jS"^ 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 ^^C^ /^ 6 -<^^ / /X
 
 A 
 
 TREATISE ON FACTS 
 
 AS 
 
 SUBJECTS OF INQUIRY BY A JURY. 
 
 BY JAMES RAM, 
 
 OF THE INNER TEMPLE, M.A. CAMBRIDGE, BARRISTER-AT-LAW. 
 
 " Je ne dis rien que je n'appuie 
 De quelque exemple." — La Fontaine. 
 
 FIRST AMERICAN EDITION. 
 BY JOHN TOWNSHEND, 
 
 COUNSELLOR-AT-LAW. 
 
 WITH AN APPENDIX, 
 
 CONTAINING 
 
 DAVID PAUL BROWN'S GOLDEN RULES FOR THE EXAMINATION OF A WITNESS, 
 
 COX'S PRACTICAL ADVICE FOR CONDUCTING THE EXAMINATION OF WITNESSES, 
 
 WHEWELL ON THEORY AND FACT. 
 
 ^^.Svf.. 
 
 NEW YORK: 
 
 BAKER, VOORHIS & COMPANY, 
 
 66 NASSAU STREET. 
 
 1870. ■
 
 I a TO 
 
 Entered, according to act of Congress, in the year ]&70, by Baker, Voorhis & Co., in the Clerk'i 
 Office of the District Court of the United States for the Southern District of New York. 
 
 BAKER & GODWIN, PRINTERS 
 Printing-Honse Square, N.Y.
 
 
 PUBLISHERS' PREFACE. 
 
 The following work, by an author of acknowledged- 
 merit, is now for the first time republished in this 
 country, and brought fairly to the notice of the legal 
 profession in the United States. Although compara- 
 tively unknown here, the work has long enjoyed a high 
 reputation in England, and those gentlemen, who, 
 through the publishers of this, have possessed them- 
 selves of English copies, are unanimous in their com- 
 mendation of it, both as regards the subject-matter and 
 the style and manner of execution. The work embodies 
 the results of great learning, large experience, and 
 acute observation, with an extraordinary affluence of 
 apt illustrations from all x>ossible sources ; and these re- 
 sults are communicated in the clearest and most agree- 
 able form. 
 
 The work is designed primarily for lawyers, and has 
 for them, whether as students or practitioners, an es- 
 pecial interest ; nevertheless, it contains so much of 
 sound thought and sagacious suggestion as makes it of 
 rare interest to a large circle of intelligent readers out- 
 side of the legal profession. 
 
 The author has so well performed his self-allotted 
 task and so faithfully fulfilled the motto upon his title 
 page, as to leave little room for addition, and still less 
 (his index excepted) for improvement. Yet the pub- 
 lishers believed the value of the work might be en- 
 hanced by passing it through the hands of a competent
 
 IV PREFACE. 
 
 editor. With this view they secured the services of Mr. 
 Townshend, the author of the Treatise on Slander and 
 Libel, and other works favorably known to the j)rofes- 
 sion, and he has edited the work now in*esented to the 
 public. 
 
 This contains all the text of the original edition (save 
 a few poetical quotations omitted, the reference to them 
 "being retained), in the same form and order as in the 
 original, with additional foot notes — the latter distin- 
 guished by being enclosed within brackets [ ]. The 
 tables of contents, of names of cases cited, and of 
 authors and books quoted, together with the appendix 
 and index (the latter very full), are the work of the 
 American editor. The English edition has but a very 
 brief index and no prefatory tables. 
 
 To add to the practical purposes of the volume, 
 David Paul Brown's " Golden Rules for the Examination 
 of Witnesses,^ ^ Cox's ^^ Fractical Advice for Conducting tlie 
 Examination of Witnesses,'^ and Whewell's " Theory and 
 Fact,^^ have been placed in an Aijpendix. These articles 
 are quite in harmony with the character of Mr. Eam's 
 Treatise, and add very materially to the value of the 
 work. 
 
 The imblishers flatter themselves that the reproduc- 
 tion of this work, with the additions as now presented, 
 will be esteemed as a valuable contribution to the legal 
 literature of the country. 
 
 If obliged to characterize the book in a single sen- 
 tence, we should call it "The Philosophy of E\idence." 
 It shows how we acquire our knowledge of facts ; the 
 circumstances which impede or facilitate the acquisition 
 of that knowledge ; the means by which the knowledge, 
 when obtained, is either lost or i)erpetuated ; the diffi- 
 culties in the way of communicating a knowledge of
 
 PREFACE. V 
 
 facts from one to another ; the methods of distmgnishing 
 between truth and falsehood, and by which to test the 
 value of human testimony. Together with a chapter 
 upon Advocacy, aud another upon The Examination 
 OF Witnesses. The whole calculated to assist in the 
 acquisition of that most diflQcult accomplishment — the 
 art of trying a cause before a jury.
 
 CONTENTS. 
 
 PUBLISHERS' PREFACE 
 TABLE OF CASES CITED . 
 NAMES OF AUTHORS QUOTED 
 NAMES OF WORKS QUOTED 
 
 PAOB. 
 
 iii 
 
 ix 
 
 xi 
 
 xiii 
 
 INTRODUCTORY 
 
 OF PERCEPTION 
 
 OF IMPRESSION 
 
 CHAPTER I. 
 
 CHAPTER n. 
 
 CHAPTER III. 
 
 16 
 
 31 
 
 OF MEMORY 
 
 CHAPTER lY. 
 
 38 
 
 CHAPTER V. 
 
 OF RECOGNITION 
 
 Section I. Recognition op a Thing 
 II. Recognition of a Person 
 
 CHAPTER VI. 
 
 OF CERTAIN FACTS COMMON IN EVIDENCE 
 
 Section I. 
 
 H. 
 III. 
 IV. 
 
 V. 
 VI. 
 
 Op Length of Time. 
 
 Op Speed 
 
 Of Distance op Place 
 
 Op Falsehood 
 
 Op Self Conviction 
 
 Of Charactek. 
 
 60 
 
 60 
 68 
 
 83 
 
 83 
 85 
 89 
 92 
 93 
 95
 
 Vlll 
 
 CONTENTS. 
 
 OF SUSPICION 
 
 CHAPTEK YII. 
 CHAPTER YIII. 
 
 OF PROBABILITY 
 
 CHAPTER IX. 
 
 OF NARRATIVE OF FACTS . 
 
 CHAPTER X. 
 
 OF THE CREDIT OF A WITNESS . . '. . 
 
 Section I. Generally of the Credit of a Witness 
 n. Of a Child's Evidence 
 in. Of Motives of a Witn-ess . 
 IV. Op Affecting Credit by Certain Questions 
 
 IN Cross-examination 
 V. Of the Former Conduct of a Witness 
 VT. Op an Accomplice .... 
 
 VII. Of A Spy 
 
 Vlii. Op the Bankruptcy of a Witness 
 rx. Of a Witness' Weakness of Mend 
 X. Of a Witness' Demeanor Untjer Examin 
 
 ATION 
 
 XI. Of Different Evidence op Two Wit- 
 nesses 
 
 XTT. Of One Witness' Opinion of Another 
 
 CHAPTER XL 
 
 OF A WITNESS UNDER EXAMINATION 
 
 CHAPTER XII. 
 
 OF ADVOCACY 
 
 CHAPTER XIII. 
 
 OF CONCLUSION FROM FACTS 
 
 APPENDIX. 
 
 Golden Rules for the Examination of Witnesses 
 Practical Advice for Conducting the Examination of 
 
 Witnesses 
 
 Theory and Fact 
 
 101 
 
 107 
 
 125 
 
 145 
 145 
 151 
 153 
 
 153 
 161 
 163 
 
 170 
 178 
 179 
 
 182 
 
 184 
 199 
 
 20$ 
 
 232 
 
 271 
 
 307 
 
 313 
 852
 
 TABLE 
 
 OF THE NAMES OF CASES CITED. 
 
 Adams v. Halley, 13. 
 
 Allen V. Patterson, 13. 
 
 Ashford v. Thornton, 44, 91. 
 
 Aymar v. Astor, 11. 
 
 Backus V. Shepperd, 13. 
 
 Ballard v. Lockwood, 10. 
 
 Beach v. Gallup, 13. 
 
 Beach v. King, 11. 
 
 Bedell v. Chace, 9. 
 
 Bellv. Smith, 11. 
 
 Bell V. Warden, 11. 
 
 Bennett V. Womack, 11. 
 
 Bernhardt v. Rensselaer R. R. Co. 10 
 
 Birley v. Newton, 13. 
 
 Birdseyev. Frost, 13. 
 
 Bloodgood V. Bruen, 13. 
 
 Bowden v. Henderson, 114. 
 
 Bowie V. Brahe, 13. 
 Brown V. Buckingham, 13. 
 
 Brow^n v. Ryckman, 13. 
 
 Buckingham v. Payne, 10. 
 Buffalo, City of, v. HoUoway, 13. 
 Buckley v. Keteltas, 11, 
 Burrall v. Bowen, 13. 
 
 Burrows v. Wright, 376. 
 Burton v. Griffiths, 11. 
 Carroll v. Ui^ton, 11. 
 Casey v. Mann, 13. 
 Cayuga Co. Bk. v. Warden, 11. 
 Chamberlain v. Kaylor, 13. 
 Chapin v. Potter, 13. 
 Charlewood's Case, 375. 
 Child V. Sun Mut. Ins. Co. 11. 
 Clarke v. Owens, 11, 
 Clifford V. Hunter, 11. 
 Clift V. White, 9. 
 Codling's Case, 1G9. 
 Conger v. Hudson R. R. Co. 11. 
 Coons V. Chambers, 11. 
 Cowell V. Hill, 10. 
 Crosfield's Case, 105, 181, 317. 
 
 Cumpston v. McNaii', 13. 
 
 Davis V. Hoppock, 13. 
 
 Decker \'. Matthews, 10. 
 
 DeRidder v. McKnight, 11. 
 
 Despard's Case, 100, 166, 175.' 
 
 Doe d. Mudd v. Suckermore, 68. 
 
 Dole V. Gold, 11. 
 
 Dow V. Platuer,^ 10. 
 
 Dowley V. Winfield, 113. 
 
 Edgell V. Hart, 11. 
 
 Edwards v. Scott, 10. 
 
 Ensign v. Sherman, 10, 13. 
 
 Erwin v. Voorhies, 11. 
 
 Facey v. Hurdom, 10. 
 
 Fairbanks V. Bloomfield, 11. 
 
 Farmers "Bk. v. A'ail, 11. 
 
 Fletcher v. Calthrop, 10. 
 
 Foot V. Wiswall, 10. 
 
 Forbeg'Case, 158, 377. 
 
 Forbes v. Waller, 9. 
 
 Frost's Case, 44, 98, 155, 156, 157, 
 
 160, 193, 194, 195, 196,308. 
 Fry V. Hill, 10. 
 Gagev. Parker, 11. 
 Gallagher v. White, 11. 
 Gillet V. Fairchild, 11. 
 Ginnon v. Harlem R. R. Co. 10. 
 Gordon, Lord George, Case, 188. 
 Graham v. Machado, 10. 
 Green v. Haines, 11. 
 Griffin v. Cranston, 9. 
 Haight V. Hoyt, 10. 
 Hall V. Southmayd, 13. 
 Hardy's Case, 143, 173,193, 307,317, 
 
 331 333. 
 Hartz V. Long Island R. R. Co. 12. 
 Hatch V. Poet, 13. 
 Hause's Case, 78. 
 Healy V. Ulty, 11. 
 Halstein v. Rice, 13. 
 Hunter's Case, 64.
 
 TABLE OF CASES. 
 
 Hyatt V. McMahon, 10. 
 
 Ives y. Humpliries, 10. 
 
 Jennings v. Carter, 11. 
 
 Jones V. PhcBnix Bk., 13. 
 
 Keneys v. Richards, 13. 
 
 Keteltas v. Myers, 13. 
 
 Kingston, Duchess of, 46, 308. 
 
 Latham v. Westervelt, 13. 
 
 Lawrence y. Ocean Ins. Co. 11. 
 
 Lawrence y. "Wright, 10, 13. 
 
 Lewis V. Peake, 10. 
 
 Lincoln y. Wright, 131. 
 
 Lockwoocl y. Thome, 11. 
 
 M^Callough y. Moss, 10. 
 
 Mackay y. Rhinelander, 11. 
 
 McKyring y. Bull, 13. 
 
 Mangam y. Brooklyn R. R. Co. 10. 
 
 Mann y. More wood, 10. 
 
 Maugham y. Hubbard, 49. 
 
 MeMUe's Case, 43. 
 
 Mettlestadt y. Ninth Aye. R. R. Co. 
 
 10. 
 Miller y. The People, 9. 
 Monroe y. Merchant, 13, 
 Moore y. "Westervelt, 13. 
 Moss y. Riddle, 9. 
 Myers y. Machado, 13. 
 O'Callaghan v. Booth, 10. 
 Ocean Ins. Co. v. Francis, 10. 
 O'Coigly's Case, 139, 339. 
 O'Gara v. Eisanlour, 111. 
 Palmer v. De Witt, 53. 
 Parker Mills v. Jacob, 10. 
 Parker's Case, 79. 
 Parsons v. Brown, 10. 
 Patch's Case, 84. 
 Patrick v. Hallett, 11. 
 Pear's Case, 375. 
 People, The v, Saxton, 10. 
 People, The v. Walker, 11. 
 Penniman v. Hudson, 13. 
 Pitt V. Shew, 10. 
 Prime, Re., 13. 
 Pf indie v. Caruthers, 10. 
 Public Adm'or v. Watts, 13. 
 Purvis V. Coleman, 10, 13. 
 
 Ransford v. Copeland, 11. 
 Reg. y. Inh. of Aberdaron, 10. 
 Rex y. Everett, 13. 
 Rex y. Hay, 115. 
 Rex V. Upton-on-Severn, 13. 
 Rooty. King, 10. 
 Rush's Case, 143, 
 Sage y. Hazard, 11. 
 Saurin y. Starr, 28. 
 Schenk v. Nalor, 13. 
 Schiebel v. Fairbairn, 11. 
 Serle v. Norton, 11. 
 Seymour y. Wilson, 9 . 
 Sherwood v. Ruggles, 11. 
 Sillick y. Booth, 119. 
 Smith y. Lockwood, 12. 
 Sturtevant v. Ballard, 11. 
 Tawell's Case, 143. 
 Taylor v. Corbiere, 13. 
 Tenant y. Bell, 10. 
 Thellwall v. Yelverton, 321. 
 Thomas v. Desmond, 13. 
 Thomas v. Woods, 13. 
 Thurston v. Cornell, 10. 
 Tindall y. Brown, 11. 
 Tobin v. Murison, 10. 
 Tookes' Case, 140. 
 Underwood v. Wing, 115. 
 Van Schack v. Winne, 13, 
 "S^an Trot y. McCalloch, 11. 
 Yigers v. Dean of St. Pauls, 10. 
 Vrooman y. Griffiths, 130, 
 Wads worth v. Allcott, 11. 
 Walter V, Lockwood, 13. 
 Warner v. Hatfield, 13. 
 Watson y. England, 113. 
 Way v. East, 156, 190. 
 Webb, ex parte, 13. 
 Wharton v. McKenzie, 11. 
 White v. Brown, 13. 
 White V. Joy, 11. 
 Whitmarsh v. Angle, 11. 
 Williams v. Smith, 11. 
 Wing v. Angrave, 119, 
 Wilson v. Ellis, 11, 
 Witherspoon v. Van Dolar, 13.
 
 NAMES OF AUTHORS QUOTED. 
 
 Abercbombie, 55. 
 
 Addison, 75, 106, 177, 239, 306. 
 
 Aytoun, 34. 
 
 Bacon, 101, 128, 137, 184, 220, 227, 
 
 236, 267, 288. 
 Barrington, Sir J., 92, 206, 242, 292. 
 Blackstone, 128. 
 Blackwood, 150, 357. 
 Borrow, 17, 22, 215, 219. 
 Boswell, 58, 132, 200, 209, 212, 
 
 214, 237, 250, 251. 
 Brougham, Loud, 256, 264. 
 Brown, D. P., 53, 307. 
 Bry.\nt, W. C, 71. 
 Butler, 109. 
 Byron, 25, 32, 42, 103, 110, 165, 204. 
 
 C^SAR, 86. 
 
 Campbell, Lord, 131. 
 
 Cervantes, 85, 215, 235. 
 
 Cicero, 27, 39, 43, 52, 54, 85, 93, 
 102, 103, 104, 119, 120, 122, 123, 
 124, 175, 2ir., 237, 258, 262,264, 
 265, 277, 298, 301. 
 
 Clarendon, Lord, 19, 186, 190, 283. 
 
 Cloncurry, Lord, 65. 
 
 CocKBUBN, Lord, 52, 57, 293. 
 
 Coke, 238. 
 
 Coleridge, 41, 254. 
 
 Cowper, 21, 41, 63, 71, 72 74. 
 
 Cox, 313. 
 
 CURRAN, 138. 
 
 Davis, Sir J., 249. 
 
 De Quincy, 24, 86, 210. 
 
 DODSLEY, 77. 
 
 Dryden, 56, 176, 287. 
 
 Eldon, Lord, 211. 
 Erskine, 141, 190. 
 Evelyn, 177, 178. 
 
 Finch, 238. 
 Forbes, 54. 
 fortescue, 280. 
 Foster, 152. 
 Francis, 27. 
 Frazer, Sir A., 85. 
 
 Gay, 87, 93, 163, 258, 295. 
 GiFFORD, 149, 177, 299. 
 Goldsmith, 70, 295. 
 Gray, 25, 47, 238. 
 
 Henry, Dr., 86. 
 Hooker, 28, 29, 145, 273. 
 Horace, 13, 27, 213, 264. 
 Hume, 27, 105, 197. 
 
 Johnson, Samuel, 19, 29, 37, 47, 
 52, 90, 94, 101, 138, 132, 162, 
 257, 296. 
 
 Juvenal, 56, 92, 149, 176, 177, 179, 
 254, 258, 299, 301. 
 
 KiRBY, 53. 
 
 La Fontaine, 234, 254. 
 
 Lee, 177. 
 
 Lewis, G. C, 10. 
 
 Locke, 26, 31, 34, 38, 109, 146, 272. 
 
 Louth, 29. 
 
 Lucan, 20, 110.
 
 Xll 
 
 :SAMES OF AUTHORS. 
 
 Macaulay, 107, 151, 255. 
 Macintosh, 239, 300. 
 Martial, 55, 301. 
 Matne, 39. 
 Melkoth, 255, 256. 
 Milton, 99, 306. 
 MuBPHY, 103, 176. 
 
 Oyid, 27, 71,148,180,257,266, 300. 
 
 Paley, 199. 
 Paksons, 239. 
 Pepys, 211, 235, 257. 
 Phillips Chas., 130, 218, 230. 
 Ph(edrus, 234. 
 Pliny, 235, 255, 256. 
 Prescott, 197. 
 
 Quintillian, 52. 
 
 Rogers, 37, 41, 70. 
 
 • Sanderson, 258, 286, 303, 305. 
 
 ■Scott, Sir W., 16, 17, 20, 21, 36,57, 
 69, 70, 73, 82, 88, 93, 129, 182, 
 191,198,204,210,211,218,226, 
 
 228. 
 
 Secker, 147, 215, 299, 305. 
 
 Shakespeare, 11, 13, 20, 21, 23, 36, 
 45, 46, 54,'57, 61, 63, 64, 69, 83, 
 84, 89, 94,^ 101, 102, 103, 104, 
 100, 110, 126, 150, 188, 203, 
 
 Shakespeare,— <;o?!fmr<efZ. 
 
 204, 205, 206, 217, 231, 239, 
 
 240, 277. 
 Sheridan, 204. 
 Sherlock, 146. 
 
 SiMONIDES, 27. 
 
 Soxjthey, 34, 39, 77, 127, 182, 209, 
 
 243, 246, 247, 294, 295. 
 Starkie, 191. 
 Steele, 121. 
 Sterne, 295. 
 Swift, 18, 103, 244. 
 
 Tacitus, 86, 103, 176. 
 Terence, 101, 298. 
 Thompson, 20, 258. 
 Thucydides, 55. 
 Trench, 219. 
 Trench, Dean, 93. 
 Trollope, Anty., 212. 
 Twiss, 138, 253, 270, 
 
 Upham, 279. 
 
 Virgil, 16. 
 
 Whateley, 10, 109, 137, 146, 220, 
 
 267, 288. 
 Whewell, 352. 
 White, 41. 
 
 Wilson, Prof. 29, 30, 39, 42. 
 Wordsworth, 11, 41, 300. 
 
 Xenophon, 20.
 
 NAMES OF WORKS QUOTED. 
 
 Absalom and Ahithophel, 287. 
 
 ^neis of Virgil, 16. 
 
 Anabasis, 20. 
 
 Analogy of Religion, 109. 
 
 Ancient Law, 29. 
 
 Annals of Tacitus, 103, 176, 
 
 Bible, The, 13, 120, 131, 132, 236, 263, 
 
 284. 
 Bothwell, 34. 
 Bridgewater Treatise, 53. 
 
 Carmina of Horace, 13. 
 Castle of Indolence, The, 258. 
 Churchill's Grave, 204. 
 Colabriad, The, 21. 
 Comus, 21. 
 
 Corsair, The, 25, 103, 110. 
 Commentaries on Laws of England, 128. 
 Curran and his Contemporaries, 218, 
 213. 
 
 Death, Sonnet on Punishment of, 300. 
 De Bello Gallico, 86. 
 De Laudibus Leges Anglice, 280. 
 Don Quixote, 85, 215, 235. 
 Discourses, Sherlock's, 146. 
 Diaries : 
 
 Evelyn, 178. 
 
 Malmsbury, 33. 
 
 Pepy's 84, 211, 235, 257. 
 
 Robinson, 58. 
 
 Wilberforce, 40. 
 Dictionary, Johnson's, 257. 
 Doctor, The, 77, 182, 243, 247, 294. 
 
 Ecclesiastical Polity, 29, 145, 273. 
 English Mail Coach, The, 86. 
 Eothen, 25, 30. 
 
 Epistles, Pliny, 235, 255, 256. 
 
 " exPonto, 71. 
 Essay on Formation of Opinion, 10, 
 Essay on History, 151, 255. 
 Essays, Bacon's, 107, 128, 137, 184,220, 
 
 226, 227, 236, 267, 288. 
 Evidence, Phillips on, 130. 
 
 " Starkie on, 191. 
 Evidences of Christianity, 199. 
 
 Fables de La Fontaine, 234, 254. 
 
 Gay's, 93, 163, 240, 258, 295. 
 
 Phoedrus, 234. 
 Fasti of Ovid, 180. 
 Forum, The, 52. 
 
 Germanicus, 86. 
 
 Gulliver's Voyages, 18, 102, 244. 
 
 Hermit, The, 295. 
 Historical Sketches, 256, 264. 
 History of Britain, 86. 
 
 England, 27, 105, 197. 
 " Ferdinand and Isabella, 197. 
 
 The Rebellion, 19, 186, 190, 
 283. 
 " Scientific Ideas, 352. 
 
 Human Life, 70. 
 
 Human Understanding, Locke on, 26, 
 31, 34, 38, 109, 146, 272. 
 
 Intellectual Powers, Inquiry Concern- 
 ing, 55. 
 Institutiones Oratore, 52. 
 Irish Life, Realities of, 219. 
 
 Journey to "Western Islands of Scotland, 
 19, 29, 47, 90, 128, 132. 
 
 Lara, 32, 103, 110.
 
 XIV 
 
 NAMES OF WORKS. 
 
 Lavengro, 22. 
 
 Letters of Sir A. Frazer, 85. 
 
 Lessons in Proverbs, 93. 
 
 Lectures on Sacred Poetry, 29. 
 
 Liberty, 20. 
 
 Lines Written at Paistum, 37. 
 
 Lives of the Chief Justices, 131. 
 
 Logic, Whateley, 10, 109, 146. 
 
 Lucy Gray, 11. 
 
 Manfred, 42. 
 
 Memorials of His Time, Cockburn, 52, 
 
 57, 293. 
 Memoirs : 
 
 Abernethy, Dr^, 53. 
 
 Beatie, Dr., 54. 
 
 Defoe, 177. 
 
 Eldon, Lord, 138, 253, 269. 
 
 Erskine, Lord, 138. 
 
 Houdin, 22. 
 
 Johnson, Dr., 58, 132, 200, 209, 
 213, 214, 236, 250, 251, 256. 
 
 Lovat, Lord, 18, 
 
 Moore, Sir T., 239. 
 
 Shakespeare, 162. 
 
 Savage, 52. 
 
 Swift, 37. 
 
 Wesley, 39, 127, 209. 
 
 Wilberforce, 40. 
 
 Natural History of Selborne, 41. 
 New Annual Register, 77. 
 Noctes Ambrosianje, 29, 30, 39, 42. 
 Novels — Sir W. Scott's : 
 
 Quentin Durward, 17, 21. 
 
 Guy Mannering, 16, 73. 
 
 Rokeby, 20, 93, 182, 226. 
 
 St. Ronan's Well, 21, 228. 
 
 Marmion, 36, 70. 
 
 Bride of Lammermoor, 57, 210. 
 
 Kenilworth, 69, 82. 
 
 Lady of the Lake, 88. 
 
 Rob Roy, 129. 
 
 Ivanhoe, 191. 
 
 Lay of the Last Minstrel, 204, 
 
 Heart of Mid-Lothian, 211, 218, 
 226. 
 Newspapers : 
 
 The London Times, 74, 143, 224 
 234. 
 
 The Bangor Whig, 78. 
 The Home Journal, 79. 
 The Standard, 143. 
 
 Odyssey, 72. 
 Orations— Cicero : 
 
 Orationes Partit, 102. 
 
 De Oratore, 27, 236, 277. 
 
 De Arte Poetica, 27, 264. 
 
 De Ponto, 27. 
 
 De Inventione, 43, 85, 104, 119, 
 
 122, 258. 
 De Officiis, 264, 298. 
 De Finibus, 54, 102. 
 De Legibus, 120. 
 Ad Herennium, 39. 
 Academicse Questiones, 52, 54. 
 Pro Cluentio, 216, 266, 298. 
 
 " Coelio, 124, 301. 
 
 " Catalina, 175. 
 
 " Milone, 122. 
 
 " Quintio, 301. 
 
 '• Roscius, 123, 124. 
 Brutus, 262. 
 Topica, 93. 
 
 Paradise Regained, 99, 306. 
 Parisina, 165. 
 Periodicals : 
 
 Albany Law Journal, 95. 
 American Magazine of Wonders, 
 
 79. 
 Blactwood's Magazine, 150, 357. 
 Household Words, 79. 
 New York City Hall Recorder, 79, 
 The Spectator, 75, 106, 122, 239, 
 
 306. 
 Quarterly Review, 59. 
 Edinburgh Review, 10. 
 
 " Magazine, 150, 357. 
 
 Gentleman's Magazine, 279. 
 Pharsalia, 20, 110. 
 Phormio, 298, 
 Pleasures of Memory, 41, 
 
 Recollections of His Times, Clancurry, 
 
 65. 
 Retirement, 74. 
 Reverie of Poor Susan, 41. 
 Revolt of the Tartars, 55. 
 Rivals, The, 204.
 
 NAMES OF WORKS. 
 
 XV 
 
 Rivulet, The, 71. 
 
 Romany Rye, 17, 215, 219. 
 
 Roderick, 34. 
 
 Roman Meals, The Casuistry of, 35. 
 
 Salem Witchcraft, 279. 
 
 Satires, Juvenal, 56, 92, 149, 179, 254, 
 
 258, 299, 300, 301. 
 Sermon on Lying, 147. 
 on Pride, 28. 
 Sermons, Sanderson's, 263, 286, 303, 
 
 305. 
 Sermons, Seeker's, 21.5, 299, 305. 
 Sermones of Horace, 213. 
 Shakespeare's Plays: 
 
 Romeo and Juliet, 11, 22, 36, 45, 
 
 103, 126, 205. 
 Macbeth, 13, 46, 89, 103, 104, 203. 
 Troilus and Cresida, 20. 
 Much Ado About Nothing, 21, 106. 
 Henry IV. Part i., 22, 83, 110, 150, 
 
 239. 
 Henry IV. Partii., 89, 102, 103. 
 V. 99, 103. 
 " VI. Part ii., 103, 240. 
 " VIII. 94, 205. 
 Othello, 23, 54, 106, 198, 231, 277. 
 Hamlet, 45, 84, 102. 
 Cymbeline, 46, 69, 106. 
 The Tempest, 57, 204. 
 As You Like It, 61. 
 King Lear, 63, 104. 204, 205. 
 Twelfth Night, 64, 217. 
 Comedy of Errors, 76. 
 Richard III., 101, 205. 
 Julius Cffisar, 188. 
 Two Gentlemen of Verona, 204, 
 206. 
 
 Sketches, Autobiographical, 181. 
 
 De Quincy's, 24, 33, 35, 210. 
 of Irish Bar, 138. 
 " Personal, of Sir Jonah Bar- 
 
 rington, 92, 206, 242. 
 Speeches, Erskine, 141, 190. 
 Statutes, Barrington on the, 292. 
 " Revised of New York, 111. 
 
 Table Talk, 41, 254. 
 Trials : 
 
 Codling's, 169. 
 
 Crosfield's, 105. 
 
 Despard's, 100, 166, 175. 
 
 Forbes, 168. 
 
 Frost, 44, 98, 155, 156, 157, ICO. 
 
 Gordon, 188. 
 
 Hardy, 143, 173, 259. 
 
 Hunter, 64. 
 
 Kingston, 46. 
 
 Melville, 43. 
 
 O'Coigly's, 139. 
 
 Patch, 84. 
 
 Rush, 143, 234. 
 
 Saurin v. Starr, 28. 
 
 Tawell, 143. 
 
 Tooke, 140. 
 Tristram Shandy, 295. 
 Tristia of Ovid, 148, 257, 266, 300, 
 
 Vicar of Wakefield, 70, 295. 
 
 Walk at Noon, 41. 
 
 Witnesses, Rules for Examination of, 
 
 307. 
 Witnesses, Advice for Conducting the 
 
 Examination of, 313.
 
 TREATISE ON PACTS 
 
 AS 
 
 SUBJECTS OF INQUIEY BY A JUEY. 
 
 CHAPTER I. 
 
 INTEODUCTORY. 
 
 Subjects of Jurisprudence are, Facts and Laws: 
 facts are the source and the cause of laws. From facts 
 proceed rights and wTongs ; both requiring the govern- 
 ment of law, — to establisli and enforce the one ; to re- 
 strain and punish the other. 
 
 By fact is here meant, any thing that is the subject 
 of testimony, any thing that a witness rightly testifies 
 to be a fact. If a thing be perceived by any sense of 
 the body, or faculty of the mind, the perception is a 
 fact. If any thing is seen or heard, the seeing or hear- 
 ing of it is a fact. If any emotion of the mind is felt, 
 as joy, grief, anger, the feeling of it is a fact. If the 
 operation of the mind is productive of an effect, as in- 
 tention,* knowledge, skill, the possession of this effect 
 
 * [Intention is a fact (Clift r. White, 13 N. Y. 538; and sec Moss ». 
 Riddle, 5 Cranch, 351 ; Miller v. The People, 5 Barb. 203 ; Griffin v. Crans- 
 ton, 1 Bosw. 281), hence a witness may be asked with what intent he did 
 an act (Seymour v. Wilson, 14 N. Y. 5G7 ; Griffin v. Marquardt, 21 N. Y. 
 121 ; Forbes v. Waller, 25 N. Y. 439 ; Bedell v. Chace, 34 N. Y. 386). 
 But his evidence is not conclusive (Griffin v. Marquardt, 21 N. Y. 121; 
 3
 
 10 LNTEODUCTORY. 
 
 is a fact. If any proposition he true, wLatever is af- 
 firmed or denied in it is a fact. A. said this or that, or 
 
 Tkurston v. Cornell, 38 N. Y. 287). And it seems this question is not per- 
 missible in certain cases, as Tvhere the intent may he or must be inferred from 
 the act (The People v. Saxton, 23 N. Y. 309 ; Parker Mills v. Jacot, 8 Bostv. 
 161; Ballard v. Lockwood, 1 Daly, 164). 
 
 There is, or is sujjposed to be, a distinction between matters of fact and 
 matters of opinion, — see this distinction discussed (Haight v. Hoyt, 19 N. 
 Y. 468 ; also in an Essay on the Influence of Authority in Matters of Opin- 
 ion, by George Comewell Lewis, and a review of that work, Edinburgh 
 Review, April. 1850; Whateley's Logic; and the distinction is noticed, 
 Root v. King, 7 Cow. 629). In Lawrence r'. "Wright, 2 Duer, 647, the court 
 speaks of " physical facts ;" and in 3Iann r. Morewood, o Sandf. 506, of 
 " real traversable facts." 
 
 It is a frequent subject of inquiiy and debate, whether certain words 
 or phrases imply questions of fact, or questions of law, or both, or are con- 
 clusions of law. The following collection of decisions on the subject can- 
 not fail to be useful : 
 
 The following words and phrases, have been held to imply QrESTiONS 
 OP Fact: Negligence (Tobin v. Murison. 5 Moore's P. C. Cas. 110 ; Bern- 
 hardt ». Rensselaer R. R. Co. 32 Barb. 165; aflfd, 23 How. Pr. R. 166; 
 Mettlestadt v. Ninth Ave. R. R. Co. 4 Robertson, 377; Ginnon v. Harlem 
 R. R. Co. 3 Id. 26 ; Buckingham v. Payne, 36 Bai-b. 81 ; but see Purvis n, 
 Coleman, 1 Bosw. 321 ; Mangam v. Brooklyn R. R. Co. 36 Barb. 237 ; Foot 
 V. Wiswall, 14 Johns. 304). Diligent inquiry (3 N. Y. 274). Unlawfully 
 converted (Cowell v. Hill, 6 N. Y. 381 ; Decker v. Matthews, 12 N. Y. 324; 
 but see Ensign v. Sherman, 13 How. Pr. R. 37 : 14 Id. 422 ; Fletcher v. 
 Calthrop, 1 New ^lag. Cas. 541). Instigation and request (Ives r. HumjA- 
 ries, 1 E. D. Smith, 200). Reorganization (Hyatt v. McMahon, 25 Barb. 
 458). That indorsements on notes were made " as surety " (Dow r. Plat- 
 ner, 16 N. Y. 567). Necessity (McCuUough r. Moss, 5 Denio, 507). Pos- 
 session (Parsons r. Brown, 15 Barb. 593). That a vessel " was not engaged 
 in any illicit trade" (Ocean Ins. Co. v. Francis, 2 Wend. 72). That "a bill 
 was presented for ^Jayment and payment demanded " (Graham r. Machado,' 
 6 Duer, 514). That plaintifl' became the owner by purchase (Prindle r. 
 Caruthers, 15 N. Y. 427). That plaintiff was seized as of fee (Vigers v. 
 Dean of St. Paul's, 14 Jur. 1017). That a woman is the widow of a par- 
 ticular man, naming him, or that a person is the son of another man, nam- 
 ing him (Semble, Reg. v. Inh. of Aberdarou. 1 New Mag. Cas. 51). Reputed 
 ownership (Edwards v. Scott, 1 M. &. G. 962; 2 Sc. N. R. 266) Sound or 
 unsound (Lewis v. Peake, 7 Taunt. 153). "What is actual, and what con- 
 structive, possession (O'Callaghan v. Booth, 6 Cal. 63). Reasonable time 
 (Fry V. Hill, 7 Taunt. 397; Pitt v. Shew, 4 B. & Aid. 206; Facey v. Hur- 
 dom, 3 B. & C. 213 ; Tenant v. Bell, 16 Law Jour. Rep. M. C. 31 ; Burton
 
 INTRODUCTORY. 11 
 
 did this or that : if these propositions be true, then that 
 A. did so say, or did so do, is a fact.* 
 
 * Wordsworth's Tale of Lucy Gray consists exclusively of facts. For 
 an example of testimony of facts, see Romeo and Juliet, A. v. S. 3. 
 
 V. Griffiths, 11 M. & W. 817; Sage v. Hazard, 6 Barb. 179; Conger v. 
 Hudson River R. R. G Duer, 375 ; Serle v. Norton, 3 jM. & Rob. 401; see 
 Van Trot v. McCulloch, 3 Hilton, 373; Gallagher v. White, 31 Barb. 93; 
 Green v. Haines, 1 Hilton, 354; Lawrence v. Ocean Ins. Co. 11 Johns. 341 ; 
 and see 9 Abb. Pr. Rep. 116, 124). Whether a sale was comj)leted or not 
 (De Ridder v. McKniglit, 13 Johns. 294). Whether or not reasonadle ncaTch. 
 has been made for a lost document to authorize secondary evidence of its 
 contents (Clarke v. Owens, 18 N. Y. 435). When an undated instrument 
 was made (Coons v. Chambers, 1 Abb. Pr. R. 165). Usual covenants (Ben- 
 nett V. Wornack, 3 Car. & P. 96). Whether an abandonment was or was not 
 accepted (Bell v. Smith, 3 Johns. 98). Ordinary care (Aymar v. Astor, 6 Cow. 
 367). Seaworthy or not (Sherwood v. Ruggles, 3 Sand. 55 ; Patrick v. 
 Hallett, 1 Johns. 341 ; Clifford v. Himter, 3 Car. & P. 16). Deviation 
 (Child V. Sun Mut. Ins. Co. 3 Sand. 36). Necessary furniture (Willson v. 
 Ellis, 1 Denio, 463 ; Whitmarsh v. Angle, 3 Code Rep. 53). Fraud (Erwin 
 V. Voorhies, 36 Barb. 137 ; but see Question of Law, Fraud). Usual length 
 of a voyage (Mackay v. Rhinelander, 1 Johns. Cas. 408). 
 
 The following words and phrases have been held to imply Questions 
 OF Law: Wliat constitutes an account stated (Lockwood r. Thorn, UN. 
 Y. 170). The sufficiency of the notice of the dishonor of a note, where 
 there is no dispute about the facts (The Cayuga Co. B'k v. Warden, 6 
 N. Y. 39 : Dole v. Gold, 3 Barb. 490 ; Fanners' B'k v. VaU, 31 N. Y. 487). 
 Probable cause, reasonable cause (Bulkley v. Keteltas, 1 Hilton, 45 ; 6 
 N. Y. 384 : Ransford v. Copeland, 6 Adol. & El. 483). That a written 
 instrument is or is not a mortgage (Fairbanks v. Bloomfiekl, 3 Duer, 353). 
 Seasonable times (Bell v. Wardell, 3 Willes, 204). Reasonable notice 
 (Tindall v. Brown, 1 T. R. 167 ; Williams r. Smith, 3 B. «fe Aid. 496 ; Schie- 
 .bel V. Fairbairn, 1 Bos. & Pul. 888). Whether a receipt is a bailment or 
 sale (Wadsworlh v. Allcott, 6 N. Y. 64). Whether a contract has been 
 rescinded or not (Ilealey v. Ulty, 1 Cow. 345). Fraud (Sturtcvant v. Bal- 
 lard, 9 Johns. 337 ; Jennings v. Carter, 3 Wend. 446 ; Gage r. Parker, 35 
 Barb. 141; Erwin v. Voorhies, 26 Barb. 137 ; Edgell v. Hart, 9 N. Y. 213). 
 
 The following words and phrases have been held to imply Questions 
 MIXED OF Law and Fact : Necessaries or not necessaries (Wharton v. 
 McKenzie, 5 Q. B. 606). Due diligence (Carroll r. Upton, 3 N. Y. 273). 
 That the company was illegally associated (Ransford r. Copland, 6 Adol. 
 ct El. 482). Duly (Gillet v. Fairchild, 4 Denio, 83; Beach r. King, 17 
 Wend. 17; White v. Joy, 13 N. Y. 86). " Duly convened " implies regu- 
 lariy convened (The People v. Walker, 3 Abb. Pr. Rep. 433). Flagrant
 
 12 INTRODUCTORY. 
 
 A fact, once in comj)lete existence, once ended, 
 admits of no addition, no subtraction ; " notliins: can 
 
 nuisance (Hartz v. Long Island R. R. Co. 13 Barb. 647, 657). Kegligence 
 (Purvis v. Coleman, 1 Bosw. 321 ; but see Questions of Fact, ante). 
 Whether or not defects in articles sold were visible (Birdseye v. Frost, 34 
 Barb. 367). Due course of law (Backus v. Shepherd, 11 Wend. 629; Peu- 
 niman v. Hudson, 14 Barb. 579; Thomas r. Woods, 4 Cow. 173; Cumpston 
 v. McNair, 1 Wend. 457). 
 
 The following words and phrases have been held to be Coxclusioxs of 
 Law : That one is owner (Adams v. Holley, 1'^ How. Pr, R. 330 ; "Thomas 
 V. Desmond, Id. 321 ; contra, see Davis i\ Hoppock, 6 Duer. 256 ; Walter v. 
 Lockwood, 23 Barb. 233). That one is holder and owner (Brown v. Ryck- 
 man, 13 How. Pr. R. 313 ; Witherspoon v. Van Dolar, 15 Id. 266). That 
 certain goods are the j)roperty of A. (Id.) That one is indebted, or remains 
 indebted (Chamberlain ®. Kaylor, 2 E. D. Smith, 139 ; Hall v. Southmayd, 
 15 Barb. 32). That it was, or is, the duty of a party to do or forbear an 
 act (City of Buffalo v. Holloway, 7 N. Y. 493; Rex v. Everett, 8 B. & C. 
 114). That a settlement had '' no reference to this claim, nor was the same 
 in anj yf&j released or affected" (Jones v. Phcenix Bank, 8 N. Y. 235). 
 That "he had fully determined to proceed" (Id.) That "he had failed 
 to fulfill his obligations " (Van Schaack v. Winne, 16 Barb. 95). "Lawful 
 title," and " unlawfully withholds " (La^^Tence v. Wright, 2 Duer, 674 ; see, . 
 however, Walter v. Lockwood, 23 Barb. 233 ; Ensign v. Sherman, 14 How. 
 Pr. Rep. 439, ovei-ruling S. C. 13 Id. 35). " In violation" (Schenk v. Nalor, 
 2 Duer, 678). "Duly authorized " (Myers v. Machado, 6 Abb.Pr. Rep. 198). 
 That one is "liable" (Rex v. Upton-on-Sevem, 6 C. & P. 133). "Re- 
 peated acknowledgments " (Bloodgood v. Bruen, 8 N. Y. 366). " That 
 a note had no validity " (Burrall r. Bowen, 21 How. Pr. R. 378). That he 
 did not, by his agreement, " undertake to convey the land free from all 
 incumbrances " (Warner t). Hatfield, 4 Blackf. 394). That actions "were 
 discontmued" (Hatch B.Peet, 23 Barb. 583). That the defendants have 
 acted contrary to the act [statute] (Smith i\ Lockwood, 13 Id. 209). That 
 the defendant " was hound to repair " (Casey v. Mann, 5 Abb. Pr. R. 91). 
 That one is the " lawful holder " (Beach v. Gallup, 2 Code R. 66 ; but see 
 Tajlor ». Corbiere, 8 How. Pr. R. 387). '^ Bona fide holder and owner" 
 (White V. Brown, 14 Id. 282). " Sole owner" (Thomas «. Desmond, 12 Id. 
 321; see, however, Holstein i\ Rice, 15 Id. 1). "As such attorney" {Ex 
 parte Webb, 1 New Prac. Cas. 213). That a party "did execute a release 
 in full " (Hatch r. Peet, 23 Barb. 575). That one party is " nearer of kin " 
 than another (Public Adm. v. Watts, 1 Paige, 348). That an act is "un- 
 just" (Re Prime, 1 Barb. 352). That a certain sum is " (Zwe " (McKyring 
 V. Bull, 16 N. Y. 303; and see Allen «. Patterson, 7 N. Y. 480). That a 
 sum is "due and owing" (Keteltas ®. Myers, 3 E. D. Smith, 83). That a 
 note never had any validity (Burrall v. Bowen, 21 Hovr. Pr. R. 378). Ad-
 
 INTRODUCTORY. 13 
 
 1)6 put to it, nor any thing taken from it;"* once in 
 existence, it is irrevocable.f 
 
 That, once in existence, a fact is irrevocable, is a 
 fearful truth in contemplating crime. Lady Macbeth, 
 to her sorro^v", felt, " what's done, cannot Ije undone." J 
 A fact in a particular group of facts, or story, is 
 not necessarily confined to that group : one and the 
 same fact may form one of another group, of another and 
 different story. The clock of the village church strikes ; 
 it announces to laborers the time for their leavins: off 
 work*, and they then return home. The same striking 
 of the clock tells to those surroundins; the bed of a 
 dying man, the time of his soul's departure. 
 
 • One and the same fact, forming a part of different 
 stories, may relatively to one story be very unim- 
 portant ; and relatively to another, be of the utmost 
 consequence. While, in the evening, the village church 
 clock strikes eight, a child, a little girl is sitting on a stile 
 in a field, in which a laborer is still workins;, and throusjh 
 a gate in which a boy is driving sheep ; and close to 
 the side of a hedge, in the adjoining field, a man is 
 slowly walking. Now, relatively to the girl, the 
 laborer, and the boy, or a story including them alone, 
 and without the man in the adjoining field, the striking 
 Off the clock may be very immaterial ; but relatively to 
 the girl and the man walking under the hedge in the 
 
 verse possession Olonroe v. Merchant, 36 Earb. 383 ; BoTvie v. Bralie, 3 
 Duer, 35). Assent (]Moore v. AVestervelt, 3 Duer, 59; 1 Bosw. 357; 21 N. 
 Y. 103; and see Keneys t\ Richards, 11 Barb. 312). Whether a carrier 
 is bound to know the contents of packages (Birley v. Xewton, 10 Abb. Pr. 
 R. 490). What is the meaning, validity, and effect of a contract (Latham 
 V. Westervelt, 26 Barb. 256 ; Chapin v. Potter, 1 Hilton, 366), That an 
 indebtedness " arose out of the transaction" (Brown r. Buckingham, 11 
 Abb. Pr. R. 387).] 
 
 •* Eccl. iii. 14. t Hor, Carm. lib. iii. c..29, 45-48. 
 
 I Macbeth, A. v. S. 1.
 
 14 INTEODUCTOEY. 
 
 next field, and other circumstances forming a difterent 
 story, the striking of the clock may be of the greatest 
 consequence. The girl hears the clock strike, and sees 
 the man ; the man is going to a farm-house not far off, 
 and there, in the early part of the night, commits a 
 robbery. For this the man is tried ; and he is con- 
 victed, partly on the evidence of the child, who heard 
 the clock strike eight, and at the time saw the man 
 going in the direction of the farm-house. Again, under 
 another state of circumstances, supposing at the time, 
 or soon after the time, when the child heard the flock 
 strike, and saw the man, a robbery was committed 
 several miles off from this spot, and the man is sus- 
 pected and tried for the robbery; the evidence of the 
 child may prove where he was when it was committed, 
 and this evidence, with the distance between the places, 
 may fully establish an alihi, and cause the man to be 
 acquitted. 
 
 From these examples \yq may see that, however 
 simple and innocent and trivial facts in themselves may 
 be, as the strikins; of the clock, and the sittino- of the 
 little girl on the stile, they may, notwithstanding, 
 form part of a story of deep crime, and, amidst the 
 other circumstances of the tale, be prominently im- 
 portant ; may lead to the conviction of a prisoner, or to 
 his acquittal. 
 
 Facts are subjects of inquiry by a jury when, upon 
 them, some question arises which comes within their 
 province to determine ; as when a jury is assembled 
 before a coroner, to decide upon the cause of a j^erson's 
 death ; or before a commissioner in lunacy, or a court 
 of law, to judge of the soundness of mind of a living 
 person, or of one now deceased ; or is assembled before 
 a judge or court, in the ordinary course of trial of a 
 question in a civil or criminal suit or proceeding.
 
 INTRODUCTORY. 15 
 
 In all tliese cases, the facts are given in evidence by 
 witnesses ; and, witli the exception of letters, written 
 contracts, and other documentary evidence, their testi- 
 mony consists chiefly of facts, of which they have 
 personal knowledge by their sight and hearing ; and 
 the foundation of this testimony necessarily is, the 
 witnesses' original perception of the things seen and 
 heard, the impression they made on their minds, and 
 their 2;)resent remembrance of them. 
 
 These sources of the witnesses' knowledge, the 
 examination they undergo to extract and learn their 
 evidence, and several other topics connected with testi- 
 mony, and an inquiry before a jury, are the subjects of 
 the following chapters.
 
 CHAPTER IL 
 
 OF PERCEPTIO:^. 
 
 A PEKSON^s riglit perception of an object seen by 
 Iiim may dejDend on his situation relative to tlie object 
 viewed — Lis nearness to, or distance from it ; also on 
 Ms capacity to see witli perfect or sufficient distinct- 
 ness an object far off: lie may be able to discern clearly 
 tilings ait a great distance from liim, or to see distinctly 
 only objects near to liim ; tbat is, lie may be either 
 far-sighted, or near-sighted. His right perception of 
 the object may also depend on the light by which it is 
 seen, and therefore on the time — whether day or night. 
 It may dej)end, also, on the length or shortness of the 
 time he has in which to view the object ; also on the 
 freedom of his view from all obstruction at the time, 
 from whatever cause, or however momentar}". The sun 
 shining full in the face of a person may very much 
 obstruct his sight. And the same effect may be pro- 
 duced by falling snow, or dense rain, or smoke.* 
 
 " The sheriff anxiously interrogated these men 
 whether any boats had left the vessel. They could 
 not say — they had seen none — but they might have 
 put oft' in such a direction as placed the burning vessel, 
 and the thick smoke which floated landward from it, 
 between their course and the witnesses' observation."f 
 
 " Louis gained an opj^ortunity to ask Quentin 
 privately — ' My bonny 3cot, thou hast an eye, I see ; 
 canst thou tell me who helped the Cardinal to a palfrey ? 
 
 * Vii-g. .^Ineis, yiii. 251. t Guy Mannering.
 
 OF PERCEPTION. 17 
 
 Some stranger, I should suppose ; for, as / passed 
 without stopping, the courtiers would likely be in Jio 
 hurry to do him such a timely good turn.'" ' I saw 
 those who aided his Eminence but an instant, Sire,' 
 said Quentiu; Mt was only a hasty glance, for Ihird. 
 been unluckily thrown out, and Avas riding fast to be 
 in my place ; but I think it was the Ambassador of 
 Burgundy and his i:)eople.' " * 
 
 " I know not how Ions; I miofht have been in bed, 
 perhaps two hours, when I was partially awakened by 
 a light shining upon my face ; whereupon, unclosing 
 my eyes, I perceived the figure of a man, Avith a candle 
 in one hand, staring at my face, whilst, with the other 
 hand, he held back the curtain of the bed. As I have 
 said before, I was only partially awakened ; my power 
 of 2>erception was conse(][uently very confused ; it 
 apjDeared to me, however, that the man was dressed 
 in a green coat ; that he had curly brown or l^lack hair, 
 and that there was some thing peculiar in his look. 
 Just as I was beginning to recollect myself, the curtain 
 dropped." f 
 
 Light may give one person a great advantage over 
 another in discerning objects : — Lord Lovat, in relating 
 an attack which, in the darkness of evening, he and his 
 followers made against Lord Athol's troops in Scotland, 
 in 1698, the latter acting under an order of Govern- 
 ment to capture Lord Lovat, recounts, that Lord 
 Athol's troops, having lighted a number of fires, and 
 begun to prepare their supper, and Lord Lovat having 
 marched his men within musket-shot of the enemy, the 
 men fired, and immediately threw themselves upon 
 their bellies. The Athol troops instantly formed them- 
 selves behind their fires. He then adds, " If Lord 
 
 * Quentin Dunvard. t Borrow's Romany Rye, Vol. II, p. 59.
 
 18 ' OF PERCEPTION. 
 
 Lovat at this moment liad had his whole force with 
 him, the enemy might have been all cut to pieces, 
 without the expense of ten men. He could observe 
 their slightest movement by the light of their fires ; 
 and they were unable to perceive Lord Lovat or any of 
 his men at the distance of twenty paces." * 
 
 A person's immediate right perception of an object 
 seen by him may depend on his previous knowledge or 
 ignorance of the kind of object he sees. If he has 
 before seen any thing — an animal, a machine, an instru- 
 ment, of the same kind as that he now beholds — he 
 will probably at once see the nature of it, and deter- 
 mine in his mind what it is. This was Gulliver's case, 
 when from the shore he discovered an island afar off ; 
 whilst his companion, the sorrel nag, was much slower 
 in finding out it was an island at all. " I got," he says, 
 " upon a height, and looking on every side into the sea, 
 fancied I saw a small island toward the northeast. I 
 took out my pocket glass, and could then clearly dis- 
 tinguish it about five leagues oft', as I computed ; but it 
 appeared to the sorrel nag to be only a blue cloud : for, 
 as he had no conception of any country beside his own, 
 so he could not be as exj^ert in distinguishing remote 
 objects at sea, as we who so much converse in that 
 element." f 
 
 Dr. Johnson, in the course of his journey in the 
 Hebrides, met with some hills of which he says : " Of the 
 hills which our journey oftered to the view on either 
 side, we did not take the height, nor did we see any 
 that astonished us with their loftiness. Toward the 
 summit of one there was a white spot, which I should 
 have called a naked rock, but the guides, who had 
 
 * Memoirs of the Life of Simon Lord Lovat, p. 84, ed. 1797.
 
 OF PERCErXION. 19 
 
 better eyes, and were acquainted with the phenomena 
 of the country, declared it to be snow." * 
 
 It is very common to ask a witness, wlietlier lie 
 must have seen such or such a thing done, if it had 
 been done : as, for instance, a blow struck ; and a 
 usual reply is, " I think I must have seen it; it 
 could not have been done without my seeing it." In 
 many such cases, no doubt, what the witness says may 
 be a just ground for the inference, that the blow was not 
 struck, and yet it is possible that it was. The pos- 
 sibility is jDroved, if proof be needed, by the remark- 
 able circumstances attending the assassination of the 
 Duke of Buckingham, as thus related by Clarendon : 
 
 " This morning of St. Bartholomew, the Duke had 
 received letters, in which he was advertised that 
 Rochel had relieved itself; upon which he directed 
 that his breakfast might speedily l^e made ready, and 
 he would make haste to acquaint the king with the 
 good news. The chamber, wherein he was dressing 
 himself, was full of company, of persons of quality and 
 
 officers of the fleet and army He being 
 
 ready, and informed that his breakfast was ready, 
 drew towards the door, where the hangings were held 
 np ; and in that very passage, turning himself to speak 
 with Sir Thomas Fryar, a colonel of the army, who was 
 then si^eakiug near his ear, he was on the sudden 
 struck over his shoulder upon the breast with a knife ; 
 upon which he fell down dead, the knife having pierced 
 his heart. No man had seen the blow, or the man who 
 gave it." f 
 
 When the eye perceives an object, or the ear a 
 sound, it is very often on a sudden. So, in their famed 
 
 * Journey to the Western Islands of Scotland, p. 60, ed. Edinb. 1798. 
 t Clarendon's History of the Rebellion, Vol. I. p. 28, ed. 1707.
 
 20 OF PERCEPTION. 
 
 retreat, did Xenophon and his ten thousand descry the 
 Avished-for sea."^ 
 
 '• The sea at last fi'om ColcLian mountains seen, 
 Kind-hearted transport round tlieir captains threw . 
 The soldiers' fond embrace ; o'erflowed their eyes 
 TTith tender floods, and loosed the general voice 
 To cries resounding loud — The sea I The sea ! " t 
 
 So burst on Caesar's gladdened eye the march of 
 Pompey's army to Pharsalia's j^laius. J 
 
 " Things in motion sooner catch the eye * 
 
 , Than what not stirs." § 
 
 The shining of the eye of a person lying in con 
 cealment is apt suddenly to betray him : 
 
 " Bertram suspends his purpose stem, 
 And couches in the brake and fern, 
 Hiding his face, lest foemen sj)y 
 The sparkle of his swarthy eye.-' i| 
 
 To these lines Sir W. Scott adds this note : " After 
 one of the recent battles in which the Irish rebels were 
 defeated, one of their most active leaders was found in a 
 bog in which he was immersed up to the shoulders, 
 while his head was concealed by an imj^ending ledge 
 of turf. Beino' detected and seized, notwithstandino; 
 his precaution, he became solicitous to know how his 
 retreat had been discovered. ' I caught,' answered the 
 Sutherland Highlander, by whom he was taken, 4he 
 sparkle of your eye.' Those who are accustomed to 
 mark hares upon their form, usually discover them 
 by the same circumstance." 
 
 Sometimes perception by the eye or ear is preceded 
 by a voluntary and active operation of the mind, exer- 
 cising its desii'e to perceive the object ; as when one 
 
 * Anabasis, iv. 7. t Thomson's Liberty, Part 11. 
 
 X Lucan, Phars. vii. 235. § Troilus and Cress. A. iii. S. 3. 
 
 |] Rokeby, canto iii.
 
 OF PERCEPTION. * 21 
 
 watches to see something, or listens to hear a voice or 
 other sound. 
 
 " Presently a loud and furious hiss 
 Caused me to stop and to exclaim, ' What's this ? ' 
 When lo ! upon the threshold met my view 
 With head erect, and eyes of fiery hue, 
 A vixDcr." * 
 
 " List, list ; I hear 
 Some far off halloo break the silent air." t 
 
 * * * * . * 
 
 Look where Beatrice, like a lapwing, runs 
 Close by the ground to hear our conference." J 
 
 " As the sentinel directed his solitary walk betwixt 
 the two entrances which formed the boundary of his 
 duty, he was startled by a strain of music, which was 
 suddenly waked, and which, at least in his imagination, 
 was a combination of the same lute and voice, by which 
 he had been enchanted on the preceding day. Planted 
 on the spot where his ear could most coiiveniently 
 drink in the sounds, Quentin remained with his har- 
 quebus shouldered, his mouth half open, ear, eye, and 
 soul directed to the spot, without any other idea, than 
 that of catching, if possible, each passing sound of the 
 dulcet melody." § 
 
 " Behind one of the old oaks, shrouding himself 
 from observation, like a hunter watching for his game, 
 or an Indian for his enemy, Tyrrel lay on his breast 
 near the Buck-stane, his eye on the horse-road, which 
 winded down the valley, and his ear alertly aAvake to 
 every sound, which mingled with the j^assing breeze, 
 or with the ripple of the brook." || 
 
 " Going to the cart, I removed two or three things 
 from it ; I then lifted up the shafts, and was just going 
 
 * Cowper's Colubriad. t Comus. 
 
 I Much Ado about Nothing, A. iii. S. 1. ? Quentin Durward. 
 
 II St. Uonan's Well.
 
 22 OF PEECEPTION. 
 
 to call to the pony to come and be fastened to tliem, 
 wlien I tliougnt I heard a noise. I stood stock still, 
 supporting the shaft of the little cart in my hand, and 
 bending the right side of my face slightly toward the 
 
 ground, but I could hear nothing 
 
 There, I heard it again, a sound very much resembling 
 the grating of a wheel amongst gravel. . . . Again 
 I, listened, and now I distinctly heard the sound of 
 wheels ; nearer and nearer they drew, and presently 
 the sound of wheels was blended with the murmur of 
 voices. - . . . . Leaving my. cart, I came forward 
 and placed myself near the entrance of the open space, 
 w4th my eyes fixed on the path, down which my unex- 
 pected visitors were coming. Presently I heard a 
 stamping or sliding, as if of a horse in some difficulty ; 
 the next moment appeared a man and a horse and cart ; 
 the former holding the head of the horse up to prevent 
 him from falling, of which he was in danger, owing to 
 the precipitous nature of the path." " 
 
 To put the ear close to the ground is an approved 
 way of listening for footstejDs.f Prince Henry tells 
 Fallstaff, — " Peace, ye fat-guts ! lie down ; lay thine ear 
 close to the ground, and list if thou canst hear the 
 tread of travelers." J 
 
 The eye has capacity to see many objects at one 
 time. AVhen in the presence of numerous objects, it may 
 not see all, but it will of necessity see a great number 
 of them. A man looking at a crowd of people neces- 
 sarily sees at once many persons in it, although probably 
 he will see only a few distinctly, and the rest after a 
 confused manner. § 
 
 * Borrow's Lavengro, Vol. III. ch. xviii. 
 
 t Romeo and Juliet, A. v. S. 3. I Henry IV. Part I. A. ii. S. 2. 
 
 § [Houdin, the celebrated prestidigitateur, relates how he and his son, for 
 the purposes of their profession, cultivated the art of rapid visual observa-
 
 OF PERCEPTION. 23 
 
 So the ear has capacity to hear many sounds at one 
 time; as many voices of persons simultaneously speak- 
 ing ; many songs of birds in a grove. And of the many 
 sounds, the ear cannot avoid hearing some of them ; as 
 some of the voices, or songs ; but it Avill not hear all 
 with equally distinctive clearness. 
 
 "I remember a mass of things, but nothing dis- 
 tinctly ; a quarrel, Init nothing wherefore,"* was the state 
 of Cassio's recollection, so soon as he recovered from 
 his drunkenness, in which he had quarreled and fought 
 with Montano. So, in the case of a riot or tumult, 
 especially if sudden, it naturally happens that the 
 minds of many, perhaj^s of most, persons present are 
 very much confused, and observe nothing distinctly. 
 Their minds are rapidly withdrawn from one object to 
 another, so tliat they observe the scene rather in one 
 mixed and indistinct mass, than in separate defined por- 
 tions. They look here and there, on this side and that ; 
 in turn see different 2)arts of what is going on ; and 
 there is very little that, separately from the mass, makes 
 much impression on their minds. 
 
 In the crowd, however, there may be gome persons, 
 who have composure enough to prevent their minds 
 being distracted by a multiplicity of objects, and can 
 confine and fix their attention to particular matters 
 only. And when the eye of the spectator has been 
 attracted to some one thing, he may, for an especial 
 reason — as, for instance, an interest he takes in what 
 some one present may say or do — fasten his attention 
 on this particular object, to the exclusion of others cal- 
 culated to excite his notice. But in the absence of any 
 
 tion, by walking past a store -window, and then ascertaining how many ob- 
 jects they could enumerate and describe from this passing glance.— J/e- 
 moirs of Hotidin, 256.] 
 * Othello, A. ii. S. 3.
 
 24 OF PERCEPTIOK. 
 
 siicli cause of exclusive attention, the objects wliicli 
 will most attract the eye, will naturally be tliose, wliicli 
 are tlie most prominent in tlie scene. And it is certain 
 that, during a riot or tumult, it is cjuite impossible for 
 any one person to see distinctly all that takes place ; 
 since while he is lookins; in one direction, somethins- 
 else will surely be going on in another ; and as differ- 
 ent people may see different things, so this thing may 
 escape the notice of one person, and that of another. 
 And under such circumstances, a prudent man interro- 
 gated on the subject, after he has exhausted all he con- 
 siders he can positively speak to, will, if urged or asked 
 to say more, be inclined to say, as witnesses often have 
 said, — " I know nothing further ; that is all I saw of 
 the business ; I cannot pretend to say what passed be- 
 sides." 
 
 When an object is at a great distance from a person 
 looking at it, his perception of it may be very differ- 
 ent from what it would be, if the object were near to 
 him. 
 
 " Wordsworth has brought many a truth into life, 
 both for the eye and for the understanding, which j^re- 
 viously had slumbered indistinctly for all men. For 
 instance, as respects the eye, who does not acknowledge 
 instantaneously the magical strength of truth in his 
 saying of a cataract, seen from a station two miles off', 
 that it was ' frozen by distance ' ? In all nature there 
 is not an object so essentially at war with the stiffen- 
 ing of a frost, as the headlong and desperate life of a 
 cataract ; and yet notoriously the effect of distance is, 
 to lock up this frenzy of motion into the most petrific 
 column of stillness. This effect is perceived at once 
 when pointed out ; but how few are the eyes, that ever 
 would have perceived it for themselves ! " * 
 
 * De Quincey's Sketches (Paper on Wordsworth's Poetry), p. 260, ed. 1857.
 
 OF PERCEPTI05T. 25 
 
 A person viewing an object, approaching from a 
 great distance, gradually discovers the form and nature 
 of it. 
 
 " Far on the horizon's verge apijears a speck, 
 A spot — a mast — a sail — an armed deck."' * 
 
 '^ I was somewhat struck when I saw one of my 
 countrymen making his way across the wilderness. 
 At first there was a mere moving sjDeck in the horizon ; 
 soon it appeared that three laden camels were approach- 
 ing, and that two of them carried riders ; in a little 
 while we saw that one of the riders wore the European 
 dress : and at last the travelers were pronounced to be 
 an English gentleman and his servant." f 
 
 Many of the observations before made on sight are 
 also aj)plicable to the sense of hearing. A person's 
 right perception of a sound heard by him may depend 
 on his situation relative to the sound at the time of 
 hearing, his nearness to or distance from it ; also on his 
 capacity to hear, with perfect or sufficient distinctness, 
 a sound far off; it may depend on the freedom of his 
 sense of hearing from all oljstruction at the time, from 
 whatever cause or however momentary. 
 
 The air of night is more favorable than that of the 
 day, for the transmission of sound. Gray puts down 
 in his journal, while visiting Keswick and its neigh- 
 borhood, — "In the evening I walked down to the lake, 
 
 by the side of Crow-park, after sunset 
 
 At a distance were heard the murmurs of many water- 
 falls, not audible in the day time." J 
 
 " This is certain, that whatever alterations are made 
 in the body, if they reach not the mind ; whatever im- 
 pressions are made on the outward parts, if tliey are 
 
 * The Corsair, canto iii. t Eothen, ch. xvii. 
 
 I Gray's Works, Vol. 11. p. 2(5G, cd. 1807. 
 3
 
 26 OF PERCEPTION. 
 
 not taken notice of within ; there is no perception. 
 . . . . How often may a man observe in himself, 
 that whilst his mind is intently employed in the con- 
 templation of some objects, and curiously surveying- 
 some ideas that are there, it takes no notice of impres- 
 sions of sounding bodies made upon the organ of hearing, 
 with the same alteration that uses to be for the producing 
 the idea of sound ! A sufficient impulse there may be 
 on the organ, but it not reaching the observation of the 
 mind, there follows no perception ; and though the mo- 
 tion that uses to produce the idea of sound be made in 
 the ear, yet no sound is heard. Want of sensation, in 
 this case, is not through any defect in the organ, or 
 that the man's ears are less affected than at other times 
 when he does hear ; but that which uses to produce the 
 idea, though conveyed in by the usual organ, not being 
 taken notice of in the understanding, and so imprinting 
 no idea on the mind, there follows no sensation." - 
 In Scott's " Rokeby," canto i., are these lines : 
 
 *■ Far townward sounds a distant tread, 
 And Oswald, starting from his bed, 
 Hath caught it, though no human ear, 
 UnshariDened by revenge and fear, 
 Could e'er distinguish horse's clank. 
 Until it reached the castle's bank." 
 
 To these lines Sir Walter has added the note, — " I 
 have had occasion to remark, in real life, the effect of 
 keen and fervent anxiety in giving acuteness to the 
 organs of sense." f 
 
 * Locke on the Understanding, Book n. ch. ix. [Persons accustomed 
 to sit in a room in which is a striking clock, very seldom are conscious 
 of hearing it strike. ] 
 
 t [Aji illustration of this is the case of Jessie Brown, at the siege of 
 Lucknow. This young woman was in the besieged garrison, the expected 
 relief failed to arrive, the prospect of capitulating drove her frantic, but 
 she heard long before any other of the besieged the music played by the
 
 OF PERCEPTION. 27 
 
 A person may catcli some only of, and not all, the 
 words, wliicli another sj^eaks ; and a consequence may 
 be, that the words caught do not express the speaker's 
 meanincf. A ludicrous instance of this is contained in 
 a story thus told by Hume : 
 
 " Some young gentlemen of Lincoln's Inn, heated 
 by their cups, having drunk confusion to the Arch- 
 bisho]) (Laud), were, at his instigation, cited before the 
 Star Chamber. They applied to the Earl of Dorset 
 for protection. ' Who bears witness against you ? ' said 
 Dorset. ' One of the drawers,' they replied. ' Where 
 did he stand when you were supposed to drink this 
 health?' subjoined the Earl. 'He was at the door,' 
 they replied, ' going out of the room.' ' Tush ! ' cried 
 he ; ' the drawer was mistaken : You drank to the 
 confusion of the Archbishop of Canterbury's enemies ; 
 and the fellow was gone before you pronounced the 
 last word." * 
 
 Frequently it is the latter part of what is said that 
 is heard, and not the beginning. A variety of causes 
 may occasion this ; as noise at the commencement, the 
 low tone of the S2;)eaker's voice at that time, or the cir- 
 cumstance that the hearer's attention was not attracted 
 to the speaker, until he had advanced in what he was 
 saying. 
 
 Writers, ancient and modern, agree, that the eye 
 perceives quicker and better than the ear. f 
 
 band accompanying the soldiery approaching to relief of the garrison. 
 When she called attention to the sound, it was regarded as a delusion of 
 her distempered imagination.] 
 
 * Hume's Hist. Vol. VI. p. 251, ed. 1763. 
 
 t " The business of the drama must aj^pcar 
 In action or description. What we hear. 
 With weaker passion will atVect the heart. 
 Than when the faithful eye beholds the part."— Francis. 
 
 Cie. De Orat. ii. ST. Ilor. De Art. Poet. 180. Otid, De Ponto, lib. iil. el. 4, 21. 
 
 Simonides, or some one else, has observed that those things are most
 
 28 OF PERCEPTIO]^. 
 
 Hooker remarks, " That which we drink in at our 
 ears doth not so piercingly enter, as that which the 
 mind doth conceive by sight." * Hooker also says 
 of the eye, that it is " the liveliest and the most ap- 
 prehensive sense of all other ; " and he thinks that 
 things presented to the eye are more fit than words to 
 make a deep and strong impression ; that actions are 
 better remembered than words ; and to this cause he 
 refers the use of ceremonies performed on many occa- 
 sions. " We must not think," he says, " but that there 
 is some ground of reason, even in nature, whereby it 
 cometh to pass, that no nation under heaven either 
 doth, or ever did, some public actions which are of 
 weight, whether they be civil and temporal, or else 
 spiritual and sacred, without some visible solemnity ; 
 the very strangeness whereof, and difference from that 
 which is common, doth cause popular eyes to observe 
 and to mark the same. Words, both because they are 
 common, and do not so strongly move the fancy of 
 man, are, for the most part, but slightly heard ; and 
 
 fixed in the memory, which our senses have conveyed there ; and that sight 
 is the most acute of all our senses ; and, for this reason, what we have 
 heard we can best remember, when the hearing was accompanied by . 
 sight. [In the report of the trial of Saurin ^J. Starr, known as The Great 
 Nunnery Case, the reporter has this note to the proceedings on the ninth 
 day of the trial : To day the principal sensation was caused by the pro- 
 duction of the worn out stockings and other clothing brought by the 
 plaintiff from the convent in Yorkshu'e, and of various articles mentioned 
 in the evidence. On the occurrence of this spectacular incident, there was 
 very noticeable excitement in court. Realism seldom fails to heighten the 
 effect of language, even when those to whom the double argument is ad- 
 dressed are men of intellect and culture. If proof were needqd that ocular 
 illustration commands a readier and more attentive notice, from the high 
 as well as the low in mental condition, than the clearest statement, or most 
 forcible appeal that words will carry, such proof was this day given in the 
 Court of Queen's Bench.] 
 
 * Hooker's Sermon on the Natm-e of Pride, Vol. HI. of his Works, pv 
 391, ed. 1823.
 
 OF PERCEPTION. 29 
 
 therefore, witli singular wisdom it Latli been provided 
 that the deeds of men, which are made in the i:)resence 
 of witnesses, should pass not only with words, but also 
 viiih certain sensible actions, the memory whereof is 
 far more easy and durable than the memory of speech 
 can be." ^^ Corresponding with what Hooker says, is 
 this observation of Dr. Johnson on nations " where 
 there is hardly the use of letters : " " Their only re^-is- 
 ters are stated observances and practical rej^resenta- 
 tions. For this reason, a;n asje of is^norance is an ao-e 
 of ceremony. Pageants, and processions, and commem- 
 orations, gradually shrink away, as better methods come 
 into use of recording events and preserving rights." f 
 
 Bishop Lowth, in his lectures on Hebrew poetiy, 
 thus speaks of the eye : " Of the assemblage of images, 
 which the human mind collects from all nature, the 
 least clear and evident are those, which are explored 
 by reason and argument; the more evident and dis- 
 tinct are those, which are formed from the impressions 
 made by external objects on the senses ; and of these, 
 the clearest and most vivid are those, which are "pev- 
 ceived by the eye. Hence, poetry abounds most in 
 those images, which are furnished by the sens'es, and 
 chiefly those of the sight, in order to depict the obscure 
 by the more manifest, the subtile by the more substan- 
 tial." X 
 
 Professor "Wilson's " Noctes " contains this passage 
 on sight and hearing : 
 
 '' The memory seems to have more command over 
 
 * Hooker's Ecclos. Pol. B. IV. Vol. I. of his Works, p. 303, ed. 1822. 
 
 t Journey to the Hebrides, p. 108, ed. Edinb. 1798. [Mr. Mayne in his 
 Treatise on Ancient Law, (p. 280, English ed.) speaks of the ''pcqilexed 
 ceremonies in which ancient law delights."] 
 
 I Lowth's Lectures on the Sacred Poetry of the Hebrews, Part II. sect, 
 V. p. 67, ed. 1847.
 
 30 OF PEECEPTION. 
 
 sights than over sounds. We can shut our eyes, yet 
 see all nature. But music, except when it breathes, 
 has no residing place within the cells of the ear. So 
 faint, so dim the dream, it hardly can be said to be, till 
 one sino-le note awakes, and then the whole tune is 
 suddenly let loose upon the soul." 
 
 Some persons are gifted with an extraordinary 
 power of seeing objects afar off. "The Bedouin, so 
 often engaged in irregular warfare, strains his eyes to 
 the horizon in search of a coming enemy, just as habit- 
 ually as the sailor keej)S his ' bright look out ' for a 
 strange sail. In the absence of telescoj)es, a far reach- 
 ing sight is highly valued, and Lady Hester (Stanhope) 
 possessed this cj[uality to an extraordinary degree. She 
 told me that on one occasion, when there was good rea- 
 son to expect hostilities, a far-seeing Arab created great 
 excitement in the camp, by declaring that he could just 
 distinguish some moving objects upon the very farthest 
 point within the reach of his eyes : Lady Hester was 
 consulted, and she instantly assured her comrades in 
 arms, that there were indeed a number of horses with- 
 in sight, but that they were without riders ; the asser- 
 tion proved to be correct, and from that time forth her 
 superiority over all others, in resj)ect of far sight, re- 
 mained undisputed." f 
 
 * Wilson's Noctes Ambrosiange, Vol, II. p. 256, ed. l§o5. 
 t Eothen, cli. viii. p. 93, 5th ed.
 
 CHAPTER III. 
 
 OF i:mpeession 
 
 There is a capability in the mind to receive on it 
 an impression of tilings it perceives. Wlienever a man 
 sees or hears any thing, what he sees or hears probably 
 makes some impression on his mind ; but often the 
 impression is so slight and transitory, that all trace of 
 it is soon gone. The mind is attentive to what it sees 
 or hears, more or less, according to circumstances ; and 
 in dependence on them, the impression of it is strong 
 or weak, clear or obscure. The strength or clearness of 
 the imj^ression may also depend on the power or fitness 
 of the eye or ear to receive it. The language of Locke, 
 when speaking of the causes of obscurity in ideas, 
 seems here to be a2:)plicable. " If," he says, " the organs 
 or faculties of perception, like wax over-hardened with 
 cold, will not receive the impression of the seal, from 
 the usual impulse wont to imprint it ; or, like wax of 
 a temper too soft, will not hold it well when well im- 
 printed ; or else, supposing the wax of a temper fit, 
 but the seal not applied with a sufficient force to make a 
 clear impression ; in any of these cases, the print left 
 by the seal will be obscure." * 
 
 One man may pass another, and in passing see him, 
 and yet the sight of him may make little impression on 
 his mind. He may have but a very slight impression 
 of his features, height, or dress. But if he look at 
 him purposely to inform himself of his features, stature, 
 
 * Locke on the Understanding, Book II. ch. xxix.
 
 32 OF IMPEESSIOX. 
 
 or dress, then probably tlie impression will be deep. 
 A man met on an unfrequented path attracts atten- 
 tion ; while, if encountered on a high-road, he might 
 pass unregarded. An unusual gait, manner, or dress 
 of a j^erson excites notice. An unusual sight or sound 
 may be deeply impressed on the mind ; as the sight of 
 a wounded man, or a shriek of alarm. If a j)istol, 
 knife, or other formidable weapon, is seen in the hand 
 of a man, in a place, or at a time, which does not sort 
 with his armed appearance, attention is drawn to him. 
 
 " Upon that niglit (a peasant's is the tale) 
 A serf that cross'd the intervening vale, 
 When Cynthia's light almost gave way to mom, 
 And nearly veil'd in mist her waning horn ; 
 A serf, that rose betimes to thread the wood, 
 And hew the bough that bought his children's food, 
 Pass'd by the river that divides the plain 
 Of Otho's lands and Lara's broad domain : 
 He heard a tramp — a horse and horseman broke 
 From out the wood — before him was a cloak 
 Wrapt round some burthen at his saddle-bow, 
 Bent was his head, and hidden was his brow. 
 Roused by the sudden sight at such a time. 
 And some foreboding that it might be crime. 
 Himself, unheeded, watched the stranger's course." * 
 
 It may be strongly impressed on ' the mind, 
 that among an assemblage of j^ersons, some distin- 
 guished man, one eminent by his rank, bj' his military 
 services, or by his scientific knowledge, was one of the 
 persons assembled. So it may make an imj^ression, 
 that a person was there, about whom there was some- 
 thino; remarkable, as lano;uao:e or dress seldom heard 
 or seen. In like manner, there may be impressed on 
 the mind a particular conversation in a company : one 
 embracing a novel view of a subject ; a narrative rivet- 
 ing attention by its unusual incidents. 
 
 * Lara, canto ii. st. 24.
 
 OF IMPRESSION. 33 
 
 "Me in particular (to whom the Irish leaders of 
 society were as yet entirely unknown by sight) it 
 gratified highly to see persons of historical names — 
 names, I mean, historically connected with the great 
 events of Elizabeth's or Cromwell's era — attendino; at 
 the Phoenix Park. But the persons whom I remember 
 most distinctly of all whom I was then in the habit of 
 seeing, were Lord Clare, the Chancellor, the late Lord 
 Londonderry (then Castlereagh), at that time the 
 Irish Chancellor of the Exchequer, and the Speaker of 
 the House of Commons (Mr. Foster)." * 
 
 When we see a friend, who from any cause has 
 become altered in his appearance since we saw him 
 last, this change is likely to make a deep imj^ression on 
 the mind. Lord Malmesbury, in his Diary, thus men- 
 tions the impression made on him by Mr. Pitt's altered 
 a232:>earance the last time he saw him : 
 
 " On 3d November [1805] he and Lord Mulgrave 
 came to me in Spring Gardens with a Dutch news- 
 paper, in which the capitulation of Ulm was inserted at 
 full length. As they neither of them understood Dutch, 
 they came to me to translate it, which I did as well as 
 I could; and I observed but too clearly the effect it 
 had on Pitt, thouo-li he did his utmost to conceal it. 
 This ivas tlie last time I saw Mm. He promised me to 
 come for a few days to Park Place, on his return from 
 Bath, where he was then going, but was too ill to keep 
 his word. This visit has left an indeliUe impression 
 on my mind, as his manner and look were not his otvn, 
 and gave me, in spite of myself, a foreboding of the 
 loss with which we were threatened." f 
 
 When one j^erson hears another S2:)eak, the impres- 
 
 * De Quincey's Autobiograpliic Sketches, p. 225, ed. 1853. 
 
 t Diaries of the First Earl of ]Malmesbui7. Vol. IV. p. 340, ed. 1844,
 
 34 OF IMPEESSIOX. 
 
 sion which the words uttered make on the mind of the 
 hearer is frequently, not that of the very words, but of 
 the sense or import of them. A witness, asked what 
 he heard a person say, does in reply often mention par- 
 ticular words, but Cjualifies them by adding, " or some- 
 thing of that sort ; " or " some such terms ; " or " words 
 to that effect ; " or " some expression of that description ;" 
 " I don't pledge myself for the exact words, but cer- 
 tainly to that effect ; " "I heard A. speak to B. to this 
 effect : ' I think,' <fec. I do not pretend to state A.'s 
 words, but the substance I believe I am correct in." 
 
 It very often happens that words heard make no 
 lasting imj^ression : 
 
 •• I have slight memorj- of that walk — 
 Argyle. I think, spoke earnestly 
 On state affairs, but of his talk 
 Not any word i-emains with me." * 
 
 An aid to impression is contemj^lation, by which 
 we keej) for some time actually in view any thing we 
 see.f 
 
 " The traveler who, with a heart at ease, 
 Had seen the goodly vision, would have loved 
 To linger, seeking with insatiate sight- 
 To treasure up its image, deep impress'd, 
 A joy for years to come."' I 
 
 It generally, j^erhaps, happens that when a person 
 by his sight or hearing perceives something, and its 
 concomitant circumstances, his mind is chiefly attentive 
 to the thing seen or heard,, which, therefore, is more 
 deeply im23ressed on the mind than the accompanying 
 circumstances are. If the thino; be the launch of a 
 vessel, the launch itself will be fixed more deej^ly in 
 
 * Aytoun's Bothwell, Part III. 
 
 t Locke on the Understanding, Book II. c. x. 
 
 I Soutbey's Roderick, canto v.
 
 OF IMPRESSION. 35 
 
 the mind than the circumstances attending it : as, the 
 time, the day or year of the launch, even the name of 
 the vessel, the presence of particular persons assembled 
 on the occasion. " So easily does mere external pomp 
 slip out of the memory, as to all its circumstantial 
 items, leaving behind nothing beyond the general 
 impression, that, at this moment, I remember no one 
 incident of the whole ceremonial [Installation of the 
 knights of St. Patrick], exce^ot that some foolish person 
 laughed aloud as the knights went up with their offer- 
 ings to the altar ; the object of this unfeeling laughter 
 being ajDparently Lord Altamont, who hapjiened to be 
 lame — a singular instance of levity to exhibit within 
 the walls of such a building [Cathedral of St. Patrick 
 at Dublin], and at the most solemn part of such a 
 ceremony." ^ 
 
 Any cause of abstraction of attention fi'om an 
 object may occasion that, the object make a very small, 
 or even perhaps no, impression on the mind. 
 
 " In a gambling house of that class, where you are 
 at liberty to sit down to a splendid banquet, anxiety 
 probably prevents your sitting down at all ; but if you 
 do, the same cause prevents your noticing what you 
 eat." t 
 
 " She sate upon the galley's prow, 
 And seem'd to mark the waves below ; 
 Nay, seem'd, so fix'd her look and eye. 
 To count them as they glided by. 
 She saw them not — 'twas seeming all — 
 Far other scene her thoughts recall, — 
 A sun-scorch'd desert, waste and bare, 
 Nor waves, nor breez.es, murmur'd there ; 
 There saw she — where some careless hand 
 
 * De Quincey's Autobiographic Sketches, p. 226, ed. 1853. 
 t De Quincey's Miscellanies, the Casuistry of Roman Meals, p. 367, ed. 
 1854.
 
 36 OF IMPRESSION. 
 
 O'er a dead corpse had lieap'd tlie sand. 
 To liide it till the jackals come, 
 To tear_it from the scanty tomb." * 
 
 Suppose A. to be sj)eaking in public, and B., one of 
 liis liearers, looks for a minute or so attentively at A. 
 for a particular purpose, as to observe his action, or to 
 ascertain wlietlier lie is speaking wholly ex tempore^ or 
 from notes, it is extremely probable that what A. says 
 in this space of time, so employed by B., will be neai'ly 
 wholly lost upon B., very slightly impressed on his 
 mind, although, perhaps, necessarily the words, or 
 rather, perhaps, the sound of the words, were heard by 
 him. 
 
 One sound may drown another. "When I say 
 firing," observed a witness on Frost's trial, " really the 
 noise and din of breaking in the windows in the room 
 where I was, was so great, that, although firing actually 
 occiu'red, I could not distinctly swear that I heard any 
 firing at all." f 
 
 There are persons who possess an inclination, which 
 sometimes grows into a habit, particularly to notice, 
 things which they see or hear. Such notice of them 
 necessarily tends to strengthen the impression. The 
 inclination may arise from their judging the things 
 they notice to be remarkable, and deserving of re- 
 membrance. J 
 
 The same inclination may proceed from a person's 
 having an object in view in collecting in his mind 
 individual matters. Dr. Johnson observes on Swift's 
 " Polite Conversation " and '' The Direction for Serv- 
 ants " — " These two performances show a mind inces- 
 santly attentive, and when it was not employed upon 
 
 * Marmion, canto ii. t Frost's Trial (taken by Giirney), p. 193. 
 
 X See Romeo and Juliet, A. v. So. 1.
 
 OF IMPKESSIOIf. 37 
 
 great tilings, busy with minute occurrences. It is 
 apparent tliat lie must Lave had the habit of noting 
 whatever he observed, for such a number of particulars 
 could never have been assembled by the power of 
 recollection." * 
 
 Persons of a sensitive mind take an impression -of 
 minute things which they see and hear. Who can 
 doubt that, not in mere poetic imagination, but in 
 reality, Rogers, the jDoet, saw and heard, and took a 
 deep impression of what he relates he saw and heard 
 while standing in one of the temj^les at Psestum. 
 
 " As alone I stand 
 In this, the nobler jjile, the elements 
 Of earth and air its only floor and covering, 
 How solemn is the stillness ! Nothing stirs 
 Save the shrill-voiced cigala flitting round, 
 On the rough pediment to sit and sing ; 
 Or the green lizard rustling through the grass, 
 And up the fluted shaft with short quick motion, 
 To vanish in the chinks that Time has made." t 
 
 * Johnson's Life of Swift. t Rogers' *' Lines written at Paestum."
 
 CHAPTER IV. 
 
 OF MEMORY. 
 
 There is a power hi tlie mind to retain an impres- 
 sion of tilings perceived by tlie eye or ear. Every 
 impression continues some portion of time. Of tlie 
 continuance there are degrees, varying from an instant 
 to many years. Numerous impressions, probably the 
 greater number of them, wholly perish so soon as made. 
 Impressions which do not thus quickly perish, have a 
 storehouse in which they are kept, and which we call 
 Memory. There they are retained for a longer or 
 shorter time, according to circumstances. And prob- 
 ably this time, in many cases, is in i^roj^ortion to the 
 depth of the impression.* 
 
 Any thing new or extraordinary may make a deep 
 impression, and so remain long in the memory ; while 
 other things of daily or common occurrence, making 
 but little imj^ression, soon glide from it.f 
 
 * Locke on the Understanding, Book II. ch. x. 
 
 t Things of little importance, and "vyhich happen every day, we do not 
 remember, because scarcely a!ny thing but what is liew, or surprising, 
 makes much impression on the mind. But if we see or hear any thing 
 extraordinarily bad or good, something unusual, gigantic, incredible, or 
 very ridiculous, this we usually remember a long time. Things, likewise, 
 of the present day, whether we see or hear them, we generally forget ; but 
 what happened in our boyhood, we often remember exceedingly well. 
 And the only reason for this difference can be, that the common things of 
 the present day easily escajDe from the memoiy ; whereas things which 
 were new and remarkable in boyhood, made then a deep impression on the 
 mind. The rising and setting of the sun, and its constant course in the 
 heavens, cause no attention, for this reason, that they take place daily ; 
 but eclipses of the sun are taken notice of, because they are not so com-
 
 OF MEMORY. 30 
 
 In tlie course of time, from a variety of causes, 
 many impressions escape out of tlie memory, and are 
 forever lost. How many impressions of jiersons and 
 things we have seen and heard have entirely perished ! 
 How many impressions of once most familiar faces, of 
 schoolfellows, fellow-travelers, of even brothers, sisters, 
 children, parents ! , 
 
 " North. All dead — one after another — the friends 
 in whom lay the light and might of my life — and 
 memory's self is faithless now to the ' old familiar faces.' 
 Eyes — brows — lips — smiles — voices — all — all forgot- 
 ten ! Pitiable, indeed, is old age, when love itself 
 grows feeble in the heart, and yet the dotard is still 
 conscious that he is, day by day, letting some sacred 
 remembrance slij) forever from him, that he once cher- 
 ished devoutly in his heart's core, and feels that mental 
 decay alone is fast delivering them all up to oblivion ! 
 
 81ie]jlierd. Sittin Avi' rheumy een, mumblin wi' his 
 mouth on his breist, and no kennin frae ither weans his 
 grandchildren, wha have come to visit him wi' their 
 mother, his ain bricht and beautifu' dauchter, wha 
 seems to him a stranger passing alang the street." * 
 
 Wesley, upon commencing his 85tli year, and enum- 
 erating his infirmities, says, — "I find, likewise, some 
 decay in my memory with regard to names and things 
 lately passed ; but not at all with regard to what I 
 have read or heard twenty, forty, or sixty years ago." 
 And again, upon his 86th birth day, he says, — "My 
 memory of names, whether of persons or places, is de- 
 cayed, till I stop a little to recollect them." f 
 
 mon ; and eclipses of the sun are more observed tUan those of the moon, 
 because these are more frequent. — Ck. ad. Eerennittm, iii. 22. 
 
 * Wilson's Noctes Ambrosianae, Vol. III. p. 298, ed. 1856. 
 
 t Southey's Life of Wesley, Vol. II. i)p. 557, 560, ed. 1820.
 
 40 OF MEMORY. 
 
 Mr. Wilberforce thus sj^eaks of his own memory : — 
 " I find my memory failing me — partly, I doubt not, 
 from advancing years; but this effect accelerated and 
 exaggerated by the incessant bustle in which I have 
 lived, and by my not taking pains to obtain sufficiently 
 deejD impressions." ^ 
 
 While impressions are retained in the memory, there 
 is a consciousness of the persons or things which made 
 the impressions ; a consciousness felt whenever we are 
 thinking of them, and latent when they do not occupy 
 our present thought. Thought of them is produced by 
 a variety of powers, external to the memory, and 
 whose office it is to cause the thought of them. For 
 a property of memory is, that when touched by those 
 powers, it gives up the persons or things which made 
 the impressions ; these persons or things then come be- 
 fore the mind's eye, and become the subject of thought. 
 Between those powers and the persons or things they 
 call forth, there is a certain affinity or association. The 
 power may be, some person or thing we see, some voice 
 or sound we hear ; it may be a particular day of the 
 year ; it may be a thought passing in the mind of some 
 other thing ; it may be thought in search of the im- 
 pression made ; it may be a question put to us. And 
 often the impression starts up and comes before us, un- 
 expectedly, without the mind's searching for or at all 
 thinking about it. 
 
 " Sounds do not always give us pleasure according 
 to their sweetness and melody ; nor do harsh sounds 
 always displease. We are more apt to be captivated 
 or disgusted with the associations which they 23romote, 
 than with the notes themselves. Thus the shrilling of 
 the field-cricket, though sharp and stridulous, yet mar- 
 
 * Wilberforce's Diary, Life of Wilberforce, Yol. m. p. 497, ed. 1838.
 
 OF MEMORY. 41 
 
 velously delights some liearers, filling their minds with 
 a train of summer ideas of every thing: that is rural, 
 verdurous, and joyous." * 
 
 Cowper, . in a letter to a friend, says, — " I have 
 taken, since you went away, many of the walks which 
 we have taken together, and none of them, I believe, 
 without thoughts of you. I have, though not a good 
 memory in general, yet a good local luemory, and can 
 recollect, hj the help of a tree or a stile, Avhat you said 
 on that particular spot. For this reason I purjiose, 
 when the summer is come, to walk with a hook in my 
 pocket : what 1 read at my fireside I forget, but what 
 I read under a hedge, or at the side of a pond, that 
 pond and that hedge will always bring to my remem- 
 brance ; and this is a sort of memoria technica^ which I 
 would recommend to you, if I did not know that you 
 have no occasion for it." f 
 
 Cowper had a local memory, in the sense that place 
 brought to his mind some impression it received at that 
 place. 
 
 Coleridge usually remembered an object he saw, but 
 not the place where he saw it. " I have," he says, " the 
 perception of individual images very strong, but a dim 
 one of the relation of place. I remember the man or 
 the tree, but where I saw them I mostly forget." % 
 
 The sono; of an encao:ed thrush in a London street 
 may bring before the eyes of a woman passing, her 
 early habitation and its rural scenery, the cottage, hill, 
 dale, river, and pastures. § 
 
 * White's Nat. Hist, of Selborne, Letter 42. 
 t Cowper's Worlts (Letters), Vol. VI. p. 207, ed. 1836. 
 X Coleridge's Table Talk, Vol. I. p. 74, cd. 1835. See Rogers' Plea- 
 sures of Memory, Part I. ; and Cowper's Walk at Noon. 
 § Wordsworth's Reverie of Poor Susan. 
 4
 
 42 OF MEMORY. 
 
 HoAV vividly did a " beautiful " niglit, existing in 
 Lord Byron's imagination only, recall to his mind tlie 
 reality of sucli a night seen in his youth, with all the 
 incidents of the scene he viewed."^' 
 
 AYhat power there is in a keepsake, to call to mind 
 the giver of it ! 
 
 " Nortli. I chanced to look at this rins: — 
 
 Slie'plierd. What ! The ane on your wee finger ? 
 The finest diamond ever glittered. 
 
 Nortli. And the image of the Noble Being, in 
 
 remembrance of whom I have worn it for twenty years, 
 
 rose up before me — methought in the very attitude, in 
 
 which he used of old to address a public assembly — 
 
 • the rio'ht arm extended — so — 
 
 Slieplierd. Few things in this weary warld sae 
 delichtfu' as keepsakes ! Nor do they ever to my heart 
 at least, nor to my een, ever lose their tender, their 
 powerfu' charm ! 
 
 Nortli. How slight, how small, how tiny a memo- 
 rial saves a beloved fi'iend from oblivion — worn on the 
 fino-er — 
 
 o 
 
 Shepherd. Or close to the heart ! Especiall}^ if he 
 be dead ! " f 
 
 A particular day recurring may cause us to think 
 of an event, which happened on the same day in an- 
 other 5'ear ; as a marriage, a birth, a death. And, con- 
 versely, the event may bring into our thoughts the day 
 of the year. Mr. Whitbread's reply on Lord Melville's 
 trial, by impeachment before the House of Lords, con- 
 tains this passage : " There are particular circumstances, 
 which lead me to the remembrance of this day (11th of 
 June). There are in the history of every man, however 
 
 * Manfred, A. iii. Sc. 4. 
 
 t Wilson's Xoctes Ambrosiaure, Vol. II. p. 264. ed. 1855.
 
 OF MEMORY. 43 
 
 obscure, certain dies notandi. Some, indeed, bring to 
 the minds of tlie children the gallant exploits of their 
 ancestors; others have their memory impressed, like 
 myself, by more humble events. Now the 11th of June 
 is to me a dies notandus. On the 11th of June my 
 father set up in business; on the 11th of June he -an- 
 nually balanced his accounts ; and on the 11th of June 
 his son was required to assist him in this laborious duty. 
 On the 11th of June he knew the progressive increase 
 of his substance, and the generous fruits of his honest 
 industry. On the 11th of Juiie my father died, and 
 the day on which a good man dies is not to be forgot- 
 ten." * 
 
 Time, passing or past, is of itself a fact, and is ne- 
 cessarily a concomitant circumstance of every other 
 fact. If a person sees or hears or does any thing, the 
 time when he sees or hears or does it, he may, or may 
 not, remember. It will be impressed on his mind, if, 
 from any cause, he noticed the time, as by looking at 
 his watch, or hearing a clock strike. 
 
