Front Page Titles (by Subject) CHAPTER XI.: COLLECTION OF EVIDENCE—ENGLISH PRACTICE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XI.: COLLECTION OF EVIDENCE—ENGLISH PRACTICE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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COLLECTION OF EVIDENCE—ENGLISH PRACTICE.
Natural Procedure,—Fit Modes—Parliamentary and Jury Trial, &c.
Never was trite adage more fully exemplified, never more completely verified—verified in those high situations in which it is least excusable.
Of the system best adapted to the collecting of evidence, though the several leading features, with their respective uses and excellences, may never yet have been distinctly and completely brought to view, of this best system,—the only one that ever could really have had for its object the discovering of truth, and administering of uncorrupt justice, there is no secret: no secret can there ever have been, to any of those by whom, to the extent of their power, the two worst modes that could be found have all along, as will be seen, been employed in preference.
This consciousness will be placed in broad daylight, before this chapter is at its close.
On this occasion, for giving ideas of perfection carried into practice, two modes of extraction require to be presented to view on the same line; viz. the mode pursued in parliamentary committees, and the mode pursued in jury-trial:—presented, not now it is true, as standing as yet, either of them, on the very summit of the scale of perfection, or at least jury-trial,—but as capable, when put together, of enabling the mind to form an idea of it:—the parliamentary mode as being nearest to perfection,—the jury mode as being the most familiar to the public mind.
On this same occasion, be it observed, the composition of the judicatory is a subject that should be kept completely out of view. How important soever,—in itself, and with reference to the ultimate result of the inquiry,—yet, with reference to the subject here in question, viz. the mode of receipt and extraction, it is a matter comparatively foreign and irrelevant.
At the time when the system of jury-trial was first formed, not only was printing altogether unknown, but even writing, the great source of complication, was, except in the instance of here and there an instrument of primary importance, public and private together, scarcely in use. The ignorant simplicity of the age, while it insured a proportionable degree of simplicity to all subjects of discussion, insured at the same time a correspondent degree of simplicity, precipitancy, and imperfection, to the course pursued in examining into the grounds and merits of all subjects of dispute. Slight was the degree of complication, or even of estimated difficulty and importance, that sufficed to give, to a legal knot, the character of a Gordian one:—and in that case, for the cutting of it, in some instances an assertion of the party, conceived in the most general terms, with the ceremony of an oath for sanctionment, and a general attestation of character for corroboration,—in others, a mutual attempt to murder, called an appeal to hearen, was received in preference to, and to the exclusion of, all other evidence.
In jury-trial, the grand features of excellence are—interrogation by parties on both sides—examination vivâ voce—consequent exclusion, to a considerable degree, of the faculties of mendacious invention and suggestion—these, together with the publicity given to that part of the system of procedure. Of these,—in contradistinction to epistolary statement, and written depositions, consisting of statements minuted down in the shape of answers to preconcerted and written interrogatories,—vivâ voce deposition was the necessary result of the rudeness and ignorance of the age: while, in contradistinction to interrogation by the judge alone,—interrogation performed by persons interested on both sides, as well as by the judge,—this, and the publicity of the inquiry, was, with or without any adequate or clear conception of use and subserviency to truth and justice, the natural, if not the necessary, result or accompaniment of what there was of popularity in the constitution of the judicatory:—a jury being a sort of select committee, gradually and silently substituted to the whole body of the freeholders,—to the whole mass of that portion of the people whose feelings and interests were alone, in those days, considered as having any claim to notice.
In the mode of extraction then and thus pursued, the great defect was and is—the want of time for occasional recollection, and eventually necessary ulterior investigation,* and consequently the non-employment of writing, in the character of an instrument for exhibiting, correcting, completing, and preserving, the result of those instructive operations.
