I AM not a young man, and have passed much of my life in our Criminal Courts. I am, and have been, in active practice at the Bar, and I believe myself capable of offering some hints toward an improved administration of justice.

I do not allude to any reform in the law, though I believe much to be needed. I mean to confine myself to amendments which it is in the power of the people to make for themselves, and indeed, which no legislature, however enlightened, can make for them.

In no country can the laws be well administered, where the popular mind stands at a low point in the scale of intelligence, or where the moral tone is lax. The latter defect is of course the most important, but it is so intimately connected with the former, that they commonly prevail together, and the causes which remove the one, have, almost without exception, a salutary effect upon the other.

That the general diffusion of morals and intelligence is essential to the healthy working of jurisprudence in all countries, will be admitted, when it is recollected that no tribunal, however skillful, can arrive at the truth by any other way than by the testimony of witnesses, and that consequently on their trustworthiness the enjoyment of property, character, and life, must of necessity depend.

Again, wherever trial by jury is established, a further demand arises for morals and intelligence among the people. It follows then, as a consequence almost too obvious to justify the remark, that whatever in any country enlarges and strengthens these great attributes of civilization, raises its capacity for performing that noblest duty of social man, the administration of justice.

Let me first speak of witnesses and their testimony. It is sometimes supposed that the desire to be veracious is the only quality essential to form a trustworthy witness—and an essential quality it is beyond all doubt—but it is possessed by many who are nevertheless very unsafe guides to truth. In the first place, this general desire for truth in a mind not carefully regulated, is apt to give way, oftentimes unconsciously, to impressions which overpower habitual veracity. It may be laid down as a general rule that witnesses are partisans, and that, often without knowing it, their evidence takes a color from the feeling of partisanship, which gives it all the injurious effects of willful falsehood—nay, it is frequently more pernicious. The witness who knowingly perverts the truth, often betrays his mendicity by his voice, his countenance, or his choice of words; while the unconscious perverter gives his testimony with all the force of sincerity. Let the witness who intends to give evidence worthy of confidence, be on his guard against the temptations to become a partisan. Witnesses ought to avoid consorting together on the eve of a trial; still more, discussing the matters in dispute, and comparing their intended statements. Musicians have observed that if two instruments, not in exact accordance, are played together, they have a tendency to run into harmony. Witnesses are precisely such instruments, and act on each other in like manner.

So much with regard to the moral tone of the witness; but the difficulties which I have pointed out may be surmounted, and yet leave his evidence a very distorted narrative of the real facts. Consideration must be given to the intellectual requirements of a witness. It was the just remark of Dr. Johnson that complaints of the memory were often very unjust toward that faculty which was reproached with not retaining what had never been confided to its care. The defect is not a failure of memory, but a lack of observation; the ideas have not run out of the mind—they never went into it.

This is a deficiency, which cannot be dealt with in any special relation to the subject in hand; it can only be corrected by cultivating a general habit of observation, which, considering that the dearest interests of others may be imperiled by errors arising out of the neglect to observe accurately, must be looked upon in the light of a duty.

A still greater defect is the absence of the power of distinguishing fact and inference. Nothing but a long experience in Courts of Justice, can give a notion of the extent to which testimony is adulterated by this defect. It is often exemplified in the depositions of witnesses, or rather in the comparison between the depositions which, as your readers know, are taken in writing before the committing magistrate, and the evidence given on the trial.

Circumstances on which the witness had been silent when examined before the magistrate shortly after the event, make their appearance in his evidence on the day of trial; so that his memory purports to augment inaccuracy in proportion to their time which has elapsed since the transaction of which he speaks!

I have observed this effect produced in a marvelous degree in cases of new trial, which in civil suits are often awarded, and which frequently take place years after the event to which they relate. The comparison of the evidence of the same witness as it stands upon the short-hand writer’s notes of the two trials, would lead an unpracticed reader to the conclusion that nothing but perjury could account for the diversities; and this impression would be confirmed, if he should find, as in all probability he would, that the points on which the latter memory was better supplied than the earlier, were just those on which the greatest doubt had prevailed on the former occasion, and which were made in favor of the party on whose side the witness had been called. But the critic would be mistaken. The witness was not dishonest, but had failed to keep watch over the operations of his own mind. He had perhaps often adverted to the subject, and often discoursed upon it, until at length he confounded the facts which had occurred, with the inference which he had drawn from such facts, in establishment of the existence of others, which had in reality no place except in his own cogitation, but which after a time took rank in his memory with its original impressions.

