2-Notes
Notes
1. Nov. Org. 1.68. "Ut non alius fere sit aditus ad regnum hominis, quod fundatur in scientiis, quam ad regnum coelorum in quod, nisi sub persona infantis, intrare non datur."
2. Bishop Wilson, Evidences of Christianity, 1.38.
3. See Hopkins, Lowell Lectures , particularly Lect. 2. Wilson, Evidences. 1.45-61 [Pages 42-65, 1832 edition], The Evidences of Christianity: stated in a popular and practical manner, in a course of lectures, delivered in the Parish Church of St. Mary, Islington. Volume 1 of 2. Horne, Introduction to the Study of the Holy Scriptures 1.1-39 . [pages 1-36 in the 1877 edition.] Mr. Horne having cited all the best English writers on this subject, it is sufficient to refer to his work alone.
4. Hopkins, Lowell Lectures, p. 48.
5. It has been well remarked, that, if we regard man as in a state of innocence, we should naturally expect that God would hold communications with him; that if we regard him as guilty, and as having lost the knowledge and moral image of God, such a communication would be absolutely necessary, if man was to be restored. Hopkins, Lowell Lectures, p. 62.
6. The argument here briefly sketched is stated more at large, and with great clearness and force, in an essay entitled "The Philosophy of the Plan of Salvation," pp. 13-107. Cincinnati, Hitchcock and Walden, 1855. 286 pp. 18 cm.
[James Barr Walker was the author of "The Philosophy of the Plan of Salvation," published anonymously under the editorship of Professor Calvin E. Stowe (Boston, 1855), which went through several editions in England, and has been translated into five foreign languages, including Hindustanee.] 7. See Stuart, Critical History and Defense of the Old Testament Canon, where this is abundantly proved.
8. Per Tindal Ch. J., in the case of Bishop of Meath v Marquis of Winchester, 3 Bing. N C 183, 200-201. "It is when documents are found in other than their proper places of deposit," observed the Chief Justice, "that the investigation commences, whether it was reasonable and natural, under the circumstances of the particular case, to expect that they should have been in the place where they are actually found for it is obvious, that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various, that are reasonable and probable, though differing in degree, some being more so, some less; and in these cases the proposition to be determined is, whether the actual custody is so reasonably and probably accounted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine." See the cases cited in Greenleaf on Evidence § 142; see also 1 Stark on Ev. pp. 332-335, 381-386; Croughton v Blake, 12 Mees. & W. 205, 208; Doe v Phillips, 10 Jur 34. It is this defect, namely, that they do not come from the proper or natural repository, which shows the fabulous character of many pretended revelations, from the Gospel of the Infancy to the Book of Mormon.
9. Greenl. on Ev. § 34, 142, 570. [1842 edition].
§ 34. The rules in this class of presumptions, as in the former, have been adopted by common consent, from motives of public policy, and for the promotion of the general good; yet not, as in the former class, forbidding all farther evidence; but only excusing or dispensing with it, till some proof is given, on the other side, to rebut the presumption thus raised. Thus, as men do not generally violate the penal code, the law presumes every man innocent; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the Jury, in every case, as matter of evidence, to the benefit of which the party is entitled. And where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.* * Hodge’s case, 2 Lewin, Cr. Cas. 227, per Alderson, B.
*** On the other hand, as men seldom do unlawful acts with innocent intentions, the law presumes every act, in itself unlawful, to have been criminally intended, till the contrary appears. Thus on a charge of murder, malice is presumed from the fact of killing, unaccompanied with circumstances of extenuation ; and the burden of disproving the malice is thrown upon the accused.* * Foster’s Crown Law, 255; Rex v. Farrington, Rus. & Ry. 207.
*** The same presumption arises in civil actions, where the act complained of was unlawful.*
* In Bromage v. Prosser, 4 B. & C. 247, 255, 256, which was an action for words spoken of the plaintiffs, in their business and trade of bankers, the law of implied or legal malice, as distinguished from malice in fact, was clearly expounded by Mr. Justice Bayley, in the following terms. - "Malice, in the common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are, if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. Russell on Crimes, 614, n. 1. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognises the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge, that the defendant spoke them falsely ; it is not necessary to state, that they were spoken maliciously. This is so laid down in Styles, 393, and was adjudged upon error in Mercer v. Sparks, Owen, 51 ; Noy, 35. The objection there was, that the words were not charged to have been spoken maliciously, but the Court answered, that the words were themselves malicious and slanderous, and, therefore, the judgment was affirmed. But in actions for such slander, as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servants’ characters, confidential advice, or communication to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff; and in Edmonson v. Stevenson, Bull. N. P. 8, Lord Mansfield takes the distinction between these and ordinary actions of slander."
*** So also, as men generally own the personal property they possess, proof of possession is presumptive proof of ownership. But possession of the fruits of crime, recently after its commission, is prima facie, evidence of guilty possession; and, if unexplained, either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.*
* Rex V. , 2 C. & P. 459 ; Regiiia v. Coote, 1 Armst. Macartn. & Ogle, R. 337; The State v. Adams, 1 Hayw. 463; Wills on Circumstantial Evidence, 67. Where the things stolen are such as do not pass from hand to hand, (e. g. the ends of unfinished woollen clothes,) their being found in the prisoner’s possession, two months after they were stolen, is sufficient to call for an explanation from him how he came by them, and to be considered by the Jury. Rex v. Partridge, 7 C. & P. 551. Furtum prsesumitur commissum ab illo, penes quem res furata inventa fuerit, adeo ut si non docuerit a quo rem habuerit, jusle, ex ilia inventione, poterit subjici tormentis. Mascard. De Probat. Vol. 2, Concl. 834; Menoch. De Praesumpt. Lib. 5, Praesumpt. 31.