In the system of parliamentary procedure—parliamentary-committee-procedure—this deficiency, fatal to the purpose of inquiries, applied to such subjects, and directed to such objects, as it could not but have been,—has long since, and continues to be, effectually supplied. This modern mode of procedure, not having taken its commencement till the art of writing had come pretty generally into use,—till, in the character of instruments of investigation and dispute, the productions of that mind-exalting art had become abundant and generally diffused,—and (as will be seen a little further on) no sinister interest having place, powerful enough to overrule, in this, as in the other case it has done, the dictates of truth and justice,—the consequence has been that degree of comparative perfection, the fruits of which have been so copiously reaped, while, for want of motives and occasions for holding it up to view, the thing itself has been so little noticed.
In the mode of collecting evidence pursued in the courts of summary procedure in general, and in particular in the summarily proceeding judicatories of justices of the peace, as well as in the small-debt courts called courts of conscience, there exists nothing to hinder the combination of those several features of perfection:—nor, under favour of the suspicious absence of all technical bars, does any reason present itself for supposing, that in such desirable combinations they are not actually and generally employed. But as in these comparatively simple cases, any comparatively considerable demand for recollection, investigation and reference to, and selection from, written documents, will not frequently present itself, so, in both these instances, concerning the mode of procedure thus pursued, so little is the notice that has been generally taken, and so slender is the utmost account that is anywhere to be found of it in print,—that, on the present occasion, what mention is made of them has principally for its object the showing, that, while so richly deserving as they are, not only to be brought to view—but held up exclusively for imitation, they have not on the present occasion been overlooked.
Unfit employed, to the exclusion of the above fit modes.
In relation to the modes of collecting evidence, employed, to the exclusion of the jurytrial mode, by English judges, if ever the time should come, in which, to the good people of England, justice and injustice should cease to be matters of indifference, the following propositions will not perhaps be deemed altogether undeserving of their notice.
1. That the only forms in which, in so far as they have found themselves at liberty, English judges have received those communications, to which, with the effect, they have given the name of evidence, are depositions and affidavits.
Depositions, being composed of testimony collected in the Rome-bred mode, viz. in secret, under the sanction of an oath, by the nominee of a judge, or by the nominees of the parties on both sides, in answer to strings of questions, prepared on behalf of the parties, and thus reduced to a written form, to which the deponents are made respectively to annex their signatures and affidavits of ready-written statements delivered under the same sanction, but without being subjected to interrogation.
2. That these modes are both of them repugnant to every one of the true ends of judicature, conducive to deception, and thence to misdecision—conducive to needless delay, vexation, and expense.
3. That of the unfitness of these modes of proceeding, those by whom they were introduced,—those by whom they are continued,—and those by whom they have been upholden,—have all been, and without exception are, fully and undeniably conscious:—and that in the whole profession, unless among the professors of Rome-bred law any exception should be to be found, there exists not so much as the pretence of doubt.
4. That the modes of judicial proceeding thus known to be repugnant to truth and justice, have always been, and continue to be in a pre-eminent degree, subservient to the private and sinister interest of those by whom they were introduced,—of those by whom they continue to be practised,—and of those by whom they continue to be upholden.
Deposition, Romano-Anglicé—its Inaptitude.
In comparison of the jury-trial mode, more particularly if, when occasion requires, improved by minutation and recordation, and by opportunity of amendment,—the following may be stated as the features of inaptitude observable in the Rome-bred deposition mode.
I. Deception favoured; viz. by exclusion of portions of the testimony, extractible from one and the same examinee:—
1. The adverse party not being apprised of the answers that will be given by the examinee to the questions put to him by the party by whom his testimony is called for, nor so much as what those questions themselves will be,—no effectual counter-interrogation—no cross-examination in the ordinary sense of the word—has place: so that, from this defect, were it the only one, deceptious incompleteness and incorrectness, and consequent deception and misdecision, may be stated as the natural and ever probable result.
II. Deception favoured; viz. by weakening the restraint put upon mendacity and temerity by the sense of responsibility:—
2. If, as in the open mode, and in ordinary conversation, the deponent were, from first to last, made to speak in his own person,—if the words exhibited as his had been the very words that had been in the first instance employed by himself for giving expression to his own recollections or pretended recollections,—if, in a word, the discourse, to which he is made to annex his signature as being his, were his own,—were originally and without variation his own,—the sense of responsibility, which to the form of speech in question attaches itself in a degree so much more acute than to any other, would in some degree operate as a check upon mendacity and temerity,—as a security against deceptious incorrectness and incompleteness.
