good faith, as well as by one of bad faitl|u
The diatuiotion between good and bad faith is no less essentifd ii^
^[^gBrd to the pxactical resulted

1. The guarantees are not the same in both cases. Suppose H^
T^es^ to.be ^ting witiii giKxl fiuth : t}ieB, the mode of examhia-
lAOii Q^ight; be very different ; much would be gained by aiding thf^
^ijtiiipss ^ suggestions, and leading him by the handj as it wei;?^ tft
gj^t at the moat accurate and complete testimony possible* Su|»pp^
^fjp l^> b^ actiqg with bad &ith: then, all these aids only fiuinis})
himTvith new means of deceit; be must be iaolatedj and left tg
^OfBsdf I &e questions put to him must be as naked and unexpected
4% I!^I4% f l»at the work of inventmn may be distioguisbabl^ ift
his answer, from the work of memory.

. 2; The'diffei^ence is stJU greater in regard' to putikhbeitt. Traas-
gres^iODvaccoinpaiiied by good fatb;does Hot admit of any ; accoin-
panied by rashness/ it may justify a pecuniary indemnification, like,
every sort df injury dcme to another ; accompanied by bad &ith^ it
rises to the rank of one of the most heinous offences^ which/ from
Bik assQciatibn of ideas very ancient, indeed, but, $8 we shall after-
wards isee, very ill founded, has received the name of perjury,* >
' When the tfaiKgression is accompanied by good faith, there is:
no evil Will to be combatled, no diifficulty tb be overcome 5 tlie ne*>
bessary precautions are confined within a narrow compass. In the
case of bad faith^ there is a perverse will acting in opposition to the^
law; a Will originating in a fi'audulent intention, a WHt which mustr
be attacked with all the force possible, and against Mrhybh ther
greatest force will be found but too liable to be unavailing.
. .If tt^ legislator^ standing at isuch a distance from individual'
eases^ could draw a line of separation between honest and dishonest
witnesses, his task would be very easy. Unfortunately^ this demar-'
catiod is impossible. He can say, such a man will piV)bably be of
bad faith) as In the cas6 of an accomplice; and that such another
liHIl probably be of good faith, as in the case of ah official witness ; f-
but there is no certainty. He must adopt the same precautions-
towards all, or give some latitude to the judge, who may then, fi*om>
iiis particular knowledge of each case, adapt his conduct to the
circumstances. >

\ A^ the legislator, in the position in which he stands, cannot say of
any one, that his testimony will always be free ft*om bad faith ; so'
there is none whom he must not sufeject eventually^ sooner or Iliia*,'
to all the guarantees which can secure the faith of testimony.

" ' ^ CrtAFrER II;

I" . , •

OF 'THB Ac9nmt& OB aUABANTBBS, WBI6B BBKOBB TBSTXMOXV WOBTBT

OF CREPIT.

In oral testimony, what means are to be employed to obtain
for it the highest possible degree of confidence, and reduce to the
lowest possible degree of efficiency those caijses of deception, which*
might lead justice into error? f his is the problemj which we have

io resolve.

' • . • . ■ ',.'■■■- . • . • • ■ I

t - • ' ...

' ♦ This term has been bftnished from the IPrench pend code, but it still exists
in all other systems of jarispnidence. . . > '

i t T&at is, a person iavested with a pnhlic e^aracter. -

e2

52 A TRBATISB ON

The perfection of testimony lies in its being dccuraie and complete.
But these words are not to be taken in an absolute sense. There
are true facts^ which are of no importance to the case ; omissions^
which are entirely indifferent. Theise two qualities relate only to
facts^ which might have an influence on the judgment.

Testimony may be accurate, without being complete. In this
case, accuracy, instead of being J^ reason of security, may have a
hurtful tendency ; it may inspire the judge with a degree of confi-
dence in the whole testimony, which is due only to a part of it.

Suppose a witness who has two facts to state, of the nature of
circumstantial evidence — the one, if considered alone, decisive for
the plaintiff-^the other, decisive for the defendant — and that the
witness, from situation or character, is disposed to answer accu-
rately to the questions put to him, and nothing more. When ex-
amined by the judge, it so happens, intentionally or inadvertently,
that the questions put are only such as draw out the facts favour-
able to one party. The consequence is self-evident.

Suppose the questions to be put, not by the judge, but by the
plaintiff alone, or by the defendi^nt alone, it is to be presumed, that
they will bring out the facts favourable to the examining party,
and that the facts favourable to the other party will not be brought
out.

These two qualities, then, — accuracy and completeness — are of
' equal importance, and constitute the essence of good testimony.

There are other qualities, which I call secondary, because they
are only means to produce these two primary qualities. I shall first
enumerate them, then take them up in detail.

Testimony should possess, as far as possible, the following cha-
racters. It ought to be,

1. Responsive; that is, obtained by questions put to the witness.

2. Particular; that is, special, individualized, circumstantial, so
far as the nature of the thing requires.

3. Distinct; nothing ambiguous or equivocal, either in the order
of the facts, or in the expression.

4. Given with reflection ; the witness should be allowed the time
and assistance necessary to recal the foots, and to state them without
precipitation. \

5. Unpremeditated; that is, produced by sudden and unforeseen
questions; but that testimony should be unpremeditated, appears
incompatible with its being given with reflection. We shall see,
how far they can be reconciled ; it is one of the great difficulties
of the judicial art.

6. Not suggested in an undue manner ; that is, the witness should

JUDICIAL SVIPBNCB. 63

not be aided and led in bis answers by suggestions^ which put khn
in the way of deceiving the judge.

7* Atmted ly alUnoable suggesiions ; that is^ by questions, whose
only aim is to assist his memory. These two rules oppose each
other } we shall see, how they can be reconciled, or in what cases
the one should be sacrificed to the other.

These are the intrinsic, or vitemal qualities, which constitute a

testimony worthy of credit. Let us now see, what are the legislative

or judicial means — ^the external means— which will operate to make

the witness fistithfiil ; that is, accurate and complete.

L JLegal punishmeni, in the case of testimony intentionally
false.

2. Shame; arrangements destined to inflict on false testimony the
pains of the moral sanction, characterized by the words, contempt^
dishonour, loss of esteem.

■

3. Examinatian; power given to all persons interested to put all
pertinent questioijs to the witness.

4. Counter-testimony ; the admission of all testimony opposed to
the first.

5. Record ; the writing down of the oral depositions.

6. PuUidiy ; arrangements intended to increase the number of
persons acquainted with the oral deposition of the witness.

7* Private examination; in those cases in which it may be proper,
that the depositions be taken secretly, or before a limited number of
persons.

These are the internal and external securities, or guarantees of
testimony. Let us proceed to examine them in detail.

CHAPTER m.

THE IMTB.RNAL SECURITIES.

1. JtespoMwe nitimany.

A MASS of testimony, brought out by interrogatories, will almost
always differ in substance, as much as in form, from a testimony
given spontaneously, by the same person, and on the same occask>n,
but Without the assistance of this obstetrical operation. It thus
bears a character of internal security, which it would not otherwise
possess.

It IS by the interrogatory, and by it aloQ/e, that a vagtte testi-
mony can be rendered particular, and surroipded by all the cha-
racteristical details 5 it is by it, that an indistiQct testimony can be

$i A msATUB on

mndto^l psedisQ, add brought forth from all the dlduds^ Willi wbidi
it was enveloped.

' ii is by' proper qm^idliSj put succcsdvely, by adversaries Und
friends, %\\at testimony becomes accurate and complete. It is by
•the happy use of this instrument in able hands, lihat the witness^
who intends to deceive and to disguise the truth, is led on to diis^
.'clote his own fraud, attacked by unforeseen questions, whiith he
iBiist onsweir on the spot, under the pain of betraying lunuelf by
bis silence, as much as he would have done by bis contradictious;

2. Particular. ■ /

Under the head of particularity ^ two things are comprehended,
'^ndividualizirigj attd circumstantiating; two things intiniately Con-
tiected, but yet distinct.

So long as the fact is otherwise exposed' to doubt, a recital by h
Hvitness is never sufficiently particular to be the foundation of a
decision, until the &ct has been individualized ; that is, fixed and
Sfeircumsoribed in regard to time and place.

Titius killed a man : such a statement is not yet a proof, though
it were repeated by an hundred witnesses, all alleging themselves
to havi^ been ocular witnesses of the fact ; it would not be a suffi-

r

cient ground for' a judgment pronoitncing Titius guilty of homicide,
titius killed an Englishman or a Frenchman, a young man or an
old itoah, a tall man or a little man; a specificatfoh of this nature is
still insufficient. Titius killed Sempronius; this is a great step
Made, but still the eiid is not gained. When was the deed com-
mitted? in what yeai*, in what month, on what day, at what hour^
in what country, what province^ what town ? in a house, or in a gar^
den, or on the high way ? Till these questions are answered, the
fact is not individualized, and so long as the fact is not individual-
ized, the proof does not rise to the level of direct evidence; it is
still vague, and bears only the character of circumstantial evidence.

Quis? quid? ubi? qoibusauxilius? onr? qadinodo? qaando?

The fint two questions individualize the fact, the other five eircum-

$tanti4teit.

. CircumiM;ances are just so many criteria, by which, supposing the

>teRtimony false in some points, the falsehood will be detected.

Hence, <iie more circumstantial the testimony is, the greater is the

security against error.

Spedal partfculan^are all such as belong and are'p'ertlnent to khe
-object to which the testimony is directed; they tend to show, that
'4fie&ct.in questtou belongs to that species of faets, to which the law

tes Mbted such' mmI JBttch ooti8e(|Uefi6«6 j tbfc iKtfi(lli»^ 4lil»«ftiiy
oDghttiot ta^mft them, if tbe]^ oecul^ to hid theiti0i'jr« - ' > . • ''

CirodmstBiidal piirticulai*s^ considered as diBtiliGtifrMti'thd pi^
<de4ifif> are thoB% which hi themselree ate fcMr^igft td. the^objM in
't}ue8tloti, but \^hiok, tke^ertheless/ may serve as tt'critMidii'<rf^'tlfe
veradtt^ or a^^rlicy of the witness. Let us fllnstrat^ %his ^dlkiaeU
tion tiy'an example* ... • i ■ s)f !

• het u& take the oasa of Sutinna and the two eldeira; < UiUMt* thfe
head of -special and individual particulnrkieSy are t(9 b^^ihded all
the circumstances which the false accusers had invented« as fitted
to produce iti the mmds of the judges a belief in the guilt of the
Woman whom tbey wished to ruin. • '' * . i -MA

. Bat, as a test of their ^veracity, Daniel^aggiei^ed'a ^vit^i&6vL46tiii9^
bn a ciroaBfi0tancey which, considered Jn itself, wai^ (btyit^ (6 thb
gttbjeot > Setting out ftom the supposition,- that the (»Kme bad %e^
comoillteii tinder a iree, and that in the' scene of tlie-stippOseH
transaction there ' were different species of treses; h^aslks('th<^ ISliib
witnesses,^ what speeies of tree it wa9, which had lent its sbaile'tb^he
eulprits. l%e witnesses, being examined in Bucfi a way as^io^!r^-
y^t^them ftom bearing each other,, and concerting their repiy^
named different species; and by this contradiction, lil so |)lain k
lac t, disdk>8ed the falsehood of their testimony. : ; • *^

That the fhct had taken place under a tr'ee or dsirivh'e're^ <6r
under this or th^t speeies .of tree, vi^ere fiicts altogether fordgtl ^
the crime ; but, by the contradiction of the witnessi^s, they accil
^teiitaliy beeaine . special circumstances, whidi served to chara£t^7
rize the fraud. ^ ' '

3. Distinct t

.Distinctness* of expi'e^sion i^ ^ negative qualityi .r^rearaled^
like health, under a positive form j health, in our phy»Mjal»sy$tiBittl
is the . absence of disease ; distinctness in tf stin^io^ ^ tbe^ahsedoe
of that defect called indistinctness pr confusion^ . It isi.toh^'ob^
^erved, that it principally affects written testimony ; for, mmvH tioei
testimony, the moment qonfusioa appears, it igi popped f: the fiAst
obscure word brings on , explaimtions ;. equivocal .expressibnBalil
cleared up,^ and the witue^ is in a manner compeUed :to makjeibi^
self clear and intelligible. f . . . ,1 •. >

^ So long a$ a ma^ of testimony is indi^inet^ it is neither geiiei*al

k «

' , .. . ■■■■■*• ■ ■ In n I > *.■■ itpiii »|i» » >1 I t | | l I » H H mmmm^^^m I " rf J ■ ' » *■ ■ < ^ I f

> * I . • i I . ■ ' . - • . 4 ^

,* J^<6l^, OB iiAldi:M. Bniaaat, aftdt ^vin^ tfte WoiA kitUke oiikin^t' a»iiW-
ne$9, jemarks, *' I could oot ventare to S9^ dktinntUU*' ', IHieJinaidilaiVaagli''
is remarkafolj Inferior to the Ekiglisti'ia abs^act termSi'*^ Tr. ,, ,)

t See Chapter I. of this Book.

jn«r.{MM;fici)i«r $ neither tini^e nor falser Till it has been sHyeeted to
that process^ by which alone it can be ascertained whether the in-
d]^tinctne08 proceeds from artifice, or from natural weakness of
iinind) nothing can be concluded from it. Indistinct testimony is
yfQt»^ tbaa. false testimony^ or the absence of all testimony ; for
iii^sehaod.inay often lead to the discovery of the tntth, and the si-
lence of a witness may give very useful indications ; but indistinct
j;e^timpny, till it is secai.that it is inientional, and theretee eqqiva-
i)gqt tQ^foiepc^, can lead to no conclusion.

4,5. Given with reflection, and unpremeditated^

At first sight, these two qualities are in direct opposition, and
mutually exclude each other. The^time, which ought to be given
.for xeflficiion, may be employed in inventing ; the witness, instead
.of i:ecoUecting himself, to state true facts with order and clearness,
may tajce advantage of the interval idlowed him, to clothe them in
a specious disguise, or to combine facts utterly lalse.
, Hurry a witness, refiise him time to recollect himself, and you
may prevent him from making his testimony accurate and com^
plete ; give him leisure ^ to prepare his answers, and you nm the
risk of favouring his fraud.

The eoui*se to be followed in order to reconcile two things so
.little compatible, is, as I have already said, one of the great diffi-
culties of the judicial art. There are, however, some means of
separating t\^ good from the bad.

There is no man who has not felt the necessity of teoollectuig
himself, to aid his memory, in circumstances where the idea of de-
ceiving could not once enter his mind.

But as to the quantity of time necessary for this recollection, in
the case of a witness, there is, so to speak, no assignable limit. Is
?!itiU3 debtor, to Sempronius, and in how much? The answer to
ihis question, an answer given with perfect confidence and truth
on the part of the witness, may not require a quarter of a minute ;
faiU it may Ukewisift require a week, a month, a year. - Titius and
Seinpi^nius are both merchants; there are multifarious and com-
plicated accounts between them; there are transactions, which have
taken place in foreign countries. How much time is necessary to
enter into all these inquiries ?

I Here, and even after the testimony has been given, it may be
necessary to request time to correct the depositions ; memory sins
from forgetfulness and error. A jvitness feels, that his testimony
was inaccurate and incomplete j aod asks time to give a fiu'ther
testimony.

It was for cautiBgent cases of thb nature^ that tbe.erittiiiidprac'-
tice of most European countries made prdvision by tho^ modes of
proceeding, known it France under the name of ricoUemmi, and in
the law of Scotland, under that of repetition. It was a resource ;
but it was too limited.

6^ 7. Suggested, and noi iuggesied.

Testimony becomes more worthy of credit, when it bas been
aided by allowable suggestions, and not aided by undue suggest
tions. The object of the suggestion constitutes the difference.

These two qualities appear incompatible. We shall t>ee, in the
following book, what precautions ought to be taken to admit what
is good in itself, and to remove what is bad.

Let every one consult his own experience ; he will be convinced,
that there are cases in which his memory requires to be assisted by
that of others, not only without any fraudulent lntenti<m, but even
when this intention cannot possibly exist.

In false testimony, whatever is fidse is the invention either of the
witness himself, or of others.

' The inventor, whoever he may be, must have a foundation of
true &cts on which to woiic, as his materials.

To a veracious -witness, the knowledge of any other facts, than
those which occur to bis own memory, is of no u&e. Why ? Be-
cause all true facts agree with each other ; these facts, therefore,
being true, can never be contradicted by other facts, ^rtiicb are like-'
wise true.

To a £ilse witness, nn tbe contrary, the knowledge of all facts^
besides those be himself knows, is indispensably necessary ; his
fund of information can never be too great ; it cannot even be great
enough. Why ? Because every true fad, obviously related to the
case in question, is a shoal, on which, if he does not see it, his false
facts will go to pieces.

It is clear, then, thiat he has an interest to receive every possible
information on the &ct in question; the knowledge of every thing
true is useful to hifcn,. that he may adapt his romance to it; the false-
hoods, which oUiers may suggest, can be useful to him only in so
far as they are better adapted to his fable, than those which he
would have drawn from his own invention.

This is the true point of viewj in which the importance of unsug-
gested testimony should be regarded. The difficulty is, to prevent
undue suggestions, without prqudice to allowable suggestions.

This much is true, Aat, in every instance, there is a period dur-
ing wl^ich it is iittpossible to prevent a witness froq receiviog sug-

^BBlAdufrbai 4bithoiit$ it ig ^aily^ trae; tM <ifa#i'^ ts Ittia^er
'period at wbieh it it po^ible ta deprive 'him.' of i^ch oppoftuilitieij^
Bhd, cc^mequeiitly^ to put his testimony beyond the i^ach of this
isouret^ of deceit. . ' ......... > .

The precise point, at which this system of *pl<^($aiiittoH fliould b(^-
giit to be put in force^^ will he more distinctly piarked, when we
come to examine the interrogatory lihder ttie character of an exter-
.laal fieeurity. . ' •. ■ • •■• '. '

• r

ft I

CHAPTER nr.: ' '

OF THE FCNISHMENT OF FALSE TCSTIMONvl

I I »

, ' 0»:bU the gnarantees. which c»iiftribdti^:.t«i the. trtiA of tebti-
Itiony^ legal putiishinent is the strdngesf; itiis vbsolutely necestary
£a» Bdodryig the prepohderaiiee to tbe pvotebtifi|r metfares m llifeilr

contest against seductive motives. - « i' . i . ;

' 'Fake testimony may proceed feom anatohilintemt; tbafcis^ bne
produced by the hate and likings of the ndtnees U' op from an airtifi<-
ciai ihtenest, that is, one created by gifts/:promises, «if threats. The
^vitness is suborned or intimidated^ acp^rding ta the tmtui^ of th^
meams by.whieh he is induced to.yiblats the trtitih.'

.Theorime.of false testimony isL liable 4d variation^ liocordiiigid
the nature of the evU which rei^lts fitiai if»} it i^ \h fact, a scale jof
crimes more or Jess heinous. The famgui^ w ithe peny of thto fsils^
witness, can be as effectual an instrument of death, as poiswi er Ae
$if ord * but the ihlse witiiess^ in a matter tif fire jwunds^ should
not be put in the same ratik with him^ who eddangters ti»d lioiioinr^
the condition^ the life^ or the whole fortune of an itidivklttal. > ' <
V Sin^e' the offence may rary indefinitely, tke/^^un^hnient die«ld
be equally variable, that it maj^ be .pooportioBed tortbe heinousness
of the case. . ^

' The ^election aad theamouiub^ of t^e puhlsfamemt ' to be assigned
to these different offences^ do not ^ter into the plan of this worki
I shall on}y 8ay> i. That the ^unishraeht. should ImI applicable: tb
every ftlse aiteeirtioio> made ^ith the object (tf proeuring 16bs or gaid
toldther party; ii. That the punaishiii^t shotildl be apf^foable lb
the false allegations of the parties themselve?^ ik cMt case», as well
as .tQ;ihe false> jdepoiitions of external wftile8se$. It may be said,
ikideed, ttiat the lie told by ^ party reqfnives lio 9^eia) piinishiDent^
because it finda its naturid ptinishmeni; in tUt impresston^ which it
produeea oa the miiiUs of the judges:^ againi^ a etiiise scipported^by
fi^fldif]^^ Imtthisfieiar alone tvouU ti<rt be a svlkleatrestriint^

the pwxishm^nU . >

The alarm produced by this species of fr^ud^ commilted ia pulM>
1|C| add udder the eyqs • bf ai t^ibunal^ is iiot Grdmarihf so'gteal, as
tbe alfvrm produced by a fraud flofumUted clandestioely. WJieuia
plan of imposture is contrived against me alone^ in my privalkeiKfcy
I have no other defence than my own judgment; but in the case of
false judicial testimony, I know that i have the protection of my
counsel and the judges.^

It is not possible to frame a good li^ on this subject, without
laying down all its distinctions. .

A distinction must be taken betAveen false testimony in matters
peoal, and matters not penal. •- -<'

In mattfers penal, there is false testimony inculpatory, and eiconU
patcuy. .1

Thiere is inculpatory fabehood in relation to another^ and ineuU
patory fiilsehbod in relation to oneself. This laiter, improbable and
lare though it be, is not an ideal case. What is the incdnsisteney
or eztniYagance, of which examples are not to be found in human
nature? Beisides, the barbarity of criminal laws, the sufferingil df
torture or imprlsonm^njt, have often ted to false confes0ions.t -

In regard to exculpatory falsehood, whether In relation to anot
tber Of to oneself, it is equally natural and frequent. He, iiho
lies only in his own • defence, has the excuse of fear ; and though
iut lieft may be used to complete the proof of the bfifence, they
ought not to be made an aggravation of it.

It matters not penal, there are likewise distinctions to be takeii
lietween the species of fialsehdod. Th^y cannot be dearly stated^
without employing terms hitherto little used.

t l ". ■ • " i' ■■ . ■ ■ ■ " ' V ■' -■- ' .<. ; ^ ^ .,^^. y ii» I M ^ ■■ ■ — ff

* This observation seems to be opposed by another. The false, witness pa^
direct against me the whole force of the public aothority, while the priyate
'scoundrel can act against me only with his own individual resources. The
t^uthor, fh^eforci, h^s limited his observatiop by tl^e w^rd ordinarily,. - : < >

t See the Amaks dtjun»fru^nc£ et de LegUlatUin of Rosaiy No» d» wl^^^ t)ier«
is an account of a case which occurred at $erlin in 1800.

A oase of the same kind occurred at Dresden^ in 1821. A soldier, of thd
naine of Fischer^ wa9 apprehended on suf picion of having fobbed and niurt
dered Kiigelchen,* the most celebrated of the German painters of his day. The
court, believing that the prisoner denied his guilt from mere obstinacy^ con-
signed, him to a loathsome dungeon, to extort a confession* Ho he|4 out fo^.a
considerable time, but at last confessed. Before the sentence was executed,
etreamstanees came out, which directed suspicion against another soldier,
Kalkofen.^ The result of the new investigation, waa the clearest prgo^- of.
Fischer's innocence ; the other was broken on the wheel, find Fischer liberated,
free from all suspicion, by the very judges who had thought fit to torture him
into a falsiEi eonfeiaton. fio ^aidy that, he confessed, merely to be released,
oven by an ^Iyast exe«u^on, from the intolerable suffering!, of a mode of eoa-»
finement which preyed equally on the body.fMi4 tbo piind*-^^« ^ . . ...

60 A TftBATUB •N

' There. is constitutive and privative falsehood ; the first tending: to
confer a right which is not due ; the second^ to take away a right
which is due.

There is oneraiice falsehood, intended to impose an undue obtiga^
tion ; and exoneratwe falsehood, intended to liberate from an obli*
gation really due.*

CHAPTER V.

or THB PUNISHHENT APPLICABLE TO FALSEHOOD ABI8IN0 PBOIt BA8BNES8.

Wb have seen, that there is an intimate connexion between
perception and judgment ;t a connexion so intimate, Jjiat it is
often very difficult to distinguish between the sensation and the in-
ference drawn from it. When a man speaks merely according to
his pure and simple perceptions, he gives a direct testimony ; if he
goes further, if he proceeds on judgments deduced firom his percep-
tions, there is no longer the same security ; his testimony partidces
of the nature of circumstantial evidence, and its proving powers
will be greater or smaller, according as his judgment appears to be
more or less sound.

As there are cases, in which the connexion between the percep-
tion and the inference drawn from it is of an intimate nature, so
there are other^, in which it is not ; we can even conceive of them
as separated by all imaginable degrees of difference. Don Quixote
took the sails of a windmill for the arms of a giant; but judgment
may be erroneous, without going the length of madness; and we
may often be unable to conclude that the testimony is false, even
when the conclusion, deduced fronk it by the witness, is more than
suspicious.

Falsehood arising from rashness occurs in the two following
cases : i. When the witness, setting out from a fact which has
fallen under the observation of his senses, affirms the existence of
some odier principal fact, while his belief is founded on nothing
but the connexion, which he imagines to exist between the acces-
sory foct which he has seen, and the principal fact, which he knows
only by inference. I

• * See the ** Treatise on Legislation,'^ vol. iii. p. 302^ second edition.

t Book I. Cap. IX. § 3.

t For exampky a surgeon affirms, on inspecting a wonnd, that It has been
given with this or that instmment, though it be afterwards proved, that it was
inflicted in a totally different manner.

JUDICIAL STIBKNCE. 61

»

If the principal fact is proved to be false^ the inference is proved
to be false, and the testimony is &Ise from rashness.

Falsehood from rashness occurs, likewise, when the belief of the
witness is founded on hearsay, and that hearsay turns out to be false*

As the degrees of real or apparent conneximi between different
facts may be infinitely various, there may be many degrees of
rashness.

Why ought falsehood arising from rashness to be punishable in a
witness, when it produces the same effects as intentional lying ?

Punishment is necessary, as an inducement to the witness to fix
his attention on what is peculiarly his duty. If inattention, when
not accompanied by positive falsehood, were beyond the reach of
punishment, what would be easier than to throw off the burden of
conriderate reflection, and to give ourselves up to the carelessness so
natural to man ? We would be inattentive, whenever we had an
interest to be so. A nurse, occupied with her own pleasures, might
allow her suckling to die of hunger, and say, I did not think of it. It
is necessary, then, to have a motive to make us think^; and^ in so
important a matter as testimony, this motive can be nothing but
the fear of legal punishment.

It is very important to observe, however, that rashness is &r firom
producing the same alarm as intentional falsehood. Further, it
does not require so strong a menace to recall a thoughtless man to
the duty of paying attention to his testimony, as is necessary to ter-
rify an intentional liar. These are two powerful reasons for reduc-
ing the punishment ; and, in many cases, a reprimand by the judge
will be suflSclent.

CHAPTER VI.

R£ASOKS IVHY THE WORDS ^ MJ.SE TESTIMONY ' SHOULD BB SUBSTITUTED

FOB PERJURY.

Falsb testimony has received, in common usage, the appella-
tion of peijury. The first of these terms is the proper name of the
offence ; the second has been substituted for it, in consequence of a
factitious connexion between the act of deposing, and the previous
ceremony of the oath.

I say a factitiom connexion; for the evil exists, exists in all
its force, independently of the oath; false testimony ought to
be punished, even when no oath has been taken. To punish Paul
for a false testimony, which has cost Peter his life, it is no more
necessary that he should have taken an oath to tell the truth, than

6B) 'A TRKATISB OH

Ml JVfOiiU Im ndcessary 'liuit ht sfabuld prev^aiisly have taken an oath
not to commit assassihatioD^ before he could be punished for a direct
Burder.

. But in the practice of the gi*eater number of courts^ judicial'
fblsehood is pnniihed, only when^ by this casual addition^ it has
been converted into peijtny.
This has produced three injurious results.

« 1; The idea of the offence being transferred to the perjury^ sim-
ple lyipg has come to be regarded as a less heinous oflbnce, mid hor
^taishment has been affixed to it : this is a sort of virtual permis-
dtDA of ^fMse testimony.^

' 2. A false scale has given a false measure* The ceremony^
whieh constitutes perjury, being the same in all cases^ its prc^na-
Mon tyy a lie has always been considered as the same offence^-^a very
exaggerated notion. The evil resulting from false testimony may
Vaty infinitely; the punishment therefore ought equally tovary^-
Uiatit tnay be prop6i*tioned to the offence.f

' 3* Another accidental and unforeseen efitct has respited from:
it* • B^re a man can be punished for perjury, be must have con«
sented to the oath ; but sects have arisen, whicb^ from religious^
motives, refiise to take ikn oath : to compel them would be persecu-
tion ; to punish them for lying, just as if the oath had been taken,
wbuld be peHeotly reasonable ; but it would derogate from custom,
that oi*dinary substitute for reason < What is done } Tbete are
tribunals^ Which, in briminal matters, do not admit them as wit-
n^ses, . l^he public is deprived pf the benefit .of their testimony ;.
they themselves are deprived of the protection of the law, and left
exposed to injuries ; for, to the protection of justice, a condition is
attached, which conscience does not allow tiiem to fulfil.

♦ 4

CHAPTER VR.

OF SHAMfL

Thk natural feeling of shame acts as A security for the trwth of'
testimony^ when the witness has reason to apprehend, that the con-
teapt of an individual, or a dasa of Individuals, will be the conse~>
quence of any falsehood on his part. >

, • <• • • • r

■ ' ■ ■ ■ ■ ■ ■ I . . I ■- -. ■ . ■ — ^-^— ■ ■■ ..t . I..'... ■ * 'r- -■»

< / . » •

. * In English proceclnre Uiere are many casedi in which falsehood, not bearing
the character of perjury, cannot be punished, and may secure to tne delinquent
tfbaaaifest adtantage.

• ^ The French penal code has wisely established a gr$dati6n of panisbments,

according to the seriousaess of the e?ii that may arise from the false testi-'
mohy. .. , .

s

jvmtuju STUUBXCE. 68

in wcC rtspeeti BHmAA bus to advanttige mtx'legA punislatenli
The latter is applicable only to very mafked -teaiiBgn^BBiit^iis^ &bd
feqxuice9 fqrim oC pv(>c»dmef which leave the gailly/<lhe hope of
escape; i^ame.id ajipKcahle to every degree of tmnsgDesaon, i6
evasion?) to Bilence,. to the whole conduct of the witness. Shame is
fXk immediate. punisIuBieiit ; it begins with the offence iliself. :

. Xbta pqnishmetiC^ however^ implies a fbnd of moral sensibiiityv i
degree of probity^ ion the part of the witness* Nemi:^ digmtoH per*
$H0^p€^€iU Justice <is^ oft^n ttfolig^d to use i» witnesses a great
nuinber 0f, persons^ on: wliom shame. would have very little lioldi
If the witnesses oorme jfrom some distant district^ i£ they are n6t sur<4
rounded by persons of their acquaintance, in oases where they ba^^
fjinyjaterest in lylt^,: the restraint of shame wtU be altogether in-
sufficient. ' )

Shame, ^lowpver, has a powerful influence on the most numerous
claa^, Wi all ilijoeeiwjho.are not depraved. There have been tribu-i
nalS| in wbtoh there was no oatb> no legal pmiisbmenty in whieb
}ipnonr was the only seoiuity. of testimcm^^ i

Such, were the Danish, tribunals, . kijown under tbe name of
Bureaux de ConciUation: they obtained such general credit that
n^pre caused ^^t bi^ug^it before them, than hbfore all the regular
tril^finals togiftber. . ? *t

The feeling of shame depends much on the presence iof the ^>af«^
ties. One diieads tbe mdtion^ the^^^tttre, the took, the exclam'a-
|io«^.of trutbi wbitih is ready to proclaim the falseb<»d. It was to
this !k]iode;of taking the testimony viofjt voce, in presence t)f the par-^
ties^ that tbe Danish Bureaus de Conciliation were principally in^
^^ted fof their sucicess* But, to give this motive all the strdngtlf
^ wbiob it is eapable> Ihere must be publicity. Of that we shall
have to speak immediately. • >

• * * • ■

I ■ CHAPTER Vin. • '

..... . • • ■ ■ ♦

■ • «

OF THS fSXAMUlTAT^ON.

The mot-e evldeAt tiie importance of this operation is, tbe less,
n^cefe^ary dbes^ it s^eitf to be to demonstrate it. Why then take up
such a task ? The reason will appear but too manifest, when we
pass in review the numerpus icases^ in which judicial practice has
excluded this means of security.*
Its utility is evidebt . ih the case of a defendant of bad faith i tint

*' TUs applies paiticalarly to TSdons cases In English proeedare. - ^

64 A TB8ATI6S ON

as that may be the case in every individual cause, it is the one
which demands most attention.

Above all, examination is necessary to make testimony complete.
The fear of punishment and shame exercises its influence on wit-
nesses rather by preventing them from telling falsehoods, than by
inducing them to tell every thing. Punishment can reach a lie,
but it cannot reach real or pretended forgetfiilness. A man is
judged by what he has said ; it would be difficult to judge him by
what he has omitted ; to do so, it would be necessary to ascertain,
that the witness had received such and such perceptions, had pre*
served them in his memory, that they occurred to his mind, and
that he knew their importance.

It is by examination, and by it alone, that a witness of bad faith
can be driven successively from all his positions.

If an answer be true, it serves as direct testimony ; if it be false,
it is exposed to contradiction from within and from without: and,
as soon as the falsehood is detected, it operates as a proof of cha-
racter and disposition, and consequently as circumstantial evidence.

If silence, mere silence, be the result, it still operates as circum^
stantial evidence.

If tbe testimony be indbtinct, frivolous, unintelligible, this con-
fusion is equivalent to silence, unless it manifestly proceeds from
weakness of mind.

There is no imaginable case, in which the power of examination
can be absolutely indiflferent; not even where the witness is most
veracious, cfrcumspect, and enlightened ; not even where he has a
most direct interest in the cause. Examination is still necessary to
liruig out circumstances, the importance of which escaped him ;
and his own intelligence requires to be aided by that of a skilful
examiner.

In a word, without examination, every person interested in the
discovery of a truth is entirely at the mercy of the witness.

Can it be believed, that there are systems of procedure in which
testimony not fortified by this guarantee, is received, while the
same testimony, given by the sameandividual, would be rejected, if
he were present to answer ? Assuredly such forms of procedure
have bad in view something very difierent from the discovery of
the truth.

Section I. — Exceptions.

If tbe fidelity of the testimony were the only object to be attended
to, in no case would it be necessary to depart fi*om the method of
actual examination ; but, in several cases, there would be a prepon -

JUDICIAL BVIDBNCB. 65

derance of dangers and inconveuiences^ it cannot be made a general
rule.

!• The delay required for examination^ might sometimes occasion
irreparable loss ; when it is necessary, for example, to prevent the
flight, or a defendant from the country, the exportation of property
in bis possession, the abduction of a woman with criminal intent^
the destruction of valuables by clandestine or violent proceedings.

2. There are other cases, in which the advantage would be more
than counterbalanced by vexations and expense : for example, to
taltt an extreme case, if the ^ourt, which is to decide, sits in Loudon
or Paris, and the witness is in India.

But there ought to be conditions attached to this exemption from
examination; instead of being absolute, it ougfit only to be sus-
pensive. When the inconvenience ceases, the examination should
take placCj at the request of the party interested, or of the judge
himself.

In this case, the witness, who gives his testimony uninterrogated^
ought to be duly advertised, that he is still liable to a subsequent ex-
amination; and this notice should be printed ia the margin of the
official paper, in which be transmits his written testimony.

Section II.~- Who ought to be subject to examination.

Every person, whose testimony is received, ought to be subjected
to be examined on th&t testimony; and the reasons, which prove
the propriety of this measure, in the case of external witnesses, ap«
ply with equal force to the parties themselves.

Official testimony * furnishes a case, in which the necessity of
examination, in so far as security against falsehood is concerned, is
generally at its minimum, while the concomitant inconveniences
might be at their mcucimum.

But, unless an official situation purifies an individual from all the
moral and intellectual infirmities to which human nature is liable^
the exemption fi'om this obligation, founded on the holding of a
public office, ought never to be unconditional or definitive, nor
should it be allowed in cases involving a severe punishment.f

* The testimooy of persons in pnblle authority, heads of departments, gene-
rals, ministers, &e.

t In iheprojet of a military law proposed to the representative council of one
of the Swiss cantons, oflioers i^ere exempted from appearing before the court
Qsainst soldiers whom they accused, even in the most serious cases, ^nd their
charge was to be received in writing. But as soon as it was pointed out how
defective this sort of testimony would be, and how inferior the evidence result*'
ing from it, the article was immediately rejeoted. It would hate O^PStitutod
a privilege equally odious and dangerous..

<l^

A TRBATI8B ON

CHAPTER IX.

RXCORD OF THS DBP08ITION8.

Ought the depositions to be taken in writing ? In this Chapter
I propose to prove, that the practice is a most useful one; but it
leill be seen, in the following Book, that it ought not to be made an
absolute rule, and should be applied only to the most important and
least numerous class of cases.

The depositions of a single witness, or of a small number of wit-
nesses, may remain clear and distinct in the mind of the judge ; but
if the depositions be liiore numerous, if the facts be complicated
and contradictory, it is to be feared that they will form only a con-
fused and obscure mass, unless they be reduced into writing. The
substance of things often depends on words ; and if an essential word
h6 forgotten, or become a matter of doubt, or dispute, on what shall
the decision be founded ? Every thing depends^ at first, indeed, on
the testimony itself, but afterwards, on the permanence which
IS given to it. If the evidence has not been fixed by writing, it
l>ecomes at every moment more liable to be changed, or to be
lost; though accurate and complete as originally given, it soon
ceases to be so.

The utility of this instrument is not confined to the preservatipn
of the testimony ; it has a salutary influence . on the mind of the
witness ; he becomes more scrupulous in his deposition, when he
knows, that nothing will be perverted or lost ; and if such a precau-
tion be good, even in the case of an honest witness, it may be said
to be necessary with a witness of bad faith, or even with one who
is merely partial Passing words do not give a sufficient bold of
the Mse witness ; or, at least, they leave him to many chances of
impunity.

Written testimony furnishes, likewise, a strong security against
the errors or prevarications of judges. If nothing is permanent, if
all passes away in words, of what ^vail can be the remonstranges
of the losing party ? Of what effect will his complaints be, to
counterbalance the assertions of a public character, whom power
and authority invest with a factitious credit, independent of any
pof8<mal merit } But written depositions are a restraint on favour
and enmity.

This security is not less precious to the upright judge. If public
olamcmr be excited, if a cloud of prejudices or calumnies be formed
^gaiimtliimji bQ finds, in the recorded testimonies^ the meaps of re-
jiettiDg fiOseliood^ and of 4i0iipatiog error.

JUDICIAL SVIDBNCB. ^

The atility of written depositions is particuUrly manifes); in re*
lation to appeals.

If it were necessary, in every case, to begin with hearing all the
witnesses over again, how often may the evidence be lost by the
death, the absence, or the flight of one witness or aQother ! How
much expense an(} loss of time, how many vexations and incon-
veniences are inseparable fi'om the second production of the evi-
dence r

Let us not forget a collateral advantage, which results from the
permanence of depositions. The testimony given in one cause,
may prepare means of evidence for other^causes ; and, what is still
better, a fact well established in one suit, may have the effect of
preventing othev suits. The depositions always form a magazine
of materials iisefiil for comparison and reference.
» If, from these general observations, we turn to their practical
application, we shall find, that, in trial by jury, as established in
England, there necessarily are no vrritten depositions. The judge
takes notes tor his own use, to guide him in his charge to the jury ;
but in regard to the jurors themselves, there is no necessity for any
permanent record of the depositions on which their verdict i$
founded. A century and a half ago they were responsible for their
verdict, and there are several instances of rigorous prosecutions;
but the principle is now established, that they are exempt from all
responsibility.

Under the forms of proceding which the canon law introduced
into Europe, to write dovni the depositions was a matter of neces-
sity. The judge A., who took the evidence, did not decide on the
case. The judge B., who decided, had not heard one of the wit-
Qesses. He decided only on written depositions.

CHAPTER. X.

OP PUBLICITY.

■

Publicity is the most effectual safeguard of testimony, and of
the decisions depending on it ; it is the soul of justice ; it ought to
be extended to every part of the procedure, and to all causes, with
tbe exception of a few, which will be noticed in the following
chapter.

1. In regard to the witnesses, the publicity of the examination
awakens all the mental faculties which should concur to produce a
Aithful statement j particularly attention, sq necessary to r^coUeo^

f2 .

^

68 A TBSATISE ON

tion. The solemnity of the scene puts them on their guard against
thoughtlessness or indolence. There may be some, who are agi-
tated from natural timidity ; but this dispesition, which is never
mistaken, acts only during the first moments, and betrays nothing
un&vourable to the truth.

2. But the great influence of publicity is exercised on the ve-
racity of the witness. Falsehood may be bold in a secret exami-
nation ; it is difficult for it to be so in public ; it is even extremely
improbable, with any but the utterly depraved. When every eye
is fixed upon a witness, he is disconceited, if he has formed a plan
of imposture ; he feels, that the untruth, which he is about to state,
may find a contradiction in every one who hears him. A coun-
tenance which he knows, and a thousand others which he does not
know, disturb him equally ; and he imagines, in spite of himself,
that the truth, which he is seeking to suppress, will come forth '
from the very bosom of the auditory, and expose him to all the
dangers of false testimony; he feels, at least, that there is one
punishment from which he cannot escape — shame in the presence
of a crowd of spectators. It is tnie, that, if he belong to a mean
class, his veiy meanness saves him from shame; but witnesses of this
class are not the most numerous, and one is naturally on his guard
against their testimony.^ «

3. Publicity has another general advantage. A greater degree
of interest in this or that cause being excited, various means of
proof may be brought to light, which woul^ have remained buried,
if nothing had been known about the transaction. Nay, it has
often happened, that individuals of the audience, who were ac-
quainted with some fact relative to the depositions, have given
usefiil information to the judge. This is not always done directly)
the individual speaks to those about him ; he is fond of appearing
to know something; and in the small circle there is always some
officious person to be found, who informs the judge of what he has
just heard, and brings out an unexpected deposition.

4. The publicity of the proceedings may have another veiy salu-
tary effect — ^bv creating a public spirit in relation to testimony, and

• Besides, in this class, meanness of condition and ignorance go together. -
With the exception of a few individuals, endowed with a degree of natural
sagacity altogether uncommon, these men are in no condUion to contend with
advocates and judges of even moderate ability. They have no different readings
to the lesson, which the suborner has taught them. Frequently, in order to
extort the truth from them, or at least to confound them, nothing more is ne-
cessary, than to place the thing before them in another light, or to put an un-
foreseen question. We are eonvinced, that the publicity of proceedings dis-
courages suborners. They must be afraid to expose their man to so many
^ctators, so many attacks, sO many powerful moral irapressions.-^liaiiti

JUDICIAL BVIDBNCB. 69

forming the education of individuals on this essential point. Dis-
cussions on judicial matters then enter into the course of ordinary
ideas ; and the public becomes accustomed to take a deeper interest
in their result. The nature and rules of testimony, the different
species of evidence, and their different degrees of proving power,
become much better known, even in ranks of life where we would
least expect to find them.*

The effects of publicity are at their maximum of importance,
when considered in relation to the judges ; whether as insuring
their integrity, or as producing public confidence in tlieir judg-
ment^.'

« It is necessary, as an exdHement tp them, in a path full of painfiil
duties, requiring every faculty of intelligence, and the greatest
mental activfty, in which every day of relaxation is a triumph for
injustice, and a prolongation of suffering to the innocent.

It is necessary, as a restraint upon them in the exercise of a
power so liable to abuse, l^hey have defects and vices, which must
be guarded against. The defects belong to the character, ai^ pub-
licity does not change them ; but a judge will be much more
cautious of giving himself up, before a numerous audience, to im-
patience or ill-humour — to that despotic conduct, which intimidates
counsel and witnesses — to thosci partial views, which flatter one of
the parties and humble the others. Under the eyes of the public,
he will form himself ^to act with dignity without haughtiness, and
to follow a system of equality without meanness. But whatever
may be the effect of publicity on the external behaviour of the
judge, it cannot but have a salutary effect on the justice of the de-
cisions. There is a continual appeal from his tribunal to that of
public opinion. The spectators are so many witnesses, interested in
watching all his proceedings, and weighing all his words. How
can he escape these suspicious and vigilant observers ? How can he
venture on tergiversation in an open path, where all his steps are
counted ? Even though he should have injustice in his heart, he
would be just in spite of himself, in a situation where he can do
nothing without furnishing proofs against himself.

What could be substituted for publicity ? Appeals, and rigorous
laws against partiality in judges ? They are necessary, no doubt;
but consult experience: every where these means have been

* In EDg:land, I have often beard men of this class discuss the decisions of
Gonrts of justice, distinguishing between direct, and real and circumstantial
evidence, and displaying a degree of knowledge on these points, which is not
to be found in the upper ranks of society, in countries where the courts are not
open to the pablic.

^b A TRBATISB ON

lavishly applied, and every where Vith little effect. What is the
t}se of these appeals and punishments ? They are melrely a notice
givea to the inferior judge to stand on good terms with the superior
judgCf . Now, the way to . stand on good terms with him is, not to
administer justice w^ll, but to administer it in the manner most
agreeable to him. Political complaisance becomes the first of vir-
tues. But the only way to stand on good terms with the public is,
to administer justice well; the suffrage of the nation is to be pur-
chased at no other price.

The esprit de corps will always render the punishment of a col-
league painful to his superior. The pi^lic have a natural sympathy
with the oppressed : but men in place are of another species, and, in
spite of personal enmities, have always a sympathy with one another,
whenever the maintenance ojf their authority jg in question.

Besides, what end does it serve to appeal from a judge who may
be partial in secret, to another judge who may be partial in the
saine way ? Make the proceedings of the first public, and you do
not require the second ; leave the proceedings of the second secret,
and he gives you little more security than the first.
. And what is it, that, in an appeal, is carried before a higher court?
After all, it is only the skeletoft of the proceedings. The soul of
the inquiry is to be foupd only in the sittings, where the witnesses
and parties appear; it is there, that the inflexions of the voice dis-
clpse the sentiments of the heart, and the movements of the coun-
tenance paint the state of the soul. The audience is the true^court
of appeal, in which the decisions of the tribunal are judged and esti-
mated according to their real worth. What a higher court could
never do but imperfectly, und with much. waste of time and ex-
pense, is performed by this great committee of the public without
delay, without expense, and with incorruptible integrity ; for th^
integrity of the people, which springs from their interest, presents
the strongest of all securities.

Or shall the eye of the sovereign take the place of that of the
public ? This is just to ask, whether the prince could find leisure
to review every process. I say nothing of court interest— of the
danger of partial favour — of the improbability of a minister, who
has appointed a bad judge, avowing the error of his choice, by in-
flicting a disgrace, which would rebound upon himself. fFho shall
keep the keepers ? is a question that perpetually recurs, till you trust
to the nation itself.

In the last century, we saw Frederick of Prussia, and Catherine
of feussia, apply themselves, with the most laudable zeal, to reform
the courts of justice, to banish venality, to superintend the judges.

JUDICIAL &VIDBNCB. ^l

to demanci an account of all matters of importance^ and to punish
manifest partialities. Their vigilance produced little effect ; their
good intentions were disappointed ; nay, their interposition itself
was not without inconvenience: Why ? Because they did not admit
publicity into their courts ; and without it^ all imaginable precau-
tions are but cobwebs.

If publicity be necessary to insure the integrity of the judge^ it
is no less so as a foundation for public confidence. Let us suppose^
in opposition to all probability^ that secret justice were always weU
administered; what. would be gained? Almost nothing. There
would be integrity in the hearts of the judges, but injustice would
be painted on their foreheads. How could the public give the title
of just, to men following a line of conduct, by which injustice alone
can. gain, and integrity can only lose ?

The principal use of real justice is to produce apparent justice.
Now^ on our present supposition, we should have only real justice^
whose utility is limited; we should be without apparent justice, th^
utility of which is universal. The root would be in the earthy but
no fruit would come forth. The scholastic maxim, De non aj^pc^
rentUms, et de non exUtentibus eadem est ratio, would, in this cascj be
folly verified. ,^ . .

Facts are in complete accordance with these principles. Tribut
nals have always been odious in proportion to their secrecy. . The
Fekm Gericht, the Inquisition, the Council of Ten^ blighted the go-
vernments which adopted them. Perhaps a hundred times more
crimes have been imputed to them, than they really committed ;
but the partizans of secrecy are the only persons, who can haye no
right to complain of the calumny. However rigorously they may
be judged, it is impossible to be unjust towards them. Observe their
own maxims. When they have before them an accused person,
who labours to conceal his proceedings — ^a litigant, who wishes to
put a deed clandestinely out of the way — or a witness^ who is qn^
willing to answer ; they never fail to deduce from such circum^
stances, consequences very disadvantageous to him. Innocence an(jl
mystery never go together; the man, who seeks c<MiGealment> is
more than half jponVicted. This is the principle on wMch they act*
Why not use it against themselves ? Does not their conduct pre**
sent the same symptoms of guilt ? If they were innocent, would
they be afraid to appear so ? If they have nothing to fear firom the
public eye, why wrap themselves up in (darkness ? Why converjt
the temple of justice into a cavern as secret as a den of robbers ?
If they meet with undeserved reproaches, what right have they to
complain ? Is it not always in their power to put a stop lo them ?

72 ^ A TRKATI8B OH

I can scarcely conceiv^e, that judges should be founds who, in the
exercise of such rigorous functions as the judicial are, can roluntariljr
deprive themselves of the mighty support of public opinion ; I can
scarcely conceive, how they can dare to use such language as this :
" Trust blindly to my integrity ; I am above the reach of tempta-
tion, or error, or weakness ; I am my own security ; repose im*
plicit faith in my more than human virtues." The true honour of
a judge consists in never demanding a confidence like this, in re-
iusing it even when it is offered to him, in putting himself above
suspicion, by cutting off every cause of suspicion, in placing his
virtue and his conscience under the care of the public voice.

How is secrecy in judicial proceedings justified ? The only spe-
cious defences of it, which I have found, are in a work published
in France by M. Boucher d'Arcis. The following is the amount of
his objections.

1. " Public procedure gives up to public contempt a man who
maybe unjustly accused.'' This may happen, where the charge
relates to immoralities of a certain kind ; but the danger is easily
obviated, by an exception to the general rule. In all other cases, as
soon as the injustice of the accusation is demonstrated, the accused
meets with nothing but compassion and respect.

2. ^^ Miscreants are enabled to make common cause, to rescue
the guilty from the hands of justice." This event, improbable as it
is, cannot be prevented by secrecy of procedure. If the conspira-
tors endeavour to carry off their accomplice, it must be attempted,
either between the place of arrest and his prison, of between his
prison and the court where he is tried. But in court the judge is
too well supported, to have any such attempt to fear. There h^s
been no example of it, even in England, where the courts are not
allowed to draw an armed force around them.

3.' ^^ Publicity gives notice to the accomplices of the culprit, and
thus furnishes the means of escape." Have they not received
this notice already by the arrest, and consequent; disappearance of
their comrade? Moreover, however much we may suppose the
courts to be frequented, it is not to be presumed that they will be
much haunted by malefactors or their friends. A court of justice
is not the place, where such persons feel at their ease; the ideas^
which eveiy thing about it awakens, have more terror than attrac-
tion for them.*

I - ■ Ill .11

* Another fear entertained is, that accomplices, learning from the pablicity of
proceedings the coarse of the discussion, and the means of proof, -wodld not
only suppress what might serve as evidence, but would rescue the culprit him-
self from the hands of justice, by a lying tale, camungly put together, and
stated to the court in the form of testimony.

4. ^' An accused robber might make use of the publicity of the
examination, to point out to his accomplices where they would iSnd
the stolen goods, or other things, which could be used as evidence."

This is to suppose, that the accomplices will be present in
court of their own accord, although they know that the accused
may have an interest in betraying them, and that various circum-
stances, occurring in the proceedings, may lead to their detection.
^ This is to suppose, that a man, strictly guarded, would find means
of holding a secret conversation, or of communicating by signs,
with his accomplices.

In fine, if he speaks to them openly, this is to suppose, that he
will acknowledge himself guilty for tbe chance of saving them.
This kind of heroism may be found among malefactors ; but it is
too rare to form any solid objection.

^ 5. " Publicity may keep back many persons, who would other-
wise come forward as witnesses." I answer, if they are kept back
by the fear of appearing in public in an odious character, this fear
ought to be much stronger against giving evidence secretly, which
would make them much more liable to calumny. If they are kept

I take it, that only romance writers can derive any benefit from this idea ;
it is excellent for bringinu^ about an anexpected alteration in tbe sitaatioa of
their characters. I. do not say, that the things is absolately impossible ; nay,
I have heard a very amusing story of this sort, which was said to have hap-
pened in England.

Bat these cases are so rare ; it is so difficult to produce the desired effect;
the court has so many means of discovering the plot and the lie ; the accom-
plices, in making the attempt, expose themselves to so many dangers and
mischances ; that, to set apprehensions of this sort against publicity, is just
to invoke an eternal night, because now and then a caup-de'SoUil injares our
health.

Moreover, all tbe means of defence, which the friends and accomplices of the
accused may thus prepare, generally end in negative evidence, or, at most, in an
alibi. Now, all, who have any acquaintance with judicial practice, know, how
difficult it is for the friends of the accused to make out any satisfactory proof
of this sort, without exciting against themselves very strong suspicions and
very embarrassing conjectures. Publicity increases this danger, or at least
the fear of this danger ; for how can the witness be sure, that, among the nu-
merous spectators, there are not men ready to confound him ; men, who, on
hearing a lie told, however little they may wish to appear in a court of jus-
tice, cannot help making the remark to their neighbours, these again to. others,
till the report naturally reaches the ear of the magistrate?
^ Those, who are willing to hasard an alibi on false evidence, find i| hundred
times more favour and encouragement in secret, than in public proceedings.

I shall conclude with an observation, which appears to me e<]^ually true and
striking. All these exaggerated fears, which are thus set against publicity,
tend merely to prove, that a guilty person may possibly escape from justice.
Let us grant, that there may be something in these fears ; but are we to make
no account of the hundreds of innocent persons, who have perished through
secret procedure, by the sword of blind injustice, or frightful torture ? Can we
hesitate between the danger of an impunity, which can rarely happen, and that
of judicial assassinations, which may frequently happen ? This single obser-
vation contains the whole history of secret procedure. We see at once whei*
it originated^ and by whoM it is dioiended.'^RosfL

74 A TREATISE ON

baek by fear of the accomplices and friends of the accused^ this fear
ought to operate equally against giving evidence secretly ; since all
the \^itnesses are known by being confronted with the accused.

Such witnesses, as are intimidated by publicity, are precisely
those, whom it would be most dangerous to hear ;. tfeose, who, if
secretly examined, would be tempted to prevaricate, and who are
afraid that their prevarication could not bear the light of day.*

* • This is by far the most serious of the objections against the publicity of
judicial proceedings. It is urged under different points of view. BcMdes fefvr
of the accomplices, and- friends of the accused , and the fear of appearing in
public in an odious character, It founds itself on the repugnance which many
persons feel to appear, in any^^ay whatever, before an assembly ; on the fear
of being exposed to the captious questions, the sarcasms, even the invectives
of the counsel ; finally, on the inconvenience of attending proceedings, whicH
sometimes last several days, whilethe witness 'receives but a very moderate
indemnity^ no way proportioned to the injury which his own affairs may be
sustaining in the mean time.

' To judge by these real df pretended fears of the enemies of publicity, one
would believe that, in public proceedings, there is almost always a want of
witnesses, and that nine-tenths of the accused are acquitted for want of evi-
dence. Yet how does it happen, that we see criminal trials every day, in
which there are ten, twenty, thirty, forty, even a hundred witnesses?

The simple peasant, the timid girl, the common man, pay the tribute which
they owe to public justice, by giving their testimony equally with the man of
business, or the man of letters, the merchant, or the landed proprietor. I shall
not oite the example of England ; every Englishman, I believe, will consider
th^ objection mere silliness. In that country, true public spirit, wych is a
feeling different from national pride^ is not te be created ; it has long existed.
These fears would be more plausible in countries, where judicial publicity is
an institution more er less recent.

Yet, is there any want of witnesses In France, in Belgium, in Geneva? Wail
there any want of them in Italy, when she enjoyed the beneBts of publicity ?
l*kt institution was entirely new : nevertheless, whepever I have been present in
eourt,' as counsel or as a spectator, instead of observing any aoaycity of wit-
nesses, I have often remarked a useless superabundance of them ; a defect^
Which Will continue on the Continent, till presidents and public prosecu-
t&rs shall have acquired a long-formed habit, a traditional experience, b0 to
speak, in this mode of proceeding. The many useless parts of our publie
procedure, equally wearisome and expensive — ^that tedious groping about,
which throws a crowd of citizens into confusion without any reason, and has bo
other result, than to make the question be lost sight of— are owing to the re-
mains of that inquisitorial spirit, at once blind and persecuting, which, till
lately, reigned in the tribunals.

' In point 6f fact then, there is no want of witnesses. Why should there be
any want of them ?

From fear of the aceomplkes trnd frknds of the accused? This fear is really
Wronger in evidence given secretly ; for the presence of the public, above all,
in the more heinous crimes, encourages the witness, and promises him, as it
Were, a protector in every spectator. A culprit, who revenged himself,
would be exposed to a thousand means of detection; because every one
would know, that he had a motivcrfor committing the crime against the wit^
ness ; on the first rumour of the latter having sustained injury, every ey^ and
6very suspicion would be turned towards the former culprit t)r his comrades.
If, in the secret procedure, the name of the witness is to be concealed from the
accused, the practice of confronting must likewise be suppressed, and the ac-»
cused must be denied a defender or counsel to examine the proceedings. Eveil
kt the present day there are examples of this ; and perhaps a secret wish to Imi-
tate them may be at the bottom of the hestility to pttblieny.of procedure. ^Btit;
so long as confronting is in use^ and adyocates are allowedi it is certain that a

JtTDICIAL EVIDENCS. 7S

6. *f There Is a risk of weakening the respect due to the decisions
of justice^ by submitting them to public opinion ; a tribunal in

witoess, capable of being terrified, will be equally, or even more so, in a secret
than in a public inyesiigatlQn. Assuredly, witnesses may be, and have been,
terrified by the rank or bad eharacter of the accused. Such witnesses may not
tell all ; but' do we not. forget, that they may likewise tell more than they know ?
*' If I was Burp he would be condemned to death, I would speak out/' Wit-
nesses have often used this language* Do you belieye that such a man, wlien
be once begins to speak, will state nothing but exactly what he knows? He
will calumniate from pusillanimity* . If he does not invent facts, he aggravates
them>; if a question is put to him containing the slightest possible hint, the
affirmative is forthwith ready on his lips. He has no intention to do izyury,
but a desire to secure himself; he scarcely thinks he is doing wrong. '* He
is a misereant detested by evjery body ; what a blessing to rid the country of
him! '' This is the form of the bargain, which he makes with his conscience.
Place this man tite-^teU with an examining judge, who smiles upon and en-
courages him, and he will have all tiie impudence of confident cowardice. A
public preceeding is necessary to keep him to the line of truth and justice.;
or, at least, if he departs from it, to furnish the means of judging, how far he
has gone astray, by his appearance, his voice, his countenance, his gestures,
all those various indications which cannot be described on paper. ** But in
public he will not tell all ;*' and though he should not, is the failure of a pt'o-
secution by a witness keeping back the truth to balance the danger of his
telling what is false? .

From the fear of appearing in public in an odiotui character ? Take from the admi-
nistration of justice what is really odious in it, and this epithet will never onoe
enter the mind of any man, who is called on to fill the part of a witness* These
objections always run in the same faulty circle. You create the evil, and then
complain of its influence ; you give justice the most revolting forms, and are
astonished that the eitizeos have a dislike to serve her. In certain countries,
I have known the people do all they could, at least by giving information, to
enable men to escape from the oflScers who were to arrest them. Jt was natu-
ral ; the officers themselves were looked upon as merely satellites or brigands.
The same countries ha^e felt the effects of this opinion in the difficulty of pro-
curing for the gendarmerie the consideration which that class deserved* In a
.word; ibiHn public spirit, instead of destroying it, and you will find it, in all
circumstances, in all the citizens, and in witnesses among others. But with-
out publicity, public spirit will always be a phrase without m^Uiing ; .for no-
body likes what he does not know> or«what he only knows well enough to
suspect it.

From the dislike of mam/, persons to come before the public? Every sohooUm aster
knows, that this is a matter of habit. Is it surprising, that men, who have been
governed as if they were inhabitants of a cloister, should have learned to fear
Uie public? They have been trained to all the paces of servility and fear, and
then are accused of being servile and timid. The arguments^ which govern-
ments oppose to all demands for improvement, would be ridiculous, if they
were not revolting.

Perhaps the backwardness of the other sex may be insisted on, and facts
may be cited: I know some myself: but, i. The number of women used as
witnesses, is not to.be compared with that of men ; although, in certain pecu-
liar causes, it may be greater, ii. This repugnance to appear publicly in
court, does not exist among women of the lower orders, who are most liable
to be called as witnesses ; on the contrary, and I can appeal for the truth of
it to upright practitioners, these women are better witnesses than the men. It
would be useless to inquire, why it is so ; but it is a &ct, that, when once
encouraged a little, they speak with greater freedom and facility, and serve the
ends of justice better than males of the same class. On this point, I can appeal
to the preddents and judges, still more than to tiie counsel, iii. In regard to
ladies, I aeknowledge that their repugnanee is real and strongs But, on the ona
iHwdi ^t seldom, happens, Ifaata female of Uiia olass. is called ap a witness : aBd»
on the other^ it is certain^ that they have an equal repugnance to appear before a

76

A TREATI8B ON

every respect incompetent by its ignorance^ its prejudices^ and its
caprices. Give us/' say the judges^ " an enlightened public ; we

court, or even (i judge, with closed doors. Counsel, who have been engaged
in ciises of divorce, can attest this. I suspect, it is not any fear of appearing
and stating their evidence in puhiic, but a very different reason, that is at the
bottom of their repugnance, to come forward as witnesses. Their sensibility,
rendered exquisite by education and the decorum of society, terrifies them
with the idea, that a word uttered by them may destroy a man and ruin a
family. Society, justice, law, every thing, in any way abstract, ranishes from
their eyes ; they see only a disconsolate wife, a despairing mother, a family in
mourning, and a man on the scaffold. It is the fear of doing injury, that para-
lyzes them ; now this fear exists in both modes of proceeding ; it ought even
to be stronger in the shade and mystery of secret procedure. In public, if the
presiding judge pays all the attentions due to their education ; if the solem-
nity and forms of proceeding tell them at the flame time, that the accused is
not defenceless, that in giving their testimony they are only paying a tribute
which society demands, and that every one of tiie spectators may be the victim
of a miscreant who escapes from justice ; they will both feel more confident,
and will be more struck with the duty of disclosing every thing, than if they
were called to depose before a man wearing the , appearance of prosecuting
another for his own pleasure.

From the fear of being expated to the captious quettUnu, the tarcatmSy the invectives
ofcoumel? It must be acknowledged, that such excesses on the part of counsel
are not without example. Far be from me any wish to restrain the freedom,
the full and entire freedom of pleading. Before I left tiie bar, I made ample
use of this liberty myself, and deemed it a duty to expose the bad faith, the real
contradictions, the plain immorality, the interested views of a witness, who
dared to profane the sanctuary of justice by falsehood, perfidious concealment,
or voluntary forgetfulness. But, as defence is lawful, so attack is unjust, and
beneath the dignity of an advocate. If there be no means of contradicting
a deposition, every thing is tried to heap ridicule on the honest citizen, who
has been discharging a sacred duty. If facts cannot be overturned, an attempt
is made to destroy the reputation of the witness by bold conjectures and vague
suspicions. Talent and eloquence are prostituted to save the guilty, at the ex*
pense of a man of probity and truth. To save the guilty, do I say ! Is it not
most frequently to acquire a temporary celebrity ?

But a few abuses do not prove any thing against publicity. 'A witness,
-unjustly attacked by a counsel, will find at once a still abler counsel, and an
impartial judge, in the public which has heard his deposition. If his deposi-
tion has been taken in secret, and the imputations thrown out against him by
the advocate reach the public, how can he refute them ?

Moreover, these abuses will disappear altogether, whenever judges, feeling
all the importance of their duties, shall be just vrithout harshness, and firm
without hostility. If, acting like despots, rather than judges, they cramp the
true defence ; if, when explaining the state of the accusation, they forget their
own dignity, indulge in virulent language, throw suspicion on those whom they
do not venture to accuse, make attempts at ridicule, and even degrade them*-
selves so far as to set up for wits : what csmi be expected from the counsel ? An
advocate, who imitates them, is not, indeed, justifiable ; but he is excusable.
Hie fault lies entirely with those, who could put a stop to these disorders in a
moment, but who are better pleased to cite them as arguments against the
most useful and salutary institutions.

From the inconvenience of attending long ditcussionSf for which the witness receives
only a oery moderate indemnity^ not at all proportioned to the loss which he may sustain?
I answer, i. In proportion as public spirit is formed and developed by pub-
licity, this objection will lose its force in the minds of the citizens, ii. la
proportion as our magistrates become more expert in the art of public proce-
dure, long discussions will become rarer, and those cases, in which a witness,
after being examined, must remain till the conclusion of the trial, will be. still
rarer, iii. The objection bears .only on a small number of witnesses ; mei-
chaats; foe example : fi^r the coiopeiisatiQn is safBoiejitior persons of the Iowmt

JUDICIAL BVIDXNCS.

77

do not fear its inspection ; we decUne the judgment only of a blind
and passionate multitude^ which wishes to give^ rather than to re-
ceive the law."

I acknowledge, that the fact, on which this objection rests, is but
too true in most countries. The portion of the public, capable of
judging, is very small in comparison with that which is not; but
the practical consequence, to be drawn from the fact, is just the re-
verse. The public is npt sufficiently enlightened to reason justly;
therefore, every thing must be kept from its knowledge, which
would enable it to judge better. Its want of capacity is made to
justify contempt; and this contempt again is employed to per-
petuate the want of capacity. Such is the circle, in which we gd
round ; a circle equally faulty in logic and in morals. This is to
act with a nation as the unprincipled guardian did, who, wishing
to mount the throne oChis ward, put out his eyes, that his blindness
might fiimish a l^al reason for excluding him.

The fear of false judgments, on the part of the public, does not
even lead to the conclusion deduced from it. This popular tribunal,
however incapable of judging, does judge. To try to prevent it
from judging, is to attempt an impossibility ; but it is possible to
prevent it from jiidging rightly ; and every thing, which keeps it
in ignorance of judicial proceedings, tends only to multiply its erro-
neous judgments. The errors of the people — the unjust imputa-
tions, with which they load the judges — the sinister ideas, which
they form of the courts — the favour, which they show to accused
persons — are all the work of those, who resist the publicity of the
evidence.

If the tribunal of the public refrains from judging at all, it is
only, when, from excess of ignorance or discouragement, it has sunk
into absolute indifference. This apathy in a state, is a symptom of
mortal disease. It is a thousand times better, that the people should
judge wrong, than that they should lose all interest in public affairs.

orders; and it seldom happens, that a landed proprietor^ a man of letters, or
an official person, is .exposed to any sensible losses by a few days absence.
IV. Is it absolutely impossible to proportion t|ie compensation in every case to
the loss sustained by the witness? The law, regulating civil proceedings in Ge-
neva, contains the following article :— '^ If the witness demands an indemnity,
it shall be fixed by the tribunal according to the condition or profession of the
witness, the distance of bis domicile, and the duration of the inauiry/' — Art. 200.
I acknowledge, that the execution of such a measure would ne attended with
some difficulty, particularly in criminal cases ; but at least it deserves to be.
taken into consideration. When will people give over citing about impossio
bilities, before they have examined things in all their bearin^^s?

I therefore hold myself justified in concluding, that experience and rcasoii
unite to prove, that, with a system of public procedure, there would be do
want of witnesses.-^iiotxi.

78 A TREATISE ON

Every one insulates himself^ retires within }iimself ; the national
hond is dossolved. As soon as the public says of judicial decisions
** What is it to me ?*' from th^t. moment there are only masters and
slaves.

•Tudicial publicity has been further opposed from a regard to
morals^ and from the alieged^anger of admitting indiscriminately
a crowd of auditors, in cases which almost necessarily lead to in-
decent disclosures, liable to corrupt innocence, or to foster de-
praved curiosity. It has even been pretended, that this display of
vices, knavery, and crimes, must be prejudicial when made public,
and must encourage persons of wicked inclinations, by showing,
them in how many ways justice may be disappointed.

This objection is well founded in certain respects, and unfounded
in others.

There are causes, in which, for the sake of decorum, it would be
dangerous to admit females, or young people, or even the public,
indiscriminately. We shall speak of them in the following chapter.
Yet it must be obsei*ved, that for auditors, at least of a certain age,
nothing is to be apprehended from the details of such vices, and.
tbat judicial forms dp not present them under any point of view,
that can excite and corrupt the imagination. They appear sur-
rounded by all those accessories of ignominy,, which publicity gives
to them ; and I am convinced, that the most vicious spectator leaves
the court with no other feeling than horror at the idea of exposing
himself to so degrading an investigation.

In regard to causes of any^other kind, nothing immoral can be
apprehended from the publicity of the proceedings. On the con-
trary, whenever the temple of justice is thrown open to all the
world, it becomes a national school, in which the most important
lessons are taught with a degree of energy and authority, which they
would not otherwise possess. In it, morality is founded on law.
The progress from vice to crime, and from crime to punishment, is
made palpable by striking examples. To think of instructing the
people by sermons, is to reckon too much on the talent of preachers,
and the capacity of hearers ; but in a judicial scene, the lesson is at
once easyand interesting; what is learned there, is never forgot*
ten^ The injunction of the law, aided by the event associated with
it, remains engraven on the mind. Even the fictions of the theatre,
though accompanied by every thing which can keep up the illu-
sion, are feeble and fleeting shadows, in comparison with these real
dramas, which display, in their melancholy reality, the consequences
of crime, the humiliation of the guilty, the anguish of his remorse^
and the catastrophe of his punishment.

JUDICIAL BVIDBNCB. 79

CHAPTER XL

EXCEPTIONS FROM PUBLICITY OF PBOCEDUBE,

Wbrb there no middle course, and were it necessary to choose
between public and secret procedure, every thinking man would
decide for absolute publicity : the general advantages are all in its
favour.

The propriety of secret, or, to speak more correctly, of private
procedure, is only applicable to certain cases, and is founded on
particular considerations, which constitute merely exceptions.

I say private, not secret procedure ; because, in these cases of ex-
ception, the object is to Umit rather than exclude publicity, to admit
auditors only for the satisfaction of the parties, or for the satisfac-
tion of the judge.

If, in any case, the seal of secrecy were made inviolable from the
beginning to the end of the proceedings, so that no one should
have the power of breaking it, there Is no act of oppression, which
might not be perpetrated with impunity under this impenetrable
veil ; but no abuse can be feared, when either party has the power
of appealing to the tribunal of the public. A veil, which the
party, believing himself injured, may raise when he chooses, can
never be a cloak for injustice

1. I give the first place, among these excepted cases, to prosecu-
^ tions for real or verbal injury, when both parties agree to request

secrecy, and, in the first instance, even when only one party de-
mands it ; it being always provided, that either may insist in pub-
Jfcity in case of an appeal.

It is thus that a court of justice might be converted, in case of
need, into a court of honour j in which a man inight litigate with-
out losing his reputation.

2. Family cases. I do not mean causes purely civil, pecuniary
claims, or disputes about succession ; I mean processes between
husband and wife, or between father and child, founded on mal-
treatment on the one side, and misconduct on the other; above all,
I'mean cases of adultery, and all cases connected with the mysteries
of the marriage bed. If, on these melancholy occasions, justice

^cures one woimd, publicity inflicts another, equally painfi^l and in-
curable.

In particular, the sense of honour in the other sex is so delicate,
that we can scarcely go too far in protecting from public malignity
acts of imprudence, which would debase, or render desperate, young
people of good condition,

80

A TBBATISB ON

For females^ whose natural sensibility has been increased by a
cultivated education, the pain of a public proceeding is so great,
that they will rather submit to a long course of injustice than resort
to so violent a remedy. In proportion as their sentiments are more
delicate, they are more at the mercy of their persecutors.*

The publicity of family disputes may be prejudicial in another way*.
A father, a guardian, a master, may have acted improperly towards
the young person under his charge, in points which are not suffi-
cient to deprive him of his authority. Inflict upon him a public
censure, or even a slight reprimand ; this is so strong a drawback
on his consideration, it is so complete a triumph for his young an-
tagonist, that, from that moment, every sentiment of respect is
annihilated, and an example is given, which attacks the paternal
authority generally. What is the consequence ? to avoid so great
an evil, and to support a species of authority which is more useful
to those who are subject to it, than to those who exercise it, a court
of justice will shut its ear, if it be possible, to the complaints of the
youth, and give his superior more protection than he deserves. But
transfer the scene from a public tribunal to the closet of a judge^
and he will be able to censure the abuse of authority, without weak-
ening the principle on which it rests ; to reprimand a fatlier, with-
out humiliating him in the eyes of bis son ; and to give to injunc-
tions secretly imposed the appearance of a voluntary reconciliation.

3. The interest of the injured parties, as ^vell as the interest of
morals, requires the same privacy in all trials for rape, incest, and
lascivious insults. The eagerness of the public to learn cases of
this sort, proves, that indecent details and scandalous disclosures,
excite more curiosity than repugnance. Ought publicity to be ex-
tended to that, in which the public has no interest ? What interest
can the public have in tearing the veil, which cbvei*s offences, whose
greatest mischief lies in their notoriety ?

If courts of justice are to be considered as schools of virtue and
of public morality, females and young people must be excluded, in
all causes which may offend modesty and decorum.

* When a woman has sustained an injary which wounds her modesty, the
necessity of appearing in open court, as in England, (unless the criminal is to
pass unpunished,) to state all the details of the insult, before a mixed and for-
midahle crowd of spectators, is an aggravation of the injury.

CHAPTER XIL' '

' or TBK OATH CONBIDEXED AS A SECDKITY.

Dobs an oath offer any guarantee for the truth of testtmonyF
To judge frotti Jthe universal practice of tribunals, this question is
to be answered in the affirmative; but reason and experieiic6l*e-«
feolve it ih the negative.

*rhe (efficacy of an bath depends on three sanctions } the religious
sainction, that is, the fear of incurring the chastisement of heaven,
in the present life, or in the life to come ; the legal sanction, or the
fear of that ptmishment which the law denounces against penury ;
the sanction of honour^ or the fear of the infamy which attaches to
rfn untruth told upon oath.

If the whole efficacy of an oath consistsi in the legal sanction^
and that of honour, we deceive oureelves in attributing any part of
it to, the religious ceremony. Of the three ingredients composing
this antidote, two have much virtue, and the third none at all. TAiis
i§ the question, we haVe to examine.

If the religious sanction had the effect ascribed to it, it would
alteays have it; since the solemn invocation of the name of God
is in every case the same, and presents the same motives of fear, or
rather of terror. Biit it is not so. - In the numerous cases in which
the oath is not supported by the two other sanctions, it manifestly
derives no force from the religious sancty)n.

Every body knows, for example, the value of the Custom' House
oaths, so numerous in England : they are mere forms, treated 'witli
equal indifference by those who exact, and by those who take then^.

In the English universities, the students must swear to observe
the academical statutes. These ^ statutes, drawn up two or three
centuries ago, are no longer ih unison with the manners and wants
of the times; they \\kve fallen into complete desuetude. 'The ec-
clesiastical superiors 'who exact these oaths, as well as the young
men who take them, know perfectly that it is impossible to observe
them, and that, in reality, they are violated with absolute impunitj^.
It cannot be denied, that we have here the religipus sanction en-
tire; but the two other sanctions are inefficient. The oath has
scarcely been taken^ when it is forgotten; it* is a form, and nathip^
more. >

Consider the oaths, which are used as political instruments to coii-
firm the adherence of a people to this or:tha^ government, . to this
or that soverefi|fn; . Circunistances change; the powers whifch im-
posed tbe cecfjpai^i»>is :iU>Vlpn^ tjbe

oath is no longer thought of* The religious sanction is totally in-
efficient, whenever the tivo titlier sanctions disappear.

There is a confused, but a just feeliug in the human heart, which
is, at bottom, an homage rendered to religion and morality. An
#ath procf e^ pa the suppositioui that God will punish him who
yioiat0sit; ai[iid thus a tyrant, by merely exacting an oatt», couldi
p^ctp the power of heaven under bis pwn direction, and make it an
instrument of public oppression. The evident absurdity of such ^
ff^ippofitfon ^as introduced (be doctrine of null oaths ; but it follows,
tb^t it is Qot the ceremony, which constitutes the force of thi$ en-
gagement s it is its morality*

h^t us now turn to judicial oatbs. If the religious part does not
(CPQtribute to the security of testimony, it follows, that it ought to
be suppressed, as being useless ; much udore, if, instead of being
m^irply useless, it should be found to produce effects positively
•jiprtful. It follows, likewise, that the two really efficient ^nptions,
s^uld be raised to the highest possiible degree of &rce»

I have i»aid, that the judicial oath produces effects positively burt^
iul. I do not pretend to enuniernte them aU^ but I shall point qu|
^me of the most striking.

h It has a tendency to inspire judges with un^ecoufidence. On
lybat if this confidence founded 2 On a supposition, the value of
which they cannot possibly appreciate; the supposition, that the
witness feels the strength of the religious motive more sensibly fhan
be feels any interest which he may bavQ in the cause. It will bj^ said,
that an extranepus witness bfus no interest ; but they, who ^peak
^v^ think only of pecuniai^ interest; tbey forget the in tere^ of
j)f|^gr» fii Hkiqg^ of haitv^d, and ^ll the otb^ passions which m^
gfappl^ with conscience, and overthrow it too.
,,.Jm reg4ird;tQ i;e&reno^s m^ to the oath of a party, I shall content
nq^l^.witb citing an ohifrifation of a celebrated lawyer : '^ During
i9J^^ TfBrs that I have folloiy/Cd my profession, I have seen reference
made to oath infinitely oftep, an4 I never knew it happen in mpre
ij^i^n two cases, that tb^ reljgious obligation pf the oath restrained a
f^iffy fxQJOx p^rsisUi^g i^ what he had previoi^y asserted.'' *

*■ ' ■ ■■■■.. „ I ■ ■ ■ ■ ■ I-

• Pothier des Obligatiobsrvol.ii. c.3.
. . By tito new Uw nei^atUip^Qivil prooeediiiss in Qeneva, twoprecantioii^ avQ
jblk^ when refi^enee is mad^ tae oath of party : h The president, in a pub-
Ifo ntdng, explains distinctfy to the party the fact on winch the oath.must bear,
and the panishment appointed for perjury ; ii. The taking^ of the oath is peal4
npned to a sab^eqnent jdttiajr, PAless ^e piroumst^nces $e urgent. • Thisyi a
qelay, indeed ; bc^t a delay yery favonrable to reflexion, and calculated on
Juki vi^ws of the bmnan iwart:. iJTJie man is not put in the situation •f beia^
joalled pn to (pve himself jthjejlejinn^edifltely, In presenpe of Uie public ; hf JiM|
iOn the respnrce pf letting flie matter drop without noise, lAerely by not attend-
taf tli# a(^l|ted ei^itiiaif^ B^perienoe his justified tb^raessovM

jvmeat sviftSM; v« i$

' It' wtit be said^ perbttps^ that t&e reference 10 iliadie^ not fifom any
6on£dence in the party^ but from necessity. There are cases^ in
which no evidence can be had) in which plaintiff and defendant
stand on their mere affirmation and denial *, ought the plaintiff to he
> denied the only means left^-^an appeal to the conscience of Ms ad-
versary?

> I answer, that, in all such eases (and they are not instances of
true judicial procedure, but of a sort of ordeal, similar to that of red
hot iron, or boiling water), it would be much better, to take merely
a solemn declaration, subject to the pains of &lse testimony, than
to interpose an instrument, the force of which is utterly unknown.

The more deficient a judge is in ability or application, the more
inelined will he be to place confidence in an oath, and to make it a
pillow for his own Indolence* Having satisfied forms, and saved his
legal responsibility, he will neglect the substance, and will take little
pains to examine the intrinsic chsiracter of veracity in the witness.

An experienced judge places no confidence in an oath ; he has
Aeen it so ofi;en prostituted to the ends of fidsehood. His whole
attention is directed to the nature of the testimony ; be scrutinize#
the witness, examines his tones, his air, the simplicity of his Ian*
guage, or his embarrassment, his variations, his agreement with
himself and with others ; he has marks by which to estimate th»
probity of the witness, but none by which to judge of his religious
feelhigs. The older he grows in his trade, the less does he believe
}n the influence of an oath; he distrusts it in civil, even more than
In criminal proceedings.

' Now, I would ask, what is the use of a guarantee, which always
becomes less and less efficient on the mind of a judge, in proportion
as he becomes more, skilful, and enlightened ?

2. The oath has a natural tendency to make a witness persist in
an untruth, which he has once uttered. It is trae, that, even were
fliere no oath, he would always be ashamed to give himself the lie ;
but this motive is much stronger, when heightened by the fear of
being reckoned^eijured.

3. The effect ^ven \o this religious instrament has produced a
dtill more serious evil. In several countries, at least, a class of
liardened and shameless men has grown up, who make a trade of
ladieial swearing. They are abandoned character^, sensible to no
restraint, moral or religious. I do not say, that frise testimony
Would be destroyed by abolishing the oath ; \mi it is clear, that, if
testlmc^ny on oath has a greater value in the eyes of judges than tei-
tlmony not updn oath, the excess is a premium in favour of perjury?
6 Witness^ who swears, will bear a higher price, than one who doe^

62

84 . A TEBATIiB ON

Bot. This evil would reach its height under forms of proceedings^
which bound the judge to consider the testimony of two or thre&^
witnesses on oath as sufficient evidence: in such a case, the manu-
&ctory of perjury would be at the door of the court.

4. Under the only equitable mode of proceeding — that which,
allows the judge to decide solely, according to his own conviction,
without regard to the number or oaths of witnesses — the oath wilt
often produce a great public scandal. This seandal arises from there
being evidence on oath, of which the judge does not believe one
word, and the falsehood of which has been equally recognized. by<
the audience. Now, how often will these peijuries be punished, in
comparison with the instances in which they will escape? The
more frequently such events occur, the more numerous are the pub-
lic proofs of the immorality of witnesses, and of their contempt of
religion. The suppression of the oath would at least put an end to
a pro&nation of such dangerous example.

. 5. Among tlie dangers of this pretented guarantee, we must
reckon the subtleties and subterftiges, by which men possessing, so
to speak, only a half religious conscience, flatter themselves with
evading it* . They pay no regard to the. intention of the act; they,
do not hold themselves bound by the words which they utter ; . they
do not believe they have sworn at all, unless the forms of the cercr
mony be exactly those which their own superstition has consecrated;
With a Jew of this character, it is essential to know, whether he
has his hat on his head, ^and whether it be what really is a hat ac-
cording to his interpretation of tbe la\V; whether he. has in. his
hands the true book which he respects, and in what language it is
written. An Englishman, equally unscrupulous tvith such a Jew,
would be tranquil on the score of perjuiy, if he kissed, not the
Gospels, but his hand, or his gloves, or any other book than the
Bible^ In India, the coiu*ts of justice find the same difficulties with
the Mahometans and Hindoos. The omission of the slightest form
of their ritual is sufficient to annihilate, in their eyes, tbe obligatory
power of the oath ; and it is not necessary to, go to India for ex-
amples of mental reservations and evasio^is — of words uttered in
one sense, and understood in another — or of words thrown in, in an
under tone, contradictory of those which are uttered aloud.
, 6. When this ceremony is made an indispensable condition of
giving evidence, the testimony of several classes of persons is lost ;
of those, for example, whose religious principles do not allow them
to swear. Thus, in England, Quakers cannot be witnesses in cri-
minal mattei*s ; though it be well known, that no Christian society
pays a more scrupulous regard to truth. Non-adults, likewise, are

JU1>1CIAL KVmiEfifCE. 85

rejected, beeause they are' supposed to ' be unacquainted with the
nature of the religious obligation 5 and that,' too, in casef, where
their age furnishes no reason for doubting their fitness to speak to
. the fact in question. • We shall afterwards see, how contrary this
exclusion' of witnesses is to the ends of justice, and how much it
favours the impunity of the guilty.

^ These are the principal objections^ which experience furnishes
against the use of an oath in testimony. With religious and moral
witnesses, there is no danger in suppressing it ; with irreligious and
immoral witnesses, there is an evident advantage. It will be saidj
perhaps, that between these two distinct classes, there is a third,
composed of thoughtless men, vacillating between good and evil,
whose conscience and power of reflection require to be roused at
the moment of giving judicial testimony. Undoubtedly there is ;
and thierefore it is not proposed to abolish all solemnity, and make
no distinction between a judicial declaration and an ordinary con-
versation; but the place, the audience, the presence of the judge
the whole pomp of preparation, strike the senses, and make th
most frivolous minded man bethink himself. The judge asks the
witness, if he intends to tell the whole truth ; and, after receiving
this promise, he may, according to the importance of the circum-
stances, point out the obligations, which law, honour, and religion
impose upon him. -

4 It has been observed, that those societies of Christians, whose
tenets do not allow the use of an oath, are the most strict in every
thhig relating to veracity. This is easily explained. So long as^
there are two kinds of declaration— the one, on oath 5 the other, a
simple assertion— a parallel is nm between the two; and the first
rises above the other. The offence has two degrees, lying and per-
juiy; lying appears less heinous> because there is still- a crime
aboVQ it. But when the abolition of the oath shall have effaced thisf
distinctioni judicial lying will appear in all its immorality. Public
opinidn will visit it with the same severity.