 A.'s remembrance of the time, at which B. was at a 
 particular place, C, is often a part of the evidence, which 
 proves that B. was not at that time at another place, 
 D. ; which j^roves, that is, an alibi. The other part of 
 the evidence of an cdihi is, the proof of the distance be- 
 tween the two places, C. and D. ; the distance making 
 it impossible for B. to ])e at D., at the particular time 
 A. remembers B. was at 0. f 
 
 If T. is charged with committing a murder at a cer- 
 tain pit of water between about 25 minutes after 4 
 
 * Report of the Trial, p. 354. 
 
 t If you say I did this on a particular day, but I at that very time was 
 beyond sea, your assertion goes for nothing, as not only I did not do what 
 you say, but I could not by auy possibility do it. — 0>. De Invent, i. 29.
 
 44 OF MEMORY. ' 
 
 o'clock and 25 minutes before 5 o'clock on the same 
 morning (witkin a time consisting of about 10 minutes 
 only), evidence of time and distance to prove an alihi, 
 and consequently tkat T. did not commit tke crime, 
 may be, tkat not later tkan 25 minutes before 5 o'clock 
 several persons saw T. walking slowly, leisurely, and 
 composedly close to tke kouse of H., and tkat tke dis- 
 tance of the pit of water from tke house of H., is 1 
 mile 7 furlouo-s and 170 vards.* 
 
 If a witness H. says tkat on tke 4tk of IN'ovember, 
 between 7 and 8 in the morning, he was at P., a dis- 
 tance of 12 miles from his own kouse at B., and tkat at 
 tkat time at P. an important conversation took place ; 
 evidence to prove an alihi., or tkat H. was not at tkat 
 time at P., but in bed at kis own kouse, may be, tke 
 evidence of J., tkat between 8 and 9 on tke same morn- 
 ing ske saw H. in bed at kis own kouse at B. ; and 
 evidence to prove another alihi, in direct contradiction 
 to that of the witness J., may be, H.'s own evidence 
 that he was not at home till between 9 and 10 on the 
 same mornino- • that on the same mornino; he walked 
 from P. to his own house ; and the evidence of another 
 witness "W., that he on tke same morning met H. at W. 
 O. from kalf-past 8 to 20 minutes before 9, 3 miles and 
 a kalf from P., and about 8 miles from B. In suck a 
 case, J. is called to prove that H, could not have been 
 at P. at the time he alleo-es the conversation to have 
 taken place. Then again, on the other side, W. is called 
 to show, that J. could not have T)een correct in the 
 time she states, for that W. met H. on the road at such 
 a time, as would render it absolutely impossible that 
 he could have been in bed at the time J. states.f 
 
 * Ashford v. Thornton, 1 Barn, and Aid. 405. 417, 418, 419, 430, 431, 
 439, 440. 450. 
 
 t Frost's Trial (taken by Gui-ney), Evidence of Hodge, Mary JoneSi 
 and Watts, pp. 297, 537. 534, 723, 733, 734.
 
 OF MEMORY. 45 
 
 In most cases, tlie time when a person sees, or hears 
 or does any thing is, at the time, quite unnoticed by 
 him, and consequently it is not at all impressed on his 
 mind. In such a case it is not in his memory, and 
 therefore he cannot recollect it. He may, nevertheless, 
 be able to name the time ; and if he does, he will do it 
 quite independently of any impression, which the time 
 made on him. He may arrive at it by argument ; and 
 in this way name the time with considerable, or even 
 perfect, exactness. He may be able to say on what day 
 or month, or other time, a particular event took place, 
 by knowing that it happened at a marked time, as the 
 anniversary of a birth, marriage, death, or other event 
 
 " Hamlet, How long hast thou been a grave- 
 maker ? 
 
 Cloivn. Of all the days i' the year, I came to 't 
 that day, that our last king Hamlet overcame Fortin- 
 bras. 
 
 Hamlet How long's that since ? 
 
 Oloum. Cannot you tell that ? Every fool can tell 
 that : it was that very day, that young Hamlet was 
 born." -^ 
 
 An earthcjuake made the nurse in "Romeo and 
 Juliet " remember when Juliet was weaned.f 
 
 Part of an examination relating to the time of a 
 marriao-e was in these terms : 
 
 " Q. Can you fix what year this was ? 
 
 A. I believe it to be in the year 1744, but I am cer- 
 tain it was the same year, in which the Victory was at 
 Portsmouth. 
 
 Q. Do you recollect what time of tlie year it was ? 
 
 A. In the month of August, I think. 
 
 * Hamlet, A. v. S. 1. t Acti. S. 3.
 
 46 • OF MEMORY. 
 
 Q. What is your reason for tliinking it was in the 
 month of August ? 
 
 A. My reason is, that it was in the time of Maun- 
 liill fair; and also that there were greengages ripe, 
 which the lady and gentleman were both very fond 
 of."-" 
 
 A written memorandum is a common means of re- 
 . collection, and to this end is often recommended and 
 made. 
 
 " Lady Machetli. Yet here's a spot. 
 
 Doctor. Hark, she speaks : I will set down what 
 comes from her, to satisfy my remembrance the more 
 strongly." f 
 
 Two great authorities. Gray and Dr. Johnson, offer 
 most judicious advice to travelers, to take notes in 
 writing of what they see, and not to trust to their 
 memory. Gray, in a letter to his friend Mr. Palgrave, 
 who was makino; a tour in Scotland, desires him to send 
 him some account of " the savage, the rude, and the 
 tremendous " scenes he was making acquaintance with 
 there ; and adds, — " It will be the easier task, as you 
 have nothing to do but transcribe your little red books, 
 if they are not rubbed out ; for I conclude you have 
 not trusted every thing to memory, which is ten times 
 worse than a lead pencil ; half a word fixed upon or 
 near the sjDot is worth a cart load of recollection. 
 When we trust to the picture, that objects draw of 
 themselves on our mind, we deceive ourselves ; with- 
 out accurate and particular observation, it is but ill- 
 drawn at first, the outlines are soon blurred, the colors 
 every day grow fainter ; and at last, when we would 
 produce it to any body, we are forced to supply its de- 
 
 * Trial of Ducliess of Kingston, folio, p. 110. 
 
 t Macbeth, A. v. S. 1. ; and see Cymbeline, A. ii. S. 2.
 
 OF MEMOEY. 47 
 
 fects witli a few strokes of our own imagination. I 
 suppose I have done so myself before now, and misled 
 many a good body, that put their trust in me." * 
 
 In Dr. Johnson's " Journey to the Western Islands 
 of Scotland," after sj^eaking of his measuring a cave 
 with a walking pole, and observing that no man should 
 travel unprovided with instruments for taking heights 
 and distances, goes on to say, — " There is yet another 
 cause of error not always easily surmounted, though more 
 dangerous to the veracity of itinerary narratives, than 
 imperfect mensuration. An observer, deeply impressed 
 by any remarkable sj^ectacle, does not suppose that the 
 traces will soon vanish from his mind, and havino; com- 
 monly no great convenience for writing, defers the de- 
 scription to a time of more leisure, and better accom- 
 modation. He who has not made the experiment, or 
 who is not accustomed to require rigorous accuracy 
 from himself, will scarcely believe how much a few 
 hours take from certainty of knowledge, and distinct- 
 ness of imagery ; how the succession of objects will be 
 broken, how separate parts will be confused, and how 
 many particular features and discriminations will be 
 compressed and conglobated into one gross and general 
 idea. • To this dilatory notation must be imputed the 
 false relations of travelers, where there is no imaginable 
 motive to deceive. They trusted to memory what can- 
 not be trusted safely but to the eye, and told by guess 
 what a few hours before they had known with certainty. 
 Thus it was that Wheeler and Spen described, with 
 irreconcilable contrariety, things which they surveyed 
 together, and which both undoubtedly designed to 
 show as they saw them." f 
 
 * Gray's Works, Vol. II. p. 153, ed. 1S07. 
 t P. 257, ed. Ediub., 1798.
 
 48 OF MEMORY. 
 
 A written memorandum is a transcription of an 
 impression on tlie mind. The memorandum may be a 
 true transcription of tlie impression ; but if the impres- 
 sion be not a true one of the fact, as words uttered or 
 a deed done, tlie memorandum will not contain a true 
 rej)resentation of the fact. Supposing the fact, in- 
 tended to be recorded, is words spoken in the hearing 
 of the writer ; it is obvious the words may have been 
 wrongly caught by him, and therefore wrongly im- 
 pressed on his mind ; and if so, his memorandum of 
 them will not be a correct representation of the words. 
 Again, allowing the impression to have been rightly 
 made, yet owing to the frail nature of memory, it is 
 probable the only writing, which can be an exact copy 
 of the impression, is, that which is written contempo- 
 raneously, or as near as possible in time, with the im- 
 pression. If the memorandum be not so made, it is 
 likely it will be a more or less exact copy of the im- 
 pression, in proportion to the time intervening between 
 the impression and the writing. 
 
 The memorandum is of value as productive of tes- 
 timony, when it brings to mind the fact written down ; 
 when, on the writer's perusal of it, it causes him to re- 
 cognize the fact so vividly, that now, his recollection 
 thus aided, he can speak to the fact simply from the 
 original impression on his mind, and quite independ- 
 ently of the memorandum. Supposing the memo- 
 randum acknowledges the receipt of money, it may 
 bring to the mind of him, who wrote it, the fact of the 
 recei23t of the money. 
 
 Sometimes a memorandum will fail to call to mind 
 the fact mentioned in it, and yet be of value as evi- 
 dence ; as, taking the last instance, the memorandum 
 may not recall to the writer's mind the receipt of the 
 money, and yet make him feel sure that he did receive
 
 OF MEMORY. 49 
 
 ifc; seeing his writing, he says he has no doubt that he 
 received the money ; and his so saying is evidence of 
 his receipt of it. But this evidence is pUiinly inde- 
 pendent of remembrance of receiving the money ; the 
 writer does not remember it. * 
 
 " 'Wliere a witness, called to prove the execution of 
 a deed, sees his signature to the attestation, and says 
 that he is therefore sure, that he saw the party execute 
 the deed, that is a sufficient proof of the execution of 
 the deed, though the witness add, that he has no re- 
 collection of the fact of the execution of the deed." f 
 
 Great care is sometimes necessary, that imagination 
 do not take the place of memory and recollection. 
 
 "It is matter of frequent observation, that persons 
 dwelling for a long time on facts, which they believe 
 must have occurred, and trying to remember whether 
 they did so or not, come at last to persuade themselves, 
 that they do actually recollect the occurrence of cir- 
 cumstances, which at first they only begin by believing 
 must have happened. What was originally the result 
 of imaofination becomes in time the result of recollec- 
 tion ; and the judging of which, and drawing just in- 
 ferences from which, is rendered much more difficult by 
 the circumstance, that in many cases j^ersons do really, 
 by attentive and careful recollection, recall the memory 
 of facts, which had faded away, and were not, when 
 first questioned, jjresent to the mind of the witness. 
 Thus it is, that a clue given, or a note made at the 
 time, frequently recalls facts, which had passed from 
 the memory of the witness." J 
 
 The same learned judge, whose words have just 
 
 * See Maugham v. Hubbard, 8 Barn. & Cr. 14. 
 
 t 8 Barn. & Cr. 16. 
 
 J By Sir John Romilly, M. R. 10 Beavau, 18o.
 
 50 OF MEMORY. 
 
 been quoted, on another occasion made the following 
 observations on the same subject : 
 ^ " In the examination of the evidence of witnesses, 
 great difficulties of various sorts arise ; and one of the 
 difficulties and dangers with which the court has con- 
 stantly to deal, in examining the evidence of witnesses, 
 who are perfectly honest, and give their evidence per- 
 fectly hondjide, arises from their turning inference into 
 recollection. It frequently happens that a person, by 
 long dwelling on a subject, thinks that a thing may 
 have haj)pened, and he at last comes to believe that it 
 actually did occur. I have, in various cases, had occa- 
 sion to remark this, especially in cases of pedigree, 
 where j)ersons are endeavoring to recall conversations 
 about relationship, which establish their title. In these 
 cases, it is of great importance to distinguish whether 
 either the recollection tends to the benefit of the wit- 
 ness, or whether he is perfectly indifferent, having no 
 concern whatever in the matter. Undoubtedly, in the 
 cases to which I have alluded, I have frequently found, 
 that, when it was for the interest of the witness, by 
 dwelling long upon the subject, he has come to believe 
 that to have hapj^ened Avhich at first he did not remem 
 ber ; that he has turned inference into recollection, and 
 has at last given positive testimony, upon which the 
 court cou'ld place no reliance, although, at the same 
 time, willful perjury is not attributable to the witness. 
 But then, on the other hand, this peculiar quality of 
 memory, also, must be borne in mind (which we have 
 frequent opportunities of observing), that a very slight 
 and casual circumstance sometimes awakens recollection 
 in the mind of a Avitness, who, before that, had for- 
 gotten every thing relating to the matter. I have 
 myself seen this on various occasions, and a veiy strong 
 instance is present to my mind at this moment, where
 
 OF MEMORY. 51 
 
 a perfectly disinterested and respectable witness was 
 asked if he recollected a particular transaction ; he had 
 wholly forgotten it ; but a diary having been produced 
 and shown to him, in which there was an entry made 
 by himself, in his own handwriting, relating to the sub- 
 ject, he remembered not only the matter itself, but 
 many of the surrounding circumstances, which were 
 proved to be indisj^utably true by the evidence of the 
 other witnesses, and which, without the j^roduction 
 of the book, he would probably never have remem- 
 bered."* 
 
 A person may, from different sources, have two 
 impressions of what another has said. He himself 
 may have heard the words at the time they were 
 uttered; and he may have read a printed report of 
 them. And, in such a case, if he is called u^^on to 
 give evidence of the words he heard, he may not know 
 from which of the two sources his present impression 
 of them was derived ; and being, therefore, imable to 
 say he recollects the words from the impression they 
 made on him when he heard them, it will not be in his 
 power to prove that he heard the words spoken. 
 
 " The trial proceeded [a trial in Scotland for sedi- 
 tion, and for having taken and administered unlawful 
 oaths], and it was very soon established that illegal 
 oaths had been administered, and, in all human j^rob- 
 ability, by the 2:)risoner. But the truth of the par- 
 ticular charge was by no means so clear. This 
 depended on the exact words used. A very slight 
 change of expression could easily soften the character 
 of the oath into mere rashness, or doubt, or even inno- 
 cence, or aggravate into worse guilt than that charged. 
 . . . . Now, when the jirosecutor examined the 
 
 * 23 Beavan, 70, 71.
 
 52 • OF MEMORY. 
 
 witnesses he chiefly relied on for the precise terms, it 
 came ont that they had seen an oath in the news- 
 papers, which was said to have been quoted in the 
 House of Commons, that this was like the one they 
 had been privy to, but that they could not sej^arate 
 their recollection of what they had seen, from their 
 recollection of what they had heard, so that they 
 could not tell whether, in giving evidence, they were 
 doing more than reciting from the newspaper. On this 
 the prosecutor struck." " 
 
 AYhen several j^ersons have been present at the 
 same occurrence or transaction, if they afterward, and 
 l^erhaps at difterent times, talk among themselves 
 about it, it is very possible, or even likely, that 
 some of them may in time come to think they saw or 
 heard what they did not see or hear, but what others 
 of them say they saw or heard ; and thus each one's 
 original story may be much altered, losing something 
 and acquiring something: there being among the 
 talkers, quite unconsciously to themselves, and with 
 perfect honesty and good faith, a liberal interchange of 
 some truths, and, it may be, some fancies. 
 
 Many persons have been remarkable for a retentive 
 memory. Of the Greeks and Romans, Cicero f and 
 Quintilian J mention several. 
 
 Dr. Johnson, in his Life of Savage, relates of him, 
 that " his apprehension was quick, and his memory so 
 tenacious, that he was frequently observed to know 
 what he had learned from others, in a short time, 
 better than those by whom he was informed; and could 
 fi'equently recollect incidents, with all their combina- 
 tion of circumstances, which few would have regarded 
 
 * Cockbum's Memorials of his Time, p. 335, eel. 1856. 
 + Acad. Qua?st. ii. 1. J Inst. Or. xi. 2.
 
 OF MEMORY. 53 
 
 at the 23resent time, but wliicli the quickness of his 
 apprehension impressed upon him. He had the 
 peculiar felicity, that his attention never deserted him ; 
 he was present to every object, and regardful of the 
 most triflins: occurrences." * 
 
 Mr. Kirby, in his Bridgewater Treatise, thus speaks 
 of- the memory of the " lower orders " : " With regard 
 to the memory, it is not wonderful that a being, who 
 occupies his time and intellect with few objects, should 
 have a more distinct recollection of certain events, than 
 one whose attention is more divided. It may be 
 observed of the lower orders in general, that their 
 
 * Johnson's Works, Vol. III. p. 364, ed. 1787. [The following anecdote 
 is told of Dr. Abernethy : A gentleman dining with him on a birthday of 
 IVIrs. Abeniethy's, had composed a long copy of verses on the occasion, 
 which he relocated to .the family circle after dinner. " Ah ! " said Aber- 
 nethy, smiling, " that is a good joke now, your pretending to have written 
 those verses." His friend rejoined, that, such as they were, they were en- 
 tirely his own. " Why," said Abernethy, " I know those verses very well, 
 and could say them by heart," and he repeated them throughout with the 
 greatest apparent ease. The once hearing them read had enabled him to do 
 this. — Memoirs of Abernethy^ p. 23. 
 
 In the case of Palmer v. De Witt (5 Abb. Pra. R. N. S. 130), the 
 defendant was charged with infringing a copyright of an acting drama, 
 the defendant alleged that he obtained the play from a person who saw it 
 acted, and carried away in his memory, the words, dresses, and scenery. 
 
 Chief Justice Parsons is said to have had an extraordinarily retentive 
 memory for every thing but the names of persons. Justice Parker said of 
 him : " He knew every thing that was in every case in the reports, except 
 the names." 
 
 It is related of David Paul Brown, in the biographical notice prefixed 
 to " The Forum," that he defended Judge Porter on his impeachment 
 before the Pennsylvania Senate. The trial had occupied fourteen days, 
 and one hundred and fifteen witnesses had been examined. Mr. Brown 
 had taken notes of the testimony ; but on the night preceding the day on 
 which he was to sum up, he ascertained that his notes had been inadvert- 
 ently carried olf by his client, and he therefore, to prepare for the summing 
 up, by an efi"ort of memory, during the night, recalled the order in which 
 the witnesses had been examined, and the matter to which each had 
 testified.]
 
 54 OF MEMORY. 
 
 memory, for tlie same reason, of matters within their 
 own sphere of comprehension, is often more clear than 
 that of persons better educated and informed." '^ 
 
 It often happens, a thought will temporarily very 
 tenaciously haunt us. We would fain get rid of it, but 
 cannot. Such a remembrance of poor Barbara's song 
 clung to Desdemona on the night she was put to 
 death. f 
 
 When things are once fastened in the memory, it 
 may not be in our power ever to get rid of them, if we 
 would. J Is it in our power to choose what we shall 
 remember ? When Simonides, or some one else, offered 
 to instruct Themistocles in an art to improve the 
 memor}^, " I had rather," rej^lied Themistocles, " be 
 taught how to forget. Things I am most unwilling to 
 remember, these I have no power to forget." 
 
 On this subject, a letter by Dr. Beattie contains the 
 followino; anecdote : " One who was on board the Cen- 
 turion, in Lord Anson's voyage, having got some 
 money in that expedition, purchased a small estate 
 about three miles from this town (Aberdeen). I have 
 had several conversations with him on the subject of 
 the voyage, and once asked him whether he had ever 
 read the history of it. He told me he had read all the 
 history, except the description of their sufferings during 
 the run from Cape Horn to Juan Fernandez, which he 
 said were so great, that he durst not recollect, or think 
 of them. § 
 
 It sounds well in j^oetry, that of the life of a man 
 of three score years and ten, there is no day he does 
 
 * Vol. I. p. 85, ed. 1835. t Othello, A. iv. S. 3. 
 
 X Cicero, De Fiu. ii. 33 ; Acad. Qutest. ii. 1. 
 
 § Life of Dr. Beattie, by Forbes, Vol. II. p. 36, ed. 1806.
 
 OF MEMORY. 5o 
 
 not wish to remember ; but, in actual life, the desire is 
 probably not common.* 
 
 Illness, or old age, often impairs, and sometimes 
 wholly destroys, the power of remembrance. 
 
 One effect of the great j^lague at Athens during the 
 Peloponnesian war was the destruction of memory ; 
 some persons forgetting every thing, losing all knowl- 
 edge even of themselves.f And it is related of the Flight 
 of the Kalmuck Khan and his peoj^le from the Russian 
 territories to the frontiers of China, in the year 1771, 
 that the sufferino-s of these Kalmucks during: their 
 march, from fatigue, famine, and slaughter, w^ere so 
 intense, that very many of them lost their memory ; all 
 records of their past life were wiped out as with a 
 sponge — utterly erased and canceled. J 
 
 An injury to the brain by a blow or fall on the 
 head is a common cause of a temporary inability in the 
 person who received it, to give an account of the cir- 
 cumstances, under which it took place. Dr. Aber- 
 crombie, in his " Inquiries concerning the Intellectual 
 Powers," me4tions the following instances of this kind : 
 " A case has been related to me of a boy, who, at the 
 age of four, received a fracture of the skull, for which 
 he underwent the operation of trepan. He was at the 
 time in a state of perfect stupor, and, after his recovery, 
 retained no recollection either of the accident or the 
 operation. At the age of fifteen, during the delirium 
 of a fever, he gave his mother an account of the opera- 
 tion, and the persons who were present at it, wdtli a 
 correct descrij^tion of their dress, and other minute 
 particulars. He had never been observed to allude to 
 it before, and no means were known by which he could 
 
 * Martial, iv. t Thucyd. ii. 49 
 
 I De Quincey's Miscellanies, Revolt of the Tartars, p. 175, cd. 1854.
 
 56 OF MEMORY. 
 
 have acquired the circumstances wliicli he mentioned." 
 " Some years ago I saw a boy, who had fallen from a 
 wall, and struck his head against a stone which lay at 
 the foot of it. He was carried home in a state of in- 
 sensibility, from which he soon recovered, but without 
 any recollection of the accident. He felt that his head 
 was hurt, but he had no idea how he had received the 
 injury. After a short time he recollected that he had 
 struck his head against a stone, but had no recollection 
 how he had come to do so. After another interval he 
 recollected that he had been on the top of a wall, and 
 had fallen from it, and struck against the stone, but 
 could not remember where the wall was. After some 
 time lono'er, he recovered the recollection of all the 
 circumstances." 
 
 Dr. Abercrombie also notices the following case of 
 a want of power to recollect the circumstances which 
 preceded and attended an accident : " A young lady, 
 who was present at a late catastrophe in Scotland, in 
 which many people lost their lives by the fall of the 
 gallery of a church, escaped without any injury, but 
 with the complete loss of the recollection of any of the 
 circumstances ; and this extended not only to the acci- 
 dent, but to every thing that had occurred to her for a 
 certain time before going to church." * 
 
 The effect of old age on the memory is, perhaps, 
 nowhere more strongly depicted, than in Juvenal.f 
 
 Except where illness, or old age, or some other cause 
 
 * Part in. S. i. pp. 142, 14G, 151, ed. 1832. 
 t " His loss of members is a heavy cui'se, 
 
 But all his faculties decayed, are worse ! 
 
 His servants' names he has forgotten quite ; 
 
 Knows not his friend, who supped with him last night, 
 
 Nor ev'n the children he begot and bred." — Dryden. 
 
 Jmc. Sat. X. 322.
 
 OF MEMORY. 57 
 
 has impaired the faculty of memory, it is possible, and 
 often happens, that something we have seen or heard, 
 although many years back and even in childhood, is 
 never fors-otten. 
 
 " At the time, he [Henry Ashton] was too full of 
 his own appearance, his sword, his laced cloak, his 
 feathered hat, and his managed horse, to pay much re- 
 gard to any thing else ; but he afterward remembered 
 to the hour of his death, that Avhen the hand of his 
 sister, by which she supported herself on the pillion 
 behind him, touched his own, it felt as wet and cold 
 as sepulchral marble." ^ 
 
 " They had the barbarity to make us be in school 
 during summer at 7 in the morning. I once started 
 out of bed, thinking I was too late, and got out of the 
 house uncjuestioned. On reaching the High School 
 gate, I found it locked, and saw the yards, through the 
 bars, silent and motionless. I withdrew alarmed, and 
 went near the Tron Church to see the clock. It was 
 only about two or three. Not a creatui-e was on the 
 street ; not even watchmen, who were of much later 
 introduction. I came home awed, as if I had seen a 
 dead . city, and the impression of that hour has never 
 been effaced." f 
 
 Things which took place in childhood are often 
 remembered, while others, though they happened later, 
 are cpiite forgotten : 
 
 " Prospero. . . . Canst thou remember 
 A time before we came unto this cell ? 
 I do not think thou canst ; for then thou wast not 
 Quite three years old. 
 
 Miranda. Certainly, sir, I can. J 
 
 * Bride of Lammermoor. 
 
 t Cockburn's Memorials of his Time, p. 8, ed. 1856. 
 
 I The Tempest, A. i. S. 2.
 
 58 OF MEMORY. 
 
 In old age a person not unfrequently mistakes fancy 
 for reality; lie thinks ke kas in kis memory sometking 
 tkat never was tkere, and wkick kas no existence, ex- 
 cept in kis imagination. Tkis weakness attendant on 
 old age makes it often difficult to ascertain, wketker an 
 old person's narrative is founded on reality or on kis 
 fancy only. Boswell kad been long Very desirous of 
 seeing and conversing witk Dr. Joknson, and at last 
 tkey accidentally met, in 1763, at tke kouse of a Mr. 
 Davies. Boswell, in kis life of Joknson, kas related 
 tke particulars of tkis meeting ; and tkere is likewise 
 an account of it given by Mr. Murpky. On tke rela- 
 tion of tke latter, Boswell makes tkese remarks : " Mr. 
 Murpky, in kis Essay on tke Life and Genius of Dr. 
 Joknson (first publisked in 1793), kas given an account 
 of tkis meeting considerably difterent from mine, I am 
 persuaded witkout any consciousness of 6rror. His 
 memory, at tke end of near tkirty years, kas undoubt- 
 edly deceived kim, and ke supposes kimself to kave 
 been present at a scene wkick ke kas probably keard 
 inaccurately described by otkers. In my note, tciken on 
 the very day, in wbick I am confident I marked everj^ 
 tking material tkat passed, no mention is made of tkis 
 gentleman ; and I am sure tkat I skould not kave 
 omitted one so well known in tke literary world. It 
 may easily be imagined, tkat tkis my first interview 
 witk Dr. Joknson, witk all its circumstances, made a 
 strong impression on my mind, and would be registered 
 witk peculiar attention." * 
 
 It kas been supposed by a writer in tke Quarterly 
 Eeview, tkat many of Lord Eldon's anecdotes were 
 written in advanced age, wken tke boundary, wkick 
 
 * Life of Dr. Jolinson, by Boswell, Vol. 11. p. 165, note. ed. 1835 ; and 
 sec several similar instances iu the Diary of Henry Crabb Robinson.
 
 OF MEMORY. 59 
 
 separates memory from imagination, was broken down. 
 And tlie writer goes on to observe, — " Some of tliem are 
 known to be exceedingly inaccurate, and we have little 
 doubt tliatj as constantly happens at his time of life, 
 he had confounded things talked of with things done." 
 And the writer adds in a note, — " An instance of this 
 common failing is mentioned by Boswell. An erro- 
 neous account of his first introduction to Johnson was 
 published by Arthur Murphy, who asserted that he 
 witnessed it. Boswell appealed to his own strong 
 recollection of so memorable an occasion, and to the 
 narrative he entered in his journal at the time, to show 
 that Murphy's account was quite inaccurate, and that 
 he was not j)resent at the scene. This Murphy did not 
 venture to contradict. As Boswell suggested, he had 
 doubtless heard the circumstances repeated, till at the 
 end of thirty years he had come to fancy that he was 
 an actor in them. His good faith was unquestionable ; 
 and that he should have been so deluded is a memor- 
 able examj^le of the fallibility of testimony, and of the 
 extreme difficulty of arriving at the truth." * 
 
 * Quarterly Review, Vol. CIII. p. 392.
 
 ■ CHAPTER V. 
 
 OF EECOGNITION. 
 
 Recognitio]^- may be of a thing or person ; and any 
 one's recognition of either must be based on Ms orig- 
 inal perception of the object he saw, the impression the 
 object made on him, and his retention of the impres- 
 sion. 
 
 Section I. — Recognition of a Thing. 
 II. — Recognition of a Person. 
 
 SECTION I. 
 
 RECOGNITION OF A THING. 
 
 A thing is sometimes singular or rare ; as either in 
 size, shape, or color, or as the production of a foreign 
 coimtry; and in these cases the singularity or rarity of 
 it may make a deep impression, and this impression 
 retained in the memory may render it easy to recognize 
 the thino-. 
 
 Often a thing is not singular nor rare, but one of 
 a multitude of other things in most respects like it ; as 
 the manufactured goods of particular trades, be they 
 clothing, household furniture, tools of trade or hus- 
 bandry, or things of any other kind; and in this case, 
 if the particular thing possesses a 'striking difference, 
 distinguishing it from others of its kind or species, as 
 something wanting or superfluous in it, or some mark 
 purposely made on, or accidentally acquired by it, as a 
 stamp or stain, that difference may be strongly im- 
 pressed on the mind, and being remembered will much 
 facilitate the power to recognize the particular thing.
 
 OF RECOGNITION. Gl 
 
 Again, as no two tilings are perfectly alike, there 
 always are between several things some points of clifter- 
 ence ; in each will be found some j^eculiarity not seen in 
 any of the others. The thing itself maybe very minute, 
 and its peculiarity extremely so, as in the instance of a 
 pea, a bead, or j)in. And in a thing of greater size, 
 and even of large bulk, its difference seen by a casual, 
 hasty, or careless observer, may make no impression on 
 him. He sees the thing without noticing its peculiar- 
 ity, which therefore makes no impression on him. 
 After leaving it he may retain some impression of it, 
 as a whole, as of its size, shape, or color ; but having 
 no impression of any peculiar quality in it, he is una- 
 ble to distinguish it from other things of the same 
 kind, and consequently cannot recognize it. A familiar 
 example of sucli a thing is the coin in circulation : 
 
 " They were all like one another, as half-pence are." * 
 
 But small, even nice, points of difference, distin- 
 guishing one thing from others of the same kind, may 
 merely by the frequent sight of them, and without any 
 special attention to them, make an impression on the 
 mind. They are component parts of the thing, and go 
 to make up the whole, of which the mind receives an 
 impression. In these cases, the impression is of the 
 general appearance of the thing. This sort of impres- 
 sion is exceedingly common ; a workman has it of his 
 tools, and most 23eople have it of their dress and other 
 things they are frequently seeing, handling, or using. 
 It occurs every day, that by remembrance of their gen- 
 eral appearance, a carj^enter, mason, or other workman 
 recognizes his tools ; and dress or other property is 
 known again by its owner. 
 
 * As You Like It, A. iii. S. 2.
 
 62 OF EECOGl^ITIOJr. 
 
 Like other tilings, handwriting may be recognized. 
 A person recognizes a letter which he himself has 
 written, or another person's letter which he has before 
 seen. And then he does it from his previous impres- 
 sion of the very writing recognized. And not only 
 the very same, or identical writing, but also a 'person's 
 manner or style of writing may be recognized. Almost 
 everybody's usual handwriting possesses a peculiarity 
 in it, and distinguishing it from other people's writing. 
 The jDeculiarity may be extremely nice, and scarcely 
 discernible, but still it is there, and capable of being 
 detected. And not only the writer himself, as A., but 
 another person, B., accustomed to see it, may have in 
 his mind an impression of the writer's usual writing 
 and its peculiarity ; in other words, his manner or style 
 of writing. And if a letter or other paper written by 
 A. is presented to B., who has not before seen it, to 
 prove it to be in the handwriting of A., the imj^res- 
 sion which B. has of A.'s usual writing, and its peculiar 
 character may enable him, not to recognize the very 
 same or identical writing, but to recognize the style of 
 A.'s writing, and express his belief that it is the writing 
 of A. In this case, it is comparison and judgment, 
 which enable B. to give the evidence rec[uired. He 
 compares the style of the writing in question with the 
 impression he has before received into his mind of A.'s 
 style of writing, and on that comparison he can come 
 to the conclusion and belief, that the writing in ques- 
 tion is in the handwriting of A. 
 
 " Gloster. You know the character to be your 
 brother's ? 
 
 Echnund. If the matter were good, my lord, I 
 durst swear it were his ; but, in respect of that, I 
 would fain think it w^ere not. 
 
 Gloster. It is his.
 
 OF RECOGNITION. 63 
 
 Edmund. It is liis hand, ray lord." ^'' 
 
 " Hours and. liours and hours have I spent in en- 
 deavors, altogether fruitless, to trace the writer of the 
 letter that I send, by a minute examination of the 
 character, and never did it strike me till this moment, 
 that your father wrote it. In the style I discover him, 
 in the scoring of the emphatical words — his never-fail- 
 ing practice — in the formation of many of the letters, 
 and in the adieu ! at the bottom so plainly, that I 
 could hardly be more convinced had I seen him write 
 it." t 
 
 One way to obtain a knowledge of a person's style 
 of handwriting is to see him write, to look over him 
 while he is writing, and observe the manner in which 
 he forms his letters. But this observation of Avriting 
 is very rarely made. Commonly you see a man in the 
 act of writing, but you do not observe the manner in 
 which he forms his letters ; and if evidence of hand- 
 writing depended on such observation, it could very 
 seldom be given. But writing can be sufficiently well 
 known in other ways ; as for instance, if you have re- 
 ceived numerous letters from a person, and you have 
 sufficient reason to believe he himself wrote them. This 
 reason and belief are essential, because one j^erson may, 
 and often does, write letters for another. 
 
 A person who comes to recognize another's hand- 
 Aviiting, is obviously very liable to fall into error. 
 One, and an abundant source of mistake is, that many 
 persons write very much alike ; so much so, that it is 
 often difficult to distinguish one person's hand from 
 that of another. J 
 
 * King Lear, A. i. S. 2. , 
 
 t Cowper's Works (Letters), Vol. V. p. 217, ed. 1836. 
 X [One among the many instances that might be cited in corroboration 
 of the text was what occurred in tlie course of the investigation of the
 
 €4 OF RECOGNITION. 
 
 The circumstance, beside, that few persons con- 
 stantly keep the very same character of their hand- 
 writing, is another fruitful source of mistake. A usual 
 style of signatui'e, or other writing, is frequently much 
 altered by hurry in writing, temporary nervousness, or 
 unsteadiness of the hand, or even by the kind of pen 
 used, quill or steel, or the badness of a pen. And it is 
 common that a person writes different hands at dif- 
 ferent periods of his life. This may be the effect, not 
 only of increase in age, but of a habit contracted 
 from time to time of writins; laro;er or smaller, of form- 
 ing letters after a different fashion, or of using abbre- 
 viated words, or words differently abbreviated. 
 
 Handwriting is very frequently mistaken, either 
 from accidental similarity of style, or designed imita- 
 tion."^ 
 
 " j^o observer of passing events, or reader of news- 
 papers, during the early part of the present [nine-- 
 teenth] century, will require to be told the history of 
 the ex-judge Robert Johnson, the subject of prosecu- 
 
 charge of forgery against John W. Hunter, in New York. Mr. Hunter 
 was employed in the sub-treasury, and Mr. Cisco, the head of the depart- 
 ment was examined as a witness, and swore i^ositiyely that no person 
 could imitate Mr. Hunter's handwriting so as to deceive him (Cisco), 
 and that he (Cisco) could not be imposed ujjon in regard to ^vritulg with 
 which he was familiar. When he had committed himself beyond all reser- 
 vation to this positive opinion, he was presented by ex- Judge Pierrepont, 
 the counsel for Mr. Hunter, with a slip of paper with writing on it, and 
 was asked if that was his own haudwi'iting. He replied that it was. 
 His attention was called to the fact that it was somewhat blurred, but he 
 said that made no difference ; he recognized it perfectly ; it was his own. 
 The counsel then informed the court, that the paper was written by Mr. 
 Levi, a clerk of Isix. Low, in the presence of several eminent witnesses 
 who had attached their mark to it, so as to be able to identify it, and that 
 Mr. Cisco had thus unwittingly testified to another man's handwriting as 
 his own I If he could be so easily deceived in his own handwriting, how 
 much more likely was he to be mistaken in that of another man ? ] 
 * See Twelfth Night, A. v.
 
 OF RECOGNITION. 65 
 
 tion for a seditious libel, under the strange circum- 
 stances of liis holding, at the time, a seat upon the 
 bench, and of there being absolutely no evidence of 
 his authorship, beyond a sort of general conviction that 
 he was a likely person to do an act of the kind. The 
 article alleged to be libelous was an attack upon Lord 
 Hardwicke, in his capacity of Lord Lieutenant of L'e- 
 land. It was published in Cobbett's Register, under 
 the signature of Juverna, and was, in fact, composed 
 by the judge. Nevertheless, the manuscript, although 
 sworn by a Crown-witness to be in Mr. Johnson's 
 handwriting, was actually written by his daughter. 
 This circumstance he might have proved ; but as he 
 could not do so without comj^romising his amanuensis, 
 the jury were obliged to return a verdict of guilty." * 
 
 A sin2:ular circumstance relatino; to handwritins: 
 happened to Lord Eldon. It is thus mentioned by 
 himself: — "A deed was tried in Westminster Hall, 
 stated to have been executed under circumstances throw-- 
 ing a good deal of blot upon the persons, who had ob- 
 tained it. The solicitor, who was ^ very respectable 
 man, said, he felt satisfaction, that there were respect- 
 able witnesses. One was the town-clerk of Newcastle, 
 and I was the other. I could undertake to a certainty, 
 that the signature was not mine, having never attested 
 a deed in my life. He looked back to my pleadings, 
 and was sure it was my signature ; and, if I had been 
 dead, would have sworn to it conscientiously." f 
 
 One person's knowledge of the handwriting of 
 another may be confined to his general style of writing, 
 and may not extend to his signature. A signature may, 
 and very often does, possess a great peculiarity, it may 
 
 * Lord Cloncurry's Recollections of bis Life and Times, p. 303. 
 t SVesey, 476.
 
 66 OF KECOGKITION. 
 
 he, in the form of the letters, or iu some flourish, which 
 does not attend the writer's general style of writing. 
 The j)eculiarity is made use of by some persons from 
 mere .whim or caprice, by others from a desire to con- 
 ceal the writer's usual style, or to make his signature 
 difficult to be imitated. Although, therefore, a person 
 can recognize another's general style, it may not follow 
 that he can recognize his style of signature : this he 
 may never have seen. 
 
 On the other hand, a person may be comj)etent to 
 recognize another's style of signature, although quite 
 unable to recognize his general style of writing ; for of 
 his style beyond his signature^ he may be quite ignor- 
 ant ; and the one may be very different from the other. 
 
 It is often the habit of a person to sign his name 
 in his ordinary style of writing, making in his signa- 
 ture no difference in the shape of his letters, or other- 
 wise ; and yet in this case, one not acquainted with 
 the other's style of Avriting, except in his signature, 
 cannot recognize his style in any other ^mting, as in 
 the body of a letter, unless he assume, or it be conceded 
 that the style in his signature is the style of 
 his usual writing; since his style of signature 
 may very much differ from that of his usual writ- 
 ing. And sup2)osiug that assumption or conces- 
 sion to be made, it is obvious that one signature, or a 
 hundred signatures, may lead to mistake, since the 
 number of small letters in the name will be few, and 
 that of capital letters still fewer, compared with the 
 whole number of letters in the alphabet ; and a strong- 
 probability therefore is, that many letters will be found 
 in the body of the writing, which are not used in the 
 signature to it ; and of the writer's style in forming 
 these many other letters the witness has no knowl- 
 edge.
 
 OF RECOGNITION. G7 
 
 But, on the contrary, if one is acquainted witli tlie 
 style of another's writing, except his signature, which 
 he has never seen ; if that style be in the signature, he 
 can as well recognize it in the signature, as he can in 
 any other words composed of the same letters. 
 
 It is jirobably more often required to recognize a 
 style of signature, than that of any other writing. In 
 a great variety of transactions, the body of a 2:>aper is 
 written by one person, and the signature to it by 
 another ; as letters on commercial and other business, 
 bills of exchange, promissory notes, contracts, deeds, 
 wills. 
 
 The impression which one person has in his mind of 
 another's style of signature, may have been made by 
 his seeing many of his signatures, or even one only. 
 And the impression made by the one alone may, for the 
 purpose of proving the person's signature, be as valu- 
 able, be entitled to as much weight, as if the impres- 
 sion were the result of seeing many of his signatures. 
 Circumstances may have caused the impression of the 
 style of the single signature to be very deeply and 
 firmly fixed. Yet in ordinary cases the value of the 
 evidence of a person's style of signature will probaldy 
 be determined by the number of his signatures, which 
 the witness has seen. 
 
 In the above observations on recognition of a style 
 of writing, it is suj^posed that the impression of the 
 style was purely an incidental and unmeditated conse- 
 quence of seeing the writing; this consequence 
 happening of itself, without any study of, or look- 
 ing at, the writing with the design of gaining an 
 impression of the style, and much less for the purpose 
 of recognizing the same style in other writing, in- 
 tended to be submitted to comparison with it. But 
 cases may arise w^here a style is inspected and studied
 
 68 OF RECOGNITION. 
 
 with the very design of gaining an impression of it, 
 and of after\Yard comj^aring that impression witli the 
 style of other writing. Now in these cases, because 
 the impression is acquired after a different manner, 
 through a different process, through study and design, 
 instead of being purely an incidental and unmeditated 
 consequence of seeing the writing, the two impressions, 
 made in the one way and in the other, may not be 
 equally true and faithful. But who can determine, 
 or how can it be determined, whether they are, or are 
 not equally true and faithful ? When an impression is / 
 taken designedly with the view to comparison, it will 
 be most satisfactory that the impression be taken by a 
 person skilled in detecting a style in handwriting, and 
 taking an impression of it, by an " expert," as he is 
 called ; but even with this precaution, the result of 
 the subsequent comparison may be wrong ; and allow- 
 ing it may be right, a difference of opinion has been 
 expressed on the propriety of admitting, in evidence 
 of handwriting, a com23arison with it of an impression 
 taken, although by an expert, for the very purpose of 
 using the comj^arison in evidence."^ 
 
 SECTION II. 
 
 RECOGNITION OF A PERSON. 
 
 With regard to person, when the person of one is 
 distinguished from that of others by something attract- 
 ing particular notice, as stature, feature, some defect, 
 deformity, l)lemish, or other thing, natural or acci- 
 dental, this seen by any one, whether frequently or not, 
 and in some cases even once only, may make such an 
 impression on him, as will enable him long after to re- 
 
 * Doe dem. Mucld v. Suckermore, 5 Adol. and Ellis, 703.
 
 OF RECOGNITION. G9 
 
 member it, and through that remembrance to recognize 
 the person. 
 
 I " Prepared as he was to see an inauspicious and ill- 
 looking person, the ugliness of Anthony Foster con- 
 siderably exceeded what Tressilian had anticipated. 
 He was of middle stature, built strongly, but so clum- 
 sily as to border on deformity, and to give all his mo- 
 tions the ungainly awkwardness of a left-legged and 
 left-handed man. . . . His keen dark eyes were 
 deep set beneath broad and shaggy eyebrows. . . . 
 The features which corresponded with these eyes and 
 this form, were irregular, and marked so as to be indel- 
 ibly fixed on the mind of him, who had once seen 
 them." * 
 
 It is by the face that persons are chiefly known ; 
 and no two faces are perfectly alike. Between them 
 there are always some points of difference; and the 
 points of difference in any face, combined with 
 its form, features, and complexion, make up a 
 whole, which constitutes the expression, or coun- 
 tenance of the face. Generally, the face of olir most 
 intimate friend, whom we see perhaps daily, is known 
 to us more by its countenance than by the features and 
 other peculiarities, which make up the countenance. 
 And we may have a perfect impression and remem- 
 brance of the countenance, although we may be unable 
 to describe, with any degree of exactness, the features 
 and peculiarities which form it ? 
 
 Every face has its customary countenance, that 
 which it usually wears ; and this may last without any 
 observable change for some time ; it may so continue 
 for a period in infancy, boyhood, manhood, or old age. 
 Yet by imperceptible degrees, the face and countenance 
 
 * Kenilworth, ch. iii. ; and see Cymbeline, A. v. S. 5.
 
 70 OF RECOGKITION. 
 
 are constantly, tlirougliout tlieir existence, undergoing 
 an alteration ; and at each successive arrival at boy- 
 hood, manhood, and old age, it is found that a change, 
 and a great one, has in the intervening time been made 
 in the facie ^fild countenance. So that, when we have 
 known an "^elderly person from his childhood, we have 
 known him with different faces and countenances. 
 
 A co^^^l^nce is liable to temporary alteration; 
 and it%^y oe said that every face, occasionally, and in 
 tram^tion, wears a different countenance: some passion, 
 as joy, grief, anger, fear, will produce an instantaneous, 
 and often great, alteration in its appearance. 
 
 A temj^orary change may also be artificially caused. 
 The wearing or loss of moustaches or whiskers may 
 have this efi:ect. So may the temporary wearing on 
 the head false hair or a wio'. This we learn from the 
 Vicar of Wakefield, and his resj^ectable acquaintance, 
 Mr. Jenkinson : " I could not," says the Vicar, " avoid 
 being surj)rised at the present youthful change in his 
 aspect ; for, at the time I had seen him before, he 
 appeared at least sixty. ' Sir,' answered he, ' you are 
 little accjuainted with the world; I had at that time 
 false hair, and have learned the art of counterfeiting 
 every age, from seventeen to seventy.' " * 
 
 A lasting alteration of countenance may be occa- 
 sioned by an accident disfiguring the face, causing an 
 injury to an eye, the nose, or other feature. 
 
 Long continued mental distress, or bodily sickness, 
 or hardships, will make sad inroads on a face ; quite 
 despoiling it of the countenance it possessed before 
 misfortune arrived, f 
 
 A sure innovator on a countenance is Time. Time 
 
 * Yicar of Wakefield, ch. xxv. 
 
 t See Rogers' Human Life ; and Marmion, canto i.
 
 OF RECOGNITION. 71 
 
 alters the form of features, imparts wrinkles, changes 
 the complexion, whitens and destroys liair * 
 
 "It costs me not -much difficulty' to suppose that 
 my friends, who were already grown old when I saw 
 them last, are old still ; but it costs me a good deal 
 sometimes to think of those, who were at that time 
 young, as being older than they were. Not having 
 been an eye- witness to the change that time has made 
 in them, and my former idea of tliem not being cor- 
 rected by observation, it remains the same ; my 
 memory presents me witli this image unimj^aired ; and 
 while it retains the resemblance of what they were, 
 forgets that, by this time, the picture may have lost 
 much of its likeness, through the alteration that 
 succeeding years have made in the original." f 
 
 If two persons, each between sixty and seventy 
 years of age, were, forty years ago, almost daily 
 together, and intimate friends ; but during those forty 
 years have never met, and at the end of thiat time they 
 happen to meet, a great ^probability is, they "will not at 
 all recognize each other ; and if each is convinced of the 
 other's identity, it will not be by their sight, but by 
 their conversation, brino-ino; to each other's mind events 
 or circumstances which took place antecedent to the 
 forty years, and of which each has a remembrance. 
 
 When Ulysses returned to Penelope after an 
 absence of twent}^ years, she did not recognize him ; 
 she remembered him only as he was when he left her. 
 And when at length she was convinced he was her 
 liusband, it was only by his conversation — by a fact 
 
 * Ovid, Pont. lib. i. el. 4 ; and Bryant's Poems (The Rivulet), p. 51, 
 Engl. ed. 1850. 
 
 t Cowper's Works (Letters),.Vol. IV. p. 41, ed. 1836.
 
 72 OF EECOGNITION. 
 
 he told her of, one that took place before he went 
 away.* 
 
 It may happen that a person has not taken a 
 correct impression of another's countenance. If it was 
 seen for an instant only, although by day, or was seen 
 at night, or in twilight, or afar off, or was seen as one 
 in a mass or throng, or by a j^erson of short or other- 
 wise defective sight, or by one intoxicated or affrighted ; 
 either of these circumstances — the instant of time, the 
 darkness, the distance, the crowd, the defective sight, 
 the intoxication, the terror — may cause the impressibn 
 to be defective, and consequently disable the person, 
 having that incorrect impression, from identifying 
 through it the true countenance. 
 
 But assuming that one has taken a correct impres- 
 sion of the countenance of another, the former may 
 identify the latter by his countenance. Yet his_ power 
 to do this will depend on other circumstances, and 
 especially, and in all cases; on these two : one, that the 
 countenance remains the same, or nearly the same, as it 
 was when the impression was taken ; and the other, 
 that the impression which wa's taken is retained. 
 
 And supposing the impression taken of a 'coun- 
 tenance was correct, yet the power to recognize and 
 identify it may be affected by circumstances occurring 
 at the time of exercising the power. For obstacles 
 similar to those, which may originally stand in the 
 way of taking a correct impression, may hinder the 
 recognition of a countenance, in cases where it was 
 
 * " The proof consisted in this — that the bed, being attached to the 
 stump of an olive tree still rooted, was immovable ; and Ulysses, having 
 made it himself, no person present, he must needs be apprized of the im- 
 IDOssibility of her orders, if he were indeed Ulysses ; accordingly, this 
 demonstration of his identity satisfies all her scruples." — Cowper. And 
 see Cowper's Homer's Odyssey, Bk. xxiii.
 
 OF REC0GNITI02?. 73 
 
 originally correctly taken ; as darkness, distance, a 
 crowd, defective siglit, intoxication, terror. These, or 
 other, obstacles may wholly destroy the power of 
 recognition of a countenance, and consequently the 
 ability to identify it. 
 
 A person may see a countenance, which it is in his 
 power to recognize, and yet he may pass it over with- 
 out noticing it, unless his attention be particularly 
 directed to it. 
 
 " Some, however, demanded of the j^ostillion how 
 he had not recognized Bertram when he saw him some 
 time before at Kippletringan ? To which he gave the 
 very natural answer : ' Hout, what was I thinking 
 about Ellangowan then ? It Avas the cry that was 
 rising e'en now that the young laird was found, that 
 put me on finding out the likeness. There was nae 
 missing it ance ane was set to look for 't.' " * 
 
 The impression taken once or twice only of a per- 
 son's voice, gait, or carriage, may sometimes be but of 
 little value for the pur^^ose of identifying him. The 
 voice may not have been in its j^roj^er and usual tone, 
 but in one accidental, arising from some j^assion, as fear 
 or anger ; or from bodily ailment, as a cold ; or in a 
 tone in imitation of another's voice, or otherwise dis- 
 guising its own proper and usual tone. So the gait or 
 carriage may not have been the person's usual gait or 
 carriage, but one caused by temjDorary lameness, or 
 other bodily indisposition, or assumed for the very 
 purpose of disguise. 
 
 When persons have been in the habit of seeing 
 another very often, they may be able to recognize him, 
 although in disguise, and even under circumstances of 
 
 ■^ Gnv Mannering.
 
 I 
 
 74 OF EECOGXITIOX. 
 
 sudden noise and confusion, striking terror into tlieir 
 minds. 
 
 Rusli, the murderer of ^h\ Jenny and his son, had 
 a 2:)articular way of carrying his shoulders, and he used 
 to keep his head a little on one side. From these 
 peculiarities, and his height, size, and gait, he, with his 
 face covered, and otherwise in disguise, was, at the 
 time of the murders in Stanfield Hall, recognized by 
 four persons, in the midst of rej^eated discharges of 
 fire arms, and the shrieks, wounds, and death thereby 
 occasioned.* 
 
 There is sometimes a mutual recognition of the 
 person between two, although one of them is in dis- 
 guise, f 
 
 A letter in a number of the Spectator contains the 
 following very remarkable instance of the recognition 
 of a schoolfellow : 
 
 " Every one who is acquainted with Westminster 
 School, knows that there is a curtain, Avhich used to be 
 drawn across the room, to separate the upper school from 
 the lower. A youth happened, by some mischance, to tear 
 the above-mentioned curtain. The severity of the mas- 
 ter was too well known for the criminal to expect any 
 pardon for such a fault ; so that the boy, who was of a 
 meek temper, was terrified to death at the thoughts of 
 his appearance ; when his friend, who sat next to him, 
 bade him be of good cheer, for that he would take the 
 fault on himself. He kej^t his word accordingly. As 
 soon as they were grown up to be men, the Civil "War 
 broke out, in which our two friends took the opj^osite 
 sides ; one of them followed the Parliament, the other 
 the Royal party. As their tempers were different, the 
 
 * The (London) Times, March 30, and April 5, 1849. 
 t See Cowper's Retirement.
 
 OF EECOGNITIOK. 75 
 
 youth, who Lad tf)ni the curtain, endeavored to raise 
 himself on the civil list ; and the other, who had borne 
 the blame of it, on the military. The first succeeded so 
 well, that he was in a short time made a judge under 
 the Protector. The other was engaged in the unhappy 
 enterprise of Penruddock and Grove in the AVest. I 
 suj^pose, sir, I need not acquaint you with the event of 
 that undertaking. Every one knows that the Royal 
 party was routed, and all the heads of them, among 
 whom was the curtain cham2:)ion, imprisoned at Exeter. 
 It happened to be his friend's lot at .that time to go 
 the Western circuit. The trial of the rebels, as they 
 were then called, was very short, and nothing now re- 
 mained but to pa:ss sentence on them ; when the judge 
 hearing; the name of his old friend, and observino- his 
 face more attentively, which he had not seen for many 
 years, asked him if he was not formerly a Westminster 
 scholar. By the answer, he was soon convinced that it 
 was his former generous friend ; and without saying 
 any thing more at that time, made the best of his way 
 to London, wdiere, employing all his power and interest 
 with the Protector, he saved his friend from the fate of 
 his unhappy associates." * 
 
 The countenances of two persons will be much alike 
 when their faces possess similar features and peculiari- 
 ties, because countenance is the effect of features and 
 peculiarities. Several j)ersons may think the counte- 
 nances alike ; and, if they do, it will be because each 
 has a similar impression of each countenance. But it 
 often happens that two countenances are thought to 
 l.)e alike l:)y one person, but not by another, both seeing 
 them at the same time ; the one instantly sees the like- 
 ness, the other cannot see any likeness at all. This 
 
 * The Spectator, Xo. 313.
 
 76 OF RECOGNITION. 
 
 difference must arise from tlie different impressions, 
 whicli the countenances make; and the impressions 
 will be different, if both persons have not similar per- 
 ceptions of the features and peculiarities of the two 
 faces. If the two faces are not seen at the same time, 
 the different opinions as to the resemblance of counte- 
 nance may arise from the countenances being really 
 unlike each other at different times, one or both of them 
 having in the interim exj)erienced a change. 
 
 The likeness of one person to another may cause 
 very great, and most inconvenient, and even fatal mis- 
 takes. 
 
 Antij)holus of Syracuse, the twin brother of Anti- 
 pholus of Ephesus, experienced some of these incon- 
 veniences : 
 
 " There's not a man I meet, but doth salute me 
 As if I were their well-acquainted friend ; 
 And every one doth call me by my name. 
 Some tender money to me, some in\ite me ; 
 Some other give me thanks for kindnesses ; 
 Some offer me commodities to buy : 
 Even now a tailor call'd me in his shoj), 
 And show'd me silks that he had bought for me, 
 And therewithal, took measure of my body." * 
 
 The following is a remarkable instance of resem- 
 blance between two sisters : In November, IV 94, a 
 woman was indicted at the Old Bailey for robbing her 
 ready-furnished lodgings. The prosecutrix swore to the 
 prisoner's having taken the lodgings. The prisoner 
 said she had a twin sister, so like her that their parents 
 could not distinsruish them asunder. A man said the 
 sister was in custody for a similar offense ; he had seen 
 her, and they were so alike, it was impossible to per- 
 ceive any difference. Under these circumstances, the 
 
 _ 
 
 * Comedy of Errors. A. iv. S. 3, and see Ibid. A. v. S. 1.
 
 OF RECOGNITION. 77 
 
 jury acquitted the prisoner. She was a second time 
 indicted for a similar ofltense. The prosecutrix, in this 
 case, was positiv^e as to her identity. She had seen the 
 sister, who, in order to deceive her, liad changed clothes 
 with her sister, but still she pointed her out. She also 
 distinguished their voices, and a degree of hastiness in 
 the sister beyond the prisoner. On this second indict- 
 ment she was found guilty." 
 
 There is probably a greater diversity of intellectual 
 character, than of countenance. And similarity in coun- 
 tenance may be no proof of likeness in intellectual char- 
 acter. Soufhey having mentioned the observation of 
 the Jesuit Garasse, that he had learnt, " et par la lec- 
 ture, et par rex|)erience, que les hommes sont plus 
 dissemblables en esprit qu'en visage," proceeds to say — 
 "Garasse was right; for there goes far more to the 
 composition of an individual character than of an indi- 
 vidual face. Two faces, even though there be no rela- 
 tionship between the parties, may be all but indistin- 
 guishably alike, so that the one shall frequently be 
 accosted for the other, yet no parity of character can 
 be inferred from this resemblance. Poor Cai^tain 
 Atkins, who was lost in the Defence off the coast of 
 Jutland in 1811, had a double^of this kind, that was 
 the torment of his life ; for this double was a swindler, 
 who, having discovered the lucky fac-simileship, obtained 
 goods, took np money, and at last married a wife in 
 his name. Once when the real Captain Atkins returned 
 from a distant station, this poor woman, who was await- 
 ing him at Plymouth, put off in a boat, boarded the 
 ship as soon as it came to anchor, and ran to welcome 
 him as her husband." f 
 
 * New Annual Register for 1794. 
 
 t The Doctor, vol. vii. p. 47-i, ed. 1847. [The folloTving case, extracted
 
 78 OF RECOGXITIOI?. 
 
 Followiug tliis story, Soutliey gives an account, 
 " cut out of a journal of tlie day," of a coroner's inquest 
 
 from the Bangor Whig, a newspaper published in Bangor, Maine, appears 
 also in 1 Western Law Journal, N. S. 471 : 
 
 "Mr. James Hause, of Coriuna, Maine, had a son named Rowland, who 
 left home when young, and was not heard of for many years. 
 
 Some months since, a young man named Luther Hause, a native of 
 Troy, went to Bangor, I^Iaine, and, while there, some neighbors of James 
 Hause saw him, fancied he was the missing Rowland Hause, and accosted 
 him by that name. The young man informed them of their mistake, and 
 avowed his real name. They did not believe him. and informed Mr. James 
 Hause that they had seen his son. Mr. Hause went immediately to Bangor 
 to find him, was unsuccessful in his search, and left a neighbor authorized 
 to bring him home. The latter found Luther, and, on inviting him to go 
 home, Luther accepted the invitation. When he reached the house he ad- 
 dressed Mr. and Mrs. Hause as father and mother. ]\Irs. Hause had some 
 doubts at first, as the color of the eyes and hair of Luther was entirely dif- 
 ferent from that of her son. She referred to several scars her son had. 
 Luther showed a scar on his knee, one on his breast, one on his neck, and 
 an overlapping toe, all of which Rowland had. 
 
 He remained at their house some five months, and the longer he 
 stayed the more they were satisfied he was their son. Mr. Hause stated 
 that he believed him to be his son just as much as he believed his wife to 
 be his vdfe. Many domestic circumstances were related by the young man 
 which they supposed could only have been known to their son, but which 
 the impostor had probably derived from themselves in the relation of fam- 
 ily matters, and afterward brought forward as a confirmation of his iden- 
 tity. Several of the neighbors of Mr. Hause took this young man to be 
 Rowland Hause. Young men who had been schoolmates wiih. Rowland, 
 talked with Luther about past times, and became convinced that he was 
 Rowland Hause. 
 
 At last, a Mr. Dow came to Corinna, saw Luther, and said that he 
 knew this young man, and his name was Luther Hause and no mistake, 
 and that he belonged in Troy. Another person recognized him as Luther 
 Hause, and said he had lived by him seventeen years. James Hause then 
 began to doubt the fact of Luther Hause being his son ; and in order to 
 settle the dispute existing in the family and the community, as to his iden- 
 tity, a warrant was issued by Volney A. Sprague, Esq , against Luther, for 
 obtaining goods under false pretenses, as he had got a watch, and several 
 other articles, while remaining at ilr. Hause's house. He was arrested and 
 examined. IVIr. Seth Hause, of Troy, was summoned, and appeared at the 
 trial, and there recognized the prisoner as his son. 
 
 Duiing the trial there was great excitement, and about four hundred 
 persons were present, and apparently the mass of them in favor of Luther,
 
 OF EECOGNITIOX. 79 
 
 on the body of a girl found drowned, between whom 
 and another young woman living there was a likeness 
 
 believing him to be Rowland. The justice sustained tJie warrant. Upon 
 the trial, the counsel of the prisoner contended that Hause and his family 
 had deceived the young man, instead of his deceiving them ; that when he 
 was first seen in Bangor, he stated distinctly that his name was Luther 
 Hause ; that they dragged him to Corinna, and forced him to say that he 
 was Rowland Hause ; there was no jDretense that he was any one else than 
 Luther Hause ; and that James Hause, if he had opened his eyes to the 
 light around him, might have known that he was Luther Hause. The 
 judge charged very strongly against the prisoner. The jury, after being 
 out a very few minutes, came into court with a verdict of guilty." 
 
 A most remarkable case of mistaken identity is shown in the trial of 
 Joseph Parker, for bigamy, in New York, in 1804. The trial is rejiorted in 
 Edwards' Jurj'man's Guide, in the 2d volume of the American Magazine of 
 Woqders, and in the New York City Hall Recorder. See, also, as to mis- 
 taken identity, the 2d volume of Household Words, p. 102, The follow- 
 ing case, being beyond all question authentic, we extract from a New York 
 paper, and deem worthy insertion here : 
 
 "On the 9th inst., the police found at 132 Cherry street, and conveyed 
 to the ]Morgue, the body of an unknown woman, who was supjjosed to have 
 been murdered. Her skull was fractured as if by a blunt instrument. 
 
 Ellen Davis, 241 West Fourteenth street, called at the Morgue the day 
 after the body of the woman was sent there, and identified it as that of 
 her mother, Anna McCaflFrey, and on the next day, her sister, the other 
 daughter, Kate McKeon, 247 Avenue B, called, and also identified the 
 body. On the day of the funeral, Monday last, a number of the friends of 
 the late Mrs. McCaftrey looked at the coqjse in company with the two 
 women named, and recognizing the features bade it a last adieu. The cir- 
 cumstance of the murder brought a large concourse to the funeral, wdiich 
 was quite imposing. The relatives went home afterward to mourn, and the 
 friends to speculate on the shortness of life and the frequency of mysteri- 
 ous murders. It was an exciting topic, and was not exhausted until 
 the next day, when to the astonishment of all, Mrs. McCafirey walked into 
 the house where her daughters were, tartly inquired what they were ' blub- 
 bering about.' 
 
 The living Mrs. McCaffrey, it appears, was expected on a visit, from 
 Providence, R. I., to her daughters in this city about the time they heard 
 of the body awaiting idcntitication at the Morgue ; but she delayed her 
 visit a few days, and in the mean time her daughters gave decent burial to 
 a poor unfortunate." 
 
 The following is abridged from the Home Journal : 
 
 "In the year 1850, I was one day watching, from the window of my 
 hotel, in Brooklyn, the operation of elevating a 'Liberty Pole' in the
 
 80 OF RECOGNITION. 
 
 SO extraordinary, that a number of witnesses, among 
 Tvliom was the mother of the latter, swore positively to 
 the body as that of the girl living. Toward the close 
 of the inquest, however, the girl so supposed to be dead 
 walked into the room, and said to one of the most 
 positive of the witnesses, " How could you make such 
 a mistake as to take another body for mine ? " The 
 
 square beneath. A crowd had assembled on the occasion. Some of the 
 ropes parted, and a section of the shaft fell heavily to the ground. One 
 of the by-standers, an elderly man of the humbler class, received a blow 
 upon the head, which produced instant death. The body was removed to 
 the doorstep beneath my window, and the unfortunate man was at once 
 recognized by several of his neighbors who chanced . to be present. The 
 coroner was in the immediate vicinity, and was soon brought to the spot, 
 when, the case being clearly one of accidental death, the formality of an 
 inquest was shortly concluded, and the body delivered to the friends of 
 the deceased, who removed it to his late residence. I attended the inquest 
 which was held in an adjacent room, and heard distinctly the testimony 
 which identified the corpse, no less than five or six witnesses declaring 
 that they were immediate neighbors of the deceased, whom they unhesi- 
 tatingly recognized. 
 
 The afiair produced no other impressions than those natural on wit- 
 nessing such a sad occurrence, and might have passed into oblivion, had I 
 not, the next morning, heard the sequel, and subsequently satisfied myself, 
 by personal investigation, of the accuracy of the details. They were . 
 briefly as follows : The corpse was conveyed to the house of the deceased, 
 and met at the door by the widow, who embraced it iii an agony of dis- 
 tress, and indulging in those extravagant demonstrations so common in 
 women of her class. She was finally induced to retire to her apart- 
 ment. The body was deposited in an adjoining chamber, and the by- 
 standers gradually dispersed. A few hours after, the woman's husband re- 
 turned home. 
 
 The explanation is very simple. The deceased jiroved to be an entire 
 stranger. The jDcrsonal resemblance between the two men was very 
 strong, and their garments also similar. In the horror of the moment, 
 the recognition by the neighbors was not surprising, while the wife had 
 been already apprised, by a messenger, of the fatal event, was prepared to 
 receive her husband's corpse, and did not stop to scrutinize closely the 
 familiar features, but, the first burst of grief over, tm-ned away to indulge 
 her agony, leaving to others the task of disrobing the corpse. Perhajjs a 
 subsequent examination of the clothing might have led to a discovery of 
 the error."]
 
 OF RECOGNITION. 81 
 
 result was, there was no evidence to prove who the 
 deceased was. 
 
 When one at the same time takes an impression of 
 a person, and of the dress he is then wearing, a recol- 
 lection of the dress may be an auxiliary power to iden- 
 tify the person ; yet it is obvious that this identification 
 ought mainly to rest on the remembrance of the person, 
 independently of the dress ; for the dress, of which the 
 imj)ression was taken, may have many likenesses; as, 
 for instance, soldiers' uniform, laborers' frocks ; and 
 the dress supposed to be the one remembered, and used 
 to identify it, may be one of those likenesses ; and in 
 proportion to their number will be the danger of mis- 
 taken identity of person. And besides, admitting the 
 dress to be rightly identified, it does not follow that 
 the person who wore it, when the impression of it was 
 taken, is the man who owns and now wears it, and 
 Avhose identity is in question ; for it might have been 
 lent, by him, or stolen from him, and by one of these, 
 or some other, means have clothed another person, 
 when the impression of the dress was taken. 
 
 Dress is sometimes more noticed than the person is, 
 who is wearing it, especially if the observer's daily oc- 
 cupation is connected with dress : — 
 
 " ' May I ask her appearance, sir ? ' said Tressilian. 
 
 ' O, sir,' replied Master Goldthred, ' I promise you 
 she was in gentlewoman's attire — a very quaint and 
 pleasing dress, that might have served the Queen her- 
 self: for she had a forepart with body and sleeves, of 
 ginger-colored satin, lined with murrey taffeta, and laid 
 down and guarded with two broad laces of gold and 
 silver. And her hat, sir, was truly the best fashioned 
 thing that I have seen, being of tawny taffeta, embroid- 
 ered with scorpions of Venice gold, and having a
 
 82 OF EECOGNITIOIS\ 
 
 border garnished witii gfeld fringe. Toucliing lier 
 skirts, they were in the old pass-devant fashion.' 
 
 ' I did not ask you of her attire, sir,' said Tressilian, 
 ' but of her complexion — the color of her hair, her fea- 
 tures.' 
 
 ' Touching her complexion,' answered the mercer, 
 ' I am not so special certain ; but I marked that her fan 
 had an ivory handle, curiously inlaid ; — and then again, 
 as to the color of her hair, why, I can warrant, be its 
 hue what it might, that she wore above it a net of green 
 silk, parcel twisted with gold.' 
 
 ' A most mercer-like memory,' said Lambourne ; 
 ' the gentleman asks him of the lady's beauty, and he 
 talks of her fine clothes ! '" * 
 
 * Kenilwortb, cU. ii.
 
 CHAPTER VI. 
 
 OF CERTAIN FACTS COM.AION IN EVIDENCE. 
 
 Section I. — Of Length of Time. 
 
 II.— Of Speed. 
 III.— Of Distance of Place. 
 IV.— Of Falsehood. 
 
 V. — Of Self-conyiction. 
 VI.— Of Character. 
 
 SECTION I. 
 
 OF LENGTH OF TIME. 
 
 When a person speaks to tlie length of time wliicli 
 was consumed in doing something, wlietlier by tlie 
 speaker, or some one else, it may happen that the time 
 was known, and is remembered, by having at the time 
 looked at a watch, or heard a clock strike. " I grant 
 you I was down, and out of breath ; and so was he ; 
 but we rose both at an instant, and fought a long horn- 
 by Shrewsbury clock." * 
 
 So if from any cause length of time is, purposely 
 to know it, marked from beginning to end ; to ascer- 
 tain, for instance, how long a person is speaking, or is 
 passing from one place to another by walking, running, 
 or riding ; in such cases, the length of time is im- 
 pressed on the mind, and is, therefore, commonly and 
 easily remembered. But where there is not a particular 
 object in marking length of time, it commonly happens 
 that a person who himself does any thing, or observes 
 another doing it, does not in the progress of the act or 
 
 * Henry IV. Part I. A. v. S. 4.
 
 84 OF CERTAIN FACTS COMMON IN EVIDENCE. 
 
 work, nor at its comj)letion, note the lengtli of time so 
 employed. In siicli a case, tlie time while passing on, 
 or when completed, does not leave any impression, and 
 consequently cannot be in the memory, or be remem- 
 bered. In a case of this kind, if a person undertakes 
 to speak to the length of time, what he says will not be 
 from memory ; it may be from argument in his own 
 mind, that the thing done did probably take the length 
 of time he speaks to : 
 
 ''Hamlet. . . . Stay'd it long ? 
 
 Horatio. While one with moderate haste might tell a hundred." * 
 
 In these cases, where length of time is founded on 
 probability onl}^, there is necessarily some uncertainty 
 about the exact length. For whafc in one person's 
 mind might be an hour, might in another's be half an 
 hour, or an hour and an half And it is, besides well 
 known that few persons have a just notion of the 
 length of a small space of time. " It has been truly 
 observed/ said Chief Baron Macdonald on an impor- 
 tant trial, " that there is nothing we are so little in the 
 habit of as measuring, with any degree of correctness, 
 small portions of time. I am persuaded that, if any 
 one were to examine with a watch, which marks the 
 seconds, how much longer a space of time a few 
 seconds, or a few minutes, really are, than people in 
 general conceive them to be, they would be surprised ; 
 but, in general, when we speak of a minute, two 
 minutes, or an instant, we can hardly be understood to 
 mean more than that it was a very short space of 
 time." f 
 
 Great mental trouble or anxiety may make past 
 time to appear much longer than it really was. Pepys 
 
 * Hamlet, A. i. S. 3 ; and see ante, page 45. 
 t Trial of Patch (taken by Gumey), p. 171.
 
 OF CERTAIN FACTS COMMON IN EVIDENCE. 85 
 
 enters in liis diary, Wednesday, otli September, 1G66, 
 in the midst of the fire of London, which began on 
 Sunday morning, the 2d, " It is a strange thing to see 
 how long this time did look since Sunday, having been 
 always full of variety of actions, and little sleep, that 
 it looked like a week or more, and I had forgot almost 
 the day of the week." Sir Augustus Frazer, in a letter 
 written by him on the 2 2d of June, 1815, after the 
 Battle of Waterloo, which was [terminated] on the 18th, 
 says, " How misery prolongs time ! It already seems 
 an age since we were at Brussels ; the very day of the 
 18th seems an age ago." * It was no doubt the an- 
 guish of mind of Don Quixote's housekeeper, through 
 her fancied mischances befallen ker master^ that made 
 her exclaim, on his first return home after an absence 
 of only two days and a night, that neither he, nor his 
 horse, nor his arms had been seen for six days, f 
 
 Length of time is often very important in evidence, 
 as a measure by whicli to judge of the possibility, or 
 probability, of doing something said to have been 
 accomplished. ;j; , 
 
 SECTION II.- 
 
 OF SPEED. 
 
 As a matter of evidence, it is frequently of con- 
 sequence to know the speed with which a person was 
 riding or driving at a particular time. Accidents are 
 every day occurring from fast riding or driving : a child 
 is run over, a carriage is overturned. In these cases, 
 few spectators, perhaps, will be able to say, with even 
 
 * Letters of Sir A. Frazer, p. 565. t Don Quixote, Part I. eh. v. 
 
 X It is often important to measure a transaction by time, and to see 
 whether one of such magnitude, or containing so many things, could be 
 accomplished within it. — Cic. De Invent, i. 26.
 
 86 OF CERTAIN FACTS COMMON IN EVIDENCE. 
 
 tolerable accuracy, the rate of speed at whicli tlie 
 person wlao caused the accident was going. To do tliis 
 satisfactorily requires a former attention to sj^eed, witli 
 a view to determine tlie rate of it : and from tliat 
 attentioD, an experience, grown intQ a liabit, to settle a 
 rate of speed on any particular occasion. " I could not 
 but observe with alarm the quickened motion of our 
 horses. Ten years' experience had made my eye learned 
 in the valuing of motion ; and 1 saw that we were now 
 running thirteen miles an hour." * 
 
 Dr. Henry, speaking of the Britons, Gauls, and 
 Germans, tells us, on the authority of Caesar f and 
 Tacitus, J " It was a common practice among all 
 these nations to mix an equal number of their swiftest 
 footmen with their cavalry ; each footman holding by a 
 horse's mane, and keeping pace with him in all his 
 motions." And he adds, " This way of fighting con- 
 tinued so long among the genuine posterity of the 
 Caledonians, that it was practiced by the Highlanders 
 in the Scots' army in the civil wars of the last [seven- 
 teenth] century." § Neither Caesar nor Tacitus men- 
 tions the swiftness, or the size, of the horses — imj^or- 
 tant points in judging of the activity and speed of the 
 men. 
 
 The annals of the " Sporting World " doubtless 
 furnish remarkable instances of man's swiftness of foot ; 
 but, as a fact in common evidence, it is not the extra- 
 ordinary feat of a pedestrian that rec^uires attention, 
 but the ordinary pace of a man in walking or running, 
 cind, especially, the ability of the individual, whose 
 
 * The English Mail Coach, De Quincey's Miscellanies, p. 33G, ed. 1854. 
 t De Bel. Gal. i. 39. I Gemi. yi. 
 
 § Henry, Hist. B. I. ch.
 
 OF CERTAIN FACTS COMMON IN EVIDENCE. 87 
 
 speed on a particular occasion it may be important to 
 know. 
 
 Speed is greatly governed by the nature of tlie 
 ground j^assed over, being accelerated or retarded by 
 the evenness, or roughness, of it, and by its form of 
 plain or hill. So obstructions of any kind in the way, 
 whether constant or casual, may hinder, and, on the 
 other hand, freedom from them may assist, the rate of 
 speed. 
 
 The greatest impulse to speed is given by the 
 motive for it. If the word goes forth, " Escape for thy 
 life ; look not behind thee," — the utmost attainable 
 swiftness may be expected as the result. When the 
 malefactor, thief, or murderer, meditates an alihi^ and, 
 escaping from the scene of his crime, thinks, if he says 
 not, " Would I were safe at home in bed ! " * no strain 
 on his muscular powers is spared to mend and keep ujd 
 his pace. 
 
 • In Scotland, in former days, swiftness of foot was 
 sometimes put to a severe trial, when a Highland chief 
 summoned his clansmen to a rendezvous by sending out 
 the '-^Fierij Cross ".* 
 
 " Then Roderick, with impatient look, 
 From Brian's hand the symbol took : 
 ' Speed, Malise, sjieed ! ' he said, and gave 
 The crosslet to his henchman bi-ave ; 
 ' The muster place be Lanrick mead — 
 Instant the time — speed, Malise, speed ! ' 
 
 Herald of battle, fate, and fear, 
 
 Stretch onward in thy fleet career ! 
 
 The wounded hind thou track'st not now, 
 
 Pursuest not maid through greenwood bough. 
 
 Nor pliest thou now thy flying jjace, 
 
 With rivals in the mountain's race ; 
 
 * Gav.
 
 88 OF CEETATIf FACTS COMMON IN EVIDENCE. 
 
 But danger, death, and warrior-deed. 
 
 Are in thy course — speed, Malise, sj^eed ! " * 
 
 ' ■ On the siiljject of these verses, Sir Walter Scott, 
 among the notes to the same poem, says, "When a 
 chieftain designed to summon his clan, upon any sudden 
 or important emergency, he slew a goat, and making a 
 cross of any light wood, seared its extremities in the 
 fire, and extiDo-uished them in the blood of the animal. 
 This was called the Fiery Oross^ or the Cross of Shame^ 
 because disobedience to what the sj'mbol implied in- 
 ferred infamy. It was delivered to a swift and trusty 
 messenger, who ran full speed with it to the next ham- 
 let, where he presented it to the princi^Dal pei'son, with 
 a single word, im23l3'ing the place of rendezvous. He 
 who received the symbol was bound to send it forward, 
 with equal dispatch, to the next village ; and thus it 
 passed with incredible celerity through all the district 
 which owed allegiance to the chief, and also among his 
 allies and neighbors, if the danger was common* to 
 them. At sight of the Fiery Cross, every man, from 
 sixteen years old to sixty, capable of bearing arms, was 
 obliged instantly to rej)air, in his best arms and ac- 
 couterments, to the place of rendezvous. He who 
 failed to appear, suffered the extremities of fire and 
 sword, which were emblematically denounced to the 
 disobedient, by the bloody and burnt marks upon this 
 warlike signal. During the civil war of 1745-6, the 
 Fiery Cross often made its circuit ; and upon one occa- 
 sion it passed through the whole district of Breadal- 
 bane, a tract of thirty-two miles, in three hours." 
 
 On a pressing necessity, a horseman may, in Shaks- 
 peare's strong expression, devour the way : 
 
 * The Lady of the Lake, canto iii.
 
 OF CERTAIN FACTS COMMON IX EVIDENCE. 89 
 
 " After him came, spurring hard, 
 A gentleman almost forespent with speed, 
 
 He seem'd in running to devour the way. 
 Staying no longer question." * 
 
 SECTION ni. 
 
 OF DISTANCE OP PLACE. 
 
 The distance of one place from another is often a 
 material fact in evidence. If a person does not know 
 what the distance is by measure, he may take it from 
 common report, — from what it is called : 
 
 "How far is'tcall'd to Fores ?"t • 
 
 Or he may take it from some kind of argument in his 
 own mind about it. He may know that to walk from 
 the one place A. to the other B. takes him such a time ; 
 and that he consumes the same time in walking from 
 some other place C. to another D., the distance be- 
 tween which he knows. ' Then, supj^osing the two 
 paths or roads to be alike, as both level or both hilly, 
 and both to be free from obstruction, or neither to 
 possess an obstruction which the other does not, in 
 such a case, the time spent in the walk may lead him 
 to conclude the distance between A. and B. to be the 
 same as that between C. and D. 
 
 Common report maybe a very unsafe guide. Dr. 
 Johnson thus speaks of the dimensions of the Island of 
 Raasay, and others of the Hebrides: "The length of 
 Raasay is, by computation, 15 miles, and the breadth 
 two. These countries have never been measured, and 
 the computation by miles is negligent and arl)itrary. 
 . We observed in traveling, that the nominal and real 
 
 ¥ , . - 
 
 * Heniy IV. Part ii. A. i. S. 1. t Macbeth, A. i. S. 3. 
 
 7
 
 90 OF CERTAET FACTS COMMON IX EVIDENCE. 
 
 distance of places had very little relation to eacli 
 otlier," * 
 
 The occujiation of some persons may make tliem 
 more fit than others to determine distances, without 
 measuring; as surveyors of roads, and laud-surveyors. 
 And many persons can, from experience, pretty accur- 
 ately tell short distances without measuring. But 
 this is not the case with all; for some are much puz- 
 zled to determine even very short distances. An ob- 
 vious and common method to learn from them the dis- 
 tance of one spot from another, as from A. to B., is 
 to comj)are distances, — to proj^ose to them a certain 
 distance, which they know, or see ; as the length of a 
 particular street, or building, or room, and inquire if 
 this distance corresj)onds with the distance from A. 
 toB. 
 
 There may be different distances between one place 
 and another ; judging by the diiferent ways, which 
 may be used between them. There is distance in a 
 straight line, " as the crow flies ; " and distance by this 
 or that path or road. And in these cases, the time re- 
 quired to pass from the one place to the other may 
 vary with the distances, and the obstructions to be 
 overcome. The measured distance from a pit of water 
 round by E., to the farm-house of H., is 2 miles and 
 4 furlongs. A second, and the most ready and acces- 
 sible, way from the pit to the farm-house, and also the 
 way which could be gone over in the shortest possible 
 time by any person traveling the same on foot, is from 
 the pit across certain fields into the C. turnpike road, 
 and so across the road and other fields into and alono- a 
 lane leading by the house of L., and so along another 
 lane to the farm-house of H. But the distance from 
 
 * Journey to the Western Islands of Scotland, p. 100, ed. Edinb. 1798.
 
 OF CERTAIN FACTS COMMON IN EVIDENCE. 91 
 
 the pit of water to tlie farm-liouse of 11. , measured in 
 the direction of the last way, is 1 mile 7 furlongs and 
 170 yards. A third, and the shortest way, is that in a 
 straight line. And the measured distance from the pit 
 of water in a straic-lit line to the farm-house of H., is 
 1 mile 4 furlongs and 60 yards ; but there is no foot- 
 path or other way in this direction, except for the dis- 
 tance of about 100 yards, being from a bridge across a 
 canal to the farm-house ; and from the intersections of 
 hedges and fences of inclosures lying between the pit 
 of water and the bridge, and the difficulties of the 
 ground, it would require a longer time to arrive at the 
 farm-house by this course of the straight line, than by 
 taking the more circuitous and accessible course secondly 
 pointed out.'* 
 
 The peculiar knowledge, which an Irish peasant 
 has of distances, is thus mentioned by Sir Jonah Bar- 
 rington : " I have often heard it remarked and com- 
 plained of by travelers and strangers, that they never 
 could get a true answer from any Irish peasant as to 
 distances^ when on a journey. For many years I myself 
 thought it most unaccountable. If you meet a peasant 
 on your journey, and ask him how far, for instance, to 
 Ballinrobe ? he will probably say it is ' three short miles.' 
 You travel on, and are informed by the next peasant 
 you meet, that 'it is Jive long miles.' On you go, and 
 the next will tell ' your honor ' it is four miles, or 
 about that same. The fourth will swear, ' if your 
 honor stops at three miles, you'll never get there.' But 
 on pointing to a town just before you, and inquiring 
 what place that is, he replies, 'Oh ! plaze your honor, 
 that's Ballinrobe, sure enough ! ' ' AVhy, you said it 
 was more than three miles off ! ' ' Oh yes ! to be sure 
 
 * Ashford i\ Thornton, 1 Barn. & Aid. 420, 421, 440.
 
 92 OF CERTATSr FACTS CO]SIMON IX EYTDENCE. 
 
 and sartain, that's horn my oiun cdbin^ plaze yer honor. 
 We're no scliolards in this country. Arrah ! how can 
 we tell any distance, plaze your honor, but from our 
 own little cabins ? Nobody but the schoolmaster knows 
 that, plaze your honor.' Thus is the mysteiy un- 
 raveled. When you ask any peasant the distance of 
 the place you require, he never computes it from where 
 you then are^ but from liis oion cabin / so that if you 
 asked twenty, in all probability you would have as 
 many different answers, and not one of them correct." * 
 
 SECTION IT. 
 
 OF FAI.SEHOOD. 
 
 A falsehood is a common subterfuge of guilt. • " I 
 know not," said Cain, when Cain did know : so early 
 do we read of the sin of lying, as a consequence of 
 crime. It is the readiest instrument at hand to parry 
 suspicion with, and it is usually supported by a bold 
 front, f 
 
 The guilty man will affirm or deny, as he thinks 
 will suit his puipose. He will deny he is the person 
 who, at such a time, was at such a place, and will 
 affirm he was then elsewhere. He ^^-ill deny that a 
 particular thing, j)roved to belong to him, is his prop- 
 erty. But when an accused person tells a falsehood, 
 then, as to the particular thing he falsely affirms or de- 
 nies, that particular thing, according to the circum- 
 stances, may, or may not, hurt him. If he denies that, 
 at such a time, he was at such a place, the proof that 
 he was then there may, or may not, hurt him ; or if he 
 denies that a particular thing is his property, the pi'oof 
 
 * Sir Jonah Barrington's Personal Sketclies, Yol. I. p. 151. 
 t Juvenal, Sat. xiii. 75.
 
 OF CEKTATX FACTS COMMON IN EVIDENCE. 93 
 
 that it is his property may, or may not, hurt him. 
 Either proof mil, or will not, injure him, according as 
 the fact proved is consistent or inconsistent with inno- 
 cence. But in either case the falsehood tends to preju- 
 dice him. For experience teaches, that commonly, in 
 matters of moment, a lie is not uttered without a suffi- 
 cient motive ; and therefore from the lie a just infer- 
 ence is, there was a motive for it ; and, allowing a mo- 
 tive, it is not, unreasonable to conclude it sprang from 
 a consciousness of guilt. And in this way the falsehood 
 becomes a fact, that is evidence against the accused ; 
 and, put into the scale against him, must have its due 
 weight allotted to it. 
 
 SECTION V. 
 
 OP SELF-CONVICTION. 
 
 Words unwarily dropped may speak guilt, and 
 lead to conviction of it.'^' On this suljject, Sir Walter 
 Scott has the following note to a passage in Roke- 
 by : f " All who are conversant with the admin- 
 istration of criminal justice must remember many 
 
 * " The self-con\dcted felon dies." — Gay. Many men, througli impru- 
 dence in talking, have fallen into trouble; as lately happened to Stajonus. 
 While talking of certain matters, he was overheard by persons, who were 
 listening on the other side of the wall between them ; and on theh evi- 
 dence he was condemned to death. A similar circumstance is related of 
 Pausanias, the Lacedaemonian. — Cic, Topica^ 20. [The poet Ibycus, jour- 
 neying to Corinth, Avas assailed by robbers ; as he fell beneath their mur- 
 derous strokes, he looked around if any witnesses or avengers were nigh. 
 No living thing was in sight save a flight of cranes high overhead. He called 
 on them, and to them committed the avenging of his blood. Long after, 
 his murderers, setting in the open theatre at Corintli, beheld a flight of 
 cranes hovering above them, and one said scofiingly to another, " Lo there, 
 the avengers of Ibycus ! " The words were caught up by some near them, 
 and they, being questioned, betrayed themselves, and were executed. The 
 Cranes of Ibycus passed into a proverb. — Trench^ Lesnonsin Proterhs.] 
 
 t Rokeby, canto ii.
 
 94 OF CEETAIN FACTS C0M3I0X IX EYIDEXCE. 
 
 occasions in wliicli malefactors appear to have con- 
 ducted themselves ^vith a sj^ecies of 'infatuation, either 
 by making unnecessary confidences respecting their 
 guilt, or by sudden and involuntary allusions to circum- 
 stances, by which it could not fail to be exposed. A 
 remarkable instance occurred in the celebrated case of 
 Eugene Aram." 
 
 Self conviction may be by deed, as well as word ; 
 by some inadvertent act done. Shakspeare attributes 
 Cardinal Wolsey's fall in a great degree to some pa- 
 pers, which he carelessly put into a packet for the 
 king.* 
 
 Dr. Johnson, in his journey to the Hebrides, gives 
 (p. 124) this account of the discovery of a consj^iracy 
 formed by Hugh Macdonald, who was next heir to the 
 dignity and fortune of his chief Hugh, being so near 
 his wish, was impatient of delay, and had art and in- 
 fluence sufficient to engage several gentlemen in a plot 
 against the laird's life. Something must be stipulated 
 on both sides, for they would not dip their hands in 
 blood merely for Hugh's advancement. The compact 
 was formally written, signed by the conspirators, and 
 placed in the hands of one Macleod. It haj^pened that 
 Macleod had sold some cattle to a drover, who, not 
 having ready monej^, gave him a bond for payment. 
 The debt was discharged, and the bond redemanded ; 
 which Macleod, who could not read, intending to put 
 into his hands, gave him the conspiracy. The drover, 
 when he had read the paper, delivered it privately to 
 Macdonald, who, being thus informed of his danger, 
 called his friends together, and provided for his safety. 
 
 * Henry Vm. A. iii. S. 3.
 
 OF CERTAIN FACTS COMMON IN EVIDENCE. 95 
 
 SECTION VI. 
 
 OF CHARACTER. 
 
 On a criminal trial, it is common for tlie person 
 accused to bring witnesses to speak to his character; in 
 which case the testimony of character is part of the 
 evidence, on which the conclusion of guilty or not 
 guilty is arrived at. The ol)ject of it is to exculpate the 
 accused, to cause him to be acc[uitted. 
 
 This kind of testimony presupposes that there is 
 some evidence against the accused, tending to prove 
 that he is guilty ; for otherwise, testimony of exculpa- 
 tion would not be needed. Character is useful in 
 doubtful cases. If on the rest of the evidence there 
 is a doubt whether the accused is guilty, then evi- 
 dence of character ought to have its proper weight, 
 and may have, and often has, the eifect to turn the scale 
 in favor of innocence. . 
 
 The nature of evidence to character is, that it is the 
 witness's inference and o23inion only ; inference and 
 opinion drawn from facts. The fiicts may be, what the 
 witness has heard the accused person say, or w^hat he 
 has seen him do ; or his general conduct, which has 
 come under the witness's own personal observation. 
 
 An opinion of character amounts to probability only ; 
 it cannot be set higher than this. From such and such 
 facts, the inference is, not that it is certain, demonstra- 
 ble, that the moral nature of the accused, at the time 
 of the imputed offense, was such that he could not 
 commit it, but that it is not probable he would com- 
 mit it.* 
 
 * [The doubtful value of testimonials to character, is exhibited in the 
 following account abstracted from 1 Albany Law Journal, CO : A man, 
 called Goodwin, was convicted, on the clearest testimony, of an indecent 
 assault. A police officer stated the prisoner to have been known to him
 
 96 OF CEETAIN FACTS COMMON IN EVIDENCE. 
 
 The weiglit of the opinion must be in a great de- 
 gree governed by the opposite natures of the character 
 and offense. If the charge be of fraud, or theft, the 
 character should be of honesty; if of perjury, of 'res- 
 pect for an oath ; if of homicide, of gentleness of dis- 
 position ; if of treason, of loyalty. The witness may 
 infer it is not probable the honest man would be guilty 
 of fraud or theft ; nor he who respects an oath, of per- 
 jury ; nor the man of gentle disposition, of homicide ; 
 nor the loyal man, of treason. 
 
 On the trial, in 1840, of Frost for high treason, by 
 levying war against the Queen, the Chief Justice Tin- 
 dal, in his summing up, explained to the jury the gen- 
 eral nature of the evidence of character, and the jury's 
 duty with regard to it. One of the witnesses for the 
 prisoner had said, he had frequently heard Frost make 
 speeches in public, and he had always heard him speak 
 in favor of peaceable behavior, and against force. 
 After noticing this evidence, the Chief Justice contin- 
 ued : " Several other witnesses give their testimony to 
 the same effect as to the character of "Mr. Frost. That 
 is matter for your consideration, when you are deter- 
 
 for many years, as one of a gang addicted to sucli practices. On this lie 
 was sentenced to seven years penal servitude. Afterward an application 
 was made to suspend the execution of the sentence to enable the convict 
 to produce testimony, showing the police officer to have made a mistake as 
 to the convict's previous character and habits. This was granted, and 
 several witnesses of undoubted respectability were examined, who stated 
 they had known the prisoner for some years, and that his conduct, so far 
 as they could judge, was decent ; and a clergyman of distinction wrote the 
 judge, that he had had the prisoner under his eye for a long time, and that 
 the prisoner's behavior had always been praiseworthy. This testimony was 
 met with overwhelming proof, that whatever might be the prisoner's char- 
 acter by day, at night he was the kind of person the officer described him. 
 May not this kind of transformation, says the writer, account for many 
 contradictions between reputation and fact ? and may not the respectabil- 
 ity of noon be a mask for the rascality of night ?] 
 
 I
 
 OF CERTAIX FACTS COMMON IN EVIDENCE. 97 
 
 mining whetlier or not tlie prisoner is guilty of tlie 
 charge, wliicli is now imputed to liim. It is T^y no 
 means decisive in his favor ; hut it is a fact, wliicli you 
 are to weigh, when you are giving effect to the testi- 
 mony brought on the side of the prosecution. The 
 nature of evidence given to character is, to show that 
 the 2:>risoner, who is of a peaceable disposition, and 
 averse from mixing himself up in such quarrels and 
 affrays and tumults, as are now laid to his charge, is not 
 a person likely to be guilty of the crime of high trea- 
 son, by levying war against the Queen. It is, however, 
 only for your discretion to give the Aveight that is due 
 to it. The general character of a man will make it very 
 often improbable that he should commit a particular 
 crime that is imputed against him. A man, who has a 
 general character for honesty, is not likely to commit a 
 theft. A man, w^ho has a peaceable and well-disj^osed 
 character, and recommends to others peace, upon occa- 
 sions of general disturbance, is not likely to be a person 
 who would commit an act of violence, by levying war. 
 But it is, at best, no more than a question of probability, 
 to be put in opposition and ^yeighed against the evi- 
 dence of the fact. If the evidence, which goes to tlie 
 fact, is sufficiently strong to convince you that the act 
 of criminality, which is imputed to him, was actually 
 committed, then it is no more than weighing probability 
 against fact. If the scales are hanging even, and you 
 feel a doubt whether the party is guilty or not of the 
 act charged against him, then undoubtedly you will 
 give him the full benefit of such testimony of general 
 character, which he may liav6 earned by his previous 
 conduct in life. You are to weigh it, not as dh'ect evi- 
 dence in the case — not as positive evidence contradicting 
 any that has been brought on the other side — l)ut as 
 testimony, probably, to induce you to doubt, whether
 
 98 OF CEETAIX FACTS COMMON IN EVIDENCE. 
 
 tlie other evidence is correct, and not to discard that 
 evidence, if you think that it is so." * 
 
 It ought to appear from the witness's evidence, that 
 he has had full opportunities of knowing well the char- 
 acter to which he takes upon himself to sj^eak. And, 
 moreover, his mental power rightly to infer the character 
 he gives ought, perhaps, in some degree, to appear from 
 his evidence ; but probably this power is usually more 
 assumed, than proved. And to judge of the weight of 
 evidence to character, it should not altogether be lost 
 sight of, that the witness is called by the person accused, 
 and purposely to bear favorable testimony ; and there- 
 fore from amongst relations, friends, or other persons 
 kindly disposed toward him. And from this circum- 
 stance it should not be forgotten, that friendly bias or 
 influence may rule or bend the mind of the witness, and 
 consequently give to his evidence undue color or 
 streno'th. 
 
