THE Principles and Practice OF THE LAW OF EVIDENCE. Part I. CHAPTER I. GENERAL PRINCIPLES OF EVIDENCE. EVIDENCE plays such an important part in the practical administration of justice, that a knowledge of the law of evidence is obviously of the greatest importance. As preliminary to treating of the rules of law applicable to evidence, the question must be propounded, and, as far as possible, answeredWhat is evidence? Since mathematical or demonstrative certainty is unattainable in any of the affairs of daily life, courts of justice, like individuals, are compelled to be satisfied with that inferior kind of certainty which is called moral. All moral science, of which law is the practical expression, consists intrinsically of inquiry and investigation, which are infinite by nature, but finite by necessity; and, in the administration of justice, the exigencies of public and private business require that this limit should be neither recondite nor fanciful, but well defined and according with the maxims and experience of common sense. Therefore moral probability, or, as it is somewhat erroneously termed, moral P. B certainty, is the utmost to which the science of legal evidence aspires. In this respect, the analogy between ethics, or moral philosophy, and the English Law of Evidence, is complete. As in ethics, and in all purely transcendental inquiries which seek for knowledge beyond the limits of the senses, the logical result is seldom more than a slight elevation or depression of one of two or more sets of competitive probabilities (a): so moral philosophy, when applied to the daily business of life, and made a standard and a test of the existence or non-existence of uncertain and disputable facts, gives, as the result, only a greater or less amount of verisimilitude, or probability. The region of evidence lies, therefore, exclusively between moral certainty on the one hand, as its most perfect extreme, and moral possibility on the other, as its most imperfect extreme. It does not look for more than the first, and it will not act on less than the last. Its whole object is to produce those convictions which spring spontaneously from the suggestions of the intuition, as embodied in the conclusions of the reasoning or comparative faculty of the mind: and in every case the last conclusion of the speculative intellect rightly suggests and governs the first outward operation of the practical mind (b). From such a speculative conclusion there may spring also ulterior inferences, connected strictly in a chain of cause and effect: for "if a strong probability be raised by express evidence, unless the probable consequence may be inferred, the business of life could not be conducted, and justice could not be administered" (c). But the fundamental maxims of the Law of Evidence are not by any means founded on the most approved principles of modern metaphysics; for, bounded and fallible as the human senses are in their demonstration, (a) Cicero de Officiis: Butler's Analogy of Religion. (b) Aristotle, Eth. Nic. lib. 6. Per Lord Campbell, Wheelton v. Hardisty, 8 E. & B. 279. yet the science of evidence recognises in them its best and highest exposition. Evidence of Eye-witnesses. It is often stated that the English Law of Evidence may be regarded as primarily always striving after the depositions of eye-witnesses. Yet the statements of eye-witnesses, although always valuable, are so far from being, as is sometimes supposed, of a demonstrative character, that they are often intrinsically less satisfactory than many other grades of presumptive evidence, which are nominally inferior. Ignorance, passion, prejudice, and other constitutional infirmities of the witness, which are far beyond the sight or conjecture of either a judge or a jury, may, and constantly do, without the consciousness of the deponent, distort his evidence so far as to render it absolutely worthless; although it may be delivered with perfect calmness and consistency, and even remain unshaken by the most searching cross-examination. As a general rule, however, a rigid cross-examination, coupled with a careful observation of the demeanour of the witness, will throw considerable light upon his credibility. Simplicity, minuteness, and ease are the characteristics of truth; evasion, exaggeration, overzeal for either party, too great readiness in answering, are indications of insincerity, if not of falsehood. A still more alarming ground for distrust lies in the possibility that a witness may be committing perjury; and the experience of the profession adds weight to this deplorable hypothesis. Reliance placed upon statements of others. The reliance placed upon the statements of others arises from an instinctive tendency to confide in their veracity, and from our faith in human testimony being on the whole sanctioned by experience. This reliance is increased by corroboration. In spite of the maxim testimonia ponderanda sunt non numeranda, the evidence of three witnesses carries more weight than that of two, i.e., where the three witnesses are independent, and the weight of their evidence has not been lessened by cross-examination or otherwise. It should also be noted, that in estimating the value of evidence more weight should be given in matters of observation to the testimony of an educated than to that of an uneducated man; and that the testimony of a man 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 latter at the time (d). Another ground for reliance on human testimony is its probability, i.e., its accordance with facts previously known and believed. But although probability is useful as an aid to considering the true value of direct evidence, it can seldom with safety be had recourse to alone for the purpose of entirely invalidating direct evidence. As connected with this subject the remarks of Lord Wensleydale may be quoted, that "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" (e). Another valuable maxim is that when any inconsistency is apparent between the testimony of a witness and his previous conduct, the court should look rather to the acts of the witness than to his statements when called as a witness (ƒ). Best evidence required by courts. It is universally the object of courts to obtain the best evidence. Hence secondhand or hearsay evidence is generally inadmissible; and it is an inflexible rule, that secondary evidence is always (d) Chowdry Debi Persad v. Dowlut Sing, 3 Moo. I. A. 357. |