Were we to refei" to that authority, which, with Christians, is the
highest of all, not a doubt could remain. « Swear not at all;"
says.the Teacher, " let your communicatioij be yea yea, nay nay;
for whatsoever is more than these cometh of evil.*' No precept
can be more formal, and it shows clearly, that Christ attributed to
an oath an immoi-al effect— that of coh-upting veracity by intro-
ducing subtle and sophistical distinctions, which men use to palliate
or excuse falsehood. The casuist puts forth his pei-fidious art, and
morality is thrown into the shade., *

No more striking e?i;ainple could be adduced of the danger and

/

9^ A nwmB on .

iltosi^iMf of m odAi tdat U, of the snacei which it lays ibr HQt
enlightlkied ca^sciencesi than the w^U knowa fitct, that bands of
jualefiictorB adopt it for thi? purpose of ceineiitiDg their union fai
prosecuting their criininal projects. They find this instrumepit
ready ^)ade to thf ir hand by the laws, and make use of it against
them. They swear to each other to reveal nothing, either to a mat
gittrate, or in a court of justice. It is in vain to tell them^ ^at
liuch oaths are null ; they do not understand thi^ ; or, if they think
any oath null, it is the one which the judge makes them take^ and
which, in their eyes, does not destroy the force of the first.

What diversity of opinion has prevailed on the obligatory for^
pf oaths ej^cted^by robbers !-«<*an oath, for example, not to proseeut^
QV inform against them. It is very evident, however, that to aHow
S^ch oaths any fi>rce at all, is just to suppose that the vilesfimi^f
fpeants have the divine power under their own du'ection-^that the
fire ^ heaven stands at their disposal, to be lanched against all
who refuse to execute their criminal commands. Mere good sensf
is fufficiept to discover the absurdity of siich a supposition ; and yet
gQPd sense is often unavailing ; and the blind respect entertained
for an oath, proteQts^ with persons of a timid disposition, engage^
ments directly hostile to the interests of society.^
. Whenever ap path is e^ct^d, it cannot be admitted as a religious
ceremony, \^ithout its concomitant train of ecclesiastical notionsi
ipibjept to vary with timc^ and countries and liable to be opposed
to the civil powers it belongs to the domain of a foreign authority^
which pretends to judge of its validity, and to possess the power of
destroying its efficacy. Perjury, considered as a sio^ is under the
jurisdiction of the tribunal, which governs conscience | there will
be modes of vicarious satisfaction, easy and convenient expiations,
means of ransom and absolution. During a time> it was a point of
doctrine, that an oath made to a heretic was not obligatory ; that
the pope, could loosen subjects firom the fiddify which they had
sworn to their sovereigns,^ and release sovereigns firom their mosi
solemn eBgagemelit».t

r

* This is wif(iont any inference to reasons of pradence^ wMoh maj Biak^ it
f;i4iFisable to obsmrte sacb engagements.

f CloBient YI. granted canonically to Jobn III. of France, sad Josn Us^
wife, and to all the kings and queens who should succeed them, the priyilege
of violating all oaths and promises, whether already made or to be made, withr^
QQt incurring any sin, whenever it might not be their interest to keep thein^
provided their confessor should impose some other pious duty in lieu thereof.
*^ Inperpetuum indulgemuSf ul ccmfenor .... juramenta per vo$ proititoy €ipeti/l^s ei

.J17SICIAI> iVIBBNCB.

9r

It would require volumes to collect the historical proo& of all the
^vilsy which have resulted from introducing a religious ceremony
into piloceedingSj which ought to be left exclusively in the domain
of the law. , , .

The proposition with which I set out, and which I think I have
proved, is, that an oath ought not to be regarded as i^ guarantee of
testimony.

This does not contradict what was formerly said* of the utility of
the religious sanction as a restraint on falsehood ; for I speak of
the internal, not of the eitternal religious sanction— of that, which
acts on the soul ; not that» which consists in raising the hand, and
uttering certain words. A man, whose religion is on the side of
morality, gtves us an additional seeufity, hat a security which has
no ^onneKion with the eerMiony of the oadi. The treati^ of iliis
Quaker of Penttsylvamia with the Indians, are the only onetf wfaleU
were not consecrated by an dath, and pierhaps the only one§ ^hfch
were never violated.

— • * * -.. . . ^

.^t'idmmu

,.*iininrv<iiay

^ book I. cap. \tt.

» * • «

'• \

i

* f

' • c

.1 ... «>

. r ^ •»

JS

BOOK in.

OF THE TAKING OF TESTIMONY.

CHAPTER I.

OP WITN«88S^«.

X H£ first observation, which I have to make, regards merely the
use of the wordwitness ; hut they, who are accustomed to reflect on
ideoi^'kuow well bow much ideas depend. on wards. .Improper
terms., are the chains which bind men .to unreasonable practice?.
Error is never so difficult to be destroyed, as when^t has its.roQt jn
language. Every improper term contmns the germ of fidlacious
propositions : it forms a cloud, which conceals the nature of the
thing, and presents a frequently invincible obstacle to the discovery
of truth.

The word vAtne$s is employed to mark two different individuals,
or the same individual in two different situations ; — ^the one, that of
a fetceiomg witness, that is, of one who has seen, or heard, or
learned, by his senses, the fact concerning which he can give infiNT-
mation when examined ; — the other, that of la depodng witness, who
states in a court of justice the information which he has acquired.

The term lottaess, then, mby be applied to the parties themselves,
who have an interest in the case, as well as to all those whom it is
commonly employed to designate.

It is strange, that, after hearing the deposition, or confession, of a
person examined by a judge, we should still deny, that he has 93^
peared in the character of a witness.

Such is the inconsistency of language ; it looks, as if the cha-
racters of forty and trtliiew were naturally opposed to each other.
tfemo debet esse testis in propria cotiso, is an old inaxim of technical
jurisprudence, always repeated, though it has neither the support
of reason nor the authority of practice ; fi>r, in reality, the cases,
in which it is openly disregarded, are at least as numerous as those
in which it is followed. No man, nay, no judge, pays the least
ngaxd to this maxim in what passes in the bosom of his fiimily.
But such is the force ^of prejudice, that the characters of witness
and party are genmdly CMsideied to be incompatible.

A TRfeATISB.ON JUOlCilAI'. BVIDBNCK.

89

/

Tb^^is, however,. a 4iiantfest.differeDce between tbieae.two kinds
of witnesses — a. witness wbo is.a party in the caude^ and a witness
wlio is not ; and the arrangements to be made^ or the precautions
to be taken^ in regard {to them, are not the same. It. is proper^
therefore, to have a designation which will distinguish them^ and
kec^ ^us constantly: in mind of this . essential difference. We may
call the witness, who has no connexion with the cause, an ejetemal
witness ; and him who has a direct interest in it, a deposing pariy.

The name of jtpo»tontfou« deposition may be given to that of a
witness, who states at once all that he knows about the cause, of
his own accord/, and without the intervention of any person. This
mode, the simplest of all, is the most natural to be followed by the
plaintiff or defendant, as each of them knows every circumstance
that forms his own case.

But in every case, the judge may be called on to bring out the
testimony by a series of questions ; or the parties themselves may
mutually interrogate each other, or try to establish the truth of f^pts
by the . examination of , extei^al witnesses. AH these proceedings
constitute the art qf taking testimony.

. CHAPTER 11.

. 09. THE Al^PEAKANCK OF THfi PARTIXS; AT TfiS COMMfiNCSBfaHT OP'

THE CAUSE.

If there be any mean, by which all the ends, that procedure
should propose to itself, may be gained at once, it is the mean which
has be^n just o^ntioned. At the very opening of the case, set the par-
ties face to face before the judge ; you will prevent misunderstand-
ings, and shorten processes. In a novel or a drama, the knot of the
intrigue, the distress of the personages, is founded on somC: mistake;
a jsingle word, an explanation, an interview, would put an end to it.
The art of the novelist consists in perpetually approaching the de-
notiement, and yet putting it off as long as possible. What consti-
tutes the art of the novelist, in his fictions, constitutes likewise
the art of. lawyers in their procedure. Their great business is to
keep up the intrigue, and to prevent the parties from coming to an
authenticated explanation.

" If ever a legislator should propose to himself the problem—
fFhat is the surest mode of iiot reaching the truth? He will find the
solution of it in the'French code of procedure;^ under the title De
Vinterfogatinre sur faits et airtkles^ To save a party from the trouble

OB ^A nMAmn w

af pdbUtltf ^ atld the embanrftssaaent of meeAng fail of^ponnt ; to
we«kM tUe €oiMqiietio<te of his tergivefmtion^ and the gfaame <tf
ttlliiig a &teehood | to fiimisfi bim wilh (be means of medltatibg at
Ms e9i»e, and arranging bis answers^ this code requires that he riiall
6e examined privately; by ti single Judge^ without the {Irtesenee of
W& bdversaiy, amd that the feets^ on trhieh be is examhied^ shaU
have beett cotamnnicdted to hiin at least twenty-four hours before-^
hattd/'»

' The author whom I eite^ after showing all that is to be appre-
hended firom employing advocates to take the plaee of the parties;
their leSs intimate knowledge of tbe faets^ the errors into which
they we led by thrir dlients, their desire to conceal the weak side ef
their case^ and glvd some colour oT probability to the boldest asser-
tions^ closed his observations thus :

' ^ Race the parties in presence of tbe judge^ oblige them to state
the facts themselves^ and in ttadr own way) make tiieJH answei^
#Illiout preparation to any questions which may be put; bave^raf*
eailrse, if you see it may be nsefbl^ to the es^edieat of examining
them separately, and then confronting them, and you will speedil)^
see the clouds dispersed, the facts cleared up, and the truth fully
displayed; whether the parties, acting in goOd faith, and differing
merely in consequence of a misunderstanding, required nothing
more to reconcile them, -than the intei^osition of some impartial
and -enlightened person; or whether ,the penetradon of the judge
has discovered the bad fiiith <^ one of them in his evasive answers,
his wish to conceal, his contradictions, or even his silence. This
personal appearatnce will operate as a restraint on such men as are
more alive to the fear of confusion than to sentiments of honour,
add ready to put a lie into the mouth of another, which they would
noj venture to assert with their own. If this scrtiple be insufficient
to restrain him, and he venture to encoucfter the dangers of a publte
li^ring, his punishment lies in the difficulty of his part j in^eetn-
barrassmentj^ the anguish, which await him firom a strict examina-
tion, under so many scrutinizing eyes ; in the inevitable necessity of
contradicting and betraying himself; in the publicity of his dis-
grace/* . '

The following is a more methodical Statement of the different,
advantages, which procedure would derive from this measure.

The. parties pugbt to appear —
' t. .That each, i^ay depose in his own favour, when he \i ac-
quainted with the fact on which the case turns.

>teMii*a>*M***««i«i*iM*«r

tt; BaHMfA «« Miitifii 4e la \o\ saf la PieMdor^ ^iSk poat la 9a«mi 4a
Geneve \ by M. BcUol, Rofessor of Law, p» 109.

JT79ICIAL BVniBXCB* tt

9. TiiAt eftbli ttay be examine<iDn tte othte" itdeby fie aflwiMty)

S» To admit all allegiitf o&b madefy the other party, whi^ h^ doei
not wish to diipute, and thus narrow the field of litigation. ^

4. To aeknowledge and engage to produo^ papers, or other
sneana of proof. If there be any, which are in his possession or Itt
his power.

6. To admit the gpnuineness of such papers, wr|^n or signed by
bim, as are presented to him for that purpose by the other plirty« '

6. To fix cleariy the object of his elaim, and to be ready to recelvl
any proposal which may be nmde for adjusting the dispute. '^

7* To authenticate ibe InTentory of the means of evidehee of
every kind, known or suspected to exist, Which the case ftnrliisb#i ^
on either side, to the end diat no necessary proof may be omtttedj
and no superfluous one produced. * ^

8. To arrange the days of hearing, and thus prevent d^ayii and
useless incidental applications.

Personal appearance will be dispensed with, f « When thef party
is a strangep to the facts, on which the issue of the case depends^
and he declares that he is so. ii. Whenever, on account of urgent
business, his appearance would be more prejudicial to him, than it
could be useful to his adversary, iii. Whenever there is a sufficient
reason for exemption on account of sickness, the difficulties of the
journey, dangerous or impracticable road% ^ qertsia Ifttitude must
be left to the prudence of the judge.

GHAPTERIIL

OF THB APYQCATIBS.

.-->

•■ "*

1

« 1

It has been questioned, whether it be propei^ In parold eVii
iifiiee, to admit an adv(H»ie by profesrioft, ft» ihe tetHresentattre of
a party.

The necessity of allowing professional assistance, will be found to^'
be demonstrated, by considering the rdatlve hicapaeity Which may^
exist betwe^i the plaintiff and defendant; immaturity 6f yeai^, old
age, bodily indiiqpositioo, weakness of toEiind, inexperience^ imturaf
t^n&lity^ laferlori^ of condition, &c. / ' '

But it will be said, that he, who fills the highest seat of justice,^
ought on this;, as on eveiy other 0<icai^{on, to perform the duties of
an advocate for both partiesyand to sTupplythe deficiencies df either;

Bnt to tiia exerc&e of tfe& protectorship, two condi^ns are re^^
quisitej a perfect knowledge of et^ ^itvg l3ia» (MiiciUM ^

90 A TIISATISB ON '

qasej and sufficient aseal to make tjie most of it. Neither the same
de^*ee of information on every individual matter, nor the same
interest in ftvour.of eadh party, can be expected in a judg^e.

Suppress advocates, and an ^njust aggressor will often have two
advantages of an oppressive' nature : that of a strong over a weak
mind, and that of elevated rank over an inferior condition. In- a
doubtful or complicated case (unless we suppose judges inacces-
sible to human frailties), these advantages might be too dangerous
for justice, and, even when the judge was ' perfectly impartial,
they would still leave him exposed to odious suspicions.

But advocates, except in cases of corruption, which are infinitely
rare under the system of publidty, refuse their assistance to nobody^
and are the same to all. They establish equality between the par-
ties. The very rivalry which exists among them, leads them ^ to
diqplay the whole force of their talents on every occasion, whatever
their client may be, rich or poor, high or low, illustrious or *ob«
acure : they cannot neglect it without injuring themselves. Honour
and interest are here the auxiliaries of duty.

CHAPTER. IV.

OF Tfifi mFPSlfiXT MOOfiS OF EXAMlNATIOlT.

* tf •

%

I

Tab different modes of examination, more or less used^ may
be ranged under five heads :

I • Oral examination, conducted publicly, in presence of the judge,
between the parties. This is the mode in trial by jury.

2. Oral examination, conducted by the judge secretly, and in
the absence of the parties. This mode is still followed in a great
part of Europe.

3. Oral examinaticm, conducted by the judge^ in the absence of
the parties, but publicly. Such is, in England, the procedure of
the justices of the peace in taking prdiminary examinatipns.

4. Oral examination, by commis^oners chosen by the parties.
This is practised in England in conunissions which issue from the
court of Chancery for taking the evidence in certain cases.

5. Epistolary examination. It consists in written questions being
proposed to the witnesses, to which they return written answers.

From the oral and epistolary modes, a- compound mode may be
formed, oral o]ifii>er# #0 tmllen ^uev/toitf. This is the ca^ when tiie
court, not being able to bear a witness itself caoses.him to be exa-
mined by a judge in tiie place where be re^des. '

JV]>ICUt SVfDBNCE. jtf

The supeHority of onil testiAio»y rests on .four poiiits. ' ; .1

/ L . The promptitude, of the answer. The morie prompt it is, the less
can it be premeditated ; and hence the degree of security^ which it
affords against fidsehood.

To lie. is to invent; and univei-sal experience. estaUisbes tfayr
axiora^ that memory is. more prompt than invention, more prompt for
connected statements which, bear the character of probability, and
can stand the test of a cross-examination* \ . >

The axiom, to be true, must be thus limited ; for, without this
limitation, it would: be false in many cas€;s.> .When memory. is
i^truggling with distance of time, atild trying to disentangle com-
plicated facts, it hesitates, so to speak, at every step ; the more it
labours to be accurate, thq slower is, its pace.; invention.can pro-
ceed much more rapidly. This is one. of the causes of the inaccu^
racy of recitals in ordinary conversation; when memory is at faulty
the move rapid invagination supplies it^ defects. . . . . . ;

In regai'd to the degree of promptness in the witness, there can
be no fixed rule. Here, as in conversation, the nature of the case
points o)it the shorter or longer time necessary to recall a particular
&ct.; But, in. general, whjen a witn^s. appears in a court of justice,
iu virtue of a judicial summons, he has had time to recollect him«
^ self, and comes forward in a state of preparation.

Delay to answer, when carried beyond itsnatural term, becomes
silence^ and, in many cases, this silence turns to the disadvantage of
the person examined. It produces a suspicion of intHitional con-
cealnient, or of a disposition to lie; and if it be one of the parties
Svho. continues obstinately . silent, a presumption arises, that he
knows the weak part of his case, and is. doubtful of his right.

Is it apprehended that the rapid course of oral exaipination nouiy,
inanianner, stupify the witness, and derange the operations (rf*
memory ?. There is very little room for thi^ objection in public pro-
cedure, where the innocent individual feels that be has protection
on every side. Where there is no crime, there is no danger, no
fear. In telling only the truth, be can be contradicted neither by
himself nor by others. Anxiety is the natural companion of inven-
tion. Tranquillity is the natural companion of memory. It is true
that the most sincere witness may commit a mistake, and need to
correct himself ; but is this contradicting himself ? No; on the con-
trary, it shpws his respect for the truth, ^nd gives him higher claims
to confidence. He speaks to men who have all had experience of
these momentary mistakes, for which nobody has any reason to blush*.
. 2. 77<e questions are put separately. This form results naturally,
firom oral examination, but not neeessarily, and it is right to make

it a rule ; Uft^in % Mart of jittlifi^ is In ednmsatlott, an exauiiner
majr Ttttiltiply lito questions without waiting for the antwen. Such
a proceedlpg' is^ in one sense, absurd, sinee one question makes Ae
witness forget another, till he does not l^now where ha is ; but. In
another sense, it is dangerous ; for, if your witness be inclined to
deceive, you yourself^ by giving falm a series of question^ assUa him
io arrange bis answers j you suggest to him information, without
which his Ibvention would have been at fiiult. His examine
becomes his prompter.

• > 9. JBbery ftesHm ame$ oti# of an onMer. This, loo, is the natursl
ecnne of oral exannnatlob j but a different one nugr be Mtowed.
After eaA qae$tioti the examiner may be sent out ct court, and the
answer tsl^ in his absence; but what good purpose wotdd this
stnre 1^ If the answer be concealed from him, he does not know^
'#liere to place himself in order to proceed, and render the testK-'
mony accurate and complete. He is in the same embarrassment as
a'dies^ pl^y^y ^^ cannot know what move he ought to make, till
Ms anti^fonist has played.

' If the witness t>e friendly to you, equally desirous to g^e as you
«pe to receive every infennatkm vtktive to the iiict, a nde, wbicfa
pt^vtnteil you from founding your qoesllons on his answers, might
be extremely prejudldal to you. But if, in jriace of a willing and
teiaeioais witness, you have to do with a reluctant and lying adver-
sary, yOttr eonditioD becomes a great deid worse, if you are not
^owed to examine Um on equal terms.

< There are conceivable cases so simple, that sU the questions
itt%ht bo arranged beforehand^ because all the answers dm be
foreseen ; but where the matter is in any degree complicated,
where the links are numeroos, such a plan is impracticable.

4. The pr ueme qfthejudge^ that is, of the same judge wlio i^ to
pronounce the decldon. This most important considieratkin de-
serves to be treated in a separate chapter.

CHAPTER V.

or THS rasssNCB of thb jvdgb, at thb cxaiiixatiok.

Bv judge, I here mean liie person to whom it belongs to pro-
nounce the decision. The duty of hearing the witnesses and col-
lecting the evidence, is frequently intrusted to a simple commis-
sioner, to a/aige ta/brmofear, who transmits it, in writing, tothe
iopefior judge: die htter examines these 'documents and decides;

in England in the Ecclesiastical and Admiralty courts. ...
. The separation oC these two fuhctioiis (that of taking the evidence,
and that of decidipg)^ offers no one advantages and is prolific m had
ponsequences. When I say no one advantage, I meaa no advaotivs
for the service of justice i for the judges theni8elve9,. it has
several. . .

. LA judge, who has not heai*d tlie witnesses, can neter be snvti^
^hat the written depositions rapr^ent faithfully the oral testimony^
or that it was originally accurate and complete^ When he hM tbA
parties and the witnesses before him, be secis where this lestinony
is defective; and, by putting questions, ohtaiits the iDfovmation
which he wants. Who knows:better than he, q^ what points hia
conviction is unsatisfied ? Who can better seek the essential ftatute,*
that which ehKracterisefi the truth, tb^t wbicli ia to: have most
influence on his decision )

When be must receive hia lights only fifom wdtlen d(iciimtats,'ba
can suppily no omission, be can obtaia no eixplaiiatidn of viiai magr
be obscMre; he dannot find his way among tka doubts, in vAofh,
Gqntffdict^^ testimonies may leave htm.

2. Testimony brought forwiod in this inferior form, is deprifrcA
of its uMMt instrucfive part— of tibal circumstantial evidence rent^tW
i^ng from the conduct of witnesses and piarties, which adds soianek
strength to oral testimony. The jud^ can no longer disoeratarp
his own observation those characters of truth^ at once so striking
and so natural, which arise from physiognomy, the tone of voice,
the firmness and readiness of the answers, the emotions of ^r^ die
simplicity of innocence, the embarrassment of bad faith; he may;
be said ta shut the book of nature before him, and to make hhmiel£
. blind and deaf,.where he ought to hear and see every thmg. . Thensf
are^ indeed, many cases in which diese indications, resulting from;
the behaviour of persons, ai^ not required; but it is impossible to-
ascertain this beforehand.

ft. Another inconvenienbe of this separation is, that it bringa with
it useless expenses, vexations, delays ; fi>r two operations are re^
quired where one would suffice. In die greater number of eauseay
if the s^me judge, who takes the evidence, were likewise to decide^
his decision could be given immediately ; and if both partiefir were;
satisfied, there woidd be an end of the case : if otne of them M^as

dissatisfied^ an; appeal would lie. *

But wheii these ftinotions are sefwfaled,^ notbfaigi e« befitlirily*

s^Uled.in t^ fir^i iiMtonee, however strong the testimony may be.

There must always be two operations performed i one^^ by tde judg^-

1

98 ATKBJifnwxnr

whor takes the evidence j the other^ by the court which' i^ to decide
upon it.

, Further, the presence of the judge at the examination is, under
the auspices of publicity, the best security for the observation of
nrielB. He will allow neither captious questions, nor conduct which
might intimidate the witnesses and patties ; he will cut short the
aftercations of advocates, he yrill lay a more powerful restraint on
Iblsehood ; Tor the law should invest him with the power of inflict-
ing, in case of false testimony, an instantaneous punishment on an
instantaneous conviction.

They who wish to justify this system of separation, will perhaps*
say, that a inan, who is competent to take evidence, may be very
incompetent to give a decision upon it ; that these are two distinct
talents.

This is a mistake. In taking evidence, every thing has a refe->
rence to the decision ; the evidence is only a mean, the decision i^
the end. The head, which is not capable of the one, is not capable
of the other. It requires a veiy enlightened man to select, fi*om a
great number of testimonies, that which is essential: If the judge
who takes the evidence is not a man of ability; he goes off the
scent; he loses the thread of the evidence ; if he piques himself on
ingenuity and subtlety, it is still worse ; for he has recourse to in-
sidious and perfidious methods, and viplates the first law of justice,
under the pretext of serving her.

1. Cotes in which the separation is unavoidable.

. If justice caninot be administered in the. best form, it does not
follow, that it ought not to be administered in a less perfect one.

i. Cases will occur, in which the paities and witnesses arie not
under the jurisdiction of the court that is to decide. Where they
are in a foreign country, the barrier is insurmountable; where
they live in another provincej^ there may still be diflkokies, greater
or smaller.

2. Even when there are no physical reasons to ' prevent the
appearance of a party or witness, there may be prudential
reasons for adopting a different course, in order to avoid delays,
expenses and vexations, where the concomitant inconvenience 'pre-
ponderates.

3. It may further happen that a mass of testimony ' collected at
a distant period, in a different cause, either between the same or
other parties, may contain something applicable to the cause at
i^ue, while the personal appearance of the witnesses has become
impossible.

/

JUDICIAL BVIDBNCB. 9J

If. Modifications of which the system of separation is susceptttle.

The separation may be either total or partial ; totals when no
member of the court, which decides, has assisted at taking the evi* .
dence ; partial, when one or more members have so assisted.

If the separation is total, the evil is what we have already de-*
sciubed. If it is only partial,, it stands on a somewhat different
foptiug: I. The judg^, M'ho saw the witnesses, may communicate
his observations to his brethren ; ii. He may correct any inaccura-
cies or defects in the written eviflence, and an3we|r the questions of
his colleagues ; but all tbii^ depends on his capacity and inclination. ^

.In fact, such a tribunal is composed of judges, one of whom.i^
perfectly competent, and the others utterly incompetent to give a
decision, in which, nevertheless, they have all an equal share.

Do they follow their better informed brother ? A decision, which
is, in reafity, only the judgment of one, will enjoy, if it be erro-
ileous, the support of all his colleagues, who thus form a rampart
agaiost public censure, and give to injustice a false appearance of
justice.

Are they of an opposite opinion to his ? In thjs case you have a
number of judges, comparatively not so well informed, opposing
themselves successfully to. that one among them, who drew bis
knowledge concerning the fact from the only true source.

III. Causes of this separation..

It is not difficult to discover these causes. It is no wish to give
a purer and more impartial decision, that has led to this separation,
but a false idea of dignity, or a natural inclination to spare one's-self *
the most troublesome and least brilliant part of his labour.

To decide, is an operation which requires no more time than you
are willing to spend on it; but to hear witnesses and collect evi-
dence, is a series of operations, which cannot be performed without '
a considerable portion of time.

Witnesses are taken from among all sorts of persons ; and, as the
great majority of the people consists of ignorant, unmannerly indi-
viduals, they are not the society to which judges are accustomed;
tl^ey are bad company. It undoubtedly is more agreeable to receive
their evidence in writing, and hear it commented on by advocates,
well bred and well educated men, who pluck out the thorns, and
facilitate the course of business.

96 A TRBATISB ON

CHAPTER VI.

9H0ULD A WITNESS BB ALLOWED TO CONSULT NOTES ?

• » * .

This may appear a strange question* The witness^ to whom
you refuse permission to eonsult his memorandum, his journal, his
letters, claims it as absolutely necessary to refresh his memory, and
asserts, that, without this assistance, it is impossible for him to give
accurate and complete testimony.

On the other handy what you want is a prompt and unpremedi-
tated answer i if you allow him to consult notes, you partly loseihe
advantage of that lively and quick examination, which does not
give bad faith time to think.

But the balance between these two inconveniences is not equal.
For, if notes be excluded, there are cases, in which the evil you pro^
duce (by evil, 1 here mean inaccurate and incomplete testimony,) is
certain ; if they are admitted, there is merely a chance of error^ a
chance that a witness may take advantage of this facility to escape
from the danger of unexpected questions. ^

Since the propriety of admitting this auxiliary does not depend
on any specific quality of certain causes, but on the circumstances
of the particular case at Issue, it is impossible for the legislator
to draw the line. It must be left to the judge to decide, whether
notes shall be allowed.

They T¥iU be admitted in complicated ca9eci~in matters of ac-
count, which require peculiar accuraoy-rin causes that turn on
• events, the thread of which can be found only by means of dates-*-
and wherever the memory of the witness appears to waver, whether
from age, or the agitation which may arise from the solemnity of a
iBOiirt of justice.

This permission, however, mm be grafted oply under copditions
"which confine its dangerous tendency.

The ei^aminer shall retain fiill power to examme, and to examine
before, or during, or after the notes have been referred to. The
judge, likewise, shall be flowed, before a memorandum is read, to
dr^w from the witness all that m^re recoUectiQu can furnish i he
shall b^ve the power of examining the notes^i orofcomiwimicatiiig
^hem to th? parties interested ; he shall h^ve thepawer of ordering
them to be lodged in court, and of fiieing; ^ day for a special «-
amination of them. •

If a witness has been allowed to read notes for the purpose of
repalliog events which he has seen, or words which he has heard.

he must be required to affirm directly^ after he has in some measure
refreshed his memory^ that he recollects these facts and words.
This assertion should be put under the guarantee of the same sane-
tions with ordinary testimony ; and if he hesitates^ the facts alleged
in the notcis ought to go for nothing.

It will often happen^ that the memorandum, of a fact^ or a series
of factSj contains^ besides the details concerning the fact in ques-
tion, other particulars, which have no connexion with the cause,
ieind the disclosure of which would be prejudicial to the witness.
Let the judge look to this; it ought to be a legal, as it assuredly is
a moral obligation on him, not to expose witnesses to vexations of
jthis nature.

It may happen, likewise, that notes or letters, produced by an igT
norant, weak-minded person, contain various matterS| of which an
advocate can take an unfeeling advantage, to ridicule the witness
and expose him to contempt. This is an offence against the repur
tation of an individual; and the judge, who allows it to be com-
mitted in his presence, without repressing it, is an accomplice in
the misdeed.

Certain previous questions will enable the judge to appreciate
more correctly, the nature of the memorandum. When were these
notes made? was it shortly after the transaction to which they
refer ? What was your motive for making them ? Are they original
or a copy } Are they in your own hand or that of another ? If the
latter, bow did they come into your possession ? &c«

But, it will be said,' if a witness is allowed to have recourse to
liotes which are not in his own handwriting, is not this just allow-
ing a suborned witness to depose to a false statement, written down
for him by the suborper ?

This objection goes the whole length of prohibiting the admission
of notes in all cases whatever. For, if a third party can invent a
&ble for the witness, the witness can, likewise, invent one for him-
self; if it be possible that a third party may have composed for him
a &lse written deposition, it is equally possible that the witness niay
haye transcribed it with his own band, and is giving as an origimd
what is only a copy.

Prohibit this auxiliary altogether, and true testimony may be
ei^cluded, while that which 4$ false is admitted ; a scoundrel, with
a good in^moryi may retain the fiction which he has invented; an
h^Qest jman» with a biul memory, nsay recollect very imperlectlyy
bis owp perceptions mi observations.

h2

100 A TRBATISB ON

CHAPl'ER VU.

4

OF LEADING QUESTIONS.

A QUESTION is a leading one, when it indicates to the witness
the real or supposed fact, which the examiner expects and desi)*es
to have confirmed by the answer. Is not your name so and so ? Do
you not reside in such a place ? Are you not in' the service of such
and such a person ? Have you not lived so many yeai*s with him ?

It is clear, that, under this form, every sort of information may
be conveyed to the witness in disguise. It may be used to prepare
him to give the desired answer to the questions about to be put to
him> the examiner, while he pretends ignorance, and to be asking
information, is, in reality, giving, instead of receiving it.

Leading questions are not always hostile to the ends^ of justice ;
they are even admissible in certain cases, as facilitating dispatch or
assisting the memory.

I. — First ground of admisiion — the facilitating dispatch,

Whto the leading question goes only to shorten the examination,
and does not assist the witness in deceiving, it is, on this supposition,
equally innocent and useful.

In the above examples, the fact indicated by the question is
already within the knowledge of the witness ; the suggestion tells
him nothing ; it would be of no use to him^ even if he intended
to lie.

When there is no apprehension of falsehood, leading questions
take a much wider range than in the examples cited above. I
speak even of practice: there is no hesitation to inform the witness
of facts, *of which there U no suspicion that he can or will take a
wrong advantage.

IL^Second ground of otfrntMum— <o assist the memory.

We have already seen, when speaking of notes, that there arc
cases in which memory requires assistance. Suggest tp an honest
witness a fact, a name, a circumstance which he has forgotten, and
you call up in his mind a whole train of recollections : it is as if a
crowd of sleeping ideas had been awakened. The system of exclu-
sion has been carried much further than pmdence required.

In what cases can suggested information be injurious ? Only in
those, in which the witness is disposed to make use of it to further
his plan of falsehood. But they who wish to prepare a witness,
will rather try to give him the necessary information before the ex-*

JUDICIAL BVIDBNCB. 101

amination, wben *H can be done without exciting any suspicion^
than during the examination itself, when this artificial method
could not escape the observation of the judges. It would be ne*'
cessary.to find an advocate, who would lend himself to such a
manoeuvre,' appear in the character of a suborned person, and dis-
honour bims^lf^ with very little probability of success ; for, to make
the fraud succeed, he must count on the incapacity or connivance
of the adverse counsel, and of the judges.

It may be affirmed, that such abuses will never be known, or will
never go far, in any court which admits publicity.
. However, it ought to be established as a general rule, that, during
the examination, the examiner shall not be allowed, without the
express permission of the judge, to communicate any information
to the witness, under the pretext of aiding his memory.

It might be further ordained, that no suggestion of this ^nature
should be admitted, till the witness had finished his deposition.
Thus the inconvenience of interruptions would be obviated, and
the whole testimony would be brought out in its native purity,
before it could receive any false tinge from external suggestions.

CHAPTER VIII.

»

WHAt PARSONS 8BOULD HAVB THfi aiOfiT Of SXAMINXNO.

Who ought to have the right of putting questions ? Every
person who can exercise it for the ends of justice ; that is, every
person who has a natural interest in the cause, and who can furnish
information.

Every additional examiner, supposing him to possess the re-
quisite qualifications, is an additional security for the fidelity of the
testimony.

These qualifications naturally meet in the feUowing persons : the
judge (comprehending the-jury), the parties, their counsel, and, in
certain cases, external witnesses.

The witnesses form four classes : plaintiffs, defendants j plaintiff's
witnesses, defendant's witnesses.

Every witness/ then, may have seven examiners. The plaintiff,
for example, may be examined, i. By the judge and the jury ; ii. By
his own counsel ; iii. By the defendant or his counsel ; iv. By one
of his own witnesses ; v. By a witness for the defendant j yi. By a
co-plaintiff, or his counsel ; vii. By a witness for the co-plaintiff.

Hence^ mutatis mutandif, each of the four classes of witnesses

lOS^ A tUBATISft out

bMtig subjected to seveh ek^minet^, muItipH(!ad6tl giien iWentf-^
eighty the total number of cases to be considered;

If every Interest ought to be represented in the pefsoii of ail elc-
atniher^ ii follows^ that l^uch of these twenty-eight caises ^ are ex-
cluded^ are just so many examples of incoherent atid Un'reasonabte
regulations.

There id every thing to hope^ and nothing to fear^ from the lifi-^
restrained power of examining* No man can insist on exclusion but
fbr dome purpose contrary to justice^ unless he can found himself
on one of the collateral inconveniences which have been mentioned
^«-such delays^ expenses^ or vexations as are manifest and easily
appreciated.

Allow witnesses to examine ! This requires an explanation.

In ordinary cases^ as external witnesses have no interest in the
cause, there is no reason why they should possess thid right } if thef
did, they might easily abuse it. The discussions would be stopped
by perpetual interruptions, full of heterogeneous matter. A scoun<«
drelly plaintiff or defendant might summon an unlimited numbei*
of confederated Witnesses, who, by malcing use of this privilege,
might create endless delays.

It i& not, therefore, to be granted to them as a right; it is only a
privilege or faculty, to be exercised with the permission, and under
the control of the judge, or at the request of the parties.

I see three eases In which it might be useftil.

1. There may be a manifest contradiction in the depositions of
two external witnesses ; the judge thinks it may be cleared up by
an unrestrained conversation between them ; and if there be no
way to reconcile them, one of the two depositions Is necessarily
false.

• ^ • • • •

3. Although it be extremely desirable that an external witness
should have no interest in the cause, yet the contrary will often
happen. If such a witness hears a fyfit stated, which he can prove
to be false, and which, if received as true, will be prejudicial to
iiini, on what ground could a refusal to hear him be justified ?

3* But besides this casual interest, he may have another — the de-
fence of his reputation. '^ If what that witness asserts is true,
what I have said is fiE^lse. I request to be allowed to examine him.^'
This is the natural right of self defence ; and who does not see, how
much justice herself may gain by it^

It is objected, " This is to make processes breed processes.** So
il is I but the inconvenience is limited to the immediate prosecu-
tion of a false testimony; and by seizing opportunity, as it were, by
the forelock^ at the moment when the whole evidence is at hand^

JUDICIAL ' BVIBSNCB. 10$

the ntbir may t>erlilips be decided in fewer minutes, than it wolild
be in days, if it were postponed. The conduct of the antagonist is
still painted in the mind of the judge in its true colours; there is no
time for inventing pretexts, or labouring to suborn witnesses } and
the more immediate the conviction is, the more salutary i; its in-
fluence as an example and a restraint.

fm^/^^ ■ ■■> II H II < i » !■>■ n iw^Mla

CHAPTER DC.

&r EXAMINATION BT A tBIlNDIiT OR BOBTILB PABTY. OV TBB APVBCTItflf i

aurposBii TO bxist bbtwbbn thb bxamineb and tob witkbss.

Wbrb there any criterion, by which the dispositions of the wit-
ness towards the party who is affected by his testimony, could be
certainly known, the task of the judge would be greatly facilitated.

I. He would be on his guard against the sources of deceit ; he would
know on what quarter fklsehood was to be apprehended ; and how
much should be ascribed to partiality for or against either side^

II. He would see the intention of leading questions, whether they
were put to guide a witness, or to lay a snare for him | and he
would be able to cut short delays, which have no other object than
that of serving one of the parties at the expense of justice.

Interest and sympathy are 4;he natural indications of the feelings^
which eidst between the witness and the party examining him.

These indications, however, natural though th^y be, are any
thing but infallible. Why 1^ because the apparent motives may be
counterbalanced by concealed motives of greater strength.

It is certain, that, if I have had the choice of my witnesses, I
will naturally have taken suoh as are friendly to me, or sucb, »t
least, as I reckon neutral. But this presumption often tufns out
fidse. It dMS not always happen, that the party can choose his
own witnesses ; nay, the contrary^ is the more common case.

Let us suppose, that the witness, examined by my coansd or
myself, is a co-plaintiff with me in the cause. Here, surely, it may
be presumed, that his feelings are highly favourable to me, siiiqe^
in reladon to the question at iissue, we have avowedly the same in-
terest.

Though Ibe pfobability In this case be very strong, yet it May
prove to be groundleiBs, i. If the atiowed interest^ whidi uiaites tbt
two parties, be more than counter-balanced by tt $ecret interesi^
which sets them against each other ; ii. If there be ift coUusire iw^
dvnttoc&qf between Ae exuminer andilie partj^, opposed to hia

•• • • »

104 A TRSATISB ON

It follows/ that inflexible rules, founded on the supposed exists
ence of such feelings, would often be contrary to the truth, and
prejudicial to the party whose range of examination is confined by
them.* •

Hence, too, it follows, that there are cases, in which we may go
all the length of allowing investigations regarding the general cha-
racter of a witness.

The necessity for this is a very unfortunate one ; for it compromises
the peace of a third party, by an investigation in which all the
chances are against him. The disagreeableness of such an expedient
is increased by the uncertainty of the investigation, and the delays
which it may produce. Are general imputations reckoned suffi-
cient? Then the honour of citizens is exposed to attacks at once
dangerous to innocence, and inconclusive in themselves. Must
particular facts be condescended on ? Then you have one process
within another, and these accessories may become more nume-
rous and more embarrassing than the principal cause.

This necessity, melancholy as it is, may exist. There are cases,
in which the deposition of a prevaricating witness bears no intrin-
sic character of falsehood, and the party interested has no other
means left to prevent its effects^ than to attack the witness himself
as unworthy of credit.

This power of taking exceptions to the character of the witness,
is especially necessary in cases where a party is compelled to have
recourse to witnesses whose dispositions are unfavourable to him.
This may happen daily. I have suffered an injury ; I find myself

^ * Mr. Bentham, in a long^ dissertation, founded on these principles, crid«
eises two rules of the English law, which rest on these presumed, feelings. By
the one, a party is prohibited to put any question tending to discredit his own
witness ; by the other, he is prohibited to put any leading question to his own
witness.

If my witness, that is, a witness who appears on my suhpoena, deposes
against me, contrary tp my expectatiop, I am not allowed.to discredit him,
that is, to put questions which might oVertorn his testimony, or to attack his

general character ; because, it is said, if I have the power of discrediting him,
e will qot feel himself equally at liberty in giving his testimony ; and if I
knew him to be a man unworthy of being believed, I ought not to have brought
him into court.

. .On the other hand, I must not be allowed to lead my own witness ; because,
as his dispositions, are favourable to me, he would be too much inclined to take
advantage of them.

This reasoning of the English lawyers seems to me to be a sort of gramma-
tical error. The whole force of the argument lies in the pronoun my. the
Idgic is tite following :— What is mine belongs to me : I can dispose at my
pleasure of whatever belongs to me: my horse belongs to me,, and so does my
witness. Just as my horse carries burdens for me, so will my witness give evi-
dence for me.

^These roles arc oftea evaded in practice. See Phillips on Evid^BM^c,
Qhaprviut. "

JUDICIAL BVIDJfiNC£. 105

compelled to have recourse to the testimony of the friend^ the mis-
tress^ the servants of the man who wronged me, the only persons
who were witnesses of the quarrel. These witnesses can have no
inclination to favour me, and it b necessary I should have a check
upon them.

The Roman law, distrusting all parties who had an interest in
the cause, did not allow them to interrogate each other. It in-
trusted this duty to the judge, and to him exclusively. This system
was defective in several respects, even supposing in the judge the
highest possible degree of integrity.

1. It was defective in regard to the zeal which depends on inte-
rest. It is evident, that the zeal of the judge, generally speaking,
cannot be equal to that of the parties. . .

2. It was defective in regard to the positive acquaintance with
each particular of the case. It is to be presumed, that the parties,
who have made the matter the principal object of their attention,
will be superior in this respect to the judge.

Such is the state of things, when we suppose the jjudge to mani-
fest the most perfect probity ; but if he has a partial feeling in the
cause, what a powerful instrument does this exclusive right>of ex-
amination put into his hands, to favour one party at the expense of
the other ! It has often been observed, that judges, in consequence
of their very office— of being accustomed to see criminals, and to
believe readily in the existence of crime — are generally prejudiced
against the accused, and disclose this feeling by a stern and un-
friendly style of examination. In political causes, they have gene-
rally been reproached with a servile disposition to lend themselves
to the views of government j a disposition which is easily explained
by ambition, or by that natural sympathy which exists among all
men possessing authority. Power, a clever man has said, makes
judges after its own image.*

English law was the first to obviate all these dangers, by giving
the parties the pow:er of examining the witnesses ; and hence it
has an appropriate term for the result of this power, cross exa-
mination.

* Etienne. Piscoars $ar la censore.

106» A tH^AtlSS ON

■ • ' •' . •

CHAPTER X.

r

COMI^ARUOlf 6t tHl DlFFESeirt MODftS OP BXAMIITATION.

I. Cmnparkon of th£ oral with iki opiOolary mode.

i. TH£stt two modes are equal In point of partkulatity. Inhere
i^ no qneistlon, which may not be written^ as well as put verbally;
thete is no circumstance^ which may not be got at In the one way^
as well as in the other.

In reality, however, there is a great difference between them, even
in this respect ; the febillty of verbal examination leads to details,
which one would never have thought of in drawing up a series of
written questions.

^. In regard to the permanence of the testimony ; oral testimony^
With the assistance of stenography, is not inferior to the epistolary
mode.

3. If the witness is supposed to have both capacity and good
faith, the epistolary mode would possess a very great and evident
advantage in regard to the accuracy and completeness of the testi-
mony, in so far as these qualities depend on a due and honest use
of reflexion, to recall all the facts, and place them in their true order,
"there is no longer any room for the imperfections of a sudden exa-
mination — for the agitation which may,- for a moment^ derange the
memory — for involuntary transpositions of facts and circumstances*
This is undoubtedly the principal reason^ which has made this
method be adopted in so great a number of cases.

But, as has been stated, this advantage depends oq the probi^ of
the witness ; for, if he has any inclination to lie^ the epistolary
mode gives him great facilities, not only by leaving him at leisure
to frame and combine his answers, but likewise, because the series
oT questions addressed to him, is itself a thread to guide him } it
shows him the object which it is desired to gain^ and suggests in-
structions' by which he can direct himself. ^

If he be a dishonest witness, he Will not, in all probability, have
recourse to downright falsehood (for by it he might easily compro-
mise himself), but to the obscure and indistinct style which eludes
conviction ; for, in the latter, artifice only imitates the natural in-
capacity of an obtuse vand confused understanding. He will heap
words on words ; he will throw the whole matter into a state of the
most complete disorder; he will be difiuse on what has not been
asked at him, and silent on every thing that is wished to be known;
he will give truth itself a fajbse colouring ; in a word, he will take

JUll^ICIAt liVIDBNCB. 10

refligc In dbscurlty. Thdsfe Who at-e acquainted t^itli th6 trriften
documenta of processes^ will liot think this representation (SJtagg^e-'
rated.

In the ordl mode^ digressions^ whether arising fbom running or
from Ignorance, are stopped at the first outset. Every ambiguotis
depression become^ more striking^ If the witness persists in using
vague und equivocal language, it produces an impression unfevour^
able to his cause and bis character. Prolonged and intentional bb-
scufity is equivalent to silence. ^

The tpistolarj mode has the advantage of being altogether free
from ah inconvenience^ which may occur in the oral mode to the
prejudice of the testimony. I mean^ the case of a counsel, who,
Anding an honest witness deposing against his client, assug^es an
arrogant tone towards him, tiled to intimidate and agitaite him by
acctising him of eontradictions, and sometimes succeeds in render^
ing him obscure iind unintelligible.

I say an honest witness ; for this is not the natural course to be
followed with one, who is suspected of being dishonest. Great care
must be taken not to put him on his guard. ^ To give the falsehood
full time to imfold and display itself, a skilful counsel will allow
him to go on entangling himself more and more, till at last he is
surprised in a cpntradiction from which he cannot escape..

But (his InooDvenienge, so far from being inseparable from the
oral mode, is only an abuse of it, and one which can never appear,
except when the judge tolerates it, and makes himself an accom-
plice in it. There is no reason to apprehend, that Attempts will be
made to intimidate witnesses Under the system of jury trial, fbr
suclfcbnduct must injure, rather than benefit a cause.

• * *

II. Comparison of the other modes.

All the points of comparison come to this— to observe how far
the different securities are applicable to one mode or another.

Public examinatioH, conducted by the parties^ tn presence of the
judge : — ^these are the three cardinal points, by which the value of
each mode must be estimated. If any of them be awanttng, a pro-
portional quantity of security is awanting.

Unpremeditated answers, questions put separately, questions
arising out of the answers, the whole operation conducted under the
authority of the judge ; these are the secondary securities, which
belong exclusively to the oral mode; They may exist without pub-
Hcity, but they will not have the same strength! they will not be
s^pHed with the same zeal; there wlH alwayi^ be negligence fmd

100 A TBBATIW ON

distractioii, the inevitable effects of custom and taedium. A poet^
Hrho knew the -human heart well, has said —

On en Tant mieux, qaand on est regard^.

In the monstrous system^ in which the duty of examining is sepa^
rated from that of deciding, in which the superior judge puts the
oar into the hand of an inferior one, that is; delegates to him all
the most dilBScult and laborious part of the procedure^ reserving
for himself only the more agreeable and imposing parts of it^ the
public attention is directed exclusively to the superior judge. The
secondary personage, who works in the closet, thinks as little of
the public, as the public does of him. Many efforts are necessary
to draw truth out of the well, in which she lies concealed ; none
are required to leave her in it. If he has a fixed salary, he will
shorteti. his labour so far as he can do so without compromising
him;^elf. If he is paid by the number of hearings, or the quan-
tity of writing, his interest will act the other way, and make him
fertile in expedients to prolong causes.

CHAPTER. XL

MAY TBSTlMONir, OBTAINED IK THB BPISTOLARY MOI>V> BB MADB THB
GJI0t7ND OF DBCISION IN CBRTAIN CASES, IN" WBICH THB ORAL MO0B 18
IMPRACTICABLE !

Let us suppose that the witnesses are not resident in the coun-
try, or are extremely infirm^ or placed in circumstances which
render their appearance in court impracticable ; there iis n^way
of obtaining their testimony but the epistolary mode. May their
depositions, received in this inferior mode^ be made the foundation
of a definitive judgment?

The answer to- this questi6n depends on the importance of the
case ; and the criterion of this importance is to be found in the
distinction between penal and civil causes.

In penal matters, it is evident, that, if judgment could be pro-
nounced on the testimony of witnesses who bad not been subjected
to an oral examination, there would no longer be any security.

The case is not the same in civil matters ; they admit appeal,
and alwaysleave some means of reparation. ^ But, even in the least
important class of civil cases, it would be contrary to all justice, to
constrain a court to give judgment on such evidence.

We have already seen in what its inferiority consists ; but it should
be further observed^ In regard to absent witnesses, that they may

JUDICIAL, KTIDENCC* X09'

be in circumstances which do not put them sufficiently within the
reach of the law ; that is^ that there may be no way of seizing
their persons, if they are guilty of false testimony. By means of
a felse witness^, or a band of false witnesses, placed at Hamburgh
or Paris, an individual in London might prove false debts to any
imaginable amount against other individuals in London, and yet
the false witnesses would be exposed to no danger.

'On the other hand, to prohibit judges from ever pronouncing a
sentence on evidence of tiiis nature, when taken with every proper
precaution, is to deprive them, in certain eases, of the power of
doing justice, and to force them to reject testimonies so worthy, of
belief, that even the party, against whotu they operate, would be
ashamed to throw the least doubt on them.

The same principle has been at work here, which dictated gene-
j'ally the whole system of exclusions. Men's eyes were open to the
danger of felse testimony, but shut to that of wantiqg testimony
altogether. Yet the latter is the greater danger of the two; for,
false testimony does not necessarily bring along with it a false de-
cision ; nay, it pertiaps rarely happens, that it is not detected or
suspected.^ But where there is a want of evidence, no sagacity *in
the judge can supply the defect ; a false decision is a necessary
consequence.

CHAPTER XIL

OF EPISTOLARY EXAMINATION ; HOW IT MAY BE MOST ADVANTAGEOUSLY

APFLIBD.

• . ' » . ...»

Epistolary examination, as it does not afford all the security
of the oral itfode, ought never to be employed in preference to it ;
but since there are cases in which it is indispensable, we must in-
quire how it ought to be applied.

It ought to be accompanied by the two following correctives, as
secondary securities:

\. Let the witness always speak in the first person.

'2. Let the questions and answers be divided into, short, numbered
paragraphs, so that it may be easy to catch any. of the one series
that correspond to aoy of the other.

L The witness must speak only in the first person.

I observe, on^this rule, that it is contrary to the generally esta-
blished practice of technical systems ; the witness answers in the
third person : the deponent says^ the deponent has doney &c. instead
of I say$ I hfive done, &c;

110 A TI^BATISIB 0|l

■ • ■ ■

Tbc^ prigiii of iiluuii odd and ridiculQua custom gpeg ^ql( ta tb?
tini^^ wben the art of writing was a monopoly in the hai)d^ of
ficholars and lawyers. Witnesses^ who had to make a written state-
plenty applied to an advocate^ who drew it up for them ; and the
writing, signed or not signed by the witness^ became a sort of hear?
fuiy evidence.

The assistance of a lawyer was not without its uses. A man of
tho ordinary classes^ when left to himself^ can never confine himself
tQ his subject j he omits what is esseutial, and loses himself in what
U naerely accessory. The lawyer^ for the sake of bis own character^
represses these aberrations, and brings him back to the principal
point. This is a, sensible advantage I but there s non^ at all in
choosing an indirect form of expression, and in relating what the
witness has told faimj^ instead of making him speak in his own
person.

. Qn the contrary, there is a great inconvenience in it. The x^^
|(ponsibility of tlie witiiess is diminished in hi| own ^cs. | ^hsk% bil
says is no longer said in his own name^ but in the name of another
T-rof another, who is more Qble than him^If, who koows better whtit
ought to be suppressed, and what turn should be given to the
facts. It is not he who bears the blame, if there bo aiiy i it is
not his conscience, that is to answer for what another has written^
What another says for me, is less or more his affair ; what I say
in my own name, is exclusively my own affair ; I alone am answer*
able for it.

This may perhaps be thought a subtle distinction j but, on a little
reflection, it will be found to be just.

2. The paragraphs ought to be short, and numbered.

Tbo paragraphs should be short ; why ? the fable of tlie bundle
of arrows^ frail when taken separately^ but strong when taken eoU
lectively^ furnishes an answer, allegorical indeed^' but easy to b^
understood.

. JXm^^ et impera: a maxim of tyralmy ; let it be so^ it Is, never-
theless, likewise a maxim of logic, and a very important one. Jt Is
by the divisioi^ of a subject, that you make yourself master of it.
4> fUshonest party tries to save himself, amid the cpufusion qf ai lurge
mass of testimony; he leaves questions unanswered; the greater
the quantity of useless matter, which he heaps on, the more difl^ult
does it become to perceive, how mueh of the essential he is opait-
tiuf* When a series of questions, distinct and numbered, is laid
before btmi every wswer ynust refer to its own number 9 the eon*
fronting of the question with the answer is direet ; the whole atten«
tlon is fixed on a single pomt; the insuffieie^e;^ of an answer is

JXmiCtAI, SyiQENCB. lit

•

immediately seen ; and t^ party, who finds bimself exposed tQ ^^
censure of the judge, is restrainerd by shame and fear.

The questions naturally assume the form of a short, simple, pro-
position. If a question is complex, instead of being simple, this is
instantly seen, and it is easily seen, too, how it ought to be d^cqm-
posed to resolve it into simple propositions. When a man wishes
a distinct answer, he is always inclined to put a clear and distinct
question; but if he has any desire to confiise and protract the
business, be puts obscure and intricate questions; and this of itself
is an indication, that he is acting with bad faith.

As questions produce answers, so answers frequently produce
new questions ; and, in these successive explanations, it is often
necessary to refer to preceding ones. Imagine, then, into what
difficulties you are thrown, to what a load of repetitions you expose
jourself, if you have not the clue of numbers to guide you through
this labyrinths

Who would believe, that it could be necessaiy to prove thmgs so
plain ? Who would believei that he must despair of seeing Ui^m
adopted ?

CHAPTER XIII.

OF THS WRITTEN RSGO>]> 0? TiiB DEPOSITIONS*

In the preceding Book, (Cap. IX.) we saw the various advan-
tages to be derived from preserving depositions by means of

writing.

• As there is no case, in which this record of the evidence may not
serve the direct ends of justice, there is none in which it ought not
to be employed ; but it is an operation, which brings with it ex-
pense, delays, vexations. The defendant would often have a strong
repugnance to the measure, and, still more frequently, it would be
laying too heavy a burden upon him.

It must be reserved, then, only for the most important cases; and
tb^ judge must have the power of ordering it, either of his own
lic<SQrd, or at the request of one of the parties, if it be founded on
IK>me SQlid reason^ and, above all, if. the party demanding it uuder^
tak^ to pay the expense of it.

It if in proqesses for debt, for personal injuries, and other cas^i^
in which there is no douttt about either the law or the fact, that
this leearity ia least required, a^d theie are, to others, at leant in
the pioportion of nlnetew to twenty. The ^awi^ wWch may d««

112 A TRBATISS OK

*

serve this character of permanence, are. Id c;vU matters, i. Causes
relative to real property; ii. Causes relative to testaments; iii. Causes
regarding the civil status of persons ; and, in criminal matters, all
oflTences which bring corporal punishment with them.

Ought this record to contain the questions put to the witnesses
as well as their answers, or only the answers ? Usage is not uniform
in this respect ; but it would appear, that, in a great number of
cases, it is not possible to know the full value of the answer, or the
real intention of the witness, without knowing the question which
was put to him. It is essential, that the record contain all the alle-
gations of the parties, and every step of their proceedings ; that it
point out all the documentary evidence which has been produced ;
that it give a list of the witnesses examined on both sides ; and^ in
cases of great importance, that it state, not' merely the words of the
witnesses, but likewise all characteristic incidents, gestures, excla-
mations, affected reluctance to answer, and any other symptoms,
which give proof of the disposition of the witnesses or parties.
The record ought to be signed, before the court rises, by the judge
and some of his assistants.

Under the system of secret procedure, in which the judge, who
takes the evidence, is not the same with the judge who gives the
decision, every deposition is signed by the witness himself. This
security is necessaiy for the accuracy of the record ; but it is a very
imperfect one, and many reasons of distrust still remain.

In public procedure, only a short-hand writer can follow accu-
rately and completely the whole course of the evidence. Steno-
graphy ought to be considered an indispensable qualification in a
judicial clerk.

CHAPTER XIV.

OF SECRET CbNFINEMENT.

If it is wished to put an accused party beyond the reach of all
suggestions, which might assist him in deceiving justice; if it is
.wisbed to deprive him of every opportunity of either receiving from
his accomplices, or communicating to them, information which
might lead to a well-concerted plan of imposture; the nature of
things furnishes only one mean of accomplishing it — secret con-
finement.

But against this mean there are two veiy strong objections:
1; Solitary imprisonment is of itself a serious punishment inflicted

JXTDICIAJL BVIBBNCB. 1)3

mi a pemm who may be innocent ; u. The inta'ruption of all com^
jnunicatioifs fncMn wi&out, may deprive him of his means of de-
fence, while it gives his enemies the opportunity of destroying his
justificatory evidence*

Were this absoltrte confinement continued till the day of tii'ial^
the most innocent man, coming into court without havings had the
power of taking advice^ or collecting his evidente, might be in no
condition to meet his accusers.

This evil would be carried to its utmost lengthy under those
odious systems of procedure which are so fertile in factitious
delays. ■ • • ... ,'...'..;

If the offence be sufficiently serious to justify the Immediate
arrest of the acfcused^ the only interval, during which it is necessary
to insulate him^ is that between his arrest and his examination.
The examination ought, on every ground, to take place without
delay. li; from the nature of the case, it cannot be finished in a
single heading, the solitary confinement ought to be prolonged.

As soon as the individual, thus insulated, has given his declara-
tion, the doors of his prison should be open to all with whom he
may wish to advise. This liberty, so necessary on the supposition
of his innocence, does not give him, even if he be guilty, those
fiusilities for evading justice, which it is commonly believed to do.
His deposition is already fixed by writing ; he can no longer escape
fix>m it ; any information, which he may receive from accomplices,
cannot essentially alter that fundamental statement. He may pre-
tend that he has made a mistake here, and an omission there ; he
may change some details ; but his original deposition is a mean of
comparison, with which every subsequent one can be confronted;
and, supposing considerable discrepancies to arise, it would easily
be seen, which side bore the characteristics of truth or of false-
hood.

Let us now take the case of an external witness. Let us suppose,
that he is an accomplice; or that, without being an accomplice, he
is disposed to fiivour the a(icused by his testimony, cost what it
may. He can have no communication with the accused, while the
latter remains au secret ; but, if there be several accomplices, or
several friends, they may, if left at liberty, concert and prepare a
plan of imposture.

Thus, the same reasons, which justify the solitai7 imprisonment
of the accused, justify the arrest and solitaiy confinetnent of those
who are regarded as his confederates.

What ! it will be said, arrest witnesses, and consign them to soli ]
tary imprisonment, without any confederacy being proved, merely

lU

A TRBAtflM Oil MUJMCtAl AVIDBNCB.

because tbey are believed to be eonneeted wilh the fteettaea» by
interest or affection 1 Is not this just treating them as if tbey wpre
giiilty?

I answer, that the imprisonment is a precaution^ and not a ll^l
punishment. Aceording to this remoning, the accused himself
ought not to be arrested in the first stage itf the case. If he may
be arrested on the simple probability of an offence oommttted, sus-
pected witnesses may equally be so^ on the probability of another
ofibnce, that of aiding the accused to evade justlecb

Let it be observed^ however, that such Imprisonment is justifiable
only in the case of offences so heinous, that society ought to ptti^
chase their punishment, even at this price.

11§

BOOK IV.

PRE<CONSTItUT£D EYldSN^G.

CHAPTER t.

f

«

1 HI3 I19W tenoy and the reasops f^ . adopting it| are already be«
fere tbe reader; Book VL Cbap« VI.

Bf pre*cofi8titttted evidenoei I mean evidenqe, the eraitioil and
prtsenration of whidh hare been ordained by the law ae pre^requU
sites to the existence of certain rights and obligations, so that these
rights or obligations shall not be sustained without the production
of this evidence.

Aa rights are the source of all the f^vantages to be derifed from
laws> the evidence^ which secures these rights^ is equally importatH
with the rights themselves.

In r^ifard to the. rights which constitute property in moveabte
suljectSy such as wares, dothesi furniture, &c. poaeaim alonei
generally speaking, furnishes sufficient evidence of rigbif without
having recourse to pre-constituted evidence.

It is otherwise with rights regarding immoveable sul^ects, and
particularly with those which impose obligations on certain indi*
vidua(9 towards others. In these two cases, the existence oi tbe
right can be secured and proved only by some permanent an4
authentic sign*

Before the art of writing was invented, and when it was yet.but
little used, all the expedients for fixing the recollection of the ffif-
ferent events, whieh go to the establishment of a right, were e^
tremely imperfect and precarious. The principal merit of this iHf
estimable art, lies in the use which has been made of it to rephuse
fugitive signs by permanent and unalterable proo&«

At first sight, the only person interested in obtaining and f^e-
seryii^ the evidence necessary to Uie maintenance of a rtght» ii
the person in whom the right is vested.

But, on a closer examination, it will be found) that there ara
many drcumstan^gs, in whi«h other indiridwds are v^qjnnA to tike

i2

116 A TRBATISB ON

a shfire in these precautions, along with the party principally inte-
rested, or even to take them for him and in his place, i. When
he is too young to manage his own affairs ; n. When provision is
to be made for the interests of a person who is absent, or not yet
born; m. When the right concenis equally a great number of
persons. If each partner in the right had to take for himself the
measures necessary to establish and fix it, its value might be de-
stroyed by the expense.

There is another circumstance, which, of itself, would be a suf-
ficient reason for not imposing, the. care of the evidence of the right
exclusively on its possessor. It is not he who can give the right
full effect, if it be attacked ; this requires a more powerfiil hand
than his own. He can be defended only by the authority of the
judge, acting conformiably to the ordinances of the legislator.

It is the business, then, of the legislator to determine iiot only
to what rights he is willing to lend his sanction, but likewise What
the evidence is which he will require, to prove the existence of the
right.

Ute of pre'eonsHiuied evidence.

The utility of this evidence is direct or coUaterdl. Its direct
utility applies to known and ascertained parties (Peter or Paul),
who have a direct interest in the cause, and consists in establish-
ing incontestably the right which is attacked. The great advan-
tage, however, of pre-^constituted evidence lies, not in terminating;
but in preventing suits ; it has, so to speak, an anti-litigious ten-
dency. This service is the more perfect, inasmuch as it is per-
forftied-constantly, to all the world, without being noticed. By the
mere fact of its existence, this evidence, without expense or ^uits,
puts these rights and obligations beyond the reach of all the at-
tacks which would not have failed to have been made on them,
had there not existed this means of giving to the evidence the cha-
racter of perpetuity.

The collateral utility of pre-constituted evidence, regards indivi-
duals not known and not ascertainable, but whom the mdeitermi-
nate course of events puts in the way of deriving many advan-
tages from it, which they would have lost, had not the evidence
been thu& marked with' the character of permanence and certainty.
• We shall see, that it might be rendered extlremely useful to po-
Utical statiitics, as it provides a mass of documents concerning events
most interesting to the community, arid most useful as funiishing a
basis for the operations of the legislator.

The utility of pre-constituted evidence may be put In another

JTTBICIAL XVIBBNCB. 117

point of view, not as it regards the parties^ but as it regai^ds the
courts. By means of it^ the judges attain complete certainty in
tlieir decisions, and can proceed with a sure and rapid pacey in-
stead of groping about in the uncertainties to which tbey would be
reduced, if this species of evidence failed. Besides, their duties
are greatly lightened; in other words, the number of disputes,
which would be brought- before them, is greatly lessened by the
anti-litigious tendency of this evidence, by its continual, though
scarody perceptible, operation, to keep rights beyond the reach o«
ilbubt and chicane.

■M*

CHAPTER II.

WHAT THE LAW OUGHT TO DO IN RELATION TO PftB-CONSTITUTED

EVIDENCE.

Thb law has four objects to fulfil relatively to this important,
branch of evidence.

1. To make provision for establishing it, in all cases where it is
particularly useful.

2. To adapt it, in each case, to the service expected from it.

3. To render its forms easy, convenient, and as little expaisive
as possible.

; 4. To establish means of giving it publicity, for the interest of
third parties.

It cannot be too much multiplied; for nothing can be lost by it,
in point of truth, while every thing may be gained in point of per-
manence. Tills is one of the great advantages of civilization, over
barbarism ; among a civilized people, every thing may be pre*
served, for every thing may be written.

Thejre are even cases, in which parol evidence might be ex-
cluded, in favour of written evidence, but under two indispensable
'conditions ; i. That this exclusion shall be announced beforehand
by the law, not subsequently by the judge ; ii. That the instru-
ments shall be drawn up according to forms fixed by law.*

What are the transactions, in which only pre-constituted evidence
shall ^ be admitted? Contracts. To exact that contracts shall be

* The author, wben treating^ of exclusion (Book YII. c. 14,) goes fiirther ;
be is for admitting {Mtrol evidence in contracts not written; but the contradic-
tion is more apparent than real. To what does this chapter amount? To an
enunciation of the exceptions which the law most malce, and the precautions
which it must adopt, if it rejects parol evidence in oentracts.

1 18 A TftBATt8B ON

tvritf«o> is not lining any restraiat on the liberty of ilidlviduide.
The latu^ 8ays» as itiirere) to the citizens, ^ In lending my sanetion
only to written contracts, I Fefiise not such as you may hftve mtide^
but only such as may be falsely ascribed to you* Thus, far from
weakening and olrcuuiscribing your power, I only strengthen Und
extend it; foP, to give all contracts a quality whkh reiiders them
mvallable, I require only one condition, and that a condition which
depends upon yourself/'

At the same time, measures must be tfken wi|h copteaela of
small value, and with transactions which must be suddenly madet
without having time to Write them. Two expedients may be
found for this : the one Is, not to subject such contracts to the
formality of a written instrument ; the other, to allow an instru-
ment to be drawn up within a given time afc^r the conclusion of
the agreement.*

But in regard to all the contracts, in which law will not admit
parol evidence, a complete catalogue of them should be made out
and rendered' as public as possible. It is needless to prove the
necessity of this precaution ; yet it is but too needftil to mentloii U,
for in practice it has been- almost universally negleeted.f

In all established sys);ems, writing has been required in aeveml
contracts. ' Thi^ has oft^n arisen from views of policy^ but perhiips
more frequently still from views of finance.

I h^ve spoken of the forms of contracts. The development of
this idea does iiot belong tD evidence, but to pvoeedure. I should
not know where to begin, were I to attempt to give a view of i^
the defects of such a compoi^tion, according to English practice.
Instniments, which require only a few lines, are- amplifled Co a
monstrous size, loaded with useless words^ redundant phraaei^ mm!
superfluous clauses ; throughout their whole extent, they do nol
present a single point of repose, a single paragraph, or any iHi«-
tinction between parties, till the enigma, having grown into a vo-
lume, become^ absolutely incomprehensible to those who are mdst

'«****i<^B»>«i*Ml^bAs«*l*MBriliAMMWMWka^

* The Freocb civil code (Art. 1341) exclades parol evidence only in claims
above the sum of *150 f^anks^ ^

It ^uthprise^ the admission of parol evidence, even in sums above that
ampunt, in all cases where it was impossible for the creditor to procure a
written documeiit. 'The <lases inoluded under this exceptien, are enumerated
in Art. 1348.

In commercial matters, parol evidence is admitted without any restrfctton
an to y^lw, in <)antraot|i pf sale, for ei^ample. Code de Commi^rce, Art' 109.

t The orditianee of Meulina, which is 4ne to the Chaaeellor THopital^ the
ofdinanoe of 1067, under Louis XIY. and the oivil code, proceeded differently.
The' general ^mlo of exolasion was first laid down, and then the eneeptiiMii
from it announced. It omnes tn the eame thing*

it^i^mtpd in uadentm^ing it. These are the ferpig which chicnie
has iaveuted ; and the great body of the people^ force4 on soniQ
occa^ipo or anqther to have recoprs^ to the ^ibuQftl«| ai|4 fo rpajr
dearly for this cumbersome and unintelligil^le |;rash, do not g«t pflT
evei^ with this iniquitous tribute. The i^uhappy litigants^ wifhQUt
beiug^ themselves at all to b|ame^ £ad the best acquired i^ight^rdt
fu9ed thegij if a (jingle formality h^ b^a pmi(t^<C or the fanigmn.
hiM^ b^n inisuud^rstood*^

Tke blpeets to which htb may ^Pfkl pre^ctmtHtuted evidence,

ThU sprt of evidence is applicable to t^e following pj^ects ^n-• .

1. Facts^ which have legal ^thefA — ^birtbs^ 4^.A^^4 marns^en^ 4pCr

2. Contracts, by which I mean all settlements fmd, i)greeme^
having legal pflFects,

3. The proceediugs of tl)e judicial .(lepartmeAt.

4. The proceedings of the adminisitratiye depi^rtment*^

5. The proceedings of the legislative department.

6. Written statements of ^ &ct dra^n up immediately ^prit

h^ happened. •, . .

[ 7« The registration of copies*

CHAfTfiR III*

APPLICATION OF THIJ3 fiVIDENQE TO TACTS WHipH H^VB IifGA^ £ff|ipt|U..

TO C0NTBACT8, AND TESTAMENTARY DEEDS.

FiiCTS^ wbioh bwi^ Jd«^ iffeets, miqr ha itivUM lal^ imfk
classes^, i. Genealogical facts, deaths^ births, marriggiesi fi, Himjj
Imm^SmUptim is, i^ OHiUiluda of fiuaii» of wUteb it l| imi^n^
tp pretuffi^e <b# evidenea^aa&fQisblDgstatiMioaidate.

t Fistd fonat Hit the laore cdtmnoii iasinittmiti, sud tt#i# iribsb M^Uf
aie asaaUy the same, i^roald iadbputably be T?ry assful], wqjMoi^ 11^ |fj||r%
improved with' the progress of the science.

The lAtrieai^ and redaadaney, with irhiei the avAov treproaeliet BnfllA
instromentSy existed likewise in France ; it is in the course of bein|^ correoted|
and it is Parisian notaries who have set the example. They are Kji^niiliijr ie
set down each provisiqu in a sepaiate artide $ tbise aittoieraiw na^lMred ;
by means of this division, deeds nave beeome clear aad easy ta ba •aasailMi/
in a degree which the ancient forms did not admit of.

Bat the transactions of life are too diYersified, aad i^HiliMtioa oMalns ano
many new ones» to make it possible to cireumscribe them wiUua a partaia iMiia
l^er of invariable forms. The obligation to ol^serve a writtea form woaU^ ia
^is respeetp b^ an evil, because it would prevent purties frops foMaJag tMv
i^gireement^ as they themselves wish and understand them* Fijcad ftfna^
ought, ia my opinion, to be confined to the more ordinal/ deedi# aadatMi
then every one 8h0|i)d be ^t liberty to use them or apt. If tbey apa.iMll
framedy they will come into geaeral use without eofla#ulsi9Q» .. i .

120' ' A TBSATMB ON

•

It is unnecessary to say, that births, marriages, and deaths/ are
the facts which it is most important for citizens to* be able to prove.
Who ' will not be astonished, that this truth has not been felt in
Bnj^ahd? The church of England establishes the baptisms, the
marriages, the funerals only of its own followers, and excludes all
other miembers of the great family from the benefit of this i^gistra-
tiofi. If this be no reproach to the church, it is at least one to the
state. Does it consider all, who are bom without the pale of the
ruling religion, as, unimportant beings, whose * births, marriages,
or deaths, do not deserve the attention of the legislature ? The
United States of America have borrowed this piece of thoughtless-
ness from the mother country. Who can tell, to how many indi-
viduals such carelessness may have been the cause of ruin ? *

2. To give contracts the force which results from pre-constituted
evidence, two things are necessary; j. To establish formalities
adapted to their nature; ii.To provide for the observance of these
formalities.

These formalities have several ends in view. Their objects are
to ensure the fulfilment, and prevent the falsification of lawfid
contracts ; and to prevent the making, or the execution of unlawful
contracts.

A contract may be considered as unlawful, in so far as it is the
^ect of force or fraud. Under the idea of force, I comprehend not
only physical violence, but likewise violence oflfered to the mind,
and which may hi ciiUed intinMatioiU In the same manner, under
|he* idea of fraud, is comprehended not only positive fraud, con-
sifttng in language or aetions, but likewise negative firaud— friiudu-
lent' concealments. . ^ . .

. Why. ous^t such contracts to be prevented or invalidaled? I do
not intend to analyze all the bad reasons, which figure in many law
books,^ as answers to this question : only one good reason can be
l^veii ; viz. that Buch contracts ought to be considered as producing
a much greater quantity of evil, than any good which might result
^m them. If advantageous to one of the parties, they will be

: ^ Thif want oF public regiftera is supplied by private registers. Marriages,
blrllis. and deaths, are inscribed on the blank leaf of a Bible, which serves as
a family archive.

' It is in France, that' the ml^s regarding these registers have been most
eareftilly laid down. Those of births and deaths go as far back as the ordi-
nande of Francis^ I. in 1699 ; those of marriages begin with the ordinance of
Hols, ^nnder Henry III. in 1679. These regulations have been snccessively
aiMllorlited by the ordinance of 1667, by the declaration of the king in 1796,
which is dne to the Chancellor d'Agoessean, and finally by the civil code.
Hm* registers are no longer in the hands of the clergy; a dfegree of emandpa«
tiooi attended with vary important consequences.

JCBfCIAL BVIABNCE. 121'*

injurious to the other^ or to a third party. The character of fraud
or force in a contract, has always been justly held conclusive eVi->
dence that its object is pernicious ; but, setting out from this prin-
ciple, if, in any particular case of exception, a contract, though
bearing originally this character of reprobation, occasioned no
damage, and yielded a balance of good, there would no longer be
any sufficient reason for refusing it execution.

The force of a contract rests on two ^opositions : i. It is con-
formable to my will at the moment when I sign it; ii. I sign it
with a view to my own interest, and this interest is not such as
would lead me to say I will, when I do not will. Of these two
propositions, the first is applicable to all contracts, without excep-
tion; the second is applicable to all those, which ought to appear'
advantageous to the party at the moment of making them. But this
Embraces at least all mutual contracts; for the two parties treaf
with each other only with a view to gain ; the obligation incurred
is the price of the right obtained.

The following is an important observation. The proving piower
of a contract does not extend to any collateral facts which it niay
contain. If I were to insert, in a deed drawn up to-day in Paris,
that I was in Paris yesterday, would this deed prove the fact ? Un- '
doubtedly not ; for, in this way, I might commit a murder to-day,
and shelter myself from punishment by executing a contract bear-
ing, that, at the very hour, the very moment^ when the crime was
committed, I was so many leagues distant. Thus a contract, though
admitted to be genuine, is available only to prove the allegations
which form its essence ; any incidentalYact, which it may contain^
is no more than hearsay, and can never rise to the level of direct
oral evidence, from the impossibility of subjecting it to the same
securities.

3. The formalities of contracts being fixed by law, there are twor
means of ensuring their observance : the one natural, that is, arising^
from the nature of the thing ; the other technical, or merely arti-
ficial. The natural mean I designate by a single word, suspicion^^
the suspicion of dishonesty or falsification attached to a contract^ ia
which the prescribed formalities have not been observed. The
omission of these forms, sanctioned by public authority, supposing
the parties to have been acquainted with them, excites natm*allyy
not to say necessarily, a feeling of doubt, a suspicion as to the good
fieiith of the contracting parties ; and it becomes their business to
. destroy this suspicion, and prove their good faith.

The second or technical mean for ensuring the observance oi

IB A TRBATISB OK

»

fovmolities prescribed by the law^ may UV^wise b^ desigroat^^ by
a single word> HuIKly— ^ thunderbolt in law.

. If suspicion is prl^per^ nullity is qo less faulty. To be just^ it
must proceed on a perfect conviction, that the omission of the pre*-
scribed forms is conclusive proof of the dishonesty of the parti^-
or of forgery in the contract But what is to be thought of thisi
inexorable principle of nullity, in cases where this convicti^i does
not exist, and cannot exist ; where the opposite conviction prevails
in all its force $ where contract are in question, the parties to
which were absolutely ignorant of the prescribed formalities, ^d
which, without doing injustice to anybody^ might be executed not
only without ii^uring the parties, but eminently to their advantag)e,
while the non-performance brings with it their utter ruin? * U8eU$9
or imjuBt, is the only alternative which a decree of nullity must, in
every ease, present; useless, whenever there are sufficient reasons
fior condemning the contract as false or dishonest j uigtuti when no
reason of this sort exists.

•. It may be laid down as a principle, that the legal presumption,
arising from the omission, can be overturned only by oppo^itfi
proof.

. 4^ Under this head, testaments require some partigular observa*,
Ijoiis. When an individual has executed a formal testmnentary.
settlement, shall he be allowed to alter or revoke it, even to the last
moment of his life ?

The law of Scothmd does not admit what in England are call^
tertaments dn death'bed. It was thought, no doubt» tbftt when «
man is in this situation^ he has no longer the complete use pf hii^
finmlties, or is subject to be ruled, intimidated^ or over*r#ached \^y
tboia about him.

But, on the other hand^ a person deprived of the pow^r 9$
making a deathrbed disposition, may find himself exppsed to be
^andoned or maltreated by the very person^ in whose favour h»
has executed a legal settlement of his property ; he no longer pos^
sesses the means either of punishing (m* rewarding those who f^re
to attend on him ; be is at the^r mercy i law disarms him at tb^

• There is sometliiiig here which requires explanation. This passage seems
to proceed on the supposition, that the courts annul an informal contract tr
ptoprio motu; but this is not the case. The annallinf is always demanded hf
one of the parties, and he demands it because the non-pciformance of the
contract is more advantageous to him than its performance. The non-per"-
formanee, therefore, cannot be the ruin of both parties ; for, if the contraet
be advantageous to both parties, informalities will not stand in their waj ; thejr
can renounce forms introduced for their benefit, and, if it be necessary, they
can correct the error. .

nottnt when his I^ may depend on services, wbteh he baa not the
means of obtaining.

This consideration^ independently of every otber^ seeus to be
condnsive in fiivour of leaving a testator, till his last breathy unli-
milfd power to dl^)O0e of at least a portion of hb property.

If #e consider the sitiuttion of a pei*son, whom bis infirmities
render entirely dependant on those about him, we shall feel at once
all the difficulties which oppose the free eseroise of hia will* This
suggests the propriety of making it a rule, that testaments shall
not be subjected to more formalities than ordinary oontraota ; that
they shall not require^ for example^ a greater number of witnesses.

Even where a idan is surrounded by interested oppressors^ con-
federated to besiege bis death-bed, he may still execute a testa-
ment^ as well as any other deed^ relative to his affairs ; he may
have some faithful friend, or some lawyer, who can come to him
without exciting any notice ; and, looking at the difficulty of as-
sembling several witnesses, it would be better to reqommendi than
to require their simultaneous presence at the execution of the tes^
tamentary deed.

It is particularly in regard to testaments that the non-^obsefVT
ance of forms ought to have the effect of awakening suspicipD, fiot
of producing ah absolute nullity* . There is a natural distinction to
be made between a regular testament, and a testfiment of neces-
sity,

A regular testament, is that in which all the formalities required
by law have been observed* A testament, in which any of them
ia omitted, if it is believed to have been freely made^ and bears m
mark oi fidsehood, will be considered a testan^ent of necessityt
either from the testator having been placed in snch cireumstandeet
that the legal forms could not be observedi or from hi^ having been
ignorant of them.*

I do not insist here on a point of high importaneej which has
been developed in a separate treatise on the pnmulgtaUm ^fltm$*i
Paper, officially prepared, and appropriated to testamentary deeds^
should contain on its mlsrgins all the instructions, all the rides
neeessary to gidde the testator in putting his deed beyond the
reach of suspicion or alteration. It should proceed on the suppo^
silion, that .he is a man of the most ordinary class, and should sug*
gest to him every thing necessary to be known about the matter,

* Thas the French law dispenses with all forms in testaments made by the
military in time of war, on sea, daring a plague, &c.

t Ttsatiies on Logislatiafij vol* iii. p. 09, 9d edition.

1S4 * A.TRSATISB.ON .

KC<MDiiieiidiiig to hiin^ in particulars exactness in. regard to lime
place^ and the choice of witnesses^ the designation of their names^
professions, places of residence, &c.

Testaments, delivered by word of mouth, will become, more nve,
in propoition as writing becomes more general among the. people;
but, as it is impossible to .assign any particular, time at which they
shall have disappeared, provision must be . made for them. The
itarst precaution seems to be, to require that they, shall be reduced
to writing as soon as possible, with all the circumstances which can
attest their truth.

CHAPTER IV.

OF THS PRE-CPNST1TUT£P EVIPENCE, FUBNI8HED BY PUBLIC OFFICES

OB DBPABTMENTS. '

The different departments of administration, legislation, and
justice, which preserve written, dqcuments of every thing that
passes in them, become archives of prcrconstituted evidence for
every thing which concerns them.
There are three points to be considered :

1 • The uses to which this evidence is applicable.

2. Its degree of credibility.

3. The means of rendering it perfect.

1. These authentic documents are established for the direct ad-
vantage of the heads of each department, of those who are employ^
under them, and of all petsons who have business to ttaosact in
Ibat department; this requires no elucidation. It is impossible to
l^onceive an administration of any extent doing without registers.

'■ Independently of these direct uses, the preservation of such do-
cuments serves some collateral purposes. These srejudidat ovHaik^
iical: judicial, when, in the course of a suit, the judge finds in this
archive, facts applicable to the case in question ; statistical, when
ihey fiimish positive data either for administration or l^slatipn.

2. In estimating the degree of credibility of such official docu-
ments, two considerations operate at once in their favour : i. The
high degree of responsibility 01" those who prepare them ; ii. Thek
Resumed imfpartiaUty^ that is, these persons are supposed to be
idxempt from seductive motives^, from those motives of personal
interest which might mislead the understanding or the will.

. Still, the considerations, which operate the other way, must not
be forgotton.
If it be true, on the one band, that the responsibility of the indi-

jumciAL SVI0BNCS. ;125

viduals in question is great^ because they have much to lose^ on
the ' otht^r, the danger, which they nin^ is greatly diminished by
the advantages of their situation. Consider the extent of business
in a single department, the difficulty of gaining a knowledge of its
details, of arriving at the true state of facts among volumes of
registers or frightful masses of papers ; think, in how many ways,
be, who pursues the truth in such a labyrinth, may be put into Uie
wrong road, how easily essential documents may be kept back, and
fiilse results invested with the most specious appearances ; and you
will see, how little chance there is of penetrating the seci^ts of
malversation, exposing them in open day, convictin^^ men armed
'with power, much more of bringing them, to punishment, or even
of dissipating the illusion which surrounds high office, so as to
expose delinquents of that rank to the censure of public opinion.

Conjoin with this principal personage, whose conduct you wish
to scrutinize, conjbin with him, I say, an association of colleagues
under the name of council, board, assembly, corporation : then, all
the obstacles are multiplied by the influence of each member^ and
such will be the esprit de corps, that an individual, attacked from
without, but protected from within, will find, in the opinion of his
comrades, a defence against the opinion of the public.
' Even in regard to inferior officers, their responsibility becomes
more apparent than real, as soon as they know how to render
themselves necessary, and to act conformably to the principles of
their leader.

' It follows, that, in eVery case in which it is necessary to Have
recourse to official documents and testimony, in order to prove a
transgression in a public department, it is much to be feared, that
the investigation will be evaded ; and that the witnesses, interested
in covering abuses in which they have often a direct participating
will be found less worthy of confidence than, any other witnesses
takeii generally.

Since it is of so much importance to have complete and fitithful
registers of all the proceedings of public offices, it will naturally be
asked, how is this to be attained ?

There is no mystery in the art ; all depends on the system adopte
by each office for keeping its books.

What, then, is the object, to which the system should be di-
rected? This question, properly examined, resolves itself into two.
I. In what order should the usual operations of any department be
recorded with a view to preserve the evidence of what has beem
done ?' n. What are the regular means of rendering this information
accessible and easily consulted ?

ISB A TUUTItX ON

The modd of keeping the books s&ould be adapted to the follow-
Itig objects s i. To present separately^ under distinct heads> all the
proceedings of the department in question; ii. To arrange the
matters so as to show the relation of the usual business with the
principal aim of the estabIishmen&-«-to present, on the one hmdy
the nature and taliie of the service performed, and, on the other,
the labour and expense at which this service has been purobased j
itt. To show the kind and proportion of the services of the different
persons employed, the punctuality of each of them, in a word^ their
merits and demerits.

Th^ true way of bringing the book«-keeping of every ctepartntdit
to perfeotion, is publicity, wherever it is not, from the nature of
things, dangerous or too expensive* Nobody venCnres loof to lay
false or defective statements before the ptiblic*

Those, who have had occasion to have recourse to tibe bookii of
public offices to procure complete and accurate information^ know,
that the best of them are only the l^ast bad.

Nor is it surprising. This is not a sort of labour, which tulms to
ihe individual advantage of those who perform it $ nayi it may fre-
quently operate to their disadvantage by cutting off secret emolu*^
ments. A sort of obscurity in the registers adds to the power of
the emphyis; the less perfect the written documents are, the more
tiecessary they themselves ar^ ; they are needed, because they are
the supplement to make up all that is defective } and thus even the
heads of departments are often in complete dependance on their
Inferioi^. Besides, although the able and laborious coidd only gain
by coming forth into the light, those of a <Ufferent class could only
lose. The system, which favours indolence and abus^s^ is so powers
fol, thlit, even if it is gotten rid of by some fortunate dvenmstancc^
there is a habitual tendency to M back into ih The expression
of Montesquieu may be applied here : ^' We go down to evil by m
imperceptible descent ; we climb up again to good Mly by an
effbrt.'*

In finance, the system of special appropriation^ that is> of iqiply*
ing specific sums to specific services, is the most Useful of all rules^
and gives the greiatest facility in tracing and proving abuses* Ac-
cordingly no rule is so difficult to establish, 6r more frequently
violated Vi^hen it is established.

