The Sun.
London, England, 1850-06-21 00:00:00

LITERATURE.

A TREATISE on the PRINCIPLES of EVI-
DENCE and PRACTICE as to PROOFS in
COURTS of COMMON LA W ; with Ele-
mentary Rules for Conducting the Examination
and Cross. examination of Witnesses. By TV. M.
Best, A. 111., LL.B., of Gray's Inn, Esq., Barrister-
at-Law. Sweet, Chancery-lane.
We have been compelled from press of matter to
postpone from time to time our notice of a book of
great merit, which was added during the course of
last year to the legal literature of England, a work
calculated to elevate and extend the character of
British law writers, and reflect credit on the liberal
profession to which the author happily belongs. The
work to which we allude is Mr. Best's " Treatise on
the Principles of Evidence and Practice as to Proofs."
"My design," says Mr. Best, "is not to add to the
practical treatises by which the subject has been illus-
trated, but to examine the principles on which its rules are
founded, tracing them to their sources, and showing their
connexion with each other."
The great majority of modern law books are "prac-
tical"--that is, they enumerate and pre.ent in a con-
densed form, and under proper divisionary head, all
the "reported cases" and decisions of the judges
bearing, on the several subjects of which they profess
to furnish the law as it was and as it is. But the
law as it ought to be, or why it is, or whence it was,
are topics and inquiries which are deemed foreign and
theoretic, and out, of the legitimate province of the
" practical" writer. The result of this has hitherto
been that the majority of law books are, in fact, digests
or indexes of greater or less extent, and of various de-
grees of merit as to fidelity and arrangement. He
who can compile with must patience, and condense
with most accuracy, is the best qualified for such a
task—a task which requires care rather than compre-
hension, and is snore in need of mechanical than of
mental power. A practical work might, therefore,
be described as "one which gives the law but not
the reasons of it." As there are guide books to Lon-
don or Paris, and rade mecums to the surgeon and
chemist, so there are " practical treatises" for gentle-
men of Chet ong robe. The utility of such books is
obvious. In such a profession as that of the law,
where so much depends on precedent—where the
" case" of to-day is decided not so much with regard
to its own peculiar merits as with a tender solicitude
to make it square with the " case" reported yester-
day ; where so little is thought of "genera" and so
much of " species," the labours of the practical
writer have an excellence' and a charm which to the
uninitiated is wholly incomprehensible. Indeed, to
the " mere lawyer" such books plssess all the wisdom
of philosophy and all the beauty of rhetoric. A
mole's eye was never intended to embrace a landscape !
But to him who proposes to himself a loftier aim—to
him who would rather be right upon principle than
upon precedent—to him who would be logically true
as well as authoritatively correct, who would know
the philosophy as well as the practice of this noble
science, the writings of Blackstone or Sir William
Jones, of an Abbott or a Sugden, convey more plea-
sure, and are read with more delight, than the labours
of a Saunders, a Selwyn, a Chitty, or an Archbold.
To unite and reconcile both, to know law and the
reasons of it, is to b 3 a good lawyer. To know law
as it is reported, to be able to refer to the latest case,
or quote the last " dictum," is to be a mere lawyer.
For the latter the work of Mr. Best is neither adapted
nor intended. Its very title invites the perusal of
the former. His object was to supply what he con-
sidered a desideratum to his profession, a treatise on
the principles of the law of evidence, and a sketch of
the practice thereof considered as a science. His
book opens with what he modestly calls an " Intro-
duction," in which the author treats of those powers
of the human mind which are employed in the inves-
tigation of truth, and then proceeds to inquire into
the nature and character of judicial evidence in
general. His introduction is, in fact, a distinct philoso-
phical treatise, and has, we think, snore originality of
thought, novelty of design, and true utility, than
even the remarkable work to which it is prefixed.
" As the study of Natural Law," he well observes,
" precedes that of Municipal, so an inquiry into the na-
tural resources of the human mind for the investigation
ef truth should precede an examination of the artificial
means devised for its assistance."

