there was evidence that the client had authorised his counsel to do the best for him he could, and the counsel afterwards settled such action in court whilst the client was actually present, the Court refused to set aside the order of Nisi Prius made according to the terms of such settlement, notwithstanding the client made an affidavit that the action was settled without his authority, and that, although pres ent in court, he did not understand what was going on."

In Rajunder Narrain Rae and Another v. Bejai Govind Rae, (2) the Privy Council held that the admission and consent of a Vakeel, made with due authority, will bind his client though not present at the time of making it.

§ 229. How far a party may be bound by admissions in his pleadings() is rather a subject for discussion when we lecture on Pleading; but in this country according to the practice of the Mofussil, this will be for consideration of the Judge who settles the "Points ;" and who of course is bound to take care that he does not burthen the record by calling for proof of facts which are really not in dispute between the parties.

§ 230. So a party may be bound by his own conduct during the progress of the cause: the commonest form of this perhaps is that of payment by the defendant of a certain sum into Court, to which extent he thereby admits his liability. Thus, the suppression of documents is an implied admission that their contents are unfavourable to the suppressor.

§ 231. So admissions may arise from the conduct of a party in other particulars for instance from acquiescence, or even silence: but in these cases the inference of admission is often very slight and scarcely noteworthy.

§ 232. Taylor, § 840, may here be consulted.

"Again, where goods had been sold through a London broker under a written contract, which stipulated that payment should be made by bills, Lord Ellenborough rejected evidence of a custom, that bills meant approved bills, and that the vendor had the option of rejecting any bill of which he disapproved; and, although the same learned judge, in a subsequent stage of the case admitted evidence of a usage of trade, which reserved to vendors selling through brokers in the manner above stated, the power of annulling the contract, within a reasonable time after the name of the purchaser had

(q) 2 M. I. A. p. 253.

(r) See on this subject Taylor, § 584-96. See S. A. 52 of 1858. S. R. p. 121.

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been communicated to them,-serious doubts may be entertained whether he was right in so doing; and whether the custom, thus allowed to be proved, was so incidental to the contract, as, in the absence of express words to be incorporated in it."

§ 233. And all verbal admissions are to be received with caution. Taylor says, § 622.

"With respect to all verbal admissions it may be finally observed, that they ought to be received with great caution. The evidence, consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; for either the party himself may have been misinformed, or he may not have clearly expressed his meaning, or the witness may have misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually said. But where the admission is deliberately made, and precisely identified, the evidence it affords is often of the most satisfactory nature."

§ 234. An admission which is made under constraint, or by mistake, or obtained by misrepresentation, or fraud, is of course not binding on the party who made it, and if this character be proved to attach to it, should not be received.

§ 235. Neither are admissions made during confidential overtures for pacification, arbitration, or settlement of disputes, receivable; in short no admissions which are made with a view to what is called the "purchase of peace;" for a party may often be willing to concede a point on such occasions, even against his own convictions, which he would by no means admit, but for the hope of thus avoiding further controversy.

§ 236. It is however advisable on such occasions that the correspondence should be headed "without prejudice."(s) The leading case on the subject is that of Paddock v. Forrester.(t) The dictum there is as

follows:

"Where a letter is expressed to be written without prejudice,' it cannot be received in evidence either for or against the party sending it; neither can the reply thereto, though not similarly guarded."

(s) A story is told of a lawyer's clerk sued for breach of promise of marriage, who when his love letters were about to be received in evidence against him, objected that they were inadmissible, as they were all signed "Yours very affectionately, without prejudice." In Hicks v. Thompson, reported in the Times, 19th January 1857. Willes, J. said that this occured in the case of Wood v. Hurd 2 Bing. N. C. 166; though the point is not there mentioned.

(t) 3 Scott's New Rep, p. 734. See also the same point-Hoghton v. Hoghton, 15 Beav, 321, Jones v. Foxall, 18 Beav, 388.

P

§ 237. The term confession is applied to an admission made by a party against his own interest on a criminal charge. As the consequences are more serious, so is the reception of confessions in criminal cases still more stringently watched than that of admissions in Civil suits; there is greater danger too by far in the former than in the latter of such admissions not being voluntary. All men are in general anxious to detect and prevent crime. The lower orders of officials in the administration of criminal justice are perhaps but little to be trusted themselves; are open to corrupt influences, and have the desire to raise their own characters, and increase their chances of promotion by the display of their own activity and astuteness. All experience proves how anxious and unscrupulous this class is to obtain confessions from their prisoners, sometimes by actual violence, sometimes by trickery, sometimes by holding out hopes of pardon or benefit sometimes by the intimidation of threats of punishment. In this country the quality of "confessions" made before the Police is proverbial; and the Indian Law Reform Commissioners propose in their Report to forbid the taking of confessions by the Police in any case whatever, perhaps as the surest and shortest mode of putting an end to the evil.

§ 238. Where the origin of the confession is untainted with suspicion, and it can be safely relied on, it is not possible to obtain more satisfactory testimony: for if the consideration, that even in civil cases the improbability of a man speaking against his own interest is thought to afford sufficient guarantee for his veracity, how much more powerfully does the same guarantee exist in criminal cases, where the consequences to the declarant are so much more serious; affecting, it may be, his very life itself?

§ 239. Hence the maxim Optimum habemus testem confitentem reum. The very best of witnesses is an accused person who confesses his guilt. Hence the extreme desire in all ages to obtain from the lips of the accused an admission of his crime.