 The time when the witness drew his inference of 
 character is very material. The nearer it comes to the 
 time of the imputed oifense the better. In effect, what 
 the witness says is, he thinks that, at such a time, the 
 accused would not commit the offense imputed to him. 
 Many crimes, no doubt, take place through a man's 
 vicious propensity to them ; when they are committed 
 usually with forethought, and often habitually, or as a 
 j)art of the business of life. Among offenses of this 
 description, stealing is prominent. But a knowledge of 
 mankind, and constant experience in the world, teaches 
 that frequently crime dej)ends very much on tempta- 
 tion ; so that, where there is no temptation, there is no 
 crime ; but let temptation come in the way, it is not 
 withstood, and crime is the result : — temptation, it may 
 
 * Trial of Frost (taken by Gurney), p. 749.
 
 OF CERTAIN FACTS COMMON IN EVIDENCE. 99 
 
 be, by otters, but more commonly, perhaps, of this 
 kind — when a man " is drawn away of his own lust and 
 enticed." Temptation, to be effectual, must correspond 
 with the present desire of him Avho is tempted. Want 
 of food or raiment may tempt a man, destitute of these 
 necessaries of life, to steal. The bait must be suited to 
 the prey ; and if it is not, it will fail. What may be a 
 strong tem2:>tation to one man, may be none at all to 
 another.^" 
 
 And, again, the same thing that, in a former period 
 of a man's life, or in the last year or month of it, or 
 even yesterday, might have strongly tempted him, may 
 over the same man now have no power whatever. 
 Age, health, moral improvement, and a variety of other 
 causes, may occasion this difference in the force of 
 temj^tation. 
 
 And, on the other hand, what will now tempt a 
 man, and lead him into crime, might not have had this 
 power at an earlier period of his life. Or, guilty now, 
 he may have lived innocent through former years, 
 merely because temptation did not then come in his 
 way.f 
 
 The above considerations show the importance of 
 the time of which a witness to character sj^eaks. And, 
 in fact, the witness is constantly cross-examined on the 
 article of time. And the effect of this cross-examina- 
 tion may be wholly to destroy the witness's evidence 
 in chief. On the trial of Colonel Despard, in 1803, for 
 high treason. Lord Nelson was called as a witness to 
 his character. And, speaking of a particular time 
 during which they had served together. Lord Nelson 
 said : " In all that period of time, no man could have 
 shown more zealous attachment to his sovereign and 
 
 * See Paradise Regained, B'k ii. t Henry V. Act ii. S. 3.
 
 100 OF CERTAET FACTS COMMON IN EVIDENCE. 
 
 \ 
 
 liis country than Colonel Despard did. I formed the 
 higliest opinion of him at that time, as a man and an 
 officer, seeiuo: him so willincr in the service of his 
 sovereio'u." Lord Nelson was then cross-examined ; the 
 whole of this examination consisting of the three fol- 
 lowing questions and answers : 
 
 " Q. What your lordship has been stating was in 
 the years 1779 and 1780? 
 
 A. Yes. 
 
 Q. Have you had much intercourse with Colonel 
 Desj^ard since that time ? 
 
 A. I have never seen him since the 29th of April, 
 1780. 
 
 Q. Then as to his loyalty for the last twenty-three 
 years of his life, your lordship knows nothing. 
 
 A. Nothing."* 
 
 In the present century (to go no further back) the 
 instances in this country are hardly rare of men (may 
 their names be forgotten), men of station, highly 
 educated, who, succumbing to temptation, have ex- 
 changed honor for infamy. 
 
 If j^roof were needed to show the vast power of 
 enticement, it is found in the prayer, " Lead us not into 
 temptation." 
 
 * Trial of Col. Despard (taken by Gumey), p. 174.
 
 CHAPTER VII. 
 
 OF SUSPICION. 
 
 De, JoHNSOi^ defines suspicion to be, " Imagination 
 of sometliing ill without proof." With this agree the 
 suspifions, fancied wrongs, which Terence j)laces among 
 the troublesome incidents to love.* 
 
 And the diiferent kinds of suspicion mentioned by 
 Bacon, in his essay on the subject, those which " dis- 
 pose kings to tyranny, husbands to jealousy, wise men 
 to irresolution," are thoughts without proof, images 
 ■floating in an obscure atmosphere. " Suspicions 
 amongst thoughts," he says, " are like bats amongst 
 birds, they ever fly by twilight." 
 
 A suspicion that a person entertains may be 
 grounded on something which he either sees or hears. 
 And those which sj^ring from what is heard through 
 some tale-bearer, ar^ j)ointed out by Bacon as of the 
 most noxious kind. These he likens to the stins: of an 
 insect ; others to the harmless buzz of it. " Suspicions 
 that the mind of itself gathers are but buzzes ; but 
 suspicions that are artificially nourished, and put into 
 men's heads by the tales and whisperings of others, 
 have stings." 
 
 Some men have so much mastery over themselves 
 that they do not sufter their faces to betray their 
 hearts, although agitated by strong passion ; or if there 
 is not a perfect concealment from all beholders, there is 
 fi'om some, f 
 
 * Ter. Eun. A. i. S; 1. t Richard III. A. iii. S. 4.
 
 102 OF SUSPICION. 
 
 
 But tills power over tlie countenance is probably 
 not common ; and certainly a usual source of suspicion 
 is a person's look, gesture, or manner, wliicli discloses 
 some painful or disturbed state of his mind ; Ms sense, 
 it may be of guilt.^ 
 
 A j)erson's countenance, liowever, may raise sus- 
 picion, yet not of guilt ; for happily a sense of guilt is 
 not so common as feelino;s of an innocent character. A 
 face often foretells unwelcome news. Such a one wore 
 Gulliver's master, the Houyhnhnm, on his commiinicat- 
 ing to Gulliver the intelligence, unpleasant to both, 
 that he must leave his service. " In the midst of all 
 this happiness," the traveler says, " and when I looked 
 u23on myself to be fully settled for life, my master sent 
 for me one morning a little earlier than his usual hour. 
 I observed by his countenance that he was in some 
 perplexity, and at a loss hiow to begin what he had to 
 speak." f 
 
 Sorrow in the countenance every day foreshows the 
 dreaded certainty of death, "l Suspicion is a constant 
 attendant on crime, and often leads to the proof of it. 
 Cicero tells us what is the common course of crime. § 
 Signs of resistance to force, and a corpse's ap23earance, 
 may cause a strong suspicion of murder. | 
 
 * Hamlet, A. iii. S. 2. 
 
 t Gullivers Voyage to tlie Houyhnhnms, ch. x. 
 
 X Henry IV. Part ii. A. i. S. 1. 
 
 § In general, crime, fii'st of all, creates suspicion ; next follOTvs talk and 
 common report about it ; then comes the prosecution, succeeded by con- 
 viction and punishment. — Cic. De Fin., i. 16. 
 
 II "Plautius Silranus, one of the preetors, impelled by some secret 
 motive, threw his wife Aprouia out of the window of her apartment, and 
 killed her on the spot. Being immediately seized by his father-in-law, 
 Lucius Apronius, and conveyed to the presence of the Emperor, he made 
 answer, with an air of distraction, that while he lay asleep, his wife com- 
 mitted that act of violence. Tiberius went directly to the house. He
 
 OF SUSPICION. 103 
 
 So, on tlie otlier hand, a suspicion of murder may 
 be suspended or layed, by a want of signs of conflict, 
 or of otlier circumstances, wliicli would be likely to 
 attend it. * 
 
 In a case of. a murder, the deed is proved to Lave 
 been done by some one ; and often there are facts sur- 
 rounding it, which are a source of suspicion that it was 
 done by a particular person, f 
 
 Suspicious facts surrounding a deed of murder may 
 be, — the suspected person's nearness, about the time of 
 the murder, to the place where it was committed ; his 
 words uttered before the deed, as of anger, hatred, ven- 
 geance ; his words spoken after it ; his possession of a 
 weapon suitable to effect the deed ; the condition of it, 
 as bearino; marks of violence or stains of blood ; stains 
 of blood upon his body or clothes ; jmuts of shoes, 
 corresponding with his own shoes, on the ground at or 
 near the place of the crime; his appearance or be- 
 havior after the deed, as his change of color, stammer- 
 ing, trembling. These, or the like, facts constantly 
 create a suspicion that the person, to whom they ap- 
 ply, is guilty of the deed. J Shakspeare represents 
 Henry V. as putting into the hands of Cambridge, 
 Scroo]3, and Grey, certain papers convicting them of 
 treason, and describes the effect they had on them. § 
 In the story told by Cicero there were circumstances 
 of great suspicion, that, of two guests at an inn, one 
 
 examined the ai^artment, and saw evident signs of a person who had 
 struggled, but was overcome by force." — Murphy. Tacitus, Annul iv. 22. 
 And see Henry IV. Part ii. A. iii. S. 2. 
 
 *'Lara, canto ii. t Henry VI. Part ii. A. iii. S. 3. 
 
 X Cic. Orat. Partit. 11, and see 33; also, Romeo and Juliet, A. v. S. 3; 
 Macbeth, A. i. S. 7 ; The Corsair, canto iii. 
 
 § Henry V. A. ii. S. 2.
 
 104 OF SUSPICION. 
 
 had murdered tlie other.* An attempt to conceal 
 something is often a source of suspicion.f Flight is a 
 cause of suspicion. J When a crime has been com- 
 mitted, and a suspicion of the guilt of it attaches on a 
 person, from his sudden disappearance from the place 
 or neighborhood of it ; to ascertain the soundness of 
 the suspicion, the first inquiry obviously should be, is 
 the going away a flight ? One of many innocent causes, 
 business, or pleasure, may have occasioned the depart- 
 ure ; and, relatively to the crime, the going away at 
 this particular time may have been purely accidental. 
 And supposing the departure to be really flight, it may 
 be flight, not by reason of the crime, but from a motive 
 quite independent of it, as to escape from creditors. 
 In the case of Crossfield, tried in 1796, for high treason, 
 
 * A man going to market, and carrying money with liim, was over- 
 taken by another man. The two entered into conversation, and from 
 thence arose an inclination on the part of both to keep together as friends. 
 And accordingly, when they had both entered the same inn, they agreed 
 to sup together, and to sleep in the same room. Supper being over, they 
 both retired to rest in the same chamber. But the innkeeper (as was 
 afterward discovered on his being taken up on another charge) having seen 
 the money, which the one of them carried, arose in the night, and so soon 
 as he perceived his two guests to be sound asleep, he approached them, 
 and seeing the sword of the one who had not the money lying near him, 
 he drew it from the sheath, and with it killed his companion ; and having 
 stolen the money, he replaced the bloody sword in the sheath, and went 
 to bed again. Now the man, whose sword had been used to perpetrate 
 the murder, arose long before day-light, and rej^eatedly called out to his 
 companion in order to wake him. And receiving no answer, he naturally 
 attributed this to the man's being asleep. And taking up his sword and 
 the other things he had brought with him, he set out alone. The inn- 
 keeper, not long after, raised a cry that a man was murdered ; and he, to- 
 gether with some of his guests, pursues and overtakes the man, who had 
 before gone out. He seizes him, draws his sword, and exhibits it bloody. 
 The owner is carried to Rome, and prosecuted for the murder. — Cic. De 
 Inventione, ii. 4. 
 
 t See King Lear, A. i. S. 2. J Macbeth, A. ii. S. 4.
 
 OF SUSPICION. 105 
 
 there was evidence of liis leaviuo; Ensjland. For the 
 prosecution it was said, that the j^risoner left England 
 to avoid being involved in the present charge ; and for 
 the defense there was evidence to show, he went abroad 
 to escape from his creditors. The Chief Justice Eyre, 
 in his summing up, told the jury — " You have heard a 
 great number of observations upon the particular parts 
 of the evidence, as to the person's conduct, resj)ecting 
 his originally withdrawing himself from this country. 
 It will be a point for you to satisfy yourselves about ; 
 whether he did withdraw himself from this country, 
 under the apprehension of being involved in this 
 charge, or whether he withdrew from this country, 
 merely on account of the pressure of his circumstances. 
 . . . . If this man withdrew from the danger, 
 that he thought himself in, of being apprehended 
 under this charge, that is a strong corroboration of all 
 the rest of the evidence. On the other hand, if he 
 withdrew from the mere pressure of his circumstances, 
 he will avoid all the inferences that have been made 
 from his conduct in that particular." * 
 
 Flight there may be, without any crime at all ; but 
 caused by an act that is no crime; an act done inno- 
 cently by one, who has not courage enough to stay and 
 explain it. Such was the flight of Tyrell, who slew 
 William Rufus : without informing any one of the ac- 
 cident, he put spurs to his horse, hastened to the sea- 
 shore, and embarked for France.f 
 
 Suspicious circumstances are caj^able of explana- 
 tion ; and the effect of explanation may be, to lessen 
 their force, or even wholly to destroy it. Taking the 
 suspicious facts, above noticed, surrounding a deed of 
 
 * Crossfield's Trial (taken by Gurney), pp. 318, 319. 
 t Hume's Hist.
 
 106 OF SUSPICION. 
 
 murder, — tlie suspected person may innocently have 
 been near the place about the time of the murder ; his 
 words may have been quite unconnected with the crime ; 
 the condition of the weapon may be otherwise ac- 
 counted for ; so may the stains on his body or clothes ; 
 the shoes may not have been his ; or, if his, they may 
 have been worn by somebody else ; his appearance and 
 behavior may be shown to be innocent. 
 
 The following story contains a lesson against rash 
 suspicion : — " At the foot of a mountain there issued 
 out a clear S2:)ring of water, at which a soldier alighted 
 from his horse to drink. He was no sooner gone, than 
 a little boy came to the same place ; and finding a purse 
 of gold^ which the soldier had dropped, took it up, and 
 went away with it. Immediately after this came an 
 infirm old man, weary with age and traveling; and, 
 having quenched his thirst, sat down to rest himself by 
 the side of the spring. The soldier missing his purse 
 returns to search for it, and demands it of the old man, 
 who afiirms he had not seen it, and appeals to Heaven 
 in witness of his innocence. The soldier, not believing 
 his protestations, kills him." * 
 
 In Cymbeline, some very suspicious circumstances, 
 invented by lachimo to prove Imogen faithless to her 
 husband, are most satisfactorily explained.f " The 
 gentle Desdemona married to the Moor," what a source 
 of suspicion was " that same handkerchief ! " And 
 how ill-founded ! J The unfounded suspicion of Hero's 
 disloyalty to Claudio furnishes, perhaps, the most affect- 
 ing incident in all Shakspeare's plays. § 
 
 * The Spectator, No. 237. f Act ii. S. 4 ; A. v. S. 5. 
 
 X OtheUo, A. iii. S. 3, 4; A. iv. S. 1 ; A. y. S. 2. 
 
 § Much Ado About Nothing, A. ii. S. 2 ; A. iii. S, 3 ; A. iv. S. 1.
 
 CHAPTER VIII. 
 
 OF PROBABILITY.* 
 
 What probability is we are told by Locke : " Prob- 
 ability is likeliness to be true ; the very notation of the 
 word signifying such a proposition, for which there be 
 arguments or proofs to make it pass, or be received for 
 true. The entertainment the mind gives this sort of 
 projiositions is called belief, assent, or opinion, which is 
 the admitting or receiving any proposition for true, 
 upon arguments or proofs that are found to persuade 
 us to receive it as true, without certain knowledge that 
 
 it is so Probability being to supply the 
 
 defect of our knowledge, and to guide us where that 
 fails, is always conversant about propositions, whereof 
 we have no certainty^ but only some inducements to 
 receive them for true. The grounds of it are, in short, 
 these two following : First the conformity of any thing 
 
 [* " Nothing is impossible which does not involve a contradiction. . . . 
 There is a possibility that Bonner may have been a good Protestant, who, 
 being convinced that the blood of martyrs is the seed of the Chm-ch, 
 heroically went through all the drudgery and infamy of persecution, that 
 he might inspire the English people with an intense and lasting hatred of 
 Popery. There is a possibility that Jeffries may have been an ardent lover 
 of liberty, and that he may have beheaded Algernon Sidney, and burned 
 Elizabeth Garnet, only in order to produce a reaction which might lead to 
 a limitation of the prerogative. There is a possibility that Thurtell may 
 have killed Weare only in order to give the youth of England an impres- 
 sive warning against gaming and bad company. There is a possibility 
 that Fauntleroy may have forged powers of attorney only in order that 
 his fate might turn the attention of the public to the defects of the penal 
 law. These things, we say, are possible. But they are so extravagantly 
 improbable, that a man who should act on such suppositions would be fit 
 only for Saint Luke's." — Macaulay — Essay an Lord Bacon.]
 
 108 OF PEOBABILITY. 
 
 witL. our own knowledge, observation, and experience. 
 Secondly, the testimony of others, vouching their ob- 
 servation and experience Probability 
 
 wanting that intuitive evidence which infallibly determ- 
 ines the understanding, and produces certain knowl- 
 edge, the mind, if it would proceed rationally, ought to 
 examine all the grounds of probability, and see how 
 they make more or less for, or against, any proposition, 
 before it assents to or dissents from it ; and, upon a due 
 balancing the whole, reject or receive it, with more or 
 less firm assent, proportionably to the preponderancy 
 of the greater grounds of probability on one side or 
 the other. For example : If I myself see a man walk 
 on the ice, it is past 'probability^ it is Tcnoiuledge. But 
 if another tells me he saw a man in England, in the 
 midst of a sharp winter, walk upon water hardened 
 with cold ; this has so great conformity with what is 
 usually observed to happen, that I am disposed, by the 
 nature of the thing itself, to assent to it, unless some 
 manifest suspicion attend the relation of that matter of 
 fact. But if the same thing be told to one born between 
 the tropics, who never saw nor heard of any such thing 
 before, there the whole probability relies on testi- 
 mony ; and as the relaters are more in number, and of 
 more credit, and have no interest to speak contrary to 
 the truth, so that matter of fact is like to find more or 
 less belief Though to a man whose experience has 
 been always quite contrary, and who has never 
 heard of any thing like it, the most untainted credit of 
 a witness will scarce be able to find belief. As it 
 happened to a Dutch ambassador, who, entertaining 
 the king of Siam with the particularities of Holland, 
 which he was inquisitive after, amongst other things, 
 told him that the water in his country would some- 
 times- in cold weather be so hard, that men walked
 
 OF PROBABILITY. 109 
 
 upon it, and that it would bear an elepliant, if lie were 
 there. To which the king replied, ' Hitherto I have 
 believed the strange things you have told me, because 
 I look upon you as a sober, fair man, but now I am 
 sure you lye.' Upon these grounds depends the proh' 
 ability of any proposition ; and as the conformity of 
 our knowledge, as the certainty of observations, as the 
 frequency and constancy of experience, and the number 
 and credibility of testimonies, do more or less agree or 
 disagree with it, so is any proposition, in itself, more 
 or less probable." * 
 
 Experience, as we may learn from the above 
 passage, is closely connected with probability. And 
 of experience. Archbishop Whately says : " This word, 
 in its strict sense, applies to what has occurred within 
 a person's own knowledge. Experience, in this sense, 
 of course relates to the past alone. Thus it is that a 
 man knows by experience what sufferings he has 
 undergone in some disease. More frequently the word 
 is used to denote that judgment, which is derived from 
 experience in the primary sense, by reasoning from 
 that in combination with other data. Thus, a man may 
 assert, on the ground of experience, that he was cured 
 of a disorder by such a medicine — that that medicine 
 is generally beneficial in that disorder. It is in this 
 sense only that experience can be applied to i\iQ future^ 
 or, which comes to the same thing, to any general fact ; 
 as, e. g., when it is said, that we know by experience 
 that water exposed to a certain temperature will 
 freeze." f 
 
 There is no probability more often thought of, and 
 
 * Locke on the Understanding, Book IV. ch. xv. See also, on Prob- 
 ability, Butler's Introduction to his Analogy of Religion. 
 
 t Whately's Elements of Logic, Appendix r. Experience, ed. 1850.
 
 110 OF PROBABILITY. 
 
 talked about, than tliat of the coming weather. And 
 certainly from experience it may often be rightly 
 judged of * The boatman who embarked Caesar and 
 his fortune, presaged the storm that overtook them, f 
 
 A case of probability of the death of a person is 
 when he has not been heard of for a great number of 
 years. J On the subject of a missing person a rule of 
 law has prevailed, that a person is to be presumed to 
 be dead who has not been heard of for seven years. 
 This rule has by different judges been acknowledged in 
 the following terms : " The presumption of the duration 
 of life, with respect to persons of whom no account 
 can be given, ends at the exj)iration of seven years 
 from the time when they were last known to be 
 living." § " That presumption arises from the great 
 lapse of time since the party has been heard of; be- 
 cause it is considered extraordinary, if he was alive, 
 that he should not be heard of In other words, it is 
 presumed that his not being heard of has been occa- 
 sioned by his death, which presumption arises from the 
 considerable time that has elapsed." || 
 
 For some purposes in the affairs of the world, and 
 especially those relating to property, it may be a con- 
 venient rule to fix a certain time, as seven years, at the 
 end of which a person, not heard of during all that 
 time, shall be presumed to be dead ; but it may be 
 doubtful whether it is desirable to take the mere fact 
 of not hearing of him for a certain time as a sufficient 
 ground for the presumption. This presumption is 
 founded on probability ; and whether there is a prob- 
 
 * Henry FV. Part i. A. iv. S. 4. t Lucan, Phars. v. 539. 
 
 I See The Corsair, canto iii. ; and Lara, canto i. 
 
 § By Lord Ellenborough, 6 East, 85. 
 
 I By Lord Denman, 3 Mees and Wei. 913. 
 
 1
 
 OF PROBABILITY. Ill 
 
 ability of deatli, will certainly depend on the particular 
 circumstances of each case : as the age and constitution 
 of the missing person ; his profession, trade, calling, or 
 pursuit in life, whether perilous, unhealthy, or other- 
 wise tending to shorten life ; the climate of the coun- 
 try he lived in when last heard of; his power of 
 communication, by writing or otherwise, with his 
 friends. 
 
 Generally speaking, allowing for the missing per- 
 son's age and constitution, and for climate, and any 
 other peculiarities in the case, it may be right, and 
 certainly most safe, to take the probability to be, that 
 up to the average term of man's life, the absent person 
 is alive. Why suppose him to be dead ? * 
 
 [* The Revised Statutes of New York provide : If any person, upon 
 whose life any estate in lands depends, remains beyond sea, or absents 
 himself, for seven years together, he shall be accounted naturally dead in 
 any action concerning such lands, in which his death is in question, unless 
 he is proved to be alive (1 R. S. 749, s. 6). As to presumption of death, see 
 O^Gara v. Eisealour (7 Transcript Appeals, 310). 
 
 We remember a case where a man left the city of New York without 
 the knowledge of his wife and family. Soon after a body was found, which 
 was supposed to be his, but so mutilated and decomposed as to render the 
 identification uncertain. It was, however, the belief that he was dead, and 
 this belief was continued until, after an absence of more than twent j--nine 
 years, he returned. He had never been heard of during his absence. He 
 had no welcome to his return, which was not altogether voluntary. Living 
 in a distant State, under an assumed name, he had fallen sick, and, being 
 in poverty, to obtain assistance, he told of property he had in New York, 
 his right to which he was willing to exchange for present shelter and sup- 
 port. This excited the cupidity of one of his hearers, who l:)rought him 
 on to New York, took from him a conveyance of the property, and set to 
 work to recover it. We, on behalf of the surviving relatives of his wife, 
 saw this man, and endeavored in vain to extract from him a reason for his 
 strange conduct. We would mention another case of prolonged absence 
 and subsequent return, the account of which came from the man's wife, and 
 imder circumstances which led us to believe her statement to be true. A. B. 
 was a portrait painter in Brooklyn, he suddenly disappeared, and all efforts 
 to trace out what had become of him were unavailing. After an absence 
 of nearly fifteen years, he one day quietly entered the house where his wife
 
 112 OF PROBABILITY. 
 
 Tlie following are facts in a cause, Dowley v. Win- 
 field^ before the Vice-Cbancellor Shadwell : In or about 
 September, 1830, F. W. Dowley, who was then about 
 fifteen years old, left England as one of the crew of a 
 South Sea whaler, called the Partridge^ which arrived 
 in London, on its return from the South Seas, in the 
 beginning of 1834. Dowley did not return in her, and 
 no tidings had been heard of him since he left England, 
 except that in February, 1834, the captain of the ship 
 stated that Dowley ran away from the Partridge at 
 Woahoo, one of the Sandwich Islands, about two years 
 then since, and that the captain had heard nothing of 
 him subsequently ; that several ships were lying at 
 Woahoo, and the captain thought it not unlikely that 
 Dowley might have got on board one of them bound 
 for America. In consequence of this information, an 
 advertisement was inserted in The Times and Morning 
 Advertiser newspapers, on the 3d of October, 1834, 
 addressed to merchant seamen and others, and request- 
 ing to be furnished with information as to the then 
 abode of Dowley, or, if he was dead, as tp the place of 
 his decease ; and 500 copies of this advertisement were 
 printed and distributed at the various docks in London. 
 In 1835, another advertisement was published in The 
 Times, and in two Liverpool newspapers, and also in 
 several American newspajoers, offering a reward of .£50 
 to any person who would furnish information as to the 
 place of abode, or death, of Dowley. In 1844, Sir L. 
 Shadwell made an order which declared that, under 
 the circumstances, it was to be i^resumed that Dowley 
 
 resided, remained there a portion of the day, refusing in any way to account 
 for his absence. Before night he again disappeared, as suddenly and as 
 completely as on the previous occasion, and, although twelve years inter- 
 vened the second disappearance and the narration of the circumstance to 
 us, he had neither returned nor been heard of.j
 
 OF PROBABILITY. 113 
 
 was dead. In this case it will be seen Dowley had not 
 been heard of for twelve years. The presumption was 
 made with the view to the transfer to the j^laintiff of 
 certain property in which Dowley had an interest; and 
 the Vice-Chancellor did not consider the evidence as 
 conclusive that Dowley was dead, inasmuch as he 
 directed the property to be transferred to the plaintiff, 
 on his giving security to refund it in case Dowley 
 should be .living.* 
 
 In Watso7i V. England^ a case which also came 
 before the Vice-Chancellor Shadwell, in 1844, a person 
 had not been heard of since the year 1814, a j^eriod of 
 thirty years. The decree in the cause directed the 
 Master to inquire whether Mary Bilton was living or 
 dead. The Master reported that she was dead, and 
 that she died in 1821, being seven years after she was 
 last heard of. The report was founded on an affidavit 
 of a person, not a relative of Mary Bilton, who deposed 
 that in 1809 or 1810, when she was about sixteen or 
 seventeen years of age, she clandestinely left the house 
 of her father, who was a small farmer in Yorkshire ; 
 and that she had not been since heard of, except that, 
 in 1814, she wrote a letter to her sister from Ports- 
 mouth, stating that she intended to go abroad. The 
 question was, whether the above evidence was sufficient 
 to warrant the Master's finding. And upon this ques- 
 tion Sir L. Shadwell thus expressed himself: "It 
 strikes me that there is considerable difficulty about 
 this case, which, like every case of the same nature, 
 must be determined according to its own peculiar cir- 
 cumstances. Here a girl of about sixteen or seventeen 
 years of age, whose father was a farmer, chose, for some 
 reason which does not appear, to leave her father's 
 
 * Dowley ti. Winfield, 14 Sim. 277.
 
 114 OP PEOBABILITY. 
 
 house, and to go no one knows wHtlier. But it seems 
 that in August, 1814, she was at Portsmouth, and that 
 she then intended to go abroad. Therefore, it is but 
 reasonable to presume that all along she had been con- 
 cealing herself, and that she never intended to return 
 home. The mere fact of her not having been heard of 
 since 1814, affords no inference of her death ; for the 
 circumstances of the case make it very probable that she 
 would be never heard of again by her relations. How 
 can I presume that she died in 1821, from a fact which 
 is quite consistent with her being alive at that time ? 
 The old law relating to the presumption of death is 
 daily becoming more and more untenable. For owing 
 to the facility which traveling by steam affords, a per- 
 son may now be transported, in a very short space of 
 time, from this country to the back woods of America, 
 or to some other remote region, where he may be never 
 heard of again." * 
 
 A somewhat similar case is Boivden v. Henderson^ 
 before Vice-Chancellor Stuart, in 1854. Here the per- 
 son missing was L. L., an Englishwoman, who, when 
 last heard of, was living in Paris. The circumstances 
 in evidence Sir J. Stuart considered not to be sufficient 
 to raise a presumption of her death. " The principle," 
 he said, " on which the Court presumes the death of a 
 person, of whom no tidings have been received for a 
 long j^eriod of time, is this : that if he were living, he 
 probably would have communicated with some of his 
 friends and relatives. It is a conclusion which the 
 Court draws from the probabilities of the case. It is 
 quite clear, therefore, that when no such probability 
 exists, the presum]3tion cannot arise. In this case, all 
 the circumstances tend to show that, after what had 
 
 * 14 Sim. 28.
 
 OF PROBABILITY. 115 
 
 taken place between L. L. and lier friends, it was 
 extremely improbable she would have entered into 
 further communication with them. She had abandoned 
 her religion, and her friends wrote to her a letter of 
 remonstrance and reproach for so doing. These re- 
 proaches were not calculated to encourage further 
 communications. I think this circumstance, taken in 
 connection with the rather eccentric course of life 
 which, it appears from her letters, she pursued, render 
 it improbable that she would have further communi- 
 cated with her friends. If I am right in this view, it 
 follows that the presumption of her death does not 
 arise from the absence of information, or of communi- 
 cation, when that absence is natural, even if the lady 
 were still alive." * 
 
 Another case involving a question of probal)ility is, 
 when a vessel being lost at sea, and two persons on 
 board so perishing, the question is, whether one of 
 them survived the other, and if one did, which of 
 them. In October, 1766, General Stanwix, his second 
 wife, and his daughter by his former wife, set sail in 
 the same vessel from Dublin for England. The vessel 
 was lost at sea, and the manner of her perishing was 
 not known. Here the question related to the deaths 
 of the General and his daughter.f 
 
 On the following circumstances, in Underwood v. 
 Wing, which came before Sir John Romilly, M. R., the 
 question related to the deaths of a husband and his 
 wife. "In October, 1853, Mr. and Mrs. Underwood, 
 and their three children, embarked on board the ship 
 Dalliousie for Australia; but on the 19th the ship 
 foundered off Beechy Head ; and, with the exception 
 of one sailor, Joseph Reed, all on board perished. It 
 
 * 2 Smale and Giff. 360. f The King v. Hay, 1 W. Blackstone, 640.
 
 116 OF PROBABILITY. 
 
 appeared clear that Mr. and ]\Ii's. Underwood, and their 
 two boys, were washed into tlie sea by the same wave, 
 but their daughter survived, and perished a short 
 
 time afterward." " Joseph Reed, the 
 
 only person able to give any account of what had 
 
 taken place, was examined After describing the 
 
 ship's going over on her beam ends, he proceeded as 
 
 follows : ' From where I was, I could see what the 
 
 other people on the ship were doing. Four of the 
 
 Underwood family were drawn out of the port quarter 
 
 gallery, while I was on the weather quarter ; I helped 
 
 to draw them out myself. The four were, the two boys 
 
 and Mrs. and Mr. Underwood. I don't believe they 
 
 were there more than three minutes at the outside. As 
 
 I was hel23ing to clear away one of the boats, I heard 
 
 a scream, and looked round, and saw Mrs. Underwood 
 
 grabbing for, or trying to lay hold of, one of the boys. 
 
 I saw her take hold of him, while they were both on 
 
 the side of the vessel. The mother was Avith the two 
 
 boys ; the father was close to them by the ship's rail, a 
 
 good two steps off from them. The next I saw was, 
 
 they were all together ; the husband had his wife in his 
 
 arms, and the two boys were holding on to the mother ; 
 
 they were all clasped together. I don't believe it was 
 
 a minute before a sea came and swept them all off; 
 
 they seemed to go oft' all at once ; 1 don't think they 
 
 were separated. I saw no more of them ; the sea 
 
 swept them right off; none of them ever came in sight 
 
 ao;ain that I saw ; I did not see Mr. Underwood aojain. 
 
 The daughter was not with them at that time ; she was 
 
 picked up from the forward part of the poop, abreast 
 
 of the main rigging. I saw the daughter alive after 
 
 the others went down.' He then described the attempts 
 
 made to save Miss Underwood, the last survivor of 
 
 the family, who was lashed to a spar, and afterward
 
 OF PROBABILITY. 117 
 
 swept into tlie sea and perished ; and the witness then 
 proceeded thus : ' It was while Mr. and Mrs. Under- 
 wood and the boys were clasped together, as I have 
 before described, that they were washed over. They 
 were clasped together in this manner : — the boys had 
 hold of the mother, and the father had his arms round 
 them all, and they were in that state when the sea 
 swept over the vessel. That was the last I saw of 
 them. At the time Mr. and Mrs. Underwood were 
 washed away, they did not seem to be exerting them- 
 selves; they seemed resigned to their fate.' Besides 
 the evidence of Keed, there was that of the plaintiff's 
 witnesses, ' which explained the process and effect of 
 death by drowning, technically called asphyxia, and 
 which, they said, supervened within two minutes after 
 submersion, though life continued for a short time 
 afterward.' The defendant's witnesses ' thought that two 
 persons submersed at the same time would not die at 
 precisely the same instant, and that the husband must, 
 in all human probability, have been the survivor. This 
 opinion was founded on the greater buoyancy of the 
 husband's body, which is generally less in a female 
 than in a male ; on his greater strength and power of 
 resisting the causes of death; on the fact of his being 
 a good swimmer ; and the probable effects of female 
 terror to accelerate drowning, and on her screaming, 
 which would exhaust the air from her lungs.' Sir John 
 Romilly's judgment in this cause contains the follow- 
 ing, among other observations : ' In this case, the 
 evidence of Joseph Reed is distinct and clear, as to the 
 mode, in which the death took place. The evidence is 
 given in a very striking manner, and with details, 
 which cannot fail to impress anybody who has heard it, 
 with the truth of what he states, and the belief that 
 he was stating exactly what took place. That he was
 
 118 OF PROBABILITY. 
 
 in a condition of mind to "be able to see wliat 
 happened, is evident, from tlie fact of liis being so 
 attentive to others, by his attempt to save the girl 
 from an imminent death, by lashing her to a large spar, 
 which, at all events, prolonged her life for some period 
 of time, and gave her a chance, however remote, of 
 preservation. The witness noticed exactly what took 
 place, he attended to the whole of the circumstances ; 
 and his evidence to me is distinct : that he saw the 
 wife and the two children clino-ino; to her, and the hus- 
 band with his arms around them, all swept away by a 
 wave into the water; that they then disappeared, and 
 he never saw them again ; and he believes they disap- 
 peared in an eddy produced by the action of the waves 
 and the resistance of the vessel combined. It is im- 
 possible for me to doubt or disbelieve that evidence, or 
 to adopt the suggestion of any thing different having 
 occurred. This evidence is to me quite distinct and 
 clear, and it establishes, that those four persons were 
 immersed together in the water, that they sank at 
 once, and never appeared again. Then the question, in 
 that state of circumstances, is, whether I can come to 
 the presumption, that the husband survived his wife. 
 The evidence before me on the subject is all one way : 
 it states that insensibility takes place in the space of 
 about a minute ; ai d that death takes place in two or 
 three minutes; bat that it is totally impossible to de- 
 termine exactly ; that this does not depend apparently 
 upon any peculiar circumstances of constitution, if the 
 person die from drowning. It appears, however, that 
 a person may die from a cause produced by an immer- 
 sion, which is not, properly sjDcaking, drowning. I have 
 no evidence whatever upon this subject applicable to 
 the present case ; but when I am asked to infer from 
 the medical testimony, that a woman is more liable to
 
 OF PROBABILITY. 119 
 
 sucli accidents, and that therefore she pro"bal)ly died 
 first, I may as well assume that the husband died from 
 apoplexy, as that the wife died from any sudden cause 
 other than drowning ; because it appears, from the 
 evidence of a medical man, that apoplexy is a fi'equent 
 cause of death in the case of sudden immersion in 
 water, as well as asphyxia It is impos- 
 sible for this court to say, that there is any evidence 
 before it to show which, of this group of four persons, 
 who were swept into the sea on the 19th of October, 
 was the survivor. If I were compelled to decide, as to 
 the relative periods of death of each on this evidence, 
 I should judge the probability to be, that they all be- 
 came insensible at the same moment, and that, in fact, 
 death took place as nearly as possible at the same 
 time My opinion is, that I must con- 
 sider that there is no evidence to show who is the sur- 
 vivor ; and the conclusion of law is, that I cannot 
 found any decision on the assumption that either was 
 the survivor.' " * 
 
 A knowledge of human nature is one kind of 
 knowledge, from which to judge of probability. By 
 it we think it probable a mother loves her child.f 
 
 By what we have done ourselves, or have seen or 
 known others do, we may judge of the probability 
 of the same or the like deed being accomplished by 
 some other person ; as, for instance, his ability to walk 
 a certain distance in a given time. So with regard 
 to our own or others' mental power, we may by ex- 
 
 * 19 Beaven, 459. Wing v. Angrave, S. C. 30 Law J. Rep. (N. S.) 
 Chan, 65. [Where two parties perish by the same event, as in a ship- 
 wreck, and nothing more is known as to which died first, the presumption 
 of priority will be raised from the comparative age, health, and strength 
 of the parties.— /SiZZici v. Booth^ 1 Y. & C. 121.] 
 
 t Cic. De Inventione, i. 29.
 
 120 OF PROBABILITY. 
 
 perience judge of tlie probability of tlie same or the 
 like being successfully exercised by some other person ; 
 as his power to remember the particulars, or the sub- 
 stance, of a long speech or discourse he has heard. 
 
 With regard to some particular situation or circum- 
 stances, in which a person may have been placed, and 
 what he may have then said or done, we ourselves per- 
 sonally may never have found ourselves in such a situ- 
 ation or circumstances ; and yet it may be in our 
 power to judge of the probability of that person's say- 
 ing or doing what, we are told, he did say or do. 
 Our knowledge of human nature may give us this 
 power ; and this knowledge we may gain by our in- 
 sight into ourselves : " As in water, face answereth to 
 face, so the heart of man to man." * If then, from such 
 inspection of ourselves, we think it likely, that, in the 
 supposed situation or circumstances, we ourselves 
 might have said or done this or that, we may rightly 
 consider it probable the individual in question may 
 have said or done the same thing. 
 
 From his own knowledge, whether from observa- 
 tion, experience, or other source, a man thinks a thing 
 to be probable. But probability, and thinking a thing 
 to be probable, may be very different matters ; that is 
 to say, probability according to just reasoning or cal- 
 culation, and probability according to the thought of 
 a particular person. For as the thought depends on 
 knowledge, the individual may not have the knowledge 
 necessary to judge of the probability under the par- 
 ticular circumstances. By reason of age, education, or 
 manner of life, and a variety of other things, he may 
 be incapable of forming a judgment on the probability. 
 
 * Proverbs xxvii. 19. Men very much resemble each other, not only 
 in their good qualities, but their bad. — Cic. De Leg. i 11.
 
 OF PROBABILITY. 121 
 
 On the other hand, the same matters may peculiarly 
 fit another person to see the probability in the case. 
 And so under the very same circumstances, what one 
 man thinks probable, another may think improbable. 
 
 Steele, in one of his papers in the Spectator, men- 
 tions " a particular set of people, who, in their own 
 favor, resolve every thing that is possihle into what is 
 prohahle, and then reckon ujDon that 'prohcibility^ as on 
 what must certainly happen." He then points out the 
 deceptive nature of this kind of reasoning, shows that 
 certainty is far removed from probability, and teaches 
 how dangerous it is to imagine that the passage from 
 the one to the other is easy and sure. This he does in 
 a humorous story which he tells of three young ladies, 
 who rated their ^possible fortunes, as ]}rohahle^ if not 
 certain^ upon the following scheme of their own : 
 
 " ' Our father is a youngish man, but then our 
 mother is somewhat older, and not likely to have 
 any children : his estate being worth £800 per annum, 
 at 20 years' purchase, is worth £10,000. Our uncle, 
 who is above 50, has £400 per annum, which, at the 
 aforesaid rate, is £8,000. There is a widow aunt, who 
 has £10,000 at her own disi^osal left by her husband ; 
 and an old maiden aunt, who has £G,000. Then our 
 father's mother has £900 per annum, which is worth 
 £18,000 ; and £1,000 each of us has of her own, whicli 
 cannot be taken from us. These, summed up^ together^ 
 stand thus : 
 
 Father's . . £800 . . £16,000 
 Uncle's . . 400 .. . 8,000 
 
 Aunts' . {^^'oQoj-. ^ . 16,000 
 
 Grandmother's 'oOO . . . 18,000 
 Own, each, . 1,000 . . . 3,000 
 
 Total . . £61,000
 
 122 OF PROBABILITY. 
 
 " ' This, equally divided between us three, amounts 
 to £20,000 each ; an allowance being given for enlarge- 
 ment upon common fame, we may lawfully pass for 
 £30,000 fortunes.' 
 
 " But mark the end. The mother dies, the father 
 is married again, and has a son ; on him was entailed 
 the father's, uncle's, and grandmother's estate. This cut 
 off £42,000. The maiden aunt married a tall Irishman, 
 and with her went the £6,000. The widow died, and 
 left but enough to pay her debts and bury her ; so that 
 there remained for these three girls but their own 
 £1,000." * 
 
 Cicero considers a narrative to be probable, when it 
 contains circumstances, which are usually found in a 
 story that is true.f 
 
 When a probability arises out of circumstances, 
 which bear to be looked at in different w^ays or lights, 
 it is sometimes a question on which side the probability 
 lies. On the occasion of the fray between Clodius and 
 Milo, in which the former was killed, if it became a 
 question which of the two planned the meeting, the 
 time and place of rencontre, the probability is very 
 great that Clodius did, and not Milo. This is lucidly 
 and forcibly set forth by Cicero in his defense of Milo. J 
 
 * The Spectator, No. 282. t Cic, De Invent, i. 21. 
 
 J Milo, who on that day had been in the Senate, as soon as the Senate 
 broke up wfflat home, and changed his dress ; and there he stayed a short 
 time, while his wife prepared herself to go with him into the country. He 
 then set out, at the time when Clodius, if he had intended that day to re- 
 turn to Rome, might be setting off. The two met on the road : Clodius on 
 horseback, not in a carriage, with no luggage, aud with none of his Greek 
 retinue, who usually accompanied him ; without his wife, which scarcely 
 ever happened : whereas Milo, this waylayer, who had planned this journey 
 purposely to assassinate Clodius, rode, not on horseback, but with his wife 
 in a carriage, wrapped in his usual thick traveling cloak, and having with 
 him a crowd of attendants, and among them young women aud boys. — 
 Cic, Pro Milone, 10 ; and see 20, 21.
 
 OF PROBABILITY. 123 
 
 As knowledge is the ground of thinking a thing to 
 be probable, so is it of thinking a thing to be improba- 
 ble. We think it is improbable, when we consider it to 
 be inconsistent with what we know. Our knowledge of 
 human nature teaches us, that children love their par- 
 ents. Inconsistent with this love is a child's desire to 
 injure his father in any way ; and very inconsistent with 
 it is his desire to put his father to death. If then a 
 son is suspected of having murdered his father, a strong 
 argument in favor of the son's innocence is the improb- 
 ability of the crime. On this topic Cicero much en- 
 larges in his defense of Roscius Amerinus, accused of 
 parricide.* Cicero then continues by citing the case of 
 two sons suspected of murdering their father; but 
 whose innocence was evident from the improbability 
 they would be able to sleep, as it was proved they did, 
 so soon after the deed.f 
 
 * The charge is parricide ; yet the prosecutor assigns no motive for 
 the crime. The very thing, which in the lightest, most frequent, and 
 nearly daily offenses, is sure to be chiefly and first of all inquired into, 
 namely, the motive: this the prosecutor in a case of parricide does not 
 deign to notice ; a crime of so great enormity, that although many 
 circumstances concur to raise suspicion, yet guilt is not rashly believed 
 on the faith of conjecture and doubtful testimony, and the prosecutor's 
 ingenuity of argument. You must show that the accused is an old 
 offender, that he has led a life of the utmost depravity, that his career has 
 been one of recklessness bordering on insanity. And supposing you make 
 out this, yet to induce belief of the son's guilt, you must bring positive 
 evidence of all the circumstances, — the commission of the crime, when and 
 where it was perpetrated, with what motive, and through whose assistance. 
 And unless this evidence be full and complete, a crime so black, so atrocious, 
 cannot be believed. Against it there is the common tie of humanity ; 
 community of blood revolts at it ; nature herself forbids a bare suspicion 
 of it ; "a wonderful and horrible thing is committed in the land," would 
 be nature's cry, if the hand of a son were lifted against the life of his 
 father, — Cic.^ Pro Rose. Amer. 22. 
 
 t Not many years ago, one T. Cloelius of Terracina, a man of some note, was 
 murdered ; and the story told of the crime is this : After supper Cloelius 
 with his two sons, both young men, retired to rest in the same chamber.
 
 124 OF PKOBABILITY. 
 
 It is from our knowledge of human nature we con- 
 clude it is improbable there should be crime without a 
 motive.* The nature of man is such, he does not set 
 about any crime, without a hope of gaining something 
 by it. In defending Coelius against a charge of attempt- 
 ing to poison Clodia, Cicero asks. Is it likely so great a 
 crime would be committed without any motive what- 
 ever ? f 
 
 Circumstances often betray and manifest the motive 
 of a crime ; as, threats, or plunder, the motive of a 
 deed of violence; but where there is not a betrayal 
 of this ojDen kind, the want of appearance of motive is 
 an argument of great force in favor of innocence. 
 
 In the morning the.father was found dead with his throat cut ; and no sus- 
 picion of the deed could be fastened on any one of his slaves or freedmen. 
 His two sous, who lay near him, declared they knew nothing about it ; 
 they neither saw nor heard, they said, any thing that passed. They were 
 nevertheless, prosecuted for the crime. It was thought there was a case of 
 suspicion against them. Could it be true, it was asked, that they had 
 neither seen nor heard any thing ? Would any other person have ventured 
 to enter the room for such a purpose, at a time when, in the very same room, 
 were Cloelius's two sons, both young men, who might easily hear and resist 
 the attack on their father ? There was, moreover, no other person upon 
 whom suspicion could attach. Tet, when it had been made plain to the 
 jury, that with the door of their room open, the two sons were found fast 
 asleep, they were not only acquitted, but all suspicion was removed from 
 them : for no one imagined that persons who, by a crime of such atrocity, 
 had violated all laws, divine and human, could have so soon after fallen 
 asleep. — (7/c., Pro Rose. Amer. 23. 
 
 * Cic, Pro Rose. Amer. 39. f Cic, Pro Ccelio, 23.
 
 CHAPTER IX. 
 
 OF NARRATIVE OF FACTS. 
 
 WnEN a person relates facts, consisting of things 
 of which he himself was an eye or eai'-witness, sources 
 of his relation will be, his perception of the things he 
 mentions, the impression they made on his mind, his 
 present retention of them in his memory, his power to 
 produce them from it, either instantl}^, or on time taken 
 to recollect them. 
 
 As impressions in the memory are in most, if not 
 all, cases constantly by degrees wearing out, and after 
 the lapse of much time are usually greatly eftaced, a 
 narrative of facts may not include all the things that 
 were impressed on the mind ; and the number in the 
 memory may depend very much on the length of time, 
 intervening between their occurrence and the time of 
 the relation. So that with regard to narrative, it must 
 be constantly assumed and understood, that it can only 
 extend to things at the time of the relation in the 
 memory, and consequently may leave out others, which 
 were once there, but have in the course of time escaped 
 from it. 
 
 The facts will generally consist of things which the 
 relater both saw and heard, and often will include be- 
 sides what he himself said and did. It will be a just 
 object of the narrative, to make the hearer, so far as 
 may be, mentally see and hear these things, exactly as 
 the relater saw and heard them, and himself said and 
 did them. And supposing the narrative is meant to be 
 confined to these facts, conjecture, fancy, and hearsay.
 
 126 OF NARRATIVE OF FACTS. 
 
 will be wholly excluded from it. And to aid the hearer 
 to see, as exactly as may be, what the relater saw, a 
 model, or map, is obviously in some cases of great use ; 
 as a model of a house or other building ; or a map of a 
 particular parish or district, or confined to particular 
 fields, roads or paths. 
 
 How closely to the facts does Shahspeare make Ben- 
 Tolio relate what he saw and heard in the fray between 
 Mercutio and Tybalt, after they had drawn their swords, 
 and were in actual conflict.* 
 
 On every judicial inquiry, civil or criminal, before a 
 magistrate, court, or other tribunal of justice, there is a 
 story, the subject of the inquiry, a story of facts. In 
 the case of a trial, usually each side has its own story, 
 the two tales united forming the subject of the trial. 
 It seldom happens, that the whole subject, or even the 
 whole story of either side, is told by one witness ; but 
 it commonly consists of different parts, distributed 
 among several witnesses, each of whom tells the share 
 which he is acquainted with. 
 
 A witness about to narrate facts, may be left to tell 
 his story in his own way, or it may be drawn from him 
 by questions put to him. The former method of telling 
 the story is open to these objections : The witness may 
 not think enough to call to mind all he can relate ; from 
 carelessness or oversight he may omit to mention some 
 circumstances; he may think or fancy the circumstances 
 he withholds are not material to a proper understanding 
 of his story ; indeed, he may think or fancy that his 
 story will be best understood, if it be not loaded with 
 matters which he views as redundant, but which never- 
 theless are essential to see the facts in their proper pro- 
 portions and color. Another danger is, that the witness 
 
 * Romeo and Juliet, A. iii. S. i.
 
 OF NARRATIVE OF FACTS. 127 
 
 will not confine liimself to things which he himself saw, 
 heard, or did, but will diverge into hearsay, or common 
 report, into things, that is, which he has heard some one 
 else say were seen, heard, or done. Supposing, besides, 
 the witness does not wish to speak the whole truth, it 
 is obvious his wish will be promoted, by leaving him 
 to tell his tale in his own way. 
 
 The following anecdote, relating to the value of 
 common report, is told of John Wesley : " John had a 
 curious interview there [Bath] with Beau Nash, for it 
 was in his reign. While he was preaching, this remark- 
 able personage entered the room, came close to the 
 preacher, and demanded of him by what authority he 
 was acting. Wesley made answer, ' By that of Jesus 
 Christ, conveyed to me by the present Archljishop of 
 Canterbury, when he laid his hands upon me and said, 
 Take thou authority to preach the gospel.' Nash then 
 affirmed, that he was acting contrary to the laws : ' Be- 
 sides,' said he, * your preaching frightens people out of 
 their wits.' "* Sir,' replied Wesley; * Did you ever hear 
 me preach ? ' ' No,' said the Master of the Ceremonies. 
 'How then can you judge of what you never heard ? 
 Nash made answer, ' By common report.' ' Sii*,' said 
 Wesley, * Is not your name Nash ? I dare not judge of 
 you by common report : I think it not enough to judge 
 by.' " * 
 
 In the other method of obtaining a relation of facts, 
 the one by question and answer, the object of the in- 
 terrogator is, to get from the witness all he himself 
 saw, heard, said, and did, excluding all hearsay, and 
 other irrelevant matter. And the questions being 
 framed with a view to this exclusion, if the witness 
 confines himself strictly to the questions addressed to 
 
 * Southey's Life of Wesley, yol. ii. p. 28.
 
 128 OF NARRATIVE OF FACTS. 
 
 him, Lis answers will contain no hearsay nor other irrel- 
 evant matter. But as, according to this method, the 
 witness's narrative consists solely of his answers to 
 the questions put to him, this obvious inconvenience 
 attends it, that if all the questions required to bring 
 out the witness's whole story are not put to him, he- 
 may in his evidence leave out circumstances important 
 to be known. 
 
 It is an observation by Dr. Johnson, — " Where 
 many questions are to be asked, some will be omitted ; " 
 an observation he made during his journey in the 
 Hebrides, on the occasion when he forgot to inquire 
 how the islands were supplied with the exotic luxuries 
 of wine, tea, and coffee.* 
 
 The basis of interrogation of a witness is some- 
 thing of which his examiner desires to be informed, 
 and which he knows, thinks, assumes, or hopes, the wit- 
 ness wnll be able to tell him. 
 
 There are two ways of questioning : one where the 
 words made use of in the question suggest or prompt 
 a particular answer, and which is called a leading ques- 
 tion ; the other, where the question does not so lead, 
 but is put in general terms, without at all pointing to 
 a particular reply. This may be called an o^en ques- 
 tion ; it is open to any answer. " Did not you see 
 this ? " or " Did not you hear that ? " are leading 
 questions.f In them the person questioned is in a 
 manner prompted to answer, he did see or hear this or 
 that particular thing. " It is a good point of cunning 
 for a man to shape the answer he would have in his 
 own words and propositions : for it makes the other 
 party stick the less." J 
 
 * Johnson's Journey to the Western Islands of Scotland, p. 93, ed. 
 Edinb.1798. 
 
 t 3 BI. Com. 449, 15th ed. J Bacon's Essays : of Cunning.
 
 OF NARRATIVE OF FACTS. 129 
 
 " Ye will, therefore (addressing Morris), please tell 
 Mr. Justice Inglewood, whether we did not travel 
 several miles together on the road, in consequence of 
 your own anxious request and suggestion, reiterated 
 once and again, baith on the evening that we were at 
 Northallerton, and there declined by me, but afterward 
 accepted, when I overtook ye on the road near Clobery 
 Allers, and was prevailed on by you to resign my ain 
 intentions of proceeding to Rothbury ; and, for my 
 misfortune, to accompany you on your proposed route. 
 ' It's a melancholy truth,' answered Morris, holding 
 down his head, as he gave this general assent to the 
 long and leading question, which Campbell put to 
 him." * 
 
 Assuming that the person questioned honestly de- 
 sires to speak the truth, and that his memory is not de- 
 fective, a strong probability is, that, whether the ques- 
 tion be open, or leading, he will retui*n precisely the 
 same answer to it. 
 
 Each kind of question has, however, its advantages 
 and disadvantages. If the witness be dishonest, and 
 there be connivance between him and his interrogator ; 
 or supposing the former honest, and the latter not to 
 be so ; it is plain that a leading question may tend to 
 bring out the answer which the interrogator desires. 
 And assuming that both the witness and the interrog- 
 ator are honest, both wishing the truth to be spoken ; 
 here, if the witness remembers little or nothing, or if 
 he be dull, or heedless, or be confused, or embarrassed 
 by timidity or any other cause, there is danger that, if 
 he is addressed by a leading question, he may, without 
 thought or consideration, echo in his reply the words 
 put in the question, and so fail to speak the truth. 
 
 * Rob Roy.
 
 130 OF NARRATIVE OF FACTS. 
 
 An open question imposes on an honest witness the 
 necessity of thought, a consideration of both the ques- 
 tion and reply. It forces him to resort to, and, if need 
 be, to ransack, his memory, and obliges him to utter 
 only what he remembers. On the other hand, it is 
 very possible, in many cases probable, that from sick- 
 ness, old age, or other cause, his memory may be so in- 
 firm, that he cannot be brought to a correct answer, 
 except by a leading question. All open questions, 
 every question short of a leading one, may fail to 
 quicken his memory, and bring him to express the 
 fact, of which he has knowledge. Nothing, for in- 
 stance, is more common, than to forget a person's 
 name, and, without hearing it again, to be quite unable 
 to call it to mind. We constantly hear people say, 
 " If I heard his name, I should know it directly." If 
 the name be pronounced, the hearing of it refreshes the 
 power of recollection, and the name is instantly re- 
 membered. 
 
 " Leading questions, that is, such as instruct a wit- 
 ness how to answer on material points, are not allowed 
 on the examination in chief."^^ Questions which are in- 
 tended merely as introductory, and which, whether 
 answered in the affirmative or negative, would not be 
 conclusive on any of the points in the cause, are not 
 liable to the objection of leading." . . . . " Lead- 
 ing questions are admitted in the cross-examination of 
 a witness." f 
 
 An abuse of this liberty is thus noticed by Lord 
 Campbell, — •" At this time [reign of James II.] leading 
 questions were not allowed to be put in cross-examina- 
 
 * [It is in the discretion of the court to permit leading questions on an 
 examination in chief. — Vrooman v. Griffiths, 1 Keyes^ 53.] 
 t Phillipps on Evidence, vol. i. pp. 255, 261, 6th ed. 
 
 \
 
 OF KARRATIVE OF FACTS. 131 
 
 tion, more than in examination in chief ; and I am not 
 sure that the old rule is not the best one — when I con- 
 sider the monstrous abuse sometimes practised in put- 
 ting words into the mouth of a friendly witness, neces- 
 sarily called by the side he is opposed to." * 
 
 In a chancery cause, where it was objected that the 
 interrogatories were leading, and to which objection 
 the reply was, that the interrogatories were not leading, 
 as they did not suggest to the witness the answer to be 
 given. Lord Langdale observed, — " All interrogatories 
 must, to some extent, make a suggestion to the witness. 
 It would be perfectly nugatoiy to ask a witness, if he 
 
 knew anything about something." "It 
 
 is impossible to examine a witness without referring to 
 or suggesting the subject, upon which he is to answer. 
 If the question suggests a particular answer, it is lead- 
 ing and improper." f 
 
 Whenever any person makes a relation of facts, be 
 it on a judicial inquiry or not, and whether he tells 
 his story spontaneously, and without being questioned, 
 or on request and through questions put to him, it is 
 certain the tale is often imperfectly, or falsely, told ; 
 and when this is known or suspected to be the case, 
 and it is desired to have the exact truth, to ascertain 
 what part of the story is true, what false, and what is 
 left out, these matters may be learned, by searchino- for 
 them through questions put to the relator ; an inquiry 
 that is called, cross-examination. 
 
 " He that is first in his own cause seemeth just, but 
 his neighbor cometh and search eth him." J 
 
 * Lord Campbell's Lives of the Chief Justices, vol. ii. p. 50, n. ed 
 1849. 
 
 t Lincoln v. Wright, 4 Beavan, 171, 173. 
 
 I Proverbs, xviii.
 
 132 OF NARRATIVE OF FACTS. 
 
 The command by the mouth of Samuel to Saul was, 
 " Go and smite Amalek, and utterly destroy all that 
 they have ; slay both man and woman, infant and suck- 
 ling, ox and sheej), camel and ass." Saul's imperfect 
 tale, — " I have performed the commandment of the 
 Lord " — would not bear the scrutiny of Samuel ; who 
 instantly replied, " What meaneth then this bleating 
 of the sheep in mine ears, and the lowing of the oxen 
 which I hear ? " * 
 
 " He that travels in the Highlands may easily satu- 
 rate his soul ^\*ith intelligence, if he will acquiesce in 
 the first account. The Highlander, gives to every ques- 
 tion an answer so prompt and peremptory, that scep- 
 ticism itself is dared into silence, and the mind sinks 
 before the bold reporter in unresisting credulity ; but 
 if a .second question be ventured, it breaks the en- 
 chantment, for it is immediately discovered that what 
 was told so confidently, was told at hazard, and that 
 such fearlessness of assertion was either the sport of 
 negligence, or the refuge of ignorance." f 
 
 " Fingal being talked of. Dr. Johnson averred his 
 positive disbelief of its authenticity. And on a gentle- 
 man then saying, ' Fingal is certainly genuine, for 1 
 have heard a great part of it repeated in the original,' 
 Dr. Johnson asked him, 'Sir, do you understand the 
 original ? ' And the reply being, ' No, sir.' ' Why, 
 then,' said Dr. Johnson, ' we see to what this testimony 
 comes.' " J 
 
 On a trial, the cross-examination of witnesses is often 
 of the utmost importance and service toward discover- 
 ing the truth, and the extent to which the witnesses 
 
 * 1 Samuel, xv. 
 
 t Jolinsoii's Journey to the Western Islands of Scotland, p. 83, ed. 1798. 
 
 I Life of Jolmson by Boswell, vol. v. p. 138, ed. 1835.
 
 OF NARRATIVE OF FACTS. 133 
 
 are to be believed. On a civil trial, a verdict for the 
 plaintiff may give liim an estate, or money, or other 
 object of the suit ; a verdict against t^e defendant may 
 cause him to lose what the plaintiff gains. In many 
 cases each party is honest, and desires justice alone ; 
 but where there is not this upright spirit, either or 
 each of the parties, looking at the consequence the 
 verdict will have, may endeavor to set the facts of the 
 case in a light most favorable to himself, and therefore 
 to mold, disguise, or suppress some of the circum- 
 stances. When such is the state of mind of each or 
 either of the parties to a suit, it may be imagined it 
 will sometimes infect the integrity of the witnesses. 
 From this source may arise the unwilling, the preju- 
 diced, the partisan, the false witness. In cases of this 
 description, the service which a cross-examination may 
 be of is manifest. But the benefit of cross-examination 
 is not confined to cases of this disreputable kind. For 
 on every trial, after a witness's examination by his own 
 side, or examination in chief as it is called, is closed, 
 these considerations may arise in the mind of the 
 opposite party: The witness may have sj^oken truth, 
 but not the whole truth; or he may have spoken 
 the truth, and something besides the truth ; or some of 
 the truth may not have been brought out, because 
 questions suited to elicit it were not put to him ; the 
 witness may be mistaken in a matter which he has 
 stated as a fact ; he may have misapprehended it ; he 
 may not have seen what he thinks he saw, or heard 
 what he thinks he heard ; he may have spoken to a 
 fact with greater confidence than is justified by his 
 imperfect knowledge of it ; his present story may not 
 be consistent with his relation of it on some former 
 occasion ; the witness's character may require to be
 
 134 OF KARRATIVE OF FACTS. 
 
 searched into, to judge how far his evidence is to be 
 believed. 
 
 On certain criminal trials, a cross-examination has 
 had the following objects : 
 
 1. To show that the witness did ^ot see what he 
 said he saw : as, that the witness, who said he saw the 
 prisoner at a particular place, did not see him there ; 
 or, that the witness, who said he saw the prisoner 
 coming from a particular place, was, at the time of 
 seeing him (as he said), unable, from the distance (220 
 yards) of the prisoner from him, to recognize the 
 prisoner, to distinguish his features, to know him to be 
 the prisoner ; or, that the witness, who said he saw the 
 prisoner fire a pistol at another man, was at the time 
 of seeing him (as he said) unable, from the distance 
 (220 yards) of the prisoner from him, to recognize the 
 prisoner. 
 
 2. To show that the witness did not hear what he 
 said he heard : as, that the witness, who said he heard 
 particular words spoken by the prisoner to a clamorous 
 mob, was, at the time he heard (as he said) the words, 
 under some agitation of mind, was in a degree in a 
 considerable flurry of spirits ; or, that at the time when 
 the witness (as he said) heard certain words sj^oken by 
 a man at the head of a mob, and addressed to the wit- 
 ness and others, the witness being nearest to the 
 speaker, there was a good deal of noise and confusion ; 
 and that the witness was alarmed ; and that, consider- 
 ing the noise that prevailed at the time, and the 
 witness's situation, and his alarm, the witness might 
 not be able to swear positively to the precise words 
 used. 
 
 3. To show that the witness spoke from hearsay : 
 as, that the witness, who said a mob set fire to a 
 chapel, did not see them do it; that it was on fire when
 
 OF KARRATIVE OF FACTS. 135 
 
 the witness first saw it, and who set it on fire he did 
 not know ; nor did he know that it was a chapel, only 
 some body told him so. 
 
 4. To test the truth of what the witness has said in 
 general terms, by making him particularize : as, when 
 the witness has spoken in general terms of many per- 
 sons, saying, for instance, that many persons were 
 present at a particular place, or many 2)ersons were 
 forced to do a particular act against their will, to test 
 the truth of the witness's evidence by asking him to 
 tell the names of some persons, or the name of even 
 one person present, or forced to do the act mentioned ; 
 or, when the witness has given evidence of words 
 spoken "by the prisoner to a large body of men, to test 
 the truth of his evidence by asking the witness whether 
 he can name any person who was present when the 
 prisoner spoke the words mentioned 
 
 5. To show that the witness, who had identified a 
 thing, had done so through the manner in which the 
 identification had been put, or left to him : as, where 
 the witness had identified a great-coat as the great-coat 
 worn by the prisoner on a particular occasion ; and the 
 witness, in his cross-examination, was asked whether 
 the great-coat was not produced to him as the great- 
 coat the prisoner had on ; whether it was produced to 
 the witness singly, or with any other great-coats. 
 
 6. To procure an explanation of words used by the 
 witness : as, that the witness, who said the prisoner 
 was at home on particular days, did not mean that the 
 prisoner did not go out on those days, but only that he 
 was at home some part of each of those days. 
 
 7. To show that the conduct of the prisoner was 
 consistent with his innocence, was inconsistent with 
 guilt, was open, without concealment : as, that, with 
 regard to papers which the witness found and seized
 
 136 OF XAERATIVE OF FACTS. 
 
 at the prisoner's house, during the whole time the wit- 
 ness was employed in searching for them, there was not 
 any endeavor made by the prisoner, or any of his family, 
 to conceal or secrete any of them ; or, that, with regard 
 to an acquaintance which the witness said subsisted be- 
 tween the prisoner and himself, the witness was not in 
 confidence with the prisoner ; and with regard to a 
 conversation, which the witness said the prisoner intro- 
 duced to him, the prisoner imposed no confidence on 
 him, and acquainted him that he had mentioned the 
 matter of the conversation to some other persons, and 
 intended to mention it to more ; or, that with regard to 
 a matter, which the witness said the prisoner communi- 
 cated to him, on the prisoner's accidentally meeting 
 and stopping him in the street, the prisoner communi- 
 cated it to him in the open street, and not with any 
 secrecy ; or, that the prisoner, who went on board a 
 ship at Portsmouth about a week before it sailed, and 
 who, on the part of the prosecution, it was alleged, 
 went on board to fly from the accusation against him, 
 did, when on board, pass by his own name, and at 
 Portsmouth came on shore severcil times, and went 
 publicly aT)out the streets ; or, that at the time the 
 prisoner was in custody, no man could act with more 
 openness in all his conduct than did the prisoner ; that 
 on his examination before the magistrate at L., he was 
 discharged on his own recognizances ; that after he was 
 discharged, he remained at L. for nine days, until he 
 was again taken into custody ; and the witness, clerk 
 to the magistrates at L,, knew where the prisoner was 
 the whole of that time, and frequently saw him. 
 
 8. To cause the witness to repeat something which, 
 on his examination in chief, he has said favorable to 
 the prisoner : as, that he could not identify the prisoner 
 as being one among a body of men ; or, as the man
 
 OF NARRATIVE OF FACTS. 137 
 
 A\ iio had used certain words ; or, that althoiigli the 
 ]aisoner was present wlien certain words were used, he 
 was not near enousih to hear them. 
 
 9. To show that the evidence now given "by the 
 witness contains some addition to, or contradiction of, 
 or otherwise differs from, his evidence, statement, or 
 story given, made, or told on some previous occasion. 
 
 Many are the just objects of a cross-examination, 
 accordino; to the circumstances of the case in which it is 
 used, its only design being to elicit truth. But the 
 legitimate end of a cross-examination is sometimes per- 
 verted to serve a bad purpose — to alarm, mislead, or 
 bewilder an honest witness ; * when the effect may be 
 to hide rather than to brino; out truth. 
 
 It is plain* that for the purpose of an effective cross- 
 examination, -the cross-examining party must be in pos- 
 session of some information, suspicion, or other matter, 
 on which to found it. This he will use as a clue to the 
 further evidence desired. Without this guide, the 
 cross-examiner will wander in the dark, and, except by 
 mere accident, will not arrive at any evidence of the 
 smallest importance. The information, suspicion, or 
 other matter forming: the sfround of a cross-examination, 
 may be possessed quite independently of the examina- 
 tion in chief; or it may be gained in the course of the 
 examination in chief, or cross-examination. And, con- 
 sequently, it is not necessary that a clue, or all the 
 clues, by which to cross-examine, should be in hand at 
 the commencement of the examination in chief, or cross- 
 examination ; they may be picked up in the midst of 
 either. 
 
 In a cross-examination, the party examining makes 
 
 * See Bacon's Essays, with Annotations by Archbishop Whately, p..495, 
 ed. 1856. And sec below, oh. xi. 
 10
 
 138 OF NAERATIYE OF FACTS. 
 
 use of the witness as, for this purpose, Ms own wit- 
 ness, as a witness on his own side. And he has a hope 
 and desii'e that the evidence in the cross-examination 
 will so contradict, vary, explain, or otherwise affect, the 
 evidence in chief, that the result of the whole, or at least 
 part, of the evidence on the two examinations combined, 
 will l3e favorable to his own side. 
 
 A cross-examination intended to destroy, or at least 
 weaken, the evidence given on the examination in chief, 
 very often ends in confirming or strengthening it. The 
 knowledge of this frequent result of cross-examination 
 was probably the ground of Lord Eldon's observation 
 on interrogating a prosecutor : " He was wont to say 
 jocularly, that he had been a most effective advocate 
 for prisoners ; for that he had seldom put a question to 
 a prosecutor." * Equal caution was used by O'Connell 
 in cross-examining witnesses for a prosecution : " There 
 is one, the most difficult, it is said, and certainly the 
 most anxious and responsible j^art of an advocate's 
 duties, in which O'Connell is without a rival at the 
 Irish bar — I allude to his skill in conducting defenses 
 
 in the Crown Court Though habitually so 
 
 bold and sanguine, he is here a model of forethought 
 and undeviating caution. In his most rapid cross- 
 examinations, he never puts a dangerous question. He 
 presses a witness upon collateral facts, and beats him 
 down by argument and jokes and vociferation ; but 
 wisely presuming his client to be guilty, until he has 
 the good luck to escape conviction, he never affords the 
 witness an opportunity of repeating his original narra- 
 tive, and, perhaps, by supplying an omitted item, of 
 sealing the doom of the accused." f 
 
 * Life of Lord Eldon, by Twiss, vol. i. p. 106. 
 
 t Curran's Sketches of the Irish Bar, vol. i. p. 174.
 
 OF NARRATIVE OF FACTS. 
 
 139 
 
 On the trial of O'Coigly for liigli treason, in 1798, 
 a witness, Button, in his examination in chief, proved 
 that a paper found in O'Coigly's pocket-book was in 
 his handwriting. This evidence was, in a singular 
 manner, strongly confirmed by the witness's answers to 
 questions put to him in cross-examination: 
 
 " Examination in Chief. 
 
 Q. Are you acquainted with Mr. 
 O'Coigly, the prisoner at the bar ? 
 
 A. I know Priest O'Coigly very 
 well ; I knew him at Dundalk, in the 
 north of Ireland. 
 
 Q. Are you acquainted with his 
 handwriting ? 
 
 A. I have seen him write a number 
 of times. 
 
 Q. So as to have acquired a knowl- 
 edge of his manner of writing ? 
 
 A. Yes. 
 
 Q. Look at that paper, and say 
 whether, from your knowledge of his 
 manner of writing, you believe that to 
 be his handwriting ? 
 
 A. I do believe it to be his writing. 
 
 Q. Do you include in that the sig- 
 nature, as well as the whole body of 
 the paper ? 
 
 A. I believe it to be all the same 
 handwriting, and Mr. O'Coigly's hand- 
 writins. 
 
 Cross-Exam {nation. 
 
 Q. You have sworn you saw Mr. 
 O'Coigly write. Upon what occasion 
 did j'ou ever see him write ? 
 
 A. On various occasions ; I have 
 seen him write letters and notes. I 
 can relate a singular circumstance to 
 j-ou and the Court. There was a poor 
 man of the name of Coleman in the 
 gaol of Dundalk. This man had a 
 wife, and was in great distress. The 
 man's wife used to come to my little 
 shop for tea and bread, and what they 
 wanted ; she had no money, and left 
 her husband's watch in my possession 
 for the goods she wanted. Priest 
 O Coigly, I believe, through an act of 
 charity to the poor man, took upon 
 him to have this watch raffled, to re- 
 lieve the poor man ; he took a piece of 
 paper, and put his own name, and after 
 that about a dozen more, and desired 
 me to call upon these people, and they 
 would give me a shilling apiece; he 
 gave me his shilling, and said he would 
 collect more about the town. 
 
 Q. Upon that occasion you saw him 
 write ? 
 
 A. Yes." * 
 
 On Home Tooke's trial for high treason, in 1794, 
 Mr. Woodfall's evidence of the prisoner's handwriting 
 was, in a remarkable manner, confirmed on the prisoner's 
 own cross-examination of him : 
 
 =* Trial of O'Coigly (taken by Guraey), p. 135.
 
 140 
 
 OF NAREATIYE OF FACTS. 
 
 Cross-Examination. 
 
 Q. Are you sure you have seen me 
 write? 
 
 A. Yes. 
 
 Q. How long ago ? 
 
 A. Some years ago ; I believe, full 
 17 ; the period is a memorable one. I 
 allude to the circumstance of an adver- 
 tisement for a subscription for the 
 widows, orphans, and aged parents of 
 the Americans who lost their lives at 
 the battle of Lexington. 
 
 Q. That was in 1775, 19 years ago ? 
 
 A. You are perfectly right ; it was 
 19 years ago. . . . The reason why I 
 instanced this case wag, because it was 
 a memorable one. You delivered to 
 me, in my brother's counting-house, a 
 copy of the advertisement, upon which 
 I think you wrote the words, ' For 
 the London Packet and Morning 
 Chronicle.' ... I don't know that I 
 have ever seen you write but once. 
 
 Q. The last time you saw me write 
 was 19 years ago ? 
 
 A. Yes." * 
 
 The trial of the Earl of Thanet and others, in 1799, 
 for a riot in court, caused by the attempted escaj)e of 
 Mr. O'Connor (a prisoner just tried for high treason, 
 and acquitted, but not discharged)", furnishes another 
 instance in which a cross-examination confirmed the 
 evidence in chief The name of the witness was 
 Parker : 
 
 " Examination in Chief. 
 
 Q. Is this the handwriting of Mr. 
 Tooke? (Showing a book to the wit- 
 ness.) 
 
 A. I believe this part (pointing it 
 out) is ; but I cannot swear it. 
 
 Q. You are not asked to do that. 
 
 A. I never saw this entry — I mean 
 merely to say, for my own sake, and 
 that of the jury, that I only swear, 
 that, as far as resemblance of hands 
 strikes me, this is Mr. Tooke's writing. 
 I have seen him wi-ite, but not so often 
 as his writing has passed through my 
 hands. 
 
 Q. But, however, from writing that 
 you have seen, you ai"e able to form a 
 judgment ? 
 
 A. I cannot say I am able to form 
 a decisive judgment; but I believe, 
 from the resemblance of hands, it is 
 his handwriting. 
 
 " Examination in Chief. 
 
 Q. Did you see Lord Thanet ? 
 
 A. I did. 
 
 Q. What was he doing ? 
 
 A. Lord Thanet evidently appeared 
 to me to be obstructing the officers in 
 their attempt to stop Mr. O'Connor. 
 
 Cross-Examinaiio n . 
 
 Q. You say Lord Thanet appeared 
 to you to be obstructing the officers ; 
 did you see him do any thing ? 
 
 A. I saw him resisting with his 
 hands. 
 
 Q. What did he do with his hands ? 
 
 A. The Bow street officers pushed 
 forward ; and against one of them it 
 was that he was making resistance. 
 
 * Trial of John Home Tooke (taken by Gumey), vol. i. p. 81.
 
 OF KAREATIVE OF FACTS. 141 
 
 Q. Pray, which of them ? 
 
 A. I cannot tell — I do not know 
 which — I did not know either of them. 
 
 Q. Can you tell whether it was 
 against either of those two men, or 
 against the Messenger, that he was 
 making that resistance ? 
 
 A. I cannot. 
 
 Q. But you saw him put his hand 
 against one man that was coming 
 • forward ? 
 
 A. Yes, certainly." 
 
 Mr. Erskine, tlie leading counsel for the defense, in 
 his address to the jury, took this notice only of Parker's 
 evidence : " The evidence of Mr. Parker contains 
 nothing which I need detain you with." This slight 
 mention by Mr. Erskine of Parker's evidence occa- 
 sioned Lord Kenyon, in his summing up to the jury, to 
 make these remarks : " Counsel are frequently induced, 
 and they are justified, in taking the most favorable 
 view of their client's case ; and it is not unfair to pass 
 over any piece of evidence they find difficult to deal 
 with. . . . The learned counsel for the defendants, 
 in his remarks on the evidence, totally forgot the * 
 evidence of Mr. Parker. If his evidence is to be 
 believed, and I know no reason why it is not, he 
 certainly gave important evidence in support of this 
 charge — that the defendants evidently appeared to be 
 attempting to stop the officers, and assisting the escape 
 of Mr. O'Connor. The learned counsel for the defend- 
 ants did not choose to deal with this evidence, thouirh 
 he conducted the cause with all possible discretion, 
 ability, and eloquence." * 
 
 A cross-examination of a witness often gives rise to 
 a re-examination of him by the side which examined 
 him in chief. One object and eff'ect of the re-examina- 
 
 * Erskinc's Speeches, vol. iii. pp. 394, 395, 458 ; vol. iv. p. 63, 3(1 ed.
 
 142 OF NAEEATIVE OF FACTS. 
 
 tion may be to repair the damage whicli tlie cross- 
 examination lias done the evidence given in chief. 
 This reparation will take place, partially or wholly, if 
 the effect of the re-examination is to damage in turn 
 the evidence given in the cross-examination, by par- 
 tially or wholly destroying the force of it, whether 
 through additional facts elicited, or by altering or 
 effacing the evidence given in the cross-examination. 
 An effect of a re-examination may be to confirm the 
 evidence given in the examination in chief Or, on the 
 other hand, an effect of it may be to confirm the evi- 
 dence given in the cross-examination. 
 
 AYhen a cross-examination has brought out some 
 fact, not contained in the evidence in chief, a re-exam- 
 ination on that fact is, in reality, a cross-examination ; 
 and a further examination, following this cross-examina- 
 tion, will be a re-examination, and this may confirm the ■ 
 original, or first cross-examination. 
 
 The trial, in 1794, of Hardy, for high treason, con- 
 tains an instance of this, in the folio wing^ cross and 
 further examinations of the witness, Green : 
 
 " Cross-examined by Mr. Erskine. Re-examined by Mr. Attorney-General 
 
 Q. Did you tell Groves that you had {Sir John Scott). 
 
 sold two or three hundred knives, but Q. To be sure, it is not a polite 
 
 desired him to speak low, because the thing to call one's wife a damn'd aris- 
 
 parlor door was open, and your wife tocrat ; what did you say about her ? 
 was a damn'd aristocrat — did you say A. I do not recollect that I said a 
 
 so? word of the kind, or threw out any 
 
 A. I will make oath that I did not such hint, 
 make use of such an expression as Q. Did you say any thing about your 
 
 that. wife ? 
 
 Q. Did you say any thing to him, as A. I do not recollect, to the best of 
 
 if there was any thing imjDroper in my knowledge , that I mentioned any 
 
 selling the knives ? thing about my wife. 
 
 A. No. Q. Did you mention any thing about 
 
 Q. I think it right to inform you, aristocrat ? 
 that Groves has thought fit to swear, A. No ; I do not know that I said 
 
 you told him to speak very low, for any thing about aristocrat, or my wife, 
 
 that your parlor door was open, and
 
 OF NARRATIVE OF FACTS. 143 
 
 j'our wife was a damn'd aristocrat, Mr. Erskine. Did you wish to con- 
 
 and that you did not want her to know ceal these knives from your wife ? 
 that you were selling these knives? A, No."* 
 
 A. I swear I said no such thing ; 
 these knives all lay open in my shop ; 
 so far from hiding them from my wife. 
 they lay openly in the show-glass, and 
 in the window, for sale. 
 
 In relating a story, adherence to tlie order of time, 
 in wLicli the circumstances took place, is usual and 
 certainly desirable, since a subsequent introduction of 
 an incident, that, in the order of time, should have 
 been noticed before, disarranges the plan of the story, 
 already in the minds of the hearers. So, in putting 
 questions to witnesses, a strict observance of the course 
 of time is of use, as it relieves the jury, or other per- 
 sons called upon to consider the evidence, from the 
 trouble they might otherwise have, of arranging anew 
 the facts already in their minds. 
 
 Of equal use it may be, to call witnesses succes- 
 sively for examination, according to the order of time, 
 of which they are to sjieak. But this order is not 
 always attended to. The catastrophe of events is 
 sometimes exhibited before the plans, which were laid 
 to effect it. The first scene on Kush's trial disclosed 
 the interior of Stanfield Hall, the murderer's entrance, 
 . his discharge of fire arms, and the floor strewn with 
 the dead and wounded. This catastrophe having been 
 detailed by three Avitnesses, circumstances that hap- 
 pened before were related by witnesses that followed.f 
 So in the case of Tawell, the death of the murdered 
 woman was proved, loefore proof of the purchase of 
 the poison, which caused her death. J 
 
 * Hardy's Trial (taken by Gumcy), vol. ill. pp. 118, 119, 120. 
 t See " The [London] Times," of March 30th and 31st, and April 2d, 
 1849. 
 
 X See "The Standard," of March 12th and 13th, 1845.
 
 \ 
 
 144 OF NAEKATIVE OF FACTS. 
 
 Sucli a departure from the regular course of time 
 may sometimes be produced by a desire to study and 
 promote the convenience of witnesses in their attend- 
 ance. But as this inversion of time is not usual, on 
 ordinary occasions, in telling a story, the jury or other 
 persons before whom the facts are detailed, probably 
 expect to hear from the witnesses the tale related in 
 the common way ; a way which necessarily saves them 
 the trouble, after hearing the whole evidence, of sort- 
 ing the details, and fixing them, as to time, in their 
 proper places. 
 
 It is true, that on a trial the examination of wit- 
 nesses is commonly preceded by a statement by counsel 
 of the facts he proposes to prove by the witnesses, and 
 that, in this statement, these facts are usually mentioned 
 according to the order of time in - which they hap- 
 pened ; yet this course evidently tends to lead the jury, 
 to expect to hear the facts related by the witnesses in 
 the same order of time they have heard them in the 
 statement ; and when this method is not pursued, the 
 departure from it is likely to confuse the facts in their 
 minds, and occasion them embarrassment. It must, 
 besides, not be forgotten, that the story upon which 
 the jury are to give their verdict, is not that contained 
 in the statement of counsel (which may or may not be. 
 proved), but that which is detailed by the witnesses.
 
 CHAPTER X. 
 
 OF THE CREDIT OF A WITNESS. 
 
 Sectiok I. Generally, of the Credit of a Witness. 
 
 II. Of a Child's Evidence. 
 
 III. Of Motives of a Witness. 
 
 rV. Of affecting Credit, by certain Questions in Cross-Ex- 
 
 amination. 
 
 V. Of the former Conduct of a Witness. 
 
 VI. Of an Accomplice. 
 
 VU. Of a Spy. 
 
 Viil. Of the Bankruptcy of a Witness. 
 
 IX. Of a Witness's Weakness of Mind. 
 
 X. Of a Witness's Demeanor under Examination. 
 
 XI. Of different Evidence of Two Witnesses, 
 
 XII. Of One Witness's Opinion of Another. 
 
 SECTION I. 
 
 GENERALLY, OF THE CREDIT OF A WITNESS. 
 
 Tliat a witness may be believed, lie must say what 
 is credible ; and if lie does tliis, and we accept tlie 
 knowledge, which his evidence oilers to us, the princi- 
 ple of our acceptance of it is, our faith in him. " The 
 ground of credit," says Hooker, " is the credil)iltity of 
 things credited ; and things are made credible, either 
 by the known condition and quality of the utterer, or 
 by the manifest likeliliood of truth, which they have 
 in themselves."* And Bishop Sherlock speaks thus 
 of faith, as a principle of knowledge : " In common life 
 we know many things upon the evidence of faith ; such 
 are the things, which we receive ujion tlie authority of 
 historical evidence, or upon the report and testimony 
 of credible witnesses ; and such influence has this 
 
 * Hooker's Eccl. Pol. book ii. s. 4.
 
 146 OF THE CEEDIT OF A WITNESS. 
 
 principle of knowledge in the world, that there is 
 hardly any thing of consequence, that is not deter- 
 mined by it. There is not a trial, that affects either 
 our lives or our fortunes, the issue of which does not 
 depend upon this princij^le of knowledge ; the judge 
 and the jury not being supposed to have the evidence 
 of their own senses of the facts, which come under 
 their determination." * 
 
 On a trial, a witness takes an oatb, to speak " the 
 truth, the whole truth, and nothing but the truth." 
 Of tiaith, Archbishop Whately says, — "Truth, in the 
 strict logical sense, applies to propositions, and to no- 
 thing else ; and consists in the conformity of the declar- 
 ation made to the actual state of the case. In its 
 etymological sense, truth signifies that which the 
 speaker trows, or believes to be the fact. In this 
 sense it is opposed to a lie ; and may be called inoraly 
 as the other may logical^ truth. A witness, therefore, 
 may comply with his oath to S2:)eak the trutb, though 
 it so happen that he is mistaken in some particular of 
 his evidence, provided he is fully convinced, that the 
 thing is as he states it. Truth is often used in the 
 sense of Teality. People speak of the truth or falsity 
 of facts ; properly speaking, they are either Q^eal or 
 fictitious : it is the statement that is true or false." f 
 Of moral truth, Locke says, it is speaking of things 
 according to the persuasion of our own minds, though 
 the proposition we speak agree not to the reality of 
 things." X 
 
 We here learn from Locke and Archbishop Whately, 
 what is moral truth : by another Archbishop we are 
 
 * Sherlock's Discourses, vol. i. p. 385, 5th ed. 
 
 t Whately's Elements of Logic, Appendix, v. Truth, ed. 1850. 
 
 X Locke on Human Understanding, book iv. ch. v. s. 11.
 
 OF THE CREDIT OF A WITNESS. 147 
 
 told wliat may be a disregard of this truth, a matter 
 that some witnesses would do well to reflect on ; the 
 disregard consisting not in direct, barefaced falsehood, 
 but in certain inattentions to truth. Archbishop 
 Seeker in a sermon on the words, "Lying lips are 
 abomination to the Lord," thus particularizes these inat- 
 tentions: "In order to apprehend rightly the full ex- 
 tent of this sin [a lie], it must be carefully observed, 
 that not only if we affirm any thing, which we think 
 to be false, but if we affirm it without cause to think 
 it true, we are still deceivers; or though we have 
 cause to think it true, yet if we affirm it more posi- 
 tively, than we have cause; declaring ourselves to 
 know certainly what we only believe, or to believe 
 firmly what we only suspect and guess, the case is but 
 little mended ; that not only gross falsities, but more 
 refined ones, artful quibbles and mental evasion, dark 
 intimations and hints, not asserting, but insinuating to 
 others, what at least we doubt within ourselves, all 
 come under the same condemnation ; nay, that some- 
 times an aftected silence, and at others truth itself 
 told imperfectly and insidiously, may deeply partake 
 of the guilt of a lie." * 
 
 On a trial, or other judicial inquiry, the facts given 
 in evidence are premises, from which a conclusion is to 
 be drawn. That the conclusion may be just, the pre- 
 mises must be true. When, therefore, it is the duty of 
 a jury, or other persons to draw from the facts the just 
 conclusion, the first step in the exercise of this duty is, 
 to acquire a belief of the truth of the facts. 
 
 Whed any one has made a statement of facts, espe- 
 cially if he has spoken under the obligation of an oath, 
 the proper inference is, that he meant to speak the 
 
 * Seeker's Sermons, vol. v. p. 179, ed. 1771.
 
 148 OF THE CEEDIT OF A WITNESS. 
 
 trutli, unless there is some cause to raise a doubt about 
 it.* 
 
 If, from tlie coutradictory statements of a witness, 
 from his manner in giving his evidence, or from any 
 other cause, there is a suspicion he has spoken falsely, 
 and at the same time no motive appears for his doing 
 so, these general reflections relating to his credit, the 
 belief to be given to him, may pass through the minds 
 of the jury, or other persons, whose duty it is to judge 
 of the evidence. 
 
 They may, in favor of his speaking the truth, reflect, 
 1. That a very great part of every person's thoughts is 
 occupied with realities, with things which he really 
 perceives by his sight, hearing, or other sense, in other 
 words, with truth ; and whether as a consequence there- 
 from or not, a great part of every person's discourse is 
 of realities, of what is true ; and hence the mind may 
 acquire an aptness or bent to speak the truth. 2. That 
 it is more difficult to invent falsehoods, than to recount 
 realities, more especially if it be necessary to make the 
 falsehoods appear to be consistent with realities. 3. 
 That many persons when sworn to speak the truth, 
 piously regard the oath. 4. That most persons fear 
 shame and punishment ; and many are by that fear de- 
 terred from committing perjury. 5. That perjury is 
 seldom committed in mere w^antonness, without some 
 sufficient motive for it. 
 
 It is not to be doubted, but that many a man, like 
 a Christian martyr, testifying with his blood, would 
 prefer torture or death to perjury, and herein literally 
 obey the noble exhortation of the Roman : • 
 
 " Be brave, be just; and, -n-lien your country's laws 
 Call you to witness in a dubious cause, 
 
 * Ovid. Trist. Hb. iii. El. x. 35.
 
 OF THE CREDIT OF A WITNESS. 149 
 
 Though Phalaris plant his bull before your eye, 
 And, frowning dictate to your lips the lie. 
 Think it a crime no tears can e'er efface, 
 To purchase safety with compliance base, 
 At honor's cost a feverish span extend, 
 And sacrifice for life, life's only end." * 
 
 There is, nevertheless, often a j)i'C)priety, or a duty, 
 in doubting whether a witness speaks the truth. To 
 doubt of truth is not to convict of falsehood ; it may 
 have a directly contrary effect ; its result may be, to 
 confirm the witness's testimony. And where the doubt 
 exists, it need not arise from a suspicion, that the wit- 
 ness has willfully spoken an untruth. He may very in- 
 nocently have said what he believed to be true, although 
 in reality it is not so ; he was himself, perhaps, deceived 
 in his perception of a particular thing, he did not see 
 or hear what he thought, and what he says, he saw or 
 heard ; or, supposing his original perception was cor- 
 rect, his remembrance of what he saw or heard may be 
 imperfect. 
 
 " It is one of the commonest mistakes to suppose, 
 and assert, that some fact has been seen^ which was not 
 seen at all, and often could not have been seen ; the fact 
 being simply inferred. A witness may swear that he 
 saw defendant knock the plaintiff down ; it is a fact 
 which admits of being seen, and may be testified to 
 completely. But should the fact, sworn to, be only a 
 little more complicated, and some of its constituent ele- 
 ments lie beyond the field of vision, the testimony be- 
 comes proportionately fallible. For example, we can- 
 not accept the evidence that witness saw defendant 
 going to knock the plaintiff' down ; that is pure infer- 
 ence ; it may be the natural interpretation every man 
 would put u]Don what was seen, but it may nevertheless 
 
 * Juvenal, Sat, viii. 80. — Gifford
 
 150 OF THE CREDIT OF A WITNESS. 
 
 be wliolly erroneous, no sucli intention having existed 
 in tlie defendant's mind." * 
 
 " Seeing is, in all cases, believing ; but in all cases 
 we must assure ourselves of what we have seen, care- 
 fully discriminating it from what we have not seen, but 
 only imagined, and carefully ascertaining whether the 
 facts seen by us are all the facts then present. It is by 
 no means easy to see accurately any series of events ; 
 nor, when under any strong emotion, is it easy to pre- 
 vent the imagination from usurping the place of 
 vision." f 
 
 A witness, not unfrequently himself impairs his 
 credit, by unawares droj^ping something, which is irre- 
 concilable with what he has before said : — 
 
 " Falstaff. But, as the devil would have it, three 
 mis-begotten knaves, in Kendal green, came at my back, 
 and let drive at me ; — ^for it was so dark, Hal, that thou 
 could'st not see thy hand. 
 
 Prince Henry. These lies are like the father that 
 begets them ; gross as a mountain, open, palpable. 
 
 Fahtaff. What, art thou mad ? art thou mad ? Is 
 not the truth, the truth ? 
 
 Prince Henry. Why, how could'st thou know these 
 men in Kendal green, when it was so dark thou could'st 
 not see thy hand ? Come, tell us your reason ; what 
 sayest thou to this ? " J 
 
 * Blackwood's Edin. Mag., Oct., 1860, p. 382. 
 t Blackwood's Edin. Mag., Oct. 1860, p. 395. 
 \ Henry IV., Part i., A. ii., S. 4.
 
 OF THE CEEDIT OF A WITNESS. 151 
 
 SECTION II. 
 
 OF A child's evidence.* 
 
 When a child is a witness, it will be" natural to re- 
 ceive its evidence with j^roper caution. A child may 
 be very quick to perceive aright some things which it 
 sees or hears ; but, from want of knowledge or experi- 
 ence, it may perceive imperfectly other things it sees or 
 hears. In seeing, it may mistake one thing for another ; 
 and in hearing, may misunderstand words, and for those 
 which it heard may substitute others of a very different 
 meaning:. And there is dan2;er lest a child should bor- 
 jrow somewhat from its imagination, or from what it 
 has heard other people say, and so amplify facts beyond 
 their just measure. But a child is naturally artless, 
 and means to speak the truth. 
 
 It is not, however, to be forgotten, that a child is 
 open to be beguiled, biased, influenced, or intimidated 
 by the false representations, or the promises or threats, 
 of designing people. But hesitation, confusion or em- 
 barrassment in telling its story may not be the effect of 
 its doubt about what it saw or heard, or its wavering 
 between inclination to speak truth or falsehood ; but 
 may merely and naturally be the effect of timidity or 
 
 * [ " Children and servants arc remarkably Herodotean in their style of 
 narration. They tell every thing dramatically. Their smjs he's and says she's 
 are proverbial. Every person who has had to settle their disjiutes, knows 
 that even when they have no intention to deceive, their reports of conver- 
 sation always require to be carefully sifted. If an educated man were giv- 
 ing an account of the late change of administration, he would say, " Lord 
 Goderich resigned, and the king in consequence sent for the Duke of Wel- 
 lington." A porter tells the story as if he had been hid behind the cur- 
 tains of the royal bed at Windsor. " So Lord Goderich says, I cannot man- 
 age this business, I must go out. So the king says, says he, well, then, I 
 must send for the Duke of Wellington, that's oXV^Macaulay^ Essay on 
 History.']
 
 I 
 
 152 OF THE CREDIT OF A WITNESS. 
 
 baslifulness, or of its not fully understanding the words, 
 or the drift, of a question put to it. 
 
 Whenever any one gives evidence upon oath, the 
 knowledge by him of the importance it may be in its 
 consequences to the person, for or against whom it is 
 given, is, in addition to the sanctity of the oath, some 
 security against his bearing false testimony. Of this 
 importance, a child may, in many cases, be^a very inade- 
 quate judge. 
 
 One further remark must be made on a child's evi- 
 dence. However humiliating to human nature, how- 
 ever appalling, the fact may be, true it is, and it must 
 not be lost sight of, that a child, even of tender years, 
 is capable, not only of committing perjury, but the* 
 crime, than which there is none greater, — murder ; as in 
 the instance related by Sir Michael Foster, of a boy of 
 ten years of age convicted at Bury Assizes in 1748, of, 
 the murder of a girl about five years old,* 
 
 SECTION in. 
 
 OF MOTIVES OF A WITNESS. 
 