Perhaps it would be proper here to Ibxplain in detail the mode in
which the records of courts of justice should be kept, lo render
them archives and aources of pre-constituted evideilce $ but tbif
subject belbngs more properly to the organiaatkxi of tribunate^ and
the dutiei; of registrars.

JlffrlCtAL fiVtnfVCS. 1^

CHAPTER V.

OP WIlItTEN REPORTS OF PACTS (PROCMS VERBJUX).

To the class of pre^oonstituted evidetice belong pro(^s i)erbausf)
th(Hie written reports whioh are prepared on the spot^ to establish
facts having legal eflects^ and drawn up immediately with the pre^
seribed preoautionjst

Every thing that passed in diseoui^se is necessarily liab^ after
the lapse of a certain time, and that a very short one, t6 be forgot-
ten or misrepresented. These inconveniences can be guanled
against only by fixing down the words in writing at the very mo-
ment, and thus giving them a permanent existence.

Where several parties are interested^ where mutual arrange-
mints are to be made^ and facts established^ whieh are afterwards
to have legal effects, this precaution is not omitted j . still, there are
many caMi in whieh it would be advantageous to take it, and ih
which, from not having takm it, a valuable source of evidence fatis
been lost.

The fidth lo be given lo this written instrument^ will depend nil
the manner in which it has been prepared. If one of the parties,
who are jointly interested in this operation, but have opposite In-
terests> has taken no share in it, the omission excites a perfectiy
natural suspicion of the fidelity or acciu'acy of th6 written state-

The credibility of a preete Wrhal, will depend much on the per-
son who has drawn it up. It id of moment^ therefore, that thfe
parties, who have recpurse to this expedient, should know, what
individuals the legislator considers better qualified than othei^, tO
give credibility to a writing of this nature.

It Will be proper, then, that the law on this subject declare, in
a certain order, what persons deserve ^he preference, always leav^
ing individuals at liberty to depart fhmi.thi^ order, for special rea«
sons and nffectionsw Thus, the law Will establish, as occasional re-
gistrars, first, clergymen of the 'Qteblished church, next, public
functionaries, advocates, attorneys, &c. The list will be arranged
according to the piresumed responsibility and probable intellectual
capacity of different classes.

Here, as in the case of all other evidence, the principle of sus-
picion will be substituted for that of nuHity ; that is, the law will
declare, that, if a person, who has occasion to have a proems verbal
drawn^up> voluntarily disregards the choice pointed out to him by

128

A TRBATI8B ON

the legislator^ in order to give an undue preference to another in-
dividual, he furnishes, by this very fact, a natural and legitimate
ground of suspicion.

As, under this system, any one may come to be employed as occa^
sional registrar, it will belong to the judges to weigh the credibility
of his statement. If you admit the inflexible principle of nullity,
by rejecting every proc^ verbal, drawn up by any other than an
authorized person, you may deprive justice, in many cases, of most
important proofs, and that without any reason ; for, after all, this
testimony, written down at the moment, is a check on those who
drew it up and signed it j they cannot now depart from it without
betraying themselves.

. But, it will be said^ a false proc^ verbal may be drawn up : un-
doubtedly, it may ; but this does' not give the fraud any aMi-
tipnal chance of success. Suppose that there is no procis verbal
of the fact in question ; the period, during which the project of
falsehood can pursue its course, unsuspected, is the interval between
,the time at which the fact happened, and the moment when it
becomes the subject of judi^rial inquiry. Now, in the ease of a
proems verbal, when the fact happens, the parties are enjoined to
give notice of it immediately : the more promptly the jproc^ verbal
is communicated, the less chance is there of its deceiving, if it be
false; the longer it is delayed, the stronger will be the suspicions
against the £icts which it states.

The progress made in this matter has be«i very slow. . In Eng-
land, ancient statutes authorized justices of the peace to repair to
the spot, and to draw up written reports; this 'was a good begin-
ning ; but the number of facts that could be collected in this way
was, in comparison with the necessities of justice, only a drop in
the ocean.

^ The French law had given much greater extent to this opera^
tion, but hacl likewise introduced great abuses of power. I shall
give an example of them : a proems verbal, drawn up by a tax-
gatherer, was admitted as conclusive evidence. Was not this giv-
ing to the witness the power of a judge, and in a way which was
only the more effectual for being disguised ?

JCBICIAI. SVIDSNCB. 129

CHAPTER VI.

OF THE BEGI8TRATI0N OF COPIES.

When a contract is executed according to prescribed forms,
the paper, or parchment, containing it, is the original deed. Every
deed founded on it, and establishing its existence, is derivative
evidence of it j and, if the words of the original are transcribed
verhaixm^ the writing is a copy.

' A measure, comparatively new in regard to contracts, but one of
great importance, is that of ordering them to be transcribed into a ^
public register. This registration protects the parties interested,
against the various accidents to which original deeds are exposed
in the hands of individuals. But this is not all : it is of great use to
creditors ^and purchasers, who have a high interest in securing
themselves against deeds which might clandestinely convey to ano-
ther the property on which they have claims. Thus it is a defence
against fraud.

I say nothing ihei'e of the fiscal advantages, which may be de-
rived from this measure, by subjecting registration to a tax, or of
the statistical knowlege which may be furnished by it.

I. Ju application.

, What sort of deeds or contracts ought to be registered ? I answer;
all, except in cases where the inconveniences would counterbalance
the advantages.

. The inconveniences come undeifthree heads : expense^ delay , vex-
ntion. The natural expense consists in the labour of a copyist, and
the keeping up of an office ; the artificial expense is the tax, and
the price of the monopoly of an official clerk. Under. the head of
delay, must be considered either the mere loss of time, a positive
expense for persons who depend on their labour, or the loss of time
combined with other losses, which may result from it; for exam-
ple, the loss of opportunities of pleasure, of promotion, or of profit,
which one might have had in a given time. Under the head of
vexation, must be placed that special vexation, which arises from
the necessity of revealing the state of our affairs, by registering the
deeds which concern them. As an example of this species of vex-
ation, we may quote the case of testaments, and consider whether
the inconvenience of registering such instruments, counterbalances
its advantages.^

* In France, testameots are registered only after the death of the testator.;
registration is then obligatory. Besides the secrecy, which may be desirable,

VSO A TttfiATI^B 6li

In all. deeds^ registration ought to be competent at the request
of the parties^ but it should not be made obligatory, except in
relation to deeds with which it is of consequence that third parties
should be acquainted, and in which publicity is necessary as a pro-
tection against fraud*

II. Means of ensuring regUtratum.

Registration being prescribed by law^ how shall it be enforce ?
Shall the deed, which is not registered, be declared null ?

The anDwer on this point, as on others^ will depend on the pre-
cautions taken to make all interested parties acquainted with the
law, and to render the execution of it easy* We must not set out
with supposing bad faith on the part of those who neglect this
form'; it may be the effect merely of carelessness, of indolence^
more frequently still of ignorance-^an ignorance, which in this base
is perfectly excusable. If this omission be regarded as a violation
of the law, the punishment of the offence ought to fall on him who
has committed it; and who is the true offender, if nOt- the lawyer >
who neglected to put die parties on their guard ? Yet it is the in-
nocent client who suffers ; the real culprit escapes from putiish^'*
ment.

If the law of contracts were made more clear, and their forms
fixed and easy, parties would be inclined to dispense with notaries,"
attorneys, and other public functionaries. This would be an e^il,
but one easily remedied. Print on the margin of the stampM
paper a particular notice, informing the contracting parties^ that^
if they do not employ a legally taihorized person^ it will be con-
sidered as a cause of suspicion. No more is required toindiK^e
faidividuals to make use of professional men, particularly if their
services can be obtained at a moderate price; if th^y cannot^ the)
blame lies with the legislature.

III. Totals or partial registration.

Ought it to be required, that contracts shall be registered entire,
or only in part?

It would be desirable that the whole should be transcribed ; but>
to avoid expense, there might be exceptionsi above all, in deeds
of little importance, and such as have no interest for third parties.
The registration might be limited to the insertk>n of the principal
heads.>

^er« is. .apother reason for not registering .them.wbile he is aliye^ Tiz. tliat»

This could ftot be done, witK a contract framed aftfei* fingli^V
pi-acticfe. Wfiy P To register the priticlpal heads^ it is iie6esisary
that the contract be divided into distinct parts. But, in an English
contract, there are no parts ; it is one inass, one chaos, iii which
the essehtijti clauses are sd drowned, and dissolted In a confusion of
of Words, that only a |)rofessi6htil nian cati distinguish the essential
from tbe accessory, it looks as if every possible j[)r^caiitidn hAd
been taken, to render them unittelligiblfe to every one wlio has not
made these forms, and that technical language, his particular stiidy.

IV. Afeam rfsecufinff ngittered copies agkktst the bhmderi af t&pfwU; >

To take from ati original paper a single copy, free frohi e^rdr/
is a pfrdblem, which it wotild have been thought impcjissible to solvfe/
little more tliain three centiiries ago ; at the present day, the ihde-
finite multiplication of the most correct copies i^ ai prodigy of art sof
familiar, that we enjoy ifHvithout thinking of it.

But, independently of printing, which is a costly expedient, there
are other iiieans of obtaiiiitig, iVithout expense^ copies tvhich
leave nothing to be wished foi\ Thus, in the very- act of writing,
the same hand, moving two differeilt pens at otice, produces two
sets of all the characters. In the same way, a sheet df papfer,*
placed below the sheet that is ivritten on, receives &ii impression
precisely similar. There are other Well known methods, of which
advantage may he taken for registet copifes, if people will only give
themselves the trduble to reflect on the matter.

CHAPTER VII.

' MEAI^S OF mstlNOUlSBI^G AN ORIGINAL FROJkf A N0N<ORltil!lAL ^RtttNd ;

AN ORIOII^aL prom A COPlTi

Wb are about to fenter on the examination of some difficult
questions, which naturally arise from the subject of pre-constituted
evidence. I'hey are questions concerning the genuineness of
writings.

1. Let us first look at the case of a merely casual writing \ a letter,
for instance. The letter is signed \ nobody knows the hand 3 is it
an original or a copy ? No certain answer . can be given j but the
probability is, that it is an original. Why? Because, taking the
total number of letters written, copies are but few in Comparison
with originals. The strength gf this consideration, however, de-
pends on several circumstances : i. The impoi-iance of the subject
of the letters, whether or not they be commercial, whether they

k2

1^ ▲ TRBATISB OV

rctete to private affiiirs, or afikirs more or less public. ii.The.
custom of the country and its literary state at Ibe period in

question. ■ ' ■

When a copy of a letter is made, it. is usual, if no fraud is in-
tended, to give it this title, or affix to it some mark which serves
the same purpose; but this. precaution may easily be omitted. I
have a letter before me ; I transcribe it for my own use ; I know
that this is a copy, and there is no necessity why I should give this
information to myself.

If the letter is not signed, it certainly wants one character of
originality; but this formality is often omitted by persons who are
writing familiarly to each other. Here, too, it is necessary to attend
to the customs of the country ; customs, which may be the result of
the mode of government. It is much more common to sign familiar
letters in England than in France.

2. Suppose the document to be, not a letter, but a, memorandum
made for my own use. If' a copy of it is made by another band,
and both are supposed to be equally free from erasures and correc-
tions, it will be impossible to distinguish the original from the
copy, unless the author or copyist be called, or their hand-writing
compared. .

Where th^re are visible erasures and corrections, they may afford
conjectures for distinguishing the original from the copy.

In an original, every alteration springs from a change of thought.
If one word is effaced, and another substituted for it, the substi-
tuted word will have no physical resemblance to the one in whose
place it comes. This difference will be still more apparent, when
several words following each other are erased, and replaced by
others.

When there are corrections in a copy, if the error consist in the
omission of a word, or of several words, as it is not discovei*ed till
the line is finished, the correctipn, that is, the insertion of the
words omitted, will commonly appear as an interlineation. If the
error consists in having substituted one word for another, there
will generally be some physical resemblance between the words,
which has misled the copyist; for. example, person instead of pmon.

In a word — in an original, the corrections will indicate some change
of thought in the writer. In a copy, the corrections will exhibit
traces of a mistake committed in the mechanical act of transcribing.

But in regard to all these diagnostic signs, one observation must
be made which is worth all the rest — beware of placing implicit
confidence in them ; and that, for two reasons : i. Because, even
where there is no fraud, their proving power is variable ; it has

JUnrCUL BVIBBNCE. 133

' • • • • f ,

degrees, ii. Because, if a positive rule were laid down regarding
them/ fraud would guide itself by this rule. In the natural state
of things, an original di-aught may swarm with substitutions and
interlineations ; a copy is generally free from these defects : but
were there any rule obligatory on the Judge as to this point, then
whoever had a fraudulent intention to make a copy pass for an
original, would crowd it purposely with alterations and erasures. '

CHAPTER VIII.

MEANS OF ESTABLISHING THE OSNUINENKSS OF A WRITING.

To prove that a writing is genuine, is to show that it is the
writing of the person to whom it is attributed, and that it has hot
been altered. • H

If the writing is proved to be genuine, the only truth established
is, that it really is the writing of the person to whom it is ascribed ;
for the testimony contained in it may be utterly false, though it be
genuine i and, in the same way, it may be^ perfectly true, without
being genuine.

There are cases, in which, in a practical view, that is, with the
view of making some judicial tise of the writing, it is not sufficient
to know who is its author; it is necessary to know further, whether
he framed it according to his own knowledge, and what was his
intention in making it. ...

The question is put in a single word, is the writing Ms f But
the meaning attached to this wbi*d variesjn different cases.

Is it the expression of an act of his will— for example, his testa*
ment? The-writing is not authentic, is not his, unless it be accom-
panied by the desire that it be regarded as his. If he has revoked
this last will^ the alteration must be proved in its turn ; then the
former intention no longer exists, it gives place to the new one.' '

If the writing contain a narrative of events; there must likewise
be some proof that he acknowledged them to be true, and givei^
them the weight of his testimony.

Having pointed out this distinction, I proceed to the means of
discovering whether a writing be genuine or not ; and I say, that
the ^course to be followed is extremely simple. The difficulties,
which occur in English law on this point, are not in the nature of
the thing ; they are merely absurdities under the mask of science.

No case can show better the utility of the first rule of procedure,
which we have laid down — that the parties come to mutual eajilaha-
tions before the judge , in the beginning of the cause. • -'

1, Tlie pmp^ff a9|c8 tiie de&ndaat : 5f Here is ^ wrHtei^ de^^^ OH
which I mean tp fpund my claipi. No* 1.; if hat ^^^ve you to say?
da yqi^ a4n)|t i( to be gepuine? orj if pofj on what ground do you
^eqy t\xfLt it js «o ?

T>e defendant : " I admit it to b^ genuine/' TJie plaintiff tliu»
prodiipes all his document^, puling |he same guesj^ipn on e^ <^

them*

The same course is followed with the other party, and the sub-
stance of the answers is entered in the record in the most succinct

form.

Although I speak only of the plaintiff and defendant, I do not
mean that they should not be allowed the assistance of a lawyer, or
l^homsoever elsp they may c|ioose, pr even tbaf they may ppt be
permitted to appear by a representative, whei^i their persons^l ap-
pearance would occasion seyions inconvenience.

][n this mqde of procedure, the evidence may be divided into fwo
p^tP! ; one primsiomi, the mere act pf the plaintiff presenting the
deed iq question as genuine ; the other defimtive, the act of the de-
fendapt admitting it to be genuine.

If the defendant be one of the contracting parties, apd has signed
J;be cpntJi'act, his admission of its genuipeness will be concbisivfi evi-
^ence^ even in regard to the qther parties interested, excepting
such as havq bad po opportunity of examining (lie dee4 and op-
posinjg the evidepce.

2. Let us now take the contrary case, the case of (be gepuipe-
^e^ at the document being disputed. In the former cas^ there
was no Qccasion tbo cftll extef p^l witnesses ; but in this, up com-
petjent witness can bi^ removed as superfluqus.
, In support of the deed, the party using it ought \o eipploy all
}iis strepgth ii^ proving {t ; the party who denies it, pi^ght tp en^ptpy
^U hb in invfdid^ting it. To every item of evidence fiirnisbefi by
the ope, an opposite iteni should be furnished by the other : f)]:^t,
crpss-exaininations^ if tl^ere be parol evidence ; then all the pir-
pupust^p^al ayideppe which the case admits.

I. Direct evidence to establish the genuineness pfthe deed,

1. The jEiffirmatiye testimony of the at|;esting witnesses; tl^at is,
of tb^ viery persons who have put their signatures to the deed*

2. The testimony of other persons, who, althpugh they bare not
signed the deed ^s witnesses, can furnish eyidepce of its geimiii^-
ness; ifrpm bayhig seen it writtep, for example, and signed by
the parties, frpm baYjng beard tixe pvtiei? »clfyipwledge i% to bp
genuine, &c.

9^ ThQ testimqpf of the party in whose jfovour thf^ deed is pro-^
^uced^ declaring th^t lie made> wrote> and signed it*

4. The testimony of the party against whom it is produced^ ad^
mitting it to be genuine 9ud not vitiated*

II. CircurMtantial evidence.

It m^y be divided in^ the following seven heods j but this cata«
logue is only an attempt, which may open th^ wi^y to tbe improve-
loent of this branch of judicial logic.

1. The witness declares bis belief, that the writing produced is in
]^be bsnd of the person to whom it is ascribed. Tbe ground of his
belief is, that he has seen this person, on one or more occasions, in
the very act of wnting> and that be fi^s a resemblaiice be^tweea
tbe writing in question and the writing which be has seen come
from that person's^ pen. Tbe proving power of this evidence is ex*
tremely variable. Abbreviated designatiqn of such evidence : «iiiu-
hmty qf hmd'Vmting, inferred ex scnpiione oUm vi9d.

2. The ground of the witness's belief may be^ that he is in the
babit of seeing an indefinite number of writings of the same per*
son, which he is convinqed are in bis band^ and diat the one
produced resembles them« SimUarUjf qf haHd^umiihgy inferred ex
^cr^tU priu$ cogniik.

3« The witness is a per^m of skill, a man who by his situation
is frequently called: cm to compare writings^ particularly s^fuatures ;
aind on coQiparing the writing in question with other writings ad*
mitted to be in the hand of him to whom the former is ascribed^ ht
declares bis belief of their similarity. Sindlarity of JimkA^um&ng
inferred ^ wifio nuno visa ei congMraln.

4. The witness is the petson^ who is said to have had the writing
in question under bis keeping, and in bis power, at a fixed time,
ineluding the time when it was produced as a piece of evidence.
Gmm^m99ri inferred ex eustodia.

But as a writing may^ in one way or another, come into tbe bands
of a^y individual whatsoever, the oircumstanee of possession, of
itself, proves nothing, or almost nothing. It has effect, only in so
fer as it is supported by pcesumptscois arising from the tienorof the
writing. No value, tberefore, is to be set on this sort of evid^ce^
es^eept in cases where the appateat age of the writing in question
exohides every expeetation of finding direct tesliinony to attest tbe
signature of its author^ #

5« To suppoit the writing ia question, another is produced,
which agrees with it renuurkably, in a. great number of curcum*

stances^ ' jK tlntbttar h^ gmniiM^ U nyqr manm^sk evidaMe that the

136 A TRSATISB ON

fonder is genuine^ provided this agreement is not the result of de«
sign^ but the effect of a natural coincidence. Genuineness^ infeiTed
ex concordantia.

6. The writing is in the hands of the judge y it is accompanied
by an official note^ that is, a visa, or certificate, of a public func-
tionary, whose duty it was, at the time this deed was made, to ex*
amine writings of this nature, anid establish their genuineness.
OenuinenesSf inferred ex visu officialu

In this case, the proving fact must be proved itself. Is the note
in question really a n6te of the public functionary to whom it is
ascribed ? This fact can be proved only by circumstantial evidence,
unless the individual be alive, and can be brought into court. This
would be direct evidence^ the evidence which should always be
employed as soon as possible, because it is the most proper^ and^ at
bottom, is the only evidence which is entirely satisfactory. '

If a* deed can be forged^ so can a certificate; but as the difficulty
of imitation increases with the number of hands to be imitated, the
consequence is, that such certificates have always a certain proving
power^ and add something to that intrinsic value of the deed itself,
which may be presumable from its tenor;

7* The writing is submitted to the examination of the judge;
from its tenor, that is^ from its nature and character, he infers that
it was made on the particular occasion to which it is alleged to
refer, and that its author was the person to whom it is ascribed by
the party producing it. This is veiy generally called internal m-^
dence. GemiinenesSy inferred ex tenore.*

I find in the works of a lawyer already quoted^ some observations
applicable to this subject, and supported by long experience. He
has the following remarks on the comparison of writings:

^^ This species of evidence goes on the supposition, that every
man gives his hand-writing a particular character ; and tbat^ from
the similarity, or dissimilarity of the band in several writings, it may
be concluded, that they were or were not written by the same in-
dividual; a conclusion that is attended both with difficulty and
danger. i . ;

''In this sort of proof, legislators have distnisted the sagacity
of judges, and have preferred the art of persons of skill.

" Without referring to. cases, which the blunders of men of skill
have made celebrated, to the event which happened in Armenia^
and induced Justinian to introduce new* precautions by the 7dth
novel, or to the cases of the canons of Beauvais, and the vicar of

TMs head has several «ab^Ti0ioiis ; see fbe fQllpwinir olmpter.

JUDICIAL BVIBfiKCK. 137

Jouarre^ which the modern reporters have preserved for us, expe-
rience has proved the utter insignificance, the uselessness, nay, the
absurdity of the reports of writing-masters, thus invested with the
liuthority of men of skill. Minute description of the form and po-
sition of the letters expressed in the language of art, a puerile ac«
cumulation Of technical phrases, pretensions to the rigour of de-
monstration, without any conclusion, more obscurity produced by
their contradictions than light afforded by their reasonings — this is
what we have ourselves found, not in one case, but in almost every
case, where, from the deficiencies of the law, it was necessary to
have recourse to these pretended men of skill.

^^ Leave to the tribunals the comparison pf writings. One con-
jecture taken with another, that of the judge appears tons far pre-
ferable to that of the professed mau of skill. We think that greater
confidence is due to his discernment, his experience, and, above
alii to the responsibility which then lies entirely upon himself. '

'^ But, while we would not make it obligatory on the courts to
call in men of skill to their assistance, neither would we go the
length of prohibiting them from adopting that course.

" Shall this verification by comparison of hand-writing, taken
separately from all other evidence, be sufficient for admitting as
true, or rejecting as false, the deed produced by a party ?

*' Those, who maintain the negative, object, that this verifica-
tion derives its whole authority from a very inconclusive mode of
argument, the argument i simili et verisirmli: there is a great dif-
ference, they say, between likelihood and truth ; to be like another,
is not to be identically the same. They appeal to experience. On
the one hand, how many circumstances may produce differences in
the writing and signature of the same pei'son — ^the shape of the pen,
the position of the hand, the greater or smaller degree of habit or
application, health or sickness, the weight of yeare, &c.

** If to all these innocent causes of difference be added that which
springs from guilty intention, fi'om an acquired habit of disguising
one*s hand- writing, there will be no difficulty in conceiving, how
eai*i1y different writings of the same pei'son have been ascribed to
different hands.

'^ On the other hand, the art of counterfeiting hand-writings and
signatures, has at all times been carried to so frightful a pitch of
perfection, that any difference between the true and forged writing
escapes the most practised eye, nay, even the eye of the author of
the genuine document. The records of the bar contain but too
inany celebrated examples of tiiis*

. 'f qoiy^qtl|i^l,,ho.WYer, ftp^ iiqperfefjt as it m*y l^^ the l^^wla^
tpfp 9ftWnot pjrudently prohibit this source of evidence.

" Its e^f c}usion would be peculiarly favourable to frauij j it would
efuboldei} forgei^ by depriving justice of thp only iiiieansjiby which,
i.a a gfeat npmber of casies^ she can reach crim^. It would inulti-
ply those denials of writings, of which shameless debtors allow
tbem^elve^ to ta^e advantage, wheu they are ceirtai^ that they gan-
ppt be confounded.

^ " Wltl^QHt this mode ofpropf, where would be tbp pffect of deed^
und^r private signatures, which had not be>en executed before wit-
nesses, or the witnesses to which were dead ? , ,

" Agi:^ements would pp }onger havq any security, except when
accqmpaiiied by formalities, and ^dc;gree of publicity, which neither
c jrcumstapcesjj i^or their own nature, always alloWt'

^^ Thi« pbligatioin to use lEbri^s, and this feeling of di^tru^t, thn^
produce^ by the l;]iw, ^wld exefcise, by their daily effects, a mq^t
ll^scbieypus influence on morals: they would produce a much more
s^fiqus evil, th^n any that cquld result from a judicial mistake in a
possible case.

^^ Morepyer, i^uch ni^istakes will be less frequent, t^e more law
trusts to the judge, kc/^-^R^pport mr h Loi de h Pro^eAir^ civ^^ de
Genhe^ par Jkf. Bdlo\y tit. l^i. .

CHAPTER. IX.

XfEANS OF BSTABLISBINO THE FALSEHOOD OF A WBITING.

In a questipii relative to the genuii^p^s of a writimg, the
gener^.t; Drf2&^l^pfion is in its favour; it may even b^ ^aid, takipg
cases in the mass, that instances of forgejry are. extraordinary >. but
yrlfi^iS 01^ (does occur^ the operation, wJhich we have just gone
thro^ighji. must hg iBv^Sied. With so^iue addUio|i[s an4 vmlatApn^
^e catalogue of i^^ajrif that n^y bie tised to. overturn the genuh^^
i(es9 of ^ wf itiog, epi^respon^s to those \Yhick jpfiay be u$^ to ^i^-

blish it.

• • • . . . , •

I. JHreot evident qminst thfi.g^nuin^n^

h The negative testimony of the persons mentioned in Ibe deed
te attesting witnesses. •

^ S. The negative testimony of persons not BAe&lioncid in the deed

as attesting witnesses.

3, TIjte eyjdejice of jhp party agaipst whoift.tbp d|?e4 is us?^,
dpfjyiiig t^pt he wrote or sigped it.

4. The eyifleqpe pf lt)ie p^ty ^yho use^ itj adfuitting it to be false;
•pj^ forged.

5.' Jlea^say evide^ce^ |;|3at qf a p^rsop ^hq i^qelar^^s tb{^( I|^ ^i?^
an attest^qg witaes9^ of tjbie p^rty us|pg the d^ed> ^ay tl^^t it ^as
fds^ ^n(l forgefl.^

II. Otrmftfw/anfca/eviclMce. ^

I. Dissimilanty of the hand-writing, proved, i. By a witness ivhb
has seen the alleged author of the deed in the rery act of Writing;
II. By a witness who has had other means of knowing h^s hand-
writing, in. By the testimony of men of skill/

II. A presumption contrary to that arising from possession. The
person producing the deed, as having had it in his keeping, pp
passed it through his hands, is the person, who, if it be sustained,
will derive a benefit fiom having forged or falsified it. Such a cir^
cumktance is always a legitimate ground of suspicion.

III. Material proofs, affording indications of forgery. These may
be drawn from the papei*, from the ink, or fi'om the seal.

1. From the paper. Is it of a date posterior to the date of the
writing ? A sure proof of forgery.f Does the surfkce present nn-

. equal degrees of thickness, sudh as would be produced by erasures?
A reason to suspect vitiation. Are there visible marks of obliteria-
tion apparently produced by applying a solvent to the colouring
matter ? Another cause of suspicion.

The last two indications are applicable to parchment, vellum,
and every other substance made of skin. ■ '

2. From the ink. If the colour of the ink, though every where
the same, be fresher than can well be supposed at the distance 6f
time from the dale of the deed, it is a natural cause of suspicion.
But this circumstance cannot be much built on 5 the quality, the
intensity, the brilliancy of colour, may differ considerably in inks
made at the same time.

If the appearance of the ink is diflfei'ent in different parts of the

same writing, this is another source of suspicion, and, in c,ertain

• . • • • . . [

* Hawkins, 50. The plaiatiff prodaced a testament si|;ned by three trit-
peBsesr, two of whom were 4ead. Tho4)ui-d (a womao) declared, that whilo
she was in the service of one ojf the witfiesses, dciring M^ l^^st illqe^s, and ahouf
three weeks before his deatn, he drew' this testament ifrom his bosom, and de^
glared that he liad forged it himself. This evidenoe was Teceived. • .

t This may be proved in difforeat ways.: i. Qy ihn difi^Br^iuce of ihe nUvgLpf
when the c|ee4 is on stamped paper, and this is a reason fpr fregaent|v chuag-
in^ the stamp; 11. By the establislnnent of ^e maiia^ctory in inijicli m p^per

W98(Aail«i aqilliQmakffosiaxkoiiliieleavfiii. . . -v '

140 A TRfiAtlSB ON

cases^ a stronger one. A distinction^ however^ must be taken. If
the ink, which follows the one first used, is contintied to the end,
iliis affords no ground of suspicion ; the natural interpretation is,
that the writer was not pleased with the first, or that he bad
changed his pen. This indication acquires strength, only where
the difierence of the ink presents spots, words here and there, in a
different colour from the others. More accurate inspection will
discover chemical or mechanical erasures, and the obliterated
words may be gathered from the <;ontext.

IV. Indications of forgery y or vitiation drawn from the tenor or
nature of the writing. — ^This takes in a vast field, aff(M'ding abun-
dant occupation for the sagacity of judges and lawyers. The indi-
cations of falsehood now to be pointed out, have often overturned
pretended deeds and pretended testaments, which were fortified
with every appearance of speciousness. It was by the application'
of thiese. tests, that the learned critics of the fifteenth and sixteenth
centuries proved tlie falsehood of those crowds of deeds and writ-
ings, which had overreached the credulity of ignorant ages. The
study of these works ought to be considered an important branch
of' judicial logic.

1. The falsehood of a writing will often be detected, by its mak-
ing direct mention o^ or allusions more or less indirect to, some
fact posterior to the date which it bears. Under facts, are here
comprehended persons, things, situations. A contract supposes the
death or marriage of a person, though he was neither dead nor
married till some time afterwards. A contract supposes a voyage
or journey not yet made, the exercise of an employment not yet
obtained, a place of residence, where the person in question did
not reside at the date of the deed. The mention of posterior facts ;
—first indication of forgery.

2. In a living language there are always variations in words, in
the meaning of ^ords, in the construction of phrases, in the man-
ner of spelling, which may detect the age of a writing, and lead to
legitimate suspicions of forgery. A deed, for example, contains
modes of speech, which were not in use till after its date. This
pnnciple of criticispa, when applied to literary works, has often led
to difiBoult and doubtful researches ; but its results ai-e more cer-
tain, *and sometimes decisive, in legal deeds, writings drawn up by
practitionei's who do not readily forsake the language and forms
of their profession. The use of words not used till after the date of
thevmtihg; — second indication of forgery.

' 3. The writing contains false facts stated as true, — ^facts, which
could not fail to have beeb known to the alleged writer^-^-fiictSy for

jrUBICIAX. BVIDBMCB. 141

example^ incompatible with other facts which he must have ]known^
This indication, it must be admitted, does not prove that.the deed
in question is forged or vitiated ; but it impeaches the veracity and
probity of its maker, and leads naturally to suspicion. The asser^
iion of false facts, known to be such by the maker of the deed; — ^third
indication of forgery.

. 4. The contract contains engagements incompatible with other
anterior engagements, undertaken by the pretended maker of it, or
by those in whose place he comes, and of which he could not have
been ignorant. It is evident, that this circumstance, too, is no indi-
cation of forgery, except in so far as it impeaches the probity of the
maker of the deed. . It must always be ascertained whether he did
not act from ignorance. , Disagreement of the contract with antecedent
con^racte ;-T-fourth indication of forgery.

5. The writing, or contract, in question, was not produced, nor
any mention made of it, in circumstances where the party now
using it would naturally have produced it, and taken advantage of
it, if it had existed. The strength of this indication depends on the
party's knowledge of the existence of the deed, and the absence, of
any special reason for not using it. Silence or concealment concerning
the deed, at a time when it ought to have been made known; — ^fifth in-
dication of forgery.

6. The writing, taken altogether, implies qualities in point of
knowledge, intelligence, or morality, manifestly superior or in-
ferior to what could be expected from the person to whom it is
ascribed, so far as can be judged of by other writings of his own.
This indication does not at all apply to legal deeds, to contracts; it
is limited almost to casual writings^ such as letters, memoirs, or
literary compositions which maybe the subject of a suit, or adduced
as evidence in a cause. Contrariety of character in knowledge, in-
telligence, or mmality ; — sixth indication of forgery.

7. The opinions, the affections, the inclinations of the supposed
writer, as displayed in the writing in question, are in contradiction'
with every thing that is known of him by satisfactory information
drawn from other sources. This, too, is nearly limited to casual
writings, such as those mentioned above. Contrariety of affections,
tastes, opinions ; — seventh indication of forgery.

8. The writing in question makes no mention of &cts and cir-
cumstances, which must have attracted the attention of the writer,
and which he would not have omitted, had he known them ; neither
the ignorance nor the omission seems natural. This indication is
any thing but conclusive, yet it may lead to suspicion. Omission

I'A A TREATtSi oil JtJDlfciAI. EVIBBNCB.

^f facts ttfnch bughi to hdvis been men/ioned;— elghtli indicaiioti of

9. The stylfe, the j^hraseoldgy, the orthography of the writing in
qtifestioti^ hate no reseiliblance with those of the alleged writer, ds
fcah be proved by comparing theni with his Own writings. The
idea attached to the word style is extremely vague, and the iiidicsi-
tions dr^wn from it equally so. A writer can disguise his manner ;
but this sort of dissiihulatioii does not go aiiy length. This rul6
too, is applicable only to evidence drawn frota casual'' writings.
Difference of style, and in the structure cf phrases; — niiith iiidii^atiori
of fdrgeiy.

10. The writing, adduced as an authentic official document, is iti
H style and forrii essentially different from those of the department
from which it pretends to come. This is applicable only to one
brancli of pi'e-constituted evidence — ^that which is derived from
public registei's.

There arcl errors, likewise, errors in date, for example, which
inay slip into deeds, without giving any reason to sus^fect them of
bfeih^ forged. Inadvertence i^ ahvays knbWh by this, that the mis-
take has ncf object, and can have no effect. Thus it is easily dis-
covered, because it is not intetitiorial. *

♦ About the end of the last century, a man of talent published Memoir'es dti
la PHncetse PitfHHne, Mfte de Gonzague, written by herself. He bad takeri
sfich pains to study the age of Louis XIV., that, in all bis statements, tber^
wa& nothing in contradiction with history. But it was soon observed, that
tlfere was notfaiiig new in the wotk; none df those domestic and familiar de-^
tails^whkb never mKke any part of historical tradition, batfor^the essence
of private memoirs. It was concluded, that the work was a fiction ; and so
it was.

143

BOOK V.

OlRCUMStANtlAL EVIDENCE.

CHAPTER I.

«

DEFINITIONS AND PRELIMINARY ID£AS.

We have been treating of direct evidence ; that which consists in
the deposition of a witness who affirms purely and simply, la re-
gard to the principal fact, whatever he has learned concerning it by
his own senses, abstaining as much as possible from mixing up
with it any inference deduced by his own judgment.

Circumstantial evidence is that deduced from the existence of a
fact, or a group of facts, which, being directly applicable to the
principal fact, lead tb the conclusion that the lattSr exists. This
conclusion is an operation of judgment. The distinction between
fact and circumMance regards only a given case. Every fact may
be called a circumstance in relation to another. That it thundered
or hailed on the day a murder was committed, is ah event ex-
tremely independent of the principal fact, biit it may be a circum-
stance worthy of being remarked, and may lead to evidence. Cir-
cuinstances, then, are facts placed round some other fact; each
fact may be considered as a centre, and all others its ranged
fotlnd it.

Circumstances comprehend the state of things and the conduci;
of persons. Thin^ furnish what is called real evidence; but whe-
ther we argue from things^ or from the conduct of persons, this
species of evidence is always the same, always founded oh analogy,
on the connection between cause and effect ; therefore it was, that
tve said (Book t. c. 3.), that all real evidence is circumstantial.

The door of a house has been forced open; the state of the lock^
the marks of violence, shew, that it tas been brokeii from without^
a pair of shoes, which do nojt belong to any inhabitant of the house,
are found in a dark stair-case; a neighbouring shoe-maker recog-
nizes them as a pair, which he had sold to a workman who wrought
in the village, and who has disappeared ; some of the stolen goods,
lost on thQ road, conduct Ui an ale-house, where it is ascertained

144

A TRBAnSB ON

/

this man had stopped and changed a piece of gold, &c. Here is a
mixture of circumstances derived both from things and the con-
duct of the individual, from which it is inferred, that he may be
the perpetrator of the crime.

It is thus, that, though we are not able to contemplate the infinite
chain of causes and effects in its whole extent, we may seize some
detached fragments with sufficient certainty, and pass from one
link to another. It is with the connection among natural pheno-
mena as it is with the tie of consanguinity, which connects all
mankind with a first parent. The genealogical tree of the human
race is concealed from oiu* eyes, and always will be so ; but here
and there we can trace, in a satisfactory manner, the descent of a
family, though the clue does not lead us very far.

To say that one event is a proof of another, is judgment founded
on analogy, and the analogy itself rests on experiei^ce. It must be
confessed, however, that this judgment may be considered as a
sort of instinct, as well from the promptness of its operation, as
fi-om the difficulty of explaining it, and the impossibility of finding
rules to guide it. This instinct, so useful to men as a guide, would
throw them into despair, if it were not nearly uniform in all ; in
fact, all probability would vanish 3 all that could be said on the
connection between phenomena would be vain, if wc did not set
out from the supposition, that two facts, which appear in the eyes
of one person to be connected in a particular manner, will appear
to be connected in the same way in the eyes of all others.
. Circumstantial evidence presents itself equally in civil and penal
matters. It varies according to the nature of the case; and the
varieties of which it is susceptible are truly infinite. In a crime^ for
example, the varieties of all the circumstances will be as numerous as
^ there are different ways of producing the same fact. A murder will
present entirely different appearances, according as it has been
committed with a cutting weapon, or fire-arms, by water, poison,
suffocation, hunger, fright, &c.

In relation to the existence of a principal fact, a single direct
proof, if there be no objection against the credibility of the wit-
ness, is sufficient to make the fact be considered slu proved: at least,
the assertion of a single witness of this character is admitted, in the
law of England, as sufficient to determine the belief of the jury and
the application of the law.

If the existence of the principal fact be supported only by circum-^
stantial evidence, I believe there will be found, in the law of Eng-
land, very few cases, in which a single proof of this sort has been
thought sufficient to make the fact be regarded as proved.

JUBICIAI. BVIBKNCA.

146

Where severlil pieces of circumstantial evidence are combined^
their union may suffice to make the principal* fact be regarded . as
proved, though each of them^ taken separately, would furnish only
a probability. -

As there are circumstantial (aicts which render the principal fact
more probable, so there are others which render it less probable.

A &ct, which diminishes the probability of the principal facty
may be called an inoaUdating fact. A feet, which augments its
probability, may be called a corroborating fact.

The whole of judicial logic consists in making a just estimate of
these two classes of facts. An error in this estimate produces an
injustice. In crimes, if any corroborating fact be omitted, or valued
too low, a criminal may escape from punishment ; if an invalidat-
ing fact be forgotten, or valued too low, an innocent person may be
condenmed.

The conducting of the cause consists in proving the criminating
facts; hut in relation to invalidating facts*— those which go to de-
stroy the probability of the former-H^faere is not the same certainty ;
they may exist, or not exist; it is possible that they may escape
attention ; and there are but too many examples of cases, in which
they have never been taken into account.*

Let us take a hypothetical fact. A person findtr in his room a
man recently dead, and covered with blood; another man has been
seen hurrying ^ out of the same room with a bloody sw6rd in his
hand. This is an example of /nil proof,* given by our celebrated
lawyer. Lord Coke : yet it seems to be far from being complete^
that is, fiir from deluding the pos^biUty of the contrary; To
strengthen it, suppose farther that a piece of the sword, left in the
wound, is awanting in the sword which is found in the hands of
the suspected person. But if the deceased has given himself this
wound^ and the other, a friend, after snatching the weapon from
him hastily^ was running in dismay to seek assistance, are not the
facts, which are adduced, as conclusive proo6 of guilt,- compatible
with the supposition of innocence 2 '

Since these invalidating facts are so liable to be forgotten, one of
the greatest services that could be rendered to the judicial art
wouU be, to collect them under heads; but they are so infinitely
diversified, that a complete analysis Of them is not practicable4

Before entering on the examination of circumstantial evidence, it

* The penftl code of Austria, pnblished in the reig;n of MaHa Theresa, pre-^
sents a very, extensive list of criminatiiig circamstances, botmake^ nomeii*^
tioA of invalidatipg^ circumstaiices. ' * *. '

146 A TliJIATISS OM

taMMft be obierved^ thai H is mueh more simple than direct evidwce.
Thb latter is rendered complicated by a great number of nioitil
doDsideratidas. regarding what con9titutes the credibility of the
witness, his character, his intention, his affections, the degree of
hid knowledge and intelligence, . In circumstantial evideneci the
onljr relation to b^ examined is, that of one fact to another^ the
eoimeotlon betweeii the prineipal fact provisionally adniitted^ and
the secondary fact^ by which the principal fact, it is alleged, will
be proved.

ttmrnta^m^ii ^ ■iiiiWiti0«i III! » »

/

CHAPTER IL

t

BBAt icVlbSNCE-^TABLE bl* ITd t»ltINClPAt MODlPtbAtlOM.

What is properly called real emdence may be arratiged ilnder
the following mjodificationa :

1. The eorpiff dtHeU^ die cofiditi6il of the Cbiitg whi^h has beeti
the<llyeet of the crime* This comprMieAds notolUy thiiigBf pro-
perly so called, but llketvise pehioos, in so far as they belong to the
elites of things, U>at is^ tiieir physical condition, independently of in*-
tellectual faculties ; as in the case of ikiarks oeeasloned by sidknels
or external viblence.

5. The frtiitsof the ttimL

Bi Itastnunents emplbyed hi the commtslion of tbe crime.
4. Materials d^sdnied to assist iti its perpetration^

6. The place of deposit of the ohged of the crim^

.6. Netghbouridg bodies Inving snffiered 'some change ii^ their
appeirtobe in conscfqtliefiee of tbe edme.

7« Things which point out thie individual, as having been pp9-
ilMised or il^d by faim»

6* Incul|»atory possi»«km of real evidence.

9. Incttlpatmy possession of written evidence.

Jiet ^ k be here observed^ that, to con^tttte reri evIdfeHiee, th^
thing itself, on which it is founded, must l)e put iteder the eyes of
the jtt^ge who is to decide ^ ojdierwise the evidence iti question
ia <9itly a vefoti on real evidence ; it -has no longer ibe eharaeter of
originality $ it is analogous to hearsay evidence; already exposed
to ev^ry thing which i^validalies the whole de^artmeitt of real evi-
dence ;. it is. farljier exposed to every thing which invalidates^ in
particular, evidence founded on hearsay.

Let it be farther observed, that, in many cases, real evidence re-
quires scientific processes ; thait is, it is necessary io have recourse
t6 l^rsolte iparticulariy versed in a certain brt or science, to obtain

JtDtdfAl ftVf&AfCB. 14^

tbeit Ussistsiitie in estimnfltig the proving poWef ot ft piefte of )%ftl
evidence. Tlie medical scibtice, for exattiple, U applicable to a
Iai;ge division of this evidence ; and there are !$evenil impedes Of
forgery, in which no otte should pronounce bh the real evidence
without heading; meh of skill.

It must not be forgotten, that, if parol evidence U Aibjcct to
fiilsehood, real evidence is liable to falsification. A land mftrk, cou-
sid^red alone, Wil} prove beyond doubt that the fleld lit question
belongs to Sablnus^} but Sabinu^ himself has clandestinely rcinoved
it^ and by displacing it, has fabricated, so to speak, a false attesta-
tion» A knife, with the natUe of Junius upon it. Is ibUfld in the
heart of a murdered m'ati ; but the murderer had stolen this knife
from Junius Vb direct suspicion against him, and remove it hdiik
himself.^

r rr f ihi • -r - i^nanhn r.j ^a

CHAPTER III.

tK^ALIDAtiNd FACTS APPLKJABLB TO ALL KBAt .StlOElfeB.

THBaB are cases in which a necessary coniiaotton f jtiAte Ink
tiVeea the principal and the proving faet^ The latteri wh«n |tfovtd|
proves the existence of the other ; but with the nceptioQ of ihMl
cases, every attesting fact^ has a corresponding inValidatii^ fcot^

There are even invalidatial; Acts generally applicaUe. to eviry
branch of real evidence^ •

. 1. ^cctdetif. — Appearanoes may be Very ^ain^ and yel th« ftet b«
purely accidental, fortuitous^ a mere piece of ehatiee* Tbs will of
the supposed delinquent goes for nothing; or, if he had a will, it
was not directed to the prejudicial event Which has followed. His
object was innocent, or, even if his intention was to commit a
. crime, it was not the crirn^ in question.

The caiises celebres of every country are full of ca^es, in which
individuals, by merely accidental, combinations, have been exposed
to the most grievous suspicions, and sometiaiea hav« bfeea con-
demned ; while other accidents afterwards diatoverad the iiyuiliB*
or the error which liad been committed*

The " magpie mass'^ ofF^aris originated in one of these mourn-
ful incidents.. It is well known, that this bird carries off and care-
fully conceals whatever is Within ^its teach. A tame diagple had
hoarded up money in the chest of a poor servant girl ie the Iwuse^
who alone had die key of it. On this single piece of evidence sha

^mtm

* T%it im)de of deeetviBg, aot by laftf aage, but by tbe an^MMMMl af
tings, though Tery common, has no particolar appeiMoa. .

l2

148, A TRBATISB ON

was condemned and executed. But the thefts continued, and the
theftuous bird was detected in the act of concealing money in the
same chest, through a hole which had never been observed.*

2. Fabification of real evidence committed by the real, criminal to
save himself. — Such is the case, where the tAin^, which serves as
real evidence, has been made what it now is by another person,
who, being guilty of. the crime in question, or of some other crime,
has arranged things in such a way that suspicion shall not fall upon
him, or, if it does, that he shall have means of exculpating him-

self.t

3. Falsificntion of^eaX evidence taken as a measure of precati/ioit
ly an innocent person. — ^This is a more frequent case, and happens
when a person, other than the accused, being apprehensive that
some circupistance m^y cause him be suspected of a crime of which
he is innocent, changed, the appearance of a things and tries to con-
ceal or disguise it, with the intention of obviating the conclusions
which might be drawn from it, if it remained in its natural state.

4. Fals^cation of real evidence by a third party, with a calumnious
intention, — ^This is the casa where a person, who has no connection
with the principal fact, changes the condition of a thing with the
intention, of exposing an innocent person to suspicion^ whether the
inteiation arises iSrom enmity to the individual in question, or from
a desire to protect the real criminaL

6. Fatsyication qf real evidetice in jest. This is the case, when
a person wishes id give another a temporary alarm, without ex-
posing him to the danger of legal punishment. The history of Jo-
seph and his brethren is a well known example of it.

CHAPTER IV.

IlfCrLPATORT POSSfiSSlON OP REAL EYIDEKCK.

No term is of more common occurrence than the word pos-
session; but those, who use it, never think of the difficulties lawyers
find in defining it, nor of the variable and indistinct ideas which

* See the Causes Celebres of Gayot de Pittaral. .

f Thas, a bailer steals withoat difficulty the plate of which he has the key ;
but, to secure himself, he- gives the theft every possible mark of violence :
tiie shutters are forced ; the press is broken open ; the blade of a knife^ is
found in the lock ;' a tool is found in the room ; and a button is found hanging
at the window. AH these indications direct suspicion against a workman who
has been employed in the house, and whom he has taken care to point oat as
a suspicious character before hand.

JUDICIAL BVIDBMCE. ' 149

. - ^ • ...

are attiBidhed td it. Without entering into explanations^ which
would here be out of place^ suffice it to say, that possession of the
thing, used as real evidence, is generally taken as a token of crime
in the supposed possessor. He, for example, who has stolen goods
in his possession; is immediatdy held to be the thief, or the accom-
plice of the thief.

The proving force of this circumstance varies according as the
possession is actual or antecedent ; actual, when the thing in ques-
tion is found in the possession of the supposed criminal ; antecedent,
when there is only a supposition that it has been previously in his
possession.

Imvatidating fads applicable to pi^seMswn.

To the evidence drawn from this circumstance, must be opposed
all the corresponding invalidating facts. All those, which have just
been stated, apply to it; there are others which peculiarly belong
to it.

1. Ignorance. — The situation of the thing is such, that we are
authorized to say, it is, or has been, in the possession of the sup-
posed criminal ; but he himself knows nothing about it. This case
may arise from any of the five causes stated in the preceding

2. dandesUne introduction. — ^The supposed criminal knows that
the thing is in his possession, but he is utterly ignorant how it
came there.

8* JFbrced tnfrodudion.— The' supposed criminal knows how the
thing came into his possessidn^ but it w^s done contrary to hisr de-
clared wOI.'One man, for example^ he^d his hands ; another slipped
a WB,t6h into his pocket ; a third, who comes up on purpose,
searches him, finds the watch, and fixes on him a suspicion tb^t he

is the thief.

-...,■ . » ' • . ■ • - * » ■

If the compulsion be proved. It necessarily destroys the evidence
arising from possession ; but it may happei^ that the possession is
proved, while there is no evidence of the compulsion.

4. Non-identity of the thing. This applies particularly to the Of^
of antecedent possesmon. A man is seen running, and is supposed to
be making his escape; a handerchief is found in the road atimg
which hie rah ; a handkerchief which is like it, was seen in bia
hands, but, though like it, it is not the same.

The identity may be established by various intrinsic marks ou the
property.

5. The service of justice. — ^A man receives or seizes the thing in
question with the intention of using it as evidence in court, and

tQ prevent tbe criminal from reimovingj cooeeaUng, or disguising
it, Tlu« may liappen to aa ot&cev of police iq the ooorBo of hia
boMiiestj or to any oUier iadividual who voluntarily performs tba
«ame duty,

CHAPTER V,

INeCIiPATOEir VOSSBtSION eF WRITTBN EVIDENCE.

A waiTilf c^ wbicl) contains the confession of a crim^^ is found .
in the possession of an individual ; and, supposing him to be tbi^
author of this writing, though it should not be in his own hand^ it
is inferred that ha ia guUty of the orime in question. '

TbiP is the simpl^t and least s^ripus oa^e pf inculpatory pen-
iCS«io(it
But tba writing appears Xq b^ inliis own band s it is in^a f<mii

cf a memorandum for his own use^ or of a letter addressed^ thouj|b

nQt y^t disp4tcb«d«

Possession in this c^ase fiirnfsbas a stronger pr^umptiou ot guUt
than in tbe preceding.

Tbc inculpatory writing is not in bis own band j it is the writing

of another addressed to him as an accomplice or accuser, WbM

cpMluiion aai it tefid ta gfaipat bin ?

AvaUdatlng emuUeratitmt.

Thi) m^ pofswrioft of an incnlpitery wriiing« wbifb is «o( |n
tHe band-tWriting gf the possessor^ proves so little egainsi bUui
when takeg by itself sepamtely ^m all oth#r eWdim«ei tba( it
scarry Reserves the uaina ef a fsriminating eirwuplanee i U ia not
a ff&mmptiQn, il is only tbe sbadiiw of one* AU tbe invaUdatbw

^ts apply to it more forcibly than to any other case, ^laiwiettiflft

introduction is wore easily prai;ticabia with a paper thm with magy
<)tber i3|^ti > it may be sent directly to the individual bunsclf ^ ,
post ; it may be addressed to some one living in bis bQU4e« a^d (bna
be in bia posse^u# wbUe be jm pp knowl^go of iti

^ On such an Qccasfoui my dear friends wc foiled in our enters
prbe/' (itbe nature of the enterpr«&e^ robbery, murder, treasoop
will be indicated by ^me aUusion wbiqb gives tbe appearanee of
concert) : ^^ keep yourself in readine^ hr i^cb a day; all our
^riwds have received notice; m your part, takesu<^ and such

measures} we cannot &il of success^ &c/'

Tbus^ if 4be simple possession of ^ writing were «t crimioatUig
oiriuimstancei it would be in tbe power of any man to put this |f oof

juoieiAx. imsviicB.

m

of crime in the hands of any other ; all social security would be an-
nihilated.

The possession of such a writings then^ proves nothing of itself^
it does not lead to any stronger presumption, than if it had been
intercepted at the post-office. AH the strength which this cir-
cuimfcance can have, will arise ffom indicationt which the wi/iting
itsolf may furnish ; from the precautions which have ^etn takto
to prenerve it» tlie character and circumstances ol the aptbor
—in a W0vd, from all the proofs which are patUrally conneoteA
with this one, when the suspected pei*son is guilty. SuppoMS
the ineiilpaftory ^rriting tb ^e in the style, not of an accom-
plipe, but of an accuser: '^ In such an aikir you bebaired Wi4i
notorious dishonesty ; your patron reproached you with your fUiAs^'

l«aioesa in iny own presence; yimntHnAMedi^^fotg^f^' 3^-
If langnagfe like this, instead of beipg writtan., baa beto aidk
dressed to him in person, it would haVe opemt«d miMBb mmt
fitr^glf oyaio^ fainl. V/byi Beeduse tb^ presance of to ttro
parties, the acoufted and the aconsar^ fomldied baA H iMtifefer
cpliti)idtoti#g a falia imputaiioPi and m ^p^otrnw^f Of d#j|iirio.
Sitonie« in mffk^ Q9»» is lake» for aekoowledtfiniln;^ thMtrbUMM
are still many reservations to be mad^ bafen^ tftrUrinff At' 9Q abMa

hilp i^ PQiM^loii* B«l in regard to an iwQlpatoiy m^U^i as
tbere U m room for m iminerfialg coirtradieliiiDi kfiaftwr^tm^^
tijss ara nof in isapb f^hm^ pnrtrencei Ibougb \t almtdd 1^ 6mA im
the possession of an individual, this circumstance provei n b aft l t i tri K
n^thiilg aieainst hjini« K b0 had tbaugbt it da^ffeioof ^ ^{fPi |ie
wpWd kw^ 4^sU^y^ i^i b« caQ h»afe prai^ry^d it 9vif tffmmtm

mf^y9% wtmk pcoy^s tbfit btf kmw Unwirif to )i» sfcnre^

j^t ^B n^ ^m^N4 lto«fa« iMte Maaw iMe^ At m^wkm^M^
inculpatory writing appears to be in the hand-Wfi|(!il|r ^ ## Mi^
yi^ in wftote ptiMfpsfifian i); is foiaiid* If tbM be # uA^(»i|BMiy ywyf^f
ill ^i^ld f»^m tbat jftiii j« .eqwvalniMi tp a^ <m4 c^fewkm <tf ^
Qfm^* U riepAins to be ps^nr^m^ wh^fffi^m m^oniff^
&^^9 ;of the sMppo#ed ofiiniwl IfwW JMwe jdai»K|ra# tehefeiH
lieved by the ^dge. We §ball p^e aftwFW?»d«j tb^ tbia j^rJf^^Mi
tbwgto tb^ ^sltrongesl; of al|» mi efp0$^ to i^ fpgU puitt|)#r Of in-
Y^i^a^pg /consider^itlQns. . i

Wii«i^ <NWBe» Qf tbi^ sorj b#vii cnwinTcrf, tm Bfg^jmm im^ f»n

Biei^UjF hi^sf^^^^ 1^ ipvaM4^ tb«^ evi()«ffce djrafWR fnmffmmm^
The first consutei in attacking tb^ autb«l»^y f>f t^a wrUm^

ascrib^d to tbe ^ppos^ ciiminal.
Th^ secpnd cpppjists in shawipg, tfeat it i^ npt iippU€»b^ l9 ft

^i^a ^11 gen^^U or tp ,tha .par^cular mmf^ jn queftioi^^ W .tM It

is susceptible of an interpretation which makes it innocent. . . . !

Wa A TUATISB ON

CHAPTER VL

0B8CUB1TY OF REAL EVIDENCE — EXAMINATION NECESSARV TO

i '• . .

I

CLEAR IT UP.

Ws have just seen^ that the proving power of these different
orimitiatiDg circuiBstances^ arising from the state of things, and
fiKHn passesrim, is opposed by invalidating facts of general applica-
tion, and that the presumptions deduced from ihem are more or
les0 inconclusive.

' When we come to particular cases, the first question that pre-
sents itself is, do these different invalidating ftcts meet in this
caaeh

. The nature of the thing furnishes only one means of removing
these/doub^, but a mean, which, in. general, is effectual and satis-
&ctOi7^-«e»amifia£ioii.

* 1i the point in question be the possession of a wridng, tbeper-
sms'to be examined will i^ry according to the case* •

At Uie^criminating writing is supposed to be in the band of the
accwed binusielf, he is the only person whose examination can fur-
nish the necessary information.

If 'Ittk not in hb owii hand, but address^ to him^ there are two

*

persons to be examined; the person tiy whom the imputation is
ilitroduoed>' and iibe parson wfaais the object of it, that is, the sup-
|K>sed criminal.

if the writing appears-to be in a^iflferent hand from that of the
person whose sentiments it is supposed to express, as in ifce case
of a copy^ or a paper written from dictation,' ther^ is a third per-
son, the tmMr, from'' whom explanations and infonnation may rea-
sonably be expected;

•- Knallf,4)ohave'as much security as possible that all the evidence
iaf*tliis Iciiid has been productd, that none has been suppressed
wh^her with 'or without the intention of injuring one of the par-
ties, thei^e is a fourth pei^on who must be examined, viz. the |>er-
son* who found the article of real evidence in question.
* '^ Did you find what you now produde, (the writing or instru-
ment) in the possession of the accused ? Had precautions been''
teken to conceal it?' Did you find it in the place and at the time
you^ ^mention ? Did you bring away every thing relative to the
iSaikie chse ? Have you suppressed nothing ?" Sec. &c.

These different sources of information^ so important and so ne-
efessary^ have been in a great measure excluded in English proce-
^edtoe, in ^Virtue of ati opinion altogether peculiar to English
lawyers.' ♦

jusitcui. btIdbncb. 153

They have two maxims: one, that tio man can be Obliged to
accuse himself; the otber^ that no person can be a Tdtness in his
own caufse. * .

By the first of these maxims, it is not allowed to put to a defend-
ant any question tending to establish a criminating fact.

In consequence of the second, the plaintiff is absolute master of
the evidence which be offers ; he produces what he chooses, he
suppresses what he chooses ; he produces the accusation, he sup-
presses the defence ; not a question can be put to him, for he can-
not be a witness in his own cause.

It is true that these maxims are often violated in practice. Tak-
ing the whole number of cases in which they are observed, and
those in which they are disregarded, they are perhaps equal ; bul^
in spite of these exceptmns, they still retain sufficient strength to
do much mischief.

This subject will be treated at large in Book ViL under Ae head
of Exclusion of Testimony.

CHAPTER VII.

»

tSCXniVAtOVY CIRGniCS*rANCS« ANTERlOa l-O TffS CBIinB-^BBFAVATAnri,
ATTEMPTS, DECLABATIONS OF INTENTION, THBEATS.

I. Invalidating circumstances applicable to them,

Thb fact of the crime being proved by circumstances whtcli fix
it on the accused, it remains to state the different invalidating &cts
which may operate in his &vour.

1. In^ifiim originaUy different.'^la this case the rasult^ which
Ifae intention of the accused contemplated, -may either be entirely
imiooen:^* or less than what has v^y happened,t or eq^iaUy or
more iiQurious.

* See the .case of Donellan. The case was one of poisoning by a distillation
fromlanrel. Criminating fact, preparations to distil; — ^invalidating supposi-
tion, the preparations maj have been for the purpose of distilling rose ledves,
or any other kind of leaves ; and this, in reality, was what was alleged in de-
fence.

t The following is an example of more injarioas inattentidn operating as an
Invalidating fact: A theft has been committed in Peter's honse; Paul was
seen sknlking round the hoase, stealing into it, and concealing himself; but
it is proved that his intention was to kill Peter, or set fire to the house, out of
revenge : he desisted ^at the moment of execution. This intention, though
much more injurious than that* of stealing, is, if it be proved; an invalidating
circumstance in regard to the crime committed, the theft.

154 . A taiikTiss Off

2* B09uU g&ing beymid intevOion.^^. iatended to wouurf B., but
has kliled him. In this cose, the extenuation does not appfy to the
whole result^ but only to its excess above the intention.*

8. Change of mtmUonr^th^t is, in the interval between the
preparations nade to oommit the crime aqdics actual perpetsatioii*
A. prepared a liquor br the purpose of poisoning B»i and B. b^
aniiu^ljr been poisoned ; but A. in the mean lima hud changed bi^
iat|Bntion./ Tbe evidence arising from this Invalidating fiMstcan
benefit A;, onlf in so fiir as bis ne\v intention was less injurious tbact
the former.

4. Intention without power^r^The crime, which the supposed de-
lioquejit intended to commit, has in &ct been oMnmittedi not by
him, but by olliers.t

6. One t^' eeoeral accompliceg going beyond the comvmn inkfi^iim^
of the others. — ^This case, a very common one, iaclude^ t}|e firsl
tbnee cBse% and diSevs firom th|sm only in regeifd to tbt number of
delinquents.

Two or three men combine to commit a robbery ; in doing it,
one of them commits a murder, intentional on his part, but not
* necessary to their common (}esign. This is a case in which judges
have not thought it worth while to enquire, whether the accom-
plices in the lowev crime had' utaipod themselves ^i^r no$ wW^ |b^
higher one.

In the rudeness of early laws^ the attention of th^ ipagistrate is
exclusively directed to ph^rsical facts ; be cannot discern psycholo-
gied laLctSj the dtflferent degrees xyf intention and Will. Such is
still ihe' state of legislation in Cbltia; no dfstinetion is fliad# between
a voluntary and involuntary homicide. When k has happttled Sbl^
llet^lhihmeh have been the victims of this ru4^ juri^rttdeaw, they
have eHed loudly against its barbati^; bu« before thr^wriilg thi
fifst stone at the<6hinese judges, they ought id Have lnq^ir$d, vfae<»
ther, in many cases, they may not be reproached th#iliselMfNi Willi
tb§ sams thougbtlesspess.

-»■»-

* Aiaoi^g the di^i»reii| co^sideratipos, which sboul4 MiM to t^e abpti^p fff
t)i0 barimpus praistlee mUoh tvi^foiip^s homicide committed iq a 4uci paajta-
ally agTM^ oo,.wilh ]biC»inio|4e coi^m^Ued by a93assioiition, that wbjcb belongs
to this head is not the least important. In general, the intention in a dti^l if
nq$to luU^ ^ttt.todif^lc) and the pr^of of it ji^. tliajt a ^onnd^ pvMcii pno-
qucpj Wfi effect, put^ an epd to ^stilities.

t See the ca$e ^f Brac^ford. an English innkeeper. A traveller h;i|d come t^'
hif hoa^e ifitb a l^rg/s »^m P^ money: be was lound sv^lmmlng in his blooicl^
%d4 j^f^dford in the VJ^om, armed for the crime. He had been anticipated by'
anotW traveller, with^hbm he had no upderstapdi^g, ^d who confessed t^^.
crime on his death-bed.

• ••*• r »»•

fl. Dechratifms of intention ; invalidating facts regarding mch

declarations.

The invalidating circumstances^ ^ppUct^b}^ to .prepay{^tioQ3 afid
attempted ^PP^y likewise to language, by which the acnused has
declared his intention to commit a certain crime. This intention .
may haY<? been originally different, it may have bpen cbangied, it
may hav^ remained ineflTectnal from want of ineans, &c. ; but far-r •
tber, as word^ cost l^^ss than deeds, as they imply less reflection,
le^s regular connection of conduct than pr^limip^ry acts, wbii^b
always require some effort and some degree of persevera(|pe| tbe
criminating conclusions to be drawn from language bave 1^.
strength, and the invalidating facts b^ve mo^e^

Tbtjie declaration^ ^re of the «am^ nature with testimony in tb^

wn^ of cpn&^ian«^tb»t species x)f confessipn wbicb Is e:y:trj»^udir

cial and spontaneous ; the only differ^nQe ri^gards tim§ 1 aouS^ss|pa ,
19 jiu^jifiguent to the event, th« declaration pf intentipn is anfUMit-
df At, it fQUpvy9, that 2^1 tW cpn^id^dtlPUS^ wbicb inv^Udate spQpr
ta^Ui^us cenfessipns, apply Ukewisis to language tb^t may b^ve ^e§p
bdd pr<?yious to tfee prime, (Sep Cbap, VijI.)
If the accused alleges that his intention W9^ Qriginally difibl*§lll« ,

it is t\iP mf^ as to s»y tliat tbp declaration of W intention to mm^

mi thp Crimea which rpplly h^ beeu committed, w^ falsfjj m(i^,

snpposiug It.to be ^o, tbia decl^^tion becomi^s/ff^^Y^^niaqy i» th^

But bow can the falsehood of the antecedent deglf^rfilioi^ bp r^*-
conciled with the admitted supposition that the crime has been
committed ? It is d^ar, that, in this easa^ the only point in dis-
pute relates to the supposed criminal ; but whetlier the crime ac-
tually perpc^trated has b^n c^m^itt^d With or without his par-
ticipation, the declaration of his intention to commit it may have
been, false at the moment when it was made. Declarations of in-

tontiofi of tbi$ ^ort m*e no l^ss Uab}<¥ to bp f»}s^ (ban ^fp|a«r»tions
of m oppoiit^ Wnd 5 thQi; is, dei;l^r»tions 9f m^Wim tft »Ntl^r

from «wpb or suph 9 wn]|^- ' . '

In the following chapter, we shall stat(» tl^e ^iffer^Ht m^iwa

wbM?b m»7 J^ad ^ mm to^ wknpwledg^ a crime comn\Ut^4 or not
comwiltt^ ky Urn- - »

III. JTireats ; invalidqtijig fact§ in regqrd fQ fhve^i^,

Tp thr^ate^ to do a cnmipal #pt, is to express an intaoiioa to
commit it. Wh|it is peculiar tp a fbreat is, ttiat the person^ who*
us^ Up ilo^ not merely declji^^ ins iptei^tion to commit tbQ ^rime^i

1

156 A TRBATISB ON

but makes this declaration* with the design that it shall come to
the ears of some individual^ and inspire him with an ^larm pro-
portioned- to the danger.

Thus^ all the considerations^ which invalidate a declaration of
intention in regard to a crime actually committed^ ^pply still more
strongly to threats regarding the same crime.

In fact^ the object of a threat frequently is^ not the crime itself^
but merely the apprehension resulting from it : there is no inten-
tion but that of exciting alarm ; such a case is an example of the
state of things expressed by the words, intention originally different.

The accused may say, " The threat which I uttered, is a proof ^
that I had no design to execute it : if I had wished to do mischief,
would I have used a means contrary to my own object ? i Would'
I liave put my enemy on his guard ? Would I have warned him to
have recourse to all the means of protection, which law can fiimish,
or which depend upon himself? " • ^

This consideration is not without force; but it must not be
pressed as conclusive. Criminal threats are but too often executed.
The original intention was to produce terror; but enmity grows
warmer, provocations follow each other, and, if an opportuni^
occurs, the crime is committed.

Observe, that a threat tends of itself to prove two criminating

' circumstances: 1. The existence of corresponding motives ; 2i The

existence of corresponding dispositions; both of them permanent

sources of the species of crime which corresponds to these motives

and dispositions.

CHAPTER VIII.

I OF.AXTRA-JUDICIAL ACKNOWLEDGMENTS.

No branch of circumstantial evidence requires more attention,
-than that drawn from the language which may have been occa-
sionally held by the accused, in relation to the crime for which he
is in the hands of justice.

When the suspected party is really guilty, absolute silence seems
to be the most reasonable part he can take. Why then does he
risk speaking? Because he thinks he sees suspicions already
fonn^d against him, or because, in his uneasiness, he adopts this
hazardous expedient to prevent them. He puts questions timidly,
to ascertain how much is known, and how much is presumed; he
does not dare to be silent in the presence of people who are talking

JUDICIAL . BVIOJUf CB. 157 ^

freely of the fact in question; he relates it himself, to wear an air
of assurance; and, in this necessary mixture of truth and folae-
hood, he inserts facts which could be known only te himself . and
form a snare in which he is caught. . *

If the conversation about the crime has been commenced by- the
delinquent himself, it is probable that his hearers, struck by the
obscurities and ambiguities which may occur in a &lsified narra-
tive, will put questions to obtain clearer information, and wiH re«
ceive answers.

The«fe sta^tements, whether in the form of a spontaneous relation
without questions, or composed of questions and answers, will pro-
bably present a mixture of d\)rect and circumstantial evidence.

Onifessien must be distinguished from acknijwledgments. In judi-.
cial. practice, a person is said to make a confession, when he so far
inculpa^s himself by his own language as to. produce full convic-
tion against him. Acknowledgments are partial confessions^ por- ^t
tions of proof by confession, detached fragments, which may be re-
united into a chain, but only by a process of the nature of circum-
stantial evidence, by reasoning on probabilities.

Acknowledgments of this nature should never be regarded as
equivalent to a confession ; however clear and decisive they may
appear, the judge ought to verify and complete them, as much as
possible, by all the processes of examination.

To this condition it is, perhaps, proper to add another ; acknow-
ledgments ought never to be considered as equivalent to a confes-
sion, except in so far as they would be thought sufficient to justify
conviction, if they had been furnished by another witness. The
circumstance that they come from the accused himself, ougl^t not
to operate more strongly against him, than if they had come from
another. But we will be better able to judge of the propriety - of
this condition, after we have weighed all the circumstances which
invalidate this species of evidence.

ExammatwH of the mioHves whuA had to ejUra-jwUeialtesHmoiay

against onet'Self.

When a man freely, spontaneously, and not before a tribunal,
makes declarations which tend to fix some crime upon him, two
questions naturally arise: 1. To what can such a revelation be as-
scribed ? 3. How does it come to the knowledge of the tribunal! ?

To answer the first of these questions, is to ascertain the motives
which may lead an individual to make declarations prejudicial to ^
himself.

To answer the second, is to point out the causes why such de-

\

1A8 A nMATiBm on

daratioiu are divulged, the particular inoidenUi whiidh britig tbem
lo the knowledge of the judges.

A man may thtis gire testhhony against himself «-=i

1. From participation a^ an <lcoiifnpitce.*«^Conversatiotts be6#^en
8bcoiht)ltce8 about the time> the plaee> the means, or other cir-
eumstaAees of a crime^ itrhether projected or akeady dommitted.*

8( JPrwd inere coiifidencej^Tht criminal, whether from interested
yjfiPrhf or in the hope of finding a felldw feeling, makes disclosures
relative to the crime to a pei*son who had no hand in it.

3« From direci boasting.'^Th^ supposed delinquent. Vain df his
Qffenai^^ yaluntaiiljT relates it, with more or less detail, to a persoti
who, he elEpecIs, will admire him and joiti in his feelings.
. . This case is b^ tio means nu*e. It often occurs amodg nialeiac-
•tm*s by professiqn^ but is nat confined to them. When James, the
.painter,* W|is hiiuged in 1777> for setting fire to the magaslne at
.Portsmouth^ the |>^incipal part of the evidemie was of this nature.
Ke blid wished to j^ain honour by his deed with those persons, who
entertainedi be thought, the same favourable sentiments tdwards
the American insurgents as himself.

4* From imprudent biHi9iifig.*^ThBst is, boasting without foretee-
iog its consequences* Animated by the same motive of vanity or
^mpatbyi as in the other case> a man relates some deed of his
own, which, though not oriminal itself, turns out to be a ptooi of
the principal fiict«

. 6* jFrom mere iftifrudente in dont9erraftoa.'r*Hurried on in a rdci<-
tal> without an]r inleution to bdast, a man relates some fact regard*-
ing hipiself, without pereeiviilg that this incident has a necessary
CQpnectipn with the prineipal faot^ that isi the fact of bis crime«

There are people who allow themselves to be so carried away in
W interesting nmTative, that they forget thtf personals in Whose
inoiUha tbey wf re puttitig it, and transfer tbe facts to thelnselvesi

6. From an unadvised desire to.exculpate himee^f.'^Tbt uneashiess
of the guilty is at first his greatest enemy. If he believes that he is
exposed to the imputation of having com^tted the crimei of that
suspicion ij already directed agattist hiin^ he adopts indirect means
0f justifying himself; he introduces into his conversation facts.

. * The pupi^bmeot of a man in office, in a pro?inc6 of France, wlio was

Gotivieted ofmurder, in consequence of a single, expression uttered before wit-
nesfteS) wilf long be reniemtiered. He bad jost killed the busband of a woman
^ith whom he was la love. She wa« ii| the theatfe at Uie time; he weat into
ner box immediately after having struck the biow, and said, oh addressing
her, //e i$ asleep. This single expression led the judges to the discovery of ths
crimot— Foftair#, Mflange$ Hisioriqkes, hlh Juttykuiioadu'Fresfdentde TM.

wbieh he thinks fltled to remore suspleioni iind Whieb praiooe ub
opposite effeol.

7* From repentame, or the di»iracti^ ttf terrarM-U may happen,
that the criminal^ overwhelmed hy anfilidi and remot^e^ may seek
relief in confession, whether made confidentially to bis frifends, iMr
those he takes to he his friends, or even with the* intention .that

these acknowledgments shall he used in evidence against hio).

8^ Fram the hiftuence 9/ a higher interesU^^A man, in pursuit of
some gain or advantage^ discloses a fact which becomes a prootf of
his crime. He may have made this disclosure without perceiving
the consequences of it, or even though he did perceive thems if the
object in view be sufficiently valuable to compensate the risk iiOH
curred by the discovery of the crime.

The causes of these private disclosures being divulged, that is,
the means by which they come to the knowledge of justios^ are
tiur^e in number ; ,

1. An auricular witness, one who has listened without the cr|-
roin.»rs knowledge^ or one against whom the criminal did not
think it necessary to be upon his guard ; a cbild^ for example^ or
a passenger.

2. Papers accidentally found, intercepted, or seized.

i^ Disclosures made by those to whom the delinqiient bi^ .(^oiv
fessed his crime, o|* by accomplices, whether tber^ he treachery in
making these disclosures or not. There can be treachery <Hily
where there has. been confidence. What is. the effect of this treach-
ery on the proving power of the testimony } This question remains
for examination. .

<
IhvaHdatinff connderatians ret/arding extra-judicial testimony

agaihii one'S'Setf,

All the consideratkimi whk^h tend to invalidate the erimiiiating
consequences that may be drawn froiti these ^xtca-jodieial aekn^w-
ledgmentsj may be ranked under three heads: 1. The testimonjr
may have been misunderstodd^ 2. It may be inco^ipletei 81 linrnf
be&lse.

i. The language of the individual lias been misUiterpretedf if be
did nU intend to say what Is attributed to him } if he spoke in allu-
sion to some other £ict than the crime in question ; if the witness
has taken seriously what was only said in jest ; or if the actj »up»
posed to be criminal, was innocent in itself.

2. His language may have been incomplete, and, from this very
circumstance, peculiarly liable to false interpretations. He may
have spoken of u}mt otlicr eiTGumsjtance^ which nay <ur may not

be eoonected with the principal fact; he may have omitted what
would have been a key to the whole matter^ and removed every
suspicion ; the facts^ which are awanting in an accidental and im-
perfect relation^ may be of such a nature^ as to change the charac-
ter of the principal fact.

3. What he said may be false. But, it will be said, is it proba-
ble, that a man will invent a lie against himself, atid expose him-
self to be punished for a crime of which he is not guilty ? This
supposition,' strange as it may seem at fitst sight, is neither im-
possible nor exaggerated ; and the intercourse of the sexes furnishes
several examples of this species of folly. A man will try to put
himself off as the seducer of ^n unmarried woman, to remove rivals,
or induce her parents to accept of his alliance. With a married
woman he will have recourse to the same artifice to bring about a
divorce.. Even without any view to marriage, mere vanity is strong
enough to induce a man to degrade himself in the eyes of one class
in society, in the hope of elevating himself in the eyes of another.

Many other reasons may render the testimony a man bears
against Mmself false.

1. It may be false from weariness of life, from the sufferings of
a long imprisonment, from the pain and trouble which, in the case
of a capital accusation, may liead an unhappy man to prefer this
sort of suicide to every other.

2. It may be felse from mental derangement, or errors which
disorder reason ; so it was with those, who acknowledged them-
selves guilty of witchcraft, of having communication with infernal
spirits, making compacts with the devil, &c.

•3. It may be false from sympathy for an individual whom the
accused wishes to save by sacrificing himself. The drama of the
Honest Crirninal was founded on a historical fact.

4. It may be &lse from sympathy with the public. Without seek-
ing for example in history, the episode of Olindo and Sophronia,
in Tasso^ may be quoted as an example of a magnanimous false •
hood^ produced by religious zeal and love of country.

/ 5. It may be false from the view of gaining a pecuniary recom-
pense. This does not appl^ to capital crimes; but, in inferior of-
fences, a man majr be found to take the crime upon himself, and
to discbarge the true culprit for a fixed sum. This is said to be fre-
quent in China.

6. It may be false with the view of obtaining security against
some other accusation. In one of the last revolutions of Naples, an
amnesty was promised to all who should come in and declare them-
selves to have heenbriganids, th^ name by which one of the parties

JUDICIAL EVIBBNCK. ' 161

was known. ' Many peasants who bad never taken up arms' declared
themselves guilty^ as a measure of precaution to have the ' bdiefit
of the act ; ' it was a false discharge on a false imputation.

7- It may be false from the desire to conceal a crime which one
has committed, by acknowledging a crime which he has not com-
mitted. Thus a roan, unexpectedly found in a house during the
night, would acknowledge a theft of which he was innocent, rather
than betray the woman on whose account he had come there.

All these cases, to be sure, are rare in comparison with those in
which the acknowledgments are true testimonies against the
pi^'son who makes them ; but the readier we are • to consider this
evidence as conclusive, the more necessary it is not to forget ^e
facts which may invalidate it.

Hitherto we have considered only extra-judicial avowals, made
without examination or the intervention of a judge ; but the addition
of Uiese two circumstances makes a great difference.

In this scene, where every thing passes openly under protecting
forms, the only avowals are those which a man imprudently makes
with the intention of exculpating himself, and those which arise
from repentance. When the whole evidence of the crime precedes
them, their effect will be, not so much to convince the ju^ge as to
satisfy the public.^ '

CHAPTER IX.

or TESTIMONY GIVEN BY A MAN AGAINST HIMSELF, OBTAINED JUDICIALLY
INTIMATE CONNECTION BETWEEN REFUSAL TO ANSWER, A FALSE AN-
SWER, AN EVASIVE ANSWER, AND ACKNOWLEDGMENT.

VVb have already seen, that examination is the most efficacious
instrument for bringing out tlie truth, the whole truth, on whatever
side it may be ; and in doubtful cases recourse must necessarily be
had to it. -^

Its peculiarly pre-eminent property is to clear up doubts pro-
duced or left by the rest of the evidence. Endowed with this
power, it is no less favourable to innocence than unfavourable to

* To pfevent this species of evidence, testimony given by a man against
hiioself, from becoming dangcroas, it is necessary that the tribunals be so con-
stituted as to give innocence every possible security ; that they authorise no
means of error, no tergiversation, no fraud towards the accused.

It is in their mode of seeking after this evidence, that badly constituted tii-*
bnnals still display remains of barbarity— new shoots, as It were^ from the
tortufe. ^'

KB' A TBSAT18B €»

gQilt} thtnr^ it li the terror of the gniliy, and die cofifidest wtlMky
of the innocent

At the opening of the case, as the mind of the judge is suspended
between the doubts as to the innocence or guilt of the party, h€ di-
reetly applies the process of examination to bring out one or other df
the two opposite results } by exculpatory testimony^ in the case of
innocence ; by evidence or acknowledgments^ in the case of guilt.

But acknowledgments! the consequences of which will be ma*-
>nifestly prejudicial to the party making them, are naturally made
with reluctance, and little by little. Pressed by direct questions^ the
-accused must necessarily take one course or another. Before vesol viaf
to adopt that which is evidently the mo$t dangtf ous, he will have
recourse to all imaginable expedients; he will try every path which
offtes any hope of escape ; but if he be really guilty, every one of
these subterfoges, under the examination of an enlightened judge,
will tend to his conviction ; because there is nothing more certain,
or more conformable to experience, than that a man never has re-
course to such means, or never perseveres in them, when he has
truth and hinocence on his side.

Supposing that the defendant has no exculpatory testimony to
produce, he would constantly have recourse to an expedient fitted
to disappoint the end of the examination, were he not afraid of the
conclusions which would not'fail to be^drawn from it against him.
This expedient is ^fence; but as silence, in such a case, is gene-
rally considered equivalent to confession, he will have recourse
to it only in the last extremity.

Driven from this strong hold, which would be his safest retreat,
he is reduced to the necessity of inventing, in order to put his exa-
miners on the wrong road, by adducing such facts as, although
fklse, are most likely to pass for true. But this mode of defence,
besides its difficulty, is extremely dangerous ; for so soon as a iact,
thus advanced, is judged to be false, as contradicting some other
fact deposed to by himself, or already proved, it becomes anothet
proof of guilt still stronger and more convincing than mere silence.

There is no exculpatory evidence ; silence would have almo^
the character of acknowledgment ; a false answer, discovered to be
such, xvould produce a worse effect than even silence ; what re-
mains for him ? He will have recourse^ as much as possiblr, to
ei)(isite answers ; thsit is, answers which, without fumisliing any
evidence against himself, without being false, or capable of being
proved to be false, are foreign to the object in question, and indis-
tinct in themselves. • .

If all these resources fail him, or are exhausted, he has no ^ter«

I

■

I

JUDICIAL BVIPSKCS. 163

*nMF^e left but sHence or acknowledgments; acknowledgitiisiits,
which may be so multiplied by examination^ that they may end in
•forming a confession. -^^

But as a question^ when put by a superior^ is a command to
speak^'^ilfence is an act of disobedience ; acknowledgment is an act
of submission. Disobedience^ in the face of a superior, tends na-
turally to irritate him ; and submission, to appease him. Thus,
the terrified culprit presumes that obstinate silence will increase
the severity of the judge, while an acknowledgment may dispose
him to be more indulgent.

The defence of a guilty pef^on, who tries all possible subterfuges,
will be a compound of truth, falsehood, and evasion. FMsehood,
as being the most dangerous, is never hazarded, except when eva-
sion is no longer practicable, and the truth would be an acknow.
ledgment of the crime : but such is the connection between truth
'and truth, between the principal fact of the crime and its accessary
fiicts, that, most generally, following this natural clue, a single' cir-
'cumstance, well established, leads to all the rest.

** Several separate truths,'** says Fontenelle, " when they arte

once sufficiently numerous, di^pldy so strikingly their mutual de-

pendance and relation, that it looks as if they had been torn asunder

'from each other by a sort of violence, and were trying to re-unite

themselves.*'

Thus, by the aid of examination, the accused. If be be guilty,
ivill foe convicted, not only in spite of all 1^ efforts, but by m^ans
t>f these efforts themselves. Silence, evasions, false answers^ invo-
luntary admissions, every thing becomes to evidence of Crime ; all
these circumstances operate on the mind of the judge as so mariy^
testimonies which the culprit has furnished against himself.

Circumstances which invalidate the testimony of a man against himself

obtained judicially.

»

The considerations, which invalidate judicial admissions, are th6
same with those which invalidate extrajudicial admissions : they
may be misinterpreted, incomplete, or false.

It must be acknowledged, however, that the first two suppositions
are extremely weak^ when the examination has all the requisite
securities, and, above all, that of publicity. The object, in such
circumstances, is no longer to deceive or surprise the delinquent,
to draw him into acknowledgments which are afterwards! to be
abused, to intimidate him by pretended contradictions, to give his
decorations a ivlder meaning ihan they had In his own mind, or to

M 2

IQ4 ^ A TREATISE W

tiller. advantage of bis trouble and confusion to make bim fnH intO;^

snare.

In regard to tbe causes of false acknowledgments^ whicb we bare
already enumerated^ they relate merely to singular cases^ wbicb,
tbougb in the class of possible things^ are highly improljable.

*

Difference between judicial and extrajudicial esaminaiion^ in regard to >

tlieir effects. .

Each of these modes has its advantages and disadvantages. An
acquaintance with them is of great practical utility.

Private^ or extrajudicial fixamiuation, considered as an instrument
for brinj^ing the truth out of a mouth which is unwilling to speak,
is naturally inferior, in two respects, to judicial examination.

h It is inferior in point of power. As the person examined is
not before his judge, he remains silent, if he finds it convenient,
without any apprehension that tbe consequences of his silence can
be decisive against bim ; but the judge can continue the examina-
tion as long as he finds it necessary^, till the accused has furnished
completely itll the evidence that can be expected from him.

2. Inferior in point of ability. Generally speaking, an occa-
sional examiner will not possess the talent which practice gives,
and will not always know how to distinguish the essential points to
which tbe examination ought to be directed.

But this disadvantage may be compensated. For example, a
fiither, the head, or the mistress of a fiimily, has a higher interest,, a
penetrating curiosity, and a knowledge of details, which may supply
the want of experience and ability.

Another advantage, wholly on the side of the domestic examiner,
IS, that he attacks the supposed delinquent altogether unexpectedly;
the questions are so hurried and abrupt, that^ tbe party has not
time to prepare a plan of falsehood ; whereas, during the interval
.that*elapses between the arrest and the judicial examination, the ac-
cused has leisure to arrange his answers, or receive suggestions from
his accomplices. .

In regard to questions addressed to a supposed criminal in the
epistolary mode, to which he is required' to give written answers;
if he is guilty, his answer will be so framed as to produce tbe kind
of deceit which he needs ; he has all the leisure necessary for me-
ditating, arranging, inventing. A man wilPtarely furnish evidence
against himself in this way.

