CHAP. II. science of the Judge, they are unnecessary for the protection of the innocent, and effective only for the impunity of the guilty” (1). Mode of weighing testi ing to Hindu Law. These observations were elicited in a criminal trial, and were addressed to a Jury; but they would equally apply to any civil procedure-and that whether the decision of the matter of fact was intrusted to a Jury or rested with the Judge. The ancient Hindu Law as it prevailed in some parts of India mony accord- prescribed a mode of weighing testimony which would probably have been viewed by the Chief Baron as casting even the Continental formulæ into the shade. The Hindu Code had reference however rather to a conflict of testimony among the witnesses, than to the adjustment of the different values of varying matters of proof. Existence of broad tests of value. Classification of tests, as affecting Personal Credibility or the Testimony itself. Division as to Circumstances 6 "In a contradiction," says the Mitacshara, "the assertion of the majority; where the numbers are equal, that of the respectable party; where there is contradiction among respectable witnesses, that of the most respectable. Respectability' being ascribed to those endued with a knowledge of revealed law, who shape their conduct accordingly, who have children, wealth, and virtuous qualities!!" (2). But while it would be hopeless to attempt to reduce the effect of evidence to a system, there nevertheless exist some broad tests capable of being applied with advantage towards determining the value of testimony generally; and these we proceed to point out. They naturally divide themselves into those affecting the credibility of the witnesses individually, and those, regard being had to its nature or subject, affecting the testimony itself. To a certain extent no doubt, whatever the testimony may be, it cannot but be affected by the credibility of the witnesses. Still an obvious distinction will be perceived between that which is personal to the parties from whom the evidence proceeds, and that which is peculiar to the testimony; and we accordingly treat the subject under these two separate divisions. First as to the personal credibility of the witnesses ;—though it must be premised that what is here dealt with is credibility in its more popular view only, the artificial discredit in particular instances which the rules of law have proclaimed, are reserved for the more technical portion of the work. (1) R. V. Manning, Wills, 210. (2) Macnaghten's Hindu Law, Vol. I, p. 252. Now the personal credibility of every witness may be affected CHAP. II. either by a condition of things common to all deponents generally, or by circumstances individual in respect to each. to all. Examination. The condition of things common to all, to which we refer, is to What common be sought mainly in the constitution of the Court in which the Publicity, testimony is delivered; and the sanctions for veracity afforded in Oath, Separation, its machinery; and as the more prominent of these, at all events Mode of in the Courts of England, may be stated provisions to enforce the public delivery of the testimony (1)—its delivery upon oath or under corresponding solemnity-the separation or keeping apart of the witnesses when occasion may require it; and a fitting and fair course of examination for eliciting the testimony. The last, beyond this general notice, we pass over for the present. It will be found to resolve itself mainly, on the one hand, into the security for the testimony being natural, afforded in the shutting out dictation to the witness, by putting into his mouth the answer desired of him through the medium of a course of suggestive, or as it is termed 'leading,' interrogation; and on the other, the sanction both for knowledge and veracity, supplied by the scrutinizing power of cross-examination. These, connected as they are with the more technical parts of the treatise, will form matter for separate chapters, and their discussion is therefore reserved. To advert then, subject to this omission, to the condition of Publicity. things common to all deponents generally, let us address ourselves first to the sanction for veracity existing in the public delivery of the testimony. “Publicity,” says Mr. Bentham, "is the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes, with the exception of a few, which will be noticed in the following chapter. "1. In regard to the witnesses, the publicity of the examination awakens all mental faculties which should concur to produce a faithful statement, particularly attention, so necessary to recollection. The solemnity of the scene puts them on their guard against thoughtlessness or indolence. There may be some, who are agitated from natural timidity; but this disposition, which is (1) In India, persons may be exempted, by reason of rank or of sex, from personal attendance in Court whether as parties or witnesses-Sections 21, 22, and 175, Act VIII of 1859. CHAP. II. never mistaken, acts only during the first moments, and betrays nothing unfavourable to the truth. The oath. The spiritual sanction. "2. But the great influence of publicity is exercised on the veracity of the witness. Falsehood may be bold in a secret examination; it is difficult for it to be so in public; it is even extremely improbable, with any but the utterly depraved. When every eye is fixed upon a witness, he is disconcerted if he has formed a plan of imposture; he feels that the untruth, which he is about to state, may find a contradiction in every one who hears him. A countenance which he knows, and a thousand others which he does not know, disturb him equally; and he imagines, in spite of himself, that the truth, which he is seeking to suppress, will come forth from the very bosom of the auditory, and expose him to all the dangers of false testimony; he feels at least, that there is one punishment from which he cannot escapeshame in the presence of a crowd of spectators. It is true, that, if he belong to a mean class, his very meanness saves him from shame; but witnesses of this class are not the most numerous, and one is naturally on his guard against their testimony" (1). The passage quoted alludes to exceptional cases in which public examination