As if to deprive truth and justice of the benefit of this security, the discourse, which in answer to the questions that had been propounded, had been delivered by the deponent himself, is in this mode set aside,—another discourse, framed, not to say invented, by the examiner, is substituted,—and it is to this discourse, thus framed by another person, that the deponent is made to annex that signature, by which he certifies it to be his.*
III. Deception favoured;—viz. by exclusion put upon the entire testimony of witnesses in any number.
3. In the open mode, by the evidence produced in the first instance, and afterwards by the publicity given to the whole case, it will frequently happen—and especially in cases, in the nature of which it is to afford a copious fund of evidence, among which those of the greatest importance are apt to find themselves—that ulterior sources of evidence will be indicated, and on a subsequent occasion, the evidence from these sources obtained. Of the close mode, the exclusion of all casual and supplemental evidence not only is the natural and frequent result, but has been a professed object.†
IV. Deception favoured;—viz. by clouds of irrelevant or needless matter introduced.
4. In the open mode, viz. in the way of vivâ voce examination performed in public—performed by advocates, in the presence of managing agents on both sides, with or without that of parties,—it will frequently happen, that by a short statement made by a witness antecedently examined, ulterior evidence, which to an unlimited amount would otherwise have been adduced, being plainly rendered unnecessary, is saved. In the close mode, all such casual lights being shut out, the consequence is—that lest any possible advantage should be lost, whatsoever evidence presents a possibility of proving serviceable to the party, is by each party irrevocably and irreducibly extracted. Moreover, questions and answers being in this mode all committed to writing,—and the string of questions that shall be put to the witness pre-appointed,—hence needless delay, vexation, and expense.
V. Delay, vexation, and expense produced,—cause, lawyer’s sinister interest.
5. Of all the functionaries, public as well as private, employed in the collection of evidence in this close and written mode, there is not perhaps one who has not an interest in giving unnecessary increase to the expense of it, and consequently to the delay subservient, and the vexation concomitant, to that expense:—nor any one who does not find it more or less in his power to promote that sinister interest.
VI. Delay, &c. produced:—cause, financier’s sinister interest.
6. The man of finance, seeing a source from which money is extractible, and without that disturbance to his own case, which is the natural result, where the persons on whom the burthen rests are in a condition to combine their exertions for the purpose of opposition and remonstrance,—the man of finance, observing in that denial of justice with which the great majority of the people are thus afflicted, a sure, yet little-noticed, means of enabling the class, to which he and the circle in which he moves belong, to keep in a state of irremediable oppression the inferior classes,—makes the most of the opportunity thus afforded of distressing the distressed, and instead of affording relief against licensed oppression and depredation, which he sees exercised by others, stretches forth his hand to aggravate it.
In the open mode, sound not being taxable as writing is, the afflicted escape thus from his inexorable hand. They are saved from his inhumanity by his impotence.
Affidavit Evidence—its Inaptitude.
Comparison made with the open and oral interrogation mode,—comparison even made with the close interrogation mode, as above,—the following may be stated as the features of inaptitude, that have place in the uninterrogated—the affidavit mode.‡
1. Not being accompanied by any evidence extracted from the same source, either by counter-interrogation, or so much as by primary interrogation, it lies thereby under a preponderant probability of being incorrect as well as incomplete, and thereby deceptious,—even where nothing of mala fides—of intention or wish to give rise to deception—has place.
2. From the same cause, in case of mala fides, the probability of mendacity in the texture of such evidence, and of deception as the fruit of it, cannot but receive great and indisputable increase.
In this respect, bad as the close interrogation mode has been seen to be, this uninterrogated mode is seen to be still worse. In that mode, truth is deprived of the benefit of such questions as would not have been put, had it not happened to them to be suggested by answers to antecedent questions:—in this mode, not so much as one question can be put.
