each other or with the parties, and of all interest in the subject-matter of litigation; or they arise internally, from a minute and critical examination and comparison of the testimony itself. The nature of such coincidences is most important: are they natural ones, which bear not the marks of artifice and premeditation? Do they occur in points obviously material, or in minute and remote points which were not likely to be material, or in matters the importance of which could not have been foreseen? The number of such coincidences is also worthy of the most attentive consideration: human cunning, to a certain extent, may fabricate coincidences, even with regard to minute points, the more effectually to deceive; but the coincidences of art and invention are necessarily circumscribed and limited, whilst those of truth are indefinite and unlimited; the witnesses of art will be copious in their detail of circumstances, as far as their provision extends; beyond this they will be sparing and reserved, for fear of detection, and thus their testimony will not be even and consistent throughout; but the witnesses of truth will be equally ready and equally copious upon all points." These, and indeed the previous observations generally, address themselves rather to discrepancies in the stateConflict of testimony. ments of the witnesses called on either the one side or the other, than to a case of a general conflict in the whole testimony, between the witnesses of the two opposing parties; and it frequently happens, and nowhere more than in India, that there being a mass of contradiction, and consequently perjury on the one side or the other, it becomes a task of no small difficulty to determine to which side to assign it. Probably no better guide could be furnished than that supplied by the judgment of the Privy Council, in a case on appeal before it from Bengal, where Lord Wensleydale then Baron Parke, in delivering the judgment of the court thus laid it down:-"We should therefore feel little difficulty in deciding on which side the truth lay, if we had nothing else to give our judgment than the comparison of these conflicting * Starkie on Evidence, p. 828. acts and declarations, parol and written, on the one side, and on the other; but we are not thus confined. There are some other facts which are established beyond all possibility of doubt, and there is no better criterion of the truth, no safer rule for investigating cases of conflicting evidence, where perjury and fraud must exist on the one side or the other, than to consider what facts are beyond dispute, and to examine which of the two cases best accords with those facts according to the ordinary course of human affairs and the usual habits of life.' Motive. Of course in any ease of contradiction, motive would be an important guide for determination however strong the affirmation on either side;-a proposition which may be illustrated by a decision in the native courts of India, where a girl having eloped from the house of her parents, returned sometime after, asserting that she was their daughter; but the parents denied the identity. The court refused to act upon the denial, from the obvious interest of the parties in disclaiming the relationship.† Disposal of contradiction by Hindu and Muhomedan Law. Both Hindu and Mahomedan Law, if their Commentators be accurate, had a very summary mode of disposing of contradictions in testimony. According to the text of Nareda, as given by Macnaghten, it is declared by him:-"Of witnesses recorded and summoned by a litigant party, should one utter a contradiction, all are rendered incompetent by that contradiction."‡ The Mahomedan Law had somewhat of the same principle. "It seems' says Mr. Beaufort 'that where the evidence of two witnesses does not entirely agree; only so much is to believed as is confirmed by both ; but the entire evidence must be rejected if they differ on points in regard to which it is improbable that the memory should fail; or on points not * Meer Usdoollah v Mussumut Beeby Imainan, 1 Moore's Indian Appeal Cases, p. 44. † N. A. R., vol 1, p. 194. ‡ Principles of Hindu Law, Vol. I, p. 243. OMISSIONS-TESTIMONY AFFIRMATIVE AND NEGATIVE. 101 superficially apparent, any knowledge of which therefore bespeaks a more minute attention."* Omissions in testimony. Omissions in any important article of testimony approximate to the character of contradiction; and an omission coming out on cross-examination is frequently used with fearful force to attack the credibility of the witness. On the other hand, it may not impossibly happen that the omission may originate in the simple circumstance that the mind of the witness had not addressed itself, or his attention not been pointed, to the matter; and under circumstances, omission might well be treated as partaking of the character of inadvertence, rather than of contradiction. It is remarked by Mr. Wills: "Still less are mere omissions to be considered as casting discredit upon testimony which stands in other respects unimpeached. Omissions are generally capable of explanation, by the consideration that the mind may be so deeply impressed by, and the attention so rivitted to, a particular fact, as to withdraw observation from concomitant circumstances; sometimes however they proceed from wilful suppression. It is a curious fact, that Grafton in his Chronicles, published in 1562, in writing the reign of King John, has made no mention of Magna Charta; but our surprise is diminished when it is remembered that he was printer to Queen Elizabeth; and he probably considered his silence complimentary to that arbitrary Princess."