of advancing justice (x). A well known instance of an extremely violent and harsh presumption is to be found in the statute 21 Jac. I. c. 27; by which it was enacted, that every woman delivered of bastard issue, who should endeavour privately, either by drowning or secret burying, or in any other way, to conceal the death thereof, so that it might not come to light, whether it were born alive or not, should be deemed to have murdered it, unless she proved it to have been born dead. This cruel enactment, which seems to have been copied from an edict of Hen. II. of France in 1556 (y), the principle of which is also to be found in the laws of some other countries (z), has been repealed by the 43 Geo. III. c. 58, s. 3. The conclusive effect formerly ascribed to the confessions of accused persons (a), and to attempts by flight to escape judicial inquiry (6), are likewise among the most general instances. cluded on the ground of vexation, expense and delay. § 47. There are some exclusionary rules connected Evidence exwith this branch of the subject, the absolute necessity for which it would require extreme hardihood to deny. We mean where evidence is excluded on the ground that its production would cause needless vexation, expense, or delay (c). In illustration of the two former, the following case has been put (d). "By laying a barrow full of rubbish on a spot on which it ought not to have been laid (the side of a turnpike road), Titius has incurred a penalty of 5s. No man was witness to the transaction (r) See infra, Part 3, book 2, ch. 1. (y) Domat, Lois Civiles, Part 1, liv. 3, tit. 6; Préambule, note (a); and Id. sect. 4, § 2, note (b). (z) 4 Blackst. Comm. 198. (a) See Part 3, book 2, ch. 6. (b) See Part 3, book 2, ch. 1, sect. 3. (c) Bentham, whose work on Judicial Evidence is a professed (d) 4 Benth. Jud. Ev. 479, 480. but Sempronius; and, in the station of writer, Sempronius is gone to make his fortune in the East Indies. Should Sempronius be forced, if he could be forced, to come back from the East Indies for the chance of subjecting Titius to this penalty? Who would think of subjecting Sempronius to the vexation? Who would think of subjecting Sempronius, or anybody else, to the expense?" Again, while the liberty of adducing evidence to support his cause ought to be most freely conceded to every litigant-" Facultas probationum non est angustanda (e),”—that liberty might be so grossly abused as to stop the administration of justice, and a power in all tribunals to restrain it within due bounds is consequently essential to the proper discharge of their functions, as much as the right of expunging surplusage in forensic documents, and restraining prolixity in pleading. Suppose a man sued for a debt, or injurious act, of the simplest and most ordinary kind, were to pretend that he required for his defence the evidence of some hundreds of witnesses living in remote and different parts of the world, a court is surely not bound to take his word or his oath for the truth of this, or even for his bona fides in asserting it. Accordingly in the judicial practice of this country a commission to examine witnesses will be refused if the judges think, in their discretion, that the application for it is made with a view to vexation or delay, or with any other sinister or improper motive (ƒ). So, we apprehend, a power, (to be exercised with great caution no doubt,) is vested in every tribunal of refusing to hear evidence obviously tendered for such purposes (g). (e) 4 Inst. 279; Cod. lib. i. tit. 5, 1. 21. (f) See Pirie v. Iron, 8 Bingh. 143; Brydges v. Fisher, 4 M. & Scott, 458; De Rossi v. Polhill, 7 Scott, 836; Summers v. Rawson, 3 Jur. 288; and Castelli v. Groom, 16 Jur. 888. (g) In the Irish State Trials of 1843, the defendants were indicted for a seditious conspiracy, and among the overt acts were laid the holding in different parts of that kingdom what were called "monster meetings," i. e. meetings at each of which several hun Quanquam," says the Digest (), "quibusdam legibus amplissimus numerus testium definitus sit: tamen ex constitutionibus Principum hæc licentia ad sufficientem numerum testium coarctetur, ut judices moderentur, et eum solum numerum testium, quem necessarium esse putaverint, evocari patiantur; ne effrenatâ potestate ad vexandos homines superflua multitudo testium protrahatur." Still in all these cases the evidence offered might really be relevant and important, and injustice done by its rejection. nesses. § 48. The lawgivers of some countries, sensible of the Limiting the evils that may be occasioned by malpractices like the number of witabove, have, in endeavouring to suppress them, run into positive absurdity. We allude to the practice of limiting by law the number of witnesses that may be called in proof of each fact in dispute (i); without regard to the nature of the cause, the probity of the witnesses, the quantity of evidence given by them, or their manner of delivering their testimony-things which it would obviously be impossible to define by any rule laid down beforehand. § 49. Another marked feature by which judicial proof 3. In framing is distinguished from the other forms is, that the legislator proof, the conrules of judicial by whom its rules are framed must look beyond the dreds of thousands of persons were present. In order to prevent the case ever getting to the jury, it was, as we are informed, suggested to the defendants, that under pretence of showing that those meetings were not of a seditious character, they might call as witnesses every one of the persons present at them. This dishonourable mode of defence was not resorted to; but suppose it had been, must the court and jury have submitted to it? (h) Dig. lib. 22, tit. 5, 1. 