CHAPTER II. On the effect of Evidence. THE enquiry contained in the preceding chapter into what constiEffect not reducible to tutes evidence, may properly be followed up by a system. an examination of the principles by which the effect of evidence is governed. Not indeed that, like the rules determining the admissibility of evidence itself, these principles are capable of reduction to an absolute system. In the infinite variety of form which questions of fact assume, the moral kaleidescope to which the court is called on to direct its view, the weight of evidence must necessarily vary in an infinite proportion, both according to the subject to which the testimony is applied, and the nature of the testimony itself; and the utmost that can be looked for towards an a priori adjustment of weight, is something in the nature of a guide, rather than that of a rule. In truth after all the aid which juridical learning has to bring to the subject, the question of effect is one very much to be left to the ordinary apprehension of mankind, and the dictates of experience and common sense; and it was well observed by the Chief Baron Pollock in charging a jury:- To be left to common sense to determine. "The conclusion to which you are conducted is that there is that degree of certainty in the case that you would act upon it in your own grave and important concerns, that is the degree of certainty which the Law requires, and which will justify you in returning a verdict of guilty. Many Continental Codes prescribe imperative formulæ descriptive of the kind and amount of evidence requisite to constitute legal proof. But the diversities of individual men render it impracticable, thus definitely to estimate the fleeting shades and infinite combination of human motives and actions; or thus to fix, with arithmetical exactness, a common standard of proof, which shall influence with unvarying intensity and effect, the minds of all men alike. Such rules are not merely harmless, nor simply superfluous; they are positively pernicious and dangerous to the cause of truth; and while they operate as snares for the conscience of the Judge, they are unnecessary for the protection of the innocent, and effective only for the impunity of the guilty."* These observations were elicited in a criminal trial, and were addressed to a Jury; but they would equally apply to any civil procedure-and that whether the decision of the matter of fact was intrusted to a Jury or rested with the Judge. Hindu Law. The ancient Hindu Law as prevailing in some parts of India Mode of weighing in prescribed a mode of weighing testimony which would probably have been viewed by the Chief Baron, as casting even the Continental formulæ into the shade. The Hindu Code had reference however rather to a conflict of testimony among the witnesses, than to the adjustment of the different values of varying matters of proof. "In a contradiction' says the Mitacshara, 'the assertion of the majority; where the numbers are equal that of the respectable party; where there is contradiction among respectable witnesses, that of the most respectable. Respectability' being ascribed to "those endued with a knowledge of revealed law, who shape their conduct accordingly, who have children, wealth, and virtuous qualities."!!† Existence of broad tests of value. But while it would be hopeless to attempt to reduce the effect of evidence to a system, there nevertheless exist some broad tests capable of being applied with advantage towards determining the value of testimony generally; and these we proceed to point out. Classification of tests * They naturally divide themselves into those affecting the credibility of the witnesses individually, and those, regard being had to its nature or subject, affecting the testimony itself. R. v. Manning Wills, 210. + Macnaghten's Hindu Law, Vol. 1, p 252. To a certain extent no doubt, whatever the testimony may be, it cannot but be affected by the credibility of the witnesses. Still an obvious distinction will be perceived between that which is personal to the parties from whom the evidence proceeds, and that which is peculiar to the testimony; and we treat the subject under these two separate divisions accordingly. And first as to the personal credibility of the witnesses;—though it Division as to personal credibility into Common to all witnesses. must be premised, that what is here dealt with is credibility in its more popular view only:-the Individual in respect artificial discredit in particular instances which the rules of law have proclaimed, are reserved for to each. the more technical portion of the work. Now the personal credibility of every witness may be affected, either by a condition of things common to all deponents generally; or by circumstances individual in respect to each. What common to all. Publicity, Oath, Separation, Mode of Examination. The condition of things common to all to which we refer is to be sought mainly in the constitution of the Court in which the testimony is delivered; and the sanctions for veracity afforded in its machinery; and, as the more prominent of these, at