CHAP. II. only that we yield to a natural impulse. Lying, on the contrary, is doing violence to our nature, and is never practised 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" (1). The apparent ease with which any testimony was given would be thus one great test of its deponent's credibility; though it cannot be denied that it is sometimes matter of nice discrimination to distinguish between the ease of truth, and the audacity of falsehood. If it cost an effort to launch, it must ever cost a still greater one to sustain, a tale of falsehood. But not only is truth the easier to tell; its promptings would naturally induce a clear and intelligible enunciation; just as he who best knows his subject ordinarily speaks or writes best upon it. Obscurity accordingly, though occasionally attributable to other causes, as for instance want of mental power, or of facility of expression, is more likely to be the subterfuge of the cunning witness, and Mr. Bentham has well observed: "To these deviations from what constitutes good testimony, another must be added-indistinctness. "Indistinctness may be the effect of incapacity, ignorance, or precipitation; but it is likewise the most ordinary resource of bad faith, and among its surest means of success. "There are cases, in which an indistinct deposition may have the effect of a false statement, leaving in the mind the same idea that a false assertion would leave. But generally, it is only a mode of evasion: the witness has recourse to it, that he may speak without saying anything, and without being exposed to the dangerous impressions which total silence would produce to his disadvantage" (2). Fortunately for the cause of justice it is not to be disputed, as Mr. Bentham goes on a little further to add :-" The great art of evasion cannot exert itself successfully, except in written language. Examine vivâ voce, and the most crafty will not be able to go on long; he is stopped at his very first attempt; he is not (1) Enquiry into the Human Mind, pp. 196-197. (2) Judicial Evidence, p. 50. allowed to weave the web in which he intends to conceal himself; CHAP. II. if he persists in equivocal or obscure language, he betrays his bad faith, and his evasive answers turn out more to his disadvantage, than silence would have done." be made for witness. In applying however the tests we have suggested, it must not be Allowance to lost sight of, that different witnesses are liable to be impressed influences on differently by the varying and opposite circumstances under which Lord Langdale. their testimony is given; and allowance must ever be made, on the one side or the other, for the condition of life of the witness; his ignorance, or his intelligence; his habituation to the world and the business affairs of life, or his want of familiarity with them; his personal temperament, as ordinarily nervous or composed; his age; or sometimes even state of health, and generally the comparative excitement or calmness of the occasion and of the scene. 66 It was well remarked by a late Master of the Rolls, Lord Langdale (a Judge of peculiar ability in dealing with the facts of a case) :-" Witnesses, and particularly ignorant and illiterate witnesses, must always be liable to give imperfect or erroneous evidence, even when orally examined in open court. The novelty of the situation, the agitation and hurry which accompanies it, the cajolery or intimidation to which the witness may be subjected, the want of questions calculated to excite those recollections which might clear up every difficulty, and the confusion occasioned by cross-examination, as it is too often conducted, may give rise to important errors and omissions; and the truth is to be elicited not by giving equal weight to every word the witness may have uttered, but by considering all the words with reference to the particular occasion of saying them, and to the personal demeanor and deportment of the witness during the examination. "All the discrepancies which occur, and all that the witness says in respect of them, are to be carefully attended to, and the result, according to the special circumstances of each case, may be either that the testimony must be altogether rejected, on the ground that the witness has said that which is untrue, either wilfully or under self-delusion so strong as to invalidate all that he has said; or else the result must be that the testimony must, as to the main purpose, be admitted, notwithstanding discrepancies which may have arisen from innocent mistake, CHAP. II. extending to collateral matters, but perhaps not affecting the main question in any important degree” (1). Summary- Objections to peculiar classes. The whole subject of personal credibility is well and graphically handled by Mr. Taylor, though the materials for the observations may be recognized in earlier writings. "It is obvious," he remarks, "that, in the hasty progress of a trial at Nisi Prius, it is frequently difficult, and sometimes impossible, to ascertain with anything like certainty, what characters the witnesses respectively deserve for honesty and intelligence, and how far they are actuated by interested, malignant, or other improper motives. On these heads considerable doubt must almost always exist; although a rigid cross-examination, when skilfully applied, will certainly throw much light upon the subject; and a careful attention to the demeanor of the witness will furnish a no less valuable guide. Thus, while simplicity, minuteness, and ease are the natural accompaniments of truth, the language of witnesses coming to impose upon the Jury is usually labored, cautious, and indistinct. So when we find a witness over-zealous on behalf of his party exaggerating circumstances; answering without waiting to hear the question; forgetting facts wherein he would be open to contradiction; minutely remembering others, which he