*** This rule of presumption is not confined to the case of theft, but is applied to all cases of crime, even the highest and most penal. Thus, upon an indictment for arson, proof that property, which was in the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, was held to raise a probable presumption, that he was present and concerned in the offence.* * Rickman’s case, 2 East, P.C. 1035.
*** The like presumption is raised in the case of murder, accompanied by robbery;* 2 Wills on Circumst. Evid. 72.
*** and in the case of the possession of an unusual quantity of counterfeit money.* * Rex v. Fuller et al. Russ. &. Ry. 308.
***
§. 142. As the value of these documents depends mainly on their having been contemporaneous, at least, with the act of transfer, if not part of it, care is first taken to ascertain their genuineness; and this may be shown prima facie, by proof that the document comes from the proper custody; or by otherwise accounting for it. Documents found in a place, in which, and under the care of persons, with whom such papers might naturally and reasonably be expected to be found, are in precisely the custody which gives authenticity to documents found within it.*
*Per Tindal, C. J. in Bishop of Meath v. Marq. of Winchester, 2 Bing. N. C. 183, 200, 201, expounded and confirmed by Parke, B. in Croughton V. Blake, 12 M. & W. 205, 208. See also Lygon v. Strutt, 2 Anstr. 601; Swinnerton v. Marq. of Stafford, 3 Taunt. 91; Bullen v. Michel, 4 Dow, 297; Earl v. Lewis, 4 Esp. 1; Randolph v. Gordon, 5 Price, 312 ; Manby V. Curtis, 1 Price, 225, 232, per Wood, B. ; Bertie v. Beaumont, 2 Price, 303, 307; Barr v. Gratz, 4 Wheat. 213, 221; Winn v. Patterson, 9 Peters, 663-675; Clarke u. Courtney, 5 Peters, 319, 344; Jackson v. Laroway, 3 Johns. Cas. 383, approved in Jackson v. Luquere, 5 Cowen, 221, 225; Hewlett V. Cock, 7 Wend. 371, 374; Duncan v. Beard, 2 Nott & McC. 400; Middleton v. Mass, 2 Nott & McC. 55; Doe v. Beynon, 4 P. & D. 193; Post, § 570; Doe v. Pearce, 2 M. & Rob. 240. An ancient extent of Crown lands, found in the office of the Land Revenue Records, it being the proper repository, and purporting to have been made by the proper officer, has been held good evidence of the title of the Crown to lands therein stated to have been purchased by the Crown from a subject. Doe, d. Wm. 4. V. Roberts, 13 M. & W. 520.
***
"For it is not necessary," observed Tindal, C. J., "that they should be found in the best and most proper place of deposit. If documents continue in such custody, there never would be any question, as to their authenticity; but it is when documents are found in other than their proper place of deposit, that the investigation commences, whether it is reasonable and natural, under the circumstances in the particular case, to expect that they should have been in the place where they are actually found; for it is obvious, that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various that are reasonable and probable, though differing in degree; some being more so, some less; and in those cases the proposition to be determined is, whether the actual custody is so reasonably and probably accounted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine. That such is the character and description of the custody, which is held sufficiently genuine to render a document admissible, appears from all the cases."
§ 143. It is further requisite, where the nature of the case will admit it, that proof be given of some act done in reference to the documents offered in evidence, as a further assurance of their genuineness, and of the claiming of title under them. If the document bears date post litem motam, however ancient, some evidence of correspondent acting is always scrupulously required, even in cases where traditionary evidence is receivable.* * 1 Phil. Evid. 277 ; Brett v. Beales, 1 Mood. & M. 4 If..
***
But, in other cases, where the transaction is very ancient, so that proof of contemporaneous acting, such as possession, or the like, is not probably to be obtained, its production is not required.* *2 Clarkson v. Woodhouse, 5 T. II. 112, 413 n., per Ld. Mansfield; Ante, § 130, and cases there cited.
*** But where unexceptionable evidence of enjoyment, referable to the document, may reasonably be expected to be found, it must be produced.* * 1 Phil. Evid. 277 ; Plaxton v. Dare, 10 U. & C. 17.
***
If such evidence, referable to the document, is not to be expected, still it is requisite to prove some acts of modern enjoyment, with reference to similar documents, or that modern possession or user should be shown, corroborative of the ancient documents.*
* Rogers v. Allen, 1 Campb. 309, 311; Clarkson v. Woodhouse, 5 T. R. 412, n. See the cases collected in note to § 144, post.
§ 144. Under these qualifications, ancient documents, purporting to be a part of the transactions, to which they relate, and not a mere narrative of them, are receivable as evidence, that those transactions actually occurred. And though they are spoken of, as hearsay evidence of ancient possession, and as such are said to be admitted in exception to the general rule; yet they seem rather to be parts of the res gestae, and therefore admissible as original evidence, on the principle already discussed. An ancient deed, by which is meant one more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof, the witnesses being presumed dead ; and, if it is found in the proper custody, and is corroborated by evidence of ancient or modern corresponding enjoyment,*or by other equivalent or explanatory proof, it is to be presumed that the deed constituted part of the actual transfer of property therein mentioned; because this is the usual and ordinary course of such transactions among men. The residue of the transaction may be as unerringly inferred from the existence of genuine ancient documents, as the remainder of a statue may be made out from an existing torso, or a perfect skeleton from the fossil remains of a part.
