as will reconcile their teftimonies, it fhall be preferred to a conAtruction that will make them difagree. But if the teftimony of witnefies be fo contradictory that it cannot be reconciled, as if one teftifies in the affirmative, and the other in the negative, the affirmative witness is to be believed, for it is a general rule, that one affirmative witnefs outweighs feveral negatives. The negative witness can only fwear that he does not know the fact, the affirmative fwears directly to his knowledge of the fact. Therefore the fact which the affirmative fwears to be true, may be fo, while the other knows nothing of it, and of courfe both fwear to the truth according to their knowledge. In this way, the teftimony is easily reconciled, and the oath of the affirmative witness is to be relied on. Where two perfons are at the fame place, one fwears that a particular fact happened, and the other that it did not, this makes the contradiction to be more exprefs than if he faid he did not fee it: for it is poffible that their fituation may be such that a witness may know with as much certainty that the fact did not happen, as it could be known that it did: but even in fuch cafes where the credit of the perfons are equal, the affirmative witnefs is to be believed, for the fact may have happened, and the negative witness did not fee it, or he may have forgotten it. But the affirmative witnefs could not fee and remember a fact that did not happen, he must therefore be believed, or be fuppofed to be guilty of perjury; while the other may be cleared of any fuch fufpicion.

It is a general remark that a negative cannot be proved.Where witneffes fwear affirmatively to a fact, it will not be fufficient to disprove it by witneffes, who deny it; but it must be done by proving other facts not only contradictory to it, but inconsistent with it, and which fhew that fuch fact could not have existed.— Where witneffes fwear to facts that are directly repugnant and contradictory to each other, their teftimony cannot be reconciled, but we must have recourfe to other rules to decide, which is to be credited. Thus, if a witnefs fwears that be faw a perfon commit a certain trefpafs at a particular time, and another witness swears that he faw the fame perfon in a different place at a distance at the fame time, here the teftimony of both is affirmative, contradictory and irreconcileable.

Where

Where the number of witneffes adduced by each party is diffe rent, and their characters and means of knowledge equal, the greateft number of witnesses to a fact must be relied on, in preference" to the smaller. Where the number of witneffes are equal or unqual, on both fides, if their characters and means of knowledge" are different, then the weight of evidence muft preponderate upon the following principles.

1. The general character of witneffes in point of truth must be confidered, and other witneffes may be called upon either to inpeach or support their characters. Where the character of a witness is fupported by the opinion or teftimony of perfons of credit, that he is a man of truth, his teftimony acquires ftrength and confirmation. But where witneffes of repute teftify that the general character of the witness is not good, and that his teftimony is not to be relied on, the jury ought to difregard it. But the witneffes who are called upon to fupport or impeach the character of witneffes, ought to be of fair and unblemished reputations: and the effect of their teftimony will be in proportion to the goodnefs of their character, for they may be impeached as well as others.

2. The credit of a witnefs is to be judged of in fome measure according to his ftate and dignity in life, for men whofe education and file in life has rendered them refpectable, and who are in affluent or eafy circumstances, are fuppofed to be more hard to be prevailed upon to commit perjury, than those who by their poverty are expofed to the temptation of bribery.

3. The total indifference of the witnefs to the point in question, will effentially corroborate his teftimony; for where a person is particularly connected with, or nearly related to the party, it is prefumable that however honeft he may be, an imperceptible bias will be thrown on his mind, and he will naturally be influenced to teftify as favourable as poffible for his friend. We may therefore in many inftances refufe full credit to the teftimony of an honest man, tho we believe him to aim at the truth, because of this prejudice which may operate without his knowledge. The truth of this remark will be often obferved where parties call upon witnefles from their family, tho perhaps they may agree in the general tenor

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of the story with indifferent witnesses, yet a certain prejudice it may be obferved will commonly induce them to state strongly those facts which they think will operate in favour of their relations, and colour thofe favourably which they think will operate against them. Where a person whose character is not very good is thus connected with the party, but little regard is to be paid to his testi

mony.

4. The means of information and the difcernment of the witneffes, will have great weight in confirming their teftimony. For when the witness has had the best means of knowledge, and can give a good account and reafon for his recollection, and can point out the circumft ces that ufually and naturally attend the tranf action, he is to be credited in preference to one who cannot explain the grounds of his knowledge, and teftifies directly to the material point, without being able to detail the ufual and probable attendant circumftances. But ftill a witness in certain cafes is to be distrusted if he is more minute and particular in his recollection than is probable; for if the tranfaction be of an ancient date, and the witness relates fome trivial circumstances, which would not probably be remembered for fo long a time, it is to be presumed that he has fabricated the ftory, and relates fuch minute circumflances to acquire credit.

