THE DUTIES OF WITNESSES AND
JURYMEN.

I AM not a young man, and have passed
much of my life in our Criminal Courts. I
am, and have been, in active practice at the
Bar, and I believe myself capable of offering
some hints towards an improved administration
of justice.

I do not allude to any reform in the law,
though I believe much to be needed. I mean
to confine myself to amendments which it is
in the power of the people to make for
themselves, and indeed, which no legislature,
however enlightened, can make for them.

In no country can the laws be well administered,
where the popular mind stands at
a low point in the scale of intelligence, or
where the moral tone is lax. The latter
defect is of course the most important, but it
is so intimately connected with the former,
that they commonly prevail together, and the
causes which remove the one have, almost
without exception, a salutary effect upon the
other.

That the general diffusion of morals and
intelligence is essential to the healthy working
of jurisprudence in all countries, will be
admitted, when it is recollected that no
tribunal, however skilful, can arrive at the
truth by any other way than by the testimony
of witnesses, and that consequently on their
trust-worthiness the enjoyment of property,
character, and life, must of necessity depend.

Again, wherever trial by jury is established,
a further demand arises for morals and
intelligence among the people. It follows then,
as a consequence almost too obvious to justify
the remark, that whatever in any country
enlarges and strengthens these great attributes
of civilisation, raises its capacity for
performing that noblest duty of social man, the
administration of justice.

Let me first speak of witnesses and their
testimony. It is sometimes supposed that
the desire to be veracious is the only quality
essential to form a trustworthy witness; and
an essential quality it is beyond all doubt; but
it is possessed by many who are nevertheless
very unsafe guides to truth. In the first
place, this general desire for truth in a mind
not carefully regulated, is apt to give way,
oftentimes unconsciously, to impressions which
overpower habitual veracity. It may be laid
down as a general rule that witnesses are
partisans, and that, often without knowing it,
their evidence takes a colour from the feeling
of partisanship, which gives it all the injurious
effects of wilful falsehood—nay, it is frequently
more pernicious. The witness who knowingly
perverts the truth, often betrays his mendicity
by his voice, his countenance, or his choice of
words; while the unconscious perverter gives
his testimony with all the force of sincerity.
Let the witness who intends to give evidence
worthy of confidence, be on his guard against
the temptations to become a partisan.
Witnesses ought to avoid consorting together on
the eve of a trial; still more, discussing the
matters in dispute, and comparing their
intended statements. Musicians have observed
that if two instruments, not in exact accordance,
are played together, they have a
tendency to run into harmony. Witnesses are
precisely such instruments, and act on each
other in like manner.

So much with regard to the moral tone of
the witness, but the difficulties which I have
pointed out may be surmounted, and yet leave
his evidence a very distorted narrative of the
real facts. Consideration must be given to
the intellectual requirements of a witness. It
was the just remark of Dr. Johnson that
complaints of the memory were often very unjust
towards that faculty, which was reproached
with not retaining what had never been
confided to its care. The defect is not a failure
of memory, but a lack of observation—the
ideas have not run out of the mind, they
never went into it.

This is a deficiency, which cannot be
dealt with in any special relation to the
subject in hand; it can only be corrected by
cultivating a general habit of observation,
which, considering that the dearest interests
of others may be imperilled by errors arising
out of the neglect to observe accurately, must
be looked upon in the light of a duty.

A still greater defect is the absence of the
power of distinguishing fact and inference.
Nothing but a long experience in Courts of
Justice, can give a notion of the extent to
which testimony is adulterated by this defect.
It is often exemplified in the depositions of
witnesses, or rather in the comparison between
the depositions which, as your readers know,
are taken in writing before the committing
magistrate, and the evidence given on the
trial.

Circumstances on which the witness had
been silent when examined before the
magistrate shortly after the event, make their
appearance in his evidence on the day of
trial; so that his memory purports to augment
inaccuracy in proportion to their time which
has elapsed since the transaction of which he
speaks!

I have observed this effect produced in a
marvellous degree in cases of new trial, which
in civil suits are often awarded, and which,
frequently take place years after the event to
which they relate. The comparison of the
evidence of the same witness as it stands upon
the short-hand writer's notes of the two trials,
would lead an unpractised reader to the
conclusion that nothing but perjury could
account for the diversities; and this impression
would be confirmed, if he should find, as in
all probability he would, that the points on
which the latter memory was better supplied
than the earlier, were just those on which
the greatest doubt had prevailed on the
former occasion; and which were made in
favour of the party on whose side the witness