§ 24. The force of evidence rests upon this proved experience, that as a general rule men speak truth rather than falsehood. It may be, that when they are swayed by interest, or roused by passion, they may intentionally misrepresent; or that when they are careless observers of facts, or of unretentive memory, or confused by timidity, they may be unintentionally inaccurate in their reports; but these are the exceptions to the general rule, not the rule itself. A little reflection will suffice to convince us how largely the principle of Faith enters into all the commonest concerns of life. A lazy man lying in bed trusts his valet who tells him it is a rainy day, without troubling himself to go to the window to verify the statement. Notwithstanding the proverbial quality of travellers' tales, we accept the various narratives of voyages published every day without a moment's hesitation. It is but seldom that we require the Rhodian boaster to perform his alleged jump again for our satisfaction; and further experience proves the truth of a Bruce or a Waterton, the accounts of whose wanderings had at first inspired only a feeling of incredulity. In short, Truth in these latter days has been proved stranger than Fiction. In the various treatises of a popular character on the subject of Astronomy, we do not distrust the marvellous distances and weights and velocities there recorded. We need not make ourselves adepts in the mathematics in order to test our informant's statements; and a brief analysis will show, that out of the entire sum of knowledge of any given individual, but a comparatively very small fraction is the result of proof; how very largely he stands indebted to the previous labors of others which he takes on trust. We "pass the torch of truth from hand to hand." Life would be too short for the investigation of a tithe of even common place truisms. We submit our chins to the barber, with implicit confidence touching the safety of our throats; we relish the dainty offerings of the cook, without a suspicion of poison; not that murders have not been committed by razors and arsenic; but because experience shows that the proportion of such crimes to the opportunities of committing them is of infinitesimal value.

Bentham's remarks (2) are so forcible upon this subject that they may well be given in extenso.

"That there exists in man a propensity to believe in testimony, is matter of fact, matter of universal experience; and this, as well on every other oc

(9) Rationale of Evidence, vol. 1, p. 110.

casion, and in any private station, as on a judicial occasion, and in the sta

tion of judge.

"The existence of the propensity being thus out of dispute, then comes the question that belongs to the present purpose-is it right to give way to this propensity? and if right in general, are there no limitations, no exceptions to the cases in which this propensity must be admitted?

"To the first question the answer is-Yes; it is right to give way to this propensity: the propriety of doing so is established by experience. By experience, the existence of the propensity is ascertained: by experience, the propriety of acting in compliance with it is established.

"Established already by experience, by universal experience, it may be still further established by direct experiment, should any one be found willing to be at the charge of it. Continue your belief in testimony, as you have been used to believe in it, the business of your life will go on as it has been used to do: withhold your belief from testimony, and with the same regularity as that with which you have been in use to bestow it; you will not be long without smarting for your forbearance. The prosperity with which the business of your life is carried on, depends on the knowledge you have of the states of men and things, viz. of such men and such things as your situation in life gives you occasion to be acquainted with: and of that knowledge it is but a minute and altogether insufficient portion that you can obtain from your own experience, from your own perceptions alone; the rest of that of which you have need, must come to you, if it comes to you at all, from testimony.

"And what is it that, by thus rendering it a man's interest, renders it proper for him to bestow a general belief on testimony? It is the general conformity of testimony to the real state of things-of the real state of things to testimony of the facts reported upon, to the reports made concerning them.

"And by what is it that this conformity is made known? Answer again -By experience. It is because testimony is conformable to the truth of things, that, if you were to go on treating it as if it was not conformable, you would not fail of suffering from it.

"And by what is it that this conformity is produced? The question is not incapable of receiving an answer, and therefore, being a practically important one, it is neither an improper nor an unreasonable one: a little further on an answer will be endeavoured to be given.

"Forasmuch as, in a man, whether on a Judicial occasion, or on a nonJudicial occasion, in a Judicial station, or not in a Judicial station, there exists a general propensity to believe in evidence; and forasmuch as in ge

neral the giving way to that propensity is right, being found to be attended with consequences advantageous upon the whole; so, when, on a Judicial occasion, and in a Judicial station, a man having received evidence has grounded his belief on it, pronounced a decision in conformity to such belief, and in the exercise of Judicial power acted in conformity to such decision, there exists on the part of men at large, failing special and predominant reasons to the contrary, a propensity to regard such belief as rightly bestowed; and to yield to this propensity also is right, and in general productive of beneficial consequences, as is also established by experience.

"Ask what is the ground-the foundation-or more simply and distinctly, the efficient cause of the persuasion, produced by evidence-produced by testimony? An answer that may be given without impropriety, is-Experience experience, and nothing but experience.

"Experience?-of what? Of the conformity of the facts which form the subjects of the several assertions of which testimony consists, with the assertions so made concerning these respective facts.

"In the course of the ordinary and constant intercourse between man and man in private life, propositions affirming or disaffirming the existence of this or that fact, are continually uttered in a vast variety of forms. For the most part, occasions of obtaining perceptions, of and in relation to the facts in question, present themselves; the perceptions thus obtained are found conformable to the description given by those assertions. Testimony being thus for the most part found true in past instances, hence the propensity to expect to find it true in any given future instance: hence, in a word, the disposition to belief.

"On the other hand, in some instances, instead of such conformity, disconformity is the result presented by the surer guide, perception; hence, the disposition to disbelief.