§ 240. And hence the bare confession of a prisoner is sufficient evidence to warrant his conviction, even though there be no corrobo

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rative testimony of his having committed the crime with which he stands accused.(*)

§ 241. But under this maxim lurks the cruellest fallacy: a fallacy which has exhibited itself practically in the form of torture, judicially administered under the sanction of the law itself.

§ 242. Nor is the maxim by any means of universal truth. Even where a confession is voluntary, that is to say, where it has not been wrung out of the prisoner by the instrumentality of his fellowman, how often has experience proved that a party has accused himself through motives of fear, of hope, of vanity, or even under the influence of insanity or hallucination.

§ 243. On these grounds, the law jealously protects prisoners against becoming the victims of their own delusions, or the machinations of others. Hence, no confession is receivable, if its source be not omni suspicione majus, above and free from the remotest taint of suspicion. Of course a confession wrung from an individual by bodily pain is utterly worthless. But further, the mind must be in a state of perfect equanimity; it must not have been operated upon by fear, or by hope : and hence threats or promises held out to the declarant equally exclude the testimony when it was offered against him.

§ 244. At least according to the humane provisions of the Law of England: for on this point the practice, is widely different between the English and Continental Courts: there, where the Civil Law(w)

(v) Confessus pro judicato est' says the Roman Law, 'qui quodammodo suâsententiâ damnatur." Bowyer 303.

(w)" Quæstioni fidem non semper, nec tamen nunquam habendam, constitutionibus declaratur; etenim res est fragilis, et periculosa, et quæ veritatem fallat. Nam plerique patientia sive duritia tormentorum ita tormenta contemnunt, ut exprimi eis veritas nullo modo possit; alii tanta sunt impatientia, ut quodvis mentiri, quam pati tormenta, velint; ita fit ut etiam vario modo fateantur, et non tantum se, verum etiam alios criminentur.— Dig. xlviii. tit. 18. n. i. § 23, from Ulpian de Officio Proconsulis." The reluctance to disclose facts detrimental to a man's self family or friends has induced Governments to have recourse to torture for the purpose of exacting the truth. Though the Civil Law sanctioned it in the case of slaves, Cicero has stated plainly the cruel fallacy of the practice. In his oration pro Sulla he says:-" Quæstiones nobis servorum ac tormenta accusator minitatur; in quibus quamquam nihil periculi suspicamur, tamen illa tormenta gubernat dolor, regit quæsitor, flectit libido corrumpit spes, infirmat metus; ut in tot rerum angustiis nihil veritati loci relinquatur." We may remember that when St. Paul was about to be scourged by the Roman officer he pleaded his Roman citizenship as a protection, and his plea was allowed. The process of torture is analogus to that of experiment in Physics. Both are artificial means of exploring the truth. Hence the term so often recurring in modern works on Chemistry of interrogating nature: which corresponds to the question in judicial investigations. But here the analogy stops: for scientific experiment brings out true results: torture, where silence is broken, brings out only something. Quintus Curtius remarks concerning Philotas who confessed certain designs against Alexander. "Philotas, verone an mendacio liberare se a cruciatu voluerit, anceps conjectura est, quoniam et vera confessis, et falsa dicentibus, idem doloris finis ostenditur." And see Beecaria c. 16, concerning the fallibility of torture as an inducement for eliciting the truth. See 1 Lewis Pol. Ph. p. 169.

is followed, till lately a confession was deemed of so high a character. that proof was not even admitted to contradict it; from this same reason prevailed the old practice of the "Question" with all its terrors; and even at the present day obtains the practice of the judge submitting the accused to searching personal interrogation. In England the maxim nemo tenetur seipsum prodere has always obtained, and it is a proud boast that judicial torture has never legally obtained in England, however it may in ruder times have been occasionally practised by virtue of some imaginary prerogative of the Crown.

§ 245. The whole of Mr. Best's masterly disquisition on the Law of Confession should be carefully studied. It will be found in § 535 -48.

§ 246. Thence I take the following illustrations of the practise of foreign Courts. It is a note of what occurred at the Duke of Praslin's trial at Paris in 1847 for the murder of his wife. The President thus interrogated him.

"Was she (the deceased) not stretched upon the floor where you had struck her for the last time.' Why do you ask me such a question?" Then follow these questions and answers: You must have experienced a most distressing moment when you saw, upon entering your chamber, that you were covered with the blood which you had just shed, and which you were obliged to wash off?'- Those marks of blood have been altogether misinterpreted. I did not wish to appear before my children with the blood of their mother upon me.' 'You are very wretched to have committed this crime?'-(The accused makes no answer, but appears absorbed.) 'Have you not received bad advice, which impelled you to this crime?'—' I have received no advice. People do not give advice on such a subject.'' Are you not devoured with remorse, and would it not be a sort of solace to you to have told the truth?'- Strength completely fails me to-day.' • You are constantly talking of your weakness. I have just now asked you to answer me simply yes, or no.' If any body would feel my pulse, he might judge of my weakness.' 'Yet you have had just now sufficient strength to answer a great many questions in detail. You have not wanted strength for that?'-(The accused makes no reply). Your silence answers for you that you are guilty.'- You have come here with a conviction that I am guilty, and I cannot change it.' You can change it if you give us any reason to believe the contrary; if you will give any explanation of appearances that are inexplicable upon any other supposition than that of your guilt.'' I do not believe I can change that conviction on your mind.' Why do you believe that you cannot change that conviction?'-(The accused,