The best safeguard a witness could employ to preserve the unalloyed memory of transactions, is to commit his narrative to writing, as soon after the event as he shall have learned that his evidence respecting them is likely to be required; and yet I can hardly recommend such a course, because so little is the world, and even that portion of the world which passes its life in Courts of Justice, acquainted with what may be called the Philosophy of Evidence, that a conscientious endeavor of this kind to preserve his testimony in its purity, might draw upon him the imputation of having fabricated his narrative; and this is the more probable, because false witnesses have not unfrequently taken similar means for abiding by their fictions.

It is worthy of note how much these disturbing causes, both moral and intellectual, fasten upon these portions of evidence which are most liable to distortion. Words, as contra-distinguished from facts, exemplify the truth of this position. Every witness ought to feel great distrust of himself in giving evidence of a conversation. Language, if it runs to any length, is very liable to be misunderstood, at least in passages.

But supposing it to be well understood at the moment, the exact wording of it can rarely be recalled, unless the witness’s memory were tantamount in minuteness and accuracy to the record of a short-hand writer. He is consequently permitted to give an abstract, or, as it is usually called, the substance of what occurred. But here a new difficulty arises; to abstract correctly is an intellectual effort of no mean order, and is rarely accomplished with a decent approach to perfection. Let the juryman bear this in mind. He will be often tempted to rely on alleged confessions of prisoners sworn to by witnesses who certainly desire to speak the truth. These confessions often go so straight to the point, that they offer to the juryman a species of relief from that state of doubt, which, to minds unpracticed in weighing probabilities, is irksome, almost beyond description. Speaking from the experience of thirty years, I should pronounce the evidence of words to be so dangerous in its nature as to demand the utmost vigilance, in all cases, before it is allowed to influence the verdict to any important extent.

While I am on the subject of evidence, infirm in its nature, I must not pass over that of identity of person. The number of persons who resemble each other is not inconsiderable in itself; but the number is very large of persons, who, though very distinguishable when standing side by side, are yet sufficiently alike to deceive those who are without the means of immediate comparison.

Early in life an occurrence impressed me with the danger of relying on the most confidential belief of identity. I was at Vauxhall Gardens where I thought I saw, at a short distance, an old country gentleman whom I highly respected, and whose favor I should have been sorry to lose. I bowed to him, but obtained no recognition. In those days the company amused themselves by walking round in a circle, some in one direction, some in the opposite, by which every one saw and was seen—I say, in those days, because I have not been at Vauxhall for a quarter of a century. In performing these rounds I often met the gentleman, and tried to attract his attention, until I became convinced that either his eye-sight was so weakened that he did not know me, or that he chose to disown my acquaintance. Some time afterward, going into the county in which he resided, I received, as usual, an invitation to dinner; this led to an explanation, when my friend assured me he had not been in London for twenty years. I afterwards met the person whom I had mistaken for my old friend, and wondered how I could have fallen into the error. I can only explain it by supposing that, if the mind feels satisfied of identity, which it often does at the first glance, it ceases to investigate that question, and occupies itself with other matter; as in my case, where my thoughts ran upon the motives my friend might have, for not recognizing me, instead of employing themselves on the question of whether or no the individual before my eyes was indeed the person I took him for.

If I had had to give evidence on this matter my mistake would have been the more dangerous, as I had full means of knowledge. The place was well lighted, the interviews were repeated, and my mind was undisturbed. How often have I known evidence of identity acted upon by juries, where the witness was in a much less favorable position (for correct observation) than mine.

Sometimes, a mistaken verdict is avoided by independent evidence. Rarely, however, is this rock escaped, by cross-examination, even when conducted with adequate skill and experience. The belief of the witness is belief in a matter of opinion resulting from a combination of facts so slight and unimportant, separately considered, that they furnish no handle to the cross-examiner. A striking case of this kind occurs to my recollection, with which I will conclude.

