had been called. But the critic would be
mistaken. The witness was not dishonest,
but had failed to keep watch over the
operations of his own mind. He had perhaps
often adverted to the subject, and often
discoursed upon it, until at length he confounded
the facts which had occurred, with the
inference, which he had drawn from such facts,
in establishment of the existence of others,
which had in reality no place except in his
own cogitation, but which after a time took
rank in his memory with its original
impressions.

The best safeguard a witness could employ
to preserve the unalloyed memory of transactions,
is to commit his narrative to writing,
as soon after the event as he shall have learnt
that his evidence respecting them is likely to
be required: and yet I can hardly recommend
such a course, because so little is the world,
and even that portion of the world which
passes its life in Courts of Justice, acquainted
with what may be called the Philosophy of
Evidence, that a conscientious endeavour of
this kind to preserve his testimony in its
purity, might draw upon him the imputation
of having fabricated his narrative; and this
is the more probable, because false witnesses
have not unfrequently taken similar means
for abiding by their fictions.

It is worthy of note how much these
disturbing causes, both moral and intellectual,
fasten upon these portions of evidence which
are most liable to distortion. Words, as
contra-distingushed from facts, exemplify the
truth of this position; every witness ought to
feel great distrust of himself in giving
evidence of a conversation. Language, if it runs
to any length, is very liable to be misunderstood,
at least in passages.

But supposing it to be well understood at
the moment, the exact wording of it can rarely
be recalled, unless the witness's memory were
tantamount in minuteness and accuracy to the
record of a shorthand writer. He is
consequently permitted to give an abstract, or, as
it is usually called, the substance of what
occurred. But here a new difficulty arises;
to abstract correctly is an intellectual effort
of no mean order, and is rarely accomplished
with a decent approach to perfection. Let
the juryman bear this in mind. He will be
often tempted to rely on alleged confessions
of prisoners sworn to by witnesses who
certainly desire to speak the truth. These
confessions often go so straight to the point, that
they offer to the juryman a species of relief
from that state of doubt, which, to minds
unpractised in weighing probabilities, is
irksome, almost beyond description. Speaking
from the experience of thirty years, I should
pronounce the evidence of words to be so
dangerous in its nature as to demand the
utmost vigilance, in all cases, before it is
allowed to influence the verdict to any important
extent.

While I am on the subject of evidence,
infirm in its nature, I must not pass over that
of identity of person. The number of persons
who resemble each other is not inconsiderable
in itself; but the number is very large of
persons who, though very distinguishable
when standing side by side, are yet
sufficiently alike to deceive those who are without
the means of immediate comparison.

Early in life an occurrence impressed me
with the danger of relying on the most
confident belief of identity. I was at Vauxhall
Gardens where I thought I saw, at a short
distance, an old country gentleman whom I
highly respected, and whose favour I should
have been sorry to lose. I bowed to him,
but obtained no recognition. In those days
the company amused themselves by walking
round in a circle, some in one direction, some
in the opposite, by which means every one
saw and was seen—I say in those days,
because I have not been at Vauxhall for a
quarter of a century. In performing these
rounds I often met the gentleman, and tried
to attract his attention, until I became
convinced that either his eye-sight was so
weakened that he did not know me, or that he
chose to disown my acquaintance. Some time
afterward, going into the county in which he
resided, I received, as usual, an invitation to
dinner; this led to an explanation, when my
friend assured me he had not been in London
for twenty years. I afterwards met the
person whom I had mistaken for my old
friend, and wondered how I could have fallen
into the error. I can only explain it by
supposing that, if the mind feels satisfied of
identity, which it often does at the first
glance, it ceases to investigate that question,
and occupies itself with other matter; as in
my case, where my thoughts ran upon the
motives my friend might have for not
recognising me, instead of employing themselves
on the question of whether or no the
individual before my eyes was indeed the person
I took him for.

If I had had to give evidence on this
matter my mistake would have been the
more dangerous, as I had full means of
knowledge. The place was well lighted, the
interviews were repeated, and my mind was
undisturbed. How often have I have known
evidence of identity acted upon by juries,
where the witness was in a much less favourable
position (for correct observation) than
mine.

Sometimes, a mistaken verdict is avoided
by independent evidence. Rarely, however,
is this rock escaped, by cross-examination,
even when conducted with adequate skill and
experience. The belief of the witness is belief
in a matter of opinion resulting from a
combination of facts so slight and unimportant,
separately considered, that they furnish no
handle to the cross-examiner. A striking case
of this kind occurs to my recollection, with
which I will conclude.

A prisoner was indicted for shooting at the