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THE

LAW MAGAZINE AND REVIEW.

No. IV. VOL. III.-APRIL, 1874.

I-.THE RULES OF EVIDENCE AS APPLICABLE

TO THE CREDIBILITY OF HISTORY.*

BY WILLIAM FORSYTH. Esq., Q.C., LL.D., M.P.

To believe without any evidence at all is irrational; but to

TO

dis believe against sufficient evidence is equally irrational. By sufficient evidence I mean such an amount of proof as satisfies an unprejudiced mind beyond all reasonable doubts Mathematical truth alone admits of demonstration. All other kinds of truth can only be proved by probabilities, which vary in an almost infinite degree, from the faintest kind of presumption to what is called moral certainty, which is accepted as practically equivalent to demonstration.

Upon evidence depends all our knowledge of past events; and it is astonishing how little is often sufficient to satisfy us. The mere fact of its being written in a book is enough to make no inconsiderable number of readers believe in the truth of a statement, without reflecting whether the author had or had not the means of ascertaining the truth; for if he had, we may be justified in putting faith in his honesty ; but if he had not, his own assertion is worth nothing.

By proof I mean anything that serves, either mediately or immediately, to convince the mind of the truth or falsehood

* Read at a meeting of the Victoria Institute ; or the Philosophical Society of

Great Britian, March 2, 1874.

of a fact or proposition; and proofs differ according to the subject-matter of the thing to be proved.

One of the most common, and, at the same time, most satisfactory modes of proof as to things which do not fall within the experience of the senses, is Induction, by which is meant the inference drawn from proved or admitted facts. It is for instance by induction that the general facts of Natural History are proved. When we say that all ruminant animals are cloven-footed, we cannot show any necessary connection between these physical phenomena, but having ascertained by a very large number of instances that they co-exist, and that in no single case that has come under the observation of naturalists they fail, we are led irresistibly to the conclusion that the proposition is universally true, and we should predicate with confidence if a new race of animals were discovered in some hitherto unknown region, that if they are ruminants they are also cloven-footed. The underlying ground of belief in this case is our innate conviction of the prevalence of uniformity in Nature in things of the same kind. This uniformity we call a law.

One test of the probability of a fact is its consistency with other facts previously known or admitted to be true, such as the constitution of human nature, the ordinary course of events, or some well-established trnth. But it must be borne in mind, as Laplace has said, although in a different sense, that “Probability has reference partly to our ignorance, partly to our knowledge.” We must be tolerably sure we do know the other facts, and that they are not really inconsistent with the fact in dispute. Otherwise we shall be following the example of the King of Siam, who rejected as incredible the statement of the Dutch Ambassador, that water could become a solid mass. This was simply because he had never seen or heard of it before; and it was contrary to his limited experience, or what he thought a law of nature. Hume felt the difficulty of this instance in the way of his argument against miracles, and attempts to get over it by saying that though the fact was not contrary to the king's

experience, it was not conformable to it. But this is not a fair way of putting it. Frost was contrary to the king's experience as much as walking on the water without support is contrary to ours. And it cannot be denied that when by universal experience certain laws of nature are known to exist, it requires the strongest possible evidence to make us believe in any deviation from them. Hume's famous argument against miracles is, that no testimony is sufficient to establish a miracle, unless the testimony be of such a kind that its falsehood would be more miraculous than the fact, and that no human testimony can have such force as to prove a miracle, because it is always more likely that the testimony should be false than that the miracle should be true.

The late John Stuart Mill has dealt with this argument in his Logic, and, I think, conclusively. He says that Hume's celebrated doctrine, that nothing is credible which is contrary to experience, or at variance with the laws of nature, is merely the very plain and harmless proposition that whatever is contrary to a complete induction is incredible. And he goes on to show that any alleged fact is only contradictory to a law of causation when it is said to happen without an adequate counteracting cause. Now,” says Mill, “in the case of an alleged miracle the assertion is the exact opposite of this .... A miracle is no contradiction to the law of cause and effect; it is a new effect supposed to be produced by the introduction of a new cause.” He adds, truly enough, “That if we do not already believe in supernatural agencies no miracle can prove to us their existence.” And we may freely admit with him, that “there is an antecedent improbability in every miracle, which in order to outweigh it, requires an extraordinary strength of antecedent probability derived from the special circumstances of the case." I shall have occasion to allude to the subject of miracles again hereafter.