*It has been made a question, whether the document may be read in evidence, before the proof of possession or other equivalent corroborative proof is offered; but it is now settled that the document, if otherwise apparently genuine, may be first read; for the question, whether there has been a corresponding possession, can hardly be raised till the Court is made acquainted with the tenor of the instrument. Doe v. Passingham, 2 C. & P. 440. A graver question has been, whether the proof of possession is indispensable; or whether its absence may be supplied by other satisfactory corroborative evidence. In Jackson d. Lewis v. Laroway, 3 Johns. Cas. 283, it was held by Kent, J. against the opinion of the other Judges, that it was indispensable; on the authority of Fleta, lib. 6, cap. 34; Co. Lit. 6, b.; Isack v. Clarke, 1 Roll. R. 132; James v. Trollop, Skin. 239; 2 Mod. 323; Forbes v. Wale, 1 W. Bl. R. 532; and the same doctrine was again asserted by him, in delivering the judgment of the Court, in Jackson d. Burnhams v. Blanshan, 3 Johns. 292, 298. See also Thompson v. Bullock, 1 Bay, 364; Middleton v. Mass, 2 Nott & McC. 55; Carroll v. Norwood, 1 Har. & J. 174, 175; Shaller v. Brand, 6 Binn. 439; Doe v. Phelps, 9 Johns. 169, 171. But the weight of authority at present seems clearly the other way; and it is now agreed that, where proof of possession cannot be had, the deed may be read, if its genuineness is satisfactorily established by other circumstances. See Ld. Rancliffe v. Parkins, 6 Dow, 202, per Ld. Eldon; McKenire v. Frazer, 9 Ves. 5; Doe v. Passingham, 2 C. & P. 440; Barr v. Gratz, 4 Wheat. 213, 221; Jackson d. Lewis v. Laroway, 3 Johns. Cas. 283, 287 ; Jackson d. Hunt v. Luquere, 5 Cowen, 221, 225; Jackson d. Wilkins v. Lamb, 7 Cowen, 431; Hewlett v. Cock, 7 Wend. 371, 373, 374. See also the cases collected in Cowen & Hill’s note 903, to 1 Phil. Evid. 477. Where an ancient document, purporting to be an exemplification, is produced from the proper place of deposit, having the usual slip of parchment to which the great seal is appended, but no appearance that any seal was ever affixed, it is still to be presumed, that the seal was once there and has been accidentally removed, and it maybe read in evidence as an exemplification. Mayor, &c. of Beverley v. Craven, 2 M. & Rob. 140.
§ 570. To this rule, requiring the production of the subscribing witnesses, there are several classes of exceptions. The first is, where the instrument is thirty years old; in which case, as we have heretofore seen,*
* Ante, § 21, and cases there cited. From the dictum of Parker, C. J., in Emerson v. Tolman, 4 Pick. 162, it has been inferred, that the subscribing witnesses must be produced, if living, though the deed be more than thirty years old. But the case of Jackson v. Blanshan, 3 Johns. 292, which is there referred to, contains no such doctrine. The question in the latter case, which was the case of a will, was, whether the thirty years should be computed from the date of the will, or from the time of the testator’s death; and the Court held that it should be computed from the time of his death. But on this point Spencer, J. differed from the rest of the Court; and his opinion, which seems more consistent with the principle of the rule, is fully sustained by Doe v. Deakin, 3 C. & P. 402; Doe v. Wolley, 8 B. & C. 22; McKenire v. Frazcr, 9 Ves. 5; Gough v. Gough, 4 T. R. 707, n. See Adams on Eject, p. 260. And it was accordingly so decided, in Man v. Ricketts, 7 Beavan, R. 93.
*** it is said to prove itself, the subscribing witnesses being presumed to be dead, and other proof being presumed to be beyond the reach of the party. But such documents must be free from just grounds of suspicion, and must come from the proper custody,* *Ante, § 142.
*** or have been acted upon, so as to afford some corroborative proof of their genuineness.*
* See Ante, § 21, 142, and cases there cited; Doe d. Edgett v. Stiles, 1 Kerr’s Rep. (New Br.) 338. Mr. Evans thinks, that the antiquity of the deed is alone sufficient to entitle it to be read; and that the other circumstances only go to its effect in evidence; 2 Poth. Obi. App. xvi. sec. 5, p. 149. See also Doe v. Burdett, 4 Ad. & El. 1, 19; Brett v. Beales, 1 M. & Malk. 416, 418; Jackson v. Larroway, 3 Johns. Cas. 283. In some cases, proof of possession, under the deed or will, seems to have been deemed indispensable; but the principle pervading them all is that of corroboration merely; that is, that some evidence shall be offered, auxiliary to the apparent antiquity of the instrument, to raise a sufficient presumption in its favor.
*** And in this case it is not necessary to call the subscribing witnesses, though they be living.*
* Marsh v. Colnett, 2 Esp. 66.5 ; Doe v. Burdett, 4 Ad. & El. 1, 19; Doe v. Deakin, 3 C. & P. 402; Jackson v. Christman, 4 Wend. 277, 282, 283; Doe V. Wolley, 8 B. & C. 22; Fetherly v. Waggoner, 11 Wend. 603; Ante, § 142.
