historical evidence. There is a well-known anecdote of Sir Walter Raleigh, which will serve to illustrate this. While a prisoner in the Tower, composing his History of the World, a disturbance arose under his window, and unable to ascertain its merits, through the conflicting accounts which reached him, he is said to have uttered an exclamation against the folly of relying on narrations of the events of past ages, when there is so much difficulty in arriving at the truth of those happening immediately around us. But in that investigation he was discharging a quasi judicial function, without the compulsory powers possessed by courts of justice for extracting truth, and labouring under the further disadvantage of imprisonment; while in dealing with the events of other times he had the benefit of the securities for historical truth already described (s). Nowhere, however, are the consequences of confounding the two kinds of evidence so visible as in Bentham's work on Judicial Evidence. He entertains the most erroneous notions as to the nature and use of the rules which regulate the burden of proof (t); and seems to consider every issue raised in a court of justice as a philosophical question, the actual truth of which is to be ascertained by the tribunal at any cost; or should this be impracticable, then a decision to be given founded on the best guess that can be made at it. Thus, speaking of the laws which require a plurality of witnesses in certain cases, he says (u), "Every man is excluded, every man, be he who he may, unless he comes with another in his hand. Two propositions are here assumed: all men are liars, and all judges fools. Without the second, the first would be insufficient." The illogical character of this reasoning is obvious at a glance. What the law says in such cases is this-the witness may be a liar, and the judge may be a fool; and the mischief which might be caused by the (s) See supra, § 50, 51. (t) See 1 Benth. Jud. Ev. 36. (u) 4 Benth. Jud. Ev. 503. See also 5 Id. 463, 464. folly of the one set in motion by the mendacity of the other would so greatly exceed any advantage that could result from a decision based on their united veracity and wisdom, that for the benefit of the community we arrest the inquiry. Perhaps, however, the most glaring in-. stance of this error is where he contends with much earnestness and vehemence that confidential communications between clients and their legal advisers ought not to be held sacred by law; - an argument founded on the assumption that the compelling their disclosure would advance the ends of justice, by depriving evil disposed persons of professional assistance in carrying out unrighteous plans (v)—we say "unrighteous," for to projected violations of the law no professional adviser is expected, or ought for one moment, to render himself party. If, indeed, the existing rule were suddenly altered, and everything hitherto communicated in professional confidence, under the assurance that it would be kept inviolate, laid open to the view of the courts, much valuable evidence would doubtlessly be obtained; but the first harvest of this kind would be the last, for in future no such communications would be made, either by honest or dishonest clients. It is difficult to paint in too strong colors the evils of such a state of things. For want of materials on which to form a judgment, legal advice would become of little worth; and for want of materials to prepare it, cross-examination, the most powerful instrument for the extraction of truth, would be converted into a lifeless form. Besides, it is a great mistake to suppose that a man's case must necessarily be bad as a whole because there is some weak point in it. Nor is this all. A professional adviser often cannot discharge his functions with effect unless informed respecting matters connected with, though not constituting the subject of inquiry; the public disclosure of which might be so (v) See Benth. Jud. Ev. bk. 9, pt. 4, ch. 5, sect. 2. injurious, that the client would sooner abandon his action or defence than even run the risk of such a calamity by having his counsel or attorney subpoenaed as a witness against him. § 54. The securities which have been devised by mu- Securities for nicipal law for ensuring the veracity and completeness of the truth of legal evidence. the evidence given in courts of justice vary, as might be expected, in different countries, and with the systems of law to which they are attached. Several of those principally relied on by the English law; such as the publicity of judicial proceedings, the compulsory presence of witnesses in open court, the right of cross-examination, &c., will be considered in their place (w): for the present, we will merely point attention to a few