 Motives are a fruitful source of suspicion against a 
 witness ; some stronger than others, and attended by 
 corresponding effects. Some may be powerful enough 
 to lead to perjury, although not in its full extent, yet 
 so far as to dilute or color the evidence, to dress it up 
 to suit a particular purj)ose. 
 
 A motive to go so far as direct, unmitigated, perjury, 
 may be, that the witness's testimony, if believed, will 
 redound greatly to his own j^ersonal advantage ; as in 
 the case where, being a party to a suit, he will acquire 
 wholly or mainly, through his own evidence, an estate, 
 money, or other advantage. 
 
 * Foster, 70.
 
 OF THE CREDIT OF A WITNESS. 153 
 
 Other motives in a witness to perjure "liimself may 
 be — a present bribe, or a present promise or expecta- 
 tion of one ; the passions envy, spite, revenge ; the de- 
 sire to shift punishment from the witness himself on 
 to another. 
 
 There are besides motives of a less degenerate kind 
 than others, but which ought, nevertheless, in particu- 
 lar cases, to arouse some suspicion against a witness. 
 These may be called influences ; influences arising from 
 the affectionate or friendly relation, in which the wit- 
 ness stands to the person, for or against whom he is a 
 witness. The relation may be, of husband and wife, 
 parent and child, brother and brother, master and serv- 
 ant, bosom-friend and bosom-friend ; " there is a friend 
 that sticketh closer than a brother." These influences 
 may prevail to conceal truth, or overstep its boundary. 
 
 SECTION IV. 
 
 « 
 
 OF AFFECTING CREDIT, BY CERTAIN QUESTIONS IN CROSS-EXAMINATION. 
 
 To destroy or weaken the credit of a witness is very 
 commonly attempted through his cross-examination, 
 when the witness's own answers may injure his credit. 
 To impair the credit of a witness, the following ques- 
 tions have been put to him in cross-examination : — 
 
 Whether he has ever been charged with theft : 
 
 Whether he has ever been in gaol ; how often ; how 
 long ago ; Avhat it was about ; whether about stealing : 
 whether he was ever in custody on any other charge : 
 
 Whether there was not a complaint made agamst 
 the witness for fiilnucatiuir a will : 
 
 Whether the witness (a soldier) had ever been pun- 
 ished since he had been in the regiment, and what sort 
 of punishment he received : 
 11
 
 154 OF THE CREDIT OF A WITli^ISS. 
 
 Upon wliat occasion tlie witness (a servant) was 
 discharged by liis master : 
 
 How often the witness had been a witness in a court 
 of justice ; upon what occasions : 
 
 Whether in any former case the witness applied to 
 be rewarded for his evidence ; as for a place under gov- 
 ernment : 
 
 Whether the witness had not talked about the ex- 
 pectation he had of a reward after the trial should be 
 over : 
 
 Whether the witness ever received any letter, offer- 
 ing her any advantage, in case she would appear as a 
 witness against the prisoner : 
 
 Whether the witness, an accomplice with the pris- 
 oner, and giving evidence for the Crown, has obtained 
 any pardon, or has had any offer made to him of a par- 
 don, or is in exj^ectation of a pardon, on condition of 
 giving evidence against the prisoner : 
 
 Whether the witness, an accomplice with the pris- 
 oner, and giving evidence for the prosecution, under- 
 stood on his previous examination before a magistrate, 
 he was to be admitted a witness for the Crown, and to 
 save his own life : 
 
 Whether the witness had ever received or been of- 
 fered any thing to withhold her evidence : 
 
 Whether the witness had ever uttered any declara- 
 tions of enmity against the prisoner ; whether the wit- 
 ness had said he would be even with him : 
 
 Whether the witness had not declared, he would 
 hang the prisoner. 
 
 The particular reasons, on which some questions of 
 this kind are founded, may be here mentioned : — 
 
 A witness having made a dejoosition before a magis- 
 trate, and it being on the trial shown to him, he is asked, 
 whether it is his, and on his answering yes, the deposi-
 
 OF TBGE CREDIT OF A WITNESS. 155 
 
 tion is read ; and it is read, Chief Justice Tindal told 
 the jury, " in order to show some contradiction between 
 his evidence before the jury, and the evidence that he 
 gave before the magistrate — a very proper mode of test- 
 ing the credibility of a witness, or the correctness of his 
 memory, either the one or the other, according to cir- 
 cumstances." * 
 
 So in another instance, on the same trial, where the 
 deposition of the witness was read, the same learned 
 judge told the jury, " The object of j^utting in this de- 
 position is a very jDroper one — it is to subject the cred- 
 ibility of the witness to your examination." In this in- 
 stance the witness's evidence on the trial contained more 
 than his deposition did ; it contained a conversation, 
 which the deposition omitted; and on this omission, 
 which the witness now accounted for, the judge made 
 these remarks to the jury, — "He does not give any ac- 
 count in his deposition of the conversation, which in his 
 examination here he alleges to have passed. lie had a 
 reason, as he alleges, for it — whether it is a good reason 
 or a bad one, it is for you to say — it is, that he was not 
 examined so particularly upon this occasion as he was 
 in court ; that he was told by Mr. E., who was the gen- 
 tleman examining him, to state what he knew about F. 
 [the prisoner], and that is the reason he gives ; and as 
 this was a statement, that was not made by R, and he 
 could not say that F. heard it, he in his own mind 
 thought, that it was not included in the general direc- 
 tion, that he was to state what he knew about F. That 
 is the reason he gives. It is an important piece of evi- 
 dence, and therefore one cannot but wonder, that so im- 
 portant a piece of information, as that conversation, 
 should have been omitted at the first period of his 
 
 * Frost's Trial (taken by Guruey), pp. 230, 703.
 
 156 OF THE CREDIT OF A WITNESS. 
 
 examination. Whether lie is speaking truly or falsely in 
 giving it now is under your judgment. He assigns the 
 reason for it, namely, that he was not asked ; but that if 
 he had been asked, he should have stated it. He says, 
 * I was not asked, I was not examined so carefully, as 
 
 1 was here.' Whether that is a satisfactory reason 
 for the omission or not, judge you for yourselves." * 
 
 Again, a witness for the crown was, on. his cross- 
 examination, asked this question : " You have been 
 somewhat serviceable in the course of this 23rosecution ?" 
 Keferring to this question, Chief Justice Tindal told 
 the jury : " That is an inquiry^ often asked, and prop- 
 erly asked, of a witness, in order to see whether he has 
 mixed himself up as a busybody, or partisan, going 
 about and getting witnesses for any cause in which he 
 is called ; because that would weaken, in some degree, 
 the confidence you might otherwise have in him," f 
 
 A witness, " a quarryman," to a question on his 
 cross-examination, said he had been in gaol six or seven 
 years ago, for three months, for stealing a bit of coal. 
 And the Chief Justice Tindal told the jury : " Here is 
 a question which is very often asked of witnesses upon 
 cross-examination, when there is any intimation given 
 that they have disgraced themselves, on former occa- 
 sions, by acts of dishonesty and theft; and it is for 
 you, who are the judges of the credit due to the wit- 
 nesses, to say how far the circumstance of his having 
 stolen this bit of coal, and being in prison for it, 
 weakens the proper degree of reliance which you 
 would otherwise place upon him. You are, from your 
 experience and knowledge of the world, and of the 
 
 * Frost's Trial (taken by Gumey), pp.. 305, 308. 725. See Way v. East, 
 
 2 DrewiT, 69. 
 
 t Frost's Trial, jjp. 537, 724.
 
 OF THE CREDIT OF A WITNESS. 157 
 
 occasions upon which sometimes these small thefts are 
 committed by persons in the witness's condition of life, 
 to say how far it is, or not, incompatible with their 
 afterward becoming trustworthy, when they are called 
 u23on their oath to give an account of any j^articular 
 transaction. It is, undoubtedly, a discredit to any 
 man, because it is a great breach of law and morality. 
 It is not, however, that kind of breach which does by 
 law prevent his giving evidence in the witness box. 
 It is not au ofteuse, which in its own nature points to, 
 or is grounded upon, the commission of falsehood ; it is 
 not as if he had been found guilty of the crime of 
 perjury, in which case he could not afterward have 
 been examined. It is an act of very great dishonesty 
 and knavery ; but how far it ought to impeach the 
 value of his testimony, when he is called upon 
 subsequently to give an account of a different and 
 important transaction, you Avill determine for your- 
 selves." * 
 
 On the trial of Frost for high treason, in 1840, 
 Harford, a collier, a w^itness for the crown, said, in his 
 examination in chief, that, on the evening of a Sunday, 
 a mob came to his house, and, by their compulsion, he 
 joined and went along with them, and brought with 
 him a sword he had in his house, and that early the 
 next morning he made his escape from them. On his 
 cross-examination, he said he was ap])reliended in his 
 house by the magistrates, and kept in custody at the 
 Union Workhouse at Newport thirteen days, on the 
 expiration of which he was taken before the magis- 
 trates and examined ; there was no charo-e made as^ainst 
 him ; and he said what he had to say against Frost. 
 On his cross-examination he also stated, that, while in 
 
 * Frost's Trial (taken by Gurney), pp. 287,288, 715, 716.
 
 158 OF THE CREDIT OF A WITNESS. 
 
 custody, lie told the master of the workhouse what he 
 could say against Frost ; that when he made this com- 
 munication, he knew he was in custody upon a charge 
 of taking a part in the riot ; that he had been twelve 
 days in custody when he made that communication ; 
 that he did not go and tell the magistrates about Fi^ost 
 in order to get his own liberty ; that he expected to 
 be freed from the charge himself, when he told the 
 magistrates about Frost ; that when he had given his 
 evidence before the magistrates, he was at once set at 
 liberty, and went home ; and that he never feared he 
 should be hanged for being connected in any way with 
 the mob, because he had done nothing to be hanged, or 
 to go to prison for. In the cross-examination of this 
 witness there appears to have been an endeavor to 
 prove him to be an accomplice with Frost, but the 
 attempt certainly failed. In summing up to the jury, 
 the Chief Justice Tindal made these comments on the 
 cross-examination : " The ground upon which this cross- 
 examination is submitted to you is to diminish the 
 weight which, but for it, must have been attached to 
 the evidence given by this man : namely, that he was 
 in prison upon a charge of being concerned in the very 
 transaction which we are now inquiring into ; and 
 therefore that he must be looked uj^on as an accom- 
 plice in the transaction, and liable to the same objection 
 to which a person, who has been partner in guilt with 
 the man who is under trial, is at all times subject. The 
 answer that he gives to that is, that all the share that 
 he had in it was, that he was there with a sword in his 
 hand, but that it was against his will. And he further 
 undertakes to tell you that he was not afraid that any 
 thing would happen to him, because he thought, when 
 he had exj)lained the circumstances, he should go free, 
 and not be dealt with as a participator in the acts of
 
 OF THE CREDIT OF A WITNESS. 159 
 
 criminality. It is often the case, -svliere people think 
 they may serve themselves, by giving evidence on the 
 part of the Crown against another individual with 
 whom they have been partaking in the common guilt 
 of the transaction under investigation, that for the 
 purpose of saving themselves, rather than of stating 
 the truth, they make out a stronger case against the 
 prisoner, and more favorable to themselves, than the 
 real truth will warrant. Such evidence is at all times 
 admissible before a jury, and it is their province, 
 according to the degree of confidence which they feel 
 they can repose in such a witness, to estimate his 
 evidence ; and they are principally governed in that by 
 seeing how far the testimony of such person is cor- 
 roborated by that of any other witnesses, who are 
 called to prove the same transaction, and who are free 
 from any such objection." The Chief Justice, having 
 made these remarks on this part of the witness's cross- 
 examination, continued : " But his testimony is also 
 sought to be impugned upon another and a different 
 ground : namely, that he does not come forward 
 immediately at the time, when he is first put into 
 prison, with this account ; but that he remains in 
 prison for the space of twelve days before he gives any 
 account of the transaction. And you are, therefore, 
 desired to bring this matter before your minds, and to 
 say how far you think the witness, under such a state 
 of circumstances, is a witness of credit, or not. They 
 say it affects his credit, and put it to you as a ground 
 upon which you are not to believe him at all. I have 
 stated the objection on the part of the prisoner's 
 counsel. The answer the man himself gives to it is, 
 that he never considered himself as j^ersonally liable to 
 an indictment, because he thought that when he stated 
 the whole of his story : namely, that he was forced out
 
 160 OF THE CREDIT OF A WITNESS. 
 
 of his house with his sword, and made his escape as 
 soon as possible, he should be treated as an innocent 
 man, and not as a criminal. That is the question 
 between the parties. You must estimate the value of 
 this man's evidence according to the best of your judg- 
 ment and discretion." * 
 
 With regard to a difference between a witness's 
 deposition before a magistrate, and his evidence in 
 court, it is certainly very remarkable that a policeman i 
 will often, in court, give his evidence as nearly as i 
 possible, word for word, agreeing with the language in 1 
 his deposition. Probably the main cause of this exact- 
 ness ought to be attributed, not to memory alone, but 
 also to practice and habit. For, generally speaking, 
 certainly, this nicety is not to be expected in testimony 
 borne at different times, perhaps after an interval of 
 several weeks, first in a deposition before a magistrate,. 1 
 and afterward in court. Speaking of the re-examina- I 
 tion of the same witnesses, on an aj)2)eal against a con- 
 viction under an excise information, as were examined 
 on the original hearing. Lord Ellenborough said : 
 *' Supposing they were confined, as far as might be, to 
 the same facts, yet their re-examination would always, 
 to a certain degree, be productive of fresh evidence, as 
 it could not be supposed that any witnesses could give 
 their testimony precisely in the same form and sub- 
 stance as upon a prior examination." . . . . " Indeed, 
 upon the reason of the thing, evidence, if it be to be 
 heard a2:aiu from the mouths of the same witnesses, 
 cannot be precisely the same ; differences must neces- 
 sarily arise from a varied recollection of the wit- 
 nesses." f That a certain dissimilarity in evidence is 
 
 * Frost's Trial (taken by Gurney), pp. 354, 737. 
 t 3 Maule and Sel. 140, 143.
 
 OF THE CREDIT OF A WITI^ESS. IGl 
 
 in sucli cases natural, and almost unavoidable, is a 
 point not to be forgotten in determining the credit of 
 a witness whose deposition, and subsequent evidence in 
 court, do not perfectly agree. 
 
 SECTION V. 
 
 OF THE FORMER CONDUCT OF A WITNESS. 
 
 The credit of a witness is generally supposed to be 
 injured by his having before, whether recently, or even 
 some years back, been guilty of, or charged with, some 
 punishable offense. With the view of damaging his 
 credit, a witness (as before mentioned) is constantly 
 asked, in his cross-examination, whether he has ever 
 been charged with this or that offense ; whether he has 
 even been in" gaol, and if so, what it was about ; and 
 other questions of the like kind. 
 
 Assuming that this distrust of the witness rests 
 upon the principle, that every man's nature is so cor- 
 rupt that, under temptation, he is caj)able of commit- 
 ting perjury; and that the particular crime the witness 
 has been guilty of, or charged with, deteriorated his 
 nature to such a degree as to incline him to yield to 
 the temptation to perjure himself; it may be inquired 
 how far this distrust is rightly founded. 
 
 It will be admitted that, under temptation, any 
 man is capable of committing perjury. But this 
 inherent corruption in man is not greater in the wit- 
 ness than in any one else — it furnishes no reason to 
 distrust him more than another. And supposing a 
 man guilty of a crime, as theft, to be a witness, and to 
 bear false testimony, it does not follow that an in- 
 creased corruption of his nature by the theft is the 
 cause of the perjury ; he may be a perjured man,
 
 1G2 OF THE CEEDIT OF A WITNESS. 
 
 because of the corruj^t nature of Avhicli all men par- 
 take ; lie miglit have perjured himself, although he had 
 not been guilty of the theft. 
 
 The degree of deterioration caused to the witness's 
 nature by his former crime may, perhaps, be rightly 
 measured by the crime itself. For there are degrees of 
 offenses — a pickpocket may not be prepared to commit 
 perjury. 
 
 Supposing the T^atness's nature was by his offense 
 once deteriorated enough to dispose him to perjure 
 himself, it is important to inquire whether it is so still. 
 There is such a thing as repentance, whereby we 
 forsake sin ; and the effect of repentance in him may 
 be to reinstate him in his former moral condition, 
 liable indeed to commit perjury, but not more so than 
 any other man. Length of time since the offense, and 
 intermediate good conduct, may be evidence of such 
 repentance. Dr. Johnson relates of Shakspeare, that 
 " he had, by a misfortune common enough to young 
 fellows, fallen into ill company ; and amongst them, 
 some that made a frequent practice of dear stealing, 
 engaged him, more than once, in robbing a park that 
 belonged to Sir Thomas Lucy, of Charlecote, near 
 Stratford." * If Shakspeare had been put into the 
 witness box, bearing " his blushing honors thick upon 
 him," would not his contemporaries have believed 
 him ? f 
 
 But however in theory a person who has committed 
 a crime, and thereby lost his good name, may be 
 believed, and ought to be believed ; yet, certainly, in 
 some cases, the difficulty may be insurmountable when 
 
 * Dr. Johnson's Account of the Life of Shakspeare, 
 
 t [Lamartine, when in the zenith of his poi)ularity, oflfered himself as 
 a witness, and was rejected on account of his having, in his youth, been 
 convicted of theft.]
 
 OF THE CREDIT OF A WITNESS. 1G3 
 
 it is required practically to put faith in what he says, 
 and to act upon this belief. If the witness, guilty of a 
 crime, comes from a line of ancestors notorious for bad 
 character — as thieves, or rogues of any kind — he will 
 be very much in the situation of the foxes described 
 by Gray, whose good names were irretrievably gone, 
 who were past belief, owing to their own trespasses 
 and those of their ancestors. The advice of the dying 
 sire to his numerous race, standing around him : 
 
 " Would you true happiness attain, 
 Let honesty your passions rein ; 
 
 So live in credit and esteem, ^ 
 
 And the good name you lost redeem," 
 
 was by his offspring admitted to be good, but pro- 
 nounced to be useless : 
 
 '' The counsel's good, a fox replies. 
 Could we perform what you advise. 
 Think what our ancestor's have done ; 
 A line of thieves from son to son : 
 To us descends the long disgrace. 
 And infamy hath marked our race. 
 Though we, like harmless sheep, should feed, 
 Honest in thought, in word, and deed ; 
 Whatever hen-roost is decreased. 
 We shall be thought to share the feast. 
 The change shall never be believed ; 
 A lost ffood name is ne'er retrieved." * 
 
 SECTION VI. 
 
 OF AN ACCokpLICE. 
 
 When an accomplice, or partner with another, in 
 some offense, Avhicli they commit, is allowed to be a 
 witness against his associate, why is not implicit belief 
 to be given to his testimony ? Why is there to be a 
 
 * The Fox at the Point of Death.
 
 1G4 OF THE CREDIT OF A WITNESS. 
 
 doubt wlietlier liis evidence ouglit to be believed? 
 As to what actually took place before, and at tlie time 
 of, tlie commission of the offense, it is clear the accom- 
 plice may have had full opportunity of seeing and 
 hearing all that occurred. And to swear falsely, to 
 bear false witness, is a very different offense — different 
 both in kind and in degree of guilt from many others. 
 Then, assuming that to bear false witness is, in degree 
 of guilt, more heinous than some other offenses are ; 
 unless we are prepared to say, that he who commits the 
 less heinous offense, wdll also commit the greater, it 
 does not follow that if a man is guilty of an offense 
 less than perjury, he will go further and incur the guilt 
 of perjury itself. 
 
 It is well known that the inward monitor, con- 
 science, " makes cowards of us all," in the sense that it 
 often deters from the commission of crime ; and where 
 the cowardice is based on no higher or better principle, 
 it is often grounded on the fear of punishment. The 
 man who picks a pocket, may hesitate and forbear to 
 rob with violence ; and the robber with force may 
 hesitate and forbear to stain his hands with blood. 
 But this reasoning from ascent in guilt does not apply 
 where the crime committed is, in degree of guilt, equal 
 to, or greater than, perjury — as high treason or murder. 
 A man who will take a part in high treason or murder, 
 will probably not scruple to perjure himself. 
 
 In all cases, a jDrinciple on which to doubt the 
 truth of an accomplice's evidence against his com- 
 panion, is temptation to swear falsely. To save himself, 
 an expectation of pardon for his guilt, and of a reward 
 for his evidence, or of the pardon alone, may be a 
 sufficient temj^tation to him.
 
 OF THE CREDIT OF A WITNESS. 165 
 
 " The long conniving damsels seek 
 To save themselves, and would transfer 
 The guilt — the shame — the doom — to her : 
 Concealment is no more — they speak 
 All circumstance which may compel 
 Full credence to the tale they tell." * 
 
 If an accomplice give evidence against his associate, 
 witli the expectation of thereby securing pardon to 
 himself; if this expectation be his only motive, this 
 motive, standing alone, offers but a slight reason for 
 disbelieving the witness. The hope of pardon is con- 
 sistent with contrition for his guilt : and his tempta- 
 tion to give evidence against his companion is the less, 
 inasmuch as his own testimony Avill necessarily involve 
 himself in that companion's guilt ; and the pardon he 
 expects cannot, he knows, eiface the stain, which the 
 offense, of which he owns himself to be guilty, lays 
 on his character. 
 
 If, in addition to the pardon, there be the assurance, 
 or even the hope, of reward, this assurance or hope 
 necessarily taints the evidence, and creates a suspicion 
 it may not be true. 
 
 Besides the open temptations of pardon and reward, 
 temptations about which the accomplice makes no con- 
 cealment, there may be a secret temptation, one which 
 hidden in his own breast, he keeps to himself, that 
 may move the witness to forswear himself; this may 
 be ill-will toward his companion. And the possibility 
 of this or any other bad motive, alone renders it im- 
 perative to receive with caution the evidence of every 
 accomplice. 
 
 If it be difficult, as of necessity it is, to inquire into 
 and learn the secret motives of a witness, as a guide to 
 determine the belief which ought to be given to him, 
 
 * Parisina, St. viii.
 
 166 OF THE CREDIT OF A WITXESS. 
 
 yet tliere are several plain ways, by whicli his veracity 
 may be tested. It ■will be easy to see, whether his 
 evidence is consistent in all its parts, and whether 
 any other witness contradicts him in the main, or 
 any material, fact ; and whether his evidence of the 
 main, and every material, fact is confirmed by the testi- 
 mony of another witness. Where there is such free- 
 dom from contradiction, and such confirmation, by other 
 witnesses, and no sufficient motive to swear falsely ap- 
 pears, it may be hurtful to justice to withhold belief 
 from the evidence of an accomplice. 
 
 Several witnesses on the trial of Colonel Desj)ard, 
 in 1803, for high treason, were accomj^lices with him ; 
 and Lord Ellenborough in summing up to the jury.thus 
 sj^oke, in general terms, of evidence given by accom- 
 plices : — Their testimony is to be received and acted 
 upon with an attentive and scrupulous consideration 
 of its merit and value ; in each particular instance, 
 they come sullied with some degree of contamination 
 (not all, indeed, in an equal degree) ; contaminated, 
 however, in some degree, by a particij^ation in the very 
 crime they impute to others; but the witness who 
 comes thus prima facie contaminated, may be so con- 
 firmed by the consistency and clearness of his own nar- 
 ration, and still more by its conformity to, and coin- 
 cidence with, the substance of the testimony delivered 
 b}^ others, not likely to have conspired with him in the 
 crime itself, or to have had the means of concerting 
 and colluding with him as to the matter of his testi- 
 mony, that he, a j)erson originally standing under some 
 degree of doubt and suspicion from the nature of his 
 situation, and from the quality of his testimony, be- 
 comes, at last, entitled to be believed in the fullest 
 manner.* 
 
 * Trial of Colonel Despard (taken by Gurney), p. 214.
 
 OF THE CREDIT OF A WITNESS. 167 
 
 On the trial of Forbes and others, in 1823, at Dub- 
 lin, for a conspiracy to create a riot, and for a riot, John 
 and George Atkinson, two of the witnesses for the 
 prosecution, were accomplices ; and on the credit to be 
 given to them, and to accomj^lices in general, the Chief 
 Justice in his summing up told the jury, — " Every ac- 
 complice is in law a competent witness ; the judge is 
 bound to receive him ; but whether he is credible is for 
 the jury alone. In determining that question, various 
 circumstances must be taken into consideration. In 
 the first place, the man, who thus comes forward, proves 
 himself to be, in a certain degree, destitute of moral 
 sense, by admitting himself to have been a participator 
 in guilt. In estimating the credit of a man, we are 
 naturally led to inquire what is his moral character ; 
 , and if you find that exceptionable, it will make you 
 cautious in relying upon his evidence. But in following 
 this principle to its j^ractical results, it will be necessary 
 to recollect the nature of the crime, in which the witness 
 admits his participation. A man guilty of an atrocious 
 oifense, whose hands have been stained with blood, or 
 whose heart has been polluted by treason, is a compe- 
 tent witness ; but unless satisfactorily corroborated, a 
 jury will seldom act upon his testimony. However, if 
 the crime be of a less dark complexion, the inference 
 to be deduced from his admission of being concerned 
 
 in it, will be proportionally weakened 
 
 There is another source of discredit in every case of an 
 accomplice, which a jury is bound to take into consid- 
 eration ; I mean the interested motives, which may in- 
 duce such men to come forward — sometimes perhaps 
 to escape punishment — to save their lives — to shield 
 themselves from prosecution — or to entitle themselves 
 to rewards. In all these cases, a jury should act with 
 such jealousy, as almost to reject their evidence, unless
 
 168 OF THE CREDIT OF A WITNESS. 
 
 satisfactorily corroborated by other and more unim- 
 
 peacliable witnesses Upon this subject 
 
 of the credit which may be given to accomplices, it is 
 right that I should make another observation. There 
 never, it must be admitted, existed any man so bad or 
 dej)raved, but that he might possibly speak the truth ; 
 and, therefore, when a witness gives evidence in a court 
 of justice, it is not the true question, whether he is or 
 is not a credible person, for that is only part of the 
 means of forming a judgment upon the real question — 
 which is, whether what he states be true ; because it is 
 possible that an incredible man may disclose the truth. 
 The way to discover whether he has done so or not, is 
 to try whether his statement be substantiated by other 
 evidence, either of the facts, to which he has deposed, 
 or of such a state of facts, as is inconsistent with any 
 thins: but the truth of what he has sworn." * 
 
 It may not often, yet it may sometimes, happen, 
 that an accomplice appears under the favorable cir- 
 cumstances noticed by Lord Ellenborough, in summing 
 up to the jury in the case of Codling, Reid, and others, 
 tried in 1802 for sinking a vessel with intent to defraud 
 the underwriters. The principal A\"itness against the 
 accused was a seaman of the name of Cooper, the 
 man who actually bored the holes, through which the 
 water entered the vessel and sank her. Lord Ellen- 
 borough thus spoke of him : " The first witness, and 
 upon whose testimony most materially the case of the 
 prosecution depends, is Thomas Cooper. You are to 
 take him now to be not only an accomplice, but a 
 princi23al in the commission of the crime ; a person to 
 whom, although competent, you would not be dis23osed 
 
 * Trial of Forbes and others (taken by Greene), p. 355.
 
 OF THE CREDIT OF A WITNESS. 1G9 
 
 to give credit ; nor ought you to do so, unless he is 
 supported and confirmed by other testimony ; but he 
 does stand before you in a different situation, from 
 ahnost any other 2)erson I ever remember presented 
 to a jury as an accomplice ; for he is not only not con- 
 tradicted in any one 2>n,rticular, by any of the vast 
 body of evidence collected from on board his own ship; 
 and every person has been called to you, who filled 
 any function in it, excepting the prisoners Codling and 
 Reid ; he not only is not contradicted by any of them 
 in the course of their examination, but is not attempted ' 
 to be contradicted by any witness brought to disparage 
 his general credit or character ; nor do any of the cir- 
 cumstances, adduced on the part of tlie defendants, 
 reflect either discredit upon his character, or discredit 
 upon the story he has told ; and in the very manner 
 of his statement there is something, which gives a de- 
 gree of credit to his statement and story. Therefore, 
 though he stands before you an accomj^lice, and though 
 he is the very hand that effected the destruction of 
 the ship, he is as little tainted by the commission of 
 such a crime, as almost any accomj^lice, that ever pre- 
 sents himself in a court of justice. No one person has 
 been called to say, he would not believe him on his 
 oath ; nor is there any motive, beyond the promise of 
 looking after a better berth or better situation for him, 
 that seems, to have been thrown out as a lure to him, 
 to induce him to act the part, which he assigns to him- 
 self in this wicked transaction." * 
 
 * Trial of Codling and others (taken by Gurncy). p. 208. 
 
 12
 
 170 OF THE CREDIT OF A WITNESS. 
 
 SECTION \^L 
 
 OF A SPY. 
 
 Suppose a witness to have been a spy, one who 
 watches the words and actions of others, for the pur- 
 pose of informing and giving evidence against them. 
 If this man is accidentally, or, from previous informa- 
 tion or suspicion, is designedly, present during the 
 plotting of some offense, whether against the State or 
 Government or individuals ; and from his dislike of the 
 meditated conspiracy, and to further the ends of justice, 
 he conscientiously remains to learn the views and secrets 
 of the associates in the plot, with the fixed design to 
 stop and counteract it, or, if unable to do this, at least 
 to aid in punishing the conspirators ; this conduct may 
 be justifiable, both legally and morally ; and it will fol- 
 low, that, if to convict the parties to the plot, he gives 
 his evidence against them, the mere character of spy 
 ought not to prejudice, or stain the credit of, the wit- 
 ness. To this man no guilt of the plotted oftense at- 
 taches. 
 
 Another description of spy may be a man, who has . 
 undesignedly been present at a plot, and, by the in- 
 ducement or example of others, been tempted to join in 
 it ; or a m<an who has been even one of the orio:inal 
 framers of the plot : and either of these men, whether 
 from seeing the proceedings may lead him further than 
 he intended, or from some quarrel with his compan- 
 ions, or from repentance, or other cause, may secretly 
 and unknown to the others withdraw from the confeder- 
 acy, and from thd^t time resolve to watch their proceed- 
 ings, with the view to be a witness against them ; and 
 with this intent continue to attend at their meetings 
 and take notes of, or carry away in his memory, what
 
 OF THE CREDIT OF A WITNESS. 171 
 
 he sees and hears. This mau stops short in his career 
 of guilt as a conspirator before it is perfected. 
 
 But as all kinds of spies, meditating to inform, are 
 naturally in some degree disliked, there is no doubt in 
 each of the men before-mentioned, a something, which 
 affects and endangers his credit. Yet it need not in 
 either of those instances utterly destroy it. For it is 
 plain the man has had the very best opportunity of see- 
 ing and hearing what was done and said by his asso- 
 ciates. And to wdiat extent his credit is hurt, and how 
 far he is to be believed, may be learnt from consider- 
 ing, whether the different parts of his story are consist- 
 ent with each other, whether he is contradicted in any 
 material fact by other witnesses, whether there is a 
 probability of truth in what he says. If his story is con- 
 sistent, if he is not contradicted in any material fact, and 
 a fortiori if he is confirmed in material facts, by other 
 witnesses, and if probability supports his story, it may 
 be rio-lit to believe him. And althouo-h, in the course 
 of his examination, there is some hesitation or confu- 
 sion in his answers, shame in his countenance, or em- 
 barrassment in his demeanor, yet it should be recollect- 
 ^ ed that, excepting the shame, each of the other defects 
 is often seeti in the most honest and honorable witness ; 
 each is the natural, and often the inevitable, fruit of the 
 wily and ensnaring questions put to the witness by a 
 skillful adverse interrogator. And the shame itself is a 
 token favorable to the witness, inasmuch as it shows he 
 feels himself degraded by the character he bears of 
 spy ; and to be void of all appearance of shame w^ould 
 argue a want of self-respect under an imputation of dis- 
 honor. 
 
 On the trial of Hardy for high treason in 1794, 
 Lynam, one of the witnesses for the Crown, gave in 
 evidence that he was a member of the London Corres-
 
 172 OF THE CREDIT OF A WITNESS. 
 
 ponding Society, and was a delegate of one of its divis- 
 ions ; tliat he attended at many of the meetings of the 
 delegates, and, as was the practice of other delegates, he 
 as one of them took down in writinsf much that was 
 said and done there, for the purpose of communicating 
 what had been transacted at the meeting of delegates 
 to his division of the society ; and, while still a dele- 
 gate and attending the meetings, he, on consulting with 
 a fi'iend, made by his advice reports from time to time 
 of the society's proceedings, not to a magistrate, but to 
 a person, to whom through his friend he was recom- 
 mended to give the information ; such reports being 
 copies of the reports he made to his division of the so- 
 ciety : what he saw and heard was taken down, both to 
 be reported as a delegate, and for the purpose of giving 
 information to the person, to whom he had been recom- 
 mended to o-ive it. 
 
 Erskine, in his defense of Hardy, stigmatised Lynam 
 as a spy, charged the evidence with inconsistency, and 
 objected to it, that part was from notes, and part from 
 recollection ; and that the witness had not in his notes 
 taken down the words he heard, but only the substance 
 of them ; the impassioned advocate exclaiming, — " O 
 excellent evidence ! The substance of words taken 
 down by a spy, and supplied, when defective, by his 
 memory. But I must not call him a spy ; for it seems 
 he took them hond fide as a delegate, and yet hond fide 
 as an informer ; what a happy combination of fidelity ! 
 faithful to serve, and faithful to betray." 
 
 On the same witness's evidence. Lord Chief Justice 
 Eyre, in summing up to the jury, made these remarks, 
 — " It has been a fatiguing work to go through these 
 broken accounts of the transactions of the society from 
 this man's notes, and the accounts must necessarily be 
 somewhat imperfect ; but upon the whole they carry
 
 OF THE CREDIT OF A WITNESS. 173 
 
 Av^tli them very great marks of authenticity ; and with 
 respect to those facts, which can be clearly collected 
 from them, they seem to be very weightily proved ; and 
 I cannot ima^-ine that the evidence of this man is shaken 
 
 O 
 
 in any particular whatever, from the mere circumstance 
 of a man, otherwise of credit, choosing to give informa- 
 tion of proceedings, which he conceived to be dangerous 
 to the constitution of the country ; to say that that is 
 to affect his credit, is not a thing to be asserted in a 
 court of justice, nor fit to be encouraged by a jury. 
 Wherever men of this description give evidence, and 
 ■ they give their evidence in a way which is fiiirly open 
 to observation, the circumstance of their comino' to o-ive 
 their evidence in this manner will have its weio-ht : but 
 if their evidence in other respects is uniformly consist- 
 ent and probable, and is not impeached, it is not enough 
 to say, that this man went into this society on purpose to 
 inform the magistrate of what was passing. It is ex- 
 tremely necessary that should be done ; it is the duty 
 of magistrates to watch over the public j)eace, if any- 
 thing material is going forward by which the public 
 peace of the country may be affected ; it is the duty of 
 the magistrate to use all proper means to bring these 
 proceedings to light, in order that they may be brought 
 to the test of the law ; and he would be criminal if he 
 did not use those means." " 
 
 On the trial of Colonel Despard for high treason in 
 1803, during the trial a witness, Windsor, had been con- 
 sidered, both by the Crown and the })risoner, as an ac- 
 complice with Despard. What Windsor had done was 
 this, — He, on invitation by one of the conspirators, 
 joined in the plot, and immediately communicated the 
 
 * Trial of Hardy (taken by Gurney), vol. iii.. pp. 12, 289 ; vol. iv., p. 
 387.
 
 174 OF THE CREDIT OF A WITNESS. 
 
 object of it to a person of the name of Bownas, from 
 whom he received advice as to his future conduct ; and 
 on that advice he attended several meetino;s of the 
 conspirators, and ultimately offered himself as a witness 
 ao;ainst them, and disclosed to certain mamstrates the 
 whole extent of the treason. Lord Ellenborouo-h, in 
 his summing up to the jury, distinguished Windsor 
 from an accom|)lice ; and the character his lordship 
 attributed to him answers the description of a spy ; and 
 he thus cautions the jury about their reception of the 
 evidence of a witness of this nature : — " There is a 
 class of persons, which cannot properly be considered 
 as coming within the descrij^tion, or as partaking of 
 the criminal contamination, of accomplices ; I mean 
 persons entering into communication with the conspir- 
 ators, w^ith an original purpose of discovering their 
 secret desio;ns, and disclosino- them for the benefit of the 
 public. The existence of such original purj^ose on their 
 part is best evinced by a conduct, which precludes 
 them from ever wavering in or swerving from the dis- 
 charge of their duty, if they might otherwise be dis- 
 posed so to do ; as in the case of Windsor, who bound 
 himself to. his duty by an early communication to 
 Bownas, and received from him directions, as to the 
 stej^s which he should afterward pursue. If he entered 
 into and continued in the apparent prosecution of the 
 purposes of the conspiracy, with this view and object, 
 he is not an accomplice ; although, perhaps, a great de- 
 gree of objection or disfavor may attach to him on other 
 grounds ; for certainly no person of very delicate feel- 
 ings (however necessary it may be in some cases) would 
 choose to go on from day to day, apparently forwarding 
 the purposes of a conspiracy, in order that he might 
 afterward disclose it, and bring the parties concerned in 
 it to justice ; but still, whatever may be the merit or
 
 OF THE CREDIT OF A WITNESS. 175 
 
 demerit of this species of conduct on other grounds, it 
 is not, taking the fact as Windsor has stated it, the case 
 of an accomplice." And at the close of his summing 
 up. Lord EUenborough told the jury, — " If Windsor 
 entered into this scheme, with the original purpose of 
 making a timely discovery of the mischief; and that he 
 did so, hisuncompelled discoveries appear very strongly 
 to indicate ; I say he is not strictly an accomplice ; though, 
 the concern he had in the business, in continuing so 
 long, and mixing so intimately [in], and forwarding 
 Avith so much a2:)pareiit good will and alacrity, the ob- 
 jects of the conspiracy, certainly exhibit him to you, as 
 a person of no very delicate character and feelings. And 
 if the testimony he gives had [not] been materially 
 confirmed, as it has been ; and if his general credibility 
 as a witness upon oath had also been impeached with 
 effect ; I should certainly have advised you to pause 
 upon the testimony of this witness, and to think w^ell 
 of the degree of credit you ought' to give it, before you 
 believed it." ^' 
 
 Most persons will admit, that a magistrate, in the 
 exercise of his duty to watch over the public j^eace, 
 may, with honor to himself, employ a spy upon the 
 actions of conspirators against the State. Cicero told 
 Catiline to his face, that at home and abroad, by day and 
 night, he was beset by spies.f In such a case, the wel- 
 
 * Trial of Despard (taken by Gumey), pp. 69, 215, 258. 
 
 t So long as there shall l)e any one, who shall think you ought to 
 live, you shall live ; but live as you do now, surrounded Jiy my emissaries, 
 resolved you shall do nothing to injure the State. The eyes and ears of 
 many, without your perceiving it, shall continue to follow and watch you. 
 And what do you noAv any longer expect, Catiline, since neither the dark- 
 ness of night can veil your open-air assemblies, nor the walls of a house 
 confine the voices of your conspiracy ? . . . . There is nothing you 
 plot, nothing you do, nothing you think of, that I not only do not hear, 
 but even do not see, and clearly understand — Orat. in Catil., i. 2, 3.
 
 176 OF THE CREDIT OF A WITNESS. 
 
 fare, joerliaps safety, of tlie State justifies the magistrate, 
 and with liim. his instrument, the spy: the unsullied 
 honor of the former purifies the function of the latter. 
 
 There is yet another kind of s^^y ; the mercenary one 
 employed, not for public, but for private purposes ; the 
 man who Avill haunt society, treacherously insinuate 
 himself into the confidence of others, listen at doors or 
 thin partitions, or any way play the eaves-dropper, peep 
 through key-holes, climb ladders to look in at windows. 
 
 These men are much to be feared.* Men of this de- 
 scription w^ere those whom Tacitus mentions, and who, in 
 conspiring the death of Sabinus, contrived a way, by 
 which others, intended to be witnesses against him, 
 might overhear a conversation between him and the 
 conspirators.f 
 
 A spy of this kind will do all this or more for 
 lucre's sake ; on hire before hand ; for mon ey paid 
 down, or promised before he begins his w^ork. This 
 man's testimony is hardly to be believed under any 
 strength or fullness of consistency in his story, or prob- 
 ability in it ; and any attempt at corroboration of it 
 by others will demand a severe scrutiny. His bargain 
 for such kind of service and reward is a proof of the 
 man's coarse feelings and unscrupulous mind. And 
 
 * " They search the secrets of the house, and so 
 
 Are worshiped, there, and feared for what they know." — 
 
 Dryden. Juvenal, iii., 113. 
 
 t " The conspirators held it necessary that the conversation of Sabinus 
 should be heard by more than one. A place for this purpose, secure 
 and solitary, was to be chosen. To listen behind doors were to hazard a 
 discovery ; they might be seen, or overheard, or some trifling accident 
 might give the alarm. The scene of action at length was fixed. They 
 chose the cavity between the roof of the house and the ceiling of the 
 room. In that vile lurking hole, with an execrable design, three Roman 
 senators lay concealed, their ears applied to chinks and crannies, listen- 
 ing to conversation, and by fraud collecting evidence." — Murphy. Tacit. 
 Annal, iv. 69.
 
 OF THE CREDIT OF A WITNESS. 177 
 
 the reward, either in hand or expected, must, to such 
 a person, be not only a strong inducement to engage 
 in the work, but also a temptation to give an ample 
 measure of service to his employer, and so incline the 
 hireling to see and hear more than realities, to indulge 
 in fancy, and to enlarge, distort, and color whatever 
 for his purj^oses may require this treatment.* 
 
 To a spy of this description are apj^licable these 
 observations of Addison : " A man, who is capable of 
 so infamous a calling as that of a spy, is not very 
 much to be relied upon. He can have no great ties of 
 honor, or checks of conscience, to restrain him in those 
 covert evidences, where the person accused has no op- 
 portunity of vindicating himself He will be more 
 industrious to carry that which is grateful, than that 
 which is true. There will be no occasion for him, if he 
 does not hear and see things worth discovery ; so that 
 he naturally inflames every word and circumstance, ag- 
 gravates what is faulty, perverts what is good, and mis- 
 represents what is indifferent. Nor is it to be doubted, 
 but thiCt such ignominious wretches let their private 
 passions into these clandestine informations, and often 
 wreak their particular spite and malice against the per- 
 son, whom they are set to watch." f 
 
 Evelyn, who was present at the trial of Lord Staf- 
 ford, and heard the evidence of Titus Oates against 
 him, has made in his diary the following observa- 
 tions on the worthlessness of the testimony of this 
 witness, who was a spy on the Papists : " One thing 
 
 * " I scarce would take your evidence on oath." — Gifford. Juvenal., 
 V. 5. 
 
 t The Spectator, No. 430. [The recently discovered correspondence of 
 Daniel Defoe, shows that it is possible for a brave and conscientious man 
 — for such Defoe was — to play the part of a spy. — See Life of Defoe., ly W. 
 Lee, London, 1869.]
 
 178 OF THE CREDIT OF A WITNESS. 
 
 my Lord [Stafford] said as to Oates, wliicli I confess 
 did exceedingly affect me ; tliat a person, who, during 
 his depositions, should so Tauntingly brag, that, tho' 
 he went over to the Church of Rome, yet he was never 
 a Papist, nor of their religion, all the time that he 
 seemed to apostatize from the Protestant, but only as a 
 spy ; tho' he confessed he took their sacrament, wor- 
 shiped images, went through all their oaths and dis- 
 cipline of their proselytes, swearing secresy and to be 
 faithful, but with intent to come over again and betray 
 them ; that such an hyj)Ocrite, that had so deejDly pre- 
 varicated, as even to turn idolator (for so we of the 
 Church of England termed it), attesting God so 
 solemnly that he was entirely theirs and devoted to 
 their interest, and consequently (as he pretended) 
 trusted; I say that the witness of such a profligate 
 w^retch should be admitted against the life of a peer, 
 this, my Lord [Stafford] looked upon as a monstrous 
 thing, and such as must needs redound to the dishonor 
 of our religion and nation. And verily I am of his 
 lordship's opinion ; such a man's testimony should not 
 be taken as-ainst the life of a doo-." * 
 
 SECTION VIII. 
 
 OF THE BANKKUPTCY OF A WITNESS. 
 
 To hurt the credit of a witness, he is, in his cross- 
 examination, often asked, whether he has not been a 
 bankrupt, or asked some other question, from which it 
 is hoped to draw from him a confession, that his pe- 
 cuniary affairs are in a decayed or decaying state. 
 Questions of this kind evidently imply, that an im- 
 poverished man is open to corruption and dishonesty ; 
 
 * Evelyn's Diary (6 Dec. 1680), vol. i. p. 497, ed. 1818.
 
 OF THE CREDIT OF A WITNESS. 179 
 
 and a wish, besides, that in weighing the credit of tLe 
 witness, tlie jury may conclude him to have been cor- 
 rupted to forswear himself. 
 
 This is an old grievance to which poverty is ex- 
 posed. At Kome, however honest a witness might be, 
 however awful the oath administered to him, the con- 
 tents of his purse determined the weight of his evi- 
 dence.* 
 
 A suggestion that a' witness will give dishonest 
 evidence because he is in pecuniary difficulties, ought 
 to be one of the most futile attempts to destroy his 
 credit. Besides being very illiberal and even base, it 
 is most illo2:ical. There is no natural alliance between 
 bankruptcy and impiety ; between decayed fortune 
 and perjury. Bankruptcy often, as all men know, 
 springs from other traders' failures, or is the effect of 
 fair, although it may be imprudent, competition or 
 speculation in business. And it is every day seen, that 
 a bankrupt in fortune is not a bankrupt in conscience. 
 
 SECTION IX. 
 
 OP A witness's weakness of mind. 
 
 It sometimes happens, that a person, although he 
 has understanding enough to make him competent to 
 be a witness, yet is of so weak a mind, that for this 
 reason it is necessary to receive his evidence with cau- 
 tion. 
 
 Such a one may not be likely of his own accord, art- 
 fully, maliciously, or otherwise designedly, to forswear 
 himself; yet it is plain he may have failed to perceive 
 aright what he thinks he saw or heard ; or his memory, 
 not very tenacious, may lead him into error. He is 
 
 * Juvenal, Sat. iii. 137.
 
 180 OF THE CREDIT OF A WITNESS. 
 
 probably, too, more open to bias or prejudice, than per- 
 sons of a strong mind are ; and lie is certainly a fit and 
 likely object for designing people to tamper with, in- 
 fluence and mislead. 
 
 An instance of a witness, considered to Ije of a weak 
 understanding, is found in the trial of Crossfield for 
 his:h treason in 1796. The name of the witness was 
 Winter, who gave his evidence for the Crown. xVnd 
 the chief reason to think him to be a man of a weak 
 mind was a story he was in the habit of telling about 
 a hare, which at 12 o'clock at nic^ht he threw over a 
 gate among a kennel of hounds ; and which, he believed, 
 remained with the dogs some hours unhurt. It was 
 surmised the hare might be a witch. At any rate, 
 their amiable forbearance toward the hare is' not with- 
 out a precedent." 
 
 This story of Winter came out in his cross-exami- 
 nation, and in the evidence of Collins, a witness for the 
 defense. The latter described Winter, as a man who 
 "dealt in the marvellous." Winter was an English- 
 man, of the age of 59, and the master of a vessel, and 
 was owner both of the ship and cargo on the particular 
 voyage mentioned in his evidence, from Newfoundland 
 to Spain. He gave material evidence of words he 
 heard spoken by Crossfield about a year previously. 
 In summing up to the jury, Lord Chief Justice Eyre, 
 made the following, among other, observations on 
 Winter's evidence: " He was asked, whether he had not 
 told a story of a hare, and he gave us some particulars 
 of that story ; and that certainly raises a considerable 
 degree of doubt, whether this man is perfectly and en- 
 tirely to be depended upon, in respect to his capacity ; 
 the story was certainly a foolish one, though not abso- 
 
 * Ovid, Fast. ii. 87.
 
 OF THE CREDIT OF A WITNESS. 181 
 
 lutely impossible to be true ; but lie added to it, that 
 there was a notion that the place was troubled ; ■^^dlich 
 leads to a susj^icion that he himself conceived there 
 was something supernatural in the event which he re- 
 lated. This would be a strong mark of a distempered 
 imagination. You will recollect that a witness [Col- 
 lins] for the prisoner said, that Winter declared, that 
 the hare was a witch, or a devil in the shape of a 
 hare. That which dropped from this man himself, in 
 the course of his evidence, concerning the place being 
 troubled, connects very closely with what the witness 
 related ; and the whole, taken together, marks so 
 strongly, that this man's mind is not perfectly com- 
 posed, that it must weigh against the credit of his tes- 
 timony, even though there should be no reason to doubt 
 but that he means to speak the truth. This man has 
 given very material evidence against the prisoner ; but 
 it can hardly be thought, having this cloud thrown over 
 it, a sufficient foundation for a verdict in this import- 
 ant cause, between the king and the prisoner at the 
 bar." * 
 
 A man at Winter's age, and in his class of life, 
 must have had a very " distempered imagination," if, 
 on the ground of incapacity, he was not to be believed 
 in relating words he had heard a few months only be- 
 fore. It is not unlikely that many a sailor at the end 
 of the last century " dealt in the marvellous." And it 
 is probable the race is not yet extinct. " All sailors, 
 it is notorious, are superstitious." " It is well knoAvn 
 that the whole family of sailors is suj^erstitious." f 
 
 * Crossfield's Trial (taken by Gurney), pp. 120, 213, 300. 
 
 t On this subject, see De Quincey's Autobiographic Sketches, pp. 333, 
 334, cd. 1853. [An instance of this came under our notice. A gentleman 
 in New York desired to import some certain variety of the cat species, 
 we forget what or whence ; they were duly shipjjed, directed to him at
 
 182 OF THE CKEDIT OF A WITNESS. 
 
 " How whistle rash bids tempests roar," * 
 
 lias been, if it is not now, a common belief of sailors. 
 " That tliis is a general superstition," says Sir Walter 
 Scott in a note to tliat line, " is well known to all, who 
 have been on shipboard, or who have conversed with 
 seamen." " Many a good ship^" says Southey, " has 
 lost that tide, which might have led to fortune, because 
 the captain and the crew thought it unlucky to begin 
 their vovaa'e on a Friday. You were in no dano^er of 
 being left behind, by the packet's sailing on that day, 
 however favorable the wind, if it were possible for the 
 captain to devise any excuse for remaining till the mor- 
 row in harbor." f 
 
 SECTION X. 
 
 OF A WITXESS'S DEMEAKOK TIsDER EXAillXATIOX. 
 
 The carriage and behavior — in a word, the de- 
 meanor — of a witness, signified by his words, looks, or 
 gestures while under examination, will deserve con- 
 sideration in determinino; the credit which ou^ht to be 
 given to his testimony. Demeanor may be a warrant 
 of integrity in the witness, or betray a want of it. It 
 is often one can say of a witness, his manner is open 
 and ino-enuous — it is the manner of an honest witness. 
 So a witness may be very honest, although his de- 
 meanor is, in some respects, oj^en to censure, and 
 
 New York. The vessel on whicli they were being transported, met with 
 bad weather, the sailors insisted that it was occasioned by the presence of 
 the cats, and it resulted in all the poor creatures being tossed overboard. 
 We were employed to enforce compensation for the loss of the cats ; pay- 
 ment was for a time resisted, on the ground that the destruction was ne- 
 cessary for the safety of the ship ; eventually the parties compromised. — 
 Ed.] 
 
 * Eokeby, canto ii. st. 11. t The Doctor, vol. iii. p. 158,. ed. 1835.
 
 OF THE CREDIT OF A WITNESS. 183 
 
 deserves rebuke. Constitution of mind, habit, manner 
 of life, may give liim a coarse, blunt tongue, and a 
 manner, in appearance, yet not meant to be, uncivil or 
 disrespectful. Such a rough, unrefined nature or 
 carriage may well consist with a habit of speaking the 
 truth, with an abhorrence of falsehood, and a wish and 
 determination to give true evidence. A test and proof 
 of his honesty may be that neither in taking the oath, 
 nor giving his evidence, does his manner imply any 
 irreverence for the oath, and its sacred duties. 
 
 Demeanor consisting in confusion, embarrassment, 
 hesitation in replying to questions, and even vacillating 
 or contradictory answers, are not necessarily a proof 
 of dishonesty in a w^itness, because this deportment 
 may arise from bashfulness or timidity, and may 'be 
 the natural and inevitable eftect of an examination by 
 a skillful, practised, perhaps unscrupulous, advocate, 
 whose, aim in his questions is to entangle, entrap, and 
 stupify the witness, and cause him to say and unsay 
 any thing or every thing. It may not be good be- 
 havior in a witness to suifer his eyes to wander about 
 the court while he is under examination, but this con- 
 duct may not be unnatural in the midst, perhaps, of 
 an entirely new scene to him ; and the distraction of 
 mind occasioned by that employment of his eyes may 
 well cause him, on returning to his duty, to answer 
 hastily, and without consideration. But in all' this 
 there may be no intentional disrespect to the court ; 
 and the witness, notwithstanding, may be a very 
 honest one. Again, it happens to all persons occasion- 
 ally, Avithout thought, to use one word for another, 
 making the sense very different from what was in- 
 tended; unconsciously w^e say that we did not mean to 
 say. In like manner, a witness may inadvertently 
 contradict himself. Demeanor, nevertheless, if it
 
 184 OF THE CREDIT OF A WITNESS. 
 
 affords any fair ground to suspect tlie witness does 
 not speak the truth, imposes the necessity of caution 
 in putting faith in his evidence. 
 
 What Lord Bacon says of Ijoldness in civil busi- 
 ness, that it hath somewhat of the ridiculous, and 
 causes sport, is applicable to the demeanor of a bold 
 witness : " Certainly, to men of great judgment, bold 
 persons are sport to behold ; nay, and to the vulgar, 
 also, boldness hath somewhat of the ridiculous ; for, if 
 absurdity be the subject of laughter, doubt you not 
 l^ut great boldness is seldom without some absurdity ; 
 €sj)ecially it is a sport to see when a bold fellow is 
 out of countenance, for that puts his face into a most 
 shrunken and wooden posture, as needs it must ; for in 
 bashfulness the spirits do a little go and come; but 
 with bold men, upon like occasion, they stand at a 
 stay — like a stale at chess, where it is no mate, but yet 
 the game cannot stir." "' 
 
 SECTION XI. 
 
 OF DIFFERENT EVIDENCE OF TWO WITNESSES. 
 
 A C[uestion of credit often arises on different, or 
 contradictory, evidence given by two witnesses. 
 
 When two persons have been present when a fact 
 took place, when something was heard or seen, and 
 each gives an account of the fact, their stories some- 
 times quite, or at least very nearly, agree. But at 
 other times it is found that the account which one 
 gives of the fact, or if not of the fact itself, the main 
 fact, yet of some accomj^anying circumstance, differs 
 much from the account given. by the other. A dis- 
 crepancy of this kind necessarily raises a question of 
 
 * Bacon's Essays : Of Boldness.
 
 OF THE CEEDIT OF A WITNESS. 185 
 
 credit ; and tliis wlietlier the witnesses are Lonest or 
 dishonest. 
 
 Assuming that each of the two is an honest witness, 
 the disao-reement in their accounts is to be sou2:ht for 
 in each one's perception of the thing seen or heard, the 
 impression it made on him, and his remembrance of it. 
 From inattention, interruption, a less acute sense of 
 hearing or sight, distance from the sound or oljject 
 heard or seen, or from some other cause, one may not 
 have had the same percej)tion or impression, which the 
 other had, of the particular thing ; or the memory of 
 the one may be better than that of the other. 
 
 Very often the fact is the utterance of certain words ; 
 and the persons who differ may be two, of whom the 
 speaker himself is not one ; or two persons, of whom the 
 speaker himself is one. 
 
 If the words are those spoken by one in the presence 
 of two other persons, one of these two may not have 
 caught all the words spoken ; or, from the similarity in 
 sound of words having different meanings, or from some 
 other cause, he may have misapprehended them ; and, 
 supposing he heard the words, he may not remember 
 all of them, or may retain but a faded impression of 
 some of them. It very often happens, that two persons 
 being present at a conversation between others, one may 
 hear one part, and the other another; or one may re- 
 collect what he has heard, and the other may not. 
 
 Lord Clarendon's account of the trial of the Earl of 
 Strafford contains this passage : — " That which was 
 with most solemnity and expectation alleged against the 
 Earl, as the hinge upon which the treason was princi- 
 pally to hang, was a discourse of the Earl's in the Com- 
 mittee of State (which they called the Cabinet Council). 
 Sir Harry Vane, the Secretary of State, gave in evidence 
 that the kino^ at that time callins: that committee to 
 
 13
 
 186 OF THE CREDIT OF A WITNESS. 
 
 liirn, asked tliem, since lie failed of the assistance and 
 supply expected by subsidies, what course he should 
 now take ? That the Earl of Strafford answered, ' Sir, 
 you have now done your duty, and your subjects have 
 failed in theirs ; and therefore you are absolved from the 
 rules of Government, and may supply yourself by ex- 
 traordinary ways ; you must prosecute the war vigor- 
 ously ; you have an army in Ireland, with which you 
 may reduce this kingdom.' The Earl of Northumber- 
 land, being examined for the confirmation of this proof, 
 remembered only that the Earl had said, ' You have 
 done your duty, and are now absolved from the rules of 
 Government,' but not a word of the army in Ireland, or 
 reducing this kingdom. The Lord Marquis Hamilton, the 
 Lord Bishop of London, and the Lord Cottington, being 
 likewise examined, answered upon their oaths, that they 
 heard none of those words spoken by the Earl. The 
 Earl positively denied the words ; alleged much ani- 
 mosity to be in Sir Harry Vane toward him ; and ob- 
 served, that not one of the other witnesses, who were 
 likewise present, and as like to remember what was 
 spoken as the Secretary, heard one word of the Irish 
 army, or reducing this kingdom." * 
 
 In the case of Lord Strafford, his lordship denied 
 that he had uttered the words imputed to him by Sir 
 Harry Vane relating to the army in Ireland and reduc- 
 ing the kingdom ; and it is probable he did not use 
 them. This was a case, in which the person, accused of 
 having used particular words, had a deep personal inter- 
 est in the denial, his life depending in a great measure 
 on his having uttered them or not ; a circumstance, 
 which, without imputing intentional falsehood in the 
 speaker, would naturally incline him, if he had any 
 
 * Clarendon's History of the Rebellion, book iii. yoi. i. p. 223, ed. 1707.
 
 OF TUB CREDIT OF A WITNESS. 187 
 
 doubt about it, to insist that he had not used the ex- 
 pressions, so fraught with imminent danger to himself. 
 But setting aside all personal interest in the matter, and 
 supposing an instance, in which it may be perfectly in- 
 different to a person, whether he uttered certain words 
 or not, there seems to be no reason why, generally 
 speaking, a denial by a person that he used certain 
 words should carry with it greater weight, and be more 
 credited, than the affirmation by another person that he 
 heard the words used. If the supposed speaker has 
 previously meditated on the subject, on which he is 
 about to speak, and has collected his ideas uj^on it, and 
 has made up his mind, that, when he comes to speak, he 
 will utter such ideas only, and will clothe them in such 
 and such words, or so far as may be, others merely 
 equivalent to them ; here, the ideas and words will be 
 impressed on his mind both before, and at the time of, 
 their utterance ; and if it be alleged he expressed other 
 ideas, or used words not fitted to express the ideas in- 
 tended, he may, and most probably will, be quite satis- 
 fied in his own mind, that he did not make use of the 
 words attributed to him ; and there will be a probabil- 
 ity, that any one who avers the contrary will be in 
 erroV, either from imperfectly catching the words, or 
 from some other source of mistake. But if, in the case sup- 
 posed, the speaker does not adhere to the plan, he had 
 laid out for himself in giving expression to his ideas, and 
 wanders into unmeditated arguments or topics, either 
 from his conception of fresh ideas, just caught up from 
 other persons' arguments or opinions, or into which 
 new ideas he has in the course of his speech been led, 
 either impelled by fancy, or, through the heat of debate, 
 by passion ; in such a case the speaker may very pos- 
 sibly utter words, making at the time but small impres- 
 sion on his mind, and easily forgotten by him. And in
 
 188 OF THE CREDIT OF A WITNESS. 
 
 sucli a case, if he be charged with expressing those fresh 
 ideas, it may not be in his power, with perfect satisfac- 
 tion to himself, to say, he did not imbibe or entertain, 
 such new ideas, or did not express them in the language 
 imputed to him. And if another person says he heard 
 them, the preponderance of probability may be, that he 
 
 SDeaks the truth. 
 
 J. 
 
 On the trial of Lord George Gordon, a witness (Lord 
 Stormont) after giving in evidence what he had said to 
 Lord George Gordon, and what Lord George Gordon 
 had said to him, being asked whether he was accurate 
 as to the words, replied — " I am, I think, most particu- 
 larly accurate to every word that I used, and very accu- 
 rate as to the strict and exact sense of the words used 
 by Lord George Gordon ; I cannot speak with the same 
 accuracy, as to the words used by another, as I can to 
 the words used by myself." ^ 
 
 It constantly hapj^ens, that, through anger, haste, or 
 other cause, one word is spoken for another ; the idea 
 intended to be uttered being expressed by a word, un- 
 suited to it, and conveying a different meaning. 
 
 " Brutus. You say, you are a letter soldier. 
 Cas. You wrong me every way, you wrong me Brutus ; 
 I said, an elder soldier, not a lettei-y f • 
 
 And even where a person has a word impressed on 
 his mind by his hearing some one else make use of it, 
 and he means to adopt and utter the same word, yet in 
 the hurry of sj)eech he may use another of a different 
 meaning, the difference under particular circumstances 
 being very important. This hapj^ened on a very memo- 
 rable occasion, when a person intending to say of a 
 prisoner he was not discharged, said he was not ac- 
 
 * Trial of Lord G. Gordon (taken by Gurney), Part ii. j). 19. 
 t Julius Caesar, A. iv. 8. 3.
 
 OF THE CREDIT OF A WITNESS. 189 
 
 qiUtted. On the trial of O'Coigly, O'Connor, and 
 others, for high treason, in 1798, O'Coigly was found 
 guilty, but O'Connor and the others were acquitted ; 
 but before they were discharged, a Bow-street officer ap- 
 peared in court with a warrant to apprehend O'Connor, 
 on another charge, and thereupon one of the judges 
 present, Mr. Justice Buller, called out, " They are not 
 discharged] put the others back, and let O'Coigly stand 
 forward." His lordship then passed the sentence of 
 death on O'Coigly ; and immediately after a riot took 
 place in the court, occasioned by O'Connor's jumping 
 over the bar, behind which he stood, and attempting to 
 escape. In the midst of this riot it was, that the word 
 acquitted was used instead of discharged. 
 
 Lord Romne}^, who used it, gives the following ac- 
 count of his mistake. His lordship, being a witness on 
 the trial of the Earl of Thanet and others for the riot 
 mentioned, in his evidence of what he said during the 
 riot, after O'Connor was brought back by several javelin- 
 men, expresses himself thus : — " I then immediately said 
 to the javelin-men, ' Form yourselves round the prisoner, 
 and let no one approach you, for he is not yet,' I meant 
 to say, and imagine I did say, discharged. I was told 
 afterward that I had said wrono; — for I had said he was 
 not acquitted ; upon which I answered, I might very pos- 
 sibly make use of the word 'acqidtted ; but, if I did, it 
 was a mistake ; I meant discharged. I think it was Mr. 
 Fergusson who told me I had said wrong. He said, 
 ' My lord, you are mistaken ; you said he is not ac- 
 quittedj—r-^Q is acquitted.'' I have no doubt myself, as 
 Mr. Fergusson mentioned it, but that I did make use of 
 the word acquitted^ in the hurry : it was not my inten- 
 tion to say he was not acquitted, but that he was nqt 
 discharged; I meant to make use of the word that I 
 heard Mr. Justice Buller make use of from the Bench.
 
 190 OF THE CKEDIT OF A WITNESS. 
 
 I meant to make use of the word discJtarged., because I 
 had heard Mr. Justice Buller use the word discharged^ " 
 
 The difficulty a person has in remembering words 
 spoken by himself or by another, even a very short time 
 previously, is acknowledged in one of the Orders of the 
 House of Commons, as they existed in the reign of 
 Charles I., it being then, " against the Orders and prac- 
 tice of the House, that any man should be called upon 
 to explain, for any thing he said in the House two days 
 before ; Avhen it could not be j^resumed, that his own 
 memory could recollect all the words he had used ; or, 
 that any body else could charge him with them." f 
 
 It is very clear that two persons may be present 
 when a thing is said to be done by a third, and one of 
 the two may hear or see it, and the other not. And 
 therefore if A. says that a certain conversation took 
 place between B. and C. in a room where D. was pres 
 ent ; and D. says that no such conversation took place ; 
 A. and D. are in conflict, and necessarily so, if it was im- 
 possible for the conversation to take place without D.'s 
 hearing it. But if D. says he did not hear the conver- 
 sation, or, meaning the same thing, that it did not take 
 place, A. and D. are not necessarily in conflict, if it was 
 possible the conversation might have passed without 
 D.'s hearing it." % 
 
 With regard to words uttered, these mistakes may 
 arise : — When several persons have spoken, one of the 
 hearers may say, that the words in question were those 
 of A., while another will affirm they were used by B. 
 
 * See the Evidence of Lord Romney on the Trial of the Earl of Thanet 
 and others, contained in vol. iii. of Erskine's Sj)eeches, pp. 342, 343, 3d 
 ed. 
 
 t Clarendon's Hist, of the Rebellion, book iy. vol. i. p. 315, ed. 1707. 
 
 J See Way v. East, 2 Drewry, 72.
 
 OF THE CREDIT OF A WITNESS. 191 
 
 And it is very possi1)le for a hearer, through forgetful- 
 ness, to transfer the words used from him, who did utter 
 them, to him who did not. 
 
 When two persons have heard a third tell them 
 something, tlie two not unfrequently differ in what was 
 said. " I forgive thy wit, replied the Abbot, on con- 
 dition thou wilt show me the way to Cedric's mansion. 
 Well, then, answered Wamba, your reverence must hold 
 on this path till you come to a sunken cross, of which 
 scarce a cubit's length remains above ground ; then take 
 the path to the left, thei'e are four which meet at Sunken 
 Cross, and I trust your reverences will obtain shelter 
 before the storm comes on. . 
 
 Here is the clown's sunken cross, and the night is so 
 dark that we can hardly see which of the roads ^ve are to 
 follow. He bid us turn, I think, to the left. To the 
 right, said Brian, to the best of my remembrance. To 
 the left, certainly, the left ; I remember his j^ointing 
 with his wooden SAVord. Ay, but he held his sword in 
 his left hand, and so pointed across his body with it, 
 said the Templar. Each maintained his opinion with 
 sufficient obstinacy, as is usual in all such cases." ''* 
 
 * Ivanlioe. [In Starkie on Evidence (vol. iii. p. 463 n), mention is made 
 of a case, in which the judge, in summing up, stated that the witness had 
 said, " I am the drawer." The witness in fact, stated, " I know the drawer." 
 The error was corrected. Mr. Starkie remarks, " Had the witness made the 
 same mistake, the consequences might liave been fatal." To this the Editor 
 of Cowen and Hill, and Edwards' notes to Phillips on Evidence, vol. i. 
 p. 715, ed. of 1868. adds : One Caldwell was on trial for perjury, in having 
 denied the existence of a slightly material circumstance against one Baker, 
 who was on his trial for murder, stood already contradicted by several 
 witnesses who swore to the circumstance, and to Caldwell's knowledge of 
 it. The circumstance having happened some fourteen or fifteen years be- 
 fore, gave room to suppose he might have forgotten it. Had the jury 
 believed this, his acquittal was certain ; but Caldwell had recently been
 
 192 OF THE CREDIT OF A WITJfESS. 
 
 On tlie trial of Frost, for liigli treason in 1840, two 
 boys, Rees and Coles, were witnesses for tlie Crown. 
 On the occasion tLey referred to, thfey were both at the 
 same time standing near to Frost. Rees said, he heard 
 Frost and a man called Jack the Fifer, say to the mob, 
 " March ! " Coles said, " I heard Jack the Fifer say, 
 ' March ! ' I did not hear Frost say any thing." Upon 
 this difference in the evidence, the Chief Justice Tindal 
 observed, " Here is incongruity, rather than contradic- 
 tion between their evidence ; because one mig-ht hear 
 the two say it, and the other hear only one. It is not 
 a very material matter, when two persons are giving an 
 account of the same discourse or transaction, that there 
 should be some variation, and a want of exact simili- 
 tude between the accounts they both give." * 
 
 On the trial of Hardy for high treason in 1*791, 
 Groves and Green, both witnesses for the Crown, di- 
 rectly contradicted each other ; their different accounts 
 relating to words, which Groves positively said he heard 
 Green use, and which Green as positively said he did 
 not use. From the materials contained in the trial, it 
 might be very difficult to collect which of the two wit- 
 nesses spoke the truth ; but their conflicting e^ddence is 
 now of value, for the sake of the judge's observations 
 on credit in a case of contradictory evidence. Lord 
 Chief Justice Eyre, in summing up to the jury, told 
 them : " Here, undoubtedly, there is a flat contradiction 
 
 examined on a charge of participation in the murder ; this examination 
 ■was before three justices, named, Newton, Sweet, and Thompson ; Newton 
 testified that, on such recent examination, Caldwell had admitted his recol- 
 lection of the circumstance in question. The prisoner's conviction then 
 seemed certain ; but before the trial terminated, the other two justices, 
 Sweet and Thompson, gratuitously came to the stand, and testified that on 
 the examination referred to, Caldwell had denied his recollection of the 
 circumstance in question. Caldwell was acquitted ; but for the interposition 
 of Messrs. Sweet and Thompson, he would probably have been convicted.] 
 ^ Frost's Trial (taken by Gurney), pp. 698, 699.
 
 OF THE CREDIT OF A WITNESS. 193 
 
 between Green and Groves ; they are both witnesses 
 called on the part of the Crown ; they certainly put 
 you under a dilemma, and make it -difficult for you to 
 be satisfied that Groves is a person, who is entitled to 
 credit for what he has said. At the same time, though 
 Groves is contradicted in this 2:)articular by this witness, 
 he is contradicted in no other particular, where wit- 
 nesses might have been called to contradict him. That 
 is a circumstance for your consideration, upon which 
 you will exercise your judgment. I am not at all press- 
 ing you to incline to give more credit to a witness, who 
 has been contradicted in one particular, than the whole 
 tenor of his evidence, upon the whole, entitles him to." * 
 
 On the above-mentioned trial of Frost, two wit- 
 nesses were, on a very important fact of time, at an ir- 
 reconcilable variance in their accounts of it. One of 
 these witnesses, Hodge, said, that on the 4th November, 
 between 7 and 8 in the morning he was at P., a distance 
 of twelve miles from his own house at B. ; that from 
 thence he went home on foot ; and that he was not at 
 home till after 9 o'clock that morning. The other of 
 the two witnesses, Jones, said, that between 8 and 9 
 she saw the other witness, Hodge, in bed at his own 
 house. To meet the contradictory evidence of Jones, a 
 third witness, Watts, was called, who said, that on the 
 same morning he met Hodge at W. O., from half-past 
 8 to 20 minutes before 9, three miles and a half from 
 P., and about eight miles from B. 
 
 Hodge was a witness for the Crown, and his evi- 
 dence was very important, and especially as regarded a 
 conversation which he said took place between Frost 
 and himself and other persons at P. On the credit to 
 
 * Hardy's Trial (taken by Guniey), vol. ii. ]). 39~ ; vol. iii. pp. 5, 6 
 118, 119; vol. iv. p. 390.
 
 194 OF THE CREDIT OF A WITNESS. 
 
 be given to Hodge, Lord Chief Justice Tindal told the 
 jury : " P. is the spot at which the alleged conversation 
 took place ; and if he was not there at the time he 
 states he heard the conversation, that would at once 
 make him a witness in whom you could place no con- 
 fidence whatever. Therefore the inquiry, to which you 
 are in the first instance to bring your minds as to this 
 witness, is, to determine upon the value of the witness's 
 testimony, before you give it any credit at all." And 
 in noticing Jones' evidence he said, "You cannot set 
 down one witness by contradicting his evidence by 
 another, unless you are first satisfied that the second 
 witness is superior in value to the first." And on 
 Watts' evidence his lordship remarked : " If this man 
 is correct in the judgment he is giving of the time and 
 the distance at which he met Hodge, then the evidence 
 of Jones cannot be true." And on the evidence of both 
 Jones and Watts he told the jury : " It is for you to 
 decide which of them is speaking the truth ; you must 
 make u}) your minds, from the manner in which they 
 gave their evidence, the demeanor of the witnesses, 
 and still more from the probability of the account and 
 circumstances which they relate before you." * 
 
 It may happen that when one person does one thing, 
 and another another, each may think and say he did 
 that, which the other did. Here each is mistaken, but 
 his mistake need not at all aff'ect his credit. On the 
 same trial of Frost, part of the evidence for the Cro\^Ti 
 was, that a large and armed mob had assembled in front 
 of an inn, in which soldiers were placed, the soldiers 
 beiuo' in a room lookins; toward the front, and havina: 
 in it one projecting window, namely, a bow with three 
 windows, one of Avhich, that nearest to the passage or 
 
 * Frost's Trial (taken by Gumev). pp. 297, 527, 534, 722, 723.
 
 OF THE CREDIT OF A WITNESS. 195 
 
 entrance to the inn, being, to a person in the room, and 
 looking toward the projecting window, on the left of 
 the middle of the three windows. The louver half of 
 the shutters of each of the three windows was closed ; 
 and it becoming necessary, for the purpose of firing on 
 the mob, to open the shutters, they were opened by 
 Phillips and Gray, witnesses on the trial. On the fact 
 that the shutters were opened, Phillips and Gray agreed 
 in their evidence ; but they differed in their evidence of 
 the person w^ho opened the shutters of the left-hand 
 window and those of the middle window. Phillips 
 said that he opened the shutters of the window on the 
 left, and that Gray opened the shutters of the middle 
 window. On the contrary, Gray said that he oj^ened 
 the shutters of the window on the left, and that Phil- 
 lips opened the shutters of the middle window. Lord 
 Chief Justice Tindal told the jury the point was per- 
 fectly immaterial, unless the variance and discrepancy 
 between the witnesses was of such a nature as to im- 
 pair their confidence in the one or the other.* 
 
 Also, when a thing is done by one person, and the 
 like may be done by another ; and each of two persons 
 thinks and says he did a something, which may corre- 
 spond either with the thing first mentioned, or with 
 that like it, it will not follow that the two persons mean 
 the same thing ; and there may consequently be no 
 contradiction betAveen them, and their credit may be in 
 no wise afiected by what they say. On the same trial 
 of Frost, the two witnesses, Phillips and Gray, agreed 
 so far that the soldiers were ordered to load ; and Phil- 
 lips said he ordered them, and Gray said he did. " It 
 is possilde," said the Lord Chief Justice Tindal, " that 
 both might have done it, and that Gray did not hear 
 
 * Frost's Trial (taken by Gumey), pp. 238, 248, 249, 707.
 
 196 OF THE CREDIT OF A WITNESS. 
 
 the order given by Pliillips. It is very immaterial to 
 the main question, because such discrepancies as this 
 may exist very well between witnesses, without at all 
 breaking in upon the weight due to the testimony of 
 each." " 
 
 An instance of contradictory statements is furnished 
 by Hume, in a matter relating to an action between the 
 English and Dutch fleets ; and the historian suggests a 
 presumption on which side the truth lies. " Tromp, an 
 admiral of great renown, received from the States the 
 command of a fleet of forty-two sail, in order to protect 
 the Dutch navigation against the privateers of the Eng- 
 lish. He was forced by stress of weather, as he alleged, 
 to take shelter in the road of Dover, where he met with 
 Blake, who commanded an English fleet much inferior 
 in number. Who was the aggressor in the action, which 
 ensued between these two admirals, both of them men 
 of such prompt and fiery dispositions, it is not easy to 
 determine ; since each of them sent to his own State a 
 relation totally opposite in all its circumstances to that 
 of the other, and yet supported by the testimony of 
 every captain in his fleet. Blake pretended, that, hav- 
 ing given a signal to the Dutch admiral to strike, Tromp, 
 instead of complying, fired a broadside at him. Tromp 
 asserted, that he was preparing to strike, and that the 
 English admiral, nevertheless, began hostilities. It is 
 certain that the Admiralty of Holland, who are distinct 
 from the Council of State, had given Tromp no orders 
 to strike, but had left him to his own discretion with 
 re2:ard to that vain but much contested ceremonial. 
 They seemed willing to introduce the claim of an equal- 
 ity with the new Commonwealth, and to interpret the 
 
 * Frost's Trial (taken by Guruey), p. 237, 248, 251, 707.
 
 OF THE CREDIT OF A WITNESS. 197 
 
 former respect, wliicli they bad ever paid tlie English 
 flag, as a deference due only to the Monarchy. This 
 circumstance forms a strong presumption against the 
 narrative of the Dutch admiral. The whole Orange 
 party, it must be remarked, to which Tromp was sus- 
 pected to adhere, were desirous of a war with England." " 
 Time and 25^ace are concomitant circumstances of 
 every fact ; and probably most facts have other attend- 
 ing circumstances, wdiich attract, or might attract, atten- 
 tion. Supposing two persons heard the same words, or 
 saw the same deed, and each to have in his memory an 
 equal impression of the fact, the words or the deed, then 
 each will be able to give the same account of the fact, 
 and he does so if he narrates faithfully from his mem- 
 ory. But of the time, place, or other attending circum- 
 stances, the account of the one may differ from that of 
 the other. A cause of the difference may be, that one 
 of the two noticed more of these circumstances than the 
 other did ; or that one of them has forgotten some of 
 the circumstances. Prescott, in his History of the 
 Reign of Ferdinand and Isabella, thus speaks of the 
 Tourney at Trani in Italy, in 1502 : — " This celebrated 
 Tourney, its causes, and all the details of the action, are 
 told in as many different ways as there are narrators ; 
 and this, notwithstanding it was fought in the presence 
 of a crowd of witnesses, who had nothino- to do but 
 look on, and note what passed before their eyes. The 
 only facts in which they all agree are, that there was 
 such a tournament, and that neither party gained the 
 advantage." f Supposing, then, several persons relate a 
 story, in the main fact of which they agree, but on some 
 
 * Hume's History, ch. Ix. vol. vii. p. 220, ed. 1763. 
 t Vol. iii. p. 103, note, el. London, 1838.
 
 198 OF THE CREDIT OF A WIT2TESS. 
 
 attending circumstance tliey differ, this difference need 
 not invalidate the testimony, which each gives of the 
 main fact. This, in " Othello," is the result of a com- 
 munication of different news by the Duke and certain 
 senators. "^ 
 
 " I know not," says Paley, " a more rash or unphilo- 
 sophical conduct of the understanding, than to reject 
 the substance of a story, by reason of some diversity in 
 the circumstances, with which it is related. The usual 
 character of human testimony is, substantial truth under 
 circumstantial variety. This is what the daily experi- 
 ence of courts of justice teaches. When accounts of a 
 transaction come, from the mouths of different witnesses, 
 it is seldom that it is not possible to ]3ick out apparent 
 or real inconsistencies between them. These inconsist- 
 encies are studiously displayed by an adverse pleader, 
 but oftentimes with little impression upon the minds of 
 the judges. On the contrary, a close and minute agree- 
 ment induces the suspicion of confederacy and fraud. 
 When written histories touch upon the same scenes of 
 action, the comparison almost always affords ground for 
 a like reflection. Numerous, and sometimes imj^ortant, 
 variations present themselves ; not seldom also, absolute 
 and final contradictions ; yet neither one nor the other 
 are deemed sufficient to shake the credibility of the 
 main fact. The embassy of the Jews to deprecate the 
 execution of Claudian's order to place his statue in their 
 temple, Philo places in harvest, Jose^^hus in seed-time ; 
 both contemj)orary writers. No reader is led by this 
 inconsistency to doubt, whether such an embassy was 
 sent, or whether such an order was given. Our own 
 history supplies examples of the same kind. In the 
 
 * Othello, A. i. S. 3.
 
 OF THE CREDIT OF A WITNESS. 199 
 
 account of the Marquis of Argyle's death, in the reign 
 of Charles the Second, we have a very remarkable con- 
 tradiction. Lord Clarendon relates that he was con- 
 demned to be hanged, which was performed the same 
 day ; on the contrary, Burnet, Woodrow, Heath, Echard, 
 concur in statins; that he was beheaded ; and that he 
 was condemned ujDon the Saturday, and executed upon 
 the Monday. Was any reader of English history ever 
 sceptic enough to raise from hence a question, whether 
 the Marquis of Argyle was executed or not ? " * 
 
 SECTION XII. 
 
 OF ONE "witness's OPrNION OF ANOTHER. 
 
 It is a common question put to a witness, whether 
 he would believe a certain other witness on his oath ; 
 as in the form, — " Is he a man you would believe on his 
 oath ? " The witness so questioned may answer posi- 
 tively and unconditionally, — " No, I would not ; " or 
 with such a qualification as this, — " Certainly not, if he 
 was contradicted by respectable testimony." It is diffi- 
 cult to discover any sound principle on which this ques- 
 tion can be asked ; and not to see the injustice it may 
 do the witness, whose veracity is suspected. The an- 
 
 * Paley's Evidences of Christianity, part iii. cb. i. [Not long before 
 the death of Mr. Justice Le Blanc, and whilst he was presiding as one of 
 the judges of assize, at Lancaster, he had a fainting fit. Some time after- 
 ward, the circumstance being the topic of conversation among a con- 
 siderable number of the members of the bar who had been present, a doubt 
 was started, whether the fact had taken place in the ordinary Civil Court 
 or in the Crown Court, in which civil causes were usually tried after the 
 termination of the business on the Crown side ; and those who had been 
 actual spectators were divided as to their recollection in which of the two 
 courts the circmnstancc had occun-ed, many asserting that it took place in 
 the one court, and nearly as many that it occurred in the other court.]
 
 200 OF THE CREDIT OF A WITNESS. 
 
 swer, whether favorable or adverse to tlie character of 
 tlie witness, is mere opinion ; and supposing it to be an 
 honest one, one well grounded in the estimation of the 
 23erson who gives it, yet the answer does not disclose 
 the ground of it ; and supposing that, through a cross- 
 examination, the ground of it does appear, then surely, 
 to be just toward the witness excepted against, the 
 jury ought to inquire into the reasonableness and suf- 
 ficiency of the ground. Hearsay may be the chief, if 
 not the only, foundation of the opinion. And supposing 
 the witness objected to, has a character for lying on or- 
 dinary occasions, and on unimj^ortant matters, it must 
 be seen there is a great difference between telling stories 
 of this kind, and telling a falsehood upon oath.* Many 
 pefsons have a very thoughtless way of talking in com- 
 mon conversation, inventing and exaggerating things, 
 from mere inconsiderateness and gaiety of disposition, 
 and will say what they will not swear. Does the wit- 
 ness, deposing against the other, know an instance in 
 which the latter has sworn falsely ? There is so great 
 a difference between a lie upon oath, and one without 
 it, that unless a man has before perjured himself, it is 
 not only a rash and harsh, but an illogical, conclusion, 
 that because he has told a lie, or many lies, without 
 oath, he is not to be believed when, in a cause between 
 man and man, he swears to speak the truth. And 
 again, to be just toward the witness, whose character 
 for veracity is disputed, a search into the motive, which 
 may prompt the testimony against him, seems to be in- 
 dispensable ; some old quarrel, or spite, may lurk at the 
 bottom of it. The witness'^ opinion may be formed of 
 very loose materials, hastily put together, and not at all 
 
 * [Life of Johnson, by Boswell, vol. v. p. 141, ed. 1835, cited in the fol- 
 lowing chapter.]
 
 OF THE CREDIT OF A WITNESS. 201 
 
 justifying it ; and it plainly, in its nature and kind as 
 opinion, bears no resemblance to some other opinions, 
 Avliicli are fairly and rightly admitted as evidence ; such 
 as those of learned or scientific men, founded on their 
 long study and experience in particular branches of 
 learning, science, or art. 
 
 14
 
 CHAPTER XL 
 
 OF A WITXESS UNDER EXAMINATION. 
 
 The duty of every witness, sworn to sj^eak " the 
 truth, the whole truth, and nothing but the truth," is 
 to observe strictly the oath he has taken. In the per- 
 formance of this duty, the witness (an honest one is 
 meant, that is, one desiring to keep his oath) often meets 
 with many difficulties ; some emanating from himself, 
 and others from the manner of his examination. 
 
 Whether rightly or not, the witness may think his 
 task full of embarrassment and difficulty, because his 
 examination is in 2:)ublic, before a tribunal presenting a 
 grave and solemn appearance ; before a large assembly 
 of people, hearers and spectators, a scene perhaps wholly 
 new to him. To him it may be a trouble publicly to 
 tell his story at all ; but to make the matter worse, 
 this stoiy he is generally not allowed to tell in his own 
 way, in the manner he would tell it privately among his 
 friends. He usually finds he has to relate it only in his 
 answers to questions put to him. This restriction laid 
 on him at the outset, to relate his story by answers only, 
 his discovery that he is not permitted to tell it in the 
 manner he naturally otherwise would, wholly spoils the 
 arrano-ement he has made in his own mind of the mat- 
 ters he has to tell, occasions a confusion of them, and 
 thence causes him embarrassment. He is unaccustomed 
 to this mode of telling a story; and it can therefore be 
 readily understood, that often his answers will stray 
 from the stiict limits of the questions put to him. 
 
 To relate facts correctly requires in all cases some
 
 OF A WITNESS UNDER EXAMINATION. 203 
 
 thought, and tlie time necessary for it. And if the facts 
 are not at once remembered in tlie order in which they 
 happened, time may he required to sort and range them 
 in their proper order. And sujipose, in the case of a 
 witness, they are already so ranged in his mind, it may 
 be diificult for him, instantly on being questioned, to 
 produce the particular fact, Avhich the question calls for. 
 At any rate the ability to do this requires composure 
 of mind, and a power of abstraction from irrelevant 
 thoughts ; and any thing disturbing that composure or 
 power is a hindrance to the witness. 
 
 Hence where the question is perfectly well understood 
 by him, and he has no objection to answer it in a plain 
 direct manner, yet he often goes about to answer it. He 
 naturally does what he would do on being asked a ques- 
 tion in conversation, or otherwise upon ordinary occa- 
 sions. His mind retreats within itself to find the 
 answer. This must relate to something that has haj)- 
 pened, and a consequence is, he searches his memory, 
 and in doing so falls in, perhaj^s, with something, which 
 leads him astray from the point of the question ; he is 
 involved in a train of ideas, connected indeed with the 
 question, and leading to the answer, but he has to make 
 his way through those ideas to get at it. 
 
 In every-day life, in common conversation, questions 
 a,re often answered in a very indefinite, loose, manner. 
 
 • A person asked where he has been, will reply by 
 saying what he was doing ; leaving the place to be 
 gathered, as it often may, from the employment: — 
 
 " Where hast thou been, sister ? 
 Killing swine ; " * 
 
 or asked who he is, will reply where he comes from : — 
 
 * Macbeth.
 
 204 OF A WITXESS UNDER EXAMINATION. 
 
 " "Who knocks so loud, and knocks so late ? 
 From Branksome I ; " * 
 
 or asked if lie saw a person, will indirectly tell you lie 
 did : — 
 
 " Saw you my master ? 
 But now he parted hence, to embark for Milan ; " t 
 
 or asked where a person is, will indirectly tell you by 
 another question: — 
 
 " Where is the master, boatswain ? 
 Do you not hear him ? " | 
 
 On being asked, what was said, lie will first tell you 
 what he saw : — 
 
 " ' And what did he say, on hearing I was at Bath V 
 
 ' Sir, in my life, I never saw an elderly gentleman 
 more astonished.' " § 
 
 At first his answer is undecisive, but, on pressure, it 
 is positive : — 
 
 " Gloster. Tou know the character to be your brother's ? 
 Edmund. If the matter were good, my lord, I durst swear it were his ; 
 but in respect of that, I would fam think it were not. 
 Gloster. It is his. 
 Edm. It is his hand, my lord." J 
 
 At first, he does not know, and then, on reflection, 
 he does know : 
 
 "WeU, I do not know; 
 He died before my day of Sextonship." 
 
 " I believe the man of whom 
 Tou wot, who lies in this selected tomb, 
 Was a most famous writer in his day." ^ 
 
 * Lay of the Last Minstrel. t Two Gentlemen of Verona. 
 
 t The Tempest. § The Rivals. 
 
 II King Lear. T Byron's Churchill's Grave.
 
 OF A WITNESS UNDER EXAMINATION. 205 
 
 Sometimes tlie inquirer is kept in suspense by the 
 mode of answering: — 
 
 " ' How old art thou ? ' 
 
 * Not so young, sir, to love a woman for singing ; nor 
 so old, to dote on her for any thing : I have years on my 
 back forty-eight.' "* 
 
 " King Richard. Stanley, what news with you ? 
 
 Stanley. None good, my liege, to please you with the hearing ; 
 Nor none so bad, but well may be reported. 
 
 K. Rich. Heyday, a riddle ! neither good nor bad ! 
 Wliat need'st thou run so many miles about. 
 When thou may'st tell thy tale the nearest way ? 
 Once more, what news ? 
 
 Stan. Richmond is on the seas."t 
 
 " King Henry. Now by thy looks 
 
 I guess thy message. Is the queen deliver'd? 
 Say, ay ; and of a boy. 
 
 Lady. Ay, ay, my liege ; 
 
 And of a lovely boy : The God of heaven 
 Both now and ever bless her ! — 'tis a gii'l, 
 Promises boys hereafter." \ 
 
 " How oddly thou reply'st ! " Juliet might well say 
 to her nurse, who kept tantalizing her with rambling 
 talk, instead of answering her impassioned inquiries, — 
 
 " O honey nurse, what news ? 
 Hast thou met with him ? 
 
 Is thy news good, or l)ad ? answer to that ; 
 Say either, and I'll stay the circumstance : 
 Let me be satisfied, Is't good or bad ? 
 
 ******* 
 
 But all this did I know before : 
 
 What says she of our marriage ? What of that ? 
 ****** 
 
 Sweet, sweet, sweet nurse, tell me, what says my love ? " § 
 
 Sometimes an answer is one, that is called a reasoii- 
 
 * King Lear. f Richard HI. 
 
 \ Henry VIII. § Romeo and Juliet.
 
 206 OF A WITNESS UNDER EXA:MINATI0N. 
 
 " How tall was she ? 
 About my stature : for, at Pentecost, 
 When all our pageants of delight were play'd, 
 Our youth got me to play the woman's part, 
 And I was trimmed in Madam Julia's gown, 
 Which served me as fit, by all men's judgment. 
 As if the garment had been made for me ; 
 Therefore, I know she is about my height." * 
 
 And a reason asked for, the answer is often a " woman's 
 reason : " 
 
 " Of many good, I think him best. 
 
 Tour reason ? 
 
 I have no other, but a woman's reason ; 
 I think Mm so, because I think him so. " f 
 
 The way in which an Irish peasant answers ques- 
 tions is thus told by Sir Jonah Barrington : — " The Irish 
 peasant never answers any question directly. In some 
 districts, if you ask him where such a gentleman's house 
 is, he will point and reply, ' Does your honor see that 
 large house there, all amongst the trees, with a green 
 field before it ? ' You answer, ' Yes.' ' Well,' says he, 
 ' plaze your honor, tliafs not it. But do you see the big 
 brick house mth the cow-houses by the side of that 
 same, and a pond of water?' 'Yes.' 'Well, plaze 
 your honor, tliafs not it. But, if you plaze, look quite 
 to the right of that same house, and you'll see the toj) 
 of a castle amongst the trees there, and with a road 
 going down to it betune the bushes.' ' Yes.' ' Well, 
 plaze your honor, tliats not it neither — but if your honor 
 will come down this bit of a road a couj^le of miles, I'll 
 show it you, sure enough.'' "J 
 
 If in every-day life answers of ,an indefinite, loose 
 description of the kinds above noticed, are not unfre- 
 quently given, it need be no wonder, and may indeed be 
 
 * Two Gentlemen of Verona. t Ibid. 
 
 X Sir Jonah Barrington's Personal Sketches, toI. i. p. 154, ed. 1827.
 
 OF A WITNESS UNDER EXA3IINATI0N. 207 
 
 expected, that answers equally ina23propriate or singular 
 will sometimes come from a witness. And this expecta- 
 tion should incline the interrogator to meet all such 
 answers witli forbearance and courtes}^ 
 
 The following very droll interjections — for answers 
 they can hardly be called — were given by a witness, a 
 cutler at Sheffield, on the trial of Hardy. They occur 
 in Mr. Gibbs' cross-examination of him : 
 
 '' Q. Had any of the people in this Society [Consti- 
 tutional Society at Sheffield], to which you belonged, 
 any idea of making any attack upon either the King, or 
 the House of Lords ; had they any idea of altering the 
 government in this respect ? 
 
 A. I think they ought to have been sent to Bedlam 
 if they had. 
 
 Q. Had you, as one of that Society, any such inten- 
 tion yourself? 
 
 A. Just the same as flying to the sun. 
 
 Q. But to speak i3lain ; by that you mean, I sup- 
 pose, that you never had any such thought in your 
 mind ? 
 
 A. No, never." ^' 
 
 One very common way in which a witness supplies 
 an ansAver is, to suppose or assume something, and to 
 reason and conclude upon it, and the result is, what is 
 called a " reasoning answer." This kind of reply is 
 always objectionable, on the plain ground that the sup- 
 position or assumption may not authorize the conclusion 
 drawn from it. A witness, instead of saying that a par- 
 ticular thing was so, will say, it must have been so. On 
 these occasions, the witness is properly admonished 
 in this manner, — Do not tell us what must be, tell us 
 
 * Hardy's Trial (taken by Gumej^), vol. ii. p. 210.
 
 208 OF A WITKESS UNDER EXAMIIfATIOX. 
 
 what was." A witness (a woman) is asked, — "Have 
 you never declared to any body, that you had an expec- 
 tation of some provision from the cause now in hand ? " 
 The witness answers, "I could not declare it, as I had 
 no offer made me from the prosecutor."f Here the wit- 
 ness reasons on there being no offer made, and from the 
 want of it would have the inference drawn, she did not 
 make the declaration ; althouo;h it is manifest she misrht 
 have done this, notwithstanding the offer was not made. 
 It is obviously advantageous to the side examining 
 its own witness, that the witness be in a composed state 
 of mind, and free from any cause to ruffle his temper. 
 The advocate therefore examining him will probably 
 think it to be his first care, to remove any timidity in 
 the witness, to soothe all nervous excitement in him, to 
 set him as far as possible at his ease. This may often be 
 effected by, as an introduction to his evidence, asking him 
 questions of his name, age, j^lace of abode, and the like 
 simple inquiries easily answered. Self-possession being 
 infused into him at the outset, it will then be a chief 
 object to sustain it, by throughout the examination 
 addressing the witness in a gentle, conciliatory tone and 
 manner. It will plainly much assist to preserve the 
 witness's composure and self-possession, to interrogate 
 him in words unambiguous and easily understood ; and 
 if the witness be of humble life, to make use of com- 
 mon and homely words likely to be most familiar to 
 him ; and, as occasion is found, to borrow and take 
 advantage of provincial words and phrases, used in the 
 place or district where the witness lives. And on this 
 head it may be useful to bear in mind, that persons in 
 a low station of life understand and use many words in 
 
 * Frost's Trial (taken by Gumey), p. 466. 
 
 t Trial of Duchess of Kingstou, folio, j). 112.
 