Mr. Best considers the human understanding in
three views :-1. " With respect to the origin of our
perceptions and ideas." 2. " The, objects about which
it is conversant." 3. " The intensity of our persua-
sions as to the truth or falsehood of filets or proposi-
tions." In treating of the last, he speaks of " know-
ledge and judgment" as faculties of the human mind.
We are not metaphysicians and not prone to be hyper-
critical, but we should rather use the word " know-
ledge," as expressing a result, a state or condition of
the perceiving or reflecting mind, than as a distinct
faculty. Indeed, the definition Mr. Best supplies
rather strengthens our observation. "By knowledge,
strictly speaking," he says, is meant "when we have
an actual perception of the agreement or disagreement
of any of our ideas." Now how do we learn this
difference or consent but by judgment, and what is
our state when we have learned but that of know-
ledge ? Mr. Best has, however, the name and autho-
rity of Dr. Reid for the view he has propounded.
But we said we were not metaphysicians, and content
with an obiter remark, we shall not pursue this in-
quiry here. Mr. Best next observes :
" Actual knowledge and certainty extending a compa-
ratively little way, men are compelled to resort to judg-
ment, and act on probability in by far the greater num-
ber of the speculations and transactions in life.
An attempt has been made to express some of the shades
of judgment by the terms assurance, confidence, confident
belief, belief, conjecture, guess, doubt, wavering, dis-
trust, disbelief, &c."

Again, protesting as before, wo would just ask as we
pass, are not the shades of knowledge as infinite as
those of judgment ; and is not the accuracy of the
former dependent on the degree of the latter? But
jam satis ! we must not be too captious ; we must
not criticise an outline as though it were a portrait.
Mr. Best now approaches a more congenial field, and
having spoken of the mental powers busied in inves-
tigating truth, he next examines into the nature, in-
fluences, and securities of truth itself; and the gene-
ral character of human testimony.
" Proy;" says he " seems properly to mean anything
which serves, either immediately or mediately, to con-

vinee the mind of the truth or falsehood of -_a fact or

proposition, and as truths differ, the proofs adapted to
them differ also.
" The word Evidence signifies in its original sense the
state of being evident—i. e., plain, apparent, or note-
rious. But by a beautiful and almost peculiar inflexion
of our language, it is applied to that which tends to
render evident, or to geuerate proof."
These definitions are remarkably clear and exact, and
afford a fair example of Mr. Best's admirable style
of writing. Truth is conversant about facts, and
facts are divided by Mr. Best into three classes. 1.
Physical or psychological. '2. Events or states of
things. 3. Affirmative or negative. This corupre •
hensive use of the word " fact,' introduced first, we
believe, by the modern German philosophers, is par-
ticularly appropriate in expressing the subjects
evidentiary truth ; though perhaps "the non of
"ex
ence of a positive fact" is not so properly calledist.
a "negative fact," being rather a negative proposi-
tion, and fact implying something positive and exist-
ing. " Our persuasion," says Mr. Best, "of the ex
istence or non-existence of facts has its source either
in the operation of ousruopwnsepderception or intellectual
supposed faculties, or in the operation of the like
faculties on the part of others, evidenced either by
discourse or deportment." Having noticed the na-
tural tendency to belief in human testimony, which is
mainly attributed to our experience of the preponde-
rance of truth on the whole, Mr. Best remarks that
men in their discourse with one another " are secured
by three guarantees or sanctions" of truth—the "Na-
tural," the " Moral or Popular," and the" Religious.
Of the last of these it is well and forcibly observed,
"The Divine punishment for falsehood being pro-
spective and invisible, detracts much from the weight
of this sanction, and perjury is often committed by
persons whose religious faith cannot be doubted, but
who presumptuously hope by subsequent good con-
duct to efface its guilt in the eyes of Heaven !" In
estimating the credit due to human testimony, three
things, according to Mr. Best, are to be attended to.
1. 'Whether the witness labours under any interest or
bias. 2. His veracity on former occasions. 3. His
manner and deportment in delivering his testimony.
The capacity of a witness to give a faithful account
rests on four considerations. 1. His opportunities.
2. His powers of observation. 3. The degree of at-
tention excited. 4. His memory. The several kinds
of evidence—the distinction between " direct" and
" indirect," " circumstantial," "conclusive" and " pre-
sumptive" evidence—between evidence " real" and
,‘ personal," "original" and " derivative," " pre-ap-