could not be convicted of adultery unless on the testimony of four male witnesses (t); and his successor the Caliph Omar decided, with reference to this law, that all circumstantial evidence, however proximate and convincing, was of no avail and that the four male witnesses must have witnessed the very act in the strictest sense of the word (u). § 67. But since evidence may be circumstantial as well as direct, the system would have been imperfect were not the number of circumstances requisite for conviction defined with the same logical precision. Three presumptions at least were therefore considered necessary by the doctors of the civil law; unless they were extremely strong, in which case two might suffice (x); and the Austrian legislature, so late as 1833, prohibited all condemnation from circumstances unless there were at least three. The climax of absurdity however appears præsul, nisi in septuaginta duobus, neque præsul summus à quoquam judicabitur, quoniam his scriptum est: Non est discipulus super magistrum. Presbyter autem, nisi in quadraginta quatuor testimonia non damnabitur. Diaconus autem cardine constrictis urbis Romæ, nisi in triginta sex, non condemnabitur. Subdiaconus, acolythus, exorcista, lector, nisi (sicut scriptum est) in septem testimonia filios et uxorem habentes, omnino Christum prædicantes, sicut datur mystica veritas." In the laws of Hen. I. also, c. 5, § 11, there is this passage. "Non dampnetur presul nisi in lxxii. testibus; neque presul summus a quoquam judicetur. Presbiter cardinalis nisi in xliiii. testibus non dampnabitur; diaconus cardinalis nisi in xxvi.; subdiaconus et infra nisi in vii. ; nec major in minorum impetitione dispereat." In the Law Review, vol. i. p. 380, and vol. iv. p. 133, it is stated that by the canon law, in the case of a cardinal charged with incontinence, the plenu probatio must be established by no less than seven eye-witnesses: but no authority is cited. See also 1 Greenl. Ev. § 260 a, note (1), 4th Ed. (t) See Gibbon's History of the Decline and Fall of the Roman Empire, ch. 50. (u) Id. (r) Bonnier, Traité des Preuves, §650. In consequence of an oversight or misprint there are two articles bearing that number. Our reference is to the first. Abuses of judicial evidence. in the Bavarian code. Having observed that inculpative circumstances are of three kinds: viz., antecedent to the act, as preparations, threats, &c.; concomitant, as in case of homicide a weapon of the accused found near the dead body; and, subsequent, as flight from justice, attempts to suborn witnesses, and the like; the Bavarian legislature ordained that some circumstances belonging to each class must be proved (y). § 68. There is unquestionably no branch of jurisprudence whose principles have been so much abused and pushed beyond their legitimate limits as judicial proof, especially with regard to its exclusionary rules (z). This arises partly from its being one of those least understood; the substantive branches of law always come to perfection before the adjective;-and partly from artificial rules of evidence being found an excellent shield for acts which it is not desired to suppress, but would be unsafe or scandalous to legalize. In such cases the prohibiting the act, but requiring for proof of it evidence so peculiar, either in quantity or quality, as to render condemnation practically impossible is the ready device of corrupt legislation. Some abuses of judicial evidence have been alluded to in the course of this Introduction and we purpose to conclude it by pointing attention to two, which, from their magnitude, their larly deserving prevalence, and the danger under which all tribunals, especially of a permanent nature, lie of falling into them, deserve particular notice. Two particu notice. : (y) It is right to mention that the statements here made relative to the laws of Austria and Bavaria are taken from Bonnier, Traité des Preuves, §§ 650 (the first with that number) and 653, and to advert to the circumstance that his work was published previous to the eventful years 1848 and 1849. (≈) "Il est plus commode sans doute d'exclure en masse les indices que de les analyser; mais est-ce là rendre la justice?" Bonnier, Traité des Preuves, § 650, bis. See note (x), supra. on § 69. The first of these has its origin in a natural 1. Artificial letendency of the human mind to re-act or turn round gal conviction. itself, by assuming the convertibility of the end with the means used to attain it. As connected with the subject before us, this displays itself in the creation of a system of technical, and as it were mechanical belief, dependent on the presence of instruments of evidence in some given number; and which has with great truth and power been designated " un système qui tarifait les témoignages, au lieu de les soumettre à la conscience du juge (a)." It is strongly illustrated by the practice of the Practice of the civil and canon laws on the continent of Europe, thus civilians and ably described by the eminent French lawyer just quoted (b). "The technical rules relative to testimonial proof which