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• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER VIII.

OF THE SECURITIES FOR TRUSTWORTHINESS IN EVIDENCE.

§ 1.

Qualities desirable in Evidence.

1. Qualities desirable in an article of evidence:—these, for distinction sake, may be termed the internal securities for trustworthiness in evidence.

2. Instruments—operations—states of things—arrangements, legislative and judicial, which have presented themselves as conducive to the investing of the subject in question with these desirable qualities:—these may be termed the external securities for trustworthiness in evidence.

Correctness and completeness—by these two already so often mentioned appellatives, are presented two qualities, obviously desirable, both of them, in every article of evidence—each of them for its own sake, and without need of having its utility enhanced by subserviency to any other quality;—unless, for the expression of that desirable quality, to which they are both subservient, some such term as undeceptiousness were provided and employed. Correctness and completeness—call them accordingly qualities of the first order—primary qualities—qualities intrinsically—on an intrinsic account—on their own account—desirable.

Of these important and desirable qualities, a perfectly correct conception will scarcely, however, be formed, unless their respective opposites, incorrectness and incompleteness, be taken into account, and their import limited by an adjunct bearing reference to these opposities.

This adjunct is deceptious.

In a statement or narration, delivered by any person, on any occasion, in relation to any matter of fact, particulars may have had place in any number, which, though altogether true in themselves, may be equally immaterial in relation to the question, whatever it be, which happens to be on the carpet.—So many as there are of these immaterial or irrelevant particulars, so many are there, in respect of which it may happen, that neither incompleteness, i. e. partial omission, nor incorrectness, i. e. misrepresentation, shall, with reference to the matter in question, be productive of any deceptious effects.

By correctness, therefore, must, on this occasion, be understood—not absolute, but relative correctness;—by completeness, not absolute, but relative completeness:—in other words, by correctness, that and that alone, which has for its opposite, deceptious incorrectness—by completeness, that, and that alone, which has for its opposite, deceptious incompleteness;—incompleteness, in that case, and in that case alone, where, in relation to the matter of fact in question, deception is amongst the effects which it has a tendency to produce.

Taking the above for the qualities desirable on their own account, the following are the secondary qualities, which present themselves as desirable, on account of those same primary qualities, viz. in the character of means subservient to the purpose of securing to the article of evidence in question, the possession of those same primary qualities.

To save the critic ear from excruciation, to the abstract substantive let us substitute the concrete adjective. By one or other of the following epithets may be expressed, it is supposed, all the qualities which, in the character of secondary qualities, can contribute to invest an article of evidence with either of these primary ones:—1. Veracious; 2. Particularized; 3. Distinct; 4. Interrogated, i. e. extracted, and thence completed, and if need be corrected, and explained, by interrogation; 5. Permanent, i. e. consigned to, and expressed by those permanent characters, of which written language affords the most convenient as well as familiar example; 6. Unpremeditated, in so far as a design of falsehood might receive assistance from premeditation; 7. Recollected, in so far as recollectedness may be necessary to truth, i. e. to relative correctness and completeness; 8. Not assisted by undue suggestion, i. e. by suggestion by which falsehood would be more likely to be served than truth; 9. Assisted by due suggestion, i. e. by suggestion by which truth would be more likely to be served than falsehood.

§ 2.

Instruments of Security, for securing to Evidence those Qualities.

The following are the heads, under which every instrument, capable of serving in that character with advantage, will, it is supposed, be found reducible:—

1. Punishment.

2. Shame.

3. Interrogation (including counter-interrogation.)

4. Counter-evidence—admission given to it.

5. Writing—use made of it for giving permanence, &c. to evidence.

6. Publicity—to most purposes, and on most occasions.

7. Privacy—to some purposes, and on some occasions.

Under each of these heads, follow a few words of explanation:—

§ 3.

Punishment.

Of the force of the political sanction, considered as applicable in the character of a source of security against deceptious incorrectness and incompleteness in evidence, mention has been made above. Punishment is, to every eye, the most extensively applicable, and in general the most efficient, shape, in which, to this as well as other purposes, that force can be applied.

Quantity—quality—in this place, under neither of these predicaments, need anything be said: on both of them, though without any special reference to evidence, consideration has already been bestowed in other places.* Remains as the only topic, for consideration of which any special demand presents itself in this place, that of the extent proper to be given to the use of this instrument, in its application to the purpose here in view.

