surest guides to truth. Evidence of this nature is of the very weakest kind, where it is doubtful whether the party making the admission knew his legal rights and situation.

§ 789. The number of witnesses who speak to the same point and their consistency with each other is to be considered. A single witness, if there is no reason to doubt his veracity and accuracy, his ability and integrity, is sufficient in law to prove any fact, except treason or perjury, in which crimes two at least are requisite. But see Act II. of 1855, Sec. XXVIII.

Except in cases of treason, the direct evidence of one witness, who is entitled to full credit, shall be sufficient for proof of any fact in any such Court or before any such person. But this provision shall not affect any rule or practice of any Court that requires corroborative evidence in support of the testimony of an accomplice or of a single witness in the case of perjury."

Starkie writes as follows. (a)

"But although the testimony of a single witness, whose credit is untainted, be sufficient to warrant a conviction, even in a criminal case, yet undoubtedly any additional and concurrent testimony adds greatly to the credibility of testimony, in all cases where it labors under doubt or suspicion; for then an opportunity is afforded of comparing the testimony of the witnesses on minute and collateral points, on which, if they were the witnesses of truth, their testimony would agree, but if they were false witnesses, would be likely to differ.

"Where direct testimony is opposed by conflicting evidence, or by ordinary experience, or by the probabilities supplied by the circumstances of the case, the consideration of the number of witnesses becomes most material. It is more improbable that a number of witnesses should be mistaken or that they should have conspired to commit a fraud by direct perjury, than that one or a few should be mistaken, or wilfully perjured. In the next place, not only must the difficulty of procuring a number of false witnesses be greatly increased in proportion to the n umber, but the danger and risk of detection must be increased in a far higher proportion; for the points on which their false statements may be compared with each other, and with ascertained facts, must necessarily be greatly multiplied."

It must however always be more satisfactory to the judge where he has not to rely upon the single unsupported testimony of one witness.

(a) Page 828.

§ 790. The effect of consistency and inconsistency is well remarked on by Starkie.(6)

"The consistency of testimony is also a strong and most important test. for judging of the credibility of witnesses. Where several witnesses bear testimony to the same transaction, and concur in their statement of a series of particular circumstances, and the order in which they occurred, such coincidences exclude all apprehension of mere chance and accident, and can be accounted for only by one or other of two suppositions; either the testimony is true, or the coincidences are the result of concert and conspiracy. If, therefore, the independency of the witnesses be proved, and the supposition of previous conspiracy be disproved or rendered highly improbable, to the same extent will the truth of their testimony be established.

"So far does this principle extend, that in many cases, except for the purpose of repelling the suspicion of fraud and concert, the credit of the witnesses themselves for honesty and veracity may become wholly immaterial. Where it is once established that the witnesses to a transaction are not acting in concert, then, although individually they should be unworthy of credit, yet if the coincidences in their testimony be too numerous to be attributed to mere accident, they cannot possibly be explained on any other supposition than that of the truth of their statement.

"The considerations which tend to negative any suspicion of concert and collusion between the witnesses, are either extrinsic of their testimony, such, for instance, as relate to their character, situation, their remoteness from each other, the absence of previous intercourse with each other or with the parties, and of all interest in the subject-matter of litigation; or they arise internally, from a minute and critical examination and comparison of the testimony itself.

"The nature of such coincidences is most important: are they natural ones, which bear not the marks of artifice and premeditation? Do they occur in pointa obviously material, or in minute and remote points which were not likely to be material, or in matters the importance of which could not have been foreseen? The number of such coincidences is also worthy of the most attentive consideration: human cunning, to a certain extent, may fabricate coincidences, even with regard to minute points, the more effectually to deceive; but the coincidences of art and invention are necessarily circumscribed and limited, whilst those of truth are indefinite and unlimited the witnesses of art will be copious in their detail of circumstances, as far as their provision extends; beyond this they will be sparing and reserved, for fear of detection, and thus their testimony will not be even and consistent throughout: but the witnesses of truth will be equally ready and equally copious upon all points."

(b) Pages 828-829.

§ 791. As to the conformity of testimony with experience, Starkie writes thus, (c)

"As one principal ground of faith in human testimony is experience, it necessarily follows that such testimony is strengthened or weakened by its conformity or inconsistency with our previous knowledge and experience. A man easily credits a witness who states that to have happened which he himself has known to happen under similar circumstances; he may still believe, although he should not have had actual experience of similar facts; but where, as in the familiar instance stated by Mr. Locke, that is asserted which is not only unsupported by common experience, but contrary to it, belief is slow and difficult.

