VIII. CHAP. incompetency from interest are influenced by this sentiment; and there can be little doubt that the same was the case with the rule now under consideration. It was laid down generally, that "a confession forced from the mind by the flattery of hope, "or the torture of fear, comea in so questionable a shape when "it is considered as evidence of guilt, that no credit ought to "be given to it, and therefore it is rejected."* It was afterwards conveniently suggested, that "the law cannot" (which is a way of saying "the judges do not choose to") "measure "the force of the influence used on the mind of the prisoner, "and therefore excludes the declaration if any degree of "influence has been" (rather "by any possibility can be supposed to have been ") "exerted." Putting these two principles together, the rule, of course, ran into technicality like that of special pleading in its old form. The words were "tortured" (to use the Lord Chief Baron's phrase) to see whether an ingenious person could not suggest some view of them, which might possibly have had some influence on the mind of a prisoner accustomed to special demurrers. Since the case of E. v. Baldry it has been brought into a reasonable shape. Induce ment must be tem poral. There are, however, several curious qualifications to the rule. The inducement must be the prospect of temporal advantage. Exhortations to tell the truth upon religious grounds, however urgent, will not be a ground for excluding a confession. This was held in a case where the chaplain of the gaol passed three hours and a half with a man pressing him in the strongest way to confess, and reading (amongst other things) the Commination Service ("a commination or not under its influonce. Some years ago, on sales of landed property, things called outstanding terms used to have to be assigned (at a considerable outlay of time and money) to "protect the inheritance" from various dangers with which it was threatened by certain conveyancing subtleties. An act was passed, providing that under certain circumstances the inheritance should be as effectually protected without assignment as it could have been by assignment. An eminent conveyancer remarked on this, with virtuous indignation, "The inheritance protected when the term is not assigned! You might as well pass an act to declare that a man who goes out in the rain without an umbrella shall not get wet." * Warwickshall's case, 1 Leach, C. L. 264. f 2 Buss. 826. denouncing of God's anger and judgment against sinners").* The ground upon which the case appears to have been decided was, that religious considerations could never induce a man to tell a lie. CHAP. Confes sions obtained by Another remarkable rule is, that, where a confession has been obtained by artifice, deception, or even perjury, it is admissible, so long as there is no threat or inducement.! fraud. There is some obscurity as to the question whether the inducement must have reference to the charge. informa conse sible con One point with relation to confessions is well established. Collateral If, in consequence of a confession improperly obtained col- J"on oblateral information be procured, the information may be used, tained in though the confession may not. For instance: if the prisoner quence of points out the place where property is hidden, and if it is TM*dmisfound there, the fact of the finding, and the fact that the fession. prisoner gave directions, may be given in evidence, though the particulars of his statement may not. Confessions are evidence against those who make them only. This is the rule; but, in practice, it is impossible for the jury not to take into account what a prisoner says of his accomplices. confession With respect to the whole of this subject, Lord Campbell whether observed, in R. v. Baldry: "If the matter were res integra, I shouki be should, perhaps, have doubted whether it might not have "been advisable to allow the confession to be given in evi dence, and to let the jury give what weight to it they pleased." No doubt this would, for the interests of truth, be the best rule. There are, however, other interests to be considered, of which one of the most important is the popularity of the law. It must never be forgotten that the poor and ignorant are the persons most affected by the administration of criminal justice; and the ministers of justice, with whom they have most to do, the police, have just that amount of intellectual and social superiority to day-labourers, and the lower class of mechanics, which makes them the objects of peculiar jealousy, and renders it desirable to take special precautions against abuses of their power. Their rough and ignorant zeal would frequently lead them into acts of real oppression, if the * R. v. Gilham, 2 R. C. 848. + Cases in Roscoe, Dig. Cr. Ev. 45-6. Warwickshall's case, 1 Leach, 265. Reg. v. Griffin. Russ. & Ryan. 151. given for what it is worth. CHAP. VIII. General observa tions on English rules of kind of evidence required. law of evidence were altered so as to make such oppression useful. It must also be remembered that to require the legal punishment, even