1, § 2. (i) 5 Benth. Jud. Ev. 521, Domat, Lois Civiles, part. 1, liv. 3, tit. 6, sect. 3, § xvi. Note (x) vers. fin. "To any given fact or question, (fait (fact), French; pregunta (question), Spanish), thirty witnesses were and are allowed by Spanish law; ten only are, or at least were, allowed in French law. Are both right? One French witness, then, is equal to three Spanish ones." Benth. in loc. cit. sequences of decisions must be looked to. contending parties in each case, and weigh the consequences to society which may follow from the decisions of tribunals. Thus, the mischiefs which arise from a blameable passiveness in the law are not usually so great as those which spring from its misguided action. For instance, the condemnation and punishment of an innocent man for a supposed crime and the acquittal of a guilty one are, philosophically speaking, only modes of misdecision, diverging equally from the truth. But a very little reflexion will show that, taken with their consequences, the former is an incalculably greater evil: and the legislators and jurists of almost every age and country have recognized the principle,-however violated in practice, that, although the punishment of guilt and the protection of innocence have in general an equal claim in the administration of justice, the latter should be the primary care of the law, and consequently in matters of doubt it is safer to acquit than condemn (k). (k) See the following authorities, the number of which might be almost indefinitely increased: Deut. xvii. 4, 6; Dig. lib. 48, tit. 19, 1.5; Cod. lib. 4, tit. 19, 1. 25; Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N.N. 4 & 16; Voet. ad Pand. lib. 22, tit. 3, N. 18; Matth. de Prob. cap. 2, N. 20; Mascard. de Prob. Concl. 36, 496, 497; Sanchez de Matrimonio, lib. 10, Disput. 12, N.N. 40, 41; Mirror of Justices, ch. 5, sect. 1, Abus. 108, N. 15; T. 18 Ed. II. 620, Nota 1; Fortesc. de Laud. cap. 27; 3 Inst. 210; 2 Hale, P. C. 289, 290; 4 Blackst. Com. 358; 1 Stark. Ev. 559, 560, 573, 574, 588, 3rd Ed.; Mac Nally's Evid. 578, 580; Burnett's Crim. Law of Scotland, 522-3; 1 Greenl. Ev. §§ 13a and 34, 4th Ed.; D'Aguesseau's Works, vol. 12, p. 647,"Fragment sur les Preuves en matière Criminelle;" Code d'Instruction Criminelle, liv. 2, tit. 2, chap. 4, sect. 1, § 342; Bonnier, Traité des Preuves, §§ 673-4; Beccaria, Dei Delitti e delle Pene, § 7. To these may be added even the Chinese Law, if we may rely on a work entitled "The Chinese," by J. F. Davis, vol. 1, p. 394, comprised in "The Library of Entertaining Knowledge." It is worthy of observation, that although, as appears from some of the above refer ences, the principle in question was fully recognized by the civilians and canonists, they reversed the rule in those cases where innocence chiefly requires protection; and their maxim, "In atro Again, the laws of every country suppress much evidence that would be relevant, or even conclusive, cissimis leviores conjecturæ sufficiunt, et licet judici jura transgredi:" Beccaria, Dei Delitti e delle Pene, § 8, in not.; see also Mascard. de Prob. Concl. 1392, N. 13; Burnett's Crim. Law of Scotland, 612-will remain a lasting monument of the barbarity as well as the imbecility of its framers. The English law goes further in this respect than that of most other countries, for it lays down as a maxim, it is better that several guilty persons should escape than that one innocent person should suffer; 2 Hale, P. C. 289; 4 Blackst. Com. 348; the salutary fruit of which is, that in no part of the world is genuine voluntary evidence against suspected criminals more easily procured than in England; the persuasion being general throughout society that if a suspected man be really innocent, the law will take care that no harm shall happen to him. The principles on which this noble and politic maxim rests are not, however, generally understood. The strongest proof of this is to be found in the singular fact of its having been formally attacked by the celebrated Dr. Paley, in his "Moral and Political Philosophy," book 6, chap. 9, who designates it a popular maxim having a considerable influence in producing injudicious acquittals, and argues thus against it. "The security of civil life, which is essential to the value and the enjoyment of every blessing it contains, and the interruption of which is followed by universal misery and confusion, is protected chiefly by dread of punishment. The misfortune of an individual (for such may the sufferings, or even the death, of an innocent person be called, when they are occasioned by no evil intention) cannot be placed in competition with this object. *** When certain rules of adjudication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested; Courts of justice should not be deterred from the application of these rules by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty. They ought rather to reflect, that he who falls by a mistaken sentence, may be considered as falling for his country; whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and upholden." It will not, however, be difficult to expose the fallacy of this pernicious and inhuman argument. It is perfectly true that the security of civil life is the first object of all penal laws, and that that security is chiefly protected by the dread of punishment; but then it is of punishment as a consequence of guilt, and not of pu E |