knows cannot be disputed; reluctant in giving adverse testimony; replying evasively or flippantly; pretending not to hear the question, for the purpose of gaining time to consider the effect of his answer; affecting indifference; or often vowing to God, and protesting his honesty, we have indications, more or less conclusive, of insincerity and falsehood. On the other hand, in the testimony of witnesses of truth, there is a calmness and simplicity; a naturalness of manner; an unaffected readiness and copiousness of detail, as well in one part of the narrative as another; and an evident disregard of either the facility or difficulty of vindication or detection " (2). The tests previously pointed out address themselves rather to individuals than to classes of witnesses. Certain classes of witnesses, however, have, from peculiar, but almost perhaps unconscious, tendencies been considered less independent in their testimony than ordinary persons; and their evidence, accordingly, as requiring to be especially watched. In this class have been (1) Johnston v. Todd, 5 Beavan, p. 601. (2) Taylor on Evidence, Vol. I, p. 79. usually placed Skilled Witnesses, alternatively termed Experts,_CHAP. II. Women, the Police, and Foreigners. Witnesses Skilled Witnesses are persons specially versed in the lore skilled of their own peculiar calling, be it of science, art, or other thing. their bias. The Physician, for example, in Physic; the Artist in painting; the Engineer in whatever appertains to engineering. In the case of this class of witnesses, and especially in matters trenching upon the theoretical or the speculative, the obvious ground of mistrust is that of their coming pledged to the support of some particular theory of science or of art advanced or adopted by themselves; and of the bias to which this would expose them. In fact, they might even happen to be enlisted as witnesses on the side on which they appear from the known existence of that bias; and they have been said at times, to present themselves, almost, as it were, on the very retainer of the party calling them. One of the chances of miscarriage in our estimate of the human intellect, pointed out by Lord Bacon, would equally apply in weighing the value of this description of testimony. "Another error," he says, "is that men often infect their speculations and doctrines with some particular opinions they happen to be fond of, or the particular sciences whereto they have most applied, and thence give all other things a tincture that is utterly foreign to them" (1). On the other hand, theories, easy of advance by the learned, may be difficult of detection by the unlearned; while that which is untrue in fact is often not wanting in plausibility. It has been well observed :-" Of all evidence in Courts of Justice, that of professional men ought to be given with the greatest care, and received with the utmost caution. Plain facts are level to ordinary understandings, and very simple logic is sufficient to ascertain their relative connections and separate value; but opinions drawn from recondite branches of human knowledge, and grounded on enquiries with which few comparatively are acquainted, must be regarded as of little weight, unless well strengthened by reasoning that admits of no misconstruction, and supported by authority that cannot be controverted" (2). The subject will be found to receive some further illustration when we come hereafter, in the Chapter on Examination (1) Advancement of Learning, Book I. (2) Shelford on Lunacy, p. 71, quoting Smith's Analysis of Medical Evidence, p. 197. CHAP. II. in-Chief (1) to treat more especially on that branch of it peculiarly addressed to the case of legal experts. Women- shrewdness. The testimony of Women has been regarded as open to exaggeration, objection more peculiarly when appearing under circumstances, Natural or to testify to events, likely to excite their feelings, or kindle their imaginations. The vice to which their testimony is regarded as the most exposed, would seem to be that of exaggeration; and a curious illustration of this has been cited in the instance of the woman of Samaria, who, when reminded by the Divine Stranger who had accosted her at the well, to which she had come to draw water, of her having had five husbands, returned into the city, saying-" Come, see a man who has told me all things that ever I did" (2). History of the exclusion of their testimony. When, however, it is remembered that woman's wit has passed with us into a proverb, one cannot but allow some counterpoise, even to the influences of feeling or imagination, in the sagacity and powers of observation universally conceded to the sex; and practically women often prove most excellent witnesses, and their testimony is found to exhibit the 'plain unvarnished tale' of truth. We speak however of the women of England, or indeed of those of the Western nations generally, rather than of those whose lives have been spent in the deadening confinement of the Harem or the Zenana, shut out from all intermingling with civilized life. In India, too, as if this seclusion were not sufficient, among its native females of any position at all, the purdah, behind which their testimony is given, adds its own miserable screen to falsehood; and even when the farce of the examination of a purdahwoman has been gone through, the practical result ordinarily is, that the evidence either lies a dead letter on the table of the Court, or, if noticed at all, is only noticed to point out its tissue of absurdity, lying, and contradiction. In some countries, in the less civilized stages of their jurisprudence, the testimony of women has been altogether excluded; and there was a period when it was but scantily received even in our own. The following law is attributed to Moses by Josephus: "Let the testimony of women not be received, on account of the levity |