But, on the other hand, this writing has the particular advantage
that it is laid unaltered undier the eyes of the judge ; it is theiian*

JVmClAL ftVIDJiBCCK. 165

guage of the delinquent himself not a mere report which might be
mocfified in passing through the mouth of another.

It is seldom that testimonies of this kind are produced in judicial
investigations : Why f Because^ as the individual thus examined is
not in the presence of his examiner^ he has no liesitation in refusing
to answer questions which are not agreeable to him.. In this case,
a liess' disadvantageous interpretation is put upon silence^ because
it may be attributed Id other motives than fear.

CHAPIER X.

«
OF FEAR, IXDICATED BY THE PASSIVE STATE.

Wfi have mentioned certain cases, in which the principal fact,
the crime, can be rendered probable only by the intervention 6{
^several &ct9^ which, taken together, constitute a chain of attes-
tations.

This expression, which is as accurate as any metaphor can be,
leads' us to consider these facts iki their dependance on each other,
as being links which must all be united to form the chain ; if one
be wanting, the whole falls.

Fear, in the case of a supi^osed delinquent, is not a simple fact,
but a compound, which must be resolved into its parts. It displays
itself in the active or passive behaviour of the individual. It is ma-
nifested actively, when it leads the individual to take precautions
to conceal himself, or to destroy the evidence of his guilt ; it is ma-
nifested in its passive state, w*}ien it acts upon him even against his
will, and produces effects which announce, in spite of himself, the
sentiments by which he is agitated.

Tranquillity is the lot of innocence ; consequently, fear is an in-
dication of guilt. This probability is founded on experience, and
the nature of the human heart ; but it is only a probability ; and, to ^
estimate its just value, it is necessary to know all the invalidating
tacts applicable to it. This ahalysis has never yet been made.

To deduce from fear a criminating conclusion, the nature of the
occasion must first of all be considered; for without this, however
evidently fear may be manifested, the emotion might arise from a
cause altogether innocent, and would prove absolutely nothing.
. By occasion must here be understood the circunistances in which
a ufin finds himself placed, who is accused of a supposed crime, or
who considers hunself suspected of being its perpetrator.

10$ A TRBATMB OH '

Fear^ in so &r aa it is manifest to the eyes of the judge iii tM
passive state of the individual, ought to be considered ^ a ehain of
foctSy the lipks of which are joined in the following order 3

flr^ Itnfc.— Facts which strike the senses of the judge, symptoms
of fean These are all physical facts, paleness, redness, hesitation,
trembling, &c.

Sfiisond iitiit.— The emotion of fear, an internal or psyehological
act, indicated by external appearances. It is supposed that these
symptoms are occasioned by apprehension of the consequences of
the crime.

Hard link. — Accusing conscience, in so far as the supposed
delinquent knows that he has committed the crime.

Fourth link. — ^The crime.

We shall see immediately that it was necessary to take this chain
link by link, because there are invalidating considerations applicable
to each of these links separately.

^ The chain of consequences, by which these links are united, is
thus formed : 1. From the physical appearances, considered as
symptoms of fear, we infer the existence of that emotion ; 2. From
the emotion, we infer the existence of an accusing conscience ;
3. Frdtn this accusing conscience, we infer the existence of the
crime.

The physical symptoms, which are regarded as the effects of fear^
may b^ arranged in the following order: 1. Redness; 2. Paleness;
3. Trembling; 4. Fainting; 5. Perspiration; 6. Involuntary evacua-
tions ; 7. Tears ; 8. Sighs ; 9. Sobs ; IQ. Convulsions of the limbft
or countenance; 11. Agitation of the feet; 12. £xclamatk>ns ;
13. Hesitation; 14. Stammering; 15. Suffocation of voice.

Some of these symptoms are independent of will ; the will could
not even produce them. Others of them may be produced by the
action of the will, without the existence 6f the motion, as is seen
in, theatrical imitations.

Several of these symptoms are common to three sorts of emotion^^
fear^ grief, and anger.

Invalidating considerations or probabilities.

There are such considerations in this p8ychok>gical chain, as well*
as in the physical chain. It is pi^opoctionaUy weaker^ as it is ooin->.
pos^ of a greater numb^ oS links* Why i Beoause eadi link
brhijjp y^iOi it its own invalidating proha^hties^

I. Invalid^i^i^ ^hpts bOomging to the fktsk conchisiai^wthg min

JU]liei4J* BVI9BNCB. Uff

cbl9)0P» wbidif ftom the qnnptoiDs of fear, infm the exktence of the
amotion pf fear.

The cause of tbeie Bymptoms U not fear: 1. It is a merely
physical cause; for example, bodily indisposition, or a nerroiia
Hff^ctiw, prodbced by excessive timidity; 2» It is ^ piental cause,
aa emotion, but ope of a different kind-r-gcief or anger excited in the
accused by fear of the injury which the accusation may inflict upon
his bonour, ii( spite of his innocence.

U. InyalidatJng facts belonging to the second conclusipnn^he
conchisioft which infers, from the emotion, the existence of an
accusing conscience.

1, Conscience really accuslngi bu> not in regard to the crime in
question ; consciousness of a crime, but of another than that of
whioh the individual is accused or suspected.
. 3, Knowledge of a orime committet^ not by the accused himself
but by some one with whom he is connected by ties of sympathy, .
and wbo^m the pencUng inquiry may expose to suspicion and con-
demnation*

3» The recollection of some -fttot, which, without crime on his '
part» has been or may become the source of vexation to himself or
to some person who is connected with him by ties of sympathy,*

4. Apprehension of being punished, notwithstanding his inno*
cenee. The strength of this invalidating probability depends mueh
op the general character of the mode of procedure followed in the
ii^uiry. How many countries are there, in which the tribunals are
so badly constituted, and have such barbarous forms, that the most .
innocent man cannot appear before them without terror I

5. Apprehension of the vexations attached to a criminal process,
notwitltftanding his innocence. This circumstance is more or less
invalidating, according to the system of procedure* A celebrated
la\^er once said, " I would fly, if I were accused of stealing the
bells of Notre Dame.*'

III. Invalidating facts belonging to the third conclusion— that
which infers guilt from the existence of an accusing conscience.

Conscience accusing falsely.

Can this error, it will be said, ever exist in nature ? I| it not too
singular a paradox to pretend, that a person can recollect a crime
which he never committed ?

^ lafiuidam, Rerioa, jnbes ronavare ^olavem^
JUiess was not op bis Aemof ; what be fplt wsf giiff, aet fsm:.

Qais talia fande

Vsi^aietalaofyiids!

X68 • A -TRXATISB :0N

. An error ^of this nature .may exist, not only as tlie effect of intel-
lectual derangement, but likewise in the more common case of a
life habitually devoted to. crime, above all, if the offence in question
belongs to a remote period.

, If a thief, by profession, were seized and examined coi^cemiBg a
theft in which he had no hand, he might manifest all thie symptoms
of fear ; and, confounding one of his exploits with another, might
suppose that he recollects a deed in which he had no particifmtioja.
Such are the conceivable facts which are applicable, as invalidat-
ing probabilities, to the presumptions drawn from symptoms of fear
manifested in the presence of the judge.

. But if the judge, in place of having been a witness to these facts
himself has learned them only from the testimony of another, who
deposes as having seen them, their proving power is sulgect to all
the invalidating considerations which apply to a report as compared
with an original proof.

When this fifth link forms part of th^ chain, the following cir-
cumstances may be applicable as invalidating probabilities :

1. How far. is the examiner liabfe to suspicion, whether on the
score of his moral qualities or of his intellecitual laeulties ; for this
leads to, a proportional diminution of the confidence to be placed
in his testimony.

t2. Unbecoming or improper conduct towards* the supposed
criminal. . An examination, accompanied by unusual circnmstances,
or by threats, may produce symptoms of fear, which prove nothing
against him.

. 3. The character of the accused, his infeiiority to the examiner,
his natural disposition to fear, or the weakness of his understanding;
these are all circumstances which may produce symptoms of fear
without any criminality.

CHAPTER XI.

X^SlCArtOKS DRAWW PROM ACTIVE BEHAVlOra; CtANDESTI^tl^fiSS;

. DIPPERENT MODIFICATIONS.

The criminating circumstances belonging to this class may be
ranged under the following seven heads :

1. Clandestineness, for the purpose oreOQoeMiBg'the principal
fact; for example, by choosing thenight for doing something, Which,
had there been no criminal design, would joat^iiaUy have been done

in day-light J or. by ehoosing a plaee wbere the individual' beHeves
nobody sees hmi, for doing something/ which, were he innocent^
would naturally have been done in a place exposed to observation.
• 2. Clandestineness, for the purpose of concealing the person of tKe
supposed delinquent in the perpetration of the crime ; as in the
case of disguisci which may be considered as- a species of fiilsehood
in relation to real evidence*

3* Clandestineness, for the purpose of concealifigthe participation
of the supposed delinquent in the crime. To this belong, in the
ease of poisoning, for example, all the precautions adopted to conceal
tlie different acts by which the poison was prepared, or put into the
hands of the person to be poisoned.

4. Clandestineness, consisting in measures taken to remove any
particular individual from the place where the criminal deed is to
be committed, from a sup{K>sed apprehension, that, from being a
passive witness, he may become a dejiosing witness.

5. Clandestineness, consisting in measures taken, in the same
circumstances, to deceive a person who might have been a witness
of the crime*

^ 6. Clandestineness, in regard to real evidence ; that is, the remov-*
ing, burying, or destroying, of real criminating evidence. This may
be done in many ways ; by effacing, for example, external forms,
by changing the appearances of things, by throwing into a well the
weapon with which the crime was committed, by removing stains
of blood from a piece of furniture or dress, &c.

' This mode of 'deceit may be considered, in relation to real
evidence, as analogous to subornation in regard of persons.*
Things are employed, in this case, in the service of the delinquent,
just as persons are in the other.

7. Clandestineness, consisting in suppressing or concealing writ-
ten documents, which might serve as evidence.

Invalidating considerations applicable to clandestineness*

Clandestineness, in whatever way it is ainyed at, is an indication
of fear; consequently, all thkt we have said of fear as a proof of
crime, is equally applicable to clandestineness.

1. A guilty intention, but applicable to a different crime.
. 2. A less guilty intention.*

* To tbta may be referred the well-known story of a poor officer^ who, bein^
at an entertainment where a gold box went amissing, refused to shew bis
pockets, as all the other guests had done. He had wrapt op a piece of fowl ia
his pocket, to carry it h^^me to his family, whom he had left in great distress.

I
f

\t9t A .T|M49'I«» PJH

3. An if^l^n^Pn j|l(;pge(|i§r'^)>Umele«B^ biit y^ requiring fa^7««y,^

Wq bftT^ fseen tbat the emptipii of ffs^r^ ev«ii n^en really f shifting,
admits two invalidatiDg coqsideri^Uoiis : » different pbyaical f^^m^
bodily indUposltipQ-^^ di^te^t iiKiral caii^e^ the giief of a wounded
splfiii or ^nger.

Ib the case of clandestmeqessy in pkiee of (bese tiro i^valldatiiig
considerations^ there may be another, which may be exp^s$ed by
the word je^t; (be pbject of the clandestineneas being to produce
niirtb, amusement, sport, without intending any 9peci^ of crime* t

It is^not at all probable that clandestineness of this sort will b«
attended with any difficulty in a judicial investigation; it will not
take much trouble to distinguish a joke from a crime i but jest^
indiscreetly prqlonged, and not explained in due seAon, have 90|iie-
timfis produced difficult causes. A man, who wishes to pass for a
ghosti rumf the risk of being taken for a thief, pr something worse, t

There is one invalidating circupistance peculiar to falsehood iii
real evidence, via^.^-self-^efence. ^ inppcent individual uses
expedients of this kindy to remove appearances, which, if brought
out either naturally or by the hands of others, would tend, in the
circumstances in which be is placed, to fix upon him some imputa-
tion of criminality.

There b^ve been instancy, in which a murderer,, tp tbl^w
suspicion on an innoceut person, has deposited the bloody wejipon^
the dress stained with bloody or. apy thing else which might iperv^
as real evidence, in the dwelling or possession pfan innocent in*
dividual. If the latter were detected rempving these things to
another place, the artifice might be imputed to bim, and not to the
murderer, §

* Love coqrts secrecy as well as crime, Seryants, at their rendezvpn^, are
often taken for thieves ; akid thieves, on the other hand, try to pass themselves
off for lovers.

t -I have already noticed t|ie history of Joseph and his brethren ; it is an
example of this case, but a serious and pathetie one. The cup put in Benja-
min's sack was a falsi Scation of real evidence.

I It is not loni^ since a ghost of this sort was shot in the neigbbonrhood of
Lotidon, aiid the cQpseqnenoe was a trial for murder.

VTo thifs head may be referred the story of the little Hunchback in the
Arabian Nights. The living body» whieh is supposed to be a corpse, is trans-
ferred fron» peighbour to neighbour, always with the gr^atfst secrecy, from-
fear of suspicions which might arise in case >of a visit from the officer? of
justice.

JUDICIAL SVIDBltCB* 17t

CHAPTER XII.

OTHEB INDICATIONS DRAWN FftOM ACTIVE BEHAVIOUR; FABRICATION
OF EVIDENCE, OR SUPPRESSION OP EVIDENCE BY SUBORNATION, OR
THE INTERCEPTING OF'tESTIMQNY* t ^

All the acts^ of which we have spoken^ are intended to prevent
testimony from ever existing, or to suppress the evidence of the
crime. Those, which are now to be specified, hlive the same end
io view ; but the criminating circuQi$tances, which they furnish,,
iM^ mor^ weighty, imd it veiy seldom happens that the same iiiva*
lidating considerations can be applied to them.

1, Falsification of re^il or written evide^ce. which might tf nd to
criminate the supposed delinquent.

2. Subornation ; the act of procuring a person to giye a fid^e
teaiimony, tending to exculpate the supposed delinquent.

3t The intercepting of evidence, by taking measuf^s to prevent
the appearance of a witness, whose testimony, it 19 supposed^ WQUld^
be hostile to the accused, or by destroying written documents pr
authentic proo&.

4. Opposition made to the sear<$hing fpr, pr s^i^ing of, r^al
evidence.

Invalidating considerations.

» An invalidating consideration which is peculiar to this class of
facts, may be thus expressed : JpprehensioH that the adverse party -
practises some malversation of the same hind.

This implies, that an innocent man, who has reason to expect
. that fraudulent practices will be used against him, and who has
no confidence in the witnesses, the officers of justice, or even in the
judges, thinks himself obliged, in self-defence, to have recourse to
the unlawfiil means which are used against him.* To give a
consideration of this sort any apologetical value, it is necessary to
suppose a more than ordinary depravity in the national character,
or, at least, in all that belongs to the administration of justice.

It is said, that, in some countries, there are register offices for
witnesses, as there are in large. towns for servants, and, in certain
parts of Italy, for assassins. It is notorious, that in Turkey many

* An anecdote, true or false, famishes an illastri^tion of this ^apppsitiQii.
'A maa who was pressed to pay a forged bond, went to his attorney. What is

tab^^oiMii astatiMfUnii), IVr^e « fvl^4u«i aii«w«ia thf towfv-:

^

V

s

17S ' 4 TOBATiSB oy

persons practise witness-bearing as a trade; and this branch of
commerce is quite as flourishing a^ any other.

CHAPTER XIII.

«

OVtlKR' INDICATIONS DRAWN FKOM ACTIVE BEHAVIOUR.

Acts by which the accttsed iiiterids to withdraw from justice.

Thk acts which lead to a presumption that the accused intends
to withdraw from the power of justicci may be ranked under the
five following modifications.

1. Expatriation; — Emigration to a foreign state; that is^ to a
country where the judicial commands of bis own country cannot be
executed against his person.

2. JEjrproomda^ioit ;— Removal into another judicial district of the
same state, in so far as this change of pliice produces tlie same
effect, whether it be for a time/ or without the intention of
returning.

3. Disappearance; — When it is known that the supposed cri-
minal is keeping himself concealed on purpose to avoid any judicial
investigation. .

4. TRe transference or concealment of property ;— When the
supposed criminal puts his property into other hands, or removes it
to other places, for the purpose of saving it from the effects of a
judicial inquiry or sentence.

5. Secret negotiations with the accuser or the officers of justice ;^^
This head comprehends eveiy thing that is done or attempted with
the view of corrupting them, and seducing them fit)m the proper
discharge of their duty in relation to the accused person.

These are criminating circumstances, and are universally con*
sidered as such : Why ? Because they are indications of fear. Thus,
the invalidating facts, which have been explained under the head
of fear, are applicable to all the acts of this class.

One invalidating consideration is ap[i]icable to all those ex-
pedients, the object of which is to avoid personal appearance : the
appreliension of judicial vesations, notwitlistanding innocence*

This consideration will have more or less weight, according asi
the system of procedure in the country in question is more or les»
calculated to terrify a man who is called on to submit to it.

Flight, therefore, will be a criminating circumstance in a higher
or lower degree, accfl^rding to the rigour and probable duration

of the prelimiDary imprisonment^ to. which the innocent is exposed
no less than the guilty.* '

Flight will be a more strongly 'criminating circumstance under
a system of procedure which readily -admits bail in criminal cases^
than under one which admits it more sparingly.

Even when the individual is innocent^ the apprehension may be
still stronger in the case of certain accusations, which naturally make
him fear the influence of public passion or powerfol enmity.

There are certain situations in which a man Is afraid to have to
struggle against opinion, a party, or a sect, or against political or
religious enthusiasm. These are infectious times, in which one can-
not venture to trust to justice for the cure of evils, of which she
herself may be an accomplice or a victim.

When the parliament of Thoulouse had just broken Calas on the
wheel, would it have been proper for Sirvcn, who stood accused of
the. same crime, to have trusted to his innocence, and to have
presented his neck to the executioner ? Could his flight be reckoned
the effect of a guilty conscience ?

Independently of these considerations, there are others, which
should ' suspend, in the first instance, the unfavourable judgment
which may arise from the disappearance, or the sudden or unex*
pected departure, of the supposed criminal. Health, business^
pleasure^ are so many reasons, which may induce a man to leave his
country, to change his residence to another district, to remove his
property, and even to conceal the place of his retreat. All these acts,
embracing all the pursuits of mankind, when, considered in them-
selves, do not furnish the slightest presumption of guilt. Other
criminating circumstances must unite with them, before it can be
concluded that they are indications of fear.

The presumption arising from these acts will be stronger, if they
present a strikingly marked deviation from the ordinary habits of
the supposed criminal.

In the case of a seaman, a pedlar, a carrier, a waggoner, a
workman who exercises his industry fl'om place to place, these

* This criminating circumstance woald have been less so undir the old
system of procedore In France, than nndef the law of England.

The Cautes Cetebret^ in thirty volumes^ have been carefully examined, to
ascertain, as far as possible, the arerage duration of a criminal cause. In
several cases there is nothing to mark their duration; but, judging from those
in which it is marked, the average duration is about six years. It is true that
these were more complicated cases than the generality of cases are ; but, under
the English system of procedure, It would be difficult, perhaps impossible, to
Und ft single case, which would last one-fourth of the time, from the preliminary
imprisonment till the final sentence.

•>J

174 A TftBHTISB ON

btnsumstabecs can haVe Ho suspicious oharteler $ a mtm bf tbis'sdit
changes the place of bis abode^ sells or transfers his property^ and
departs^ without giving notice to anybody ; all these aiSts are in the
oourse' of his usual occupations | and this consideration reduces to
nothing the criminating presumption which might arise from tbem,
if lie were in a different situation.

In the case of a crime, these different acts, eapatriati€n, remote
of property, are' conunonly accompanied by clandestitien^ss ; and it
bot unfrequently happens, that the delinquent^ to render them
elalklctstlne, bai^ recourse to false pretexts, with the view of pi^vent*
ing suspicion, or of deceiving those of whose testimony he has rtason
to be afraid.

That this circumstance adds greatly to the criminating power of
the act in question, is ati obvious consideration.

But even though the expatriation and removal of property i&ould
take place openly and without any fitlse pretdxt, it does not follotv
that these acts will be destitute oi all criminating power ; for it may
happen, that, the change of place being already determined on fdr
i^asbns of health, business or pleasure, thecdmehas been com-
mitted under Ihe favour of these circumstances, and with a view to
the kind of security which they promised.

In /egard W meatks of seduction used with the aecusens and
officers of justice, this criminating circ^umstimce is liable to the same
intalidatiiig facts as means of seduction used tvith witne88es.**«^(See
Chap. X.)

CHAPTER XIV.

MOTIVES^ MEANS, DISPOSITIONS, REPUTATION, RANK, OR CONDITION —

CONSEQUENCES TO BE DRAWN FROM THEM. ^

Thesb different subjects are so intimately connected, that it is
scarcely possifaie to speak of any one of them without ref(^^cfe to
the rest} but in regard to the accused, the indications to Be drawii
from them are extremely variable, and even discordant, some of
them having a criminating tendency in certain cases, and an ex-
culpatory tendency in others.

I. Motives, ^ f .

Motive is a term vulgarly applied to mark several olijeots which
reqitire to be distinguished.

It signifies, in general, every desire, considered as a cause of action*
Let us call this the internal motioe^

^'-«

JUDICIAL mriUBKcii. !!|t5

It is likewise employ bfl to desig^date every m&teridllc^obi^et wMeh
excites the deeire. Let m call this the extetaal motive.*

A wicked deed has been committed 3 Titius is suspected of hav-
ing been concerned in it. But U)hat can have been his metioe ?
This is a question, ihe propriety of which cannot Me caUe[d in
doubt.

The following is the series of circunistanGes which make this a
proper question :

Every action, which is opposed by the influence of the tutelary
sanctions, thatof nature, that of the law, that of honour or religbn,
is rendered less or more improbable by the consideration of penal
consequences, or other evils attached. Unless this repressing;
power be overcome by a greater impelling power, the guilty act is
not only improbable, but, morally speaking, impossible^

To ask, what can have been fti« motibe in ikU case ? is to ask, not
what can have been the internal motive, for all the modifications of
desire, or nearly all, are common to all men ; btit what can have
been the external motive strong enough to produce such an effect?
In the situation in Which Titius is placed, what can have been the
object which could excite a desire sufficiently strong to overcome
the combined resistance of the tutelary sanctions,- and determine
him to the commission of this crime ?

As this invalidating consideration, which may be designated by
the name of moral improbability^ renders the criminal act improba*
ble, it is necessary to be able to oppose to it some consideration! of
an opposite tendency, sufficiently strong to overturn this improba-

bility.t

The mere existence of a motive is not a criminating circum-
stance. Although the situation of any given individual be such that
it may subject him to the action of a patticular motive, this proves
nothing, absolutely nothing, against him. In the ordinary course of
things, wherever there is any property, every child may be a gainer
by the death of his father ; yety when a father dies, nobody thinks

* Thus the desire of fain will be an internal motive ; the presence of 9, pvrsd
of gold will be an external motived' The internal motive is natural; the ex-
ternal motive is oceasional.

t The following cases may serve as examples to show hovr the external
motive may furnish a criminating oircnmstance :

The ease of Bonellan, at the Warwick assizes, in 1786. The crime, the
murder of his wife's brother; the motive, the prospect of succeeding to his
property.

The case of Fern, ftt the Surrey assises, in 1809. The crime, fire raising;
the motive, the profit to bo made on an Overvalued insurance.

The «iiso of Robert Wilton^ at Bdinbargh, in 1803. Thcj crime, tho murder
of his wife; the motive, another mairriage.

176 A WCAliSH 0Er

of attribaUog his death to.his children; and nothing l^ssthra some
extraordinary circumstance, will lead to such an idea. .

11. Meau9f opportunity,

MdanSf that is, means of committing the crune in question. What
has been said of motives seems to be equally applicable to means.
Nay, in one sense, meam may be classed under motives ; the power
of acting being as necessary as the desire in the chain of productive
causes.

(By ficcQMn or opforiuniitf^ is understood a particular combina-
tion of cinrumstances, favourable at a given moment, for using the
means of execution.

III. Dispositions.

DisposUian is the result of motives.

An individual is said to be of a particular disposition, when a par-
ticular class of motives have on his mind an influence stronger
than their ordinary influence on the generality of men. If the
soqial motives, for example, are thought to preponderate in his con-
ducta he is said to be of a benevolent disposition. . If he habitually
gives himself up to the operation of the antisocial motives, he is said
^ to be of a malevolent disposition.*

When the disposition is known, it gives a character of ixuproba-
bilityto any imputation which is at variance with it.

When the disposition of ibe accused person announces a high
dc^gree of strength in the selfish or antisocial motives, it tends to
raise the probability of his guilt ; but, in general, disposition cannot
be the subject of judicial proof. To make disposition the subject of
I a special inquiry^ would be to underUike, under the name and on
occasion of one cause, a diflerent one, and perhaps a multitude. It
is necessary, therefore, to be extremely distrustful of these preju-
dices founded on unproved allegations. They are peculiarly to be
dreaded in political and religious matters.

But it often happens that indications of a depraved disposition
manifest themselves directly, as the rest of the evidence is deve-
loped. In this case, such a circumstatoce naturally makes an im-
pression, and when proved, perhaps it is not desh'able that it should
be altogether without effect.

We have seen that it is impossible to siibject disposition to a

1

* When a namber of acts of the same kind aacceed each other in the con-
dact of the same porson, and partictiiarly during a long coarse of time, it is
G^iUed habit. In certain cases, di$posUion mb inferred from a single act marh
more than from a habit. ' ,

JITBICIAL fitlBBNCB. 177

special inquiry. Still there are cases in which it may lead to some
result. We shall speak of them in the following article.

* IV. Reputation.

The disposition of an individual may be known by the opinion
formed of it by persons whose relation to him have given them op-
portunities, more or less frequent^ of observing him, and judging of
his character by his past conduct.

An inquiry into the reputation of an individual, in so fiir as it ^
differs from an inquiry into his dispositions, is still less practicable
than the other, with the view of making the crime in question
probable.

On what ought the accused individual to be examined ? On the
&cts which have been specified in the written accusation, and on j
which alone he can be prepared to defend himself; but an inquiry
into his reputation would be an inquiry into his whole life, and the
source of a crowd of prejudices excited by assertions, not one of
which can bie regularly proved.

Still there are cases, in which, with a view to criminate, not only
' the disposition of the accused, so far as it is indicated by facts, but
likewise bis reputation, may demand the attentionof the judge.

The crimes, in which reputation may become an indication of
criminality, are those ii which enmity is the motive.

1. Personal injury. The offender is not known. Reputation
may point out such a person as the probable criminal rather than
another.

2. Mutual quarrels. The supposed delinquent is one of the
parties ; the circumstances are more or less wrapped up in obscu-
rity: Which of .the two, the supposed delinquent, or the adverse
party, is most likely to be guilty, on the score of reputatimf

V. Rank, condition.

Rank may be considered as an indication of the disposition and
reputation of the class to which the individual in question belongs,
the nobility, the clas$ of ecclesiastics, of military men, merchants,
&c.

The effect of rank, as a criminating circumstance, is almost no-
thing. In all political communities, the lowest class is the inost
numerous. To attach to this condition a criminating presumption,
would be to brand with disgrace the gi-eat majority of a nation.

It is only as an exculpatory presumption, on account of the moral

N

}7P A ?»»4TIW W

with any considerable fprce,*

TT

I

CHAPTER M^

^IfHaiBSRAViaifB waiCBt OPPOSE THE ¥XV£ PRBOB»iy<| ^BSVUWlOirt.

Ths invalidating facts, which may comiterbalaace the prP^^'?
bilities that result from the circumstances just det^iled^ cannot; be
de^i^pated by ^ny paiticular name. Situation and condition iipply
all the criminating presumptions, but they imply likewise fill the
exculpatory presumptions.

Suppose, the most favourable opportunity, and the strongest mo-
tive for coitimitting a particular crime| these two circun^stanpes dq
not furnish, of themselve^^ the slightest proo^ that tjie person ix^
\ w))om they ^leet has committed this crirpei otherwise it woi^ld tie
\necessary to impute parricide, for exanaple, to every sop whose
father dies leaving property which descends to this son.'
, It is necessiiry to set out froip a filled point : innocence oug^ht to be
j pre^med^ Tliis h npt one pf tho^e fine maxims of humanity, ^hich i
^ \i j do more hoixoqr to the heart than to the experience of those who
piaintain them : it is a maxim founded on a ^olid basis.

The four tutelary sanctions exercise 90|me degree of influence or
another op eVery iudividual in restraini];ig him frooi enn^e- In
consequence of the natural sanction, man is reluctant to commit acts

!

:rTr

* 'ni9Bw«wlawatt%9hf4???i^^ tf a

slave. If the master was foun4 Killed iki ois own house, all hl9 slaves werci put
t0 d«ath. Mpdeni Rome attaches an exeulj^atory presoiapdoB to ^d Huik ot
«af4in«i. Ajfi in^mo^^ mm^9X ^f witM|«^ft \$ reqi^if«d to ofi9¥^t ft f aid^ti
of certai^ cripae^*

Setting aside the ^neral distiBetioB between Aj^ and km rank, the taw of
England furnishes an example of a particalar occupation being regarded as a
criminating circnmstance.

It is from their supposed inhumanity and hardness of heart, that butchers ^re
excluded from serving on juries^ at (east in cfipital oases. Oi^ thi^ panci|^le,
in the case of a crimd accon^paaied with effusion of blood between two men,

fm «( vltQw jrs a batfllifiv, ii^ aome? to il^km^stx^n, which is «fail^ 1 Qvmh\^

be against the butcher^ ^nd so perha|ts it would be ip r^ziSty . Yet, pq rf ferrjng
to the annan of crime, it is doubtful whether this presan^tion be supported'bf
facts.

In tiie c^p ^ bjQodsh^fl, the PWOiaptiftm Y(H^W in tbe pipt instWP^i **^*
the crime on the butcher father than on the party i^ho is no butcher, would
kmxnorostseagth than that which eiclodea perasna of this pfafoMAoa UwA
serving 9ft jHflea. It skeins iippoasible to dwcpve^ a reaspa why 9 bpteta?
should be more incliiidd to commit ii\}nstice in a capital case thaa any otber
man. Chaaeettor J^dUefi aad Judge Pagr^ m fiuoons in Ute anaal^ of blcMdy
V W Vif^ V»tclifsr«,

of viekedQeM oiE' tiy iistioe^ and he foavs, moreover^ (o Mpod6 himself
to the hatred or the vengeance of those whom hm Injures } in don^
aequepee of the legal sanction, he dreads the puninhtnent of the law ;
in oonaequenee of the sanction of opinion^ he is afraid of losing the
estaem and incurring the blame or contempt of society 5 in conse*
qiience of the religious sanction, he dreads the puhisbment which
region has denoxineed against all crimes, even tiioagh he Should
eaeapd from haman tribunals.

These four sanctions, then, operate as so many (cheek's to keep
men back fix>m ofime. From various causes tli€^ wti»f Ml in their
cfiect, and temptation may triumph over the restraining motives)
but these are exceptions, and, in the ordinary ooUMe of fife^ these
sanctions act with sufficient regularity to keep men Wtthiilllie litte
of duty. They oonstitute, if I may so speak, a proof 6( Innocence
in (kvQur of every individual ; and, if I could venture to emf^ldy a
mecbanioal jcomparison, I would say, that they render the etitM
improbable, just as it is improbable that a balance will tiot sink on
the side to which four known weights are applied^ unless it be first
proved that these weights have been removed, or that a heavier one
has been put into the opposite scale.

The effect of these sanctions is such^ that, where the question is^
which Qf dij^'ei^t motives ha$ led to the CFime^ the lesa wicked
motive is always the more probable. I do not know but a Nero
may be an exoepiidn to all rules of humatiity ; but as for Nero
hi)P3elf, I would be mqr^ inf^Uped tq ^^^ibul<e tb« b<|imiig of Bome
to. a desire of being its second founder, than to the desire of enj^inf
the frightfiil spectacle of the si^fferings and ^e^alr at the Ro^asau
Bpople.*

For the same r^aso?)j ^e niiore heinous any cr4me would-be in
the Individual %q whom U U impuMi i| ^ A^ i^^orp imprab^^te ;
and the stronger m^st the evidence bp to e$U|hli9h it%

Tbusj the effect and use of the criminating clreumitanees that
result from $})e p^rticn^ar condition and Mtuf^tion of an individual^
h \o cpunterhalaope this geneml presumptipn of in^iocenoe.

The four sanctions tend to maH^ the crihie improbable} the par<<
ticnlar sitn^tion tends to restore its probi^biUty*

Among several suspected persons^ the circumstaneea dedi|cact
fron^ n^otive, change ter^ reputaUoni lituntion^ indicate, inthit case
c^ wvx^ on^ of thefp> 4 higher dfigree of probability against hun
than gainst the othera^

Tbe^^ are indications which C£|nnq( ]^ diiiregaiNled. tfthe ciioM
has h«en cpmn^itMi ft (criminal mwlj h» sought. Sospk^ at^
taches first tq ^ijj^ wW W ^ ^ pMrUfuIav moftiw^ a (ligtiilBleMii

N 2

t.

180 • A TRBATISB ON

a peculiar facility to commit it ; to him who is stained with a bad
ceputadoQ^ who has given proofs of similar dispositions^ &c.
; But it must likewise never be forgotten, that these presumptions
are extremely liable to be fallacious ; that they become the weaker,
in proportion as they embrace a greater number of individuals ;
that the greatest injustice has often been committed by crediting
tibem too blindly ; and, in particular, that, if party spirit or the pre-
judices of a sect be mixed up with them^ they are doubly to be dis-
trusted. There was a time when an accused Jew was sdways
guilty. The judicial murder of Galas was, in a great degree, the
effect of the popular opinion, that the Protestants put to death all
those of their own number who wished to abandon the Reformed
for the Catholic Church.

These circumstances ought to act only at the' outset, as indica^
tions which may guide and particularize suspicion 3 but, till they,
are combined with stronger proofs, they are of very little value.

\ CHAPTER XVI.

RULtS AND GENERAL MAXIMS IN CIRCUMSTANTIAL EVIDENCE.

I. Rules regarding its exclusion and admission, -

Two short and simple rules will embrace all that is necessary
on this topic :

. . JRr«< rttfe.— This species of evidence, likeevery others must nei-
ther be required nor admitted^ where its admission may be mofe
prejudicial to the collateral objects of justice (the prevention of
delay, expense, vexation), than it can be useful to its direct object,
(the certainty of the decision, or its conformity with the law).

Second rule. — With the exception of these cases, never exclude,
mever refuse, the production of any thing that may offer itself in
the character of circumstantial evidence : in particular, exclude
nothing, because you think it deficient in proving power.

Why exclude any thing ? If it produces an effect, it is useful ;
if it produces none, it is harmless.
' To find infallible rules for evidence, rules which insure a just de-
cision, is, from the nature of things, absolutely impossible ; but the
human mind is too apt to establish rules which only increase the
probabilities of a bad decision. All the service that an impartial
investigJator of tlie truth caii perform in this respect is, to put legis-
lators jand judges on their guard against such hasty rules.

JUDICIAL XTIOBNCS. 181

II. Observations on its proving power,

I. To say that any &ct is less or more probative of the principal
fBtet, is to say that it has less or more connection with that prin-
cipal fact. The degree of proving power is as the degree of con*
nection ; th^e two expressions are mutually convertible.

3. As the proving power^ or the intimacy of the connection be-
tween fiict and fact, is merely relative to the person who ]%|fard8
them, all that this phrase expresses means nothing more' than a
strong conviction on his pu't, a conviction ^plied to the evidence
in question, viz., circumstantial evidence.

3. In every case, the degree of proving power might be expressed
by numbers, as mathematicians express degrees of probability, viz.
by the relation which one number bears to another. Biit this sci-
entific formula would be more specious than useful ; these degrees
of power are neither uniform nor permanent ; they Vary according
to the different species of circumstantial evidence.

4. Attesting facts of the same nature may occur in such different '
combinations, that they will have different degrees of proving 'power
in different cases.

5. The great utility of the invalidating considerations is . tp iur«
nish a criterion of the strength of the conclusion to be drawn firom
any given proof.

6. To ascertain whether any given . ciroumstantial -fiict be^conr
elusive or not as to the principal fact, find first all the invalidating
suppositions applicable to it.

7. That is, ascertain whether there be not^ in the class of pos^
sible facts, donie one, which, supposing it to exist in the case in
question, would render the existence of the principal fact less pro-
bable. If there be any invalidating supposition of this sort, the
proving power of the circumstantial fact is not conclusive.

8. But if all your efforts cannot discover any invalidating suppo-
sition ot this nature, then, in the particular case before you, and in
relation to your own belief, the proving power is conclusive.

9. If different invalidating suppositions apply to the same circum-
stantial fact, and they have all the same degree of probability, the
sum of the invalidating powers will be as their number.

10. In a chain of evidence, composed of a great number of links^
the greater the number of intermediate links between the first cir-r
cumstantial fact and the principal fact, the smaller is the provinjr
power oftheformerin regard to the latter. Why? Because there
are invalidating circumstances applicable to each of the facts which
form the chain. '

If

Itt A TRSATI8S OH

11. Therefore^ where such a'conoatenation existed it is a nedessary
precaution not tb dllow any ihtermediate link to pass without exa-
fauilii^. Ae inValidatiBg suppositions which belong to It.

13. 3^he fNi>Tiag pow^ of every circumstantial fticti when ap^^
plM to the principal fiict^ augments the proving power of every
other.

I3w But this is^o reason for concluding that the provhig power
of all the86 laots is alwliys and uniformly as Ae nufnlier erf* Ihe fiMrts
tfaemii^lv«S4

14 In orHmlning) for eieanipl^ the table of etreutttstMi^l fiMta^
in reference to a crime as their common prineipal fiiet-, more Ibail
bne ease will be foimd where two fiicts^ eneh <rf' wUch^ tak^ 8#|mi*
mtelyi Would have no proving power^ act^ whw imited, widi a eon^
filderaUe decree of proving power ; a d^^ee so ctonsidenible, Ihati
in the abaedce of contrary evidence^ it would: appear alfiogHher
vonelusive*

III. Practical maxinn,

nWxma the difikr^ttt systi^ns of prodedure htfve been UaUe to
run into extremes on the subject of circumstantial evidence;

Onci of tfieie extremes has bi^en, to rijeet this or that speiftiea of
Cilrahittitantittl eirideiieei Aiiothel* hils been^ to cdosMi^ this or ihltt
species^ in connection with the princiiml fact^ as cdnclnsive proofs
iiiow^ tb glv^ ltti3r pH>tf tt «oncItti^ve effeet^ Is to exsiiide all the evi.
defied ^M the other side.

The theoretical propositions contained in this dhi^Her i iato irnU y
lend us to i^me practical instriictiohs of an &dnMmii6cy likture ;
»ome ^f them tending to prevent this evidenee from beuig KwMr.
xMbted i others fttMH beifi^ (mefmbi^^

1. Never iteject eit^cumstantial evidence on acdonnt tif its wMk«
ness :

2^ Still }e§s^ Oft account of its not being conclusive^

3; Do not t)r<esUm6 that it will be insufficient when formed into
a body,* beeauiS^ il« elementary ports, taken separately, are insnifN
clfenfe

4. Dd tbt hold jciremmslantiat evidence to be insufficienl merely
on account of the dbsence of direct evidence; that is, When the
IMter ainisot h^ obtaiiied, or can be obtained otily jEit the ^xpetee
of ft prciponder&litig iiumber of inconveniences in the shape of dehi||
ejTpense, v^xtttions^

5. lXHM>t hold direct evidence to be insuffieieBt merely on ae*
totifat ot'the iib^to^e of cirdumsiautial evidence^

6. Do not decide beforebftpd, ey^n provisionally^ tiiM noy por«

JUmciAb BTtOSKCX, 181

inmlar {ioreion of ctrcuta^taiiiilil 6videitefe^ or eten any partiottlar
bfxijr of such evidence, shalLbe cooelnsive*

7k Much less make tbetu couctitsiire to the effect of excluding
contraiy evideace.

8i Do not be satisfied with cireumstAntial evidence, when you
can obtain from the same source a direct and particular te8tim6ny.

9b Whatever may be the evidence obtained without examining:
the {Mti^ties, especially if it be circumstantial evidence^ never fail to
have recourse to a judicial examination^ if the situation Of <lie par-
tin be sttdh a^ eoables them to give information^ telidiog to mtike
the pttiof more complete and eorreet;

Ifk Do not it^eOt ^dUrumatantial evidence as superfluous, because
&f the abilddanee of real evidence.

V**"*^

■^ I 1 " .^ - -, — ,

CHAPTER Xnt

COMPAaiSON OF DIRICT AN0 ClRCUMSf AVTIAL EVIDENCE IN BEOARP 01*

THEIR PROVINQ POWERS

DiRBct ttnd cifieumstattthil evfdence have sometimes been com*
paied in regard to their proVing^ power, both of them being taken
in A HUM f end, as a consequence of this sut^eHicial view^ the pre^
ference has been given sometimes to the one and sometimes to tlie
other*

It will not be out of place here to make some ob^ervathins eal*
cttlated to throw light on the subject.

The posisesdoh of one of these kinds of evidence is never, as WO
have altieady said, a good reason tot disregarding the othen

But one of them iuay be awantitig, above fill, on the part of the
abused in a criminal caie i and in civil cases^ each party may be
unpmvided i<rltli one or other of them.

Tftkitig eifdumstantial evidence in its most comprehensive
sense, so as to include all its modifications, it has been already
observed, ihat perhaps there never wad a case whidh presented a
ma^s of evidence composed entirely of direct evidence, without any
intermixture of circumstantial. In truth, as the portions of direct
evidence. Increasing in number, come to be combined, to give each
other mutual support, to form a chain — it becomes necessary, in
order to feel their strength and union, to reason and draw inferences
from the one to the other. Consequently, all these portions of di-
rect evidence assume the character of circumstantial evidence; for
direct evidence is that which requires no inference, while circuni-
stahtial IS, itt iorae toeasur^, entirely made dp <)f inferences.

Ig4 A TAXATfW ON .

But circmnstantial evidence, thatis, the evidence which is en-
tirely made up, of inferences, sometimes occur without any mixture
of direct evidence ; and, in this pure state, it is often made the foiin-
dation of decisions.

Abstractly considered, it cannot be denied that circumstantial
is inferior to direct evidence. We have just assigned the reason.
Direct evidence requires no inference; circumstantial evi-
dence can exist only by inferences, and there is scarcely one which
is not liable to be erroneous.

Strictly speaking, there is likewise an inference in direct evi-
dence, but it is always one of the same nature ; from the relation of
the facts stated by the witness, it is inferred that the &cts ai^e trae.

In regard to circumstantial evidence, which is formed by way of
argument, they, who maintain that it is superior to the other in
proving power, have said in its favour, that U cannot lie. But this
is true only of certain modifications of it.

The only evidence which cannot lie, is that which comes imme-
diately under the senses of the judge, without the intervention of
human testimony ; such is real evidence. The same may be said
even of false testimony ; there can be no error in the inference
deduced from it against the veracity of the witness, an infer^we
which ^ves to the false answer the character of circumstantial
evidence. .

But every species of evidence, which passes through the mouth
or under the pen of a human being before reaching the senses of
the judge, is as liable to falsification as direct evidence; and this is '
the case with all the modifications of circumstantial evidence ; not
excepting even real evidence, when, codking through the medium
of a witness, it ceases to be an original proof, and is merely a report.

Now, the falsification of written or real evidence may have the
same effect in deceiving the judge, as direct personal evidence in
the mouth of a false witness. Their pernicious effects may be pre-
cisely the s^me. .

Stilt, it is only by accident, and in certain cases, that real evidence
can be falsified, or so altered as to deceive; whereas there is no
case in which a witness may not mix up some falsehood in his de-
position, if he has la sufiiciently powerfol motive to make him run
the risk.

Particular advantages of circumstantial evidence,

*

Circumstantial evidence is useful in three ways.

1. The greater the variety of facts which are embraced, the

JUDtCfAL BVIDBNCB. 185

greater is the likelihood of discovering falsehood ; for^ as every
allegatiou is liable to be overturned by its incompatibility with fiu^ts
notoriously true, the greater the number of false facts, the greater
is the chance of unmasking them. Now, this is the prime advan-
tage of circumstantial evidence ; in proportion to its extent, it
brings a greater number of facts under the notice of the judge.

2. This mass of different facts is likely to be furnished by different
witnesses : but the more numerous the witnesses, the more difficult
do they find it to concert among themselves a plan of false testi-
mony, and, above all, to concert it successfully ; nothing is more
rare than the success of a scheme of lying, which requires many
actors.

Thus, suppose a criminal founds his defence on an aUbi; the
greater the number of false witnesses, who depose that, at the time
in question, they saw him in a place where he^ really was not, the
greater is the chance of convicting each of them of falsehood.

3. When the success of a falsehood depends only on direct tes-
timony, without any circumstantial evidence, the principal author
of it will more easily find false witnesses to undertake the character
in which he instructs them. But when it is necessary to the suc-
cess of the plan to fabricate, secure, or destroy articles of circum-
stantial evidence, the field in which he must choose his secondary
agents is more narrowed, and he may often find himself stopped by
insurmountable obstacles.*

4. In most cases, a fact, which must necessarily be proved against
the accused, belongs to that class of facts which can be established
only by circumstantial evidence.

Such are, for example, the facts which we have termed 7)^eAo-

* There have been cases of forg^ery, in which the very paper ased for the
false deed has furnished the means of proving the forgery. A kind of stamped
paper, for example, which was not in use before 1800, may be ased for a contract
bearing the date of 17d9. The non-existence of this paper at tlie date of the
deed would be a fact of the most perfect notoriety among the clerks of the
stamp-oflSce. The testimony of one of these clerks, in circumstances which
prevent even any temptation to lie, would be sufficient to turn the sc^e against
the testimony of any number of ordinary witnesses.

The denouement of one of the tales of Miss Edgeworth (Patronage), which
contain so faithful a representation of life, is founded on an event of this kind.
A forged testament was bringing with it the ruin of a family. The counsel,
who knew that the deed must be false, saw all liis objections unavailing against
the art of the forger. After exhausting every resource of argument, he requests
that the seal shall be broken. The seal contained a piece of copper money,
intended to make the mass of the wax more strong and compact. It is showa-
to the judge ; it is a coin of a later date than the pretended deed, and the fraud
is detected. I have been told by the writer of the tale, that this denouement,
which has been blamed as improbable, was taken from a real fact, and the
anecdote had been preserved in her own family, which had particular reasons
for remembering it.

166 A TRBATIM ON

]ogi^ii2..^ocUsing eohseience^ criminal intenlibti^ the faxbtenee of
such dr 9nch a motive. These fiiots are necessary to establish ibe
guilt of the accused ; but it cannot be expected that he will acknow«
ledge them, unless, in conseqiilsnce of other evidence, be considers
his ease desperatet Now, whence can the proof of these psyoho^
logical facts be drawn, except from the testimony of other persons?
And this testimony must be of the nature of circumstantial evidence
under some one of the modifications considered above/

The best means of avoiding this inconvenience is to require ii
high degree of precision in the written accusation in criminal cascs^
and in the conclusions of the parties in civil cases, so that all the
facts to be proved, whether principal or circumstantial, shall be
categorically set forth beforehand.

English indictments are of this nature ; they are brief and tech^
nical. The actions of the accused, in so far as they criminate liim^
are distinctly set forth. The prosecutor is bound to prove tbem,
and is not allowed to introduce new ones. Consequently, he takes
care to weigh well every allegation ; and the debate arises hnme^
diately on the weak side of the accusation.

* Evidence is direct, positive, immediate, wheii it is of sach a nature, thai
(admittiogC its accuracy) it brings with it a belief of the thing to be proved.
Bvidenoe is indirect, or circumstantial, when it is of such a nature, that (ad-
mitting its accuracy) it leads to a belief of the thing to be proved only by way
of induction, reasoning, inference. Various important consideratiotis arise
from the nature of these two kinds of evidence.

t.As every part of circumstantial evidence is a fact intended to be the
groundwork of ah induction, this fact ought to be proved as completely and
regularly as if it were itself the subject of the investuation. Paul has hta^
murdered ; Peter is accused of the murder, because he was seen, at break of
day, amile-fi-om the place where the dead body was lying, walking with a
troubled air» and spots of blood on his clothes ; because he took post herses at
the first stage, travelled a hundred miles without stopping, changed his dress
ott arriving at a particular town, &c.

Bach of these facts, taken separately, tnay form a circumstantial proof. Con-
sidered in their relation to each other, they form a chain of proofs, all tending
td confirm the conclusion, that Peter is the murderer, though nobody saw him
strike the blow.

N«w, who does not see that this conclusion follows legitimately from each
Ihct, only In so far as that fact is well established ? Who does not see, that, as
these facts are the foundation of the induction, if they are shaken, it falls.

However, in criminal proceedings, nothing is more common tban to propor-
tion the care taken to have the evidence complete to the importance of the fact
to be proved*

Now, as every circumstantial fact, taken by Itself, often seems to be ihsig-
aificant, people satisfy themselves with alleging and proving it carelessly, and,
as it were, in the by going. Judge, jury, public officers, counsel, every body,
in Short, involuntarily proportion their attention to the character of the fact
taken by itself, forgetting that it is not the fact which is of importance, biit
the inference drawn from it, and that this inference frequently rests on circum-
stances inconsiderately admitted at first, and subsequently marked with a cri-
mifiating character^ by the concurrence of other unexpected circumstances
which come out in the course ofthe proceedings.

JUDICIAIi SVfiMSNOE. ^ ^ iff

Pfefacb indictiiietii% {dcM d'aceHsaiioti)i On the oonlrttry^ are )m*
hioderatelj long^ in a •vague and declamatory stylej loaded with
the minutieb collected in the hu^e precognition, whieh is their
ground-work", and full of conclusions foreign to the question^ or of
ridiculous conjectures^ In this voluminous trasfai the counsel of
the accused selecti in the best way they can, what seems favour*
able to their cause, and the latitude allowed in Uie aecusation opens
an equally wide field for the defence. The debate becomes vagu0|
desultory, and intei^minable^ Tlve public prosecutor eatamines n
hundi^ #itnes8es> who depose to puerilities and gossiping^ The
defendant dt firat, does not find that he has any interest in formally
examining and contradicting such witnesses } and yet it is on these
vagiie reports^ these hearsays^ these puerilities^ perhaps all falsei
Assuredly all ill established, that the public prosecutor erects, in his
pleading, the scikfibldiitg of his system of accusationt

The satne thing happens in the d^encei The prisoner's counsel
exandne a crowd of witnesses, mostly of no importance, and whose
depositions pass uncontradicted^ or nearly so| the essentiid jfiEicts
are bui^ied under the superfluous i and it is on these accumulated
and ill^estabtiahed Ansts that the defence is founded*

At last^ afkei* l^ight or ten days of fatigUmg, useless, confused
debatt^ and declamatcNry pleading, the jury retire^ their memories
overboded with trifles, and obliged to find their way through inex*
tricable confusion ; and their verdict is perhaps founded on facts^
wbiiA) had they been propeiiy ducidated, would not have borne
lea mioiites discussion.

The same thing happens in civil cases. In a cause of any im*
pbrtaoce, the cou&sel, in France, have the right of alleging some
hundreds of fitcts^ to the proof of which it would be impossible to
proceed witliout intolerable exp^iiie and loss of time, and which
may hiive a decisive influence on the case.

The use of circumstimtlal evidence, then^ ought to be subjected,
in the first place, to the following rule :

** Oblige the drawer of the indictment in criminal cases, and
the parties in civil cases, to set forth categorically every circum"*
stahtial fact in as precise and tdchnical language as possible } oblige
ho& to i»nfine themselves, in the debate, to the proof of the factsi
and to give notice^ as each witness is brought forward, of the &ct
he is to ^rove, and the inference to be drawn from that fact when
it is once established.^'

U. As every citieumstantial proof rests upon a &ct which has a
certain relation to the principal fact, the principal fact itself ought
to be proved by direct evidence. In the example used above, the

18S ^ A TESATISfi ON

accessory facts are the flight of Peter, the blood seen on his clothies,
the care which he takes to keep out of the way. The principal
fact is the murder of Paul, whose dead bo4y has been found
. pierced with a knife.

Without the principal fact, the accessory facts are nothings The
principal fact ought to be established by direct evidence.

The necessity of proving directly the principal fact, which serves
as a centre to the circumstantiar facts, is particularly felt in accusa-
tions for conspiracy and other crimes of a similar nature.

In the aj9air Which was brought before the French chamber of
peers, the public officers had descended even to alebouses, and
collected all the seditious or improper songs current in them ; they
had entered barracks, and listened to every imprudent expression ;
they had followed the travellers of merchants in their journeys, sat
with them at the table d'h6te, marked their equivocal language,
seized their papers, and required them to give an account of every
phrase and expression; finding in every thing supposed grounds for
frightful conjectures.

Then, combining all these accessory facts, they affirmed that a
conspiracy existed. When called on to prove this conspiracy, they
adduced, in way of conjecture, the existence of all these facts.

When told that each of these facts was innocent, or insignificant,
or slightly reprehensible, they gave them a criminal meaning, by
arguing on the existence of ^ plot.

Thus they proved the plot by the existence of the accessory facts,
and imputed criminality to the accessory facts from the existence
of the plot. .

This faulty mode of reasoning in fi circle, will often occur in
accusations of this nature, where it' is not the offender, but the
offence, that is sought after — where the government exerts itself not
to discover those whom it -believes guilty, but to discover of what
they are guilty. And, unfortunately, this sort of accusation is the
true domain of circumstantial evidence.

Hence a second rule : " Require that the accusation state dis-
tinctly a criminal fact, or at least one of an extraordinary and highly
suspicious nature, as the principal subject of investigation, and that
it be proved directly, before admitting cirdurastantial evidence,
either to complete the proof of tlie true. chi|racter of this fact, or
to establish the guilt of the perpetrators." '.

III. The circumstantial facts may be connected with the principal
fact either directly, or indirectly, through the medium of other facts
of the same nature.

Thus, for example, the spots of blood observed on Peter's hands

JUDICIAL XVIDBNCK, 189

almost at the moment when Paul was murdered^ is an accessory
fact directly connected with the principal &LCt ; but that Peter sold
bis clothes in some place a hundred miles off^ is a &ct which is only
indirectly connected with the principal one; it has no criminating,
tendency, unless Peter had gone off immediately, and sold his clothes
the instant of his arrival. Without this, the fact proves nothing.

It is essential, therefore, to compel the party who produces circum-
stantial facts to connect all the links of the chain in such a manner,
that the first shall be joined to the principal fact, and the last to the
first, without interruption.

Without this, a man may be called on to give an account of
every circumstance of his life ; for there is not an action in the
world, which may not be connected with any crime you please, by
conjectures more or less bold. (Nothing is more common, in French
prosecutions, than to see the accused called in question regarding
every circumstance of his conduct, and required not to exculpate
himself from appearances of guilt, but to prove that he cannot have
been any way connected with the crime; a thing which most fre«
quently is merely impossible.) Moreover, nothing is more ready to
lead jurors astray. A man is set before them who has done different
things, to each of which a criminal meaning is arl^itrarily attached ;
it is in vain for him to protest that they were all innocent; there
are a hundred proofs instead of one, and even the wisest fall into
this error.

. There is nothing in judicial logic more important than the follow-
ing observation : Circumstantial facts can be cast up into a sum total,
only when they are in some measure identical quantities, that is,
when they are grouped round the same fact directly, or in an unin-
terrupted chain ; when the mind can follow the connection which
unites them . without losing sight of it for a single instant ;. when
they all concur to establish, not an opinion or a conjecture, but the
existence of a principal fact.

Hence a third rule : '^ Oblige the party, who alleges the fiK^ts, to
connect them directly with the principal fact, or in an uninterrupted
chain with each other." Wherever the chain is broken, wherevei
a link is lost, the other links ought to be thrown away.

190

BOOK VI.

INFERIOR EVIOlBNCE, ADMITTED IN THE ABSENCE OF THE MORE

PERFECT KINDS.

CHAPTER I.

DEFINITIONS AND DIVISIONS.

In the pyeceding book, we have explained the inferiority of cir-
eumstantlat to direct evidence. Its inferiority consists in this, that
the fact which it ascertains, is not the principal iact (the fact to be
proved to the judge), but some other fact, which, though diflerent
from the principal fbct, is so connected with it, that it may be re**
garded as forming a proof, varying in degrees of strength, of the
existence of this principal fiict.

We now proceed to another species of evidence, to which we
particularly apply the characteristical appellation of ir{^{or«vufertc^,
on account of a much more marked inferiority. Its inferiority con-
sists in this — the attesting^ fact, that is, the fact put forward as a
proof. Is of such a khid, that the seoiriiieij which serve to guarantee
the accuracy and completeness of testimony, cannot be applied to
it. Unprovided^with these securities, the proving power of the
fact Is inferior to that of evidence to which tney can be applied.

In spite of the imperfections of this species of evidence, it is often
necessary to have recourse to it from want of better. It is a jrif
alter, necessary, indispensable.

This inferior evidence forms two principal dtTisions «

1. Written extrajudicial evidence.

3. Derived or transmitted evidence.

I repeat, that the defect, common to both, consists in the absence
of some of the principles of security ; fbr example, cross^xamhia*
tion.

I. Inferior extrajudicial evidence.

It may be divided into three branches :

L Casual written evidence.

2. D^mi-preconstitttted evidence (evidence ex^parte).

JVmClAh BVI9BVCE. 101

3. Bprrowed evidence j that is^ evidence taken in one canse wi
used in another.

1. Wlien the letters or notes of an individual, or a joumal which
he has kept for bia own use, are employed judicially, suqfi docu*
ments may be designated tfy the common appelhtipn of ca^jml
written evidence. The name is appropriate, because in general such
writings are not made with the intention of being used judicially,
and have some other special object.

2. Under the definition of casual vn*itten evidence, I do not com-
prehend commercial letters and the books kept In commercial
houses: these writings are regularly drawn up in one uniform
manner, with a determinate object, and with the intention that they
may eventually be used as evidence. Hence^ they may be con-
sidered as a branch of pre-constituted evidence, fiut, on the other
hand, they want the qualities which so eminently distinguish this
species of evidence ; they are not made conjointly *by the two
parties interested ; they are not the work of a public officer elevated
by his situation above every su^icion of fhiud. It is necessary to
find a term which will express this diflerence, and mark at once
the inferiority of the evidence. The appellation of dend-freconstir
Med evidence represents sufficiently its nature and its value.

3. Borrowed or transferred evidence, is evidence already established
judloially, but established in anotha* cause, from which it is brought
tm be applied to the cause in question. Thi§ head comprehends,
1. Testimony inter aKos, testimony judicially given, but in a cause
between difibrent parties ; • 2. Testimony alio in foro^ testimony
alr^y given judicially, but In another tribimal, whether between
the same parties or different parties.

At first sight, one would be inclined to believe, that evidence,
obtained in a case which had been terminated by a judgn^ept, carries
great weight with it ; but there are many considerations which
invalidate it. Has this evidence, borrowed from a case altog^tb^r
foreigu to the one at issue, been guarded by all the proper guaran-*
tees ? Has it been proved by all tbe necessary tests ? It may have
h^W a^lyected to an examination, but an examination conducted
under difibrent circumstance, by diiTerent persons, with a difleren^
^Igect, and when the same means of investigating the truth did nol
exist. Its strength may likewise be diminished in various de^e«
l)y aU the po^ible imperfections of different systems of procedure*
What confidence could be placed in evidence borrowed from a
canse wbicl^ had been tried by the inquisition ? It is clear, tben^
that tbi$ borrowed evidence ought to be ranked in the class qf

192 A TRBATlSB ON

inferior evidence ; though its inferiority be variable, and that it can
be used only when no better is to be found.*

II. Derived or transmitted evidence.

•»

It forms five divisions :

^ L Supposed oral evidence, given or transmitted verbally } hear-
say.

2. Supposed written evidence, given in writing; copies.

3. Supposed oral evidence given in writing.

4. Supposed written evidence given verbally.

5. Supposed real evidence, given either verbally or in writing ;
reports.

. Evidence is not original, in relation to persons, when the deposing
witness states, not what be has seen or heard himself, but what he
has been told by another.

Evidence is not original, in regard to tjoritings, when the charac-
ters presented to the judge are not those which were traced for the
first time when the words in question were reduced to writing, but
are only a transcript or cogy of them. Evidence is still less original
in regard to writings^ when the deposing witness merely affirms
that he has seen them, and fixed their contents in his memorv.

Evidence is not original, in r^ard to things^ when the thing itself^
which is used as evidence, is not placed under the eyes of the judge,
and can be hnown only through the medium of a witness.

Tbe condition of language corresponds to that of ideas. It is in
vain for him, who fears the reproach of creating new terms, to
pretend to increase the stock of human conceptions, or ren-
der them more clear and correct. A subject must have a name.

« * Another danger, which must be gnarded against^ attends the admission of
this species of evidence — ^the danger of coUasion. One of the parties, in order
to create fallacious evidence, which maj be serviceable in the present suit, may
have a fictitious suit with a pretended adversary, who would make only a pro-
tended resistance, with the view of giving to the false evidence the colours ot
truth. Let us suppose a case. Jane Vernon alleges that she is married to
John Bastard. Foreseeing that her marriage will be disputed, she finds some
complaisant friend who brings an action of debt against her as an unmarried
woman. She defends herself by her character of wife; and, to support her
plea, produces witnesses, whom her pretended adversary takes good care not
to embarrass by too strict an examination. Subsequently the serious suit
begins on the. question of the marriage. Ought the above evidence to be re-
ceived ? If it be received, tbe alleged husband must have the right of examin-
ing anew the witnesses who deposed in the former suit. But if these witnesses
are dead, or beyond the reach of the court, what will be the y^ue of their
former.depositions ? As they have been taken under the eyes of a judge, under
the securities of an oath and of examination, they are far above mere hearsay
in the shape of a conversation ; but yet they are far inferior to direct evidence.

JUDICIAL BVIDBNCK. i93

s

before it can be made tbe subject of an affirmative or negative
proposition.

Common language possesses two terms^ hearsay and cojyy; but it
bas no more general term to express the inferiority common to
both. This more general term is that of derived evidence, or evidence
not original.

, In every derived testimony^ there are at least two persons on
whom its proving power depends ; two persons who, by their very
number, weaken instead of increasing its proving power.

The existence of the deposing witness is certain ; the existence
of the alleged original witness is necessarily a matter of doubt.

It is for this reasX)n that the epithet supposed enters, as has been
seen, into the denomination of each class, and forms a necessary
part of it. If not always expressed, it must always be understood,
under pain of incessantly falling into confusion.

I am not afraid of indulging in a repetition for the sake of greater
distinctness. In every derived deposition, there are two different
points in question, the one of which is certain, and the other only
affirmed. What is certain is, that A. declares such and such a
thing before the judge; what is affirmed is, the thing itself which
A. declares.

What A. affirms may be true or false. Titius declares, in pre-
sence of the judge, *5 1 heard Sempronius say so and so ; " but
Sempronius may not have said it, or may not have said it exactly as
it is reported. Thus, the epithet supposed is necessary to guard
against the effect of the mere assertion*

In every case, the testimony supposed to be original, is held to
have been given extra-judicially j hence the danger of fraud, omis-
sions, and inaccuracy.

III. Qualities common to all the different kinds 0/ Inferior Evidence,

A confused mass of intellectual .objects gives no room for general
propositions. We must class them according to their nature, and
give each class an appropriate denomination, before we can frame
true propositions, capable of practical application.

Nomenclature is classification. When a common denomination
comprehends only well arranged ideas, we can speak of them with-
out confusion, and apply general characters to tbe objects included
under this denomination.

We have arrived at this point by the classification of the different
kinds of inferior evidence. We shall soon be engaged with their
differences, that is, with their higher or lower degree of proving

• $

1S4 A TRBATISB 0)1

poW^T ; but we are already in a cbhdition to mark their commoii
properties, and to announce them in distinct propositions.

1. The truth of the information which they contain has not been
feiibed, and cannot be fehced, by the same guarantees as direct
evidience.

2. Each of them runs the rislc of being made the instrument of
81 characteristic fraud, that is, of a fraud j^eculiar to each species
of evidence of this nature.

3. This fraud consists in giving false testimony; with the cer-
t£iinty th{it those tests, which form the security of direct evidence,
cannot be applied to it.

4. The danger of fraud is not thie only one. This sort of evidence
is Exposed to a degree of inaccuracy and incompleteness, which
may produce, even without bad faith, the same cohsequeiiceis as
fraud.

5. Evidence of this kind always indicates the past or present ex-
istence of regular evidence, which may be, or might have beeri^
obtained in proper form.

6. It ought therefore to be excluded in all cases where it Is pos-
sible to get at higher evidence without some preponderating incon-
venience.

7* An acquaintance with all the sources of inferiority wHich
affect this evidence, diminishes, to a certain point, the danger of
admitting it.

In the last Chapter of this Book, we shall see what those securities
are, by which this danger may be reduced to its lowest terhi.

CHAPTER 11.

OF ANTE-JUOieiAL PRESUMPTIONS, BETWEEN PLAINTIFF AND DEFENDANT,

BETWEEN PROSECUTOR AND ACCUSED.

Before enj;ering into the e;(amination of a case, certain pre-
Bumptions present themselves, pro ei^ contra, against which a judge
neither can, nor ought to guard himself. As these presumptions

«

are vague and general, they have little force ; but they may serve
to guide us amid obscurity, till more decisive evidence has been
obtained, or to incline the balances, where contrsidictory evidence
produces doubt.

I. Between Plaintiff and Defendant, the presumption ought to be iii
favour of the former, to the prejudice cf the latter.

The probabiyty is in favour of the former, because he voluntarily

iubnaits his Hght to tht decisioii of justjce j but the defendant ap-

JUDICIAL isVtDEMCE. 19^

peai*s in spite of himself. The cases, in which it is thie Interest 6(
the plaintiff to litigate ih opposition to his own conviction, miist
always Be rare ; but, in every case, or nearly in every case, the de-
fendant, whether he be right or wrong, has a manifest interest In
litigating, because the various events of a law-suit offer him man^
chances of success, and, although he should lose hk cause, he
finds himself just where he would have been, had he given it u|)
without opjposition.

How many injuries to his property, how many injustices,' and
these, too, by no means slight ones, will not a man submit to^ before
running the risk of a suit ! How many sacrifices will he not make,
to escape embarrassment, vexation, loss ojf time, arid expense, for
which he never receives compensation ! Very strong motives of
confidence are therefore required to prevail over this hatuhtl re- \
pugnance ; and these motives form a natural presumption in fkvout
of him who applies to a judge. There is nothing, similar in the
case of the defendant.

Let us see how the fact stands in regard to this presumption!
Compare the issue of suits. Causes, in which the plaintiff is suc-
cessful, are much more numerous than those in which the defend-
ant is successful ; and yet, under our vai*ious systems of procedure,
the former stands in a much more disadvantageous position than
his adversary; he has opposed to him nullities, defects in form, and
other obstacles, which would not exist under a more perfect mode
oif procedure.

I am aware that many lawyers lean to the contrary presumption*
They are misled by an illusion. A defendant appears to their mind
as a man attacked in his right of possession ; and the presumption ' , \ r
ought to be in favour of the possessor, because the number of law-
ful possessors is infinitely greater than that oif unlawfiil possessors, r
fiut this is not the state of the question. The point is, whethei-, Jn^
cases of disputed possession, the instances, in which the party
calling the possession in question is in the right, do not greatly ex-
ceed those in which he is wrong ; and it is evident that they must •
for, under any regular system of justice, to attack the legality of a
possession, it is necessary to discover in it some weak point which
tal^es it put of the case of ordinary possessions.

The presumption against plaintiffs has generally b^en the more
prevdent in the world ; and the reason of it is plain. As procedure
has become more and more fruitfiil in abuses and vexations, suits
have become more and more objects of dread; but it is only a
plaintiff who can force a man into this thorny path in spite of him-
self. Thus the dr^ad of law-suits, founded on the vicious mode of

o3

196 A TBBATISB ON

procedure/has thrown a high degree of disfavour, and even a sort
of odium, on the character of plaintiff. Instead of attacking the
lawyers, who have covered with briars, every avenue of justice,
the world, always thoughtless, has taken vengeance on those who
choose to sue rather than suffer. If a citizen, who has sustained
one injuiy, wishes to vindicate his right, he runs the risk of sus-
taining another in the esteem of his fellow-citizens. Public opinion
is ready to take the part of the aggressor, who remains tranquil,
against the oppressed, who disturbs its enjoyments, and makes
a noise. '

This groundless and cruel prejudice has had but too much iniBiu-
ence even with legislators. * It has giveii birth to the most mis-
chievous of all possible taxes— taxes on judicial proceedings. The
intention is, to discourage a litigious disposition 5 the effect is, to
favour injustice. .

In avoiding one exaggeration, we must beware of adopting an-
other; all that I have said amounts only to this, that the vexatious
conduct is more frequently on the side of the defendant than the
plaintiff. This result is proved by the nature of tilings, and by
comparing the causes that are lost with those that are gained.

II. In criminal matters^ and, above all, in serious offences, the presump-
Hon ought to be in favour of innocence ; or, at least, it is neces-
sary to proceed as if this presumption were established.

How is this presumption to be reconciled with the preceding ?
Wherever there is an accusation, there is a wrong committed either
by the accuser or the accused 5 now, generally speaking, there is
no crime so rare but a false accusation of it is still rarer. *

A distinction must be taken. If the innocence of the accused is
not incompatible with the supposition of good faith in the accuser,
the presumption ought to be in favour of the "accused. Rashness^
error, and passion, ought to be presumed more easily than crimen
and especially than a serious crime. The presumption against the
accusation is still stronger in cases where the facts have some con-
nection with party spirit, or the prejudices of a sect, with religious
opinions, or false popular belief. How many pretended offences
are there of which an infinite number of persons have been accused,
while it was not possible that any one could be guilty ; witchcraftj
for example?

The presumption would be very strongly in favour of the accused,
were we to judge from what passes in the ordinary course of con-
versation ; for there false accusations are much more frequent than
true ones. But what a difference is there between these slanders

Jui>ICIAL SVIDBNCE. Id7

- ... .,.>>>t 9 t

which turn on peccadilloes^ and judicial accusations relating to
grave matters ? In the former, case, people rashly advance facts
and conjectures, because they are not responsible for anything, and
Kttle importance is attached to what, is so said; chance, vanity, in-
dolence, or levity, decides. But in a judicial deposition, if the se-
ductions of interest and passion do not operate, the most frivolous
niinded witnesses become scmpulous ; they feel tjiat their honour is
at stake, and that false testimony will expose them to serious con-
sequences. *

But allowing that, in ordinary cases, the presumption is against
the accused, it is no less true that it is proper to proceed as if the
presumption were established in his favour j and, consequently,-
that it ought to be a maxim with the judge, that it is better to let
a guilty man escape, than to condemn an innocent one ; or, in other
words, he ought to be much moi'e on his guard against the injustice
which condemns, than the injustice which acquits. Both are great
evils, but the greater is that which produces most alarm ; and,
every one knows, that, in this respect, there is no comparison, be-
tween the two cases. Generally speaking, a too easy acquittal ex-
cites regret and uneasiness only among men of reflection ; while the
condemnation of an accused, who turns out to have been innocent,
spreads general dismay; all security appears to be destroyed; no
defence can any longer be found, when even innocence is insuf-
ficient.

This is .perhaps one of those cases in which imagination takes
the place of reason : the alarm is greater than the danger ; that is,
the apparent danger is greater than the real. In fact, the danger
arising from the acquittal of a guilty person is perhaps greater than
that which arises from the condemnation of an innocent man ; but ^
it is .not so apparent, or so universally recognized. The almost
certain effect pf acquitting a thief is, to produce new thefts; but if
an innocent person accused of theft is condemned, it does not fol-
low that other innocent men will be condemned for the same cause.
Even with the most unfeeling judges, the condemnation of an in-
nocent man, in such circumstances, is an insulated misfortune,
which does not tend to i)roduce misfortunes of the same kind. ♦

But, on the other hand, it ought to be considered, that an unjust
punishment for theft is a much higher evil than what would result
from the repeated thefts of acquitted thieves. Thus the alarm ex-
cited by the punishment is greater than the alarm excited by the
offence ; and, consequently, the danger of beingjnnocently punished
will always appear greater than the danger of suffering from the ,
acquittal of the guilty.

Tliuii, fiheq^ although ^ judge ^opld b^ve an lotepQal pve^im^p-
tipn against the apcused^ he should not }iesitate to act on t|)e pre-
silinption of bis innocence, and, in dpubtfulcasep, to cop^i^ev the
error ^vhigh acquits ^ more jpstifiablq, or liess injurious tp the gpod
of society, than the error \^bicb copdemns. In listening ^p th^
ypice of humanity, he wilt only be foUo\ying that pf reason.

!^ut we must be on our ^uard against those sentipiental ex^gge^
ration^ which tend to give crime impunity, upder the pretext of
insuring the safety of innocence. Public applause has been, ^(>
to spe^k) set up to auct;ion. At first it was ^aid to l^ betfejr to
save several guijty n^ef), than to condemn a single ipnoc^nt ipap |
others, to make the maxim more striking, fixed on the number
ten ; a third made this ten a hundre(|, and a fourth made it a tho^-
^nd. Ail thesp can(|idates for the pri:fe pf hun)anity have bpei^
putstripped by I know not bqw many writers, who hold, t:hat, in no
case, ought an acci^sed person to bp condemned, unless the evidence
amount to matheipatical or absoliite certainty. According to this
niaxim, nobody ought to be punished, lest an innocent nian be
piinisbefj. >

CHAPTER IIL

OP CASUAL WRITTEN EVIDENCE— RULES TO BE FOLLOWED IN R^iGARD TQ
> ITS ADMISSION.

What is a piece of written evidence ? It is an assertion, be
it what it may^ expressed in the permanent and visible chai*acters
of language.

Written evidence, then, is merely oral evidence, presented in a
different form, and addressed to a different sense. Language is
nothing but the art

Of painting words and speaking to the eye.

*

It is ol^yious th{^t oral testimony has a great superiority over
Tyritten testimony. We have already seen how useful it is to con-
fronj witnesses, to make them grapple with each other, to press
them with unexpected questions, to seize the truth by means of
almost involuntary confessions, and to rouse in the witnesses, by the
solemnity which surrounds tbpm, all the tutelary motives to full
action. Now, all this is awanting in written testimony. Take a
witness, who cannot heaf a single question, who can give no expla-
nation bpyond his fif sf ^t^temept, whose countenance is veiled so
that you have no exterior sign by which to judge of his thoughts}

4nd tbe deposition of $ucb a witness^ dt^f^f^ blitidj and dMmb» wiU
have precisely the same value as written evidence.

Ti^is does not apply to that species of written evidence which we
have nameid pte'constituted. For reasons, which it is not necessavy
to repeat here, contracts arc written documents equally strong with
parol evidence : this results froip the formalities with whiqh they

are invested-

If the person, who is represented as the author of a piece of writ-
ten extra-judicial evidence, qt^n be examined, then the written evi*
dence comes under Uie head of oral evidence.

Casual writings (private leittevs, note^, journals, and memori^nda
of an individual) are liable to a characteristic fraud, which »iay be
described ^s follows :

Certain that he incurs no punishment^ not even that of shame,

<

since he has to undergo np examination, an individual fabricates a
writing of this kind, containing a statement false in every particu-
lar, and a^ well fitted as possible to serve his design of making it an
instrument of deceit.*^

A casual wrifing being in question, it must first be ascertained
who the person is who speaks in it. Is it an external witness, or
one of the parties ? If one of the parties, then at whose instance is
the writing called for I Is it at the instance of him who is the author
of it, or of his adversary ?

The propriety of admitting the evidence will depend on this re-
lation l^etween the writing and the person who calls for it. When
offered by the person who has made it, and to whose interests it is
serviceable, it becomes more suspicious ; if called for by the oppo-
site party, there are. not the same reasons for suspicion.

Jw-st Case. The writing in question is attributed to a person ex-
ti*aneous to the cause.

Bule L Do not admit it.

Why refuse it? Because, by its exclusion, you do not lose any
source of information. By the supposition, the author of the writ-
ing can be called and examined; and^ since his testimony can be
obtained, accompanied by all the usual securities, there \s no rea- •
son for admitting it in this inferior form.

Rule 1}. Always admit the evidence in the following two cases :
1. When the person to whom the writing is attributed cannot be

orally examined in consequence of death, sickness, or distance.

^

* Olffcction. V the writing in question >as been iabricated witb tbis design, it
ifl not a casual writing. Answer. The appellation given to tbis species of evi-
c|ence is taken from t^e usual natare of such writings^ lyi^ not from par^cvilar
frauds, which form •xoeptioos. \l

200 ^ A TRBATISB ON

2. He to whom the writing is attributed having been called and
examined^ one of the parties demands that the writing itself shall
be produced, in order to confirm or invalidate the'testimony j the
object being to shew, that, when the writing was made, the state-
ment which it contains was consistent or inconsistent with^the de-
position which has just been given.

Question. Why admii evidence so liable to inaccuracy and incom-
pleteness ?

Answer. Its exclusion may occasion the loss of information which
cannot be obtained in any other way. If this information be ne-
cessary to one of the parties, to exclude it is to produce a decision
contrary to right. On this side, the evil is certain ; while, on the
side of admission, it is scarcely probable. The evidence, therefore,
suspicious though it be, may be admitted for the same reason
which admits all circumstantial evidence, however weak.

The judge will have to examine, whether, at the time the docu-
ment was written, its author was not under the influence of some
pecuniary or other personal motive 3 whether he was not connected
by some tie of dependance or afFection' with the party in whose
favour the writing is produced. This, added to the amount of the
gain, will make fraud more or less probable.^

Second Case. The author of the document is a party in the case ;
it is his adversary who calls for its production.

Rule III. Admit the document, always on condition, that the
party, who acknowledges it to be his, shall have the liberty of ex-'
plaining it. , * .

Question. Why admit evidence liable to mislead by being inac-
curate and im;ompIete ?

Answer. As the adverse party demands the production of the do-
cument, it is clear that he believes it will be favourable to him ; it
is an admission, — it is aii article of evidence by confession ; and,
consequently, it is the strongest of all, 'for a man is always the last
person to lie against himself.

■ I ■ ■ 1 I ■ ^ ■ II . ■ ■■ I ■ I l \ I ■■■ I ■!,■■■■ I ■

•

* I shall take an example, not from a casaal writing, but from writings of
liigher credibility. A book-keeper carries several articles to the debit of one
of his master's customers, knowing that this customer has neither ordered nor
received them. The book-keeper has left the country, and cannot appear in
court. Was not his wish to put this gain into the pocket of his master 'the
reason of his flight? Observe the dilemma: If the demand is made shortly
after the, fabrication of the evidence, the book-keeper must have left the
country about the same time, and his non-appearance will operate as circum-
stantial evidence to render the fraud probable. If the demand is not made tiU
long afterwards, this delay operates as circumstantial evidence the same way.
Add to these two circumstances, which render the justice of the demand im-,
probable, the direct testimony of the defendant; and, if he requests it, it is not
only this book that o«ght to be produced, but likewise all the other books of
the merchant from which any information can be obtained.

JUDICIAL BVIDBNCB. 201'

But as e^ry writing of this nature is peculiarly liable to be, not
false, but inaccurate and incomplete, the author alone is capable of
correcting its imperfections. He must therefore have the power of
giving such explanations as he thinks necessary; to refuse him
this, is to place him in a situation extremely disadvantageous to his
rights.*

Rule lY. If, in consequence of death, distance, or mental aliena-
tion, the author of the document cannot be examined, stiil admit
the writing.

Question. Why?

Answer, The danger arising from exclusion seems to be greater
than that arising from admission. Supposing the information con-
tained in the document to be necessary to the party who calls for it,
by excluding it you do him a fatal injury. If you admit it, it is by
no means certain that the information which it contains is inaccu-
rate and incomplete, or, at least, it is not so probable that these
tleficiencies will be injurious to its author as to the adverse party.
Besides, what is defective in it may be supplied or corrected from
other evidence taken in the cause. '

Experience is entirely in favour of admission. Evidence of this
sort is received by the practice of Eugland, and received without
resei*ve, even without the corrective which I propose, and yet no
sensible inconvenience has been found to arise fix)m it.

Third Case. The author of the document is a party in the case,
and himself calls for it; the tendency of the document is therefore
favourable to him.

Rule. V. Even in this case admit the document, subjecting him
who produces it to examination and cross-examination.

Qaestim. Why admit evidence so manifestly liable to the suspi-
cion of falsehood, or, at least of partiality, and which may be made
an instrument of deceit ?

Answer, In the case of an external witness, interest is never a
sufficient reason of exclusion ; and yet he may have a concealed
interest equally strong with the most manifest. If a party i^ under
an influence which may incline him to lie, is not this interest obvious
and palpable ? Does it not force itself on the notice of even the
most credulous judges ? Cannot its degrees be calculated P A writ-
ing under his hand gives no greater chance of falsehood than an-
swers from his mouth; and yet the document may serve to confirm
or complete his deposition ; above all, if, at the time when he wrote

* The practice of £D^liaad does Bot allow him this liberty.

it, he po^ld not )i^ve foresee q Hfs, circifmstaqces ^hich noyf bi^g
\\\\a iqto coqrt^ and conag^l b}m to inak^ fise of it.

Sxde yi« If death, or any other, reaspp, prevents tb^ apfhor pf
the document; (thaf is, the tenc^^ncy of the doGument being favour-
able to bipiself) frqm appearing personally, still ^mit the writing.

The reasons for admitting it are the same with those above ; but
they do not apply so strongly, bec^i^se the §eal of cross-exaiqiqatlon,
apd fbe presence of the )yitne$;s is a^yapting. Qut the coqsidc^i'a-
tions which diminish, in such circumstances, the value of t|ns evi-
dence, are so palpable, that the dangei^ of overrating |t is re()t4ced
to its lowest terpi. '

Of all these rules, only one prescribes pxclusjon ; the vest are for
a^niission: s^pd it is easy to apply them to deini-pref:on^tituted
writings, and to eyjdence borrowed from another cause.

CHAPTER IV.

HEARSAY EVIDENCE OF THE FI|l{^T OEOB^K*

At some*former time, a person, supposed to have been a direct
witness, has recounted some fact in presence -of an individual not
invested with any judicial authority. At the time of examination,
another witness declares judicially what he avers himself to have
heard said by the first.

The distinction between these two persons is essential ; for, one
of the witnesses, he who deposes, is a real and certain personage ;
while the supposed direct witness may be a fictitious personage, or,
if his existence is established, what he is represented to have said,
may be partly or totally false. It is necessary, therefore, to make a
distinction between these two narrators, by applying to that one of
them who is not heard, the epithet supposed. He is supposed to
exists he is swpposed to have spoken; it is supposed that he may
have said what the other affirms ; but to omit the word supposed, is
to grant beforehand what is probably the very point in dispute.

The characteristic fraud, to which this species of evidence is
liable, i« this : " Certain that he cannot be eventually exposed
dtber to punishment or cross-examination, an individual may make
an extra-judicial statement of a pretended fact, knowing it to be
false in whole or in part."

Rules of Admission,

The rules are almost precisely the same with those for casual
writings. We shall repeat them here for the sake of greater dis-

*!W5fqess } b}jf| p^ the jrfiasRn? pf Ibep, i^e shall ygfev to the corvesr
ponding numbers in the preceding cbaptei:.

When standing by itself, this evidence, if false, is not at all dan-
gerous ; it would have nothing to sppport it, and woiild probably
be faUified by ascertained circumstances. In connection \^'ith
Qjher ,proofe, it ip^y he necessary fyr. explaining ^pd coropletipg a
series of facts, ai^d fpfmipg ^ body of circumstantial evidence. Ifi
t|ie {i^se of a co|ivei;^^tion bptj^eep t\vo pprtips, by suppressing the
discourse of qne of t^PfP? X^u woul4 render the ojber unin-
telligible.

-?ufe I. If tl^e prigin^l nqrr^tor |s not a party in the cause, and
can lie produced and e^nxjn^^, the hearsay evicjenee ought not to.
be admitted. See Rule I. of the preceding Chapter.

Mule IL The hearsay w|U be adipitted in the following cases :

1. Whpn the supposed djrecj; witness is dead.

2. When, from sickness or distance, he cannot be examined.

3. When the object is to invalidate his own evidence givep in the
case at issue.

4. When the p];>ject is to eonfivm \m evidenccj if it ^as been
Qttac^ed.

See Jiu2e^ JI. (md lY* of the preceding fJhapter. ,

llule III. When the original narrator is a party in ^f e^^use, if
yfhsiX lie ha? said e?ctra-jn(}|cially l?e offerecl ip evidence by his ^dyer-
s^ry, it shall be allo>yefl ; always reserving to the foippier the pqw^r
of ^xpl^iping and re&it^ng.

Reason, i^e ^ule III. of the preceding f!hapter.

Rule ly. \yhep the original narrator is a party in th^ pause, and
deniands that witnesses shall be examined on what they have heard
hipi say, let such evidence he received^ eyen though it phould b^
faypijrable to l{imself ; it being well undeRtood (ihat his opponent
shall have the power of examination and cro^s-examination-

Rule V. If tbp sana^ lyitness, deposing in his own cause, alleges
something relative to the ^ct in queistion, which he avers himself
to have uttered ^^tra-judicially» this evidence ought to he ad-
mit|;ed.

For the reasons. See Rule V. of the preceding Chapter.

It is manifest th^it, in the last two cases, the hearsay evidence will
be extrenaely snspiqjous evidence, because it is evidence given by
a party in h}s own favour, whether brought forward by himself or
through the medium of another. But if this deposition has no other,
sHPport, and 19 qot connected with other evidence, is it to be feared
that i); will ni|slea(]L the judges, and obtain too much confidence 2
4ad yet^ if pucU depositions coincide with otbei: circumstantial evi«

204 A TRBATISB ON^

dence^ they mky fill up gaps which would have rendered a. whole
narrative improbable and confused.

Comparison between the proving power of casual writings and hearsay

What is the comparative amount of proving power between a fact
attested by a casual writing, and a fact attested on hearsay? Which
of th^se species of evidence ought to inspire most confidence?