 OF A WITNESS UNDER EXAMINATION. 209 
 
 a sense different from the common meaning^ of tliem 
 among educated j^ersons. The witness may not under- 
 stand the expressions of the advocate, and, on the other 
 hand, the advocate may not understand those of the 
 witness. A provincial pronunciation of words is also 
 a source of mistakes. 
 
 On Boswell telling Dr. Johnson of an earthquake, 
 which had been felt in Staffordshire, Dr. Johnson said 
 to him, — " Sir, it will be much exaggerated in public 
 talk; for, in the first place, the common people do not 
 accurately adapt their th15ughts to the objects ; nor, sec- 
 ondly, do they accurately adapt their words to their 
 thoughts : they do not mean to lie ; but taking no pains 
 to be exact, they give you very false accounts. A great 
 part of their language is proverbial. If any thing rocks 
 at all, they say it rocks like a cradle / and in this w^ay 
 they go on." * 
 
 " Clearness," said Wesley to one of his lay-assistants, 
 " is necessary for you and me, because we are to instruct 
 people of the lowest understanding; therefore we, above 
 all, if we tMnk with the wise, must yet 8]pedk with the 
 vulgar. We should constantly use the most common, 
 little, easy words (so they are pure and proper), which 
 our language affords. When first I talked at Oxford 
 to plain people in the castle or the town, I observed 
 they gaped and stared. This quickly obliged me to 
 alter my style, and adopt the language of those I sj^oke 
 
 to."t 
 
 " A poor Welsh woman leaving home to attend an 
 annual meeting of the Methodists, replied to me, who 
 had questioned her as to the numerical amount of the 
 probable assemblage, that ' perhajjs there would be a 
 
 * Life of Johnson, by Boswell, vol. vi. p. 272, ed. 1835. 
 t Life of Wesley, by Southey, vol. ii. ji. 79, ed. 1820.
 
 210 OP A WITNESS UNDER EXAMINATION. 
 
 matter of four millions.' Tliis iu little Caernarvou, that 
 by no possibility could accommodate as many thou- 
 sands." " 
 
 " The blade-bone of a shoulder of mutton is called in 
 Scotland ' a poor man,' as in some parts of England it 
 is termed a ' poor Knight of Windsor ; ' in contrast, it 
 must be presumed, to the baronial Sir Loin. It is said 
 that in the last age an old Scottish peer, whose condi- 
 tions (none of the most gentle) were marked by a 
 strange and fierce-looking exaggeration of the Highland 
 countenance, chanced to be iiidisposed while he was in 
 London attendino- Parliament. The master of the hotel 
 where he lodged, anxious to show attention to his noble 
 guest, waited on him to enumerate the contents of his 
 well-stocked larder, so as to endeavor to hit on some- 
 thing which might suit his appetite. ' I think, landlord, 
 said his lordship, rising up from his couch, and throw- 
 ing back the tartan plaid, with which be had screened 
 his grim and ferocious visage, — I think I could eat a 
 morsel of a "poor man.'' The landlord fled in terror, hav- 
 ing no doubt that his guest was a cannibal, who might 
 be in the habit of eating a slice of a tenant, as light 
 food, when he was under regimen." f 
 
 " The magistrates were closely interrogated before the 
 House of Peers, concerning the particulars of tl^e mob ; 
 and the patois^ in which these functionaries made their 
 answers, sounded strange in the ears of Southern nobles. 
 The Duke of Newcastle having demanded to know, "with 
 what kind of shot the guard, which Porteous commanded, 
 had loaded their muskets, was answered naviely, ' Ow, 
 just sic as ane shoots dulses 2iQ.(\. fools with.' This reply 
 was considered as a contempt of the House of Lords, 
 
 * De Quincy's Works (Paper on Cicero), p. 179, ed. 1858. 
 t Bride of Lammermoor. note to eh. xi.
 
 OF A WITNESS UNDER EXAMINATION. 211 
 
 and tlie Provost would have suffered accordingly, but 
 that the Duke of Argyle explained, that the expression, 
 properly rendered into English, meant ducks and water- 
 
 fowur^' 
 
 Pepys mentions that he was present at Guildhall to 
 hear a trial before Lord Chief Justice Hide, relating to 
 a ship deserted by the master and crew on the coast of 
 France, for the purpose of cheating the insurers. " There 
 was," he says, " all the great counsel in the kingdom in 
 the cause ; but after one witness or two for the plaintiff, 
 it was cried down as a most notorious cheat ; and so the 
 jury, without going out, found it for the plaintiff." 
 " But," he adds, " it was pleasant to see what mad 
 sort of testimonies the seamen did give, and could not 
 be got to speak in order ; and then their terms, such as 
 the judge could not understand ; and to hear how sillily 
 the counsel and judge would speak, as to the terms ne- 
 cessary in the matter, would make one laugh."f 
 
 Very often a defect in an answer should not be laid 
 on the witness, but on the interrogator. If an advocate 
 makes use of an expression or word which the witness 
 does not understand, he sometimes gives an answer, 
 fancying he knows, but in reality without understand- 
 ing the meaning of the question : the reply may be a 
 mere echo of it. As in this instance, where the witness 
 was a " small farmer " : 
 
 " Q. Did you hear N. predict any thing ? 
 
 * Note in Heart of Mid-Lothian. [Lord Eldon, when examined for a 
 scholarship, in answer to the questions usual on such occasions, stated his 
 father was a ''fitter" (factor), and he so pronounced the word as to be 
 mistaken for fiddler. On the close of the examination, the President of 
 the Board of Examiners said. There is no doubt young Scott is by far the 
 best scholar, but has told us his father is a fiddler, and I do not quite like 
 to take the son of a fiddler into the College. — 1 Life of Lord Eldon, 
 33 Atn. ed.] 
 
 t Pepys' Diary, vol. ii. p. 69, 6th ed.
 
 212 OF A WITNESS imDEE EXAMIEATIOIil. 
 
 A. I did not hear liim predict any tiling. 
 
 Q. Do you know what a prediction is ? 
 
 A. No ; I have been at work ever since I was seven 
 years old." 
 
 " Having talked of the strictness with which wit- 
 nesses are examined in courts of justice, Dr. Johnson 
 told us, that Garrick, though accustomed to face multi- 
 tudes, when produced as a witness in Westminster Hall, 
 was so disconcerted by a new mode of public appear- 
 ance that he could not understand what was asked. It 
 was a cause where an actor claimed a free benefit, that 
 is to say, a benefit without paying the expense of the 
 house ; but the meaning of the term was disputed. 
 Garrick was asked, 'Sir, have you a free benefit?' 
 ' Yes.' ' Ui^on what terms have you it ? ' ' Upon — the 
 terms — of — a free benefit.' He was dismissed as one 
 from whom no information could be obtained." * 
 
 Here it is possible that Garrick was disconcerted, 
 but his answer was strictly correct, although the court 
 gained no information from it. He had the free benefit 
 upon the terms of a free benefit. According to the 
 above report, he was not asked what those terms were. 
 If the question had been put to him : what are the 
 terms of a free benefit ? it is scarcely possible to imag- 
 ine Garrick so disconcerted as not instantly replying, — 
 exemption from paying the expense of the house. 
 
 Docility and friendliness of a witness are of the 
 utmost consequence. And courtesy towards him is a 
 probable means to obtain and keep them ; courtesy 
 
 * Life of Johnson, by Boswell, vol. iv. p. 266, ed. 1835. [This effect 
 upon a person, of getting him iato a situation to which he is unaccustomed, 
 is noticed by Anthony Trollojje in one of his novels : Lily Dale (locq.) " I 
 always like to get him (Hopkins, the gardener) into the house, because he 
 feels himself a little abashed by the chairs and tables ; or, perhaps, it is 
 the carpet that is too much for him. Out on the gravel walks he is such 
 a terrible tyrant, and in the green-house he almost tramples on one."]
 
 OF A WITNESS UNDER EXAMINATION. 213 
 
 in words, voice and manner. Rudeness or incivility 
 toward him is very likely to init liim out of temper, 
 to make him lay back his ears.* 
 
 Little peculiarities of his nature must be humored ; 
 his sense of personal dignity must not be offended ; if 
 he be deaf, or have an impediment in his speech, this 
 infirmity must not be a subject of merriment ; and if 
 his voice be naturally or from timidity low, he should 
 be gently, not roughly, exhorted to speak up. So, if 
 the witness exhibit any clownish or awkward habit or 
 manner, it may be better to let it pass unnoticed than 
 to attempt to correct it. 
 
 It is a common practice to tell a witness, over and 
 over again, to mind he is upon his oath. Few witnesses 
 bear this repeated admonition j)atiently. But when 
 used in moderation, and free fi*om an angry tone, the 
 witness has no reason to comp]ain of it, for it is known 
 that some persons will saj/ what they will not sivear.j- 
 
 " A cause was tried in the Court of Session, where 
 the j)rincipal fact to be ascertained was, whether a ship- 
 master, who used to frequent the Western Highlands 
 and Isles, was drowned in one particular year, or in the 
 year after. A great number of witnesses from those 
 parts were examined on each side, and swore directly 
 contrary to each other upon this simple question. One 
 of them, a very respectable chieftain, had previous to 
 this public examination, not only said, but attested 
 under his hand, that he had seen the ship-master in the 
 year subsequent to that in which the court was finally 
 satisfied he was drowned. AVhen interrogated with the 
 strictness of judicial inquiry, and under the awe of an 
 
 * Hor., Serm. i. 9, 20. 
 
 t [See in the Appendix, post, some valuable suggestions for tlie conduct 
 of examinations of witnesses.]
 
 214 OF A WITJfESS UNDER EXAMINATION. 
 
 oatli, lie recollected liimself better, and retracted what 
 lie had formerly asserted, apologising for liis inaccuracy 
 by telling the judges, ' A man will say what he will' 
 not swear.'' By many he was much censured, and it 
 was maintained that every gentleman would be as at- 
 tentive to truth without the sanction of an oath as 
 with it." * 
 
 This last observation may be true in the case of a 
 gentleman, and of many other persons, when they speak 
 considerately ; but if they are telling their tale thought- 
 lessly, without proper reflection and caution, it may be 
 serviceable to themselves, as well as to the cause of 
 truth, to 2)ut them in mind they are speaking " under 
 the awe of an oath." 
 
 The importance and use of an oath are thus adverted 
 to by ArchbishojD Seeker in one of his sermons upon 
 oaths : — " It must be owned great numbers will certainly 
 speak truth, without an oath ; and too many will not 
 sj)eak it with one. But the generality of mankind are 
 of a middle sort ; neither so virtuous as to be safely 
 trusted, in cases of importance, on their bare word ; nor 
 yet so abandoned, as to violate a more solemn engage- 
 ment. Accordingly, we find by experience that many 
 will boldly say, what they will by no means adventure 
 to swear; and the difference, which they make between 
 these two things, is often indeed much greater, than 
 they should ; but still it shows the need of insisting on 
 the strongest security. When once men are under that 
 awful tie, and, as the Scripture phrase is, have bound 
 their souls with a bond (Numb. xxx. 2), it composes 
 their passions, counterbalances their prejudices and 
 interests, makes them mindful of what they promise, 
 and careful of what they assert ; puts them upon exact- 
 
 * Life of Johnsoa, by Boswell, vol. v. p. 141, ed. 1835.
 
 OF A WITNESS UNDER EXAMINATION. 215 
 
 ness in every circumstance : and circumstances are often 
 very material things. Even the good might be too neg- 
 ligent, and the bad would frequently have no concern at 
 all, about their words, if it were not for the solemnity 
 of this religious act. And a farther advantage of it is, 
 that when we have thus had the stronsjest assurance 
 giv^en us, which we can have, concerning any matter, 
 we are naturally disposed to acquiesce in it ; and 
 an oath for confirmation becomes the end of all strife 
 (Heb. vi. 16)." * 
 
 It may be a peculiarity of a witness, not to like to 
 be stopped in a story he is telling. " You shall hear," 
 said the Jockey ; but I have one thing to beg of you, 
 which is, that when I have once begun my history, you 
 will not interrupt me with questions ; I don't like them, 
 they stops one, and puts one out of one's tale, and are 
 not wanted ; for any thing which I think can't be under- 
 stood, I should myself explain, without being asked."f 
 Sancho Panza, a thoroughly good-tempered fellow, came 
 quite to a stand, when interrupted in his story of the 
 goats passing the river. J 
 
 If a question may give pain to a witness, as it may 
 do if it touch some chord of sorrow occasioned by 
 death, that of a child or parent ; or if it touch on some 
 failing or misconduct of the witness himself, or of his 
 relative or friend ; the question should be waived, if 
 possible : but if inevitable, any seeming unfeelingness 
 in it will be avoided, and the sharpness of it much 
 abated, by introductory expressions, dej^loring the ne- 
 cessity of asking it, and representing it as an unwelcome 
 and imperative exercise of duty. Cicero, in his own 
 
 * Seeker's Sermon's, vol. iv. p. 233, ed. 1771. 
 
 t Borrow's Romany Rye, vol. ii. p. 125, ed. 1857. 
 
 I Don Quixote, vol. i. cli. xx.
 
 216 OF A WITXESS UKDEE EXATNIINATIOy. 
 
 person, farnislies an admirable instance of this consid- 
 erate feeling. In his defense of Cluentius, part of tlie 
 charge against whom was, that of having poisoned a 
 son of one of the witnesses, he thus sjoeaks, — " I deny that 
 this young man, who you say died immediately after 
 drinking from the cup, died on that day at all. It is a 
 great and impudent falsehood. Look at the facts. I say 
 that he came to the dinner unwell, and, with the imj^ru- 
 dence of youth, indulged too much at it ; that he was 
 ill for some days after ; and so died. AVho is the wit- 
 ness that sj^eaks to this ? he who mourns for his death, — 
 his father ; his father, I say, who, from his parental dis- 
 tress, would rise from the place where he is sitting, to 
 witness against Cluentius, if he had the slightest sus- 
 picion of his guilt ; he, by his testimony, acquits him. 
 But [addressing the father] stand up, I pray, a moment, 
 while, however painful it may be, you repeat this ne- 
 cessary evidence ; in the course of which I will not 
 detain you long ; you have acted most righteously, in 
 not suffering your sorrow to favor a false charge against 
 a man who is innocent." * 
 
 It is the cross-examination, however, which gives a 
 witness (an honest one is still meant) the most trouble : 
 here he falls into the hands of an enemy. 
 
 The witness, when he goes to be examined, takes it 
 for granted he is about to relate certain of the facts, 
 from which the pending issue proceeds, and these facts 
 only ; and it never enters into his head, that questions 
 will be put to him about events and matters which form 
 no part of his story, and which perhaps happened years 
 ago, and long before the present subject of inquiry had 
 any existence. Such questions are, however, every day 
 put, and of course they take the witness by surprise ; 
 
 * Cic. Pro Cluentio, 60.
 
 OF A WITNESS UNDER EXAMINATION. 217 
 
 and lie is often not prepared on a sudden to recollect 
 the matters so inquired into, and consequently any dif- 
 ficulty he felt before in giving his evidence may by this 
 means be tenfold augmented. On such an unexpected 
 question being asked, it may well pass in his mind, — 
 " I can say little more than I have studied, and that 
 question's out of my part." * 
 
 In a prosecution for high treason, a witness for the 
 Crown would not expect to have questions put to him 
 (as on Crossfield's trial they were put to the witness 
 Winter) relating to a superstitious story, which about, 
 as the witness fancied, a bewitched hare he was in the 
 habit of telling ; a story having nothing to do with the 
 trial, except as it might aftect the witness's credit, by 
 suggesting his mental incapacity. " Do you remember 
 any thing about the story of a hare ; perhaps you may 
 think it odd you should be asked that question ? " In 
 this manner was the subject introduced to the wit- 
 ness.f 
 
 In a case of high treason, a witness for the Crown 
 would not expect to be interrogated (as on Hardy's 
 trial the witness Alexander was) about different mas- 
 ters he had lived with, a quarrel he had with one of 
 them ; and about different visits (ordinary family visits) 
 he had paid to his aunts ; these things having nothing 
 to do with the trial, except for the purpose of inferring,, 
 that, because the witness's memory was weak on these 
 points, it was not likely he could remember, as accord- 
 ing to his evidence he did, a speech he had heard at a 
 political meeting.;]; 
 
 "Butler was placed at the table for examination. 
 
 * Twelfth Night. 
 
 t Crossfield's Trial (taken by Gurney), p. 120. 
 I Hardy's Trial (taken by Gurney), vol. ii. pp. 227, 240. 
 15
 
 218 OF A WITI^fESS UNDER EXAMINATION. 
 
 With a frankness wliicli at once became his calling and 
 character, Butler avowed his involuntary presence at 
 the murder of Porteous, and entered into a minute de- 
 tail of the circumstances, which attended that unhappy 
 affair. All the particulars were taken minutely down 
 from Butler's dictation, "When the 'narrative was con- 
 cluded, the cross-examination commenced, which is a 
 2:)ainful task even for the most candid witness to undergo, 
 since a story, especially if connected with agitating and 
 alarming incidents, can scarce be so clearly and dis- 
 tinctly told, but that some ambiguity and doubt may 
 be thrown upon it by a string of successive and minute 
 interroo-atories." * 
 
 The prospect of a cross-examination has even terri- 
 fied a Chief Justice of Ireland. Mr. Phillips, in his book 
 on " Curran and his Cotemjooraries," gives this anecdote 
 in his notice of Chief Justice Bushe : — " There were 
 occasions on which he was actually timid. Never shall 
 I forget the state of nervous excitement, into which he 
 worked himself, on being summoned to give evidence 
 before the Irish Committee in the House of Lords in 
 1839. I think I see him at this moment as I saw him 
 then, hawking his carpet-bag full of documents up and 
 down the corridors, now walking himself out of breath, 
 now pausing to recover it, now eyeing the bag, on which 
 he much counted, and ag-ain o-azins; about in absolute 
 bewilderment. At last, in much perturbation, he ex- 
 claimed, — ' the character of a witness is new to me, 
 Phillips. I am familiar with nothing here. The mat- 
 ter on which I come is most important. I need all my 
 self-possession; and yet I protest to you, I have only 
 one idea, and that is, Lord Brougliaiii cross-examining 
 me.'' " f « 
 
 * Heart of Mid-Lotbian. 
 
 t Phillips' Curran and his Cotemiioraries, p. .443, 4th ed.
 
 OF A WITNESS UNDER EXAMINATION. 219 
 
 It is to be feared that an object of a cross-examina- 
 tion too often is, to raise a laugli, or to betray ignorant 
 witnesses into confusion and trifling mistakes. It fre- 
 quently happens, that innocently enough, and through 
 sheer bewilderment, the witness utters mistakes and 
 contradictions, dangerous, if not fatal, to his credit, and, 
 as a consequence, putting justice in peril: — "Young 
 Fulcher, however, got off. .... He gave coun- 
 sellor P. one and twenty shillings to defend him ; who 
 so frightened the principal evidence, a plain honest 
 farming-man, that he flatly contradicted what he had 
 at first said, and at last acknowledged himself to be all 
 the rogues in the world, and, amongst other things, a 
 perjured villain." * 
 
 The temper of a witness is often tried,- and his feel- 
 ings hurt, by his cross-examination on his past conduct. 
 He may have been charged with this or that offense ; 
 he may have been in prison. Questions on these mat- 
 ters are often properly put, with a veiw to see how far 
 the witness is now entitled to credit ; yet if the conduct 
 inquired into is that of some years ago, and thus unlike- 
 
 * Borrow's Romany Rye, vol. ii, p. 140, ed. 1857. [Trencli, in bis Reali- 
 ties of Irish Life, in describing a trial for the murder of one Hall, thus 
 pictures the cross-examination of a witness, who, together with the prisoner 
 on trial, had been liired to commit the murder. " After the witness had 
 detailed how he had himself undertaken to be the murderer, and had twice 
 stolen behind Mr. Hall for the purpose of shooting him in the back, and 
 had only given up his design because he fancied it was ' unlucky,'' the 
 prisoner's counsel said, ' then, it was not your conscience which smote 
 you ? ' ' Not a bit ! ' replied the man. ' And you stole up behind the poor 
 old gentleman to shoot him for money ■:'' said the lawyer. ' / did.'' ' I sup- 
 pose you would do any thing for money ? ' ' / tcould,' replied the man, 
 quite unappalled and growing desperate. The lawyer still continued to 
 excite him : ' You would shoot your father for money, I suppose ? ' * I 
 would,' exclaimed the man furiously. ' Or your mother .? ' ' / would.'' 
 * Or your sister f ' / icoxdd.'' ' Or your Irother ? ' continued the counsel. 
 ' Ay, or yourself either ! ' cried the infuriated ruffian, almost leaping from 
 his chair," &c.]
 
 220 OF A WITIsESS r^TDER EXAMINATION. 
 
 ly to injure liis credit now, it may be great and need- 
 less cruelty to bring again to light sucli bygone stains 
 on his character. 
 
 Archbishop AYhately, in his Annotations on Lord 
 Bacon's Essay on Judicature, expresses the folio wing- 
 opinion on different modes of examining a witness : — 
 " I think that the kind of skill, by which a cross-ex- 
 aminer succeeds in alarming, misleading, or bewilder- 
 ing an honest witness, may be characterized as the most, 
 or one of the most, base and dejiraved of all possible 
 employments of intellectual power. Nor is it by any 
 means the most effectual way of eliciting truth. The 
 mode best adapted for attaining this object is, I am con- 
 vinced, cj^uite different from that, by which an honest, 
 simple-minded witness is most easily baffled and con- 
 fused. I have seen the experiment tried, of subjecting 
 a witness to such a kind of cross-examination by a 
 practical lawyer, as would have been, I am convinced, 
 the most likely to alarm and perplex many an honest 
 "witness, without any effect in shaking the testimony ; 
 and afterward,, by a totally oj^posite "^mode of examina- 
 tion, such as would not have at all perplexed one, who 
 was honestly telling the truth, that same Avitness was 
 drawn on, step by step, to acknowledge the utter falsity 
 of the Avhole. Generally speaking, a quiet, gentle, and 
 straightforward, though full and careful, examination 
 will be the most adapted to elicit truth ; and the ma- 
 noeuvres, and the brow-beating which are the most adapt- 
 ed to confuse an honest, simple-minded witness, are just 
 what the dishonest one is the best prepared for. The 
 more the storm blusters, the more carefully he Avi*aps 
 round him the cloak, which a warm sunshine will often 
 induce him to throw oftV * 
 
 * Bacon's Essays, with Annotations by Archbishop Whately, p. 495, ed. 
 1856.
 
 OF A WITNESS UNDER EXAMINATION. 221 
 
 " Give him fair play," said Lord Chief Justice Eyre 
 to Erskine, when, on Hardy\s trial, he was worrying 
 the witness Alexander.* 
 
 Except in the case of a dishonest witness, one pre- 
 pared to trifle with his oath, a witness may justly put 
 in, and stand on, a right to receive courteous, or at 
 least inoffensive, treatment at the hands of his ex- 
 aminer. In his character of witness he is a servant to 
 justice ; by the sacredness of an oath he binds himself 
 to speak the truth ; and while he fulfills the duty so 
 imposed on him, he is entitled to the respect, which, by 
 the usage of society, the observance of any duty com- 
 mands and receives. 
 
 It is not right, in a question to a witness, to address 
 him by, or to apply to him, a name, which, in a com- 
 mon acceptation of it, implies dishonor or disgrace.f 
 In a question to him, it is not right, and as it would 
 seem not lawful, to call him a spy, a character com- 
 monly of bad odor. On the trial of Hardy, one of the 
 questions put by Erskine in cross-examining the witness 
 Alexander, was, — " Then, in plain English, you went 
 there [a meeting of the London Corresponding Society] 
 as a spy ; did you not ? " J This question passed with- 
 out observation ; but later in the trial, when Erskine 
 applied the same rej^roachful word to another witness, 
 Sanderson, the expression was thus objected to : 
 
 * Hardy's Trial (taken by Gumey), vol. ii. p. 239. 
 
 t [The somewhat celebrated case of Thellwall v. Yelverton, was an ac- 
 tion in form for necessaries supplied to the alleged wife of the defendant ; 
 but which was really to test the legality of the defendant's marriage. The 
 alleged wife was a Miss Longworth, but she was known as, and called her- 
 self, Mrs. Yelverton, being examined as a witness on the trial, one of the 
 counsel addressed her as Miss Longworth ; on her objecting to this the 
 •court ruled that counsel must address her as Mrs. Yelverton.] 
 
 X Hardy's Trial (taken by Gumey), vol. ii. p. 239.
 
 222 OF A WITNESS UNDER EXAMINATION. 
 
 " ErsMne. What date have you taken, good Mr. 
 Spy? 
 
 Lord Chief Justice Eyre. Tliese observations are 
 more j^roper, when you come to address tlie jury. 
 
 2fr. Attorney Genercd {Sir John Scott). Really 
 that is not a proper way to examine witnesses. Lord 
 Holt held strouo' lano-uag-e to such sort of an address 
 from a counsel to a witness, who avowed himself a- 
 spy." 
 
 On the late trial of Bernard, part of the cross-ex- 
 amination by Mr. Edwin James (now of the New York 
 bar) of the witness Kogers, of the detective police, 
 raised the following discussion on applying the term 
 spy to a witness during his examination : 
 
 " Mr. Jemies. Did you go there as a sj^y ? 
 
 Rogers. I went by the direction of the Commis- 
 sioners of Police to attend a public meeting there. 
 
 Mr. James. AYhat did you go there for ? 
 
 Rogers. To take notes of who were there, and 
 what was said. 
 
 Mr. James. You went there as a spy, didn't you ? 
 
 The Attorney General. It would be fairer for the 
 witness, as well as to those who sent him, if you were 
 to ask what his instructions were. 
 
 Mr. James. Well, what were your instructions ? 
 
 Did you go as a spy ? 
 
 The Chief Justice {Lord Cam])helT). You had bet- 
 ter get the facts from him, and you can draw any infer- 
 ence you please. 
 
 Mr. 'James. It is a plain English question, and I 
 submit that I may ask it. 
 
 * Hardy's Trial (taken by Gumey), vol. ii. p. 335.
 
 OF A WITNESS UNDER EXAMINATION. 223 
 
 The Attorney General objected to it. 
 
 Mr. James. The same question lias been put before, 
 as your lorclsliips know, in state trials. I contend I am 
 entitled to put tlie question, did you go there as a spy ? 
 
 The Chief Baron. If an objection be taken, the 
 point had better be discussed in regular form. 
 
 The Attorney General. I submit that my learned 
 ■ friend has no right to put a question, the affirmative 
 answer to which would bestow an opprobrious name 
 upon the witness, and upon those who instructed him. 
 My learned friend has a right to inquire minutely into 
 all that the witness has done or said — 
 
 The Lord Chief Justice. And into all the direc- 
 tions he received. 
 
 The Attorney General. I was going to add, and 
 into all and every direction that he received. But I 
 conceive that he has no right whatever to put a ques- 
 tion, that embodies his own description of something, 
 
 that may or may not have taken place 
 
 I submit the question is altogether irregular, and con- 
 trary to the law and practice of the courts. 
 
 3fr. James. I contend that I am entitled to put 
 this question. On Hardy's trial the question Avas j^ut 
 by Mr. Erskine in these terms, — " Then, in plain Eng- 
 lish, you went there as a spy ? " and it was not ob- 
 jected to. 
 
 The Lord Chief Justice. Then there was no deci- 
 sion. 
 
 3L\ James. I do not say that there was a decision, 
 but that trial was presided over by the highest author- 
 ities. That question was not objected to by the then 
 Attorney General, and no remark was made upon it 
 by the judges. 
 
 2he Chief Baron. But on the present occasion the
 
 224 OF A WITNESS UNDER EXAMINATION. 
 
 question is objected to, and we are called upon to de- 
 cide the point. 
 
 Mr. James. I submit that I am entitled to put 
 tlie question. The witness may decline to answer it, if 
 he pleases ; that is another matter. 
 
 Tlie Lord Chief Justice, after consulting mth the 
 other learned judges (the Chief Baron Pollock, Mr. 
 Justice Erie and Mr. Justice Crowder), said, — The 
 question being objected to, I am of opinion that it is 
 irregular — not on the ground that the witness is called 
 on to criminate himself, and may refuse to answer ; 
 but on the ground that he is called upon to draw an 
 inference from the facts. It will be open to Mr. James 
 to denominate the witness as a spy hereafter if he 
 think fit ; but I am of opinion that he cannot ask the 
 witness, ' Now, did you go as a spy ? ' He may ask 
 under what directions he went, for what j^urpose he 
 went, what he did when he was there, what report he 
 afterward made to those who employed him ; and those 
 facts being ascertained, he may apply the term ' spy,' if 
 he pleases, to the person who so acted. But I am of 
 opinion, that the question, ' Then you went as a spy ? ' 
 is not regular, and that it cannot be properly put." ^' 
 
 From an unwilling, dishonest witness, one that is 
 prepared to trifle with his oath, it is, as it may be ex- 
 pected, often difficult, very difficult, to get the answer 
 desired, and which it is in his jDower to give. He is 
 aware of the object of the examination, he knows the 
 exact answer that is fished for, and he exerts all his 
 skill and cunning not to come within the net spread out 
 for him. He is obliged to come very near, all but in 
 it. But so long as he can, he keeps pertinaciously clear 
 of it. To a series of questions, sorely j^ressing him, 
 
 * The London Times, April 14, 1858.
 
 OF A WITNESS UNDER EXAMINATION. 225 
 
 and increasing in power as tliey proceed, he answers 
 evasively, sometimes as if he did not understand the 
 question, or as if the question were quite different 
 from what it is. So long as he is able, he imitates the 
 j)oor maniac Madge Wildfire, by laughing in his sleeve, 
 and saying to himself — " catch me if you can : " 
 
 " Pursuing the path which Madge had chosen, the 
 thatched roofs of houses were seen embosomed in a 
 tuft of trees at some distance. The track led in that 
 direction, and Jeannie, therefore resolved, while Madge 
 continued to pursue it, that she would ask her no ques- 
 tions ; having had the penetration to observe, that by 
 doing so she ran the risk of irritating her guide or 
 awakening suspicions. 
 
 Madge, therefore, uninterrupted, went on with the 
 wild disjointed chat, which her rambling imagination 
 suggested ; a mood in which she was much more <3om- 
 municative respecting her own history, and that of 
 others, than when there was any attempt made, by di- 
 rect queries, or cross-examinations, to extract informa- 
 tion on these subjects. 
 
 ' It's a queer thing,' she said, ' but whiles I can 
 speak about the bit bairn and the rest of it, just as if 
 it had been another body's and not my ain; and 
 whiles I am like to break my heart about it — Had you 
 ever a bairn Jeannie V . 
 
 Jeannie rej^lied in the negative 
 
 ' Ay ; but your sister had, though — and I ken what 
 came o't too.' 
 
 ' In the name of heavenly mercy,' said Jeannie, for- 
 getting the line of conduct, which she had hitherto 
 adopted, ' tell me but what became of that unfortu- 
 nate babe, and ' — 
 
 Madge stopped, looked at her gravely and fixedly.
 
 226 OF A WITNESS UNDER EXAMINATION. 
 
 and tlien broke into a great fit of langMng — ' Aha, 
 lass, — catcli me if you can — I think it's easy to gar you 
 trow ony thing. How sulci I ken ony thing o' your 
 sister's wean ? '" ^ 
 
 An unwilling witness will sometimes make up his 
 mind, that, if possible, he will not give the answer de- 
 sired, unless a question j^ointed direct to the answer is 
 put to him. When Bertram Risingham comes to Os- 
 wald Wyclifte from the battle of Marston Moor, and is 
 giving him some account of the fight, he very well 
 knows, that what WyclifiTe chiefly wishes to know is, 
 that Phili]:) of Mortham fell in it. But Bertram will 
 have the question put to him " in simple terms and 
 plain ; " and until it is so put, — " Philip of Mortham, 
 lives he yet ? " — Bertram keeps Wyclifl:e in suspense : 
 
 " In vain 
 He strove, by many a "winding train, 
 To lure his sullen guest to sliow, 
 Unasked tlie news he longed to know." f 
 
 To overcome an unwilling, dishonest witness may 
 require that the interrogator have more than ordinary 
 sagacity, have great experience in the examination of 
 witnesses, and be possessed, besides, of ever enduring 
 patience, and a temper proof against discomposure. 
 The obstinacy of such a witness may sometimes be sur- 
 mounted by putting him oif his guard, through the in- 
 troduction of some subject, which will amuse his mind, 
 and for the moment withdraw his attention from the 
 point of his examination, and make him forget his pur- 
 pose of resistance. This is consonant with a point of 
 artifice mentioned by Lord Bacon in his Essay on Cun- 
 ning ; which is, " that when you have any thing to ob- 
 tain of present dispatch, you entertain and amuse the 
 
 * Heart of Mid-Lothian. f Rokeby, canto i. st. 10, 12, 14.
 
 OF A WITNESS UNDER EXAMINATION. 227 
 
 -'-> 
 
 party, with whom you deal, with some other discourse 
 that he be not too mucli awake to make objections. I 
 knew, he says, a counsellor and secretary, that never 
 came to Queen Elizabeth with bills to sign, but he 
 would always first put her into some discourse of state, 
 that she mi2;ht the less mind the bills." 
 
 Such a witness may also be surprised into an an- 
 swer. In the same Essay on Cunning, Lord Bacon 
 says, — " A sudden, bold, and unexpected question doth 
 many times surprise a man, and lay him open. Like to 
 him, that, havinii: chano-ed his name, and walkinor in 
 Paul's, another suddenly came behind him, and called 
 him his true name, whereat straightways he looked 
 back." 
 
 In the following conversation, the thing wanted to 
 be known was disclosed by an expression hastily used : — 
 
 " What do you think of this affair between Lord E. 
 and his brother ? 
 
 What affair ? 
 
 Why, you know the news, surely. F. T. turns out 
 as brave a fellow as any of us ; for instead of having 
 run away, he was at the moment engaged in an attempt 
 to murder his brother, or cousin, or some such near re- 
 lation. 
 
 I believe you are misinformed. 
 
 I am told one J. acted as a second to them both on 
 the occasion. 
 
 Sir ! you are misinformed ; Captain J. knew nothing 
 of any such matter as you refer to. I am Captain J. 
 
 I guessed as much before. I only wished to let you 
 know what the world may say. 
 
 The world may tell what lies it pleases ; but I was 
 not present at the rencontre between E. and T. ; I was 
 some hundred miles off.
 
 228 OF A WITl^ESS UNDER EXAMINATION. 
 
 There now, there ivas a rencontre between them — 
 the very thing I wanted to know. 
 
 I desire you will found nothing on an expression 
 hastily used to vindicate myself from a false aspersion. 
 I only meant to say, if there was an affair, such as you 
 talk of, I knew nothing of it." ^ 
 
 In the case of O'Coigly, O'Connor, and others, tried 
 in May, 1798, for high treasou, one of the witnesses for 
 the Crown, Hugh Bell, plainly an unwilling witness, 
 proved that the direction of a letter, dated the 24th 
 February in the same year, was in his own handwriting ; 
 but the Attorney General (Sir John Scott) failed in his 
 attemj)t to make him say, at whose instance he wrote 
 the address ; although, under the circumstances, it was 
 next to impossible the witness could, in so short a time, 
 have forgotten it. The object of the Attorney General 
 was, to prove that he wrote the direction at the instance 
 of Mr. O'Connor, one of the prisoners. 
 
 The following is the examination on this point : — 
 
 " Q. Did 5^ou direct any letter, at the instance of 
 Mr. O'Connor, upon Saturday the 24th ? 
 
 A. Not that I recollect. 
 
 Q. Look at that direction ; is not that your hand- 
 writing ? 
 
 A. It is. 
 
 Q. At whose instance did you write that address 
 u23on that letter \ 
 
 A. That I cannot tell. 
 
 Q. Mr. Bell, you are a merchant in Charterhouse- 
 square — you have directed a letter, which bears date 
 the 24th of February, to Mr. William Williams — do 
 you mean to say you cannot tell at whose instance you 
 directed it ? 
 » 
 
 * St. Rouan's Well.
 
 OF A WITNESS UNDER EXAMINATION. 229 
 
 A. I do, for I have no recollection of directing it at 
 all ; nor sliould I know that I ever had directed it, but 
 that I know my own handwriting. 
 
 Q. You mean to swear, that if it was not for its 
 being your own handwriting, you should have no recol- 
 lection that you ever directed it ? 
 
 A. Positively. 
 
 Q. You do swear it is your handwriting, and that 
 you did direct it ? 
 
 A. Yes, from its being my handwriting. 
 
 Q. Have you any correspondent of that name ? 
 
 A. None. 
 
 Q. Why, Mr. Bell, have you never said at whose 
 instance you directed it ? 
 
 A. I never have. 
 
 Q. You, however, did direct that letter ? 
 
 A. I directed it. 
 
 Q. Pray, Mr, Bell, do you know a person of the 
 name of William AVilliams ? 
 
 A. I do not. 
 
 Q. Do you mean to say, then, that you addressed 
 that letter, 'Mr. William Williams, Fountain Inn, Can- 
 terbury,' so lately as February, 1798, but that you have 
 not the least recollection how you came to address that 
 letter ? 
 
 A. I direct a great many letters every day of my 
 life ; ^nd if this letter, or any other, was brought to me 
 by a servant, or any body else, to direct, I should do it 
 with a great deal of pleasure, and it would make no 
 impression, probably, upon me — in this case it has 
 not." * 
 
 * Trial of O'Coigly and others (taken by Gurney), ijp. 87, 183, 184, 197, 
 500.
 
 230 OF A WITNESS UNDEE EXAMINATION. 
 
 The treatment wliicli au unwilling, dishonest wit- 
 ness would receiv^e at the hands of Curran, is thus de- 
 scribed by Phillips : — " At cross-examination, the most 
 difficult, and by far the most hazardous part of a barris- 
 ter's profession, he [Curran] was quite inimitable. There 
 was no plan which he did not detect, no web which he 
 did not disentangle ; and the unfortunate wretch, who 
 commenced with all the confidence of preconcerted per- 
 jury, never failed to retreat before him, in all the con- 
 fusion of exposure. Indeed, it was almost impossible 
 for the guilty to offer a successful resistance. He argued 
 he cajoled, he ridiculed, he mimicked, he played, off the 
 various artillery of his talent upon the witness: he 
 would affect earnestness upon trifles, and levity uj^on 
 subjects of the most serious import, until at length he 
 succeeded in creating a security that was fatal, or a sul- 
 lenness that produced all the consequences of prevarica- 
 tion. No matter how unfair the topic, he never failed 
 to avail himself of it ; acting upon the princij^le that, in 
 law as w^ell as in war, every stratagem was admissible. 
 If he was hard pressed, there was no peculiarity of per- 
 son, no singularity of name, no eccentricity of profession, 
 at which he would not grasp, trying to confound the 
 self-possession of the witness by the, no matter how ex- 
 cited, ridicule of the audience." - 
 
 In the case of an unwilling, dishonest witness, it is 
 plain it is in his power to keep the truth to hims^f; no 
 question, no skill, no artifice, may be able to extract it 
 from him. What reply can be given to — " I don't recol- 
 lect," " non mi ricordo " ? And if, instead of being 
 humored and coaxed, he meets with censure in severe 
 language and manner, he is very likely to harden his 
 forehead, and bid defiance to his opj)onent, presenting 
 
 * Phillips' Curran and his Cotemporaries, p. 80, 4th edit.
 
 OF A WITNESS UNDER EXAMINATION. 231 
 
 against his attack tlie simple defense of, " I liave no re- 
 collection of the matter " : He will say with lago, 
 
 " Demand me nothing : what you know, you know : 
 From this time forth I never will speak word." * 
 
 * Othello, A. V. S. 2. '
 
 CHAPTER XII. 
 
 OF ADVOCACY. 
 
 A PERSON can seldom be advised to plead liis own 
 cause, when tlie aid of a professional advocate can be 
 obtained. If he be not himself a lawyer, he will be 
 sure to meet "with some, and very probably many, diffi- 
 culties. He will find himself unacquainted with the 
 knowledge, which, for his advantage, he ought to have 
 of the law of evidence, and of the rules by which the 
 examination of witnesses is governed, rules laid down 
 for promoting the discovery and proof of truth. From 
 inexperience he may not be able to arrange his evi- 
 dence in the manner to be the most serviceable to him ; 
 and he may not see where his evidence is strong, and 
 where weak ; and consequently he may fail to push his 
 advantage where the testimony for him is the most 
 favorable, and to make the most of it where it is de- 
 fective. In the conflict of the trial he may miss seeing 
 advantages he has gained, and lose sight of the ground, 
 where the strength of his own side mainly lies. x\d- 
 vantages obtained he may lose by subsequent questions 
 he puts to witnesses, whose answers may weaken or, 
 perhaps, wholly eftace the superiority he had won. 
 
 Calmness and temper are required in any one, who 
 would successfully examine witnesses. These C|ualities 
 it may be difficult for one pleading his own cause to 
 maintain, even in examining his own witnesses; and 
 they will be put to a much severer test, when he. comes 
 to cross-examine the witnesses of his adversary. The 
 latter are naturally in some degree in antagonism with
 
 OF ADVOCACY. 233 
 
 him, a circumstance in itself very unfavorable to com- 
 posure of mind, botli on the side of the examiner and 
 of the witnesses. And if anion s; these witnesses, there 
 be any one, between whom and himself there exists 
 some unfriendly feeling, a mutual dislike, quite uncon- 
 nected although it be from the subject of the trial, this 
 unhappy accident can hardly fail to cause him some, 
 and probably great, inconvenience and trouble. The 
 strife of cross-examination is rough, and its rubs and 
 hits are dangerous to the retention of patience and 
 temper. 
 
 Supposing on a criminal trial the prisoner's charac- 
 ter, independently of the present charge against him, is 
 bad ; and supposing in the course of the evidence this 
 unpropitious ftict comes out ; then if the accused pleads 
 his own cause, there, in the dock, he stands, full in "view 
 of the jury, in close converse, it may be said, with them, 
 he speaking to them, they listening to him ; no screen 
 between them to intercept the admission of dislike, dis- 
 gust, which his countenance, his manner, his past bad 
 character, may tend to inspire ; in such a case, it is plain 
 his pleading for himself encumbers him with difficulties, 
 which would, partially at least, be avoided, if an advo- 
 cate stood ujj in his defense. The advocate then would 
 be the prominent person ; it is his countenance, his 
 manner, the jury would look at ; and the presence of 
 the prisoner would be shaded by him. 
 
 " Un loup disoit que I'on I'avoit vole : 
 Un renard, son voisin, d'assez mauvaise vie, 
 Pour ce pretendu vol par lui fut appcle. 
 
 Devant le singe il fut plaide, 
 Non point par avocats, mais par cliaque partie." 
 
 There was the mischief; neither side retained coun- 
 sel. Mark the result, — Each side was fined : — 
 
 " Apres qu'on eut bien conteste, 
 
 Replique, crit-, tempete, 
 16
 
 234 OF ADVOCACY. 
 
 Le juge, instruit de leur malice, 
 Leur dit : Je vous connois de long-temps, mes amis ; 
 Et tou3 deux vous pairez I'amende : 
 Car toi, loup, tu te plains, quoiqu'on ne fait rien pris ; 
 Et toi, renard, as pris ce que Ton te demande." * 
 
 This case lias occurred : — A man on his trial for mur- 
 der pleaded his own cause. A principal witness against 
 him was a young woman, who, at the time of the crime 
 imputed to him, lived with him as his housekeeper. 
 Her he had seduced, and promised to marry ; a promise 
 he did not fulfil. During her examination her sight of 
 the prisoner caused her great distress : she rarely looked 
 at him, but when she did so for a moment, her tears 
 began to flow, and her voice was choked by emotion, 
 so as to be almost inaudible. At the commencement of 
 the prisoner's cross-examination of her, she, after a mo- 
 mentary embarrassment, eyed him firmly. Her exami- 
 nation in two days lasted many hours, during which 
 she twice retired to suckle her child, of which the pris- 
 oner was the father. Some questions which he asked 
 her, relating to the connection which had subsisted be- 
 tween them, greatly agitated her, and provoked this re- 
 proachful reply, — " You had promised me marriage ;" 
 and (weeping bitterly) " you must do this to wound my 
 feelings." And later in the examination he met with 
 this withering rebuke from her, — " I told you, when 
 you broke your promise, that, before you died, you 
 would repent of not keeping your word. I told you, 
 that you would never prosper, after breaking such a 
 promise." The jmsoner was — Kush. f If ever there was 
 a case in which it was important the prisoner's presence 
 should be shaded, it was this of Rush. 
 
 Irrelevant matters, having no bearing whatever on 
 
 * Fables de La Fontaiue, ii, 3. According to Phsedrus, the fox overdid 
 his defense : " Te credo sur?-ipuisse, quod pulchre negas.''' — Ph Fah. i. 9. 
 t The London Times, March 31st and April 3d, 1849.
 
 OF ADVOCACY. 235 
 
 the real issue of the case, are almost sure to be brought 
 into the examination of witnesses, by an inexperienced 
 person pleading his own cause. In every-day life it is 
 a common fault to bring into a story things which have 
 little or nothing to do with it ; just as Sancho Panza 
 wove into his tales his strings of inapplicable proverbs, 
 to the great annoyance of Don Quixote impatient of 
 this trifling:. The introduction of irrelevant matters 
 into a cause cannot fail to augment the diflolculty which 
 a jury has in disentangling the intricacies of a case ; 
 and whatever increases their difficulty may in propor- 
 tion injure a pleading which stands in need of clear- 
 ness and simplicity for its success. 
 
 A person pleading his own cause, whether by think- 
 ing he cannot say too much, or by being carried away 
 by his feelings, or for some other reason, is very liable 
 not to reflect, that oftentimes it is best to " let well 
 alone," as the saying is, and silence is more useful than 
 speech. This was Pliny's opinion. * 
 
 A droll note by Pepys, in liis Diary, shows he 
 was fully aware it is sometimes discreet to be silent. 
 The 15th December, 1665, he makes this entry, — "Met 
 with Sir James Bunce. ' This is the time for you,' says 
 he, ' that were for Oliver heretofore ; you are full of em- 
 ployment, and we, poor cavaliers, sit still and can get 
 nothing ;' which was a pretty reproach, I thought ; but 
 answered nothing to it, for fear of making it worse." 
 
 A disadvantage attending a person pleading his 
 own cause, whether on a civil or criminal trial, is, 
 that he cannot speak favorably of himself with the 
 same grace with which an advocate, who may be taken 
 as his friend, can do. "How many things are there, 
 
 * It is as much the duty of an advocate sometimes to say nothing, as it 
 is on other occasions to make a long speech ; and, indeed, I remember some 
 criminal cases in which I defended my client better by saying nothing 
 than I should have done by a most elaborate oration. — Epist. vii. 6.
 
 236 OF ADYOCACT. 
 
 whicli a man cannot, with any face or comeliness, say or 
 do himself. A man can scarce allege his own meiits 
 with modesty, much less extol them : a man cannot 
 sometimes brook to supplicate or beg ; and a number 
 of the like : but all these things are graceful in a friend's 
 mouth, which are blushing in a man's own." * Ad\"ice 
 like this Solomon thought worthy to be recorded, as 
 among his Proverbs we read, — " Let another man praise 
 thee, and not thine own mouth; a stranger, and not 
 thine own lips." 
 
 A party to a law suit may know more of the sub- 
 ject of it, and of the science, art, or other branch of 
 knowledge bearing upon it, than any one in the profes- 
 sion of the law, and yet he may not be able to support 
 his own cause with the clearness, skill, power, and effi- 
 ciency, with which the professional advocate will sustain 
 it. Let the advocate already possess, or be supplied 
 for the occasion, whether by the client himself,- or from 
 any other source, with the knowledge necessary to the 
 end in view, and the advocate will for this purpose 
 make more of it, turn it to a better account, than the 
 client himself could do. An opinion of this sort Cicero 
 puts into the mouth of Crassus, and it may fairly be 
 taken to be that of Cicero hnuself ; suj^posing at the 
 same time the advocate be, in Crassus and Cicero's 
 meaning of the word, an orator.j- 
 
 * Bacon's Essay on Friendsliip. 
 
 t If an orator is ignorant of certain arts and sciences, and is acquainted 
 only ■u'itli the usual subjects debated in the forum or elsewhere, yet if he is 
 called upon to speak on those arts or sciences, and shall be instructed in 
 them by professors of them, he will speak much better on these subjects 
 than the very persons, who taught him, will be able to do. Thus, if SuljDi- 
 cius is required to speak on a military subject, he will seek information 
 from Marius ; and, after he has obtained it, he will make such a speech on 
 military affairs, that, to Marius himself, Sulpicius will appear to know more 
 of the subject than even Marius does. So, again, if Sulpicius has occasion to
 
 OF ADVOCACY. 237 
 
 " At tliis time (1759), there being a competition 
 among the architects of London to be employed in the 
 buihiing of Blackfriars Bridge, a question was very 
 warmly agitated, whether semicircular or elliptical 
 arches were j^referable. In the design offered by Mr. 
 Mylne, the elliptical form was adopted, and therefore it 
 was the great object of his rivals to attack it. John- 
 son's regard for his friend Mr. Gwyn induced him to 
 engage in this controversy against Mr. Mylne ; and after 
 being at considerable pains to study the subject, he 
 wrote three several letters in the Gazetteer, in opposi- 
 tion to his plan. If it should be remarked, that this 
 was a controversy which lay cpiite out of Johnson's 
 way, let it be remembered, that, after all, his employing 
 his powers of reasoning and eloquence uj)on a subject, 
 which he had studied on the moment, is not more 
 strange than what we often observe in lawyers, who, as 
 Quicquid agunt homines is the matter of law-suits, are 
 sometimes obliged to pick up a temporary knowledge 
 of an art or science, of which they understood nothing 
 till their brief was delivered, and appear to be much 
 masters of it."" 
 
 Gray says very truly in a letter to his friend West, 
 who could not force his inclination to like the study of 
 the law, and to dissuade him from being disgusted with 
 
 speak on law, he will communicate with you, Screvola ; and after you. a most 
 learned and experienced man, have taught him law, he will, so far as speak- 
 ing upon law goes, surpass even yourself, who instructed him. And so if 
 it happen that Sulpicius is to discourse on human nature, particular vices 
 of mankind, pain, death, he will, if he shall think it befitting him (for an 
 orator ought to l)e familiar with these topics), consult Sextus Pompeius, 
 a man learned in philosophy. And in any case, let the subject be what 
 it may, Sulpicius certainly will accomplish this, — that, whatever subject he 
 shall have been taught, on this he will sjicak much more eloquently than 
 he, from whom he learnt it, can hope to do. — C/c, De Oratore, i. 15. 
 * Life of Johnson, by Boswell, vol. ii. p. 115, ed. 1835.
 
 238 OF ADVOCACY. 
 
 its dry and unentertaining elements, — " It is strange, if, 
 among all that huge mass of words, there be not some- 
 what intermixed for thought. Laws have been the 
 result of long deliberation, and that not of dull men, 
 but the contrary ; and have so close a connection with 
 histoiy, nay, with philosophy itself, that they must par- 
 take a little of what they are related to so nearly."* 
 
 It may not be too bold to assert, that " the sparks of 
 all sciences in the world are covered in the ashes of the 
 
 law."t 
 
 For the purpose of addressing the jury, and also for 
 
 the examination of witnesses, and especially their cross- 
 examination, it is essential that an advocate possess at 
 the time of the trial a competent general knowledge 
 of the science, art, trade, or other subject involved in 
 the question in the cause, and an intimate acquaintance 
 with such particulars of the subject as the question 
 immediately touches, and quickness in making use of 
 them, and turning them to account. These particulars 
 may be, — Materials used in any branch of trade, the 
 process of a particular manufacture, custom and prac- 
 tice in commercial dealings and aifairs, agricultural 
 works, ships, railways, mines, quarries, medicines, poi- 
 sons, chemistry, surgery ; and the technical, peculiar, and 
 provincial words and phrases confined to, or in use upon, 
 each particular subject. 
 
 Sir Edward Coke has left us his opinion, that some 
 knowledge of every science and art is, not only useful, 
 but even necessary to a lawyer. J 
 
 * Gray's Works, vol. i. p. 254, ed. 1807. t Finch., Book i. ch. iii. 
 
 I If it be asked, of what arts and sciences a knowledge is necessary 
 for a full knowledge and understanding of our laws ; I answer, that since 
 not only laws, but also all arts and sciences, are subjects of jurisprudence, 
 I not only do not exclude any art or science, but I consider a knowledge of 
 every one of them not only useful, but even essential to a lawyer. — Preface
 
 OF ADVOCACY. 239 
 
 It is a common saying, — " One tale is good, till 
 another be told." And hence the common and useful 
 advice, — amli alteram partem; hear the other side. 
 The story of the highway robbery by Prince Henry 
 and his " wonted followers " had two sides ; and Fal- 
 staifs version of it dissolved before that of Prince 
 Henry : " Mark now," said the Prince to Falstaff, " how 
 plain a tale shall put you down."* The relation of the 
 other side of a tale completely cleared Sir Thomas More 
 from the imputation of having, when Lord Chancellor, 
 received a gift as a bribe. One Parnell made a com- 
 plaint, that a decree had been improperly obtained by 
 his adversary Vaughau, whose wife, he said, had bribed 
 the Chancellor by a gilt cup. Hear the other part of 
 the tale, said More. He then acknowledged that he re- 
 ceived the cup as a new year's gift ; and that having 
 drunk to the lady of wine, with which his butler had 
 filled the cup, she having pledged him, he restored the 
 cup to her, and would listen to no refusal from her to 
 take it back again.f 
 
 T-o Sir Roger de Coverley viewing his own portrait, 
 painted for the sign of an inn, and altered to the Sara- 
 cen's Head, and j^ressing Mr. S23ectator to say, whether 
 the head was not still more like himself than a Saracen, 
 the prudent reply was, that " much might be said on 
 both sides." J 
 
 to Co. Rep. part iii. [Chief Justice Parsons used to say that many 
 persons Tvondered at his studying all sorts of things, and supposed 
 this diversity of pursuits must interfere with his profession ; the contrary, 
 however, was true, for there was scarcely any thing which he had learned, 
 particularly if it were of a scientific character, which he did not find, at 
 some time or in some way, useful to him as a lawyer or as a judge.— J/<?- 
 moirs of Chief Justice Parsons, p. 153.] 
 * Henry IV. part i. A. ii. S. 2, 4. 
 
 t Life of Sir Thomas More, in vol. i. of Mackintosh's Miscellaneous 
 Works, p. 4GG, ed. 1846. 
 I The Spectator, No. 122.
 
 240 OF ADVOCACY. 
 
 On most questions tlie same may be pronounced 
 witli equal proj^riety and truth. There is hardly any 
 subject, of which two and opposite views cannot be, 
 and are not, taken ; and certainly no subject, which can 
 possibly lead to a trial or other judicial inquiry, is ex- 
 empt from this prevailing tendency to opj^osition. 
 
 In every cause, each of the opj)osite parties thinks, 
 or at least wishes to make it appear, he has right on 
 his side, and that wrong abides with his adversary. 
 They will not hesitate to say, as Plantagenet and 
 Somerset did say, when they plucked the white and 
 red roses in the temj^le garden, — 
 
 '' Plantagenet. The truth appears so naked on my side, 
 That any purblind eye may find it out. 
 
 Some7'set. And on my side it is so well apparell'd, 
 So clear, so shining, and so evident. 
 That it will glimmer through a blind man's eye." * 
 
 If this be so, each side has, or claims to have, much 
 to say in the assertion or vindication of its own view 
 of the question in dispute. And if the parties them- 
 selves in strife abound in arguments and remarks, 
 whether to assail or defend, it is to be expected that 
 an advocate, engaged for the very purpose, will find ex- 
 pressions to enforce the views of his client ; arguments 
 and remarks wherewith to enforce his real or supposed 
 rights, or to defend him against real or supposed 
 wrongs. 
 
 Gay dedicates one of his fables expressly '' To a 
 Lawyer ; " and opens it with a pleasantry on a lawyer's 
 flexibility in the construction of language : 
 
 " I know you lawyers can with ease, 
 Twist words and meanings as you please ; 
 That language, by your skill made pliant, 
 Will bend to favor every client ; 
 That 'tis the fee directs the sense, 
 
 * Henry VI., A. ii., S. 4.
 
 OF ADVOCACY. 241 
 
 To make out either side's pretence. 
 When you peruse the clearest case, 
 You see it with a double face ; 
 For scepticism's your profession ; 
 You hold there's doubt in all expression. 
 Hence is the bar with fees supply'd ; 
 •_ Hence eloquence takes either side." 
 
 An advocate must have learut his duty very im- 
 perfectly, or Lave reflected upon it very little, wlio, 
 employed for tlie prosecution to lay tlie facts of the 
 .case before the jury, will venture to insert amongst 
 them any fact of his own invention. Nevertheless, 
 there is an instance recorded of this having been actually 
 done ; and the best excuse, if any can be made, for 
 such a misdeed, is, that the advocate was, as he himself 
 says, " rather young at the bar," and had no doubt of 
 the prisoner's acquittal. The prisoner was, however, 
 found guilty. The facts invented were sworn to by the 
 l^rosecutrix ; what those facts were are not recorded, 
 and whether or how far they had any influence on the 
 jury in finding their verdict we are not told ; and be- 
 yond the jury this was probably never known. The 
 case affords a strong warning against such temerity on 
 any other occasion. The following is the substance of 
 the circumstances, as detailed by the injudicious ad- 
 vocate himself : — " Mr. K. had been accused of a capital 
 crime ])y a Miss B., who stated that she had gone away 
 with him for the purpose, and in the strict confidence, 
 of being married the same day. The grand jury, on 
 the 3^oung woman's testimony, found a true bill against 
 him for the capital ofiense, and he came to Carlow to 
 take his trial at the assizes. He immediately called on 
 me with a brief, — said it was a mere hagatelle^ and 
 totally unfounded, and that his acquittal would be a 
 matter of course. I had been retained as-ainst him. 
 He made so light of the business, that he told me to 
 get up a famous speech against him, as no doubt I was
 
 242 OF ADVOCACY. 
 
 instructed to do; that indeed I could not say too much, 
 as the whole would appear, on her own confession^ to be 
 a conspiracy ! On reading my brief, I found that, truly, 
 the case was not over strong against him even there, 
 where, in all probability, circumstances would be ex- 
 aggerated ; and that it rested almost exclusively on 
 the lady's own evidence ; hence, I had little doubt that, 
 upon cross-examination, the prisoner would be acquitted. 
 The trial proceeded ; I was then rather young at the 
 bar, and determined, for my own sake, to make an in- 
 teresting and affecting speech for my client ; and hav- 
 ing no doubt of K.'s acquittal, I certainly overcharged 
 my statement, and added some facts solely from inven- 
 tion. My surprise, then, may be estimated, when I 
 heard Miss B. swear positively to every syllable of my 
 emblazonment. I should now have found myself most 
 painfully circumstanced, but that I had nO doubt she 
 must be altogether discredited. In fact, she was quite 
 shaken by the cross-examination of the prisoner's coun- 
 sel. I left the court as the jury retired. In about an 
 hour I received an account that K. had been found 
 guilty^ and sent back to gaol under sentence of death ! 
 I was thunderstruck, and without delay wrote to the 
 chief secretary in Dublin, begging him instantly to re- 
 present to the Lord Lieutenant the real facts ; execu- 
 tion was in consequence respited. I waited on the 
 Lord Lieutenant, stated precisely the particulars I have 
 here given, and my satisfaction (even from my own 
 brief) that the girl was perjured." The end of it Avas, 
 that the Lord Chancellor Clare recommended the sen- 
 tence to be changed to transportation for life, and K. 
 was accordingly so transported.* 
 
 There is a story, which, if true, would redound still 
 more. to the discredit of an individual barrister. It is 
 
 * Personal Sketches, by Sir Jonah Banington, vol, i. p. 365, ed. 1837.
 
 OF ADVOCACY. 243 
 
 thus related, — " A fellow was tried for highway robbery 
 and the prosecutor swore positively to him, saying lie 
 had seen his face distinctly, for it was a bright moon- 
 light night. The counsel for the prisoner cross-ques- 
 tioned the man, so as to make him repeat that assertion, 
 and insist upon it. He then affirmed that this was a 
 most important circumstance, and a most fortunate one 
 for the prisoner at the bar ; because the night, on whicli 
 the alleged robbery was said to have been committed, 
 was one in which there had been no moon ; it was dur- 
 ing the dark quarter ! In j^roof of this he handed an 
 almanac to the bench, — and the prisoner was acquitted 
 accordingly. The prosecutor, however, had stated 
 everything truly; and it was known afterward, that 
 the almanac, with whicli the counsel came provided^ 
 had been prepared and printed for the occasion." ^ 
 
 This anecdote insinuates, or at any rate permits an 
 inference, that the counsel was a party to the fraud. 
 But in all likelihood the whole is a pure fiction, " a 
 thing devised by the enemy," an enemy to the good 
 fame of the bar. It is likely to be a fiction for these 
 reasons : first, that the witness having once sworn posi- 
 tively to the moonlight, it is improbable counsel would 
 by a second question hazard a less positive and fjivor- 
 able answer, reducing perhaps the moonlight to star- 
 light, to light enough still to see and identify the pris- 
 oner by ; and secondly, it is not to be supposed, that 
 for a " fellow," a highway robber, any one would ven- 
 ture to practice, and brave the punishment of, such an 
 extreme contempt of court, and profanation of justice. 
 The result may be taken to be, that the fabricator, the 
 original teller, of the anecdote, said " the thing which 
 was not ; " to use the polite expression of the Hou- 
 
 * The Doctor, vol. iii. p. 14C, ed. 1835.
 
 244 OF ADVOCACY. 
 
 yhnhnms, who, we are told, have no word in their lan- 
 guage to express lying or falsehood * 
 
 It is a standing question, whether an advocate can 
 with a safe conscience support a cause which "he 
 knows to be bad." 
 
 The advocate represents his client. But he does 
 not represent him in the sense, that for every purpose 
 of" attack and defense he stands entirely in his client's 
 place. If he did, such rej^resentation would necessarily 
 involve this consequence, — that, supposing the client 
 himself would attack or defend in an unscrupulous, 
 dishonorable, or lying manner, the advocate must do so 
 too. Such a consequence completely extinguishes the 
 notion of entire representation of the client. 
 
 Taking then a civil case, and supposing there be 
 an issue or question of law to be determined by the 
 court. If it be inquired, whether an advocate can con- 
 scientiously take up the side, which, in his opinion, is 
 wrong, this inquiry may be met by the following con- 
 siderations : — It may, it is presumed, be stated to be a 
 principle, applicable to the present inquiry, that the 
 court does not need to be instructed in the law of the 
 particular case by the advocate on either side. Then 
 with regard to the advocate's own opinion of the law, 
 this opinion may be wrong ; he ought not to assume it 
 to be right ; and the decision of the jooint does not de- 
 pend on his opinion, but on that of the court. An ad- 
 vocate must not knowingly mis-cite any case or author- 
 ity ; but in laying before the court any principle, case, 
 or authority, he " is at liberty to submit to the court 
 such pur2:>ort or effect of it as he thinks will best sus- 
 tain the interest of his client. He may even omit to 
 bring to the notice of the court, any principle, case, or 
 
 * Gulliver's Voyage to the Houyhnlinms.
 
 OF ADVOCACY. 245 
 
 authority, which he considers is opposed to his client's 
 interest ; for on the principle that the court needs no 
 instruction from the advocate, he may conclude that the 
 court is in possession of it. 
 
 Taking another civil case, and supposing the issue 
 to be, a question of fact to be determined by the jury ; 
 iu this instance it is essential to justice that the wit- 
 nesses give in evidence all the facts which, of their own 
 knowledge, they are acquainted with. If then after an 
 advocate has, in his examination of his own witness, 
 brought out certain facts, which supjDort his client's 
 case, he is aware that the witness is also in possession 
 of another fact, which if made knowTi he thinks would 
 hurt or endanger his own client, and in proportion 
 assist his adversary ; under these cii'cumstances, the 
 advocate must, it is imagined, find himself in this strait : 
 — if he questions the witness on the j^articular fact, his 
 answer may prejudice his client's cause ; and if he omits 
 to examine the witness ujDon it, then, to the extent of 
 the concealed matter, the advocate risks making himself 
 a conniver at injustice towards the other side ; for he 
 cannot be sure, either that the witness will, without 
 any examination upon it, divulge the omitted fact, or 
 that the opposite side will, on cross-examining the wit- 
 ness, elicit it out of him. 
 
 To notice next the case of a criminal prosecution. If 
 it be inquired, whether an advocate can, with a safe con- 
 science, 2:>lead for a prisoner, or other accused person, 
 who, he believes, is guilty, the question suggests these 
 observations: — The advocate's belief of the guilt may 
 be formed from the circumstances disclosed in his in- 
 structions for the defense, or even from the express con- 
 fession of the accused person to the advocate himself. 
 On a criminal prosecution, one principle acted on by 
 the English law is, that no one is bound to convict him-
 
 246 OF ADVOCACY. 
 
 self; another is, that the onus 'probandi^ the burthen of 
 proof of the offense charged, lies on the party prosecut- 
 ing. These principles exempt the advocate of any one 
 accused from all obligation to divulge, through his ex- 
 amination of the lyitnesses, any fact of which the advo- 
 cate may happen to have knowledge, and which he 
 thinks will be injurious to his client. The conscience 
 of the advocate cannot be hurt except by a breach of 
 his duty: he owes no duty to the public, nor to any 
 one, to disclose the accused person's guilt ; his whole 
 duty is to his client ; and this duty is, to take care that 
 his client have justice. 
 
 Southey having taken occasion to observe, " There 
 is but too much cause to conclude, that our moral sense 
 is more easily blunted than our physical sensations," 
 goes on to assert : — " The most upright lawyer acquires 
 a sort of Swiss conscience * for professional use ; he is 
 soon taught that considerations of right and wrong have 
 nothing to do with his brief, and that his business is to 
 do the best he can for his client, however bad the case. 
 If this went no farther than to save a criminal from 
 punishment, it might be defensible on the ground of 
 humanity, and of charitable hope. But to plead with 
 the whole force of an artful mind, in furtherance of a 
 vexatious and malicious suit, — and to resist a rightful 
 claim with all the devices of legal subtlety, and all the 
 technicalities of legal craft, — I know not how he, who 
 considers this to be his duty toward his client, can re- 
 concile it with his duty toward his neighbor." And 
 after making an allusion to persons who "would resent 
 any imputation upon their honor or their courage, as an 
 offense not to be forgiven," Southey thus continues, — 
 " It is difficult to understand, how even such persons 
 
 * As mercenary soldiers it is presumed is meant.
 
 OF ADVOCACY. 247 
 
 can undertake to plead the cause of a scoundrel in cases 
 of seduction, — how tliey can think that the acceptance 
 of a dirty fee is to justify them for cross-examining an 
 injured and unhappy woman, with the cruel wanton- 
 ness of unmanly insult, bruising the broken reed, and 
 treating her as if she was as totally devoid of shame as 
 they themselves of decency and humanity. That men 
 should act thus, and be perfectly unconscious the while 
 that they are acting a cowardly and rascally part, and 
 that society should not punish them for it, by looking 
 upon them as men who have lost their caste, would be 
 surprising, if we did not too plainly see to what a de- 
 gree the moral sense, not only of individuals, but of a 
 whole community, may be corrupted." * 
 
 Southey has, it may be thought, with more zeal than 
 judgment, animadverted on what he is pleased to call 
 the " Swiss conscience " of a lawyer, in remarks which 
 unnecessarily assail the Swiss nation, and are intended 
 to stigmatize the English bar. This amiable man has 
 here displayed his kindness of heart, but at the same 
 time has betrayed his ignorance of these principles of 
 advocacy, viz., not to prejudge a case ; and, whether in 
 attack or defense, to see justice done to one's own client. 
 Through an abuse of an advocate's privileges by indi- 
 viduals, in particular instances, he has, without distinc- 
 tion of men, their minds, principles and characters, in- 
 considerately aspersed in an equal degree the whole bar. 
 In the instance of seduction he mentions, he assumes 
 that the advocate before the trial knows the defendant 
 to be a scoundrel. But let this assumption not be 
 made, then the rascality of the defendant is the very 
 point of the trial, the point to be proved, and, until such 
 proof, the defendant is in law innocent. The advocate, 
 
 * The Doctor, vol. ii. pp. 292, 293, ed. 1834.
 
 248 OF ADVOCACY. 
 
 on receiving Lis brief, is not to prejudge his client's 
 case ; his office is, to defend liim ; to see that the wit- 
 nesses against him speak nothing but the truth. Per- 
 sons accused of the greatest crimes; — a murderer, a 
 traitor, — are entitled to this protection. Southey is 
 right in saying, that the advocate is not justified in 
 cross-examining a woman " with the cruel wantonness 
 of unmanly insult;" and if such atrocity has in ruder 
 times been practiced, and may still not be quite un- 
 known, yet the modern more refined feelings and man- 
 ners, generally diftused throughout society, hold out a 
 promise of its early extinction. 
 
 The defense of a bad cause is the subject of the fol- 
 lowing observations by Sir John Davis, Attorney-Gen- 
 eral in Ireland in the reign of James I. Among other 
 " vulgar imputations cast upon the law and lawyers," 
 he particularizes this, — " That many bad and dis- 
 honest causes are wittingly defended by the professors 
 of the law." And in answer to this objection he says, 
 — " There is yet another exception against the professors 
 of our law, namely, that wittingly and willingly they 
 take upon them the defense of many had causes, hnoiuing 
 the same to be unjust, when they are first consulted 
 with and retained. And this is objected, by such as 
 presume to censure our profession, in this manner. In 
 every cause between party and party (say they) there 
 is a riglit, and there is a wrong, yet neither the one 
 party nor the other did ever want a counsellor to main- 
 tain his cause. This may be true for the most part, and 
 yet in truth the learned counsel, whose fortune it is to 
 light on the wrong side, may be free from imputation 
 of any blame. For when doth the right or wrong in 
 every cause appear ? When is that distinguished and 
 made manifest ? Can it be discovered upon the first 
 commencement of the suit, and before it be known
 
 OF ADVOCACY. 249 
 
 what pan be alleged and proved by either party ? As- 
 suredly, it cannot ; and, therefore, the counsellor, when 
 he is first retained, cannot possibly judge of the cause 
 whether it be just or unjust, because he hears only one 
 part of the matter; and that also he receives by infor- 
 mation from his client, who doth ever put the case with 
 the best advantage for himself. But when the parties 
 have pleaded, and are at issue; when they have ex- 
 amined witnesses in course of equity, and be descended 
 to a trial in course of law ; after publication and hear- 
 ing in the one cause, and full evidence delivered in the 
 other ; then the learned counsel of either side may, per- 
 haps, discern the right from the wrong, and not before. 
 But then are the causes come to their catastrophe, and 
 the counsellors act their last part. And yet until then 
 the true state of the cause on both sides could not pos- 
 sibly be discovered. * 
 
 The subject of an advocate's supporting a cause which 
 " he knows to be bad," is thus treated by Dr. Johnson 
 in a conversation between him and Boswell : — " I asked 
 him whether, as a moralist, he did not think the prac- 
 tice of the law, in some des-ree, hurt the nice feelino; of 
 honesty. Johnson. Why, no, sir, if you act j)roperly. 
 You are not to deceive your clients with false represen- 
 tations of your opinion : you are not to tell lies to a 
 judge. Boswell. But what do you think of supporting 
 a cause which you know to ])e bad % Johnson. Sir, 
 you do not know it to be good or bad, till the judge 
 determines it. I have said that you are to state facts 
 fairly ; so that your thinking, or what you call know- 
 ing, a cause to be bad, must be from reasoning, must be 
 from your suj^posing your arguments to be weak and 
 inconclusive. But, sir, that is not enough. An argu- 
 
 * Preface to Sir John Davis' Reports. 
 17
 
 250 OF ADVOCACY. 
 
 ment wliicli does not convince yourself may convince the 
 judge, to whom you urge it : and if it does not con- 
 vince liim, why then, sir, you are wrong, and he is right. 
 It is his business to judge ; and you are not to be con- 
 fident in your own opinion that a cause is bad, but to 
 say all you can for your client, and then hear the judge's 
 opinion."'^ 
 
 There is another point connected with this subject, 
 the advocate's affecting warmth when he does not feel 
 it, upon which Dr. Johnson, in continuation of the same 
 conversation, has also expressed his oj)inion: — "^os- 
 well. But, sir, does not affecting a warmth when you 
 have no warmth, and appearing to be clearly of one 
 opinion, when you are in reality of another oj)iniou, 
 does not such dissimulation impair one's honesty % Is 
 there not some danger that a lawyer may put on the 
 same mask in common life, in the intercourse with his 
 friends^ Johnson.^ Why, no, sir. Every body knows 
 you are paid for affecting warmth for your client ; and 
 it is, therefore, properly no dissimulation : the moment 
 you come from the bar you resume your usual behavior. 
 Sir, a man will no more carry the artifice of the bar into 
 the common intercourse of society, than a man, who is 
 paid for tumbling upon his hands, will continue to tum- 
 ble upon his hands, when he should walk on his feet." 
 
 The advocacy of a bad cause is a subject of further 
 remarks by Dr. Johnson in a conversation which Bos- 
 well has recorded : — " We talked of the practice of the 
 law. Sir William Forbes said, he thought an honest 
 lawyer should never undertake a cause which he was 
 satisfied was not a just one. Sir, said Johnson, a law- 
 yer has no business with the justice or injustice of the 
 cause which he undertakes, unless his client asks his 
 
 * Life of Jolinsou, by Boswell, vol. iii. p. 36, ed. 1835.
 
 OF ADVOCACY. 251 
 
 opinion, and then lie is bound to give it honestly. The 
 justice or injustice of the cause is to be decided by the 
 judge. Consider, sir, what is the purpose of courts of 
 justice ? It is, that every man may have his cause fairly 
 tried, by men appointed to try causes. A lawyer is not 
 to tell what he knows to be a lie ; he is not to produce 
 what he knows to be a false deed ; but he is not to 
 usurj) the province of the jury and of the judge, and 
 determine what shall be the effect of evidence, what 
 shall be the result of legal argument. As it rarely 
 happens that a man is fit to plead his own cause, law- 
 yers are a class of the community, who, by study and 
 experience, have acquired the art and power of arrang- 
 ing evidence, and of applying to the points at issue 
 what the law has settled. A la^vy^er is to do for his 
 client all that his client might fairly do for himself, if 
 he could. If by a superiority of attention, of knowl- 
 edge, of skill, and a better method of communication, 
 he has the advantage of his adversary, it is an advant- 
 age to Avhich he is entitled. There must always be 
 some advantage, on one side or other; and it is better 
 that advantage should be had by talents than by chance. 
 If lawyers were to undertake no causes till they were 
 sure they were just, a man might be precluded alto- 
 gether from a trial of his claim, though, were it judi- 
 cially examined, it might be found a very just claim."* 
 
 It is interesting to read in the following relation, 
 taken from Lord Eldon's Anecdote Book, the just opin- 
 ion which his lordship, when Mr. Scott, a young man, 
 had formed of the duty of counsel in conducting a cause, 
 and the bold manner in ^vhicli he ventured to lay it be- 
 fore a " leader," of whose j^ractice in conducting a case 
 he did not approve ; and it is no less interesting to see 
 
 * Life of Johnsou, by Boswell, vol. iv. ]i. IG, ed. 1835.
 
 252 OF ADVOCACY. 
 
 the gentleness of tlie man in full practice under tlie 
 censure of a "junior," who had no business at all: — 
 
 " When I first Avent the Northern Circuit, I employed 
 my time, having no business of my own, in attending to 
 the manner in which the leadino- counsel did their busi- 
 ness. I left Lancaster, at the end of a circuit, with my 
 friend Jack Lee, at that period a leader upon the cir- 
 cuit. We supped and slept at Kirkby Lonsdale, or 
 Kirkby Stephen. After supper I said to him, ' I have 
 observed that throughout circuit, in all causes, in which 
 you Avere concerned, good, bad, indifferent, whatever 
 their nature was, you equally exerted yourself to the 
 utmost to gain verdicts, stating evidence and quoting 
 cases, as such statement and quotation should give you 
 a chance of success, the evidence and the cases not be- 
 ing stated clearly, or quoted with a strict attention to 
 accuracy, and to fair and just representation. Can that,' 
 said I, ' Lee, be right ? Can it be justified ? ' — ' Oh, 
 yes,' he said, ' undoubtedly. Dr. Johnson,' he stated, 
 ' had said, that counsel were at liberty to state, as the 
 parties themselves would state, what it was most for 
 their interest to state.' After some interval, and when 
 he had had his evening bowl of milk-punch and two or 
 three pipes of tobacco^. he suddenly said, ' Come, Master 
 Scott, let us go to bed. I have been thinking upon the 
 questions that you asked me, and I am not quite so 
 sure that the conduct you represented will bring a man 
 peace at the last.' 
 
 " I have understood that Dr. Johnson's statement 
 was to this effect : that as it was the duty of counsel to 
 give information to the court, he ought to state facts 
 accurately, to quote cases accurately, to misrepresent 
 nothing, with respect either to facts or cases ; and hav- 
 ing accurately stated facts and quoted cases, he was at 
 liberty in conscience to reason uj^on them to the very
 
 OF ADVOCACY. 253 
 
 best of his powers and abilities ; and as tlie law sup- 
 posed the judge to be an abler man, and an abler lawyer, 
 than the counsel, the judge was to reason better upon 
 the facts and the cases than the counsel ; and, proceed- 
 ing in this way, the counsel did nothing wrong in thus 
 gaining the cause for his client. But it may be ques- 
 tioned, whether even this can be supported."* 
 
 Coleridge has left us his opinion on the necessity for 
 an order of advocates, and on their duties. It is thus 
 expressed, — " There is undoubtedly a limit to the exer- 
 tions of an advocate for his client. He has a right, it 
 is his bounden duty, to do every thing which his client 
 might honestly do, and to do it with all the effect, 
 which any exercise of skill, talent, or knowledge of his 
 own may be able to produce. But the advocate has no 
 right, nor is it his duty, to do that for his client which 
 his client inforo conscientice has no right to do for him- 
 self; as, for a gross example, to put in evidence a forged 
 deed or will, knowing it to be so forged. As to mere 
 confounding witnesses, by skillful cross-examination, I 
 own I am not disposed to be very strict. The whole thing 
 is perfectly well understood on all hands ; and it is lit- 
 tle more, in general than a sort of cudgel-playing be- 
 tween the counsel and the witness ; in which I think I 
 have seen the witness have the best of it, as often as 
 his assailant. It is of the utmost importance, in the ad- 
 ministration of justice, that knowledge and intellectual 
 power should be as far as possible equalized between 
 the Crown and the prisoner, or plaintiff and defendant. 
 Hence especially arises the necessity for an order of ad- 
 vocates, — men whose duty it ought to be, to know what 
 the law allows and disallows ; but whose interests 
 
 * Life of Lord Eldon, by Twiss, vol. i. p. 106, ed. 1844.
 
 254 OF ADYOCACY. 
 
 should l)e wholly indifferent as to the persons or char- 
 acters of their clients."'^ 
 
 In England, as in ancient Rome, among the bright- 
 est ornaments of the " order " are men of humble 
 
 birth.f 
 
 The oath which a jury takes is, to give a true verdict 
 according to the evidence. From this it follows, that 
 no comment, no insinuation, no argument by an advocate 
 ought to be of any value with the jury, that does not 
 arise out of the evidence, and is not justified by it. 
 
 The eloquence of the advocate may be addressed to 
 the understanding of the jury, or to their feelings. 
 
 In the majority of instances the chief aim of the ad- 
 vocate is, to convince the understanding. To effect this 
 there is a range of topics, and a method, of which almost 
 all cases admit ; viz., to introduce such general obser- 
 vations as are pertinent to the cause in hand ; to point 
 out the completeness of a chain of evidence, or the fail- 
 ure of a material link ; to insist on the fullness of the 
 evidence on his client's side, and the meagreness of it 
 on his opponent's ; to dilate on the credit or discredit 
 of witnesses ; to meet and take off the adversary's 
 comments, insinuations, and arguments ; and, without 
 wasting effort on lesser matters, to seize on his own 
 client's strong point, attract the jury to it, and by reiter- 
 ated strokes to impress it deej^ly on the minds of the 
 
 * Coleridge's Table Talk, vol. ii. p. 4, ed. 1835. " On a souvent besoin 
 d'unplus petit que soi.*' — Falles de La Fontaine, i. 11. 
 
 t Juvenal, viii. 47. 
 
 + [" Hume is an accomplished advocate without positively asserting much 
 more than he can prove ; he gives prominence to all the circumstances 
 which support his case ; he glides lightly over those which are unfavorable 
 to it ; his own witnesses are applauded and encouraged ; the statements 
 which seem to throw discredit on them are controverted ; the contradic- 
 tions into which they fall are explained away ; a clear and connected ab-
 
 OF ADVOCACY. 255 
 
 We learn from a letter of Pliny the different ways 
 in wliicli he and another Roman conducted their clients' 
 cases.* 
 
 It has been considered a defect in Lord Eldou, 
 when at the bar, that he did not sino-le out one strons; 
 point of his case, and mainly rest and insist upon that, 
 but chose rather to rely on number, mingling strong 
 and wea-k points together. " He was defective,." says 
 Lord Brougham, " in one of the. great qualities of an 
 adv^ocate — a promj^t and steady determination as to the 
 course he should pursue, that which is called the coiq:) 
 d'oeil in the field. His wish to leave nothing unnoticed 
 being proportioned to the extreme anxiety of his dis- 
 position, he fre(|uently overlaid his case at the bar, 
 while the multitude of his points gave his adversaries 
 the opportunity of entangling him in the mazes of his 
 own web, and still oftener enabled them to defeat him 
 
 stract of their evidence is given ; every thing that is oflfered on the other 
 side is scrutinized with the utmost severity ; every suspicious cii'cumstance 
 is a ground for comment and invective ; Tihat cannot be denied, is extenuated 
 or passed by without notice ; concessions even are sometimes made ; but 
 this insidious candor only increases the effect of the vast mass of sophis- 
 try." — Macaulay, Essay on Eistory.'] 
 
 * " I remember when Reguhis and I Avcre concerned together in a 
 cause, he said to me, ' You seem to think it necessaiy to dwell upon every 
 single circumstance ; whereas I always take aim at once at my advei"sary's 
 throat, and there I closely press him.' ('Tis true, he tenaciously holds 
 whatever part he has once fixed upon ; but the misfortune is, he is ex- 
 tremely apt to mistake the right place.) I answered, it might possibly 
 happen, that what he called the throat was, in reality, some less vital part. 
 As for myself, said I, who do not i)retend to direct my aim with so much 
 certainty, I attack every part, and push at every opening ; in short, to use a 
 vulgar proverb, I leave no stone unturned. As in agriculture, it is not my 
 vineyards, or my woods alone, but my fields also that I cultivate ; and (to 
 pursue the allusion) as I do not content myself with sowing those fields 
 with only one kind of grain, but employ several different sorts ; so, in my 
 pleadings at the bar, I scatter various arguments like so many kinds of 
 seed, in order to reaj) from thence whatever may happen to succeed ; for 
 the disposition of your judges is as precarious, and as little to be ascer- 
 tained, as that of soils and seasons." — Melmotii. Plin. Epist. i. 20.
 
 256 OF ADVOCACY. 
 
 on some immaterial ground, where lie was weak, though 
 other stronger and impregnable ^^ositions were his, had 
 he never ventured out of them to fio-ht at a disadvant- 
 age. Where a single and a learned judge alone is to 
 deal with a case, this will seldom mislead him, but be" 
 fore a jury its defects must have been extremely preju- 
 dicial. Accordingly his greatest failures were in such 
 proceedings." * 
 
 An advocate's success with a jury may be hoped 
 for, if he can by any means gather their own view of a 
 point. To keep that view before them, and encourage 
 it, cannot fail to do good service.f 
 
 On the force which an advocate's arguments ought 
 to have, the opinion of Dr. Johnson is thus recorded : 
 " Sir James Johnson happened to say, that he paid no 
 regard to the arguments of counsel at the bar of the 
 House of Commons, because they were paid for sj^eak- 
 ing. Johnson. Nay, sir, argument is argument. You 
 cannot helj) paying regard to their arguments, if they 
 are good. If it were testimony, you might disregard 
 it, if you knew that it was purchased. There is a 
 beautiful image in Boyle upon this subject : testimony 
 is like an arrow shot from a long bow ; the force of it 
 depends on the strength of the hand that draws it. 
 Argument is like an arrow from a cross-bow, which 
 has equal force though shot by a child." % The exact 
 words of Boyle appear to be these : '' Testimony is 
 
 * Lord Brougham's Historical Sketches of Statesmen, 2d series, p. 66, 
 ed. 1839. 
 
 t " As every man naturally favors bis own discoveries, when he hears 
 an argument urged, which had before occurred to himself, he will certainly 
 embrace it as extremely convincing. The orator, therefore, should so 
 adapt himself to his audience, as to throw out something, which every one 
 of them, in turn, may receive and approve as conformable to his own par- 
 ticular sentiments." — Melmoth. Plin. Epist. i. 20. 
 
 X Life of Johnson, by Boswell, vol. viii. p. 281, ed. 1835.
 
 OF ADVOCACY. 257 
 
 like the sliot of a long bow, wliich owes its efficacy to 
 tlie force of the shooter ; argument is like the shot of 
 the cross-bow, equally forcible whether discharged by 
 a giant or a dwarf." ^ 
 
 Agreeably to what Boyle and Johnson say, the 
 argument of a " young counsel " may prevail over that 
 of onB older and more experienced. In Pepys' Diary 
 is found this note : "23d April, 1669. To the council 
 chamber, and heard two or three cases ; among others, 
 that of the complaint of Sir Philip Howard and AYat- 
 son, the inventors, as they pretend, of the business of 
 varnishing and lackerworke, against the Company of 
 Painters, who take upon them to do the same thing ; 
 where I saw" a great instance of the weakness of a young 
 counsel, not used to such an audience, ao-ainst the Solic- 
 itor-General and two more able counsel, used to it. 
 Though he had the right of his side, and did prevail 
 for what he pretended to against the rest, yet it was 
 with much disadvantage and hazard." f 
 
 As in the case mentioned by Pepys, a " young coun- 
 sel" may often be equal to the occasion, and prevail; 
 yet sometimes the strong massive structure of merits 
 and argument may require the strength and skill of a 
 "Solicitor-General" to subvert it. J 
 
 When the feelings of a jury are appealed to, then 
 supposing the advocate to be really moved by the situ- 
 ation of his client, moved to anger, pity, thirst for re- 
 dress for Avrongs inflicted by, it may be fraud, treach- 
 ery, cruelty ; if the advocate shows his emotion and 
 
 • * Johnson's Diet. v. Cross bow. t Pepys' Diary, vol. iv. p. 158, Gth etl. 
 I Few words suffice to win a cause that's phxin ; 
 A structure loose, what force can it withstand ? 
 Strongholds and firm-knit walls great strength must gain, 
 Although defended by a slothful band. 
 
 Ovid Trist. Lib. iii. EJ. xi. 21.
 
 258 OF ADVOCACY. 
 
 sym23atliy l^y liis words, countenance, and demeanor, 
 extending even to the sliedding of tears, tliis manifest- 
 ation of feeling will powerfully tell witli the jury, if 
 the evidence on the trial warrants the appeal, if the 
 bare tale told by the witnesses works on the jury's 
 feelings. But if this naked tale fail to move the jury, 
 they may susj^ect the advocate's emotion to be ]f{it on ; 
 it may j)ass in their minds, — " Eloquence takes either 
 side : " 
 
 '• Does justice, or the clieBt's sense. 
 Teach lawyers either side's defense ? 
 The fee gires eloquence its spirit ; 
 That only is the clieufs merit." * 
 
 This, in truth, is a weak point in hired advocacy ; 
 the fee begets a suspicion of simulated concern and 
 emotion. 
 
 Tears are indicative of a soft heart. f 
 
 But it is Cicero's advice, tiiat, when the jury are 
 touched, the advocate's tears should cease ; and this he 
 thinks, on good authority, they easily can.;]; 
 
 For the purj^ose of justice, a jury should possess a 
 pro23er fear of the advocate's 2:)ower of eloquence ; a 
 power of oj^posite tendencies, — able to lead aright, but 
 also to mislead ; having power to dazzle, fascinate, " to 
 make the worse appear the better reason ; " 
 
 " With magic dust their eyne he tries to blind." § 
 
 It is not, however, often that it is needful, or in 
 l^lace, to exhort a jury to beware of this baneful in- 
 fluence of eloquence. On a trial, it is commonly the 
 
 =^ Gay's Fables, part ii. 9. t Juvenal, xv. 131. 
 
 I So soon as their hearts are touched, it -will not be advisable to con- 
 tinue weeping ; and, as Appolonius has said, nothing dries up sooner than 
 a tear. — De Inventione, i. 56. 
 
 § Thomson's Castle of Indolence, canto ii. st. 41.
 
 OF ADVOCACY. 259 
 
 evidence tliat alone governs the verdict. A trial re- 
 sembles a contest, in wliicli tlie Avitnesses are tlie com- 
 batants. Tliese on tlie one side are pitched against 
 those on the other ; and the opposed advocates range 
 and fio'ht them, the one set asjainst the other. The end 
 of it is, — " Look here upon this picture, and on this ; " 
 each advocate claiming j^re-eminence for the evidence 
 on his own side. 
 
 Evidence is eloquence. It is usually, as it ought to 
 be, the most powerful kind of eloquence to 2>ersuade a 
 jury. It was probably so in the grand and memorable 
 defense of Hardy, on his trial for high treason in 1794.* 
 Hardy was indicted on that branch of the statute of 
 Edward III. which makes it treason to conspire to de- 
 pose the king and put him to death. Erskine and 
 Gibbs, the counsel for Hardy, rested his defense chiefly 
 on the evidence, that the intention of Hardy and the 
 persons indicted with him, was, not to dej^ose the king 
 and put him to death, but to procure a reform in the 
 House of Commons, according to the plan of the Duke 
 of liichmond contained in a letter which he had written 
 to Lieutenant-Colonel Sharman. To prove to the jury 
 that this was Hardy's only intention was the steadily- 
 continued aim of Erskine and Gibbs, in their cross-ex- 
 amination of the witnesses for the Crown, in their ex- 
 amination of the witnesses for the defense, and in their 
 addresses to the jury ; this intention to procure reform 
 they used as a wedge to drive out the intention in the 
 indictment to depose the king and to put him to death. 
 
 Of the two speeches of Erskine and Gibbs to the 
 jury, it is probable thcet, so far as j^leasure is excited in 
 an audience by the delivery of an address by a speaker 
 copious in words, of fruitful imagination, and ardent 
 and graceful in manner, the jury listened to the sj^eech 
 
 * See the Trial, takeu by Gurney, ed. 1795.
 
 260 OF ADVOCACY. 
 
 of Erskine witli greater pleasure than they did to 
 that of Gibbs. The dryness and heaviness of legal 
 topics, necessarily introduced into ErsMne's speech, as 
 the statute of Edward III., and the cases and authori- 
 ties upon the construction of it, must have been much 
 relieved, and the strain on the minds of the jury, by 
 long close legal arguments upon these topics, must have 
 been most beneficially eased, by ErsMne's occasional 
 excursions into topics of a lighter character; topics 
 more readily understood and supj)lying much refresh- 
 ment to the mind ; he every now and then diverging 
 into matter, which, as he said, " obtruded itself upon 
 his mind from common reading," and entering upon di- 
 gressions in which, to use his own words, " he must ex- 
 press himself as the current of his mind would carry 
 him." Buoyancy and life were poured into his address, 
 by his glance at and reprobation of the impeachment 
 of Warren Hastings, by his quotations from Thomson 
 and Burke and Johnson, by his eulogies of the charac- 
 ters and Avi'itings of these distinguished men, by his 
 feelino; mention of Burke, then " bending; beneath the 
 ju'essure of a domestic misfortune," and by his touch- 
 ing allusion to the recent death of the wife of Hardy, 
 who if convicted must return no more to his family — 
 " Alas, gentlemen, what do I say, he has no family to 
 return to ; the affectionate partner of his life has 
 already fallen a victim to the surprise and horror 
 which attended the scene now transacting." And in 
 putting an imaginary j^ossible case, that a conspiracy 
 to effect a reform in the House of Commons, by 
 pamphlets and speeches, might ^d in the death of the 
 king ; as in this way, — " which pamphlets and speeches 
 might produce universal suffrage, which universal suf- 
 frage might eat out and destroy aristocracy, which de- 
 struction might lead to the fall of monarchy, and, in
 
 OF ADVOCACY. 261 
 
 the end, to the death of the kiug," he was led to re- 
 mind the jury of the nursery story, "The House that 
 Jack Built : " — " Gentlemen, if the cause were not too 
 serious, I should liken it to the play with which we 
 amuse our children — This is the cow with the crumpled 
 horn, which gored the dog, that worried the cat, that 
 eat the rat, &c., ending in the house which Jack built." 
 
 Nevertheless, evidence may with a jury carry greater 
 weight, and be more persuasive, than the most fluent 
 and polished address of an advocate. And, so far as 
 evidence is an aid to an appeal to a jury, Gibbs had 
 this advantage over Erskine, that, since the address of 
 the latter, the jury had had before them the witnesses 
 for the defense, whose testimony brought in a vast ac- 
 cession of weight to the argument, that the design of 
 Hardy and his associates was, not to depose and put to 
 death the king, but, taking as their guide the plan of 
 the Duke of Richmond for reform, was merely tq cause 
 a reform in the House of Commons. Tliis argument 
 stored with its accumulated weight Gibbs presented to, 
 and kept before, the jury in a light so clear, that the 
 strength of it could not escape their notice and assent. 
 The ample passages which Gibbs read from the Duke's 
 letter on reform, the presence of the Duke himself in 
 court, a witness producing and avowing to the jury 
 his own letter, and the supj^osed speech (a happy sup- 
 position), which Giljbs, in his address to the jury, put 
 into the mouth of the Duke, as an advocate for Hardy, 
 — these circumstances could not fail to make evidence 
 eloquent, and they probably contributed more than 
 any thing else to cause the jury, sworn to give a true 
 verdict according to the evidence, to 'give the verdict, 
 which they did, of not guilty. 
 