all events in the Courts of England, may be stated, provisions to enforce the public delivery of the testimonyits delivery upon oath or under corresponding solemnity-the separation or keeping apart of the witnesses when occasion may require it; and a fitting and fair course of examination for eliciting the testimony. The last, beyond this general notice, we pass over for the present. It will be found to resolve itself mainly, on the one hand, into the security for the testimony being natural, afforded in the shutting out dictation to the witness, by putting into his mouth the answer desired of him, through the medium of a course of suggestive, or as it is termed ' leading' interrogation; and on the other, the sanction both for knowledge, and veracity, supplied by the scrutinizing power of cross-examination. These, connected as they are with the more technical parts of the treatise, will form matter for separate chapters, and their discussion is reserved accordingly. 6 To advert then, subject to this omission, to the condition of things common to all deponents generally, let us address ourselves first to the sanction for veracity existing Publicity. in the public delivery of the testimony. 66 Publicity,' says Mr. Bentham, is the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes, with the exception of a few, which will be noticed in the following chapter. 1. In regard to the witnesses, the publicity of the examination awakens all mental faculties which should concur to produce a faithful statement; particularly attention, so necessary to recollection. The solemnity of the scene puts them on their guard against thoughtlessness or indolence. There may be some, who are agitated from natural timidity; but this disposition, which is never mistaken, acts only during the first moments, and betrays nothing unfavorable to the truth. 2. But the great influence of publicity is exercised on the veracity of the witness. Falsehood may be bold in a secret examination; it is difficult for it to be so in public; it is even extremely improbable, with any but the utterly depraved. When every eye is fixed upon a witness, he is disconcerted, if he has formed a plan of imposture; he feels that the untruth, which he is about to state, may find a contradiction in every one who hears him. A countenance which he knows, and a thousand others which he does not know, disturb him equally; and he imagines, in spite of himself, that the truth, which he is seeking to suppress, will come forth from the very bosom of the auditory, and expose him to all the dangers of false testimony; he feels at least, that there is one punishment from which he cannot escape, shame in the presence of a crowd of spectators. It is true, that, if he belong to a mean class, his very meanness saves him from shame; but witnesses of this class are not the most numerous, and one is naturally on his guard against their testimony." 11 * Judicial Evidence, p. 67. The passage quoted alludes to exceptional cases in which public examination might be dispensed with. These however in no way trench upon the soundness of the general principle. They are merely instances in which the term examination not in secret, but in private, would be put in opposition to that of public, and they are those where the publicity is only dispensed with out of consideration to a paramount and controlling policy; as, for instance, cases involving uncalled for exposure of domestic affairs, or those of an indecent or scandalous nature, as rape, incest or the like. As a general result, few will dispute the superiority of evidence taken in open court, over that which is obtained under a commission ; executed as the latter necessarily is in private. The oath. The spiritual sanction. The next sanction for veracity is that which requires the testimony to be delivered under the solemnity of an oath or (where this is permitted) a declaration in its stead; and this amounts to a solemn invocation of the Deity to the truth of the testimony by the witness; with an imprecation of the Divine vengeance on himself in case of its falsehood. But the sanction involved in the pledge does not stop at the religious invocation. It is composed of two elements, the temporal and the spiritual; the former the exposure which false testimony would involve to the penalties of perjury in this world; the latter that of its punishment in the world to come. In addition to these, a third has been suggested;-the sanction of honor, or the fear of the infamy which attaches to an untruth told upon oath; and it may not be without its influence. It is a sanction, however, not much adverted to by English lawyers generally. "The first great safety,' says Mr. Starkie, which the law provides for the ascertainment of the truth in ordinary cases, consists in requir ing all evidence to be given under the sanction of an oath. This imposes the strongest obligation upon the conscience of the witness to declare the whole truth that human wisdom can devise; a wilful violation of the truth exposes him at once to temporal and to eternal punishment."* *Starkie on Evidence, p. 29. K. |