"No

captives may we suppose submitted in silence to their doom; how many pined away in hopeless anguish; how many were afterwards deprived of all redress by some miserable prevarication, some mistake of the pleader, some pedantry of the judge; how many found costs added to costs by vexatious litigation; how many, after struggling against the sickness of the heart, that arises from hope long delayed, at last perished unnoticed and forgotten victims of the savage law, and imprisoned by the arbitrary will of some rapacious pettifogger! "What the eye does not see the heart does not rue." where," says a great thinker (1), and a great writer, and a great jurist," has this proverb been more fully understood, and more completely profited by than in the Great Hall at Westminster." Yes, if half the misery of the suitors ruined by the decisions on points of special pleading, recorded in Meeson and Welsby, could be presented to the view even of an English legislature; if half the torture, the suspense, the agony, the ruin of those whose destruction may be traced to the office of the Masters in Chancery, could be displayed to the eyes of a shuddering public, the blind hostility to improvement would cease, the system so skilfully contrived to distress and impoverish would be at an end, the chicane of the law would be seen in its true light, and England would be delivered from the greatest permanent evil by which a civilized country ever was afflicted. Fortunately, however, the miseries and iniquities of which the system of imprisonment (m) for debt was composed at this time have been, after (1) Bentham.

(m) Till within a very few years, when by an act which reflects very great credit on the good sense and humanity of Lord Campbell, in spite of the most bitter and savage opposition, the law was altered. The English proceeding, as it affected debtors, combined everything by which the heart or head of man could be most disgraced. Unless a man was released by one of those truly characteristic proceedings of our legislature, those separate and exceptional proceedings called Insolvent Acts, by which a present evil was shaken off, and the principle which led to it more firmly rooted than before, or by something like a human feeling

If

a fierce struggle, abolished; they constituted a mass of abomination not to be matched, I say it advisedly, in any other clime, and were a source of profit as religiously protected as it was elaborately organized. Philosophers and moralists raised their voice in vain. Burke, Johnson, Goldsmith, Fielding, might as well have addressed the stones of the prisons in which the wretched victims of disappointed avarice were incarcerated, as the bosoms of the English public, in behalf of misery that did not strike the eye and obtrude itself upon the senses of the multitude. The absurdity of the system was transparent. the debtor is criminal, what is the creditor? Is he not an accomplice in the crime? Does he lend to the debtor from any desire of the debtor's good, or for his own advantage? What right has he then to scourge misforture, or the improvidence which he has himself inflamed, with the scorpion lash, which the law withholds from all but the blackest and foulest crimes? To every shilling of the debtor's property he is entitled; but to claim the pound of flesh is cruelty and folly that no nation, however ignorant of jurisprudence, if it was not blinded by the love of gain, and governed by the maxims of bankers and attorneys, would, for a moment, think of, much less endure, for century after century, in spite of all reasoning, and in contradiction to all experience.

I have now reached the period at which the historical deduction of the rules of evidence, as they still exist among us, may be fairly terminated. It remains that those rules

awakening in the mind of his creditor, the punishment for debt, in which a technical slip might plunge the most righteous suitor, was imprisonment for life. If a man was too poor to defray the expense of resisting an unjust demand, this might be his lot. No evidence was given as to the means of the debtor, as to his providence or improvidence, as to the conduct of the creditor, on which, if justice had been in any degree the object of our institutions, or humanity the guide of our legislators, it was incumbent that inquiries should take place. The crime of poverty was one for which our law had no forgiveness, and our people (as every page of the great novelist shews), no commiseration.

should be concisely stated, and presented to the examination of the reader. They have been formed by different degrees of wisdom, and have been interpreted by different degrees of skill. The phenomena of the visible world, which strike the senses, constitute not only a magnificent spectacle to the observer, but deep wisdom and instructive learning are concealed beneath them; they are conducted, adjusted, and arranged by wisdom that is unfathomable, and benevolence that is infinite. Very different, however, from the structure of the universe are the phenomena of daily life; and the events of social intercourse, connected together though they are by a chain, the links of which are to us invisible, and conspiring though they do by a wonderful dispensation to the great ends of Providence. They appear, on the contrary, loose, vague, contradictory, incoherent, uncertain, capricious as the errors and infirmities of the actors by whom, in an everchanging succession, the business of life is carried on with the same zeal and activity, as if on this side the grave disappointment and satiety were unknown. But so far only as men have studied and observed their rules, and can interpret them, does life cease to be a mere tale of "sound and fury," and obtain its due significance. Though the death of any one person with the usual share of health cannot safely be predicted, the average rate of mortality in a certain number of individuals furnishes, as we see, the basis of accurate calculations. He who has never sought to trace events to their causes, is like one who hears a strange tongue, and understands nothing. General rules are requisite to make them useful and intelligible.

