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PRE FACE.

The common law system of evidence, in its actual state the growth of the last two centuries, must ever claim the highest respect and admiration as a whole, however particular portions of it may be justly or unjustly condemned. Now the design of the present Work is not to add to the practical treatises by which the subject has been illustrated, but to examine the principles on which its rules are founded, tracing them to their sources, and shewing their connexion with each other. To this are annexed a sketch of the practice relative to the offering and receiving evidence at trials, and a few elementary precepts, founded chiefly on those of Quintilian, for the guidance of young practitioners in interrogating witnesses.

Throughout the book, particularly in the Introduction when treating of judicial evidence in the abstract, much assistance has been derived from the Roman law, the civilians, and other foreign writers; and especially from the able work published by M. Bonnier, at Paris, in 1843, entitled “ Traité Théorique et Pratique des Preuves en Droit Civil et en Droit Criminel.” Large use has also been made of “Bentham's Rationale of Judicial Evidence,” in five volumes, London, 1827; in which the general principles of evidence are ably discussed, and often happily illustrated. That book should, however, be read with caution, as it embodies several essentially mistaken views relative to the nature of judicial evidence, and which may be traced to overlooking the characteristic features whereby it is distinguished from other kinds of evidence. Some of these errors will be pointed out in the Introduction.

The Author begs to express his grateful acknowledgments for suggestions from many friends. The Index has been compiled by Mr. H. Macnamara, of the Inner Temple.

ors

W

CHANCERY LANE,

July, 1849.

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INTRODUCTION. Sect. I.—(continued.)

Divisions of facts .. .. .. .. .. ..

1. Division the first .. .. .. .. .. ..

1. Physical facts .. .. .. ..

2. Psychological facts .. .. ..

Incapable of direct proof by witnesses

2. Division the second

1. Events .. .. .. .. ..

2. States of things .. .. .. ..

3. Division the third .. .. .. ..

1. Positive, or affirmative, facts .. ..

2. Negative facts .. .. .. .. .. ..

Positive facts the only really existing facts .. .. ..

Sources of persuasion of the existence or non-existence of facts ..

Evidence ab intrà .. .. .. .. .. .. ..

Evidence ab extrà .. .. .. .. ..

Natural tendency of the mind to believe human testimony ..

One great cause of this—the preponderance of truth over falsehood

Questionable if this is the sole cause .. ..
Sanctions of truth .. .. .. .. ..


1. The natural sanction .. .. ..

Nature of .. .. .. ..

.

According to Bentham .. ..

According to Bonnier .. ..

The sympathetic sanction, a branch of it ..

2. The moral sanction .. .. .. ..

One great objection to this sanction ..

3. The religious sanction .. .. ..

The punishment being invisible detracts

this sanction .. .. ..

Powerful influence of them

Sometimes produce falsehood instead of truth

Credit due to human testimony .. .. .. ..

1. Intention of witness to narrate truly ..

1. Interest or bias .. .. .. ..

2. Veracity on former occasions .. ..

3. Manner and deportment .. .. ..

2. Capacity of witness .. .. .. ..

1. Opportunities of observing the matters narrated

2. Powers of perception and observation ..

3. Importance of the circumstances narrated

4. Memory .. .. .. .. .. ..

Concurrent and conflicting testimonies .. .. .. ..

Things to be considered when weighing testimony

1. Consistency of the narration .. .. .. ..

2. Possibility and probability of the matters related ..

Impossibility is either physical or moral

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