A prisoner was indicted for shooting at the prosecutor, with intent to kill him. The prosecutor swore that the prisoner had demanded his money, and that upon refusal, or delay, to comply with his requisition, he fired a pistol, by the flash of which his countenance became perfectly visible; the shot did not take effect, and the prisoner made off. Here the recognition was momentary, and the prosecutor could hardly have been in an undisturbed state of mind, yet the confidence of his belief made a strong impression on all who heard the evidence, and probably would have sealed the fate of the prisoner without the aid of an additional fact of very slight importance, which was, however, put in evidence by way of corroboration, that the prisoner, who was a stranger to the neighborhood, had been seen passing near the spot in which the attack was made about noon of the same day. The judge belonged to a class, now, thank God! obsolete, who always acted on the reverse of the constitutional maxim, and considered every man guilty, until he was proved to be innocent.

If the case had closed without witnesses on behalf of the prisoner, his life would have been gone; fortunately, he possessed the means of employing an able and zealous attorney, and, more fortunately, it so happened that several hours before the attack the prisoner had mounted upon a coach, and was many miles from the scene of the crime at the hour of its commission.

With great labor, and at considerable expense, all the passengers were sought out, and with the coachman and guard, were brought into court, and testified to the presence among them of the prisoner. An alibi is always a suspected defence, and by no man was ever more suspiciously watched than by this judge. But then witness after witness appeared, their names corresponding exactly with the way-bill produced by the clerk of a respectable coach-office, the most determined scepticism gave way, and the prisoner was acquitted by acclamation. He was not, however, saved by his innocence, but by his good fortune. How frequently does it happen to us all to be many hours at a time without having witnesses to prove our absence from one spot by our presence at another! And how many of us are too prone to avail ourselves of such proof in the instances where it may exist!

A remarkable instance of mistake in identity, which put the life of a prisoner in extreme peril, I heard from the lips of his counsel. It occurred at the Special Commission held at Nottingham after the riots consequent on the rejection of the Reform Bill by the House of Lords, in 1831.

The prisoner was a young man of prepossessing appearance, belonging to what may be called the lower section of the middle rank of life, being a frame-work knitter, in the employment of his father, a master manufacturer in a small way. He was tried on an indictment charging him with the offence of arson. A mob, of which he was alleged to be one, had burnt Colwick Hall, near Nottingham, the residence of Mr. Musters, the husband of Mary Chaworth, whose name is so closely linked with that of Byron. This ill-fated lady was approaching the last stage of consumption, when, on a cold and wet evening in autumn, she was driven from her mansion, and compelled to take refuge among the trees of her shrubbery—an outrage which probably hastened her death.

The crime with its attendant circumstances, created, as was natural, a strong sympathy against the criminals. Unhappily, this feeling, so praiseworthy in itself, is liable to produce a strong tendency in the public mind to believe in the guilt of the party accused. People sometimes seem to hunger and thirst after a criminal, and are disappointed when it turns out that they are mistaken in their man, and are, consequently, slow to believe that such an error has been made. Doubtless, the impression is received into the mind unconsciously; but although on that ground pardonable, it is all the more dangerous. In this case, the prisoner was identified by several witnesses as having taken an active part in setting fire to the house.

He had been under their notice for some considerable space of time. They gave their evidence against him without hesitation, and probably the slightest doubt of its accuracy. His defence was an alibi. The frame at which he worked had its place near the entrance to the warehouse, the room frequented by the customers and all who had business to transact at the manufactory. He acted, therefore, as doorkeeper, and in that capacity had been seen and spoken with by many persons, who in their evidence more than covered the whole time which elapsed between the arrival of the mob at Colwick Hall and its departure. The alibi was believed, and the prisoner, after a trial which lasted a whole day, was acquitted.