1. In favour of the writing we obsei-ve, 1 . That it presents only
a single author ; there is only one individual to whom attach the
various reasons of suspicion, whether they be founded on interest or
intellectual capacity. The writing, it is true, must be proved ; but
there may be witnesses above suspicion to establish its authen-
ticity.

In hearsay, you have always two .witnesses ; the one who speaks
before the judge, and the supposed extra-judicial original witness.
Two witnesses — and with all the various reasons of suspicion at-
tached to each of them. /

2. In the writing, the tenor of the language is fixed and permanent.
The assertion contained in it cannot be changed (unless the writing,
itself be changed), and its contents will almost always present cir-
cumstantial evidence, which will aid the judge in forming an opi-
nion of its value.

In hearsay, if the deposing witness is inclined to lie, falsehood is
much more easy. That certain words were uttered by a particular
person in a certain sense, is a fact of a passing and evanescent na-
ture, and leaves no physical trace by which it might be confirmed;
but even in the case of the greatest veracity, the deposing witness
may be inSiccurate from defect of memory, particularly if the recital
be of any length. To this almost inevitable source of error is to be
added the danger of the witness mistaking the meaning of the
words, or omitting some essential circumstance.
. II. Still there are cases in which hearsay evidence will be supe-
rior to that of a casual writing. Why ? Because, in following out
the chain df indications connected with hearsay, you may be put
on the way of tracing many circumstances and accessories, which
a mere writing could never have furnished.

Jam dying; Titius wo^mded me. Suppose that a letter, contain-
ing these words, is discovered in the closet of a person who is found
dead, and that it is in his own hand ; this instantly produces a strong
presumption against Titius. But suppose^ farther, thiit he and the
deceased are known to have been violent enemies, that they were
seen together at a time which strengthens the suspick>n, and that
Titius was even seen to rais^ the weapon^ and strike a blow. Few

JUDICIAL EVIBENCJS.

judges would hesitate to condemn Titius on such evidence^ particu-
larly if there were no opposing testimony ; and I do not say they
would be wrong. But stilly this evidence is far from excluding
the possibility of innocence. Let us suppose (what is very possible)
that these words, written by the deceased, were only the beginning
of a letter which weakness prevented hina from finishing, and that
he would have continued thus: Jttius wounded me, but slightly ,
and without ifitending it. It wds Sempronius who gave me the fatal
bhw.

I go farther, and say, that cases may be imagined, in Vvhich the
same assertion, transmitted verbally, will be stronger and more
satisfactory than the original writing itself. The deceased has ut-
tered the words, Titius wounded we; I am dying , in the presence of
well known and irreproachable witnesses, who agree in their depo-
sitions. So far, the belief produced is not greater than what, on the
foregoing supposition, would be produced by the writing. But the
w^itnesses are examined to ascertain, whether he said nothing more
concerning the^caus^ of his dea}rh. No, is their unanimous answer.
Had he time to do it? Assuredly, for he spoke of his family, his
friends, his will, &c. Who does not see, that this mass of testimony
excludes Titius from that possibility of innocence which existed in
the case of the supposed letter ?

But, while the superiority of casual written evidence over hearsay
is admitted, there is no general or absolute rule to direct the opinion
of judges. Each particulai* case will present diiferent probabilities.

>
CHAPTER V.

HEARSAY TRANSMITTED THROUGH SEVERAL INTERMEDIATE PERSONS.

Thb statement of the supposed direct witnei^s may pass through
an infinite number of mOuths. A hearsay, which passes through
only one medium, is hearsay of the first degree ; that which passes
through two media is hearsay of the second degree, and so on.

In the famous case of Calas, there were no fewer than five inter-
mediate witnesses between the supposed direct witness, and the
deposing witness ; and he, who was declared to have heard the
father threaten his son, was not even named ; he was some unknown
person, and nobody could ever recollect him.

In circumstances which strongly excite the passions^ a town is

' filled with clamours 5 the^ stories, at first inconsistent, gradually

acquire some uniformity; the histoiy is arranged 3 the belief of one

906 A 'i'kisATtsfi on

fortfas tlie belief of another; it is an epidemic of testimony; doubt
disappears ; aiid tlie union of the echoes acquires the force bf Evi-
dence. Tills is what happened at Thoulouse } but it was soon seen
what is the value of a public rumour. When, in tliie midst of this
ffermentation, the judges wished to proceed with a judicial irivesti-
gation, th(B town, which resounded in every corner witli cries cif
the most lively indignation against the Calas, could not find within
its walU a single man who would appear against them.* Not a stii-
gle witness presented himself, so soon as he could do so oiily by
coming forward irt court irt his own name, and exposing himself to
the punishment of peijury. There was nobody whb would Support
by his testimony what every body confidently said and repeated ;
and a universal report, which promised conclusive evidence, did
not furnish ai single trace. I stop here ; it does not belong to my
subject to explain, how the great instiniments of fanaticism and
pastoral monitories were eiriployed to rear this itiisei-able scaffold-
ing of hearsay, on which the condemnation was founded.

Montaignei after explaining the progress by which bpmion is
brought to believe the most iihprobable things, concludes with ah
observation of undeniable triith. " When the first,*' says he, "come
to dissemihate their story, they discover, by the opposition it en-
counters, where lies the difficulty of making it be believed, and
they set to work to fill up the gap with some piece of falsehood.
At firstj individual error occasions the error of the public ; and the
public error, in its turn, produces individual error. Thus the edi-
fice passes from hand to hand, always increasing in form and fur-
nishing ; 80 that the witness farthest removed knows more about it
than the nearest, and the last informed is better pereuaded of it than
the first.'' f

In regard to this species of evidence^ th^ five following proi)o-
sitions may be laid down :

i . At every new step from one medium to another, the extra-
judicial narrative acquires a higher degree of remoteness; that is,
it is further removed, by one degree, from that desirable proximity
between the judge and the fact which exists in ordinary evidence.

2. At every degree, the narrative loses a portion of its proving
power. This arises, not only from the general chance of inaccuracy,
which depends on the personal character of each intermediate wit-
ness, but likewise from the chances of falsehood connected with trie
character of this or that individual. It would be necessary to uu-

* See the Memorial of Loiseaii de Mauleon.
t Montaigne^ Book III. c, %

dertake a special itivesti^atibn^ so to speak^ into ilie morality of
each of them.

3. However, when several exi;ra-judicial wituesses, of the same
degree, are represented as confirming the tenor of tlie statemeiii;
which is supposed to have been made by another, each of Ihem, if
the deposing witness be believed, adds a degree of proving power
to the testimony.

4. But the whole amount of proving power, which can possibly
be attained by any number of such witnesses, can never raise
heamy to the level of direct evidence, or well established circum-
stantial evidence.

Watson deposes, that on a certain occasion, a number of persons,
whbrii he hahies Charles Waithman, Francis Louvier, and Thomas
Little, agreed in assuring him, that they were all three present;
when Joseph Prettyman gave an account of a duel which had takeii
place between the prisoner at the bar and John Delacour, and in
which the latter was killed oil the spot. If Watson's deposition is
received, the fact of the accused having killed Delacour in a duel
will gain a degree of probability from every additional witness to
the statement of Prettyman. But, though there should be ten,
twenty, a hundred, or more, of these siipposed witnesses, of these
extra-judicial narrators, they would not give the deposition of Wat-
son a proving power equal to what it would have had, if, instead of
citing a hundred intermediate witnesses, all of the same degree,
he had declared that he himself heard the statement from the mouth
of Prettyman.

I. AdmissMlUy of hearsay pamng through an indefinite number of inter*

mediate persons.

The only rule I lay down here is, that testimony transmitted in
this way, whatever may be the number of media through which it
comes, ought to be received, with the same reservations as heai'say
of the first degree, but with greater caution and distrust. '

I daiiot conceal, that this admission will appear extremely alarm-
ing, particularly to the advocates for the system of exclusion.
What ! allow the mind of the judge to be deluged with depositions,
every one of them more liable to objection than another.

Let Us examine the matter calmly. It will be found that the rule
rests on direct argument, on the experience of the tribunals, and oil
necessity.

Does the increased number of fnedia increase the facility of exe-
cuting a plan of fraud concerted with a view to this advantage }
No ; for it is not the interest of fraud to multiply the intermediate

n

206 A TBBATISB ON

persons. The more there is of them^ the more is the impostor
liable to be unmasked by the variations of his witnesses. He who
wishes to deceive, will easily see, that it is his interest to present his
pretended statement in the most plausible and simple form, in that
wliich inspires most confidence ; and that, on the other hand, it is
not his interest to multiply unnecessarily the causes of distrust and
suspicion. For example, he jvould rather say, ^* I have the fact
from Tilius, who said that he had seen it, but who is dead,'' than
^' I have the fact from Titiu's, who is dead, and who said that he had
it from Sempronius, who assured him that he had seen it, hut who
is likewise dead, and cannot be called in evidence.''

Let us take, as an example, a case which occurred in the law of
England. The validity of a testament, which bore the names and
attestations of three witnesses, was disputed. Two of the witnesses
were dead : the third, a woman, deposed that she had attended one
of the two othei*s in his last sickness, and that, three weeks before
liis death, he drew the testament from his bosom, and told her, that
that he had forged it himself. This evidence was received, and be-
lieved ; and the testament was declared to be forged.

Let us come to the point at issue. Let us suppose that this evi*
dence, instead of being admitted and received, had been rejected
or disbelieved ; then, by the supposition, the testament would have
been genuine and legal, and the story of the witness, who pretended
to have forged it, would have passed for a fable. Now, suppose
that the woman, instead of declaring that she had heard the wit-
iiess himself declare that he had forged the will, had said, that she
heard it from John Middleman, who was dead, but who had it from
the supposed forger, would the fraud, when put into this form, have
been more plausible ? On the contrary, is it not utterly improbable,
that it could have succeeded"?

The danger of fraud, then, is rather diminished thafn increased by
by the number of intermediate persons. There remains the danger
cf inaccuracy — a danger which increases directly as the number of
degrees ; but this danger is so evident, that such a testimony is
more likely to be valued below than above its triie value.

The truth of these conclusions is fully confirmed by general prac-
tice. Inevery system of judicature there is a very extensive class
of cases, in which derived testimony (whether consisting in casual
writing or in hearsay) is received without scruple, whatever be the
number of intermediate persons. This class embraces all those
questions, in which the principal fact to be proved belongs to what
are called ancknt facts ^ genealogies; for example, the birth-place of
a person, local rights and servitudes, customs, &c. ; facts which.

JXTDXCIAL KVtDBUCK. 200

supposing ihem to have once existed, happened at a period too re-
mote to leave any possibility of obtaining contemporaneoas evi-
dence. But there is nothing in the mere antiqiniy of a &ct to ren-
der it credible on any w^ker evidence, than would justify the same
degree of belief with respect to a fact of more recent date. That a
man of a certain name married a certain woman, in a certain place;,
and had children by her, are facts which are not a whit more cre-
dible for being placed at the end of the seventeenth century, than
they would be, if placed in the eighteenth.

' But, except in cases where proof can be derived from the pre-
constituted evidence of public registers, there is no mode of esta<-
blishing ancient facts, except this inferior evidence, this concatena-
tion of hearsay, these local traditions ; and yet such evidence is
daily admitted in the courts.

And let it not be said, that, if such evidence be admissible at all,
it ought only to be in cases of small importance. When the facts
to be proved are ancient facts, they almost always regard some im-
portant interest, such as titles to the possession of lands, hereditary
powers or dignities, &c. This kind of evidence is, as has been said,
a pis {jJler^ but it is a necessary one. , * '

II. Tke appUeaiwn of Maikemaiia to TesHnumy.

The subject of which we are treating might open a promising
career to mathematicians ; but, were their formulas applied to real
cases, the result would often be the inverse of common sense.

Suppose that a mathematician, setting out from, the observations
which we have been elucidating, were to go to work in his own
way, and should imagine, that, because demonstration is the fruit of
science, he would be able to arrive at certain conclusions respecting
the credibility of testimony. In a series of hearsays, the proving
power is inversely as the number of degrees in the progression.
This proposition, when announced in an algebraical formula^ instead
of words, might pretend to pass for an irrefragable truth. Aye, but
how? By supposing that in every case where a hearsay of a lower
degree is compared with a hearsay of a higher degree, the credibi-
lity of the different witnesses is always the same. Now, this sup-
position, which is tacitly and gratuitously admitted into the formula^
is utterly false.

Take, for example, a suit about some pecuniary matter of small
value. Both sides have only hearsay evidence. The plaintiff's
hearsay is of the second degree ; but both witnesses, the deposing as
well as the intermediate, are persons well known, and opulent, and at
the highest degree on the moral scale. The defendant^ hearsay is of

p

SIB .A tUSATMB W .

the first degree ; Uut the dcJ|)diHiig witness it a poormati^ «(nd, loorer
Over^ a notorious liar. The rule of the mathematioiaa would de^
xtide in favour of the defeudaut ; but any otiber person than a mdr
thematician would not hesitate to decide in &vour of the plaiatiff.
;. Following out these considerations, what is to be thought of tho$e
laws of procedure, which, without weighing the value of the testif
monies, pretended to prevent erroneous judgments by requiring a
fipecige number of witnesses ? The number tnay he complete^ and
more than complete ; and yet, in any given case, the testimony will
be, not stronger, but' weaker, than if there had been only one wit-
ness It is asked, where is the probity and good sense of judged,
when they decide on evidence so manifestly faulty ? But froQi every
chapter of this work it may be demonstrated by numerous facts,
that common sense has been suffocated^ as it were, by Ihe vapours
of the science of jurisprudence.* . .

CHAPTEJl VI.

WRITTEN EVIDENCE OF A SUPPOSED ORAL TESTIMONY.

If the writing in question has been drawn up by a public ojfficer,
who, in virtue of his office, has taken the deposition of a witness
legally examined^ it belongs to theclas^ of pre-constituted evidence.

If the writing is not the work of a public officer, it .belpngs to
that inferior class of evidence, which has been, explained under the
name of c(wial written evidence,

(jeuerally speaking, the judicial testimony of any givea indivi*
dual will be niore trust- worthy, than if he had written it down in a
letter or memorandum ; yet, cases may be quoted in which the
contrary would be the truth.

iV considerably complicated event takes place )t>efore an eye-wit^
ness J on the same day .on which It happens, he pyrites an acgount
of it to a friend, relating the event fully ^nd in detail. Is it not ele%rt
that this letter of the eye-witness woulcj be extra-judicial evidence,
greatly superior to any judicial testimony which be might give teu
years after the event ?

<i> "^

ii * " ^Jf° V*® degree of confidence due to the sexes reeipectiisely has h^en
fixed. The testifnony of two women or ^irls, shall heeqtin^ and neither more iwwr
Usgiiftan equals to that of aman; and the testimony of four women or^girfs Shall
)ip equal to that of two men. It is Uie s^tiite hopk of ith^ Pays de Yaad wMch
cbntains this absurd distinction, more humiliating for the legisla^r than for
thdsex ^hich was the object cif it,"— l^^wrf tttr la hi dc ia procedure ctvUede

9%

But^ if the interval which has elapsed be an essential considera-
tion, the relative importance of the event in the eyes of the witness
is no less so. The greater this 'import^ce, the higher rises the
value of .0];aL tes.ti^iopy i^ comparison with a cas\ial writing.^ It is
the connection between the event and the personal in|;erest of the
witnesSy that gives the greatest security for the duration and accu-
racy of his iiupressioDs.

In fixing the value of the importance which the event had in the
eyes <ii the witness, it is necessary to be sure that it was sensible to
him ; thftt is, that he w«s able to e^^imate it, and eapablie oi judging
i>{ it as any other person in bis place would have done. It is eveii
necessary:to make reference, so as far as is possible, to the circumi-r
stances in which he was placed at the moment when the &ct faap-^
pened, and to examine what interest he took in it, or what atten-
tion he paid to it. For, however important the fact may be, yet|
If his mind was pre-occupied by something of still greater import-*
ance ta himself, or if he was so pressed for time, that he coiild give
it only a hasty consideration, his impressions will be proportionally
weaker, imd his recollection floating and uncertain, although, in
different circumstances, the same event would have made a lastidg
and distinct impression upon him. , /

A stronger and more trust- worthy species of evidence is that
which is formed by the cdmbination of this testimony, with a casual
document, written in the form of a letter or memorandum by thi
same person at, or nearly at the time when the event happened^
and called for in the suit, not by its author, but by his adversary^
Such a case combines all possible securities. The document is a
guarantee against the ihfidelity of memory, and a certificate of flr^

truth of the parol evidence.t

Such a piece of evidence is a lucky chance ; it depends on acclt
dental disposition, as well as on the literaiy powers of the witness.

i^A*

* A formula might be framed alterk paribus. The chance that casual Written
evidence wiU be more crediWe tl^an «he oral testimony of &e same persoa M
^Motty, a3 the internal Wjiiob has elap3e4'betjireeo the event and exa^iw^n^
and, fhversely, as the relative importance of the fact ip the eyes df th6
witness. ^ '

' + The following dbservation, though more properly belongmg to liUtorfcalcri-
iiQisni,i|jppt.£preiKa to a treatise on judicial eviienee. " The |reat oljject rf
modem researches is to discover contemporary letters. Amid the obscuriUe^.
tbe silence, or tibe eontradidions of historyi, the di*»very of a letter is, asll
were, a fixed point by which the imperfections and doubts of other accounts
mayT)e corrected, adjusted, and suppKed. One of the reasons of the higher
deirree of credit thw given to letters is. thai the f^cts which they contain are
intrpdqced incidentkl^, and, consequently, without any design of decern^
the public." PAI.EY, ^ffor^ PauliruB.-Wt no doubt tijive a natural inoIinatioS
to' trust to letters, as confidential commumcatiotis which were npt lAtended for

p2 '

£13 A V|^T|8B4»r

CHAPTER VII.

■ SUPPOSED WRITTEN ' TESTIMONY TRANSMITTSD ORALLT.

A WITNB8S alleges as evidence a writingy which he affirms him-
self to have seen, and the contents of which he pretends to relate*
accurately.

Where there is no reason to distrust the witness, this evidence
appears^ at first sight, to have exactly the same proving power with
heanay evidence. The one witness has read, the other has heard ;
the only difference lies in the source of their information ; the me*
dkm, which is the principal cause of error, is the same.

A closer examination discovers differences between these two
species of evidence, which are not to be overlooked ; but before no*
ticing tbetUr^itis necessary to describe the characteristic fraud tQ
wbidh^estimony, founded on an alleged document, is liable.

'^ For his own advantage, or for that of another, who may or may
not be privy to the fi*aud, A. fabricates or falsifies a document^
places it so that it is Been by B. and then puts it out of the way, to
the end that B., having thus learned the contents of the document,
may establish them by his evidence on injudicial examination.

This species of evidence, even supposii^ the alleged document to
have existed, is accompanied with two dangers; the danger of
felsehood, and the danger of inaccuracy. They exist, likewise^ in
heai-say, but in a different degree.

' The first consideration ought to be, to what class does the al-
leged document belong ? Is it a private or a public document ?
Is it bfficial, or is it a contract ? Is it of the nature of casual or of
probative writings ?

If the alleged document is only a casual writing, a letter, for ex-
ample, there are no more eflicacious means of controlling the vera-
city of the witness, than in the case of hearsay. The one may pre-
tend that he read, just as the other may pretend that he heard ; the
difference between them is scarcely discernible; the proving power
is on the same footing.

But if the document belongs to a class of regular writings, which
have a fixe^ form, for example, an account-book, we have more
hold on the witness; the sphere of invention is proportionally

OS, and which we have detected ; but aH depeads on the character of the
writer^ and (he nature of the letters. How often has this expedient beeti
abased! How many falsehoods occur in pretended, or even in real • cor-
respondences t •

JI7)>ICIAI. XVIDBUCB. 218

limited. His quotations, to bebelieved,. must be.cQnfpriKiable to
documents of this nature; tliey must be consistent with true facts
wl^ch cannot fail . to be known. Falsehood would expose him to
the danger of being contradicted by circumstantial evidence.

If the. alleged, document belongs to the class of pre-constltuted
evidence, a contract,, for example, or a conveyance of property, the
sphere of invention is still more limited. To have any chance of
succeeding in his imposture, the witness must know, not only the
circumstances of the contracting parties, but likewise the rules
which Ia>y has prescribed in such matters.

If the alleg;ed document belongs to the class of official writings,
there are many circumstances which may baffle the impostor. He
can form and execute a plan of fraud, only in so far as he is ac-
quainted with the course of business in the office in question ;
bcQce the danger is limited to a small number of persons, and these,
too, elevated by their rank and education, above the prdinaiy ave-
rage of credibility.

In regard to the danger of inaccuracy, the allegation of a dOcu-
inent is superior, in proving power, to hearsay.
' In he(ii*say, the original is born and dies at the same moment.
The impression which a fugitive discourse leaves upon the mind
cannot be strengthened, if it is weak, nor corrected, if it be inaccu-
i:ate. . '

la a document, the eye which runs over it may be equally fdulty
as the ear which seizes a sound ; but we can return again and
figain to the writing, we can pay as much attention to it as we
choose, and assure ourselves that we have a complete idea of it.

The proper degree of care is still more probable in the case of
important writings, contracts, for example, in which the points to
b^ exi^miqed are few, and the essential clauses at once catch the
notice of those who are in the habit of studying deeds of this
nature.

CHAPTER VIU.

OF COPIES OR TRANSCAIPTS.

I. Different modificalioM*

fiy a copy, is understood a writing produced as evidence, and
pretending to be made exactly according to another writing, which,
in relation to the former, is called- the original.
This general description comprehends three modifications :

214 * A TftiAtisfi 01^

• ^ . . . , . . .

1 . A tf anseript of ttie same tenor. ' '

2. A translation.

S. An extract^ given as containing, not the whOl6 oHgiriat, feut
all of it that regards tlie matter In question.

In transcripts of the same tenor^ there is an essential distinction
jbetween those which have heeh, and those which have not, or are
not known to have been compared.

Comparing is to a copy what authentication is to an original.

If* the copy has been verified and duly compared, it does not hie-
long to the subject of which we are treating; it is evidence alter et
idem; it cannot be said to be absolutely equal to an original^ bu|;
neither can it be ranked with inferior evidence.

; II. Reawnifitr dutnuting copies,

A copy cannot have the same force as an originalj because it i3
liable to various causes of deception.

1. The pretended copy ma^ never have had an original, or may
differ 6*om it more or less, whether accidentally or fraudulently.

2. If there is an original, the original itself may have been forged,
fraudulently vitiated, or merely inaccurate. Now, in a deed pro*
duced as an original, marks of falsification and inaccuracy may be
traced, which would not be equally manifest in a copy.^

3. If the same effect were given to a copy as to the origina(| it
ivould lead to a characteristic fraud, which may be thus described :

^^ Aa individual Gorges an original, or falsifies a real one, in order
that, by means of a copy of it, he may produce the same effect
which would follow from a forged deed, while, by destroying the
forged or falsified original, he might make his fraud pass undis*-
covered."

This is a consequence of what we have already said^ that th^
marks of forgery are not equally observable in a copy as in $ui orir
ginal.

When the writing, to look like an original, muBt bear the signa-
tures of witnesses, if copies (not verified) were received on the same
footing with originals, a^iretended^copy Would answer the purposes
of fraud better than a pretended original ; for the danger of being
discovered by false signatures would be avoided.

, . III. Modes of transcribing,

^ Th^re are various ways of transcribing^ but they clo not aU afford
the same probability of acpuraoy.

In thie. recently invented method of writing fvHh two peiv at
once, there is no distinction between the original and the copy. It

is the sam^ wttb tliose inachlQes wbidi ifatowoiFMvemliiiipltes-
feiot)s of li newly written sheet. ,' ,. ' *t

' The probability of ^cctiraoy will depend oii the fbllowiBg circtapsH
stances :

1. The number of persons employed to make and verify the copy.

2. The degree of attention required on tfaetr part.

3. The degree of publicity with which errors will be noticed.

In all tll^ese points, printidg is much superior to writing. A single
compositor supplies the place of thousands of copyistsj and it is
much more easy to verify a printed than a manuscript copy. '

The printed copies of Haws, and othc^r public documients; otii^ht to
stand' in law on the sam^ fgoting with the original, because A*^
printed copy is thfe only one to ^hich the people cAit hate acce^ii
to regulate their conduct.

In every casfe where' forgery by writing is punishable; forg^iy'by
printing, for the same ^nrposie, ought to be eqtially so.
' 1. Forgery of laws by fabrication or falsification.

2. Forgery of acts of government, such as proclamations^ or or-
dinances directed to public fimctionaries.

3. Forgery of news or advertisements in an official paper. ' ' '

4. Similar forgeries in a journal not official, when* its title is
counterfeited by some one who is not its usual editor. ' *

In the case of fraud, if any of the possible methods of trianscribibg
were beyond the reach of the law, fraud in this shape w6tild ' big
unrestrained ; and, as it is equially pernicious ih all shapes, thbf6 i^
no imaginable reason for leaving it unpunished.

IV. Copies of Copies.

1 1

When the writing presented is a direct copy, there is ohly dhe ,
degree between the original and the jiidge j if* it'is ^ copjt of a di-
rect copy, there are two degrees^ and so on. * .

The greater the number which expresses these degrees, \h€
lower Will the degree itself stand iii the scale of proving power. '

Strictly speaking, no copy deserves the same ftith as the oHgihaty
because every copy is exposed to intentional fraud and accidental
error. The danger, however smdll it may be, is never absolutely
nothing ; but, every new degree exposes the copy anew t6 thes«j
causes of Inaccuracy. I •

There is still an impbrtant obi^fervation to be made. If rf copy of
antnterior degree is compared with a copy of a higher degriee, it
may rise, in the scale of crtdibility, to the degree immediately belo\V
the copy with which it has been compared; ' - ,, - . ^

Suppose a copy in the tenth degree. Bf Mpg ^W^Vtid vtMi
the original^ it may rise to the level of a copy in the first d^^ree }
or, by being compared with a copy in the first degree^ it may rise
to the level of a copy of the second degree.

CHAPTER IX.

COUPAtitBOV OF EVIDENCE BY COPY WITtt EVIDENCE BY HEARSAY.

^ A GOMPAJiisoN of these two species of evidence easily shews that
the former is superior to the latter. Its superiority consists in this,
that the danger of inaccuracy is not so great; I mean accidental
inaccuracy without fraud or design.

1. In hearsay evidence, the supposed immediate witness, and
the deposing witness are not the same person.

Id a copy, (supposing an original to have existed), the person, who
is said to speak, is still the same.

On the 1st of January 1810, being judicially examined,^ I state
what I had myself seen that very day. This is ordinary, direct
evidence; here there is only one intellect concerned in relating
the fact.

On the 1st of January 1812, beiug judicially examined, I state
that on that day I h^rd Titius himself say, that he had just
seen such and such a fact. This is hearsay evidence ; here two in-
tellects are concerned in the statement in question.

On the 1st of January 1812, A. makes a copy of a letter, held to
be an original, which he had written that very day, and dispatched
in his name. Here, too, there is only one intellect concerned in the
stateinent. : .

If, in place of copying the letter himself, he had employed an-
. ojther to do it, the difference would be little or nothing. With an
accurate clerk, the danger of inaccuracy is diminished by the
writing which he copies being in another hand ; an inaccurate
clerk will make fewest blunders when he copies his own hand-
writing. : ,

. 2. The proving power of oral testimony is inversely as the in-
terval between tlie dajte of the perception and the date of the depo-
sition. The circumstances of a fact grows more indistinct and con-
fi^sed, as the fact itself becomes more remote. ^ . ;
^ The proving power of a copy is not at all diminished by the ^s-
tance between the time when the original was written apd the time
when it was transcribed. ^ -

:lt Mlaw§i from Tviiat. has been said, diat bearwy evidence is
liable to many causes of inaccuraey which do not affect a; cop7«
The deposing witness may merely have caught^ in passing, the
words which strucic his ear ; he may have mistaken their meaning;
he may have partly forgotten them, or he may have added to them
erroneously. The copyist has always his original before his eyes $
he can return to it to assure himself that he is accurate; and the
words are no sooner written than their .preservation is fixed on a
much surer basis, than the strongest memory would be.

The only source of inaccuracy in the copyist is, want of attention.
This may produce errors of omission, of substitution, of insertion.
Which is the most probable ?

Omission presents itself at first right as the most natural. If a
word of the original escapes the eye, a corresponding omission will
be produced in the copy ; and even a whole line may be omitted, if
it does not tender the sense unintelligible. The signs of puiictua*
tion, commas and points, are easily omitted.

The substitution of one word for another by the diange of a
single letter is almost equally probable with an omission ; above all,
when the combination of letters in the one has some affinity with,
and bears some resemblance to, those of the other ; nwHon^ for ex-
ample, instead of notion. This fault may easily arise from mistake
or misconception, particularly if the copyist is only superficially
aequamted with the subject, and the phrase, in spite of his altera-
tion, continues to be intelligible. If it leaves tlie pbra^ without
sense, or gives it an absurd meaning, then, unless the copyist be
totally void of judgment, it is only to inattention that such an inac-
curacy can be ascribed.

The addition of a word is an error which sometimes occurs, but
much less frequently than the two others. It does not arise from
mere error of judg-ment or want of attention ; it springs from the
imagination of the copyist mixing itself up in his work, in con-
sequence of the want of an attentive and constant reference to the
original before his eyes.

These distinctions are not wholly useless ; they put us in the
way of distinguishing those variations between a copy and the
original, which should be considered as indications of fraud, from
those which are to be ascribed to innocent inaccuracy.

Tliere are two cases, in judicial proceedings, in which the error
is of no consequence : 1. When it occurs in words of no practical
importance. . 2. When the correction is easy, and sufiiciently indi^
cated by the context.

S18 •'^ A imbtAiMB <w

' The ttiwfe freijtieti try the iame Herles ttf ^rls iij tepeated,' tfce Ikss
Kkely is it thai the same error, frequently repeated In thefee words;
b tintntentidnM ; and if there be one passage in whijdk <be error
does ilot ocfcur, anil ttie true sense is j[)re3et'ved, it leads to tht
restoration of all the rest.

4 '•

CHAPTER X,

/ *■ ■■ . • • . ■ I. . ' ,

IN WHAT CASES, AND ON W{IAT COND^IONS, OUGHT A COf>.Y TO 8K '/

ADMITTED }

OtJGHT a writing offered in evidence asa eopy^ to be received
or not?

To answer this question^ ii is necessary to distlngulsb betweeii
the differetit cases.

1. It is known that the alleged original exists, and can be ppo^
duced and consulted.

2. The alleged original is in a foreign country*
. 3. It is in another province of the same state.

4. It is known that it once existed, but does not now exist.

5ir tt isr known that it once existed, but whether it now exists is
doubtful.

6. It is not known whether the alleged copy be a copy or not^
that is, whether there ever was an original from which the proffered
document was taken .

Tlie conduct to be followed by the judge is susceptible of. three
modifications:

1. He may admit the writing absolutely^ atid witfiout any con-
ditions.

2. He may reftise to admit it, in the satnfe way.

3; He may receive it conditionally according to dreurostahces^
6vibniodo.

Rules for the first case.

Rule 1. Whfen the original can be produced or gotten at, no copy
ought to be admitted without a special reason.

Rule II. When the original cannot be read and handled without a
considerable degree of difficulty, a copy of the same tenor, a trans-
lation or an extract, according to the case, may be produced in ad-;
clition to the original^ and at the same time.

Exafnples. 1. The characters or language of the original are so
ancient^ that it is scarcely either legible or intelligible. '

i The p^lginsl Is In a language, whethcp a afesid bir ii Wit^ ohei
different from the cutrent language of the country. In this ca$ei
the copy will not be a transcript of the same tenor; it tvill be H
translation.

3. The original is of Considerable sizfe, but only a pah of ft i^
Required id the case at isfeue. The copy will be iri the nature of ail
fxtratct. '

The special reasons for admitting copies in place of the original
Will always bfe drawn from this — that the difficulty of prbduclng
and consulting the original, would occasion preponderating incon-
veniences in the way of delay, expense, and vexation. But in sucfl
a case, the correctness of the copy ought to. be satisftetorriy
established. *

Second Ckise* The original is in a foreign country*

. This case is only a modification, of the preceding ; but^ aa it re-
quires some peotiliar.arrangement9, it is proper to ti^e it by Itself*

The judge ought to have the option of adopting any of the fol «
fetring iimiKigem^ts :-—

1. To send the copy to the place where the original is, that they
may be contpared.

. 2« To call for a new copy, taken from and duly compatied with
Ihe original.

• S. To order the production of the original, if it be practicable. >
The adoption of these expedients will depend on the importance

of the t^use, the importance of this piece of evidcaiee, and the ftith
due to the copy. In every case, a period ought to be £xed, at ib»
ejipiry of which these operations shali be held to be impraclka-
ble, if, by that time, they have not been executed.
. In this case, a decision, founded on a copy, can be ov3j. provisional,
and remains subject to alteration within a limited time. .

' ,] Third Case, The original Is in another province of tiie same
state.

The only difference between this case and the preceding is, that,
in the former, the access to the original will always (lepend on the
government within whose jurisdiction the suit is carried on.

Fourth Case. It is known that the original once existed, but
that it does not now exist*

In. this case, the copy ought to be admitted, ^sulgect to all the
considerations which may invalidate it.

* Whyadinitit? • : . . ..^
Neither fraud nor inaccuracy is, in this case, lo be presumed. 6y

S20 A TRS4TISB ON.

the sttfypoBUioD/ forgery is out of the question j the origiHal fad
really had au existence ; the point is, to ascertain whether this re^
presentation of it be essentially correct.

No fraud can have existed prior to the loss of the original, unless
its loss has been foreseen and prepared for. Who would think of
vitiating the copy ? For such an offence would be utterly useless,
at least when it is known that no copy is admitted^ which has not
been compared with the original.

The copy is liable to be vitiated from the moment it is koowft
that the original has perished ; but it is no more so. than the origin
nal itself, and this mere possibility is no more a reason for rejecting
it^ than- for rejecting the original.

If the vitiator is the party who offers the copy as evidence, the
most natural supposition is, that he has destroyed the original to
cover his fraud ; but it is equally possible that it may have perished
without bis participation^ by fire, for example, and that the idea
of a frtiud may have been first suggested to him by this faeHity of
concealing it. '

If it is known that the copy has not been in his power since tlie
destraction of the original, every suspicion of fraud vanishes!

The merely accidental destruction ,of the original furnishes no
reason for refusing to admit the copy ; for, to suppose that it is even
inaccurate, may be equally injurious to both parties; their chances
of g^in and loss are equal, and their respective silruations are the
same as if there were neither gain nor loss on either side.

' It is easy to imagine hyi>othetical cases more or less nice; but the^
niber they are, the less reason is there for excluding this evidence.

The practice of England admits even parol evidence of a writ^ .
ing which has perished ; and not without reason. Yet this evidence^
as will be shewn immediately, is inferior to that which is furnished
by a copy. • '

s

Fifth Case. It is knomi that the original existed, but it is
doubtful whether it now exists.

In this case, the judge ought to fix a time within which the ori-
ginal shall be sought for, and, on the expiiy of whidi, it shall be
held that it canot be found. But the decision must be only provi-
sional, and open to alteratipn within a limited period.

Sixth Case. The copy is offered as being a copy, but the
existence of the supposed original is not established.

In this case, the pretended copy ought to be admitted 5 subject,
lioweyer, to that double ^iniinution of credibility which results from

«

ih^ dpubl whether an oiiginal ever existed^ and the doubt whether
the copy^ supposing it to be one^ is faithful.

'- In several modifications of this case, such a piece of evidence -will
have very little weight by itself; but it may at least operate as cir-
cumstantial evidence of the existence of a corresponding original,
and it is the nature of circumstantial evidence to be susceptible of
all possible degrees of proving power.

If the pretended original belongs to the class of casual writings,
it will be difficult to determine, whether the. copy is a transcript of
the. same tenor, or an extract, or even an original.

If the pretended original belongs to the class of pre-constituted
evidence, the same doubts cannot arise. Why? Because every
original piece of pre-constituted evidence bears some intrinsic
mark (^authenticity, derived from law or custom.
• Another doubt may be raised. Was this alleged copy madq from
an original authenticated writing, or from a scroll-from which a
regularly authenticated deed was to be drawn up ? If the original
bore somCxformal attestation, it is not likely that it will be omitted
ia the copy ; but if the original was only a scroll or draft, it would
have no legal formalities.

The following ease is one which peculiarly excites sqspicion. A
party offers in evidence what he pretends to be a copy of a genuine
deed, alleging that the deed was formerly in his possession, or in
that of the individual whom he represents (his ancestor, or a testa-
tor), but that now, to use the common expression, it is lost ; that
is, he does not know that it has been destroyed, and has no particu-
lar reason to think; that it has been destroyed ; but, after every
search that has been made, he cannot And it, nor think of any way
of discovering it.

This case is manifestly exposed to a characteristic fraud. It may
happen that the original deed never existed ; and that the party,
unwilling to encounter the risks of forgery, has made and produced
this pretended copy, bcflieving that, in this shape, the fraud pro-
mises more success, and exposes to less danger.

On the other hand, it may be said, that the original deed did
esrist, but has been destroyed ; or, that it still exists, but cuQUot be
fiiand, or has been abstracted. Now, as fraud is not to be pre-
sumed, or, at least, is not to be regarded as certain, without a spe^
cial examination of the particular case in question, the 2o««.of the
original, though a ground of suspicion, is not a sufl^qient reason for
absolutely rejecting the evidence.

If the party producing the copy can refer to the copyist bfinself.

m * TB^ATIW 019

w if tbe band^wrUitig P«i be iipGertgi»e4 from Qib^r cir/^inKtupeerv

an additional security is .forpishedL

. ]/ther0 reaUy b^ an origiaal^ the most common case is^ that tjl^fsre

is (^rcnmstantial evidence of ite existenpe, and of every thing rie-*

gard^ig. its execution. If there b^^no trace of all this» it is j^ a4r

ditional objection to the alleged cppy^ and an objection nrbfcb can

never escape the attention of a judge.

. It follotvs^ that the danger of falling into error by ado^itting sifch

evidence is extremely smalU wbile^ to exclude it peremp^vilyi

would necessarily produce, in certain cases, a deciMon contniry Uf

justice.

Siv^th Case, The original is in the poasessioa of the ad*

' verse party.

In this case^ so long as the party who has the original in his hands
refuses to produce it, after regular notice, the accuracy of the copy
ought to be held to be established in the most satisfactory of alt
ways — ^by the virtual admission of the party who is most intereeted
in pointing out i-ts flaws.

' That a deed was once in the hands of the party in question^ and
that he may have made a bad use of it, is a fact wMch is past ; law
can do nothing in it. But that a writing which exists, and is de-
manded for a judicial object, can be obstinately refused, is an ev9
which can never happen but from some palpable defect in the sys^
tem of procedure. When it is ascertained that a man has a do^u*
ment in his possession, and he persists in refusing to produce iff,
there ought to be no hesitation to carry the punishment to any de*
gree .of severity, be it what it may, that shall be necestory to make
him submit to the obligations of justice. If he suffers^ it is his own
choice, and he deserves no pity. Cost what it may, he mast not
be allowed to persevere in conduct so manifestly iniijuitous*

CHAPTER XI.

SUPPOSED REAL EVIDENCE, TRANSMITTED BY ORAL TESTllfONr, Oft «

BY WAITJNO.

In mdst cases, real evidence cannot be placed under the eyes
of the judge. A house has been the scene of a crime ; waste lufe
be^n committed in a forest ; an embankment has been brdBen
down. As the thing itself cannot be trani^ported^ the real earidence
'k*eaChes the tli^ibunal only in the secondary form of a report ; jand,
when thus transmitted, its inferiority to dii^ct real evideniee is
-equally clear as in the cases of wfaiqh we have be^ speaking.

Tbf) importonc^ qf reiA evid^ncebasf be^p mffidieiitl}i etftablished,
under fh^ b/e^d pf oircup^stdnti^l eyideace> of which it. is a beaadti}
^ut it is necessary to repeat what. ha$ beed said of the fraud to
which real evidence is exposed^ and which t>ught never to be for*
gotten in estimating its vahie.

Characteristic fraud of real evidence. '

* Tlie offender, or a friend of the offender, operating upon the
thing which has already become, or whicTi he wishes to conviert into
real evidence, in relation to the principal fact \n questioq, alters its
existing appearance, or gives it a new one suited to his design^
Thus a servant, who has stolen plate out of a closet of which he has
the key, will pretend that tliieves entered the house, and tliat b^
could make no resistance ; to render the story more probable, be
will take care to break the lock, and wound himself; the ifragr
Inents of a broken knife will be found on the spot, and the knif^
will be ascertained to belong to a neiig^h*bo'uring workman, from
« whom he has stolen it on purpose to arm this mute witness against
him. The broken door, the marks of violence, the instrument left
on the spot, are all false real evidence, which he has forged to pre^
vent suspicion or aid his defence. This is an example j but tber^
are many ways of producing lying appearances.*

As the fraud is committed on the thing; itself, it will necesss^rily be
embodied in the report. But even if the jud^ wished to see it with
his own eyes, he would be deceived as much as any other to whoq^
he might delegate the examination. Here there is no extra-judiciaj
witness ; instead of an examinable persmiy it is ap unexaminable thing. *

' * «

The report on the state of the real evidence that is in questioA
may be transmitted to the jud^e in any of the testimonial foims.

1. Oral testimony; judicial testimony with all its guarantees.

2. By casual writing : notes or memoranda of the appearances
exhibited by the thing taken by a private individual, when these ap-
pearances were still ifresh-H:aken at the moment of inspection, oir
Immediately afterwards, or after a long interval.

*. 8. By written evidence : taken by an official witness ; nbt by the
judge himself, but by some confidential person; appointed for this
purpose by the general provision of the law, or the special nomi-
hatlon of the jud^e.

■j..^

* When an American 'savage is parisued, he baffles his enemy by walling
kaokwanda, so tbatbe Iseens lo be coming: from the place to which he is going.

The stratagems of war consist almost entirely in this species of artifii^, ia
concealing ^at % and giving tfppaiP^fit existeii<^ t6 what fs aot,

934 A TRVATISB OK

4. Judicial testimony, supported by written notee, which contain
the results of the view, and were made earlier than any judicial
enquiry could have taken place.

ComparUan between the proving power of direct real evidence and

tranimiited real evidence.

The difference between the inferior and the corresponding regu-
lar evidence, is much less in tliis species than in the others^

1. The reporter may be an official witness, or a person named by
the judge himself. Hence the danger of fraud is reduced to its
lowest term.

2. The person thus cliosen will naturally be a person possessing
the particular information requisite to the particular object of his
deposition; he will, be a scientific witness, a person ofekilL Hence
the danger of the judge being led into error, without ayy fraud on
the part of the witness, is likewise reduced to its lowest term.

If, in such circumstances, the report is inferior to the direct real
evidence, this can arise only from the particular nature of the things
in question — from their being ill suited for accurate description : the
perceptions, which they produce in the mind of the witness, are
such as he cannot transmit in language without materially altering
them.

In this lies the inferiority of transmitted to direct real evidence.

Considered in another point of view, the transmitted evidence
may, in certain circumstances, be the better of the two. If the
judge goes himself to the spot, and sees the state of things with his
own eyes, this gives the public an additional security proportional
to the idea entertained of the probity and capacity of the judge.
But if there be any doubt as to these qualities, the report of an
official witness is more valuable than the direct evidence, or the in*
spection of the judge. Supposing the judge to be alone on the
spot in question, if he has any partiality^ be may seek to see only
what favours his inclination and satisfies his conscience, and what
will lead him to conclusions favourable to the side which he prefers.
Does he see what is before him as a witness? . No; he sees it as a
judge. He is not examined; he gives nobody an account of the
impressions which he has received ; bis opinion is controlled by no
superior.

On the other hand, when an official witness presoits a report to
the judge, he is examined like ordinary witnesses, in public, and
under all the sanctions and securities possible.

In 4;he one case, the judge pronounccH on data which are not
known to the public, and, consequently^ the public can exercise no

JUBICIAj: SVIDENCB. 22S

control over him. lu the other^ the judge pronounces on data,
which are under the eyes of the public as much as under his own.
But if the judge^ when he visits the spot, is accompanied by wit-
nesses, the direct evidence retains its superiority over the trans-
mitted evidence. He will hear these witnesses, and his decision
will be founded on their report and his own observations.

CHAPTER XII.

8ECUBITIB8 AGAINST INFSRI0R«BVIO£NC£.

Having explained in what the inferiority of the evidence treated
of in this book consists ; having proved that it is often necessary to
admit it, and that, while its admission produces only danger, its
exclusion produces an evil which is certain ; we should unfold the
precautions with which such evidence ought to be received, . and
the safeguards with which it ought to be surrounded. This subject,
however, will find its place more properly in the following book,
which is to treat of exclusion in general. There we shall see, as
we refer briefly to the principles alre^y explained, that the know-
ledge of the danger is of itself a powerful preservative ; and also
that there are other means at the disposition of the legislature, by
which it may be reduced to its lowest terms.

296

BOOK Vli.

or THE EXCLUSION OF EVIDEJfCE.

■*■

CHAPTER t.

THE VABIOUS SOVRCSS OF SXCLUSION.

Witnesses are the eyes and the ears of justice. The more evi-
dent this truth is, the more difficult it is to conceive, how the system
of exclusion, in reference to numerous classes of witnesses, can
have become so prevalent. The different and contradictory rules
adopted on this point by the most celebrated systems of jurispru-
dence would present a curious picture. On account of age, persons
of tender years have been refused the right of giving evidence,
being considered undeserving of confidence, and incapable of dis-
icernment ; on account of their servile condition, slaves could not
bear witness against free men, or domestics against their master;
on account of propinquity, to allow a wife to depone against her
husband, a child against its father, or one kinsman against another,
was to violate a moral relation or a natural right ; on account of
sex, women were considered to be in perpetual childhood i on ac-
count ef religion and worship, the enemies of the faith could not
be heard against a believer, and those who refused a particular form
of oath were worthy of no credit ; on account of colour, a negro
was held not to be a man, when he was to depose against a white ;
on account of personal dignity, a dispensation from rendering so-
ciety a service was a privilege pf honour; pecuniary interest in the
cause, was a valid ground of exclusion, as if every interest, however .
small, must annihilate integrity; finally, a judicial condemnation,
to which this forfeiture was arbitrarily attached,^ had the same
effect; in a word, there is no pretext which has not been used, in
some country or another, as a reason for excluding whole classes of
witnesses. Combine all these pretexts, and there would no longer
be any admissible judicial evidence.

Let us not judge on authority; let ui^ seek reasons. We are to
enquire, whether there be cases in which it is proper to exclude
testimony, or, to use a more general term, evidence j but let us
first see how exclusion may operate,

A TREATISE ON JUDICIAL SVIDBNCB, iSlf

CHAFfER II.

THE VABIOUS MODES OP EXCLUSION.

Exclusion may operate in a positive and in a negative manner.
It operates positively j when^ on the witness himself being produced,
he is not allowed to be heard. . It operates negatively, when the
service is not performed, because the necessary means for obtaining
the evidence hkve been omitted, whether from negligence or design.
Tills omission is what I mean by negative eschisian.

CHAPTER III.

* EVILS OF EXCLUSION.

The exclusion of all evidence would be a denial of all justice.
The evil which may result from the exclusion of evidence, will
depend on the following circumstances :

1. Are there other witnesses in favour of the same party, in re-
gard to the fact in issue ?

2. Is the party, whose witness is refused, plaintiff or defendant ?

3. Is the cause civil or penal ?

These circumstances present eight different cases.

First Case. . The cause is penal : the witness is offered by the

prosecutor, and is his only one.

»
EM. A virtaai permission to perpetrate every species of crime

in the presence, and against the persons, of the individuals who are

deprived of the right to give evidence. It is thus, that in the West

Indian colonies, a free man, if he only takes care that no other free

man shall witness what he does, may indulge in any act of tyranny,

except murder, against the person of any slave, that is, against the

greatest part of the population.

Second Case. The cause is civil, the witness is the plaintiff's,
and his only ope.

EvU. A virtual permission given to every unjust man to disappoint
any other of all such rights as require the interference of justice
and consequently to render futile, in regard to the latter^ the pro<-
mise of the law,

a2

228 A TREAT18S ON

Tliird Case^ The cause is penal ; the party is the accuser';
the witness is the only one that can be produced on the
side of the accused.

Evil. A power given to every pervei'se individual to bring the
falsest accusations, supported by a single false witness ; to procure
the conviction of the most innocent, and make him suffer the
punishment of any possible crime.

Still, in this case, the success of the injustice is not so certain as
in the two preceding cases. Why? Because the accuser must find
a person disposed to play tlie part of a false witness; and this wit-
ness, on cross-examination, may be convicted of falsehood by his
own contradictions, and by other circumstances in the cause.

Fourth Case. Tlie cause is civil; the witness is the defendant's,
and is his only one.

Evil of exclusion. — A power given (as in the preceding case, and
under the same limitation) to subject any individual to every kind
of onerous obligation, even to the loss of his whole fortune, and that
in favour of the very person by whom this pernicious power, is
exercised.

The four other cases differ from these only in a single circum-
stance, viz. that the excluded testimony is not tlie only one on the
side which oirei*s it. Now, in this case, the probability of the evil,
which exclusion tends to produce, diminishes as the number of wit-
nesses admitted increased.

Unjust luau, consult your attorney, and your law books ; observe
diligently all the kinds of witnesses, who, if admitted, would prove
your iniquity, but from whom, in consequence of the principle of
exclusion, yon have nothing to fear. The greater the number of
witnesses from whom you are thus delivered, the greater is the se-
curity with which you may go on in wickedness.

Thus, the general result is, that the principle of exclusion is bad
by its effects or by its tendency ; it encourages every hurtful dispo-
sition, because it increases the probability of being successfully un-
just.

To exclude a class of witnesses, is to allow every species of trans-
gression in the presence of a witness (^ this class.

To require two witnesses for conviction, is to allow' every species
of transgression in the presence of only one.*

• Same case. Law of the Canton of Yand in regard to iromen ; two are re-
quired to connterbalf^nce the testimony^ of a man.

J0i>ICfAL KVIDBKCB. 229

CHAPTER IV.

THB PRINCIPLE OF EXCLUSION.

Still there are cases in which exclusion is proper.

It is never of any use in attaining the direct object of justice (the
conformity of the decision with the law) ; but it may be useful in
attaining a collateral object, which is one of high importance to
the parties, though, unfortunately, it is sometimes in opposition to
the direct object ; tliat is, exclusion is always an evil, but sometimes
an evil inferior to another, viz. to the delay, expense, and vexation
which would arise from admitting such and such evidence.

This exclusion- ought to be considered in the same point of view
with legal punishments*— always an evil, but an evil which must
be submitted to, for the sake of avoiding a greater.

Tlie following rules, which nobody disputes in principle, thougli
there are endless dehates about their application, may be here laid
down,, as guides to lead us to a practical result :
. 1 . Do not produce a greater evil than the one to be prevented.
« 2. Do not exclude a greater good for the sake of a smaller.

3. Do not produce a preponderating evil in the pursuit of any
good whatever. '

A. Do not exclude a preponderating good in seeking to exclude
an evil.

'. We have here to strike a balance between inconveniences aiid
advantages.

In regard to the evilswhich are to be prevented by exclusion,
viz. an erroneous decision on the one hand, and, on the other, de-
lay, expense, and vexation, it is to be observed, that there is a great
difference, in their effects.

If the evils to be prevented are, delay, expense, and vexation,
exclusiou'acts asian in&llible remedv. '

% But, in regard to the erroneousness of the decision, exclusion
always produces a certain probability to the prejudiceof oneof the
the parties. . .

This distinction is of great importance in relation to English
practice. .Exclusion, in so far as it is applied to prevent erroneous
judgments, that is, to remove evidence, which, it is thought, would
mislead, has been admitted with remarkable prodigality. Exclu-
sion, in so far as it is applied to prevent delay, expense, and vexa-
tions, has been admitted very sparingly, and almost never with this
view. Thus, in cases where this medicine would certainly be effi-
cacious, it is seldom used; and in cases where its effects are only
more or less dangerous^ it is frequently used.

f^ A TB3Uin$M ON

CHAPTER V.

CAVUflft VrVfCH RENDER EXCLUSION ALWAYS PROPEll;-

Though tbe witnesses ought not to be excluded^ there are
eases m which the testimony ought to be thrown out. of doors.;
1. When it is not pertinmi ; 2. When it is superfluous.

To s^ that testimony is not pertinent, is to say that it is fore^n
to the case^ has no connection with it, and does not serve to prove
the fact in question 3 in a word, it is to say, that it is not evidence.

To say that testimony is superfluous, is to say, that, though it
were admitted, it Avould add nothing to the effect of the other evi*
dence, and would in no way contribute to the discovery of the
mith.

Evidence, which is not pertinent, is more injurious than supers
fluous evidence. The latter ^occasions loss of time to the judge,
and, to tl]^ parties, a proportional quantity of expense, delay, and
vexation ; but the former, in addition to these inconveniences,
covers the case with clouds, creates incidental enquiries which only
mislead, and infuses doubt and hesitation into tbe minds of the
judges. This evil ii still greater with a jury ; because the men
who compose it, having less experience than the judges, know not
bow to find their way out of the labyrinth. The case is in a proper
condition to develope its true character, only after all the evidence,
which is not pertinent, has been set aside.

Every testimony may accidentally turn out to be superfluous ;
but there is one, which, except in a particular case, expressly de-
serves this designation, for, to be superfluous is its essence : I mean

The particular case in which mere hearsay is admissible^ is^
wb^e no physical or moral evidence exists, and we are roduded to
the necessity of receiving this testimony, inferior as it is, because
the source from which it has been drawn no longer exists.

It may likewise be used in an accidental case, when, after the
original testimony has been heard, it appears proper to appeal to
this derived testimony, as a test and touolistone of the truth of the
fermec For example, does the testimony borne by a witness to a
feet whiph he represents to have happened before his own eyesy
agree with what he occasionally said of it to others ?

What has been said about hearsay may be applied to transcripts^
When tbe authentk^ity of a writmg is in questton, are there iwy
cases in which it may be useful to ^peal to a copy P Yes j when

there is a wi^itioo, fot eraoople^ thai tbe <Nrigui^ writing bas been
falsified subsequently to the making the copy. ,

But^ in wishing to remove evidence that is superfluous pr noti
pertinent, you give th^ judge » power liable to be mucb abused ;
for be who is to decide question^ of this nature^ is absolute master
of the cause. I answer^ that this power is not greater, or Aiore.
dangerous, than most of those with which a judge inust necessarily >
be invested, because they are essential to his functions. I^blicity.
is tbe preservative against any (bing arbitrary*

Of >rbaterer abuses this power may be susceptibtei still it is tn^i
the less necessary. For, wei'e there no such security, in how many
eases could a rich mM, overwhelm ha adversary by delay, vexa-
tions, and expense. <

There . is anothar objection. Is it not a m^mifesA coatradiction
to exclude evidence as superfluous or not pertinent, brfore it has.
he&A heard ? Can it be judged of before it is known? This only
M|uires that the equivocal mode of expression be cleared up. It
is not the testimony itself which is directly exduded, but the fact
which this testimony is to prove. What the judge says amounts to
this : ^^ The fact which you ask permission to pik^ve, as serving to
esti^lish the principal fiict in question, has no connection with it,
or a connection too weak imd remote to counterbi^Mice the inecm-
veniences which would arise from admitting the evid^oee/'

GH AFTER VI.

StASUB IN WBIOB EXCIiUSION MAY BB PBOPBR9 FOB THB VVKfOfm OT

▲VOimNO DELAT.

In a cbiintry, where the legal ties Which unite one man to an-
other, may be spread over the whole surface of the society, there is
no determinate limit to the interval which may elapse before %
suitor can obtain all the testimonies, and all the articles of evidence
ioecessary to Ihe information of the judge, and the rectitude of his
decision. ^

Yet to refuse a suitor the delay which is necessary to enable him
to produce bis evidence, is, in reality, to exclude his evidence.

In such a state of things, may exclusion be proper in Certain
cases ? Yes ; nor Will it be denied, if it is consitiered, tiiat in the
same individual case, while the judge is Waiting for such remote
evidence, other evidence, no less essential, may perish, or ^be put
%0ii« his reaeh» .

4

333 « A'»BATl»^0ir <

*

^' It is true, that, if proof B. can be obtained, the ritic of lofting^it'
ought not to be run, merejy because proof A. cannot yet be pro-
duced. * "

But it may still happen, in the same individual case, . that, while
the decision is postponed to wait for some remote evidence which
the defendant alleges, falsely or not, that he is in a condition to pro-
duce, the plaintiff, having right on his side, may be exposed to
irreparable loss.

In such circumstances, the legislator has only a choice of evils,
and all that he can do is, to reduce them to their lowest term.

The most just arrangement, pointed out- by the nature of the case,
seems to be this : let the judge decide provisionally in ikTOUr of the
plaintiff, without waiting for the remote evidence; but let the
judgment be one which may be revoked or .modified, in case the
defendant produces the evidence in question within a limited
period, which may subsequently be extended on good cause being
shewn. The plauitifff before being put in possession, ought to find
security to make restitution in the event of the judgment being
altered.

Tliese provisional judgments themselves are not to be given with^
out evidence; but. the basis on which they rest, in the absence of
the expected evidence, is what may be called evidence of the second
order, or evidence of evidence.

CHAPTER VIL

CASKS IN WHICH BXCLU^IOlir MAY BE PAOPER, FOR • THE PtlBPOSB. OP

AVOIDING VEXATIONS.

Th8 Vexations connected with testimony may be. distinguished
into. two classes, general and spedal The latter are comprised
under the designation of disclosures or confessions.

By general vexations, I mean all the useless fatigue and trouble
which may be inflicted on the different persons interested in a
cause — the judge, the aribordinate officers of justice, the j^ry, the
parties,' the witnesses — all individuals, in short, who, may. occasion-
ally be called to take an active part in a judicial investigation. .
, In regard to the judges and jury, when the evidenpeis such as
torproduce, in their minds, hesitation and perplexity, it le«ds to
the danger of mistaking the case, and giving an erroneous decisipn.
This uncertainty^ troublesome though it be, , cannot be remedied. ^
We have already seen, that it is necessary to rem^re^ as. nipch as.

JU0ICIA1:. BVIDEKCE. 23^^

possible, all evidence that is superfluous or not perlinent— -that abun-
dant source of confusion and useless labour; \This separation con-
stitutes the principal merit of a well conducted instructiaiu

The production of evidence occasions expense and embarrass-
ment to the parties. To discover documents/ seek out witnesses,
and bring them to appear, is to have to struggle against the cun-
ning which conceals evidence, against individual indolence and in-
difference, and against a crowd of interests which would willingly
escape from the performance of a troublesome duty. But still, if
the party interested thinks that the advantage which he may derive
from the appearance of this or that witness,-or the production of
this or that piece of evidence, is greater than the inconvenience of
ttie expense, there is no reason for refusing him what he asks ; he
alone is competent to judge, whether the expense be more than
balanced by the advantage which he expects.

But the greatest inconveniences are those which regard the
persons called as witnesses. Their situation subjects them some-
times to a host of vexations of every, kihdj infinite, so to speak, and
unbounded. Were there nothing but the ^expenses which they
incur, this evil could be compensated ; but, in how many ca^s, is
a p^uniary recompense altogether disproponioned to that loss of
Hme, which may bring with it so many casual consequences, and
embraces every possible event. In the, ordinary course of affairs,
the situation of a witness js extremely troublesome in itself, in con-
sequence of the removals which it occasions, the joumies between
his residence and the place where the court sits, the iatigue of
waiting on, and a multitude of disagreeable circumstances difficult
to.be detailed. . All this exists even in a jurisdiction of no great
extent ; but what will it be, when the geographical sphere of a tri-
bunal comprehends a great .country, or if the residence of the wit-
ness is not within the limits of the kingdom ? It must be allowed,
that such circumstances furnish very plausible^ and often very just
reasons, for delaying, or for refusing the admission of the evidence.
. This is an additional reason for refusing all evidence that is su-
perfluous or not pertinent. But farther, when the circumstances of
the witness are such, that his appearance would be attended with
too serious inconvenience to himself, recourse may be had to one
or other of the. following expedients : 1. Ah oral examination by a
judicature ad hoc, or by a commission specially appointed for tbil»
particular object; 2. An. examination in the epistolary mode, when
the. case is not such as to require cross-examination; or merely a
spontaneous deposition, made on the spot, of which the English
affidavit is an example* . -

904^ A WBjtf 139 ON

Whaterer these vexations^ the necessary accoixi|pAakneOt of btmg'
a witness may be, they pre never of themselves a sufficient reasmi.
for excluding a witness, when his evidence is of importiuice. It !»>
an obligation which the law ought to make universal, and vrhith
every one ought to consider among the chief conditions of social'
security.

But, while the legislator oughC to establish a system of procedure
which will ensure the performance of this duty, he has, at the same *
time, much to do, in order to make the burden as light as possible*

* CHAPTER VIII.

CASES IN WHICH EXCLUSION IS PROPER/ ON ACCOtTNT OF VEXATION ARISING

FROM CONFESSION.

< To be compelled to undergo a judicial examination, and make-
'<ionfessions or disclosures M^hieh, on eveiy account, one would wish
to avoid, is a painful obligation ; and nothing is more natnnd ikan
the repugnance which is felt agunst submitting to it. But justice
dees only disdosures ; and, as the evil is inevitable, all that can^be
done is to reduce it to its lowest term, by distinguishing the cases
in which the discovery may be required, from those in which it
cannot be required.

Whatever consequences it may have to the inAviduals examined.
It may be required, whenever it is necessary to enlig^ileD justice,
and lead her to a proper decision.

In fact, if the consequence of it should be the civil or petial con-
demnation of an individual, this conctemnation is within the purview
of the law : it proi^uces more good than evil.
. Wh«i the confession is not necessary to the discovery ef the
trulAi, far from being required, it ought not evea to be admitted, Md
the judge ought to be careful to prevent it

We have already seen, that evidence, which is superfluous, or not
pertinent, ought to be rejected, as injurious to distinctness ami expe-
dition in a cause ; but there is an additional and very strong reason
for excluding it, when it would lead to vexatious disclosures.

Even when its nature is. such, that, without being notoriously su-
peffluous, it would harrass the parties and witnesses, and bring into
hazard the interest of the public, or of individuals who have no con^
nection with the case, it ought to be refused, unless there be an ab'-
solute necessity for it. .

Among the evils which law»suits brmg along: ^^^ ^i^ one M

JVWeiikL BVIDBNCB. ^

tbe most coimuoQ and most serious is, the animostfy iofiised iato the
pleadings. The parties, irritated against each other, convert th^
temple of justice into an arena of gladiators. Less eager to defend
themselves, than to attack their opponents, the litigants pursue each
other With questions \^bieh have no other object than to ruin each
other's character. Still less can those advocates be justified, whoj
from borrowed anger and mercenary hate, strive to disci:edit an ad'-
verse party or witness, by raking up all the details of his life to dis?
cover unknown weaknesses, and who make a merit of this cowardly
triumph.

It belongs to the prudence of the judge to prevent these scan-*
dalous proceedings, but no absolute rule can be laid down. All that
can be done is, to state those considerations by whigh the judge
ought to be guided in determining whether or not any particular
disclosure ought to be required :

1. A disclosure, which could not*have been exacted from the
party principally interested, because prejudicial to him, oug:ht not
to be exacted from any one to whom he has confidentially commu^
nicated it.

2. But if the principal himself is not in one of those peculiar situ*'
ations which would give him a dispensation from the obligation to
give the required discovery, neither ought his confidential deposi-*
tary to be. exempted from it.

If there is no reason for regarding the strongest of all motivesy
personal interest, there can be none for regardiug that of i^mpathy.
Besides, if sympathy were thus to win in all its gradual connections,
witnesses could not be found.

3. There are certain offences, (those against decency, for ex-'
ample), the mischief of which lies almost entirely in their disclosure*
If, in the course of a civil or penal cause which regards something
entirely different, questions are put which may expose an individual
to a suspicion of this nature, it ought to be left to the discretion of
the judge to decide, according to the circumstances, whether they^
shall be insisted on, or simply allowed, or absolutely excluded.

If nobody is injured by the fault remaining concealed, it h ^vu
dent that the judge ought not to allow the disclosur^.. This is not
enough. We can imagine cases where only a very trifling interest
is at static, but where the defendant would be entirely exculpated,
if he could bring out of a witness some disclosure which would
ruin a woman of reputation, by establishing, for example, incest or
adultery. It is clear that the evidence should be excluded, even to
the injury of the defendant. But this is always a question of degrees;

236 * A TRBAT18B ON

and even peinniasion sliould be. lised to induce the individual to desist
from d^nlkanding such a disclosure.

4. When the disclosure may be injurious to an individual, but
does not appear to be useless to the case at .issue, the judge may
postpone its admission, until he see^ that the want of all other evi-
dence renders it necessary. The more likely it is that he will be
able to gain his object without it, the less reason is there for using
it, at the risk of the evil which it m^ produce

5. He ought likewise to enquire, whether the disclosure that is
' demanded be of such a nature that it may be got at by other

means, even though the testimony should.be refused. The more
likely it is that the fact in question will become public and noto-
rious, the less is the inconvenience of receiving the.testimony. *

6. Lastly, in political trials, involving Questions of national im-
portance, disclosures may be demanded, which would be prejudicial
to the public interest. Not only should the judge be authorized to
stop it provisionally, but he ought to be enjoined to reAise, or
modify it. But, while he does this, he should likewise declare
why he dpes so, and communicate the matter to the head of tlie
department whom it concerns. He ought to fix the day on which
the disclosure may be insisted on, if no sufficient reason is shewn
for refusing it.

Thus (to quote an example which has no relation to judicial
causes,) in the houses of Parliament we daily see information asked
and refused on this principle, and the refusal sanctioned by the ma-
jority. Perhaps it will be said, that this refusal often rests ori a
coalitipn among those who are interested in maintaining abuses, and
who do not wish to lift the veil which conceals them. However
this may be, it cannot be denied, that this power of refusal is a ne-
cessary protection to every government.

LcJt us observe, that the mischief of disclosures may be avoided
in «eyeral cases by having recourse to private procedure, when one
or both of the parties demand it.* Suppose that a witness in a liti-
gation has reason to dread the resentment of some one on whom he
is dependant, in consequence of domestic relations, and who may
render him miserable with impunity— a father, for instance, a hus-
band, a son, or ward, an ofBcial superior, a commercial partner ;
what can be more conformable to the natural mode of procedure,
than to examine the witnesses without bringing them forward on

• See Book H, Chap. XL

JUDICIAL BVIBBNCE. 237

the public stage, but always in the presence of assistants named by
the parties interested, and all under, the ablig^tion of secrecy ? *

I see ibe objections which may be made to the whole of this doc-
trine.. Here is a great deal of arbitrary power, and judges may
abuse it. I answer, that, injudicial matters, dangerous powers in
the judges are those which they usurp in opposition to the law,
rather than those which tliey receive from the law, and which they
can exercise only imder the eyes of the public that looks on them
with distrust. The least formidable of all, are those discretionary
powers with which they are entrusted, only on the express condi-
tion of giving, in every case, the reason why they use them. This
check is sufficient, because it leaves their responsibility undimi-
nished. • ^*

CHAPTER IX.

DISCLOSURE BY RELIGIOUS CONFESSION.

Question. Whbthbr the case be penal or civil, is it pi'oper either
to compel a catholic priest to disclose, or to receive, if he voluur
tartly discloses it, a communication made to him in this character,
in the way of confession, according to the rites and belief of the
catholic church (or any other) ?
. Answer. It can neither be compelled, nor is it receivable.

A law which compelled the priest to depose, or admitted bis de-
position, would operate like a penal law, prohibiting confession in
the most important cases, and, above all, in the case of criminals ;
for, he, who confessed a crime, would be exposed to be convicted
by the testimony of the priest.

In every suit directed against a catholic, the first object of the
plaintiif or prosecutor M^ould be, to discover the confessor of his op-
ponent, and summon him as a witness.

Such a law, therefore, would be contrary to the law of the state,
which allows the exercise of the catholic religion. It would be an
act of tyranny over the conscience.

It may farther be said, that confession, instead of being attacked,
ought to be encouraged, as exercising, in general, a salutary in-
fluence ; and, were it always what it ought to be, there is no doubt
that it would be a restraint upon crime, and the means of procuring
reparation for many acts of injustice. But use and abuse are such
near neighbours ! Every sort of expiation is so dangerous to mo-

$88 A TBSATISB OR

Irality ! It can so easily be converted into a political instrament 1
Scire vahmt secreta damds, atque inde timeri. It is not necessary for
me to enter into this discussion ; but I will say, that a comparison
of the morality of protestant with that of catholic countries, does
not justify the eulogies which the defenders of confession bestow
iipon it.*

CHAPTER X.

EXCLUSION OP TESTIMONY ON THE GROUND OF PROPINQUITY.

Ought husband and wife to be compelled^ or even allowed^ to
give evidence against each other ?

The law of England has decided in the negative^ as a con*
sequence of the original error. A wife may be reluctant to depose
against her husband; a husband ought to be reluctant to have his
wife depose agaipst him ; but what is their reluqjtance, compared
with the necessity of discovering the perpetrator of the crime ?
' It disturbs domestic confidence. Whose ? Those who abuse it to
disturb the public security. A miscreant^ then^ who could be con-
victed of an atrocious crime by the testimony of a woman^ has
nothing to fear, if he has only time to go through the marriage
ceremony ! No asylum ought to be opened for criminals ; every
sort of confidence among them must be destroyed, if possible, even
in the interioi* of their own houses. If they can neither find mer-
cenary protectors among the lawyera, nor concealment at their own
firesides, what harm is done ? Why, they are compelled to obey the
laws, and live like honest people !

But the fear of false testimony ! If such a fear ought to be listened
to in this case, it ought to be listened to in a thousand others where
it is never heard. False testimony is so much the less to be appre*
bended here, because we naturally distrust it. Every one is easily
put on his guard against witnesses so deeply interested ; their de-
positions may have various degrees of value ; it belongs only to
the judge to ascertain their value by the particular circumstances
of the case.

While the law of England excludes the direct testimony of the
wife, it admits it indirectly. Her letters, or her conversations.

* CoDfession appears to me an Utopian institution^admirabley if it did not
imply the impossible, if it werp not exercised by men.

JUBieiAL BVIBEVCB. flBO

proved by a third party, are evidence against her husband.* All
the exceptions are good in the same proportion that the nile itself
is bad.

If the conjugal relation does not justify exclusion, no other can ;
neither that of father, nor that of child. It is always desirable to
be able to dispense with such testimony $ for it wounds natural
feelmg*, and it is exposed to the suspicion of partiality. But, on
the odier hand, how dangerous would it be to tell the violators of
the laws : " Here are certain individuals in whose presence yoa
may commit any crime in perfect security ; what is seen only by
them, is seen by nobody. Rather than afflict them, they shall not
be asked asingle question which might injure you. j- "

It is necessary to recal to the recollection of those, wbo, being
struck with the abuses of a tyrannical mode of procedure, may
believe that they here find its most dangerous features, that the
same nominal powers are very different in ideality, according as the
judges exercise them in private, or in the view of the public, and
according as they are irresponsible, or subjected to the severest and
most inevitable responsibility. Would any man have ventured puh^
Uely to examine children 4>f seven years of age on the political
conduct, on the conversations, and habits of their father ? Would
any man have ventured to intimidate them, and to attack them
with captious questions ? Even if it were granted that these facts
are only imaginary, yet the supposition is not admissible in a tri-
bunal secured by publicity, and still less in trial by jury.

- •

* This is a mistake of Mr. Bentham, or of bis French editor. The letters or
conversations of the wife are not evidence against the hasband : sometimes
her letters or conversations may be part of the res geMa; and then they may be
given in evidence, for the purpose of proving that such letters were written, or
that such conversations took place, but not for' the purpose of establishing
against the hasband the truth of the matters stated in the letters or conversa-
tions. — Tr,

t Suclv testimony is not excluded by the law of England. The Newgate
Calendar contains the trial of a shoemaker, who, on the- evidence of his
daughter, was eonvieted of having hanged bis wife. If be had hanged bis
daughter in the presence of bis wife, be could not have been punished.

340 .: A TRBATtSB ON

CHAPTER XI.

EXAMINATION OF ANOTHER CA8B OF VEXATION *. SELF-INCULPATION.*

• * « •

Th's most remarkable singularity of the law of England is the
rule wljich-ordaiiis/'that an accused person shall not be judiciaUy
asked any question; from which evidence of his guilt ma/ be de*
duced. If such a question is put^ he is not bound to answer it,
and his silence is not to be held to furnish any legal presumption
against him. / v

Such is the rule.' I do not say that it is always scmpulously ob^
served; there are deviations and inconsistencies; but though the
bad effects of the system be thus somewhat mitigated, enough re-
- mains to excite the regret of every man who has reflected on cri-
minal jurisprudence/ and sees in this indulgence, only a frequent
source of impunity and encouragement to crime.
. The prejudice in** favour of this rule is so deeply rooted, the
public mind has been so fascinated by the words prudence^ security,
sensibility, and respect for the unfortunate, that more courage is
required to oppose," in •England, this national opinion, than to at*
tack the most powerful and dangerous interests. - Let us first try to
ascertain the direct reasons against this principle :

1. It, no doubt, is a vexation to a man to be examined on facts by
which he may inculpate himself; but is not every legal punishment
a ^vexation, and ought, therefore, no punishments to be inflicted ?
Such extravagance of argument is unexampled.

Not only punishment, but likewise every investigation which
tends to inflict it, is a vexation. Does it follow that every investi-
gation against delinquents ought to be suppressed ? In the scale q£
extravagance, this would not.be a -whit below the other.

2. If the danger of subjecting the accused to punishment in con-
sequence of his answers to questions put to him directly, is the
reason for which they are. to be prohibited, it seems to be an equally
good reason for not admitting any other evidence against him. If
it is wished to protect him against punishment, it can be done at
once, and with perfect efficacy, by not allowing any investigation.

3. The case would be very different, if accused persons had a
natural inclination to subject themselves to punishment, even when

* Self'inculpatum is the proper term, and not self-accvsation. Newo (enetur
seipntm accvsare. Accusation implies spootaDCoasness ; bat he who gives an
answer does not act spontaneously. A man may inculpate himself by his silence;
bat to say that his silence accuses him, is to ase a rhetorical expression.

jrtTBIClAt BV1DS17CB. 241

they are innocent } amd if it was really to be apprehended that the
acctised would give mere decisive evidence against himself than
other witnesses would do, including even those who are, on account
of injuries which they have suffered from him, his particular ene-
mies. But as no trace of this self-enmity is discoverable in human
nature, there is no necessity for guarding against a danger which
does not exist.

4. Let us now consider the case of persons who are innocently
accused. Can it be supposed that the rule in question has been
established with the intention of protecting them ? They are^ the
only persons to whom it can never be useful. Take an individual
of this class; by the supposition, he is innocent, but, by the same
supposition, he is suspected. What is his highest interest, and his
most ardent wish? To 'dissipate the cloud which surrounds his
conduct, and give every explanation which may set it in its true
light ; to provoke questions, to answer them, and to defy his ac-
cusers. This is his olyect ; this is the desire which animates him.
Every detail in the examination is a link in the chain of evidence
which establishes his innocence.

If all the criminals of every class had assembled, and framed a
system after their own wishes, is not this rule the very first which
they would have established for their security ? Innocence never
takes advantage of it ; innocence claims the right of speaking, as
guilt invokes the privilege of silence.

5. If the rule has been established with the intention of sparing:
the accused the chagrin of furnishing evidence against himself, this
object, after all, is not accomplished; for, not only letters written
by him or ascribed to him, and notes in his handwriting, but even
his conversations, or reports of his conversations, are received as evi-
deqce, and discussed in his presence, without scruple or reserve.
Thus, wliat the technical procedure rejects, is his own evidence in
the purest and most authentic form ; what it admits is the same tes-
timony, provided that it be indirect, that it have passed through
channels which may have altered it, and that it be reduced to the
inferior and degraded state of hearsay.

6. See what are the consequences of rejecting first-hand evidenccj
and admitting second-hand evidence.

The informatiob derived from the latter is necessarily incomplete
and fallacious ; for, how much of what the accused may have said
extra-judicially reaches the judge ? On^y so much as the deposing
witness is able and willing to recollect ; and even in this, what
security is there for the accuracy of his memory, and the veracity of
his character ? .

fi^ A riiirisx 6^

Tbe party himsetf coald correct errors, supply pmlssioiis, aira
present a faitbjful recital ; but nothing of all t^ts is iadmitted j and
M that can result from these mutilated and inaccurate de|)0sitidQS5
is an impression, which ought, in general, to be favourable to thife
criminal, but which may likewise be turned against the iniioCent.

7. This rule, so precious in the prejydic^d eyes of ah Ehglish-
man, is never followed in situations' where there indubitably exists
the grieatest desire to discover the truth, and the greatest tender-
ii^ss toWards individuals. What head of a housed or father oi A
jfamily, would ever think of adopting such a mode of procedtire
it^ith his servants Or children ? If any irregiilariiy among them has
come to his kriowledge, does he ever dream of exciiidihg their tes-
timony ? is he afraid to exahiine thein diriectly ? .In sliort, does the'
domestic procedure contain any trace of thai of the f^nglistj

courts? , , .

§. In the mo^t serious offences, those which the law of 'finglaiict
hold's to be felonies, this rule of the conimon law is ih direct (JppoSi^
tion with the only true lawj that, viz. which has received the ^eal
of the legislature.

By iwo successive statutes of Philip aiid Mary, the Justices of the
beace, before whom a person accused of feloiiy is brought, shall ex-
amine the prisoner, and them that bring him, concerning thejfdct and
circumstanced tfiereof.* With what view ? In order that the answers
thus obtained may contribute to the conviction of the guilty, says
the stiatiitb; ^hd it is for this reason that it directs that these answers
shall be taken down in writing, knd be duly certined.

It is ih virtue of these two statutes that such examinations are
taken by magistrates iii cases of feloiiy. [but what is the con-
s^queiice ? 'the magistrates exercise despotic power, arid can show
favour or rigour as they choosie. It places in their hands a dis-
^uised but arbitrary power of pardon. If the magistrate iritedds to
do justice, he Conducts the examination according to the will of the
legislator ; if he wishes to make a parade of clemency, ot show
partial favour to ihe accused, he follows the riile.of the common law,
^nd even tfeUs the prisoner to be on his guard, and to say nothing
^nich inaj^ turn to his disadvantage,

TJ'hese r<^as.ons seem to prove sufficieptiy, tliat tliis rule ol", the
fihglish law injures justice in two, ways, by being ^voiirabie to
^ilt, arid |>rejudicial to innocence, ilow shall we explain thepre-
dilectioh of an enlightened nation for a law whose abuses must Have
been demonstrated by experience ?

••r- - •. \ 1 .l«. . ' '

**— ™— *^*" M M^— — II I II ,. ,1 »■—————.—■'— i^i——^—— ——I— ^—^—i——

• 1 & 2 PhU. aD4 M^r. p. 13 j 2 & 3 PJiil. ?n4 Mar. e. 10.

JUDICIAL SVtBfiKCE. SM^^ ,

t say first; that when all the tribunals of the Cbntlneiit w^r^ pre-
senting the hateful spectacle of torture^ aiid their judged tirere eag^ir
to seize, and turn againdt the accused; every ward ^hteh might '
esca[)e Him in the agony of pain, it was natural theif the Engli.^hf
should conceive a high opinion of a system of procedure so oppo-*
site to this barbarity.

But thiere is, besides, a coticeciled reason; which may have ren«
dered this privilege extremely precious in their eyes. Partly fbotti^
thd tyranny of particular reigns, and partly froin religious ihtoler-
ahce, their mass of penal laws contains statutes so pernidbus, thatjl
had they been rigorously executed, they would have desolalt^^
society. Now, in such a situation, where only an informer is ivant^d
to give an individual up to persecution, to oblige the accused to
answer; or de|)ose against himself, would, in som6 measure, double
hrs danger. If he cannot be called on to make a confession; it will
6flen be impossible to convict him, and the mildness of the pro-
cedure will partljr correct the tyranny of the law.*

But, it will be said, if this ihode of procedure has been a security
against jpast tyranny, it may be equally useful against future
tyranny. Who can be certain that no more pernicious lax^s will
be made ? Why remove a mean of security whose good effects havcj
been already felt ?

1 answer, that if the legislature were to enact such laws, the
inore rigorously they were executed, the more would their natural
deformity be felt, and the sooner would they reach that: piJint at
which they would become so intolerable, that there would be onljr
one voice for their abolition. But when victims fall here arid therel
at long intervals from each other, the public attention is riot roused
by these scattered evils, and insulated complaints die away without
reaching the ear of the legislature. The law, in place of bein§^
abolished, goes down from age to age, occasionally fatal to tlie indi-
viduals on whom it falls, and always (iisastroiis to the public, by the
obstacle which it presents to the operation of good institutioris.

: *. Among the anecdotes, cnrrent ia. England^ I,]iave.lieiir4 one of Loifd
Mansfield, wliicb may illustrate this : A priest was accased of having cele-
brated mass. < by one of those old laws of l>10od, which had not then Iwen rd-
pealed|.hat h^ii^e h^en long forgotten, the offence waf pjanosbahl^ »ith4ei«l]i
or transportation. The witnesses were examined ; the fact was proved ; the
prosecutor was already enjoying his triamph, when, to his great surprise, and
the general satisfaction of the public, the accused w&8:acquilted« |»eoiiiM,
although he was proved to have said mass, fie was not proTcd ;to be a priest.
If it had been ijlowed to interrogate the accused himself, his refigfoh ni^onld
jipt have allowed him to coiiceal his rank, and he could have be^n saved oaJjr
hj a pardon.

ii3

244 A TRBATISB ON

It would be a strangle mode of reasonings to set out with tiie
supposition that the laws are to be oppressive^ and that we are to
seek for the modes of procedure best fitted to paralyse them. It
must be presumed^ that the laws will, in general, be what they
ought to be — instituted for the protection of society 5 and they
ought to be supported by the most efficacious procedure. Lose
sight of this principle, and you will be involved in perpetual self-
contradiction.

Another reasop, which has something plausible in it, is urged
against the examination of the accused. When a man is examined,
he becomes, confused ; the more he is . intimidated, the more apt
will he be to have recourse to lies, even in things of little moment.
On the supposition, he is guilty, but he may be less guilty than he
now seems to be ; mitigating circumstances might have brought'
down his offence to a loioer degree. But such will be the effect of
his tergiversations and falsehoods on the minds of his judges, and
above all, of jurymen, that they will believe him more guilty than
he really is, and be prejudiced against his whole defence.

This objection admits, that, in proceedings which go on under the
public eye, open and honest, it is not to be apprehended that re-
course will be had to means of intimidation which might confiise
an innocent person. Every thing encourages hini to state the truth
and conceal nothing. . But if the accused be guilty^ and displays
falsehood and tergiversation, is it possible that the effect of the false-
hood cfMi be, greater than.that of the crime itself? He lies, either to
disguise what he has done, or to deny it. If the falsehood is -not
discovered, it operates in his favour ; if it is discovered, it leaves
the evidence as it was, and establishes against him nothing more
than the facts which result from the proceedings. The crime does
not pass from one class into anpther, nor from a less heinous into a
more heinous species ; in a word, the falsehood produces no effect,
except its natural effect^— that of being indirect evidence, as a sort
of confession.

Beccaria disapproves of this personal examination^ This is high
authority ; but we must examine his reasons. '' To require a man
to accuse himself,'' says he, ^' is to confound all relations/' It would
have embarrassed me to find a meaning for this word relatum, but
Beccaria explains it. " It is the same," says he, '* as to require a
man to hate himself, and act as if he were his own enemy." . This
objection, then, beldngs to those which we have already discussed.
A man is reluctant to inculpate himself; but he is equally reluctant
to be inculpated by others; he is equally reluctant to suffer punish-

>i

nOlClXL BVIBBNCB. 245

meat His reluctance goes for nothing, when be has been con*
yjcted ; why should it go for any thing in convicting him ? *

Others will tell you, that the examination of the accused is not
generous mode of proceeding; it is taking a man at a disadvantage •
He is in an unfortunate situation -, the judge ought to be his friend
rather than his enemy ; and it is noble not to use to his pr^udtce
what may escape from him.

One could be tempted to believe, that those notions had been
taken from the laws of honour which regulate private combats. It
is contrary to rule, to press an enemy whom an accident has reu-<
dered incapable of resistance ; it is contrary to rule, to strike an
enemy when he is down } he must have another chance, and be
billowed to rise.

These ideas of pity and generosity ought always to be admitted^
when they are not opposed to a more elevated principle of benevo-
lence«-the general interest of society. When the guilty is acquitted^
society is punished. Many innocent persons are exposed to. suffer
from the same malefactor, or from those whom his escape encou-
rages. The most sensible and humane judge ought to be neither
the friend nor the enemy of the accused ; he is the friend only of
truth and the law. He is not seeking either for a guilty or. for an
innocent person. He wishes to find only what really is.

Let us close this discussion with a general remark. The want of
tlHs judicial instrument is the more to be regretteld, as the evidence
drawn from the mouth of the culprit himself is always the most
satis&Gtory, and the best fitted to produce in the public mind an
uniform feeling of conviction.

* See the note at the begiDoing of this Chapter.

t The ezaminaiioii of aqpased persons is often attended with an atmse,
whiob has procared the Bng|Uh system many partisans, even on the Continent.
A jadge, irritated by the resistance, evasions, and denials of the aceased,
becomes his opponent, harrasses him with questions, strives to intimidate him,
or to snrpiise him by quibbles, subjects him to a species of torture, and, firom
self-bve, engages in a contest in which he loses his character of impartiality.
All this seems to imp!y that confession is required ; yet confession is not neees-
sary ; it is the whole mass of circumstances proving the fact, and not a con-
fession, that ought to be the object of the investigation. The examination of
the accused should be con6ned to cases where there are gaps in the evidence,
which his answers* whether true or false, will. help to fill up. If every thing is

g roved without him, and he has nothing to say in his defence, why examine
im? I do not wish to exclude this instrument, but to fix the proper mode of
using it

In following the proceedings of our court at Geneva, I have seen cases, in
which; if it had not been allowed to examine the accused, it would have been
impossible to convict him. He was not required to confess ; but anestimis
were put to him, which coalrmed the other testimonies, or led to the discovery
of new evidence.