*** This exception is co-extensive with the rule, applying to ancient writings of every description, provided they have been brought from the proper custody and place; for the finding them in such a custody and place is a presumption that they were honestly and fairly obtained, and preserved for use, and are free from suspicion of dishonesty.*
* 12 Vin. Abr. tit. Evidence, A. b. 5, pi. 7, cited by Ld. Ellenborough in Roe v. Rawlings, 7 East, 291; Gov. &c. of Chelsea Waterworks v. Cowper, 1 Esp. R. 275; Forbes v. Wale, 1 W. Bl. 532; Wynne v. Tyrwhitt, 4 B. & Aid. 376.
*** But whether it extends to the seal of a private corporation, has been doubted, for such a case does not seem clearly to be within the principle of the exception.* * Rex v. Bathwick, 2 B. & Ad. 639, 648.
10. Morewood v Wood, 14 East, 329, n., per Lord Kenyon; Weeks v Sparke, 1 M. & S. 686; Berkeley Peerage Case, 4 Campb. 416, per Mansfield, Ch. J.; see 1 Greenl. on Ev. § 128.
11. 1 Stark. on Ev. 195, 230; 1 Greenl. on Ev. § 483.
12. The arguments for the genuineness and authenticity of the books of the Holy Scriptures are briefly, yet very fully stated, and almost all the writers of authority are referred in Horne, Introduction vol. 1, passim. [1877 edition. Edited by Thomas Hartwell Horne, John Ayre and Samuel Prideaux Tregelles. 14th ed., London: Longmans, Green, 1877.] The same subject is discussed in a more popular manner in the Lectures of Bishop Wilson Volume 1 of 2. Volume 2 of 2 and of Bishop Sumner of Chester, on the Evidences of Christianity, [Evidence of Christianity Derived From Its Nature and Reception. New edition. London: Hatchard and..., 1861. xii, 333 pp.; 19 cm.]; and, in America, the same question, as it relates to the Gospels, has been argued by Bishop McIlvaine, in his Lectures.
13. See the case of the Slane Peerage, 5 Clark & F. 24. See also the case of the Fitzwalter Peerage, 10 Id. 948.
14. Matthew 9:10; Mark 2:14-15.; Luke 5:29.
15. The authorities on this subject are collected in Horne, Introduction 4.234-238, part 2 chap. 2 Sec. 2. [1825 edition, pp. 228-252.] 16. See Horne, Introduction 4.229-232. [1825 edition, pp. 221-228.] 17. See Campbell on the Four Gospels 3.35-36; Preface to Matthew’s Gospel, §§ 22-23.
18. See Gibbon, Rome vol. 1 chap. 6 and vol. 3 chap. 17 and authorities there cited. Cod. Theod. Lib. xi: ... , with the notes of Gothofred [Jacob Gothofred/Jacobus Gothofredus/Jacques Godefroy, 1587 - 1652]. Gibbon treats particularly of the revenues of a latter period than our Savior’s time; but the general course of proceeding, in the levy and collection of taxes, is not known to have been changed since the beginning of the empire.
19. Acts 12:12; Acts 12:25; Acts 13:5; Acts 13:13; Acts 15:36-41; 2 Timothy 4:11; Philemon 1:24; Colossians 4:10; 1 Peter 5:13.
20. Horne, Introduction 4.252-253. [1825 edition] 21. Mark 7:2; Mark 7:11; Mark 9:43, and elsewhere.
22. Mr. Norton has conclusively disposed of this objection, in his Evidences of the Genuineness of the Gospels, vol. 1 Additional Notes, sec. 2, pp. 115-132. [See also Koppe. Translated from the original Latin here.] 23. Compare Mark with Matthew’s narrative of the same events.
46And they came to Jericho: and as he went out of Jericho with his disciples and a great number of people, blind Bartimaeus, the son of Timaeus, sat by the highway side begging.
Matthew 20:29-30 29And as they departed from Jericho, a great multitude followed him.
30And, behold, two blind men sitting by the way side, when they heard that Jesus passed by, cried out, saying, Have mercy on us, O Lord, thou son of David. and
Mark 14:69 69And a maid saw him again, and began to say to them that stood by, This is one of them.
71And when he was gone out into the porch, another maid saw him, and said unto them that were there, This fellow was also with Jesus of Nazareth. and
Mark 4:35 35And the same day, when the even was come, he saith unto them, Let us pass over unto the other side.
Matthew 8:18 18Now when Jesus saw great multitudes about him, he gave commandment to depart unto the other side. and
35And in the morning, rising up a great while before day, he went out, and departed into a solitary place, and there prayed.
36And Simon and they that were with him followed after him.
37And when they had found him, they said unto him, All men seek for thee.
38And he said unto them, Let us go into the next towns, that I may preach there also: for therefore came I forth.
39And he preached in their synagogues throughout all Galilee, and cast out devils.
23And Jesus went about all Galilee, teaching in their synagogues, and preaching the gospel of the kingdom, and healing all manner of sickness and all manner of disease among the people. and
Mark 9:28 28And when he was come into the house, his disciples asked him privately, Why could not we cast him out?
Matthew 17:19 19Then came the disciples to Jesus apart, and said, Why could not we cast him out?
24. See Horne, Introduction 4.252-259. [1825 edition].
25. Acts 16:10-11.
26. Colossians 4:14. Luke, the beloved physician.
27. Luke 5:12; Matthew 8:2; Mark 1:40.
28. Luke 6:6; Matthew 12:10; Mark 3:1.
29. Luke 8:55; Matthew 9:25; Mark 5:42.
30. Luke 6:19.
31. Luke 22:44-45; Luke 22:51.
32. See Horne, Introduction 4.260-272. [1825 edition], where references may be found to earlier writers.
33. See Lardner, Works 6.138-139 3.203-204; and other authors, cited in Horne, Introduction 1 [actually, Volume 4], 267.
34. 2 Phil. on Ev. p. 95 (9th edition) .