The next morning he was to be tried again on another indictment, charging him with having set fire to the Castle of Nottingham. The counsel for the prosecution, influenced by motives of humanity, and fully impressed with the prisoner’s guilt on both charges, urged the counsel for the prisoner to advise his client to plead guilty, undertaking that his life should be spared, but observing at the same time that his social position, which was superior to that of the other prisoners, would make it impossible to extend the mercy of the Crown to him unless he manifested a due sense of his offences by foregoing the chance of escape. “You know,” said they, “how rarely an alibi obtains credit with a jury. You can have no other defence to-day than that of yesterday. The Castle is much nearer than Colwick Hall to the manufactory, and a very short absence from his work on the part of the prisoner might reconcile the evidence of all the witnesses, both for him and against him; moreover, who ever heard of a successful alibi twice running?”

The counsel for the prisoner had his client taken into a room adjoining the court, and having explained to him the extreme danger in which he stood, informed him of the offer made by the prosecutors. The young man evinced some emotion, and asked his counsel to advise what step he should take. “The advice,” he was answered, “must depend upon a fact known to himself alone—his guilt or innocence. If guilty, his chance of escape was so small that it would be the last degree of rashness to refuse the offer; if, on the other hand, he were innocent, his counsel, putting himself in the place of the prisoner, would say, that no peril, however imminent, would induce him to plead guilty.” The prisoner was further told, that in the course of a trial circumstances often arose at the moment, unforeseen by all parties, which disclosed the truth; that this consideration was in his favor if he were innocent but showed at the same time that there were now chances of danger, if he were guilty, the extent of which could not be calculated, nor even surmised. The youth, with perfect self-possession, and unshaken firmness, replied, “I am innocent, and will take my trial.” He did so. Many painful hours wore away, every moment diminishing the prisoner’s chance of acquittal, until it seemed utterly extinguished, when some trifling matter which had escaped the memory of the narrator, occurred, leading him to think it was possible that another person, who must much resemble the prisoner, had been mistaken for him. Inquiry was instantly made of the family, whether they knew of any such resemblance; when it appeared that the prisoner had a cousin so much like himself that the two were frequently accosted in the street, the one for the other. The cousin had absconded.

It is hardly credible, though doubtless true, that a family of respectable station could have been unaware of the importance of such a fact, or that the prisoner, who appeared not deficient in intelligence, and who was assuredly in full possession of his faculties, could be insensible to its value. That either he or they could have placed such reliance on his defence as to induce them to screen his guilty relative, is to the last degree improbable, especially as the cousin had escaped. Witnesses, however, were quickly produced, who verified the resemblance between the two, and the counsel for the prosecution abandoned their case, expressing their belief that their witnesses had given their evidence under a mistake of identity.

The narrator added that an alibi stood a less chance of favorable reception at Nottingham than elsewhere, although in every place received with great jealousy. In one of the trials arising out of the outrages committed by the Luddites, who broke into manufactories and destroyed all lace frames of a construction which they thought oppressive to working-men, an alibi, he said had been concocted, which was successful in saving the life of a man notoriously guilty, and which had therefore added to the disrepute of this species of defence. The hypothesis was, that the prisoner, at the time when the crime was committed, at Loughborough, sixteen miles from Nottingham, was engaged at a supper party at the latter place; and the prisoner having the sympathy of a large class in his favor, whose battle he had been fighting, no difficulty was experienced by his friends in finding witnesses willing to support this hypothesis on their oaths; but it would have been a rash measure to have called them into the box unprepared. And when it is considered how readily a preconcerted story might have been destroyed by cross-examination, the task of preparing the witnesses so as to elude this test, was one requiring no ordinary care and skill. The danger would arise thus:—Every witness would be kept out of court, except the one in the box. He would be asked where he sat at the supper? where the prisoner sat, and each of the other guests? what were the dishes, what was the course of conversation, and so forth—the questions being capable of multiplication ad infinitum; so that however well tutored, the witnesses would inevitably contradict each other upon some matters, on which the tutor had not foreseen that the witness would be cross-examined, or to which he had forgotten the answer prescribed. The difficulty was, however, surmounted. After the prisoner’s apprehension, the selected witnesses were invited to a mackerel supper, which took place at an hour corresponding to that at which the crime was committed; and so careful was the ingenious agent who devised this conspiracy against the truth that, guided by a sure instinct, he fixed upon the same day of the week as that on which the crime had been committed, though without knowing how fortunate it would be for the prisoner that he took this precaution. When, on cross-examination, it was found that the witnesses agreed as to the order in which the guests were seated, the contents of the dishes, the conversation which had taken place, and so forth—the counsel for the Crown suspected the plot; but not imagining that it had been so perfectly elaborated, they inquired of their attorneys as to whether there was any occurrence peculiar to the day of the week in question, and were told that, upon the evening of such day, a public bell was always rung, which must have been heard at the supper, if it had taken place at the time pretended. The witnesses were separately called back and questioned separately as to the bell. They had all heard it; and thus not only were the cross-examiners utterly baffled, but the cross-examination gave ten-fold support to the examination in chief, that is, to the evidence as given by the witnesses in answer to the questions put by the prisoner’s counsel in his behalf. The triumph of falsehood was complete. The prisoner was acquitted.

