oaths, and various other examples taken from the histories and CHAP. II. the literature of Greece and Rome. To address ourselves to Courts of Justice only, we may add that the oath prevailed in ancient Rome, where the witness holding a stone in his hand dropped it as he uttered the words, which, being translated into English, were "If knowingly I forswear myself, then the City and Capitol being safe, let Jupiter thrust me out from among all good men as I do cast this stone" (1). So it was adopted under the Christian Emperors, the name of the Omnipotent God being invoked. If the laws of Confucius are to be expounded by the history of English Courts of Justice, the Chinese, too, as we shall hereafter see, possess their oaths. The Jurisprudence, we believe of the whole of Modern Europe, of America, and of the entirety of the British dominions, alike recognizes the sanction. If we turn to India, even prior to the introduction of English rules, we find that the Laws of Menu had their oath too; and in point of form, that prescribed by Menu is not very different from the English one :— "What you know to have been transacted in the matter before us, between the parties reciprocally, declare at large, and with truth" (2). The imprecatory part too of the oath of Menu, if not framed exactly in conformity with the varying code of the religious belief of the swearers, was nevertheless in a form adapted to the peculiarities of the influences by which each individual might be presumed to be most affected. "Let the Judge cause a Priest to swear by his veracity; a Soldier by his horse or elephant and his weapons; a Merchant by his kine, grain, and gold; a Mechanic or servile man by imprecating on his own head, if he speak falsely, all possible crimes." The meaning is: he shall adjure a Brahmin by saying, If you speak falsely, your truth will be destroyed; a Cshetrya, by saying, Your horse or elephant and weapons will become useless; a Vaisya, Your cattle, seeds and gold will be unproductive; a Sudra he shall adjure by saying, If you speak (1) Adams' Antiquities, 247," Si sciens fallo, tum me diespeter, salvâ urbe arceque bonis ejiciat, ut ego hunc lapidem." (2) Strange's Hindu Law, 318; Menu, Chapter viii, 80. CHAP. I. falsely, all sins will be on your head (1);-a course of imprecation which seems to address itself rather to the punishment of a present life than a future one. This however appears not to Separation of the witnesses. 1 have been the only course of swearing. According to Mr. Beaufort, the form of swearing by the water of the Ganges, and by copper and toolsy, is virtually sanctioned by many shasters; but other prescribed forms are of equal validity; and all oaths, made by laying the hand on any symbol or image of the Deity have the same obligation (2). The old Mahomedan Law indeed, as administered in India, did not require the oath to give validity to the evidence, even in judicial cases; but it contained no prohibition against it (3). Extensively as native false testimony must be admitted to prevail in the courts of India, it would be probably even worse were the sanction dispensed with; and certainly as regards the influences of a temporal punishment or its fears, some proceedings against false testimony in the Supreme Court of Calcutta, coupled with the decisive attitude its Judges assumed on the subject (4), is said not to have been without a considerable effect on the native mind; though it has been doubted whether the development of this wholesome principle has not been less the purifying the Temple of Justice than the emptying it of its suitors. The security for veracity involved in keeping the different witnesses apart,-that is to say, keeping the rest out of Court while the examination of any other of them is going on,-is too obvious to require more than a passing notice. To hear how a tale is told by one, is but to give shape to the testimony of all;— to avoid the shoal, by learning where the quicksands lie. It is true that preconcert in its broader outline, would naturally precede the day of trial and the appearance of the witnesses in Court; and an antecedent drill, there are no means of preventing. But falsehood, however well dressed up, wears a cloven foot, which in the long run is pretty sure to betray its ugliness; and, ingenious and complete, within its limits, as the drilling of the tutored may be, few false tales are found in practice so perfect as not to break down by their contradiction, when each (1) Macnaghten's Hindu Law, Vol. I, p. 248. (3) Ibid. (4) The same may be said of the High Court and its Judges. individual confederate being kept out of hearing of the others, CHAP. II. the tale gets sifted in its minuter details. Against an examination such as this few straw,' or, as termed in India, bazar witnesses would be proof. An historical illustration of the principle, often cited on the Illustration. subject, is furnished in a story of remote antiquity to be found in the Hebrew Scriptures, in the history of Susannah and the Elders. The wife of Joacim, having rejected the advances of the two old libidinous judges, they, to avenge themselves, got up a charge of adultery against her, of which they affected to be eye-witnesses. The perjury of their testimony was discovered by their examination apart from each other. They differed as to the place where the crime was committed (what English lawyers would term the 'locus in quo') one affirming it to have been under a mastick, the other a holm tree. It may be presumed indeed that the circumstances rendered this discrepancy a material one. Otherwise a mere difference in the description of the tree might have been accounted for on a theory which might have left the main testimony