of interest-a mode, which, I believe, can be rationally accounted for only by this last consideration. A witness, who is suspected to be interested, may be examined. upon his voir dire-in other words, he may be required to declare, upon oath, whether he is interested or not. This mode of proceeding obviously supposes him honest as well as interested. For if it supposed him dishonest, would not the conclusion be irresistible-that he who ought not to be believed when he gives his testimony in chief, as it is called, ought as little to be believed, when he gives his testimony on his voir dire? That involuntary and unavoidable bias which interest sometimes impresses on the mind, and which, of consequence, may affect the testimony of the offered witness, is deemed by the law a sufficient reason for his exclusion from testimony. If he whose testimony may deceive, merely because he is interested, though he be honest, shall for this reason be excluded; shall we admit the testimony of one who is false, though he be disinterested? The former is rejected, because he may be biassed involuntarily; for the danger of even an involuntary bias is, for this purpose, sufficient and shall one, whom interest has biassed voluntarily and infamously-shall such a one be received? On good grounds, therefore, are persons infamous excluded from giving testimony. That evidence which arises from testimony is, in the law, denominated positive. There is another kind, which the law terms presumptive. When the fact itself cannot be proved by witnesses, that which comes nearest to such proof is, the proof of such circumstances, with which the fact is either necessarily or usually attend ed. This is presumptive evidence. When those circumstances are proved, with which the fact is necessarily attended, the presumption is said to be violent: when those circumstances only are proved with which the fact is usually attended, the presumption is said to be only probable. m Presumptive proof, as described by the common law, coincides with that species which, in our general view of the sources of evidence, we saw rising from experience. On that, occasion," it was observed, that if an object is remembered to have been frequently, still more, if it is remembered to have been constantly succeeded by certain particular consequences, the conception of the object naturally associates to itself the conception of the conséquences; and on the actual appearance of the object, the mind naturally anticipates the appearance of the consequences also that if the consequences have followed the object constantly, and the observations of this constant connexion have been sufficiently numerous; the evidence produced by experience amounts to a moral certainty: that, if it has been frequent, but not entirely uniform; the evidence amounts only to probability, and is more or less probable, as the connexion has been more or less frequent. Violent presumption, as it is termed by the law, or moral certainty, as it is denominated by philosophy, amounts to full proof:. probability, or probable presumption, has also its due weight. The coincidence between philosophy and law is a coincidence which, to the friends of both, always gives pleasure. m 3. Bl. Com. 371. Ante vol. 2. p. 100. P 3. Bl. Com. 372. It ought to be observed here, that, in cases of a capital nature, all presumptive proof should be received with caution for the law benignly holds/that it is more eligible that ten guilty persons should escape, than that one innocent person should suffer a capital punish ment. After the evidence is heard, the jury are next to consider what verdict they ought to give upon it; for they are sworn, as we have seen, to give a true verdict according to their evidence. To give a verdict is the great purpose for which they are summoned and empanelled. Till they give a verdict, therefore, they cannot be discharged. This verdict may either be special-in other words, it may state particularly the facts arising in the cause, and leave to the court the decision of the law resulting from those facts; or it may be general-in other words, it may determine both the facts and the law. A general verdict is either guilty or not guilty: on a verdict of not guilty, the prisoner is discharged: by a verdict of guilty, he is convicted: on a conviction the judgment and the punishment pronounced and inflicted by the law regularly follow, unless they are intercepted by errour in the proceedings, by a reprieve, or by a pardon. 1 When a sentence of death is pronounced, the immediate and inseparable consequence, by the common law, is attainder. The law puts him out of its protection, considers him as a bane to human society, and takes no farther care of him than barely to see him executed: he is already considered as dead in law. There is, in capi tal cases, a great difference between a man convicted and one attainted. Till judgment is given, there is, in such cases, still a possibility of innocence in the contemplation of the law. r In England the consequences of attainder are forfei ture, escheat, and corruption of blood. Concerning these subjects we have already treated fully. I have now enumerated and described the several crimes, the several punishments, and the modes of prosecuting criminals. In doing this, I have conformed myself to the common law and to the improvements made upon it by the constitutions and laws of the United States and of Pennsylvania. 4. Bl. Com 373. THE END OF THE LECTURES ON LAW. |