3. By a malâ fide deponent, time, in any quantity which depends upon his own will, is in this mode applied to the purpose of mendacious invention:—time, without any stint at all, in the case of such affidavits, as being delivered in the first instance, and having found no other affidavits to which they are called upon to make answer, may be termed initiative affidavits—time always relatively ample, for making answer, and organizing safe mendacity and evasion, in the case where, being thus preceded by affidavits on the other side, they may be termed responsive affidavits.
4. By the malâ fide deponent, the like facility is possessed, for receiving and communicating mendacity-serving information and suggestion: and that as well from professional advisers, as from such other persons, whose wishes and exertions are, by personal interest, by sympathy, or by antipathy, engaged on the same side.
5. In the case of deposition evidence, it has been seen how far the statement, to which the deponent is made to annex his signature, is from exhibiting a true and genuine impression of his mind. In the case of affidavit evidence, it is still farther from exhibiting any such desirable result.
In the case of the deposition, questions put to the deponent being the instruments constantly employed for the extraction of evidence, so it is, that (unless in the case of that sort of suggestion, the utterance of which would on the part of the examining functionary be an act of transgression and malpractice) before any words are found for the deponent, it is left to him to find words for himself: and thereupon it is, that, when the substituted words, which are presented to him for his adoption, have been committed to writing, should the deviation be such as to present to his mind the idea of a material misrepresentation, the recollection of his own words—the recollected sound of his own voice—helps to point his attention to the error, and affords an additional chance for the correction of it.
In the case of an affidavit, even this check, inadequate as it is, is wanting. The attorney gets up the story,—dresses it in such colours as appear most advantageous for his client’s interest (not forgetting his own)—represents to him what turn given to the phrase will be best suited to the purpose,—and should the complexion of it be in a greater or less degree more favourable than the correct truth would have been, it is then left to the discernment of the client—the unpractised and naturally awe-struck and bewildered client—to discover all along what necessary demand there may be for correction,—and to his probity and activity, working against the bias of his interest, to apply it.
6. In the affidavit mode, matter and expression both being, as above, altogether at the choice of the deponent, with his professional adviser and assistant, the consequence is—that in the case of mala fides, every advantage is enjoyed, which is derivable from the faculty of producing by means of vague generalities, out of the reach of being, as in the open and interrogated mode, reduced by apt interrogation to particularity,—of producing, viz. in the texture of the several declarations and allegations, whatsoever modes and degrees of indistinctness, obscurity, and ambiguity, are found most convenient:—this, in each distinguishable part taken separately:—and moreover, by studied disorder and confusion in the arrangement of the parts, every serviceable addition to indistinctness, obscurity, ambiguity, evasiveness, and deceptiousness, in the composition of the whole.*
7. In the close Rome-bred mode, the case where, as above, the questions, which the examining judge is required to put, being on each side prepared by a professional scribe, and (so it has happened) distinguished from one another by numbers, some sort and degree of separateness and distinctness has by this means been in that instance given to the responses, of which the mass of evidence extracted from each such examinee is composed:—some sort of preservative, more or less efficient, provided against confusion, designed or undesigned.
In the case of the mass of evidence, delivered in and by the affidavit of each deponent, the same principle of distinctness, or at least of distinguishableness, might be employed with equal case. But, with the exception of the bonâ fide suitor, or—where the cause happens to be such as affords them on both sides—suitors,—none of the persons, professional or official, on whom the quality of the composition depends, having anything to gain by the distinctness of it—many of them always by the indistinctness,—no wonder that this mode has obtained (the wonder would have been had it not obtained) the favour so exclusively bestowed upon it.
8. In the deposition mode (understand all along under English Rome-bred procedure,)—in the case where the individual, on whom the operation of collecting his testimony is proposed to be performed, is a party, and that a party defendant—(not where he is a party plaintiff, for in that case pretence and occasion is made for an additional suit)—a party, and not an extraneous witness,—his submission to the operation is, with perfect propriety, made, as it could not but be made, matter of obligation: and the coercive arm of the law is employed to give effect to it.