might be dispensed with. These however in no way trench upon the soundness of the general principle. They are merely instances in which the term examination not in secret, but in private, would be put in opposition to that of public, and they are those where the publicity is only dispensed with out of consideration to a paramount and controlling policy; as, for instance, cases involving uncalled for exposure of domestic affairs, or those of an indecent or scandalous nature, as rape, incest, or the like. As a general result, few will dispute the superiority of evidence taken in open court over that which is obtained under a commission, executed as the latter necessarily is in private. The next sanction for veracity is that which requires the testimony to be delivered under the solemnity of an oath or (where The temporal. this is permitted) a declaration in its stead; and this amounts to a solemn invocation of the Deity to the truth of the testimony by the witness; with an imprecation of the Divine vengeance on himself in case of its falsehood. But the sanction involved in the pledge does not stop at the religious invocation. It is composed of (1) Judicial Evidence, p. 67. two elements, the temporal and the spiritual; the former the CHAP. II. exposure which false testimony would involve to the penalties of perjury in this world; the latter that of its punishment in the world to come. In addition to these, a third has been suggested; the sanction of honor, or the fear of the infamy which attaches to an untruth told upon oath; and it may be not without its influence. It is a sanction, however, not much adverted to by English lawyers generally. "The first great safeguard," says Mr. Starkie, "which the law provides for the ascertainment of the truth in ordinary cases, consists in requiring all evidence to be given under the sanction of an oath. This imposes the strongest obligation upon the conscience of the witness to declare the whole truth that human wisdom can devise; a wilful violation of the truth exposes him at once to temporal and to eternal punishment" (1). We shall hereafter see that there are certain exceptional instances in which a declaration is allowed to supply the place of an oath; but this, if not practically an oath in another form, still carries with it all the obligations of the oath, and all its penalties, whether spiritual or temporal (2). tion. Among any people acknowledging either a moral responsi- Question as to bility, or a regard to even temporal consequences, one would have religious sanealmost thought it sufficient to mention the sanction, to carry with it a conviction of its importance. But a no less eminent Jurist than the one we so freely quote, Mr. Bentham, in common with some others, has treated somewhat lightly the guarantee involved in the religious portion of the ceremony, though mainly from the frequency of its practical prostitution. In reference to any country, however, owning the obligation of truth, though the effect of the oath may have been occasionally exaggerated, on the whole, we believe that, among thinking persons generally the asserters of this theory would be left but in a small minority in their contention. To a well constituted mind, a wilful falsehood, it may be admitted, would be a sheer impossibility, albeit without such a security for truth. But there are minds to which the influence of the spiritual invocation, to say nothing of the temporal sanction, (1) Starkie on Evidence, p. 29. (2) See post, Chapter IV; and see especially 32 & 33 Vict., c. 68 (there cited) which has been enacted to meet the case of a person who objects to take an oath, or is objected to as incompetent to take one. CHAP. II. might be a very wholesome addition to an ordinary prompting; and certainly the more solemn the occasion, and that perhaps even with the most truthful, the more are care and caution in statement awakened. It is a matter of familiar experience that people are often found advancing statements in private or ordinary conversation which they would scruple to sustain if put on their oath. Indeed, if we may trust the testimony of Lactantius cited by Lord Chief Justice Willes, in his celebrated judgment in Omichund v. Barker" some in his time" (that of Lactantius) "who were so very wicked as not to be afraid of even committing murder, yet had such a veneration for an oath, and such a dread of being forsworn, that when purged upon their oath, they durst not deny the fact” (1). Testimony of If the value which differing ages and varying countries have attached to the sanction of an oath be taken as any criterion of its value, it certainly cannot be regarded as inconsiderable. "The next security," says Mr. Best, "is a very remarkable one, and consists in requiring all evidence in courts of justice to be given on oath-according to the maxim "In judicio non creditur nisi juratis" (2). Oaths, however, it is well known, are not peculiar to courts of justice, or are they even the creatures of municipal law-having been in use before societies were formed or cities built; and the most solemn acts of political and social life being guarded by their sanction-" Non est arctius vinculum inter homines quam jus jurandum" (3). And however abused or perverted by ignorance or superstition, an oath has in every age been found to supply the strongest hold on the consciences of men, either as a pledge of future conduct or as a guarantee for the veracity of narration" ” (4). In the judgment of Chief Justice Willes, in Omichund v. Barker, he states:-" Oaths were instituted long before Christianity, were made use of to the same purposes as now, were always held in the highest veneration, and are almost as old as the creation." For the latter proposition he cites the contracts recorded in the Jewish scriptures between Isaac and Abimelech and between Jacob and Laban, which were confirmed by mutual (1) The curious will find in this judgment a very elaborate investigation both jurisprudential and historical of the general subject of oaths. It is reported, Willes, 545, and is also to be found in Smith's Leading Cases, Vol. I, page 398. (2) "Credence is only given to the sworn." (3) "There is no closer bond between men than an oath." (4) Best on Evidence, p. 62. |