lished as an axiom, the universally perjurious power of a farthing, whether in possession, reversion, or remainder. 'Whether the confession of guilt be caused by hope or fear, and whether, if so caused, it be true or false, are or rather should be questions of fact,' to be determined in the same mode as all other similar questions. The visionary and theoretic judge, ignorant of the parties, and of the motives inducing the attendant circumstances, decides before hearing, that all confessions thus obtained will be false. How can his judgment compare with the practical man, who perceives not merely the insulated fact, but the circumstantiathe surrounding and concentering facts. Why not permit the jury to decide on this as on any other evidence, and to determine from the whole submitted, whether the confessions are false or not? Because centuries ago it was judicially foreseen, with more than prophetic vision, that through coming time, confessions extorted by hope or fear, or the slightest inducement of any kind, would be false, and being false, their future exclusion was foreordained. Notwithstanding the rules of law on the subject, the testimony thus excluded, in some very important respects, is more entitled to confidence than the supposed voluntary but unintentional confession, of the prisoner, which the law considers the "highest evidence," because it is a confession 1 State v. Jenkins, 2 Tyler's Vt. Rep. 377. "The confession of a person on trial for a crime, must be submitted to and weighed by a jury; if exhausted by personal suffering, it ought not to weigh in the least,—if produced by fear or flattery, the jury must determine whether it is true or not; but if unsupported by corroborating circumstances it cannot operate to convict." "Indeed I have sometimes doubted whether confessions with their accompanying circumstances, ought not always to be received in evidence; but the law is settled otherwise." By Morton J., in Comm. v. Knapp. The expediency of the law as it is, does not seem to commend itself to the clear head and sound and discriminating mind of Mr. Justice Morton. Indeed, nothing but the inviolability of precedents sustains much of what is laid down as law. made and returned as such,—and very little likely to be made unless true; while much of what is received is mere casual, thoughtless remark, and entitled to little weight. Confessions, "influenced by the flattery of hope or the torture of fear," it is seen, have been excluded in criminal cases, because instead of "accelerating and clearing," they "impede and foul the current of justice." But the same confessions of the same individual, excluded in a criminal trial,* transferred to the civil side for judicial use, are unhesitatingly received. To preserve an apparent self-consistency, the judge has found it necessary to change either his wig or his title, when he reversed the rules of law on the same subject; but in this instance the formality is dispensed with. Excluded in a criminal case, because the confession was caused by hope or fear, and consequently untrue, the same reason should apply with equal cogency in a civil cause, unless it be that truth is less desirable in that class of actions, or that the same statement varies from truth and falsehood, and back, according to the use to which it is appropriated. But it would seem, that with the most utter inconsistency, the same reason, to the same testimony of the same individual, in relation to the same facts, ceases to be applicable, in case the process is changed from the state as plaintiff to that of the individual injured. Disastrous as is the action of hope or fear on innocence, excluded as are confessions obtained through their action, lest the current of justice should thereby be "impeded and fouled," it would seem that their sinister effect ceases when applied to guilt. The accomplice, testifying under a hope of pardon, dependent upon his testimony, is received. 1 6 Pet. Abr. 83, Confessions. 2 Parol evidence of a confession, made under a promise of pardon, is admissible in a civil action: the public officer cannot, by such engagements, affect the rights of individuals. Patten v. Freeman, 1 Cox N. J. Rep. 113. If untrue, the rights of individuals require the exclusion of such testimony. In his case, the desire of self-preservation may induce falsehood to the injury of innocence. That it should, is as, if not more, probable, than that innocence should attempt escape through the devious path of false confession. If those motives will induce innocence to state untruth, will they not be likely to have more power over guilt? and will not guilt sooner testify falsely to the injury of innocence, than innocence turn its own destroyer? We have thus analyzed and compared some of the inconsistencies of the law on this subject. Were it more fully examined, those inconsistencies might be still more clearly developed. But the object in view will be fully answered, if the attention of others should be called to the subject. J. A. ART. VII.