to differ; and we continually find that not only are the most opposite judgments formed as to the credence due to alleged facts, but that a fact which one man considers both possible and probable another holds to be physically impossible (p). With respect to this kind of impossibility, our notions will be more or less accurate according to our acquaintance with the laws of nature; for many phenomena in apparent violation of her laws have been found, on examination, to be the regular consequences of others previously unknown. The story of the king of Siam has often been quoted, who believed everything the Dutch ambassador told him about Europe, until he mentioned that the water there in winter became so hard that men and even an elephant could walk on it, which that monarch at once pronounced a palpable falsehood (q). About three centuries and a half ago, when Columbus declared his conviction that the East Indies could be reached by sailing westward, and offered to make the trial, the learned world was prepared to demonstrate its physical impossibility; while similar language has, in our own day, been applied to the project for effecting the passage of the Atlantic Ocean by steam; and the assertion that the kingdom of England could be crossed in a carriage travelling at the rate of sixty miles an hour; or that a message could, with the speed of lightning, be transmitted through many miles of sea, at the depth of twenty or thirty fathoms, would, for many ages past, by the great bulk of mankind at least, have been pronounced too gross to require confutation. And lastly, different persons may consider the same thing possible, or even probable, for very opposite

(p) He may even know it to be so: eg. A plausible but fallacious chain of presumptive evidence tends to indicate A. as the person who committed a crime at B. His guilt may seem probable

to C.; but D., E. and F. know that it is impossible, for at the moment the crime was perpe. trated they were at G., and saw A. there.

(9) Locke, bk. 4, ch. 15, § 5.

reasons. In the infancy of aerostation, when its attempts were watched with anxiety by the learned and ridicule by the ignorant, some Japanese, on seeing a balloon ascend at St. Petersburg, expressed no surprise whatever; and being asked the cause of their unconcern, said, it was nothing but magic, and in Japan they had practitioners in magic in abundance (r).

more usual

§ 26. Before dismissing this subject, it is to be ob- Misrepresentaserved, that falsehood in human testimony presents itself tion, incompleteness and much more frequently in the shape of misrepresentation, exaggeration incompleteness, or exaggeration, than of total fabrica- than total fabri tion (s). “Qui non liberè veritatem pronunciat, proditor cation. veritatis est (t)." A lie is never half so dangerous as when it is woven up with some indisputable verity; and hence the use of the comprehensive form of oath administered in English courts of justice, that the deposing person is to tell "the truth, the whole truth, and nothing but the truth." So, an extensive field of mischief is opened by mere exaggeration : for "as truth is made the groundwork of the picture, and fiction lends but light and shade, it often requires more patience and acuteness than most men possess, or are willing to exercise, to distinguish

(r) 3 Benth. Jud. Ev. 315. The Chapter on Improbability and Impossibility in Bentham's work on Judicial Evidence-vol. iii. book 5, ch. 16-though an unfinished sketch, and by no means free from error, will repay perusal.

(s) This is particularly the case when words are repeated. " Il tuono, il gesto, tutte ciò che precede e ciò che siegue, le differenti idee che gli uomini attacano alle stesse parole, alterano e modificano in maniéra i detti di un' uomo, che è quasi impossibile il repe

terle quali precisamente furono
dette. Di più, le azioni violente,
e fuori dell' uso ordinario, quali
sono i veri delitti, lasciano traccia
di se nella moltitudine delle cir-
constanze, e negli effetti che ne
derivano, &c.: ma le parole non
rimangono che nella memoria, per
lo più infedele, e spesso sedotta,
dégli ascoltanti. Egli è adunque
di gran lunga più facile una ca-
lunnia sulle parole che sulle azi-
oni di un uomo."-Beccaria, Dei
Delitti e delle Pene, § 8.
(t) 11 Co. 83 a.

Divisions of evidence.

fact from fancy, and to repaint the narrative in its proper colours. In short, the intermixture of truth disarms the suspicion of the candid, and sanctions the ready belief of the malevolent (u)."

§ 27. There are several divisions of evidence and proofs which, although in some degree arbitrary, it will 1o. Direct and be found useful to bear in mind. In the first place, then,. evidence or proof is either direct or indirect; according as the principal fact follows from the evidentiary,—the factum probandum from the factum probans-immedi

indirect evi



2. Indirect evidence.

1. Direct evi- ately or by inference (v). In jurisprudence, however, direct evidence is commonly used in a secondary sense, viz. as limited to cases where the principal fact, or factum probandum, is attested directly by witnesses, things or documents (x). Indirect evidence, known in forensic Circumstantial procedure by the name of "circumstantial evidence (y),' is either conclusive or presumptive; conclusive, where the connexion between the principal and evidentiary facts— the factum probandum and factum probans—is a necessary consequence of the laws of nature; presumptive, where it only rests on a greater or less degree of pro

evidence. Conclusive.


(u) Lectures of the Bishop of
Tasmania; as cited in Tayl. Ev.
§ 43.

