where its reception would involve the disclosure of matters of paramount importance which public policy

nishment falling indiscriminately

on those who have or have not provoked it by their crimes. When the guilty escape, the law has merely failed of its intended effect; but when the innocent become its victims, it injures the very persons it was meant to protect, and destroys the security it was meant to preserve. Nor is this all, or even the worst; for it is a great mistake to suppose that the actual wrong and violence done to the innocent man are the only evils resulting from an erroneous conviction. Confidence in the administration of justice must necessarily be shaken when people reflect, and can truly reflect, that every individual they see condemned to punishment may be in the highest degree unfortunate, and in no degree guilty, his sufferings being inflicted merely as a sacrifice to a supposed expedi ency. Under such a system, few would care to prosecute for offences, still fewer to come forward with voluntary testimony against persons accused or suspected of them. The law might, indeed, sit in terrific majesty, denouncing the severest penalties, and acting on the most sanguinary and strained maxims, but for want of proofs and co-operation on the part of society, those penalties would soon become a dead letter. It requires strong imaginative powers to see an analogy between the fate of a soldier

dying in the defence of his country, and that of an innocent citizen butchered in cold blood under the name of justice. The one falls with honour, his memory is respected, his family, perhaps, provided for; while the latter has not even the sad consolation of being pitied, but sees himself branded with public ignominy, leaves a name which will excite nothing but horror or detestation; until, perhaps, in course of time, his innocence becomes manifest, only to awake in all the rightminded portion of the community a feeling of alarm and disgust at the state of insecurity under which they live. "Could the escape of ten of the most desperate criminals," emphatically asks Sir Samuel Romilly, in his Observations on the Criminal Law of England, &c. Note (D), from which some of the preceding remarks have been taken," have ever produced as much mischief to society as did the public executions of Calas, of D'Anglade, or of Le Brun?"three celebrated cases which occurred in France, and show the fearful state into which the administration of justice had fallen under the ancien règime in that country. But another evil, which seems to have altogether escaped the notice of Dr. Paley, remains to be mentioned. "Instances," observes Sir Samuel Romilly, "have indeed occurred like that of Calas, where a man has been

and social order require to be concealed; such as secrets of state, communications made in professional confidence, and others (1).

between the se


§ 50. Another great difference between legal and his- 4. Difference torical evidence lies in the securities for truth, and the curities for legal sources of danger and deception peculiar to each. Pos- and historical terity and future ages are not unfrequently spoken of as a tribunal, to whose judgment appeals may be made from the decisions of the present; and viewed as a figure of speech there is no impropriety in this. But figures must not be mistaken for facts. The tribunal of posterity differs vastly from all others: for it is one of unlimited jurisdiction, both judicial and inquisitorial; it is ever sitting, ever investigating, ever judging, barred by no prescription, bound by no estoppel, and responsible to no human authority. The securities for the truth of the Historical serecords and traditions of the past which time has brought down to us consist in the multitude of sources to which they can be traced, the large number of persons whose interest it has been to preserve them from oblivion and corruption above all, the permanent effects of

offered up as a sacrifice to the laws, though the laws had never been violated: where the tribunals have committed the double mistake of supposing a crime where none had been committed, and of finding a criminal where none could exist. These, however, are very gross, and therefore very rare examples of judicial error. In most cases the crime is ascertained, and to discover the author is all that remains for investigation; and, in every such case, if there follow an erroneous conviction, a twofold evil must be incurred, the escape of the guilty,

as well as the suffering of the in-
nocent. Perhaps amidst the crowd
of those who are gazing upon the
supposed criminal, when he is led
out to execution, may be lurking
the real murderer, who, while he
contemplates the fate of the wretch
before him, reflects with scorn
upon the imbecility of the law,
and becomes more hardened, and
derives more confidence in the
dangerous career on which he
has entered." See further on this
subject, infra, Part 1, ch. 1.

(1) See infra, Part 3, book 2,

ch. 8.


events; visible in the shape of monuments and other pieces of real evidence (m), customs, ceremonies, and the like; and, finally, the actors in the scene having passed away, there is rarely either opportunity or interest to fabricate evidence in furtherance of their views Legal securities or justification of their conduct. Now in the case of a legal investigation before a judicial tribunal, properly so called, all this is reversed. The judge or jury, as the case may be, must decide once for all on such evidence as may come before them; the facts-the res gestæ of the dispute are known but to few, and are matter of interest to fewer; while the parties who are best acquainted with the truth stand in a hostile position to each other, and have a stake at issue which places them under the strongest temptation to misrepresent it. Hence it is obvious that without peculiar guarantees for the veracity and completeness of the evidence adduced in courts of justice, they would, when investigating disputed facts, be exposed to the same risks of error as the historian without the safeguards which he possesses-in a word, the legislator dealing with judicial evidence is bound to frame characteristic securities to meet characteristic dangers.


from derivative evidence.