246 A TRBATI$B ON

TESTIU0N7 THAT MAY BE REQUIRED — COMMUNICATIONS ilADS BY CLTSNTS TO
*' ^ ' ' THBIB LEGAL ADVISERS, THEIR COUNSEL, OR ATTORNEY. '''

' ^ Quepthn. Caaa lawyer be compelled io disclose f^qt^ (w)ietb^r
thei case be civil or penal)^ which would b$ iujurtou9 to bis client ;
or, if he be wjiliag to disclose them^ ought he b^ allowed to
flo.so?

Answer. Yes. Why should he be exempted ? Wh^% real evil

' can result from this obligation ? l^one whatever ; unless it is an

evil to subject a man to punishment who deserves it> or to impose

on him an obligation to perform something which His Jiisduty

. to do.

We have seen what those considerations are which protect reli-
gions confession i bttt none of them is applicable to th^ case in
hand. ' ,

Who can suffer from a lawyer being compelled to give b^ evi-
dence? Can an honest and innocent client suffer ? Assuredly nof ;
having committed no crime, and intended no &aud> there is neitber
fraud nor crime to confess.

The depositairy of a religious confession had no interest in the
success of the crime; his character^ as well as bis duty, calls on
him to prevent it ; his personal reputation is increased by the sahi-
Uiry influence of his advice.

Can the san^e be generally said of those who lend their services
indiscriminately to all causes, just or unjust, and to all clients, inno-
-cent or guilty ?

When the lawyer employs his superior knowledge to discover
. means of escape, and, subterfuges which may save the guilty from
the punishment which he deserves, or to conceal, by his artifices, the
[ dishonesty of his client, and procure it a judicial triumph ; ought
he to be considered in any other light than as an accomplice after
. the fact ; with tbis difference, that accomplices, properly so called,
. are blinded by passion and danger, wliile, on the part of the lawyer,
tfiere is an utter indifference to gbed and evil, dexterity in ma-
naging weapons both of offence atid defence, and absolute impunity^
even when he uses them most injuriously to the community ?

There is a maxim always taken for granted in the conduct of
the javi^yers of whom I s^eak, viz. that right and wrong, justice
and injustice, are things which they themselves hiave created, and
of which they may dispose at their pleasure; that they have nothing
to do with the real effects of the decision of the judge ; that tbe

decision itself is the rule of right and wrong ; and that the breath
of its mouth makes virtue vice^ and vice virtue.

If it were not so, how could men, who profess the ordinary mo-
rality of society, look on themselves ias having a patent to offjsr
their assistance, and most solemnly promise secrecy beforehand to
every one who will make them confidants of a crime, or associates
in a fraud?

But what f Betray ! — Betray me^s client !

A dep6sit is a species of contract. Whatever be the contract^
what will be the consequence of the law authorizing or enjoining
its violation ? "Why, the contract will no longer be made, or, if
made, it will not be observed. But if .the contract be injurious to
society, is it desirable that it should be made or observed ?

Will a contract, which would be mischievous between any other
parties, change its nature, and become a proper one, when one of .
the parties is a lawyer ? In the case of a theft, or any other crime^
committed by a number of offenders, surely it was never under-
stood that any regard was to be paid to the engagements, whic|i
they might have formed among themselves, to insure their common
success, or mutual safety. Why should any higKer regard be paid
to the engagements, with legal practitioners, into which, after the
fact, these very criminals may have entered to aid their safety?
Why should the relation of accomplice, which is not respected in
the one case, be respected in the other ?

Do you wis|i to prevent a pernicious contract? Peclare^ that, \f
^ade. It shall not be fidfil^ed.

It is the interest of society, that honest engagements should be
observ€;d^ and dishonest and hurtful engagements violated.*

CHAPTER Xm.

nlTBLLBCTITAL INFIRMITY, IKTBRBST, AND DISHONSSTY) CONSIDSRCl^ A8

REASONS OF EXCLUSION.

' Thb alleged cause of exclusion in this class of cases is, the feftt
of decieiving the judge by the operation of a fallacious cause ; in
other words, the exclusion is considered to be a security against the
error to which the testimony might lead.

* Admit this bpinioa of Mr. Bentham, it is said^ and the accused have no
long^er coanset; ihey are sarronnded by agents of justice and the police;
against whom they ought to be so much the more upon their guard, as no man
of a noble or elevated mind would stoop to such an employment. T^iey are
^maViy- sfvies and informers j^laeed foend the accused. This is id suppress
t^ def^npo entirely. The qaestion ooght to be. examined in thU new shape.

24S A IVBATiU ON

i

I. Jkadledfud Infirmiiy.

. This comprehends mental derangement^ minority^ and .extreme
old age.

The discredit thrown on testimony by these different circum-
stances depends entirely on degrees ; that is^ oh the state of the in-
dividual, or what is called, in the language of art, idiosyrneracy. But
these degrees can be ascertained only by an* examination of each
particular case ; exclusion, applied as a general rule, cannot but be
injurious.

, Is it to be presumed, that a judge, in an open court, and under
the security of judicial discussion, will admit a testimony bearing
the marlcs of imbecility or incapacity, and . will allow it an influ-
ential operation on his decision ? If it be said, that, though the evil is
not probable, still it is possible, and that the safest way is to obviate
it by excluding such dangerous evidence,— I answer, that the mere
possibility of error proves too much ; for the judge may likewise be
deceived, and unfortunately is too often deceived by evidence which
cannot be refused, and which no system of jurisprudence has ever
excluded.

II. Ex<)huion on accomt of interett tn the caute.
■ If interest, taking the word in its most general sense, is a suf-
ficient reason of exclusion, we must infer, that all testimony, pro-
ceeding from a human mouth, ought to be excluded.

Were there no interest, that is, no motive, there would be no
testimony. If onp sort of interest produces false testimony, an-
other furnishes securities against error, and produces credible
testimonies.

When interest leads to deceit, it can act only by means of an in-
accurate and incomplete deposition; its direct eflFecton the witness
is, to give him an inclination to lie. But the falsehood i$ injurious,
only in so far as it passes for truth in the mind of the judge and
produces an erroneous decision. Now, is this a necessary, or even
a probable, consequence ? On the contrary, as falsehoods do not
combine well with the whole mass of facts, is it not to be presumed
that they will be discovered, and contribute to the information of
the judge as much as a true testimony ?

When the witness is under an influence which inclines him to
he, the more evident this interest is, the less dangerous is it for th«
judge.

. Is it a pecuniary intej-est? Its seductive tendency is. seen at.
once J Its strength may even be estimated by the amoiiBt of the

JUBlCIAt KVIDBNCB. iU^

sum^ or the rank and character of the witness. Is it to be presumed
that a man will sacrifice his conscience, and endanger his reputation
as an honest man, for a gain which is as nothing in compaiison
with his fortune ? This is the sbi*t of interest which has been, made
the reason of almost all the exclusions known in English law. Love,
properly so called, the love of power, friendship, hate, and all the
other passions of the human heart, seem to have been, reckoned
undeserving of the same precautions. It might be said, that English
lawyers, in estimating the danger, made no account of all these
'motives. Pecuniary interest is apparently the only one whose in-
fluence they recognize. This is a fragment of the barbarism of
ancient times.

The greatest singularity is, that the same law, which rejects a
witness on account of the most trifling pecuniary interest, admits
the evidence of an accomplice in the most heinous crimes. Now,
this accomplice is brought to give his evidence by the promise of
a pardon, which substitutes life for death, and frequently with the
addition of a recompense which exceeds the gains of a whole year's
labour with persons of that class.

In a case of this nature, all the reasons for exclusion are com-
bined, and each of them in its greatest strength. The personal in-
terest is the highest possible ; the villainy is of the blackest kind,
and declared before the whole world ; the result of an erroneous
judgment to the accused is no less' than death, and there is no ap-
peal from the decision. Yet this testimony, marked with all these
characters of reprobation, is admitted ; and the longest experience
has furnished no reason to believe that it is dangerous to admit it.
What is the security against it ? What we have just pointed out ;
the obviousness of the seductive interest, and the proportional de-
gree of distrust in the judge.

Td justify these exclusions, it is said, that the law is founded on.
this distrust. 1 acknowledge it ; but in this, exceiss is dangerous.
To reject as unworthy of credit the evidence of every man who
has any pecuniary interest, even the most trifling, in the cause, is
a debasing and injurious distrust, which supposes men to be worse
than they are, according to the usual average of morality.

What logic can exclude any evidence where such evidence is
received ?

Follow the ordinary course of life. It is not possible to form or
conduct any enterprize without drawing information from persona
who have some interest, and even a pecuniary interest in it, just as
strong as that of any witness who appears in a court of justice;,
and the private individual who gives this information, is far fh)m

bein^ T)nc)er Uie i^tQe restrajo^ to present \iim ^m jihssid^ the
iboundarv o/^rut^. He is not exposed either to the sh^me or the
punishiheut of fialse testiimony. It is tr^e^ likewise^ that |)eopie gene-
rally complain^ that they have been deceived^ and ii^ye rarely been
told the exact tri^tb by interested persons. But ^o judge from the
genei*al confidence with whicl^ such information ^ soi^gbt after^
experience is in Jfavour of honesty. As instai\ce$ of dishonesty are
comparatively rare, they excite more attention j 9S tbose in which
the information is correct are more ordinary, no account is kept of
them. It follows* that, when we admit, in courts of justice,' the
evidence of personst who have an interest in the cause, we are not
following a merely theoretical and speculative idea; we are acting
on common experience— an experience on 9, hir^e scale — a scale
which embrac^ the whole of humai^ life.*

Ifl. Exclusion au account of dishonesty.

. After the consideration of interest, comes tb^t of disbonesty*
This is the natural order. Why? because dt^QPeaty leads the
witness to lie only by the medium of some interest. £ven the least
t|pright of mep^ when h^ i^ not under the influence of some sedu-
cing interest, and is surrounded by t^e riestraints of tl)e l^w, and
exposed )x> the shame and punishment of false testimony, will not
he so mucfi his own eneii(iy, as to commit a dangerous cri^ine with-
out any view of profit.

J^ot, it will ^e said^ when dishonesty is. recognized and proved
judicially, and already displayed in ialse testimony, ought it pot to
be a reason for exclusion ? Can a man, who ha$ been bj:anded
with peijury or forgery, he admitted to the honour of giving te»ti-
2nony ? Citn he deserve any belief? Is not the reprobation, which
rejects such a witness, an universal septiment?.

«

I answer, that the more suspicious the testimony is^ the Jess
dangerous it is; it is sufficient that the previous offenqe, which^e*-
grades its credibility, is laid befpre the trihimal* Itisnotttohe

~— * p^ — -^ — ' — -* — ' — -^•■. ■ . . ' . .J , . ■ ... . . ..

* The old jarispradence of FraDce contained a rule v6ry inconsistent with the
nataral mode of proc^diird'. If Ahe person who had ^ven information bf a
crime, afterwards appeared as a witness iq the trial, he was rejected. The
Informer could not be heard oh the facts of the case ;' that is, the only person
who could give information was not allowed ta open his month. If tlie DriaH<^
nals had as mnofa ingenuity as their JuAj^es, t^ia arrangement furnished them
with a very easy mode of escape. If the most fortnidabfe witness against
them wf^i ioclfaied to do tfiem' a service, they had only to send hiin to give Uh
formatton.to tiie officer^ of iusticMO, and t|^is shut his mout^.

' I d6' imt believe IJiat this rule is to be found in the new judicial system of
f Mince r but it fia «a be fbund'in other tribunals, and is always to be refenre^
to % j;ape prin<9p|e of egK«laiiDn--the sop^ei iateiAAt of «|9 ^itnoM. '

JUDICIAL BVIDBNCE. 251

feared^ fhi^t a witness^ with such a pjrejudice against ^im| will job-
tain, from a jury, for example, too much confidence^ 'Nothing
less' than a deposition, clear, consistent, and falling in with all tile
other facts of the case, can produce conviction where it is opposed
by this species of counter-testimony, which arises from the charac-
ter of the witness.

Examine, likewise, whether his offence has been of such a na-
ture as to affect his' credibility in the case at issue. '|Ie may for-
merly have given false evidence, but it was in defence oi himself or
of some one who was dear to him. Does it follow, that, where he
has no interest, he will commit the same crime to endanger the
life of a stranger ?

The offence in question was committed in early youth ; but, fox*
twenty or thirty years, his conduct has. been irreproachable. Ac-
cording to the rule of exclusiop, his testimony will not be received;
according to good sens^, it is as admissible as any other; he has
even greater reason to avoid a second &ult, because ^e is an object
of distrust, and a relapse would add tb thd heinousness of his of-
fence.*

IV. JB^clHSton mt oecotml ofreHgiaus opinums.

When' a particular religious belief is made a reason of exclu-
sion, this belief is viewed 'as fiii'hishing d suspicion, or a proof of db-
honesty.

But this general presuihptidn is utterly void of foundation.
Among the infinite yariety of sects which maintain the m^st con-
tradictory and fantastic notions about the attributes of deity, there is
none which does not recognise God as the protector of justice, and
the guardian of those moral obligations, without whiqh society
could not exist. Ip a won], the errors of their understanding, dls*-
played in the very diversity^ oflheir opinions, contain nothing
which can destroy the credibility of their evidence.
. Take even atheism itself; however erroneous, or evendange-
rotis this doctrine |nay be, it furnishes no reason to suspect disho-
nesty. Why ? Because the avowal of an opinion so strange, and
so opposed to the universal feelings is at least a proof of sincerity
in the individual, a sincerity which may be awanting ui. those who
declare ^leir most ^nn adherence to received opinions, and who
declare it with the more confidence, because- \t is impossible to
convict them Qf the contrary.^

♦ I refer the reader to the Theory of PunisJmentSy sec. 7. Fortuitous ptmish"
wents, hwdrnmibHity^as a witncut wfaer^ tbe question is ^amiiiecl ia ^11 ife
bearin^s.-^ ^ .

252 A TRSATISS dH

Where religious opinion is particulariy interested^, and it is to.be
feared that this cause may lead to enmities or partialities^ the dan-
ger of error or falsehood in the testimony is so evident^ that the
judge must be blind to an extraordiuaiy degree^ if he does not re-
ceive it with extreme distrust.

In England, the evidence of a Quaker is admitted in civil, but
not in penal matters ; it is received where the necessity is small,
and refused where the necessity is extreme. If a woman of this
society suffers the highest of outrages, to revenge her virtue, shle
must abjure her religion. A miscreant set fire to his house, in
the midst of London, to defraud the insurers. A Quaker, a wit-
ness to the fact, appeared on the trial ; but as he refused to tfike
the oath,*it was necessary to let loose an incendiary upon society.
What absurdity! Are those who have scraples about an oath less
tenacious of veracity than others ? On the contrary, their very re-
fusal to take it arises from good faith. What occasions the rejec-
tion of their testimony, is precisely that which ought to secure its
admission.

CHAPTER XIV.

BXCLCSION OF PAROL BVIDBNCe IN RELATION TO CONTRACTS NOT

WRITTXN.

Wb have already seen, how much written language is ^superior
to spoken language in promises, engagements, and other matters
of conti'act.

But when an engagement, instead of being reduced to writings
has been entered into viva voce, ought it to be held null and void by
a court of justice ? Or ought ^aix)l evidence to be admitted— the
only evidence which can establish the fact of the contract?

Tliose who exclude parol evidence (as is done in English law)
do not build their exclusion on the quality of the witnesses: their
objection is founded on the very nature of the testimony ; that is,
on the imperfections of parol evidence, and the danger of being
misled by it.

Although exclusion on this basis seems to be better founded than
in the other cases, still it appears that it id too widely applied, or,
in other words, that an exaggerated conclusion is drawn firom the
principle.

One obvious consideration is, that the application of writing to
the preservation of evidence is comparatively of modem date. Be-
fore it was knowD^ every right, liberty, property, status, life itself.

JUBfCJAt BVIDRNCB. 253

depended solely on parol evidence. What, ^ere all judicial pro-
ceedings^ previous to written evidence^ unjust ? Was parol evi-
dence always false ? Did justice really follow mere chance ?

This consideration^ were there no other, is sufficient to make us
pause — to keep the mind doubtful — and to put it on its guard
against absolute exclusion.

What is apprehended is^ that parties^ by making use of false
witnesses, may give a fraudulent authenticity to contracts which
never existed.

Undoubtedly thi^ danger would be to be apprehended, if, in such
a case, we supposed the judges to bf of easy belief, instead of re-
quiring evidence so much the stronger, as the thing itself excites
suspicion.

Nothing but a well established combination of circumstantial and
p&rol evidence, can bring a court to acknowledge the validity of
such an engagement.

Suppose that an agreement has been verbally made in the pre-
sence of witnesses who are worthy of all credit, concur perfectly in
their statements, and iare willing to give their evidence publicity ;
does not the principle of absolute exclusion give a triumph to the
bad faith of him who wishes to draw back from his word ? Is it not
the law itself which crowns his dishonesty? This success in a no-
torious fraud, extends its immoral influence widely, and tells eve^
rascal, that all fmuds of the same sort are sure of the same protec-
tion-

The consequences of an erroneous decision would not be ^o un-
fortunate. Suppose that a jury, misled by a conspiracy of false
witnesses, has acknowledged the validity oif a pretended engage-
ment which never existed. Here fraud is triumphant; but the
error is not of such a nature as to justify a conclusion that it \vill
produce others ; if one jury has becfn deceived, another will be on
its guard ; it is only a passing evil, aiid confined to an individual
case ; it gives no encouragement to bad faith ; while the principle
of exclusion, by compelling the judge to leave a manifest fraud un-
punished, applies to all similar cases, and produces an irremediable
evil.

It appears to me, that, in this case, as iii others, nothing but good
would arise from - substituting, for the principle of exclusion, the
legal declaration of suspicion, as attached to verbal engagements.

But, it will be said, when it is known that such engagements
are null, and that judges will not sustain them, it follows that they
will not be made at all, or will be made only from isome uncom-
mon degree of impudence.

2^4 A TiisATisIs w

But tliose who argue thus, ibrgfet, ttiat legal provisions of tliis na-
ture are never sufficiently g^enerally kiiown; l^astot'all among tliose
peaceful classes, who are strangers to business, and who Always act
with most uprightness and good faith. Besides, there are many
occasions on which it may be necessary to make v6rbal agreements,
and on which rascals could easily lay snares for simple men. S

The moment a case of this nature com6s before a judge, let him
inform the party who may be attempting a fraud under the pretext
of a verbal agreement, that such, engagements are marked with
suspicion in the eye oif the law, that they are subjected to the most
rigprous investigc^tion, and the witnesses to a public examination
and cross-examination. This precaution ivill generally be sufficient
to make a rascal give up a fraudulent project, on which he sees the
court has its eyes open.

II. Let us proceed to another case. There is a written cdntract;
but, conjointly with this contract, ^ there were certain conditions
verbally agreed on between the parties, which have not been writ-
ten down, and are a sequel of the contract. They are additional or
explanatoi7 clauses, oh which the parties came to a friendly un-
<lerstanding, and of which, perhaps, they, never thought, till after
the deep was executed. The written part is the prlnci'pal matter ;
tjie verbal part may be considered as the accessory matter. .

The question to be examined is this : Ip case of dispute^ ought
parol evidence, in relation to the unwritten accessory clauses, to be
excluded ? . .

, It must bC; supposed, that the contract, without thpse clauses,
would be incomplete; that it would not, be conformable to the in-
tentiQu of the contracting party who insists upon them,^ but would
be for him ap injurious and fraudulent engagement.
. There is still less reason to exclude the parol evidence in this
ea?e, than in the former. Why ? Because there is less danger of
the judge being misled as to the truth of these accessory conven-
tions.. Are they in the spirit of the written deed ? They wi}l bear
on themselves their character of probability. The degree of their
importance is equally manifest j only a moderate degree of discern-
inent is required to judge of the motives which induced the parties
ta omit them, in the written contract, if they really existed. .

The judge, will say to these , parties : " You have qontracte.d iii
writing; you. kpow the importance of this mod^ of fixing your
agreements ; how improbable is it, then, that you should have made
^pnsiderable chaujges in this very contract under so impVfect and
fugitive a form as mere words ? How>can you pretend to have
made a verbal agreement of such a nature, wliicti it was so easy to

1

insert it in the deed itself? Do yoii not see. that the clause which
fou wish to prove by witnesses^ is contradictory to those in the very
deed which you have signed ? "

Th^se observations present themselves so naturally^ that they put
the judge, so to speak, bejond the reach of surprise. , ,

It follows, that, in these cases, the reasons against the exclusion
evidence subsist in all their strength, and the reasons in.
favour of e:2Cclusion are weaker.

CHAPTER XV.

SECURITIES AGAINST SUSPICIOUS TESTIMONY Ott INFER lOA EVIDENCE.

Throughout the whole of this work, this practical conclusion
is perpetually recurring : Do not exclude any evidence or testipumy
merely fiom the fear of being deceived.

Indisputable, however, as this principle is in itseli^ it is so new,,
and so contrary to the prejudices and habits of lawyei*S5 that all I
may have to say on the precautions to be employed, will appear to
them to be but a very weak remedy in comparison with th^ evil.

What I have to say regarding suspicious witnesses^ is equally
applicable to inferior evidence — evidence much les§ worthy of
credit than that which has all desirable securities — but stijji a s^e- •
cies of evidence which, in many cases, could not be excluded
without doin^ injustice, and which, from necessity, hsis bepn gene-
rallv admitted.

The danger attending suspicious testimony and inferior evidence
has, m general, been exaggerated. The exa^eration, rests on ^n
unfounded supposition^ that the danger of being deceived on ,the
one side was. proportional to the danger of falsehood on the other.
It was forgotten, that the inferiority of such testimonies and evidence
is sufficiently manifest to put the judge on his guard, and make it
difficult to. deceive him. '

Still, as the apparent inferiority of such evidence .may not always
coincide with its real inferiority, and may not appear \n the si^me
light to every one, the legislator ought to omit ao precaution which
the nature of the thing admits, in order to reduce the danger to its
lowest term.

The following are the provisions which I would propose for this
purpose: . /

h At the opening of the cause, the parties^ beipg both pneaent,
shall be exaA^ined as tp the nature, of the eyldepce which they intend «
to adduce. This is an indispensfible preliininary in every good foim

356 4 TUATISB ON

of prpcedure. The state of the evidence being thus well known
from the very beginning, much light is thrown on all the subsequent
operations.

2. A code of instructions concerning the value of evidence.

By this I mean a body of instructions^ sanctioned by the legis-.
laturcj and addressed to the judges, to serve them as a guide.

It has been already explained, how the principle of mpicioit ought
to be substituted for that of exclusion.

This code of instructions, will bring under the eye of the judge
all those circumstances, which, by diminishing the value of a testi-
mony, ought to excite suspicion, and, consequently, circumspection
and caution.

It will point out the cases in which inferior evidence ought to be
excluded ; where it is admitted, it will enjoin that recourse be had
to superior evidence whenever it shall be practicable.

Fortunately, it is not necessary to have recourse, in this, to the
authority of government, to frame instructions aiming at the same
object. To explain the nature of different kinds of evidence, and
form a scale of their' respective degrees of proving power, is doing
judicial logic a service, the utility of which is independent of the
sanction of the legislature.

3. Arrange the judgments pronounced according to the nature of
the evidence on which the decision proceeds.

The classification established in this ivork might be used to ar-
range the different species of evidence under their respective heads.
In such Of such' a case, the plaintiff's evidence was of this or that
kind (direct parol evidence, pre-constituted evidence, casual writ-
ten evidence, hearsay, &c.) ; the defendant had no evidence, or
evidence by confession, &c. • -

With a nomenclature thus constructed, the ranking of every
piece of evidence under its proper species, would be analogous to
that grammatical exercise which consists in ranking wqrds under,
the generic terms of substantives, adjectives, verbs, &c.

In an official register, all the cases would be arranged under ap-
propriate headf : 1. So many cases in the course of a year; 2. The
number of cases in which suspicious evidence (designating its
species) has been admitted ; 3. The number of cases decided in
fevour of the party addncitig this evidence.

This number would not be great. In contracts, in general, the
cases in which^ their authenticity is disputed, are very rare, when
compared with those in which it is not denied.

The number of those, which are attacked on the ground of the
omission or undue execution of some legal form^ is much greater.

JUDICIAL KVIOBKCE. 257

Tbe system of registration ^hich I pi'opose, would shew at once the
proportion between these different sources of litigation.

It would likewise be seen, what is the maximum of evil which
can result from the admission of all sorts of evidence; for it is plain
that the evil cannot lie in the mere admission of suspicious evidence^
but must lie in the influence which it exercises on the decision of
tbe jndges.

For example ; a hundred cases have been decided in a year. In
bow many of these has the decision been in favour of the party who
adduced inferior evidence, and in how many has it been against
him ?

It is easily seen that such a table would be not merely an object
of curiosity, hut a great source of information.

4. Where a judgment is necessarily pronounced on inferior evi-
dence, tlie judge will exact security for restitution, in case the los-
ing party can produce, within a given time, positive evidence of
his right.

5. Such cases furnish a peculiar motive for presenting an appeal
on this special ground, or for referring the^cause to a higher tri-
bunal, even without a provisional judgment.

It seems to me that, with these precautions, the system of ad-
mitting every sort of evidence would be attended wilti very little
danger, and, above all, with infinitely less than the system of ex-
clusion-^that hasty, violent and unreflecting system, which neces-
sarily brings erroneous decisions in its train, whenever the evidence
excluded is the only evidence which one of the parties has to
adduce.

CHAPTER XVI.

' THE ONUS PBOBANbl : WHO OUGHT TO BBAR IT ?

On which of two contending parties ought the obligation to
furnish the evidence to be laid ? Under the system of technical
procedure, this question presents infinite difliculties.

Under the system of plain and simple justice and natural proce-
dure, there is nothing easier than to answer it.

The obligation to furnish the evidence ought, in every case, to
be laid on the paity who can fulfil it with least inconvenience, that
i;s!, with least-delay, expense, and vexation.

But how are we to ascertain which of the parties is most favour-
ably situated in regard to the evidence? In« technical procedure,
there is no way of getting at this information; all means of reach-

s

258 A TREATISB ON StmClAL kVlDUVtE*

ifig it have been cut off. In the natural mode of procednre, this^
^8 well as several other points^ would be easQy ascertained on the
fim appearance of the parties before the judge.

But. it will be said^ it is the business of the party who begins
the suit, who makes the allegaiiony to prove its truth. This apho-
rism is obviousj and, apparently, very plausible. But, plausible as
it is, experience has proved that the more strictly we follow it, the
farther ik leads us from the end to be gained, and increases delays,
expense, and vexations. In a word, this aphorism has creiated
more difficulties than it has solved.

Under the natural system, the allegation is itself a proof, so far
at least as the witness who comes forward as a direct witness, in
relation either to the principal &ct, or some proving fact, is the
party himself.

But, in general, the allegation of a party has not the same force
as a similar allegation coming from an external witness ; and it is
ju a still greater degree inferior to a similar allegationr coming from
the adverse party, or even to a simple admission of the fact op-*
posed to him.

In this point of view, the contrary of the aphorism is timer than
the aphorism itself. If the fact in question has come to the know-
ledge of the adverse party, it is from him that the evidence ought
to come 3 it is from him that it can be drawn most easily and cer-
tainly.

Still, it must be allowed, that the plaintiff is the party principally
interested in furnishing the evidence. Why P Because, if his alle*
gation is not believed, it is on him that the troublesome conse^
quences of his failure will fall.

It is always, therefore, the plaintiff who first presents himself to
notice ; it is he who runs the greatest risk. Why ? Because it is
always expected that he has something to prove, and, if he proves
nothing, be cannot escape without some loss greater or smaller,
^ut the defendant may come out of the contest successful, without
having proved, or even tried to prove, any thing, without having
done more than formally to deny the proposition of the plaintiff.^

* The defendant allows that he borrowed money from the plaintiff, bot alleges
^ tbat lie repaid it: the proof lies with him.

259

BOOifC VIII.

OF THE. IMPROBABLE AND DVtPOSSiBtiE:.

CHAPTER I.

PBELIMINARY NOTIONS.

y

BEFORE entering on the investigation of the improhahle and tm-
passihhj one of the most difficult subjects on which the human 'un-
derstanding can be employed, it is proper to premise, that I shall
confine myself to what concerns judicial evidence. The question
is, Why, and how far, ought a court of justice to reject certaiii
fects, supported by direct testimonies to any amount, and of any
degree of strength, merely on account of the improbability, or pre-
tended imposl&ibility, of the facts themselves ?

The persons who use these terms with absolute confidence will per-
haps be astonished to find, in the sequel of this discussion, that the ar-
gument deduced from them is, after all, merely a modification of
circumstantial evidence ; that, in particular, there is no criterion by
which to judge of the impossible; that, tO define !ts nature, is be-
yond the reach of the human understanding ; and that, whoever
uses these terms, in their strict sense, asserts nothing less than
his o^vn infallibility and supreme knowledge.

Philosophically speaking, therefore, this presumptuous expression
ought to be discarded ; but, if popular language compels us, so to
say, to make use of it, it ought never to be forgotten that, in regard
to judicial facts, impossU)le can only mean, tn the higliest degree im-
probable.

This doctrine does not go to establish either blind credulity, or a
dangerous degree of pyrrhonism. Reason, proceeding on the d^ta
furnished by experience, is capable of appreciating the different
degrees of probability, and reaching that point of likelihood which,
in ordinary language, has received the name of moral certainty.
The light by which we walk does not manifest to us the first prin-
ciples of nature, or acquaint us M'ith the utmost limits of her
power; but H is sufficient for guiding our judgment in the ordinary
ti'ansactions of Hfej and judicial decisions rest on the very same
found^ioq,

%

260 A TRBAT16B ON

A fact is incredible. Let us stop at this term^ and enquire what
passes in our mind when we make use of it.

I hold a fact to be incredible, when it appears incompatible with
another fact, the existence of which has been proved to me.

Let us apply the terms incredible, improbable, impossible, to two
distinct species of assertions.

1. A fact is affirmed by a witness; the defendant does not adi-
duce any opposing testimony; he contents himself with saying,
that the fact is in its own nature impossible. I am accused of ma-
gic, or witchcraft ; it is alleged that I made myself invisible, or
forced a devil to enter into the body of a nun ; such accusations
refute themselves, and it is unnecessary for me to answer them.

2. A fact is affirmed by a witness. The other party does not
pretend that the alleged fact is in itself impossible; but he pi'etends
that it is impossible, because it is incompatible with some other fact,
which he can prove by testimony of greater weight. He says, for
example, that he cannot have committed the crime in question, be-
cause it is alleged to have been perpetrated in London, while, at
the very time, he was in York, two hundred niiles from London.
This forms the case known under the name of an alibi.

In the first case, the defence is, that the supposed fact is incre-
dible, because it is incompatible with facts which are notorious,
which are known to the judge, aqd which, therefore, it is unneces-
sary to prove.

In the second case, the defence is, that the supposed fact is in-
credible, because it is incompatible with facts which are proved by
a preponderating weight of evidence.

In the first case, the impossibility is intrinsic; in the second, it is
conditioncU; if such or such a fact be true, this other fact, possible
in itself, cannot be true.

CHAPTER IL

THE IMPOSSIBLE CANNOT BB DEFINED : CREDIBILITY IS NOT ABSOLUTE, BUT

RELATIVE TO ^HE STATE OP OUR KNOWLEDGE.

Is there any mark, any criterion, by which impossible facts may
be distinguished from all other facts ?

Such a criterion, if it existed, would be of the utmost utility. It
would enable us to frame, for the use of the law, a catalogue of
impossible facts; and the judge, whenever an extraordinary fact
was deposed to before him, would have nothi|;ig more to do than

JUDICIAL BVIDBNCE. 261

consult this catalogue. If the fact in question was contained iu it,
he would reject the evidence without fartlier examination.

To find an indisputable mark of impossibility, to ascertain
some mode of measuring degrees of improbabiiity: on which all
mankind shall be agreed, is a discovery which hitherto hfts not
been made, ajid, peirhaps, never will be made.
. The opinion prevalent in our days is^ that a fact, which is ac-
knowledged to be contrary to the course of nature, ought not to be
admitted by a court of -justice, merely on the faith of human testi-
mony, that is, of testimony which is opposed by a preponderating
mass of counter-testimony.

To say that a fact is contrary to the course of nature, is to say,
that it is a violation of the known laws of nature. The question,
then, comes to be this. What is a law of nature ? What fs a viola-
tion of the laws of nature ?

^ . Law of iiaUire is a metaphorical expression, borrowed from th«
use of the word law in political language. To ascertain, therefore,
the secondary meaning, we must go back to the primitive signifi-
cation.

In politics, law means the expression of the will of a sovereign
power, a command emanating from some acknowledged authority,
and supported by the ordinary sanctions. The general result of it
is, a certain degree of uniformity in human actions, that is, in the
conduct of the individuals who are subject to this law; and, as hu-
man actions are events, a political law is thus a cause of uniformity
of event.

Amid the immense crowd of physical facts, which, while men were
in a state of primitive ignorance, might appear altogether isolated,
and independent of each other, there came to be observed a certain
constant and regular march, a succession %vhich was considered as
a series of effects, and, consequently, as depending on a cause; and
this cause has been named a law. Thus human knowledge, in pro-
portion as it obsei*ved, or seemed to observe, great degrees of uni-
formity among physical events, ranged them under the idea of laws
of nature.

Now, admitting the expression as thus explained, wc must neces-
sarily allow that the ideas entertained of the supernatural or im-
possible, vary with the state of human knowledge, and the degree
of intelligence possessed by individuals. In other words, the credi-
bility of a fact may be said to be relative to our intellectual condi-
tion and actual information. The ideas of possible and impossible,
probable and certain, are not properties existing in the facts them-
selves, but are only tendencies of our own mind, internal disposl^^

^$2 A TafeATlSB ON

. %l6tm which we feel when thinking of these fiiets { so thai a fitct,
which to one man appears necessarily probable, may, to another,
i^pear necessarily improbable ; and what, to a philosopher, seems
impossible, will, to a Hottentot, be not only possible, but certain.

Take a very ignorant person, that is, one who has the least pos-
sible acquaintance with the course of nattire. Saeb a {Person, on
the mere strength of a simple assertion, will believe every fiict that
, is affirmed to him by any one who, to a certain degree, possesses
his confidence-^supernatural as well as ordinary focts; th^ existence
of a devil or a ghost as much as that of a man ; the existence ot a
giant sixty feet high as readily as that of a dwarf of four or five
inches; the existence of a nation of Cyclops, with one large eye in
the middle of their forehead, as much as that of a people wiA two
eyes in their ordinaiy situation.
>^ Every nation has passed through this state of credulity just as
individuals do during infancy ; and some savage tribes are known,
who have not yet emerged from it.

* The travellers, who, in the fifteenth and sixteenth centuries, car<^
ried th§ productions of European art into the newly discovered
countries, found the inhabitants, in general, sufficiently inclined to
' believe, on the fi&ith of what was displayed to their eyes^ all that wai
told them concerning the wonders of our part of the globe; but
tills fiicility to believe was not wiUiout exception ; the anecdote of
the king of Siam is old enough to-have been mentioned by Locke.
When the Dutch, to whom he had appeared to listen with con*
fidence and pleasure, told him, that, in their country, water became
80 har4 in winter as to bear men and carts, like the solid earth, he
repU^ with a contemptuous laugh, and regarded tliem as impostors,
f^e progress which had been made in natural science at l4»is period
was trifling ; and perhaps the Europeans, who related these wonders,
were as ignorant as his majesty of Siam of the mode of producing
ice artificially; or were not provided with tiie materials necessary
to effect the transformation. The &ct was not conformable to the
course of nature in that state of things which observation mid ex-
perience presented to the king of Siam. His reason for reusing to
believe it, therefore, was just what we oursdves esteem the
strongest and most decisive for pronouncing a fact to be im-
possible.*

. * I once foiuid an English pbysician tl>e counterpart of the king of Siam.
In n company, the first experiment macie at St. Petersburgh of freezing mer-
cury, by means of pounded ice, happened to be meutioned. /The doctor de-
.q^i;ed, x^,a. tone of authority, that the fact was false^ and that* no man could
renew the experiment without exposing himself to the ridicule of being credu-
lous In the extreme. -

4

The solid^ the fluids and the gaseous states are now considered by
all chemists as the three states of which all bodies with whic}i wq
frp acquainted are susceptible^ according to tlie degree in which
they are combined with caloric. Although^ therefore, th^re may
pe many bodies which are not found in one of these states, y^t i^
new experiment, which produced such a conversion^ however un-*
expected and curious it; might be, would no more be thouj^t a de*
viation from the ordinary course of nature than the existence o|
water in the state of ice or vapour.

We possess few more curious fragments of antiquity than tjlia
history of the impostor Alexander, written by an eye-witness, by
Lucian, who, if not the most ingenious, is by ^r the wisest of the
Greek philosophers. This coryphaeus of the sceptics of paganism
could not have desired a better opportunity to laugh at the credulity
of the public, by exposing the legerdemain tricks of this celebrated
juggler, who, with no other assistance than a worm in an egg*sh^Uj
a tame serpent, and an ai*ti6cial viper's head, gave himself out as n
prophet, and chief minister of the god EsculapiQs* Suppose thai
a respectable witness had called on Lucian, and told him> *^ Yester"*
day I saw Alexander sailing through the air in a fikiff, and raising
along with him a globe at least thirty feel in diameter ; I followed
him with my eyes, till, as be was about to enter the celestial abode,
the immense distance rendered him invisible ; " how woutd the
sceptical philosopher have received such a witness } In all prpbabi-r
Uty just as the king of Siam did the Dutch travellers. But suppose
that Lucian himself had next day seen Esculapius and his favourite
ascend into the etherial regions, he would have been reduced to the
melancholy necessity of acknowledging his error, and admitting the
divinity of the serpent, or of borrowing some term, such as magic,
to cover the obstiuacy-of his unbelief, in his inability to justiQr it by
any solid argument.

In such circumstances, if he had thought proper to give an ac-
count of the' fact, how embarrassed would be have been ! The
greater his talent and sagacity, the greater would have been hi$
difficulty in finding a solution where he had no data. The Japa*
nese who witnessed at Petersburgh, in 1803, the ascent of Garnering
felt no such uneasiness ; it was a thing already familiar to their
imaginations. The fabulous stories of their sorccrei^ had prepared
them to look without astonishment on all that was extraordmary m
the serial voyage.*

. - , ..... ~ ^ . . . . • ■'»,•- ^-^ •

• There frere nine or ten of these Japanese. I stood near thj^ ^i tiie pomMf
©f the a»9pnt; and abseryed them'with the closest attention;. They appeared to

264 A TRBATI6B OV

When the Turks were shewn, in their own cajHial, the spectacle
of an aeronautic ascension, they were as little'surprised as the Japa-
nese, and neai'ly for the same reason. They satisfactorily explain,
by their ideas of magic or sorcery, all the wonderful facts which
may be related or shewn to them. Every follower of Mahomet,
high and low, is perfectly convinced that the art of magic is a com-
mon gift among those mongrels of mankind who call themselves
Christians, but whom the Turks designate only by the name of an
unclean animal. A people which sees the face of nature only
through the veil of the Alcoran, has no principle by which to judge
of the probability of facts ; every fact is equally conformable to the
laws of nature with every other. Their imagination, familiarized
to prodigies, confounds them with the usual order of things. The
Arabian Nights, if given as true, would be to them as good autho-
rity as any other history. But a fact which seems, or ought to seem^
to an individual to be incredible, in the actual state of his physical
knowledge, will cease to appear so when he is shewn its conformity
with some other fact, which, though not unknown to him, he bad
never considered in this relation.

The Siamese knew nothing either of frigorific saline mixtures
or of ether, the rapid evaporation of which would have been
suflScient for the experiment; but the Dutch might have con-
vinced his majesty by throwing a handful of nitre into boiling
water. The incredulous- monarch would immediately have seen
the liquid converted into that demi-transparent substance, which,
in the regions of the north, forms natural bridges, capable of
bearing the largest elephants across rivers ; or if, contrary to all
probability, the climate of Siam had not allowed this experiment.
Which, in Bengal, furnishes such salubrious enjoyments, vessels
formed of porous earth, and exposed to an artificial current of air,
would have produced as much ice as was necessary to convert the
fable into htstorv.

It would have been a more difficult task to have reconciled the
Greek philosopher to the apparent prodigy of atrial navigation. Yet
analogies might have been found. When some mighty power tears
up the pine from Mount Ida, and it is precipitated to the bottom of
the sea, you behold it immediately re-appear on the surface, and
float in tiiumph. You know the cause of this. A species of air.

. me to be so little surprised, that I begged tUeir interpreter to ask thetn, whe-
ther they had seen any thing of the same kind inJapab? They answered no ;
bat that noticing was more common among them ; and the reason why they had
not seen it was, that the sorcerers of Japan traverse the air only dniing the
night. *^

JUBICfAL VVIDBNCB. 26&

with which you are not yet acquainted, but which abounds in na-
ture, is to the air which we breathe what wood is to water ; lighter
in itself, it 1ms a tendency to rise till it reaches the level of its own
weight. Inclose a quantity of this air in a balloon sufficiently large,
and it will immediately cany tip, not only the balloon itself, but
likewise the cai- suspended from it, with its gods and men;
precisely as the pine, which has been plunged into the waves,
re*ascends rapidly to the surface, and raises along with it the heavy ^
bodies which may have been attached to it below.

Would this analogy have satisfied the sceptical and scoffing phi-
losopher ? Or would his reason, unwilling to yield, have insisted,
that hydrogen gas should be manufactured under his eyes ? To
answer this question, it would be necessary to know the particular
turn of his mind,4)is humour at the moment when this explanation
was offered to him, and what share irritation and self-love had in
his dispute with his adversary.

CHAPTER m.

THERE ARE NO FACTS ACKNOWLEDGED AS ABSOLUTELT INCREDIBLE : SOl^K

APPARENT EXCEPTIONS NOT SUCH IN REALITY.

It has. been established, that the credibility or incredibility of
facts does not depend on their own nature, but on the disposition of
our mind, that is, on the state of our knowledge ; so that at diffe-
rent periods, and in different countries, there may be ideas of the
possible and impossible altogether at variance with each other.
Hence it follows, that, among the facts >vhich may be the subject of
judicial investigation, there is not one of which it can be said, that
all men are agreed to regard it as incredible.

But, it will be said, even if this rule should be generally true, it
is not so univei*sally ; there are exceptions. For example; all
men, from the moment they know the meaning of words, agree
that two and two make four; they are unanimous as to the impos«
sibility of a thing being, and not being, at the same time, or of a
thing having existed, and yet not having existed.

I admit it ; but a proper degree of attention will shew that these,
and many similar propositions, do not contain any positive fact ;
all that they announce relates merely to the meaning of the terms.
)t is just saying, that a word, which is received in one sense, cannot
be received in a contradictory sense; it is just saying, that what is

y

f

^06 . A TBKATISS ON

inconceivable cannol; be conceived. Kveiy proposition directly op*
posed to any ibathetnatical truth Is of this Icind. He who says^ fiMr
example^ that two straight lines may inclose a space, does not assert
9 foct ; we cannot reply to him that he advances a &lse fact, for
there is no ^act in question; bi|t we may reply to him, that he is
using contradictory terms that he does not understand himself, i]jid
that he is multiplying words without ideas,

A. is brought to trial for having killed B. A number of credible
witnesses agree in charging him with the crime ; before the pro*
ceedings are closed, B. presents himself in court. The fiict of the
murder is instantly recognized as impossible, and this is a case in
which all men are agreed. So it is ; but it comes to this, that there
is here no fact at alL

. That the proposition, two and two make four, regards merely the
meaning of the terms, is a truth which is admitted as $oon as an**
nounced. Considering a certain number of apples as a whole, I
apply to them the numerical term four; when I consider them as
divided into two equal parts, I apply to them the numerical terms
$B0o and two. It is only a different denomination, equally agreeable
to the practice of the language ; it is not the enunciation of a fact.

But even if it were the enunciation of a fact, and of a &ct which
mght be the subject of judicial investigation, there is no reason for
maintaining that allmep would agree to regard it as certain. The
willf says Pascal, is one of the principal organs of belief. Bring fear
and hope into operation, give men a real or imaginary interest in
believing or disbelieving, Bnd there is no proposition, however irra-
tional, which may not be supported, supported not only by externa)
testimony, but with as sincere a belief as it is possible to have in
what we do riot understand.

In regard to the proposition in question, that two and two make
four', there has never been any intei'est in operation which could
induce men to deny it, or could produce versatility and incon-
sistency in language; but an example, which is the nearest possible
to it, would furnish a striking proof to the contrary. I avoid it,
however, because it would lead me into a subject which I ought
liot to discuss. It is sufficient to have proved by this example, that
there is no fact, real or nominal, which is absolutely beyond the
\ reach of controversy j a proposition, which is of the greatest
practical utility.

JUDICIAL BTIDENCE. Vtf

CHAPTER IV.

CONSEQUENCES OF THE PRECEDING.

Since it has been proved, that the credibility of a fact is, in
er^ry case, relative tp the disposition of each iadividual, it follows,
that, ia judicial controversies, tfc^ impi;pbabiUty of any alleged
4ftct will depend on the relative information of the judge, and con-.
$eqaently on the state of knowledge and civilization in the country
wbe]?e be acts. A &ct, which, in the age of Augustus, would n(>t,
^en by the best informed persons, have been reckoned, in B^ootia^
too improbable to be established by human testimony, would, at
the same period, have been considered impossible by men of the
(ame class in Rome or Athens. A fact which the learned men of
^bens and Rome might have believed to be probable, would be
classed among impossibilities by the learned men of Loudon and
Paris* . Every people has \X» own scale of ci*edibiUty, graduated act
cording to the state of its own knowledge. What do I say ? This
scale varies even in different parts of the same town. A story
wbidb would be readily believed in Wapping, merely on the foith
of public report, would not be believed in i>t» James's-sguare,
even on the faith of direct testimony.

There is a real progression in the inteUigence of an individual,
and in that of mankind ; how does, it go on ? Man becomes more
intelligent in proportion to. the numbef of facts which are deposited
in his memory, and the number of analogies which he observes
among them. Tnie analogies, being the same every where, have
a tendency to add firmness and uniformity to the principles of
bdiefl

, A mcm's di0position to be)ieve, that is, his disposition to believe
on onHoary testimony, and according to current opinions, dimi-»
nUbes as bis iatelUgence increase^. The more firmly facts which
are eonnected with each. other are united in his mind, the greater
is the resistance whidi he opposes to Uie admission of any fact that
militates against tins mass of evidence.

Men devoted to tbe physical sciences are generally, in this respect,
;it j;he bighesjt degree of intelligence in any given stage of civili-i
zation. It has always been from men of this class that extraordi-*
nary and improbable facts have experienced the most steady oppo-
siltion. Their aole object is to study analogies, to discover new
relations, and go back to natural causes ; and to know the laws of
nature, is nothing else Uian to class facts according to tlieir sioU^
larities and differences*

268 A TBEATISB ON

V

Those similarities, which, as I have said, are called laws of nature,
gradually obtaii) the highest degree of confidence, because all
phenomena come to be referable to them, and because our percep-
tions concerning them perfectly agree with those of our fellow
men*

. So soon as we have become acquainted with, and have learned to
express, one of these laws of nature, all the facts which depend
\ upon it mutually connect themselves with each other ; and every
fact that would be incompatible with these known laws, is received
with the distrust which we naturally feel towards inferior testi-
mony, standing alone, with evei7 sort of suspicion attached to it,
and opposed by a solid mass of testimony bearing all the characters
which can render it credible.

We have thus two very natural causes of the ancient errors of.
credulity : 1. Absolute ignorance of analogies between facts, that is,
ignorance of what we call laws of nature; 2. Ignorance of all those
principles which serve to discrimifnate the various degrees of cre-
dibility in testimony.

We ought not, then, to look upon our credulous ancestors as
having been more stupid than we are ourselves. They passed
through errors, and delivered us from them.

CHAPTER V.

«

Distinction between total impossirilit7 and im^ossibiutt in

BEGREK.

Facts, considered as impossible, may be divided into two
classes: 1. Facts fota% impossible; supposing them to be true,
they would be a violation of some evident and generally acknow-
\ ledged law of nature; 2. Facts impossible 4n degree— facts which

are true, and perhaps of daily occurrence, to a certain extent, but
false in the degree ascribed to them by the testimony in question.
To a certain point, they are ordinary facts ; beyond it, they are ex-
traordinary; but to fix absolutely, in this scale, the point at which
impossibility begins, is an operation that surpasses human intelli-
gence.

To give a complete catalogue of facts totally impossible, would
be to give a complete catalogue of those general observations
which have received the name of taws of nature;' this is beyond
the limits of human knowledge, in its present state. But all known
bodies have certain common properties— properties so well esta-

JUDICIAL KVIDENCB. ^ 269

• ' . '

blished^ that any direct testimony to a fact which contradicts them
may be rejected on the simple ground of impossibility.

No body cmocatpy two different places at the same time. This is
so : evident^ that any fact which supposed the contrary, would be
such a violation of an universally acknowledged law of nature, as
no podtive testimony, whatever might be the number of pretended
witnesses, could possibly establish in a couit of justice as true ; at
least, not in France or England. Thus an alUny when once proved,
furnishes the most satisfactory evidence of the innocence of the
accused.

But let us suppose, that, in England, the greatest space that has
been known to be traversed in twenty-four hours, is two hundred
miles. If a person, accused of a crime, has been seen, within
twenty-four hours of the tinie when it was committed, two hun-
dred and twenty- five miles from the scene of the crime, this would
be a question of degree ; it would not be a notorious violation of a
law of nature ; it would only be a deviation from its ordinary course.
The judge might say, ^' Iti all the cases of i^peed which I have ever
obi^erved ][here it is perception), and in all that I have ever heard
of (an indefinite mass of extrajudicial testimony), there is none
which goes beyond two hundred miles in twenty-four hours. The
alleged fiict, then, is extraordinary, and so extraordinary, that, in
spite of the positive testimony of the prosecutors, it is improbable.
Mistake or falsehood on their part is less improbable than this de^
gree of speed, whibh goes beyond all experience. I conclude that
this man is not guilty of the offence imputed to him. "'

There would be no absurdity in inserting, in a course of law^
and, above all, in a treatise on the judicial art, a summary of the
laws of nature, as applicable to different questions which may arise
before judges ; but it ou^ht to be presumed, that the men, who are
elevated to high judicial functions, have passed through the schools
of philosophy.

CHAPTER VL

facts wuich are deviations from the acknowledged laws of nature

(faits deviatifs).

When we proceed to this class of facts — facts which are the
more incredible in proportion as they deviate farther from the ordi-
nary course of nature, we encounter the same difficulty in tracing
the line of demarcation, between the credible and the incredible;
it is a b'oundU^s octan,.on which we wander without a compass to

370 A TRBATISB OK

guide us. How shall we limit the modifiesHious of mAttet ? Taki
any one of those species of men of whom niny and MandeviUe speak
as having really existed % who can af&rm tbAt Sfuch beitigB h&ye not
existed in certain places and at certain periods ? Is there any ihiilg
absolutely incredible in the Assertion ?

If you consult anatomists, they will perhaps discover eertaiti ana^
tomical ineompatibillties in the existence of such a species ; but
will not their decision be too hasty ? Paint angels with the wings df
a gooige, and the devil with the wings of a bat ; an anatolnist, Jc^dg*
ing from what we know of birds, will tell you, that the use of such
wings is inconsistent With the gravity of sUch a body as ours. Very
true ; but what becomes of his argument if the body be Ifgtiler, or
the muscular power of the wings greater ? What would he say ctf
the insect which springs fifty times as high as itself*

I have before me a copy of the Chronicle of Nflraberg", which
tjontdins, in twelve folio plates, representations of twenty-one spe-
cies of men, or, in the usual mode of expression, twen^-one tti'on-
fitei*s, taken frpm Pliny and other authors. Soit^e of them appear to
imply anatomical inconsistencies ; others have really existed ; $onl^
of the rest have existed in a certain degree; the eye of the Cyclops^
for example, heads with horns, supernumerary arms and hands, and
'double bodies. Still, in these cases, the fact is an individual o^
and does not extend to the species. What is a species?, however, tidt
multiplied individuals? In the case of the ihanwho was armed
witli prickly quills, like a porcupine, it might have been thought
that the deviation was only in an individual ; but it was found to
extend to a whole race.

Gulliver, on his return from Lilliput, placed some specimens df
the bulls and cows of that country in Greenwich Park. Notwitji*
standing this permanent evidence, some bishop or another, men-
tioned by Swift, chose to treat the whole story its a faMe \ yet the
museum of Sir Ashton Lever, in London, contained hoi^ned animals,
well formed and arrived at their full growth, nearly of the same size
with those of Lilliput.

The incredibility of any given fact diminishes as its distance in-
creases; that is, we believe more readily what is related 6f a distant
country. But why does distance diminish improbability ? Imagi-
nation has some share in it, but reason, too, has her's. We know
that what surrounds us is not to be the standard of our judj^ment
concerning every thing; singular facts, which at first surprised ti9,
have turned out to be true, and this experience prevents us from
deciding hastily on what we do not know.

Were it announced to us tb^t giants or 'pigmies bad l^en db-

JUDICIAL MVmBNCB. 271

covered la some part of Europe^ we would hot believe It^ because
we know that Europe contains nothing of this kind to be disco*
vered 5 but the discovery of a variety of the human species 10 New
Holland would be less incredible.

If, previous to the discovery of the kangaroo and brnitborynchus,
a paragraph in a public journal had spoken of these anitnals as e±^
isting iu the mountains of Wales, the first idea would have been to
regard the statement as false or inaccurate^ and the second^ that
these animals had been brought from some foreign country, and
accidentally set at liberty.

From distance in point of place, analogy naturally leads us to
distance in point of ^tme. Here, however, imagination and reason
oppose each other. Imagination tends to diminish, and reason to
increase, the incredibility (I mean the relative incredibility) of the
fact. In time, as in place, the more distant the scene of the fact,
the less distinct i$ it to the imagination.

When the question regards the actual world, even the most un-
restrained imagination is confined within certain limits ; the most
credulous knows that he has never seen ghosts, devils, feiries, or
vampires ; but the darkness of the past, and the indistinctness of
distance, do not furnish the same means of comparison, and he may
believe that nature was governed by other laws.

Reason, on the contrary, has a tendency to increase our distrust
of every thing relating to ancient times, which depends on testi-
mony. The farther we trace back the career of experience and
civilization, the greater is the inaccuracy and falsehood of historical
tradition, till at last we reach the age of pure fable. In these ancient
times, fable is blended and confounded with history, as, in the dis-
tance, mountains are blended with the clouds. In this respect,
there is a sensible analogy between the infancy of the species, and
the infancy of individuals at that age wheir dreams are confounded
with realities.

If the influence of these ancient errors were confined to the past,
they might be omitted in a treatise on judicial practice; but, un-
fortunately, these erroneous facts, no less pernicious than fabulous,
planted in the imagination at a time when human reascMi was still
subject to every species of illusion, have taken deep root, atid send
forth poisonous scions, which have an inherent tendency to increase.
If Blackstone partly refuses his belief (and it is only partly) to the
sorcerers of modern times, it is merely because they are not stamped
with the seal of a sufliciently remote antiquity. Had they borne
on their heads a few additional centuries, his doubts would have
been converted into certainty j and who knows but th^t fh 'tfmej

272 A TRBATISE ON

and in certain circumstances, the imagination of some successor o^
this celebrated lawyer may beget on the spectre of the .witcii of ^
Endor, a new pipgeny of magicians and sorcerers^ who will call up
infernal spirits, and restore the reign of phantoms and terror ?

Honour to those enlightened theologians who have consecrated
their elSTorts to destroy this principle of superstition ! Benefactors
of the human race, they have declared war against its enemies,
and combatted . those terrifying prejudices which troubled the re-
pose of night, and the peace of the cottage. It is thus that several
of them have converted those possessed with devils into maniacs,
and have stripped the witch of Endor of her mysterious power.
Van-Dale rendered the same service to reason by his treatise on
oracles, where every tiding is explained by a system of fraud, and
demons turn out to be merely priests.

In fact, the various generations of the human race, in all the
different degrees of civilization, are sdll, so to speak, before our
eyes; in our antipodes we see our ancestors. In Japan, sorcerei*s
still travel through the air; in Africa, witchcraft is the most ordi*
nary of all crimes; and a century has scarcely elapsed since vam:
pires disappeared from Hungaiy.*

Taking, however, time and place into consideration, experience
does not permit us to consider the present as having been formed
in precisely the same mould with the past. When Mew Holland
presented to us the kangaroo and the ornithorynchus, Cuyierde*
tected analogous animals among the lost inhabitiuits of the antide*
luvian world.

Nature, inexhaustible in her varieties, escapes from every system
of arrangement, in a multitude of details, through which humsm in«
dustry would fain conduct her by leading-strings.

But whatever may be the force of this objection against scientific
classifications, it is not the less true, that an imperfect arrangement

* Dr. iD^enhoas, physician to the family of Austria, and no less distin-
Ipiisbed by his veracity than his abilities> told, me, that he accompanied the
Emperor Joseph into Hungary, and that the object of his journey was, to
gather information regarding a species of crime which was becoming frequent —
the murder of yonog girbs who had not reached the years of puberty. The
source of this atrocity was an opinion which had been propagated in certain
villages, that a man who ate the hearts of ten young virgins would become
, invisible. The rigour of justice put a stop to the crime ; but the Emperor was
so ashamed that such « barbarous superstition should have existed in his
states, that he would not allow any thing regarding it to be published. A con-
nection n^ight be traced -between the invisible vampires which sucked human
bloody and the men who ate hearts to become invisible. Truth may long
remain isolated and barren ; but error, connected Mith the passions and inia-
eination. has a tendeney to multiply, and always extends itself from physics
to morals.

JUDICIAL BVI0BNCS. 273

is preferable to a cbaos^ and that the links which connect>atural facts
gradually multiply and unite. In this state of progression, care must
be taken not to lay down limits rashly, or confound with absoluteknow-
ledge the conquests which we are jradually^gaining over ignorance.
To believe every thing discovered is a great mistake : it is to
take the horizon for the limits of the world.

CHAPTER VII.

EXAMPLES OF DBVIATOBY FACTS, (fAITS DEVIATIFS) Z. 6, FACTS WHICH ARE
DEVIATIONS FROM THE REGULAR COURSE OF NATURE.

Innumerablb examp'les might be given of facts impossible
in degree } understanding always by impossible what would gene-
rally be reputed such. « They consist in some departure from or-
dinary proportions, a departure so great as to be of itself incredible.
Let us take those which regard the human species.
1^ Height.

2. Strength. .

3. The duration of life.

4. The duration of life without food.

5. The period of gestation,

6. The number of children at one birth.

Of all the facts which deviate from the ordinary course of nature,
those which concern ourselves deserve the preference for two
reasons ; they are more interesting in themselves, as well as more
easily observed; and they are more frequently the subject of judicial
controversy-r-particularly the period of gestation, on which depends
the legitimacy-of children.

In relation to such singular facts, it is rather to be feared that the
judge will err on the negative than on the alSirmative side ; that is^
that he will be inclined rashly to reject them rather than to believe
them too easily. Why ? Because on most occasions where facts of
this kind come into question, the ordinary course of nature is what
the judge knows best, above all, in deviations on which anatomists
and physicians are alone competent to decide. If a judge does not
consult persons of skill, he will naturally be inclined to take the
negative «side, and may give an erroneous judgment. '

Let us take, for example, the length of time during which life
may be prolonged without food. Elizabeth Canning was convicted
of pel jury in Londop, in 1753. Taking the whole of the evidence,
I have not the slightest doubt that she was guilty ; but had she
been convicted merely on the circumstance of her having pretended
to pass so many days without food, I doubt much whether profes*

T

JB74 A TftSATIU ON

sional men would have eonfirmed the judgment Why ? Because
I have read acceupts of various cases, apparentlyw^ll attested, and
with nothuig suspicious in the circumstances attending them, in
which life had been prolonged without food several days longer t^an
in the case of Elizabeth Canning.

Almost every one of the cases mentioned above may become the
subject of political enquiry.

1. The duration o/Ii/e.-r'feleus is entitled to an annuity in a distant
country, and, to procure payment, sends a certificate that he is still
in life. He is an hundred and seventy years old. Parr reached the
a^e of an hundred and sixty-one ; Jenkins an hundred and sixty-
nine; but the judge has never heard <^ Parr or Jenkins, and does
not believe in tliis unusual longevity. Not long ago, an article ap«
peared in a public journal concerning a man who was still alive,
and was above an hundred and eighty.

2. The period of gegttition. — This is by no nieans a very rare ques-
tion in courts of justice, apd, in regard to the legitimacy of children,
it is one of much importance. There are Well attested instances of
pregnancy having continued above thirteen months. In the case
of pregnancy in the eleventh month, a rash judge, too decided to
have recourse to professional assistance, might be guilty of the
most cruel injustice.

8. The number of children at a birth. — ^The birth of three children
at a time, is a fact sufficiently common to prevent any doubt of its
possibility. A person claims an inheritance, and says, my mother had
four children at a birth, and I am one of them. ^^ Four at a birth !"
says the judge ; *' that is incredible. I have known examples of
three, but four is impossible ; I reject your claim.'' i recollect
to have seen in the public papers, an account of five at a birth,
with the particulars of the names, the time, and the place.
/ 4. Number of childreti bom of a woman. Here, as in the pre-
ceding case, precipitation may lead into error. I recollect distinctly
to have read an exan^ple of one woman being the mother %of forty
children.

5. Duration of the period of childbearing in womeii. I think I have
somewhere seen a case of a woman bearing a child when she was
above seventy. A succession is claimed by a person whose mother,
if he be her son (and in this lies the objection to his claim), must
have borne him when she was sixty years old. The feet is impos-
sible, says a hasty judge, and it is useless to go into evidence
about it.*

-"- r

* |t is 9a$d tl^at wpmen, who had passed the age of chil^h&^jing in England,
have tegained their friiitfulness, and had children^ after being sSnt toBotant
Bay.

In regard to facts which are deviations in degree, it is impossible
to fix in the scale any precise point, separating the credible from
the incredible. It is tnie, that when we go far beyond the middle
term, and assume extremes, tlie^*e is little (difficulty ; but begin with
the greatest degree of deviation of which there has been any ex-
amplfii then tal^e the one beyond it, then the next, and so on, and
every man will find himself perplexed and embarrassed, and inca-
pable of spying, " here crecli^iUty ceases and incref^ihiUty begins."
Ip the case pf the human statuvei a hundred feet is above i|l) bfjiaf$
yery well. But take nine feet; ^ m^n of tl^is i»ize ^as. oncfiiaxbi^
hite^ in Jliondon. W(iat will you say of uin^ feet and ^n inch ? It is
pq^sible. Ap inch mpre ? Ai^pther still ? Go on iu thisi w^y, ami
X\o ^bsolvite limit can be dUpoverad.

Muscular strength. — No man can carry on his shoulders a fat 0%
of the largest size : but there are few men who could not have car-
ried it at thp moment of its birth ; at wh^t precise age then, at
what precise degree of weight, does it bepome too heavy for the
strength of au individual ? In regard to tbp nuinber of children, the
Irish legend repord^, that^, in cpusequeuce of a cui^e laid upon her
by a pregnant woman, the Counters of Desmond h^d ^ many chil-
dren as t^ere are days in the year ; I forget whether it was at one
birth, or at several. The birth of five at a time has been publicly
anuQunpedi with every circumstantis^l fact; taking this number as
certf^i% will six be incredible ? Go on in this way, one by one, up
to thP fruitfulness of the Countess of Desmond. The greater the
nuiuber, bP^^^^i^a l^he less in ^i^e u^ust the individuals be, like
Milton's devils in the great council of Pandemonium/
»■ ■■ . ■ ■ ., J

* 9^(^n CQQsi4cred n treatise on all the deviations from the usual courst
of nature, as a necessary part of his system of an Encyclopaeclia. D*Alpinb«rt
adopted the idea in his synopticaHabte of the French Encyclopaedia. The state-
ment of such facts would be the fundamental part of a work of that kind. In
regard to such facts as may come into auestion in courts of justice, ^qd on ivhich
property and honour may depend, would it not be desirable thatthe government
slio^ld take ro^easures to ascertain their authenticity, and preserve them in re-
gisters ? At present, facts of this kind rest only on the authority of a paragcafili
in a newspaper. But may it not sometimeis happen, that a false fact of this
kind is thus stated to the public, with tbe hidden design of using it as evidence
In spme individual case? If this be the only proof of the f^ct in questiQli, the
judge may pay attention to the paragraph, or he may not.. But, even though hp
should not admit it directly, it may still have a certain degree of influence on his
mind. If doubtful,' he may have recourse to the testimony of men of skill; hat
this testimony may be founded on the report of some case or another in perio-
dical pahtications, the efliipct of which remains on the mind even when tl^e
sourci^ from ivhiph the fapt waa dri^wn ^si« been forgotten.

t3

276

-A TRKATISB ON

CHAPTER VIII.

\

TAB NATURE OF THE ARGUMENT DRAWN FROM THE TMP0S8IBLB

AND IMPROaiBLB.

Thb argument drawn from the impossibility or improbability of
an alleged fact, thus comes to be that of counter-testimony, and, at
bottom, is nothing more than circumstantial evidence.

The fact in question is opposed to the ordinary course of nature.
This ordinary course of nature is known and established by Universal
experience, and may be direlctly established by the testimony of an
indefinite number of individuals.

This presumed mass of, testimony may be termed ^^eiicraZtow^i^^f-
fe^ftmoni/, which clearly distinguishes it from the' q}^cia/ counter-
testimony treated of in the preceding books.

But, it will be said, when a fact intrinsically impossible is in ques-
tion, its impossibility is palpable ; it is decided on, the very moment
it is announced ; there is no necessity for arranging other facts in
opposition to it; we regret it without encumbering oui-selves with
evidence.

I allow that this is the mode of thinking to which the' usual
modes of speech would lead us; but, when examined more closely,
it will be found to be extremely inaccurate. The nature of the case
requires that other facts be tal^eu into consideration; and, as these
facts do not appear in the shape of direct evidence, they can only
be ranked as circumstantial evidence. Now, it must ne vter b6 for-
gotten, .that circumstantial evidence is always liable to be opposed,
not only by special counter-testimony, but likewise by invalidating
suppositions.

Take a case of witchcraft. It must be recollected, that what, in
our own days, is never spoken of seriously, was a source of terror to
our forefathers. The alleged fact is, that an old woman travelled
through the air on a broomstick. Do you believe it ? No. Why ?
Because it is impossible, impossible ! how do you prove that ?
Where is the necessity for proof ? To reason about such a thing is
inere madness.

This is, no doubt, a most legitimate prejudice, and one which
does honour to the knowledge of the age ; but those whose opinions
are founded only on this prejudice, would have condemned the very
same witches, had they lived in the times when the prejudice was in
favour of their existence.

JUmclAL , &VIDSNCE. 277

•

Neither do I believe the fact in question; but why? Because^, if
It were time, it would be incompatible with, the laws of nature.
One of. these laws is« that no body can be put into a state of motion,
unless the moving [)ower be sufficient to. overcome the attraction of
gravity, &c»

But, when I refer to these laws of nature, and advance them as
evidence, for the sake of shortening the discussion, have I done any
thing else than refer to an im^mense assemblage of facts which seem
to me to be incompatible with the fact in question ? All the bodies
with which I am acquainted tend towards the centre of the earth.
But how am I led to so general a conclusion ? By my own personal
experience, by the testimony of my fellow men, by the testimony of
learned persons who have made natural knowledge their particular
study, and bave^ritten expressly on this subject. Were this regu-
larly inci;easing mass of knowledge analysed, it would be resolved
into so many distinct articles of evidence, perception^ report, oral or
written testimony, &c.

But. to: what does all this amount ? There is not here any direct
evidence against the supposed magical- journey « What is it then?
It is circumstantial evidence, and nothing else.

Thus the whole argument drawn from impossibility is merely a y*
disposition of our mind to, reject extraordinary facts— facts which ^
are not conformable to ordinary facts. Now, as this disposition rests
on the actual state of our knowledge, it is not a conclusive evidence
against these facts ; if they have existed, our inci*edulity cannot anni- .
bilate them.^ We say that -they are contrary to the laws of nature;
but he who affirms them answers, that we do not know all the laws
of nature, or all the exceptions of which they are susceptible.

A believer in magic, even though he were no very subtle reasoner,
would have a good deal to say to weaken our confidence in the
argument drawn from, impossibility, that is, from the want of con-
formity between facts of magic and those facts which constitute the
ordinary course of nature. But there is one fatal shoal on which all
his arguments would be wrecked, viz. the comparative weakness of
the direct evidence, or special testimony, by which he means to
prove their^xistence. He would be strong, when arguing on our
ignorance of the means which nature employs; but he would be
utterly weak, when, assuming some particular case, he tx*ie4 to
prove the existence of one of those facts which he himself regai*ds
as exceptions from the ordinary course of physical occurrences. It
18 here, in the accounts given of these pretended facts, that we find in
the witnesses all the characters of error, extravagance* and falsehood.
This requires some farther explanation^ wh^cli will be giveq subse?

278 A TltJBATISB ON

qufehtiy, y^hen we aVe examining the causes of oiir dispOdlttort to
believe the marvellous. It is sufficient, at [Jresettt, to have {loitltetl
out thfe true auswei* to tlie argUmeiit founded oh dur ighbrfahce trf
tlie law& of nature, in favbiit of facts which are opposM to the brdt
nary course of nature.

CHAPl'Etl tX.

EXAMINATION Oif THK OMNION OF CBtttAttl PHlLbftOPltftttS, f ^T T^S Ilt^klH
ii AdittTT bP A I'ACT I^ NO SUFPieiBNT JlBASOIf FOB BEJBCtiNG IT III OP#t<«
illtlON TO AFFtRBfAxiTB TBSTlUdNT.

W£ have ju$;t $een^ that the ihi[ii*bbability of a fket is It kiftltf df
genetal tounter-testinidbyj which inblines lis to rejebt the fadi,
whatever bb the ilutnber of \vltnesses in its favour.

Ih tegatd to such a fadt, Whetliei* U jfi^, or nd, the ihbrb pi^bable }
Whether is it ti-ue, although it appears to be inipos$lbM ? Otj bil llie
bohti'ai'y, havb the iVith^^sbs Who deposed to it tithet* HtHeA Hii de-
f^iVers bi* b^Vb they beeh decleiVed thebiselved P lihii ij) thK qiltisiidt).

Let us hear the argtibieiits of c^iitin pihll6s6phbrt Whb Mi^ miBtlb
i*easohei*s. Ther^ ai*b cases, say they, where tfab iiii probability of
the ibct, leveh Whbh at thb higher degi^^e, bught hot Id M i^mU
dered A^ dbstl-oythg tlie proving pbwet of the dirbbt testimbhy Hrhieft
^fflrhis itd bJtisteUce. WUyP B^cailse the sufiposed iinprbbaUlilJr
}M fa6 othbi- foundation than htitti^h eirpbi4eriee ; btit the fit0rl{||f
pbWbi^ of dirbct tbstlthony re^ts oti sbnife'thiog atit^Hor tOj iihd more
&bltd thaU, e^peHehbe, viz.bri iiihatb sehtiment^ aH ihnat^ diSikNSitibh
of the hilinah heart to believe what is affirmed bjr direct iesttMbri)^,
thtis dis{iositlbh to believe, say they, shows itself id the (fariibst in-
foncy, at li ^eHod antecedent to all experience^ ahd to an)r know-
ledge bf the confoi^mity between &cts I'elat^d^ abd thb t^stitnoH^oh
Which they are 1-eldted.

Before the time bf Ldcke, inmtie iit^ds Were Used td i>H>¥b Wlidt^-
bver was Wished to be {^t'oved, atid bobtd hot hb pi^oVbd bthl^rWisK
^he doctrine id question shbstitutes. fbr innati^ idewf, Iniiate Hiipi^
dliofi6 ; I say sub^ituiei^ if, iifter all, thby are tibt \\\^ ^athe thihg:
. But, adhlittirig the disposition, what lise is to be ttuide of it } It
is to throve, that facts, whose improbabilky is lit the Highest poiiii,
May be recbived ds true, as soon ks tliey ilt;e aVbrrbd tb be id by t^
rfespectablfe wittiesses.

Abfebrdltig td this argument, the fidsest cobebptibtis atid m^M It*
triiVilj^aTit ideas may be admitted as triith^; fot* ihey arb all tlib
i^^sult df this disposltibfa td beltete^ of thift disposltiofi Wbicli te M^

JBBICIAI* BVIDBNCK. S^O

pas^d to be anterior to experience ; as if any thing that follows
the iDoment of our birth could be anterior to e^^perience.

The ftrgumeni contains two different propositions ; L That the
disposition .to believe is founded on something different from ex-
perience ; 2. That if there be such a cause of beliei^ it furnishes a
sufficient reason for believing, even in opposition to experience^

Th^se two propositions are equally absurd. In regard to the
first) I refer tb what was said in the seventh chapter of Book 1. As
.to the Second) it is suffident to observe, that, even if we should ad-
mit the existence of an innate disposition to believe, nothing is more
unreasonable than to conclude, tibat we have nothing to do but^ve
eurselves up to it. This sysstem would place all modes of faith in
the world on a foundation equally natural and legitimate.

But if the disposition to believe is a sufficient reason for believing^
wltat argumeiit does it furnish against the sceptic, in cases where
it does i^ib exist, or has ceased to exist ? Can you justly require me
to believe what I think improbable, merely because others believe
it ? Is the fiiith ei m(sn to be measured by the faith of a child ? Must
1 taiieve at 'fifty what 1 believed at ten?

If an innate di^iosition be good as a rule of belief it will be still
bett^ as a rule of ftetioui . To d6 extravagi^t things is the counter-
pkH of believing improbable things | the one is in practice wb^t
the other is in theory.

yfbut does the pHnt;iple of these metaphysicians come to at last ?
*^ The ithprobabilit^ t>f a fact is no iufficient reason for refiisiag to
belk»ve it, if it i? asserted by witnesses whose eharacters are not
exposed tb any special Cause of silspicion/'

This doctrine is, in fact, nothing mote than an appeal to pre-
judifee against enquiry ; we are to rgect the counsel o^ experience,
abd believe fiiets contradicted by experience, merely because they
,dre^ averred on the faith of human testimony $ that iS| we are to ro-
neuhce the faculty Which raises us above brutes, and gravely resolve
to become simpletons and idiots.

Thai faumnn testimony is most generally true^ is a principle which
I admit, and which iis founded on experience ; but experience like-
ivise informs me^ that of the whole mass of allegations, there are
mahy which ak*e rashly made, ami mahy th^t are falser

When I examine all the motives which may have an influence oh
testimony)! do ndtfind one t)f them^ whisther it belong to such as are
ireekoni^d good) oi* to such as are reckoned bad, which may not leafl
witnesses into falsehood. Whenever, therefore, human testimony
is in questibn^ there nevek* can exi^t a full and- perfect assurance,
tbk% it majf tiot.be tainted witb&lseboods and, if to this be added

280 A T1IBATI8B OK

those cases in which it is liable to be erroneous, though free from
falsehood, the whoAe doetrine of these philosophers falls in pieces ;
because it supposes in human testimony a degree of certainty,
which never can belong to it. Tliis certainty, which is not to be
found in human testimony, belongs to physical fects ; they inva-
riably observe the same order; they never belie themselves; natura
semper sibi consona. Take one example of a thousand. Iron is
heavier than water. The assertion of a thousand witnesses could

*

never render it in the least degree probable to a man of sound
mind, that a mass of iron has been found, in any circumstances
whatever, to be lighter than an equal mass of water.

Let us suppos^ that a fact of this sort is attested, and well attested,
by respectable witnesses , let us suppose, in a word, that the asser-
tion is beyond all suspicion of falsehood ; what are we to believe ?
That the witnesses mistook for iron what was not iron, but some
other substance of a ferruginous colour ; or that they mistook for
^f^ter what was not water, but some other liquid, quicksilver, fiir
example, with a layer of water above it$ or, lastly, that they mis-
took for a solid mass of iron, what was in reality only a hollow mass,
that is, an empty space enclosed in a metallic case.

To adopt, therefore, the principle of these philosophers coocero-
ing human testimony, would be to disclaim experience as our gliide,
and sap the foundations of certainty in all its branches. Let us ex-
amine for a moment, the examples by which they have tried to
'weaken the argument deduced from improbability. Let it not be
forgotten, that their object is to shew, that, in virtue of an innate
disposition, we are incessantly admitting the most improbable facts
on teltimony comparatively very feeble.

A boat has crossed a river two thousand times without sinking.
A stranger, giving himself out as an eye-witness of the fiMst, asserts,
that'it has sunk on its two thousandth and first passage. Here is
an extremely improbable fact, improbable in the pt'oportion of one
to two thousand ; and yet it will be believed on the testimony of a
single witness, for whom we have no guarantee. - And who can
say, that it would be unreasonable to believe it ?

Improbable, do you say, in the proportion of one to. two thousand!
Nay, not in the proportion of one to pne. Whoever has seen a boat
loaded with a considerable weight, floating on the water, will find
no improbability in its having upset, though it should have made
the same passage in safety, not two thousand, but ten thousand
times.

Were it an empty boat of cork, instead of a heavily laden boat,
then the fact of its sinking would be improbable/ and ifi^robaUe

JUDICIAL BVlllENCB.

281

to snch a degree, that we would not believe it on tlie testimony of
a thousand witnesses, although they should even declare themselves
to have been eye-witnesses.

Dr. Price, in an essay on evidence, has tried to establish a propo-
sition which would put an end to the argument founded on impos-
sibtlity. <^ Events,'^ says he, ^^ which are in the highest degree
improbable^ events which border on prodigies, are so common^
that the natural improbability of a &ct can furnish no natural ob-
jection against testimony/'

Let us examine what this argument is in itself, without any re-
ference to the particular object of the author, which was to weaken
or remove one of Hume's objections against miracles.

In lotteries, says he, it is in the highest degree improbable, that
the great prise will fall to any particular ticket. Suppose Uiat there
i^re fifty thousand tickets, and only one great prize, there are fifky
thousand chances against every ticket ; and yet, when it Is stated^
that a particular number has gained the prize, nobody hesitates to
believe the fiict, improbable as it is, even on very slender testimony.
But when the author alleges this as an example of an improbable
fiust, he omits an essential circumstance, which takes it entirely
out of that class of &cts, so that no conclusion can be drawn froin the
one to the other. The circumstance forgotten is, that the event in
question must necessarily happen ; some ticket or another muH
gtdn, and the chances are equal for all. If you double' or triple-the
number of tickets, you increase the chances against each of them ;
but you do not produce the slightest doubt as to the existence of the
&ct, that the prize must be gained by some one of the given tickets.

I allow that the term improbabUUy may be applied to this case ;
but why ? because the language of the doctrine of chances has
always been used to express the degrees of improbability ; and, in
lliis language, the degree of improbability is nieasureid and ex-
pressed by the jiumber of objects considered as divided into two
parcels.

In order to get at clear ideas, substitute the simple and familiar
term extraordmaryf for the technical and mathematical term impro^
hdbUHy. A given ticket in the wheel gains the grand prize ; is
there any thing extraordinary in this^? does it imply any deviation
from the common course of nature ? None whatever. It is an ex-
pected and necessary event, and does not occasion the slightest
surprise.

If extraordinary events are confounded with events mathemati-
cally improbable, everything becomes extraordinary, and every
physical event is a deviation ft*om the established course of nature.

S8B ft TRBAT18B OM

A eoni menchant goes into a grandry^ and tak^ up a hatidfal of
gi*ain as a sample; there are liiillions of gnlitis in thegranary^ which
had ail equal chance of being taken up. Aecdrdiag to Dr; Pricey
events which happen dAily, and in every eorneri.are extraordinary
and highly improbable. The ehancbs were infiditeiy greht agaiUfet
my pibcing rajf fbot, when I ris6 from my chaii*^ on the precise iS[lot
where I have placed it ; going on) in this niiinner^ from one eacam^
pie to another^ nothing can happen that ii not infinitely itnprd^
bable.

This eircumstadce, overlooked by Dti Price> and so strongly felt
by every body else^ (viz; that sdme ticket nec^udrify mM gain tbb
great prize), being admitted^ who will not belifeve, even on very
riigbt testimony^ that stieh a particttlar ticket has been the fortunate
one ? Suppose that, idstead of fifty thousand tickets, there are a
liAtUton ; Xh6 mathematical imprbbabtHty is a million tinite gHiater;
but would it be moile difilcult to believe in fhls ease, than in the
4»tber^ that a particubir ticket hieis gained the pritje ? Is stronger teiv
timony required to rendtr the fact credible ? No; anfl tUere is n6
r^Mn wb|r it shouldk instead of a faefe mathemiltieaUy imprbbeMfij
Iftk^ a fact phjrsicallj^ bxtraordinary; Ydu easily believe the t^ti-
mon jr i^hich iiver6 the existence of a man sev^n fe#t higli i but
would tlie same testimdny have an equal influencd upon |ou^ if it were
used lo |irove the existt^nce of a man ten^ twenty^ or fifty feet higb i
A^Vite<A\f noti Why not ? The reason is evidenu In the lottery,
.things ^re So arttinged, that^ but df a miHion of tickets^ one fimH be
sUcieessful ; but in the natural isrd^r of things^ so far as yon koo#
it^ fh^eisnot a shadow of prbbability for believing that things
have bfeen so arranged^ as to p'rbditce fk man df subh gi|[antic
iMturei

This is not a iliete metaphysical speculation; it is of great impii^^
tanctB in judicial practiee. If the mAtbematibally improbable fisiets
of Df 2 Price are confounded with fitbte i^hysicalfy imposslttlb In the
eyes of those who have some acquaintance with the ordinary bourse
t)f Uatdre $ if f&cts of the former^ and facts of the latter kind, are ad-
mitted on the sisme evidence^ the reign of tnagic and witf^hcraft is
i^toredi Stakes ihay be rais&d^liind pileskitidled, for thosfe into ilrltodi
4eYite and detnons have entered ; the greater the number bf
wizards thht are burned ^ the more numerous will be the i^asoU^
for btititinding tb bum tixem; It is in vain to say^ that* foots of
this nature are too improbable to be believed, and that the wit-
nesses who should pretend to prove them, would, not even be
listened to. Aceording to the system which we have beeii hltfatl*-
ling^ what is there in the world ihat is liot iniprobabk ? and wUQt

JUiJictAt SVTDENCB. §^

is iliere m itnprDbable as not to be admissible tven on rery slight
testimony ?

Our aequaititante tvitli the conrse t)f nature te extremely Uihited,
and the judgtnent t^hich we fiirm regarding its laws are extrerileiy
liable to be erroneous) but how mtich nioi*e confidence do Iheyidt^
serve tliiin human testimony, in regard to f^etft trbicli Mnli'aritift
universal experience.*

♦

JUniCIAt CdN^tbBRAtlOirS RCOARDillG VAC^S CONTRAltT fO TBH VnVJkk '

CDUaSB OF NATURE* *

/

1 i?hALL begin with an at-ticlie which atiptered id a FfarifefSft
journal of the 2d September, 1821.— The municipdi authbHtlfeS 8f
Bamberg have just issued the teilowihg prbclamaiion ; **In regard
to thS ciiri^^ whibh Prince Hohenloe, fdi^ sdme time, has thought
proper to undertake, the undersigned duthoHlies^ entru§llHj #lth
the police of the city, has taken measures to prevent, as far as pos-
sible, illusions of ihi§ kihd, ahd to pttt ah kHA id th^ htRbk bt hvA
oir pi^elerifled crippiies, be^ai^, and VagbAfab.

"the nieasiirfe^ we havfe adofitell haV^ be^h ApprbtiH bjr Ih6 sU>
pneme authority, and communicated to Prince Hdhdhlo^. ttfe
hias biSii requested to observe theni, ahd, pa^ticular^y, lb iinder-
lake iid cure, iintil he has previouf^ly Ihfoirtied the jlbltde, dHtl dtiljr
ifa the piiesehce of li comriiis^iori of M {iUblte authdritties^ ahd
wilii the assistance of soitie physiC^iaris, so that his bdr^S k\M\ tibt
he clandestinely pertbrmed.

^' As t!ie Prince lias refused to subjedit tilS fJi^oceedihgS to thfe

* The philosophical questions regarding evidence, (\nd the validity of huf^ian
testimony, as proving facts which are in the hig;hest degree imprdDdDte, \(fibth
aglttitM In Bnglahd and StJdUand cm ttte oocasiott,of Hume's mikf on Mtrar-
cles. As the resolution to heliev.e was already J^xed, nothing mb^e was re-
buired to justify it, than io invent arguments to iht^alidate that wiiicR resuttJ
jf^om ei|)eHeUc^. Did the ekuse in whose seHiee thielk; ^6)^hi jhil Yf^rb UMi
require theija ? Could it not have maintained itself without them 7^ Tliis i« a
question which does not belong to my subject. 1 isliall say^ however, itiat an
Ebgtish cteri^matt (Uliddletbh, in his admirnble eAkajr od the itifriilsiilbifei
pQwei^sX traced, accu rate^r ti>c iii^c df separation between reason and ftkith.
Struck with the force of the objections against human testimony as plrovlhg
miracles, he pointed out distinctly all tbe chAracteril of ihnpdsitir^, igndirilti^v,
Und.imbedility which disgrace legend^; but in regard to the facets which fbrm
tiie foundatiod of Christianity, he admitted them on the faith oif an authority
ftiipei^br to liiihiati iestlmony,— on the faith of the Ibsplration of th^ Upbstblieffl
wi-ltiiigs, i^i-bved by internal evidence. Voltaire haa rtinked this atithor atadug
those who have done most honour to the cause o^ scepticism ; but persons
^hh tiieW Mm hate ^s^uted inc) ihat ^e impittatidn Wis ithdbs^rtMk- !

y

It

384 A TEBATISS'ON^

superintendence and control, these proceedings must cease alto-
gether.

