tice, authorized (as in offences of a certain magnitude persons in general commonly are, under every system of law,) to take immediate measures for rendering the supposed delinquent forthcoming for the purposes of justice, -authorized to take such measures, and to appearance having it in contemplation so to do ;-in such case, silence instead of answer to a question put to the party by such a person, may afford an inference little (if at all) weaker than that which would be afforded by the like deportment in case of judicial interrogation before a magistrate. Suppose (on the other hand) a question put in relation to the subject, at a time distant from that in which the cause of suspicion has first manifested itself,-put at a time when no fresh incident leads to it,-put, therefore, without reflection, or in sport, by a child, from whom no such interposition can be apprehended, and to whose opinion no attention can be looked upon as due: in a case like this, the strength of the inference may vanish altogether (e)." § 556. Connected with the subject of non-responsion is that of incomplete or "evasive responsion": i. e., a man accused of crime either evades the question; or, while denying his guilt, refuses to evidence his innocence, or answer or explain any circumstances which are brought forward against him in his presence as criminative or suspicious. The inference of guilt from such conduct is weakened by the following additional considerations. 1. A man ever so innocent cannot always explain all the circumstances which press against him. Thus on a charge of murder, the accused declared himself unable to explain how his night-dress became stained with blood, the truth being that unknown to him his bed-fellow had a bleeding wound (f). So a man charged with larceny (e) 3 Benth. Jud. Evid. 92. Chambers' Edinburgh Journal, for March 11, 1837. could not explain how the stolen property found its way into his house or trunk, if, unknown to him, it had been deposited there by others (g). 2. In many cases an accused or suspected person can only explain particular circumstances by criminating other individuals whom he is unwilling to expose, or disclosing matters which, though unconnected with the charge, he is anxious to conceal. Sometimes, too, the party, though blameless in the actual instance, could only prove himself so by shewing his guilt of some other offence. 3. Where a prosecution is altogether groundless-the result of conspiracy, or likely to be supported by perjured testimony -it is often good policy on the part of its intended victim not to disclose his defence until judicially demanded of him on his trial. sion. § 557. "False responsion" however is a criminative False responfact greatly stronger than either of the former. The author last cited justly observes that, in justification of simple silence the defence founded on incompetency on the part of the interrogator may be pertinent and even convincing, but that to false responsion the application of it could scarce extend. Of the claim the question had to notice the accused or suspected person has himself borne sufficient testimony: so far from grudging the trouble of a true answer, he bestowed upon it the greater trouble of a lie (h). The infirmative hypotheses here seem to be, 1. The possibility of extra-judicial conversations having been misunderstood or misreported. 2. As innocent persons under the influence of fear occasionally resort to false evidence in their defence, false statements may arise from the same cause. The maxim "Omnia præsumuntur contra spoliatorem," to which that subject belongs, has been examined in a former chapter (i). (g) See supra, Part 2, ch. 2, § 200. (h) 3 Benth. Jud. Ev. 94. (i) Supra, ch. 1, sect. 2, sub sect. 7. Legitimate use of cases like the above. § 558. While the vulgar notion, derived probably from mediæval times, that confessions of guilt are necessarily true, is at variance with common sense, experience, law, and practice, still, after every allowance for possible mistake or mendacity, they constitute in general proof of a very satisfactory, and when in a judicial or plenary shape of the most satisfactory kind. Reason and the universal voice of mankind alike attest this; and the legitimate use of the unhappy cases recorded in this chapter, and others of a similar stamp, is to put tribunals on their guard against attaching undue weight to this sort of evidence, not as bugbears to terrify, or excuses for indiscriminate scepticism or incredulity. CHAPTER VII. QUANTITY OF EVIDENCE REQUIRED. number of in evidence re § 559. THE next subject that offers itself to our atten- General ruletion is the quantity of legitimate evidence required for no particular judicial decision. This is governed by a rule of a ne- struments of gative kind, and, in times past at least, almost peculiar quired for proof to the common law of England (a), namely, that in gene- or disproof. ral no particular number of instruments of evidence is necessary for proof or disproof,—the testimony of a single witness, relevant to the issue in the judgment of the judge, and credible in that of the jury, is a sufficient basis for decision, both in civil and criminal cases (b). And, as a corollary from this, when there is conflicting evidence the jury must determine the degree of credit to be given to each of the witnesses; for the testimony of one witness may in many cases be more trustworthy than the opposing testimony of many (c). The rule has been expressed by the maxim" ponderantur testes, non numerantur (d);" but "testimonia" or " probationes" would be better than "testes," as it is clearly not confined to verbal evidence. § 560. We have said that this rule is a distinguishing feature in our common law system. The Mosaic law in (a) The Hindoo law seems to have been the reverse of ours:where a single witness was allowed it was the exception, not the rule. See Translation of Pootee, c. 3, sect. 8, in Halhed's Code of Gentoo Laws. (b) 3 Blackst. Com. 370; Stark. Evid. 827, 4th Ed.; Trials per (c) Stark. Evid. 832, 4th Ed. Almost peculiar to the common law of England. U U Arguments in favour of requiring a plurality of wit nesses. a some cases (e), and the civilians and canonists in all (ƒ), exacted the evidence of more than one witness,doctrine adopted by most nations of Europe, and by the ecclesiastical and some other tribunals among us. As might naturally be expected, much has been said and written, and the most opposite views have prevailed as to the merits of the different systems. Those who take the civil law view contend that it is dangerous to allow a tribunal to act on the testimony of a single witness—since by this means any person, even the most vile, can swear away the liberty, honour, or life of any one else; they insist on the undoubted fact, that the chances of discrepancy between the state (e) See infra. (f) Their maxim is well known, "Unius omninò testis responsio non audiatur, etiamsi præclaræ curiæ honore præfulgeat: "Cod. lib. 4, tit. 20, 1. 9, § 1. See also Id. 1. 4; Huberus, Præl. Jur. Civ. lib. 22, tit. 5, N. 18; Decretal. Gregor. IX. lib. 2, tit. 20, c. 23; and supra, Introd. sect. 2, § 66, et seq. Bonnier, in his Traité des Preuves, § 201, labours hard, and apparently with success, to rescue the lawyers of ancient Rome from having established this rule, which he considers the production of the lower empire. He argues that all the expressions to be found in the Corpus Juris Civilis of an anterior date, which seem to require a plurality of witnesses, must be understood in the sense of cautions to the judge, and not in the light of positive rules of law. The following passage is certainly very shrewd and forcible: "Ce n'est que sous Constantin que nous voyons l'exclusion (understand, of the testimony of a single witness) nettement formulée; et encore l'empereur n'en vint il là qu'à la suite d'une première constitution, qui recommandait seulement aux juges d'être circonspects: Simili modo sanximus, 1. 9, § 1, Cod. de testib. (Cod. lib. 4, tit. 20, l. 9, § 1, already cited in this note), ut unius testimonium nemo judicum in quacunque causá facile patiatur admitti. Et nunc manifestè sancimus, ut unius omninò testis responsio non audiatur, etiamsi præclara curiæ honore præfulgeat. C'est donc au Bas Empire qu'appartient l'introduction de la maxime testis unus testis nullus." The French author is not peculiar in this view; the same notion as to the origin of the rule requiring two witnesses having been advanced long before his time. See Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 2; and supra, Introd. sect. 2, § 69. |