Part XVII.
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 toward 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 skillful, can arrive at the truth by any other way than by the testimony of witnesses, and that consequently on their trustworthiness 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 civilization, 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 color from the feeling of partisanship, which gives it all the injurious effects of willful 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 toward 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 imperiled 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.