Mendacity being but an instrument in the hand of delinquency—an instrument applicable to the purpose of giving birth, through delinquency, to mischief in all its shapes,—co-extensive surely with the mischief producible by mendacity ought to be the application of punishment, in so far as punishment is, with preponderant advantage, applicable to the prevention of it.

In the track of judicial procedure in particular, co-extensive with the application and applicability of that instrument of mischief, ought to be the application of this remedy.

§ 4.

Judge and Co.—False Evidence rendered by them dispunishable, where profitable to themselves.—Mendacity Licence.

Thus much as to propriety:—for practice, learned ingenuity has discovered and pursued a more convenient course.

Under the English, not to speak of other systems of technical procedure, by means of the command, so easily, when indirectly, exercised by power over language, an expedient was found for rendering mendacity punishable or unpunishable at pleasure. In the person of a party litigant, or a witness, when it was to be rendered punishable, the allegation or statement was called evidence; and to mark it as such, a particular ceremony—the ceremony of an oath—was made to accompany the delivery of it. When it was to be rendered dispunishable, it was not to be called evidence:—it was to be called pleading—pleadings—anything but evidence;—and the ceremony was to be carefully kept from touching it.

At this time of day, few tasks would naturally be more difficult, than that of satisfying the English lawyer, that pleadings not upon oath—that anything, in a word, which in legal use has been carefully and customarily distinguished from evidence, can with propriety be termed evidence. But though, thanks to his ingenuity, so it is that pleadings,—all pleadings at least,—are not evidence in name, yet so it is, that everything that goes by the name of pleading is evidence in effect. All testimonial evidence is statement—narration—assertion:—everything that goes by the name of pleadings is so too. Of evidence, the use and the sole use, is to command decision:—by pleadings, decision is commanded, and in cases to a vast extent and in continual recurrence, and with a degree of certainty altogether denied to evidence.

To the purpose of imposing on the adverse party the obligation of going on with the suit, the contents of every instrument included under the name of pleadings, how replete soever with manifest falsehood, are taken for true, and as such, without the name, have the effect of evidence. The effect (it may be said) is but provisional: but definitively, to the purpose of giving to the suit a termination favourable to the party by whom the instrument is exhibited,—to the purpose of producing a decision—a decision as favourable to him as could be produced by anything to which the name of evidence has been left,—to the purpose of producing the selfsame decision, which, by evidence, supposing it believed, would be produced,—it has the effect—not simply of evidence, but of conclusive evidence:—the party who fails to meet the instrument in question, by that instrument which at the next step, on the other side, ought, in the appointed course to follow it, loses his cause.

Of this eventually conclusive evidence, the power, it may be said, cannot be great: since, by so proper and simple an operation as that of exhibiting the corresponding counter-instrument, the party to whose prejudice the conclusion would operate gets rid of it. Simple enough,—Yes: but instances are but too abundant, in which the operation, simple as it is, is impracticable—foreknown to be impracticable. To the performance of the operation, money is necessary: and on that side, money being by the other side known not to be forthcoming, what is thereby known is, that the exhibition of the counter-instrument is not practicable. It is accordingly because foreknown to be impracticable, that the operation is thus called for: for which purpose, falsehood, the most barefaced falsehood, is admitted to serve, admitted by those judges to whom its quality is no secret:—admitted with exactly the same composure as if it were known to be the strictest truth.

Thus it is, that, under favour of the mendacity thus established, every man who, being to a degree opulent, has, or desires to take, for his adversary, a man to a certain degree less opulent, has it in his power, whether on the plaintiff’s side, or on the defendant’s side, to give to his judicially delivered allegations, by what name soever denominated—pleadings or any other—the effect of evidence: the effect not only of evidence, but of conclusive evidence.

And thus it is, that by the forbearance—the astute forbearance—to give, to the security afforded by punishment, the extent necessary to justice, mendacity is generated and cherished—injustice through misdecision produced:—the evils opposite to the direct ends of justice, produced, by means of the evils opposite to the collateral ends of justice.