To prevent strangers from undertaking unavailing journeys,
exposing themselves to other dangers, notice is hereby given^
that to attempt to perform a cure vrill be permitted, and thiit he
has been prohibited to make them, under the penalty of a con-
siderable fine.

^ We add, that all the cures attempted by the Prince, in pre-
sence of the commission, and one or more physicians, have been
unsuccessful, and that the pretended cures which have been
cried up as miracles, are only such as took place without con-
trol or examination, without either the sick or their diseases be-
ing known, either in ^secrecy, or, at the most, in a numerous
crowd during the first days of tlie devices, of which this city has

been the theatf e.

^^ By the Magistrates of the City.

(Signed) *'Von Hoonthal Bascb/*

'* Bamberg, 30th August, 1321."

Prince Hohenloe having applied to the Pope for permission to
perform miraculous cures, his Holiness enjoined him to observe the
same precautious, and since that time his miracles have iia more
been heard of.

This is the proper course to be taken with all facts belonging 'to
the class in question ; they must be subjected to every thing that
can guarantee their authenticity. .England set the example of it in
the beginning of the last century. A man, whose personal cha-
racter and profound mathematical knowledge set him above all
suspicion of imposture, announced himself as having received a
divine vocation to raise the dead. The experiment was made be-
fore a great number of witnesses, a'n<l with all desirable solemnity ;
the dead body refused to breathe, and the fanatic and his associates
were confined by the police. If you have apparitions, enchant-
ments, and exorcisms, subject them to a regular procedure; apply
to them, for example, all the tests required in an English tribunal
for the most ordinary fact, publicity, examination, and the legal
punishment of falsehood; — ^unless you prefer admitting as a prin-
ciple, that laxity in regard to evidence should in'erease With the
Improbability of the fact to be proved.

It is impossible to observe without astonishment, that, in a
great number of cases, where it was tlie interest, and even the duty,
of the parties, to challenge ap enquiry conducted with all the
precautions which can render testimony trust- worthy^ such an en*

JUDfCIAL BVfBBNCB. 285

quiry has never been deihanded ; no means have been used to ar-
rive afc conviction, where- conviction was not only easy, but, if the
fact in question was true, extremely desirable.

Were we satisfied with collecting the evidence in favour of past
fects, on which the world has already formed its opinion, every piece
of imposture would be- certain of complete success. The miracles
performed at the tomb of the Abbd Paris were attested by numbers
of persons morally respectable. It is not a prodigy already per-
formed, but one about to be performed, that ought to be exposed
to the scrutiny of a court of justice; it is only in this, case that
all the circumstances can be ascertained, and the truth clearly
brought out.

Another very important consideration affekting many of the facts
of this clasSj and particularly apparitions, is, that they are never re-
presented in a court of justice, as having been seen by several eye-
witnesses at the same time. The whole rests on the faith of a single
and interested witness.

Many men have honestly believed in apparitions, ghosts, and
communicatioits with incorporeal beings: they have repeatedly seen
and heard, in circumstances which do not leave them the slight^t
doubt: but the prodigy has existed only for them ; their deposition
is not supported by any other : why is this ?

An account of this sort is the result either of illusion or &lsehood«
If it be the effect of illusion,^ it acts only on the distempered in-
dividual. In the case of a celebrated author at Berlin, who has
given a curious and instructive account of this phenomenon, the
phantom was the result of bodily indisposition, and was in the like-
ness of an acquaintance of the patient. A phantom does not appear
to two persons at the same time, because two persons are not
subject, at the same time, to such a physical or mental indispositiQn
as would produce an apparition of the same kind.
' If it 'be the result of falsehood,- no two persons will concur in
solemnly deposing to-it in a court of justice. Impostures so difficult
to be carried through are not attempted. The authors of such a
tale could not hope to avoid mutual contradictions, in the course of
a rigorous examination by men of experience. The knave, who
boasts of having seen apparitions, attributes them only to himself,
and entrusts the tale only to select hearers. Accomplices would be
dangerous in this department of irapostui*e.

With the exception of certain cures, of which we shall speak im-
mediately, supernatural factSx are never permanent in their nature.
Awizard|has ^travelled through, the air; a witch has called up
a spirit ; a ghost, wrapped in a shroud, has appeai'ed at a sick

Ifjg A f»H»4TMH OH

«

p^f$i9(P^ pillow ; io^i^es of 9Sflnt^ have mad^ Mgns ; fipfl ^ ffoi||$e,
Oq tlf ipg toiiclied by ^ reli^, ))^s shewn symptoms of lif{^. 7^)^
prodigy is attested^ but it lif^ vanish^. W^re it ^({lerwisej W^
inight 5;aU for the eyide^ce^ aud the prodqction of the tl^ipg itself;
^^ might sut^ect tlie fap( tp a regular propedure^ apd verify it|^
tfistimppy* But l^ow «batl we prov^ tha^ whiph paopot bp sI^^WQt
wd leftyes no ^r^ce of \is existeqpe ? How ^^^U we l§y hq^d pf
eyane^p^nt fapts ? And what credit i^ due to a fact w?)i<^h can npvfir
be proved 2 }a tj^e case of apparitionS;i for example, i^^ being, wl^lpb
i^ ^id tq b^v^ app^AV^d, does nqt belong to tb^t clasil whwh Wmf
b^ produced befqre a tribunal n it is an {iggel, a devi^ a gtiost, or §
spectre. Thus, the first requisite to the validity of testimOMy is {^bhf
SK)lu|;ely awanti«g. . ,

l^ evfU'y case wl^ere a prelpnded sypern^tui^I pccurr^pe^ hfis
b^^p presented to s^v^r^! persons assembled f^t the purpose of
s0«iug it, the w(io)p lias turned out to be mer« jugglery. But
what is jugglery ? It is au apparent violation pf some l§w of n^tur^,
prQdi)ced by ponc^lipg somp circumstauce or another j and, when
tbJ« omittpd cireum^tauce is once Uuowu, tl^e pbenpfnenon is fomid
to be ^gre^able to the ppurse of nature. PbantfismagQria, qpDf
l^epon^ % theatripftl ^musen^ent, shews how paturt^l me^PB^ un-
known to the vulgar, may be used to pall up, amid darkness the
nins( impp^ipg j^ppa-ritions,

QireSf it will be said, ar'C of a permanent nature } and, therefore,
all th^ rigpui' of judicial evidpnpe may be applied to them. Let
Ibis h^ grapted ; yetj to establish the supernatural uf^ture of a cure,
the court musthf^ye spme meaus of distinguishing it fi^om all
l)»tural pui^ea* Dp such mpfms exist? I dp upt decide the
qupstipu; I quly say, tb^t ^yith the miraculpus cuce ai*e combined
six; Ptb^' facts; thp pqmp^r^tiyp probability pf which must b«
separately weighed.,

L There is no real malady; or, at Ipiist, npt such a one as is
prptended ; the existing symptoms are oply in the imagination.

% There is np malady ; the pretended symptoms are mer^
falsehpods.

3. The malady has been cured, hut by some other remedy, or by
the mere effect of imaginatipq. .

4. The malady has been cured, but by natural means.

5. The malady has not been radically cm^d, but only suspended
or mitigated*

§, Th^ maMy I'^mains the same s its cessation bemg declared
(hrqugb uii^t^ke or fraud on the part of the patient, the pubUc, or
Ifee ppewtar,

I adCi 4o Mip W")4^ pf jur^prnd^^c^ fiOQt&in v, single caae, ia
^bicU ^ pretended supei-Dstuffi) cure liifs bpett sul^^cted to Buob
jlidjcifit pn>p^u))e as' v^'i^ed n\l tlipsg poiuts, and remavcd tlie
<pRl}lies of «U4pi()iPD so q^ti^r-tilly belpngiifg to facts uf thU QAtura ?

Apofirding bf tbia view of the sutgepti it app^rs fq me. that the
men t)ie m^t ingredulans, regar-ding facts at variance with tbe
pouree of niiture, ni^y wlely a^mi tlteiv existence coodition&Uy.
) will belifv« tbeiQ] such « pftrsou mity say, provided tbey me
graved by » nt"nber of witqegiep, irrepLfiticItabU on the score of
nifirftU fuid Tinderstandiiig ; whose dt^pft^ittoos have heon taben
nnder a jodipial pxawiQatipq conducted with competeQl ability,
aad with all the forms necessary to guarantee their truth.

Thie l^st conditiflP is es^ntial ; for, if you rest satisfied with
^ dvfe^tive mpde of procedure, jcia will prove acts of witcbciaft
Jo^t Hs they were proved in fbrmeF times, and you will prove them
cfiQclueivfily for tbe destnietioa of tbe accused. Trust, for example,
to fixtF^udipiAl HQknowIedgnieQts, and ym tnay bura an iognite
numhsF Qf jnib^oile old women ag witches, on their own confession.
Take down their deposition in writing, couched in genei-ai terms,
mid tuthe^ticat^ by their ntai;l(asaqign8tui'e,and they will be easily
apd duly epnvicted> Such was the pmctice of the able laivyera and
enlightened judges of tbe 15th and Ifitli centuries. Above all,
Itewape pfsprutinizing tbe viUne of the testimony; orrequiring, as
}R prdiQ^ry cases, that the depasitionD -eliall be founded on the real
evidence, on the production of the real and permanent object. If
the questioq, for example, be, wh(;ther t^ie tQi)ch of a holy relic
restored life io a dead man, do not ask to' have the revived dead
trought before yoy. To use th^se s^fegriards of the truth, ^nd the
others which we have enumerated, is a mistake, when you wisfi to
prove focts of this nature. *

* Vke tottowin^ anecdote diipla^ a th« wish to tielieve in the marvellaas,
oorabined with good feith, and n desire ta get nt the truth. Mj audmrity ii
V. Bpuiiet, of <OeDeva, wliom I had the happiness of seeing in my youth. It is
known, that this learned metaphysician admitted miracles as one of the foun-
dations of Christianity ;'« circumstance not altogether iudiflerent, in legati) t(i
the f^ct I am about to i|uote from him.

Lnvater had left Z&ri'cit to visit his friend, the philosopher p{
writinff to him that the object of his journey was one of great in
wrote, " I know, at Moral, a woman, who possesses the mira'
■minglfae whole universe in a basio of water, Inwhich any p
to which she directs her attention is reflected as io a rpirro
advised his respectable friend not to allow his imagination t
visionary laics, which only tend to discredit thp most import
Kcnre a triumph to infidelity. Lavater alleged a number of fa
credible authority. " Why should there be no more miracles ? I
charcfa. ever stand in {;reate|' need of Uiem ! If God jpenalttt
purpose of ealablishing it, vby sbonM he not do so for the ]

288

A TRBATISE ON

L(ui consideration.— In regard to all facts. of this ctass^ it is
essential to observe, that the omission, or the alteration of -a stngte
circumstance, which an ordinary witness does not know, or thinks
of no importance, mBygive to a fact that is perfectly reconcileaUe
with the laws of nature, the appearance of being a violation of these
laws. Those who have deposed, in trials for witchcraft, that the
accused employed enchantments, pronounced cabalistical words,
used invocations, and performed other out-of-the-way ceremonies,
might easily believe that these mummeries had occasioned the
destniction of a flock ; but they did not know that these pretended
magicians were poisoners. They were right as to the fact, but
wrong as to its cause.

A man has been seen rising through the air in a car, ^nd continu-
ing to ascend till he became invisible. A witness i*elating the fact,
forgets to mention the balloon, which may have escaped his
attention. Another narrator, who has heard the circumstance of
the globe mentioned, suppresses it as being too/ extraordinary to be
believed ; he supposes it to have been added by exaggeration or
mistake. He conceals this circumstance, because he is afraid to
exceed the limits of the truth ; and yet, in the eyes of the philoso-
pher, it is the globe alone that makes the fact credible, and recon-
ciles it with the laws of nature.

When the natives of Japan, v^ho witnessed the aeronautic ascent
at St. Petersburgh shall Rave related it on their return home.

serving it ? Let us reject nothing without examination, i Accede to my re-
quest ; 1 am going to Morat four times a day ; at a particular moment, I shall
ask this woman to look at your abode ; I shall write down her answers; and I
beg of jou, to keep an accurate journal of "^hat is going on in your chamber at
these \ery moments/'

M. Bonnet, though almost ashamed of his complaisance, yielded to the
request of his friend, for the purpose of undeceiving him. Lavater repaired
to the wise woman of Morat ; he was strolck with her simplicity, poverty, and
innocence, with every thing that seemed to manifest the hand of God, who
makes use of the weak things of the world to confound the strong and the
powerful. He. did not fail, at the appointed hours, to consult the woman, who,
with her eyes fixed on her glass uf water, sought and found in it the very
chamber that was to be the scene of her observations. The first day, she ex*-
claimed, that she saw M. Bonnet sitting on a chair ntarxa table, and a lady
. reclining on a sbpha. Next day, she saw him making up a packet of books,
^nd delivering it to somebody. By chance, she was nearly right in these two
eircumstances ; but all the rest of her visions were just what might have been
. expected. On the two journals being compared, Lavater was humbled, gave
tip his oracle, and spoke of it no more ; but he had not the courage to mak«
public the detection of this imposture.

Had there been here no accurate means of comparison, nor any permanent
record, — ^had this story been vaguely sent abroad, under the sanction .of two
celebrated names, the coincidences would have been exaggerated, multiplied,
and embellished in every possible way ; the contrarieties would have been
completely kept outof view by the common consent of the narrators, well pleased
to impose upon themselves and to astonish their bearers.

♦.

JUDICIAL BVIDENCE. 289

how many speculations will it produce among the priests of Japan I
If the balloon is omitted, the fact will be to them merely a confir-
mation of a power already acknowledged and admitted by them ;
but if the balloon is mentioned, they will conclude that the Russian
sorcerers are cleverer than those of Japan.

Several romance writers of our own day have amused themselves
with framing combinations of events that seem to proceed from su-<
pernatural power, till some circumstance, which has been carefully
concealed, explains the mystery, and brings down the marvellous to
the probability of history.

Testimony, then, may be strong enough to prove the truth of facts
which appear to be extraordinary, and even marvellous, but which^
in reality, are only natural facts, defaced and mutilated by an inac-
curate and incomplete narration.

CHAPTER XL

OP THE MOTIVES WHICH INFLUENCE THE BELIEF IN FACTS CONTRARY TO

THE LAWS OF NATURE.

We have seen how much the credibility of witnesses depends on
their intellectual condition and moral dispositions. In every case,
even in questions regarding things altogether usual in the ordinary
course of nature, judges ought to assume the attitude of doubt, and
to enquire, whether the witness had all the means of information
necessary to render his deposition accurate and complete; and
farther, whether ne has not been under the influence of some
seductive motive, which might 5i^ffect his veracity or his judgment.
In facts, again, which appear to be incompatible with the laws of
nature, there is always one circumstance tending to render the
testimony suspicious. The very occasion^ comprehends some cause
of deception acting on the will and understanding of the witnesses ;
a disposition to deceive may be presumed on the part of sc^me, and
on the part of others, an equal disposition to mistake. Cases of
this sort always present great temptations to imposture, and have
strong attractions for credulity. How great ought to be the dis-
trust of the judge, with witnesses who do not furnish him the
resource of reciprocal contradiction ; but who, being deceivers or
deceived, combine to bewilder him !
Let us consider some of the facts which most frequently have led
^ to this double deceit. I take my examples from past/errors^ which^

u

SI90 ▲ TRUATIIB OK

among civilized nations, can no more furnish matter for judicial
accusations; but this advancement of reason is still so recenl^itbat
it ought not to inspire us with any overweaning seburlty. More*-
over, wiiat we are here discussing, is a disease of m^kind, wbicb
always re-appears under various modifications. The examinatioti of
an error already exterminated m^ prevent similar ones^ as the
dissection of a dead body may throw light on the natuiie of physical
maladies, and the means of curing them.

Motives of Belief in the Marvellous,

First Example. The transmutation of inferior metdU intb gMj-^
The seductive motive, which acts on the understanding of him to
whom the secret is promised, is discovered at once ; it is the hope
of commanding the means of an unlimited fortune. Oh the part of
the operator, if he is supposed to be acting with good faith, there
must be added to this motive the attractions of a splendid ne-
putation, the power which follows it, and the pleasure of curiosity
always nourished by discoveries in an experimental science rich in
unexpected phenomena. If he acts with bad faith, the seductive
motive reaches only to the will, and is nothing but love of the gain
to be made by selling a false secret.

Though the belief in the philosopher's stone no longer exists, it
is impossible to read the accounts of these mysterious adepts 'With*«
out feeling a lively and romantic interest; and does not this ih^
terest spring from the same disposition, of which the ignoratice of
our ancestors was so long the dupe ? . ^ < >

The factjn question is not more incredible than tlmt gold Hfaoulii
be changed into an inferior metal — ^lead, for example. Yet any
testimony brought to prove the latter would not have bben received
with the same favour. Why? Because the strength of the seductive
motives would have been far from being bo great as in the Ibrmer
case, and the will not being seduced, the Understanding would have
remained unbiassed to judge of the improbability of the (act.

Transmutation, in its literal meaning, implied two anti^physieal
facts : the annihilation of the original metal, and the creation of the
gold ; but there may be an apparent transmutation. If gbld be on^
of th^ ingredients in the composition of some other ktiowU'body-,
the other ingredients may be separated froiii it, and what remains
will appear to have been transmuted into gold. If gbld wois n
compound made up of two different bodies, and these bodied conM
be found separately, and united, there woiild be a formation of gdld,
but no transmutation.

JVUlClAt feVltlBKCB. S91

S^d6nd teJiaiUple. The cure of diseases by extra-naturdl meHfis.-^
In this case, the seductivfe motives act with incomparably greatfelr
forc6 that! in the former; the two strongest passions of thfe htiiiiah
heart — aversion to pain, and love of life — unite to mislead thfe wiH
and the jtldgnlent into the blindest credulity.

It is possible that those who pretend to be th^ operators in these
cures may be sincere; but bad faith on their pait is the rtlore
probable alternative; and the most usual case is, that a person
begins with being a dupe, and ends in becoming a rogue.

This species of imposture is regarded with less severity, and
reckoned less blameable, because the illusions produced by it are of
an agi-eeable kihd ; we are deceived while we are amused. Biit
every imposture of this kind produces a general evil, by degrading;
reason; and a particular evil, by presenting an obstacle to the
progress of science. The professor of a false specific is the natural
enemy of the true remedy. But this is not all ; these impostots,
thes^ thaumaturgists, are almost always the instruments of soihe
ambitious sect ; they have some indirect purpose, and they deceive
only to forward it.

The credulity of th6 vulgar dn this point is easily explained. We
have just seen, that if a case of this nature were brought before
a judge, before he could declare'the cure to have been miraculous^
he would have to exclude six other facts which present themselves
along with, it and are entirely natural. But can so much discern-
ment be expected from the generality of men ? Have they the
means of judging, whether, in the case of a pretended cure, therfe
was ahy real malady; whether it did hot termifaate naturally ; whether
no other remedy was applied ; whether the excited imagination df
the patient did not produce a temporary suspension of the morbid
symptoms; whether the whole story is not a fable; or^ at leasts
vitiated in a great number of circumstances ?

The history of -medicine furnishes the most curious examples of
the influence of imagination ; I shall quote only one. Gold wks
long reckoned a sovereign remedy ; and to render gold drinkable
was the great olgect of chemistry. Why was gold a remedy for
diseases ? Because it was precious, because it was rare ; because ii
was called the perfect metal, and had the sun for Its symbol. It
was this that dazzled the imagination. Diamotids were still mori^
precious ; happily for the fortunes of the sick, nobody thought ot
using them as medicines.

Third example. The means of predicting the future : — auguries^
otacles, lots, astrology.

The motive which acts on the understanding, produciiig a dispb^

V2

S92 A TRBATISK Otf

^ition to believe^ must, at bottom, be the desire of anticipating a
/iiture. good ; but it is still more frequently tbe hope of avoiding the
evil that vt^ould follow a certain action,,b]^ adopting an opposite line
of conduct.

If the professors of the art act with good faith, the motive that
.misleads their understanding is the pleasure of curiosity, the love of
.power and repjitation. But, in this department, there is nothing so
/are asgood ikith. Cicero alleges, tliat two soothsayers could not
look at each other without laughing^ ,

' Many causes' bave concurred to cherish Ihe belief In oracles. The
' h^elieyers could cite a great nuinbar jo£ instKCt^i^it u^ ii^ip^i, ^
event had been conformable to the >pn?4<<^tiaii. . Tbfll^j>WS|pQt}^(ng
«xtraordinat7 in this conformity ;. for iirequentlyt.Miy t\f^^^:9^^
are possible; in sickness, for exanq)le^' death or. recav^*{3; liWi^tl^kb
"victory or defeat. Then, how many .means didt die. pfiq^^^f^s^^
to inform themselves of circumstances^ to judge. iJif^pr^U^^iVAi^
to learn secrets from the mouths even of those w2i^« ,Qo^|)^))flf4
them, ^p predispose and subjugate the im^ination^ tp Vi^W^ tlf^
being right in every "case by giving ambiguous aiiswf^r^ *MHi If}
bring' about the -event predicted by the very indnp^^^i ofc;^^
propt|ecy itself. . When to all this, we add the disposition t^^iblf^Rf^
every prediction that was accomplished, and.liC^ .^q^c^al; p^^f}^
oiie that failed, tlie success of oraoles ceases . to .b^.i^ iBfijtit|^' f pf
p.stonisbment. All these causes of error^ and partic^lady th^^t^'f^ff^ gf
the priests, have been completely exposed ia the pelqliif]:^t^diW,%-}^^f
yan^Dale. . His book .required only an intei*preteir'Wb9f^}ighVi>V^^
it readsLble ; and Fontenelle has converted intO'difiiu^^d^.:|h^ j^j)b^es
of tilts learned Dutchman. . . .j ), „,^.\^ rnni

; Cicero's treatise De Divinatione^ is. one of, tbf^rPW^s|^,cu^^p^
remains of antiquity. If the overthrow of pagiuni^^^^ 'l^^-^^Bft^fl^d
on reason alone, this book would bave effected i^,v/Tt^ffVe,|i§|,p^
connection between the event used as a iMeaqSjOf pi;f^i0|f)g,,r^(|
the event predicted. With this argument, h^ batters i;q,p}g9qs^^]^
whole system of augury. ,/..,,. foni ic, M.m54\

Perhaps, there has been more good iaith in., the \)^|ie(Jqi;,^^9;-
logy than ifi any other mode of predicting the, AUPV(?riiti^j|iiU[(3gt)^|}.;y
of the iield of observation iu this case, w^9'Oveiipo>^i^r^g>^^^)^j^j^t^
weakness. The influence of the sun on t^ pb^i(4^L)W^'^}i /^d
the fruits of the earth, was^ probably^ ibhe &v»t iiuk j^ /tfii^f^^^^
of errors. ■- .'i.. ,f , .• . ,;'Mf*)'»n t^om*

But what was the motive of such eager anxi^yntPipepetr^^in^p
the future, since it was impossible to prevent what ihe^V([;n,l^^|def>
creed ? The ascendency of astrology is explained, by its conneqtion

JUDICIAL BVIDSNCE. 293

with the docti'ine of lucky and unlucky days. An entjerprize will
succeed, if commenced under a certain conjunction of the planets;
btiE it will faii, if entered upon under a ceitain other.

There is no connection between the conjunctions of the planets
and the events of human life; consequently, there is nothing real in
the art of astix>logy.

Four th example. Preservatives: — talismans, relics, amulets, images.

Always the same motives on the side of credulity ; fear is the
agent that works most powerfully on the imagination. The more
destitute the means employed seem to be of all natural influence,
ihe greater is the confidence which they inspire.

But it requires to be explained, how this irrational credulity is
preserved; Unfortunate accidents are extraordinary events com-
pared with the usual course of things ; when a person, therefore,
has placed his confidence in one of these preservatives, he .finds
many more occasions of confirming than of destroying his super-
stitious belief; and, in regard to mishaps, the credulous always
finds means to justify, at his own expense, the play thing to which
be has committed his safety. A superstitious man would rather
accuse himself of a thousand faults than doubt the efiicacy of his
talisman. It is on purpose to keep open for themselves this means
of escape, that impostors take care to superadd ceremonies, verbal
formulas, and a great number of accessaries, all equally necessary
to success. Besides the effect which all this has upon the imagi-
nation, if a little of it be omitted, it is the man who is wrong, and
the credit of the talisman remains untouched.

I shall go no farther into this examination. It is sufiicient to
have shewn by these examples, that M^henever facts out of the
course of nature are in question, there are particular causes o±
delusion, and special motives of imposture. The decisiveness with
which the witnesses assert tliem, is only an additional reason for
distrusting the condition of their judgment; a fool or a fanatic
never doubts. If in any particular case a judge cannot detect the
cause of error, or discover any interest which might induce the
witness to speak falsehood, let him never forget, that delusion and
falsehood are much more probable, than the existence of a fact at
variance with the laws of nature.

When we consult ancient annals, we find that the most celebrated
authors, even those who are held to have studied the human heart
most accurately, had reflected but little on the causes which
invalidate testimony; and, particularly, extra-judicial testimony.
I shall quote Tacitus— the grave Tacitus, when speaking of two
miracles ascribed to the Emperor Vespasian. <^ These two miracles,"

S94 jV Tf^SATlSK OK

he says, ^* are still attested by persons who witnegscd them*
though falsehood can now have no recanjpense to expect/'* MM
punishment were not a more powerful principle of seciuctipn than
rewanj, and the infamy and loss pf rejjutation annexed to fak^hpod
were not a punishment ! Tacitus, then, believed these two miraplea;
his remark can have no other object than to insinuate hjs^ own con-
viction into his readers. Unless bis intentipn was tp deceive, he
must have been deceived himself, and deceived, in consequence of
not having suspected the existence of so natural 9 motive a$ tl^c^
shame of contradicting ones-self.

. In England, miracles of the same kind, but infinitely more nu-
merous, and incomparably better attested, vi;ere generally b^Hevetl
in the beginning of the last cehturyy^'and are no Ipngei: reeeiy^d
even by those whp have some lingering faith in apparition^. If wfts
an attribute of the family of Stuart, to cure their subjects of tli^t
scrofulous affection called the king^s evil/ A piece pf golfl, tquched
by the king, was worn round the neck pf the patient. I kpotfr upt
how long this salutary power l|ad been exercised in Septlaqd^ biit
it was transplanted to England by James I.5 and cefised only with
the accession of the House of Hanover.

False opinions, originating at very remote periods, haye prp-
dpced, almost in our own day, judicial dppisions mpre alarming
than the most atrocioqs crimes. These fals^e opinions have hftd t^o
remarkable effects ; they have created a disposition to believe fdlsef
witnesses, and they have produced the false testimony itself. In lfi84
Urbain Grandier, accused pf having given i}p the nuns of a <;c|f|-
vent at Loudon, to the possessipn of the devil, after ti^ ]\^d been
subjected to frightful tortures, was burned at a slow fJrQ, under t|ie
eyes of a crowd of spectators, animated into barbarous exultation \>y
the force of superstition. The immediate authors of this catastrophe
were corrupt judges, and intimidated or suborned witnesses n biit
the original authors were the devils who took possession of humaii
bodies in Palestine.

Not long after this horrible tragedy, an English judge of piwer-
bial integrity, and, in many respects, an enlightened man, but ii^-r
bued with the errors of his time, by the assistance of a juiy equally
blind with himself, delivered up to punishment a pretended ^r-
ceress. The immediate authors pf this conviction wete tin 'ig-
norant judge, and deluded witnesses ; but the original author ^s
the Witch ofEndor, or the mosaical laws, which puniarhed, >vi|h
death the imaginary crimes of sorcery and \yitchcraft.

•Hi*t. iv, c,8l

, .'Jfl^ej^st^^c^ue of this natiire we|s exhibited,, I believe, at Wurz-
. burgh, irj 1756. But these felse opinions, unhappily ^o prolific,
>|t\lj) (^:^i^t,aa)png ^numerous classJ^ and re-appear under foraisthat
,.^r^,5jil,w?ys varying-.

pi 9II false opinipijs, the luost dapgerous, wij:hout comparison,

^r.e ^hp§e wfiich are supported by the religious sanction. The per-

.^asion^t^at accompanies them has been produced, not by the

K$tveng,tU ,Pf evifleoce, but by a force altogethei: different — that of

,f§ar, Kfqw,s wbat.r^spurce can be found in argument with ipen who

regarfl doubt, mere doubt, as a crime, and unbelief as an offence

5igSaiflS)t^GQd,,>^^^\ic^ wllLb^ punished with infinite and inconceivable
l,tp^-fl[l^flt^?! , ,

j,^vftiJtjihQw ,^oes the desire to believe producp persuasion ? I see
^jj^^JjeW Prpm'^ses and threats, the powers which subjugate the
jMihh P^^ by wh^t means is the understaniding placed under the

joiiT/^WiSWt>"^'»«^si9R of the unflerstanding to the will is produced in
iJfYfo WM^* 1- \P^ depends on xny will to give all due attention to one
ifiW^i^pva|i9n, and refuse it to another ; it is in the power of ajudge
to hear a witness whose deposition goes along with his own wishes,
, %ijd tf>. refuse tq hear one of an opposite description; it is in his

f)^©P,tp admit one document as evidence, and to reject another,
^qvy indixi^Jual can exercise fully over arguments and ideas, in his
pj^p internal trib.uual, this power which ajudge exercises over wit-
WS?M? and documents. An argument to which he refuses his atten-
lj^l9,Js5^§./?9piple4:elyanefiicacious, during its exclusion, as the evi-
^^^gq^i^.flfsj, witness ifs, whp is sent out of court without having been
>?WojW(ecJ:t9 ^PP^i^* o^' of ^ written document which is removjed with-
i»ij;jh^y^pg.b.e,en read.

"jj!»ij.rEv^u if thp internal opinion be not absolutely subjected to the
jPj<(}lL]tbe€¥J^rnal opinion, if I may so speak, the opinion emitted in
j^llg^pifgp,.(jepends upon it entirely; but whoever is master of the
language of men soon becomes master of their opinions ; such i§
^b«i r^ec iprocal influence which exists among men, that they are more
fteqvientlj^ led by imitation than by reflection. An opinion declared
^y,ojip,ipdividual forms the opinion of another. The facts which we
-^^^\Jiwii;om our own experience are but small in number, com-
-gl^rf^d ^KMbe quantity which we require to know, and for which
j^ Hlllfft.imye riecqurse to others. Being thus dependent on their
jl^^ViWPfiy, we become accustomed to depend on their opinions,
and to presume; that these opinions were originally founded on evi-
dence derived from experience. Opinion is, so to speak, the evi-
deuce of evidence, the presumptive evidence of direct evidence.

296 A TREATISE ON JUDICIAL BVIDENCB.

It is but too true, therefore, that whoever can control the ex-
pression of opinion subjugates, by this means, the understanding of
that numerous class of persons, the greatest portion of whose ideas
is only borrowed. " No," some Keuloit for the liberty and inde-
pendence of the human mind will exclaim ; ^^ force opinion ! make
war upon opinion ! What perverseness, and, at the same time, what
Gladness! Constraint produces revolt, and persuasion is never
created by authority." This is a text which ha^ often been ampli-
fied and commented on with the most upright intentiori^. Alas !
why is not such an enterprise equally desperate as it is pernicious.
Opinion cannot be forced directly and immediately ; to crush an
idea, or expel it from the mind by mechanical pressure, is impos-
sible ; torture and the sword are equally inefficient; open persecu-
tion misses its aim, unless it go all the length of destruction. But
by indirect means, by the influence of promises and threats, by edu-
csitior^, and timely taken precautions, the feeble are subjttgaKiMyiaitl
ih^ servile herd of imitators led along. Authority ((iilttribirtei
honours; the tribunals inflict punisbhiettts; and the 'nunistebs'of
th^ dominant opinions, more terrible than either, exoommufaiddte,
calumniate, cover with disgrace and fill with bitterness 4heiHfe* of
the refractory, and consign them at last to everlasting' fire. 'j.i • •»

it is not necessary to say here, that every expedient employd^lto
siibjtlgate the understanding is more than suspicious. Facls'^bibh
havetinith, and doctrines which have public utility, on thbiv' siile^
do not require such support. This principle once adonltted^ithq
d Wseqnence is inevitable. To employ forcible means* fof the inoMin-
tetiahee of facts and doctrines, is to > acknowledge that' they -ure
firfii^e'ahd'bbsurd. ' ' . ^ .. : . .r

11 otigkt tq be observed, that, in sd far as interest is eohceraed,*
theiniAodibility of a fact, instead of being a re^is^onf for rejectlng^^^tib
oftHl a reason for admitting it. If a high reward is to be gaiMd by
si!K»aking^ of incredible facts, as if they were certaiq, awl this rewir4
i«« tH^t •a'ttcnded by any loss of reputation, why slMnakl it not hat'iilte
eflficct^?' €rdilo quia impossibile est; this expwsiskjn, so ofteii^cited,'W
th^ tbslnltiof lenthueia^m, kindled by high hope«;. At wbateiftleii
price is it possible to gain a recompense supposed to be \n&i\itbi'>
anil, if' tb this bfe added, the power ofithe^pioet dreddfnl thredts,
their united operation is irresistible/ ' • r? >I(fi.MM

InthU chapter it has been my object to establish, that, iil rela- '
tion to facts at variance with the laws of nature, there are ^anse»
o/decep/io?i which tend to invalidate huitian testimony, by^raislng
the probability of eiTor or imposture to its highest point* . ' '

297

BOOK IX.

■}V VV, r?ICGOV«rJY, PW.OT>UCTrO>r. A>TT> "nEsSFRVATlON OP

CHAPTER i.

,..: GENERAL VIEW.

IfOR tbis Book^ has been reserved every thing that relates to the
means of discovering evidence, preventing it from ' perishing, and
producing witnesses for the service of justice.

Had a certain witness been brought -forward, and found worthy
of credit, an opposite decision would have been given ; but he has
not appeared. Here is a subject of much regret for him who loses a
good cause. Therefore, in a treatise on evidence, the mode of ob-
taining evidence is too important a matter to be neglected, how-
ever little attention may hitherto have been paid to this branch of
jurisprudence.

. To enable a litigant to produce in court, in the hour of need, any
one article of evidence, two conditions are requisite, viz. that it has
begun to exist, and that its existence has not terminated ; that it has
been in his power, and tliat he has not lost it. Hence arise two
different practical objects requiring different precautions ; the one
consists in finding evidence, the other in preserving it. The first is
to be gained by enquiry or investigation ; the second by expedients
which vary with the nature of the evidence. In every case the pro-
blem is this— to lay before the judge sucli evidence, whatever be its
nature, a» is necessary to establish the claim of the party, justify his
title, and lead to a decision agreeable to right. '

If we analyze this principal problem, we shall find that it is re-
solvable into three perfectly distinct problems.

L To discover the source of evidence, >vhcther it be a thing or
person.

2. To bring it before the judge.

3, When it is a persony to obtain his testiqionvj in regard to

iflfi3 ATUK4T1U ON-

^thingsi theiie»is> no difficulty. To obtain testimony' from a p^^9on^
he must write or speak^ or declare himself in some manner or and-
ther j btil to make a thing give all the evidence it can givey it iisKinly
nedesetalytpi render it palps^ble to the senses. This distine(ik)n,
simple 18 it isy is absQilutely necessary^ because the two probibtes
muBti)eres61ved in Afferent. ways. What is true in regard.to the
q^ipby^qot^d tme of (lie othi^n Frequently the onei solves it-
«flei4' Wtiilethe'fHBiImidn Of the other is attended with nrach diffi^

^I'HiQbefanev' we shall treat of the discoveiy of eridenoe; the praduo-
^fi nf evidentte, and the obtaining of testimony. These ))eads <»iv
PSB^d with the objects which we have pointed out : discovery,
appearance, actual delivery. .. . : : i j i .

Thut a witness appears, and that be gives his testimony, are/two
ferfdttTei'ent things. A witness may come forward of his own^aoi-
mrd'|> oqcl a witness, when ps^Ued upon, may refiise to say .af w»v4.
VM pep9m of 1^ witness may be secured, in spite of hi^elf^ifcot
his unll is necessary to pbtair^ his testimony. If you even liavarrcj-
^11(^0 t0 i?oi^5traint^ jt is effectual only in so far as it af3l9'u{?ai|'hls
^r^^ ^ "' " " ' .. .^' -..,.

^ !i^^ th<^ ordinary course of tilings, if a man voluntarily profrenta
bim^ff as fi witpess, it is with the intention of deposings But^ere
hHf^l^oce^} ^vei> against his inclination, toappqarin this cbaiao^
|ii at^Ofiirt of justice, tlie sapie motives which lead Inni to appoar,
would likewise be sufficient to make him speak. Even whei^ Ibvee
ba^bee^used to bripg^ him forward, the proof tlnis giv^n of his
<w^eaknes^, takes from liim any inclination to maintain so une^i^
a S;truggle as that of a captive individual against the public poxveii

Siic^ i^ tlie nsual course in the matter of testimony ; but a system
of ^pfoqedUre which made no provision for extraoixiinary oases, evsen
^r^ueb as are most so, would soon find itself stopped andishabkleU
in the most ordinary cases. Cases which are unusual, became! kh^
hav^ been foreseen and guarded against, would be of daily oddur-
rence, had not these precautions been taHen. •-' ; ii-ijij.

^ Iw real evidence, the discovery of the thbig to be usedas'prbof,
i» 'generally nothing more than the discovery of some indivtrhial
Wt|4b» ftas it in his keeping or under his power : thus tlve en^xiivy
after the person, and the enquiry after the thing, are <>|ily ^nd ^ifrd
|he saiqe procedure. . .)-. lul^

- .- ji .'. :. ., • , . • ■ ■ :?. » c

^v ly^^M&ms^appHcaJbk to these difermt objects : Legal P^wen, .. /o;^
^BikiAg ^w?^rtained the object in view, the pix)blem to be «olvpd,

I ' » * ( '' •

and that it consists of three separate problemfs i^ remakis to tr^t ^f
the mean^ of solving each of tbeni.

InolrnatioD, knowledge^ power : tlieee are the tkre«i oooditions
required for the result ; if any of them fail, ttie result is defectivie.
When a claimant demands before a tribunal what be considers as
his right, indination (I meaiT his incliiial!iotitx> produce liisi^ideiice)
exists in all its force ; his very object is to exhibit all the evidencetin
bis favour. To accomplish his pprpose, all th^l rem^liis for him to
do, is to fulfil tbp two other conditions: I. Knowledge^ that ifi^ he
niii$t l^now from what sources the evidence is to be dmved« vrhe-
these be persons or things. 2. Power— the power, that is, of bring-
ing oiit the evidence by the testimony of persons or the examiatttion
of things.

Knowledge, whether it regards things or persons, that may strve
^s evidence, is generally complete ; in regard to it th^re is nothing
oiore to be desired. Power is the only one of the three reqUbite
ooqditiops for which the party must apply to the legislator apd |he
judge* . ' .

Supb legal powers are necessary, not only to obtain evid^np^
the source of which is known to him, but likewise to enable him to
diseQvic^ what he has not yet ascertained. In both case|«, th^ m^ans
employed will be either p&i/^a/ or mora!; physical, when tkey.ACt
upon the body corporeally ; moral, when they act upon thp bo({)!,
throfigh the medium of the mind. In other words, the latter ^re

Of tiiO physical mean^ applicable to this object, those whiph are
Kiqst natural, and most frequently eniployed, may be'rang^d under
the following denominations : 1 . Entry. 2. Visit or search* 3» In-
spection. 4. Transcription, or imitative represeutatioi»« i 5» deques*
^ration. 6. Arrest before the judge. 7. Detention of pei:$piM.

8. Iclentiiication, or marks to serve the purpose of identifying.

9. Maintenance and aliment. 10. View by the judge.

The means included un<ier the class of motives are, simple i:a-
quisitions, rewards, and punishments.

1. Simple requisitions^ I mean by this, such requisitioiia as
trust entirely to the motives which the nature of the thing furnislies
to the witness, without the addition of any threat or promise.
Such are placard? and advertisements in the public papers^ nvW-
ther proceeding from government or from individuals. .

2. Offers of reward, most commonly pecuniary, whether made by
government, or by individuals under the authority of government.

.3. Th^ denunciation of certain punishments in ca$i^ of disobe-
dience. As the right of punishing belongs exclusively to the go-
vernment, it alone can make use of this means.

aMfb

A TREATISE ON

t r

■<.',

1 1 )

t , J , ; ■ I » . » ■ ' I I

CHAPTER «,

' ' ' )l> '"Mil

J . I n » )- . • I • .

... . <>^TBfi.M¥^P XQ ftPCUI^K THE PftODUQTlQN 9.F.jeyipR2yp>:. . . , ,

» • .

t '

• •.

1 . Tribunals 'u)ith' appropriate powers and obliyations. " •
Whatever meansthe law may afford for procitrinjjand prodiiclnir
evidence, their efficacy will depend much on the manner in which
the courts are constituted, that is, on the pov/ers vested in^ and the
6\)ligations imposed upon, the judges. The organization of courts
of justice is a subject too important and too extensive to be treated
of incidentally, in a work which lias another object; but therfe are
some principal features which must not be omitted, because th^y
comprehend conditions essential to the ends of justice. Such are,'*

1. The uninterrupted continuation of the sittings of the courts.

2. The occasional perambulation of the courts.

3. Investigatory powers, competent to follow out a whole chain
of evidence, of whatever kind it may be.

Ccmtinuation of the sittings. — ^The sei*vices to be performed must
correspond with the existing necessity for them ; and as the ene-
mies of public order are always aimed to attack it, its protectors
ought to be constantly in arms to defend it. To suspend the func-
tions of the tribunals is to grant a truce to adversaries who grant
none themselves. Regular vacations for physicians and surgeons
would not be a whit more unreasonable than regular vacations for
judges. It is scarcely possible to conceive an interval of a day, or
an hour, which does not occasion vexation, expense and delay,
and expose people to indirect injustice, were it only by the loss of
evidence ; for, if there be species of permanent evidence, which can
be found whenever they are needed, there are others more evanes-
cent, which exist only at a given moment; and the favourable oc-
casion, if not seized, never returns. At present, I only advert to
this important consideration; it will be subsequently put in a

clearer light.

There are countries, in which the idea of a permanent court is
leckoned extravagant. Why? Because the whole judicial system
of these countries has been framed by and for lawyers. Parties may
suffer, or be ruined ; prisoners may groan beneath their fetters; .
evidence may perish, and justice perish along with it; such evils do
not shake the stoicism of legislators and lawyers. This is the result
of periodical sittings, and various rules of procedure. JSvci^ body
t^f« it» but w}io dares to (ouch it?

II. Tribunals occasionally ambulatory.

Evidence frequently exists only at a given time and place; it
must be laid hold of where it is, or lost akogether. In the ordinary
course of things, it is proper, in ofder to spare time and expense,
and consult the interests both of the parties and of the judge, that
the witnesses should come to the judge, rather than the judge go to
the witnesses ; but there are cases in which the contrary must be
done, under the penalty of losing the evidence.

The cases in which the judge ought, to be on the spqt^ may be
classed under two heads : , . ,

^ ^\. iVi^sit; acj per^onaniy when the iixspection of jtjie person is jiecesr
s,W.l'^l't'?^JHte*?r...'Wherathe person, for instance, is bed-rid^n^.Ui
^p^iji^qqiiqpcQjOf ai> ii?icurable? or }oag continued disease. Likewisp
in^.thp..,9ps^.Qf offences Including a great number of deJinquept§,

sm9h *\^..^^PJ?^ ^^fi ^"^*^^'^'^^^^^^''> ^v^^^'^a from the number of the
crij^iq^^^.an(l their perseverance in the offence, the presence Jpf the
judgif. J.i^ nqc^ssary to, put an end to it, the ordinary police bei^^ in-
sufficient for that purpose. . ,

,^^ y^sit.CK^ J'^Wj when the source of the evidence belongs. ,V> tlie
class of things. Tiiis is the case when the thing is an immoveables
^j,\v|ipft,.thi^ matter in dispute is the extent of a piece of g|*ou;id,
tl^g,st9,^9 9f a, house, uiamifoctory, bridge, or canal, in questions rc-
g;^i;^ji]g,4-epq.ir3. .Thi?, tpo, is tlie case, when the thing, though
n(>|;,fj|)§()fptply immoyeable, cannot be removed without preponde-
r^Jjjijg J}^p9nv|?ui§iflce§, the utensils, for instance, of a mani^f^ctoryj^
a,^:^\v;^^j|,,pr ajiiiiue; statues, productions of the fine arts of a
l^ijpgj^jp^, gyeat. quantities of provisions or merchandise, &c. , ,
j^^Bi^ifjlfliQpgh all the^e olyects may require the exercise of ju-
dj^^^^ fiji^fjiQtiqu^ atagc^q-ter or smaller distance froip tl^e^seat ofth'e'
^qu^^;,! it,^s »ot^ in .every case, necessary that the principal ju^ge
]^^sj^lf;^oul^,repi^ir,tp. the. spot; he may delegare this duty to
sqTj|p.^r,u^t,-\v:prthy! fter^on^ an, inferior magistrate, for example^ , re-
sp/;fi^i|3^|e,,\)y,}iis situ^t;ion, ?ind possessing the necessary knowledge.
^^^Itj.^;^jfid^^^;, t[ia1;jj werp, tjie thip^ , practicable, it would J[?e desir-
jjjbl^jtl^ij^ th^ jp(J^,e wlp i^.to.dl^cicjp, shopld himself colject all the
evidence — thatev^ry thing used as evidence on either^ sijtle, and
^P%f* ,^llj^/;?;^fii?.ipny, slipul^l hf^ve been adduced in,|iis own preseppe ;
fi^j^jtlje fjcp^f^^f s^^curity jfl regard, Jo supUevi^ence^^ is/o'und in.the
e;^^/piflf^^\Qy, in the^9C9?i.p,9py;^?g ch;ci^sta9ces/in the inducr|y^'s
^^'^j^ijp •fr.pfl>. th^ JtQHf,^fl}.e./rp9t^re,,co^nfenapce^ iT^^^^ or hes^ta-
{\^n^fyj^ilfl\f^\\itY,(^^^^ a wofd„ fijoiu the wfiole conrfuct of

i!\fS..^^W^r^r i^V^ desii;^t)lp ,9^ this would he, it isncJt always prac-
liififtk^v.^'^he j^^cte^/fiai^^^ thing. Suppose he

A TB|{Ari9S ON

had the potvw of choosing whether he would quit kfe <coiirt, a«d go
out to collect eviAtnntj or coDtinue tb bU, he wottl4 'hftve to de-
cide according to the comparative importance \0f the case^ requiring
this sort of investigation) aiid the existing necessity for this sort of
Evidence.

Whether the examinatidti of the evidence requires the presence of
a principal judge, depends on its being real or personal. When a
witness is to be examined^ this is undoubtedly a judicial function.
It can coiiveniently be intrusted only to men clothed with the ju-
dicial character, or at least qualified for this duty.

The case is different in real evidence. The report of a trust-
worthy tvitness gives nearly the same security as the personal in-
spection of the judge 5 if it be less satisfactory to the judge hiqiself, it
ought to be more so to the public ; for more confidence is to be reposed
in a witness who may be examined and confronted, th^h in a judge
who cannot be so dealt with. If thfe thing were of such a nature^ that
the judge could be accompanied by a suiScient number of the pub-
lic, his inspection would make the evidence stronger than a mere
report. In declaring what he had seen, he would have as guaran-
tees all those who had seen it along with him. But if he repaired
to the place quite alone, his inspection, though more satisfactory to
himself, would be less so to the public ; it would be arbilrary> 4U»d
exposed to injustice, corruption, indolence, or caprice.

In cases where the thing is of such a nature as to require tl&B tes-*
timony of men of skill, a r^por^ on the real evidence is much j^ope-^
rior to the direct evidence. If theft has been committed by houa^-'
breaking, the judge is as well qualified as an architect^ to >df cide
whether the doors and windows have been forced $ but if a land-i
lord pursued a tenant for damage done to his house^ the judge,
though be repaired to the spot^ would be extremely embarrassed in
estimating the waste. If he remains tranquilly on his tribtmalj i-e«-
ceiving the evidence of architects on both sides^ his deckion will
rest on the best grounds the case admits of.

In written evidence, no case can be conceived calling for the p^r->
sonal presence of the judge^ unless it be an inscription on some im^
moveable object. Written documents can be removed 5 atid> if
their removal should occasion some preponderathig inconvenience^
copies will in general be sufficient for every judicial object.

3. The third object in the organization of courts, regards the
powers of investigation with which they ought to be invested,
powers fitted to follow out a chain of evidence in all its degrtes,
from the slightest indications^ from hearsay, which cannot b^ re-
ceived in the character of final evidence^ up to that which has 611

Ibe klMUMesnec^sfiaiiy for this puipose^ But thi§( t(»ple^(,fi^otP:U9<
extent andvlniportaneej^ requires a separate chapter. « !,«!!<>- ,,» «•:

-J /I !*[i J (■■)■'': . . ■.* " • ' . - .?i .{ ^ rtf/'.i'r.j 'M'j'

U >'

CHAPTER HI.

» /

hi

PHYSICAL ilEANS APPLICABLE TO THE ptoDt/CTIOJT OF EVlii£I<^(iiZ. " ' •

, I. Verbal distussions are necessary on this subject.
Fkoif diversities of circumstances, the production of evidence
can be accomplished only by a variety of operations requiring differ-
ent legal powers. Before organizing and conferring these powers,
they, must be distinguished and designated by appropriate appella-
tions. It is true, that this discussion looks too like a grammatical
exercise; but, since words are the only instruments which the
legislator can use to express his ideas, it would be as foolish in him
to refuse to occupy himself with considerations about words, as it
would be in an artisan to disdain to trouble himself about the uten-
sils of his profession.

II. Source of this diversity of operations.

Thfese tip^rations are diversified : 1 . From the nature df the
tfiitrg ; 2. Fr6ih the order of tiiiie.

1. From the nature of the thing; that is, according as the source
of the evidence belongs to the class of persons, or to that of things ;
of things, generally taken, as being moveable or immoveable, or of
that 'particular kind, called written evidence.

S. From the order of time : entry, search, inspection, arrest or
seizure, detention, production, sequestration ; — this is the order in
whic3fi these operations naturally follow each other.

The circumstances in which these means are to be applied, point
out of themselves which is to be selected. There is no difficulty
in regard to this point; but there is a great deal in regard to the
vexation which may result from the use of this or that mean, and in
deciding how far the advantage to be gained counterbalances the
inconvenience. It is a choice between two evils; the dangers to
which justice is exposed by a want of evidence, and the inconve- .
uienee to which individuals must submit, in order that it may be
furnished, are to be weighed and compared ; the advantage is then
to be raised to its highest degree, and the inconvenience reduced
to Its lowest. The result of thi^ examination will determine, what
degree of pbw^r the law ought to bestow on the judge and the
parties. ^

304 A TRRATISK ON

III. Operations necessary to the production of evidence* ,

1. Entry. — ^This operation supposes a portion of space contained
within certain physical, or, at least, ideal limits^ and occupied by
some person on a particular occasion. The space thus bounded may
itself be the source of evidence; as when the matter in dispute is a
field or a house, or it may only be a receptacle containing it ; the
ultimate object with which a house is entered, may be, not to see it,
but to find a chest whose contents are to be seized.

In so far as the securing the production of evidence (the object
in question) is concerned, tlie mere entry, considered in itself, and
without any farther result, would be useless. Still, it is an indis-
pensable preliminary to the other operations, and is useful only, in
so far as these subsequent operations are themselves useful. But,
whether useful or not, it is almost always vexatious. This, with-
out doubt, is the reason why so much attention has been paid to it
in the jurisprudence of England, and is a sufficient reason for dis-
tinguishing it from the others, and considering it by itself.

The degree of vexation attending it depends on the nature of the
place entered. If it be an iminclosed field, the vexation is nothing;
in an inclosed field, it is commonly very small. In buildings, it is
greater or smaller, according as the parts entered are more or less
remote from the inhabited parts. It is still greater when the inte-
rior is entered, or a bed-room, and, above all, the apartment of a
female.

T. Visit, Search,

The ^yord search presents a more complex idea. It is equally
applicable to personal and to real evidence. It brings forward two
objects, the pbice searched and the person searched.

The place in which the thing sought for is contained, may be of
any dimensions, from the largest church to a toycase. The de-
gree of vexation depends much on the size of the place searched,
and, above all, on the circumstance of its being inhabited or unin-
habited. Hence an essential division into inhabited receptacles,
and uninhabited receptacles ; and a subdivision into permanent ha-
bitations, such as dwelling-houses, and those which are temporary,
such as conveyances, whether on land or water. Water convey-
ances have a peculiar and important quality, of which we shall im-
mediately speak, — that of being subject to a long detention.

The word search includes, in its principal signification, an acces-
sory idea, that of a thing or person being concealed. Persons may
either be concealed on purpose, or conceal themselves j things may

JUDICIAL BVIDBNCB.

m

he concealed designedly or accidentally. Search, in regard to thing*,
does not presume that they are wilfully concealed.

Search is equally applicable to written as to real evidence.
Written documents, simple deeds, detached contracts, deposited in
i-egistei-s, are generally easily found; but there are cases, in which
the object of the search is more laborious and extensive : when it
is necessary, for instance, to consult books of accounts, compare
different books, and examine a variety of registers. English law
furnishes an example of it in cases where it is necesshry to refer to
the parliamentary jo^rnals, to the registers of thC treasury, the'
admiralty, or the war-office, the archives of corporations, &c.

II. Inspection.

The operation represented by this word is the most simple, and,
considered in a merely physical light, does not include the slightest
vexation. Formerly the look of a sorcerer could blast crops and
destroy herds, but it is no longer so ; the mere act of looking can
produce no physical change on things or persons. Still, however,
the curiosity of a penetrating eye, detecting a process of manufac-
ture, the secret of a letter, or secrets still more delicate, may occa-
sion a degree of vexation to which there is no assignable limit.
The unhappy Ovid never ceased, during his exile, to lament Itie
imprudence or misfortune of having seen, in the palace of his
master, what that master's wounded sensibility never forgave him.

This operation is more particularly applicable to writings ; and
the degree of vexation will depend on whether the writing was in-
tended to be public or private.

In the former case (which comprehends all contracts, all writings
belonging to the class of pre- constituted evidence), the document
was originally framed, if not for the inspection of the public, at
least for that of the judge and all parties interested ; its inspection
can be vexatious only to the delinquent. In the latter case, where
letters, private correspondence, or a private journal, are in question,
the matter may be such as to render it highly desirable that they
should not be communicated to any stranger, and the inspecCion
of them may expose the author to the heaviest inconveniences, or
make him suffer the keenest sorrow.

III. Copying.

In its literal meaning, this operation is lapplicable only to written
evidence. If a document cannot be removed without a preponde-
rating inconvenience, a copy is indispensably necessary, as a sub^
stitute for the original, before the cause can be definitively heard.

X

dos

A TUMTIJR m

In many oa8e»9 a refusal to furnish a copy would be equiviJent to a
refusal to produce the original, that is, equivalent to a denial of

•justice.

In real evideBce, ^presentations given by drawings, paintings, or
models?, are analogous to copies of writings. Architectural plans
of a house, or sliip, which is the matter in dispute, and designs or
models of machinery, which has become the subject of litigation in
consequence of a patent, belong- to this class. There are iftany
things which cannot be themselves exhibited as evidence, but there
are few whicltf may not be represented by one or other of these
modes of imitation,

IV. Detention.

' A ship of the line, with its complement of fifteen hundred or two
thousand men, is, in some measure, a floating city. If the deten-
tion of a coach or wag on with one or two persons is a vexation,
how infinitely greater is the evil in the case of a ship of war ? An
act of this sort, illegally committed, would include, according to the
absurd language of the law of England, the false imprisonment of
two thousand persons.

In real or written evidence, detention coincides with sequestra-
lion.

V. The bringing the source of evidence before a Judge.

This operation is equally applicable to persons and to things
which are regarded as sources of evidence. It is applicable to
persons when there is a supposed repugnance on their part; for,
without this repugnance, or some physical infirmity, persons can
appear of themselves before the judge. But supposing this re-
pugnance to exist, (and it will probably exist in one case out of
two or three), the operation will often be as necessary with
witnesses, to insure their appearance at the time when they will be
needed, as with parties themselves, to ensure their appearance to
await justice.

In these cases, therefore, recourse must be had to a summons
accompanied with threats, or to constraint by the oflScers of justice.
Whatever is necessary in regard to persons, may be equally ne-
cessary in regard to things, when the person, detaifiing them will
not voluntarily produce them.

VI. Arx^-^Sequeitration,
Th^ former of these terms is applicable to pereons; the laHer, to
tluBgs. To aanest, is to consign a person to a place of «nre custody,
wtoa a persoii is the source of evidence. To sequestrate, is to

JUIHCIAL SVIDSNCB, 907

p ace in sure custody the ihiDg which ta the source ot evideiice.
In paint of intention, those two operations are the same ; but there
i9 a great difference in their effects, and particularly as regards
vexation.

The. propriety of putting a witness under arrest, is a question
which arises after he has been brought before a judge. In what
cases? Not in the case, where the witness is to be heard for the
last time ; for if he has made his deposition, the ol)|ect is gained,
and the vexation would be utterly gratuitous. Except the extrenie
and infinitely rare case of a witness refusing to depone, (for then
his detention is indispensable), it is only when the examinaticm is of
a preliminary nature that this precaution can be necessary. The
'ol>}eet would then be, to make sure of him for a subsequent exami-
nation ; and the vexation would be justifiable only on the ground of
his displaying so strong a repugnance as to render his appearance
doubtfiil, unless it were thus secured.

But is it not a measure of excessive rigour to detain a man, that
you may be certain of his appearance as a witness, in a matter with
which he has no connection ? You deprive me of my liberty to
force me to come forward in a quarrel in which I have no interest.
How is this to be justified ? Is not this punishing the innocent ? '
What more is done to secure a person accused of a crime ? True $
but the law has the same reason for securing both, and the object
is the same ; the pne is secured to prove the crime, and the other to
suffer its punishment. Justice is equally impotent, whether it b^
the witness or the culprit that escapes from her. If the restraint
laid on the liberty of the witness were an insurmountable obstacle,
it would be necessary to give up every exercise of power. To
exclude all vexation is to exclude all government. To pretend to
make laws which shall never lead to vexation is a mad prefect ; ,
but to remove every preponderating and superfluous vexation fs
the object at which reason aims, and one which can be attained
only by uniting the affections of the philanthropist to the genius
of the legislator. * . '

Any diffei^nce between privation of liberty as a punishment, and
a mere measure of security, can be found only in some difference
betitreen the places in which the individual is confhied. He who is
suffering it as a punishment ought to be confined in an edifice
appropriated to that purpose, under the guaro of public officers; in
a word, in a prison : he who is detained merely to secure his
appearapce^ as a witness, ought to be detained in a place which
carries with it no accessory idea of punishment, or even where he
himself chooses, provided that his safe custody is sufficiently ensured.

X

30B A TABATXS£ ON

. Sequestration^ a measure employed more or less in cfvery system^
to secure the restitution of effects to their true proprietor, is, in
many cases, equally necessary for the purpose of furnishing evidence.
The direct object of it is, to prevent the loss of evidence, in so
far as that loss might arise from the nature of the thing itself.

But this object, though the most direct and evident, is not the
only one. The intention of the sequestration may, likewise, be to
preserve the thing such as it is, and put it beyond the reach of any
fraudulent alteration, which might convert it into a piece of false
evidence. For it is certain, as we have elsewhere explained, that
forgery may be committed in real as well as in written evidence.

The choice of the persons in whose hands sequestrated articles
shall be placed, ought to be regulated by the same reasons as the
detention of witnesses. The direct object is their safe custody, and
every vexation not necessary to this object, ought to be. avoided.
According to the circumstances, the actual possessor may be
allowed to name the person to whom the thing shall be intiiisted.

VIL Identification, '

. In real evidence, identification consists in making upon the thing
■to be used as evidence, such marks as will be a security to the
judge; that it has continued the same from the occurrence of the
fact till the decision, and tliat no other has been put in its place,
either by fraud or by mistake. Thus, according to the French
procedure, when the caujse of a person's death was the subject of
enquiry, the judge, was accustomed to put bis seal on the forehead
of the corpse.

This operation may either precede or follow that of presenting
the thing before a judge. In the latter case, it will be perfortned
under the eyes of the judge ; in the former, it will be performed by
an offici&l person or a private individual, according to circumstances.
But it ought to take place as soon as possible after the first in-
spection 5 otherwise, there is always ^ danger of falsification and
substitution. *

, This operation is analogous to that of sequestration ; their object is
the same; in some cases they are combined, in othere the former
holds the place of the latter. The seal is sufficient for the identifi-
cation of papers. Identification, in comparison with sequestration,
and considered as capable of serving the same purpose, is the pre-
ferable security, for it is not attended with any vexatious con-
sequences. .

JUDICIAL ETIDENCB. '909

VIII. Maintenance and Aliment.

Id questions regarding animated beings, I mean by maintenance
every thing necessary to protect what is to be a source of evidence
against any degree of deterioration. As a piece of evidence, il;^
must be kept whole and sound ; as a thing or person, it must be
secure against all unnecessary vexations. The expenses of tils
maintenance ought to be borne by him who is to be a gainer by the
measure. •

These expenses furnish an additional reason against the detention
of persons and sequestration of things, when the same security may
be obtained without them.

The expenses of witnesses lead to a great number of questions,
which are all attended with much diflS^culty. 1. Ought the witness,
if he is able, to bear his own expenses; and, if he cannot, who
ought to bear them ? 2, Ought he to receive the allotted sum
before or after his appearance ? 3. By what principle should the
amount of the sum be regulated, by the pecuniary circumstances of
the witness, or those of the party calling him, or those of both
taken together? 4. Should it be competent to a party to force the
witness to appear and depone, before he has received his allowance ?
5. If any difference is to be admitted, according as the case is crimi-
nal or civil, and according as an offence is private, public, or semi-
public, what ought this difference to be ?

' All these questions, and many others which might be added, are
so many cases to be provided for. But the legislator, while he
fixes some of these points, ought always to leave several of them to
the discretion of the judge.

Thp legislfftor, in endeavouring to regulate the amount of this
allowance, navigates between two shoals. If it be fixed too low, it
is an injustice done to the witness; if it be fixed too high*, it may
operate like subornation, and give the witness a leaning in favour
of the person who pays him. In this dilemma, publicity is our only
resource. Every allowance or indemnity given to a witness ought
to be publicly announced at the time of his examination; or, at
least, the opposite party ought to be entitled to demand this in-
formation. In this way, if the suna be excessive, the judge and
the public are warned of the effect which it may liave on the veracity
and accuracy of the witness.

Suppose a bargain struck ; suppose that an allowance is promised
with the condition, that the money shall be payable only if the
testimony given, or the issue of the cause shall be this or that.
An allowiance, thus promised or paid beforehand; is, beyond

310 A TBBATIW ON

contradiction, an act of subornation ; and^ in every system of law, a
punishable offence. But is bribery accustomed to appear in so un-
disguised a form 7 Does it act so openly ? It may now and then
be so among the dregs of the people ; but 1 believe thai the cases
in which the conditions of the bargain are thus expressed, are few,
in comparison with those in which they are understood. The
8iA>orner and the suborned conceal arrangements of this nature.

CHAPTER IV.

THB APPLICATION OF REWARDS AND PUNISHMENTS TO THE PROCUmNQ OF

EVIDENCE.

1. A coMPLBtB system, that is, a system embracing every case,
and providing for every ofcgect which ought to be kept in view,
can exist only by combining three sorts of means, simple requiiilionsy
ihe mdiwe of reward, and measures ofcoertian.

2. When the fact has been disclosed to the judge, a judicial
summons, addressed to the witnesses, will, in general, be sufficient
to secure their appearance.

8. T^e principal, and almost the ohly, use of rewards and simple

requisitions relates to the disclosure of the fact.

«•
I. Siskple JRequisUians^

At flrM Bight, this mean . appears so inefficient as scarcely to
deserve to be mentioned ; but a nearer examination will .show its
efficacy to b<^ mote extensive. A simple requisittotf would have
Very little influence in inducing a w^ness, who was not himself a
party, either to appear or depone i but it will often prove efficaobus
in obtaining a disclosure.

It Is troe that it does not create any new motive to make the
individual be serviceable to justice ; and in this it differs from
rewards and coercion, which may lead a Tiili that was previously
indifferent or on the opposite side j but it may add to the strength
of the motiv€)s which already exist, and which require only to be
eiccited^— motives connected with the i^ligicms or moral sanction^ or
with that enlightened benevolence which embraces the interests of
the whole society. If the^e be any truth to which even the least
eultiyafeed minds are not altogether insensible, it is, tfaot judtiee is
lieoes^ry to the general safetyy and that, without^vidence, justice
oamiot aot iSettin^ aside the effects^ of particular prejudices, there

JUDICIAL BVIPKNCS. 311:

is no man in a civilized community but believes, that his duty
towards God and his fellow-meh requires of him, at least on eertdin
occasions^ to disclose a crime which may have come to his know-
ledge ; and particularly, when the public authority solemnly calls
upon him to concur in gaining so d^^sirable an object. *

Simple requisition is not the mode to be adopted when the
souiX'Cs of evidence are known ; or it is notorious that a particular
individual can give the necessary information. Nothing would be
more imprudent than to trust to the accidental operation of a
weak motive, to procure the performance of a, service so iodi^
pensably necessary, when stronger motives may lead the in-
dividual in an opposite direction. To leave justice at the mercy
of such a chance, would be to make the lot of a party absolutely
dependent on the will of an individual ; and the melancholy con-
8equen6es of such a precarious and vicious state of things are easily
seen.

The necessity of this rule of pvocedure is too evident to have
allowed it to have been altogether neglected in practice. There is
no system so incomplete as not to have attached tome punishment,
more or less suitable, to a refusal to depone When called u|>on
by a judge.

Simple requisition, thetefore, ought to be limited to oases in
which there is as yet no known witness* It is not addressed to any
particular individual, but to all members of the community, with-
out exception; and so soon as- there i/Vlieason to believe that
a particular indfvidual can give the desired information,' it is
not a simple request that is addressed to him, but the ob-
ligation to assume the chai'acter of witness is imposed upon bim
formally.

* The author, when speaking of rewards, observes, that they are attended
with some danger ; tiz., the danger of producing falsehood. It seems to me,
that even a simple requisition is not exempt from this inconyenience.

If the requisition is in the name of religion, like the monitories of Catholic
countries, such a solemn appeal gives to the mind a certain degree of excitation.
A disclosure which the state demands in the name of heaven, becomes an
object of interest, curiosity, and public zeal. There are always individuals,
who, from vanity or fanaticism, from a wish to gratify their superiors, to appear
more knowing than others, and shew that they ar& interested in an important
affair* will be tempted to Say more than they know, and to mix up a great
deal of falsehood with a small quantity of truth, under the idea that they are
serving the cause of religion and their country. The person who plays a part
in such an affair enjoys a momentary eclat. He is the man of the day, and
nothing is more contagious than the desire to become suddenly an iniportant
personage, and emerge from the 6bscurity to which we have be^n accustomed.
This is no reason for abandoning the requisitions of which the author speaks ;
but it is a reason for distrusting the witnesses whom tkey bring forward.

312 ;A TREATISE ON

IL Application of Renoardt,

It will sometimes be necessary^ in order to discover evidenee^
to promise a reward. Why ? Because, otherwise, there would be
no evidence; the inciting motives, if I may so speak, would be toci
weak to overcome those of an opposite tendency.

This mean, in comparison with the two others, has several dis-
advantages. Its efficacy is precarious. As the perscms to whom
it is addressed are unknown, the offered rewardf which is the same
for all^ cannot be adapted to the diversities of circumstances and
inclinations ; and, if they were known, reward has not so powerful
an. empire over the will as punishment. This inconvenjiaftce may
be partly obviated by combining the two.

2. This mean is not free from the danger of producing &Ise
testimony; the danger, however, is greater in appearance tha» in
reality. Because a man requires to be paid for telling the tihith, it
by no means follows that he is ready, at the same price, to tell a lie,i
inflict a cruel iKJury, and exppse himself to the punishment of
false testimony.

3. However this may be, this circumstance weakens the cre->
dibility of the witness in the mind of the judge, and still more in
that of the jury and the spectators. This prejudice produces a
sensible effect on the manner in which the testitnony of those
persons is received, whose only crime consists in accepting' what
the law offers them, and taking the price of a service w.hicfa the
legislator called upon them to perform.

I shall not stop to remark how much instruction may do to
weaken so unjust a prejudice; but there is one easy means of
preventing this bad effect of a reward; viz., by mixing up with it
a portion of punishment. A witness, who, perhaps, is influenced
by the hope of the reward, will be the first to ascribe his conduct to
the necessity of securing himself against the punishment ; and
many persons, who would not tolerate the influence of a pecuniary
interest, will admit this motive as not only probable but justifiable.
There are many other cases in which a little constraint, or the
appearance of constraint, is necessary, to furnish individuals with an
apology for conduct which is perfectly agreeable to their wishes
and inclinations.

Revvard has another inconvenience. So soon as there are witnesses
who accept of it, others who would have performed the same
ijervice gratis keep back, from a fear of being involved in the
discredit attached to the former. It is true, they may declare
befor^han4 tbi^t they will not accept of any reward; but doubts

JU1>(CIAI. EVlDBNCB. 313

may remain in the public mind;' and the degradation, which
prejudice attaches to witnesses who have a pecuniary interest in
the success of their testimony^ repels those who are actuated by no
hope of reward.

What is still worse, is the name of reward without its reality.
The service to be performed subjects the witness to inevitable
expenses which he is unwilling to bear. In England, the reward
is, in many cases, so disproportioned, that it covers only a part of
the necessary expenditure. What is the consequence ? That the
reward, instead of being an encouragement, is an obstacle. The
witness, instead of receiving a pretendied gain, suffers a pecuniary
loss, aggravated by a loss of estimation.

The disfavour attached to the acceptance of a reward, does not
extend to the acceptance of the same sum in the form of an in-
demnity. Many would think themselves degraded by a pecuniary
recompense, particularly if the sum were small in comparison
with their own fortune ; but no scruples of honour oppose a mere
exem.ption from loss. In France, while the aristocratical principle
was in full force, exemption from the iaille was so far from being
considered a degradation, that, on the contrary, it was reckoned a
degradation to be subjected to it. An exemption, equivalent to a
sum of money, was a proof of nobility. I would not recommend a
jpalsehood, much less a falsehood clothed with judicial authority;
but if there could be any useful deceit, it would be better to give a
reward under the name of an indemnity, than a complete or incom-
plete indemnity under the name of a reward. *

There is another disadvantage attendant on the offer of a reward
for the discovery of crimes, but confined to those cases in which
the persons called on to become witnesses are accomplices of the
delinquent. The reward, in this case, is worth nothing, unless it
be accompanied with a pardon. What is the consequence?
Society is delivered from one criminal, but is left burdened with

* The cases la which the acceptance of a reward is attended with odium,
and those in which it is not, are so notorious, that it is not worth while to
enumerate them. Experience teaches all the world the difTcrence ; hut nohody
thinks of applying this experience to legislation. In the administrative, as in Uio
judicial department, the routine of practice,ismore regarded than the effects to
which itleads. Every person in office appears to me to be made up of two heings,
who communicate nothing to one another — the private individual, and the
public man ; they arc, so to say, like the two surfaces of the Leyden bottle,
between which there is no commiraication. The experience of the one is of no
use to the other. All the errors, into which men have fallen on the subject of
evidence, would have been avoided, if even the commonest experience had been
consulted. . The good sense of the individual has been subjugated by the
prejudices of the lawyer. He would take good care not to follow in private life
the maxims by which he is directed in affairs of judicature.

314 A TBEATISX ON

another ) a branch is cUt oS; but the root is not eradicated. Fox*
hunters, even in the bitterness of the chase, do not lose view of the
necessity of preserving the race. There are countries where the
policy of the legislator is that of the fox-hunter ; or, at least, where
its effects are the same, though the intention may be very dif-
ferenti •

In England, this system of half-destroying and half-preserving
is an habitual practice. There are examples of it on the continent
of Europe, but they are comparatively very rare*. This pemieious
policy is connected with a rule of law which excludes the evidence
of a criminal against himself. When folly is pushed so far as not
to allow questions to be put to the criminal, the answers to which
might inculpate him, it becomes necessary to procure evidence by
auction. It frequently happens, that some can be convicted only
at the expense of granting impunity to others ; and this expedient,
extraordinary as it is, often proves InefTeetuaL

III. Use of Co6rcion.

The penal means applicable to the three objects in view, dis-
covery, appearance, and deposition, are not exposed to the same
objections as the reraunei*atory ; but they are exposed to others,
and could not, in every case, fill the place of the former. In par-
ticular, the dread of punishment would frequently be ineffectual to
compel disclosures, were it not aided by the hope of reward*

So much in general. In regard to the most advantageous mode
of using them for the accomplishment of these three ends, there
are distinct considerations belonging to each of the heads, which
will be handled separately.

CHAPTER V.

OF INVESTIOATOEY PROCEDURE, AND COURTS OF ENQUIRY.

By mvestigatory procedure, (procedure investigatoire), I mean
every mode of procedure directed to discover an intermediate proof
of some other proof. In other words, its operation consists in
tracing out evidence which is definitively admissible, by means of
evidence which itself would not be thus admissible. In short, inves-
tigatory procedure occupies itself in the search of indications ; it is
only preparatory J it goes out, so to speak, on a voyage of discovery.
If a piece of evidence possesses that chai*acter which would
render it admissible as a ground of decision, it will not, tlierefore.

^ JUDICIAL BVIDBNCS. 315

be less receivable as indicatory evidence; but il will frequently
happen, that a species of evidence, altogether inadmissible in the
former character, may be very admissible in the latter. Hearsay,
for example, which a judge could not admit as a ground of his
decision, may instantly put him on the right scent to arrive at
definitive evidence.

If we suppose that all the evidence which the case furnishes is
ah'eady known to both parties, there is no room for the investigatory
procedure, such as we have described it. For the sake of dis-
tinction it may be called definitive procedure, testibus cognitis, or
probaUonibtis cogmtis.

The party naturally directs his attention to the discovery of
evidence, either by applying directly to the sources from which it
is to be drawn, provided he knows them, or by making enquiries
at those who can give him information. For instance, one person
has heard the fact related by an eye-witness; another saw the
stolen goods; another had them in his custody; in a word, some
other has seen in the hands of a third party, a contract necessary to
prove a title.

If all these different individuals are equally disposed to lend him
their assistance, every thing is well, and investigatory procedure is
unnecessary.' If, on the contrary, from enmity towards one party
or favour towards the other, from a wish to spare himself trouble
or the fear of eJcpense, one of these indispensable witnesses refuses
to give the information which he possesses, the just right of
the party remains ineffectual ; he loses his cause as thoroughly, as
if an essential witness who had been discovered should refuse to
appear. If a written deed, deposited in a public register, from
which it can be removed only by virtue of a judicial order, is
required, an order to this effect is necessary, that it may be pro-
duced as evidence in the cause. Suppose that this deed has been
depositi;d in the hands of an individual, who has an interest in
preventing its appearance under existing circumstances, but an
equal intei^st in preserving it for a future occasion ; and that, in
order to conceal it, he makes it pass from hand to hand : in such a
case, powere, which will give the means of tracing it until it is
found, are no less necessary than was, in - the other case, the order
to produce it.

These preliminary ideas, without any farther preparatory
explanation, will remler the five following rules sufficiently in-
telligible.

1. Investigatory procedure ought to be applicable to all sorts of
causes, civil as well as criminal.

y

316 A TREATISB ON

2. Every court of justice ought to possess and exercise this
branch of procedure.

3. In each particular case^ the power to pronounce the final
decision ought to be lodged in the same hands, as the power of
conducting the investigatory procedure. *

4. In each particular case, what shall be done in the way of
investigatory procedure ought to depend on the degree of vexation,
expense, and delay, which the investigation will produce, compared
with the importance of the case, and the importance of the evidence
in regard to the decision.

5. Although evidence, which is merely indicatory,- cannot be
included in the amount of the definitive evidence, it ougbt^ to be
preserved, that it may be brought forward in case of contradicticin,
and thus assist in ascertaining the credibility of the latter.

Justificatory Reasons of these Rules.

Rule first. Investigatory procedure ought to be applicable to all
sorts of causes.

1. The circumstance, which renders this procedure necessary,
has no connection with the nature of the cause, and may exist in
all causes criminal or civil.

2. There is the sanie reason for calling the mediate ovitness, who
alone can discover the definitive witness, that there is for catling the
latter himself when he is khow4i. In both cases, the danger of an
improper decision, in consequence of a refiisal, is the same.

3. We have seen above that in the case of a written document, a
document necessary to support a title, nothing would be easiei* than
to remove it, and pla<fe it in hands where it would be inaccessible
to the party interested, if there did not exist a complete power to
trace it through all its successive removals.

4. If this power to investigate is suppressed, the party is at the
mercy of the mediate M'itnesses; it depends on their favour or
enmity, whether they shall give or refuse the testimoiiy by ^vhich
alone he can re-discovcr the definitive evidence. If the power of
investigation is established, the party is no longer dependent on the
caprice of individuals, and can rest on the justice of his cause.

Second Rule, > Every court of justice ought to posses^ this in-
vestigatory power. This rule is a necessary consequence of the
preceding. Since there is no cause in which it may not be ne-

* This riije is not applicable in those modes of judicial organization Mhich
admit trial b^ jury. The exposition of this principle would be .in its-proper
place only in a treatise on procedure^ or the constitution of judicial tribunals.

JUDICIAL . EVIDBNCB. 317

i

cessary, no court can be certain of doing justice without the faculty
of exercising it.

Third Rule. In eveiycase, the power of deciding definitively and
the power of preliminary investigation, ought to be lodged in the
same, hands. ♦

1. When all the evidence which the case furnishes is brought
forward at the first hearing, if the judge who has taken it is com-
petent to decide, the decision (except where delay, is necessary for
purpdll^es of deliberation,) may and ought to be pronounced imme-
diately. A second hearing will only produce useless vexation,
delay, and expense. .But if the judge who takes the evidence is
not competent to pronounce the decision, in every case there must
be ti second hearing ; and the parties are subjected to all the incon-
veniences which might otherwise have been avoided. *

2. If, after a preparatory examination of witnesses, it is necessary
to hear them a second time definitively, it will be extremely useful,
that a judge who was present on the fivst occasion should preside
on the second. Why ? In order that, by comparing the conduct of
^he witnesses on both occasions, he may be the better able to judge
of their veracity and accuracy. On a first examination, witnesses
are commonly taken unawares; they have not received the data
necessary to concert a scheme of falsehood ; their behaviour, and
the manner in which they give their evidence, furnish marks
extremely visible, though impossible to be described, by which the
degree of credit, due to them may be judged of. On a second
examination, they have had time to arrange their testimony in the
way best suited to their own ends ; they are now masters of data
which teach them what ought to be suppressed, explained, pub-
lished, or added, in ord^r to remove impossibilities or contra-
dictions. . They are now actors who have had an opportunity of
studying their parts, if they chose to do it. If the judge who was
present at the preliminary examination is not present at the
definitive one, the whole of this fund of most unsuspicious infor-
mation is lost, and a false colouring may be thrown over the case.

3. When a cause must pass through the hands of two different

y

* These inconveniences will occur in the greatest number of cases. Con-
sider the nature of the causes which come into a court of justice; in the
greatest number the law is clear, and the evidence known and simple. A debt
proved by an obligation which is in the hands of the plaintiff; a debt for
goods sold and delivered by a shopkeeper,^ proved by his agent or porter ;
personal injuries proved by the person abused, or by witnesses whom he
adduces ; larceny committed in a house or a shop, proved by persons who
caught the ^ief ia the fact, or took him with the stolen goods in his
possession, &c.

318 ATfiBATISBQM

jpdges, the chance of an improper decision^ arising from the want
of capacity or integrity in the one or the other, is doubled. If the
judge, to whom the preparatory examination was intrusted, has
omitted or suppressed any essential article, the definitive judge, be
his ability and integrity ^hat it may, cannot fill up the void* If
the definitive judge, from any cause whatever, suppresses, over-
looks, or misapplies evidence which the other has collected with all
possible care, every thing which the latter has done to assist justice,
and prepare the way for a good decision, is utterly thrown a\f ay. *

In some eases, it is impossible for the same judge to be present
on both occasions. The judge who conducted the preparatory
examination may be dead, or *sick, or removec^ or prevented by
some obstacle or another. There are accidental eases which, *no
doubt, form an objection to the general rule; but an objection
which does not go far.

There Is another^objection which has a reference to trial by jury.
The jury fs present at the definitive examination of the evidence on
which it decides ; but it is not present, and cannot be present, at the
preliminaiy examination. This objection arises from the very nature
of the institution : but what follows from it ? That it is an incon-
venience to be taken into account in calculating the merits and
demerits of trial by jury, t

There is an exception from this rule. If, in any given cause,
there ara two facts to be proved, which, in regard to evidence, are
independent of each other — the celebration of a marriage, for
instance, and adultery committed by the wife, the execution of a
contract, and a falsification of it — ^tbe evidence of the two facts may
be taken at different tiipes and by different jurisdictions. The
i*eason for unity ceases in such cases ; If the posterior event is not
proved, th^re is no longer any reascm for seeking evidence of the
anterior.

Fourth Buh. In every individual case, what shall be done or
not done, in the way of investigatory procedure, ongfit to depend
on the degree of vexation, expense, and delay, which the investi-
gation will produce, compared with the importance of the case,
and the importance of the evidence to a just^ decision. This pro-

V

« ''l ■'■ '"' ' » IIJIIIll I 111 III « llll — ■^— ^^^

■ * This is not applicable to judges of review, who are to aifirm or repeal the
decision of an inferior judge.

t This question will be treated under the head of judicial orjfanization. It
will be seen, whether a distinction ought not to be drawn between cases that
require, and such as do not require the intervention of a jury ; whether a jury
trial might not be rendered optional, and granted at the request of either party ;
or whether, where it is not admitted in the firut instance, it might not be had
recourse to in case of an appeal.

JU1>I€IIAI, ]^VIQBNC£. 819

position is too evident to require any illustration. We have already,
when treating of exclusion, (Book VIJ.) applied it as an axiom
to all species of evidence.

Fifth Rule. There is nothing to be added to it j its enunciation
contains its justificatory reason.

Independently of the discovery and preservation of evidence, in-
vestigatory procedure is of great public utility. When this inves-
tigation is finished, the portion of evidence which ought to be laid
before the superior courts as definitive evidence, can be separated
from that which beiiig merely the caput mortuum of the procedure,
ought to be left behind, and be no longer listened to. The indica*
tory evidence is given up, when it has served its purjiose. It follows,
that as the definitive evidence is no longer mixed up with the
indicatory, we have a clearer view of its amount, and avoid more
easily these mistakes into which we may fall when overpowered, as
it were, by a multitude of unnecessary and impertinent testimonies.

CHAPTER VI.

POWBR OF DIRECT AND RBTROGRADB INVESTIGATION IN A CHAIN OF

HBARSAYS.

Rule 1. In a chain of evidence founded on hearsay, recourse
must be had, iu the first instance, to the immediate witness.
Reason. The summoning and examination of the intermediate
witnesses would be so much gratuitous vexation, expense, and
delay, when recourse can be bad to the immediate witness.

Rule 2. If the supposed immediate witness denies all knowledge
of the fact in question, or contradicts the language which has been
extra-judicially' imputed to him, it will be necessary to cull the
intermediate witness who pretends to have heard the words in
question, that he may refiite the other or assist his memory.

Rzile 3. If this intermediate witness, on being confronted witli
the supposed immediate witne$s, denies ftiat he ever heard the
words which he is alleged to have heard, it will be farther necessary
to confront with him tlj/e intermediate witness who is supposed to
ascribe to him, on his own heai*say, the words in question.

To go up to the immediate witness may be called direct ifives-'
tigaiion; to descend from the supposed immediate witness to the
supposed intermediate witness who stands next to him in the
succession, may be called retrograde intestigation. This retrograde
investigation m^y be vsefiU as & ch^ck on the immediate witness.

320 A TRBATISB ON

Peculiarities of Investigatory Procedure,

It is obvious that the conduct of the investigatory procedure
ought to be nearly the same as that of the definitive procedure ;
the same in regard to the mode of examination, and the precautions
necessary to secure the veracity of the witnesses ; the same as to
legitimate causes of delay, such as distance, sickness, or removal
from the country, and so on.

Investigatory procedure has one facility which does not belong
in an equal degree to definitive procediu*e. A correspondence
may be carried on with, indicatoiy witnesses, without its being
necessaiy to insist upon their personal appearance. Why ? Because,
if by means of an indicatory witness, information is obtained con-
cerning some person who is qualified to be a definitive witness, or
even concerning another indicatory witness who is more at hand, it
matters not how this information has been procured; the object is
as well accomplished by a letter as by a personal appearance.

Two measures must be taken to render this mode of commu-
nication fully eiFectual. 1. The interposition of a judge to impo^
on the person examined by letter the obligation to answer. 2. An
official arrangement with the post-offipe to insure punctuality of
performance.

1. The party who wishes to examine the witness will present his
questions in writing to the judge, who, after approving or modifying
them, sanctions' them with his signature. A species of official
paper must be used, containing in the margin a printed foiin, men-
tioning what the witness has to do, and stating the punishment to
which he exposes himself by falsehood or disobedience.

2. To insure punctuality in the post-office, the envelope ought
to bear a particular stamp, to distinguish these judicial lettere
from common letters. They will be registered at the office, and
the clerk will mark in a separate book the time and place of their
dispatch, and the name of the person who received t^em, whether
the witness himself, or another, &c.

_ The answer will be addressed to the judge, or to an officer of the
court. It ought to be written on the paper c;ontaining the questions,,
of which, for the satisfaction of the witness, two copies ought;
to be transmitted to him ; the one to be sent back along with his
answer, the other to remain in his own hands with a copy of his
answer, which he should be recommenderf to take.