The reader who has followed me, in this attempt to trace the history of the law of evidence, will find, in the cases that I have commented upon, abundant matter for thought and argument. As no part of jurisprudence requires more certainty and simplicity in its provisions than this, it will naturally occur to him to ask, how it has come to pass, that this portion of our law challenges a pre-eminence in deformity,

even amid the uncouth and amazing absurdities which pervade the annals of every branch of English legislation? And on the answer to this question, a law reformer, by whom I mean an advocate, and an uncompromising advocate for codification, might rest his case. For the true reason is that given by Livingstone, namely, that with fewer exceptions than exist in any other division of our law, it has been abandoned for its creation and amendment to the caprice and vacillating authority of the judge, who, almost without any interference, engrossed to himself the supreme power of the Legislature. Thus, instead of a positive law easily understood, to be found in its proper place, comprised in a few lines, or, at most, in a few pages, and binding on the judges, as well as on the community at large, suitors have been harassed by judicial decisions, spreading over endless volumes of doubtful authority, corroborated, modified, overthrown and restored, according to the knowledge and liberality, or the ignorance and narrowness, which happened to prevail in our Courts of justice. Nor can I say, that even in the course of this century, the judge has always exercised the enormous and irresponsible power, which the joint operation of our law of pleading and evidence bestows upon him, with moderation and integrity. Partiality to some counsel, aversion to others, a strong desire to uphold authority; sometimes a desire to discourage innovation, even at the expense of justice, have displayed themselves unequivocally even in those heights, to which, it is taken for granted, that the din of human passions, and the mist of selfish interests, can never ascend. When I recollect a case, quoted in Coleridge's Blackstone, that was tried in this country, in which a murder was clearly proved, but in which the prosecuting counsel forgot to prove the Christian name of the person murdered, and the absolute and complete escape of the murderer, because the judge refused, after the counsel for the prosecution had said, "my case is closed," but before he had begun to sum up the evidence, to allow a witness to be called

to complete the technical proof, by proving the Christian name of the murdered man, it is very difficult to exclude from one's mind the belief that some motive, inconsistent with an impartial love of justice, could alone account for a prostitution of judicial authority, so revolting and so complete. So, too, when I recollect a case reported to me by one who heard it tried, also tried in the present century, though, of course, not by any judge, now upon the Bench, in which a murder was proved beyond the shadow of doubt, by the direct and unquestioned and uncontradicted evidence of a witness, who had sometimes preached at a dissenting place of worship, and in which the judge directed an acquittal at once, because he would not allow the jury to rely on the evidence of a person, who had assumed, without being ordained, the sacred functions of a preacher of the Gospel; and when I know that this flagrant insult to civil and religious liberty, this abominable mockery of justice, this gross and profligate wickedness, was dipt in Lethe, and so forgotten, was visited by no parliamentary impeachment or inquiry, I own I cannot help adopting the opinion, that excessive power, place it where you please, on the bench of justice or on the bishop's throne, will sooner or later be abused. Suspicion is a wretched substitute for defined and positive enactments.

Evidence, if distinguished according to the effect it produces on the mind, is either presumptive, direct, or conclusive.

1. Presumptive evidence (n), is that which directly proves one fact, which fact makes the existence of another fact, the (n) The following extract on presumptive evidence of guilt, is from Sir S. Romilly's Speech on Lord Melville's impeachment :

"I should think it could hardly be necessary to your Lordships collectively, I am sure it cannot be to many of you individually, to state what inferences Courts of justice always draw from the destruction of evidence. Most of the cases that have occurred of that kind, at least of those that I have known, are civil cases; but I know of no distinction in this respect between civil and criminal cases. The presumption in the one case is, as I conceive, and I shall presently state why I conceive it is,-as strong as in the other.