 Bishop Sanderson, in a sermon preached by him at 
 the Assizes at Lincoln, in 1630, after noticing certain
 
 262 OF ADVOCACY. 
 
 impediments, that stand in tlie way of justice, goes on 
 to say, — " Add hereunto the great advantage or dis- 
 advantage, that may be given to a cause in the plead- 
 ing, by the artificial insinuations of a powerful orator. 
 That same neidih and Suadcn medulla^ as some of the old 
 heathens * termed it, that winning and persuasive 
 faculty, which dwelleth in the tongues of some men, 
 whereby they are able, not only to w ork strongly upon 
 the affections of men, but to arrest their judgments also, 
 and to incline them whether way they please, is an ex- 
 cellent endowment of nature, or rather (to speak more 
 properly) an excellent gift of God. Which whosoever 
 hath received is by so much the more bound to be truly 
 thankful to him that gave it, and to do him the best 
 service he can with it, by how much he is enabled 
 thereby to gain more glory to God, and to do more good 
 to human society than most of his brethren are. And 
 the good blessing of God be upon the heads of all 
 those,, be they few or many, that use their eloquence 
 aright, and employ their talent in that kind for the ad- 
 vancement of justice, the quelling of oppression, the 
 repressing and discountenancing of insolency, and the 
 encouraging and j)i'otecting of inuocency. But what 
 shall I say then of those, be they many or few, that 
 abuse the gracefulness of their elocution (good speak- 
 ers, but to ill purposes), to enchant the ears of an easy 
 magistrate Avith the charms of a fluent tongue, or to 
 cast a mist before the eyes of a weak jury, as jugglers 
 make sport with country people ; to make white seem 
 black, or black seem white ; so setting a fair varnish 
 upon a rotten post, and a smooth gloss upon a a^arse 
 cloth ; as Protagoras sometimes boasted, that he could 
 make a bad cause good, when he listed ? By which 
 
 * See Cic. Brutus, 15,
 
 OF ADVOCACY. 263 
 
 means judgment is perverted, the Lands of violence 
 and robbery strengthened, tbe edge of the sword of 
 justice abated, great oftenders acquitted, gracious and 
 virtuous men molested and injured. I know not what 
 fitter reward to wish them for their pernicious elo- 
 quence, as their best deserved fee, than to* remit them 
 over to what David hath assigned them in Psalm cxx., 
 — 'What reward shall be given or done unto thee, 
 O thou false tongue ? Even mighty and sharp arrows, 
 with hot burninoj coals.' " 
 
 ^ord Bi'ougham speaking of a class of men, whom 
 he calls " able," but who, it may be collected, are in his 
 estimation " inferior " to Lord Mansfield, Lord Erskine, 
 and Sir Samuel Romilly, and of which able, though in- 
 ferior, class he says Sir Vicary Gibbs was a " perfect 
 sample," gives the following general sketch of their 
 professional character : " The ^professional character of 
 the men, whom we are discussing, is generally pure and 
 lofty ; the order to which they belong is sacred in their 
 eyes ; its fame, its dignity, even to its etiquette, must 
 all be kept unsullied ; and whatever may be their pre- 
 judices and their habits, political or professional, how 
 great soever their difference to power, how profound 
 their veneration for the bench, how deep-rooted their 
 attachment to existing institutions, how fierce their 
 hostility to all innovations, how grave or how scornful 
 their frown upon the multitude at large ; yet is their 
 courage undaunted in defending whatever client may 
 intrust his suit to their patronage, be he a rabble-leader 
 or a treason-monger, a libeller or a blasphemer ; and in 
 discharging toward him the high duties of their repre- 
 sentative character, they so little regard either the re- 
 sentment of the government or the anger of the court 
 
 * Sanderson's Sermons, vol. 5. p. 273, ed. 1C81.
 
 264 OF ADVOCACY. 
 
 that tliey hardly are conscious of any effort in sacri- 
 ficing every personal consideration to the performance 
 of their rejiresentative, and, because it is representa- 
 tive, their eminently important office."'"' 
 
 Admitting that Sir V. Gibbs, and all the other " able," 
 but " inferior," men, his contemporaries, " attained not 
 unto the first three," Lord Mansfield, Lord Erskine, and 
 Sir S. Romilly, and admitting that neither do the modern 
 men of the same class attain unto their excellence, yet 
 advocates of every rank have all in common this, the 
 chief, duty of an advocate, — to see that justice be d8ne 
 to his client ; and consistent with this duty is, his en- 
 tire freedom from all desire that injustice befall his 
 client's adversary. An unrighteous, vexatious, or un- 
 gracious claim, or defense, may merit to be discounten- 
 anced, and baffled, and, according to circumstances, 
 scouted or laughed out of court. But before the claim 
 or defense is proved to be of this, or the like, hateful 
 nature, it is no part of an advocate's duty to make 
 himself a possible instrument of injustice to the adverse 
 side, by endeavoring to defeat it, not by evidence or 
 fair argument, but hj perplexing, stultifying or ridicul- 
 ing its honest witnesses, or by indulging in jests, rail- 
 lery, or sarcasm, against the adverse suitor himself.f 
 
 For the purpose of j)leading, an advocate lays aside 
 for the time his own individuality, and takes on him a 
 peculiar character, — a part j)ersonating his client; yet 
 not entirely, for this might make him speak with a false 
 tongue, but partially, and to the extent alone to see 
 that his client have justice. So considered, an advo- 
 
 * Historical Sketches of Statesmen, First Series, pp. 124, 127, 128, ed. 
 1839. And see Hor., De Ai-t. Poet. 367. 
 
 t He who runs in a race may fairly run as fast as he can ; but he is not 
 justified in tripping up his competitor, or pushing him down. — Cic. Off. 
 iii. 10.
 
 OF ADVOCACY. 265 
 
 cate in his own person gains no lionor by pleading for 
 the just, nor suffers dishonor by pleading for the unjust : 
 he is neither exalted if his client be of " the honorable 
 of the earth," nor debased if he be of the offscouring 
 of it. And such is the nature and chance of forensic 
 warfare, so much does it incline to opposition and con- 
 trast, that the advocate, who is now pleading for the 
 just, may on the very next trial plead for the unjust: 
 he who has now closed his brief for a defendant, whose 
 victory gives joy to a crowded court, may next repre- 
 sent a defendant, whose defeat the same audience, with 
 an opposite joy, exult in. 
 
 An advocate, as the rej^resentative of his client and 
 his organ of speech, can, so far as the law would per- 
 mit his client to do, advance and maintain any religious, 
 political, or other theory, tenet, or doctrine of his client, 
 however unreasonable, absurd, or fanciful, it may be. 
 And in doing this, if the advocate says what he himself 
 does not think, what his own judgment does not ap- 
 prove of, or perhaps condemns, he will, secretly at least, 
 wish it to be understood at the time, that he is not 
 uttering his own ojiinions, but only those of his client ; 
 and, the cause being ended, he will be at full liberty to 
 repudiate for himself personally any part, or the whole, 
 of what he has said professionally only for his client ; 
 and, in such a case, to object afterwards against the ad- 
 vocate, that the language he used exhibits his own per- 
 sonal principles, views, or sentiments, would be simply 
 folly. This distinction between the professional and 
 personal character of an advocate is draw by Cicero.* 
 
 * Any one makes a great mistake who thinks that he finds in my 
 foreust6 speeches my own deliberately-recorded opinions. For all speeches 
 of that kind take their form and color from the character of the suits and 
 times in which they are delivered. They must not be understood to ex- 
 hibit the opinions of the advocates personally. For if causes could speak 
 18
 
 266 OF ADVOCACY. 
 
 To suppose that an advocate necessarily himself 
 entertains all tlie opinions lie exj^resses for liis client 
 would be about as reasonable as to im23ute to an author 
 the morals of a character in his j^oem, novel, or play. 
 Ovid, on the part of the authors, has strongly protested 
 against such an imputation.* 
 
 In concluding this chaj^ter, a word may be said on 
 certain tendencies, which the constant exercise of the 
 professional duties of an advocate is aj^t to encourage 
 or occasion in him. This exercise of his duties is a 
 species of education. And as the bringing up of a j>er- 
 son may incline him to this or that particular opinion, or 
 this or that particular study or pui^suit, so the educa- 
 tion, which the advocate in the exercise of his duties 
 receives, may encourage or occasion in him certa^in ten- 
 dencies peculiar to his profession. 
 
 Archbishop Whately having made the observations 
 on the cross-examination of a witness, which have been 
 transcribed in the last chapter, goes on to say, — " I will 
 add one remark upon the danger incurred by the advo- 
 cate — even if he be one who would scruple either will- 
 fully to use sophistry to mislead a judge, or to perplex 
 and browbeat an honest witness — of having his mind 
 alienated from the investigation of truth. Bishop But- 
 ler observes, and laments (preface to his sermons), that 
 it is veiy common for men to have ' a curiosity to know 
 what is said, but no curiosity to know what is t?'ue.'' 
 Now, none can be (other points being equal) more in 
 need of being put on his guard against this fault than 
 he who is professionally occupied with a multitude of 
 cases, in each of which he is to consider what may be 
 
 for themselves, no one would employ an advocate ; but as it is, we are re- 
 tained to say, not what we ourselves may think, but what the cause in. 
 hand may inspire and dictate. — Cic. Pro Cluentio, 50. 
 * Trist. Lib. ii. El. i. 353.
 
 OF ADVOCACY. 267 
 
 plausibly urged on botli sides ; wLile the question loliat 
 ought to be the decision is out of his province as a 
 pleader. I am supposing him not to be seeking to mis- 
 lead by urging fallacious arguments ; but there will 
 often be sound and valid arguments — real probabilities 
 — on oj)posite sides. A judge, or any one whose busi- 
 ness it is to ascertain truth, is to decide according to 
 the preponderance of the reasons; but the pleader's 
 business is merely to set forth as forcibly as possible 
 those on his own side. And if he thinks that the 
 habitual practice of this has no tendency to generate 
 in him, morally, any indifference, or, intellectually, any 
 incompetency, in respect to the ascertainment of truth, 
 — if he consider himself quite safe from any such dan- 
 ger, — I should then say that he is in very great dan- 
 ger."* 
 
 If it be true that the pleader's business is, merely to 
 set forth as forcibly as possible the reasons on his own 
 side, the habitual practice of this kind of advocacy may 
 be followed by the danger just mentioned. It is very 
 certain that in many cases, where a question of fact, as 
 distinguished from law, is raised, an advocate has no 
 other source of learning: the truth of the matter in dis- 
 pute than his client's instructions, partial, it may be as- 
 sumed, to his own side. And in a case of this sort it 
 is not in the power of the advocate before the trial to 
 view the circumstances on both sides, and to search 
 among them for the truth. But even on a question of 
 fact, his power may not always be so limited. And on 
 a cpiestion of law, a joleader cannot set forth as forcibly 
 as possible the reasons on his own side, without first 
 havino: considered the reasons on the other side. If his 
 
 * Bacon's Essays, with Annotations by Archbp. Whately, p, 496, ed. 
 1856.
 
 268 OF ADVOCACY. 
 
 adversary's reason be strong, liis own argument will not 
 be as forcible as possible, unless it reduces, or at least 
 attempts to reduce, the strength of liis opponent's ; and 
 if liis adversary's reasons be weak, liis own argument 
 will not be as forcible as possible, unless lie makes Ms 
 opponent's weakness a part of liis own own strength. If 
 this be so, it follows tliat it is the duty of an advocate 
 to consider, on a question of law, the reasons on both 
 sides of the case ; and in the process of this considera- 
 tion it may easily hapj^en, either that the naturally in- 
 quiring mind of the pleader will lead him to look for 
 the truth, or that, without such inquiring mind, the 
 truth will flash upon him, although he make no search 
 for it. If this view of the subject be correct, a conse- 
 quence of it appears to be, that, on a question of law, 
 it is not the pleader's business, merely to set forth as 
 forcibly as possible the reasons on his own side ; but 
 that his duty is, to search into the reasons on both sides, 
 and, having done this, then to set forth as forcibly as 
 possible those on his own side. 
 
 It may further be remarked, that an advocate is in 
 less dano-er of havino- his mind " alienated from the in- 
 
 o CD 
 
 vestigation of truth" from the circumstance, that before 
 a person commences a suit, in which the question will 
 be one of law, he usually, by laying a case before coun- 
 sel, consults him on the prospect of success ; and a con- 
 sultation of this kind commonly j^recedes the defense 
 of a suit. So that in this way, whether the suit be 
 begun, or defended, or not, the advocate has both an 
 opjDortunity, and an obligation, to investigate truth. 
 For to give an opinion, that, so far as circumstances 
 will permit, may be a safe guide to the plaintiff or de- 
 fendant seekino^ advice, the advocate is oblio^ed to in- 
 vestigate the authorities on both sides, and by weighing
 
 OF ADVOCACY. 269 
 
 tliem to learn what, in liis judgment, is the result, or in 
 other words the truth."^ 
 
 * It appears that Lord Kenyon and Lord Eldon, when at the bar, dif- 
 fered very much in the attention they paid to cases : Mr. Kenyon profess- 
 edly bestowed little labor upon them ; while Mr. Scott felt they cast upon 
 him a responsibility that demanded much care and trouble in giving his 
 opinion. This is shown in the following extract from Lord Eldon's Anec- 
 dote Book: — "When I got into considerable business at the Bar, I was 
 much resorted to by professional persons, laying cases before me for my 
 opinions. Lord Kenyon, when at the Bar, made, one year (of which he 
 showed me evidence), by opinions only, about three thousand pounds — at 
 that time, according to the rate of fees given to counsel, a very large sum: 
 It was, however, his rule to consider himself as only required to read the 
 case, as it was stated to liirfi, and to give such opinion as his general 
 knowledge enabled him to give upon reading it, without looking for fur- 
 ther information as to matter of law, by looking into books. When he 
 afterwards became a Judge in Equity, the rule by which he governed him- 
 self, as to the facts of any case, was to consider himself as not bound to 
 seek for further information, as to those facts, than as the diligence of 
 counsel had stated them ; and his judgment was usually given, without 
 assisting himself by more than liis general knowledge of law enabled him 
 to aid himself, at the conclusion of the counsel's reply. It is due to the 
 very great law-learning of Mr. Kenyon, afterwards Lord Kenyon, to record, 
 that no lawyer, in my days, could, in this way of proceeding, do so much 
 justice to parties consulting him, or before him for judgment, as he could. 
 My business as to giving opinions was of very short duration. I could not 
 so far trust my knowledge of law, as to believe that I could not confirm it, 
 or improve it, by looking into books and authorities after I had read the 
 stated case. This led necessarily to delay, and sometimes to a correction 
 of that opinion which I at first entertained, and which the solicitor con- 
 sulting me wished to obtain perhaps. He then ceased, as to such matters, 
 to be a client of mine. But this sort of employment forsook me in a 
 greater degree, because, after my experience had taught me that cases upon 
 which opinions had been given (and upon the encouragement contained in 
 those opinions, suits had l.)een instituted) difi'ered materially and essentially 
 in circumstances from what were jjroved to be the real cases, when the 
 causes in such suits were heard, and that experience convinced me that a 
 great many attorneys, who had stated cases, could not but know, that 
 those were material and essential circumstances, which, being within their 
 knowledge ought to have been, but which were not, stated in the cases when 
 laid before counsel, I got into a habit prejudicial to myself, which I know in 
 some instances to have been very useful to others, of considering the pro- 
 bability or improbability of the correctness and sufiiciency of the state- 
 ment in cases laid before me ; stating in my opinions the vast difference it
 
 270 OF ADVOCACY. 
 
 A tendency to suspend his judgment on hearing 
 one side only of a case can scarcely fail to be a result 
 of an advocate's practice. On any question, in any 
 transaction of life, in which there may be opj)osite 
 sides, he, having heard one side only, is sure to inquire 
 what can be said on the other : it instantly occurs to 
 him to say, audi alteram partem. This fruit of his 
 study and j)ractice is truly valuable. A hasty conclu- 
 sion on hearing one side only is, in every-day life, fre- 
 quently an occasion of much misconception of things 
 really said or done, of coolness or heat between friends, 
 of injurious acts, and even of irremediable injustice. 
 
 would make in the judgment if a suit were instituted, if facts were either 
 suppressed or matters stated which were not facts, or if facts, so far as the 
 statement went, were not the whole truth of the case ; and then pointing 
 out in the ojjinion what I thought possible, or conjectured, to be matters, 
 which might form part of the case, though not at all stated, and circum- 
 stances which might qualify the effect of the facts, which might be only 
 partially stated ; leaving it to the party consulting me to make any repre- 
 sentation as to such things as he might think proper ; or to act upon an 
 opinion which had all such qualifications in the body of it. Among solici- 
 tors and attorneys there were many very worthy men ; there were others 
 certainly not such ; as there are in all other classes of men, good and bad. 
 One of the worthiest I have known said, they did not want opinions that 
 had so many ' Lfs ' in them ; that such would not do for them ; that they 
 si^oilt business ; and certainly they, aided by a disinclination which I had 
 to be engaged in a branch of the profession of so much responsibility, and 
 with reference to which I thought so much care and trouble absolutely 
 necessai-y, entirely spoilt my opinion business." — Xi/e of Lord Eldon^ hy 
 Twiss, vol. i. p. 136, ed. 1844.
 
 CHAPTER XIII. 
 
 OP CONCLUSION FKOM FACTS. 
 
 The purpose of an inquiry into facts before a jury- 
 is, to draw a conclusion from them, — an answer to the 
 particular question they raise. 
 
 In the majority of cases the evidence of witnesses 
 consists of ordinary matters of fact, common things 
 which i^ersons have said or done, which the witnesses 
 have heard or seen, and which a jury have little or no 
 trouble in makiuo: themselves masters of But other 
 cases present very considerable difficulties ; cases, for 
 example, into which there enter the principles and 
 practice of a particular science or art, and the under- 
 standing of which by the jury is indispensable to a 
 right verdict. Civil cases of this kind are causes relat- 
 ing to manufactures and i:>atents. And, on criminal 
 trials, frequently much of the evidence, and the most 
 important part of it, consists of professional testimony 
 of physicians, surgeons, and chemists. And in both 
 the civil and criminal cases, a great part of the evidence 
 is necessarily, and, if not necessarily, is often naturally, 
 and as most convenient to the witnesses, given by them 
 in scientific and technical language. 
 
 It may sometimes happen that part of the jury 
 bring to the trial a knowledge, sufficient for their pur- 
 pose, of the science or art introduced into the evidence. 
 But as a jury are men taken from the public, without 
 any regard to the kind of evidence, the scientific or 
 technical testimony, they will hear, it generally perhaps 
 haj^pens that all the jury have during the trial to be
 
 272 OF C02?CLrSI0N FROM FACTS. 
 
 taught by the witnesses, in their evidence, so much 
 scientific and technical knowledge as the jury require 
 to arrive at a i3roper verdict in the case. 
 
 The positive, uncontradicted, opinion of a witness 
 learned in a particular science, art, or other branch of 
 knowledge, the jury may, without hesitation, rely on, 
 and make their own, for the j)urpose of their verdict ; 
 and this, although at the time they do not understand, 
 and have not the means of inquiring into, the princi^^les 
 or grounds of the opinion they hear.* This faith in, and 
 adoption of, other men's opinion is no more than is 
 found in other aftairs and actions of our lives. On this 
 point we may take instruction from Locke and Hooker. 
 " A man," says Locke, " who never took the pains to 
 observe the demonstration, hearing a mathematician, a 
 man of credit, affirm the three angles of a triangle to 
 be equal to two right ones, assents to it, i. e., receives it 
 for true. In which case the foundation of his assent is, 
 the probability of the thing, the proof being such as 
 for the most part carries truth with it ; the man, on 
 whose testimony he receives it, not being wont to affirm 
 any thing contrary to, or besides, his knowledge, es- 
 pecially in matters of this kind." ^ 
 
 " If," observes Hooker, " it be admitted, that, in 
 matter of fact, there is some credit to be given to the 
 testimony of man, but not in matter of opinion and 
 judgment, we see the contrary both acknowledged, and 
 universally practiced also, throughout the world. The 
 sentences of wise and expert men were never but highly 
 esteemed. Let the title of a man's • rio-ht be called in 
 question, are we not bold to rely and build upon the 
 judgment of such as are famous for their skill in the 
 laws of this land ? In matter of state, the weight 
 
 * Locke on Human Understanding, book vi. cli. xv.
 
 OF CONCLUSION FROM FACTS. 273 
 
 many times of some one man's authority is thought 
 reason sufficient even to sway over whole nations. And 
 this is not only with the simj^le sort ; but the learneder 
 and wiser we are, the more such arguments in such 
 cases prevail with us. The reason why the simpler 
 sort are moved with authority is, the conscience of their 
 own ignorance ; whereby it cometh to pass, that having 
 learned men in admiration, they rather fear to dislike 
 them than know wherefore they should allow and fol- 
 low their judgments. Contrariwise with them that are 
 skillful, authority is much more strong and forcible ; 
 because they only are able to discern how just cause 
 there is why to some men's authorit}^ so much should 
 be attributed. For which cause the name of Hippo- 
 crates, no doubt, was more effectual to persuade even 
 such men as Galen himself than to move a silly em- 
 piric ; so that the very selfsame argument in this kind, 
 which doth but induce the vulgar sort to like, may con- 
 strain the wiser to yield. And therefore not orators 
 only with the people, but even the very profoundest 
 disputers in all faculties, have thereby often with the 
 best learned prevailed most." * 
 
 In preparing for their verdict on the facts detailed 
 in evidence, a main object of a jury will be to set 
 these facts in such an order and light as will give them 
 the best view of them, and so facilitate their decision 
 upon them. As every thing depends on their belief of 
 the witnesses, they w^ill probably begin by considering 
 the credit due to them, giving to every one the credit 
 which they think he is entitled to, and refusing to give 
 any credit to others whom they find to be unworthy 
 of belief. Another step will be to weigh directly con- 
 tradictory testimonies, keeping the one which they 
 
 * Hooker's Ecclesiastical Polity, book ii. s. 7.
 
 274 OF CONCLUSION FROM FACTS. 
 
 think preponderates, and discarding the other. Oppos- 
 ing testimonies, which admit of reconciliation, they 
 will reconcile accordingly. By a sifting process they 
 -^vill dismiss from their minds all the immaterial facts. 
 In the case of two or more defendants affected by dif- 
 ferent evidence, the jury will make the necessary sej)a- 
 ration and adjustment of the evidence. By these and 
 the like means, according to the circumstances of each 
 case, the jury will have drawn into a comj^aratively 
 small compass all the facts they need now at all look 
 at. In this state of things the ivitnesses' parts are 
 over; they have left the scene; and the facts which 
 the jury have now to attend to stand by their own 
 strength ; such as they are, there they are ; and the 
 jury have not now to consider how they came by them. 
 
 These facts ranged in their proper places, as time 
 and other incidents require, form a story. Often there 
 is direct evidence of every part of the story ; to com- 
 plete the tale there is not wanting direct evidence of 
 any fact. 
 
 In other cases, the facts proved by direct evidence 
 form an incomplete story ; the chain, of facts composing 
 it is imperfect ; to complete the chain there is wanting 
 evidence of some link in it. In a case of this sort, the 
 missing fact can sometimes be supplied by the facts 
 proved by the direct evidence ; from these facts the one 
 missing can be inferred. The circumstances proved by 
 the direct evidence sujoply the inference ; they are thus 
 themselves evidence, although not direct, of the fact 
 wanting ; and they, united with the inference, consti- 
 tute what is, and is called, circumstantial evidence. To 
 draw the inference is the province of the jury. 
 
 When from acts j^roved by direct evidence against a 
 prisoner a jury infer his intention in doing them, the
 
 OF CONCLUSION FROM FACTS. 275 
 
 direct evidence, together with the inference, from cir- 
 cumstantial evidence against him. 
 
 Intention, in the sense of design, j^urpose, with 
 which an act is done, is a common subject of inquiry 
 by a jury. Intention is a mental fact ; it exists in the 
 mind of the man who conceives it.^ It is in his jDower 
 to conceal it from all other men. If he does nothino; 
 by word nor act to disclose it, no one else can penetrate 
 to it, no other person need imagine its existence. But 
 the man himself, in whose mind it exists, can and often 
 does disclose it to others purposely and exj^ressly by 
 his words, oral or in writing. And besides, through 
 some act of his, undesignedly on his part, his intention 
 may be revealed. If from his intention as their source 
 he does certain acts, from them other persons may, con- 
 trary to the man's will and expectation, infer the in- 
 tention from which his acts proceeded. 
 
 The following questions of intention have been left 
 to a jury : — 
 
 1. The intention of a person who hired a horse, as 
 *he said, to go to a particular place, but who on the 
 
 same day sold the horse ; — whether he meant, at the 
 time of the hiring, to take such journey, but was 
 afterwards temj^ted to sell the horse ? or whether, at 
 the time of the hiring, he had no intention to take the 
 journey, but meant to sell the horse ?f 
 
 2. The Riot Act, 1 George I., c. 5, provides, that if 
 any persons unlawfully and riotously assembled shall 
 unlawfully demolish or pull down, or begin to demolish 
 or i^ull down, any dwellin'g-house, then the persons in- 
 jured shall be entitled to damages, to be recovered as 
 in the Act mentioned. In an action on this statute it 
 appeared at the trial, that, during a time of scarcity, 
 
 * See ante page 9, note. 
 
 t Pear's Case, 1 Leacb, 253. Charlewood's Case, ih. 456.
 
 276 OF CONCLUSION FROM* FACTS. 
 
 upwards of a hundred persons, assembled together, 
 came to the house of the plaintiff, who was a baker, 
 and asked if he had any flour ; and being answered in 
 the affirmative, they said they would have it at 2s. a 
 stone (it being then worth about 5.S.). The plaintiff 
 said he could not afford it at that price ; but they in- 
 sisted on having it ; and he, not able to resist, began to 
 measure it out in small quantities. The rioters then 
 began to break the windows of the bakehouse, and the 
 dwelling-house adjoining, and broke the glass of three 
 windows, and also the shutters. They took about ten 
 stone out of the bakehouse, which was sold at the 
 price named by themselves. The judge told the jury, 
 if they were satisfied that the mob, who broke the 
 glasses of the windows, and the shutters, meant to stop 
 there and proceed no further, it might be too much to 
 say that it was a beginning to demolish, cfec. within the 
 statute ; but if they thought that the mob came with 
 an intention to proceed to farther acts of demolition, if 
 they could not otherwise effect their purpose, then it 
 was a beofinnino; to demolish, <fec. within the meanins^ of* 
 the Act, and consequently that the plaintiff was entitled 
 to recover. The jury found for the jDlaintift' to the 
 amount of all the damage proved.* 
 
 "When a robbery or murder is committed, there is 
 usually direct evidence of many circumstances which 
 attended the commission of the crime ; but to bring the 
 guilt home to, to fix it on, a particular person as the 
 perpetrator of it, the direct evidence often fails ; in the 
 chain of testimony this link is wanting ; and then some- 
 times the direct testimony is strong enough, and at 
 other times too weak, to justify an inference from it that 
 the person on trial for the crime is guilty of it.f 
 
 * Burrows t. Wright, 1 East, 615. 
 
 t If a man is run through with a sword, and you, always a violent man,
 
 OF CONCLUSION FROM FACTS. 277 
 
 It is clear that often " imputation and strong cir- 
 cumstances lead directly to the door of truth ;"* and 
 circumstantial evidence is by many thought more satis- 
 factory and conclusive than evidence which is wholly 
 direct. This is nowhere, perhaps, better expressed than 
 in the following words of the Chief Justice on the trial 
 in Dul)lin in 1823 of Forbes, and others, for a con- 
 spiracy and riot : " I am warranted in saying, that cir- 
 cumstantial evidence is frequently considered more 
 unerring and satisfactory than direct proof, which may 
 be the result of misrepresentation and perjury. If a 
 man be murdered, but no one sees by whom, or how, 
 there can be no direct evidence of the fact: but if 
 another person, who has been known to have borne an 
 ancient grudge against the deceased, and has been heard 
 to make sanguinary and vindictive declarations against 
 him, be found near the bleeding corpse with a deadly 
 instrument covered with blood ; this, though not direct 
 evidence of his guilt, would yet, if unexplained, form a 
 mass of circumstantial evidence which it would be next 
 to impossible for the human mind to resist. Again, in 
 the more common case of robbery, it most frequently 
 occurs, that there is no direct proof of the commission 
 of the crime [by a particular person]. But if the 
 stolen goods be found, instantly after the robbery, in 
 the immediate neighborhood of the place where the 
 crime was committed, upon a person who can give no 
 satisfactory account of them, it furnishes evidence most 
 powerful and satisfactory of his having committed the 
 offense."f 
 
 at enmitj' with him, and holding a sword that is bloody, are the onlj' 
 person seen on the spot, and there is no reason to suspect any one else, how 
 can I doubt of your guilt ? — Cic. Be Orat. 11. 40. 
 
 * Othello, A. iii. S. 3. t Greene's Report of the Trial, p. 350.
 
 278 OF coi;rcLusiON from facts. 
 
 The result of circumstantial evidence can be but 
 probability, not certainty; as probability of guilt, not 
 certainty of it. And probability of guilt arising from 
 cii'cumstantial evidence may ultimately, and too late to 
 save innocence, be discovered to have been ill-founded. 
 
 One instance of this kind, which occurred in the 
 the reign of James I., is thus mentioned by Sir E. Coke : 
 '^ In the county of Warwick there were two brethren, 
 the one having a daughter, and, being seized of lands in 
 fee, devised the government of his daughter, and his 
 lands, until she came to her age of 16 years, to his 
 brother. The uncle brought up his niece very well, 
 both at her book and needle, etc. ; and she was about 
 8 or 9 years of age ; her uncle for some offense correct- 
 ing her, she was heard to say, ' Oh, good uncle, kill me 
 not.' After which time, the child after much inquiry 
 could not be heard of Whereupon the uncle being 
 suspected of the murder of her, the rather for that he 
 was her next heir, was committed to gaol upon suspicion 
 of the murder, and was admonished by the Justices of 
 Assize to find out the child, and thereupon they bailed 
 him until the next assizes. Against which time, for 
 that he could not find her, and fearing what would fall 
 out against him, he took another child, as like unto her 
 both in person and years as he could find, and ap- 
 parelled her like unto the true child, and brought her 
 to the next assizes ; but upon view and examination 
 she was found not to be the true child ; and upon these 
 presumptions, he was indicted and found guilty, and 
 was hanged. But the truth of the case was, that the 
 child being beaten over night, the next morning, when 
 she should go to school, ran away into the next county, 
 and was received and entertained of a stranger ; and 
 when she was 16 years old, at what time she could
 
 OF CONCLUSION FROM FACTS. 279 
 
 come to her land, she came to demand it, and was di- 
 rectly proved to be the true child."* 
 
 Another instance is thus noticed by Sir M. Hale : 
 " If a horse be stolen from A., and the same day B. be 
 found upon him, it is a strong presumption that B. stole 
 him ; yet I do remember, before a very learned and 
 wary judge, in such an instance B. was condemned and 
 executed at Oxford Assizes ; and yet within two assizes 
 after, C, being apprehended for another robbery and 
 convicted, upon his judgment and execution confessed 
 he was the man that stole the horse, and, being closely 
 pursued, desired B., a stranger, to walk his horse for 
 him while he turned aside upon a necessary occasion, 
 and escaped ; and B. was apprehended with the horse, 
 and died innocently."f 
 
 But even where all the evidence on a trial is direct^ 
 
 * 3 Inst. 232. 
 
 t Hale's P. C, vol. ii. p. 289. [In 1816 was published a tract, 
 entitled " The Theory of Pr?sumptive Proof ;" it was inserted as an 
 appendix to the first American edition of PhDips; to this pamphlet 
 was subjoined eleven startling cases of erroneous convictions upon 
 circumstantial evidence. The pamphlet made a noticeable sensation 
 for a time, and had such an effect upon juries that some judges for> 
 bid counsel referring to it. See Cowen and Hill and Edwards' notes to 
 Phil. Ev. edit. 1868, p. 590 [714]. A story is reported in the Gentleman's 
 Magazine for 1763, said to be on the authority of Justice Dyer, of a trial 
 for murder, in which the circumstances pointed strongly to the guilt of the 
 prisoner, and eleven jurymen were for conviction, but the twelfth refusing to 
 concur the jury were dismissed, and ultimately the prisoner discharged. 
 Subsequently the dissenting juryman confessed to Justice Dyer that he 
 himself was the murderer. Such stories are not entitled to any credence ; 
 it frequently happens, in cases which occasion great excitement (as in the 
 case of Dr. Burdell), that persons wholly imconnected with the offense 
 surrender themselves as the murderers ; in the case of Dr. Burdell it 
 actually occurred that a man, bearing the same name as one of the 
 jurymen on the trial of the alleged murderer, claimed that he was on the 
 jury, and was himself the murderer. Snch confessions find a parallel in 
 the extraordinary confessions of. persons charged with witchcraft. Such 
 confessions are attempted to be accounted for in Mr. Upham's book on 
 Salem Witchcraft.
 
 280 OF CONCLUSION FEOM FACTS. 
 
 it may happen that the conclusion which the jury come 
 to upon it is not grounded on truth ; for not only may 
 honest witnesses be themselves deceived, and give posi- 
 tive testimony of that which is not true ; but dishonest 
 witnesses may perjure themselves in their direct testi- 
 mony. The state of society in the reign of Henry VI. 
 must have been very bad, when Fortescue could at that 
 time thus WTite of false witnesses ; — he is speaking of 
 the Trial by Witnesses (without a jury), according to 
 the manner of the Civil Law, and says, — " By the course 
 of Civil Law, the party, who, upon the trial, holds the 
 affirmative side of the question is to produce his witnesses 
 whom he is at liberty to name at his pleasure. On the 
 other hand, a negative is incapable of being proved ; 
 I mean directly, though indirectly it is otherwise. 
 Now, he may well be thought a person of an incon- 
 siderable interest, and of less application, who, from 
 the gross of mankind and all his acquaintance, cannot 
 find out two, so devoid of conscience and all faith, who, 
 through fear, inclination, aifection, or for a bribe, will 
 not be ready to gainsay the truth. So that the party, 
 to make good his cause, is at his liberty to produce two 
 of such a stamp ; and if the other 23arty had ever so 
 much mind to object against them or their evidence, it 
 will not always happen that they are or can be known 
 by the party defendant in the cause, in order to call in 
 question their life and conversation, that, as persons of 
 a profligate character, they might be cross-examined; 
 upon which account their evidence might be set aside : 
 and seeing their evidence is in the affirmative, it is not 
 so capable of being overthrown by circumstance, or any 
 other indirect j^roofs."* 
 
 The last century furnishes an instance of a verdict 
 
 * Fortescue, De Laudibus Leg. Aiigl., cli. xsi.
 
 OF COKCLUSIOIf FROM FACTS. 281 
 
 founded on direct testimony, by wliicli tlie mtnesses per- 
 jured themselves, and by their false evidence took away 
 the life of an innocent man. This is the well-known 
 case of Macdaniel, Berry, and Jones, tried at the Old 
 Bailey in January, 1754. In this case Joshua Kidden 
 was tried for robbing Mary Jones on the highway. 
 Mary Jones, the prosecutrix, swore very positively to 
 the person of the prisoner, and to the circumstances of 
 the robbery, in which she was confirmed by Berry. 
 Kidden, on the evidence of these two witnesses, was 
 convicted, and executed. Afterwards the reward of 
 <£1:0, given by the Stat. 4 cfe 5 W. ct M., c. 8, to those 
 who should convict a highway robber, was divided 
 among the prosecutrix Mary Jones, John Berry, Stephen 
 Macdaniel and Thomas Cooj)er. The history of the pros- 
 ecution lay concealed until August, 1754, when, another 
 man being taken up on suspicion of being a thief, the 
 charo'e a2:ainst Kidden was discovered to have been a 
 conspiracy and contrivance to obtain the reward.* 
 
 * Leach, 52. [A train of cars was thrown from the track, killing the engineer 
 William L. Dodge. The accident was occasioned by some person having 
 placed stones upon the track. John Tallmadge, a well-to-do farmer, was 
 suspected of being the guilty person ; the circumstances against him were, 
 that the railroad ran through his farm, several of his cattle had been killed 
 by passing trains, and he had been heard to say, he " Hoiked to God the 
 cars would run off," and he was reputed to be of a most vindictive dispo- 
 sition. The railroad company oflered a reward for the discoveiy of the 
 oflendcr. Two men, natives of Ireland, came forward and deposed to hav- 
 ing seen Tallmadge place the stones upon the track. Tallmadge was 
 charged with the murder of Dodge, and, upon the evidence of these two 
 men, a true bill was found, and Tallmadge was put upon his trial at Ball- 
 ston Spa, New York, in December, 1849. Upon the trial it was satisfac- 
 torily shown, that at the time of the accident the two witnesses were in 
 Ireland. Tallmadge was acquitted, and the witnesses detained to answer 
 for their perjury, committed, no doubt, to obtain the reward offered by 
 the railway company. 
 
 In the winter of 1856, a youth named Charles E. Sage, aged about 19, 
 was missed from his home in Cromwell, near Middletown, Connecticut. 
 Suspicion fell upon a man named Patrick Nugent of having murdered the 
 19
 
 282 OF co:s^CLUSiON from facts. 
 
 AVlien a jury convict on direct evidence given by 
 perjured persons, they are deceived by an artfully fabri- 
 cated story. This power of invention may be found in 
 persons who would abhor to apply it for any purpose 
 of injury to, or tending to be hurtful to, others. "VYe 
 have the authority of Lord Clarendon that one of the 
 most skillfol fabricators of a false. tale of things said and 
 done by others was Dr. AYilliams, who was Keeper of 
 the Great Seal in the time of James L, and Archbishop 
 of York in the reign of Charles I. Of him Lord Clar- 
 endon says, — " He had a faculty of making relations of 
 things done in his own presence, and discourses made 
 to himself, or in his own hearing, with all the circum- 
 stances of answers and replies, and upon arguments of 
 great moment ; all which, upon examination, were still 
 found to have nothing in them that was real, but to be 
 the pure effect of his own invention." And the same 
 historian relates of him, that after meeting and confer- 
 ence between the Archbishop and some of his friends 
 on a matter of importance to the Archbishop, he " re- 
 peated the several and distinct discourse every man had 
 
 lad, and put Ms body under tlie ice in the Connecticut river. Nugent was 
 arrested, but discharged for want of evidence to connect hiili with the lad's 
 disappearance. Some months after, a headless corpse was found in the river. 
 From marks on the body, and from the clothing, this was supposed to be 
 the body of Sage ; there was also found the lining of an overcoat, answering 
 the description of that worn by him just previous to his being lost. Again 
 an interval, and a man named John A. Benson, a sailor, came to Cromwell, 
 and accused ' Nugent of having murdered Sage. Benson stated he saw the 
 murder committed, and assisted in putting away the remains ; he accurately 
 described the appearance, dress, etc., of Sage, and further stated that he 
 came to Cromwell expressly to divulge his knowledge concerning the mur- 
 der, as it preyed upon his mind. Xugent persistently denied his guilt, but 
 exhibited signs of fear, which were construed as evidence of his guilt. 
 A true bill for murder was found against Nugent, and his trial appointed 
 to take place in December, 1857, at Hadden, Connecticut. In the mean time, 
 Sage was discovered to be alive and living at Ithaca, New York. No mo- 
 tive was apparent for the conduct of Benson.]
 
 OF COXCLUSIOX FROM FACTS. 283 
 
 made ; in wbicli lie was so punctual, that be applied 
 those phrases and expressions, and manner of speech^ 
 to the several men, which they were all taken ngtice of 
 frequently to use ; as many men have some peculiar 
 w^ords in discourse, which they are most delighted with, 
 or by custom most addicted to." Lord Clarendon adds, 
 " There was not indeed the least shadow of truth in the 
 whole relation, except that there Avas such a meeting 
 and conference."'^' 
 
 When on a trial evidence is given by two witnesses, 
 each of whom directly and entirely contradicts the 
 other, the verdict sometimes depends wholly on the 
 preponderance, which, on a balance of their credit, the 
 jury find to be in the credit of one of them; not credit 
 founded on their characters alone, but on all the cir- 
 cumstances in evidence. In these cases, the only ques- 
 tion for the jury is, whether they believe A. or B. ; a 
 question that often causes them much perplexity. The 
 consideration of preponderance may arise where nei- 
 ther of the two witnesses is a party,. nor the wife of a 
 party, to the cause ; or where one of the witnesses is a 
 party, or the wife of a party, to the cause ; and the 
 other a witness for the opposite party : or where the two 
 witnesses are themselves the opposed parties in the 
 cause : or where one of the witnesses is the wife of the 
 one party, and the other is the wife of the other pai'ty. 
 In a case of contradiction of this nature, if the jury 
 on the evidence believe one or both of the witnesses to 
 be dishonest, this belief alone may not remove their 
 difficulty ; it may still leave them much trouble to de- 
 cide, to whose testimony they should give the greater 
 weight.* For supposing one only of the witnesses to be 
 believed to be dishonest, his dishonesty may not so far 
 
 * Clarendon's Hist, of the Rebellion, vol. i. part iv. p. 345, ed. 1707.
 
 284 or CONCLUSION from facts. 
 
 infect and clamao-e his whole evidence, as to make it vail 
 before the weak evidence of the other, although honest, 
 witness. And if both the witnesses are believed to be 
 dishonest, this equality of character being settled, there 
 will still remain the question, of the two, whose evi- 
 dence is more to be trusted. 
 
 If the jury believe both the witnesses to be honest, 
 and equally so, this necessarily contracts their inquiry, 
 and saves them much trouble, for dishonesty is then out 
 of the question. And in any case, wdiether the wit- 
 nesses be honest or dishonest, so soon as the question of 
 credit founded on character is settled, the jury, for 
 the purpose of determining whether, of the two wit- 
 nesses, they believe A. or B., will have to turn to other 
 considerations authorized by the evidence ; as, for in- 
 stance, according to probability on the circumstances, 
 whether this or that witness' original perception of 
 things, he says he saw or heard, was perfect or defec- 
 tive ; whether the impression they made on him was 
 strong or weak ; whether his remembrance of them is 
 to be depended on. In these cases, if, after every con- 
 sideration, the matter stands in effect simply thus : 
 " The one saith, This is my son that liveth, and thy son 
 is the dead : and the other saith, Nay ; but thy son is 
 the dead, and my son is the living ;"* it is plain the 
 jury Avill require the wisdom of Solomon to decide be- 
 tween two such direct and entire contradictions. 
 
 The difficulty a jury may sometimes have in com- 
 ing to a right conclusion on evidence is thus forcibly 
 stated by Bishoj) Sanderson, in a sermon preached by 
 him at the Assizes, at Lincoln, in 1630: "And as he 
 [the magistrate] may be ignorant in matter of fact, for 
 want of due information ; so may he secondly be doubt- 
 
 * 1 Kings, iii. 23.
 
 OF CONCLUSION FROM FACTS. 285 
 
 ful in point of right, for want of clear and full evidence. 
 "Whereof also there may be divers reasons ; and among 
 the rest these which I shall now propose : First, the 
 great diversity, yea, sometimes flat repugnancy and con- 
 trariety, that is between the informations on the one 
 side, and on the other. For men are extremely 23artial, 
 and will not tell their own tales with such sincerity 
 and indifferency as they ought ; but as much in favor 
 of themselves, and to the prejudice of their adversaries, 
 as they can devise to do with any show of probability. 
 We used to say, one tale is good till another be told : 
 and the j^roverb is true, in that sense wherein it was 
 first meant, and is commonly understood. Solomon 
 hath a proverb much to the same purpose, — ' He that is 
 first in his own tale seemeth righteous ; but then his 
 neisfhbor cometh and searcheth him out.' The meauinc: 
 is plain, one tale is good ; that is, Avhether it be so or 
 not, it seemeth so at the first hearing. But if we will 
 speak of things, not after the appearance, but according 
 to truth, and pronounce of them as they are, and not as 
 they seem ; may we not much rather invert the proverb, 
 and say : one tale cannot be good, till the other be told ? 
 That is, whether it be good or not, the judge may not 
 give credit to either, till he hath heard both. Nay, 
 may we not many times further say, when both tales 
 are told, that neither is good ? Because there is most- 
 what in every man's tale a mixture of some falsehoods 
 with some truths ; whereby it may so happen sometimes, 
 that he which hath in truth the more equity on his 
 side, by the mingling in some easily discoverable false- 
 hoods in telling his tale, may render his cause the more 
 suspicious to him that heareth it, to think the whole 
 tale naught ; and he that hath indeed, and upon the whole 
 matter, the worst cause, may yet, by the weaving in 
 some evident truths, or pregnant probabilities, in the
 
 28G OF CONCLUSION FEOM FACTS. 
 
 telling of Lis tale, gain sucli credit witli liim that hear- 
 eth it, that he will be very inclinable to believe the 
 whole tale to be good. Or, howsoever, they may be 
 both so equally false, or at least both so equally doubt- . 
 ful, as no one that heareth them can well tell whether 
 of both to give credit to. It was so in the famous case 
 of the two inmate harlots, whereof King Solomon had 
 the hearing. The living child is mine, the dead one 
 thine, saith the one ; no, saith the other, the dead child 
 is thine, and the living mine. Here were presumptions 
 on both sides (for why should any Avoman challenge 
 another woman's child ?) ; but proofs on neither (for 
 being there were none in the house but they two, neither 
 of them could produce any witnesses). The case hung 
 thus even : no more evidence on the one side than on 
 the other ; no less confidence on the one side than on 
 the other. Solomon, indeed, by that wisdom wherewith 
 God had endowed him in a transcendent measure, found 
 out a means whereby to turn the scales, to untie that hard 
 knot, and to discover the hidden truth. But what 
 could a judge, or a jury, of no more than ordinary wis- 
 dom, then have been able to have said or done in such 
 a case ; but even to have left it as they found it ? And 
 truly for any thing I know, ignorance must have been 
 their best excuse."* 
 
 By the English law a jury upon a trial consists of 
 twelve'men, and the whole twelve are required to be of 
 one mind, to join unanimously in their verdict. Where 
 there is much latitude of circumstance and reasoning, 
 the nature of mankind is such, that men differ very 
 materially in the opinions they form on a particular 
 subject, be it religion, politics, or a branch of science 
 or art. But the circumstances of a trial, the question 
 
 * Bishoii Sanderson's Sermons, vol. i. p. 271, ed. 1681.
 
 OF CONCLUSION FROM FACTS. 287 
 
 they raise, and tlie reasoning required to arrive at a 
 verdict, are of a limited range ; and yet on a question 
 so circumscribed, it is sometimes found tlie jury difter 
 in tlieir oj^inions upon it, and from this want of unani- 
 mity are unable to return a verdict. 
 
 Supposing each of the twelve men, relatively to the 
 rest, to possess equal intellectual powers, and equal 
 qualifications of other kinds, required for the discharge 
 of their duty, it may be expected that they will easily 
 agree in their conclusion upon the evidence. But when, 
 a jury, as often is the case, are selected from a large 
 number of men, and, as regards the persons chosen, are 
 brought together without distinction of mental powers 
 or acquirements, without consideration of age, their 
 professions, their trades, their habits, and manner of 
 life, it is not to be wondered at, and is rather to be ex- 
 pected, that a difference of opinion among them should 
 sometimes be found. Each is exactly the same man in 
 court as he Avas out of it : Avhatever powers of mind, 
 whatever habit of reasoning, whatever notions, what- 
 ever love of his own opinion, and obstinacy in ad- 
 hering to it, " stiff in opinions, always in the wrong,"* 
 — in a word, whatever good or ill quality he pos- 
 sessed out of court, this he brings with him into 
 it. 
 
 Among the jury may be men, who, some too quick, 
 and others too slow, in arriving at a decision ujion any 
 subject, are thus described by Archbishoj) AVhately : 
 " It is worth remarking, that many persons are of such 
 a disposition, as to be nearly iucaj^able of remaining in 
 doubt on any point, that is not wliolly uninteresting to 
 them. They speedily make up their minds on each 
 question, and come to some conclusion, whether there 
 
 * Absalom and Ahithophel.
 
 288 OF CONCLUSION FROM FACTS. 
 
 are any goods grounds for it, or not. And judging, as 
 men are apt to do in all matters, of others from them- 
 selves, tliey usually discredit the most solemn assurances 
 of any one Avho professes to be in a state of doubt on 
 some question ; taking it for granted that, if you do 
 not adopt their oj)inion, you must be of the opposite. 
 Others, again, there are, who are capable of remaining 
 in doubt, as long as the reasons on each side seem ex- 
 actly halanced y but not otherwise. Such a person, as 
 soon as he perceives any, the smallest, preponderance of 
 probability on one side of a question, can no more re- 
 frain from deciding immediately, and with full convic- 
 tion, on that side, than he could continue to stand, after 
 having lost his equilibrium, in a slanting position, like 
 the famous tower at Pisa. And he Avill, accordingly, 
 be disposed to consider an acknowledgment, that there 
 are somewhat the stronger reasons on one side, as 
 
 equivalent to a confident decision The 
 
 infirmities above mentioned are those of ordinary minds. 
 A smaller number of persons, among whom, however, 
 are to be found a larger proportion of the intelligent, 
 are prone to the opposite extreme ; that of not deciding, 
 as long as there are reasons to be found on both sides, even 
 though there may be a clear and strong preponderance 
 on the one, and even though the case may be such as .to 
 call for a practical decision. As the one description of 
 men rush hastily to a conclusion, and trouble them- 
 selves little about premises, so the other carefully ex- 
 amine premises, and care too little for conclusions. The 
 one decide without inquiring, the other inquire without 
 deciding."* 
 
 Of the jury assembled it will always be found, that 
 
 * Bacon's Essays, vdfh Annotations by Archb. Wbately, p. 238, ed. 
 1856.
 
 OF COKCLUSION FROM FACTS. 289 
 
 one man liears better than another, has a quicker ap- 
 prehension of what a witness says, understands it 
 more readily, has a better memory, is less subject to 
 absence of mind, keeps his mind more attentive to 
 what is going on, wandering neither from habit, nor 
 from any accidental noise or other chance incident in 
 court. The superiority of one man implies the inferior- 
 ity of another in these respects. And from this differ- 
 ence between them, it may well be expected, and in- 
 deed it can scarcely be otherwise, that the two men, 
 when they leave the jury-box to consider their verdict, 
 will carry with them some facts, which they share in 
 common, and others in which one of them does not 
 participate with the other. Indeed if the twelve men 
 could, so soon as they enter the room, to which they 
 retire, throw down upon the table to ocular inspection, 
 each man his own store of facts, brought with him 
 from the court, it is probable that the contributions of 
 no two men would be seen to be exactly alike. 
 
 But supposing the superiority and inferiority above 
 noticed not to exist, but all the twelve men, in each of 
 the respects adverted to, to stand on a perfect equality ; 
 in this case, they will all equally hear, understand, and 
 remember the facts given in evidence, and yet they 
 may differ in the conclusion they come to uj^on them. 
 Their disao-reement then will not be on the facts, on 
 what is proved to have been seen and heard, objects 
 of the witnesses' eyes and ears ; for these matters the 
 jury will all admit and agree in ; but their difference 
 may be on some mental abstraction, the mind's infer- 
 ence from the facts ; different men may draw different 
 inferences from them. And here will come into 2:>lay 
 each man's peculiar force and turn of mind, his pecu- 
 liar notions and convictions he entertains on this or 
 that particular subject, and which have been generated,
 
 290 OF CONCLUSION FEOM FACTS. 
 
 it may be, by his knowledge or ignorance, liis great or 
 little experience, by Lis just or defective reasoning, or 
 even by his fancy or ca2:)rice ; in a word, there will here 
 come into play, the very same force and turn of mind, 
 notions and convictions, which he possessed before he 
 entered the court, and which accompanied him into it. 
 From what is proved to have been seen or heard, 
 the mental abstraction or inference may be, — a prom- 
 ise, or intention, or negligence. From the proofs one 
 man may infer a j)articular promise ; as a promise to do 
 certain work, to pay a debt, to marry a particular per- 
 son ; or may infer a particular intention ; as an. inten- 
 tion to commit a robbery. And, in either case, another 
 man may fail to draw the same inference. Negligence 
 is separable into kinds, and the kind is determined by 
 the subject-matter of it. Many persons have in their 
 minds a loose, undefined, notion of negligence ; and 
 this some, without consideration, are prepared to ap- 
 ply to any subject ; but it is clear that some persons 
 are wholly unqualified to judge of negligence in par- 
 ticular instances ; as for example, in a question of neg- 
 ligence, imputable to one or other of the drivers of two 
 carriages, which come into collision ; or a question of 
 negligence charged upon the steersmen of two vessels, 
 driven one against the other. In either case, a loose, 
 undefined notion of negligence will not suffice to cast 
 the blame of it on this man or on that. To judge of 
 the driver's imputed negligence, a person must have a 
 certain knowledge of the art and skill required in 
 driving, the duties of the driver, and his incidental 
 difficulties. And the like may be said of negligence 
 imputed to a steersman of a vessel. So that- in these 
 particular instances of negligence, it may very well 
 happen, that a jury may differ in their opinions, some 
 being better cjualified than the rest to come to a right
 
 OF COXCLUSIOX FROM FACTS. 291 
 
 conclusion upon it. The principle of tliis diversity of 
 opinion, namely, the different qualifications of the men 
 to judge of the matter, is applicable, if not to all, at 
 least to all the usual questions which come before a 
 
 jury. 
 
 In a case of circumstantial evidence, where guilt 
 may, or may not, be inferred from the direct evidence 
 given, some of the jury may think the evidence will 
 justify them in drawing the inference, and others of 
 them may think it will not. 
 
 The required unanimity of a jury is not an unfre- 
 quent subject of surprise and censure. A distinguished 
 writer, to whom the requisition seems singular, offers 
 some reasons, on which he thinks it is founded. He 
 thus speaks of it : — " The unanimity of the twelve 
 jurors in their verdict must be admitted to be a very 
 sino-ular institution. It should seem that the reason 
 for requiring this, at least in criminal prosecutions, 
 arose from compassion to the prisoner ; against whom, 
 if the offense was not proved beyond all possibility of 
 doubt in the most scrupulous juror, it was thought to 
 be errino; on the merciful side that this sino-le veto 
 should acquit him. Another reason for this unanimity 
 might possibly have arisen from attaints being fre- 
 quently brought in ancient times against juries, to 
 which punishment every juror was liable ; as each in- 
 dividual, therefore, might be subject to a conviction in 
 such a i^rosecution, it might be reasonable that every 
 one should have a power of dissenting, and not be 
 concluded by the oi)inion of others. The first of these 
 reasons may account for the necessary unanimity in 
 criminal suits, and the latter in those of a civil nature, 
 in Avhich cases only the prosecution of attaint took 
 place. Another cause for the unanimity of a jury 
 might possibly arise, from their being unwilling that
 
 292 OF coxcLusio:^ fkom facts. 
 
 individuals miglit he obnoxious to the Crown, or per- 
 haps parties, if the opinion of each was separately 
 known. A\Tien the verdict was unanimous, ' Defendit 
 numerus,junctceque innhone ii^licdanges^ " "^ 
 
 A late eminent Scotch lawyer, who believed it to 
 be absurd to require unanimity in a jury, gives the fol- 
 lowing account of the introduction of the Jury Court 
 into Scotland : — " One great outcry against this court 
 at first was excited by our being required to adopt the 
 English unanimity of juries. We had been accustomed 
 to it far above a century in the Exchequer, which was 
 an English courL But its sittings were solely in 
 Edinburgh, and its verdicts were of. a penal nature; 
 so that the country at large knew little about its pro- 
 ceedings, and it'had not to deal with the complexity of 
 civil competitions. It therefore got on without much 
 j^ractical obstruction. But when it was proposed to 
 carry the j^rincij^le into all proofs, and all over the 
 land, hosts of fiery objectors started up, who on grounds 
 logical, political, metaphysical and religious, denounced 
 the scheme as justifying rebellion at the least. The 
 religious objection, which resolved into the perjury (as 
 it was called) of the minority, sacrificing its conscience 
 to the conscience of the majority, was the one that 
 made the deepest impression on the Scotch mind. 
 Meadowbank wrote a good pamj^hlet explanatory of 
 the true working of the principle of unanimity, which 
 ojDerates (as he said) by producing discussion and con- 
 cession among jurors, and thus makes a verdict by even 
 compulsory unanimity a truer extract of the average 
 sense of the whole of them, than if all reasoning had 
 been superseded by a vote. There is some ingenuity 
 in this, which is all that can be said in defense of the 
 
 * Barrington on the Statutes, p. 20. 5th. ed.
 
 OF CONCLUSION FROM FACTS. 293 
 
 venerable English habit. But if it was sound, it is 
 odd that of all the tribes of mankind the habit has 
 been tolerated in Ensfland alone. I believe it to be ab- 
 surd ; and that, whether a bare majority ought to be 
 allowed to decide or not, always requiring unanimity is 
 nonsense. Exi^erience has not in the least diminished 
 our Scotch aversion to it." ^ 
 
 If we do not take exj^erience for our guide, it may 
 indeed be thought, that to require one mind in a jury 
 must be a source of constant difficulty. But after the 
 experience of some centuries, this is by no means found 
 to be the case ; and of the multitude of causes every 
 year decided, the numljer, in which the jury are unable 
 to agree, is extremely small, compared with the number 
 in which they are unanimous. The reason of this may 
 be, that sometimes each juryman at first takes essen- 
 tially the same view of the case that his fellows do ; and 
 that at other times, when among them there are differ- 
 ences in their impressions and inferences, these differ- 
 ences are combated and overcome by good sense, good 
 temper, and free discussion, a discussion in which they 
 mutually give and take corrections of their views, they 
 not disdaining to defer to the opinions of their fellows, 
 a deference lawful, and which they may the less hesi- 
 tate to yield, since the jurymen , to whom they defer, 
 form and express those very opinions upon their oaths. 
 
 Frequently a jury are advised to look at the ques- 
 tion before them, as " sensible men," as " men of com- 
 mon sense." In these cases it is assumed, and rightly 
 so, that the jury are sensible men, men of common 
 sense ; for of such persons a jury is, beyond all doubt, 
 very generally composed. And yet there may be ex- 
 ceptions, if, as Southey testifies, common sense is rare ; 
 
 * Cockburn's Memorials of his Time, p. 300, ed. 1856.
 
 294 OF COXCLUSION FEOM FACTS. 
 
 for lie speaks of it, as " that best and rarest of all 
 senses, called Common Sense." ^ And it certainly 
 sometimes happens, that a jury give a verdict startling 
 to sober ordinary minds, one that takes the auditory 
 by surj^rise ; a verdict returned to the great astonish- 
 ment of all present. In these cases, if the verdict be 
 right, it is clear the jury are the sensible men, they 
 have more common sense than their audience, although 
 thirty, forty, or fifty -fold more numerous. And if the 
 verdict be wrong, it may be a comfort to the jury, 
 among themselves, in their relation the one to the 
 other, to feel that they have erred in company ; and, 
 in their relation to the j^ublic, it may be a consolation 
 to them to know, that if on a point of fact they have 
 made a blunder, a court in Westminster Hall has 
 occasionally on a point of latu given a judgment, 
 which another court in the same Hall has pronounced 
 to be, in one instance, " a shocking decision ; " f in 
 another, an " extraordinary " case ; % and in a third, a 
 case that " ou2;ht not to have been decided as it 
 was." § 
 
 Sometimes a jury are exhorted to judge of a case, 
 as men havins; a knowledo-e of the world. What is 
 it to have a knowledo;e of the world ? What is the 
 world ? 
 
 One of Dr. Johnson's definitions of world is, " Pub- 
 lic life ; the Public." And, according to Southey, 
 " There is the Fashionable Public, and the Religious 
 Public, and the Playgoing Public, and the Sporting 
 
 * Tlie Doctor, vol. ii. p. 86, ed. 1834. t 1 Taunt. 292. 
 
 X 1-i Yesey, 175. 
 
 § 19 Ves. 479. [The collection of overruled cases, published by 
 Greenleaf, and of which a second edition was compiled by ourselves in 
 1856, testifies to the immense number of errors on points of law, committed 
 by courts of justice.]
 
 OF CONCLUSION FROM FACTS. 295 
 
 Public, and the Commercial Public, and the Literary 
 Public, and the Reading Public : they call themselves 
 Worlds sometimes." '"' 
 
 Others of Dr. Johnson's definitions of world are, — 
 " The manners of men ; the practice of life ; " and these 
 he gives on the authorities of Dryden, Addison and 
 Swift. 
 
 "The Moujvey who had seen the world" (Gay's 
 Monkey), on his return home gives to his comj^atriots, 
 " the hairy sylvans, who round him press," an account 
 of "the manners of men; the practice of life." 
 
 The Vicar of Wakefield saw much of the w^orld, 
 both at home and abroad ; and particularly at the fair, 
 where he sold his horse, old Blackberry, to Mr. Jenkin- 
 son. In prison, too, he saw something of life ; and of 
 a fellow prisoner, the same Mr. Jenkinson, who bought 
 the horse, " but forgot to j)ay for him," he says, — " I 
 found this to be a knowing man, of strong unlettered 
 sense, but a thorough knowledge of the w^orld, as it is 
 called, or, more propeily speaking, of human nature on 
 the wrono; side." A fair also was fatal to the Vicar's 
 son Moses, who there sold the colt, and laid out the 
 money for it in a " bargain " — a gross of green spec- 
 tacles.f 
 
 The Monkey of Gay saw the vanities and vices of 
 polite society. So also did Dr. Primrose. iVnd he 
 and his son bought, and dearly too, experience in the 
 ways of a lower society, that of cheats and swindlers. 
 
 The practices of life which Parnel's Hermit saw are 
 of a 2:raver character : 
 
 * The Doctor, vol. ii. p. 22, ed. 1834, [and see Tristram Sliaudy, ch. vii.] 
 t The Vicar of Wakefield, ch. xii. xxv.
 
 296 OF CONCLUSION FROM FACTS. 
 
 " To know the world by sight, 
 To find if books or swains report it right, 
 He quits his cell," 
 
 and sees — theft and murder. 
 
 The worlds mentioned by Johnson and Southey, 
 all in their turn, pass in review before a jury. By 
 turns a jury see, with the Monkey of Gray, the vanities 
 and vices of polite society ; with Dr. Primrose and 
 his son, the ways of cheats and swindlers ; and with 
 Parnel's Hermit, the practices of thieves and murderers. 
 
 On a criminal trial a jury is usually instructed by 
 the judge, that if after their consideration of the evi- 
 dence, they have a doubt of the prisoner's guilt, the 
 prisoner is entitled to the benefit of that doubt, and 
 they ought to acquit him. In these cases the word 
 doubt is often Cjualified by exj)ressions accompanying 
 it; as, "reasonable doubt," "rational doubt," "a doubt 
 which, as sensible men, the jury think has weight, but 
 not a trivial doubt created by ingenuity." 
 
 Meanings, which Dr. Johnson assigns to " doubt," 
 are — " uncertainty of mind ; suspense ; undetermined 
 state of opinion;" and one of his authorities is this 
 from Locke, — "Those, who have examined it, are 
 thereby got past doubt in all the doctrines they pro- 
 fess." To the verb, doubt. Dr. Johnson gives the 
 meanings, — " To question ; to be in uncertainty ; '^ and 
 one of his examples is the following from Hooker : — 
 " Even in matters divine, concerning some things, we 
 may lawfully doubt, and suspend our judgment, in- 
 clining neither to one side or other." 
 
 From the opening of a criminal. trial to the close of 
 the evidence, the witnesses gradually unroll the circum- 
 stances before the jury ; some pointing to guilt, others, 
 it may be, to innocence; and some perhaps are neutral, 
 inclining to neither. Of the two former kinds, pieces
 
 OF CONCLUSIOX FROM FACTS. 297 
 
 of the evidence, one after the other, are placed in the 
 scale of guilt, or in that of innocence. And if at the 
 end, the jury having, individually and collectively, 
 weighed the evidence with care, they come to the de- 
 termination, that the scales of guilt and innocence stand 
 even, neither of them inclining to the one side or the 
 other, the effect will Le, the jury -will doubt, and giv- 
 ing the prisoner the benefit of this doubt, they will say 
 not guilty. 
 
 When it is said the doubt must be that of " sensi- 
 ble" men, " not a trivial doubt created by ingenuity," 
 one imj^ort of these expressions may be, that the doubt 
 must spring from, and be justified by, the evidence 
 alone, to the entire exclusion of all surmises, which the 
 jury might entertain of circumstances not contained in 
 the evidence ; as their surmises of things, which y)Oss\- 
 bly may have happened, but which the evidence does 
 not prove did ha2:)pen : as, for instance, supposing it to 
 be 2:)roved, that certain proi)erty Avas found in the pos- 
 session of the prisoner ; it may be in his 2)ower to 
 prove it was bought by him, or given to him ; but in 
 the absence of this proof, the jury are not to surmise 
 the purchase or the gift, and then, mixing it up with 
 the evidence, arrive at their verdict on the evidence and 
 their surmises combined : they must let tlie evidence 
 stand as it is ; it roundly rejects all interference with it 
 by surmises. 
 
 Were it not that the force of a covenant is merged 
 in the sanctity of an oath, the jury's oath to give " a 
 true verdict according to the evidence ;" each juryman 
 might sometimes be exhorted to say, in the fervor of 
 feelinc: of Chief Justice Crew, when deliverino^ his 
 opinion to the House of Lords, in the great cause on 
 the title of Robert de Yere to the Earldom of Oxford, 
 
 20
 
 298 OF COXCLUSIOX FROM FACTS. 
 
 — " I have labored to make a covenant witli myself, 
 tliat affection may not press upon judgment.''"^ 
 
 This accords with the duty which Cicero imposes on 
 a judo'e, — to lay aside the character of friend, on tak- 
 ing that of judge.f 
 
 Cicero in one of his addresses to a jury specifically 
 points out to them certain duties which a jury must 
 attend to : they are to consider that not only a power, 
 hut a trust, is given to them ; it may be their duty to 
 accpiit their enemy, and convict their friend ; they must 
 consider not what their own inclinations would lead 
 them to do, but what the law and their oaths oblige 
 them to do ; they are not at liberty to do as they 
 please; bat must bear in mind what law and equity, 
 and their oaths, require of them ; they must banish from 
 their minds all humor and caprice, hatred, envy, fear, 
 and all sorts of bad passions ; and above all they are to 
 take conscience for their guide ; that monitor, he says, 
 which we have received from Heaven, of which we can- 
 not divest ourselves and which, if we take it as our 
 companion and guide through life, will enable us to 
 live without fear and with all honor. J 
 
 This advice of Cicero appears to have been very 
 necessary at Rome, where it is said juries often, out of 
 envy or dislike, despoiled the wealthy, and, from com- 
 passion, enriched the poor.§ 
 
 A desire, " that affection may not press upon judg- 
 ment," does not mean, that a jury are to be indifferent 
 on which side their verdict is given, are to exclude all 
 wish toward either side. A wish toward one side is 
 quite consistent with impartiality between both. Such 
 a consistency is noticed by Archbishop Seeker, rela- 
 
 * Sir W. Jones' Rep. 101. f Cic, Off. iii. 10. 
 
 t Cic, Pro Cluentio, 58. § Terence. Phorniio, A. ii. S. 1.
 
 OF CONCLUSION FROM FACTS. 299 
 
 tively to an inquiry concerning the truth of the Chris- 
 tian Religion. He is combating a false notion, " that 
 we ousrht to divest ourselves of all desire to find re- 
 ligion time, before we go about to judge of it." A 
 person, he says, making the inquiry will take care 
 not to be misled by his desire, but he ought not to 
 be indifferent concerning a jDoint on which his eter- 
 nal hapj^iness dej^ends. " Nor," he continues, " is this 
 the only case, far from it, in which we are bound 
 to Avish on one side, and yet determine fairly between 
 both. In judicial proceedings, a benevolent magistrate 
 will constantly wish, that whoever is accused before 
 him may prove innocent : notwithstanding which, he 
 will try his cause with the most uj)right impartiality."" 
 How dispassionate, how free from all bias and prej- 
 udice, ought a jury to enter upon and exercise their 
 duty ! With what patience ought they to hear all the 
 evidence ; what deliberation and care ought they to 
 use to arrive at a just verdict ! That verdict is to ad- 
 minister even-handed justice; it may affect a man's 
 estate, or person, or both. By their verdict the estate 
 of one man today may be another's to-morrow, " 'Twas 
 mine, 'tis his." 
 
 And to what a fearful extent may a verdict affect a 
 person ! It may pronounce a man sane or insane ; it 
 may establish character, or take it away ; it may give 
 liberty to the captive, or turn liberty into slavery ; it 
 may continue life to a prisoner, or consign him to 
 death.f 
 
 * Sermons, vol. i. p. 10, ed. 1771. 
 
 t " ' Go, crucify that slave.' ' For what offence ? 
 
 Who the accuser ? Where the evidence ? 
 
 For when the life of man is in debate, 
 
 No time can be too long, no care too great ; 
 
 Hear all, woicrh all with caution.' " 
 
 GiFFOiiD. — Juvenal Sat.,\\. 218.
 
 300 OF COXCLUSIOX FEOM FACTS. 
 
 When a jury sit in judgment on a homicide, 
 although by their verdict his life will be forfeited, they 
 must not suffer pity for him to mingle with their oaths, 
 and to divert the course of justice. To this pity, they 
 should add the reflection, that his victim claims com- 
 passion too."^ 
 
 On Trial by Jury many eulogies have been shed ; 
 but this spoken by Sir James Mackintosh in his De- 
 fence of Jean Peltier, charged with a libel on Buona- 
 parte, First Consul, is probably unsurpassed in beauty: 
 " He now comes before you, perfectly satisfied that an 
 English Jury is the most refreshing prospect that the 
 eye of accused innocence ever met in a human tribunal. "f 
 
 Happy is the country, in which it can be said, as it 
 was at Ephesus, " The law is open, let them implead 
 one another." In a rude state of society, under the 
 sway of private vengeance, a man's hand " will be 
 against every man, and every man's hand against him." 
 Laws cannot prevent it.J And even in civilized states, 
 what day passes without " wrong and robbery ?"§ 
 
 In countries in the most advanced state of civiliza- 
 tion, not only is private vengeance or redress as far as 
 possible curbed by law ; but laws are made suited to 
 all the common exigencies of mankind ; and not only 
 to prevent and punish wrongs, but also to govern the 
 peaceful transactions of life, men's acquisitions and dis- 
 positions of property, and their home and foreign 
 trades. In these countries a law-suit is not necessarily 
 an effect of quarrel and litigiousness ; and many suits 
 are "amicable." Yet law-suits, however "amicable," 
 are not in general favorites ; and " Lis nunquam'''' (to 
 
 * Wordsworth's Sonnets on the Punishment of Death. 
 
 t Sir J. Mackintosh's Miscellaneous Works, vol. iii. p. 245. 
 
 X Ovid., Trist.,Lib. V., El. vii. 147. ? Juvenal, Sat., xiii. 23.
 
 OF COXCLUSIOX FKOM FACTS. 301 
 
 have no law-suit) lias been placed among tlie felicities 
 of life.* 
 
 These two things merit the reflection of any one, 
 who desires to make a law-suit an instrument of in- 
 justice ; who tries to carry his cause by cunning and 
 falsehood : 
 
 One is, that, if he be successful, his own conscience 
 wall avenge the crime.f The other is, that the truth 
 may be too strong for him, and his attempt may fail. J 
 
 In a sermon preached at the assizes at Lincoln in 
 1625, Bishop Sanderson takes these verses in Exodus, 
 ch. xxiii., — " Thou sh alt not raise a false report ; Put 
 not thine hand with the wicked to be an unrisfhteous 
 witness ; Thou shalt not follow a multitude to do evil ; 
 Neither shalt thou speak in a cause, to decline after 
 many to wrest judgment ; " — and from these verses he 
 gives to " the accuser, the witness, the juror, the 
 l^leader," to each of them, " some brief intimation of 
 their duty." This intimation is thus expressed : 
 
 " If thou comest hither, then, as a plaintiff, or other 
 party in a civil cause, or to give voluntary information 
 u]3on a statute, or to prosecute against a malefactor, or 
 in any Avay in the nature of an accuser ; let neither the 
 hope of gain, or of any other advantage, to thyself, 
 nor secret malice or envy against thine adversary, nor 
 thy desire to give satisfaction to any third party, sway 
 thee beyond the bounds of truth and e(|uity ; no, not a 
 little, either to devise an untruth against thy neighbor 
 of thine own head, or by a hard construction to de- 
 prave the harmless actions or sjDeeches of others, or to 
 make them worse than they are by unjust aggravations, 
 
 * Martial. t Juvenal, Sat. xiii. 1 ; Il>id, 96. 
 
 :j: Great is the force of truth ; man's crafty fictitious tales are powerless 
 against it. — Cic. Pro Ccelio, 26. Eloquence is not all in all; certain truths 
 are so strong, that nothing can Aveaken them. — Cic. Pro Quintio, 36.
 
 302 OF CONCLUSION FKOM FACTS. 
 
 or to take advantage of letters and syllables to entrap 
 innocency without a fault. When thou art to oj^en thy 
 mouth against thy brother, set the first rule of that 
 text as a watch before the door of thy lips, Thou shalt 
 not raise a false report. 
 
 " If thou comest hither, secondly, to be used as a wit- 
 ness ; perhaps GrcBca fide, like a downright Knight of 
 the Post, that maketh an oath a jest, and a pastime of 
 deposition ; or dealt withal by a bribe, or suborned by 
 thy landlord or great neighbor, or egged on with thy 
 own spleen or malice, to swear and forswear as they 
 shall prompt thee ; or to interchange deposition with 
 thy friend, as they used to do in Greece, Hodie miTii 
 Cms tihi (swear thou for me, to-day, I'll swear for thee 
 to-morrow) ; or tempted with any corrupt resj)ect what- 
 soever, by thy word or oath to strengthen a false and 
 unrighteous report ; when thou comest to lay thy hand 
 upon the book, lay the second rule in that text to thy 
 heart, — Put not thy hand with the wicked to be an 
 unrighteous witness. Though hand join in hand, the 
 false witness shall not be unpunished. 
 
 " If thou comest hither, thirdly, to serve for the 
 King u23on the grand inquest, or between party and 
 party, in any cause whatsoever (like those selectijudices 
 among the Romans, whom the Praetor for the year being 
 was to nominate, and that uj^on oath, out of the most 
 able and serviceable men in his judgment, both for 
 estate, understanding and integrity), or to serve upon 
 the Tales, perhaps at thine own suit to get something 
 toward bearing charges for thy journey; or yoked with 
 a crafty or a willful foreman, that is made beforehand, 
 and a mess of tame after-men withal, that dare not 
 think of being wiser than their leader; or unwilling 
 to stickle against a major part, whether they go right 
 or wrong; or resolved already upon the verdict, no
 
 OF CONCLUSION FKOM FACTS. 303 
 
 matter what the evidence be ; consider what is the 
 weight and religion of an oath. Remember that he 
 sinneth not less, that sinneth with company. Whatso- 
 ever the rest do, resolve thou to do no otherwise than 
 as God shall put into thy heart, and as the evidence 
 shall lead thee. The third rule in that text must be 
 thy rule. Thou shalt not follow a multitude to do evil. 
 They are silly, that, in point either of religion or jus- 
 tice, would teach us to measure either truth, or right, 
 by multitudes. 
 
 " If thou comest hither, fourthly, as to thine harvest, 
 to reap some fruit of thy long and expenseful study in 
 the laws, to assist thy client and his cause with thy 
 counsel, learning and eloquence ; think not because 
 thou speakest for thy fee, that therefore thy tongue is 
 not thine own, but thou must S2:)eak what thy client 
 will have thee speak, be it true or false ; neither think 
 because thou hast the liberty of the court, and perhaps 
 the favor of the judge, that therefore thy tongue is 
 thine own, and thou mayest speak thy pleasure to 
 the prejudice of the adversaries, person or cause : seek 
 not preposterously to win the name of a good lawyer, 
 by wresting and j^erverting good laws ; or the opinion 
 of the best counsellor, by giving the worst and shrewd, 
 est counsel. Count it not, as Protagoras did, the glory 
 of thy profession, by subtilty of wit, and volubility of 
 tongue, to make the worst cause the better ; but like a 
 good man, as well as good orator, use the power of thy 
 tongue and wit to shame imjxidence, and j^rotect in- 
 nocency, to crush oppressors, and succor the afflicted, to 
 advance justice and equity, and to help them to right 
 that suffer wrono;. Let it l^e as a ruled case to thee in all 
 thy pleadings, not to s^^eak in any cause to ^vl•est judg- 
 ment."* 
 
 * Bishop Sanderson's Sermons, vol. ii. p. 131, ed. 1681.
 
 304 OF CONCLUSION FROM FACTS. 
 
 Thus lionestly and boldly did Bisliop Sanderson, in 
 the I7tli century, set before tlie accuser, the witness, the 
 juror, and the pleader, their separate duties. And 
 again did another bishop, in the 18th century, with 
 equal honesty and boldness, give sound admonitions to 
 parties to a cause, their witnesses, and advocates. This 
 is Archbishoj) Seeker, who, in one of his sermons upon 
 oaths, a sermon on the Third Commandment, takes oc- 
 casion to make the following remarks : " If ever we 
 assert anything upon oath, which we know or believe 
 to be false : if we deny anything, which we know or 
 believe to be true : if we either affirm, or deny, in mat- 
 ters of which we know nothing : or if, in matters of 
 which we do know something, we speak beyond our 
 knowledge ; declaring ourselves to be certain of what 
 we only believe; or to believe firmly what we only 
 suspect or guess : every one of these things, in its differ- 
 ent degree, is pl'ofaning the name of God to attest a 
 falsehood. And further, if, when we are sworn to tell 
 the whole truth, we conceal designedly any part of it, 
 which we think may be of moment ; here again we are 
 guilty of breaking our oath. Nay, indeed, though we 
 are not sworn to tell the whole, yet we should observe, 
 that the only reason of giving evidence at all is, that 
 right may be done ; and suj^j^ressing a truth may some- 
 times as entirely mislead and deceive, as telling the 
 grossest falsehood. In short, then, if we use any 
 method whatever, be it aggravating, or be it palliating, 
 to disguise the real state of the case ; if we relate it in 
 any other manner whatever than the fairest and plain- 
 est we can, after diligently recollecting and considering 
 well ; every such artifice amounts to a violation of this 
 
 great law of God And greatly akin to 
 
 the guilt of being perjured ourselves, nay often as bad^ 
 and sometimes worse, if possible, is that of inducing
 
 OF CONCLUSION FROM FACTS. 305 
 
 others to be perjured : a sin wliicli is committed, not 
 only by direct hiring of them to swear falsehoods, but 
 by awing and intimidating ; by courting and flattering ; 
 by intimating advantages to them, if they can truly 
 swear so and so ; by talking them into a j^ersuasion of 
 Avhat they were not fully persuaded of before ; and 
 thus making them strain hard to believe, that they 
 know or remember more or less than they do. Another 
 way, and a very wicked one, of making witnesses for- 
 swear themselves is, when artful men contrive, that 
 they shall use forms of words, of which they do not 
 thoroughly understand the import ; or disconcert them 
 so, on their appearance in a courtof justice, by improper 
 treatment of them ; and astonish and confound them in 
 such a manner, by a multiplicity of captious questions ; 
 that they hinder them from speaking the truth, which 
 they intended, or drive them into saying falsehoods, 
 which they did not intend."" 
 
 If the duties 2:»ointed out by Bishop Sanderson to 
 the accuser, the witness, the juror, and the pleader, are 
 not attended to, no presiding judge, in the opinion of 
 the same i:)relate, will be able to ensure justice : " For 
 say a judge be never so honestly minded, never so zealous 
 of the truth, never so careful to do right, yet if there be 
 a spiteful accuser, that will suggest any thing ; or an au- 
 dacious witness, that will swear any thing ; or a crafty 
 pleader, that will maintain any thing ; or a tame jury, 
 that will swallow any thing; the judge who is tied (as 
 it is meet he should) to proceed secundum allegata et 
 2)robata^ cannot, with his best care and wisdom, j^revent 
 it, but that sometimes justice shall be perverted, in- 
 nocency oppressed, and guilty ones justified."f 
 
 * Seeker's Sermons, vol. iv. p. 253, ed. 1771. 
 
 t Bishop Sanderson's Sermons, vol. ii. p. 102, ed. 1681.
 
 306 OF COKCLUSION FROM FACTS. 
 
 If the same duties are observed, the probable result 
 will be, tlie acquisition of justice, the triumph of truth 
 over falsehood. 
 
 Addison, in one of his paj)ers in the Spectator^ rep- 
 resents two opposing armies, at the head of one of 
 which was truth, of the other, falsehood. He thus 
 describes their meeting, and the overthrow of false- 
 hood : " The goddess of falsehood was of a gigantick 
 stature, and advanced some paces before the front of 
 her army ; but as the dazzling light, which flowed from 
 TRUTH, began to shine upon her, she faded insensibly ; 
 insomuch that, in a little space, she looked rather like a 
 huge phantom, than a real substance. At length, as 
 the goddess of truth approached still nearer to her, she 
 fell away entirely, and vanished amidst the brightness 
 of her presence ; so that there did not remain the least 
 trace or impression of her figure in the place where she 
 had been seen."* 
 
 " So fares it, when with Truth Falsehood contends,"! 
 
 * The Spectator, No. 63. t Paradise Regained, Bk. iii.
 
 APPENDIX.
 
 APPENDIX. 
 
 The following rules for the examination of witnesses were pub- 
 lished some years since by David Paul Brown, of the Philadelphia 
 Bar, they were by him entitled : 
 
 (Solbm gwlfs iox i^t ^mmxmimx oi Mitiusscs. 
 
 FIRST, AS TO YOUR 0W>" WITNESSES. 
 
 I. — If they are bold, and may injure your cause by pertness or 
 forwardness, observe a gravity and ceremony of manner toward them 
 which may be calculated to repress their assurance. 
 
 II. — If they are alarmed or diffident, and their thoughts are evi- 
 dently scattered, commence your examinations with matters of a 
 flmiiliar character, remotely connected with the subject of their alarm, 
 or the matter in issue; as for instance — Where do you live? Do 
 you know the parties 1 How long have you known them, etc. And 
 when you have restored them to their composure, and the mind has 
 regained its equilibrium, jjroceed to the more essential features of the 
 case, being careful to be mild and distinct in your approaches, lest you 
 may again trouble the fountain from which you are to drink. 
 
 III. — If the evidence of your own witnesses be unfovorable to you 
 (which should always be carefully guarded against), exhil>it no want 
 of composure ; for there are many minds that form opinions of the 
 nature or character of testimony chiefly from the effect which it may 
 appear to produce upon the counsel. 
 
 IV. — If you perceive that the mind of the witness is imbued with 
 prejudices against your client, hope but little from such a quarter — 
 unless there be some facts which are essential to your client's protec- 
 tion, and wliich that witness alone can prove, either do not call him, 
 or get rid of him as soon as possible. If the opposite counsel perceive
 
 310 APPENDIX. 
 
 the bias to which I have referred, he may employ it to your ruin. In 
 judicial inquiries, of all possible evils, the worst and the least to be 
 resisted is an enemy in the disguise of a friend. You cannot impeach 
 him — you cannot cross-examine him — you cannot disarm him — you 
 cannot indirectly, even, assail him.; and if you exercise the only privi- 
 lege that is left to you, and call other witnesses for the purposes of ex- 
 planation, you must bear in mind that, instead of carrying the war into 
 the enemy's country, the struggle is still between sections of your own 
 forces, and in the very heart, perhaps, of your own camp. Avoid 
 this, by all means. 
 
 V. — Never call a witness whom your adversary will be compelled 
 to call. This will afford you the privilege of cross-examination — take 
 from your opponent the same privilege it thus gives to you — and, in 
 addition thereto, not only render every thing unfavorable said by the 
 witness doubly operative against the party calling him, but also de- 
 prive that party of the power of counteracting the effect of the testi- 
 mony. 
 
 VI. — Never ask a question without an object — nor without being 
 able to connect that object with the case, if objected to as irrelative. 
 
 VII. — Be careful not to put your question in such a shape that, if 
 opposed for informality, you cannot sustain it, or at all events pro- 
 duce strong reason in its suppoi't. Frequent failures in the discus- 
 sions of points of evidence enfeeble your strength in the estimation of 
 the jury and greatly impair your hopes in the final result. 
 
 VIII. — Never object to a question from your adversary without 
 being able and disjjosed to enforce the objection. Nothing is so 
 monstrous as to be constantly making and withdrawing objections ; 
 it either indicates a want of correct perception in making them^or a 
 deficiency of reason or of moral courage in not making them good. 
 
 IX. — Speak to your witness clearly and distinctly as if you were 
 awake and engaged in a matter of interest — and make him also speak 
 distinctly and to your question. How can it be supposed that the 
 Court and Jury will be inclined to listen, when the only struggle 
 seems to be Avhether the counsel or the witness shall first go to sleep? 
 
 X. — Modulate your voice as circumstances may direct — " Inspire 
 the fearful and repress the bold."
 
 RULES FOR EXAMINING WITNESSES. 311 
 
 XI. — Never begin before you are ready— and always finish when 
 you have done. In other words, do not question for question's sake, 
 but for an answer. 
 
 Cross-examination. 
 
 I. — Except in indifferent matters, never take your eye from that of 
 the witness ; this is a channel of communication from mind to mind, 
 the loss of which nothing can compensate. 
 
 " Truth, falsehood, hatred, anger, scorn, despair, 
 And all the passions — all the soul is there." 
 
 II. — Be not regardless, either, of the voice of the witness ; next to the 
 eye this is perhaps the best interpreter of his mind. The very design 
 to screen conscience from crime, — the mental reservation of the wit- 
 ness, — is often manifested in the tone or accent, or emphasis of the 
 voice. For instance, it becoming important to know that the wit- 
 ness was at the corner of Sixth and Chestnut streets at a certain time : 
 The question is asked : were you at the corner of Sixth and Chestnut 
 streets, at six o'clock ? A frank witness would answer — perhaps — I 
 was near there. But a witness who had been there, desirous to con- 
 ceal the fact and to defeat your object, speaking to the letter rather 
 than the spirit of the inquiry, answers. No ; although he may have 
 been within a stone's throw of the place or at the very place, within 
 ten minutes of the time. The common answer of such a witness 
 would be : I was not at the corner, at six o'clock. 
 
 Emphasis upon both words, plainly implies a mental evasion or 
 equivocation, and gives rise with a skillful examiner to the question : 
 At what hour were you at the corner, or at what place were you at 
 six o'clock 1 And in nine instances out of ten it will appear, that the 
 witness was at the place about the time, or at the time about the 
 place. There is no scope for further illustrations — but be watchful, I 
 say, of the voice, and the principle may be easily applied. 
 
 III. — Be mild with the mild — shrewd with the crafty — confiding 
 with the honest — merciful to the young, the frail, or the fearful — 
 rough to the ruffian, and a thunderbolt to the liar. But in all this, 
 never be unmindful of your own dignity. Bring to bear all the pow- 
 ers of your mind — not that you may shine, but that virtue may tri- 
 umph and your cause may prosper.
 
 312 APPENDIX. 
 
 IV. — In a criminal, especially in a ccqriial case, so long as your 
 cause stands ^vell ask but few questions ; and be certain never to ask 
 any, the answer to -syhich, if against you, may destroy your client, 
 unless you know the witness perfect!]/ well, and know that his answer 
 will be favorable equally well ; or unless you be prepared with testi- 
 mony to destroy him if he play traitor to the truth and your expect- 
 ations. 
 
 V. — An equivocal question is almost as much to be avoided and 
 condemned as an equivocal answer ; and it alway leads to, or excuses, 
 an equivocal answer. Singleness of purpose, clearly expressed, is 
 the best trait in the examination of witnesses, whether they be honest 
 or the reverse. Falsehood is not detected by cunning, but by the 
 light of truth, or if by cunning, it is the cunning of the witness, and 
 not of the counsel. 
 
 VI. — If the witness determine to be witty or refractory with you, 
 vou had better settle that account with him at first, or its items will 
 increase with the examination. Let him have an opportunity of satis, 
 fying himself either that he has mistaken your jjower, or his own. 
 But in any result, be careftil that you do not lose your temper ; anger 
 is alwavs either the precursor or evidence of assured defeat in every 
 intellectual conflict. 
 
 VII. — Like a skillful chess player, in every move, fix your mind 
 upon the combinations and relations of the game — partial and tem- 
 porary success may otherwise end in total and remediless defeat. 
 
 VIII. — Never undervalue your adversary, but stand steadily upon 
 your guard ; a random blow may be just as fatal as though it were 
 directed by the most consummate skill : the negligence of one often 
 cures, and sometimes renders effective, the blimders of another. 
 
 IX. — Be respectful to the court and to the Jury — kind to your 
 colleague — civil to your antagonist ; but never sacrifice the slightest 
 principle of duty to an overweening deference toward either.
 
 PRACTICAL ADVICE FOR CONDUCTING 
 
 THE EXAMIXATIOX OF WITNESSES. 
 
 [Abridged from Mr. Cox's work, entitled "The Advocate, his Training, Prac- 
 tice, Rights, and Duties."] 
 
 THE EXAMINATION-IN-CHIEF. 
 
 An impression prevails in the Profession, that the examination-in- 
 chief is an easy task, which anybody may perform, and demanding 
 neither ability nor experience. But this is a grave mistake, as will 
 be discovered at the first experiment. The witnesses cannot always 
 be relied upon in their statements made out of court. Nothing is 
 more common than to find assertions, most confidently made in the 
 ofl^ce, retracted in the witness-box, under the sanction of an oath and 
 the fear of cross-examination. It is often impossible by any vigilance 
 to keep persons to the strict literal truth in their statements given in 
 the office, and unless you are prepared for this kind of disappointment 
 in your examination in-chief you will be sorely disconcerted. And 
 here let us warn you against the danger which inexperience frequently 
 incurs, of being not only disconcerted by the witness failing to support 
 his previous statements, but by exhibiting in countenance or manner 
 the disappointment you feel. Let nothing, not even a tone of your 
 voice, betray surprise, or it will assuredly reveal your weakness to 
 your opponent, who may make use of the fact to discredit your wit- 
 ness and your cause, by the argument, always powerful, that the wit- 
 ness has told two different stories. Another rule of examination is, 
 you should commit to memory the leading facts to be proved by the 
 witness, or have a synopsis of them before you. If you read your 
 questions from your brief, you will find it very difficult, whatever the 
 necessity, to depart from the terras or the order there set down. But 
 if you examine from your memory, or a brief outline of the facts? 
 your whole attention will be given to the witness, your eye to his 
 deportment, your mind to his words, and knowing what you want to 
 have from him, you will be enabled to adapt your questions in ac- 
 cordance with what has preceded, and so as to procure the facts you 
 are seeking. It happens frequently that new facts come out in exami- 
 21
 
 314 APPENDIX. 
 
 nation, \vhich materially alter the comjilexion of the case, and require 
 a complete remodeling of the ^entire train of questions, with a view 
 to elicit explanation and to make the whole consistent with your case. 
 Such a position will demand the exercise of all your ingenuity and 
 caution, and it is in such a position that the skill of the accomplished 
 Advocate is discovered, far more than in those oratorical displays 
 which win for him the applause of the public, 
 
 LEADING QUESTIONS. 
 
 The first great rule of practice in the examination-in-chief is, that 
 you shall not put leading questions to your own witness — a leading 
 question being such an one as suggests the answer. This rule is sim- 
 ple, and seemingly easy of application ; but you will find it to be ex- 
 cessively difficult to be observed in practice, and indeed, if it were 
 strictly enforced, a trial -svould be prolonged indefinitely. At the 
 beginning of your practice probably you will be apt to err rather by 
 its too strict observance, than by violating it. Nevertheless, as it is 
 often enforced without necessity, merely for the sake of interruption, 
 you must be prepared to cope with its difficulties, and we will en- 
 deavor to point out the most prominent of them. 
 
 But first observe, that the rule against leading questions is properly 
 applicable only to such questions as relate to the matter at issue. It is 
 permitted to you, and the Judges will encourage you in the practice, 
 to lead the witness directly up to the point at issue. It saves time 
 and clears the case, and if you narrow^ly observe experienced Advo- 
 cates, you will find that they always adopt this course. For instance, 
 instead of putting the introductory questions, " Where do you live 1 " 
 " What are you 1 " and so forth, you should, unless there be some 
 special reason to the contrary, directly put the leading question, " Are 
 you a banker carrying on business in Wall street ? " and so on, until 
 you approach the questionable matter, when, of course, you will pro- 
 ceed to conduct the examination according to the strict rule. 
 
 But that rule is not so easily to be observed as you m;iy suppose. 
 Frequently it will occur, that you will have need to call the attention 
 of the witness to something he may have forgotten — as thus : Sup- 
 pose that you were examining as to a certain conversation. The wit- 
 ness has narrated the greater portion of it, but he has omitted a pas- 
 sage which is of importance to you. We know that, in fact, with all 
 of us, in our calmest moments, it is difficult to repeat perfectly the 
 whole of what w^as said at a certain interview, and if it had been a 
 long one, probably we might repeat it half a dozen times, and each 
 time omit a different portion of it, although in either case the omitted
 
 EXAMINATION OF A WITNESS. 315 
 
 part would be instantly recalled to our memories if we were asked, 
 '• Did he not also say so and so 1 " or, " Was not something said 
 about so and so ? " But this sort of reminiscent question you are not 
 permitted to put to a witness, because it would be a leading question, 
 although he is far more likely, in his agitation, to forget that he had 
 not repeated the whole than we should be in our calmest moments- 
 In vain you ask him, " Did any thing more pass between you 1 " 
 " Was nothing more saidl " " Have you stated all that occurred 1 " 
 He does not in fact remember precisely what he had stated of it, or 
 the portion you desire to obtain has escaped his memory for the mo- 
 ment. It would flash upon him instantly, if it were to be repeated, 
 or even to be half uttered. But you may not help him so, and then 
 there arises a perplexity, which every Advocate must often have ex- 
 perienced, — in what manner can this be recalled, without leading 1 
 Here is another occasion for the exercise of that ready tact in the 
 conduct of an examination-in-chief which marks the skillful Advocate. 
 Your endeavor must now be to suggest indirectly the forgotten state- 
 ment : and to do so without violating the rule which in this respect is 
 certainly pushed further than justice and fairness to the infirmity of 
 human memory can sanction. As each case must depend upon its 
 circumstances, it is impossible to lay down any rule to help you, or 
 even to hint at forms of suggestion. But one method we may name, 
 as having proved efficacious when others had failed, and that is, to 
 make the witness repeat his account of the interview, or whatever it 
 may be; then it will not unfrequently haj^pen, as we have already 
 observed, that he will remember and repeat the passage yon require 
 and omit something else which he had previously stated. But this, 
 of course, matters not ; your object has been gained, and your ad- 
 versary may take what advantage he can of the difference in the 
 statements. If the story is a long one, you will avoid inflicting this 
 repetition of it, until other expedients have been tried in vain. It 
 may be added, that a single word often suffices to suggest the whole 
 sentence ; if you have a quick wit, you may sometimes bring out the 
 matter you want, by so framing a question that it shall contain a part 
 of the forgotten sentence ipsissimis verbis, but otherwise applied. 
 
 TO AVOID CONFLICTING TESTIMONV. 
 
 Great caution is required in the examination of all your witnesses 
 after the first, to prevent their disagreement in any important par- 
 ticulars. No error of inexperience or unskill fulness is more common 
 than to examine a witness according to the brief, without reference to 
 the evidence previously given and the requirements of the case as it
 
 316 appe:ndix. 
 
 stands. If you fear that there may "be conflicting testimony on any 
 point, the first witness having varied from the statement in the brief, 
 it is usually better to leave it as it stands upon that single testimony 
 than to bring out a contradiction ; but upon this you must exercise 
 your sagacity at the moment ; it must depend upon the particular 
 facts of the case ; we only suggest to you, that it is one of the diffi- 
 culties of examination-in-chief, which you should be prepared to en- 
 counter. Anticipating it, you will not be taken by surj)rise when it 
 occurs to you in your practice. 
 
 WITNESSES WHO PROVE TOO MUCH. 
 
 There are two kinds of troublesome \\ itnesses whom you will have 
 to encounter in the conduct of a cause — those who say too much, and. 
 those who say too little ; your too eager friends, and your secret ene- 
 mies. Of these, by far the most difficult to deal with are your over- 
 zealous friends — your witnesses who prove too much. A very little 
 experience will enable you to detect these personages almost at a 
 glance, certainly after a few sentences. They usually try to look 
 wonderfully easy and confident ; answer ofi-hand, with extraordinary 
 glibness, and give you twice as much information as you have asked 
 for. Now, another rule of evidence is, that you shall not discredit 
 your own witnesses, so that your only chance of dealing with these 
 troublesome friends is to check them, at the very outset, by kindly, 
 but gravely and peremptorily, requiring them to do no more than 
 simply to answer the questions you may put to them, and then so to 
 frame your questions that the answer to them shall be a plain " Yes " 
 or " No," giving them no opportunity for expatiating. Keep them 
 closely to the point for which they are required, and having got from 
 them just what you want, dismiss them, right thankful if they have 
 not done you more liarm than good. 
 
