Evidence and Precedents in Law
thomas erskine
Before you can adjudge a fact, you must believe it—not suspect it, or imagine it, or fancy it, but believe it—and it is impossible to impress the human mind with such a reasonable and certain belief, as is necessary to be impressed, before a Christian man can adjudge his neighbor to the smallest penalty, much less to the pains of death, without having such evidence as a reasonable mind will accept of as the infallible test of truth. And what is that evidence? Neither more nor less than that which the Constitution has established in the courts for the general administration of justice; namely, that the evidence convince the jury, beyond all reasonable doubt, that the criminal intention, constituting the crime, existed in the mind of the man upon trial, and was the mainspring of his conduct. The rules of evidence, as they are settled by law, and adopted in its general administration, are not to be overruled or tampered with. They are found in the charities of religion—in the philosophy of nature—in the truth of history—and in the experience of common life; and whoever ventures rashly to depart from them, let him remember that it will be meted to him in the same measure, and that both God and man will judge him according.
These are arguments addressed to your reasons and your consciences; not to be shaken in upright minds by any precedent—for no precedents can sanctify injustice; if they could, every human right would long ago have been extinct upon the earth. If the state trials in bad times are to be searched for precedents, what murders may you not commit—what law of humanity may you not trample upon—what rule of justice may you not violate—and what maxim of wise policy may you not abrogate and confound? If precedents in bad times are to be implicitly followed, why should we have heard any evidence at all? You might have convicted without any evidence; for many have been so convicted—and, in this manner, murdered—even by acts of Parliament. If precedents in bad times are to be followed, why should the Lords and Commons have investigated these charges, and the Crown have put them into this course of judicial trial? since, without such a trial, and even after an acquittal upon me, they might have attained all the prisoners by act of Parliament: they did so in the case of Lord Strafford.
There are precedents, therefore, for all such things, but such precedents as could not for a moment survive the times of madness and distraction which gave them birth: but which, as soon as the spurs of the occasion were blunted, were repealed and execrated even by Parliaments which (little as I may think of the present) ought not be compared with it—Parliaments sitting in the darkness of former times—in the night of freedom—before the principles of government were developed, and before the constitution became fixed. The last of these precedents, and all the proceedings upon it, were ordered to be taken off the file and burnt, so the intent that the same might no longer be visible to after ages; an order dictated, no doubt, by a pious tenderness for national honor, and meant as a charitable covering for the crimes of our fathers. But it was a sin against posterity—it was a treason against society; for, instead of commanding them to be burnt, they should rather have directed them to be blazoned in large characters upon the walls of our Courts of Justice, that, like the characters deciphered by the prophet of God to the Eastern tyrant, they might enlarge and blacken in your sights, to terrify you from acts of injustice.
The Permanency of Empire. This extract opens with an earnest appeal which requires the falling inflection. The question that follows it is a direct one, consequently all its members require the rising inflection. From the exclamation “Alas” to the end of the sentence, all is positive, therefore the falling inflection should be used throughout. The next question is an indirect one and requires the falling inflection. “So thought the countries of Demosthenes and the Spartan” is a positive thought and should be given the falling inflection. Then comes a triple opposition, “Leonidas” being contrasted with “Athens,” “trampled” with “insulted,” and “slave” with “Ottoman.” The three words qualifying “Ottoman” constitute a commencing series, and for this reason “servile” and “mindless” should be given the falling inflection, and “enervate” the rising. The next sentence is a positive one and the falling inflection should be given the word “footsteps,” which closes it; “from the palace to the tomb” and “with their ruins” are both parenthetical, and there is a contrast between “palace” and “tomb.” The phrase ending with “as if they had never been” is conditional and requires the rising inflection; the balance of the sentence contains a parenthetical clause, “rude and neglected in the barren ocean,” and a double contrast, the last of the four members of which is a concluding series, the contrasts being “then” with “now,” “speck” with the concluding series “the ubiquity of their commerce, the glory of their arms, the fame of their philosophy, the eloquence of their Senate and the inspiration of their bards.” There is a double opposition between “England” and “America,” and “Athens is” with “Athens was”; “contemplating the past,” “proud and potent as she appears,” “then,” and “one day” are parenthetical; the conclusion of the extract consists of a parenthesis, “for its time,” and a double contrast, “Europe” being contrasted with “that mighty continent” (America), and “shall have mouldered, and the night of barbarism obscured its very ruins” with “emerge from the horizon to rule sovereign of the ascendant.”