3o8
THE GREEN BAG
Facts Principal and Evidentiary, Compound and Component, an Inference; a Coincidence; Bentham's Definition of Evidence; Divisions of Evidence; Evidence Immediate and Trans mitted, and the Comparative Force of These; Facts and Communications'; Evidence Direct and Circumstantial, and the Comparative Force of These; Negative Evidence; Bentham's Divisions of Evidence; Evidence Preappointed and Casual; Evidence Real and Personal; Evidence Original and Derivative. Of this Part I, let us say frankly that we can make little of it. The reason for this is not easy to state; for the style is lucid, if diffuse, and the author is well equipped both in profes sional and in general reading, and writes from a judicial and balanced mind. Per haps the real reason for the failure of this Part I to make upon us the impression of having achieved anything is that there can be, after all, no system of " natural evidence," apart from some specific body of legal rules, on the one hand, and from the canons of logic, on the other hand; hence the elaborate distinctions and definitions of this Part I may be predeterminately vain. Among the particular points, furthermore, which we defi nitely decline to believe is that there are "three sciences, Evidence, Induction, and Logic" (p. 16). Most of all, we decline to believe that ' ' the methods of circumstantial evidence are purely deductive " (pp. 106, 238); for this belief relegates all the difficul ties of evidence to our arid old friend. Bar bara Celarent, and gives no real help in the practical solution of those problems. Any one who will read Professor Alfred Sidgewick's book on " Fallacies: A View of Prac tical Logic," will appreciate that the induc tive form of an inference (or some equivalent of it) is the only serviceable form for any purpose but that of mental exercise. The deductive form is useful, perhaps, for testing a counsel's argument, but not for testing a rule of evidence. In Part II, however, we find more profitable reading. The author passes in review the chief rules of evidence; and his keen analysis exposes the fallacies of many common phrases and misguided shibboleths of the law. One need not accept the author's system of " natu ral evidence " in order to agree with him in
most of his criticisms upon the commonplaces of our treatises and our judicial traditions. For example, he effectively explodes (pp. 270, 338, 341, 349, 362) the ancient fallacy of treating " Documents " or " Writings " as a single subject of evidential rules — a fallacy found in the classification of almost every treatise since Gilbert. Documents, he points out, have entirely different aspects " accord ingly as on the one hand the act of the writer forms the very substance of the issue, or as, on the other hand, it amounts to a mere statement of the fact which we are seeking to ascertain;" and the practical applications of this to official documents are pointed out by him in detail. Again (p. 279} he corrects Bentham's fallacious use of the term " real evidence." This, he demonstrates, " is neither peculiarly the evidence of things, nor necessarily the proof of any particular kind of fact; it is the evidence furnished by the perceptive faculties of the tribunal applied to the fact itself, and whether the fact in question be the contents of a document, or the features of any material object, the proof of it is then and then only ' real ' when the fact is itself manifested to the senses of the tribunal." A recent writer's use of the term "autoptic preference " for this process has led to some uplifting of eyebrows; but what critics should rather notice is that Bentham's "real evidence " not only was a useless dis tinction, but has also been since misunder stood and applied in a different sense; and Mr. Gulson's analysis goes to show that the term is no longer fit for scientific discussion. Again Mr. Gulson neatly demonstrates (p. 334) the fallacy in principle of the rule in The Queen's Case (showing a witness's con tradictory writing to him before questioning him); this should the more speedily induce us to abolish that anomaly. Mr. Gulson also (pp. 389-391) does manful service in attacking the fallacies of the term " parol evidence," as applied to the rule determin ing the terms of a transaction. Professor Thayer exposed these fallacies; and it may now be hoped that perhaps some day our practice can after all be got to discuss this subject, in its everyday applications, in lan guage that does not constitute a disgrace to the • science of law. We even dream that