Among lawyers, and more especially among English lawyers, so commodiously, and thence so universally, is custom accepted as an adequate substitute for reason—so unprecedented is it for a man to trouble himself with any such thought, as in regard to any of the established torments, out of which his comforts are extracted, what in point of utility and justice may have been the ground for the establishing of them,—or so much as, whether they have, or ever had, any such ground at all,—that at the first mention, a question to any such effect will be apt to present itself to them, as no less novel, than idle and absurd. But concerning judgment by default, and everything that is equivalent to it* —be it in a House of Commons,—be it in a House of Lords,—or be it in any other place,—should any such misfortune happen to him, as to feel himself under a necessity of finding something in the character of a reason to give, in answer to the question—why it is that judgment by default is made to follow upon default,—his reason would be this or nothing, viz. that in this case, on the defaulting side, want of merits is inferred; and not only so, but that it is from the allegations contained in the instrument last delivered on the other side—it is from that, and nothing else, that the inference is deduced.

At the same time, that which, be he who he may, is well known to him—or at least, but for his own wilful default, would be known to him—that which he has always in his hands the means of knowing—means beyond comparison more ready than any which are possessed by the vast multitude, who, at the instance of his tongue, and by the power of his hand, are so incessantly and remorselessly punished—punished for not knowing that which it has so diligently and effectually been rendered impossible they should know, is—that, in the case of an average individual, the chances against the truth of the conclusion, thus built and acted upon, are many to one.

To be assured of this, all that a man has to do, is—on the one side of the account, to look at the average, or even at the minimum amount of the costs on both sides, which, on each side, a party subjects himself to the eventual burthen of,—or though it were at those on one side only:—on the other side of the account, at the annual amount of what an average individual of the labouring class (beyond all comparison the most numerous class)—or even though it were an average individual of the aggregate of all classes, the very highest not excluded—has for the whole of his possible expenditure. This comparison made, then it is that any man may see, whether, by forbearance to go on with an existing suit, at any stage, on either side, whether on the plaintiff’s side, by forbearing to commence a suit,—any preponderant probability may be afforded, of what is called a want of merits.

Of two all-pervading masses of instances, in which, throughout the whole system of technical judicature, conclusions having been built, are continually acted upon by men, to whom, one and all, the premises on which those conclusions are built, and thence the conclusions themselves, are, or without their own wilful default, would be known to be, false,—this is the first, for the mention of which the occasion has here happened to present itself.

Under the head of non-observance of formalities, a failure, considered as being, or at least, dealt with as if it were evidence—evidence conclusively probative of unfairness on the part of a contract, or spuriousness on the part of an instrument of contract—under this other head, mention of another instance will come to be made, in the chapter on Pre-appointed Evidence.

Nullification—to which belong conjugates and quasi conjugates, much too abundant to be here collected,—null, void, bad, quash, set aside, and so forth—nullification is the name given to the factitious engine of iniquity, by which the sort of effect here spoken of is, in both instances, produced. Instruments and operations of judicial procedure—contracts and instruments of contract—whatsoever has been the subject to which it has been applied, lawyer’s profit is what the machinery will be found to have had exclusively for its object—lawyer-craft for its inventor and constructor—iniquity and misery for its effects.

By encouragement as well as impunity thus given to mendacity, if it be on the plaintiff’s side, the number of suits is made to receive that addition, which is brought to it by those in which the dishonesty—the mala fides, as the phrase is—is on the plaintiff’s side: by the like boon bestowed on the defendant’s side, the like addition is made to the number of those to which continuance is given by dishonesty on the defendant’s side.

See more to this purpose under the head of Oath.

On all these occasions, partner and accomplice in the fraud on one side of the cause, in the oppression on the other, the judge, as well as his collaborators, extract emolument out of the mendacity thus produced under the name of pleadings,—the mendacious evidence thus suborned is all in writing,—and the mass of writing is a mine of fees.*

§ 5.

Shame.

By punishment, one part of the force of the political sanction is employed; by shame, viz. that which a man is exposed to by detection, or even by suspicion, the corresponding part of the force of the popular or moral sanction is employed.

In respect of the extent to which they are respectively applicable, compared with punishment, shame has the advantage. For the application of it, much less evidence being necessary, mendacity thus experiences restraint in cases in which it would otherwise experience none.† Whether it shall in a greater degree be exposed to shame than punishment, depends, however, in a more direct way upon the individual circumstances, than upon the species of the case.