The form issued by the judge ought to notify;

1. That falsehood incurs the punishment of false testimony.

JUDICIAL BVIDSNCS. 321

2«. That if he does not return an answer within the appointed
time^ he must appear personally.

3. That if>he is absent^ his friends are requested to inform the
court of the circumstance. .

It would be useless to enter here into a detail of all that, this
regulation might require ; the above are the principal precautions
to be taken. It would be necessary to provide for the case of the
witness not being able to read or write. In such a case, the
official letter ought to be addressed to the clergyman or mayor of
the place, &c.

The worst consequence that could ensue from the want of
intelligence, the obscure answers, or possible mistakes of illiterate
people, would be the necessity of having recourse to personal
appearance. When the expedient succeeds, which it will often
do, it spares much vexation/ expense, and delay, and can produce
no mischief. If the incapacity of individuals renders it ineffectual,
we are just where we were at first j and they must be brought
before the judge.

CHAPTER VII.

V

SOURCES OF BVIOENCE ; — ^ANALYTICAL SKETCH.

The ancient rhetoricians occupied themselves much with topics^
the sources from which advocates and logicians might draw their
arguments. In the same way, the sources of evidence might, be
analysed, and a complete table of them formed; but it would be a
work of great labour and very little use; for, in this, common
experience serves as a master and makes lessons unnecessary.. To
examine a witness is an art ; it requires sagacity, boldness, quick-
ness, and other mental qualities. There are great diversities among
judges in this respect ; some get to their object by a small number
of questions, while others lose themselves in ^ crowd of useless
details. But there is no art in discovering where the evidence is to
be sought. In any given case, the party interested cannot be igno-
rant of the sort of evidence which he must have, in order to succeed :
the most' ordinary capacity is sufficient for this purpose. If evidence
is<«ometimes awafiting, it is not individuals that are to be blamed
for it, but the short-sightedness of the law and the carelessness
which has omitted to collect it in proper time. Frequently, too, the
defect must be ascribed to that false delicacy, that false public

\ S22 A TRBATI8B OS

tnorality, those scruples of erroneous benevolence, which refuse, in
regard to crimes, to give justice the light which she requires.

However, with a view not so much to do any thing use^l,
as to show that nothing useful can be done in this way, I shall
give the first lines of an analytical sketch of the sources of legal
evidence.

Indicatory evidence is drawn from things^ persons, and relations.

Things and pei'sons, objects palpable to the senses, do not require
any exercise of intellect; but it is' required, in discovering real or
personal evidence through the medium of relations. The indicatory
relations are, 1. Thoj*e of time and place; 2. Those of affection and
interest.

Problem. It being supposed that a certain fact has been committed,
and that certain persons, as yet unknown, can speak to it as imme-
diate witnesses, it is required to ascertain who these persons are,
and on what part of the fact they are able to give evidence.

The points to be considered in solving the problem are,

1. Relations of time and place. Where was it done? In a public
or a private place ? In an open or an inclosed place ? In a house or
in a garden ? Who must naturally have been in the house ? Who is
its principal occupant ? Who are the domestics ? Who are occasional
visitors, &c. ? If it is a public place. What passengers might b^
present at the given time ?

2. Relations of private affection and interest. What individuals
must naturally be acquainted with the fact and it^ authors, in con-
sequence of a habitual or occasional connection; arising from
neighbourhood, family relationship, connections of interest, service,
employment, study, or amusement ? *

3. Public relations. What individuals, in virtue of their office^
ought naturally to know the authors of the fact ? What police
officers ? What magistrates ? In the case of writings, what notary ?

The relation subsisting among accomplices belongs to the class

of private relations. The supposed delinquent may have associates

. among malefactors by profession, men who keep suspicious house?,

smugglers, thieves. Even when men- of this stamp are not involved

in the fact in question, they may be called as witnesses. There

♦ Mr. Colquhoun bas given the following table of the sources of evidence in
a case of tbeft : — 1. The abode of the suspected person. 3. The abode of the
woman with whom he cohabits. 3. Pawnbrokers* duplicates found in the
possession of the one or the other. 4. The abodes of their near relations or
intitnate eompanions. 6. The abodes of such reoeiveni by pr^ifession as the
accused is particularly connected with. 6. The public-houses which be is iu
the habit of frequenting. 7. The lodging of his washerwoman.

y

JUBICIAI* BVIBBNCE. 3S3

ought to be no scruple in subjecting them to this obligation, which
may act as a check' upon them, by showing them the danger ot
these pernicious associations.

Delinquents after conviction, and particularly those who are
about to suffer capital punishment, are sources of evidence* Every
thing that might lead us to fear a false testimony is weakened, or
vanishes altogether at so solemn a moment; und every thing
serviceable to the c^use of truth is at its highest point of strength.
This, then, is a valuable opportunity,* of which as much advantage
as possible ought to be taken.

A still wiser, measure would be to suppress the punishment of
death; or, at least, to employ it only on very rare occasions,
because, by destroying malefactors, we destroy a source of evidence.
This consideration has been developed elsewhere. *

In France, the confessions of a dying crijninal are anxiously
sought after by the judges, who employ for this purpose even the
officers of religion. This forms what is called testament de mort.

In England, where the loss of evidence is scarcely considered an
evil, this source, as well as many others, is not made use of.

The words of a dying man, tending to inculpate some particular
person as the occasion of his death, are admitted without hesitation,
though •they can be obtained only in the forni of hearsay, and
cannot be subjected to cross-examination; but disclosures made
by a condemned criminal^ and tending to inculpate his accomplice,
are not admissible evidence. If you ask the reason, it is ready;
being a condemned criminal, he is infamous^ and unworthy of
credit. But if this same individual, instead of being sacrificed to
justice, had previously received the royal pardop that he might
betray his accomplices, his testimony would not only have been
admitted,' but would have been sufficient to convict without any
other evidence. When the strength of the motives which induce
a witness to lie is at its highest point, the evidence is received ;
when their influence has been more or less diminishefl, and the
motives which lead him to tell the truth are in their greatest
strength, the evidence is rejected.

This exclusion is the more unreasonable, because the case is one
where we can make use of all those judicial securities which
cannot be applied to the testimony of a man who dies a natural
death. The life of the latter is not under human control. That
of the former is in the hand of justice ; and after condemnation, no

f Treatise on Pnnislimeiit^, second edition, Book II. c. Id.

y2

324 /a TBBATISB .ON

less than before it, all those guarantees which insure the truth of
testimony maybe applied,-*examiDation, registration, publicity, and
several others.

^ CHAFfER VIll.

MEANS OF SECURING THE APPEARANCE OF A WttNESS.

The capacity of an individual to be a witness being established,
it remains to secure his appearance. In doing so, the legislator
and the judge must decide between t\yo opposing interests, — ^the
interest of justice on the one hand, and, on the other, the interest
of the witness, in so iTar as the evidence require^d of him may ex-
pose him to vexation and expense.

Rule L As the appearance of a witness is always accompanied
with some degree of vexation, it ought never to be required with-
out a solemn declaration by the party that the witness is a necessary
one.

Rule IL Where the appearance of a witness subjects him to
expense, it ought not to be required till he is made sure of an
indemnity by the party calling him. If the party is unable, to pay
it, the judge will have to determine which will be the greater loss, —
the loss of the witness, by his appearing, or the loss of the party by
his non-appearance.

In ordinary cases, a witness, to whom the judge has repre-
sented all the importance of the duty which the law requires of
him, will never think of escaping from this obligation, or con-
cealing from justice the information of which he may be possessed.
The sureties necessary to secure his appearance may be called
ordinary sureties. ,

But in mdny cases, a witness will conceal himself, or even leave
the country, rather than submit himself to this obligation and
the vexations it may bring along with it. The sureties provided
to meet these • cases, which are out of the common rule, may be
distinguished by the name of extraordinary sureties. They are ne-
cessary in the following cases :—

1. In the case of accomplices. If, from the absence of suspicion
or information, the proposed witness has not been accused, and
yet knows that he was an accomplice in' the crime, and is appre-
hensive it may be proved against him, his ref^ons for keeping
out of the way are not less strong than if he had been directly
accused.

JITDICIAL EVIDBKCE. ' 325

2. In the case of subornation by one of the parties. This term, in
its usual acceptation, is applied to a positive offence, — a &Ise
testimony given by a suborned witness. But. the issue of the
cause may be equally influenced by a negative act, — the withdrawing
of an essential witness. The latter has even this peculiarity, that
it brings about the same result as falsehood without being exposed
to the same infamy, or (unless it has been specially provided for)
to the danger which attends false testimony. To leave the country
is always sufficient to escape any personal punishment; and, though
this be an inconvenience, it is one which may be very great, or
absolutely nothing, according to circumstances. In some c^es, no
sum a suborner could offer would be effectual ; in others, where
the individual has nothing to detain him, the smallest sum may
turn the balance. ^

3. Sympathy of affection ; that is, sympathy wkh the party whose
interests will be injured by the evidence required. , The domestic
relations, those of husband and wife, parent and child, brother and
sister, are the most apparent sources of it ; but if .mere friendship
could induce Theseus to penetrate" iiito*the infernal regions to
deliver his friend, much more will it determine a iaci«i of the most
ordinary stamp to cross a stream, pass a frontier, or visit a fbreign
country; to say nothing of the motives of interest or pleasure
which may be' united with it.

These examples sufficiently show, that now and then cases will
occur, in which the strongest sureties to secure the appearance of
a witness will not be too much.

When the witness is disposed to escape from the duty which
justice requires of him, his conduct will generally be regulated by
the measures which the law has taken to guard against his disap-
pearance, and by the consequences that are attached to it.

If, agreeably to the most evident rules of common sense, the con-
sequence of not appearing on the first summons is an obligation to
appear on the second, and sa on, ioties qitoties, with a punishment
attached to every failure ; the refractory witness, whatever be his
object, or whatever be his motive, cannot but see the inutility, of
resistance, and the approach of the moment when he will be com-
pelled to surrender, after a struggle in which he alone is a sufferer.
Setting aside, therefore, certain accidental circumstances which
would make it particularly inconvenient for him to appear., on a
certain day, he will very seldom form the project of eluding .the
judicial summons. To gain this end, he must have the. design of
emigrating, or of concealing himself; or he may think, that during the
interval between the first and second summons, some other piece

896 • A TRBATISB OK

of evidence will be lost^ that some other essential witndss^ for
example^ will have left the country, or be on his death-bed ; and
that when this evidence is lost, his own falls of course.

These reasons of the loss of evidedee, as they belongs to the
nature of the crime or to accident, may be called natural causes ;
but there are others arising from the law itself or from the manner
of administering it, which may be called /ac^ilion^ causes.

If, for exainple, the law assigned a fixed period, incapable of
extension, a single and appointed day, for the peHbrmanceof a duty
which may encounter insurniountable obstacles, and require ne-
cessary delays; if it named a day for the examination of the
witnesses; and, in case of their absence, refused to compel their
appearance on any subsequent occasion^ there would be fabtitious
causes of the loss of evidence. I acknowledge that such judicial
Conduct is an absurdity merely imaginable, and whose existence
dare not be supposed. For, on this supposition, the legislator
converts into an irreparable injur/ what in itself was a reparable
injury. He enters into partnership with malefactoi^s | and, by
'measures wtiich he has *previonsly arranged, he secures to them a
filibdess which they could not have obtained by any other means.
It is he himself, with his eyes open, that brings about this last
catastrbpH^ Which is the death-blow to all his other labours, and
prepares, with the most imposing pomp, a court of justice, merely
that guilt tnay march out of it in triumph. '

Attd yet, it would not be difficult to find, in the practice of
even the most celebrated tribunals, various examples of this con-
tradiction in legislation.

In England, in the most heinous cases, those of felony, witnesses
cannot be heard on a second subpoena unless a new trial be granted.
But if the verdict has been in favour of the prisoner, whether right
or wrong, it is an inflexible rule not to grant it.

It is evident that the advantage is all on the side of the male-
factors, and of the worst kind of malefactors. What a contradiction !
In cases of misdemeanor, greatly inferior to the former, the law is
far from being so inflexible, — it allows you to retrace your steps.
Thus, the possibility of doing justice is inversely as the importance
Of the case.

Formerly it was much worse. It was only in 1702, that a
statute was passed to make the appearance of witnesses in favour of
the accused compulsory ; up till that time, it depended on them-
selves to obey or disobey the summons ; there was no legal means
of compelling a man to put himself to a little trouble, though
his evidence was to save the life of an innocent person.

J0PICIAL 9V1DBNCB. 32^

t ,

No ma&iin has been more abused than that which holds, that it
ifi better the guilty should e$cap€| than that the innocent should be
condemned; but^ making every proper deduction for these senti-
mental exaggerations, it >viil always be indisputable^ that of the
two evils, . the punishment of the innocent is the greater, Thi^
being admitted, it cannot be denied that an exculpatoiy witness
who disobeys a summons ought to suffer the severer punishment*
It ought to be observed, however, that in this case, the moral
sanction, seconded by feelings of humanity, makes up in some
measure for the want of the political sanction; but, unfortunately,
the influence of the moral sanction, and of humane feelings, is un«
certain and preparious..

• *

After all the labour that has been expended on the French
law, it remainS| in this respect, where that of England was a century
ago. An exculpatory witness, summoned by the accused, may
present or absent himself according to the degree of favour which
he feels toward the party. The case from which I draw this con-
clusion isy if the report be correct, that of treason committed
against the first magistrate of the sfate* In Pelletier's report of
the trial of the prisoners charged with having formed a plot to
assassinate the Fii'st Consul, Demerville, one of the accused, com-
plained of the absence of the Consul Cambac^r&s, '^ I demand,'^
£aid be, ^^ that the court order him to appeal*/' The President
answered, ^^ The court has no power to do so. The attendance of
exculpatory witnessess is voluntaiy. Their absence is an answer :
it is as much as if they declared, we have nothing to say in favour
of the accused." *

We have seen that the order to appear ought to be more binding
on the exculpatory witnesses than on those for the prosecution.
The principle^ which, if the report be correct, the President put
forth, cannot be maintained. ^^ Absence is an answer;" but do they
kaow what questions the prisoner means to put to them ? Is it not
concerning a fact which they alone know, and may not his whole
defence depend on the proof of this fact ? " Their absence is as
much as if diey bad declared that they had nothing to say in favour
of the accused !" No, it is rather the contrary; it means, " I dare
not appear 5 and even if I durst* I would not. There is a superior
power which wishes the accused to be found guilty. Shall I, of my
own accord, go into a court, in which I must either save the
accused at the expense of my own interest, or ruin him at the

i^-ii»— ^^"^'■^"^"•^""^■""••■^"••••«»^l"*«<fi

Paris, publidied by PeUetier, No, 220. Fd)ruary 1800.

328 A TRBATI8B ON

«

expense of my reputation ?" This language may be true or false ;
but^ if any meaning can be given to silence, this explanation is
perfectly applicable to the situation of the accused, and of those
who deny him the first duty which we owe to an unfortunate fellow^
citizen.

CHAPTER IX.

OF ORDINABY SECURITIES.

In ordinary cases, such as we have described them, all that
is required of the legislature is, to attach a punishment to the dis-
obedience of the witness; and all that is required of the judge is,
that, while he informs the witness of the day and place at which he
must appear, he inform him likewise of this eventual punishment.

In regard to the nature of the punishment, it is only necessary
to apply to this particular case the principles which have been
explained in another work. * I shall merely repeat the first of the
rules there laid down, to show how defective the ordinary practice is.

Rule I. The punishment ought to exceed the gain to be made by
the offence.

In the case in question, it is evident that there are no assignable
limits to the profits of the offence. The gain made by withdrawing
a witness may be quite as great as that made by suboniing a false
witness. Every result, mischievous for individuals or the public,
and advantageous for the suborned witness, or the party with whom
he is connected, may be produced by the one of these causes as
much as by^the other.

If the infamy attached to false testimony cannot be applied to the
criminal abstraction of testimony, the other punishments, which
consist in imprisonment and pecuniary mulcts, ought to be ap-
plicable to both cases, and unlimited in both.

What is the effect of limiting the pecuniary mulct to a certain
sum ? In offences where the gain is greater than the punishment,
it is pro tanto a permission. The question, for example is, whether
a testament bequeathing 200,0002. be authentic. The proposed
witness can prove it to be a forgery; and the fine for not appearing
is 10,000i. What is the consequence? That the forger who
framed the will gives the proposed witness 10,0002. to meet the
fine, and enjoys in perfect safety an inheritance acquired by fraud ;
deducting only the sum which has been expended on purchasing
the silence of the'witnesii!.

See the TraitU de Legislationy vol. II. p. 143^ 162; 2d editioo.

JUDICIAL BVIBBNCB. 329

V

This tmtb^ simple as it is^ has not been acknowledged in the
jurisprudence of France. Whether the case be criminal or civil,
and whatever may be its importance, the law of that country has
fixed the mulct to be levied on a witness who neglects to appear, at
ten francs. *

Is there, besides the ten francs, any concealed punishnient?
There is no insinuation of this sort in the text of the law, and the
summons itself is equally silent. If this then, be all, it is evident,
that wherever the matter in dispute exceeds that trifling sum, the
legal punishment is absolutely nothing, and the party is left at the
mercy of an individual whose testimony is unfortunately necessary
to him.

In England, the fine mentioned in the subpoena is always an
hundred pounds. But, besides this punishment, which is limited,
and therefore inefiectual, there is another behind which is un-
limited* The offence is a contempt, as it is technically called; it is
considered as an offence against justice, and is pimishable as such,
by unlimited fine and imprisonment. This subsidiary punishment is
perfectly sufficient for the object in view; but why is it not
announced in the subpoena ? And the point thus omitted is the most
important ; for the fine of 100/., the only punishment mentioned, is
ineffectal, while the fine and imprisonment for a contempt, of
which not a word is said, are in full vigour. The greater part of
judicial instioiments and legal formulas are equally defective with
that of which I have been speaking.

Another principle in regulating punishments in this matter is,
that fines should go to indemnify the injured party. Here the law of
England may, to a certain extent, be quoted as a model. In civil
causes, if a witness who has been offered his expenses fails to
appear, and has no sufficient excuse, he must pay the party 16/.
for every failure, besides being liable in such damages as may
afterwards be given in an action of debt ;— a pecuniary punishment
proportioned to the offence, and applied to the indemnification of
the injured party. All this is as it should be.

Unfortunately, this wise system has not been extended so far as it
ought. To give the party a right to this satisfaction, the suit
must be in a court of record ; and there are many courts of justice,
which are not courts of record ; particularly the ecclesiastical

* Pratique civile, Paris, 1788, p. 603.. Ordonnance of April 1667, tit. '12,
arts, p. 220; Damont, %/e crimine/, p. 18. By the existing code, the fine
may be carried as far as an hundred francs; Code dlnstruction criminelle,
No. 80.

88Q A TBBATin ON

Gouvte, which havtf eogniaftnce of vnXli, and the courts of equity, in
wUch the moBt imi^ortant cases reganling property are
not to sayi engulphed.

CHAPTER X-

BXTBAOftDINiLRY . SS GUaiTIBSi .

I. Pledges and Recognizances,

A PLigDGE IS given for the future performance of a particular
act, when a thing or sum of sufficient value is deposited in con-
fidential hands, on condition that, if the promised act be performed
ill due time and manner, the pledge shall be restored j and if
not, that it shall be otherwise disposed of; that the whole, or a part
of it, for example, shall be given as an indemnification to the party
injui'ed by the non-fiilfilment of the act.

Immoveables arfe the best pledges. They do not bring with them
the vexation and expense which may attend the parting with a
sukh of money. It is only necessary to give public notification that
the thing pledged is no longer res in commercio*

n. Recognizanees*

Ball is given when, instead of an actual deposit, one oi- more
persons bind themselves as answerable for the execution of the ftcl
in question by their principal ; that is, by the person for whom thejr
beemne bound. The obligation is such, that, if the act be duly per-
formed, the obligation is at an end ; but if it is not performed, the
cautioners are subjected to some specific inconvenience, — commonly
tb pay a sum of money as satisfaction to the party injured by non-
performance. *

III. Personal Arrest,

Only one or other of the two following considerations can justify
so vexatious a proceeding : —

1. That the witness intends to leave the country oa purpose to
evade his obligation ; and either cannot^ or will not, find suiBcienI:
security. ,

2. That ^rest is necessary to bring forwaid securities who Would
not otherwise appear.

The consequence of imprisonment from the want of securities is,
that the witness is deprived of his liberty till the moment of his

See tlie Treatise ou Legislation, second edition, vol. II. p. 157, of Bail*

JUBICIA& BTIMMCB. 891

extufliDfttioii) unless the judge be of opiiiion that this veKation is
greater than the eYil which might result from the wiknt of the

evidence.

If the design to leave the country, in order to disappoint justice^
be sufficiently proved, the severity of the measure must not excite
any regret The imprisonment fnlfils the object of punishment
and operates as an example.

IV. The choice of a domicile for judicial correspondence.

By the choice of a domicile, I mean what the expression signifies
in French law ; viz. that the dwelling of some respectable person,
the attorney or counsel, fbr instance, of the individual conc^'ned,
shall be appointed to be his domicile, to which all necessary com-
munications shall be addressed j so that, if they have been sent
thither he shall be held to have received them, and shall be
reckoned culpable, if he disobeys the orders which are thus served

upon him.
This choice of a domicile necessarily Implies, that he shall not

change it without the permission of the judge. This obligation
bein^" laid upon him, he cannot disappoint it without exposing him-
self to the suspicion of intending to leave the country, and con-
sequently to personal arrest.

V. Protections^ when the Witness is in a foreign country, and has

removed previously to being summoned.

By protection I mean, an assurance to the witness of exemption
from personal arrest within the limit of the jui'isdiction in question,
during the time necessary to come to the seat of justice, the duration
of the suit, and his return after it is concluded.

A security of this sort is one given, not by, but to the witness.
It implies that he is liable to be arrested, whether it be for a crime
or for debt. In the case of a crime^ the protection may be con-
sidered as a pardon, a temporary and partial remission of the
punishment for this particular object. It is thus a sort of bank-
ruptcy on the part of justice, in order to avoid a greater ii^ustice,
which would be the result of the loss of his evidence. It is the
business of the judge in this, as in every other case, to balance the
inconveniencics, and gmnt or refuse the pmtection according as the
one scale or the other preponderates.

The great number of small independent states that composed the
Germanic body, gave occasion to this arrangement, which, at first
sight, must have appeared so strange to other countries. It
suggests the idea of a negotiation, and a sort of bargam between

832 A TRBATISB ON

justice and a man who has escaped from the laws. However^ this
compromise, so far from producing bad effects, has always been
to the advantage of justice, even when made with th^ greatest
male&ctors. *

There are examples of the same sort in English law. A pro-
tection against arrest for debt is granted to persons who are required
to appear as witnesses in a court of justice.

The difference between the two systems is considerable, and is
easily accounted for by the different circumstances of the two
countries. As a man can leave Great Britain only by passing the
sea, justice had a much surer hold of malefactors than in Germany,
and consequently, was not reduced t(f the necessity of treating with
them. As, in England, the exemption is granted only to a particular'
class of persons— debtors, every thing connected with it is governed
by a general rule, and nothing is left to the discretion of the judge.
In Germany, the exemption includes criminals of every sort ; and it
was therefore necessary to leave the judge a considerable discre-
tionary power. In every case, the judge had to compare the
danger of admitting a criminal into the country with the urgent
necessity for his evidence.

VI. Death-bed Examination,

The principal object is equally gained, whether the witness is
carried before the judge, or the judge repairs to the witness ; but
in both cases the evidence appears in an inferior form. Publicity,
the most beautiful feature of justice, cannot exist in a private
chamber as in an open court, and least of all, in a sick chamber.

A deposition taken thus privately, however inferior it may be, is
better than a total loss of the evidence, particularly if there be no
other means of establishing the fact. Although such a deposition,
taken directly from the witness, does not bring with it all the
securities of a public deposition, it is much better than any other
species of evidence derived from the same source ; better, for
instance, than a casual writing in his own hand, or the hearsay of
those who surround him. It is preferable to a deposition by himself
even upon oath, made uno fiatuy without the presence of a judge,
and without those incidental questions which bring truth to the test.

An objection may be drawn from the occupation of the judge,
and the time required on such an occasion. But, besides that the

• In Gertiiany, these protections are granted onl^in criminal causes, and
not m causes oieverj kind. This is not consistent; for the adyantaee is as
l^reat m the one case as in the other.

JUDICIAL EVIDSNCB. 333

circumstances we are considering must always be af rare occur-
rence^ if the judge has the power of naming a deputy, the objection
fails to the ground.

Ought the evidence, thus talcen, in an inferior form, to be taken
the moment the circumstances arise, or ought it to be postponed,
subject to the inconveniencies of the necessary delay, in the hope
that the patient will recover his health and be able to give it
publicly ?. This must evidently be left to the decision of the judge.
The reasons on both sides may vary in all possible degrees, and an
Inflexible rule would' necessarily be erroneous. The great danger
is, the total loss of the evidence by the death of the witness.

The forms to be observed in such a case are matters too minute
to occupy us long. The principle on which the judge must act is,
to take the evidence with all the securities which the state of the
witness allows.

CHAPTER XL

THE PRODUCTION OF REAL EVIDENCE.

What has been said concerning the discovery of personal
evidence, may be applied with little variation to real evidence.
The means to be employed will assume different charactei*s and
names, according as the things themselves are moveable or im-
moveable, perishable or imperishable, endowed with a value of
their own, or only a conventional value, such as deeds, con*

tracts, &c.

Some of the means are directed to two objects : — to secure the
production of evidence for the purposes of justice, and to aid the
preventive police. Of this kind are the measures taken against
certain negative offences which consist in evading taxes; par-
ticularly the taxes on certain manufactures and other branches of
industry. When an officer is appointed to inspect the operations
of a brewery or distillery, he has the legal right of entry and search.
So long as this inspection prevents the offence in question, the
object of the police is gained, and all ends hei-e.. If the payment of
the 4uties is evaded, or any of the forms prescribed with the
intention of securing them is omitted, the officers collect the evidence
for a court of justice, and arrangements established to prevent the
offence, assume the character of a precautionary measure to obtain
evidence of it.

The distinction between ordinary and extraordinary securities is no

334 A TRBATISB OV

lass appli0abl0 to real evi4ence than to persons. The ordinary
^epurity, in regard to persons^ consists in a judieial order to appear^
under a certain penalty in case of disobedience; the extraordinary
sepnrity in real evidence^ copsists in an orde^ addressed to the pro-
prietor or possessor of the thing in question^ to be In readiness to
produce it on tb^ first requisition.

The extraordinary securities, bail, the appointment of a domicile,
pi-otQctions, and the personal visit of a judge, employed towards
persons whose deposition it is wished to secure, are equally appli-?
cable to individuals who are the proprietors or possessors of things
considered as sources of real evidence,

In regard to persons, the most efficient of ^11 securities, but the
last to be employed, is, to arrpst the witness and carry him before
the judge i the same measure may be adopted in regard to things
with f^ less difficulty and vexation.

The utility of investigatory procedure, in so far as it concerns
persons, is confined to discovery; but, in regard to things, it. has
a wider extent. Why ? Because a man cannot conceal himself in
a box, oV be clandestinely passed from hand to hand; but a diamond
or a contract may be put out of the way in this manner with the
utmost facility. If, then, one of the persons through whose hand it
has passed is known, this gives the means of following it from one to
another until it is found ; and not one of those who have had it in
its course can deny that he received it, or refuse to tell to whom he
gave it, without incurring the penalties of false testimony.

Here is a mode of procedure which goes straight to its object.
If an example of an opposite kind is required, it is at hand. A
certain document is necessary to one of the parties ; let us say the
plaintiff. This document is in the hands of his adversary, or of a third
party, who, though not himself interested in the case, is favourable
to his adversary. The way in which the law has provided for this
case is the following: there is a certain form of summons which
enjdins the proposed witness to appear before the judge on a
particular day, and to bring with him the document in question.
What will he do ? If he has common sense he will not bring it.
*' Where is the document? ".says the judge; *^ In the hands of
Secundus,'* answers the witness ; " Secundus wished to see it, and
I lent it to him before I was subpoenaed. After J had received my
subpcena, I asked the document back ; he promised to return it ;
the very last thing I did, was to go to him in order to get it and give
it into you. He told me that he had searched among his papers,
and unfortunately, had not been able to find it.'' This witness
inakes a fool of justice, and when the cause must be decided diuing

JUfilCIAL BYIBJSNCB. 835

a single sitting, without the possibility of a subsequent hearing, he
makes a fool of her most successfully. Yet, what does he risk?
Nothing ; for eveiy word he says is strictly true.

Substitute for this puerile procedure the mode of investigation
which the nature of the thing requires. The plaintiff, following the
document from hand to hand, is as certain of getting at it, as the
hound is of finding the retreating place of a fox. It may be destroyed,
but he who destroys it acts at his peril, and the punishment
descends upon his head. He cannot laugh at justice with impunity,
as he does in the example which I have given.

Real evidence, no less than personal evidence, requires the
physical securities of seizing the thing that is to be evidence, and
bringing it before a judge ; not, indeed, when its possessor has
a preponderating interest in its preservation, but when his probity
is not secured by this guarantee. If he were unfavourable 'to the
party, a summons to produce it might be a notice to destroy it.
To have some chance of success in such a case, he must be taken
by surprise. It is true that, suspecting the use which might be
made of the real evidence in question, he inay have destroyed it
since it came into his hands; and, if no person knows that he had
it in his possession, the evil is without remedy. But although
vigilance is the virtue of vicei, rascality is not always on its guard.

If there be no power of unexpected seizure, the possessor of
what is to be real evidence may have an interest in preserving it;
not for the purpose of honestly producing it, but in order to make
it a source of gain, by selling it to the party who needs it.

The Law of England. ^

The law of England is extremely defective as to the means of
securing the production of real evidence. It fi-^guently leaves the
parties in a $tate of deplorable weakness, refusing them all assistance,
or making them purchase it at an extravagant price.

Things are better managed in certain cases of felony ; the injured
party can do something; he can seize what is to be real evidence,
as he may seize the person. But even here appears absurdity, that
protectress of all crimes. You may search the house of a man to
find evidence against him ; you may search his clothes to find
stolen goods, or the instruments with which he commits his depre-
dations ; but you cannot ask l^im where the thing you are seeking
is to be found. A woman may be subjected to a search which
modesty does not allow to be described, but anxious care must be
taken not to ask her a single question.

In civil cases, when the possessor of real evidence is the de-

y

336 A TRBATISB ON

fendanty a sort of remedy is supplied by a species of law diiferent
from the common law; a species of law with which no other
country has the misfortune to be acquainted^ and which bears the
most specious and deceitful of all names, equity^ *

If a litigant is so unfortunate as to listen to the voice of the
SyreUj and an attorney is so unprincipled as to advise him to it,
the gates of the labyrinth are opened, and be is involved in the
windings of this region, where vexations advance from every
quarter with seven league boots, and justice creeps on with the pace
of a tortoise. The plaintiff files his bill against the defendant for a
discovery, (such is the language of this country) ; aftef a certain
number of months or years, most probably years, he learns what
he might have learned in a day or in an instant, if the first rules of
good sense had been followed; he learns that the defendant has
nothing to discover ; the document does not exist ; or if in existence^
it exits somewhere else, on the earth or in the mpon; it is his
business to guess where.

All the various proceedings antt counter-proceedings by which
the easiest operation is retarded, prolonged, and suspended, form
a whole, the history of which it would be impossible to give in a
few words.

If the defendant, again, requires a document which is in the
hands &( the plaintiff, do you suppose that he is allowed to obtain it
by a direct summons, though the parties are already engaged In
that very court? Quite the contrary; he must file a cross-bill,
begin a new suit, double the vexation, delay, and expense ; beget

* It may be proper to remark once for all, that Mr. Bentham and his editor,
like most common lawyers, and all dillettanti lawyers and foreigners, haTe not a
single idea, correct in point of fact, or sound in point of reasoning, upon the
principles or practice of courts of equity. It' is useless to waste time in
exposing the blunders of 'profound and complete ignorance. If Mr. Bentham,
instead of forming his opinions from the laughable assertions made by
harangucrs in the House of Commons, or rhetorical speculators in reviews and
newspapers, will only devote a month to regular attendance in the Yice-
Cbancelior's court, (we sekect it, because there he will best see the common
routine and practical operation of equity,) he will himself treat tiie notions
which he has hitherto entertained and expressed oti the subject, with the
contempt which they so welt deserve. Is it sound philosophy to dogmatize on
large assemblages of multifarious facts without any acquaintance with their
details? Is it patriotism to vilify, in the confidence of audacious ignorance, the
highest of the ordinary tribunals of the land ?

The English system of equity, like all human institutions, has its defects : but
comparing it as a whole, either with the common law, or with any body of
foreign la^, it is the most rational and effective system of jurisprudence which
now exists, or ever existed in the world. Even our own common law, ex-
cellent as it is in its own department, would be an intolerable nuisance,
a mere instrument of wrong, if it were the only system administered in the
kingdom, and were not modified by the interference of courts of equity.

UD tCIAL BVIBKNCE* SSf

ond suit out of another^ and so stretch it to an enormous extent^
Tlie boa, that prodigious serpent, as thick as a cable, which will
swallow at once a whole stag, while the horns are seen projecting
from its mouth, and which, with. the neck swollen and distended
lies motionless while it digests, is a iit emblem of a suit in a court
of law, swallowed up by another in a court of equity. •

CHAPTER XII.

RULBS FOR TH£ INSPECTION OF WRITTEN EVIDENCE. .

When the forms of proceeding require that the evidence be
lieard, and the decision pronounced at one sitting, the power of
employing documents as definitive evidence would, in many case^,
be of very little use, without the power of previously inspecting and
copying them. The chance of their being useful varies infinitely,
according to the size of the documents, according as they are well
arranged or in confiision, according as they are provided or un-
provided with those aids which facilitate research 5 such as tables
of contents, indexes, &c. *

Preparatory inspection, necessary in proportion to the size of the
documents, relates to the following purposes :

1. An opportunity of separating what is pertinent to tnt^ cause
from what is irrelevant* '

2. To give the time necessary for arranging the materials selected
observing their application to the cause, and the conclusions that
may be drawn from them.

3. The time necessary for transcribing either the whole ; these
passages or extracts from them.

Let us now see what rules ought to be established for the
inspection of civil documents.

Rule L The judge ought not to allow previous inspection of a
document without the consent of its possessor, unless it is to be
used as definitive evidence.

Rule 11. When the document, is to be used as definitive evidence,
the power of previous inspection ought to be granted, even without
the consent of the possessor.

Rule III, If the documents in question are mixed tip with others
which have no connection with the case, and which it may be
injurious to divulge, the judge, at the request of the party interested,
will, in such particular case, make such arrangements as are
necessary to reconcile the opposing interests.^

338 A tRfiATlSB ON

' For instanee^ in the case of merchants' or manu&cturers' books,
containing the secrets of his commercial transactions or his pro-
cesses^ or in the case of the minutes of a public register, such as the
books of the Admiralty or the War-office, the party will not be
allowed to inspect and copy them, unless precautions are taken to
confine his examination to what is necessary to him. The judge
or his deputy, on a solemn declaration by the possessor of the
books or the registers, that it is necessary to prevent such and such
a part from being examined, will seal up the leaves which ought
not to be read.
The different measures to be taken in such a ease tbay appear too

. ininut^; but circumstances may occur in which they become
absolutely necessary: — in cases, for example, regarding po^iticftl
or military operations ; for there the disclosure of a secret might
be of the utmost consequence. It is true that, in such cases, the
greater number of governments, and particularly an absolute
ndonarcb^ would cut the knot at once, by forbidding any part of
the public ^*egisters to be communicated; but in every govern-
ment the regular course of justice, and pre-ordained arrange-
ments, may be advantageously substituted for the exercise of

. ^rlH^rary power.

The Law of England*

in the law of England, the right of previous inspection, contrary
to the will of the other party, seems to be of comparatively modern
date 5 it is one of those happy innovations^ which, in spite of
indolence, glide into the system from time to time, nobody knows
how.

'lender a system in which the right of obtaining definitive, and
much more investigatory evidence, had been, under a multitude of
pretexts, greatly confined, every thing that concerned written
evidence was necessarily on a still worse footing than personal
evidence. The practice of keeping books and journals, writing
letters, and taking minutes of all public transactions must have
become general, before judges would extend their powers, so fer as
to order the production of these documents. It is true that contracts,
properly so called, are of great antiquity ; but writing and reading are
dijBferent arts. Even at this day, a person who executes a bond is
presumed not to be able to read. When he brings an action on his
bond, he does not ask to read it himself, but to hear it read.

In running Over * Conyers* l?igest, I find that, out of thirty-twx)

* i

^— i— i*^*!^— I *' 1*1 I ■ !■■■■■■! P^^^^WP^M^— ^p^i^>^^<— p^^ia— ^M»

* Mr. Bentham's editor probabljr means /' Cbmyn's Digest/'

JUDICIAL BVID£Mt;B« 339

cases in which this previous inspection was ^demanded^ it was
granted in sixteen, as reason and justice required, and refused in
sixteen. In two or three of the latter, the reason of the refusal
seems to be the irrelevancy of the demand, or a preponderating
vexation to the other party ; but in the rest, I can find no datum to
lead to the reason why inspection was refused.

CHAPTER XIIL

QF WRITINGS.

Thb measures to be taken to secure the production of evidence,
are the same in written as in real evidence.

The procedure must be different, according as the authenticity
of the writing is denied or admitted. If it be disputed, the original
ought to be produced ; for the same reason, the body of a person
recently killed, the clothes he wore, and the instrument with which
he has been killed, are produced. But if the authenticity is not
disputed, then, as the subject of examination is not the writing
itself, but its tenor, a copy may serve the purpose as well as the
original, and the inconveniences which frequently result from the
nece'^sity of producing the original may be prevented.

Every thing, which is useful in discovering real evidence, may be
equally so in discovering written evidence ; the precautions to be taken
against the disappearance of a writing, or its passing clandestinely
from hand to hand are the same. They are even more necessary 3
for, as a document has no intrinsic commercial value, but only a
relative value, it is more exposed to the danger of being destroyed
for the purpose of annihilating the evidence arising from it.

As to getting at the evidence which the writing furnishes, the
document speaks for itself, and that in a less figurative sense than
any article of real evidence ; it being always understood, that its
authenticity is not disputed. For, if its authenticity is disputed, the
discussion of this question is generally more difficult and complex,
than any which may arise as to the authenticity of articles of real
evidence.

Means of preventing or remedying the suppression of written evidence,

III the preceding chapter, we mentioned the difficulty of securing
the preservation of an article of real evidence in the possession of
an adverse party. This difficulty, in regard to written evidence,
will be greater in some cases, and smaller in others. In real

z 2

340 A TREATISE OS

evidence, the value of the thing itself gives a proportional security
against its destruction ; but in what sense ? Against its destruction
as a thing useful in itself, but not against its destruction as an
article of evidence 5 it will not be destroyed, it will be altered.
If two fathers are disputing the paternity of a child, neither of them
will destroy it; but if there be a wart or a mark on its body
which may serve as real evidence,* the security which there is for
lis life, doesittot extend so far as to pi'eserve this excrescence. The
value of the form of a gold box, with the cypher of the owner, may
prevent the use of the crucible and the melting pot, but is no
security against the disappearance of the cypher under the hammer
or the file.

When a writing is in the hands of an adverse party or of a third
party, who is connected with him by interest, the only security for
the production of the writing, (unless it has been seized unex-
pectedly,) is the phauce that the party may know it will be ne-
cessary to himself on some subsequent occasion. It has no absolute
value; its chance for safety or destruction, depends on its relative
value in the eyes of its possessor.

This is the danger ; how is it to be obviated ?

When the document is in the hands of the adverse party, (aeon-
tract, for example,) the judge ought to declare, that, if he does not
produce it, he shall not be allowed on any future occasion to
make use of it for his own advantage; that for him and his repre-
sentatives it is henceforth null and void, destitute of all judicial
force and effect. Tliis implies, that it has been duly proved that
the party had it in his possession, and has criminally suppressed
it; and it would be necessary to add a clause, saving the interests
of every other person interested in the deed and innocent of the
fraud.

To this expedient may be added another which is more direct,
and frequently more eflFectual. Was the deed ever in your possession ?
Yes. How has it got out of your hands ? Silence, or evasive
answers^may furnish as satisfactory evidence, as an acknowledgment
of the fraudulent suppression.

But what is to be done when the tenor of the document is
unknown ? It must be presumed to be as favourable as possible to
the party who calls for it, and unfavourable, in the same degree,
o the party who suppresses it. Nothing can be more just. You
conceal that document; we must, therefore, presume, that, if pro-
duced, it would decide the cause in your adversary's favour to the
full extent of his demand.

When the document is in the hands of a third party, this remedy

JUDICIAL EVIDENCK. 34i

• I r

is not so simple or sure. Tlie judge must endeavour to ascertain
from all the circumstances of the dase, and from the examination of
witnesses suspected to be privy to the fraud, whether the destruction
of the document is real or pretended ; whether it has been acci-
dental or intentional ; whether it was accompanied with bad faith ;
whether the design of it was to serve the adverse party or some
other person. If the collusio.n of the adverse party is proved, he ought
to lose liis cause; and the judge may declare the document null, as
to any beneficial consequences which the suppressor riight derive
from it. If a witness is proved to have been privy to the fraud, he
ought to be punished for this as well as for any other species
of fraud.

It will often happen, that evidence sufficiently strong to prove
that a document exists and is suppressed, will not be sufficient to
establish the collusion of a witness and justify punishment. What
shall the judge do in this case? In a civil case, where the interests
of the i)laintifr and defendant are equal, and one loses what the
other gains, the probability of bad faith in the party who gains by
the suppression of the document, is sufficient to turn the balance of
justice against him, if it should otherwise be equal.

CHAPTER XIV.

COURSE TO BE FOLLOW ED WITH REFRACTORY WITNESSES.

This is the difficult point ; the legislator can only make a choice
of inconveniences. That a witness who has all the requisite qualifi-
cations should give his evidence is desirable for the same reason,
and in the same degree that justice is desii-able. Little is gained
by bringing him before the judge, if, when he is there, he refuses
to speak. Such a refusal is an offence against justice. Whatever
may be the motives which urge the witness to this act of dis-
obedience, a power must be found sufficient to overcome them ;
otherwise, the issue of the cause, that is, of every cause, and all the
powers of law and justice, are laid prostrate at the feet of every
witness whose evidence is necessary.

Let us begin with taking a distinction between a witness who is
a party in the cause, and one who is not. This fundamental dis-
tinction throws a great deal of light upon the subject, and re-
moves part of the difficulty.

342 A TREATISE ON

h If the witness is a party, he is under the power of justice. If he
refuses to speak, he loses his cause. If he is plaintiff, his claim is re-
jected. Wlmt he asks from the judge is the performance of a certain
service. The judge answers^ you have no right to it, for you refuse
to fulfil an essential condition, without which I can do nothing for
yqy^ If he is defendant, the judge says to him : that you refuse to
speak can only arise from your having nothing solid to oppose to
the claims of your adversary 3 your silence establishes his right.

If this rule be indisputable in civil mattere, it is no less so in criminal
cases. If the accused obstinately remains silent, when he hears the
witnessess who inculpate him, and sees a body of evidence unfolded
which must bring conviction to the judge, the inference against him
is equally natural and legitimate 5 — can he have any other reason for
being silent, than the fear of involving himself still more deeply ?
If he is innocent, it is morally impossible that he should refuse to
speak ', he has every thing to gain, and nothing to lose by speaking.
Silence is synonymous with confession ; confession is by words j si-
lence is a confession by deed. If he has it in his power to undeceive
his judges, and yet will not do it, he dies of his own accord j he is
a suicide.

This, it will be said, is drawing too exaggerated a conclusion
from mere silence. Silence, like all other circumstantial evidence,
is liable to invalidating considerations; it may be the effect of
incapacity, stupor, mental alienation; perhaps of a principle of
honour or generosity.

Undoubtedly; and a judge must be very ignorant, indeed, of the
first elements of the judicial art, if he cannot distinguish the nature
and causes of silence. But we are speaking of cases where there is
sufficient evidence of guilt against the accused, — evidence which he
ought to be able to refute if he is innocent, and on which he
can be silent, only because his conscience condemns him. In the law
of England, where.a guilty prisoner makes use of the privilege of the
law to be silent, and no questions are allowed to be put to him, can
it be doubted that his silence produces sm effect on the jury ? It is
in vain to deny it. Juries know by experience, that the innocent
^ever neglect their means of defence.

This principle being admitted, it is evident that all the means of
constraint which have so long been us?d to force accused persons
to speak, and obtain confessions from them, were altogether super-:
fluous* Torture comes at last to be merely a way of getting at
something which is useless, under a public and well-conducted
system of procedure, viz., a direct confession by the accused;
useless, I say, because its equivalent is to be found eiiiku in bi$

JUDICIAL BVIDBNCE. 34?

silence, or in the wei^k answers which be gives to the evidence
brought against him.'

The present state of public opinion with respect to torture, frees
me from the necessity of entering into any lengthened discussibil
concerning it. It may be regarded as a scourge which has ceased
to exist, or which cannot long endtil*e In the ciVlllzed countries
whose tribunals it still disgraces. I shall give only a summaiT^ of ar-
gument already known, which have befen illustrated by eloquent
writers. I throw a veil over the b^i^barity of the means employed i
were they even extremely mitigated, they would still be detestable.
Every degree of rigour, even the lowest, wheh applied to accused
persons to compel them to spealc, is linjust, unhectesary, ahd
dangerous. ^

Torture is employed to obtain a confession' for the purpose of
supplying the insuflSciency of the evi(ience. On this suppositioti,
then, the crime is not proved. What doe^ the judg^ do? He!
tortures a man because it is doubtful whether he be innocent or
guilty; he punishes oh suspicion, that he may discover whether he in
entitled to punish ; to obtain evidence of the crime, he treats bipi
as he would do if tlie evidence wete already obtained.

" That is not the true utate of the case,** " thejiidgfe Will answer j
we have evidence; but we must have a man's confession before
putting him to death; it is necessary for our own complete Satis-
faction as well as for that of the public." But can the means Which
you employ to obtain this satisfaction procure it ? tt is impossible ;
these formal confessions, extorted by torturb, are at least equally
liable to doubt as the virtual confession obtained by the silence of a
culprit, or tlie contradictions and absurdities to which he has
recourse on his examination. The judge, therefore, gains no
additional security; ahd those who hold, that the infliction of
a capita] punishment cannot be justified without a direct con-
fession by the accused, must necessarily hold that such punisjiments
ought to be abolished. There is no room for hesitating ; they must
be abolished if they can be justified only by means so fatal to
justice, ahd so formidable to innocence. Torture, unnecessary
where the criminal is sufiiciently convicted, produces an effect con-
trary to the object of the law when the criminal is hardy and
robust, capable of supporting pain, and sufficiently attached to lifi^
to purchase it at this price ; he is assured of ultimate impunity^
and escapes from a clear conviction. And who are the criminals in
whose favour the chance stands the highest ? Precisely those, who,
on being liberated, will be the most formidable to societjr^ and th^
moBt prolific in new cringes.

344 A TRBATrSB ON

But suppose an opposite result^ of which there are but too many
and too authentic examples^ — suppose that the accused person is
ii^nocent^ and the acknowledgment of his guilt has been forced
from him by the torture. The evil is incalculable ; a deep wound is
inflicted on public confidence : innocence itself, the only protection
that can be trusted to^ is no longer a sure resource. And observe
the contrast. The torture exposes the guilty to no danger ; on the
cpntrary, it is to him a means of safety ; it is dangerous only to the
innocent. The errors of this system are all indulgence to the
guilty and destruction to the innocent.

All this has been the result of a single false notion^ — ^the idea
that a confession is necessary. It is astonishing that it should have
maintained itself so long in opposition to the example of England,
where a confession, so far from being exacted, is not even received ;
and where, nevertheless, public security, in regard to criminal
justice, reached its highest perfection ; but this security was
fpunded on an open system of procedure, complete publicity, and
the fitcilities afforded to every means of defence. '

What is called dqfinitive torture, that is, torture applied to a con-
victed criminal, to make him reveal his accomplices, does not rest
on any better foundation. It may be certain that he had accom-
plices, but it is by no means certain that he can tell who they
were; the most specious appearances may, in this respect, be
erroneous. Two robbers may act together without concert; their
meeting may have been fortuitous, and their connection only mo-
mentary. The fires in London, in 1780, furnish a remarkable
example of the same crime being committed by two or more indi-
viduals who had no previous common design. On that occasion,
two entirely different sorts of incendiaries might be seen in the
same house, the one set fanatics and the other thieVes. The
fanatics might not be the less dangerous of the two; but it was
not natural to suppose that they had any connection with the
thieves;. The same thing may happen in a great number of political
offences. If there have been no accomplices, there can be no
disclosure, that is, no true one; for a false disclosure may always
be brought out by the violence of the torture, and the prisoner's
desire to shorten it. This is a frightful danger, and many examples
of it may be found in the history of the torture.

I hasten to close so painfuP a subject. I shall only make one

remark, viz., that fortune has bribed justice and judges; a false

guarantee has long stood in the way of the only true guarantees

that can be trusted to in the administration of criminal justice.

. We now come to a very different case,— that of a witness who

JUDICIAL EVIDENCE. 345

is not a party in the cause^ a witness who can lose nothing by being
silent, a witness who may even have good reasons for remaining
dumb I and who, when examined by the judge, concerning facts
with which he is acquainted, obstinately refuses to reply. For
example, the witness may know perfectly where certain original
titles are to be found ; at what time a certain deed was execute ^'
what is the real situation of the accused ; how this or that article
of real evidence got into the hands of this or that individual 3 who
were the accomplices in the criminal act, &c.

The offence of which a refractory witness is guilty may be defined :
It is '^ an act of disobedience to justice, and consists in his refusal
to disclose a fact with which he is certainly acquainted — so
certainly, that he cannot deny it."

This is the negative offence to be prevented. But how shall
it be prevented except by punishment; or, to speak more correctly,
l^ means of -coercion ?

These means ought to vary with the importance of the testimony.

If the object of the investigation is, to procure new evidence
against a known criminal who is already in the hands of justice,
and there ai'e other witnesses, his guilt may be proved in spite of
the witness's silence. The evil therefore is, in this case^ at its lowest
terms, ^nd may be absolutely nothing.

If it is an offence, the perpetrator of which is hitherto un-
known3 and in which there are neither proofe nor indications, the
silence of a refractory witness is a more serious evil, because it may
insure impunity to one or more offendei's.

All those means of constraint, which are such as to produce an
irreparable evil, ought to be excluded ; the sufiering ought to cease^
if it be possible, with the disobedience. All those means, likewise,
which imply bodily violence ought to be excluded ; otherwise, the
very object in view may be disappointed ; the mind may harden
itself against pain; pride may be excited, and a revolt against law
may assume the pomp of a triumph.

Mere imprisonment will not always serve the purpose. Many
motives may lead a man to submit to such a punishment;—*
obstinacy, for instance, a false idea of honour, hatred, friendship, the
hope of a reward, &c. There is one sort of constraint the effect of
which may be regarded as certain,* viz. imprisonment in solitude
and darkness, with no other food than what is necessary to sustain
life ; the individual is left to his own reflections, and deprived
of every stimulant to resistance. The darkness of a solitary dungeon,
humbles pride, and submission soon presents itself as a necessary
resource.

340 A TREATISE ON

Were this penal constraint once established^ it would not often
be necessary to apply it. It seldom happens that an unwilling
witness^ when placed before the judge^ absolutely refuses to speak ;
he prefers taking shelter in subterfuges, and has but too many
means of concealment without the possibility of convicting him.
But if the legal punishment were abolished^ the crime of open dis-
obedience^ which is now so rare, would become frequent.

Such a law requires many precautions. The duration of the
coercion must be limited, and it must be subjected to rules.

First canditum. The offence, that is, the ability of the witness to
perform what is required of him, must be proved to the judge.

' Second condition. All possible publicity must be given to it, and
the bead of the judicial department must be immediately in-
formed of it.

Oppression, in all its forms, seeks refuge in secrecy ; it dreads
nothing so much as the light of day. The most tyrannical magistrate .
becomes moderate, and the most rash becomes ci)*cumspect, when
he knows that the eyes of eveiy body are upon him, and that be
cannot judge, without being judged himself. *

mim^

CHAPTER XV.

MEASURES TO BE TAKEN TO PREVENT THE LOSS OF EVmENC^.

In treating of the loss of evidence^ a distinction roust be taken
betweien the thing itself which is the source of evidence, and the
evidence deduced from it. If the thing itsdf j^erlshes, it is clear
that the evidence to bie drawn from it perishes likewisi^* Bat the
thing may continiie to exist in its natural and 6itlinai7 state, and
y^et be lost as a piece of evidence. An example will illustrate this
distinction. If, in a case of murdei', tt coat stained with blooid has
been M^ashed, this tends to its preservation as a piece of dress ; but
it is as thoroughly dtetioyed as a piece of evidenoe, in regard of the
fact in qu^stioni as if it had been burned.

The same distinction is applicable to persolial evidence. The
proposed witness may die ; but he may be alive and incapable of
being a witness, either from disease affecting his ndemory i^

• Cases may be cited in which the greatest publicity has not prevented acts
of f t^jQStf ce *, T^mt this exception can oCcar only in jtidgments pronoanced by a
anaivfoqe tribimal. Hie more there are of ju^i^Si th^ less there is of re-

JUl^ICIAL BVIBBNCB. 347

intellectual faculties^ or from a change of his ahode^ which puts
him beyond the reach of justice.

The means to be talcen to prevent the loss of evidence, coincide,
in general, with those which have been already explained as
applicable to its production. If the latter object is gained, the
former is gained. To produce the evidence and record its pro-
duction, is all that is necessary to prevent it from perishing.

Still, there are cases which require special provisions, according
as the thing to be used in evidence is more or less of a perishable
nature.

Another general observation is, that nothing is better calculated
to prevent the loss of evidence, than promptitude and expedition of
procedure. But I do not insist on this point; for, although this is
a very powerful consideration, the direct reasons for avoiding all
unnecessary delay are still stronger. In fact, as every delay is an
injustice^ the propriety of avoiding this injustice is a sufficient
reason against it, even though the delay should not endanger the
evidence. ' '

Having premised these preliminary remarks, we may proceed
to' mention certain special measures which ought to be adopted in
particular cases, in order to preserve evidence which is In danger : '

1. Accelerate the case on account of this danger; that is, give it
a priority before other causes, to which, in the reglilar routine of
business, it would have been postponed.

2. Examine the witness before the time, at which, in the regular
course of proceeding in the cause, he would have been examined.
This priority may often be a matter of indiffereuce in itself, but it
may likewise be attended with inconveniences, and the judge mu^t
weigh them against its advantages. No general objection can be
made to this anticipation of evidence, provided it is accompanied
with all the requisite securities, and the party interested is allowed
to cross-examine. •

3. Have recourse to some mode of examination, inferior in
point of security, instead of the regular mode which would have
been followed in the ordinary course of proceeding.

Such is the case when the evidence of a witness, who cannot be
subjected to cross-examination, is taken iii consequence of thcf
danger being so pressing, that the evidence, if not received in this'
less advantageous form, would be lost altogether. To this head
belong all those criminal cases in which' the evidence, is taken as it
can be found, though there should be no suspicion who is tbe
ofiender; or when^ if he is suspected, he has not been legally
accused. When a dead body is found in such circumstance as l^adl

343 A TREATISE ON

to a suspicion of murder^ all the measures taken to collect and
record the real evidence^ whether it be in the immediate presence
of the judge^ or from the reports of those who are acquainted
with the fact, belong to this head.

4, When you have to do with real evidence of a perishable
nature, take every measure which the case admits of to preserve its
character, as evidence uninjured, till it shM have been laid before
the judge. As the means adapted to this end are infinitely various,
the legislator cannot possibly specify them in detail. He can only
give general instructions.

Sequestration in the hands of some ti*ustworthy person is, at
once, the most common and the most effectual of all expedients.
But it ought to be observed that sequestration is often accompanied
with a peculiar vexation, viz. the temporary want of the use of the
thing sequestrated. A whole apartment, for instance, may be
sealed up. The judge ought not to authorize such a measure, ex-
cept where it is justified by necessity.

To this head may be referred the measures which have sometimes
been ta!<en, under the authority of the law, to authenticate
pregnancy, and prevent one infant from being substituted for another
which might be dead-born, or might die soon after its birth. The
jurisprudence of Rome met this species of fraud by a mode of
proceeding, which the delicacy of modern manners does not allow.
The law of England allows this mode of visitation on a different
occasion, but always with the intention of obviating fraud. If a
woman convicted of a capital crime pleads pregnancy, her execution
IS delayed till her delivery. A juiy of matrons is sworn to ascertain
the fact by real evidence. Thus a female, (and the feelings of
a female are always more lively than those of our sex,} has the
horrors of a death before her eyes for five or' six months; while
a male, in the same circumstances, would be liberated from them
in five or six days. This barbarity has arrogated to itself the
name of mercy, and. is intended to secure against a supposed evil an
insensible being, who is to be born at the foot of the scaffold, of the
mother who has carried it in her womb during all the anguish of a
tedious punishment. Men are lavish of death to those who feel it;
and atone for this prodigality of torture by groat sensibility towards
those who can feel nothing.

When serious illness renders it impossible for the witness to

appear before the judge, the loss of the evidence may be prevented

by examining him in his own room, with the precautions pointed

out in Chapter III.

To these cases of extraordinary and irregular examination, may

I

i

n

JUDICIAL EVIDBNCE. $4&

be added that which prises from emigration. This case may require,
according to circumstances, a departure from the rule, both iu
regard to time and place; for it may be necessary to examine the
witness not only before the time at which he would regularly have
been examined, but likewise at a distance from the seat of judi-
cature ; at a sea-port, for instance, if he is on the point of em-
barking; or even on board ship, if he is about to sail.

If it becomes necessary in such a case to examine the witness
before the suit is begun, the consequence is that the other party has
not the advantage of being present, and the evidence wants one of
the principal securities. Hence may arise a special fraud. The
plaintiff may bribe a witness to emigrate, with the intention of
having him examined in this irregular mode, which does not give
the defendant the means of cross-examining and scrutinizing the
evidence. This is too far-fetched a fraud to be natural ; but, ia
cases of great importance, it is possible, and every thing ought to
be provided for.

Fortunately in this, as in many other cases, to point out the evil
is to point out the remedy; to put a judge on his guard against
fraud is to disappoint it. Testimony thus given, in circum-
stances which diminish its value, will only be received as all other
evidence of an inferior kind, to which recourse is had merely as a
pis aller.

Before finishing this head, it is necessary to revert to what was
formerly said concerning the case of witnesses' residence not being
within the jurisdiction of the court, but in some other part of the
same state. Such a witness must be examined in another court,
foro alio ; or, if he be domiciled in a foreign coiintry, by a foreign
court, /oro alieno. In these cases, as the judge who is to decide
cannot be present at the examination of the witness, the evidence
taken, by another judge, not having all the securities that can be
applied in the regular mode, must be considered as evidence of an
inferior kind, to be had recourse to only from necessily, as the sole
means of obviating the preponderating evil imphed in the loss of
the evidence.

I conclude with a general observation. In proportion as a
system of procedure is well adapted to all the ends which it ought
to have in view, it is likewise well adapted to prevent the loss
of evidence; to seize it as it rises, detect it every where, and take
opportunity by the forelock. It is equally true, that the more
defective the system is in relation to these great endr, and the
oftener it is interrupted by intervals of slumber and inaction, if I
may so speak, the more frequently will it be found to have recourse

350 A TREATISE ON

to the extraordinary means which 1 have Just been explaining.
Under a good system, there are few occasions on which it is ne-
cessary to deviate from the ordinary routine j under a bad system
there are many.

CHAPTER XVi

OF ANONYMOUS INFOHMATION,

Under the name of anonymous evidence, msiy be compre-
hended every species of information or disclosure, of which the
person, who is to use it, does not know the author, or knows him
only by having seen or heard him, but is ignorant of all the circum-
stances of his name, residence, and social connections, by which he
inay be judicially reachedi

Evidence of this sort is naturally in writing, — casual written
evidence. But this circumstance is not absolutely necessary;
anonymous whisperers are not without example ; a word is whispered
into the ear, and the informer is lost in the crowd.

That anonymous information cannot, from its nature, be used as
definitive evidence, or be the foundation of a decision, is a pro-
position so generally received, that it may appear superfluous to
say any thing in support of it. But if this general persifasion
has hitherto been founded only on prejudice, which strengthens
the most salutary as well as the most pernicious opinions, — if we
are guided by sentiment and passion rather than by sober and
distinct views, it may not be useless to discuss the true reasons
on which this proposition rests.

Anonymous evidence may be considered as a species of casual
written evidence, but one peculiarly weak and inconclusive ; des-
titute, as it IS, of all the securities which characterize the truth.
Fraud is the more presumable, because, under this veil, the
temptation to falsehood is not under any immediate check, either
from the dread of legal punishment or from the fear of shame and
ignominy in public opinion. The anonymous accuser, concealed in
darkness, has to fear neither thc^ disclosures of an accomplice, nor
the various accidents which so often betray seci'et crimes. Were
such evidence ever received as definitive, there would no longer be
any security for the innocent ; only the cowardly calumniators, who
wished to destroy them, would be safe.

But although anonymous evidence can never be made the fbun-

JUDICIAL BV1J)BNCB. 351

dation of a decUion^ may it not sometimes be used as an indication
without any preponderating incouTenience?

If the anonymous information bad no otber object tban to
put the party in possession of a source of evidence perfectly
admissible, by telling, for instance, in a case of theft, where the
stolen goods may be found, or particularizing some person^, who, if
regularly examined, will be able to give judicial evidence, it might
contribute to the direct, ends of justice. But a question arises,*— is so
suspicious a sort of indication, sufficient ground for any of those
preliminary operations which are always attended with more or
less vexation to those who are the objects of them ? For example,
will this alone be sufficient for authorizing the officers of justice to
enter a house, with or without the consent of the propjcietor, in
order to search for some article of real evidence pointed out by th^
anonymous informer ? Shall an individual be summoned to appear
as a witness on this authority alone, before there is any better proof
that he can give evidence respecting the fact in question ? ^

The case is, that of a certain inconvenience occasioned in the
hope of producing a greater good. The respective value, then, of
the benefit and the inconvenience are to be coippared. The l)e.nefit
consists, in criminal cases^ in repressing a crime i in civil cases^ in
protecting a right ; and its value will depend on the heinousness of
the offence, and the importance of.the right

No individual ought ever to be allowed to make $uch a search on
such a ground, without the authority of a m^gbtra^e, In casQs
of evident good faith it may palliate, but nothing more. Were it
a justification, a man would only have to write an anonymous letter
to himself, or procure an accomplice to do it, in order to trouble at
pleasure the house of a citizen, and thatj, too, without any other
object except harassing him.

If the evil of the offence is weighed on the one band, the
greatness of the inconvenience must be calculated on the other.
A summons to appear at a distance of one or two miles may be
allowed, but a day's journey would be hazarding too much.

It would be impossible to draw any certain line between the
cases in which permission ought to be given or refused* The pro-
bability of the fact contained in the anonymous information, is
evidently the principal point to be considered.

The propriety of making i|se of this means will depend much on
the way in which the law deals with an anonymous informer^ when
he is detected, and his accusation turns out to be unfounded. If
be has only been rash, the penalty ragiit to be latisfiictioa to the
injured party ; if he has acted with bad faith, he ought to be

352 A TRBATI8E ON

punished as guilty of false testimony. With this precaution
anonymous information may be admitted in the higher crimes, —
treason^ assassination, arson, &c., as the foundation of a judicial
operation, a domiciliary visit, or a summons to appear, though it
should lead to a slight inconvenience.

But why not at once reject all anonymous informations ? Because
by means of them you gain information which you would not
obtain by any other, and you thus enforce rights which otherwise
would be violated, — redress injuries for which there would otherwise
have been no reparation, — punish crimes which would otherwise
have escaped with impunity, — and prevent malversations which
otherwise could not have been prevented.

What, then, are those cases in which only anonymous infor.
mation can be procured? They are cases in which the knowledge
of the fact is confined to a small number of pei'sons, who are so
situated, that they would remain silent for ever rather than make a
public communication. The inciting motives are not so strong
as the restraining motives. The motives, which induce an iu-
dividual to become an accuser, are commonly one or more of the
following :

1. Public spirit or patriotism; that is, sympathy with the com-
munity,' whose interests appear to be injured by the conduct of the
person whom he denounces..

2. Benevolence in general, or particular affection towards an
individual, or a class of individuals, whom he wishes to secure
against some act of injustice or oppression.

3. Antipathy, with or without a special cause, against an
individual or a class of individuals, whose impunity chagrins him.

4. Love of power; — that principle in human nature, which makes,
a man feel pleasure in witnessing the important effects produced by
his will and exertions. *

5. 'Love of reputation ; — a desire which may find a distant satis-
faction in the success of his accusation, notwithstanding the veil
with which be may conceal himself in the first instance.

What are the most usual and most powerful of the retraining
motives?

1. Fear of the enmity of an individual, of the individual or in-
dividuals who may be personally offended with the charge.

2. Feqr of the enmity of a party, of a class of men united
among themselves by some principle of interest or affection,
whatever it may be, and ready to make common cause sTgainst the
infomner.

3. Timidity, whether it be the fear of failing, and thus being

JUDICIAL EVIDENCE. 353

compromised in public opinion, or that embarrassment and re*
pugnance which many men feel -when it is necessary to take a
public step, and come forward on a wide scene. This timidity is'
a modification of that great principle, the love of reputation, to
which we have above ascribed an entirely Opposite effect. The
contradiction is only in appearance; no motive is so apt to act
against itself — ^it leads one man to publish his actions, and another
to conceal his. From ^ loVe of public favour, an author gives
himself up in solitude to the most painful labours ; and from dread
that he will not be approved of, he suppresses or destroys his work.
Timidity is a very powerful restraining motive; above all, its
influence on the more delicate and sensible of the sexes is at once
natural and happy in its effects.

When I ask, what course ought to be followed with anonymous
information, I do not address myself to individuals. The iildividual,
who receives such information, may make all the Use Of it which
prudence dictates and the law allows. His own interest will lead
him sufficiently to weigh all the circumstances of the fact,
to follow out the clew which has been given him, to proceed from
proof to proof, and to demand the assistance of justice if the case
requires it.

This inquiry concerns only the government ; it is in regard to
the higher departments of the state, that it is important to know,
what course ought to be followed with anonymous information, and
how far it may be acted on.

In order to derive from it the greatest possible advantage, it 4s
not enough that the agents of government proceed on the principle
of receiving it as it comes, and using it when occasion offers ; it is
necessary that their determination in this respect be mad6 as
public as possible, and be known to every individual, who, in con-
sequence of this knowledge, can contribute to this source of
information.

To give an idea of the advantages which may result from this
political measure, and particularly from its publicity, I shall shew
its effects in two very extensive classes of offences.

Smuggling is an offence, in regard to which the restraining motives,
that keep people back from giving informatioji, act with peculiar
force. All professional smugglers form one'body with a common
interest ; they have common passions, and the thirst for reftnge is
one of the most ardent and most easily gratified. Every one is
iihwilling to enter into an open war with them, and brave their
hatred.

This is not all. Whoever might be willing to attack so fer-

2 A

354 A tebause on

miaable a league^ would give up his design on considering the
difficulties that must attend it. There is^ first of all, the loss of
time ; that is, the time spent, to the detriment of his own afiairs, in
going from ofiice to ofiice to give information, in besieging clerks
and enduring delays. But what is still more discouraging is the
official insolence, the haughtiness and disdain, with which persons,
who g^ive information regarding this species of crime, are treated.
To be thought oflScious is the least of the dangers they run ; their
motives are suspected, the part which they have to play is odious ;
and it might be said, that to reveal the crime is worse than the
crime itself. If the informer is at last brought into a court of
justice, he finds himself surrounded by proofs of general dislike ; his
intentions are subjected to the most malicious scrutiny ; he rarely
escapes insult; and if he receives the gratification which law pro-
vides when his exertions have been followed with success, this
gratification is a disgrace rather than a reward.

The less reason there is to expect public information regarding
this offence, the greater is the propriety of keeping open the source
of anonymous information.

Public abuses. — ^The same principles apply to the various abuses
introduced into the judicial, military, and administrative offices of
the government, some of them prejudicial to the public interest and
the conduct of business, others of them prejudicial to individuals
who have transactions with these offices.

From whom may positive information regarding these abuses
be expected \ 1. From the inferior employ ^s, who are witnesses of
them and co-operators in them ; 2. from individuals who have
suffered by them.

It is evident tkat all personal considerations unite to prevent the
fii'st class from becoming public informers. To give information to
the prejudice of a colleague is, in the eyes of the whole body, an
act of perfidy, which is naturally, and almost necessarily, followed
by a civil excommunication, not less formidable than eccle-
siastical excommunication was in former ages. When the abuses
in question are those which are the patrimony of the whole fra-
ternity, who will have the courage to expose himself to a legion of
enemies ?

Think what the task of a declared informer must be, when the
person principally concerned in the abuse is a superior, to whom he
owes his place, or who holds himself the protector of those who are
denounced. The informer would be in the situation of a litigant,
whose adversary is his judge.

Fjarticular enmities and rei^entments may occasionally lead to dis-

JVDICiAl BViBBNCB. 855

closures of this sort ; but such cases, iii which passkm overpowers
the rules of prudence, are always "extremely rare.

In regard, again^ to individuals who have sufferecl from official
abuses^ extortion may be taken as affording an example of the use
which may be made of anonymous information* When a person, who
has business to transact with a public'office, finds that a recompense
not allowed by law, but indispensable to the progress of his business^
is expected from him under the name of a present, compliment, or
some other synonymous appellation, the demand must be very exor-
bitant indeed to make it his interest to complain of it openly ; he
generally finds his advantage in submitting to it. But suppose that
he pays it, and then gives information of it anonymously. The head
of the department says to the clerk, give me a list of all the presents
you have received between such and such a day ; if a single article
is omitted, you shall be dismissed. If the present is acknowledged,
he is ordered to return it ; if it is denied^ the anonymous informer
is called on to come forward and prove his accusation, which he
may now do fearlessly, since he is certain of the protection of the
head of the department. *

If the government admitted this mode of silent attack upon
abuses, those who are guilty of malversation would not be idle on
their part ; and as their best defence consists in discrediting this
sort of information, they would not fail to multiply anonymous
denunciations ; they would spare nobody, and labour to weary out
the government by useless inquiries, till the government, dis-
couraged by the vain pursuit^ would treat with equal contempt
eveiy thing that came from this source.

The species of falsehood to which this mode is necessarily ex-
posed, is not so easy in practice as might be believed. We have
seen, that its punishment ought to be nearly equal to that of false
testimony. Now^ as the persons disposed to commit the offence,
imable to disguise their handwriting, which would be recognized
by their superiors^ would be almost always under the necessity of
employing another person, they would thus multiply the chances of
discovery. A small number of such attempts would not be suffi-*
cient to produce the desired effect; and to repeat them often,
nothing less would be required than a confederacy of a great
number pf co-operators.

If we consult the opinions of authors regarding anonymous.

* It may be said, that if the head of the department is ioclined to do jostice,
be wiU do it equally to a declared as to an anonymoos informer* Yeiy true ;
but bow is the informer to know that the head ia Uios inclined ?

2a 2

35d A TREATISE ON

accusations^ we find they condemn them in the strongest^ most
express^ and absolute terms ; and considering the cases to which
they have applied this censure, I am disposed to believe it was in
general well founded. But the reasons on which they rest it, do not
apply to the me I propose to make of them.

When we speak of anonymous accusations, imagination imme-
diately transports us to Venice, and we instantly see the formidable
lion's mouth. But the Venetian system of criminal procedure was
secret, and consequently arbitrary, and, with good reason, the terror
of innocence. In the midst o such darkness, it was impossible to
know in what character this evidence was employed — ^whether as
merely indicatory or as definitive ; and the mere possibility that it
m^ght be employed in the latter character destroys every idea of
justice and every feeling of security.

. If there be any country whose mode of procedure stands in
direct contrast with that of Venice, it is England. Anonymous
notices, inserted in the public papers, have frequently enabled
superiors to detect the malversations of their inferior servants ; but
there is a great diflFerence between occasionally profiting by ationy-
mous informations, and a known determination to receive and
examine into them all. Great abuses have always existed in certain
public offices ; on three different occasions the government has
entered into correspondence with anonymous informers, in order to
obtain evidence ; but it is probable, that, if a system in regard to
anonymous information had been established and followed out, the
abuses^ which it was thus attempted to punish, would never have
existed.

The character of the system, when thus modified, is not severity,
but mildness; its object is not to punish, but to prevent the
necessity of punishing.

, Still, as this measure is unpopular, and justly unpopular, it ought
not to be adopted without a positive notification, that such in-
formation is only to be used as a key or clew to get at legal
evidence, and to induce the anonymous informer to discover himself,
by assuring him that he will be listened to, and inviting him to
furnish unobjectionable evidence. It may be added, that all general
imputations against the character of an individual, all that do not
specify some offence, and all that are not supported by facts, will be
rejected with tlie contempt which they deserve.

Anonymous information, which is always suspicious^ would
become rare under a government that knew how to create a ^igh
degree of public spirit, and honour the citizen who had the courage
openly to attack abuses and violations of law. One of the great

JUDICIAL BVIDENCK.

357

advantages of representative government is^ that it forms a class
of public tribunes, to whom it is at once a duty and an honour to
attack every species of malversation ; while their position in society
raises them above private enmities, or diminishes the danger of
them, by the very publicity with which the duty is performed, and
by the power of their association. But even in states which enjoy
this great vent for truth, anonymous information ought not to be
entirely renounced. It often furnishes usefiil indications, and, with
the precautions which we have pointed out, it can never be
injurious.

THE END.

fl

APPENDIX

/

APPENDIX.

THE LAW OP England in regard to investigatory

PROCEDURE.

Havino shewn how necessary the power of investigation is to justice, il
will not be foreign to our purpose, to mark the extent which has been given
to it in the law of England. '

In the original formation of the English system of procedure^ this means
of discovering the truth was necessarily excluded in all cases, and in regard
to both parties. An indispensable condition of investigatory procedure is^
that the witnesses be examined on two different occasions ; the object of the
fhrst is> to discover evidence that may serve as the foundation of a decision,
and be brought forward for definitive examination. As, according to the
original form of the English practice^ the trial was the only occsusion on
which the witnesses could be' judicially examined^ and the trial was confined
to a single sittings the shortness of the time absolutely excluded every
possibility of a preparatory examination. Such was the mode of procedure
in its infancy^— a system of action directed towards a particular end 3 but so
imperfect^ and so destitute of all the necessary means^ that^ in the greater
number of cases^ it could not gain that end.

A power which partly makes up for this radical defect has been gradually
introduced into the system^ but it has been the result of accident rather than
of reflection and design. We are not indebted for it to lawyers^ but t6 the
justices of the peace 3 since these latter were instituted with certain ix)wers,
they have gradually applied them to the discovery of evidence.

Lawyers might have written for centuries^ and heaped book upon book^
without ever stumbling on the idea of investigatory procedure, or suspecting
that there is a difference between it and the procedure probationibus cognitis.
Still less would they have formed any conception of the latitude which
ought to be given to this power of investigation, and of the impotency
and helplessness of law wherever it is excluded.

Taking advantage of certain general terms in the old form of commissison
of the peace, these judges, in certain minor offences, distinguished by the
name of breaches of the peace, acting by themselves^ and in their owa

362 APPENDIX.

house^ gradually introduced the custom of calling the accused party before
them^ especially on the demand of the injured party, previously to trial or
Any procedure in a regular court. Although a justice of peace could not
punish for such an offence, he could prevent the repetition of it by making
the delinquent find securities $ and he could likewise compel those, whom he
thought were capable of giving information on the trials to enter into
recognizances for their appearance. Here, then, is a power of inquiry in
regard to the fact — ^a power of collecting and receiving evidence, although
the inquiry does not lead to any definitive result. There was nothing to
prevent one person from being examined more than another, however small
the probability of obtaining information from him might be. The in«
dividual who could only give information that would be inadmissible as
evidence in a superior court, might point out the traces on which a com-
petent witness was to be fbund.

Had the inquiry been limited to a single day, the information that might
be obtained would have been useless ^ the judge, though he knew where
evidence was to be found, would not have been allowed time to obtain it.
Fortunately, the justict of the peace was not subjected to the rule^ of that
judicial science which holds time and space as nothing, and seeks to con-
centrate and terminate in a few hours what would frequently require the
labour of days, or weeks, or months. He was left at liberty to follow the
maxims of experience and good sense ^ he is not limited in point of time ;
he has no jury whose functions must terminate with the day. The party at
whose suggestion he acts learns, as well as himself, all the information that
is procured ) that party becomes the natural guide of the inquiry, follows it
out with all the activity of personal interest, and frequently finds witnesses
and indications that would have been lost had there been no power of
imme&te examination. It is thus that a system of preparatory inves-
tigation, which enables the superior judges to discover the truth and do
justice in many cases, in which, had they been reduced to their own form
of procedure, the result would have been the reverse, has been insensibly
framed, without any legislative assistance from lawyers.

This germ was not long in developing itself. The house of the justice of
peace became the sanctuary of justice j the focus which concentrates the
rays of judicial truth. A statute of Philip and Mary, in 1554, introduced the
practice of a preparatory examination, but it went no farther than felony.
A person arrested for felony was to be carried before a justice of peace
before being committed) the examination was to be taken down in
writing, and sent to the court by which he was to be tried. The same statute
likewise ordered the examination of the persons who brought the prisoner.
At present, without any statute, but in virtue of ancient usage, the justice
issues his warrant for the appearance of all other necessary witnesses.

The preamble of the statute does not giye the reasons why this exa-
mination was introduced. One of the objects undoubtedly was, to guard
against the loss of evidence by the death of a witness 3 perhaps another was
to procure a confession from the prisoner, according to the practice of all
nations on the gjlobe^ civilized or uncivilized. But if this was the intention

APPSNDIX. 363

of the legislature, it has been thoroughly frustrated by those whose ivst
duty it 'was to give it full effect. However that may be^ investigatory
procedure extended its domain over a new, and fortunately a very con-
siderable, department of law.

It was natural that magistrates, thus accustomed to pursue truth into all
the retreats where it might be concealed, should extend this method to
every case that came under their jurisdiction. Subsequently, various
statutes gave them the power, sometimes single, sometimes when several
were together, of deciding definitively in a number of o£fences, to say nothing
of civil cases. In these cases, they are not prollfbited to have recourse to
a preparatory examination 3 they are not ordered to follow what their
superiors call regular procedure ; they are not commanded to found their
judgments on defective and fallacious evidence ; they are not tied down to
a strict routine, and are allowed to listen to the counsels of experience and
reason.

In a word, all that the law contains of investigatory procedure is connected
(with the exception of a few cases which I am about to mention) with the
subordinate jurisdiction of the justices of peace. It is not used in civil
cases, whether they be in a court of common law, or what is called a
court of equity. Even in criminal cases, it is only used when the pro-
ceeding is by indictment, not when the proceeding is by information or
attachment.

I have said that a few fragments of this jurisprudence are to be found
scattered here and there in common law and equity. They may be collected
under two heads, inspection and discovery^ and are all comprised under what
the lawyers call motions of inspection and biUs of discovery.

If the system of procedure had been the work of a single individual,
acting as a legislator, and responsible for its defects, what is called a bill of
discovery would be sufficient to. convict him of the grossest incapacity, or
the most manifest want of probity. ^

As the common law refuses justice any aid in discovering evidence, it was
necessary to have recourse to a power which the court that goes by the
name of a court of equity has assumed at a time comparatively modem. A
request made to this court, for the purpose of discovering evidence, is called
a bill of discovery.

When the individual from whom information is wanted, is not a party in
the action, the request cannot be granted \ what is called discovery cannot
be obtained, though he should have the evidence in his hands, the written
evidence, the very document, on which your demand is founded. You must
begin your legal proceedings, bring your action in a court of common law,
file your bill, and submit to all this vexation and expense, before you know
whether you will be able to support your case by evidence. After a certain
number of months or years have been consumed in the contest which your
bill began, you at last obtain an order on the possessor of the document to
produce it. If he is unfavourable to you, or, which comes to the same
thing, favourable to your adversary, what does he do ? Before the order
reaches him/ be has bad abundance of leisure to put the document out of

364 APPENDIX.

his hands; the document is no longer in his possession, an4 you lose
your cause.

The only case in which equity can assist you to recover evidence in
sufficient time to make use of it is^ when the person whose testimony is
required^ is one of those who are proceeding at law. But, even in this case^
the court has tied up its hands^ and refuses you any assistance^ if your
demand contains any thing which may expose that individual to penal, or
nominally penal consequences.

This is the whole extent of what can be obtained from the court of equity
in relation to investigatoi^y procedure. In the most numerous class of
cases, it grants nothing, absolutely nothing. When it does give you some
assistance, it is only after months and years have been spent in obtaining
the same sort of information which a justice of the peace, an unlearned
magistrate, obtains every day^ in less than an hour^ in a form as good as the
other is bad^ and accompanied with no expense ; while the remedy granted
by a court of equity costs a price which renders it unattainable to some, and
ruinous to others.

When we see a succession of great judges, men distinguished for learning
and decors^ted with honours, consuming months and years, century after
century, in doing, and often doing very badly, what is done under their own
eyes, and always well done in the space of an hour, by men of no learning ;
is it conceivable that such a contrast should make no impression upon
them ? And when we consider that the work so speedily done in the study
of a justice of peace, and of such tedious duration in the Court of Chancery,
is attended, in the latter, with expenses which all go into the pockets of the
judge, his ofBcers, and professional brethren -, does it not require an effort
of candour to believe that such effects are to be ascribed only to pre-
judice and indifference?

Considering that in place of one witness examined on the trial, investi-
£;pitory procedure supposes that several are examined in one or more sittings
of uncertain duration, a professional lawyer might take advantage of
these delays, and the comparative slowness of proceedings in other countries,
to convert the defects^of the English system into perfections^ and to conclude
with a triumphant and satisfied air, that there is no room for reform. Un-
fortunately for his argument, a simple appeal to experience overthrows it.
The cases in which investigatory procedure has been admitted are precisely
those which are most speedily terminated ^ cases of felony are begun and
finished in the same day. On the other hand> the cases from which it has
been excluded, are precisely those hereditary suits which descend from
generation to generation, like the gout and other diseases, filling the cup
of life with bitterness. At length, with time, but not with time alone, the
suit is ended. The case is decided : so much is known : but who can tell
whether it has been rightly decided }

What is done, when the object clearly and distinctly is to institute an
inquiry, an investigatory proceeding ? A particular court or committee is
appointed, under the special name of a committee of inquiry ; as if the
necessity of ascertaining the truth by evidence existed only in this ^r that
particular case.

APPENbix. 365

S'requent examples of this investigatory procedure occur in the com-
mittees appointed by both houses of parliament, but most generally by the
house of commons. The object of them is sometimes preparatory to a
legislative measure, sometimes to a judicial measure ; but, in the latter
case, the committee which conducts the inquiry, is not entrusted with the
ultimate examination on which the decision proceeds. If the matter be
penal in its nature, the process begins anew, either in the form of an im-
peachment, or by a prosecution by the Attorney-General before the ordinary
courts, or by the house resuming the inquiry, he^iring witnesses, and
deciding itself, as in cases of breach of privilege, in which it exercises an
immediate jurisdiction.

I know nothing in the French system of procedure which prevents the
judge from making use of defective evidence as guides to lead him to
the discovery of more perfect evidence. As the time for receiving and
examining the evidence is* not confined, as in England, to a day, or a portion
of a day, but may be extended to jTny length that justice requires, the
proofs may succeed each other in the order in which they appear and are
connected with each other. But I do not find, in the jurisprudence of
France, any line of demarcation clearly drawn between these two different
functions of which evidence is thus capable; serving, in the one, as the
foundation of the judgment ; but, in the other, only leading to the discovery
of definitive evidence. This distinction is perfectly clear ; but, clear as it is,
I do not find it either in the legal language of France, or in the conduct of
her lawyers. I have observed well that hearsay evidence is duly marked out
by them as too weak to be the foundation of a judgment -, but I do not see that
its great utility, as indicatory evidence,' has ever been clearly announced
in their writings. They have not even a term to denote the use of it.
Weak as hearsay evidence is, it passes along with the rest, makes part of the
mass of depositions, and goes into the budget of the judge. The value to be
given to it, a great one, a small one, or none at all, depends entirely
upon him.

I observe that, in the trial of £Jalas, hearsay evidence of the fifth
degree was admitted, and placed on the same level with direct testimony ,
I know well that this has been made matter of reproach 5 but on whom does
the reproach fall? The judges are not blamed for having received such
evidence, but for having allowed it to have any weight with them. It is not
said, that they ought to have taken advantage of it as indicatory evidence,
and confined themselves to that. The true value of this mean of proof does
not seem to be known -, and when this trial (and many others) is carefully
examined, it does not appear that those who conducted it went from link to
link, attending to every statement, till they reached the immediate witness,
or discovered the falsehood of Peter or Paul.

It is not therefore the French system of procedure which has suggested to
me the distinction between indicatory and definitive evidence. I have
taken it from the English system, I observed that a great deal of evidence
was eoliected in the diff^ent courts which are not compeltent to pronounce
a final decision. A portion of it was preserved^ and used in the higher

\

I

366 APPENDIX.

cqiirt as definitive evidence ; the rest was left behind, and no farther use
inad€ of it at all. The whole of this latter portion was regarded as evidence
which ought no longer to be heard after it had served the only purpose which
it can petve, that of leading to the discovery of the direct evidence which
may be the foundation of a judgment. *

* Judges of the peace bind over ouly the essential witnesses to appear at the trial. It is
the same in committees of the House of Commons, or otlier committees of inquiry ;
they retain only'^uch evidence as is definitively admissible.

B^Bcnsley, Bolt-courtf Fleet-strett,

::^