CHAP. I. coloured, and the rays passing through it distorted. "Who," says Lord Bacon, "will undertake, when the particulars of a man's own knowledge or memory appear only on one side, that something directly opposite shall not lie concealed on the other ” (1).

Sufficient certainty

attainable for practical purposes.

Evidence foundation of all just conclusion.

It has been remarked by a French philosopher that some one event or diversion might change the whole course of after-time (2). So a single flaw in the process of induction might derange the apparently least faulty and best constructed theory. One fact omitted, one erroneous influence given to another, and the whole chain of reasoning, through which a conclusion had been arrived at, might fail.

Mankind is not in this respect further advanced than it was in the days of the author of the Essay on the Human Understanding; and "he," said Locke, "that, in the ordinary affairs of life, would admit of nothing but direct plain demonstration, would be sure of nothing in this world but of perishing quickly. The wholesomeness of his meat or drink would not give him reason to venture on it, and I would fain know, what it is he could do upon such grounds, as are capable of, no doubt, no objection ?” (3).

Though absolute certainty is but sparingly given to human sagacity to achieve, enough has been granted us to guide our conclusions, to a result sufficiently exact for every practical exigence; and under ordinary circumstances, all that is required is a knowledge of the facts, so far as they are fairly and reasonably capable of being collected, and an honest exercise of the reasoning faculty upon them.

As it is upon the facts that our conclusions should rest, and the facts, again in their turn, before they can be admitted as such. into the mind, depending on their proof, it follows that a knowledge, more or less ample, of the principles of evidence lies at the root of all just conclusion.

Indeed, in arriving at its decisions, the mind has to exercise a two-fold operation; first of deciding for itself the credit due to the supposed facts of the case; and then of determining what inference is to be deduced from those to which it yields its credence.

(1) Advancement of Learning, Book V, C. II, p. 186.

(2) "Un seul pas trouble souvent la marche du Temps."-Condorcet: Esquisse de l'esprit humaine.

(3) Locke on the Human Understanding, Book IV, C. 11, Sec. 10.

The field of our enquiry must be confined to the principles _CHAP. I. of evidence which enter into and form part of the Judicial system: but, as these may claim for their basis the broad foundation of experience, and a philosophical adaptation of its results, the principles which prevail in our law of evidence would, in the main, afford a safe guidance in any other or more general investigation.

Evidence in

Evidence, in the popular sense of the word, is that on which Meaning of the manifestation to the mind of any given fact rests. In propor- popular sense. tion to the force of the evidence, is, or ought to be, our belief of the fact itself.

It is remarked by Mr. Wills-" Every conclusion of the Judgment, whatever may be its subject, is the result of EVIDENCE,-a word which (derived from words in the dead languages signifying 'to see,'' to know') by a natural transition is applied to denote the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved” (1).

So Mr. Best-Evidence, taken in its largest and most comprehensive sense, has been accurately defined to be any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion therein affirmative or disaffirmative of the existence of some other matter of fact; the latter of which may be called the principal fact, and the former the evidentiary fact; and when the persuasion is at its highest point, the principal fact may, in a more expressive way, be termed the fact proved,' and the evidentiary the 'probative fact'" (2).

between

It will be obvious from these definitions that the Logicians Distinction speak with accuracy when they ascribe to the word proof the Evidence and meaning rather of the effect of evidence, than of evidence itself,- Proof. a distinction pointed out by Archbishop Whately in his Treatise on Logic when he says, "The term proof is often confounded with that of evidence, and applied to denote the medium of proof; whereas in strictness it marks merely the effect of evidence. When the result of evidence is undoubting assent to the certainty of the event or proposition which is the subject-matter of enquiry, such event or proposition is said to be proved; and according to the nature of the evidence on which such conclusion is grounded, it is either known or believed to be true "(3).

(1) Wills on Circumstantial Evidence, p. 2.

(2) Best on Presumption, p. 7.

(3) Whately's Logic, Book IV, C. III, Sec. 1.

CHAP. I.

The proposition of Archbishop Whately is well illustrated by Mr. Best, in continuation of the passage from his work just cited:" Hence it is clear," he observes, "that evidence of a fact and proof of it are not synonymous terms. Proof (using the word in the sense of persuasion or belief brought in the mind) is the perfection of evidence; without evidence there can be no proof, although there may be evidence which does not amount to proof. Take the case, for instance, of a man found murdered at a spot towards which another had been seen walking a short time before; this would be EVIDENCE to show that the latter was the murderer, but, standing alone, would be far from PROOF of it."

It cannot be denied, however, that in common parlance, and even in legal phraseology, the two expressions are often confounded.

