1

received as due evidence of the original. Under these circumstances, the plaintiff in an English court tendered his copy of the charter-party as evidence of the contract, but the Court held that it was inadmissible, on the ground that English judges could not adopt a rule of evidence from foreign courts. Several other cases could be cited to the same effect; and in all, the distinction is recognised between the cause of action, which must be judged of according to the law of the country where it originated, and the mode of proceeding, including of course the rules of evidence, which must be adopted as it happens to exist in the country where the action is brought."

Trimbey v. Vignier, 1 Bing. N. C. 151; Huber v. Steiner, 2 Bing. N. C. 202; British Linen Co. v. Drummond, 10 B. & C. 903; Appleton v. Lord Braybrook, 2 Stark. R. 6; 6 M. & Sel. 34, S. C.; Black v. Lord Braybrook, 2 Stark. R. 7; 6 M. & Sel. 39, S. C.; Don v. Lippmann, 5 Cl. & Fin. 1, 13-17; Leroux v. Brown, 12 Com. B. 801.

21 Smith, Lead. Ca. 167. See also Story, Confl. of Laws, §§ 657, et seq., & 629–636.

CHAPTER IV.

THE GROUNDS OF BELIEF.

$42. WE proceed now to a brief consideration of the General Nature and Principles of Evidence. No inquiry is here proposed into the origin of human knowledge; it being assumed, on the authority of approved writers, that all that men know is referable, in a philosophical view, to perception and reflection. But, in fact, the knowledge acquired by an individual through his own perception and reflection, is but a small part of what he possesses; much of what we are content to regard and act upon as knowledge, having been acquired through the perceptions of others." It is not easy to conceive, that the Supreme Being, whose wisdom is so conspicuous in all his works, constituted man to believe only upon his own personal experience; since, in that case, the world could neither be governed nor improved; and society must remain in the state in which it was left by the first generation of men. On the contrary, during the period of childhood we believe implicitly almost all that is told us; and thus are furnished with information, which we could not otherwise obtain, but which is necessary at the time for our present protection, or as the means of future improvement. This disposition to confide in the veracity of others, and to believe what they say, may be termed instinctive. At an early period, however, we begin to find that of the things told to us some are not true; and thus our implicit reliance on the testimony of others is weakened; first, in regard to particular things, in which we have been deceived; then in regard to persons, whose falsehoods we have detected; and, as these instances multiply upon us, we gradually become more and more distrustful of statements made to us, and learn by experience the necessity of testing them by certain rules.' "Confidence," exclaimed Lord Chatham on a memorable occasion, "is a plant of slow growth

in an aged bosom;" and, indeed, it may be generally observed, that, as our ability to obtain knowledge by other means increases, our instinctive and indiscriminate reliance on testimony diminishes, by yielding to a more rational belief. Still, in every

1 * Gambier's Guide, 87; M‘Kinnon's Philos. of Evi., 40. This subject is treated more largely by Dr. Reid in his profound Inquiry into the Human Mind, c. 6, § 24, p. 196, 197, of his collected Works, in these words :"The wise and beneficent Author of Nature, who intended that we should be social creatures, and that we should receive the greatest and most important part of our knowledge by the information of others, hath, for these purposes, implanted in our nature two principles, that tally with each other. The first of these principles is a propensity to speak truth, and to use the signs of language, so as to convey our real sentiments. This principle has a powerful operation, even in the greatest liars; for where they lie once they speak truth a hundred times. Truth is always uppermost, and is the natural issue of the mind. It requires no art or training, no inducement or temptation, but only that we yield to a natural impulse. Lying, on the contrary, is doing violence to our nature; and is never practised, even by the worst men, without some temptation. Speaking truth is like using our natural food, which we would do from appetite, although it answered no end; but lying is like taking physic, which is nauseous to the taste, and which no man takes but for some end, which he cannot otherwise attain. If it should be objected, that men may be influenced by moral or political considerations to speak truth, and therefore, that their doing so is no proof of such an original principle as we have mentioned; I answer, first, that moral or political considerations can have no influence, until we arrive at years of understanding and reflection; and it is certain from experience, that children keep to truth invariably, before they are capable of being influenced by such considerations. Secondly, when we are influenced by moral or political considerations, we must be conscious of that influence, and capable of perceiving it upon reflection. Now, when I reflect upon my actions most attentively, I am not conscious, that in speaking truth I am influenced on ordinary occasions by any motive moral or political. I find, that truth is always at the door of my lips, and goes forth spontaneously, if not held back. It requires neither good nor bad intention to bring it forth, but only that I be artless and undesigning. There may indeed be temptations to falsehood, which would be too strong for the natural principle of veracity, unaided by principles of honour or virtue; but where there is no such temptation, we speak truth by instinct; and this instinct is the principle I have been explaining. By this instinct, a real connection is formed between our words and our thoughts, and thereby the former become fit to be signs of the latter, which they could not otherwise be. And although this connection is broken in every instance of lying and equivocation, yet these instances being comparatively few, the authority of human testimony is only weakened by them, but not destroyed. Another original