5. The probability of the ftory according to the nature of things, is much to be regarded in weighing evidence. When a witness relates facts, which are very improbable in there nature, or attended with improbable circumftances, he is to be fufpected, and it requires more evidence to convince the mind of fuch facts, than where they are according to the ordinary course of things.

6. The manner in which a witness relates the ftory, will contribute much to imprefs the minds of the triers with a conviction of its truth. It is hardly poffible to deferibe that peculiar manner of telling a story which is calculated to make people believe it. The difcernment of courts and juries in this way may often find Arong grounds to convince their minds. There is a certain artless and unaffected air, and a plain concife manner in giving testimony

which impreffes the mind with irrififtible conviction of its truth. When a witness appears to be impartial, candid, and difpaflionate, and has a clear understanding of the matter, he will be credited: but there are many inftances where honeft, but ignorant people testify in fuch a confufed, inaccurate and blundering manner, that their story makes little impreffion on the mind. Where a witness is paffionate, and vehement, expreffes himfelf with unufual confidence, and makes folemn proteftations that what he fays is true, he is to be diftrufted: for where a perfon is confcious that he is fpeaking the truth, he will have recourfe to no fuch artifice to enforce it but when he knows he is uttering falfhood, it is natural for him to practice fuch arts to perfuade people to believe him.

:

7. In the course of the evidence, the triers will often find in certain collateral circumftances, which are teftified, a clue that will lead them with more infallible certainty, than direct evidence, to the difcovery of the truth; and by which they may explain and correct direct evidence, and afcertain how far it is to be credited. In refpect of fuch circumstances the parties, or the witneflès have rarely art and cunning enough to be guilty of mifreprefentaion, and they may often form a train of probable proof on which the mind may fafely rest.

In all cafes he who takes the affirmative fide of the iffue, is bound to adduce sufficient evidence to convince the minds of the triers of its truth. If the other party can produce evidence of equal weight and credit to counteract it, or can render it very doubtful, the islue must be adjudged not to be fupported: for no man ought to recover from another, when his right is rendered very doubtful and uncertain.

After having explained the rules of the law that are calculated in the best manner to discover truth, we cannot omit to make the melancholy remark, that human teftimony, the only fource of truth with respect to facts, is fo corrupt and fallible, that it is too often impoffible to discover it. Mifreprefentations frequently arise from the weakness and ignorance of witnefles, as well as from their wickednefs but as this is the only mode of fettling controverfies, and as fociety requires that there should be an end of difputes, the

law

law has guarded it with the best poffible barriers and we have the confolation, that tho controverfies are not always fettled right, yet they are fettled: which answers the important end of preferving the peace of fociety.

8. Of the process of compelling the appearance of witnesses. It is provided by statute that if any perfon upon whom lawful process, or fummon has been ferved to appear, and teftify concerning any caufe or matter depending before any court, and having tendered to him fuch reafonable fum for his coft and charges, as having refpect to the distance of the place, is neceffary to be allowed, does not ap pear, having no lawful or reafonable excufe therefor, fhall for every fuch offence forfeit thirty fhillings, and pay to the party grieved, fuch damages as he shall sustain by reafon of his default of appearance, to be recovered by bill, plaint, or information, in any court of 'record.

9. Of Depofitions. The practice of taking the depofitions of witneffes to be improved in courts, is unknown to the common law, and was introduced by ftatute.

When a witness is going to fea or out of the ftate, lives more than twenty miles from the place where the cafe is to be tried, or by age, fickness, or bodily infirmity, is rendered incapable of travelling and appearing at court, any affiftant or juftice of the peace may take affidavits out of court, provided a notification with reasonable time, be made out, and delivered to the adverse party, if within twenty miles of the place, or left at the place of his dwelling, or ufual abode, to be present at the time of taking such affidavit, if he think fit. Every fuch witnefs fhall be carefully examined and cautioned to teftify the whole truth, and being fworn, the affillant, or justice shall atteft the fame, with the time of taking, and that the adverfe party was present, if fo; or that a notification was fent to him, if fo; and fhall feal up the teftimony and deliver it to the party, or he may deliver it unfealed to the court : The witness muft fubfcribe the depofition, and the affiftant or juftice muft direct it to the court where it is to be improved. No perfon interested fhall write, or draw up the teflimony, nor an attorney in his client's caufe, and if the depofition be taken in any other way, or after being fealed, is broken open, it fhall be rejected.

Witneffes