 ADVERSE WITNESSES. 
 
 "With your unfriendly witness, you must deal altogether after an- 
 other fashion. There is no more difficult and delicate task, in the 
 conduct of an examination-in-chief, than so skillfully to manage an 
 adverse witness, called by yourself, that he shall state just so much as 
 you require, and no more. 
 
 When the court is satisfied that the witness is really an adverse 
 one, the strict rule which forbids leading questions will be relaxed, 
 and you will be jDermitted to conduct the examination somewhat more 
 after the manner of a cross-examination. But this is only a partial 
 license. You may put leading questions, but you may not discredit
 
 EXAMINATION OF A WITNESS. 317 
 
 him, whatever may have been the damage done to you by his testi- 
 mony, and however obvious the animus which has misrepresented the 
 facts purposely for the injury of your cause. He is still your wit- 
 ness, and having chosen to call him, and thereby to ask the jury to 
 believe his story, it is not competent to you to turn round, when you 
 find he does not suit your purpose, and endeavor to show to the jury 
 that he is unworthy of credit. The most you are allowed to do is to 
 show the witness has made a mistake. 
 
 As a general rule, the less you say to such a witness the better for 
 you. Bring him directly to the point which he is called to prove ; 
 frame your questions so that they shall afford the least possible room 
 for evasion, or, what is still worse, exjilanation. Avail yourself of 
 your liberty to lead as soon as you can — that is, as soon as you have 
 laid the foundation for it by showing from his manner that the wit- 
 ness is really adverse. Make no secret of his enmity ; on the con- 
 trary, you have most to dread when his manner and tone do not dis- 
 cover his feelings. If you are satisfied beyond doubt of his hostility, 
 and he should, as is often seen, assume a frank and friendly mien in 
 the witness-box, instead of accepting his approaches, reject them with 
 indignation ; let him see that you understand him and are not to be 
 imposed upon, and endeavor to provoke him to the exhibition of his 
 true feelings. The importance of so doing will be obvious to you 
 when you remember that it is essential to the safet}'^ of your cause 
 that the jury should receive his testimony with a knowledge of the 
 circumstances under which it is given, so that any thing adverse to you 
 which n\a,y foil from him shall be accepted by them with the allow- 
 ance which is ahvays made by reasonable men for the exaggerations 
 or even inventions of an enemy ; for, to an audience so prepared 
 whatever fiills from him in your favor will have double value given 
 to it, and whatever he may say that tells against you will be rejected. 
 Hence it is that the first care of a skillful Advocate, in dealing with 
 his own adverse witness, is not only not to conceal the hostility, but to 
 make it prominent — to provoke it to an open display, and draw out 
 the expression of the feeling, if it does not sufficiently appear without 
 a stimulus. If he be adverse at all, you cannot make him appear too 
 adverse, because the more hostile he is the more will his evidence in 
 your favor be esteemed, and the less weight will be given to such as he 
 may utter against you. 
 
 TIMID WITNESSES. 
 
 If your witness be timid, it will be your care to restore his self-' 
 possession before you take him to the material part of his testimony.
 
 318 APPENDIX. 
 
 This you should effect by assuming a cheerful and friendly manner 
 and tone, and if you have the art to make him smile, your wit 
 would be better timed than is always the case with forensic jests. 
 Keep him thus emjiloyed uj)on the fringe of the case, until you are 
 satisfied that his courage is restored, and then you may proceed with 
 him as with any other witness. But be very careful not to take him 
 to material topics while he is under the infkience of fear, for in this 
 state a witness is apt to become confused, and to contradict himself, 
 and so to afford to your adversary a theme for damaging comment. 
 
 STUPID WITNESSES. 
 
 A stupid witness is often more troublesome than an adverse one. 
 He cannot understand your questions, or answers them so imperfectly 
 that he had better left them unanswered. With such an one the only 
 resource is patience and good temper. If you are cross with him, you 
 will be sure to increase his stupidity, and to convert evidence that 
 means nothing into evidence that is contradictory and confused. The 
 preservation of imperturbable good temper is a golden rule with an 
 advocate. Pie should never be moved to anger by any thing, how- 
 ever provoking, and however he may ajyj^ear to be in a passion. En- 
 tire self-command is his greatest virtue, never more in requisition 
 than in dealing with a stupid witness. Instead of rebuking him, you 
 should encourage him by a look and expression of approval, and you 
 must frame your question in another shape better suited to his dense 
 faculties. If baffled again, do not retreat, but renew the catechism 
 until your object is obtained. In constructing your questions, you 
 will often find a clue to his trains of thought by observing his ans- 
 wers, and your next question might then, with a little ingenuity, be 
 so framed as to fall in with his train of ideas. Thus patiently treated, 
 there are few witnesses so dull as not to be made efficient for the 
 purpose of an examination-in-chief. 
 
 ORDER AND MANNER OF PUTTING QUESTIONS. 
 
 In the direct examination of witnesses, it is the better course 
 to observe the order of time. That is not only the most easily in- 
 telligible to the jury, but it is the natural order in which events are 
 associated in the mind of the witness, and therefore by which they 
 are the most readily and accurately recalled. If you depart from 
 this for the sake of bringing out facts that are connected together by 
 some other link than time, as, for instance, to exhibit in its entirety 
 one branch of your case, let the same principle govern the order of 
 that, and then return to the original plan. But it will not do to re-
 
 EXAMINATION OF A WITNESS. 319 
 
 vert to the precise point where you quitter! it ; you should repeat the 
 two or three questions with which you concluded, so as to recall your 
 witness to the point from which you had diverted him. Inattention 
 to this simple rule is often the occasion of no small perplexity to 
 the witness, and it is scarcely necessary to Avarn you against that, of 
 which advantage is certain to be taken to damage your case. 
 
 Your manner in examination-in-chief should he very different 
 from that which you assume in cross-examination. You are dealing 
 with your own witness, Avhom you assume to be friendly to you, un- 
 less informed to the contrary, when it is permitted to you to take the 
 tone already described You must encourage him if he be timid, 
 and win his confidence by a look and voice of friendliness. It often 
 happens that witnesses, unaccustomed to courts of justice, are so 
 alarmed at their own new position, that in their confusion they can- 
 not at first distinguish between the friendly and the adverse cotmsel, 
 and they treat you as an enemy to be kej)t at bay and to Avhom they 
 are to impart as little as possible. It is then your care to set your 
 witness right, and a kindly smile will often succeed in doing this. 
 Do not appear to notice his embarrassment, for that is sure to in- 
 crease it, but remove it quietly and imperceptibly by pleasant looks, 
 friendly tones, and words that have not the stern sound of a cate- 
 chism, but the familiar request of a companion to impart a story 
 which the querist is anxious to hear and the other gratified to tell. 
 The most frightened witness may thus be drawn almost unconsciously 
 into a narrative which, when he entered the witness-box, had escaped 
 his memory. 
 
 Your questions in examination-in-chief should be framed carefidly 
 and put deliberately. You never require in this that rapid fire of 
 questions which, as we shall have occasion to show hereafter, is so 
 often requisite in cross-examination. Nor in this have you need to 
 put an immaterial question, save under the rare circumstances previ- 
 ously described. You should weigh every question in your mind be- 
 fore you put it, in order that it may be so framed as to bring out in 
 answer just so much as you desire, and no more. You have time for 
 this, if you are as quick of thought as an Advocate should be, while 
 the judge is taking his note of the previous answer ; but even if this 
 be not sufficient for your purpose, you must not fear to make a de- 
 liberate pause. The court will soon learn not to be impatient of 
 your seeming slowness, when it discovers that you have in fact ab- 
 breviated the work by a pause which has enabled you to keep the 
 evidence strictly to the point at issue.
 
 )20 APPE^fDIX. 
 
 ALLOWING A WITNESS TO TELL HIS STORY HIS OWN WAY. 
 
 • Sometimes it demands considerable discretion to determine 
 whether it is better to jDermit the witness to tell his own story in his 
 own way, or to take him through it by questions. No rule can be 
 laid down for this ; it must depend upon your discernment at the 
 moment. There is a class of minds which can only recall facts byre- 
 calling all the associated circumstances, however irrelevant ; they 
 must repeat the whole of a long dialogue, and describe the most 
 trivial occurrences of the time, in order to arrive at any particular 
 part of the transaction. With such you have no help for it but to 
 let them have their oAvn way. It is the result of a peculiar mental 
 constitution, and endeavors to disturb their trains of association will 
 only produce inextricable confusion in the ideas of the witness, and 
 you will be further than ever from arriving at your object. But if 
 you are dealing with that other class of witnesses, happily more rare, 
 "who appear to have no trains of thought at all, who can observe no 
 order of events, whose ideas are confused as to time, place and per- 
 son, your only chance of extracting anything to your purpose is to 
 begin by requesting that they will simply answ^ er your questions, 
 and, falling in, as it were, with their own mental cbndition, proceed 
 to interrogate them after their own fashion, ^\\\.\i disconnected questions 
 and so endeavoring to draw out of them isolated facts, which you 
 will afterwards connect together in your reply, or which may dove- 
 tail with the rest of the evidence, so as to form a complete story. 
 
 This plan will often be found effective with such witnesses, when 
 all the usual methods of eliciting a narrative from them have been 
 abandoned in despair. Of course it demands great tact and readi- 
 ness ; but it is presumed that unless you possess these qualities you 
 will not attempt to become an Advocate. 
 
 RECALLING A WITNESS. 
 
 It will be your task, Avhen reading and noting up your case, to 
 marshal your witnesses in the order in which they will best support 
 your case, as you have determined to submit it to the jury. But, 
 inasmuch as you are not permitted to recall your witnesses, except 
 with special permission of the court, given only under special circum- 
 stances, and you are therefore compelled to elicit all that you require 
 in order to support any part of your case, where the same witness 
 speaks to different parts of it, you must take care in his examination 
 to separate his testimony, as it relates to each of such parts, and 
 even at the expense of some repetition to take him through his evi-
 
 EXAMINATION OF A WITNESS. 321 
 
 dencc as it bears upon one part before you take him to another, ob- 
 serving, however, the rules as to time and the manner of reverting 
 to the former portion of the narrative, which have been previously 
 described. 
 
 DUTIES OF OPPOSING COUNSEL PENDING THE EXAMINATION-IN-CHIEF. 
 
 While the examination-in-chief is proceeding, it is the duty of the 
 counsel on the other side to give the most attentive ear to every • 
 question and every answer, and to take a note of them. When this 
 duty devolves upon you, it may, perhaps, be performed all the more 
 satisfactorily by the observance of some rules which experience has 
 approved. 
 
 You must mark every question put to the witness, with a double 
 purpose ; first, to be sure that it is properly put, according to the 
 rules of evidence, and, secondly, to ascertain what is its bearing upon 
 the case, and the design of your adversary in putting it. 
 
 Great keenness of perception and readiness of apprehension are 
 requisite to the proper performance of this task. You will need to 
 have the law of evidence at your fingers' ends, that, if the question 
 be an improper one, you may interpose instantly, before the ansiver 
 is given, to forbid the witness to reply, and then not only to make 
 your objection to the court, but to support it by reasons. 
 
 And here let us warn you against the fault of making too frequent 
 and too frivolous objections. Many inexperienced men appear to 
 think, that by continually carping at the questions put by the other 
 side to the witnesses, they are proving to the audience how clever 
 they are. But this is a mistake. Such an exhibition of captiousness, 
 whether affected or real, is offensive to the court and to the jury. 
 Nothing is more easy than to find opportunities for this sort of van- 
 ity, without starting objections actually untenable, because, in prac- 
 tice, a vast number of questions are put which, in strictness are lead- 
 ing, and, therefore, if objected to, could not be permitted. But you 
 should never object to a question, as leading, merely because it is such, 
 but only when it appears to you to be likely to have an effect inju- 
 rious to your cause. And Avhen you have occasion to make such an 
 objection, do it good-temperedly, and as appealing to the better judg- 
 ment of your opponent, whether he does not deem it to be an im- 
 proper question ; nor address the objection to the court in the first 
 instance, but to your adversary, and only if he persists in putting it, 
 should you call upon the court to decide between you which is right. 
 
 But it is not against improper leading questions you have to be 
 upon the watch ; there are many others, still more objectionable,
 
 322 APPENDIX. 
 
 which it will he your duty, hy an instant ohjection, to prevent. As 
 soon as the words have fallen from your opponent's lips, and hefore 
 the Avitness can have time to answer, you must interpose first, with an 
 e.\clamation to the witness, " Don't answer that," and then, turning 
 to the court, state what is your ohjection to the question, with your 
 reason for it. Your opponent will answer you. Then you will have 
 the right of replying, and the court will decide between you. 
 
 There is, perhaps, no part of the business of an Advocate in which 
 the fruits of experience are more obvious than in this. If you watch 
 closely the examinations of the witnesses, in a trial where an experi- 
 enced Advocate is on the one side and an inexperienced one on the 
 other, you will see the practiced man putting question after question, 
 and eliciting flicts most damaging to the other side, which his adver- 
 sary might have shut out by a prompt objection to them, but which 
 he permits to pass without protest, because he is not sufficiently 
 practiced in the law of evidence to discern their illegality on the in- 
 stant, or so much Jiiaster of it as to give a reason for objection, even 
 though he may have a sort of dim sense that the questions are wrong 
 somehow, and he protests against leading questions, while he permits 
 illegal questions, destructive to his client, to be put without a mur- 
 mur. On the other hand, when it comes to his turn to examine his 
 witnesses, and on the experienced man devolves the duty of watching, 
 you will see how, in no single instance, is he suffered to tread over 
 the traces ; but the strictest rules of evidence are enforced upon him, 
 so that he sits down, leaving half his case undeveloped, while his ad- 
 versary has brought out all that he had desired to elicit. 
 
 IMPORTANCE OF KNOWLEDGE OF LAW OF EVIDENCE. 
 
 Hence, to the student aspiring to be an Advocate, the vital im- 
 portance of a mastery of the law of evidence, as the branch of law 
 which is not only most frequently in requisition by him, but the only 
 one which he is called upon to propound without previous research. 
 Almost all other subjects are notified to him before he goes into 
 court, so that he may look into the law and prepare himself for the 
 argument ; or, if, as rarely happens, he is suddenly called upon, the 
 court will always give time for research, or, at the least, allowance is 
 made for an insufficiency common to his audience, even to the judge 
 upon the bench. But, in questions of evidence, no such delay is 
 practicable, and no such excuse is accepted. They necessarily arise 
 on a sudden, and must be suddenly argued and decided. An Advo- 
 cate is expected to be aware of this, and to come prepared with a 
 knowledge of all the principles and rules of evidence. In order to
 
 EXAMINATION OF A WITNESS. 323 
 
 this, it is necessary to keep up his acquaintance with it, l»y continually 
 refreshing his memory, not only by reading every day a portion of 
 his favorite text-book, but by carefully reading, and then noting up 
 in that text-book, which should be interleaved for the purpose, every 
 case decided upon the law of evidence, as the reports issue ; and it is 
 of the extremest importance that he should possess the very latest 
 decisions, for they will not unfrequently give him a victory over an 
 adversary not so well prepared as himself with the latest cases. 
 
 While upon this subject, it may be convenient to add, that there is 
 another class of cases of which an Advocate should be careful to pro- 
 cure the earliest intelligence, and should note with equal care in his 
 book of practice; namely, such as may, perhaps, be best described, 
 under the collective title of " The Practice of Nisi Prius.''^ We mean, 
 by this, cases equally in sudden requisition with those on evidence, as 
 determining the conduct of a trial ; as the right to begin, notices, 
 juries and verdicts, the measure of damages, exceptions, &;c. Many 
 a victory has been won solely by the superior diligence of an Advo- 
 cate in thus possessing himself of the most recent decisions on cases 
 of this class. 
 
 MINUTES OF TESTIMONY. 
 
 Your notes of the evidence, as it proceeds, should be fully taken, 
 because you cannot anticipate at this period of the cause what por- 
 tions of it may prove to be material, nor where a question may arise 
 as to what was the witness' answer. In taking these notes, you be- 
 gin with the day aad date on which the trial took place, and the name 
 of the judge. You then s'^ery briefly note the more important points 
 of the opening speech, especially such points as you purpose to 
 answer, and you indicate such as will require peculiar attention by 
 scoring it twice or thrice. Then stating the name of the witness, and 
 the counsel by whom he is examined, you set down his evidence, leav- 
 ing a broad margin for your own observations, if any should occur to 
 you. It is not necessary to give both question and answer, save where 
 the question strikes you as one of special import, or to which you 
 might desire thereafter to refer; it will suffice merely to give the ans- 
 wer in the witness' own words, as nearly as you can observe them, 
 so as to make the statement intelligible. Thus, if the witness be 
 asked, " Were you at Albany on Saturday ? " and answers, " I was," — 
 a leading question, but probably not woith ol)jecting to, — you set it 
 down thus : ''Was at Albany on Saturday." But let it be a rule, so 
 far as it is practicable, always to take the very words used by the 
 witness. As you proceed, you will fnid that the evidence suggests to
 
 324 APPENDIX. 
 
 you matter to be explained on cross-examination, or to be answered 
 in yom- speech for the defence, or to be contradicted by your own 
 witness. Here it is that you will find the margin useful. When 
 such an idea occurs to you, never suffer it to escape, trusting to recall 
 it when it is wanted, for, amid the multiplicity of claims upon your 
 attention, you cannot be assured that it Avill return ; but grasp it in- 
 stantly, and in the margin, against the evidence that is so to be treated, 
 insert some mark which may catch your eye, and if the words are not 
 likely to suggest the thought you desire to recall, you can, in a hurried 
 sentence, there set down that of which you wish to be reminded. 
 This plan is especially useful for the purpose of cross-examination, for 
 it is extremely difficult to carry in the mind all the evidence-in-chief 
 that needs to be explained or deprived of its credit ; but, with this 
 scored and noted report of the witness' testimony before you, it is 
 unlikely that anything of moment will escape your attention. 
 
 EXAMINATION OX VOIR DIRE. 
 
 Another duty may devolve upon you, as Advocate — that is, the 
 examination on the voir dire. This legal phrase means merely the 
 examination to which a witness may be subjected, before he is ad- 
 mitted to be sworn, for the purpose of ascertaining if he is competent 
 to be a witness. When, therefore, a witness is called, you must be 
 prepared, if you have an objection to him, to state it iniinediately on 
 his appearance, and before he is sworn to give his evidence between 
 the parties ; and, having intimated to the court that you have such an 
 objection, you will proceed to examine him in support of it. This 
 examination you will be permitted to conduct as in the nature of a 
 cross-examination. Very iew questions usually suffice ; but if you 
 are dealing with an acute witness, who knows your object, and es- 
 pecially with a professional one, no common skill and tact are often 
 required to drag out of him the particular circumstances necessary to 
 sustain your objection. The same rules apply to voir dire examina- 
 tions as to cross-examinations. 
 
 We next proceed to consider what you should do in the conduct of 
 your cross-examinations. 
 
 CROSS-EXAMINATION. " 
 
 Cross-examination is commonly esteemed the severest test of an 
 Advocate's skill, and perhajis it demands, beyond any other of his 
 duties, the exercise of his ingenuity. But the experienced will doubt 
 whether, upon the whole, it is so difficult to do ivell as an examination- 
 in-chief, and certainly it is more frequently well done, although this
 
 EXAMINATION OF A WITNESS. 325 
 
 may not improbably result from the prevalent notion that examina- 
 tion-in-chief is an easy matter, which any body can do, while cross- 
 examination is extremely difficult, and therefore the Advocates, and 
 especially young Advocates, perform the one carelessly, while they 
 put forth all their powers for the accomplishment of the other. Do 
 not understand, however, that we are unconscious of the difficulty of 
 conducting a cross-examination with creditable skill. It is undoubted- 
 ly a great intellectual effi^rt ; it is the direct conflict of mind with 
 mind ; it demands, not merely much knowledge of the human mind, 
 its faculties, and their modus operandi, to be learned only by reading, 
 reflection and observation, but much experience of man and his mo- 
 tives, as derived from intercourse with various classes and many per- 
 sons, and, above all, by that practical experience in the art of dealing 
 with witnesses which is more worth than all other knowledge ; which 
 other knowledge will materially assist, but without which no amount 
 of study will suffice to accomplish an Advocate. To the on-looker, a 
 cross-examination has much more of interest, for it is more in the 
 nature of a combat, with the excitement that always attends a combat 
 of any kind, physical or intellectual ; it is man against man, mind 
 wrestling with mind. Whereas, in examination-in-chief, the Advocate 
 and his witness have the appearance, at least, of being allies, and 
 whatever skill the former is required to exercise for the attainment of 
 his object, needs to be concealed, and is seldom apparent to a mere 
 spectator, however it may be recognized and appreciated by those 
 who are engaged with him in the cause, and Avho know with what 
 exquisite tact he has elicited just what he desired, and suppressed 
 that which he wanted not to reveal. 
 
 TWO STYLES OF CROSS-EXAMINATION. 
 
 There are two styles of cross-examination, which Ave may term the 
 savage style, and the smiling style. The aim of the savage style is 
 to terrify the witness into telling the truth ; the aim of the smiling 
 style is to win him to a confession. The former is by far the most 
 frequently in use, but its use is a great mistake. The passions rouse 
 the passions. Anger, real or assumed, kindles anger. An attack 
 stimulates to defiance. By showing susj^icion of a witness, you in- 
 sult his self-love — you make him your enemy at once — you arm his 
 resolution to resist you — to defy you — to tell you no more than he 
 is obliged to tell — to defeat you, if he can. Undoubtedly there are 
 cases where such a tone is called for ; where it is politic as well as 
 just ; but they arc rare, so rare that they should be deemed entirely 
 exceptional. In every part of an Advocate's career, good temper
 
 326 APPENDIX. 
 
 and self-command are essential qualifications ; but in none more so 
 than in the practice of cross-examination. It is marvellous how much 
 may be accomplished with the most difficult witness simply by good 
 humor and a smile ; a tone of friendliness will often succeed in obtain- 
 ing a reply which has been obstinately denied to a surly aspect and a 
 threatening or reproachful voice. As a general rule, suV)ject to such 
 very rare exceptions as scarcely to enter into your calculations, you 
 should begin your cross-examination with an encouraging look, and 
 manner, and phrase. Remember that the witness knows you to be 
 on the other side ; he is prepared to deal with you as an enemy ; he 
 anticipates a badgering ; he thinks you are going to trip him up, if 
 you can ; he has, more or less, girded himself for the strife. It is 
 amusing to mark the instant change in the demeanor of most wit- 
 nesses, when their own counsel has resumed his seat and the Advocate 
 on the other side rises to cross-examine. The position, the counte- 
 nance, plainly show what is passing in the mind. Either there is 
 fear, or, more often, defiance. If you look fierce and speak sternly, 
 it is just what had been expected, and you are met by corresponding 
 acts of self-defense. But if, instead of this, you wear a pleasant 
 smile, speak in a kindly tone, use the language of a friendly ques- 
 tioner, appear to give him credit for a desire to tell the whole truth 
 and nothing but the truth, you surprise, you disarm him ; it was not 
 what he had anticipated ; and he answers frankly your questions. 
 
 But where shall you begin? What order shall you follow? 
 Shall you carry him again through the narrative given in his ex- 
 amination-in-chief, or begin at the end of it and go backwards, or 
 dodge him about, now here, now there, without method ? 
 
 Each of these plans has its advantages, and perhaps each should 
 be adopted, according to circumstances. 
 
 >'EVER CROSS-EXAMINE WITHOUT AX OBJECT. 
 
 But you cannot determine which course to adopt unless you have 
 some definite design in the questions you are about to put. A mere 
 aimless, haphazard cross-examination is a fault every Advocate 
 should strenuously guard against. It is far better to say nothing 
 than to risk the consequence of random shots, which may as often 
 wound your friends as your opponents. Very little experience will 
 assure you that there is no error so common as this. Some pei'sons 
 seem to suppose that their credit is concerned in getting up a cross- 
 examination, and they look upon the dismissal of a witness wiihout 
 it as if it were an opportunity lost, and they feared that clients would 
 attribute it, not so much to prudence as to conscious incapacity. So
 
 EXAMINATION OF A WITNESS. 327 
 
 they rise and put a number of questions that do not concern the issue, 
 and perhaps elicit something more damaging to their own cause than 
 anything the other side has brought out, and the result is, that they 
 leave their client in a far worse condition than before. Let it be a 
 rule with you never to cross-examine unless to gain some distinct ohject. 
 Far better be mute through the whole trial, dismissing every witness 
 without a word, than, for the mere sake of opjiearanccs, to ply them 
 with questions not the result of a puri^ose. 
 
 First resolve whether you will cross-examine at all. It is impos- 
 sible to prescribe any rules to guide you in this, so much must depend 
 upon the particular circumstances of each case. You must rely upon 
 your own sagacity, on a hasty review of what the witness has said — 
 how his testimony has aifected your case, and what probability there 
 is of your weakening what he has said. If he has said nothing mate- 
 rial, usually the safer course is to let him go without a question, unless 
 indeed, you are instructed that he can give some testimony in your 
 favor or damaging to the party who has called him, and then you 
 should proceed to draw that out of him. But unless so instructed, 
 you should not, on some mere vague suspicions of your own, or in 
 hope of hitting a blot somewhere by accident, incur the hazard of 
 eliciting something damaging to you, — a result to be seen every day 
 in our courts. So, as a general rule, it is dangerous to cross-examine 
 Avitnesses called for mere formal proofs, as to prove signatures, at- 
 testations, copies and such like. Still, such witnesses are not to be 
 immediately dismissed, for you should first consider if there be any 
 similar parts of your case which they may prove, so as to save a wit- 
 ness to you, and then you should carefully confine yourself to the pur- 
 pose for which you have detained them. 
 
 THREE OBJECTS OF CROSS-EXAMINATION. 
 
 In resolving whether or not to cross-examine a witness, it is neces- 
 sary to remember that there can be but three objects in cross-exami- 
 nation. It is designed either to destroy or weaken the force of the 
 evidence the witness has already given against you, or to elicit some- 
 thing in your favor, which he has not stated, or to discredit him, by 
 showing to the jury, from his past history or j^resent demeanor, that 
 he is unworthy of belief. Never should you enter upon a cross-ex- 
 amination without having a clear purpose to pursue one or all of these 
 objects. If you have no such purpose, keep quiet. 
 
 Let us consider each of these objects of cross-examination sepa- 
 rately. 
 
 1st. To destroy or weaken the force of his testimony in favor of the
 
 328 APPENDIX. 
 
 other side. If this be your design, you can attain it only by one of 
 two processes. You must show from the witness' own lips, either 
 that what he has stated is false, or that it is capable of ezjjlanation. 
 If your opinion be that he is honest, but prejudiced ; that he is mis- 
 taken ; that he has formed a too hasty judgment, and so forth, your 
 .bearing towards him cannot be too gentle, kind and conciliatory. 
 Approach hiiii with a smile, encourage him with a cheering word, 
 assure him that you are satisfied that he intends to tell the truth, and 
 the whole truth, and having thus won his good-will and confidence, 
 proceed slowly, quietly, and in a tone as conversational as possible, to 
 your object. Do not approach it too suddenly, or you will chance to 
 frighten him with that which forms the greatest impediment to the 
 discovery of the truth from a witness, the dread of apjjearinc/ to con- 
 tradict himself. If once this alarm be kindled, it is extremely diffi- 
 cult to procure plain, unequivocal answers. The witness forthwith 
 places himself on the defensive, and, deeming you an enemy, fences 
 you with more or less of skill, certainly, but always to the weaken- 
 ing of whatever may drop from him in t/onr favor. With such a 
 witness, of whose candor you are seeking to avail yourself, the better 
 course is to begin with the beginning of the story he has told, and 
 conduct him through it again in the same order, only introducing at 
 the right places the questions which are intended to explain or qualify 
 what he has stated in his examination-in-chief. The advantage of this 
 course is the avoidance of any appearance of a surprise upon him. 
 You take him into his former track — you even make him repeat a 
 portion of what he has before said — you recall his mind to the sub- 
 ject with which it is familiar. The scene is again before him, occupy- 
 ing his thoughts. Then, it is easy to try him upon the details (but 
 still gently), to suggest whether it may not have differed by so and 
 so from that which he has described, or if so and so (which gives the 
 transaction another complexion) did not occur also, and thus at more 
 or less length, according to the circumstances of the case. 
 
 And here, at the very outset, let us warn you against exhibiting 
 any kind of emotion during cross-examination ; especially to avoid 
 the slightest show of exultation when the witness answers to your 
 sagacious touch, and reveals what apparently he intended to conceal. , 
 It startles him into self-command and closes the j^ortal of his mind 
 against you more closely than ever. You have jiut him upon his 
 guard and defeated yourself. Let the most important answer appear 
 to be received as calmly and unconsciously as if it were the most 
 trivial of gossip. 
 
 In the same manner you may carry him to the conclusion of his
 
 EXAMINATION OF A WITNESS. 329 
 
 story, and what with an explanation of one fact, and addition to an- 
 other, and a toniny down of the color of the whole, the evidence will 
 usually appear in a very different aspect, after a judicious cross-exami- 
 nation, from that which it wore at the close of the examination-in- 
 chief. 
 
 Thus you should deal with a witness whom you believe to be 
 truthful, and therefore from whom you propose only to elicit explan- 
 ations and facts in your favor, which the opposite counsel has not, of 
 course, assisted him to disclose. 
 
 If you suspect that some of the statements of the witness arc false 
 in fact, although not willfully mis-stated, — errors of the senses, of the 
 imagination, of the memory, — so much more frequent than they whose 
 occupation has not been to sift and weigh the worth of evidence might 
 suppose, — your task becomes a very difficult one ; for without in any 
 manner charging him with peijury, or desiring to have it understood 
 that you do otherwise than believe him to be an honest witness, you 
 have to prevail upon him to confess that which will wear the aspect of 
 falsehood. Now, there is nothing upon which witnesses of every giade 
 of rank and intellect are so sensitive as self-contradiction. They sus- 
 pect your purpose instantly, and the dread of being made to appear 
 as lying, while often producing contradictions and evasions, more 
 often arms the resolution of the witness to adhere to his original 
 statement, without qualification or explanation. When, therefore, it 
 is your purpose to show from the witness' own lips that he was mis- 
 taken, the extremest caution is required in approaching him. You 
 must wear an open brow, and assume a kindly tone. Let there be in 
 your language no sound of- suspicion. Intimate to him delicately 
 your confidence that he is desirous of telling the truth and the whole 
 truth. Be careful not to frighten him by point-blank questions going 
 at once to involve him in a contradiction, or he will see your design, 
 and thwart it by a resolute adhesion to his first assertion. You must 
 approach the object under cover, opening with some questions that 
 relate to other matter, and then gradually coming round to the de- 
 sired point. And even when you have neared the desired point, you 
 must endeavor, by every device your ingenuity can suggest, to avoid 
 the direct question, the answer to which necessarily and obviously 
 involves the contradiction. The safer and surer course is to biing 
 out the discrepancy by inference, that is, instead of seeking to make 
 the witness unsay what he has said, it should be your aim to elicit a 
 statement which may be shown by argument to be inconsistent with 
 the former statement. 
 23
 
 330 APPEimix. 
 
 NEVER SEEK TO ENTRAP WITNESS. 
 
 But it must be understood that, in all this, your only purpose 
 should be, to ascertain the very truth — to trace an error, if it exists 
 — to try the memory of the witness, if it be trustworthy. Never 
 should you seek to entrap him into a falsehood, nor, by your art, to 
 throw him into perplexity, with a design to discredit him, if you 
 believe that not only is he honest, but that he has not erred. Your 
 duty as an Advocate is strictly limited by the rules of morality. It 
 is no more permissible for you to tamper with the truth in others, or 
 tempt them to confound or conceal it, than to be false yourself. The 
 art to be practiced in cross-examination is to be used only when you 
 believe that the witness has not told the truth, and to elicit the truth 
 is to be your sole purpose. 
 
 DIFFICULT TO PROCURE CONTRADICTION. 
 
 An explanation is less difficult to be procured from a witness than 
 is a contradiction ; because in the case of an explanation the witness 
 has not the fear of being presented in the aspect of one who is per- 
 jured. A witness conscious that he has been induced in the exami- 
 nation-in-chief to say too mucli, will often seize the opportunity 
 afforded by cross-examination to modify his assertions. If you see 
 this tendency, you have only to encourage it by falling in with his 
 mood, and carefully avoiding anything calculated to make hirn fear 
 the use to which you may put his admissions. If there be no such 
 tendency, then your coui'se will be the reverse of that to be pursued 
 when you are seeking for contradictions. Instead of avoiding the 
 point, you should go at once to that part of the evidence, repeat the 
 very question, and when you have received the same reply, follow it 
 with a series of questions as to the circumstances, which, as you are 
 instructed, go to modify or explain the statements you are combat- 
 ing. If you are satisfied that the witness is honest and truthful, you 
 cannot put your questions too plainly ; let them be as leading as you 
 can frame them, naming the fact, and in such a form that the answer 
 shall be a plain " Yes," or " No." And here let us warn you to be 
 cautious not to press your inquiries too far. Having obtained 
 enough for your purpose, pass on. You may obtain too much. 
 There is no more useful faculty in the practice of an Advocate than 
 to know when he has done enough. Many more causes are lost by 
 saying too much than by not saying enough. 
 
 SECOND OBJECT OF CROSS-EXAMINATION. 
 
 The second object of cross-examination is to elicit something in your
 
 EXAMINATION OF A WITNESS. 331 
 
 favor. The method of doing this depends upon the character of the 
 witness. If you believe him to be honest and truthful, you may pro- 
 ceed directly to the subject-matter of your inquiry, with plain, 
 point-blank questions. But if you suspect that he will not readily 
 state what he is aware will operate in your favor, you must ap- 
 proach him with some of the precautions requisite for the cross-ex- 
 amination of a witness who is not altogether trustworthy. But this 
 distinction in the circumstances is to be observed. Here you are 
 dealing with a witness from whom it is your intent to procure some 
 evidence in your favor. You cannot discredit him, by showing him 
 to be unworthy of belief, without losing the advantage of his testi- 
 mony on your own behalf. Therefore you cannot venture to probe him 
 by questions that might lead to contradictions. How, then, may you 
 attain your end ? 
 
 You can only do so by gradual approaches. The plain direct 
 questions which best elicit the truth from the witness desirous of 
 telling the whole truth, and nothing but the truth, would, to a witness 
 who desires to suppress some of the truth, operate as a signal for 
 silence. With such an one the surest course is, by almost impercepti- 
 ble degrees, to conduct him to the end. Elicit one small fact, per- 
 haps but remotely connected with the main object of your inquiry. 
 He may not see the chain of connection, and will answer that ques- 
 tion freely ; or deem it not worth evading. A very small admission 
 usually requires another to confirm or explain it. Having said so 
 much, the witness cannot stop there ; he must go ou in self-defense, 
 and thas, by julicious approaches, you bring him to the main point. 
 Even if then he should turn upon you, and say no more, you will have 
 done enough to satisfy the jury that his silence is as significant as 
 would have been his confession. 
 
 PROFITING BY WITNESs' SILENCE. 
 
 It may be remarked here that good generalship may be often 
 shown in skillfully availing himself of the silence of a witness. A 
 refusal to answer, or an evasion of your question, will frequently be 
 more serviceable to you than words. On such occasions, when as- 
 sured of the advantage with which you can employ in your argument 
 to the jury that reluctance to reply, you will not, after having plied 
 him fairly, continue to urge him ; but having done enough to satisfy 
 the Court that he can, if he pleases, say something more, you should 
 withdraw, and then you may suggest such inferences from his 
 silence as may be most advantageous to your cause. It is a frequent 
 and fatal fault of an Advocate to insist on an answer in words to every
 
 332 APPENDIX. 
 
 question put, forgetting that the auswer may ba injurious, while the 
 silence may be more than suggestive of all that is designed to be 
 elicited. 
 
 UNFAVORABLE ANSWER OF WITNESS. 
 
 The most cautious cross-examination will not always prevent the 
 disagreeable incident of an answer that tells strongly against the 
 questioner. ^Yheu such a contre-temps occurs to you do not appear 
 to be taken by surprise. Lat neither countenance, nor tone of voice, 
 Bor expression of annoyance, show you are conscious of being taken 
 aback. If others exhibit surprise, be you as calm and appear as 
 satisfied as if you had expected the answer in question. Thus you 
 will repel the force of the blow, for, seeing that you are not per- 
 plexed by it, the audience may suppose it not to be so important as 
 they deemed it to be, or they give you credit for some profounder 
 purpose than is apparent, or that you are prepared with a contradic- 
 tion or an explanation. Sometimes, indeed, where the blow has been 
 more than usually staggering, it may not be bad policy to weaken its 
 force by openly making light of it, repeating it, taking a note of it, 
 or appending a joke to it. At no time is self-command more re- 
 quisite to an Advocate than at such a moment, and never is the con- 
 trast between experience, and inexperience, the prudent and the in- 
 judicious, more palpably exhibited. 
 
 GOVERNING PRINCIPLE IN AN EXAMINATION. 
 
 The principle, then, that should govern your conduct in dealing 
 with an adverse witness, with a view to discredit him, should be that 
 which you would recognize in your private capacity as a Christian 
 gentleman, and which may be summed up in three words — Justice, 
 Truth, Charity. You have no right to tempt, to terrify, or entrap 
 him into falsehood. You have no right to charge him with falsehood, 
 unless you are convinced that he is lying, and not that he is merely 
 mistaken. Justice demands that you deal with him as you would 
 be dealt with were you the witness and he the advocate. Truth de- 
 mands that you make no endeavor to misrepresent him, or to dis- 
 tort the meaning of his words, contrary to your own conviction of 
 his honesty. Charity demands that you put upon his evidence the 
 construction most accordant with good intentions. 
 
 WHEN art may be USED AGAINST WITNESS. 
 
 Only when you are persuaded that the witness is not telling the 
 truth, may you with propriety use your art to entrap him into con- 
 tradictions, or charge him with falsehood. And, indeed, rarely is
 
 EXAMINATION OF A WITNESS. 333 
 
 any thing to he gained by such prostitution of the abilities of the Ad- 
 vocate as that against which we are warning you. In fact, witnesses 
 do not deliberately lie so frequently as the inexperienced are wont to 
 believe. Downright, intended, conscious jjerjurt/, occurs but seldom. 
 
 PERJURY LESS FREQUENT THAN MISTAKE. 
 
 But, on the other hand, experience will teach you that evidence is 
 far less trustworthy than the public, or juries who represent the pub- 
 lic, suppose it to be. There is much less of ^je/jz/ry, and vastly more 
 of mistake, in witnesses, than the imaccustomed observer would 
 imagine to be possible, unless he had studied the physiology of the 
 mind, and had thence learned how" manifold are the sources of error, 
 and how imperfect is the sense that conveys the knowledge of facts, 
 and the understanding that tries, and proves and applies it. 
 
 To the Advocate, however, it is of vital importance that he should 
 attain to the full comprehension of this truth, for it must be the 
 guiding star of his conduct in the cross-examination of witnesses. 
 The consciousness of it will govern his words, his voice, his manner ; 
 change the tone of mistrust into that of confidence; the language of 
 rebuke into that of kindness ; the eye that flashes anger and kiudles 
 defiance into the look that wins to frankness. 
 
 WHAT IS MEANT BY DISCREDITING WITNESS. 
 
 Do not let us be misunderstood in the use of the phrase, to dis- 
 credit a witness. We do not mean by this the vulgar notion of dis- 
 crediting by making him appear to be jperjured. Our meaning is 
 simply to show, by cross-examination, that his evidence is not to be 
 implicitly believed ; that he is mistaken in the whole or in parts of 
 it. By adopting this manner of dealing, you not only act in strict 
 accordance with justice, truth, and charity, but, you are far more 
 likely to attain your object than by charging willful falsehood and per- 
 jury, by which course, if you foil to impress the jury, you endanger 
 your cause. It not unfrequently happens that a charge of perjury 
 against the witnesses on the other side, induces the jury to make the 
 trial a question of the honor of the witnesses, instead of the issue on 
 ths record. They say, " If we find for the defendant, after what has 
 been said by his counsel .against the plaintitf's Avitnesscs, we shall be 
 confirming his assertion that they are perjured, which we do not be- 
 lieve ; " and so, to save the characters of their neighbors, whom they be- 
 lieve to be unjustly impugned, they give a verdict against the assailant. 
 
 In truth, without imputing perjury, you will find an ample field 
 for trying the testimony of a witness by cross-examination, and of
 
 334 APPENDIX. 
 
 showing to the jury its weakness or worthlessness, by bringing into 
 play all that knowledge of the physiology of mind and of the value 
 of evidence which it is presumed that you have acquired in your 
 training for the office of an Advocate. Thus armed, you will ex- 
 perience no difficulty in applying the various tests by which the truth 
 is tried, with much more of command over the witness and vastly 
 more of influence with the jury, who will always acknowledge the 
 probability of mistake in a witness, when they will not believe him 
 to be perjured. And do not adopt this course as if it were an art, a 
 contrivance, but frankly and fully, with entire confidence in its policy 
 as well as its rectitude, so that no lurking doubt may betray itself 
 in your manner, to throw a suspicion on your sincerity. 
 
 A sober quietness, an expression of good temper, a certain friend- 
 liness of look and manner, which will be understood, although it can- 
 not be described, should distinguish you when you commence the 
 cross-examination of a witness, the truth of whose testimony you are 
 going to try, not by the vulgar arts of brow-beating, misrepresent- 
 ing, insulting, and frightening into contradictions, but by the more 
 fair, more honorable, and more successful, if more difficult, method 
 of showing him to be mistaken. You must begin with conciliation ; 
 you must remove the fear which the most truthful witness feels 
 when about to be subjected to the ordeal of cross-examination. Let 
 him understand, as soon as possible, that you are not about to insult 
 him nor to entrap him into falsehood, nor to take unfair advantages 
 of him ; that you have confidence in his desire to tell the truth and 
 all the truth, and that your object is to ascertain the precise limits of 
 truth in the story he has told. 
 
 THIRD OBJECT OF CROSS-EXAMINATION. 
 
 The third object of cross-examination is to discredit the witness, 
 and, to accomplish this, proceed very gently, and only, as it were, 
 with the fringe of the case, until you see that the witness is re-as- 
 sured, and that a good understanding has been established between 
 you, to which a smiling question that elicits a smiling answer will be 
 found materially to contribute. A witness who stubbornly resists 
 every other advance on the part of the Advocate, will often yield at 
 once to a good-humored remark that compels the lips to curl. This 
 point gained, you may at once proceed to your object. 
 
 The other purposes of cross-examination have been previously 
 explained. We are now considering only what is to be done when 
 the design is to discredit the testimony, not by discrediting the wit- 
 ness, but by showing that he is mistaken ; that he has been himself
 
 EXAMINATIOK OF A WITNESS. 335 
 
 deceived. Now, the way to do this is by closely inquiring into the 
 sources of his knowledge ; and here it is that so much analytical 
 skill, so intimate an acquaintance with mind and its operations, is de- 
 manded on your part, and that you should avert resistance to your 
 inquiries on the part of the witness. 
 
 Perhaps it is unnecessary to inform you that it is useless to put 
 to a witness directly the question, if he is sure that the fact was as he 
 has stated it. He will only be the more positive. No witness will 
 ever admit that he could have been mistaken. This is shown re- 
 markably in cases where personal identity is in question. Every 
 body admits that there is nothing upon which all persons are so often 
 mistaken ; yet is there nothing upon which witnesses are more posi- 
 tive, and that positiveness is continually influencing inconsiderate 
 juries to erroneous verdicts, as the records of our criminal law pain- 
 fully prove ; for of the wrongful convictions, fully one half have 
 been cases of mistaken identity, in which witnesses have been too 
 positive, and juries too confiding, in a matter which their own daily 
 experience should satisfy them to be, of all others, the most dubious 
 and unsatisfactory. Instead, therefore, of asking the witness whether 
 he might not be mistaken, you should proceed at once to discover the 
 probabilities of mistake, by tracing the sources of his knowledge, 
 and by eliciting all the circumstances, internal and external, under 
 which it was formed. It is in this operation that the faculties of the 
 skillful Advocate are displayed ; this it is that calls into play his 
 acquaintance with mental physiology, his experience of men and 
 things, and in which he exhibits his superiority over the imperfectly 
 educated and-the inexperienced. 
 
 HOW TO SHOW WITNESS IS MISTAKEN. 
 
 By what process do you perform this difficult duty, and achieve 
 this triumph of your art? Let us endeavor to describe it. 
 
 The witness has detailed an occurrence at a certain time and 
 place, and it is your purpose to show that he was mistaken in some 
 of the particulars, and that the inferences he drew from them were 
 incorrect, or not justified by the facts. Your first proceeding to this 
 'end, is to realize the scene in your own mind. Your fancy must paint 
 for you a picture of the place, the persons, the accessories. You 
 then ask the witness to repeat his story — you note its congruity or 
 otherwise with the circumstances that accompanied it ; you detect 
 improbabilities or impossibilities. You see as he saw, and you 
 learn in what particulars he saw imperfectly, and how he formed too 
 hasty conclusions ; how prejudice nuiy have influenced him ; how
 
 336 APPENDIX. 
 
 tilings dimly seen were by the imagination transformed into other 
 things in his memory. 
 
 How erring the senses are, and how much their impressions are 
 afterward moulded by the mind ; how very fallible is information, 
 seemingly the most assured, it needs no extensive observation to 
 teach. If you make inquiry as to an occurrence in the next street, 
 ten minutes after it has happened, and from half a dozen actual spec- 
 tators of it, you will receive as many different accounts of its de- 
 tails, and yet each one positive as to the truth of his own narrative, 
 and the error of his neighbor's. It is so with all testimony ; and 
 hence, whatever depends upon the senses or the momory of a wit- 
 ness, however honest and truth-speaking he may be in intention, is 
 fairly open to doubt, to question, to investigation, and to denial, for 
 the purpose of showing that it ought not to be relied upon, and that 
 it may have, upon the question under consideration, a bearing alto- 
 gether different from that for which it was employed by the party 
 who adduced it. 
 
 TO DISCOVER SOURCE OF WITNESs' MISTAKE. 
 
 But it is not enough to ascertain that the witness is mistaken ; to 
 satisfy the jury, when you come to comment upon his evidence, you 
 must learn whence the mistake arose, and you should not leave him 
 until you have attained your object. Sometimes you may procure 
 this from the witness' mouth, thus : — Having gathered fi-om his de- 
 scription that, in the circumstances of place or time, or otherwise, as 
 the case may be, it was impossible or improbable that he could have 
 seen or heard enough to justify his positive conclusion, you may 
 plainly put to him the question, how it is that, being so situated, he 
 could have so seen or heard 1 This will usually elicit an explanation that 
 will at once be a confession of his mistake and a discovery of its 
 cause. 
 
 Caution is nevertheless necessary in this proceeding, and it should 
 be resorted to only when other means have failed ; for, having ascer- 
 tained to your own satisfaction the mistakes of the Avitness and the 
 facts that prove them to be mistakes, the exhibition of them will come 
 with far better effect in your address to the jury, Avhen lucidly dis-' 
 played in argument, than when evolved bit by bit in the course of a 
 long examination. Usually, it will be sufficient for you that you have 
 thQ fact. Besides, it is well that the witness himself is not made con- 
 scious of detected error, lest, fearing to have his veracity impugned, 
 he should close his mind against you, and resist further investigation 
 into the parts of his story which yet remain to be told.
 
 EXAMrNATION OF A WITNESS. 337 
 
 DEALING WITH FALSE WITNESS. 
 
 The art of cross-examiiication, however, is not limited to the detec- 
 tion of mistakes in a witness. Sometimes it happens that you have 
 good reason to believe that he is not mistaken, but that he is lying ; 
 and when you are assured of this, but not otherwise, you may treat 
 him as a liar, and deal with him accordingly. Your object will now 
 be to prove him to be a liar out*of his own mouth, and it will be per- 
 missible to resort to many a stratagem for the purpose of detection, 
 which might not be fairly used towards a witness whom you believe 
 to be honest, but mistaken. 
 
 The question occurs whether it is more prudent to show such 
 a witness that you suspect him, or to conceal your doubts of his hon- 
 esty ? Either course has its advantages and disadvantages. By dis- 
 playing your doubts, you incur the risk of setting him upon his guard, 
 and leading him to be more positive in his assertions and more cir- 
 cumspect in his answers ; but, on the other hand, a conscious liar is 
 almost always a moral coward ; when he sees that he is detected, he can 
 rarely muster courage to do more than reiterate his assertion ; he has 
 not the presence of mind to carry out the story by ingenious inven- 
 tion of details, and a consistent narrative of accidental circumstances 
 connected with it. A cautious concealment of your suspicions pos- 
 sesses the advantage of enabling you to conduct him into a labyrinth 
 before he is aware of your design, and so to expose his falsehood by 
 self-contradictions and absurdities. Perhaps either course might be 
 adopted, according to the character of the witness. If he is a cool, 
 shrewd fellow, it may be more prudent to conceal from him your 
 doubts of his veracity, until he has furnished you with the proof. If 
 he is one of that numerous class who have merely got up a story to 
 which they doggedly adhere, it may be wise to awe him at once, by 
 notice that you do not believe him, and that you do not intend to 
 spare him. We have often seen such a witness surrender at discre- 
 tion on the first intimation of such an ordeal. This is one of the arts 
 of advocacy which cannot be taught by anything but experience. It 
 is to be learned only by the language of the eye, the countenance, the 
 tones of the voice, that betray to the practiced observer what is pass- 
 ing in the mind within. 
 
 But having resolved upon your course, pursue it resolutely. Be 
 not deterred by findng your attacks parried at first. Persevere until 
 you have attained your object, or are convinced that your impression 
 was wrong, and that the witness is telling the truth. If you determine 
 to adopt the course of hiding from him your doubts, be careful not to 
 betray doubt by your face nor by tone of voice. A good Advocate is
 
 338 APPENDIX. 
 
 a good actor, and it is one of the faculties of an actor to command his 
 countenance. Open gently, mildly ; do not appear to doubt the wit- 
 ness ; go at once to the marrow of the story he has told, as if you 
 were not afraid of it ; make him repeat it ; then carry him away to 
 some distant and collateral topic, and try his memory upon thai, so 
 as to divert his thoughts from the main object of your inquiry, and 
 prevent his seeing the connection between the tale he has told and the 
 questions you are about to put to him. Then, by slow approaches; 
 bring him back to the main circumstances, by the investigation of 
 which it is that you purpose to show the falsity of the story. 
 
 The design of this manoeuvre is, of course, to prevent him from 
 seeing the connection between his own story and your examination, 
 so that he may not draw upon his imagination for explanations con- 
 sistent with his original evidence; your design being to elicit incon- 
 sistency and contradictions between the story itself and other circum- 
 stances, from which it may be concluded that it is a fabrication. 
 
 INSTANCE OF DETECTION OF FALSE WITNESS. 
 
 As a specimen of the sort of cross-examination to which we refer : 
 In a case of affiliation of a bastard child, the mother had sworn dis- 
 tinctly and positively to the person of the flither, and to the time and 
 place of their acquaintance, fixed, as usual, at precisely the proper 
 period before the birth of the child. In this case, the time sworn to was 
 the middle of May ; and the place, the putative father's garden ; for 
 an hour the witness endured the strictest cross-examination that in- 
 genuity could suggest ; she was not to be shaken in any material 
 part of her story : she had learned it well, and with the persistence 
 that makes women such difficult witnesses to defeat, she adhered to it. 
 She was not to be thrown off her guard by a question for which she 
 was not prepared, and the examination proceeded thus : — '• You say you 
 walked in the garden with Mr. M. ? Yes. Before your connection 
 with him? Yes. More than once ? Yes; several times. Did you 
 do so afterwards % No. Never once ? No. Is there fruit in the 
 garden 1 Yes. I suppose you were not allowed to pick any % Oh ! 
 yes ; he used to give me some. What fruit ? Currants and raspber- 
 ries. Ripe ? Yes." 
 
 This was enough. She was detected at once. The alleged inter- 
 course was in the middle of May. Currants and raspberries are not 
 ripe till June. In this case the woman's whole story was untrue. She 
 had fallen in with the suggestion about fruit, to strengthen, as she 
 thought, her account of the garden. But she did not perceive the 
 drift of the qnestions, and consequently had not sufficient self-com- 
 mand to reflect that the fruit named was not ripe in May.
 
 EXAMINATION OF A WITNESS. 339 
 
 This will serve as an illustration of the manner in which the 
 most acute witness may be detected in a lie. But patience in t-he 
 pursuit is always necessary. You may be baffled once and again, but 
 be careful never to let it be seen that you are baffled. Glide 
 quietly into another track, and try another approach ; you can 
 scarcely fail of success at last. No false witness is armed at all 
 points. 
 
 But, in this process, somewhat tedious, it is true, to yourself, and 
 not always comprehended by others, the art of the witness will not be 
 the only nor the severest trial of your temper. Too often you will 
 find the Judge complaining of the tediousness of repetition. He does 
 not always see your drift, and, especially, if you are young, he is apt 
 to conclude that you are putting questions at random, and to refuse 
 you credit for a meaning and a design in your queries. You must, 
 in such case, firmly but respectfully assert your right to conduct 
 your examination after your own fashion, and proceed, without per- 
 turbation, in the path your deliberate judgment has prescribed. Your 
 duty is to your client, and you must discharge it fearlessly, leaving 
 to the event and to experience to vindicate your motives and 
 prove the wisdom of your conduct. After a while the Judge will dis- 
 cover that you do not act without a sufficient reason, and that you 
 have a design in your cross-examination'. It must, however, be con- 
 fessed that cross-examination is so often conducted at random, with- 
 out aim, or plan or purpose, as if for the mere sake of saying some- 
 thing, that Judges may well be excused for suspecting a divergent 
 course in a junior, and attributing to inexj^eriencc a string of questions 
 which are in fact the result of profound deliberation and design. 
 
 OPEN ATTACK UPON WITNESS. 
 
 If, however, you adopt the other course, and, instead of surprising 
 the witness into the betrayal of his falsehood, you resolve to bring it 
 out of him by a bold and open attack — to awe him, as it were, into 
 honesty — aspect and voice must express your consciousness of his 
 l^erjury, and your resolve to have the truth. A stern, determined 
 fixing of your eye upon his, will often suffice to unserve him, and it 
 will certainly help you to assure yourself whether your suspicions are 
 just or unjust. It may be stated, as a general rule, that a witness 
 who is lying will not look you fully in the fiice, Avith a steady 
 gaze ; his eye quivers and turns away ; is cast down, and wanders 
 restlessly about. On the contrary, the witness who is speaking the 
 truth, or Mhat he believes to be the truth, will meet your gazo, how- 
 ever timidly ; will look at you when he answers your questions, and
 
 340 APPEJfDIX. 
 
 will let you look into his eyes. There may be exceptions to this rule, 
 but it rarely fails to inform the Advocate whether the person subject 
 to cross-examination is the witness of truth or of folsehood. 
 
 Thus assured, and pursuing your plan of bold attack, there needs 
 to be no circumlocution, no gradual approaching, as in the other 
 method of surprisal, but go straightway to your object, plunging the 
 witness at once into the story you are questioning. Make him repeat 
 it slowly. It will often be that, under the discomposure of your 
 detection of his purpose, he will directly vary from his former state- 
 ment, and if he does so in material points, which are sufficient to dis- 
 credit him, it will usually be the more prudent course to leave him 
 there, self-condemned, instead of continuing the examination, lest you 
 should give him time to rally, and perhaps contrive a story that will 
 explain away his contradictions. If, however, his lesson is well learned, 
 and he repeats the narrative very nearly as at first, you will have to try 
 another course, which will tax your ingenuity and patience. 
 
 Procure from him in detail, and let his words be taken down, the 
 particulars of his story, and then question him as to associated cir- 
 cumstances as to which he is not likely to have prepared himself, and 
 to answer which, therefore, he must draw on his invention at the in- 
 stant. Some ingenuity will be necessary on your part, after surveying 
 his story, to select the wealfest points for your experiment, and to 
 suggest the circumstances least likely to have been pre-arranged. Hav- 
 ing obtained his answers, permit him no pause, but instantly take him 
 to a new subject ; lead his thoughts away altogether from the mat- 
 ter of your main topic. The more irrelevant your queries the better ; 
 your purpose is to occupy his mind with a new train of ideas. Con- 
 duct him to diiferent places and persons and events. Then, as sud- 
 denly, in the very midst of your questionings, when his mind is the 
 most remote from the subject, when he is expecting the next question 
 to relate to the one that has gone before, suddenly return to your 
 first point, not repeating the main story, for this, having been well 
 learned, will probably be repeated as before, but to those circum- 
 stances associated with it upon which you had surprised him into 
 invention on the moment. It is probable that, after such a diversion 
 of his thoughts, he will have forgotten what his answers were, what 
 were the fictions with which he had filled up the accessories of his 
 false narrative, and having no leisure allowed to him for reflection, he 
 will now give a different account of them, and so betray his falsehood. 
 Of all the arts of cross-examination, there is none so efficient as this 
 for the detection of a lie. 
 
 Another excellent plan is to take the witness through his story,
 
 EXAMINATIO:jir OF A WITNESS. 341 
 
 but not in the same order of incidents in which he told it. Dislocate 
 his train of ideas, and you put him out ; you disturb liis memory of 
 his lesson. Thus begin your cross-examination at the middle of his 
 narrative, then jump to one end, then to some other part the most 
 remote from the subject of the previous question. If he is telling the 
 truth, this will not confuse him, because he speaks from impressions 
 upon his mind; but if he is lying, he Avill be perplexed and will be- 
 tray himself, for, speaking from the memory only, which acts by associ- 
 ation, you disturb that association, and his invention breaks down. 
 
 When you are satisfied that the witness is drawing upon his in- 
 vention, there is no more certain process of detection than a rapid fire 
 of questions. Give him no pause between them ; no breathing place, 
 nor point to rally. Few minds are sufficiently self-possessed as, under 
 such a catechising, to maintain a consistent story. If there be a pause 
 or a hesitation in the answer, you thereby lay bare the falsehood. 
 The witness is conscious that he dares not to stop to think whether 
 the answer he is about to give will be consistent with the answers 
 already given, and he is betrayed by his contradictions. In this pro- 
 cess it necessary to fix him to time, and place and names. " You heard 
 him say so ?" " When ?" " Where ]" " Who was present f " Name 
 them." "Name one of them." Such astringof questions, following one 
 upon the other as fast as the answer is given, will frequently confound 
 the most audacious. Fit names, and times and places, are not readily 
 invented, or if invented, not readily remembered. Nor does the 
 objection apply to this, that may undoubtedly be urged against some 
 others of the arts by which an Advocate detects falsehood, namely, 
 that it is liable to perplex the innocent, as well as to confound the 
 guilty; for if the tale be true, the answers to such questions present 
 themselves instantaneously to the witness' lips. They are so asso- 
 ciated in his mind with the main fiict to which he is speaking, that it is 
 impossible to recall the one without the other. Collateral circum- 
 stances may be forgotten by the most truthful, or even be unobserved ; 
 but time, place and audience are a part of the transaction, without 
 which, memory of the fact itself can scarcely exist. 
 
 DISCREPANCIES AND DIFFERENCES IN TESTIMONY. 
 
 There is no branch of our subject on which a wider difference of 
 opinion prevails than upon the weight to be given to variations by a 
 witness in the telling of a story — counsel usually dwelling upon them 
 as evidences of falsehood, and judges almost always directing the jury 
 that they are rather evidences of honesty. It may be useful, in this 
 place, to endeavor to reconcile these opposite conclusions of intelligent 
 minds.
 
 342 APPENDIX. 
 
 Memory is association; ideas return linked together as they 
 were originally presented to the mind, and the presence of one sum- 
 mons the other by suggestion. An event is witnessed, and the scene 
 and its accessories are impressed upon the mind. But it is only im- 
 pressed there as the sjjeciator beheld it, and not necessarily as it was 
 in reality. It is necessary to ascertain also the medium through which 
 he saw or heard, before we can properly estimate the value of his 
 memory. When called upon to bear testimony to the fact, if he 
 desires to tell the truth, he will describe, as nearly as he, can in words, 
 so much as he can recall of the circumstances. But it by no means 
 follows, that, every time he recalls the scene, it should present itself 
 to his mind in precisely the same aspect ; and for this reason, the 
 mind does not revive the whole at once, but in succession, and some 
 portions of it will come back more vividly at one time than at an- 
 other, and, by their very viA'idness, recall other associations before unre- 
 membered. Hence, differences in description, and especially new 
 circumstances introduced into a repeated narrative, although each 
 repetition should vary from all the former ones, by the addition of 
 some things, and the omission of others, do not afford the slightest 
 grounds for imputing perjury to a witness. On the contrary, they 
 are rather a presumption in his favor, for an invention that is learned 
 would probably be recalled as it was learned, with the same facts, 
 and almost in the same words. 
 
 But it is otherwise with discrepancies of statement. These cannot 
 exist in a truthful narrrative. Repeated never so frequently, and 
 whatever the variance in detail, the story will always be consistent 
 with itself, and with its former assertions. A positive discrepancy is 
 proof that whatever the cause, whether by design or by the not un- 
 frequent delusion of mistaking imagination for reality, the witness is 
 not speaking the truth, and therefore in such a case, be the motive 
 what it may, an Advocate is justified in pointing out this discrepancy 
 to the jury, and asserting that no faith can be placed in a narrative 
 which thus contains within itself decisive evidence that some portion 
 of it, at least, is not true. By bearing in mind the distinction between 
 variances and discrepa7icies in the repetitions by a witness in the same 
 story, the Judge and the Advocate may avoid those contradictions of 
 assertion as to the worth of certain testimony, which sometimes shake 
 the confidence of juries in arguments really deserving their considera- 
 tion, and which are equally disagreeable to the speaker and to the 
 commentator. Let the Advocate abstain from dwelling upon mere 
 variances, and let the Judge, before he directs the jury the Advocate 
 is wrong in his assertions, as cautiously assure himself that the objec- 
 tions that have been urged are not to discrepancies but to differences.
 
 EXAMINATION OF A WITNESS. 343 
 
 REPETITION OF QUESTIONS. 
 
 "We have already noticed the difficulty sometimes experienced by an 
 Advocate, from the impatience of the Judge at repetitions of the same 
 
 questions. Too often he is met with the remark, " Mr. , you have 
 
 asked that question before," or, " The witness has already told you." 
 This is doubly disagreeable, for besides putting you on ill terms with the 
 Court, it disturbs your plans, and sets the witness on his guard. There 
 is nothing of which the Bench is so little tolerant as of the repetition 
 of the same question, and yet there are few more effective methods of 
 detecting a falsehood. The witness answers. You note his answer. 
 You pass away to some distant part of the story, or some foreign 
 transaction. You then on a sudden return, when his thoughts have 
 been otherwise engaged, when probably he has forgotten his first 
 answer, if it was false, and you obtain a different one, which instantly 
 betrays him. Often we have seen witnesses proof against all other 
 tests fail before this one. When your design is distinctly this, and 
 not merely a vague, purposeless interrogation, proceed respectfully 
 but firmly to show that you have a meaning, and your aims will soon 
 come to be understood and respected by the Court. 
 
 ADJURATION TO WITNESS. 
 
 Do not indulge too much in adjurations tp witnesses to speak the 
 truth, reminding them continually that they are on their oaths, as 
 " Now, Sir, upon your solemn oath ;" " Remember, you are upon 
 oath, and take care what you say," and such like. If frequently in- 
 troduced, they lose their force by repetition. They are very effective 
 when judiciously employed, and uttered with due solemnity of tone 
 and manner, and on fit occasions ; but they should not be put forward 
 on every slight pretense, as well to frighten an honest as to awe a dis- 
 honest witness. Reserve such an appeal for times when it may be used 
 with effect, because with obvious propriety. When you believe that 
 a witness is tampering with his conscience you may sometimes suc- 
 cessfiilly prevent the contemplated perjury by a solemn appeal, and 
 especially if you add to it an exhortation not to be hasty in his answer, 
 but to think before he speaks. The countenance, the tone of the 
 voice, the very attitude, should express the language you utter. You 
 may word it somewhat after this fiishlon : " Remember, you have 
 sworn to tell the truth and the whole truth. Now [put the question*, 
 and add] think before you speak, and answer me truly as you have 
 called God to witness your words." It is one of the faults common 
 to young Advocates, that they make too free an use of this appeal to 
 witnesses, wasting its worth by familiarity.
 
 344 APPENDIX. 
 
 WITNESS NOT REMEMBERING. 
 
 Sometimes a wituess will not answer. He does not choose to 
 know. He will not remember. He is obstinately ignorant. You are 
 aware that he co^lld tell you a great deal, if he pleased, but he has 
 reasons for forgetting. Such a witness will task jour skill and pa- 
 tience. To conquer him you will need as much of patience as of art. 
 The first rule is, to keep your temper; the second, to be as resolute 
 as himself; the third, to discover his weak place : every person Itas 
 some weak point, through which he is accessible. If you betray the 
 slightest want of temper, the witness will have the advantage of you, 
 for you will enlist his pride in defense of his determination. If you 
 show him that you are resolved to have an answer, you will shake 
 him by the influence which a strong will always obtains over a 
 Aveaker one, and by that wonderful power which persistency never 
 fails to exercise. To find out his weaknesses, you must peruse his 
 character by the art which it is assumed you have cultivated — of 
 reading the mind in the face. Then work him accordingly. The 
 surest method is the smiling and jocose. Many a man who will with- 
 stand unmoved a torrent of abuse, or rather become more obstinate 
 under its influence, will surrender to a smiling face and a good-humor- 
 ed joke. If these fail, there yet remains another resource, more 
 difficult of appliance, and demanding the most consummate mastery 
 of the art of cross-examination. You must now approach him by 
 stratagem. Your object is to procure him to admit so much that he 
 cannot help telling you the whole story. The difficulty of this con- 
 sists in the extreme caution required to approach him so that your 
 object shall not be perceptible to him ; so to frame your questions 
 that he shall not see the coimection between the answer he is about 
 to give and the confession you desire to abstract from him. In ap- 
 pearance the questions must be dissevered from the immediate subject 
 sought, but, in flict, they must be associated with it. The approach 
 must be so gradually made as not to excite suspicion ; and perhaps it 
 is well to open with something quite foreign to the subject-matter. 
 Having obtained an answer, you put another query that appears nat- 
 urally to follow from the former, and so on, until you link with the 
 question something that is associated with the matter sought for. It 
 is not easy for a witness to discover the links of such a chain, and he 
 is sure to make some admissions that negative his alleged ignorance 
 of the transaction, and compel him, having yielded so much, to sur- 
 render the whole.
 
 EXAMINATION OF A WITNESS. 345 
 
 UNIMPORTANT DISCREPANCIES. 
 
 Avoid the fault of seizing upon small and unimiiortant discrepan- 
 cies. Experience teaches us that there are few who can tell the same 
 story twice in precisely the same way, hut they will add or omit 
 something, and even vary in the description of minute j^articulars. 
 Indeed, a verbatim recital of the same tale by a witness is usually 
 taken as proof that he is repeating a lesson rather than narrating 
 facts seen. A discrepancy, to be of any value in discrediting a wit- 
 ness, must be in some particular which, according to common ex- 
 perience, a man is not likely to have observed so slightly as that he 
 would give two different descriptions of it. Remember you are 
 dealing with a jury composed of men who cannot understand re- 
 fined distinctions, and have no respect for petty artifices and small 
 triumphs over a witness' self-possession or memory, and that you 
 will not win their verdict unless you show that the witness is not 
 puzzled, but lying. 
 
 WITNESS VOLUNTEERING TESTIMONY. 
 
 When a witness, upon his examination-in-chief, anticipates the 
 counsel, and, instead of waiting to be questioned, or after two or 
 three questions have been put to him, proceeds to tell his whole 
 story, and will go on in spite of every effort made to stop him, ob- 
 serve him closely, to ascertain from his manner whether he is telling 
 the truth, or merely repeating a lesson learned by heart. 
 
 If satisfied that the witness is lying, you may, in your cross-ex- 
 amination, endeavor to discredit him with the jury. Your attack 
 ma}* be most successfully conducted thus : Without previous ques- 
 tioning come at once to the point, and ask him to repeat his account of 
 the transaction. He will do so in almost the self-same words, with 
 the same aspect and manner, and in the same tone, differing palpably 
 from his bearing, and tone, and language, before and after the episode. 
 So certain is this test that, if it fails, you may fairly suppose that 
 whatever other objections may be offered to the testimony, it is not 
 a story repeated by rote. 
 
 EXAMINATION OF PARTY TO SUIT. 
 
 In the examination-in-chief you need observe no difference of con- 
 duct toward a imrty to the suit and any other witness, excepting, 
 perliaps, a little care to rein him in if he should appear to be too 
 eager. But, in cross-examination, you must take into accoimt the 
 fiict that a party has a strong bias of interest which may tempt him 
 to tell a deliberate lie, but \\hich is much more likely to color his 
 23
 
 346 APPENDIX. 
 
 impressions, and produce 5f(/'-deceptiou. So that he may have the 
 most confident belief in the truth of that which he is stating, and 
 yet it may be false in fact. Therefore, where a party to the suit is a 
 ■witness, you should subject him to the most rigid cross-examination, 
 to test his accuracy. The manner of doing this will vary somewhat 
 from that which has been suggested as applicable to other classes of 
 witnesses. 
 
 You may assume the existence of a strong prejudice and bias, but 
 not, therefore, necessarily of an intention to deceive. Great caution 
 will be required in dealing with him. You will have occasion to 
 employ by turns all the tests of truth that have been already de- 
 scribed. 
 
 If the witness is manifestly desirous of speaking the truth, your 
 course is clear. Let him see that such is your opinion of him. En- 
 courage his honest intents by frank acknowledgments. If the exam- 
 ination-in-chief has brought out only a port'on of the facts, it will be 
 your business to supply the deficiencies and elicit the whole story. 
 No ingenuity will be required for this with such a witness. You 
 may advance directly to your object. He will give straightforward 
 answers to your questions, and the more plain they are the more 
 ready and full will be his replies. But such a witness is the most 
 dangerous one to you. The same honesty which enables you to ob- 
 tain a ready answer to your questions, and to elicit every circum- 
 stance connected with the transaction, will carry conviction to the 
 jury also, and his testimony will be received with unhesitating confi- 
 dence. If, therefore, you do not expect to obtain from him some 
 facts which may weaken your opponent's case, it will be more prudent 
 not to cross-examine him at all, or only to put a few questions that have 
 no bearing on the case, merely that you may not appear to have 
 abandoned your cause. Tlie more truthful he is, the more likely it 
 is that every answer you will obtain will make his case the stronger, 
 and damage your case the more. 
 
 But if you see that the witness is biased, you must employ some 
 artifice. Direct questions will not suffice. You must approach him 
 with caution, and indirectl}^. Begin by giving him credit for good 
 intentions. Do not appear to mistrust him. Flatter him even with 
 the assurance that you believe he desires to tell the whole truth. It 
 is a great point to have him pleased with himself, for your purpose 
 is, not only to unveil him to others, but to strip from his own eyes 
 the veil of self-dece'ption, so that his vanity will be enlisted against 
 you. Remind him, by your first question, that he is a party to the 
 cause, and has the strongest interest in the result. Follow it with
 
 EXAMINATION OF A WITNESS. 347 
 
 the assurance of your own confidence, that, in spite of this bias, he 
 desires to tell the whole truth ; but, although he has no intent to de- 
 ceive, the truth is not as he has stated ; misled by his feelings or 
 his interests, he has seen the truth only partially, or distorted, or 
 falsely colored. Your duty is either to elicit the very truth as it was, 
 or to show that, being thus self-deceived, his testimony is not to be 
 relied upon. It is obvious that direct questioning will fail to effect 
 this, for to a mere repetition of the question as to what he saw or 
 heard, the same answer as before will be given. The only means of 
 shaking such testimony is to show it to be inconsistent with other 
 facts, or with those strong probabilities arising out of the usual 
 order of things, the ready perception of which constitutes what is 
 called common sense. It is in eliciting this inconsistency either with 
 the rest of the story, or with the common sense of mankind, of 
 Avhich a jury is generally a pretty fiiir representative, that the skill 
 and ingenuity, aided by the experience of an Advocate, is demanded. 
 
 There is no difference in this respect in the cross-examination of a 
 party, and that of any other interested witness. In both instances 
 the process will be the same ; to approach him by indirect and not by 
 direct questions, and to employ all your efforts to elicit contradic- 
 tions and inconsistencies between the facts positively asserted by the 
 witness and other undoubted facts, or between his testimony and 
 probability and common sense ; from which you may argue that no 
 reliance can be placed upon the evidence, not because the witness has 
 been guilty of perjury, or intends to deceive, but because he has fallen 
 into error. This is an argument which rarely fails to convince, 
 because it is in accordance with experience, and is infinitely more ef- 
 fective than one, which imputes every mistake or misstatement to 
 deliberate falsehood. 
 
 In dealing with a pcwVy to the suit as a witness, you have this ad- 
 vantage, that his testimony will be watched with more strictness, and 
 subjected to a severer scrutiny, than would the evidence of an un- 
 biased witness. 
 
 REPEATING QUESTIONS ASKED ON DIRECT EXAMINATION. 
 
 A Witness having already echoed the questions of his own counsel, 
 and proved his own case, and being well prepared with that, he will 
 of course repeat the lesson he has learned, without alteration or hesi- 
 tation, and the more positively the more you press him ; therefore it 
 is a waste of time and helping him more than yourself to repeat those 
 self-same questions. Yet how often is this done. With a slight 
 alteration of phrase and an attempt to be stern, counsel sometimes
 
 348 APPENDIX. 
 
 persist in repeating the very question which the witness has already 
 distinctly answered. " Do you mean to tell the jury upon your oath 
 that you heard him say sol" "Will you swear you saw Smith 
 strike him? " and such liks; to which the answer is, "I have said so 
 already," " I have sworn it." No other answer could be expected. 
 The witness had come prepared to prove these very facts; and, 
 although false, having once sworn to them he can not do otherwise 
 than restate them, \iowever frequently the question may be repeated. 
 This manner of proceeding is, therefore, worse than worthless, and 
 you will at once direct your efforts to the eliciting oi contradictions — 
 by which we do not mean trifling differences of phrase, or discrepan- 
 cies in small matters, which the witness is not likely to have observed 
 very accurately, and on which, therefore, his story might vary upon 
 every repetition, without any intentional falsehood, but unquestion- 
 able contradictions of statements, so obvious that the witness could 
 not have believed both to be true. If he is lying, no presence of 
 mind or ingenuity will enable him to escape from your pursuit, pro- 
 vided you conduct it with proper skill, giving him no time for reflec- 
 tion, and so engaging his attention that he shall not have leisure to 
 digest his answers, or to see how they square with the story he has 
 already told. 
 
 THE TRUTH ALWAYS CONSISTENT WITH ITSELF. 
 
 The principle of this manner of cross-examination is, that truth is 
 always consistent with itself If the witness is telling the truth, his 
 answers will be insubstantial accordance with the story he has already 
 told, and with any questions that may be put to him. He has no 
 need to consider their bearing, and therefore his reply is as prompt 
 as memory. On the contrary, a witness who is telling a false story 
 can rarely so construct it that it shall be consistent with other asso- 
 ciated circumstances which it is impossible to anticipate. 
 
 Hence it is that you must try the witness Ly questions on matters 
 which only bear indirectly upon the point at issue. As, for instance, 
 if he have sworn that on a certain day a certain person made to him 
 a certain statement. You cannot directly shake the fact thus sworn 
 to, for the witness has but to adhere to his assertion and he will baffle 
 any amount of direct interrogation. But it is not at all likely that he 
 has prepared himself with all the accompanying particulars; therefore 
 you put such questions as these : Where was the conversation 
 held ? At what time of the day % Who was present ? Were they 
 sitting or standing ? How did he come to the place ? Whom did he 
 meet on the way 1 How was he dressed — and the other party 1 Did
 
 EXAMINATION OF A WITNESS. 349 
 
 they speak loud or low ? Did they eat or drink together, and 
 what? Did any body come in while they were talking? How long 
 were they together ? When they parted which way did each take ? 
 Whom did he meet afterward ? At what time did he reach his 
 home ? and so forth, as the particular circumstances of the case may 
 suggest, but always, if possible, preferring facts spoken to by other 
 witnesses, so that you may expose him, not only by his self-contradic- 
 tions, but by the testimony of others. When questions of this kind 
 are rapidly put, they deprive the false witness of opportunity to fit 
 them to his previous story. You should also carefully avoid putting 
 them in any natural sequence of time or place, for that is to suggest 
 to him a story which he will invent quite as rapidly as you can con- 
 struct your questions. Dislocate them as much as possible. Take 
 now one part of the story, then another. Dodge him backward and 
 forward, from one object to the other, so that it shall be impossible 
 for him to be prepared by one question for the next, or that one an- 
 swer shall be the prompter of its successor. The difficulty of doing 
 this well is very great, and therefore, perhaps, it is that it is so rarely 
 seen to be well done ; but it is an accomplishment wanting which the 
 Advocate is not a master of his art. 
 
 FACTS OCCURRING IN PRESENCE OF WITNESSES ONLY. 
 
 There is one kind of testimony which will sometimes baffle the 
 utmost skill. It is the case of a witness who swears positively to 
 some single fact, occurring when no other person was present, or but 
 one now dead or far distant, and whom, therefore, it is impossible to 
 contradict, and equally difficult to involve in selfcontradiction, be- 
 cause all the circumstances may be true, except the one which he has 
 been called to prove. 
 
 In such a case, there remains only an appeal to the jury or judge 
 to look with suspicion upon evidence so easily forged, so impossible 
 to be disproved, and ask that its worth be tried by its intrinsic 
 probabilities, showing, if you can, how improbable it is that such a 
 statement should have been so made, or such a circumstance have oc- 
 curred. 
 
 THE RE-EXAMINATION. 
 
 The object of re-examination is simply to obtain from the witness 
 an explanation of that which he had said in cross-examination. The 
 necessity for giving a witness such an opportunity proceeds from the 
 system of eliciting evidence by means of questions. A witness does
 
 350 APPENDIX. 
 
 not tell his story without interruption, but he is required to answer 
 the questions of counsel, and seldom permitted to do more, or to ac- 
 company his answer with an explanation. A skillful advocate, in his 
 cross-examination, avails himself of this to obtain such answers only 
 as suit his purpose, excluding the explanations that might give them 
 another meaning. It is the duty of the advocate on the other side to 
 note such replies, and on re-examination to give to his witness the 
 opportunity for explanation before denied to him. Hence the neces- 
 sity for keeping an observant eye upon your witness while he is under 
 cross-examination, so that you may discover any desire he may ex- 
 hibit to give an explanation of an answer, or to add something that 
 might modify its apparent import. Be especially careful to note all 
 such upon your brief; also any answers that appear to be damaging, 
 so that, upon re-examination, you may not leave any one unexplained. 
 Experience will teach you by what signs a witness will indicate a de- 
 sire to explain what he has said. If the witness exhibits no desire to 
 explain, it is a dangerous duty to try if he can explain. 
 
 NO NEW MATTER ON RE-EXAMINATION. 
 
 It is a rule that you shall strictly confine yourself, in the re-ex- 
 amination, to matters that have been mooted in the cross-examination. 
 You are 7iot permitted to go into new matter. This is the only re- 
 striction, for, if the subject has been touched upon, however slightly, 
 by your adversary, you are entitled to go fully into it ; and hence it 
 is that a skillful advocate is commonly enabled to make good use of 
 the re-examination, for a cross-examination rarely omits to deal more 
 or less with all the most important portions of a witness' testimony. 
 Avoid seeking explanations where none can be given, for thus you 
 injure your case by recalling the damaging answer and making it 
 doubly impressive by reiteration. 
 
 By a skillful use of the opportunities offered by the cross-examina- 
 tion, you may elicit a repetition of the most important parts of the 
 evidence-in-chief, as a set-oi^' against any unfavorable testimony ex- 
 tracted by the cross-examination. 
 
 RESTORATION OF WITNESSES. 
 
 The business of re-examination is the restoration of your witness 
 to the confidence of himself and of the jury. It frequently occurs 
 that a witness has been terrified and confused by the cross-examina- 
 tion, even to the loss of memory, or, which is even more dangerous, 
 to the producing in him of an aspect and manner that might be mis- 
 taken for conscious guilt. If, therefore, you detect in him any signs
 
 EXAMINATION OF A WITNESS. 351 
 
 of dissatisfaction Avith himself, your first care will be to revive his 
 self-possession. To one sincerely desirous of telling the truth, no 
 position is more painful than that into which he is sometimes be- 
 trayed by seeming contradictions, elicited in the course of an inge- 
 nious cross-examination, producing upon the audience the visible im- 
 pression that he has been lying. In such circumstances it is difficult 
 to be discreet and to preserve the temper unruffled. Let your first 
 care be given to this. The witness burns for an opportunity to ex- 
 plain himself; it will be yours to give it to him, but not in the hasty 
 manner in which his feelings prompt him to deliver it, but in fit rea- 
 son and form, as suits your discreeter purpose. Prevent this natural 
 outburst by questions that will show your sympathy and assure him 
 of your aid to set him right. Soothe his irritation by your words 
 and aspect. When he is restored to himself, take him quietly through 
 his story. Bring out, as far as you can, the strong 2>oints of his testi- 
 mony, which has not been shaken on the cross-examination. When 
 you come to some doubtfid matter, on which the cross-examination 
 has damaged your witness, pass it by unnoticed unless satisfied that 
 the witness can satisfactorily explain it. 
 
 CONCLUSION. 
 
 In conclusion we reiterate the caution, so often repeated, never to 
 put a question to a witness without an aim, nor except you expect to 
 derive some positive advantage from it. Leave a bad matter un- 
 touched, unless you are sure that you can make it better. Where 
 you cannot do good, you are almost certain to do harm. The Advo- 
 cate's art may be shown equally in silence as in speaking.
 
 THEORIES AND FACTS. 
 
 General experiential truths, such as we have just spoken of, are 
 called Theories, and the particular observations from which they are 
 collected, and which they include and explain, are called Facts. Thus 
 Hipparchus' doctrine, that the sun moves in an eccentric about the 
 earth, is his theory of the sun, or the Eccentric theory. The doctrine 
 of Kepler, that the earth moves in an ellipse about the sun, is Kepler's 
 theory of the earth, the Elliptic theory. Newton's doctrine that this 
 elliptical motion of the earth about the sun is produced and governed 
 by the sun's attraction upon the earth, is the Newtonian theory, the 
 Theory of Attraction. Each of these theories was accepted, because 
 it included, connected, and explained the facts; the facts being, in 
 the two former cases, the motions of the sun as observed ; and in 
 the other case, the elliptical motion of the earth as known by Kepler's 
 theory. This antithesis of Theory and Fact is included in what has 
 just been said of inductive propositions. A theory is an inductive 
 proposition, and the facts are the particular observations from which, 
 as I have said, such propositions are inferred by induction. The 
 antithesis of theory and fact implies the fundamental antithesis of 
 thoughts and things ; for a theory (that is, a true theory) may be de- 
 scribed as a thought which is contemplated distinct from things and 
 seen to agree with them ; while a fact is a combination of our 
 thoughts with things in so complete agreement that we do not re- 
 gard them as separate. 
 
 Thus the antithesis of theory and fact involves the antithesis of 
 thoughts and things, but is not identical with it. Facts involve 
 thoughts, for we know facts only by thinking about them. The fact 
 that the year consists of three hundred and sixty-five days, the fact 
 that the month consists of thirty days, cannot be known to us, ex- 
 cept we have the thoughts of time, number, and recurrence. But 
 these thoughts are so familiar, that we have the fact in our mind as a 
 simple thing without attending to the thoughts which it involves. 
 When we mold our thoughts into a theory, we consider the thought 
 as distinct from the facts ; but yet, though distinct, not independent 
 of them ; for it is a true theory only by including and agreeing with
 
 THEORIES AND FACTS. 353 
 
 the facts (WliewelPs History of Scientific Ideas, vol. i. bk. i, part i. 
 ch. i. s. 4). We have spoken of the common opposition of theory and 
 foct as important, and as involving what we have called the fundamental 
 antithesis of philosophy. But after all, it may be asked, is this distinc- 
 tion of theory and fact really tenable? Is it not often difficult to say 
 whether a special part of our knowledge is a fact or a theory ? Is it 
 a fact or a theory that the stars revolve round the pole ? Is it a 
 fact or a theory that the earth is a globe revolving on its axis ? Is it 
 a fact or a theory that the earth travels in an ellipse round the sun? 
 Is it a fact or a theory that the sun attracts the earth ? Is it a fact 
 or a theory that the lodestone attracts the needle ? In all these cases, 
 probably, some persons would answer one way, and some persons 
 the other. There are many persons by whom the doctrine of the 
 globular form of the earth, the doctrine of the earth's elliptical orbit, 
 the doctrine of the sun's attraction on the earth, would be called 
 theories, even if they allowed them to be true theories. But yet, if 
 each of these propositions be true, is it not a fact? And even with 
 regard to the simpler facts, as the motion of the stars round the pole, 
 although this may be a fact to one who has watched and measured 
 the motions of the stars, one who has not done this, and who has only 
 carelessly looked at these stars from time to time, may naturally 
 speak of the circles which the astronomer makes them describe as 
 theories. It would seem, then, that we cannot in such cases expect 
 general assent if we say, This is a fact and not a theory, or This is a 
 theory and not a fact. And the same is true in a vast range of cases. 
 It would seem, therefore, that we cannot rest any reasoning upon 
 this distinction of theory and fact ; and we cannot avoid asking 
 whether there is any real distinction in this antithesis, and if so, what 
 it is. 
 
 To this I reply, the distinction between theory (that is, true the- 
 ory) and fact, is this : that in theory the ideas are considered as dis- 
 tinct from the facts; in facts, though ideas may be involved, they are 
 not, in our apprehension, separated from the sensations. In a fact, 
 the ideas are applied so readily and familiarly, and incorporated with 
 the sensations so entirely, that we do not see them, we see through them. 
 A person who carefully notes the motion of a star all night sees the 
 circle which it describes, as he sees the stars, though the circle is, 
 really, a result of his own ideas. A person who has in his mind the 
 measures of different lines and countries on the earth's surface, and 
 who can put them together into one conception, finds that they can 
 make no figure but a globular one ; to him, the earth's globular form 
 is a fact, as much as the square form of his chamber. A person to
 
 354 APPENDIX. 
 
 ■whom the grounds of believing the earth to travel round the sun are 
 as familiar as the grounds for believing the movements of the mail- 
 coaches in this country looks upon the former event as a fact, just as 
 he looks upon the latter events as facts. And a person who, knowing 
 the fact of the earth's annual motion, refers it distinctly to its me- 
 chanical cause, conceives the sun's attraction as a fact, just as he con- 
 ceives as a fact the action of the wind which turns the sails of a mill. 
 He cannot see the force in either case ; he supplies it out of his own 
 ideas. And thus, a true theory is a fact ; a fact is a familiar theory. 
 That which is a fact under one aspect is a theory under another. The 
 most recondite theories, when firmly established, are facts ; the sim- 
 plest facts involve something of the nature of a theory. Theory and 
 fact correspond, in a certain degree, with ideas and sensations, as to 
 the nature of their opposition. But the facts are facts, so far as the 
 ideas have been combined with the sensations and absorbed in them : 
 the theories are theories, so far as the ideas are kept distinct from the 
 sensations, and so far as it is considered still a question whether those 
 can be made to agree with these. 
 
 We may, as I have said, illustrate this matter by considering man 
 as interpreting the phenomena which he sees. He often interprets 
 without being aware that he does so. Thus, when we see the needle 
 move toward the magnet, Ave assert that the magnet exercises an at- 
 tractive force on the needle. But it is only by an interpretative act 
 of our own minds that we ascribe this motion to attraction. That, in 
 this case, a force is exerted — something of the nature of the pull which 
 we could apply by our own volition — is our interpretation of the 
 phenomena ; although we may be conscious of the act of interpreta- 
 tion, and may then regard the attraction as a fact. 
 
 Nor is it in such cases only that we interpret phenomena in our 
 own way, without being conscious of what we do. We see a tree at 
 a distance, and judge it to be a chestnut or a lime ; yet this is only 
 an inference from the color or form of the mass according to precon- 
 ceived classifications of our own. Our lives are fiill of such uncon- 
 scious interpretations. The farmer recognizes a good or a bad soil ; 
 the artist a picture of a favorite master ; the geologist a rock of a 
 known locality — as we recognize the faces and voices of our friends ; 
 that is, by judgments formed on what we see and hear; but judgments 
 in which we do not analyze the steps, or distinguish the inference 
 from the appearance. And in these mixtures of observation and in- 
 ference, we speak of the judgment thus formed as a fact directly ob- 
 served. 
 
 Even in the case in which our perceptions appear to be most di-
 
 THEORIES AND FACTS. 355 
 
 rect, and least to involve any interpretations of our own, in the sim- 
 ple process of seeing — who does not know how much we, by an act 
 of the mind, add to that which our senses receive ? Does any one 
 fancy that he sees a solid cube 1 It is easy to show that the solidity 
 of the figure, the relative position of its faces and edges to each other, 
 are inferences of the spectator ; no more conveyed to his conviction 
 by the eye alone than they would be if he were looking at a painted 
 representation of a cube. The scene of nature is a picture without 
 depth of substance, no less than the scene of art ; and in the one case 
 as in the other, it is the mind which, by an act of its own, discovers 
 that color and shape denote distance and solidity. Most men are un- 
 conscious of this perpetual habit of reading the language of the exter- 
 nal world, and translating as they read. The draughtsman, indeed, is 
 compelled, for his purposes, to return back in thought from the solid 
 bodies which he has inferred, to the shapes of surface which he really 
 sees. He knows that there is a mask of theory over the whole face 
 of nature, if it be theory to infer more than we see. But other men, 
 unaware of this masquerade, hold it to be a fact that they see cubes 
 and spheres, spacious apartments and winding avenues. And these 
 things are facts to them, because they are unconscious of the mental 
 operation by which they have penetrated nature's disguise. 
 
 And thus, we still have an intelligible distinction of fact and 
 theory, if we consider theory as a conscious, and fact as an uncon- 
 scious, inference, from the phenomena which are presented to our 
 senses. 
 
 But still, theory and fact, inference and perception, reasoning and 
 observation, are antithesis in none of which can we separate the two 
 members by any fixed and definite line. 
 
 Even the simplest terms by which the antithesis is expressed can- 
 not be separated. Ideas and sensations, thoughts and things, subject 
 and object, cannot in any case be applied absolutely and exclusively. 
 Our sensations require ideas to bind them together, namely, ideas of 
 space, time, number, and the like. If not so bound together, sensa- 
 tions do not give us any apprehension of things or objects. All things, 
 all objects, must exist in space and in time — must be one or many. 
 Now space, time, number, are not sensations or things. They are 
 something diflferent from and opposed to sensations and things. We 
 have termed them ideas. It may be said they are relations of things, 
 or of sensations. But granting this form of expression, still a relation 
 is not a thing or a sensation ; and therefore we must still have another 
 and opposite element along with our sensations. And yet, though 
 we have thus these two elements in every act of perception, we can-
 
 356 APPENDIX. 
 
 not designate any portion of the act as absolutely and exclusively be- 
 longing to one of the elements. Perception involves sensation, along 
 with ideas of time, space, and the like ; or, if any one prefers the ex- 
 pression, "we may say, perception involves sensations along with the 
 apprehension of relations. Perception is sensation, along with such 
 ideas as make sensation into an apprehension of things or objects. 
 
 And as a perception of objects implies ideas, as observation im- 
 plies reasoning, so, on the other hand, ideas cannot exist where sen- 
 sation has not been ; reasoning cannot go on when there has not been 
 previous observation. This is evident from the necessary order of 
 development of the human faculties. Sensation necessarily exists 
 from the first moments of our existence, and is constantly at work. 
 Observation begins before we can suppose the existence of any 
 reasoning which is not involved in observation. Hence, at whatever 
 period we consider our ideas, we must consider them as having been 
 already engaged in connecting our sensations, and as having been 
 modified by this employment. By being so employed, our ideas are 
 unfolded and defined ; and such development and definition can- 
 not be separated from the ideas themselves. We cannot conceive 
 space without boundaries or forms ; now forms involve sensations. 
 We cannot conceive time without events which mark the course of 
 time; but events involve sensations. We cannot conceive number, 
 without conceiving things which are numbered ; and things imply 
 sensations. And the forms, things, events, which are thus implied in 
 our ideas, having been the objects of sensation constantly in every 
 part of our life, have modified, unfolded, and fixed our ideas to an 
 extent which we cannot estimate, but which we must suppose to be 
 essential to the processes which at present go on in our minds. We 
 cannot say that objects create ideas ; for to perceive objects we must 
 already have ideas. But we may say that objects and the constant 
 perception of objects have so far modified our ideas that we cannot, 
 even in thought, separate our ideas from the perception of objects. 
 
 We cannot say of any ideas as of the idea of space, or time, or 
 number, that they are absolutely and exclusively ideas. We 
 cannot conceive what space, or time, or number, would be in 
 our minds, if we had never perceived any thing or things in space 
 or time. We cannot conceive ourselves in such a condition 
 as never to have perceived any thing or things in space or 
 time. But, on the other hand, just as little can we conceive ourselves 
 becoming acquainted with space and time or numbers as objects of 
 sensation. We cannot reason without having the operations of our 
 minds affected by previous sensations ; but we cannot conceive reason-
 
 THEORIES AND FACTS. 357 
 
 ing to be merely a series of sensations. In order to be used in 
 reasoning, sensation must become observation ; and, as we have seen, 
 observation already involves reasoning. In order to be connected 
 by our ideas, sensations must be things or objects, and things or 
 objects already include ideas. And thus, none of the terms by which 
 the fundamental antithesis is expressed can be absolutely and exclu- 
 sively applied. 
 
 I will make a remark suggested by the views which have thus 
 been presented. Since, as we have just seen, none of the terms which 
 express the fundamental antithesis can be applied absolutely and ex- 
 clusively, the absolute application of the antithesis in any particular 
 case can never be a conclusive or immovable principle. This re- 
 mark is the more necessary to be borne in mind, as the terms of this 
 antithesis are often used in a vehement and peremptory manner. 
 Thus we are often told that such a thing is a. fact, a fact and not a 
 theory, with all the emphasis which, in speaking or writing, tone or 
 italics or capitals can give. We see from what has been said, that 
 when this is urged, before we can estimate the truth or the value of 
 the assertion, we must ask to whom is it a fact 1 What habits of 
 thought, what previous information, what ideas does it imply, to con- 
 ceive the fact as a fact ? Does not the apprehension of the fact imply 
 assumptions which may with equal justice be called theory, and which 
 are perhaps false theory ? in which case the fact is not a fact. Did 
 not the ancients assert it as a fact, that the earth stood still, and the 
 stars moved 1 and can any fact have stronger apparent evidence to 
 justify persons in asserting it emphatically than this had? 
 