* Gr. Ev. § 7. n. verbatim.

period of life, and in every state of intellectual culture, man is instinctively more prone to believe, than to disbelieve, the testimony of others, and this disposition towards credulity may be

principle, implanted in us by the Supreme Being, is a disposition to confide in the veracity of others, and to believe what they tell us. This is the counterpart to the former; and as that may be called the principle of veracity, we shall, for want of a proper name, call this the principle of credulity. It is unlimited in children, until they meet with instances of deceit and falsehood; and it retains a very considerable degree of strength through life. If nature had left the mind of the speaker in equilibrio, without any inclination to the side of truth more than to that of falsehood, children would lie as often as they speak truth, until reason was so far ripened, as to suggest the imprudence of lying, or conscience, as to suggest its immorality. And if nature had left the mind of the hearer in equilibrio, without any inclination to the side of belief more than to that of disbelief, we should take no man's word, until we had positive evidence that he spoke truth. His testimony would, in this case, have no more authority than his dreams, which may be true or false; but no man is disposed to believe them, on this account, that they were dreamed. It is evident, that, in the matter of testimony, the balance of human judgment is by nature inclined to the side of belief; and turns to that side of itself, when there is nothing put into the opposite scale. If it was not so, no proposition, that is uttered in discourse would be believed, until it was examined and tried by reason: and most men would be unable to find reasons for believing the thousandth part of what is told them. Such distrust and incredulity would deprive us of the greatest benefits of society, and place us in a worse condition than that of savages. Children, on this supposition, would be absolutely incredulous, and therefore absolutely incapable of instruction; those who had little knowledge of human life, and of the manners and characters of men, would be in the next degree incredulous; and the most credulous men would be those of greatest experience, and of the deepest penetration ; because, in many cases, they would be able to find good reasons for believing testimony, which the weak and the ignorant could not discover. In a word, if credulity were the effect of reasoning and experience, it must grow up and gather strength, in the same proportion as reason and experience do. But if it is the gift of nature it will be strongest in childhood, and limited and restrained by experience; and the most superficial view of human life shows, that the last is really the case, and not the first. It is the intention of nature, that we should be carried in arms before we are able to walk upon our legs; and it is likewise the intention of nature, that our belief should be guided by the authority and reason of others, before it can be guided by The weakness of the infant, and the natural affection of the mother, plainly indicate the former; and the natural credulity of youth and authority of age as plainly indicate the latter. The infant, by proper nursing and care, acquires strength to walk without support. Reason hath likewise her infancy, when she must be carried in arms; then she leans

our own reason.

regarded as a fundamental principle of our moral nature, implanted in us by the Almighty for the wisest and most beneficent purposes. As such it constitutes the general basis upon which all evidence may be said to rest.

§ 43. Subordinate to this paramount and original principle, it may, in the second place, be observed, that evidence rests upon our faith in human testimony, as sanctioned by experience; that is, upon the generally experienced truth of the statements on oath of men of integrity, having capacity and opportunity for observation, and without apparent influence from passion or interest to pervert the truth. This belief is strengthened by our knowledge of the narrator's reputation for veracity and intelligence, by the absence of conflicting testimony, and by the presence of that which is corroborating and cumulative."

§ 44. It is obvious, that, in the hasty progress of a trial at

entirely upon authority, by natural instinct, as if she was conscious of her own weakness; and without this suppprt, she becomes vertiginous. When brought to maturity by proper culture, she begins to feel her own strength, and leans less upon the reason of others; she learns to suspect testimony in some cases, and to disbelieve it in others; and sets bounds to that authority, to which she was at first entirely subject. But still, to the end of life, she finds a necessity of borrowing light from testimony, where she has none within herself, and of leaning, in some degree, upon the reason of others, where she is conscious of her own imbecility. And, as in many instances Reason, even in her maturity, borrows aid from testimony; so in others she mutually gives aid to it and strengthens its authority. For, as we find good reason to reject testimony in some cases, so in others we find good reason to rely upon it with perfect security in our most important concerns. The character, the number, and the disinterestedness of witnesses, the impossibility of collusion, and the incredibility of their concurring in their testimony without collusion, may give an irresistible strength to testimony, compared to which its native and intrinsic authority is very inconsiderable." Gr. Ev. § 10, nearly verbatim.

1

2 Archbishop Whately, in his admirable jeu d'esprit, entitled, "Historic Doubts relative to Napoleon Buonaparte," has clearly stated the main tests of human veracity "I suppose," says he, "it will not be denied that the three following are among the most important points to be ascertained, in deciding on the credibility of witnesses; first, whether they have the means of gaining correct information; secondly, whether they have any interest in concealing truth, or propagating falsehood; and, thirdly, whether they agree in their testimony."-P. 14, 6th ed.