35. When Abbot, Archbishop of Canterbury, in shooting a deer with a cross-bow, in Bramsil park, accidentally killed the keeper, King James I by a letter dated Oct. 3, 1621, requested the Lord Keeper, the Lord Chief Justice, and others, to inquire into the circumstances and consider the case and "the scandal that may have risen thereupon." and to certify the King what it may amount to. Could there be any reasonable doubt of their report of the facts, thus ascertained? See Spelman, Posthumous Works, p. 121. [Spelman, Henry, Sir. The Posthumous works of Sir Henry Spelman Kt. Relating to the Laws and Antiquities of England. Publish’d from the Original Manuscripts. London, 1723. 291pp. Vol. 2 of 2]
36. The case of the ill-fated steamer President furnishes an example of this sort of inquiry. This vessel, it is well known, sailed from New York for London in the month of March, 1841, having on board many passengers, some of whom were highly connected. The ship was soon overtaken by a storm, after which she was never heard of. A few months afterwards a solemn inquiry was instituted by three gentlemen of respectability, one of whom was a British admiral, another was agent for the underwriters at Lloyd’s, and the other a government packet agent, concerning the time, circumstances, and causes of that disaster; the result of which was communicated to the public, under their hands. This document received universal confidence, and no further inquiry was made. [See also The President Steamer. Times Picayune, published as The Daily Picayune, May 21, 1841, p. 2; The Steamer President. New Bedford Register (New Bedford, Massachusetts), vol. III, iss. 21; June 16, 1841, p. 1; and The Loss of the Steamship President: A painting by the German artist Andreas Achenbach. From The Northern Mariner/Le marin du nord, XV No. 3, (July 2005), pp. 53-71.]
37. Mark 1:20.
38. John 19:26-27.
39. John 13:23.
40. Matthew 27:55-56; Mark 15:40-41.
41. John 18:15-16.
42. Luke 8:51; Matthew 17:1; Matthew 26:37.
43. This account is abridged from Horne, Introduction 4.286-288. [460-462, 14th edition, 1877] .
44. Horne, Introduction 4.289, and authors there cited. [462-463, 14th edition, 1877] .
45. See, among others, John 1:38; John 1:41; John 2:6; John 2:13; John 4:9; John 11:55.
46. See Horne, Introduction 4.297-298.
47. See Gambier, Guide to the Study of Moral Evidence, p. 121.
48. 1 Stark. on Evidence. pp. 514, 577; 1 Greenl. on Evidence. § 1-2; Willis [sic, should be Wills], Circumstantial Evidence p. 2; Whately, Logic bk. 4 ch. 3 § 1.
49. See 1 Stark. on Evidence. pp. 16, 480, 521.
50. This subject has been treated by Dr. Chalmers, in his Evidences of the Christian Revelation, chapter 3. The following extract from his observations will not be unacceptable to the reader. "In other cases, when we compare the narratives of contemporary historians, it is not expected that all the circumstances alluded to by one will be taken notice of by the rest; and it often happens that an event or a custom is admitted upon the faith of a single historian; and the silence of all other writers is not suffered to attach suspicion or discredit to his testimony. It is an allowed principle, that a scrupulous resemblance between two histories is very far from necessary to their being held consistent with one another. And what is more, it sometimes happens that, with contemporary historians, there may be an apparent contradiction, and the credit of both parties remain as entire and unsuspicious as before. Posterity is, in these cases, disposed to make the most liberal allowances. Instead of calling it a contradiction, they often call it a difficulty. They are sensible that, in many instances a seeming variety of statement has, upon a more extensive knowledge of ancient history, admitted of a perfect reconciliation. Instead, then, of referring the difficulty in question to the inaccuracy or bad faith of any of the parties, they, with more justness and more modesty, refer it to their own ignorance, and to that obscurity which necessarily hangs over the history of every remote age. These principles are suffered to have great influence in every secular investigation; but so soon as, instead of a secular, it becomes a sacred investigation, every ordinary principle is abandoned, and the suspicion annexed to the teachers of religion is carried to the dereliction of all that candor and liberality with which every other document of antiquity is judged of and appreciated. How does it happen that the authority of Josephus should be acquiesced in as a first principle, while every step, in the narrative of the evangelists, must have foreign testimony to confirm and support it? How comes it that the silence of Josephus should be construed into an impeachment of the testimony of the evangelists, while it is never admitted, for a single moment, that the silence of the evangelists, can impart the slightest blemish to the testimony of Josephus? How comes it, that the supposition of two Philips in one family should throw a damp of skepticism over the Gospel narrative, while the only circumstance which renders that supposition necessary is the single testimony of Josephus; in which very testimony it is necessarily implied that there are two Herods in that same family? How comes it, that the evangelists, with as much internal, and a vast deal more of external evidence in their favor, should be made to stand before Josephus, like so many prisoners at the bar of justice? In any other case, we are convinced that this would be looked upon as rough handling. But we are not softy for it. It has given more triumph and confidence to the argument. And it is no small addition to our faith, that its first teachers have survived an examination, which, in point of rigor and severity, we believe to be quite unexampled in the annals of criticism." See Chalmers, Evidences, pp. 72-74.
