another illustration. The prisoner admitted that he was in the bank with Field the last time the missing man was seen; that he forged the books; that he took up the carpet and burned it; that he scoured the floors and counters to efface bloody spots; that he wore a pair of Field's trousers because there was blood on his own; that he was unable to account for his whereabouts during the entire evening when Field's body was presumably

Field commenced to draw out. Vanderpool distrusted him. He took his money home to keep it nights. He changed the combination lock. He claims Field as a defaulter. But two men swear the books were tampered with. Friend saw them Saturday; Ellis on Monday. They were changed, $400 to $1,400; $700 to $1,700. Here was the motive. He admitted the forgery. Without the forgeries, Field had a credit of $3,679.38 on Saturday night. The greed of gain and fear of ruin made the motive. It was Vanderpool. The opportunity was ample. They were alone; curtain down. The means was the hatchet. It was marked with blood and fitted the wound. Field was seen going in and was never seen out again alive. There were his shirt cuffs, his envelopes, letters, papers, pocket-book, books with forgeries, and human blood! Blood on the floor, on the carpet, on papers, on stairs; cracks of the floor were filled with blood, covered all over with fresh ink! Where is the carpet? Burned! Where are the clothes? Burned! By whom? Vanderpool! From the bank he went with Field's clothes on; in the bank were found the bloody spots; in the bank the charred remains of carpet, trousers and vest and shirt! At the bank, and cleaning up, was Vanderpool on Monday before the dawn. From all these facts but one inference is drawn: that Herbert Field was murdered in the bank, and George Vanderpool knew it, for he was there. He cleaned the blood; he cut the carpet; he scrubbed the floor; he burned the hay and carpet. The destruction of evidence of a crime is confession of crime." Modern Jury Trials, 281.

being disposed of. These admissions formed an almost perfect chain of proof against him.

Incidental

Testimony.

In the testimony of a witness, as in historical or fictitious narrative, an incidental allusion is often more effective than a direct statement or explanation. Confidence in the story of an historian, and verisimilitude in fiction are often weakened or destroyed by the writer's attempt to fortify statements and suggestions which if let pass would go unquestioned. A casual allusion, a chance reference, imply a common knowledge of that to which allusion or reference is made. Swift's allusion to Defoe as "the fellow that was pilloried, I have forgotten his name,' testifies to a customary mode of punishment. Homer incidentally testifies to the practice of paying ransom to him whose friend one had slain, and mentions the amount of the ransom:

"Meanwhile a multitude

Was in the forum, where a strife went on,
Two men contending for a fine, the price
Of one who had been slain. Before the crowd
One claimed that he had paid the fine, and one
Denied that aught had been received, and both
Called for the sentence which should end the strife.
The people clamored for both sides, for both
Had eager friends; the heralds held the crowd

In check; the elders, upon polished stones,

Sat in a sacred circle. Each one took,

In turn, a herald's sceptre in his hand,
And, rising, gave his sentence. In the midst

Two talents lay in gold, to be the meed

Of him whose juster judgment should prevail.” 1

The practice of ransoming prisoners and slaves among eastern

1 Bryant's Homer's Iliad, xviii. 621.

peoples is indicated in Romola by calling a certain precious stone "the ransom of a man.'

"The account given by Herodotus of Xerxes' cutting a canal through the Isthmus of Athos, which is ridiculed by Juvenal, is much more strongly attested by Thucydides in an incidental mention of a place near which some remains of the canal might be seen,' than if he had distinctly recorded his conviction of the truth of the narrative." 2

6

Where there would be a presumption that if an institution had existed, an incident had occurred, a belief had been held, or the like, it would have been

Negative
Testimony

or Silence.

mentioned, the absence of such testimony is considered evidence of non-existence or nonoccurrence. The absence of any direct mention of the doctrine of a future life in the writings of Moses, has been considered proof that the Jews did not believe in the immortality of the soul. This is called the testimony of silence, or negative testimony. The absence for several generations of any mention of Bacon as the author of Shakespeare's plays, is strong evidence against the Baconian theory of authorship. Nothing is said in the New Testament about the defective eyesight of any of the disciples; a certain artist, therefore, was probably indulging a fancy when he painted some of them wearing spectacles. If a title of a book is not found in a certain publisher's catalogue, it is probably the publication of some other house. Property not named in a will along with other property, was probably not owned by the testator. A declaration in the presence of a party to a cause becomes evidence, as showing that the party, on hearing such a 1 George Eliot, Romola, Chap. ix. 2 Whately, Rhetoric, 84. 3 Rubens, Mary Anointing the Feet of Jesus.

statement, did not deny its truth. If one is silent when he ought to have denied, the presumption of acquiescence arises. Failure to respond when summoned to defend a suit at law, is considered as confessing the claim. The absence from the college records of the name of a person who claims to have been a student or resident at the college, raises a strong presumption against his claim. This, according to Mr. Collins, is the case of Bolingbroke.

Burke argues that the absence of evidence to show the quarrel of the Colonies to be with the trade-laws, makes it necessary to assign some other cause for their resistance to England, as taxation. He affords other examples of argument from silence in the same speech:

Burke's

Example.

"We see the sense of the Crown, and the sense of parliament, on the productive nature of a revenue by grant. Now search the same journals for the produce of the revenue by imposition. Where is it? Let us know the volume and the page. What is the gross; what is the net produce? To what service is it applied? How have you appropriated its surplus? What! Can none of the many skillful index-makers that we are now employing find any trace of it? Well, let them and that rest together, But are the journals which say nothing of the revenue, as silent as to the discontent? Oh, no! a child may find it. It is the melancholy burthen and blot of every page.'

Where there has been no opportunity for collusion, the independent testimony of several wit- Concurrent nesses to the same essential facts, is much Testimony. stronger than that of a single witness. They cies. might all agree by accident; but this is less likely

1 Select Works, I. 216.

Discrepan

1

than that they all tell the truth. Even if there has been an agreement as to what they are to say, some are likely to forget or to weaken under cross-examination, when telling a fabricated story, and so be detected. If upon comparing the testimony of different witnesses,1 such grave discrepancies are found in essential matters that all cannot be telling the truth, then account must be taken of the powers, habits, intelligence and character of the different persons testifying. There may be agreement in essential details and differences in minor matters, and these differences may, on the whole, strengthen the general probability; for under different circumstances, witnesses may see things from a different point of view, and with different powers of observation and interpretation. When the matter testified to consists of many details, it is hardly to be expected that several witnesses will agree in all minute particulars. Professor Greenleaf makes this clear in the following passage from his Examination of the Testimony of the Four Evangelists:

"In the third place, as to their number and the consistency of their testimony. The character of their narratives is like that of all other true witnesses, containing, as Dr. Paley observes, substantial truth, under circumstantial variety. There is enough of discrepancy to show that there could have been no previous concert among them; and at the same time such substantial agreement as to show that they all were independent narrators of the same great transaction, as the events actually occurred. . . . The discrepancies between the narratives of the several evangelists, when carefully examined, will not be found sufficient to invalidate their testimony. Many seeming contradictions will prove, upon closer scrutiny, to be in substantial agreement; and it may be confidently asserted 1 Page 44.