In the affidavit mode, neither is the individual, from whom testimony in this shape is derived, compelled to answer questions—(if he were, his testimony, it will be seen, would not be delivered in the shape in which by the supposition it is here delivered,)—nor is any individual, either in the character of a party, or in the character of an extraneous witness, compellable, in any case, to deliver any testimony in this shape.
The consequence is—that while, by the interest he has in the cause, a party stands on either side engaged to deliver his testimony, in so far as admission will be given to it, a witness who is not a party, stands in this respect altogether free.
Mark here the inconsistency and caprice. Where the shape in which the testimony, if delivered, must and will be delivered, is the interrogated shape, the good shape,—there the testimony of an extraneous witness is compelled, while, on the ground either of fear of deception, or fear of vexation, the testimony of a party, so far from being compelled, is excluded: at the same time, where, as here, the shape given to the testimony is the uninterrogated, the bad shape,—here, though no person’s testimony is compelled, every person’s is admitted. So the shape in which he presents his testimony be this shape, no person is excluded—every person is admitted, no questions asked. A further consequence is—that, naturally and necessarily, like an election vote, an affidavit is an object of solicitation: nor in this shape is testimony ever delivered, without bearing, on the face of it, presumption more or less strong, of partiality in favour of the party under whose banner it presents itself. And, in addition to the advantage which, as hath been seen elsewhere, is given by a mass of expense, tolerable to one alone of two litigants, here may be seen another advantage given to the overbearing depredator, or to the oppressor by irresistible power and influence. Not having for its excuse the plea of legal obligation, an affidavit, made in favour of one side, is, as towards the other, an act of hostility, and as such a cause of apprehended vengeance.
9. When it is in any less untrustworthy and deceptious shape that the evidence is received, great (great as in due time will be seen) is the anxiety manifested,—on the one hand, under the apprehension of giving birth to deception, by testimony consonant to the wishes of the examinee—on the other hand, under fear of giving birth to vexation, by testimony repugnant to his wishes.
Thus scrupulous is the anxiety displayed, where the shape, in which the testimony presents itself, is that which possesses the highest claim to confidence. On the other hand, no sooner does it change to that which, in the degree that has just been seen, is untrustworthy and favourable to the purpose of deception, than all those scruples vanish. Not by interest in any shape, not by improbity in any shape, not even by recorded perjury, is a man excluded from delivering his testimony—if this, the most deceptious of all shapes, be the shape in which it is clothed:—nor, on the other hand, when, by a hostile affidavit, called upon to defend himself against or submit to, the threatened burthen—even though it be a penal one—will the severity of any vexation, to which it may be the effect of compliance to subject him, serve as a plea to save him from it.
10. Upon evidence in a shape thus completely unfit to be admitted in any contested cause, is decision grounded, where the question is (for such are the questions entertained and decided upon) whether one and the same matter of fact shall, or shall not, be inquired into, by means of evidence delivered in its best shape—in the jury-trial shape: and again* after a decision grounded on evidence collected in that best of shapes,—even then, on the ground of evidence received in this worst of shapes, is the decision which should have been grounded on that well-shaped evidence avowedly modified,—and thereupon, frequently, on this worst of possible grounds (that of naked and unsanctioned assertion excepted)—frequently, on the score of a fresh, though no otherwise proved offence,—is delinquency pronounced, and additional punishment inflicted.
English Judges—conscious of the Unfitness of their own Practice.
As to the question—whether, of the only shapes in which they have suffered, or will suffer, the evidence to come before them, the unfitness, as here brought to view, can ever have been a secret to those arbiters of human destiny,—the answer might, without other documents, and without danger of error, be left to the plainest dictates of common sense.
In the situation of those judges whose seat is in the ecclesiastical and admiralty courts, it might, for anything that appears, be possible to pretend ignorance of the unfitness of the evidence, in the only form in which they receive it:—by this bye portion of the hierarchy, such ignorance might possibly be pretended, without receiving contradiction and confutation from their own lips or their own practice.