§ 51. This distinction between historical and legal proof may be illustrated by the consideration of derivative, or second-hand, evidence. The infirmity of this kind

(m) The following passage is taken from a review in the Examiner newspaper of December 28, 1850. "Seals and coins may be considered as bottles filled with memoranda and cast upon the ocean of time by the earlier mariners, for the use of those who came after them. Their forts, their factories, their lighthouses, have many of them disappeared; but the bottles are perpetually

being found after many days. Many an obscure allusion in ancient authors has been illuminated by the pure ray serene emitted by a graven gem. The scholar will often find sermons in these stones, excelling the lucubrations of the commentators no less in clearness than in terseness; and he may sometimes be put right by a scarabæus, when a scholiast has failed him."

of proof has been pointed out in the preceding section (n), and indeed is one of those self-evident things to which the mind of man at once assents. It is equally clear, that the farther evidence is removed from its primary source the weaker it becomes; thus hearsay evidence becomes more suspected and dangerous according as it is reported at second, third, fourth, or fifth hand. And yet, in inquiring into the events of past ages it is scarcely possible to move a step without resorting to this kind of evidence. Suppose the events, sacred and profane, which took place in the first year of the Christian era existed solely in oral tradition, and taking a generation to last thirty years, the account which persons at the commencement of the present century had of those events seems to have come to them by hearsay at the sixtieth hand: evidence, the value of which in a court of justice would be rightly estimated at zero. And although accounts of many of those events having been committed to writing affords a better security for their truth, still the genuineness of the documents in which they are recorded rests, in part at least, on oral tradition. But it is a great mistake to suppose that the real probative force of the evidence of those facts which we possess in the present century rises no higher than this reasoning would indicate. The fallacy consists in treating each generation as one single person by whom a bare relation of the fact has been handed down to the next, and not as consisting of a number of persons interested in ascertaining its truth, besides wholly overlooking the corroborative proofs supplied by permanent memorials and the acts of men. In short, as a modern historian has well expressed it (o), "The presumption of history, to whose mirror the scattered rays of moral evidence converge, may be irresistible, when the legal inference from insulated

(n) Supra, § 30.

(0) Hallam's Constitutional

History of England, vol. 1, p. 525, 5th Ed.

Mistakes from confounding

legal with philosophical and historical evidence.

actions is not only technically, but substantially, inconclusive."

§ 52. The offering to prove a historical fact by derivative evidence affords, therefore, not the slightest presumption of unfairness; unless when the evidence. is on its face a substitute for some other which might have been procured (p). But derivative evidence offered in a court of justice, in proof of recent events, by a litigant party whose avowed object is to obtain a decision in his own favour, carries so strong an appearance of fraud that the laws of most nations either reject or look upon it with suspicion (q). The English law in general rejects it; but reverses the rule when the matter to be proved has taken place so long ago that the original evidence is manifestly unattainable, and thus far partakes of the nature of a historical fact (r).

§ 53. The greatest misconceptions and errors have arisen from confounding legal with philosophical and

(p) Gibbon, who was not a lawyer, thus expresses himself in the Preface to the fourth volume of his History of the Decline and Fall of the Roman Empire. "I have always endeavoured to draw from the fountain head; my curiosity, as well as a sense of duty, has always urged me to study the originals; and if they have sometimes eluded my search, I have carefully marked the secondary evidence, on whose faith a passage or a fact were reduced to depend."

(q) See infra, Part 1; Part
3, book 2, ch. 3.

(r) "Witnesses are either an-
cient or modern, that is contem-
Ancient witnesses

consist of the poets and other celebrated writers, whose authority for certain facts or opinions are embodied in their immortal works. Thus the Athenians produced the testimony of Homer for their right of dominion over the isle of Salamis, in opposition to the pretension of the commonwealth of Megara; and in a recent transaction the citizens of Tenedos pleaded the authority of Periander, the wise Corinthian, in a dispute with the inhabitants of Sigeum concerning their common boundaries, &c. These bear evidence of the past, &c."-Aristotle's Rhetoric, book 1, ch. 15, as freely translated by Gillies.

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