facts which can only be established by the evidence of persons no longer alive. (30)

The principal exception as to hearsay evidence, recognised by the law of England, which is not founded on the rule requiring the personal appearance of the witness in court, but is common to the judge and the historian, and admits hearsay statements in the ordinary sense of the term, is evidence respecting character. In criminal prosecutions, witnesses are permitted to speak to the general character of the prisoner ;(3) a matter resting on the reputation which a person enjoys among those who know him, and on their belief respecting his moral conduct. A witness in this case is allowed to collect the voices of many, and to represent their collective opinion; the subject is one which scarcely admits of any other sort of proof. Similar rules are recognised in the civil law. (3)

Now the distinction between the original testimony of dead and of living witnesses, so important to the judge, is immaterial

(30) Testis de auditu non probat nisi in antiquis' (Mascardus, ib. concl. 1368; see also concl. 1370, n. 19). Et in universum id in præsentiâ scias quod ubi verus hominis actus est probandus, probatio per auditum non sufficiat. Limita non procedere in antiquis, et in his quæ hominum memoriam excedunt, quia talia auditu probari possunt' (concl. 151). The latter reason would be more precisely expressed thus :-'Quia talia non nisi auditu probari possunt.' The doctrine as to antiquum probari per testes de auditu' is fully explained in concl. 103-104 (vol. i. p. 141-2). It arises from the necessity of the case, as antiquity is construed to be a hundred years, and therefore living witnesses cannot be found to facts of this remoteness. Some jurists have even contested this rule, and have held that some corroboration (as the existence of a public rumour) is necessary. Hence, an antiquum may be proved by fame, by public and private writings, by inscriptions, books, &c., by conjectures and presumptions (concl. 105-7). The difficulty of proving an antiquum gives rise to the presumption, 'omnia in quolibet actu censentur solenniter intervenisse.' -Concl. 108.

(31) Phillipps, vol. i. p. 469. Entries made in public registers, and other official documents, in the proper form and by the proper officers, are also receivable in evidence, whether the registering person is alive or dead.— Phillipps, vol. ii. p. 95-126.

(32) According to the civil law, there are certain facts which a man is presumed to know concerning his neighbour, as his age, his character, whether he is rich or poor, alive or dead, &c. He is not presumed to know momentary acts (Menochius, ib. lib. vi. præs. 24). Among other things, he is presumed to know if a religious neighbour has performed miracles: Hinc etiam dicimus vicinum præsumi scire religiosum vicinum edidisse miracula.'-n. 31.

to the historian. Where the historian's work relates to a former age, he is necessarily confined to the reports of deceased witnesses. The contemporary historian, indeed, relies principally on the reports of living witnesses; but he takes these reports as he finds them, and if he is satisfied that the statement of any credible witness has been recorded in a correct and authentic form (especially if the record has been made by himself, or in his own words), he adopts it, whether the witness be alive or dead. But a person who reports from memory an oral account of an original witness, or one derived indirectly from an original witness, or the contents of a letter giving such an account, is not an original witness to the historian more than to the judge.

The historian has no rules as to exclusion of evidence, or incompetency of witnesses. In his court, every document may be read, every statement may be heard. But in proportion as he admits all evidence indiscriminately, he must exercise discrimination in judging of its effect. Though he receives information of all sorts, he must refuse credit to that which is false, exaggerated, distorted, fabricated, uncertified; he must apply his tests to its credibility; and in this process he will derive assistance from the rules of evidence established by courts of justice. He must be guided, not, indeed, by their rules, but by the reasons of their rules; and while he receives secondary evidence derived from repetition, and not resting on personal knowledge, he must draw a great distinction of credibility between it and primary evidence, authenticated by the observer himself.

It is most important that we should apply to historical evidence, the rules which are recognised for judicial evidence, so far as they are applicable. The rules of judicial evidence have been tried by a long, extensive, and searching experience; and if this experience is unanimous in requiring the evidence of original witnesses, as a safeguard for truth and a protection against injustice, we ought not to hesitate in applying the same rule to historical evidence. Their applicability is often incidentally implied, in the arguments of historians upon evidence,

but it is not formally admitted. (33) If, indeed, the results of historians led to an immediate practical result; if the conclusion of the writer deprived a man of his life, liberty, or goods-the necessity of guiding his discretion by rules such as those followed in courts of justice would long ago have been recognised. (3)

§ 7 When the testimony of the original witness has once been obtained and recorded, either by himself or others, in an authentic form, it is perpetuated so long as the written memorial of it is preserved in the original, or in a faithful transcript; and may at any time be used for historical purposes. It has, however, been maintained by Laplace, after an English mathematician, (3) that the diminution in the value of testimony, which is produced by oral repetition through a series of persons, extends to the tradition of written testimony, through a series

(33) Thus, Paley says that the doctrine as to substantial agreement, combined with variation in details, being the characteristic of human testimony, is received in courts of justice-below, § 19. See also his remarks on the analogy between the rules applicable to corroborative evidence, in courts of justice and in historical writings.-Hora Paulinæ, c. 5.

(34) See J. Eisenhart, De Fide Historicâ Commentarius: Helmstadii, 1679. In this short essay, the question of historical evidence is treated on legal principles, and is illustrated by legal analogies. Compare Wachler, Gesch. der Hist. Forschung, vol. i. p. 884.