In the situation of those whose seat is in a court calling itself a court of equity, this is not possible: of this impossibility, a sufficient intimation is conveyed by the single word issue, in the phrase, to direct an issue.
The chancellor directs an issue—to be tried:—that is, directs a question of fact to be tried by evidence collected in the open mode, in the way of jury-trial: in about one cause out of fifty, this mode of collecting the evidence is employed,—employed in that one cause, and for what reason? For the same reason which, if true, passes the most just and decided condemnation on the course (what that course is, has just been seen) which is pursued—so inexorably pursued—in the other forty-nine.
Where was ever that cause, for the trying of which that Rome-bred mode was a fit mode? Not anywhere. Why then is not an issue directed in every case? The grievance—would it not at this price be removed? On the contrary, it would be aggravated. An additional load of factitious and needless delay, vexation, and expense—(for there would be no substitution—it would be all addition;) with an additional load of recorded lies to befoul the case—(stories about a pretended wager, and so forth)—to heap confusion upon confusion, and to multiply by forty-nine the insults at present offered to morality and justice.
Moreover, not only in the Lord High Chancellor’s Equity court does the chancellor, but in the Exchequer do the judges of that honourable court, when so it pleases them, direct an issue—but in this case to be tried before one of themselves: for this is an amphibious judicatory;—it has an equity side in it, and a common-law side; each judge is composed of two discordant halves; each half is persuaded—constantly persuaded, (and was ever persuasion more just?) of the unfitness of the course pursued by the other: the judgments pronounced, or about to be pronounced, by the common-law half, the equity half (pulveris non exigui jactu) is ever ready to stop or to overrule: the mode of collecting evidence employed by the equity half being, to its own perfect conviction, not calculated for the discovery of truth—calculated for nothing but the oppressing the subject with an intolerable load of factitious delay, vexation, and expense—it stops upon occasion, its own snail’s pace (moyennant finance) and for a time turns over the business to the common-law half, adding always to, instead of ever subtracting from, the load of manufactured delay, vexation, and expense.
All this while, what to a chancellor, paradoxical as it may seem, is not impossible, is—the admitting into his presence, and interrogating with his own lips, the individual—be he party, be he witness—from whom the information is required:—nor to this purpose, strange again as it may seem, is it necessary that twelve unlearned men should be sitting by, shut up in a box called a jury-box. The assertion is positive:—and for the truth of it, the appeal is made—not to common sense—not to any such pretendedly despised and secretly feared and hated arbiter—but to precedent:—to that almighty and ever adored viceroy over common sense and common honesty in a lawyer’s breast:—Yes—to precedent: for, besides that, of old time, even chancellors were neither deaf nor blind to suitors, a comparatively recent instance,—in which, seeing no other mode of settling the business, a chancellor, in a fit of delirium or self-forgetfulness, betrayed the cause of equity, and with his own noble and learned lips put a question to a party or a witness,—is actually to be met with in the books.
So much for the close and badly interrogated mode: a word or two at present as to the use of the affidavit mode,—the altogether uninterrogated mode—the use made of it, and at the sametime the opinion entertained of it.
Throughout the whole expanse of technical procedure—those spots excepted, on which, in a period of inscrutable darkness, causes at present inscrutable gave to jury-trial a hold too firm to be loosened, and those on which antique priestcraft succeeded in planting the Rome-bred mode; throughout the whole of this vast wilderness,—in the common-law courts—in the equity courts—in the ecclesiastical courts—in the admiralty courts,* —this worst of all shapes is the only shape in which, for any purpose, on any occasion, for the determination of any question of fact, testimony will be received by any English judge.
Be it in a separate cause—be it on the occasion of an incidental application made in the course of a cause which receives its main and ultimate decision on the ground of other evidence,—(what matters it?)—not to speak of causes termed criminal,—it is on the ground of evidence received in no other shape than this, that questions, and that to a value to which there are no limits, receive their decision,—questions to a number exceeding (but it belongs only to parliamentary inquiry to say in what proportion) the number of those that receive their decision on the ground of evidence collected either in the only good, or in the other bad shape.
