Certain Legal Analogies -- By: Francis Wharton

Journal: Bibliotheca Sacra
Volume: BSAC 040:158 (Apr 1883)
Article: Certain Legal Analogies
Author: Francis Wharton


Certain Legal Analogies

Rev. Francis Wharton

I. Proof Strengthened By Time

The tests applied to disputed writings are not irrelevant when we consider the proof of miracles, which are the alleged autographs of God. When a writing is disputed, we inquire, first, from what depository it comes; secondly, whether it is similar to other writings of the alleged author; thirdly, whether it stands the scrutiny of time. The last inquiry is of peculiar importance. It is alleged that all who are not eye-witnesses of a miracle take it on hearsay, just as all who are not subscribing witnesses to a will testify at second-hand. But this is not so. In the first place there are many cases in which proving the hand-writing of a deceased subscribing witness supplies stronger proof than would be supplied by producing, within a short time after the death of the testator, the subscribing witness himself. If the opposing interests had prompt notice of the signature of the witness — if they omitted to contest it, they having the opportunity to do so, at a time when the evidence on both sides was fresh — then, in addition to the inference that a man who signs his name as subscribing witness does so intelligently and honestly, we have the inference of genuineness drawn from the non-production of impeaching tes-

timony by those interested in producing it if it existed. “Time,” said Lord Plunkett, in a metaphor spoken of by Lord Brougham as not only singularly fine, but singularly true, “carries in one hand a scythe with which he cuts down vouchers and proofs, and in the other an hour-glass which tells us when such proofs shall be no longer required.” But Time goes further than this. He does not merely say, “after a certain period your vouchers and proofs will not be required.” This might give a technical rather than a moral victory to a party whose claim is thus aided. He says, in addition, “you who do not bring forward, in due time, proofs impeaching facts prejudicial to your interest are witnesses that no impeaching proof exists.” And this is matter of substance.

But there are other ways in which the lapse of time strengthens proof of ancient disputed writings. First it may happen that the hand-writing may exhibit the marks of a specific era. Experts, for instance, may be able to assign particular writings to particular countries and particular centuries; and though there may be some hesitation in this respect when two centuries form so continuous a current as do the eighteenth and the nineteenth, there is little room for doubt when the question is between the first century and the third, or the second century and the fourth. Then, in the next place, we have new tests of great power which were not known ...

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