Taken by itself, and without punishment, or legal power in any other shape, for its support, the insufficiency of shame, to this as well as other purposes, is, however, but too manifest.

In cases where the profit of delinquency rises to a certain height, the inadequacy of shame needs no words to prove it. Though in the case of shame less evidence be necessary than in the case of punishment, yet as neither in the case of shame, any more than in the case of punishment, can the principle of restraint operate, but in proportion to the apparent probability of the transpiration of evidence,—thus it is, that in this, as in other instances, on the will of those at whose disposal punishment—legal punishment—is placed, it depends, in a great degree, to keep delinquency out of the reach of shame, viz. by refusing, or stifling, that legal inquiry without which the evidence cannot be made to transpire.

Applying, with that exception, to all sorts of cases, shame, when alone, does not, however, apply to all sorts of persons. Of the few, a great proportion are too high to be reached by it: of the many, a great proportion are too low.

By a situation by which, in this case, a man is placed above punishment, he is thus but too effectually, as we have just been seeing, placed, moreover, above shame. Under the name of perjury, mendacity is covered, not only with punishment, but with infamy: under the names of fiction and practice, it is covered, not only with reward, but with honour. Shame touches not that mendacity, the seat of which is either at the bar or on the bench.

§ 6.

Interrogation—including Counter-Interrogation.

In this may be seen the operation which, under some circumstances, is necessary even to the existence of the evidence, and in all cases, eventually, if not absolutely necessary to its security against deceptious incorrectness, as well as against deceptious incompleteness.

Note, that a mass of testimony, spontaneously delivered, being supposed incomplete, thereupon, if, to interrogation asking whether it be complete, the answer be in the affirmative, incompleteness becomes incorrectness.

On whom—by whom—shall the operation be performable?

1. On whom?—that is, on what person?—the only proper answer seems to be, on every person, from whom, in the situation of examinee, information for any purpose of justice may with reason be expected;—let this situation, as more particularly described, be on the plaintiff’s side of the cause, on the defendant’s side of the cause, or in the witness’s box. Applied to the case of a malâ fide examinee, the utility, not to say the necessity, of the operation is manifest: applied to the case of a bonâ fide examinee, its utility will be found to stand on ground no less clear; and in practice, it has been less narrowed.

By what hand shall this instrument of elucidation be applicable? Prejudice apart—prejudice derived from primeval barbarism and unreflecting practice—the answer seems not difficult:—Subject only to the necessarily controuling hand of the judge, from every hand from which, in this shape, any useful suggestion can with reason be expected. Not to speak of the judge, whether principal and permanent,* or assistant and occasional,† —from the hand of a party by whom the evidence was called for—from the hand of another party on the same side of the cause—from the hand of the party on the opposite side, or if on that side there be divers parties, from the hand of each one of those parties—from the hand of a witness or co-witness called on the opposite side—from the professional assistants or substitutes of the parties in all these several situations—why not even from an amicus curiæ?

Interrogation undequaque is the adjunct by which interrogation may be expressed, when the light which it is so well suited to afford is let in from all quarters, from which, to the purpose here in question, light can reasonably be expected: and, due allowance made for special reasons to the contrary in special cases, interrogation undequaque may, it should seem, be stated as the mode prescribed by reason and justice.

Meantime, by whomsoever applied, cases are not altogether wanting, in which, whether physically or no, this security, important as it is, will be seen to be prudentially inapplicable: in the shape of delay, vexation, and expense, preponderant inconvenience presents a class of occasional exceptions, the propriety of which is obvious.

Meantime, as to what concerns vexation and expense, a cause of this nature may exist at one time, cease to exist at another: and the cause ceasing, so may the effect.

Cross-examination is a mode of interrogation familiar to every English ear: but under this same name, operations importantly different in nature and efficacy are confounded and disguised.

In all cases, it has for its opposite examination in chief. Interrogation performed upon an extraneous witness, at the instance of that one of the parties by whom his appearance in the character of a witness was called for—or, if his appearance was called for on both sides, at the instance of him by whom his actual deposition was first called for,—interrogation thus performed, being interrogation in chief, cross-examination is interrogation at the instance of a party whose station is on the opposite side of the cause. Cross-examination being thus described, it will immediately be seen to be but an incompletely extensive, and upon reflection, it is supposed, an inadequate application of the principle of undequaque interrogation, as above explained. In English practice, English-bred procedure has its cross-examination;—Rome-bred, to which belongs equity procedure, a cross-examination of its own, and that a very different one. Hence ambiguity and confusion, the clearing up of which must for the moment wait—wait for matter which, in the next chapter, will present itself under its proper head.