History, from the Greek 'Iotopía, properly signifies “investigation ” or “ research,” and implies, therefore, etymologically, a narrative based upon inquiry about facts.

Few persons consider what the evidence is of the genuine

ness of books attributed to authors who lived before the invention of printing, most of which are derived from manuscripts which themselves were only copies, the originals having been utterly destroyed or lost. This includes all the histories of Greece and Rome written by classic authors. I have dealt with this subject in a lecture I delivered in 1872, in the Hall of the Inner Temple, which has since been published under the title of History of Ancient Manuscripts.* I have not time to enter upon it here, but it is a very interesting subject of inquiry. I will only mention what Tischendorf, the great German Biblical scholar says, about the manuscripts of the New Testament: "Providence has ordained for the New Testament more sources of the greatest antiquity than are possessed by all the old Greek literature put together."

In one of his essays Lord Macaulay says of history : Perfectly and absolutely true it cannot be: for to be perfectly and absolutely true, it ought to record all the slightest particulars of the slightest transactions-all the things done, and all the words uttered during the time of which it treats. The omission of any circumstance, however insignificant, would be a defect. If history were written thus, the Bodleian library would not contain the occurrences of a week.” And Lord Macaulay might have added that no one would care to have such a mass of useless verbiage in existence. He is surely wrong in saying that history is not absolutely true simply because it does not give us all the particulars of the slightest transactions. Even in a court of justice we do not think that a witness is not telling the absolute truth because he does not relate every particular, however insignificant, of the fact or conversation to which he deposes. And this leads me to consider the difference between historical and judicial evidence. The late Sir George Cornewall Lewis says, in that most valuable and learned work, The Credibility of the Early Roman History (preface, p. 16), “ Historical Evidence, like judicial evidence, is founded on the testimony of credible witnesses. Unless those witnesses had personal and imme

* Law Magazine and Review, for June, 1872.

diate perception of the facts which they report, unless they said and heard what they undertake to relate as having happened, their evidence is not entitled to credit. As all original witnesses must be contemporary with the events which they attest, it is a necessary condition for the credibility of a witness that he be a contemporary, though a contemporary is not necessarily a credible witness. Unless, therefore, a historical account can be traced by probable proof to the testimony of the contemporaries, the first condition of credibility fails.” If, however, it is meant to be asserted that the same degree of certainty ought to be required in historical that is required in judicial evidence, it would be exacting too much, and carrying scepticism too far. In the first place, the thing is an impossibility, and the consequence would be, that we should be logically compelled to withold our belief from nine-tenths of so-called historical facts about which we have really no doubt at all. But, secondly, the circumstances are wholly different. Judicial inquiries relate to minute and special facts in dispute, where two parties are opposed to each other, and it is the duty and interest of both to adduce the best evidence of which the thing to be proved is susceptible. And in all civilized communities, their systems of jurisprudence lay down technical rules of evidence-in some countries much more strict than in others—which circumscribe the range of proofs. For instance, in France, hearsay evidence is always admitted ; in England it is always excluded. In some parts of Germany a sort of arithmetical scale is applied to the testimony of witnesses. Different countries apply different rules of legal presumption, which are really not instruments of truth, but technical and positive modes of quieting controversy. But, to quote the words of an eminent writer on the law of evidence, “However widely different codes may vary from each other in matters of arbitrary positive institution, and of mere artificial creation, the general means of investigating the truth of contested facts must be common to all. Every rational system which provides the means of proof must be founded on experience

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