 These remarks are by no means urged in order to show that no 
 fact can be certainly known to be true ; but only to show that no fact 
 can be certainly shown to be a fact merely by calling it a fact, how- 
 ever emphatically. There is by no means any ground of general 
 skepticism with regard to truth, involved in the doctrine of the neces- 
 sary combination of two elements in all our knowledge. On the 
 contrary, ideas are requisite to the essence, and things to the reality, 
 of our knowledge in every case. The proportions of Geometry and 
 and Arithmetic are examples of knowledge respecting our ideas of 
 space and number, with regard to which there is no room for doubt. 
 The doctrines of Astronomy are examples of truths not less certain 
 respecting the facts of the external world. — WhewelVs History of 
 Scientific Ideas, vol. i. bk. i. pt. i. ch. i. s. 10.* 
 
 * For a very interesting article upon " Fact and Fiction," see 20 Blackwood's 
 Magazine, 681.
 
 INDEX. 
 
 A. 
 
 ABERNETHY, Doctor^ anecdote of his powers of memory, 53. 
 ABSENCE, length of, as presumption of death. 110. 
 
 remarkable instances of long continued, lll,n. 
 ACCOMPLICE, credit to be given to testimony of, 157, 163. 
 
 why not to be believed, 163. 
 ADVOCACY, chapter on, 232. 
 ADVOCATE, no one should be his own, 232. 
 
 professional, power of, to acquire and use knowledge, 236. 
 
 knowledge required to possess, 238. 
 
 should not add facts of his own invention, 241. 
 
 imposition committed by production of fabricated 
 almanac, 243. 
 
 may he support a cause he knows to be bad, 244. 
 
 how he represents his client, 244, 
 
 liable to acquire a Swiss conscience, 246. 
 
 Dr. Johnson's opinion upon, 249. 
 
 Lord Eldon's views upon the duties of, 251. 
 
 Coleridge's opinion on the necessity for, 253. 
 
 the greatest, often men of humble birth, 254. 
 
 arguments of, how to be viewed by a jury, 254, 
 256. 
 
 Pliny as, 255, n. 
 
 Macaulay's description of an accomplished, 254, n. 
 
 Lord Eldon's defect as, 255. 
 
 when his success with a jury may be hoped for, 
 256. 
 
 exhibition of emotion by, 257. 
 
 Lord Brougham's remarks upon, 263. 
 
 merges his individuality, 264. 
 
 may advance the opinion of his client, 265.
 
 360 INDEX. 
 
 AD VOC ATE— co« tinned. 
 
 among the impediments in the way of justice, 262. 
 Cicero's distinction between professional and personal 
 
 character of, 265. 
 unreasonable to impute to him the opinions he ex- 
 presses for his client, 266. 
 tendencies of the practice as, 266. 
 ALIBI, evidence of, 43. 
 ANSWERS to questions often very indefinite and loose, 203. 
 
 reasoning, 205, 207. 
 ATHOL, Lord, attack upon by Lord Lovat, 17. 
 ATTESTING WITNESS, proving execution of deed by, 49. 
 Lord Eldon never was, 65. 
 
 B. 
 
 BANKRUPTCY of a witness as affecting his credit, 178. 
 
 at Rome a witness's credit measured by his property, 179. 
 BARRISTER. See Advocate. 
 BROWN, David Paul, anecdote of, 53, n. 
 
 his golden rules for examination of witnesses, 307. 
 BROWN, Jessie, at the siege of Lucknow, 26, n. 
 BUCKINGHAM, Duke of, his assassination, 19. 
 
 CEREMONIES belong to an age of ignorance, 29. 
 CHARACTER, evidence as to, on criminal trials, 95, 
 
 effect of evidence as to, 95. 
 
 nature of evidence as to, 95. 
 
 opinion as to, 95. 
 
 doubtful value of testimony as to, 95, n. 
 
 how to judge of evidence as to, 98, 199. 
 CHILD, evidence of, 151. 
 
 to be received with caution, 151. 
 
 capable of perjury, 152. 
 
 capable of murder, 152. 
 
 inadequate judge of the sanctity of an oath, 152. 
 CIRCUMSTANTIAL EVIDENCE of murder, 104. 
 
 what it is, 274. 
 
 by some thought more satisfactory than direct, 277. 
 
 result of, is but probability, 278. 
 CLEARNESS necessary in addressing the ill-informed, 209. 
 CLOTHING as a means of recognition, 81.
 
 IKDEX. 361 
 
 COLERIDGE, memory of, 41. 
 
 on the necessity for an order of advocates, &c., 253. 
 COMMON REPORT not sufficient to judge by, 127. 
 CONCEALMENT as an evidence of guilt, 104. 
 CONCLUSION from facts, 271. 
 
 hasty, occasion of much misconception, 270. 
 CONFLICT of testimony, 184. 
 
 CONFUSION in demeanor of witness, effect of, 171, 183, 202. 
 CONTEMPLATION an aid to impression, 34. 
 CONTRADICTION may be inadvertent, 150, 183. 
 
 instances of, 191, 196. 
 See DiscREPANcv. 
 CONVICTION. See Self Convictiox. 
 COUNTENANCE. See Face. 
 COW PER, memory of, 41. 
 CRANES OF IBICUS, Fable of, 93. 
 CREDIT OF A WITNESS generally, 145. 
 
 ground of, 145. 
 
 affecting by certain questions on cross-examination, 134, 153. 
 
 how affected by his previous deposition, 155, 160. 
 
 how affected by his being interested in the prosecution, 156. 
 
 how affected by his previous conviction of theft, 156. 
 
 by being an accomplice, 157. 
 
 how affected by his delaying to make his statement, 159. 
 
 how affected by his former conduct, 161. 
 
 how affected by being a spy, 170. 
 
 how affected by bankruptcy, 178; 
 
 how affected by weakness of mind, 179. 
 
 how affected by his demeanor, 182. 
 
 how affected by his evidence differing from that of 
 another witness, 184. 
 CRIME, circnmstances often betray and manifest the motives of, 124. 
 
 common course of, 102, n. 
 
 motive of, 124. 
 CROSS-EXAMINATION, object of, 131. 
 
 leading questions allowed on, 130. 
 
 importance of, 132. 
 
 to show that witness did not see what he said he saw, 134, 
 
 to show that witness did not hear what he said he heard, 
 134. 
 
 to show that witness spoke from hearsay, 134. 
 24
 
 362 INDEX. 
 
 CROSS-EXAMINATION— Contin ued. 
 
 to test the truth of what a witness has said in general terms, 
 
 by making him particularize, 135. 
 to show that a witness who has identified a thing was mis- 
 taken, 135. 
 to procure explanation of words used by a witness, 135. 
 to show that the conduct of a prisoner was consistent with 
 
 his innocence, &c., 135. 
 to cause witness to repeat what he has said in favor of the 
 
 prisoner, 136. 
 to show a contradiction in the testimony of the witness, 
 
 137. 
 legitimate end of, sometimes perverted, 137. 
 what is necessary to render it effective, 137. 
 makes witness a w'itness for examiner, 138. 
 often corroborates and strengthens previous testimony, 138. 
 Lord Eldon's remark as to, 138. 
 Daniel O'Connell's caution in resorting to, 138. 
 instance of its strengthening the direct testimony on 
 
 O'Coigly's trial, 139. 
 the like on Home Took's trial, 140. 
 the like on Earl Thanet's trial, 140. 
 often gives rise to a re-examination, 141. 
 affecting credit of witness by certain questions on, 153. 
 embarrassing to an honest witness, 216. 
 Chief Justice Bushe's dread of, 218. 
 object of, often only to confuse a witness, 219. 
 trying to the temper of a witness, 219. 
 Trench's description of, 219, n. 
 Curran's mode of, 230. 
 
 See Examination, Ee-examinatiox. 
 CROWD, perception in a, 23. 
 CURRAN, his mode of cross-examining a witness, 230. 
 
 D. 
 
 DEATH, presumption of, 110. 
 
 why indulged, 111. 
 
 probability of, 110. 
 
 probability of, by shipwreck, 115. 
 
 foreshadowed in the face, 102. 
 DEMEANOR of witness as affecting his credit, 182. 
 DEPOSITION of witness, 160.
 
 INDEX. 363 
 
 DISCREPANCY of witness as affecting his credit, 184, 
 
 on the trial of Lord Strafford, 185, 
 
 of witnesses as to what was said, 191, 192, et seq. 
 DISGUISE, effect of, upon recognition, 73. 
 DISTANCE in sjyace, effect of, upon perception, 24. 
 
 to prove alibi, 43. 
 
 in time. See Time. 
 
 of place, 89. 
 
 certain occupations qualify to judge of, 90. 
 what occasions difference in idea of, 90. 
 Irish peasants' notion of, 91. 
 DORSET, Earl of, and the students, anecdote of, 27. 
 DOUBT, meaning of the term, 296. 
 
 prisoner entitled to benefit of, 296. 
 DRESS as an aid to personal identity, 81. 
 
 sometimes more noticed than the person, 81. 
 
 E. 
 
 EAR, putting close to the ground, the better to hear, 22. 
 capacity of, to hear many sounds at one time, 23. 
 eye perceives quicker than, 27. 
 ELDON, Lord, observation on interrogating a prosecutor, 138. 
 defect of, as an advocate, 255. 
 his practice in writing opinions, 269. 
 ELOQUENCE, evidence is, 259. 
 takes either side, 258. 
 
 may be addressed to the understanding or the feelings, 254. 
 EVIDENCE of fliith, 145. 
 of a child, 151. 
 
 of a child to be received with caution, 151. 
 consists of matter of fact, 271. 
 See Testimony. 
 EXAGGERATION, tendency to, 209. 
 EXAMINATION of a witness, basis of, 128. 
 
 modes of, 126, 128. 
 leading questions on, 128. 
 remarks upon, 208. 
 of witness should be according to the order of time of which 
 
 they are to speak, 143. 
 of witnesses usually preceded by a statement of counsel, 144. 
 difficulties of, 202. 
 
 Lord Bacon's opinion on different modes of, 220. 
 calmness and temper required in, 232.
 
 364 INDEX. 
 
 EXAMINATION— Con^mwef/. 
 
 golden rules for, 307. 
 
 practical advice for conducting, SI 3. 
 
 See Cross-Examixation, Re-Examination. 
 EXPERIENCE closely connected with probability, 109. 
 EXPERTS, credit to be given to, 272. 
 EYE, the shining of, may betray a concealed person, 20. 
 
 capacity for seeing many objects at once, 22. 
 
 perceives quicker than the ear, 27. 
 
 memory has more command over sights than somids, 29. 
 
 EACE, recognition of a person is usually by, 69, 72. 
 
 changes in the, 69. 
 
 its resemblance differently judged of by different persons, 75. 
 
 inconvenience of resemblance in, 76. 
 
 greater diversity of intellectual character than of counten- 
 ance, 77. 
 
 resemblance of face does not infer resemblance of character, 
 77. 
 
 power of some persons to control, 101. 
 
 sometimes raises suspicion of crime, 102. 
 
 sorrow in, foreshadows death, 102. 
 FACT a subject of jurisprudence, 9. 
 
 rights and wrongs proceed from, 9. 
 
 the subject of testimony, 9. 
 
 what is meant by, 9. 
 
 intention is a, 9, 9, n. 
 
 and opinion, distinction between matters of, 10, n. 
 
 questions of, 10, n. 
 
 time and place concomitant circumstances of, 197. 
 
 once in existence is irrevocable, 13. 
 
 not confined to one group, 13. 
 
 relation of, renders it important or otherwise, 13. 
 
 when a subject of inquiry by a jury, 14. 
 
 testimony consists of, 15. 
 
 time passing or past is a, 43. 
 
 narrative of, what it is, 125. 
 
 how obtained from a witness, 126, 127. 
 
 how a witness may narrate, 126. 
 
 belief in truth of, necessary to a conclusion, 147. 
 
 common mistake to suppose a fact has been seen which has 
 not been seen, 149.
 
 INDEX. 365 
 
 FACT — Continued. 
 
 conclusion from, 271. 
 
 purposes of inquiry into, before a jury, 271. 
 
 evidence of witnesses consists of matter of, 271. 
 
 in matter of, credit to be given to testimony, 272. 
 
 to form a story, 274. 
 
 and theories, 352. 
 FAITH, many things known upon the evidence of, 145. 
 FALSEHOOD the subterfuge of guilt, 92. 
 
 usually a motive for, 93. 
 
 and truth, contest between, 307. 
 See Lie, Perjury, Williams. 
 FIERY CROSS, summons by the, 87. 
 FLIGHT a suspicious circumstance, 104. 
 
 G. 
 GARRICK as a witness, 212. 
 
 H. 
 
 HANDWRITING, recognition of, 62. 
 
 how a knowledge of, may be obtained, 63. 
 
 liability of error in recognizing, 63, 63, w., 64. 
 
 varies with circumstances, 64. 
 
 mistakes as to, 64, 65. 
 
 ordinary, differs sometimes from signature, QQ. 
 
 examination of witness as to, examples of, 139. 
 HASTE, effect of, upon perception, 17. 
 
 in coming to conclusion, evil of, 270. 
 HEARING. See Perception. 
 
 HIGHLANDERS, their mode of answering questions, 132. 
 HOUDIN, how he cultivated his power of vision, 22, n. 
 HUMAN NATURE, a knowledge of, enables one to judge of proba- 
 bilities, 120, 124. 
 HUME an accomplished advocate, 254, n. 
 HUNTER, John W., curious error on trial of, 63, n. 
 
 I. 
 
 IBICUS, murder of, how discovered, 93. 
 IDEAS, causes of obscurity in, 31. 
 IDENTITY, instances of mistakes in, 78, 79. 
 
 See Recognition. 
 IGNORANCE, effect of, upon perception, 18. 
 age of, is an age of ceremony, 29.
 
 366 INDEX. 
 
 IMAGINATION sometimes takes the place of memory, 49. 
 IMPEACHMENT of witness, 199. 
 IMPRESSION, capability of the mind to receive, 31. 
 
 what occasions an, 32. 
 
 of altered appearance of a friend, 33. 
 
 of witness as to what he heard, 34, 51. 
 
 words often make no, 34. 
 
 aided by contemplation, 34. 
 
 how long retained, 38. 
 
 occasioned by novelty, 38. 
 
 See Memort, Perception, Recogxition. 
 IMPROBABILITY. See Probability. 
 INFERENCE. See Motive. 
 
 INFLUENCES to conceal truth or overstep its boundaries, 153. 
 INSOLVENCY. See Baxkruptcv. 
 INTENTION is a foct, 9, 9, n. 
 
 inferred from acts, 274. 
 
 a common subject of inquiry by a jury, 275. 
 
 instances of questions of, left to jury, 275. 
 INTERROGATION of a ivitness, basis of, 128. 
 
 See ExAMixATiox, Questions. 
 IRISH PEASANT, his notion of distances, 91. 
 
 his mode of answering, 206. 
 
 account of cross-examination of, 219, n. 
 
 JOHNSON, Judge, error in proof of handwriting on trial of, 64. 
 JUDGE, Cicero's advice to, 298. 
 
 powerless sometimes to prevent wrong, 305. 
 JURISPRUDENCE, facts and laws are subjects of, 9. 
 JL'RY to give verdict according to evidence, 254. 
 
 what ensures advocates success with, 256. 
 
 should distrust eloquence of advocate, 258. 
 
 purpose of an inquiry into facts before, 271. 
 
 often have to be instructed by the witnesses on matters of 
 science and art, 271. 
 
 to rely on testimony of experts, 272. 
 
 to credit testimony, 272. 
 
 how to prepare verdict, 273. 
 
 sometimes have to draw inferences, 274, 290. 
 
 intention is a common subject of inquiry by, 275. 
 
 instances of questions of intention left to, 275.
 
 INDEX, 367 
 
 JURY — Continued. 
 
 may be deceived by false testimony, 282. 
 
 deciding on contradictory evidence, 283. 
 
 Bishop Sanderson's sermon on difficulty of, in coming to a 
 
 right conclusion, 284, 
 unanimity required of, 286. 
 
 differences in powers and qualifications of members of, 287. 
 rule requiring unanimity in, censured, 291. 
 how advised by the court, 293. 
 consolation to, in case of error, 294. 
 to give prisoner benefit of doubt, 296. 
 advice to, 297. 
 
 K. 
 
 KEEPSAKES, effect of, upon the memory, 42. 
 KNOWLEDGE, effect of, upon perception, 18. 
 
 LAMARTINE rejected as a witness, 162, n. 
 LANGUAGE often makes no impression on hearer, 34. 
 
 two different impressions of, 51. 
 
 substitution of, in repetition, 183. 
 
 testifying as to the exact language used, 188. 
 
 difficulty of remembering 190. 
 LAW, fact the source of, 9. 
 
 questions of, 10, n. 
 
 and fact, questions mixed of, 10, n. 
 
 conclusions of, 12 n. 
 
 connected with history, 238. 
 
 ashes of, cover all science, 238. 
 LAW-SUITS always undesirable, 300. 
 
 caution against making, instruments of injustice, 301. 
 LAWYER, knowledge of all science necessary to, 238. 
 
 his flexibility in construction of language, 240. 
 
 Bishop Sanderson's advice to, 303. 
 See Advocate. 
 LEADING QUESTIONS, what are, 128, 131. 
 
 advantages and disadvantages of, 129. 
 
 when not allowed, 130. 
 
 abuse of, on cross-examination, 130. 
 LIE, how to apprehend the full extent of the sinfulness of, 147. 
 
 See Falsehood. 
 LIGHT, effect of, upon perception, 17.
 
 368 lifDEX. 
 
 LOVAT, Lord, attack by, on Lord Athol, 17. 
 LUCKNOW, case of Jessie Brown at, 26, n, ^ 
 
 M. 
 
 MAP. See Model. 
 
 MEANING of language used, testifying as to, 34. 
 
 See Words. 
 MEMORANDUM as a means of recollection, 46. 
 
 to aid memory recommended, 46. 
 
 value of, 48. 
 
 sometimes fails to recall the fact recorded, 48. 
 
 will frequently recall forgotten facts, 49. 
 MEMORY has more command over sights than sounds, 29. 
 
 what is it, 38. 
 
 kept alive by keepsakes, 42. 
 
 decay of, with age, 39, 55, 56. 
 
 persons remarkable for retentive, 52. 
 
 of names, 39. 
 
 of words, 188, 190. 
 
 of Wesley, 39. 
 
 of David Paul Brown, 53, n. 
 
 of Wilberforce, 40. 
 
 of Cowper, 41. 
 
 of Abernethy, 53, n. 
 
 of Chief justice Parsons, 53, n. 
 
 of Coleridge, 41. 
 
 of Savage, 52. 
 
 of the time of an event, 43. 
 
 of the " lower orders," 53. 
 
 recommendation not to trust to, 46. 
 
 treachery of, 47. 
 
 imagination sometimes takes the place of, 49, 58. 
 
 of an entire drama, 53, n. 
 
 some things cannot be erased from, 54, 57. 
 
 effect of the plague at Athens upon, 55. 
 
 effect of intense suffering upon, 55. 
 
 effect of injury to the brain upon, 55. 
 
 of the events of childhood, 57. 
 
 confusion of, 58. 
 
 impressions are constantly wearing out, 125. 
 
 aid to by a model or map, 126. 
 
 See Recognition, Recollection.
 
 I2?DEX. 369 
 
 MIND, perception of, may precede that of eye or ear, 20. 
 
 attention of, dependent on circumstances, 31. 
 
 how influenced by self-interest, 124. 
 See Weakness of Mind. 
 MISERY prolongs time, 85. 
 MISTAKE in the use of one word for another, 188 to 191. 
 
 not affecting credit of witness, 194. 
 
 as to what words were used or acts done, or the persons by 
 whom done, 188, et seq. 
 
 some sources of, 208. 
 MISTAKEN IDEiNTITY, instances of, 78, 79. 
 
 See Identity, Recognition, Resemblance. 
 MODEL or Map as an aid to the memory, 126. 
 MOTIVE, perjury seldom committed without, 148. 
 
 of a witness, 152. 
 
 of crime, 124. 
 
 a source of suspicion against a witness, 152. 
 
 to commit perjury, 152. 
 
 difficult to learn the, 165. 
 MURDER, signs of, 103. 
 
 of Apronia by her husband, Plautius Silvanus, 102, n. 
 
 circumstantial evidence of, 104. 
 
 child capable of, 152. 
 
 convictions for, on false testimony, 281. 
 MUSIC, no residing place in the ear, 30. 
 
 N. 
 
 NAMES, memory of, 39. 
 
 NARRATIVE, when considered to be probable, 122. 
 of facts, what it is, 125. 
 
 by a witness, 126. 
 
 often imperfectly or falsely told, 131. 
 should adhere to order of time, 143. 
 of children and servants. Herodotian style of, 151, n. 
 See Relation of Facts. 
 NELSON, Lord., examination of, as a witness, 99. 
 NOTICE, habit of taking, 36. 
 NUMBERS, fallacious estimate of, 209. 
 
 O. 
 
 OATH of a witness on a trial, 146. 
 
 child may be inadequate judge of the sanctity of, 152.
 
 370 INDEX. 
 
 OATR— Continued. 
 
 effect of, upon a person's statement, 200, 214. 
 
 importance of, 214. 
 See Perjury, 
 O'CONNELL, Daniel, his caution in cross-examination of a witness, 
 
 138. 
 OLD AGE, effect of, upon the memory, 39, 55, 56. 
 OPEN QUESTION, what is, 128. 
 
 advantanges and disadvantages of, 129. 
 
 effect of, upon an honest witness, 130. 
 OPINION and fact, distinction between matters of, 10, n. 
 
 of one witness of another, 199. 
 
 of witness, 272. 
 
 of others, adoption of, 272. 
 
 PARRICIDE, Cicero's defense of Roscius for, 123. 
 
 PARSONS, Ch. J"., his powers of memory, 53, n. 
 
 PERCEPTION dependent on relative situation to object viewed, 16. 
 
 effect of sunlight upon, 16. 
 
 smoke, snow, or rain upon, 16. 
 haste upon, 17. 
 
 being only partially awake upon, 17. 
 light upon, 17. 
 
 dependent on previous knowledge or ignorance, 18. 
 
 suddenness of, 19. 
 
 of the eye, 20. 
 
 of the mind may precede that of the eye or ear, 20. 
 
 of sound by lying on the ground, 22. 
 
 by the eye of many objects at one time, 22. 
 
 by the ear of many objects at one time, 23. 
 
 of many things, but nothing distinctly, 23. 
 
 in a crowd, 23. 
 
 in a riot or tumult, 24. 
 
 effect of distance upon, 24. 
 
 dependent on internal recognition, 25. 
 
 by the eye quicker than the ear, 27. 
 See Impression. 
 PERJURY seldom without motive, 148. 
 
 many would prefer death to, 148. 
 
 child capable of committing, 152. 
 
 motives to commit, 152. 
 
 what facts will furnish reason to suspect, 161.
 
 INDEX. 371 
 
 PERJURY— Continued. 
 
 pickpocket may not be prepared to commit, 162. 
 
 convictions obtained by, 281. 
 See Oath. 
 PERSON, Recognition of, 68. 
 
 See Identity. 
 PERSONAL IDENTITY. See Identity, Recognition, Resem- 
 blance. 
 PLACE, memory of, 41. 
 
 distance of, 24, 43, 89. 
 See Alibi, Distance. 
 PLINY, how he advocated a cause, 255, m. 
 POLICE OFFICERS, remarks upon evidence given by, 160. 
 PRESUMPTION of Death from length of absence, 110. 
 
 of survivorship, 119, 122. 
 See Probability. 
 PREVIOUS KNOWLEDGE or ignorance, effect of upon percep- 
 tion, 18. 
 PROBABILITY, length of time often important as a measure of, 85. 
 
 Locke's definition of, 107. 
 
 how judged of, 107, n, 119. 
 
 the only result of circumstantial evidence, 278. 
 
 experience closely connected with, 109. 
 
 what is probable to one is not probable to another, 120. 
 
 of coming weather, 110. 
 
 some persons confound the possible with the probable, 121. 
 
 of death, 110. 
 
 of death by shipwreck, 115. 
 
 of survivorship, 119, n. 
 PROBABLE, when Cicero considered a narrative to be, 122. 
 
 or improbable, a question of knowledge, 123. 
 PROTAGORAS, boast of power to make a bad cause good, 262. 
 
 Q. 
 
 QUESTIONS of fact, 9, «. 
 of law, 10, n. 
 
 mixed of law and fact, 10, n. 
 
 where many are to be asked some will be omitted, 128. 
 leading, what are, 128, 131. 
 
 advantages and disadvantages of, 129. 
 habit of answering loosely, 203. 
 
 See Leading Questions, Open Questions.
 
 372 INDEX. 
 
 RAIN, effect of, upon perception, 16. 
 REASONABLE DOUBT, what amounts to, 296. 
 REASONING, affecting by self-interest, 124. 
 
 answer by witness, 205, 207. 
 RECOGNITION, 60. 
 
 of a thing, 60. 
 
 from its being rare, 60. 
 from points of difference, 61. 
 by workmen of their tools, 61. 
 of handwriting, 62. 
 
 liability to error in recognizing handwriting, 63, 63, n. 
 of a person, 68. 
 
 how assisted, 68. 
 is chiefly by the face, 69, 72. 
 by his conversation, 71. 
 by his knowledge of some fact, 72. 
 causes which prevent, 72. 
 by his voice, gait or carriage, 73. 
 aided by the dress, 81. 
 of the murderer Rush, 74. 
 instance of, after many years' absence, 74. 
 See Identity — Resemblance. 
 RECOLLECTION, causes of, 42, 46. 
 
 memorandum a means of, 146. 
 See Memory. 
 RE-EXAMINATION, cross-examination often gives rise to, 141. 
 object and effect of, 141. 
 is often a cross-examination, 142. 
 often confirms cross-examination, 142. 
 
 confirming cross-examination, instance of, on the trial of 
 Hardy, 142. 
 RELATION of fads. See Narrative. 
 difficulty in, 202. 
 penalty of making false, 282. 
 REPORT. See Common Report. 
 
 RESEMBLANCE of one person to another, inconvenience of, 76, 77, 
 mental, 120. 
 
 See Identity, Recognition. 
 RIOT, perception in a, 24.
 
 INDEX. 373 
 
 s. 
 
 SAILORS, superstition of, 181. 
 SAVAGE, his powers of memory, 52. 
 SELF-CONVICTION, how it often happens, 93. 
 of the murderers of Ibicus, 93. 
 by deed, 94. 
 of Hugh Macdonald, 94. 
 in the case of Eugene Aram, 94. 
 SERVANTS, tendency of, to exaggerate, 151. 
 SIGHT. See Perception. 
 SIGNATURE, difficulty of recognizing, 64. 
 
 how the value of testimony as to, determined, 67. 
 See Handwriting. 
 SILENCE sometimes more useful than speech, 235. 
 SILVANUS, charged with killing his wife, 102, n. 
 SMOKE, effect of, upon perception, 16. 
 SNOW, effect of, upon perception, 18. 
 SOUND, perception of, 25. 
 
 night air favorable to transmission of, 25. 
 hearing only part of, 27. 
 
 memory has more command over sights than, 29. 
 one may drown another, 36. 
 effect of, 40. 
 SPEED, often important to know rate of, 85. 
 few able to judge of, 85, 86. 
 circumstances which affect, 87. 
 SPY, when mere character of being, not to prejudice as a witness, 170. 
 naturally disliked, 171. 
 testimony of, how tested, 171. 
 Lord Chief Justice Eyre's remarks upon the testimony of, 
 
 172. 
 Lord Ellenborough's remarks upon the testimony of, 175. 
 magistrates may employ, 175. 
 Cicero emplo)^ed spies upon Catalino, 175. 
 the mercenary spy to be feared, 176. 
 Tacitus makes mention of, 176. 
 Addison's description of, 177. 
 Evelyn's remarks upon the testimony of, 177. 
 a conscientious man, such as was Defoe, may be, 177, n. 
 witness not to be addressed as, 220. 
 STANHOPE, Lady Hester, remarkable power of vision of, 30.
 
 374 INDEX. 
 
 SUNLIGHT, effect upon perception, 16. 
 SUPERSTITION of sailors notorious, 181. 
 
 instances of, 181, n. 
 SURVIVORSHIP, presumption as to, 119, 122. 
 SUSPICION, Dr. Johnson's definition of, 101. 
 
 Jerome's definition of, 101. 
 
 different kinds of, 101. 
 
 observation of Lord Bacon upon, 101. 
 
 the attendant of crime, 102. 
 
 of murder, 102. 
 
 what facts will create, 103. 
 
 capable of explanation, 105. 
 
 caution against rash, 106. 
 
 TEARS indication of soft heart, 258. 
 
 advocate shedding, 258. 
 
 nothing dries sooner than, 258, n. 
 TEMPTATION, what affects the force of, 99. 
 TESTIMONY, fact the only subject of, 9. 
 
 of witness consists of facts, 15. 
 
 instance of fallibility of, 59. 
 
 to handwriting, liability to error in, 63, 63, n. 
 
 to signature, 66, 67. 
 
 as to length of time, uncertainty of, 84. 
 
 as to speed, 85. 
 
 compared with argument, 256. 
 
 often given in scientific language, 271. 
 
 of experts to be relied upon, 272. 
 
 as to facts, but not as to opinions, to be relied on, 273. 
 
 indirect, 276. 
 
 false, 280. 
 
 contradictory, 283. 
 See Evidence. 
 THEORIES and facts, 352. 
 THINGS, recognition of, 60. 
 TIME, passing or past, is a fiict, 43. 
 
 a sure innovator on the countenance, 70. 
 
 of hearing, seeing or doing any act, usually unnoticed, 45. 
 
 examination of a witness as to the time of a marriage, 45. 
 
 length of, 83. 
 
 uncertainty of testimony as to, 84.
 
 INDEX. 375 
 
 TIME— Continued. 
 
 great mental trouble or anxiety may make past time to 
 appear longer than it really was, 84. 
 
 length of, important as a measure of possibility or proba- 
 bility of an event, 85. 
 TRIAL ; on every trial there is a story of facts, 126. 
 
 by jury, Sir James Mackintosh's eulogy upon, 301. 
 TRUTH, difficulty in arriving at, 59. 
 
 defined, 146. 
 
 moral, defined, 146. 
 
 of facts, belief in, necessary to a conclusion, 147. 
 
 and falsehood, contest between, 306. 
 
 proper inference that witness meant to speak, 147. 
 
 when proper to doubt, 149. 
 
 men said to have no curiosity to know, 266. 
 
 V. 
 
 VERDICT, effect of, 299. 
 
 See Jury. 
 VISION, remarkable powers' of, 30. 
 
 improvement of powers of, 22, n. 
 
 W. 
 
 WEAKNESS of Mind as affecting the credit of a witness, 179. 
 WEATHER, the coming may be often rightly predicted, 110. 
 WESLEY, John, his memory, 39. 
 
 his rebuke of Beau Nash as to reliance on common report, 
 
 127. 
 WHITBREAD, his reply on Lord Melville's trial, 42. 
 WILBERFORCE, memory of, 40. 
 
 WILLIAMS, Dr., his powers of making false relations of things, 282. 
 WITNESS may be asked what was his intention, 9, n. 
 
 testimony of, consists of fiicts, 15. 
 
 askins: whether he must have seen a thin" done, 19. 
 
 interrogated as to what he heard, 34. 
 
 to prove execution of deed, 49. 
 
 tendency of, to turn inference into recollection, 50, 52. 
 
 casual circumstances will sometimes awaken recollection in 
 mind of, 50. 
 
 may have two impressions of what he has heard or read, 
 51. 
 
 to handwriting, liability to error, 63, 63, n. 
 to distance of place, 90.
 
 376 INDEX. 
 
 WITNESS— Co}iti7iued. 
 
 to character, 95. 
 
 narrative of facts by, 126, 127. 
 
 objections to allowing him to tell his own story his own 
 way, 126. 
 
 examining of, by questioniug, 127. 
 
 inconvenience of examining by questions, 128. 
 
 basis of interrogation of, 128. 
 
 two modes of questioning of, 128. 
 
 leading questions and open questions to, 128. 
 
 advantages and disadvantages of different modes of examin- 
 ing, 129. 
 
 effect of leading questions to, 129. 
 
 effect of open questions upon, 130. 
 
 often tells his story imperfectly or falsely, 131. 
 
 importance of cross-examination of, 132, 
 
 re-examination of, 141. 
 
 order of examination of, 143. 
 
 examination of, usually preceded by a statement of counsel, 
 144. 
 
 of the credit of, generally, 145. 
 
 a child as, 151. 
 
 oath of on a trial, 146. 
 
 may comply with his oath and yet mis-state facts, 146. 
 
 proper inference that he meant to speak the truth, 147. 
 
 when suspected of testifying falsely, how to view his testi- 
 mony, 148. 
 
 when proper to doubt truth of, 149. 
 
 often impairs his credit by a contradiction in terms, 150. 
 
 self-contradiction by, 150, 183. 
 
 motives of, 152. 
 
 credit of, how affected by certain questions in ci'oss-examina- 
 tion, 153. 
 
 the former conduct of, 161. 
 
 an accomplice, 163. 
 
 a spy, 170. 
 
 bankruptcy of, 178. 
 
 ■weakness of mind of, 179. 
 
 deameanor of, 182. 
 
 giving evidence differing from that of another witness, 145, 
 184. 
 
 opinion one of another, 199.
 
 INDEX. 377 
 
 WITNESS— Continued. 
 
 under examination, 202. 
 
 difficulties experienced by, 202. 
 
 effect of novelty of situation upon, 212. 
 
 peculiarities of, 212, 215. 
 
 not to be addressed in terms implying discredit, 221. 
 
 unwilling to answer, 226. 
 
 surprised into an answer, 227. 
 
 that will not recollect, 230. 
 
 Bishop Sanderson's admonition to, 302. 
 
 golden rules for examination of, 307. 
 
 practical advice for conducting examination of, 313. 
 
 See Cross-Examination, Examination of Witnesses, 
 Evidence, Testimony. 
 WORDS often make no impression, 34. 
 
 two impressions of, 51. 
 
 substitution of, 183. 
 
 testifying as to the exact, 188. 
 
 speaking one for another, 188. 
 
 difficulty of remembering acknowledged by an order of the 
 House of Commons, 190. 
 WORLD, what is meant by knowledge of, 294. 
 WRITING. See Handwriting. 
 
 X. 
 XENOPHON, retreat of, 20. 
 
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 part of the Union. 
 
 Abbotts' Forms of Practice and Pleading. 
 
 A FULL COLLECTION OF FORMS OP PRACTICE AND PLEADING EN" 
 ACTIONS, whether for legal or equitable relief, and in special proceedings. 
 PreiKirecL with reference to the Code of Procedure, and to the New Practice as 
 existing in the States of New Torlc, Ohio, Indiana, Kentnchy, loxca, Oregon, Min- 
 nesota, Wisconsin, Missouri, Alabama, California, North Carolina, South Carolina, 
 Florida, Arkansas, and other States. 2 vols. Price $12.00. 
 
 t^S~ The object of this work is to present a well-selected and ample collection of forms of Practice 
 and Pleading, with especial reference to the changes in practice introduced in many of the States by the 
 Code of Procedure or Practice Acts. 
 
 ^^ These forms have met with the general approval of the Legal Profession, and, from the 
 unusual success attending the work, the publishers believe it to be the best of its kind now in use. 
 The Fourth Edition is now ready. 
 
 Abbotts' Clerks' and Conveyancers' Assistant. 
 
 A COLLECTION OF FORMS OF CONVEYANCING, Contracts, and Legal Pro- 
 ceedings. For the use of the Legal Profession, Business Men, and Public 
 Officers in the United States. With copious Instructions, Explanations, and 
 Authorities. By Abbott Bros. In one large 8vo. vol. Price $6.00. 
 
 j^~ This work is the Latest, Fullest, and Best. It is divided into ninetv-five chapters, and con- 
 tains OVER 1,300 FORMS, covering nearly every subject connected with Conveyancing, Contracts, 
 andjLegal Proceedings, with copious instructions, explanations, and authorities. 
 
 The work is adapted to the wants of the Legal Profession, Public Officers, and of business men in 
 general. The forms are sufficiently clear to enable one to use them who has not a knowledge of 
 technical law. 
 
 The work is intended for circulation in every part of the country. Care has been taken, upon all 
 subjects of general importance, to explain the difference between the laws of diflFerent States, and 
 where necessary, to present forms appropriate to each. ' 
 
 Abbotts' Digest of tlie Law of Corporations. 
 
 This work is a GENERAL DIGEST OF THE LAW OF CORPORATIONS. It 
 presents the American adjudications of general interest, upon public and private 
 corporations of every kind, with a full selection of English cases. In one large, 
 extra size royal 8vo. volume of over one thousand pages. Best law book stvle. 
 Price $10.00. 
 
 ^^ The work embraces all branches of the law of corporations. Under the titles of the various 
 specific cornorations, such as Banks, Insurance, Manufacturing and Mining Companies, Municipal 
 (.orporatioiFs, Railroad Companies, Religious Corporations, Savings Banks, Telegraph and Turnpike 
 Lompantes, i^c, the law more particularly applicable to them each is presented.
 
 2 Baker, Voorhis ^ Co.'s Law Pitblications. 
 Abbotts' Practice Reports. 
 
 KEPORTS OF PRACTICE CASES DETERJMINED in the Courts of the State of 
 New York, with a Digest of all Points of Practice embraced in the Standard 
 New York Reports and Acts of the Legislature, published during the period 
 covered by each volume. By A:bbott Bros., Counsellors at Law. 19 vols. 
 $5 per vol. Vols. 1 to 6, New Series, |5 each. 
 
 p^°° By Practice Cases the editors do not mean cases decided under the Code exclusively. Cases 
 illustrative of Criminal Practice, of the mode of conducting Special Proceedings, of the Rules of 
 Evidence, of Procedure in the various Special Tribunals, are, to a considerable extent, embraced in the 
 plan. 
 
 In a word, the series embraces decisions which instruct the professional man how to do that which 
 he is liable, professionally, to be called upon to do. 
 
 <jp^" New Series supplied in Nos. (sent by mail), at $4 per vol. in advance. 
 
 Bump's Law and Practice of Bankruptcy. 
 
 THE BANKRUPT LAW, WITH ALL THE AMENDIMENTS, With Notes op 
 ALL THE DECISIONS TO OCTOBER, 1869, arranged under each 
 Section. Also, Judge Blatchford's Rules, as Amended. Everything connected 
 with the Bankrupt Law is given. By Orlando F. Bump, Esq., Register, Balti- 
 more. 1 vol. 8vo. Price $3.50. 
 
 t^W° The Notes have been compiled and arranged by a Register in BanTcruptcy. They were 
 collected in the course of his actual practice, and it is confidently believed that they will stand the test 
 of practice ; for it was in practice that they had their origin, and for practice that they were pirepared. 
 They have, moreover, this advantage, that they have been collected by one whose official position has 
 made the Bankrupt Law a specialty with him. 
 
 Bump's U. S. Reyenue Laws. 
 
 THE ANNOTATED UNITED STATES INTERNAL REVENLT: LAWS. Decis- 
 ions of the Cotxrts, Rulings, &c. By Orlando F. Bump, Esq. In press. 
 
 Barnewall & Alclerson's Reports. 
 
 REPORT OF CASES argued and determined ia the Court of King's Bench, from 
 Michaelmas Term, 58 Geo. III., to Trinity Term, 60 Geo. III. The two vols, are 
 bound in one ($6), and printed to correspond with the English Common Law 
 Reports, which contain a reprint of the 3d, 4th, and 5th vols. only. These 
 volumes are therefore rendered necessary to the purchasers of the English 
 Common Law Reports to make their series complete. (3 vols, in 1, $6.) In 
 2 vols., $7.00. 
 
 Benedict's U. S. District Court Reports. 
 
 REPORTS OF CASES before the District Courts of the United States in the 
 Second Circuit. These Reports embrace Decisions under the Internal Revenue 
 Act, the BanTcrupt Act, the National Banh Act, as well as Decisions in Admiralty, 
 (fee, &c., decided by Judge Blatchford and Judge Benedict. 
 
 f^"* These Reports, prepared by R. D. Benedict, Esq., of New York, contain full Reports of the 
 cases in the Southern and Eastern Districts of New Yorlc, with selected cases of importance from the 
 other Districts. 
 
 Issued in Nos. of 96 pages at $1.50 each. (Six Nos., with Digest, &c., make a vol.) 
 Two vols.- now complete. Bound. Price $10 per vol. 
 
 Betts' (Judge) Admiralty Decisions. 
 
 REPORTS OF CASES DECIDED in the District Court of the Southern District of 
 New York, from 1827 to 1847. Reported by Blatchford, Howland & Olcott. 
 2 vols. 8vo. Price $11.00.
 
 Baker, Voorhis ^- Co.'s Law Publications. 3 
 
 Bctts' (Judge) Admiralty Practice. 
 
 A SUMMARY OF PRACTICE in the Admiralty Courts of the United States 
 (1838), with the District Court Rules. By the Hon. S. R. Betts, Judge of the 
 District Court of the United States for New York. 1 vol. 8vo. Price $2.50. 
 
 5^" The purpose of this summary is to present to the profession, in concise and familiar form, the 
 principles of practice appertaining to Courts of Admiralty ; and the hope is indulged that it will be 
 found a convenient and useful directory to those unskilled in the proceedings of these courts. 
 
 Blatcliford's U. S. Circuit Court Reports. 
 
 REPORTS OF CASES argued and determined in the Circuit Court of the United 
 States, for the Second Circuit. By Hon. Samuel Blatchford, 6 vols. 8vo. 
 Price $45.00. 
 
 g^^°° The value and range of Judge Blatchford's Reports will be seen from the contents of the 4th 
 volume, which has 129 Cases, embracing all the various subjects which come under the cognizance of 
 the Circuit Courts of the United States, and including opinions by Judges Nelson, Hall, Smalley, 
 IngersoU and Shipman, in the Circuit Courts for the Southern District of New York, the Northern 
 District of New York, V^ermont, and Connecticut. 
 
 There are 42 Cases in Admiralty, 36 Cases in Equity, 28 Cases relating to Patents, 26 Cases of In- 
 junctions, 19 Cases relating to Duties, 14 Cases relating to Collisions, 8 Criminal Cases, 3 Cases relating 
 to Copyrights, 3 Cases relating to Salvage, and numerous other subjects, such as ne exeat, constitutional 
 law, corporations, the law of treason, evidence, jurisdiction, &c. 
 
 BLATCHFORD & HOWLAND'S ADMIRALTY REPORTS. (See Betts.) 
 
 Blatchford's Prize Cases. 
 
 CASES IN PRIZE IN THE CIRCUIT AND DISTRICT COURTS of the United 
 States, for the Southern District of New York, decided by Mr. Justice Nelson 
 and Judge Betts, during the Rebellion, 1861-65. Reported by Samuel Blatch- 
 ford, Esq. 1 large 8vo. vol. Price $7.50. 
 
 |^~ The cases reported in this volume comprise all the Prize Suits (nearly two hundred) decided in 
 these Courts during the Rebellion, with the exception of a few in which decrees were entered without 
 any opinion having been filed by tne Court, i 
 
 j^^ Aside /row the value to the Legal Profession^ this volume is particularly interesting as a 
 contribution to the history of the late Rebellion— giving., as it does., the facts in many Cases which are 
 of special public importance . 
 
 Blydeuburgli on Usury. 
 
 A TREATISE ON THE LAW OF USURY, with the Statutes of the several States 
 relating to Interest now in force ; a Digest of all the American decisions, and an 
 Index to the reported adjudications from the statutes of Henry "VIII. to the 
 year 1844. By J. "W. Blydenburgh, Esq., Counsellor at Law, New York. 
 1 vol. Bvo. Price $3.50. 
 
 Bradford's Jf. Y. Surrogate's Reports. 
 
 REPORTS OF CASES ARGUED AND DETERMINED in the Surrogate's Court 
 of the City and County of New York, from :March, 1849, to December, 1853. 
 By the Hon. Alexander W. Bradford. 4 vols. Price $22.00. 
 
 REDFIELD'S N. Y. SURROGATE'S REPORTS. IN CONTINUATION. Vol. 1. 
 Price $5.50. ^ 
 
 t^°° These are the only Surrogate's Reports published in this country. A leading writer, referring 
 to the author, says : " We are willing to place his decisions by the side of the Englisli and the Conti- 
 nental Jurists as the American Representative of this branch of Jurisprudence. The foundation of the 
 American law relating to estates of deceased persons is laid, and Surrogate Bradford's labors as Pioneer 
 in the field are entitled to the like recognition as those of Kent in general law and Story in commer- 
 cial law." 
 
 Browne's Ci\il and Aduiiralty Law. 
 
 A COMPENDIOUS VIEW of the Civil Law and the Law of Admiralty. By 
 Arthur Browne, LL. D. 2 vols. 8vo. Scarce. Price $12.00. 
 
 The first American from the second London edition, with large additions (.1840.) 
 1^^ Some consider this work the ablest on the subjects discussed.
 
 Jf Baker, Yoorhis ^' Co.'s Law Publications. 
 
 Burriirs Xew Law Dictionary and Glossary. 
 
 A IsTEW LAW DICTIONARY AXD GLOSSARY : Containing full definitions of 
 the princiijal tenns of tlie Common and Civil Law, together with translations 
 and explanations of the various technical phrases in different languages occur- 
 ing in the ancient and modem reports and standard treatises ; embracing also 
 all the principal common and civil law maxims. Compiled on the basis of 
 Spelman's Glossary, and adapted to the jurisprudence of the United States ; 
 with copious illustrations, critical and historical. By Alexa^t)er M. Buerill, 
 Esq., Counsellor at Law. Second Edition. Revised and Enlarged. 3 vols, 
 royal octavo. Price $10. 
 
 ^^°° This work, as its title indicates, and as the author explains in his advertisement, combines the 
 characteristic features of a defining dictionary, with those of a Glossary: being, in both respects, 
 devoted exclusively to the exposition of the language 0/ the latu. Asa dictionary it embraces the defini- 
 tion of law terms, including not only technical terviSy properly so called, but also such ordinary luords 
 as have been used in technical senses, or made the subjects of judicial or legislative construction or 
 definition. The latter branch is an entirely new feature, and will prove as valuable as it is novel. 
 
 Bnrrill on Tolnntary Assignments. 
 
 A TREATISE OX YOLLTsTARY ASSIGNMENTS for the benefit of Creditors, in 
 which is incorporated the statutory provisions and decisions of the courts in the 
 several States ; also, the law governing assignees as to their rights, duties, and 
 liabilities. To which is added an Appendix of Forms. Second edition, en- 
 larged and greatly improved. By Axexa>der M. Burrill, Esq., CovmseUor at 
 Law. One vol. Price, §7.50. 
 
 E^~ This is the only work on the subject, and fully meets the wants of the Profession. It will be 
 found of much service in cases arising under the Bankrupt Laws, &c. 
 
 Bnrrill on Circnmstantial Eridence. 
 
 A TREATISE OF THE NATURE. Piinciples, and Rules of Circumstantial Evi- 
 dence, especially that of the Presumptive Kind, in Criminal Cases. By Alex- 
 ander M. BuRRiLL, Coimsellor at Law, &c. 1 vol. 8vo., 800 pages. Price, 
 
 $7.50. 
 
 i^P" This is a learned, philosophical, and highly interesting work — not "a inere la^v book," treating 
 of subtle, refined, and technical doctrines of law, but a treatise on the logical rules whereby truth is 
 ascertained and established by combinations of isolated facts, and the presumptions properly arising 
 therefrom. Its perusal will dispel from any mind the fallacy so general (we had almost said universal) 
 with persons not of the legal profession, that " c ircumstaniial e\idence " is at best but feeble, and not 
 to be relied on. 
 
 " Mr. Burrill's previous works have been highly appreciated and commended by the profession ; 
 but we regard the volume under consideration as that on which his reputation as a learned legal writer, 
 and profound legal thinker, will rest. A disciplined, active, and exact mind is visible throughout its 
 pages." — Xew York Observer. 
 
 Cleayeland's Xew York Banking Laws. 
 
 THE BAN'KING SYSTE:M OF THE STATE OF NT:W YORK, with notes and 
 references to adjudged cases, including also an account of the New York Clear- 
 ing House. By Johi^ Cleavelaxd, Counsellor at Law. A valuable work for 
 Banking Institutions and Individual Bankers ; also, for Members of the Legal 
 Profession. "With the National Bank Act. One vol. 8vo. Second edition. 
 Price $5.50. 
 
 ^^ It contains the General Banking Saws o/" 1838. as originally passed, with notes and references 
 to all subsequent amendments, and to the decisions of tne Courts. It embraces a// the acts which have 
 been passed since 1S38 amending the General Banking Law. 
 
 It includes, also, all Statutes of the State relating to Individual Bankers acting under the general 
 law ; also, the provisions of the Revised Statutes to prevent the insolvency of moneyed Corporations ; 
 and proceedings against them in Equity, and in Courts of La^y, &c., &c. 
 
 This volume also contains the Statutes regulating proceedings and suits against Foreign Corpora- 
 tions; and the acts to prevent Usury, and to prevent Corporations interposing the defense of Usurj'. 
 Also, a Digest of all the leading Decisions of the Courts, from 1838 to 1856, relating to the General 
 Banking Law, and the acts amendatory thereof. With an elaborate Index to allthe principal matters. 
 
 Cocke's Comparison of the Common and Ciyil Law 
 
 SYSTEMS AS E^IBRACED IN THE JLT^ISPRUDENCE OF THE UNITED 
 STATES. By Judge Welliam Archer Cocke. 1 vol. 8vo. In press.
 
 Baker, Voorhis ^' Co.'s Law Puhlications. 5 
 
 Code as It Is, without Note or Coiinueiit. 
 
 THE ONLY COMPLETE EDITION OF THE NEW YORK CODE OF PROCED- 
 URE. All the amendments made are carefully blended in the Sections which 
 have been changed. Each Section has an explanatory heading, -ndth the dates 
 of the various Amendments to 1870. 
 
 This Edition also contains THE REVISED RULES OF ALL THE 
 COURTS, and a FULL ANALYTICAL INDEX to the Code and Court 
 Rules. By JonN Towxshend, Esq., Editor of Voorhies' Annotated Code. 
 
 The Hon. JOHN K. PORTER, of the Court of Appeals, says of "The Code As It Is;" "// is a 
 
 pleasure to see it in a vohnite so cotitpact and conveniettt for rcjerence. The Index is an admirable 
 one and worth the fir ice of the book." 
 
 The work is handsomely printed in Brevier type, open, on fine paper. i2mo. about 300 pages, 
 flexible covers. Price $2.00. 
 
 Clicalmers' Colonial Opinions. 
 
 OPINIONS OF EMINENT LAWYERS on various points of English Jurisprudence, 
 chiefly concerning the Colonies, Fisheries, and Commerce of Great Britain. 
 With Sixty Biographical Sketches of the Eminent Law'yers whose opinions are 
 given in the work. By George Ch.ylmers, Esq., F. R. S. 1 large octavo 
 vol. of over 800 pages. Price, $5.50. 
 
 Cooper's Justinian. 
 
 THE INSTITUTES OF JUSTINIAN, Translated, with Notes. By Thomas Cooper, 
 Esq. Third edition, with Additional Notes and References by Andrew S. 
 Garr, Esq., Counsellor at Law% New York. 1 large vol. 8vo. Price $6.50. 
 
 " This edition of Justinian's Institutes is an extremely useful work, containing a very accurate and 
 close translation of the original, together with notes at once learned and practical. We are not aware 
 of any edition of this celebrated work more likely to be useful to English law students, and we can 
 safely recommend it to those aspirants to the bar who are now cultivating the Roman law." — London 
 Legal Examiner- 
 
 Daly's Common Pleas Reports. 
 
 REPORTS OF CASES ARGUED AND DETERMINED in the Court of Common 
 Pleas for the City and County of New York, with Notes and References and 
 Index. 3 vols. By Hon. C. P. Daly, First Judge. Price $13.00. 
 
 (See also Smith's Common Pleas Refiorts.) 
 
 J^g?" The eminent Judge editing these volumes has enjoyed the longest judicial experience, with one 
 exception, of any Judge now on the bench in this State, and the volume has been prepared by him 
 with characteristic fidelity and ability. 
 
 f3^~ The great number 0/ Cases, involving questions oy Commercial and Mercantile Laiv, growing 
 out 0/ the cotnmerce 0/ the business metrofiolis,Vwkich constantly arise in tliis Court, make these Refiorts 
 0/ special value to the Profession throughout the country. 
 
 Devereux's Kinne's Blackstone. 
 
 THE MOST MATERIAL PARTS of Blackstone's Commentaries reduced to Ques- 
 tions and Answers. By John C. Devereux, Counsellor at Lam Upon the 
 plan and in the place of Kinne's Blackstone. Fourth edition. Price $4.00. 
 
 Devereux's Kinne's Kent. 
 
 THE MOST MATERIAL PARTS of Kent's Commentaries reduced to Questions 
 and Answers. By Asa Kinne, Counsellor at Law. Fourth edition, revised 
 and enlarged, bv John C. Devereux, Counsellor at Law. New edition. 
 Price $4.00. 
 
 Dwiglit on Cliaritable Uses. 
 
 ARGUMENT IN THE GREAT ROSE WILL CASE, with cases extracted from 
 the Reports of the Commissioners of Charities in England, and from the Calen- 
 dars in Chancery, with an Appendix containing the Statutes relative to Chari- 
 table Uses. 2 vols. 8vo. Price $20.00.
 
 6 Baker, Voorhis ^^ Co.'s Law Pithlications. 
 
 Digest of the L<aw of Fire Insurance. 
 
 THE WHOLE LAW OF FIRE TXSURAXCE, as Decided by the Courts of Great 
 Britain and the United States, from tbe earliest period to the present time. 
 Arranged under One Himdred and Five Divisions or Headings, elucidating 
 every point of Insurance Law as determined by Judicial Decisions. 1 vol. 8vo. 
 of 723 pages. Price §7.50. 
 
 Messrs. Littleton and Blatchley, the Editors of the first edition of this Digest, did their labor faith- 
 fully. In the preparation of the work, they carefully examined 2,576 volumes of English and American 
 Law Reports, and gave abstracts of 930 Insurance Cases, which they embodied in 1,525 Sections. And 
 they read (so thej- say in their preface) every case cited. 
 
 gagg" The New, Revised, and Enlarged Edition was edited by Stephen G- Clarke, Esq , of the New 
 York Bar, and the publishers believe he has done his work thoroughly. He has carefully examined 
 every volume of Reports published in this country and in Great Britain since 1862, and digested every 
 Insurance Case. The present work contains abstracts of 1,246 Cases, embodied in 2,216 Sections — thus 
 giving 316 Cases and 691 Sections more than were contained in the first edition. 
 
 IS" 2^'o other work giz'es the entire body of yudicial Decisions in this Department of the Law ; 
 and the volume must be of great use, not only to the Legal Profession, but to the Officers and Agents of 
 Insurance Companies, as well as to all others interested in this important branch of business. 
 
 Buer on 3Iarine Insurance. 
 
 THE LAW AXD PRACTICE of Marine Insurance, deduced from a critical Exam- 
 ination of tbe adjudged Cases, the Nature and Analogies of the Subject, and 
 the General Usage of Commercial Narions. By Hoo. J. Duer, late Justice of 
 the Superior Court, Xevr York. 2 vols., 8vo. Price §15.00. 
 
 Edwards on Receivers in Equity. 
 
 A TREATISE ON THE OFFICE AND DUTIES of Receivers in Equity, with 
 an Appendix of Forms and Precedents. Second revised edition, with Notes 
 and References to the N. T. Code of Procedure and Decisions under the Code. 
 By Chables Edwauds, Esq. 1 vol., 8vo. Price §7.50. 
 
 S^r° The decisions and practice under the New York Code in relation to the appointment of 
 receivers as between judgment creditor and debtor, and the setting aside fraudulent assignments by the 
 latter, are very fully given, and a large space is devoted to the subject of the insolvency and dissolu- 
 tion, voluntary or involuntary-, of banking and insurance corporations. To the Ne%v York practitioner 
 such a work must be indispensable. And it will be of use in all the States where the courts exercise 
 chancerj' powers. 
 
 Edwards' Jurpnan's Guide, {oh, Rare, and usefui) 
 
 THE JURYMAN'S GUIDE, containing general matter for the Lawyer and the Law 
 Officer. By Charles Edwards, Esq. 1 vol. Svo. Price $2.00. 
 
 Edwards on the Stamp Act. 
 
 A PRACTICAL TREATISE ON THE STAMP ACT of July 1, 1862, and Amend- 
 atory Statutes to March, 1863, with Authorities and Cases, and Expositions 
 from the Office of the Commissioner of Internal Revenue, &c., &c. By Charles 
 Edwards, Esq. Second revised edition. 1 vol. 8vo. A Schedule of Stamp 
 Duties, Rulings, Decisions, &c., as now established (1869), is appended. 
 Price §4.00. 
 
 g^° As this act is based upon, and even copied from, portions of the British Statutes relating to 
 Stamps, English cases, which are interspersed, will be found all-important- 
 
 No other work upon the subject has been published in this country ; and this treatise will, there- 
 fore, be an indispensable part of every lawyer s librarj- throughout the Union. 
 
 Edwards' Pleasantries 
 
 ABOUT COURTS AND LAWYERS OF THE STATE OF NEW YORK. By 
 Charles Edwards, Esq. 1 vol. 8vo. cloth. Price §3.50. 
 
 ^S" This livelv and instructive work was published by subscription, and has only recently been 
 offered to the Bar generally. It will be relished by Lawyers in every part of the country. It is full of 
 the most humorous anecdotes and interesting reminiscences of such men as Kent, Burr, Butler, Oakley, 
 OConor, Sedgwick, Seward, Brady, Gerard, Van Buren, Spencer, Hoffman, Ogden, and nearly all 
 the other great legal lights of New York.
 
 Baker, Voorhis ^ Co.'s Lcav Fuhlications. 7 
 
 EhveU's Malpractice and Medical E\ideiice. 
 
 A MEDICO-LEGAL TREATISE on Malpractice and Medical Evidence, comprising 
 the Elements of Medical Jurisprudence. By Johx J. Elwell, M. D., late Pro- 
 fessor of Criminal Law Evidence and Medical Jurisprudence in the Ohio State 
 and Union Law College. One large vol. 8vo. Price $7.50. 
 
 ^^" This ivork lias becp»ie a standard Authority^ 7tot only in this country but in Europe. Prof. 
 Carpenter, the eminent English Physiologist, in referring to the work, says: " I know of no instance 
 in which the combination of Legal and Medical knowledge has been so remarkably shown as it has in 
 Dr. Elwell's treatment of the subjects he has undertaken. ' 
 
 Extraordinary Remedies. 
 
 A TREATISE ON EXTRAORDINARY REMEDIES: Cerriorari ; Mandamus; 
 Prohibition; Quo Warranto, &c. By George W. Seakl , Esq. In preparation. 
 
 Gardner's Intern Jitional Law. 
 
 INSTITUTES OF INTERNATIONAL LAW, Public and Private, as settled by the 
 Supreme Court of the United States, and by our Republic, with Reference to 
 Judicial Decisions. Bv Daniel Gardner, Esq., Counsellor at Law, of the New 
 York Bar. 1 vol. Price $5.50. 
 
 " I have examined, as fully as my professional engagements would permit, the Institutes of Inter- 
 national Law, by the Hon. Daniel Gardner ; and I regard the work as a most valuable and accurate 
 one, and much more essential to a practicing lawyer than its title would seem to indicate. Indeed, 
 many of its titles embrace subjects of every-day interest, such as the law of Marriage and Divorce, 
 Authentication of Statutes, Foreign Judgments and Decrees, Bankruptcy, Pilotage and Salvage, Nav- 
 igable Waters, &c., and many others, upon which the authorities are collected and the legal rules 
 stated with accuracy and discrimination. In my opinion the work will much facilitate the labors of the 
 Bar and the Bench. — li^m. Curtis Noyes, 
 
 " The work evinces great learning and research in relation to the rights and duties of American 
 citizens under our State and National Governments, and, at the same time, presents a concise system of 
 International Law, as held by our Republic. 
 
 " It will fill a place in American Law and civil polity which has not been filled before. It should 
 be in the hands of every public man, of the Officers of the Army and Navy of the United States, of 
 Merchants generally, of Judges and Lawyers, of private gentlemen, and, in short, of every citizen who 
 wishes to become acquainted with the institutions of his own country, and with our relations and duties 
 towards foreign nations." — y.P. Tallviadgc. 
 
 Gerard's Titles to Real Estate 
 
 IN THE STATE OF NEW YORK. A manual for the Use of Conveyancers and 
 Students at Law. By J. W. Gerard, Jr., of the New York Bar. 1 vol. 8vo., 
 handsomely printed. Price, $5.00. 
 
 1^" The object of this work is to provide in succinct form and under appropriate divisions digested 
 memoranda for the use of the Profession relative to the Title to Land in this State, whence Derived, and 
 how Created. The various sources of Title and the instruments and Legal Agency by which Lands 
 Vest or are Transferred — as by Deed, Devise, Descent, Foreclosure, Forfeiture, Escheat, Sheriff's Tax 
 Sales, Partition, &c. — are given under separate headings with reported decisions bearing upon the 
 subjects. Also the nature and incidents of the various kinds of Estates in Land, and the different 
 Liens to which Land is subject in this State, how such Liens are Created, and how Removed. 
 
 The volume is intended to operate as a Practical Manual to facilitate the labors of the Profession in 
 the Examination of Titles to Land in this State, by having all matters connected therewith concen- 
 trated in one volume for reference, and by affording a ready means for the Instruction of Students and 
 other Assistants of Conveyancers. • 
 
 Greenleaf 's Overrnled Cases. 
 
 A FULL COLLECTION OF CASES, Overruled, Denied, Doubted, or Limited in 
 their' Application, taken from American and English Reports. By Simon 
 Greenleaf, Esq., Law Professor of Harvard University. Revised and con- 
 tinued to the time of publication, by John Townseiend, Esq. 1 vol. 8vo., 4th 
 edition. Price $4.50. 
 
 ^^~ " The last edition of Mr. Greenleaf 's collection of Overruled Cases appeared in 1840. The 
 edition before us contains, in addition, a list of overruled cases from that time down to the present day, 
 upwards of 1,500 in number. It embraces British and Colonial Decisions, as well as those in the various 
 States of this country and in the United States Courts ; and those made in this State come as far down 
 as the second volume of Abbott and the eleventh of Howard's Practice Reports. The arrangement is 
 alphabetical under the plaintiff's name, so that at a glance the lawyer can tell whether any given 
 decision has been overruled or doubted. No lawyer need be informed of the convenience ot such a 
 work, and the obligation of the profession to its author and editor for the diligence and labor bestowed 
 upon it." — Evening Post.
 
 8 Baker, Yoorhis ^' Co.'s Law Publications. 
 
 Graham on Jurisdiction. 
 
 A TREATISE ON THE ORGANIZATION AND JURISDICTION of the Courts 
 of Law and Equity in the State of New York. By David Graham, Esq, 1 vol. 
 8vo. Scarce. Price §5.00. 
 
 Halsted on Evidence. 
 
 HALSTED'S DIGEST OF THE LAW OF EVIDENCE, embracing the Rules 
 established by Writers of Acknowledifed Authority, and affirmed by the Decis- 
 ions of tlie Federal Court and the Courts of all the States down to the time of 
 publication. With copious references to English Adjudications. Second 
 edition. 2 vols. Price $10.00. 
 
 S^^°° " It presents, in a compact and convenient form, under very minute and appropriate heads, the 
 exact points which have been decided in this branch of the law, and the precise facts upon which ttiose 
 points arose, and thus enables one, at a glance, to ascertain with accuracy whether his particular case 
 has been passed upon by the Courts." — Rufics Choatc. 
 
 Hammond on Insanity in its 31edico-Legal Relations, 
 
 OPINION RELATIVE TO THE TESTA^ilENTARY CAPACITY of the late James 
 C. Johnson, of Chowan Co., N. C. By Wm. A. Hammoxd, M. D., 8vo. pamphlet. 
 In paper covers, .$1.00. In cloth, |1.50. * 
 |}^° A very important case and a veiy able opinion. 
 
 Hanes' United States Criminal Digest. 
 
 BEING DECISIONS IN CRIMINAL CASES contained in the Reports of the 
 Courts of the United States and the several State Courts : to which is appended 
 a Table of the Cases cited. By John L. H.anes, Esq., Counsellor at Law. One 
 large royal 8vo. vol. of nearly 800 pages. Price $6.50. 
 
 f^°° One hundred and seventy-five reports are referred to throughout the work, embracing those 
 of the United States, and of each State of the Union. The great advantage of this work is, that it em- 
 braces £>«/r Criminal Cases, while the Digests heretofore compiled have embraced, in the same work, 
 both Civil and Criminal matter, thus subjecting the profession to an examination of a series of Digests in 
 order to arrive at a knowledge of the decisions in Criminal Cases. In cases where the same principle 
 has been decided in different States, all the decisions have been grouped into one section, retaining only 
 the title of the case, the reference to the report, and the number of the page — thus avoiding unnecessary 
 repetition of the same matter. 
 
 Hare on Discovery of Evidence. 
 
 A TREATISE ON DISCOVERY OF EVIDENCE by Bill and Answer in Equity. 
 Second American from the last London edition. With full Notes and References 
 to American Decisions. By R. S. Rowley, Esq. 1 vol. 8vo. Price $3.50. 
 
 Hill on iixtnreS. (^Th.e only American loorlc on tins subject.) 
 
 A MANUAL OF THE LAW OF FIXTURES. By John W. Hill, Esq., Coun- 
 sellor at Law. 1 vol. 8vo. Price $1.50. 
 
 S^" The object of this New Manual is to place within the reach of all a more concise and less 
 costly statement of the result of the leading American Decisions upon the Law of Fixtures as it affects 
 property in this countrv. 
 
 A clear statement of all the principles on the subject, illustr.ated by the leading cases, is given, and 
 the Manual will be found of great value to practitioners and students. 
 
 Hilliard's American Jnrisprndence. 
 
 THE ELE^NIENTS OF LAW ; being a comprehensive summary of American Juris- 
 prudence. By Francis Hilliard, Esq., of the Boston Bar. Second edition, 
 re\'ised, enlarged, and improved. 1 vol. 8vo. Price $3.50. 
 
 ^^ " We are informed by the title-page of the book, that it is designed for 'students, men of 
 business, and general readers,' and we take pleasure in saying that this design is carried out in a useful 
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 tion generally neglected by everybody but the members of the legal profession, but which is useful to 
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 every gentleman."- — Evening Post.
 
 Baker, Voorhis ^' Co.'s Law PiobUcations. 9 
 
 Hoffman's Chancery Practice. 
 
 A TREATISE OX THE PRACTICE OF THE COURT OF CHANCERY, with 
 an Aijpendix of Forms. By the Hon. Murray Hoffman, Vice-Chancellor, New 
 York. Second edition. 3 vols. 8vo. {Scarce.) Price $20.00. 
 The 3d vol., Forms exclusively, sold separately. Price $5.00. 
 
 Hoffman's Legal Ontlines. 
 
 BEING THE SUBSTANCE of a Course of Lectures delivered in the University of 
 Maryland. By David Hoffman, LL.D. 1 vol. Price $4.00. * 
 
 Hoffnifin's Provisional Remedies. 
 
 PROVISIONAL REMEDIES OF THE CODE OF PROCEDURE. By Hon. 
 
 Murray Hoffman, late Justice of the Suj^erior Court, New York. 1 vol. 
 
 Price $5.00. 
 _^° II -pjjg portion of the Code of Procedure devoted to Provisional Remedies in civil actions is 
 here made the subject of special comment and illustration by an eminent jurist of this city. In treating 
 the subject, the divisions of the Code are followed, and the matter arranged under the titles of Arrest 
 and Bail, Claim and Delivery of Personal Property, Injunctions, Attachments, Receivers, and several 
 miscellaneous topics. The work of Judge Hoff.man forms an important contribution to the literature 
 of the profession, and cannot fail to take a high place in Court as standard legal authority." — ^V. V. 
 Tribune. 
 
 Howard's N. Y. Conrt of Appeals Cases. 
 
 CASES OF THE COURT OF APPEALS of the State of New York, containing a 
 Statement of each Case argued in the Court, commencing with its organization ; 
 the Briefs and Points of Counsel therein ,• the Decision of the Court ; and the 
 Votes of the Judges upon the resijective Decisions. With Notes and References. 
 By Nathan Howard, Jr. Price $7.50. 
 
 Hnrd's Law of Freedom and Bondage. 
 
 THE LAW OF FREEDOM AND BONDAGE in the United States. By John C. 
 HuRD, Esq., Counsellor at Law. 3 vols. 8vo. Price $10.00. 
 
 ^~ This work includes the exposition of those legal relations in which freedom may exist as a 
 lersonal condition under the Constitution of the United States, as well as the history of chattel slavery 
 nd of personal distinctions founded upon difference of race in the several States and Territories. The 
 rcliminary and incidental discussion of elementary principles of public and international law occupies 
 large portion of the work. The author's statement of the origin, nature, and operation of the Con- 
 titution of the United States may be regarded as having special interest from its bearing on the status 
 f the States compromised by acts of secession and civil war. {Compare Dr. Brownson's American 
 epublic, pre/ace.) 
 
 Feremy's Equity Jurisdiction. 
 
 . TREATISE ON THE EQUITY JURISDICTION of the Court of Chancery. 
 By George Jeremy, Esq. 2d American edition. 1 vol. Price $4.00. 
 
 tones' Introduction to Legal Science. 
 
 N INTRODUCTION TO LEGAL SCIENCE ; being a concise and familiar treatise 
 on sudi legal topics as are earliest reail by the law student, and should he under- 
 stood uy every citizen as a part of a general and business education; to which 
 is appended a Concise Dictionary of Law Terms and Phrases. By Silas Jones, 
 Esq., Counsellor at Law. 1 vol. 13mo. Price $3.00. 
 
 C5!9~ " The work amply justifies the title. ^Ve take pleasure in recommending it as a first book to 
 e law student ; as an instructive and pleasant book to the general reader ; and as an agreeable source 
 -knowledge to those of the fair sex who may desire to know somewliat of their legal and civil rela- 
 ns in life. ' — American Jurist and Law Magazine. 
 
 [ent's Commentaries Abridged. 
 
 N ANALYTICAL ABRIDGMENT of Kent's Commentaries on American Law. 
 With Questions for Examination. By J. Eastman Johnson. 1 vol. 8vo. Scarce. 
 Price $3.00.
 
 10 Baker, Voorhis 4" Co.'s Law PiihlicaUons. 
 Lalor on Real Property. 
 
 THE LAW OF REAL PROPERTY in the State of New York. It presents the 
 various provisions of the Revised Statutes on the subject, each illustrated by the 
 remarks of the Commissioners who prepared them, and by all reported cases 
 thereon adjudged in our State at the present time. The system of our law j'n 
 respect of this branch is so much followed in other States, particularly some of 
 the Western States, that the usefulness of this Digest is not limited to New 
 York alone. 1 vol. 8vo. Price $3.50. 
 
 La^y-s American Digest of Patent Cases, &c. 
 
 A DIGEST OF AMERICAN CASES RELATING TO PATENTS for Inventions 
 and Copyrights, from 1789 to 1862, including numerous Manuscript Cases, 
 Decisions on Aj^peals from Commissioners of Patents, and the Opinions of the 
 Attorneys-General of the United States, under the Patent and Copyright Laws ; 
 and embracing, also, the American Cases in respect to Trade-Marks. Arranged 
 in Chronological order, with the year in which and the name of the Judge by 
 whom decided. By Stephen D. Law, Esq., Author of "Law's United States 
 Courts," <fcc. Large royal octavo vol., 826 pages. Price $8.00. 
 
 ^g^ This work has been before the public and the Courts since 1862, and is already recognized as a 
 standard volume and authority- The number of cases digested is over Eight Hundred, of which over 
 Seven Hundred have Reference to Patents. The volumes from which the cases digested have been 
 taken are very numerous, and would cost many hundreds of dollars. The volume also includes some 
 two hundred Manuscript cases which have never before been published. 
 
 Law's Patent and Copyi'iglit Laws (Annotated). 
 
 BEING THE PATENT AND COPYRIGHT LAWS of the United States, from 
 1790 to 1870, with Notes of Judicial Decisions thereunder — Forms and Indexes. 
 By Stephen D. Law, Esq., Author of " Law's United States Courts," " Law's 
 American Digest,"' &c. 1 vol. 12 mo. Price $2.50. 
 
 ^^~ This volume is the only existing compilation of the Patent and Copyright Laws, and will be 
 found of great assistance to all interested in such matters, and particularly convenient and desirable for 
 Patentees and Inventors. 
 
 ^P" The notes referring to Judicial Decisions are generally in the very language of the Courts, 
 and serve to explain and elucidate the Statutes. 
 
 Legal Principles. 
 
 THEIR EXCEPTIONS AND LIMITATIONS. In preparation. 
 
 Loan Acts of Congress. 
 
 ACTS OF CONGRESS RELATING TO LOANS AND THE CL'RRENCY, from 
 1847 to 1868, including the Laws relating to the Pacific Railroads. With a 
 copious Synopsis of each Act, and a Compai-ative View of the Public Debt. 
 1 vol. 8vo. Price $2.00. 
 
 Mackeldy's Civil Law. 
 
 ]\L\CKELDY'S (FERDINAND) Compendium of Modem Civil Law. Translated by 
 P. J. Kaufman. 2d American from 12th German edition. 1 vol. 8vo. Scarce. 
 Price $6.00. 
 
 Mannfactnring Laws of Xew York. 
 
 THE ACT AUTHORIZING THE FORMATION OF CORPORATIONS for Manu- 
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 Amendrnents passed from 1851 to date. To which are added Notes, Forms, ant 
 an Index. 12mo. Price $0.50.
 
 Baker, Voorhis ^^ Co.'s Law FiihUcatioJis. 11 
 McAllister's U. S. Circuit Court Reports. 
 
 REPORT OF CASES argued and detennined in the Circuit Court of the United 
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 Reported by Cutler McAllister, Esq. 1 vol 8vo. Price $6.50. 
 
 Notaries' and Coiniiiissioners' Hand Book. 
 
 A MANUAL, containing numerous Forms, and the Fees allowed in New York. Also, 
 Practical Suggestions and References, with notes of all the Statutes appertain- 
 ing. In paper covers, 75 cents. In cloth, $1.25. 
 
 Notaries' and Bankers' Law Manual. 
 
 A NEW MANUAL FOR NOTARIES PUBLIC AND BANKERS, including a sum- 
 mary of the Law and Principles of Commercial Pajjer, the Law of Endorsement, 
 Negotiability, Demand and Protest, and the History of Bills of Exchange ; with 
 recent Decisions of the U. S. Su])reme Court and of the Courts of the several 
 States in reference to Bills and Notes. To which are added a summary of the 
 Law of each State as to the Rate of Interest and Dnmages on Protested Bills of 
 Exchange. "With the latest forms of Protest and Notices of Protest. Edited by 
 Prof. William B. Wedgwood, LL. D., and J. Smith Homans, Esq., Editor of 
 Bankers' Magazine. 1 vol. 8vo. 700 pages. $6.00 
 
 Owen on the Law and Practice in Bankruptcy. 
 
 A TREATISE ON THE LAW AND PRACTICE IN BANKRUPTCY, supported by 
 English and American authorities, and the general principles of law and equity 
 applicable thereto ; to which is added the Bankrupt Act of the United States 
 [1841], with a full analysis thereof, &c. [1842]. By Samuel Owen, Esq., Covm- 
 sellor at Law. 1 vol. $3.50. 
 
 ,^^ As the U. S. Bankrupt Law of 1867 is, in many of its provisions, similar to the previous Law 
 of 1841, this volume must be of much service at this time. 
 
 (Parish Will Case. 
 
 THE PARISH WILL CASE. Vol. I. contains a Statement of the Facts; the 
 Points and Arguments of Counsel ; the Opinions of the Court of Appeals, and 
 of the several Judges ; the end of the Litigation. 
 
 Vol. II. contains the Medical Opinions upon the Mental Competency of Mr. 
 Parish. 2 vols, large Svo. Price $15.00. 
 
 i^~Thisis one of the most remarkable and interesting cases involving testamentary capacity upon 
 ecord. 
 
 Pierce on American Bailroad Law. 
 
 V. TREATISE ON AMERICAN RAILROAD LAW. By Edward L. Pierce, of the 
 Boston Bar. 1 vol. 8 vo $5.00. 
 
 ^e^ The aptire law upon railroads, as declared by the Courts of this country, is presented in this 
 'Olume, with ttie citation and examination of all the English authorities which are applicable. 
 
 Among the tonics discussed are the following : The formation of a railroad company — The construc- 
 ion and extent of its powers— Power of the Legislature over the Companv, and how affected by the 
 Jnited States Constitution— Taxation — Creation of capital stock by subscriptions, with the power of 
 lunicipal corporations to make them, and the defence of the subscribers— Issue and transfer of shares, 
 nd the liability of the company therefor, when fraudulent — Accjuisition of right of way and of real 
 state by purchase, and also by condemnation, with an examination of the power of eminent domain, 
 nd for what injuries compensation may be made, with the rules for determining the same and the evi- 
 ence admissible — Location of the road — Liability for torts in general, with a discussion of the proper 
 Temedy therefor — Personal injuries resulting in death — Injuries to persons not in privity with the com- 
 1 any, and the rule of negligence — Injuries to servants, to property by fire, to cattle at common law and 
 nd'er statutes — Contracts of the company, with its cajjacity to contract — Liability as a common carrier 
 f goods and of passengers— Remedies — Mortgages of property and franchises, &c., &c. 
 
 " The least that can be said of this work is, that it is the most complete and the most useful treatise on 
 .merican Railway Law that has yet been submitted to the public Mr. Pierce, the author of this work, 
 :a clear and accurate writer, a studious lawyer, and a conscientious editor. His classification of topics 
 : eminently satisfactory, and the book contains abundant evidence that no pertinent authorities of any 
 lalue have been overlooked." — New Vorlt Ez'cnins Post.
 
 12 Baker, Voorhis ^' Co.'s Law Publications. 
 
 Parson's CollllUeiltarieS. {Rare and Valuable.) 
 
 COMMENTARIES ON A:\rERICAN LAW. Opinions by Hon. Theophilus Par- 
 sons, late Chief Justice of the Supreme Court of Massachusetts. 1 vol. 
 {Scarce.) Price $3.50. 
 ^P" This is an old and valuable work, published in 1836. It contains over Three Hundred Opinions, 
 on nearly everj' branch of Law, by the late Chief Justice Parsons (from 1808 to 1811). Judge Parker, 
 his associate on the Bench, said of him : " He was regarded as the living oracle of the law ; others were 
 great men, he was a wonderful man. The most com]ilicated questions appeared in his hands the most 
 easy of solution ; and if there be such a thing as demonstration in argument, lie, above all the men I 
 know, had the power to produce it." 
 
 Pliillips & Amos on Eyideiiee. 
 
 A TREATISE ON THE LAW OF EVIDENCE. Ry S. M. Phillips, Esq., and 
 Andrew Ajios. Esq. With copious Notes and References to American Decisions. 
 2 vols. 8vo. Price $7.00. 
 
 Ram's Treatise on Facts 
 
 AS SUBJECTS OF INQUIRY BY A JURY. First American from the last 
 London edition. With Notes by John Townshend, Esq. 1 vol. 8vo. Price $5.00. 
 
 Ram's Science of Legal Jndgment. 
 
 WITH AMERICAN NOTES. In prejxiration. 
 
 Rockwell's Spanisli and 3Iexican Law. 
 
 A COJklPILATION OF SPANISH AND MEXICAN LAW in relarion to Mines and 
 Titles to Real Estate, in force in Califoniia and New Mexico, and in the Terri- 
 tories acquired under the Louisiana and Florida Treaties when annexed to the 
 United States By John A. Rockwell. 1 vol. Price $7.50. 
 
 t^~ This volume contains a translation of the Mining Ordinances of New Spain — Gamboa's Min- 
 ing Ordinances — the Laws in relation to Mines of Gold, Silver, and Quicksilver, contained in the 
 " Novisima Recopilacion " and the " Recopilacion de las Indias," and in the Decrees of the Cortes of 
 Spain and of Ferdinand VU. ; also the Laws and Decrees of Mexico on the subject of Mines, Coloniza- 
 tion, and the Right or Foreigners to hold Real Estate. It also contains Extracts from Public Docu- 
 ments and from the Laws of California, in relation to Mines and Mineral Lands, together with a Digest 
 of the Common Law on the subjects of Mines and Mining. 
 
 Redfield's X. Y. Snrrogate^s Reports. 
 
 REPORTS OF CASES ARGUED AND DETERMINED in the Surrogate Courts of 
 the State of New York. By Amasa A. Redfield, Esq., of the New York Bar. 
 In continuation of Bradford's. 1 vol. $5.50. 
 (Vol. II. in preparation.) 
 
 Rules of tlie Circnit Conrt; 
 
 RULES OF THE CIRCU^T COURT for the Southern District of New York. Neat 
 Pamphlet. $0.50. 
 
 Sedgwick on Damages. 
 
 A TREATISE ON THE MEASURE OF DAMAGES, or an iuquuy into the Princi- 
 ples which Govern the Amount of Compensation Recovered in Suits at Law. 
 By Theodore Sedgwick, Esq. Fifth Edition. With full Notes, embracing 
 all material decisions in this country and in England to the time of publication. 
 Edited by Henry D. Sedgwick, Esq., and Arthur G. Sedgwick, Esq. One 
 large 8vo. Price $8.50. 
 
 ^P" This Standard Work has obtained so high and wide a reputation both in Europe and America, 
 that it is unnecessary to repeat the numerous testimonials it has received. Tht Laiu Refioyter says : 
 " Anything from Mr.' Sedgwick is sure to be welcomed. He touches nothing on which he does not ira- 
 jsress the mark of his active, resolute, and vigorous mind. He writes clearly and abl)' ; nor does he 
 hesitate to express his own conclusions, even on disputed points. This is a recommendation of no or- 
 dinary character." 
 
 i
 
 Baker, Voorhis ^ Co.'s Laiv Pitblications. IS 
 Sedgwick on Statutory and Constitutional Law. 
 
 A TREATISE ON THE RULES which Govern the Interpretation and Application of 
 Statutory and Constitutional Law. By Theodore Sedgwick, author of a Trea- 
 tise on tiie Measure of Damaojes. 1 vol. 8vo. $7.50. 
 
 {:^° " In the work now before us, the learned author has happily chosen a subject of great interest' 
 and one upon which few text-books are to be found. The great feature of our jurisprudence, which dis- 
 tinguishes it from that of all other countries, is the existence of written constitutions, which prescribe 
 limits to the power of the government, and establish a fundamental law, to be interpreted by the Courts, 
 as a bulwark between the popular will of the passing hour, and the serious and sober expression of that 
 will authentically manifested in these great charters. Under other forms of government, the funda- 
 mental law has less power. Magna Charta, for instance, the sireat original of all these modern consti- 
 tutions, appeals, however solemnly, only ro the discretion of Parliament, and the Judges of England 
 cannot abrogate a law, passed with due formality, because it conflicts with any of the principles of the 
 constitution. 
 
 " The American charters, derived from a common source, present a great uniformity of general ap- 
 pearance ; they all provide for the distribution of the powers of government among the three depart- 
 ments, executive, legislative, and judicial, and forbid either to overstep its own limits ; they guarantee 
 trial by jury, equalilj' of taxation, protection to persons and property against arbitrary acts of either 
 department', as well as against private oppression, &c. But all these are expressed in general terms, 
 and it is left to the judicial department to expound their meaning and enforce their sanction. Mr. Sedg- 
 wick gives in a manner at once elegant and clear a synopsis of all the decisions, and a judicious esti- 
 mate of their respective authority and effect. We recommend especially to the careful attention of our 
 readers his fifth chapter, upon the boundaries of legislative and judicial power. 
 
 " Our author's subject carries him also into a general consideration, which he conducts in a highly 
 able and scholarlike manner, of the construction of statutes, a department not so entirely new, but, in 
 its practical importance to the working men of the profession, not inferior to any branch of the law ; 
 and his views upon this branch are thoughtfully studied out and well expressed." — Law Reporter. 
 
 Shearman & Redtield on Negligence. 
 
 A TREATISE ON THE LAW OF NEGLIGENCE, and the Remedies for Private 
 Wrong.s, and the Negligent Performance of Contracts. By Thomas G. Shear- 
 man and Amasa A. Redfield, Counsellors at Law. 
 
 ^^^ The only treatise on the subject. This able work covers the entire field, 
 and cites over 4,000 adjudged cases. No recent law work has met wdth such general 
 favor. The book is a large 8vo. of 770 pages. Price $7 50. 
 
 " It IS a first-class work in topic, in contents, and in treatment. It abounds with comprehensive 
 and vigorous reasoning, as well as clear, lucid, and bold thinking. Its learning is exhaustive, and 
 arranged in no cheap, slovenly, or incoherent manner. The authors, in a page, frequently express the 
 results of countless volumes of reported cases by a skillful rifj'«wzi», at once thorough, accurate, and 
 stated with guarded caution, and yet no verbosity. ********* 
 
 " No lawyer, who desires to be armed in this leading head of the law, will neglect to read this 
 ■ book carefully, methodically, and critically." — Boston Post. 
 
 " The authors seem to have given careful study to the whole subject, and to have entered into a 
 clear analysis and thorough research of every point connected with it. It is written in a plain, yet 
 attractive style, and as free as possible from mere technicalities. Its statement of principles and 
 authorities is concise, yet comprehensive. The plan of the work is admirable, presenting, as it does, 
 every sulsject on which it treats under its appropriate head, and in chapters and sections, to which is 
 prefixed a complete analysis of the special topic under consideration, so that at a glance the student or 
 practitioner can find the point desired in the context, with such references to decisions upon it as the 
 Foot-notes, which are very full and complete, may Contain.' ' — The Law Transcript. 
 
 " It embraces a mass of information of importance in every-day practice, which is not otherwise 
 accessible. * * * -phe book is one which has been greatly needed. We know of no work 
 whichlkill be more useful to a lawyer in general practice than this volume." — A tnerican Law Review. 
 
 Sherwood's Manual of Legal Study. 
 
 A MANUAL OF LEGAL STUDY ; FOR THE USE OF STUDENTS. By Scott 
 R. Sherwood, A. M., Counsellor at Law. Thin 8vo. Price 50 cts. 
 
 ]^" Prof. Theodore W. Dwight, in a letter in which he fully endorses this work, says : " I deem 
 the course suggested judicious and of practical value, and cordially commend it to the consideration of 
 those for whom it is designed." 
 
 Smith's New York Common Pleas Reports. 
 
 REPORTS OF CASES DECIDED in the Court of Common Pleas of the City of 
 New York. By E. Delafield Smith, Esq., Counsellor at Law. 4 vols. Price 
 $36.00. {See also Judge Billy's Common Pleas Reports.) 
 26
 
 IJj, Baker, Yoorhis ^ Co.'s Law Fahlications. 
 Stamp Duties of the United States. 
 
 STAMP D-UTIES OF THE UNITED STATES. With all the Rulings and Judicial 
 Decisions contained in the various Department Rulings and Reports of the vari- 
 ous Courts. Paper covers, 50 ots. Cloth, $1. 
 
 Tayler's Law Glossary. 
 
 THE LAW GLOSSARY, being a selection of .the Greek, Latin, Saxon, French and 
 Italian Sentences,. Phrases, and Maxims found in the leading English and Ameri- 
 can Reports and elementary works, with Historical and Explanatory Notes, 
 alphabetically arranged and translated into English for the use of the Members 
 of the Legal Profession, Law Students, Sheriffs, Justices of the Peace, &c., &c. 
 By Thomas Tatleb, author of " Precedertts of Wills." Fourth edition, revised, 
 corrected, and enlarged, by a member of the New York Bar. 1 vol. 8vo. Price 
 $4.50. 
 
 Tayler on Wills. 
 
 PRECEDENTS ON WILLS, with Practical Notes on the construction or elucidation 
 
 of the various clauses in a complicated will. By Thomas Tatler, Counsellor at 
 
 Law. 2 vols, in 1. $5.00. 
 
 j^°° Upon the publication of this work, several eminent jurists favored the author with commenda- 
 tory letters. Judge Vanderpoel said : " A book of ' Precedent of Wills ' has long been a desideratum 
 to the Profession and the public generally, and I speak advisedly when I say that I know no person 
 better qualified than yourself to compile one." 
 
 Taylor's Executors' and Administrators' Gruide. 
 
 THE LAW OF EXECUTORS AND ADMINISTRATORS, exhibiting their rights, 
 duties, and liabilities ; together with full directions for proceeding both in proving 
 a will and administering an estate ; as well as for the distribution of the eflfects, 
 and the tinal settlement of accounts, with all necessary practical forms; the 
 whole forming a work of general utility. By John N. Taylor, Esq., author of 
 the Treatise on Landlord and Tenant. 1 vol. 18mo. [New York, 1851.] Price 
 $1.00. 
 
 Townsliend on Slander and Libel. 
 
 A TREATISE ON THE WRONGS CALLED SLANDER AND LIBEL, and on the 
 
 Remedies for -those Wrongs. By J©hn Townshend, Esq., of the New York Bar. 
 1 vol. 8vo. $6.50. 
 
 1^^ This long announced work is now ready. The publishers believe it is a treatise of no ordinary 
 merit. They know that tlie author brought to his task a long and extensive practice in his profession, 
 an unusual tamiliarity with the branch of law treated upon, a vast general reading, together with a long 
 apprenticeship to author-craft. These qualifications have, the publishers are assured by competent 
 judges who have examined the advance sheets, enabled the author to produce a work replete with re- 
 condite learning, and presenting an exhaustive view of his subject in the most logical and convincing 
 form. While the author deals with each topic upon principle, he is profuse in the citation of authori- 
 ties ; the Notes of Reference to decisions exceed two thousand, and occupy one-half of the volume, 
 whfch contains some six hundred pages. 
 
 Townsliend's Summary Proceedings. 
 
 THE LAW AND PRACTICE ON PROCEEDINGS by LancUords to recover posses- 
 sion of Demised Premises, on the Non-Payment of Rent, on the Expiration of 
 the Term. With an Appendix of Forms. By John Townshend, Esq., editor of 
 Voorhies' Annotated Code, &c. 1 vol. 12mo. (New York Law). Price $2.00. 
 
 Trial of Huntington. 
 
 THE TRIAL OF CHARLES B. HUNTINGTON, for Forgery. Principal defense, 
 Moral Insanity. Prepared for publication by .Defendant's Counsel, from full 
 Stenographic notes taken by Roberts & Warburton, Law Reporters. 1 vol. 500 
 pages. Price $3.00.
 
 Baker, Voorhis ^ Co.'s Law Publications. 15 
 
 Trial of the Privateers of the Savannah. 
 
 TRIAL OF THE OFFICERS AND CREW of the Privateer Savannah, on the charge 
 of Piracy, in the United States Circuit Court for the Southern District of New 
 York, Hon. Judges Nelson and Shipman presiding. Oct. 1861. 1 vol. 8vo. 
 Price $3.50. 
 
 ^e'~This work contains, in addition to the evidence in full, the Speeches of the Eminent Counsel, 
 the chaage of Judge Nelson, Important Public Documents connected with the Rebellion, &c., &c. 
 Reportedby A. F. Warburton,and corrected by the Counsel. 
 
 TurnbuU's District Court Practice. 
 
 PRACTICE OF THE DISTRICT COURTS of the City of New York ; with the 
 Acts relative to the Marine Court, and an Appendix. By Stephen H. Turn- 
 bull, Esq., Counsellor at Law. 1 vol. 12mo. Price $2.00.' 
 
 Upton's Law of Maritime Warfare and Prize. 
 
 INCLUDING THE LAW of Belligerent and Neutral Rights, of Blockade, of Con- 
 traband, the Right of Search, of Capture, Recapture, Joint Cq,pture, Military 
 Salvage, &c., &c., in application to the late War in the United States. Third 
 Edition, enlarged. 1 vol. Price $5.00. 
 
 Voorhies' Annotated Code. 
 
 THE CODE OF PROCEDURE OF THE STATE OF NEW YORK. With Notes, 
 Appendix, and Index. Tenth Edition. WITH ADDITIONAL NOTES AND 
 AMEND:\IENTS to 1870. By Joun Townshend, Esq., editor of the preceding 
 editions. One large octavo volume. Price $8.00. 
 
 ^g'~ This edition has been most thoroughly revised and corrected, being the most complete which 
 has yet been issued ; the editor having devoted more than five years of constant labor to it. 
 
 ^p~ This popular volume is almost equally useful in every State having a similar Code to New 
 York. 
 
 Waterman on Set- Off, &c. 
 
 A TREATISE ON THE LAW OF SET-OFF, RECOUPMENT, AND COUNTER- 
 CLAIM. By Thos. W. Waterman, Esq. 1 vol. 8vo. Price $7.50. 
 
 It is thirty years since a work on this subject has been written. Mr. Waterman's 
 book is extremely full, and is adapted to every State in the Union. The publishers 
 are assured that it is a lirst-class work, and of very general utility. 
 
 The subject of Set-Off, Recoupment, and Counter-Claim, is not second in practical importance to 
 any in the law ; scarcely a case, either great or small, being now prepared for trial, in which, in one 
 form or Another, it does not arise. 
 
 Th^design is to furnish, in a convenient form, a complete practical ejcposition of the Law of Set- 
 Off, &c., as it exists at the present time in England, and in each of the States. 
 
 Waterman on Trespass. 
 
 A TREATISE on such Willful Actiomable Wrongs to Persons or Property as fall 
 within the denomination of Tresjjass. By Thomas W. Waterman, Esq. In 
 preparation. 
 
 Webster on Nentrfility. 
 
 TIES OF NEUTRALITY, bein^ 
 United States v. The Steamshi 
 pamphlet, 94 pages. Price $0.50. 
 
 DUTIES OF NEUTRALITY, being an Argument in the Important Case of the 
 United States v. The Steamship Mtteor. By Sidney Webster, Esq. 8vo.
 
 1.6 Baker, Voorhis ^ Co.'s Law Publications. 
 Wliittaker's Practice. 
 
 PRACTICE AND PLEADING IN ACTIONS iu the Courts of Records in the State 
 of New York, under the Code of Procedure, and other Statutes where applicable. 
 With an Appendix of Forms. By Henry Whittaser, Esq., Counsellor at Law. 
 Two large vols. Price $15.0U. 
 
 y^" This work has been received with great favor by the Profession. The third edition, greatly 
 improved and enlarged, is believed to meet every requirement connected with the subjects treated. 
 More than 7,000 cases are cited in the body of the work. 
 
 ^^^ The great value of this work to the practical lawyer we deem to consist in the perfectly 
 exhaustive citation of cases- The index to cases cited embraces over sixty closely printed pages, and 
 includes, apparently, every reported case of practice, from the adoption of the Code to the fall of 1862. 
 The Appendix of Forms, at the end of the second volume, will be found of great value. 
 
 Wigram Oil Wills. i 
 
 EXAMINATION OF THE RULES OF LAW respecting the Admission of Extrinsic 
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 DwiGHT, LL. D., Warden of Columbia College Law School. In preparation. 
 
 Wedgwood's Government and Law. 
 
 CONTAINING THE WHOLE BODY OF AMERICAN LAW, both State and Na- 
 tional, fully presented iu the most compact and intelligible form ; together with 
 the Legal History of the Nation. For the use of Libraries, Lawyers, Lyceums, 
 «fec. By Prof. Wm. B. Wedgwood, LL. D. One vol., 8vo. Price* $5.00. 
 
 |W° This is a work of most inestimable value to Law Students and Lawyers generally. Practi- 
 tioners will find much that will be new to them, and of the greatest value in their practice. 
 
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