unimpeached. So established a principle of English Jurisprudence is that of Early principle of English Law. keeping the witnesses apart in the way suggested, that it is noticed so long ago as, and by Fortescue, in his Treatise on the Laws of England (1), written for the instruction in those laws of his royal pupil, afterwards King Henry the VI. witnesses. To these sanctions has been suggested the addition of another, Confronting namely that which consists in confronting the witnesses with each other. "In former times," says Mr. Taylor, "when the evidence of witnesses, called on opposite sides was directly conflicting, the Court would often direct that the witnesses should be confronted; and on one remarkable occasion, no less than four witnesses were for this purpose placed together in the box. This practice which is still recognized in the Ecclesiastical Courts and Court of Probate, and which still prevails largely in the County Courts, where it is often productive of highly useful results, has, for some unexplained reason, grown into comparative disuse at Nisi Prius. This is to be regretted, for the practice certainly affords an excellent opportunity of contrasting the demeanor of the opposing witnesses, and of thus testing the credit due to each; while it also furnishes (1) De Laudibus Legum Angliæ, C. 26. CHAP. II. the means of explaining away an apparent contradiction, or of rectifying a mistake, where both witnesses have intended to state nothing but the truth” (1). Sanctions for personal credibility individual to witness. Prominent features. Mr. Taylor adds in a note, by way of illustration, a case borrowed from American Jurisprudence, where the erroneous, but persisting, deposition of a witness as to the credit of a given firm, was set to rights by a correction, coming out on his being confronted with another witness, whose explanation as to a change which had taken place in the membership of the firm, reversed the whole effect of the previous inaccurate statement. To turn to the other branch of personal credibility,-the circumstances affecting the value of testimony individual to the witness; and by these circumstances, we mean those which, apart from the machinery of the court, might be supposed influential on himself. In their broader outline these are not more happily, than concisely, summed up by Archbishop Whately in his " Historic Doubts," when he says: "I suppose it will not be denied that the three following are 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 interest in concealing truth or propagating falsehood; and thirdly, whether they agree in their testimony" (2). As applied to the case of a single witness, the whole matter is also well put by Mr. Best:-" The credit due to human testimony, assuming 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" (3). 'Means of gaining information' would of course imply, not only the original personal knowledge of the witness, but his existing recollection of the facts; interest,' or rather its absence, would involve freedom from personal bias in the issue, whether in concern for himself or concern for others; and 'agreement' would be the substantial agreement, under circumstantial variety, to which we shall presently advert as one of the tests of veracity. (1) Taylor on Evidence, p. 1280. (2) Page 14, 6th Edition. (3) Best on Evidence, p. 18. To these tests may be added as minor, yet still highly impor- CHAP. II. tant, accompaniments the character of the witness, of which, Minor tests. station in life and inadequacy of temptation to depart from the truth will form elements; his intelligence; his demeanor under examination; the relative simplicity or inflation of his narrative; its clearness or indistinctness; its straight-forwardness or tortuosity; the dispassion or excitement under which it is delivered; and, almost above all, the adherence of the witness to it, under the testing ordeal of a vigorous and well directed cross-examina tion. Of all tales to tell the true one is that which might be expected Truth easier to to be told with the least apparent effort. tell than falsehood. Reid. "To say," observes Mr. Bentham, "that the natural sanction Bentham. operates in favor of truth, is to say, that, setting aside all political and religious punishments, and even shame and contempt, still there is a punishment which attends falsehood, a punishment which is not of human institution, which acts immediately on the witness, and disposes him to tell the truth when there is no more powerful counter-motive. "This punishment consists in the effort, in the mental labour, which a falsehood costs. Truth comes of its own accord, and places itself spontaneously on the lips of the witness; a sort of violence, a sort of struggle must be used in order to remove it, and to substitute the falsehood which is opposed to it. Now it is natural to avoid the rugged path and take the more easy road. The motive is, the love of ease; a motive which frequently acts without our knowing it, but whose influence is greater than is commonly believed. Let us see, how it operates in the case of testimony. "To report a fact such as it presents itself to the mind is the work of memory; to report, as a real fact, circumstances which never existed, is the work of invention. Whatever degree of pain may be attached to the operations of reminiscence, when the object is to express real facts, much more is always required to combine imaginary facts. In a word, the labour of invention is more painful than that of memory" (1). So Dr. Reid in his Inquiry into the Human Mind :-" Truth is always uppermost, and is the natural issue of the mind. It requires no art or training, no inducement or temptation, but (1) Judicial Evidence, p. 29. |