§ 7.

Counter-Evidence—Admission given to it.

In relation to any supposed matter of fact, evidence being delivered on one side of a cause, counter-evidence is any evidence delivered in relation to the same supposed matter of fact on the other side: if more parties than two with conflicting interests, on any other side.

Besides the influence exercised by counter-evidence when delivered, the expectation of it will naturally operate with more or less force, through the medium of fear of punishment and shame, as a security against temerarious as well as mendacious statement; thence against deceptions incorrectness and incompleteness on the other side.

Note, that as often as, to any article of evidence, the name and effect of conclusive—as in the phrase conclusive evidence—is given, an exclusion is thereby put, in the lump, upon all counter-evidence not already received, and upon the effect of all counter-evidence received or not received. With what propriety, will be seen in an ensuing chapter.

§ 8.

Writing.

In its application to this purpose as to other purposes, writing, like most other efficient and powerful instruments, is capable of being made productive of the most beneficial, and, at the same time, of the most pernicious effect.

To maximize use—to minimize abuse,—such here, as elsewhere, ought to be the object of the legislator.

In what way, from this instrument, evidence may be made, in the most effectual manner, to receive not only permanence, but distinctness and recollectedness, will be seen more particularly as we advance. Moreover where, by distance, the collection of evidence in the oral mode is rendered either physically or prudentially impracticable, to this instrument it is that it must be indebted, not only for perfection but for existence.

As to the evil effects of which it is liable to be made productive, one comprehensive lot of them has been already brought to view. Of the ways in which English judges have contrived to derive emolument and power from mendacity, a glimpse has just been given: in all these cases, the mendacity has had writing, not only for its vehicle, but for its actual and probably for its necessary and indispensable instrument. Vivâ voce lies could not be taxed like written ones.

In this way, the evil, of which the abuse is most directly and certainly productive, is that which stands correspondent and opposite to the collateral ends of justice, viz. the evil composed of delay, vexation, and expense.

But on either side of the cause, by stripping the party of the power, or even of the will, to maintain his right, this same instrument, through the medium of the collateral ends of justice, is continually felt striking and with fatal effects, against the direct ends.

Of writing is composed—if not the whole, a part at least of the ticket, which every man has to purchase, who puts into, or is forced into, the lottery of the law. On either side, he to whom the purchase is physically—is or is thought to be prudentially—impracticable, loses his right, and the loss has misdecision for its immediate cause.

In the following instances, the evil is that which stands immediately correspondent and opposite to the direct ends of justice:—

1. It will be seen how, by keeping the deponent out of the reach of those means of elucidation—prompt and immediate elucidation—which apply to the case of orally-delivered testimony, writing is capable of being made an instrument of indistinctness in testimony, producing that frequently deceptious effect to any amount.

2. By the time which the use of it necessarily demands, it affords room for mendacity-serving invention to do its work.

3. Keeping the deponent out of the reach of all mendacity-restraining eyes, it affords room and opportunity for the receipt of mendacity-serving suggestions from all quarters.

True it is that, in some degree, these evils receive a compensation from the room which, at the same time, is left for reflection to other persons, who, lest the mendacity, if credited, should be productive of its intended fruit, viz. misdecision, stand engaged, by interest or by duty, to apply their exertions to the exposure of it.

But, of the compensation, it will be seen that it is scarcely adequate; and, be that as it may, that it may be had without the inconvenience.

For a brief indication of the means whereby the maximization of the use may be conjoined with the minimization of the abuse, the following hints, loose as they are, must yet, for the present, serve:—

1. Writing having, for its necessary accompaniments, delay, vexation, and expense,—never employ it but for a determinate purpose.

2. Never employ it, but in so far as it promises to be preventive of preponderant evil—viz. in the shape of misdecision;—viz. either on the occasion of the suit or cause in hand, or on the occasion of future contingent suits or causes: or in the way of recordation to a statistic purpose, for legislative use.