51. See 1 Stark. on Ev, pp. 480, 545.
52. If the witnesses could be supposed to have been biased, this would not destroy their testimony to matters of fact; it would only detract from the weight of their judgment in matters of opinion. The rule of law on this subject has been thus stated by Dr. Lushington: "When you examine the testimony of witnesses nearly connected with the parties, and there is nothing very peculiar tending to destroy their credit, when they depose to mere facts, their testimony is to be believed; when they depose as to matter of opinion, it is to be received with suspicion." Dillon v Dillon, 3 Curteis, Eccl. Rep. pp. 96, 102.
53. This subject has been so fully treated by Dr. Paley, in his view of the Evidences of Christianity, Part 1, Prop. 1, that it is unnecessary to pursue it farther in this place.
54. 1 Stark. on Ev. pp. 483, 548.
55. Campbell, Philosophy of Rhetoric, c. v. b. 1. Part 3, p. 125; Whately, Rhetoric, part 1. ch. 2 § 4; 1 Stark. on Ev. p. 487.
56. See the Quarterly Review, 28:465. These narrators were, the Duchess D’Angouleme herself, the two Messrs. De Bouille, the Duc De Choiseul, his servant, James Briaasc, Messrs. De Damas and Deslons, two of the officers commanding detachments on the road, Messrs. De Moustier and Valori, the garde du corps who accompanied the king, and finally M. de Fontanges, archbishop of Toulouse, who though not himself a party to the transaction, is supposed to have written from the information of the queen. An earlier instance in similar discrepancy is mentioned by Sully. After the battle of Aumale, in which Henry IV was wounded, when the officers were around the king’s bed, conversing upon the events of the day, there were not two who agreed in the recital of the most particular circumstance of the action. D’Aubigne, a contemporary writer, does not even mention the king’s wound, though it was the only one he ever received in his life. See Memoirs in Sully, 1:245. If we treated these narratives as skeptics would have us treat those of the sacred writers, what evidence should we have of any battle at Aumale, or of any flight to Varennes?
57. Far greater discrepancies can be found in the different reports of the same case, given by the reporters of legal judgments than are shown among the evangelists; and yet we do not consider them detracting from the credit of the reporters, to whom we still report with confidence, as to good authority. Some of these discrepancies seem utterly irreconcilable. Thus in a case, 45 Edv. 3:19, where the question was upon a gift of lands to J. de C. with Joan, the sister of the donor, and to their heirs, Fitzherbert (tit. Tail, 14) says it was adjudged fee simple, and not Frankmarriage; Statham (tit. Tail) says it was adjudged a gift in Frankmarriage; while Brook (tit. Frankmarriage) says it was not decided. Vid. 10 .... Others are irreconcilable, until the aid of a third reporter is invoked. Thus, in the case of Cooper v Franklin, Croke says it was not decided, but adjourned (Cro. Jac. 100) Godbolt says it was decided in a certain way, which he mentions (Godb. 269); Moor also reports it as decided, but gives a different account of the question raised (Moor, 848): while Bulstrode gives a still different report of the judgment of the court, which he says was delivered by Croke himself. But by his account it further appears that the case was previously twice argued; and thus it at length results that the other reporters relate only what fell from the court on each of the previous occasions. Other similar examples may be found in 1 Dougl. 6, n. compared with 5 East, 475, n. in the case of Galbraith v Neville; and in that of Stoughton v Reynolds, reported by Fortescue, Strange, and in Cases temp. Hardwicke. See 3 Barn. & A. 247-248. Indeed, the books abound in such instances. Other discrepancies are found in the names of the same litigating parties, as differently given by reporters; such as Putt v Roster, 2 Mod. 318; Foot v Rastall, Skin. 49, and Putt v Royston, 2 Show. 211; also, Hosdell v Harris, 2 Keb. 462; Hodson v Harwich, Ib. 533, and Hodsden v Harridge, 2 Saund. 64, and a multitude of others, which are universally admitted to mean the same cases, even when they are not precisely within the rule of idem sonans. These diversities, it is well known, have never detracted in the slightest degree from the estimation in which the reporters are all deservedly held, as authors of merit, enjoying, to this day the confidence of the profession. Admitting now for the sake of argument (what is not conceded in fact), that diversities equally great exist among the sacred writers, how can we consistently, and as lawyers, raise any serious objection against them on that account, or treat them in any manner different from that which we observe towards our reporters?
58. Mr. Hume’s argument is thus refuted by Lord Brougham. "Here are two answers, to which the doctrine proposed by Mr. Hume is exposed, and either appears sufficient to shake it.
"First-Our belief in the uniformity of the laws of nature rests not altogether upon an experience. We believe no man ever was raised from the dead,-not merely because we ourselves never saw it, for indeed that would be a very limited ground of deduction; and our belief was fixed on the subject long before we had any considerable experience,-fixed chiefly by authority,- that is, by deference to other men’s experience. We found our confident belief in this negative position partly, perhaps chiefly, upon the testimony of others; and at all events, our belief that in times before our own the same position held good, must of necessity be drawn from our trusting the relations of other men-that is, it depends upon the evidence of testimony. If, then, the existence of the law of nature is proved, in great part at least, by such evidence, can we wholly reject the like evidence when it comes to prove an exception to the rule-a deviation from the law? The more numerous are the cases of the law being kept-the more rare those of its being broken-the more scrupulous certainly ought we to be in admitting the proofs of the breach. But that testimony is capable of making good the proof there seems no doubt. In truth, the degree of excellence and of strength to which testimony may arise seems almost indefinite. There is hardly any cogency which it is not capable by possible supposition of attaining. The endless multiplication of witnesses,-the unbounded variety of their habits of thinking, their prejudices, their interests,-afford the means of conceiving the force of their testimony, augmented ad infinitum, because these circumstances afford the means of diminishing indefinitely the chances of their being all mistaken, all mislead, or all combining to deceive us. Let any man try to calculate the chances of a thousand persons who come from different quarters, and never saw each other before, and who all vary in their habits, stations, opinions, interests,-being mistaken or combining to deceive us, when they give the same account of an event as having happened before their eyes,-these chances are many hundreds of thousands to one. And yet we can conceive them multiplied indefinitely; for one hundred thousand such witnesses may all in like manner bear the same testimony; and they may all tell us their story within twenty-four hours after the transaction, and in the next parish. And yet according to Mr. Hume’s argument, we are bound to disbelieve them all, because they speak to a thing contrary our own experience, and to the accounts which other witnesses had formerly given us of the laws of nature, and which our forefathers had handed down to us as derived from witnesses who lived in the old time before them. It is unnecessary to add that no testimony of the witnesses, whom we are supposing to concur in their relation, contradicts any testimony of our own senses. If it did, the argument would resemble Archbishop Tillotson’s upon the Real Presence, and our disbelief would be at once warranted.