which, either from their value or general adoption, deserve particular notice. of truth. § 55. To the three sanctions of truth which have been 1. Political or described in the last section (x), the municipal laws of legal sanction most nations have added a fourth; which may be called the legal, or political sanction (y), and consists in erecting false testimony into an offence cognizable by penal justice. Its punishment has varied in different ages and places: in England, perjury is a misdemeanor; punishable by fine, imprisonment, or transportation (z). § 56. The next security is a very remarkable one; 2. Oaths. and consists in requiring all evidence in courts of justice to be given on oath—according to the maxim "In judicio non creditur nisi juratis (a)." Oaths however, it is well known, are not peculiar to courts of justice, nor are they even the creatures of municipal law-having been in use before societies were formed or cities built; and the (w) See infra, Part 1, ch. 1. (3) Infra, Part 3, b. 2, ch. 7. most solemn acts of political and social life being guarded by their sanction.-" Non est arctius vinculum inter homines quàm jusjurandum (b)." And however abused or perverted by ignorance and superstition, an oath has in every age been found to supply the strongest hold on the consciences of men, either as a pledge of future conduct or as a guarantee for the veracity of narration. § 57. An oath is an application of the religious sanction-"Jurare est Deum in testem vocare, et est actus divini cultûs (c). It is calling the Deity to witness in aid of a declaration by man (d); and consequently does not depend for its validity on the peculiar religious opinions of the person by whom it is taken. The Roman Emperor, we are told, “jurejurando quod propriâ superstitione juratum est, standum rescripsit (e) :" and Lord Chief Justice Willes, in his celebrated judgment in Omichund v. Barker (f), expresses himself as follows:"Oaths were instituted long before Christianity, were made use of to the same purposes as now, were always held in the highest veneration, and are almost as old as the creation. 'Juramentum nihil aliud est quam Deum in testem vocare;' and therefore nothing but the belief of a God, and that he will reward and punish us according to our deserts, is necessary to qualify a man to take an oath. We read of them, therefore, in the most early times. If (b) Jenk. Cent. 3, Cas. 54. (c) 3 Inst. 165. (d) "Le serment est l'attestation de la Divinité à l'appui d'une déclaration de l'homme. Ce témoignage de la croyance des peuples à une justice suprême se retrouve dans tous les pays et dans tous les temps. Pythagore prétendait même que le monde devait son origine à un serment que Dieu lui-même aurait prêté de toute éternité, et dont la créa- (e) Dig. lib. 12, tit. 2, 1. 5. we look into the Sacred history, we have an account in Genesis, ch. 26, v. 28 & 31, and again Gen. ch. 31, v. 53, that the contracts between Isaac and Abimelech, and between Jacob and Laban, were confirmed by mutual oaths; and yet the contracting parties were of very different religions, and swore in a different form." (The Lord Chief Justice, after citing several passages and examples, both from the Old and New Testament, as well as the ancient heathen poets and authors, together with some modern authorities, and, among others, Grotius, De Jure Belli ac Pacis, lib. 2, c. 13, s. 1 (g), in support of this position, proceeds thus): "The forms indeed of an oath have been always different in all countries, according to the different laws, religion, and constitution of those countries. But still the substance is the same, which is, that God in all of them is called upon as a witness to the truth of what we say. Grotius, in the same chapter, sect. 10, says, forma jurisjurandi verbis differt, re convenit. There are several very different forms of oaths mentioned in Selden, vol. ii. p. 1470(h): but whatever the forms are, he says, that is meant only to call God to witness to the truth of what is sworn ; * * * 'Sit Deus testis,' 'Sit Deus vindex,' or 'Ita te Deus adjuvet,' are expressions promiscuously made use of in Christian countries; and in ours that oath hath been frequently varied; as 'Ita te Deus adjuvet, tactis sacrosanctis Dei evangeliis ;'-' Ita &c., et sacrosancta Dei evangelia ;'-' Ita &c., et omnes sancti.' And now we keep only these words in the oath, 'So help you God;' and which indeed are the only material words, and which any heathen who believes a God may take as well as a Christian. The kissing the book here, and the touching the Bramin's hand and foot at Calcutta, and many other (g) See also Pufendorf, De Jure Nat. et Gent. lib. 4, cap. 2, § 2, with Barbeyrac's notes. (h) See the Edition of Selden's Works by Wilkins, in six volumes, A.D. 1726. |