you shall not believe him. To prevent this act or operation of the mind might be impracticable on hearing the witness: but it says-you shall not hear him. Accordingly, every gentleman, in the least conversant about law proceedings, knows very well, that the qualifications and solemnities enumerated by the learned Judge, are requisite to the competency, not to the credibility, of the witness-to the admission, not to the operation, of his testimony.

The proceedings of the common law are founded on long and sound experience; but long and sound experience will not be found to stand in opposition to the original and genuine sentiments of the human mind. The propensity to believe testimony is a natural propensity. It is unnecessary to encourage it; sometimes it is impracticable to restrain it. The law will not order that which is unnecessary: it will not attempt that which is impracticable. In no case, therefore, does it order a witness to be believed; for jurors are triers of the credibility of witnesses, as well as of the truth of facts. The positive testimony of a thousand witnesses is not conclusive as to the verdict. The jury retain an indisputable, unquestionable right to acquit the person accused, if, in their private opinions, they disbelieve the accusers. In no case, likewise, does the law order a witness not to be believed; for belief might be the unavoidable result of his testimony. To prevent that unavoidable, but sometimes improper result, the law orders, that, without the observance of certain precautions, which experience has evinced to be wise and salutary, the witness shall not be heard. This I apprehend to be the true exposition and meaning of the regulations prescribed

s Eden's Pen. Law. 169. 170.

by the law, before a witness can be admitted to give his testimony.

It will be pleasing and it will be instructive to trace and explain the harmony, which subsists between those regulations, thus illustrated, and the genuine sentiments of the mind with regard to testimony. To discover an intimate connexion between the doctrines of the law and the just theory of human nature, is peculiarly acceptable. to those, who study law as a science founded on the science of man.,

In In a former part of these lectures," I had occasion to take notice of the quality of veracity, and of the corresponding quality of confidence; and to show the operation and the importance of those qualities in promises, which relate to what is to come. It is material to illustrate the connexion, the importance, and the operation of the same corresponding qualities in testimony, which relates to what is past.

By recalling to our remembrance what we have experienced, we find, that those, with whom we have conversed, were accustomed to express such and such particular things by such and such particular words. But, in strictness, experience conveys to us the know. ledge only of what is past: can we be assured, that, in future, those who have it in their power to express

* Parum est jus nosse, says Justinian in hîs institutes (1. 1. t. 2. s. 12.) si personæ, quarum causa constitutum est, ignorentur. It is to little purpose to know the law, if we are ignorant concerning the persons, for whose sake the law was constituted.

"Ante vol. 1. p. 292.

different things by the same words, and the same things by different words, will, in neither manner, avail themselves of that power? We act, and we cannot avoid acting, as if we were so assured. On what foundation do we so act? Whence proceeds this belief of the future and voluntary behaviour of those, with whom we converse? Have they come under any engagements to do what we believe they will do? They have not; and if they had, what assurance could engagements convey to those, who possessed no previous reliance on the faith of promises?

There is, in the human mind, an anticipation, an original conviction, that those, with whom we converse, will, when, in future, they express the same sentiments, which they have expressed in time past, convey those sentiments by the same language which, in time past, they have employed to convey them. There is, in the human mind, a farther anticipation and conviction, that those, with whom we converse, will, when they express to us sentiments in the same language, which they have formerly employed to express them, mean, by those sentiments, to convey to us the truth.

The greatest and most important part of our knowledge, we receive by the information of others. We are, accordingly, endowed with the two corresponding principles, which I have already mentioned, and which are admirably fitted to accomplish the purpose, for which they were intended. The first of them, which is a propensity to speak the truth, and to use language in such a manner as to convey to others the sentiments, which we ourselves entertain, is a principle, degenerate as we are apt to think human nature to be, more uniformly and

more universally predominant, than is generally imagined. To speak as we think, and to speak as we have been accustomed to speak, are familiar and easy to us: they require no studied or artificial exertion: a natural impulse is sufficient to produce them. Even the most consummate liar declares truths much more frequently than falsehoods. On some occasions, indeed, there may be inducements to deceive, which will prove too powerful for the natural principle of veracity, unassisted by honour or virtue : but when no such inducements operate, our natural instinct is, to speak the truth. Another instinct, equally natural, is to believe what is spoken to be true. This principle is a proper and a useful counterpart to the former.

.

A very different theory has been adopted by some philosophers. No species of evidence, it is admitted by them, is more common, more useful, and even more necessary to human life, than that which is derived from testimony. But our reliance, it is contended, on any evidence of this kind is derived from no other principle than our observation of the veracity of human testimony, and of the usual conformity of facts to the reports of wit nesses. If it were not discovered by experience, that the memory is tenacious to a certain degree; that men have commonly a principle of probity and an inclination to truth; and that they have a sensibility to shame, when detected in a falsehood-If it were not discovered by experience, that these qualities are inherent in human nature; we should never repose the least confidence in human testimony. ▾

v 2. Hume's Ess. 119. 120.

If belief in testimony were the result only of experience; those who have never had experience would never believe; and the most experienced would be the most credulous of men. The fact, however, in both instances, is precisely the reverse; and there are wise reasons, why it should be so. The propensity which children, before they acquire experience, discover to believe every thing that is told to them, is strong and extensive. On the contrary, experience teaches those who are aged, to become cautious and distrustful.

"Oportet discentem credere" has acquired, and justly, the force and the currency of a proverb. How many things must children learn and believe, before they can try them by the touchstone of experience! The infant mind, conscious, as it should seem, of its want of experirience, relies implicitly on whatever is told it; and receives, with assurance, the testimony of every one, without attempting and without being able to examine the grounds, upon which that testimony rests. As the mind gradually acquires experience and knowledge, it discovers reasons for suspecting testimony, in some cases, and for rejecting it, in others. But unless some reasons appear for suspicion or disbelief, testimony is, through the whole of life, considered and received as sufficient evidence to form a foundation both of opinion and conduct.

The reasons for suspecting or rejecting testimony may generally be comprised under the following heads. 1. When the witness testifies to something, which ap. pears to us to be improbable or incredible. 2. When he shows himself to be no competent judge of the matter, of which he gives testimony. 3. When, in former instances, we have known him to deliver testimony, which has