vidual case (ƒ)." The divine punishment for falsehood being prospective and invisible detracts much from the weight of this sanction, and perjury is often committed by persons whose religious faith cannot be doubted, but who presumptuously hope by their subsequent conduct to efface its guilt in the eyes of Heaven. ence of these § 19. The effect of these three sanctions is much Powerful influgreater than might at first sight be supposed. They are sanctions. in continual operation as efficient causes for the production of truth, and render its enunciation natural and habitual to men; while every incentive to falsehood can only be looked upon as a species of disturbing force, which acts occasionally and exceptionally. Of few persons indeed can it be said that their adherence to truth is undeviating at all times; with many its observance appears to depend on circumstance, accident, or caprice; with some the practice of lying seems inveterate; while certain classes of persons systematically, and as it were on principle, withhold the truth from other classes when questioned on particular subjects. But after every abatement has been made for aberrations, the quantity of truth daily spoken immeasurably exceeds that of falsehood (g); and Bentham even goes so far as to assert, that " from the mouth of the most egregious liar that ever existed, truth must have issued a hundred times for once that wilful falsehood has taken its place (h)." § 20. It is however of the utmost importance to obof those springs of action which we have serve that any (f) Wayland's Elements of Moral Science, p. 281, Boston, 1844. (g) Bonnier, Traité Preuves, 13. des (h) 5 Benth. Jud. Ev. 82. We have read somewhere of a whole nation who purposely gave false answers to all questions respect ing the topography of their coun- Sometimes proinstead of truth. mote falsehood denominated "sanctions of truth," may be found on the wrong side, i. e. producing falsehood instead of truth. If the natural sanction rests solely on a love of ease, that love, while it represses invention, equally prevents our taxing the memory to give a perfect narrative of what has been witnessed; and if supposed to spring from a love of truth and justice, the party called on to give evidence may consider the ends of justice advanced by withholding the truth; as, for instance, where the disclosing it will induce the condemnation of a criminal whose future good behaviour he thinks will be better ensured by escape than punishment. But of the sanctions in question, none is so frequently divided against itself as the moral. Conduct condemned by one portion of society is often applauded by the rest, and persons desirous of the good opinion of one class are often satisfied to attain it at the cost of sinking themselves in that of every other, and tell or suppress the truth as may best advance their object. "The credibility of a witness," says the Marquis Beccaria (i), "may be in some degree lessened when he is member of some private society, whose usages and maxims are either not well known, or different from those of the public. Such a man has not only his own passions but those of other people." Even the religious sanction has been enlisted in the cause of falsehood. Particular forms of religion allow it in certain cases (j), and the truth has often been sacrificed by (i) "La credibilità di un testimonio può essere alcune volte sminuita, quando egli sia membro di alcuna società privata, di cui gli usi e le massime siano, o non ben conosciute, o diverse dalle pubbliche. Un tal uomo ha non solo le proprie, ma le altrui passioni."-Beccaria, Dei Delitti e delle Pene, § 8. (j) See Halhed's Code of Gen too Laws, &c., cited infra, Part 2, ch. 1, sect. 2. Whether a violation of truth is allowable in any, and if so, in what cases, has been much considered by moralists and divines. See Pufendorf, De Jure Natur. et Gent. lib. 4, cap. 1, §§ et seq.; Bentham's Jud. Ev. bk. 1, c. 11, sect. 5, &c.; Paley's Moral and Political Philosophy, bk. 3, pt. 1, ch. 15, &c. It religious persons in order to avoid bringing scandal on their creeds. human testi mony. witness. § 21. The credit due to human testimony, assuming Credit due to that we correctly understand the language employed, is in a compound ratio of the witness's means of acquaintance with what he narrates and of his intention to narrate it truly. In estimating the latter, three things are to be attended to. 1. Whether he labours under 1. Honesty of any interest or bias, which may sway him to pervert the truth. 2. His veracity on former occasions-evidenced either by our own experience or credible proof. 