of a criminal, is no light thing. It is not less important that the sympathies of the community should go with the punishment and all concerned in its infliction, than that crime should be punished; and this would not be the case if evidence obtained by threats or promises were admitted, unless, at the same time, those who have made use of the threats or promises were punished, which it would be practically very difficult to do. For these reasons it would, perhaps, be wise not only to maintain the rule, but to extend it to cases of confessions extorted by spiritual terrors, or obtained by fraud. From this short and imperfect sketch of the rules of evidence which prevail in English courts, I pass to a few general observations on their value. They are, as I have evidence repeatedly observed, mere practical expedients intended to kive gycurity to the public that the opinions of juries shall be formed on weighty grounds, and the ingenuity which would atttempt to place them on any more subtle basis would be much misplaced. They may be summed up in a very few words. The evidence on which a man is convicted must tend to prove the whole or a part of the very fact of which he is accused, or some other fact specifically connected with it. It must consist either of a material thing produced bodily to the jury, or of the statements of witnesses as to what they have themselves perceived by their own senses. If the point to be proved is a confession made by the prisoner, it must be shown that he made it quite freely, without the shadow of a threat or inducement. This evidence must be given on oath, and the credit of the persons who give it may be tried by means contrived so as to test their accuracy as far as is consistent with the limits of time and attention, which are indispensable to trial by jury. It must be elicited by questions which do not suggest the answer, and may be tested and counterchecked by the most specific collateral inquiry upon every branch of it. Amount of evidence required. Such being the kind of evidence to be admitted, how much will produce a conviction? The answer cannot be given specifically, because evidence itself has no qualities which can be specifically enumerated. The answer is—As much evidence as will induce twelve men to say they have no doubt which they will call reasonable. The only other answer that can be given consists in a reference to specific cases. Of these I have given several at the end of this work. In Donellan's case the jury convicted on rather weak evidence. In Palmer's case the evidence was very strong. Smethurst's case was one in which the jury and the Home Secretary differed, and may, therefore, be said to fall near the dividing line. Thus the weight of evidence required for a conviction differs in different cases according to the disposition of the jury, the temper of the times, and other circumstances. Some years ago there was a greater reluctance than there is now to convict in capital cases. Some of the judges have higher notions than others of the amount of evidence required to warrant a conviction, and thus the standard varies within certain ill-defined limits. I think, however, that the more the verdicts of juries are considered, and the more the evidence on which they are founded is studied, the greater will be the respect felt for them, and the stronger will be the conviction of the solid good sense of the rules of evidence on which the whole system proceeds. CHAP. VIII. CHAPTER IX. EXGLISH CRIMLNAL LEGISLATION. Chap. IX. Haveng in the preceding chapters described the criminal law as it is, I now proceed to some observations on the manner in which it is made. Judicial The law is made partly by parliament, partly by the and parliajudges, and may thus be divided into acts of parliament and mentary legislation, cases. The modern case law answers to the ancient common law, which, indeed, it includes and embodies, but it qualifies acts of parliament quite as much as the old definitions and maxims of which the common law was anciently composed. The fact, that under the fiction of declaring the law the judges in reality make it, has been recognised by every one who has studied the subject with candour and intelligence, 6ince the days of Bentham at least. It may, however, need some little illustration, especially to unprofessional readers. A law proper, as I have already observed, differs specifically from all moral maxims, rules of inquiry, descriptions of natural uniformities, theories of morality and other things improperly called laws, in the fact that it is a command issued by the sovereign power, and backed by a sanction. When the sovereign entrusts judges with the power of saying— The transactions brought under our notice are to be regulated by this specific rule to the exclusion of all others, and the sheriff backed by the power of the county shall give effect thereto— he makes the judges pro tanlo legislators. Their declaration that this or that rule is the law of the land has, for all practical purposes, the same effect as a declaratory act of parliament. This power has been exercised so often, and on such important |