"Secondly-This leads us to the next objection to which Mr. Hume’s argument is liable, and which we have in part anticipated while illustrating the first. He requires us to withhold our belief in circumstances which would force every man of common understanding to lend his assent, and to act upon the supposition of the story told being true. For, suppose either such numbers of various witnesses as we have spoken of; or, what is perhaps stronger, suppose a miracle reported to us, first by a number of relators, and then by three or four of the very soundest judges and most incorruptibly honest men we know,-men noted for their difficult belief of wonders, and, above all, steady unbelievers in miracles, without any bias in favor of religion, but rather accustomed to doubt, if not disbelieve,- most people would lend an easy belief to any miracle thus vouched. But let us add this circumstance, that a friend on his death-bed had been attended by us, and that we had told him a fact known only to ourselves, something that we had secretly done the very moment before we told it to the dying man, and which to no other being we had ever revealed,- and that the credible witnesses we are supposing, informed us that the deceased appeared to them, conversed with them, and remained with them a day or two, accompanying them, and to avouch the fact of his reappearance on this earth, communicated to them the secret of which we had made him the sole depository the moment before his death;-according to Mr. Hume, we are bound rather to believe, not only that those credible witnesses deceived us, or that those sound and unprejudiced men were themselves deceived, and fancied things without real existence, but further, that they all hit by chance upon the discovery of a real secret, known only to ourselves and the dead man. Mr. Hume’s argument requires us to believe this as the lesser improbability of the two-as less unlikely than the rising of one from the dead; and yet every one must feel convinced, that were he placed in the situation we have been figuring, he would not only lend his belief to the relation, but if the relators accompanied it with a special warning from the deceased person to avoid a certain contemplated act, he would, acting upon the belief of their story, take the warning, and avoid doing the forbidden deed. Mr. Hume’s argument makes no exception. This is its scope; and whether he chooses to push it thus for or no, all miracles are of necessity denied by it, without the least regard to the kind or the quantity of the proof on which they are rested; and the testimony which we have supposed, accompanied by the test or check we have supposed, would fall within the grasp of the argument just as much and as clearly as any other miracle avouched by more ordinary combinations of evidence.
"The use of Mr. Hume’s argument is this, and it is an important and a valuable one. It teaches us to sift closely and vigorously the evidence for miraculous events. It bids us remember that the probabilities are always, and must always be incomparably greater against, than for, the truth of these relations, because it is always far more likely that the testimony should be mistaken or false, than that the general laws of nature should be suspended. Further than this the doctrine cannot in soundness of reason be carried. It does not go the length of proving that those general laws cannot, by the force of human testimony, be shown to have been, in a particular instance, and with a particular purpose, suspended." See Brougham, Discourse of Natural Theology, Note 5, p. 210-214, ed. 1835.
Laplace, in his Essai sur les Probabilities, maintains that, the more extraordinary the fact attested, the greater the probability of error or falsehood in the attestor. Simple good sense, he says, suggests this; and the calculation of probabilities confirms its suggestion. These are some things, he adds, so extraordinary, that nothing can balance their improbability. The position here laid down is, that the probability of error, or the falsehood of testimony, becomes in proportion greater, as the fact which is attested is more extraordinary. And hence a fact extraordinary in the highest possible degree, becomes in the highest possible degree improbable; or so much so, that nothing can counterbalance its improbability. This argument has been made much use of, to discredit the evidence of miracles, and the truth of that divine religion is attested by them. But however sound it may be, in one sense, this application of it is fallacious. The fallacy lies in the meaning affixed to the term "extraordinary." If Laplace means a fact extraordinary under its existing circumstances and relations, that is, a fact remaining extraordinary, notwithstanding all its circumstances, the position needs not here to be controverted. But if the term means extraordinary in the abstract, it is far from being universally true, or affording a correct test of truth, or rule of evidence. Thus, it is extraordinary that a man should leap fifteen feet at a bound; but not extraordinary that a man should leap fifteen feet at a bound; but not extraordinary that a strong and active man should do it, under a sudden impulse to save his life. The former is improbable in the abstract; the latter is rendered probable by the circumstances. So, things extraordinary, and therefore improbable under one hypothesis, become the reverse under another. Thus, the occurrence of a violent storm at sea, and the utterance by Jesus of the words, "Peace, be still," succeeded instantly by a perfect calm, are facts which, taken separately from each other, are not in themselves extraordinary. The connexion between the command of Jesus and the ensuing calm, as cause and effect, would be extraordinary and improbable if he were a mere man; but it becomes perfectly natural and probable, when his divine power is considered. Each of those facts is in its nature so simple and obvious, that the most ignorant person is capable of observing it. There is nothing extraordinary in the facts themselves; and the extraordinary coincidence, in which the miracle consists, becomes both intelligible and probable upon the hypothesis of the Christian. (See the Christian Observer for Oct. 1838, p. 617.) The theory of Laplace may, with the same propriety, be applied to the creation of the world. That matter was created out of nothing is extremely improbable, in the abstract, that is, if there is no God; and therefore it is not to be believed. But if the existence of a Supreme Being is conceded, the fact is perfectly credible.