3. For distinctness, let it be cast into articles or paragraphs, short and numbered.

4. For prevention of mendacity-promoting invention and suggestion, first receive the testimony in the orally-delivered mode; then, for recollectedness, receive it in the scriptitious mode.

5. To give permanence to orally-delivered evidence, by minutation and recordation convert it into scriptitious.

§ 9.

Publicity, to most purposes, and on most occasions.

Publicity and privacy are antagonising qualities: from privacy, in so far as it obtains, publicity receives its limits: considered as the effect of design, privacy takes the name of secresy.

As to publicity,—conceivable publicity has no other bounds than that by which the total number of human beings is circumscribed.

In regard to judicial instruments and operations in general, and in regard to evidence and the delivery of evidence in particular, both publicity and privacy, over and above those uses by which they are numbered among the securities against deceptious incorrectness and incompleteness in evidence, have other uses, which are referable to the ends of justice:—but those other uses, some of which will presently be brought to view, have no direct bearing on the present purpose.*

Uses of Publicity in relation to Evidence.

1. Of publicity applied to all those instruments and operations without distinction, one capital and all-comprehensive use consists in the operation it has in the way of restraint upon misdecision, and against injustice in all its other shapes, on the part of the judge: by it, in character of a safeguard, the force of the popular or moral sanction is brought to bear upon his conduct in a direct way: and moreover, in a less direct way, viz. by its helping to furnish eventually-convicting evidence, the force of the legal sanction; and in so far as, in the exercise of his authority, it lies in the way of the judge to restrain or to promote deceptions incorrectness and incompleteness in evidence, in so far does publicity operate in the character of a security for correctness and completeness.

2. By publicity, in proportion to the extent of it, the mendacity and temerity-restraining force of the popular or moral sanction is brought to bear directly upon the evidence.

3. In cases in which, by ignorance of the demand for it, or by sinister interest, in the shape of consciousness of delinquency or any other shape, forthcomingness of evidence is obstructed—in such cases, in proportion as the proceedings receive publicity, the probability of obtaining evidence receives increase.

Means of effecting Publicity in relation to Evidence.

In the case of orally-delivered evidence, the means of publicity depend upon—1. The size of the theatre of justice; 2. The accommodation which it affords to spectators and auditors; and 3. The facility with which they obtain admittance.

In the case of written evidence, whether ready written or minuted down from orally-delivered discourse, it depends upon the application made of the press to this purpose, and upon the extent to which its productions so applied are disseminated.

In the case of orally-delivered evidence, in so far as depends upon the size and other circumstances belonging to the theatre of justice, publicity depends altogether upon government:—upon the mode in which application is made of its powers to this purpose. In the giving publicity to written evidence shall government be active, or content itself with being passive? Answer—As far as, on the part of individuals, adequate interest and adequate means are found united, a purely passive may be the best part for government:—so far as, on the part of individuals, it happens to either of those requisites to be deficient, in so far it lies with government to supply the deficiency, regard being always had to expense in the character of a preponderant inconvenience: whether it be so or not, will depend upon the importance of the cause.

In so far as, in relation to evidence, publicity is necessary to justice, it is so no less before than after litigation commenced, and to this purpose the distinction between actual and potential publicity should be kept in mind.

This distinction applies in a more especial manner to official evidence: documents indicative of the transactions of public offices. In whatsoever office ultimately-potential publicity is from any part of the proceeding banished, in so far despotism is established. But to ultimately-potential to substitute actual publicity throughout, would, over and above special inconvenience by disclosure—(an inconvenience varying according to the nature of the business,) be productive of such inconvenience, as, in the shape of vexation and expense alone, would of itself be found preponderant.

Of official evidence, more may be seen in the chapter on Pre-appointed Evidence.

§ 10.

Privacy, to some purposes, and on some occasions.

Of the circumstances by which, in regard to legal evidence, a demand for privacy—understand always relative and provisional privacy—may on one account or other be created, a general intimation may be conveyed by a few words.

I. Purposes bearing relation to evidence, and subservient to the direct ends of judicature:—

1. Prevention of mendacity-serving information:—the architectural arrangements of, as well as the course of proceeding in, the theatre of justice, so ordered, that the testimony, delivering and just delivered, by one witness, may be kept secret from another.