Terms 'Factum By writers on Evidence the subject of proof has been termed probandum,' Evidentiary the Factum probandum, or matter to be proved; the means of fact,' 'Probative force.' proof have been styled the Evidentiary facts; the extent to which any individual material of evidence aids in the establishment of the general proof, is called its Probative force. These are distinctive appellations, which, though terms only, may help to clearness of apprehension, and accordingly it will be well to keep them in view.

Distinctive demand of proof for

ordinary

one.

In much to which the mind yields its belief, the proof is derived from somewhat wide sources, and with little of defined purposes, and rule for determining its quality. We admit the existence of facts, for the judicial stated to have occurred in former times, in credence of what is called historic truth; of present ones, often on public report, or private hearsay; in many cases, acting on mere personal impression of probability, without applying any standard probationary test. And in matters of less importance the evidence suffices for the exigence. Indeed, it may happen, particularly in reference to the events of a by-gone period, that, though a scrutiny of the individual facts can be but sparingly exercised, the means of an accurate analysis may be wanting, yet within the wide range of an entire narrative, a volume of proof may be presented, carrying with it such an aggregate force as apparently to defy resistance. Often, too, we arrive at our conclusions, rather in adoption of those of others than upon any actual investigation of our own; and what is said by Professor Austin, in reference to the world of science, is frequently alike true in regard to that of fact:"Little of any man's knowledge," says he, "is gotten by original

research. It mostly consists of results gotten by the researches of others, and taken by himself upon testimony.

"And in many departments of science, we may safely rely upon testimony: though the knowledge which we thus obtain is less satisfactory and useful than that which we win for ourselves by direct examination of the proofs.

"In the mathematical and physical sciences, and in the arts which are founded upon them, we may commonly trust the conclusions which we take upon authority. For the adepts in these sciences and arts mostly agree in their results, and lie under no temptation to cheat the ignorant with error. I firmly believe (for example) that the earth moves round the sun, though I know not a tittle of the evidence from which the conclusion is inferred; and my belief is perfectly rational, though it rests upon mere authority. For there is nothing in the alleged fact contrary to my experience of nature, whilst all who have scrutinized the evidence concur in affirming the fact, and have no conceivable motive to assert and diffuse the conclusion, but the liberal and beneficent desire of maintaining and propagating the truth" (1).

The evidence, however, which we are usually content to accept for our own guidance in matters of private opinion, ordinary conduct, or even in the business transactions of life, far from suffices for the Judicial office. The Judicial tribunal has a peculiar, a high, nay the highest demand imposed on it for the soundness of its conclusions—the solemn responsibility of administering justice. In civil cases it has to deal with conflicting interests specially confided to its arbitrament, often of great variety, extreme complexity, and of large stake to the litigants; in criminal ones even life or death may hang on its decision. Yet it may have to exercise its functions with possibly but a narrow compass only of facts, from which to derive its conclusions; and at those conclusions it must come with a promptitude which brooks no delay for afterthought, or further consideration. Its very province is to ascertain the truth, and within the compass of time allotted to a Judicial trial; and to ascertain this, both in its certainty and its exactitude; meting out to others the result of its own convictions; while miscarriage may be fraught with the most important results, alike to individuals and to society.

(1) Province of Jurisprudence Determined, 2nd edition, p. 56.

CHAP. I.

CHAP. I.

Judicial conclusion, one

It is obvious that, under such circumstances, the material on which a Court of Justice allows itself to form its Judgment must be matter of nice discrimination; and where deficiency might exist in the quantity it must be made up for by the quality.

We have used above the expressions certainty' and 'exactiof probability tude' in reference to the Judicial conclusion: we must be underonly. stood to mean that amount only of each which is practically attainable. With all its vigilance, a Court can rarely arrive at its conclusions without risk of error. It may do its best towards an approximation to certainty, but as well pointed out by Professor Greenleaf;-" The true question in trials of fact, is not, whether it is possible that the testimony may be false, but, whether there is sufficient probability of its truth; that is, whether the facts are shewn by competent and satisfactory evidence. Things established by competent and satisfactory evidence are said to be proved" (1).

Distinction between

Dr. Greenleaf then goes on to add a distinction very important competent and to be borne in mind whenever the point of proof comes into discussion.

satisfactory Evidence.

Contrast between

principles of

exclusion and

of admission.

"By competent evidence is meant that which the very nature of the thing to be proved requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of enquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof, which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are suspectible, is their sufficiency to satisfy the mind and conscience of a common man; and so to convince him that he would venture to act upon that conviction, in matters of the highest concern and importance to his own interest."

In its demand for competent and satisfactory proof, the Court may adopt, in some larger or smaller degree, one of two opposite principles for its guidance. On the one hand, it may throw open its doors to materials of information from whatever source coming, taking on itself the decision of their value; their admission, as an element of Judgment, in so far as they are deemed reliable; and their rejection in so far as they are not. On the other hand,

(1) Greenleaf on Evidence, 5th edition, p. 4.