were devised, or at least developed, by the doctors of the middle ages, are of two kinds. Some exact absolutely certain conditions in order that legal conviction may exist, while others, still more extravagant, create in certain cases an artificial legal conviction even where real conviction may not exist." "If," he adds in another place (c), “the rule rejecting the testimony of a single witness was not perfectly reasonable; another principle much more dangerous was that which, creating a legal conviction altogether artificial, established that the concurrent deposition of two unsuspected witnesses must necessarily induce condemnation. Here the application of the text of the Corpus Juris was completely mistaken; for such a logical error was never professed at Rome, or even at Constantinople." But it was exactly suited to the scholastic and subtilizing spirit of more recent times. The text of the code being peremptory, that the testimony of one witness could not be acted on under any circumstances (d), and that two were sufficient (a) Bonnier, Traité des Preuves, § 161. (b) Id. § 199. (c) Bonnier, Traité des Preuves, § 202. See also 5 Benth. Jud. (d) Cod. lib. 4, tit. 20, 1. 9. canonists. in all cases where no greater number was expressly required by law (e); the doctors of the civil law hastily (they perhaps thought logically) inferred that the deposition of two witnesses who were omni exceptione majores, amounted to proof; and bestowed on it the name of full proof—“ plena probatio" (ƒ)—forgetting that proof means persuasion wrought in the mind, and consequently must depend, not on the number of instruments of evidence employed, but on their force, credibility and concurrence. Nor was this all. If the testimony of two witnesses made full proof, that of one must be a half proof, which they called "semi-plena probatio (g);" and this arithmetical mode of estimating testimony being once established, it was extended by analogy to presumptive evidence, so that the subtilty of "proof" and "semi-proof" ran through the entire judicial system. Thus admissions extracted by torture (h), entries made by tradesmen in their books to the prejudice of other persons (i), an oath to the truth of his demand or defence administered by the judge to the plaintiff or defendant (k), and occasionally even common rumour(7), were recognised as semi-proofs; two such usually constituting full proof. Some of the later civilians; feeling the absurdity of the position that the probative force of evidence is necessarily represented by unity, zero, or one-half; introduced a sub non audiatur, etiamsi præclaræ curiæ honore præfulgeat." (e) Dig. lib. 22, tit. 5, 1. 12. "Ubi numerus testium non adjicitur, etiam duo sufficiunt: pluralis enim elocutio duorum numero contenta est." See also Heinec. ad Pand. pars 4, § 143. (f) Heinec. ad Pand. pars 4, §§ 118 and 143; Mascard. de Prob. Quæst. 11; Ayl. Par. Jur. Can. Angl. 544, 448. (g) Mascard. in loc. cit.; Ayl. Par. Jur. Can. Angl. 444. (h) Mascard. de Prob. Concl. 1392. See also Bonnier, Traité des Preuves, §201, vers. fin. (i) Heinec. ad Pand. pars 4, § 134; Poth. Obl. by Evans, § 719. (k) Poth. Obl. by Evans, §§ 719, 829, 834; Heinec. ad Pand. pars 3, 28, 29. (1) Mascard. de Prob. Concl. 754-5; Lancel. Inst. Jur. Can. lib. 3, tit. 14, §§ 1 and 42; Ayl. Par. Jur. Can. Angl. 444. division of semi-proof into semi-plena, semi-plena major, and semi-plena minor (m); which, in all probability, only served to make matters worse, by rendering the system more technical. And a like rule was sometimes applied to the credit of witnesses. "The parliament of Toulouse," says an old French author, "has a peculiar mode of dealing with objections; it sometimes receives them according to their peculiar qualification, so that they do not destroy the deposition of the witness altogether, but hold good for an eighth, a quarter, a half, or threequarters; and a deposition thus reduced in value requires the aid of another to become complete. For example, if on the depositions of four witnesses objected to, two are reduced to a half, that makes one witness; if the third deposition is reduced to a fourth, and the fourth to threequarters, that makes another witness, and consequently there is a sufficient proof by witnesses, although all have been objected to, and suffered in some degree from the objections taken” (n). § 70. So firmly was this vicious principle worked into French law. the law of France that, in the great legal reform which took place in that country at the beginning of the present century, it was deemed advisable to take effective measures for its extirpation. With this view the Code. Napoleon (0) ordained, that a sort of general instruction (m) Heinec. ad Pand. pars 4, § 118; Kelemen, Institutiones Juris Hungarici Privati, lib. 3, §§ 98 and 100. (n) See Bonnier, Traité des Preuves, § 203. This custom of the parliament of Toulouse is likewise alluded to in Burnett's Crim. Law of Scotland, 528. It is worthy of remark that the same vicious principle was at one period creep ing into the jurisprudence of the (0) Code d'Instruction Crimi- |