-THEORY OF PROOF IN CRIMINAL PROCEDURE. Die Lehre vom Beweise im deutschen Strafprozesse nach der Fortbildung durch Gerichtsgebrauch und deutsche Gesetzbücher, in Vergleichung mit den Ansichten des englischen und französischen Strafverfahrens, [Theory of Proof in the German Criminal Procedure, &c. in comparison with that of the English and French Systems,] von Dr. C. J. A. MITTERMAIER, Gehemienrathe und Professor in Heidelberg. Darmstadt: 1834. [Translated from an article by Mr. Rauter, in the Revue Etrangère et Françoise, for January, 1837]. In this new work, the intention of the author, already known as one of the first jurisconsults of his country, has been to present, in a systematic order, the principles and rules, which, in Germany, guide or are intended to guide the criminal judge, in the appreciation of the accusations brought before him. In addition to this end, Mr. Mitter maier appears also to have had in view another, which, in its nature, is political rather than juridical, namely, to ascertain how far criminal procedure admits of a legal theory of proof, or, in other words, to what point the criminal judge may be bound by the law to declare himself convinced by such or such a means of proof, independent of his own personal conviction. The slightest investigation of this matter immediately gives rise to the further question, whether the jury is compatible with a legislation concerning proof, which admits absolutely or even only relatively of the system of legal proof? It is also under this last point of view, that the opponents of the introduction of the jury in Germany have regarded this point of legislation, and, knowing the cautious character of their nation, which, in judicial as in other matters, incurs as little risk as possible, they have attacked the jury less in principle, than under the relation of the possibility of making it perform its functions in a manner conformed to justice. The cause of this incapacity, in their opinion, lies particularly in the difficulty or impossibility of establishing rules concerning the proofs, upon which the jury are to found their verdict of guilty. Can this decision be in all points the result of the mere conviction, which the proceedings produce in the mind of the jury? It must be admitted, that, relatively to certain elements of fact in crime, this conviction is absolutely impossible. There are certain elements of crime, which, as the products, if we may so say, of our artificial social state, are themselves artificial, and cannot be established but in an artificial manner. Has a forgery been committed of a commercial instrument? Has the accused committed a theft as a public functionary? Was the second marriage of one charged with bigamy a real marriage? Is one accused of parricide the son of his victim? In all these questions, artificial elements are intermingled, to the establishment of which, the conviction of the jury can do nothing. Thus, those even, who, in Germany, have been the most in favor of the introduction of the jury, or of its preservation in the Rhine provinces, have been obliged to admit the difficulty; some have sought to obviate it, whilst others have abandoned the jury, relying for guaranties upon a different organization of the system of legal proof, hitherto in vigor. The latter, desirous at the same time to answer the reproach of impunity and weakness, urged against juries, and to that of absurdity, alleged against the system of legal proof, according to which the judges are bound, even in reference to simple points of fact, to require a particular number of witnesses, or the existence of certain kinds of evidence, and cannot, on pain of nullity, follow their own conviction, when the witnesses and the evidence are opposed to it, have abandoned the jury, and have conferred upon the judges the right of deciding in the same manner as juries, relatively to questions having for their object the natural elements of crime, and, as a preliminary, the question which relates to the morality of the act. The difficulties, which beset the theory of criminal proof, have induced Mr. Mittermaier to make this theory the subject of a special work, in which he might more thoroughly investigate the principles, which he had already indicated in his course of criminal procedure compared. "I have endeavored," he remarks, "to present the theory of legal proof in its principles, to deduce therefrom all the consequences, to collect at the same time the dispositions of the new German laws, and, in particular, to examine the attempts of combination or conciliation which they have made; at the same time, I have attempted to develop the differences presented by the English and French procedure.” The work is divided into nine chapters, which treat: 1. Of proof in criminal matters in general, and of its relations with the judgment by judges-jurisconsults, and that by juries; 2. Of proof by ocular inspection of the judge; 3. Of |