2. Prevention of those reticences, and consequent defalcations from the completeness of a mass of testimony, which, in some cases, are apt to be produced by extreme timidity, on the part of a deponent whose trust-worthiness stands clear of suspicion; especially prevetion of defalcation from the completeness of disclosure, where, in resentment of disclosure, special injury is apprehended from the unjust resentment of this or that particular individual.

II. Purposes bearing relation to evidence, and subservient to the collateral ends of judicature:—

3. Prevention of disclosures injurious to the pecuniary reputation of individuals, especially of suitors.

4. Prevention of disclosures injurious to the moral reputation of individuals, and the peace of families.

III. Purposes regarding the ends of judicature, but not through the particular medium of evidence:—

1. Securing the peace of the judicatory, and the person of the judge, against casual violation. Power to the judge, on any particular occasion, but for that time only, to apply, to the number of the spectators, for special cause assigned, any such limits as shall be deemed necessary to this purpose.

2. Prevention of any disclosures that threaten to be subservient to non-forthcomingness on the part of persons or things, on whose part forthcomingness is necessary to justice, whether to the purpose of justiciability, or to the purpose of evidence.*

Publicity being among the natural instruments of justice,—secresy, unless under particular limitation, one of the most mischievously efficient instruments of despotism,—hence an obvious memento, on no occasion to give to privacy any extent beyond what the particular nature of the occasion absolutely requires.†

Attached to every great theatre of justice should be a little theatre. Leaving the auditory in the great theatre undisturbed—(not driven out like cattle, as in a division in the House of Commons)—as often as any special demand for privacy happens to present itself, (for example, where, for relief to an unoffending party or witness from an impending burthen, pecuniary circumstances are to be inquired into,) let the judge, taking with him such persons, the propriety of whose presence is indicated by a compromise between the antagonizing principles, shift the scene for the occasion into the little theatre.

CHAPTER IX.

[* ]See Introduction to Morals and Legislation, and Rationale of Punishment.

[* ]Equivalent to it.] Examples:—In common-law practice, judgment as in case of a non-suit: in equity practice, taking of the bill pro confesso, in what is called contempt; for when, by the ruin of his fortunes, and consequent inability to pay the appointed price for a chance of justice, a man has been reduced to the lowest pitch of humiliation, contempt, the offspring of pride, is imputed to him: and it is for his pride that he is punished:—punished, by being excluded from that chance.

[* ]To quote or refer to the instances in which profit-yielding mendacity is thus generated, would be to quote or refer to the whole contents of the several law-books, in which, under the name of books of practice, for the use and benefit of the members of the profession, the course of judicial procedure is delineated.

[† ]In the courts of natural procedure, recently established in Denmark, under the name of reconciliation courts, shame is, or at any rate, originally was, the sole cause of restraint, to the action of which testimonial mendacity was subjected: neither punishment nor oath were there employed: and the success has been such, as to have reduced to a small fraction the antecedently customary number of causes instituted in the courts of technical procedure.

[* ]Viz. the judge so called.

[† ]Viz. a juryman.

[* ]In the Wesminster-Hall courts—in those chief seats of English judicature,—of the smallness of the apartment,—of the small room it affords, by the large proportion necessarily occupied by the immediate actors in the drama, and by such other members of the profession as are in attendance—of all these causes taken together, such is the effect, that, with the exception of a very small proportion of those members of the public at large, who, had they the means, would not want motives for attendance, publicity is excluded:—excluded, not indeed by legal laws, but by instruments of somewhat stronger mould,—by physical ones.

On the occasion of those architectural improvements which have been sometimes talked of, the provision made, in relation to the points brought to view in the text, will, in the breasts of the directors, afford in no inconsiderable degree, a test and a measure of the regard entertained for the ends of justice.

[* ]Example:—Temporary relative privacy, necessary to conceal, from a delinquent, evidence, by which he would receive warning to withdraw himself or his effects out of the reach of justice.

[† ]In the metropolis, in examinations taken in criminal cases by police magistrates, privacy is occasionally given, and that avowedly, to this or that part of the inquiry: and this secret mode,—not being employed otherwise than sparingly, and for special and visible cause, nor even thus being other than provisional and capable of being eventually succeeded by complete publicity co-extensive with the privacy,—justice seems to have everything to gain, nothing to lose by the temperament.