† It is on a principle somewhat analogous to this, that, as an ordinary Relative value of posi- rule, more value is attached to positive than to tive and negative evidence. negative, or as it might perhaps be termed active rather than passive evidence; that is at least in the class of cases in which one deponent avers as a fact that some particular thing happened; and this is sought to be displaced by the testimony of another, who affirms, that though he was present on the occasion, no such fact came to his cognizance. Of course there may be cases in which the fact averred * Digest of Criminal Law, p. 119, Section 634. † Circumstantial Evidence, p. 292. could not have happened without the knowledge of the party ignoring it; and to such cases the observation would not apply. But, on the other hand, the thing may well have taken place consistently even with the veracity of the denying witness; as for example, in the case of a conversation not heard or not understood by him; and it was well observed by Lord Wensleydale, in an Indian appeal case in the Privy Council "The Kasi indeed, as the appellant's counsel has observed, when he is interrogated as to the same conversation, says that none such took place. But in estimating the value of evidence, the testimony of a person who swears positively that a certain conversation took place, is of more value than that of one who says that it did not, because the evidence of the latter may be explained, by supposing that his attention was not drawn to the conversation at the time."* In weighing the probability of any given theory as the result of the facts proved, it must be borne in mind that, however limited the knowledge of any age, or of Probability to be weigh ed by Knowledge. any country, it would result from the fact of the evidence having to be tested in the judicial tribunals of the land, and by the light only with which such civilization as they possessed had illumined them, that the probabilities must be such as in the ordinary course of its action, the court would recognize. Did Judges, and did Witnesses, achieve the age of the ancient race of men, the Methusalahs of old, with their nine hundred years of life, the judicial experience, as the age of the judge advanced, might give a very different turn to probabilities. Time was when the developement of the principles governing the action of the solar system, now recognized by all philosophy, condemned its expounder to the prison of the Inquisition-when the theory of the circulation of the blood, now established by medical science, would have been treated as an idle dream-when the steam engine would have been regarded as a chimera, -and the electric telegraph but as the flash of a disordered brain. Chowdry Deby Persad v. Chowdry Dowlut Sing, 3 Moore's Indian Appeal Cases, p. 357. Examples. A story is related of a certain King of Siam who, being visited by the Dutch Ambassador, believed all that was narrated by him until he came to the narrative of the frozen rivers of Holland, and was told that an elephant might walk over them. Arrived however at the tale of a river of ice, the king drew up,-pronounced his guest an impostor,-and would listen no more. "Hitherto' said he 'I have believed the strange things you have told me, because I look upon you as a sober fair man, but now I am sure you lie." Siam had no frosts to tell of, and to the King of Siam, Siam was the World. Had the fair of Holland held on the ice been a fact to be tried in that age in a Siamese court, on the testimony of the traveller, we may be sure that, consistently with the principles prevalent even in our own courts, judgment must have been given against it, until more strangers had arrived to corroborate the tale. Were some sea-faring man to come into the courts of either England or India at the present day, and depose to having seen in his voyages a mermaid or a sea serpent, we doubt whether the evidence, direct and positive as it might affect to be, would obtain much credence; nay, were there brought with it in confirmation, the head of the mermaid, and the tail of the serpent. The marvellous stories related by Bruce, the Abyssinian traveller, though subsequently turning out to be true, were long regarded by his mistrusting countrymen as fables.† The anecdote of the visit of the Dutch traveller to the Siamese king presents a case of discredit of an existing fact, simply because it had not fallen within the limit of actual experience. There is another anecdote related, that of the visit of the Japanese to St. Petersburgh, which exhibits a curious contrast to this, in the admission of a nonexisting one, under the influence of an imperfect knowledge; though both examples are alike illustrative of the same principle. Certain Japanese being at St. Petersburgh, in the year 1803, in the infancy of * Locke's Essay on the Human Understanding, b. IV. chap. XV. Section V. |