The author of the Memoir of Sebastian Cabot thus comments on a hearsay statement respecting the discoveries of that navigator:-'It is obvious that, if the present were an inquiry in a court of justice affecting the reputation or property of a living person, the evidence which limits Cabot to 56° would be at once rejected as incompetent. The alleged communication from him is exposed in its transmission, not only to all the chances of misconception on the part of the pope's legate, but, admitting that personage to have truly understood, accurately remembered, and faithfully reported what he heard, we are again exposed to a similar series of errors on the part of our informant, who furnishes it to us at secondhand. But the dead have not the benefits of the rules of evidence; and we must therefore look to the circumstances which affect its credibility.'-b. i. c. i.

(35) The hypothesis of a gradual attenuation of the strength of historical evidence by the lapse of time, appears to have originated with an English mathematician named Craig, who undertook to determine the end of the world, by the assumption that it would happen when belief in Christianity should cease: and he calculated that, after a certain time, the historical evidence of the truth of Christianity would be reduced to zero. The treatise of Craig is entitled Theologiæ Christianæ Principia Mathematica, autore Johanne Craig; Londini, 1699, 4to. It is dedicated to

of generations; and it is due to his eminence to consider the arguments with which he has supported this view.

'Let us suppose (he says, in his Essay on Probabilities) that a fact is transmitted to us by twenty witnesses-the first transmitting it to the second, the second to the third, and so on in succession. Let us further suppose that the probability of each testimony is equal to 9-10ths: that of the fact resulting from the testimonies will be less than an eighth. This diminution of probability may be compared to the extinction in the clearness of objects by the interposition of several plates of glass; an inconsiderable number of plates being sufficient to intercept the sight of an object, which can be distinctly seen through a single plate. Historians do not appear to have paid sufficient attention to this degradation of the probability of facts, when they are seen across a large number of successive generations; many historical events, considered certain, would be at least doubtful if they were subjected to this test.'() In a later part of his essay he returns to the

Bishop Burnet, and consists of a preface and thirty-six pages. He admits (præf. p. viii) that, according to his argument, the authority of Moses and the other writers of the Old Testament would have been null at present, if it had not been revived by the coming of Christ.

At the beginning of the treatise are definitions, axioms, and an hypothesis, which are followed by propositions, demonstrated by mathematical reasoning.

A scholium (in p. 22) will give an idea of his conclusions:- Per historicos primos intelligo eos, qui historiæ cognitionem ex propriâ observatione aut experientiâ deducunt. Et per exemplar primum intelligo non unum tantum, sed quotlibet exemplaria ab ipso primo historico scripta vel impressa. Jam quia historia scripta majorem longe probabilitatem habet, quam historia per vivam vocem tradita; et quia hujus probabilitas nunquam evanescit, sequitur illius etiam probabilitatem in nullo tempore dato penitus evanescere. Attamen cum continuo decrescat, necesse est ut tandem etiam illa perexigua reddatur.' He determines that the probability of the history of Christ will become evanescent in the year 3150 A.D. p. 24.

Craig's theory, that historical evidence is enfeebled by time, is treated as absurd by Ernesti, De Fide Historicâ recte æstimandâ, § 14. Freret (Euvres Completes, tom. i. p. 149) admits Craig's assumption up to a certain point: Cependant j'avouerai que la certitude ou la credibilité de l'histoire augmente avec la proximité du temps dont elle parle.'—Ib. page 155.

36) Essai Philosophique sur les Probabilités, p. 15; ed. 5. Compare the counter-remarks of M. Daunou, Cours d'Etudes Historiques, tom. i. p. 20-26: Quelques geomètres (says M. Comte, himself an accomplished mathematician) ont même poussé la complaisance, ou la naïveté, jusqu'à tenter, à ce sujet, d'après leur illusoire théorie des chances, de lourds et

same subject. It remains for us (he says) to consider the influence of time upon the probability of facts transmitted to us by a traditional chain of witnesses. It is clear that this proba- \ bility must diminish, in proportion as the chain is prolonged.'

After explaining the numerical law according to which this diminution takes place, he adds:- The action of time, therefore, incessantly weakens the probability of historical facts, as it alters the most durable monuments. It may, indeed, be checked by multiplying and preserving testimonies, and the monuments which support them. Printing offers for that purpose a great resource, unhappily unknown to the ancients. Notwithstanding the infinite advantages which it procures, the physical and moral revolutions by which the surface of this globe will always be disturbed will end, when combined with the inevitable effect of time, by rendering doubtful, after thousands of years, the historical facts which are now the most certain.' (37)

Notwithstanding the high authority of Laplace as a mathematician, it may be confidently affirmed that his reasoning, which puts on the same footing the transmission of historical evidence from one generation to another, and its repetition by one witness to another, rests on a confusion of things wholly dissimilar, and is therefore erroneous.

Where the chain of evidence consists of a number of links, each dependent on the preceding one; where each successive witness makes the account his own, and is substituted for the witness from whom he received the report of the fact-a diminution of certainty, and sometimes at a rapid progression, takes place. In this case there is untrustworthy repetition, and

ridicules calculs sur l'accroissement nécessaire de cette prétendue incertitude par le seul laps du temps; ce qui, outre le grave danger social de seconder des aberrations profondément nuisibles, en les décorant ainsi d'une imposante apparence de rationnalité, a d'ailleurs offert plus d'une fois le fâcheux inconvénient de discréditer radicalement l'esprit mathématique auprès beaucoup d'hommes sensés, trop peu éclairés pour le juger directement, mais justement revoltés de tels abus.'-Cours de Phil. Pos. tom. iv. p. 414. M. Comte's estimate of Laplace differs from that usually received. In tom. vi. p. 465, he speaks of the 'habile charlatanisme' of Laplace.