peoples is indicated in Romola by calling a certain precious stone "the ransom of a man.' "The account given by Herodotus of Xerxes' cutting a canal through the Isthmus of Athos, which is ridiculed by Juvenal, is much more strongly attested by Thucydides in an incidental mention of a place near which some remains of the canal might be seen,' than if he had distinctly recorded his conviction of the truth of the narrative." 2 6 Where there would be a presumption that if an institution had existed, an incident had occurred, a belief had been held, or the like, it would have been Negative or Silence. mentioned, the absence of such testimony is considered evidence of non-existence or nonoccurrence. The absence of any direct mention of the doctrine of a future life in the writings of Moses, has been considered proof that the Jews did not believe in the immortality of the soul. This is called the testimony of silence, or negative testimony. The absence for several generations of any mention of Bacon as the author of Shakespeare's plays, is strong evidence against the Baconian theory of authorship. Nothing is said in the New Testament about the defective eyesight of any of the disciples; a certain artist, therefore, was probably indulging a fancy when he painted some of them wearing spectacles. If a title of a book is not found in a certain publisher's catalogue, it is probably the publication of some other house. Property not named in a will along with other property, was probably not owned by the testator. A declaration in the presence of a party to a cause becomes evidence, as showing that the party, on hearing such a 1 George Eliot, Romola, Chap. ix. 2 Whately, Rhetoric, 84. 8 Rubens, Mary Anointing the Feet of Jesus. statement, did not deny its truth. If one is silent when he ought to have denied, the presumption of acquiescence arises. Failure to respond when summoned to defend a suit at law, is considered as confessing the claim. The absence from the college records of the name of a person who claims to have been a student or resident at the college, raises a strong presumption against his claim. This, according to Mr. Collins, is the case of Bolingbroke. Burke argues that the absence of evidence to show the quarrel of the Colonies to be with the trade-laws, makes it necessary to assign some other cause for their resistance to England, as taxation. He affords other examples of argument from silence in the same speech: Burke's Example. "We see the sense of the Crown, and the sense of parliament, on the productive nature of a revenue by grant. Now search the same journals for the produce of the revenue by imposition. Where is it? Let us know the volume and the page. What is the gross; what is the net produce? To what service is it applied? How have you appropriated its surplus? What! Can none of the many skillful index-makers that we are now employing find any trace of it? Well, let them and that rest together, But are the journals which say nothing of the revenue, as silent as to the discontent? Oh, no ! a child may find it. It is the melancholy burthen and blot of every page.' Where there has been no opportunity for collusion, the independent testimony of several wit- concurrent nesses to the same essential facts, is much Testimony. stronger than that of a single witness. They cies. might all agree by accident; but this is less likely 1 Select Works, I. 216. Discrepan than that they all tell the truth. Even if there has been an agreement as to what they are to say, some are likely to forget or to weaken under cross-examination, when telling a fabricated story, and so be detected. If upon comparing the testimony of different witnesses,1 such grave discrepancies are found in essential matters that all cannot be telling the truth, then account must be taken of the powers, habits, intelligence and character of the different persons testifying. There may be agreement in essential details and differences in minor matters, and these differences may, on the whole, strengthen the general probability; for under different circumstances, witnesses may see things from a different point of view, and with different powers of observation and interpretation. When the matter testified to consists of many details, it is hardly to be expected that several witnesses will agree in all minute particulars. Professor Greenleaf makes this clear in the following passage from his Examination of the Testimony of the Four Evangelists : "In the third place, as to their number and the consistency of their testimony. The character of their narratives is like that of all other true witnesses, containing, as Dr. Paley observes, substantial truth, under circumstantial variety. There is enough of discrepancy to show that there could have been no previous concert among them; and at the same time such substantial agreement as to show that they all were independent narrators of the same great transaction, as the events actually occurred. . . . The discrepancies between the narratives of the several evangelists, when carefully examined, will not be found sufficient to invalidate their testimony. Many seeming contradictions will prove, upon closer scrutiny, to be in substantial agreement; and it may be confidently asserted 1 Page 44. that there are none that will not yield, under fair and just criticism. If these different accounts of the same transactions were in strict verbal conformity with each other, the argument against their credibility would be much stronger. All that is asked for these witnesses is, that their testimony may be regarded as we regard the testimony of men in the ordinary affairs of life. This they are justly entitled to; and this no honorable adversary can refuse. . . . If the evidence of the evangelists is to be rejected because of a few discrepancies among them, we shall be obliged to discard that of many of the contemporaneous histories on which we are accustomed to rely. Dr. Paley has noticed the contradiction between Lord Clarendon and Burnet and others in regard to Lord Strafford's execution; the former stating that he was condemned to be hanged, which was done on the same day; and the latter all relating that on a Saturday he was sentenced to the block, and was beheaded on the following Monday. Another striking instance of discrepancy has since occurred, in the narratives of the different members of the royal family of France, of their flight from Paris to Varennes, in 1792. These narratives, ten in number, and by eye-witnesses and personal actors in the transactions they relate, contradict each other, some on trivial and some on more essential points, but in every case in a wonderful and inexplicable manner. Yet these contradictions do not, in the general public estimation, detract from the integrity of the narrators, nor from the credibility of their relations. In the points in which they agree, and which constitute the great body of their narratives, their testimony is, of course, not doubted; where they differ, we reconcile them as well as we may, and where this cannot be done at all, we follow that light which seems to us the clearest."1 A distinction sometimes made between direct and circumstantial evidence and between testimonial and indirect evidence, is confusing. The distinction should rather be between direct and indirect, and between testi 1 Quoted by Professor Genung. Direct and monial and circumstantial, evidence; for either testimonial or circumstantial evidence may be direct, and either may be indirect. Direct evidence is such as applies immediately to the case in dispute. Indirect evidence bears upon some fact or circumstance which in turn has a bearing upon the case in question. Testimonial evidence is that produced by human witnesses; circumstantial evidence is such as comes from other sources. The superiority usually attributed to testimonial or direct evidence over circumstantial or indirect, is frequently overestimated. The following passages from a scientific investigator, a juridical reasoner, and a writer of fiction, respectively, make clear the meaning and relative value of these kinds of evidence: "The evidence as to the occurrence of any event in past time may be ranged under two heads which, for convenience' sake, I will speak of as testimonial evidence and circumstantial evidence. By testimonial evidence I mean human Testimonial and Circum- testimony; and by circumstantial evidence I mean stantial Evi- evidence which is not human testimony. dence. Huxley. Let me illustrate by a familiar example what I understand by these two kinds of evidence, and what is to be said respecting their value. "Suppose that a man tells you that he saw a person strike another and kill him; that is testimonial evidence of the fact of murder. But it is possible to have circumstantial evidence of the fact of murder; that is to say, you may find a man dying with a wound upon his head having exactly the form and character of the wound which is made by an axe, and, with due care in taking surrounding circumstances into account, you may conclude with the utmost certainty that the man has been murdered; that his death is the consequence of a blow inflicted by another man with that implement. We are very much in the |