3. His manner and deportment in delivering his testimony. "A consideration of the demeanour of a witness," says one of our books (k), “and of the manner of giving his evidence, is oftentimes not less material than the testimony itself. An overforward and hasty zeal on the part of the witness in giving testimony which will benefit the party whose witness he is, his exaggeration of circumstances, his reluctance in giving adverse evidence, his slowness in answering, his evasive replies, his affectation of not hearing or not understanding the question, for the purpose of gaining time to consider the effect of his answer; precipitancy in answering, without waiting to hear or to understand the nature of the question; his inability to detail any circumstances wherein, if his testimony were untrue, he would be open to contradiction, or his forwardness in minutely detailing those where he knows contradiction to be impossible; an affectation of indifference; are all to a greater or less extent obvious marks of insincerity. On the other hand, his promptness and frankness in answering questions without regard to consequences, and especially his unhesitating readiness in stating all the circumstances attending the transacis however universally agreed that such exist, the exception. the obligation to tell truth is the rule, the licence to falsehood, if (k) 1 Stark. Ev. 547, 3rd Ed.; Id. 822, 823, 4th Ed. C 2. Capacity of witness. tion, by which he opens a wide field for contradiction if his testimony be false, are, as well as numerous others of a similar nature, strong internal indications of his sincerity." "Interrogabit judex," say the canonists (1), "testes in quâlibet causâ, eosque diligenter examinabit, de singulis circumstantiis diligenter inquirans, de causis videlicet, de personis, loco, tempore, visu, auditu, scientiâ, credulitate, famâ, et certitudine, cæterisque, quæ ad rem facere, et negotio convenire existimabit. Illud quoque subtiliter animadvertere non omittet, quo vultu, quâ constantiâ, quâve animi trepidatione testes deponant; cùm interdum ex his, vel ipsis invitis testibus, magis quàm ex verborum serie rerum veritas elucescat." § 22. The capacity of a party to give a faithful account of things depends on-1. The opportunities he has had of witnessing what he describes. 2. His powers, either natural or acquired, of perception and observation; and here it is important to ascertain whether he is a discreet, sober-minded person, or imaginative and imbued with a love of the marvellous, and also whether he lies under any bias likely to distort his judgment. 3. Whether the circumstances he relates were likely to attract his attention, in consequence of their importance, either intrinsically or with relation to himself. "Where the chemist and the physician see a dangerous poison, the kitchen-maid may see nothing more than an immaterial flaw in one of her pans, the cook may behold an innocent means of recommending herself to the palate through the medium of the eye. Where the botanist sees a rare, and perhaps new, plant, the husbandman sees a weed: where the mineralogist sees a new ore, pregnant with some new metal, the labourer sees a lump of dirt, not distinguishable from the rest, unless it be by being heavier and more troublesome (m)." 4. His memory; and here, (1) Lancelottus, Institutiones Juris Canonici, lib. 3, tit. 14. (m) 1 Benth. Jud. Ev. 164-5. whether the transaction is ancient or recent, whether his recollection has been refreshed by memoranda, conversation, &c. § 23. The probative force arising from concurrent testimonies is the compound ratio of the probabilities of the testimonies taken singly. But when testimonies conflict or clash with each other, we must form the best conclusion we can on their relative capacities and honesty. Concurrent and conflicting testimonies. weighing tes of the narra tion. of the matters § 24. There are two things which must never be lost Things to be sight of when weighing testimony of any kind. 1°. The considered in consistency of the different parts of the narration. timony. 2o. The possibility or probability, the impossibility or 10. Consistency improbability, of the matters related: which afford a sort o of corroborative or counter-evidence of those matters. 2o. Possibility By probability, as already observed (n), is meant the and probability likelihood of anything to be true, deduced from its con- related. formity to our knowledge, observation and experience. When a supposed fact is so repugnant to the laws of nature, assumed for this purpose to be fixed and immutable (0), that no amount of evidence could induce us to believe it, such supposed fact is said to be impossible, or physically impossible. There is likewise moral impossibility, which, however, is nothing more than a high degree of improbability. 25. As the knowledge, observation and experience of men vary in every imaginable degree, their notions of possibility and probability might naturally be expected (n) Suprà, § 7. (0) The judicial proceedings of modern times are conducted on the assumption that the laws of nature are fixed and immutable; not from disbelief in miraculous interposition, but because such interposition is unquestionably |