"The number of the instances in which, to a degree sufficient for practice, this conformity is found to have place, is greatly superior to the number of the instances in which it is found to fail. Hence, the cases of belief constitute the general rule-the ordinary state of a man's mind; the cases of disbelief constitute so many cases of exception; and to produce disbelief requires some particular assignable consideration, operating in the character of a special cause.

"The disposition or propensity to be lief may, in this sense, be said to be stronger than the disposition, the propen sity, to disbelief. Were the proposition reversed, the business of society could not be carried on: society itself could not have had existence. For the facts which fall under the perseption of a ny given individual are in number but as a drop of water in the

B

bucket, compared with those concerning the existence of which it is impossible for him to obtain any persuasion otherwise than from the reports, the assertions, made by other men."

PART I.

EVIDENCE AS TO PRINCIPLES.

CHAPTER II.

PRINCIPLES CONSIDERED GENERALLY.

§ 25. Is there then any distinction between Legal and other Evidence? It may in the first place be laid down generally that the principles of Legal Evidence are the same as those which an educated man of ordinary understanding would act upon on enquiring into the truth of any investigation in every day life.

§ 26. But inasmuch as there is less inducement to deceive in ordinary matters, than in legal investigations, in which the parties have their interests at stake, and inasmuch as the despatch of public business forbids unlimited time being devoted to any one enquiry, it is expedient and convenient not to go into all that we might have an inclination to enquire into in the private matters of life. (") The principles are such as a prudent father of a family would use in investigating a domestic dispute; the only proper causes for exclusion in legal enquiries are Vexation, Expense, Delay. Instances may easily be imagined, and constantly occur in practice, in which notwithstanding it might be desirable to adduce a particular piece of evidence before com

(r) Nothing more tends to fix principles in the mind of the Student than their connexion with a Law maxim, and I shall therefore introduce them wherever apposite; thus. "Interest reipublicæ ut sit finis litium." "Nelites immortales essent dum litigantes mortales sunt” are formulæ expressing this necessity of placing limits to the production of evidence. See Per. Rolfe B. (Lord Cranworth, Chancellor) in Att. Genl. v. Hitchcock. XI. Jur. 482." The Laws of Evidence as to what is receivable or not are founded on a compound consideration of what abstractedly considered is calculated to throw light on the subject in dispute, and of what is practicable. Perhaps if we lived to the age of a thousand years instead of sixty or seventy, it might throw light on any subject that came into dispute, if all matters which could by possibility affect it, were severally gone into, and enquiries carried on from month to month as to the truth of every thing connected with it. I do not say how that would be, but such a course is found to be impossible at present." Maxims are in fact recognized as part of the material for forming a judgment. See Co. Litt. 11a, 67a, 343a, 648. Doct. and Stu. Dial. 1. ch. 8, says this authority standeth in divers principles that be called law maxims, the which "have always been taken for law in this realm, so that it is not lawful for any that is learn"ed to deny them, for every one of those maxims is sufficient authority to himself."

LIMITS OF INVESTIGATION: INTEREST.

11

ing to a decision, yet a consideration of the vexation, expense, or delay, attending its production, necessitates a decision without it; and on the whole the balance of public convenience, as well as justice, will be found in favor of acting upon general rules, not making exceptions on account of supposed cases of particular hardship. As it has been repeatedly said, and by Rolfe, B. in Winterbottom v. Wight,(s) "Hard cases make bad law."

§ 27. Where none of these preventive obstacles presents itself, a wisely constructed Law of Evidence will strive to admit everything which can throw light upon the subject under investigation. It is thus that minutiæ become distinct; just as the microscope, when the light is most intense, reveals animalculæ imperceptible to the naked eye. The Judge should have the benefit of the fullest possible body of light. Suppose you were about to set out on a journey along a road untried before, to some point which you had never previously visited, I presume that you would prefer accomplishing it by day rather than by night; or if you were forced by circumstances to undertake it by night, you would rather have a full moon, or star light, or torch-light, than total darkness? Yet this is very analogous to a judicial investigation.

Until a comparatively recent date the Law excluded much light, which might usefully and legitimately have been admitted, but for a prejudice, a jealousy, and an over caution, which were exercised to preclude what was thought the opening, the chance, or possibility of error.

§ 28. Thus the parties disputant (t) were not to be themselves heard, because it was thought they would be so necessarily biassed, that they would be little worthy of credit, and that the temptation to perjury would be, if not irresistible, very dangerous. Thus too the testimony of any one, offered by the parties, as a witness, who was pecuniarily interested() in the matter in dispute, was peremptorily excluded a practice which involved this absurdity, that the evidence of a man with the wealth of Sir Jamsetjee Jejeebhoy would be rejected, if he were shown to be interested even to the extent of a single rupee in the suit at issue. To such a man, the temptation thereby offered to swerve from the truth would be as nothing; yet the rule,

(3) 10 M. and W. 116.

(t) See Legislative Act II. of 1855. Sec. XIX. 14 and 15, Vic. c. 95.

(+) See Legislative Act II. of 1855. Sec. XVII. 3 and 4 Will. IV. c. 42, s. 26, 6 and 7 Vic. c. 851(Lord Denman's Act) (Lord Brougham's) Act 14 and 15, Vic. c. 99, as to County Court. 9 and 10, Vic. c. 95. Sec. 83.