(v) "Quidem illa partitio ab
Aristotele tradita, consensum ferè
omnium meruit, alias esse proba-
tiones quas sextrà dicendi rationem
acciperet orator; alias quas ex cau-
så traheret ipse, et quodammodo
gigneret. Ideoque illas ȧréxvove,
id est inartificiales; has évrex-
vovs, id est artificiales vocave-
runt:" Quintil. Inst. Orat. lib. 5,
c. 1.
See also Heinec. ad Pand.
pars 4, § 116.

(r) "Omnis nostra probatio aut
directa est aut obliqua. Directa

cum id quod probare volumus ipsis tabulis aut testimoniis continetur. Obliqua cum id quod intendimus ex tabulis aut testimoniis argumentando colligitur:" Vinnius, Jurispr. Contract. lib. 4, cap. 25. See also 1 Stark. Evidence, 13, 15, 3rd Ed.; and Id. 21, 4th Ed.

(y) It may be doubted whether these terms are, strictly speaking, synonymous. Circumstantial evidence is that species of indirect evidence which municipal law deems sufficiently proximate to form the basis of judicial decision. Where, for instance, philosophi

bability (z). In practice this latter is termed "presumptive evidence;" obviously a secondary sense of the word: for direct evidence is in truth only presumptive, seeing that it rests on a presumption of the accuracy and veracity of witnesses, things or documents (a).

personal evidence.

§ 28. Again, evidence is either real or personal (b). 2o. Real and By real evidence is meant all evidence of which obany *ject belonging to the class of things is the source, persons also included in respect of such properties as belong to them in common with things (c). This sort of evidence may be either immediate, where the thing comes under the cognizance of our senses; or reported, where its existence is related to us by others. Personal evidence is that which is afforded by any human agent in the way of discourse or narration, or by voluntary signs. Evidence supplied by observation of involuntary changes of countenance and deportment comes under the head of real evidence (d).

and derivative

§ 29. The next division of evidence deserves particular 3o. Original attention, both for its own sake, and because it will evidence. be found to run through the whole system of English forensic procedure (e). It is this, that all evidence is

cal or historical truths are established by remote inference or analogy from facts, the evidence of those truths is indirect, but can scarcely be called circumstantial.

(2) "Dividuntur (signa) in has primas duas species, quod eorum alia sunt quæ necessaria sunt, quæ Græci vocant τεκμήρια ; alia non necessaria, quæ onμɛîa. Priora illa sunt quæ aliter habere se non possunt * Alia sunt signa non necessaria, quæ ɛikała Græci vocant:" Quintil. Inst. Orat. lib. 5, c. 9. Some editions

[ocr errors]

have εἰκότα instead of εἰκαῖα.
(a) Supra, § 7.

(b) 1 Benth. Jud. Ev. 53.

(c) 3 Benth. Jud. Ev. 26; and 1 Id. 53. This is the "evidentia rei vel facti" of the civilians. Mascard. de Prob. Quæst. 8; Calv. Lexic. Jurid.; 1 Hagg. Cons. Rep. 105. See infra, Part 2, ch. 2.

(d) We have slightly deviated from the definition given in 1 Benth. Jud. Ev. 53, 54.

(e) See Part 1, ch. 1; and Part 3, Book 2, ch. 3.

Forms of derivative evi


Infirmity of derivative evi


either original or unoriginal. By original evidence is
meant evidence, either ab intrà or ab extrà, which has an
independent probative force of its own; unoriginal, also
called derivative, transmitted, or secondhand evidence,
is that which derives its force from, through, or under,
some other. And of this derivative evidence there are
five forms. 1. When supposed oral evidence is deli-
vered through oral: this is hearsay evidence, in the strict
and primary sense of the term.
2. When supposed
written evidence is delivered through oral. 3. When
supposed written evidence is delivered through written.
4. When supposed oral evidence is delivered through
written. 5. When real evidence is reported, either by
word of mouth or otherwise (f).

§ 30. The infirmity of derivative evidence as compared with its primary source will be apparent on the slightest reflexion. Take the most obvious case,-supposed oral evidence delivered through oral. A. deposes that B. told him that he witnessed a certain fact. If B. were the deposing witness there would be only two chances of error in believing his testimony: viz. that he may have been mistaken as to what he thought he witnessed; or, that his narrative may be intentionally false. But when his testimony comes to us obstetricante manu, through the relation of A., two fresh chances of error are introduced: viz. that A. may have either mistaken the words uttered by B., or may intend to misrepresent them. There is indeed an additional, although weak, chance of obtaining the truth through double falsehood or mistake. E. g. the question is, at a certain time was there a clock in a certain room? A. was there, and saw it; but intending to deceive B., tells him there was not. B. believes this; but with the intention of deceiving, says to C., that A. told him there was. In believing this

(f) 3 Benth. Jud. Ev. 396.

« ElőzőTovább »