$5. WITNESSES "to difcern this fituation when it fhall happen, and not to any lawyer to furnish a rule before hand, by which to dif- -one. tinguish such a cafe from others." THE evidence of fingle witneffes has been held fufficient even to establish feparate acts of the fame crime . CIRCUM PRESUMP VI. EVIDENCE founded on circumftances alone, with$6. out any direct testimony to the fact in question, is often ir- STANTIrefiftible to the mind, and in many crimes is the only fort of ATE, OR evidence that can ordinarily be obtained. But as in cafes of tive evipure circumftantial evidence it is always poffible that the DENCE, prifoner may not be guilty, or that the fact in question may Its peculiabe otherwife, although every particular be true to which the rity. witneffes have fworn, much caution and referve are neceffary in founding entirely upon it. At the fame time, however, fuch is the difficulty of contriving an apt and coherent train of circumstances, that perjury is by far the most easily detected in cafes of this defcription". Prefumptions are as various and unlimited as the facts themselves, but are redu- tion. ced by lawyers to three different claffes; 1ft, juris et de jure; or, 2dly, juris; or, 3dly, hominis vel judicis. Divifion of prefump THE prefumption juris et de jure, takes place where law Prefump. In July 1738. Thomas Soutar, " against the pannel Mr. James Hog, proven in fundry facts, each fact tion juria et de jure. $6. CIRCUM STANTI ATE, OR TIVE EVI DENCE. or custom establishes the truth of any point on a presumption, so that its effect cannot be traverfed by any contrary evidence. PRESUMPTIO juris is taken for true, only till the contion juris. trary fhall appear to the judge to be fupported by stronger Prefump Prefumption bominis. $ 7. GENERAL RULES. If, Not on private knowledge. evidence. PRESUMPTIONES hominis vel judicis, differ from prefumptiones juris only in this, that the latter are laid down in our ftatutes, or established by cuftom or decifions, whereas the former emerge from the various circumftances of the special cafes, and have more or less weight with the judge, according to the several degrees of evidence which they carry with them. They have frequently the force to over-rule a prafumptio juris, efpecially when it is of that kind which owes its whole force to the want of contrary evidence. Thus a deed may be declared forged from a concurrence of circumstances tending to invalidate it, notwithstanding the prefumption of law that all deeds are genuine. VII. SOME things which did not fall under any of the foregoing heads, or were not so fully noticed as they deserve, may be mentioned here in general, as acknowledged principles to direct us in judging of evidence. FIRST, then, no juftice of the peace must be influenced by his private knowledge, but muft judge folely upon the evidence judicially laid before the feffions. FOR example, if a complaint be laid before the feffions against an individual, as guilty of poaching, any of the juftices who happened to have feen him with his gun, may be a competent witness. But, fitting upon the beach, a Ersk. b.iv, tit. 2. GENERAL he can neither lawfully communicate that private knowledge as a ground of decifion to his brethren, nor proceed RULES. himself upon it. If fufficient legal evidence be not laid before the judge, the defender muft be acquitted. Although the extreme cafe can seldom occur, the rule in general is important, and the neglect of it produces much injuftice and inconvenience. It opens a door to the very dangerous habit of being influenced by private prejudices. Every juftice of peace, or other judge, who determines a cause without a jury, is himself an aflize; and whatever may have been the idea formerly, it is now understood, "that no jury are warranted to convict, except on such "proof as is external, if I may so speak, to themselves, "and arifes from teftimonies of guilt, which are publicly "produced to them, and not from the private knowledge of "the perfons of the affize, or any of them "." ་ "FROM this power, it nowife follows, and far be it " from me (adds Mr. Hume ), to teach any fuch doctrine, "that it can ever be warrantable to a jury to convict on any, though apparently decifive, evidence, if it is any how "known to themselves, or any of them, to be falfe or in"conclufive. But it cannot be inferred from this neceffary "reftraint, which to violate it in any cafe would be perju ་ ry, and in capital cafes murder; that it therefore is al"lowable to convict a perfon in respect of private knowledge, against whom no lawful evidence has been obtain"ed c." gal evi AFTER what was faid upon the equitable powers of jufti- 24, Mut ces, under the small debt act, it need fcarcely be added, that judge by le juftices of peace proceed according to legal evidence; which dence, may indeed be different in different cafes. Thus the oath of $7. GENERAL RULES. 3d, The best evidence that can be the party in some cases, and in others one witness is allowable by special statute, which makes it so far legal evidence. But the justices of peace have no powers to relax the rules of evidence; for example, to rest upon the evidence of one witness, how refpectable foever, where two are neceffary, nor compel the defender to give his oath, where that is contrary to common law, and not commanded by particular statute. Ir is a general rule that runs through all the law of evidence in all caufes whether civil or criminal, that the best had necef- evidence the nature of the cafe will admit of shall always fary. be required, if poffible to be had; but if not poffible, then the best evidence that can be had fhall be allowed. For if it be found that there is any better evidence exifting than is produced, the very not producing it is a prefumption that it would have detected fome falfehood that at present is concealed. Penuria teftium. No rule of law is more frequently cited, and more generally misconceived, than this. Evidence may be divided into primary and secondary. The latter is as much legal, and as accurately defined by law, as the former. If the primary cannot be obtained, the second is admiffible. But the want of legal evidence will not justify the admiffion of what is not legal evidence; as interested witneffes, or copies of copies; or, in cafe of the death or abfence of a material witness, evidence of what he may have faid before his death or departure; the rule fignifying only, that if the best legal evidence cannot be produced, the next best legal evidence fhall be admitted. For though the party muft produce the best evidence he has it does not follow, that bad evidence is legal, merely because he has no better. THE nature of this rule, and the neceffary limitation of a Chriftian's Blackftone, vol. iii, p. 367, N. 10. GENERAL it, may be illustrated by the latitude allowed in cafes of pemaria teftium to examine perfons, whose relationship, or non- RULES. age, or other circumftances, would make them inadmiffible. It is not enough that there is a fcarcity of good witnesses, whether that be owing to accident, or the party's delay in bringing the action. The penuria, to have such legal effects, muft arife from the nature of the cafe; depending upon occult facts; which ftrangers could not be expected to know, but they only who are connected with the family. In like manner, as repelling entirely the evidence of children in the cafes of personal injuries (such as rape), where the child is the party injured, would, in fome measure, be denying them the protection of the law, the court will more readily admit children in fuch cafes than on a question between other parties; "and perhaps, in fuch cafe, would " even admit the infants to be examined without oath "," but under all the caution that their levity and want of experience requires. dence. FOURTH.-The illuftration used above naturally leads us 4b, Hear to notice the very important rule against the admiffion of fay evihearfay evidence, except in a few cafes, the nature whereof admits not direct and pofitive proof; as in questions of pedigree, or of prescription, or cuftom; wherein the evidence of any one living witness, as to what paffed within his own memory, would, in the one cafe, generally, in the other, always, be infufficient. "Thus, in any difpute about a right way, or road, or other right of fervitude, declarations "made by the deceased tenant at the time he was poffeffed, "of whom he held, are good evidence b." « of HEARSAY is justly rejected; for no evidence is admissible a Buller's Nifi prius, p. 293. b Ibid. p. 295. Davis v. Pearce, 2 T. Rep. § 3. |