58 ANDREW J. SHIPMAN MEMORIAL 



and opinion evidence (other than that of certain experts) is 

 completely barred. But upon the continent of Europe, under 

 the Roman law, it is not so ; there they say that the same meth- 

 ods that a man takes in the ordinary affairs of life to establish a 

 fact, whether by hearsay testimony or not, should be followed 

 to establish a fact in court. They point out that the business 

 and reputation of every man in the world would go by the board 

 were direct evidence alone required in the affairs of everyday 

 life. I am not arguing the point, I am only stating the prac- 

 tice. This practice Mr. Archer seems entirely to overlook, 

 and desires thereby to score a point, in judging a Spanish trial 

 by comparison with the standards set up by the English com- 

 mon law. 



When, however, the evidence is direct evidence, Mr. Archer 

 undertakes to step, in imagination, upon the bench of the trial 

 judges at the court-martial, sift the evidence and decide that 

 it is not against Ferrer. Even our appellate courts here do not 

 do that, at least not in theory of law. They always say that the 

 trier of fact, whether jury, referee, or judge, saw the witnesses, 

 was nearer to the facts, and knew more about them than per- 

 sons who see them in print long afterward. Hence we can 

 very well assume that the seven judges of the Ferrer court- 

 martial knew better what weight to give to the direct evidence 

 then, than Mr. Archer could after the lapse of nearly a year. 



This will be more apparent when we come to take up the 

 specific case of the testimony of Don Francisco de Paula Coll- 

 deforns, who testified that between seven-thirty and eight- 

 thirty in the evening of July 2.^, 1909, he saw a man, whom he 

 recognized from photographs as Ferrer, "captaining a group" 

 near the Lyceum Theatre on the Rambla in Barcelona. I have 

 had the very spot pointed out to me by a cabman. One may 

 very well recognize Mr. Roosevelt, or Mr. Taft, from having 

 seen their photographs, although one had never laid eyes on 

 them before. We must remember that Ferrer had not long be- 

 fore been implicated in the bomb explosion in Madrid, when the 

 attempt was made on the lives of King Alfonso and Queen Vic- 

 toria, and his portrait was published dozens of times in all the 

 Spanish and French illustrated papers, and he was as well 

 known by portraiture as any political or aviation celebrity is 

 here. Hence it was not such an unusual thing for a newspaper- 

 man to be able to recognize him from a photograph. 