"In ordinary cases, if a witness were to state that which was inconsistent with the known course of nature, or even with the operation of the common principles by which the conduct of mankind is usually governed, he would probably be disbelieved; for it might be more probable in the particular instance that the witness was mistaken, or meant to deceive, than that such an anomaly had really occurred. But although the improbability of testimony, with reference to experience, affords a just and rational ground for doubt, the very illustration cited by Locke shows that mere improbability is by no means a certain test for trying the credibility of testimony, without regard to the number, consistency, character, independence, and situation of the witnesses, and the collateral circumstances which tend to confirm their statement. In ordinary cases, where a witness stands wholly unimpeached by any extrinsic circumstances, credit ought to be given to his testimony, unless it be so grossly improbable as to satisfy the jury that he is not to be trusted. Thus, notwithstanding the general presumption of law in favor of innocence, a defendant may be convicted of a heinous and even improbable crime upon the testimony of a single witness.

"As experience shows that events frequently occur which would antecedently have been considered most improbable, from their inconsistency with ordinary experience, and as their improbability usually arises from want of a more intimate and correct knowledge of the causes which produced them, mere improbability can rarely supply a sufficient ground for disbelieving direct and unexceptionable witnesses of the fact, where there was no room for mistake."

§ 792. As to the conformity of testimony with collateral circumstances the same author remarks :(d)

"Direct testimony is not only capable of being strengthened or weaken

(c) Page 832.
(d) Page 838.

CONFORMITY WITH COLLATERAL FACTS.

425

ed to an indefinite extent by its conformity on the one hand, or inconsistency on the other, with circumstances collateral to the disputed fact, but may be totally rebutted by means of such evidence. A claimant, after his case was referred to by the House of Lords and evidence taken on it, presented an additional case, alleging an inscription on a tombstone in a churchyard in Ireland, which if proved would sustain the claim. It could not be produced. Several witnesses from the neighbourhood swore that they saw the tombstone and inscription about twenty years ago. There was no discrepancy in their statements, and no witnesses called to contradict them. The House held, that the evidence of the existence of the tombstone and of the inscription was not sufficient; and that the neglect of the claimant to produce the evidence earlier raised suspicions, which would only be removed by producing the stone, or calling witnesses of greater credit from the neighbourhood. These positions lead immediately to an inquiry into the nature and force of indirect or circumstantial evidence."

§ 793. Nothing which tends to throw light upon this part of our subject, should be omitted, because the more the office of the judge is facilitated, the greater the probability of his coming to right decisions upon the evidence submitted to him. With this view I shall give in some detail the luminous observations of Bentham.

§ 794. In judging of direct testimony, the two most valuable qualities are,

1st. Correctness.

2nd. Completeness. (•)

And the object of the following analysis is thus described by Bentham,(f)

1st. To give a view of the cases in which falsehood is incapable of being prevented.

2nd. To save the judge from imputing mendacity where there

is none.

3rd. To facilitate the recognition of mendacity where it exists. 4th. To suggest copies for examination and interrogation, with a view to elicit truth.

§ 795. It is essential to have a clear view of the modes in which incorrectness may exhibit itself.

First.-Falsehood may be expressed.

1st. By positive assertion.

2nd. By negation.

3rd. By alleged or pretended ignorance.

Mendacity has various designations according to the mode in which

On this point, we must consult Bentham who thus writes.(g)

"1. Where, for impressing on the mind of the individual in question the desire and endeavor to steer clear of falsehood by adhering to the line of truth, the sort of ceremony known by the name of an oath (of which further on) has been employed: mendacity in this case has received the name of perjury.

"2. When the mendacious assertion has had for its subject-matter an article of written evidence; being employed in the endeavor to obtain credence for a spurious script fabricated, or a genuine one altered for the purpose of deception; it has received the name of forgery: though, in strictness of speech, the appellation of the forgerer belongs only to the man, who, for the purpose in question, fabricates or alters the script; and who, for the application of it to its intended criminal purpose, frequently trusts to some other individual, by whose mendacious representations endeavors are to be used for causing it to pass for true. In this case, if the criminal labor be divided between two persons, and the appellation of forgerer be applied. to both, the one may be distinguished by the name of the operative forgerer, the other by that of the uttering exhibiting, or circulating forgerer. In this shape, even when employed on a judicial occasion, the false conception may be conveyed, the mendacity uttered, by deportment, as well as by language.

"3. Mendacity considered as having deception for its object (and it seems difficult to conceive it without ascribing to it a reference to that object) has received the general name of fraud. When, for the conveyance of the false conception, language is employed,-mendacity is the term more likely to be used: when deportment,-fraud.

"4. When the mendacity, the fraud, has for its subject-matter the person of any determinate individual; consisting in the endeavor to cause one person to be taken for another; it has in English obtained the name of per

(g) Page 306 note.