Laplace was so fascinated with his theory, that he thought the calculus of probabilities might be usefully employed in discovering the value of the different methods resorted to, in those sciences which are in a great measure conjectural, as medicine, agriculture, and political economy. And he proposed that there should be kept, in every branch of the administration, an exact register of the trials made of different measures, and of the results, whether good or bad, to which they have led. (See the Edinburgh Review, vol. xxiii. pp.335, 336.) Napoleon, who appointed him Minister of the Interior, has thus described him: "A geometrician of the first class, he did not reach mediocrity as a statesman. He never viewed any subject in its true light; he was always occupied with subtleties; his notions were all problematic; and he carried into the administration the spirit of the infinitely small." See the Encyclopedia Britannica, [Correction:Encyclopedia Americana] art. Laplace, vol. xiii, p. 101. Memoires Ecrits â Ste. Helena, 1:3. The injurious effect of deductive reasoning, upon the minds of those who addict themselves to this method alone, to the exclusion of all other modes of arriving at the knowledge of truth in fact, is shown with great clearness and success, by Mr. Whewell, in the ninth of the Bridgewater Treatises, book 3, ch 6. The calculus of probabilities has been applied by some writers to judicial evidence; but its very slight value as a test, is clearly shown in an able article on "Presumptive Evidence," in the Law Magazine, 1:28-32 (New Series).
59. See Norton, "Discourse on the Latest form of Infidelity," p. 18.
60. The arguments on this subject are stated in a condensed form, by Horne, Introduction to the Study of the Holy Scriptures, vol. 1 chap. 4, sec. 2; in which he refers, among others, to Gregory, Letters on the Evidences of the Christian Revelation [Correction: Letters on the Evidences, doctrines and duties of the Christian religion addressed to a friend / by Olinthus Gregory]; Campbell, Dissertation on Miracles. Volume 1 of 2; Volume 2 of 2; Vince, Sermons on the Credibility of Miracles; Bishop Marsh, Lectures, part 6, lect. 30; Adams, Treatise in reply to Mr. Hume; Bishop Gleig, Dissertation on Miracles, (in the third volume of his edition of Stackhouse, History of the Bible, p. 240, etc.); Hey, Norissian [sic, should be "Norrisian"] Lectures, vol. 1. See also Howell Lectures, [sic, should be Hopkins, Lowell Lectures], lect. 1-2 delivered in Boston in 1844, where this topic is treated with great perspicuity and cogency. Among the more popular treaties on miracles, are Bogue, Essay on the Divine Authority of the New Testament, chap. 5; Wilson, Evidences of Christianity, vol. 1 lect. 7; Sumner, Evidences, chap. 10 [See also Sumner’s The Miracles of Jesus]; Gambier, Guide to the Study of Moral Evidence, chap. 5; Norton, Discourse on the latest form of Infidelity, and Dewey, Dudleian Lecture, delivered before Harvard University, in May, 1836.
61. See Wilson, Evidences, lect 7, p. 130.
62. 1 Stark. on Ev. p. 496-499.
63. 1 Stark. on Ev. p. 523.
64. 1 Stark. on Ev. p. 487. The Gospels abound in instances of this. See, for example, Mark 15:21; John 18:10; Luke 23:6; Matthew 27:58-60; John 11:1.
65. 1 Stark. on Ev. pp. 522, 585.
66. See 1 Stark. on Ev. p. 498. Wills on Circumstantial Evidence, pp. [sic, actually, §] 128-129. [pp. 56-57, 1843 edition; pp. 169-170, 1905 edition] 67. See Chalmers, Evidence, chap. 3.
68. See Chalmers, Evidence, pp. 76-78, Amer. ed. [pp. 71-104, 1818 edition] Proofs of this kind copiously referred to by Mr. Horne, in his Introduction, &c. vol. 1, chap. 3, sect. 2:2. [1825 edition] 69. See Mark 8:32; Mark 9:5; Mark 14:29; Matthew 16:22; Matthew 17:5; Luke 9:33; Luke 18:18; John 13:8; John 18:15.
70. Mark 8:29; Matthew 16:16; Luke 9:20.
71. Matthew 18:21; Matthew 19:27; John 13:36.
72. Galatians 2:11.
73. John 20:3-6.
74. Matthew 14:30.
75. Acts 1:15.
76. Acts 2:14.
77. Matthew 16:16; Mark 8:29; Luke 9:20; John 6:69.
78. Matthew 26:33; Matthew 26:35; Mark 14:29.
79. See Paley, View of the Evidences of Christianity, part 2 chap. 3-7; part 3 chap. 1; Chalmers, Evidence and Authority of the Christian Revelation, chap. 3-4, 8; Wilson, Evidences of Christianity, lect. 6; Bogue, Essay on the Divine Authority of the New Testament, chap. 3-4.
80. See Bogue, Essay, chap. 1 sec 2; Newcome’s Obs., part 2 chap. 1 sec. 14.