But there are some instruments to whose validity some further circumstance is essential; and in such cases, that circumstance must also be proved. Thus where attestation by witnesses is essential to the document1 (as in the case of a bill of sale) it must be shewn to have been duly attested. To establish this fact one of those witnesses must, if possible, be produced: but if none of the attesting witnesses can be found2, the handwriting of one of them must be proved, and some evidence must be given as to the identity of the person who actually executed the instrument with the person who is under discussion in the litigation, unless the attestation clause itself sufficiently identifies him. Again, in the case of deeds the further ceremony of sealing is necessary (though any act by which the party adopts the seal will suffice); but where there is an attestation clause the courts will, if the signature be proved, accept this clause as sufficient evidence of sealing and delivery*.

(2) In the case of documents more than thirty years old (just as in questions of pedigree") the law of evidence is relaxed to meet the difficulties produced by the lapse of time. Such documents, if produced from a proper custody, "prove themselves," i.e., no express evidence of their genuineness need be adduced. Nor is it necessary that the custody from which such instruments come should be the most proper custody for them to be in; it is sufficient that the custody, though not the best, is a natural one, i.e., one which, under the circumstances of the particular case, appears to the judge

1 Wright v. Doe, 1 A. and E. 3. Cf. 7 C. and P. 574.

2 Crosby v. Percy, 1 Taunt. 364; Barnes v. Trompowsky, 7 T. R. 265.

3 Whitelock v. Musgrove, 1 Crom. and M. 511.

4 In re Sandilands, L. R. 6 C. P. 411. Cf. 7 Taunt. 253.

5 Supra, p. 370.

"Time with his scythe is ever mowing down the evidences of title; wherefore the law places in his other hand an hour-glass by which he metes out periods of duration that shall supply the place of the muniments the scythe has destroyed." Lord Plunket, L.C.

to be one naturally consistent with the genuineness of the document1. Thus although papers relating to an episcopal see properly pass on the death of one bishop to his successor in office, yet an ancient document would be allowed to "prove itself," if it were produced from the custody of a deceased bishop's descendants".

1 Doe v. Phillips, 8 Q. B. 158.

2 Meath v. Winchester, 3 Bing. (N. C.) 183.

CHAPTER XXVI.

RULES OF EVIDENCE PECULIAR TO CRIMINAL LAW.

IN criminal cases the general principles of Evidence are supplemented by some rules and modified by others, which do not hold good in civil litigation. Of these the following deserve explanation here.

Rule I. A larger minimum of proof is necessary to support an accusation of crime than will suffice when the charge is only of a civil nature.

Even in the latter case, e.g., in actions of debt, a mere scintilla of evidence would not warrant the jury in finding a verdict for the plaintiff, for there must (as we have seen') be so much evidence that a reasonable man might accept it as establishing the issue. But in criminal cases the presumption of innocence is still stronger2, and accordingly a still higher minimum of evidence is required; and the more heinous the crime the higher will be this minimum of necessary proof3. The progressive increase in the difficulty of proof as the gravity of the accusations to be proved increases, is vividly illustrated in Lord Brougham's memorable words in his defence of Queen Caroline:-"The evidence before us," he said, "is inadequate even to prove a debt-impotent to Supra, p. 326.

1 Supra, p. 343; cf. 13 C. B., N. S., 916.

The practical working of this is well shewn by the fact that whereas the average percentage of convictions on criminal indictments in general is about eighty, it is very much less on indictments for murder; e.g., in the statistical year 1900, out of 47 persons who (besides the 16 others who were shewn to be insane) were tried for murder, only 27 were convicted of it; i.e., less than fifty-eight per cent.

deprive of a civil right-ridiculous for convicting of the pettiest offence-scandalous if brought forward to support a charge of any grave character-monstrous if to ruin the honour of an English Queen"."

It was formerly considered that this higher minimum was required on account of the peculiarities of criminal procedure, such, for instance, as the impossibility of a new trial, and (in those times) the refusal to allow felons to be defended by counsel and to allow any prisoners to give evidence; and consequently that it was required only in criminal tribunals. This view is still taken in America; but in England it is now generally held that the rule is founded on the very nature of the issue, and therefore applies without distinction of tribunal. Hence, if arson be alleged as a defence by an Insurance Company when sued on a fire-policy, or forgery as a defence by a person sued on a promissory note, it cannot be established in these civil actions by any less evidence than would suffice to justify a conviction in a criminal court.

History shews how necessary is some such rule, emphatic and universal, in order to protect prisoners from the credulity which the shifting currents of prejudice will inspire about whatever offence, or class of offences, may for the moment have aroused popular indignation. No less enlightened a jurist than Bodin maintained, in an elaborate treatise, that persons accused of witchcraft ought to be convicted without further proof, unless they could demonstrate themselves to be innocent-" for to adhere, in a trial for witchcraft, to ordinary rules of procedure, would result in defeating the law of both God and man3."

1 Speeches, 1. 227.

2 Démonomanie, ed. 1598; bk. IV. ch. IV.

3 Similarly when in 1899 Esterhazy confessed in the Observer newspaper that he had forged the famous "bordereau," in order that the suspicions against Capt. Dreyfus might be eked out by some item of actual evidence, he justified himself by the plea that " on the trial of Spies, it is always necessary to forge some documentary evidence [fabriquer des preuves matérielles], or no spy would ever be convicted."

Whenever, therefore, an allegation of crime is made, it is the duty of the jury-to borrow Lord Kenyon's homely phrase "if the scales of evidence hang anything like even, to throw into them some grains of mercy1"; or, as it is more commonly put, to give the prisoner the benefit of any reasonable doubt. Not, be it noted, of every doubt, but only of a doubt for which reasons can be given; (for everything relative to human affairs and dependent on human evidence is open to some possible or imaginary doubts). "It is the condition of mind which exists when the jurors cannot say that they feel an abiding conviction, a moral certainty, of the truth of the charge. For it is not sufficient for the prosecutor to establish a probability, even though a strong one according to the doctrine of chances; he must establish the fact to a moral certainty, a certainty that convinces the understanding, satisfies the reason, and directs the judgment. But were the law to go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether?" As was said by Cockburn, C.J., in the Tichborne Case, "It must not be the mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question, and therefore takes shelter in an idle scepticism." Or as the same truth was expressed by a great Irish judge3, "To warrant an acquittal the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as, upon a calm view of the whole evidence, a rational understanding will suggest to an honest heart; the conscientious hesitation of minds that are not influenced by party, preoccupied by prejudice, or subdued by fear."

Accordingly, a verdict of acquittal does not necessarily mean that the jury are satisfied of the prisoner's innocence*;

Rex v. Hadfield, 27 St. Tr. 1354.

2 Per Shaw, C.J., on the trial of Prof. Webster (supra, p. 339), 5 Cushing. 3 Kendal Bushe, C. J., Dublin Univ. Mag. xvII. 85. 4 Supra, p. 343.