When, however, the attention of prosecutors is called to the possibility of such fabrications they become less easy of management. The friends of a prisoner are often known to the police, and may be watched—the actors may be surprised at the rehearsal; a false ally may be inserted among them; in short, there are many chances of the plot failing. This, however, is an age of improvement, and the thirty years which have elapsed since the days of Luddism have not been a barren period in any art or science. The mystery of cookery in dishes, accounts, and alibis, has profited by this general advancement.

The latest device which my acquaintance with courts has brought to my knowledge is an alibi of a very refined and subtle nature. The hypothesis is, that the prisoner was walking from point A to point Z, along a distant road, at the hour when the crime was committed. The witnesses are supposed each to see him, and some to converse with him, at points which may be indicated by many or all the letters of the alphabet. Each witness must be alone when he sees him, so that no two may speak to what occurred at the same spot or moment of time; but, with this reservation, each may safely indulge his imagination with any account of the interview which he has wit to make consistent with itself, and firmness to abide by, under the storm of a cross-examination. “The force of falsehood can no farther go.” No rehearsal is necessary. Neither of the witnesses needs know of the existence of the others. The agent gives to each witness the name of the spot at which he is to place the prisoner. The witness makes himself acquainted with that spot, so as to stand a cross-examination as to the surrounding objects, and his education is complete. But as panaceas have only a fabulous existence, so this exquisite alibi is not applicable to all cases; the witness must have a reason for being on the spot, plausible enough to foil the skill of the cross-examiner; and, as false witnesses cannot be found at every turn, the difficulty of making it accord with the probability that the witness was where he pretends to have been on the day and at the hour in question is often insuperable, to say nothing of the possibility and probability of its being clearly established, on the part of the prosecution, that the prisoner could not have been there. I should add, that, except in towns of the first magnitude, it must be difficult to find mendacious witnesses who have in other respects the proper qualifications to prove a concocted alibi, save always where the prisoner is the champion of a class; and then, according to my experience—sad as the avowal is—the difficulty is greatly reduced.

These incidents illustrate the soundness of the well-known proposition, that mixture of truth with falsehood, augments to the highest degree the noxious power of the venomous ingredient. That man was no mean proficient in the art of deceiving, who first discovered the importance of the liar being parsimonious in mendacity. The mind has a stomach as well as an eye, and if the bolus be neat falsehood, it will be rejected like an over-dose of arsenic which does not kill.

Let the juryman ponder these things, and beware how he lets his mind lapse into a conclusion either for or against the prisoner. To perform the duties of his office, so that the days which he spends in the jury-box will bear retrospection, his eye, his ears, and his intellect, must be ever on the watch. A witness in the box, and the same man in common life, are different creatures. Coming to give evidence, “he doth suffer a law change.” Sometimes he becomes more truthful, as he ought to do, if any change is necessary; but unhappily this is not always so, and least of all in the case of those whose testimony is often required.

I remember a person, whom I frequently heard to give evidence quite out of harmony with the facts; but I shall state neither his name nor his profession. A gentleman who knew perfectly well the unpalatable designation which his evidence deserved, told me of his death. I ventured to think it was a loss which might be borne, and touched upon his infirmity, to which my friend replied in perfect sincerity of heart, “Well! after all, I do not think he ever told a falsehood in his life—out of the witness’ box!”