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THE

HISTORY AND PRINCIPLES

OF THE

LAW OF EVIDENCE,

AS ILLUSTRATING

OUR SOCIAL PROGRESS.

BY

JOHN GEORGE PHILLIMORE.

"And judgment is turned away backward, and justice standeth afar off; for
truth is fallen in the street, and equity cannot enter."

" But the liberal deviseth liberal things, and by liberal things he shall
stand.”—Isaiah, xlix. 14, and xxxii. 8.

LONDON:
WILLIAM BENNING & CO., LAW BOOKSELLERS,

43, FLEET STREET.

LONDON: RAYNER AND HODGES, PRINTERS,

109, Fetter Lane, Fleet Street.

PREFACE.

It has been my endeavour in the following pages, not only to illustrate the law of evidence by our political and social history, but to elucidate our history by an inquiry into that portion of our law. Many passages that might appear to those who were not acquainted with my purpose, (which no title that I could hit upon would quite adequately disclose), mere digressions from the subject, are, in truth, strictly and immediately connected with the main object I had in view when I began this undertaking. That object was to interweave law and history, to employ one and the other alternately for the illustration of both. I am not aware that the field which I have entered upon has ever been trodden in this country before; and yet, I am sure, it is one which, if properly cultivated, might yield the richest and most abundant harvest. In other countries, the subject is one on which the greatest genius and the most assiduous industry have been exerted; the names of Vico, of Montesquieu, and of Herder, will occur to all who have directed their attention to such pursuits, as those of men, who, by their efforts in this direction, have conferred signal and lasting benefits on mankind; and though he was inferior to them in scope, and originality, and too much hampered by implicit deference to a fraudulent, odious, and despotic government, it would be most ungrateful to omit the name of Savigny in any account of those who have contributed to embellish and enlarge the patrimony of the lawyer, by incorporating with it the fair and fertile regions by which it is immediately surrounded.

It has been the habit of our writers to consider law, not as it ought to be considered, as a province of a vast continent, locked in on every side by contiguous territories; but as an island

“Placed far amid the melancholy main,"

cut off from all communication with other districts,as a sort of Japan, in the Geography of the mind, where, as among the ancient Romans, the words stranger and enemy are synonymous; all access to which is jealously prohibited, and of which the coasts are guarded by the rigour and gloom of an inexorable exclusion.

But though the full knowledge of truth belongs to God alone, yet is the pursuit of it man's most exalted privilege, as indifference to it is the attribute of the beasts that perish. What light is to the body, that evidence is to the soul; what the one is without, that the other is within; and it would be, if I Lord Bacon's imagery, as reasonable to suppose,

may borrow

because light is insensible to the touch, that it is without value, as to suppose that any rules for the investigation of truth can be without importance to the philosophical inquirer. Nor was the gratification of the reader's speculative curiosity the sole or principal object I proposed to myself in writing upon this subject ;—my purpose was wider and more ambitious. By dwelling upon the facts disclosed in the history of judicial proceedings among us, I thought the argument for legal reform would become clearer and more irresistible; I thought that this subject might be so treated as to interest even the general student, and attract the notice of those who, as they have no professional motive to undertake the drudgery of technical details, would also be free from that professional bias, which too often interferes with a just appreciation of facts that sophistry may endeavour to elude, but which ignorance alone can venture to deny. He indeed will have derived from history but few of the salutary lessons that it may teach; he will have but a superficial knowledge, especially in this age, of its moral value, and of the philosophy which its examples inculcate, who is totally ignorant of that positive law which is the form given to justice by different communities. Varying in different countries, and stamped with the impress of the habits, feelings, and passions of its authors, this law will still be found, in so far as it is entitled to respect, in so far as it is adequate to the wants and exigencies of the community, in so far as it is irrefragable, solid, and durable, to be but the modification of that eternal essence which man may

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