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Witnesses, liable to punishment in case of false testimony, and who thereby share in danger with the contending parties, are examined empt from only to learn from them whether a position is, suspicion or is not, true; whether an event has, or has not, temporary happened. Their business is simply to declare witnesses. the things said or done; but, concerning the quality of those things, their justice or their utility, they are not deemed impartial enough, or intelligent enough, to be consulted. It is quite otherwise with witnesses remote from the their judgment is of avail precisely in those particulars, especially the judgments given in preceding ages of the world, and, therefore, totally exempt from the suspicion of corruption How testi- or partiality. The arguments relative to witbe assailed nesses, are, in the first place, when not suffi or upheld. ciently provided with them, that decisions ought to be guided by probability and reason; that evidence of this kind is not to be bought, deceived, or intimidated; a judge will best evince his discretion in listening to proofs beyond exception, and which cannot, as often happens to witnesses, be convicted of falsehood and perjury. The party best provided with witnesses must view the matter under another aspect. He will allege that probabilities and conjectures may deceive as well as witnesses; and when they do so, are not, like witnesses, obnoxious to punishment: that if arguments drawn from signs and likelihoods were alone sufficient to substantiate the truth of facts, the wisdom of all ages would not, for this purpose, have had recourse
to testimony. The declarations of witnesses CHAP. may relate either to our client, or to his adversary; either to the transaction itself, or to the manners and character of the agents. Under all these variations, the evidence of witnesses may generally be turned to account: they may be made to explain the business in the way most favourable to our own views, or most prejudicial to those of our opponent; and to indicate dispositions fair and good on our side, iniquitous and mischievous on the part of our adversary. As to the other distinctions concerning witnesses, whether they be friends, enemies, or altogether impartial; whether persons respectable, contemptible, or of an intermediate character, the argumentation regarding these and other differences, with a view that the evidence given may be either fortified or invalidated 1, must be entirely drawn from the topics above produced, concerning virtue and utility, and those that will immediately be exhibited, concerning the affections and passions.
In contracts, the third kind of inartificial 3. Conproofs, the pleader's address may be employed to be at to enforce or weaken the obligation of them; to tacked or show that they have, or have not, been entered into. When they make in our favour, our endeavour must be to show the reality of their existence, and the expediency of maintaining them; when against us, they must by all means be discredited, which is done in the same way in
8 Aristotle says, "the topics from which enthymemes are taken;" meaning those specified in the text.
BOOK which we discredit the testimony of witnesses: for faith in a contract depends solely on our confidence in those who have signed it, and those who have been its depositaries. The contract being sufficiently substantiated, and its conditions being favourable, the necessity of maintaining it may be clearly evinced, since contracts are nothing but particular and private laws, binding those who enter into them. These partial engagements, indeed, do not give authority to public and general laws; but the latter fully sanction the former, when made in the spirit of them; and the written law of states is itself a species of contract, so that to destroy the power of contracts, would be to abrogate and abolish law. Of human transactions, almost all those that are voluntary depend on stipu lation and mutual engagement, so that were the authority of compacts to be easily invalidated, all those reciprocal aids would be taken away and destroyed, which men render to each other in the endless variety of their complicated exigencies. These and similar arguments may be employed, when the covenant is in our favour: but when it ranks on the side of the adversary, we may combat it by the same weapons that are used against an iniquitous law. Strange, indeed, that even laws should be set aside when they appear to militate against justice and utility, and that contracts, equally reprehensible, should still be sustained! As in the Olympic games there are umpires to decide the prize of strength and velocity, so the judge is an umpire to decide
the prize of justice: superiority in this virtue CHAP. ought to be the sole object of his regard; this alone ought to command his decision, especially since the clear dictates of justice are neither to be warped by fraud, nor broken through by force, being indelibly impressed by nature on the human heart: whereas contracts are the work, sometimes of fraud, and sometimes of compulsion. We must also consider whether the contract in question be not in opposition to some written law or custom, or to some rule of equity; and whether it be not invalidated by some other contract, prior or posterior to it; for as both cannot be supported, we should thus have an opportunity of urging the arguments against either of them which we desire to invalidate. It is essential, also, to examine whether the contract we resist be not at variance with the public conveniency and interest, or with the interest and credit of the judges before whom we plead; which, and other topics of a similar kind, the nature of the subject will readily suggest.
As to the question, or examinations by torture, 4. Examithe fourth kind of inartificial proofs, the whole torture, reasoning concerning them may be included with- arguments in a narrow compass. They are seemingly entitled ing it. to much weight, because, in them, the truth appears to be extorted by force: whoever would avail himself of such evidence must dwell, therefore, on this circumstance, and amplify confession by torture, as the surest and most irrefragable of all convictions. The adverse party, again, will maintain, and maintain with truth, that the qua
BOOK lity of the evidence, true or fallacious, has nothing to do with the force by which it is obtained; that men of firm minds will resolutely conceal what is true, and that men of an opposite character will weakly confess what is false, the sooner to get rid of their immediate sufferings. Of this the pleader may easily furnish himself with examples, many of which cannot fail to occur to the judges.
Evidence on oath, the fifth and last of inar. the simple tificial proofs, comprehends the four following cerning cases a man may be ready alike to take his their com- own oath, and to refer the matter to his adverplications. sary's; he may refuse to do either; he may be willing to refer to his adversary's oath, but unwilling to take his own; or, the reverse of this, he may be willing to take his own, but unwilling to refer to that of his adversary. Besides these, the only possible distinctions, the pleader has also to consider, whether either of the parties has already made oath in the cause, and which of them has done so. To justify the refusal of an appeal to the conscience of our adversary, we may maintain that the voice of this internal monitor is but too often stifled through passion or interest; that our opponent wishes nothing better than to be allowed to give his oath, in order to withhold from us our right; that confiding in the goodness of our cause, we trust, that without the formality of swearing him, the judges will see abundant reason to condemn him ; and that, if we were reduced to the necessity of trusting to such proofs as oaths, we should far rather confide in those officially taken by our