In a bankruptcy cause—in that sort of cause, in which hundreds of thousands, not to say millions, are to receive distribution from the noble and learned hand, if the application wear the form of a petition, affidavit evidence, and no other, is the ground, on which all questions of fact belonging to it are decided. Is it that of this shape, any more than of the secretly-received deposition shape, the unfitness is a secret to the “great character” by whom it is employed? No: for here, too, where truth has been thought worth coming at, issues have been directed.*
On any of these occasions, while a well-connected string of perjuries is in reading, if so it should happen, that a person by whom it could be proved to be what it is being in court at the time, under the very eye of the judge, he were to offer himself, or be offered to be examined, would he be heard? Not he indeed:—any more than, in a libel cause, in the character of a party defendant, a man who after feeing, in the character of an advocate, a bottle companion of the judge, and finding his cause betrayed, should, instead of feeing other such defenders, in a number to which there are no limits, presume, in contempt of judge-made law, to open his own mouth in his own defence.
Source of the unfit Modes—Sinister Interest.
As to the interest—the private and sinister interest—by which the feet of these rulers have thus perseveringly been confined to paths so plainly opposite to those of truth and justice, the different shapes, in which in their situation it may be seen to operate, have already been sketched out:—sketched out, in the little work, to which there has been such frequent occasion to make reference.† In the whole sphere of action of an English judge, can that particle of space be found, in which his interest is not in a state of opposition to his duty?—a particle, in which that opposition may not be seen to triumph?—Emolument, power, ease:—interest of the purse, interest of the sceptre, interest of the pillow: all these together form but a part of the whole number of shapes, in which, by the sacrifice thus made of the interests of the many, in the character of suitors,—(those included, who, having need to become, are, at the same time, by the expenses debarred from the possibility of becoming suitors) are sacrificed to those of the exalted and pampered few. Of the emolument thus gained by the wilful substitution of evidence in the two worst shapes to the same evidence in the best shape, an account may be collected from the particulars brought to view by the several committees on finance: always remembering that, in point of effect, between what a man has in pocket, and what he has in patronage, there exists not any essential difference.‡
By what is received in the shape of power—power of pursuing without restraint the dictates of sympathy, antipathy, or caprice—by advantage in this shape, though not susceptible of being expressed in pounds, shillings, and pence, the impression made on the mind is not the less sensible, nor the less operative.
In the shape of ease—that negative, indeed, but not the less efficient, principle of action, so powerful, yet so little heeded—in the shape of ease, the profit gained by the substitution of deceptious to instructive evidence, is too great and too various, to admit of any tolerably adequate description, within the limits prescribed by the design of the present sketch. Strained through learned and ever obsequious lips, the information, though always more or less false and delusive, comes purified from everything that could render it offensive, perfumed at the same time by clouds of appropriate incense:—everything that is squalid, rough, and vulgar, being, at the same time, and by the same means, kept from obtruding itself upon learned and reverend eyes. Of the wretches out of whose torments the comforts of the wearer of purple and fine linen are extracted, the torments are kept from presenting themselves to his reverend eyes, the cries and just reproaches from wounding his reverend ears: in a word, everything that is at once pleasing and delusive is let in—everything that is displeasing and instructive shut out, and kept at a distance. Of the miseries of which he is the well paid author, he escapes from the reproach, because though in his situation ignorance,—non-observance,—anything short of the fullest knowledge—is impossible, yet, not being sure to see them, he stands clear from the imputation of having given birth to them—clear and spotless in the awe-struck eyes of the ever-admiring and ever-deluded multitude.
The favourite shape—the deposition shape—which, in so far as they have found themselves at liberty, English judges, borrowing it from the Roman school, have taken upon them to give to evidence—is it really in a correspondent degree favourable to the discovery and display of truth? Confine it not, then, within the narrow sphere of equity—extend the benefit of it to the whole country—apply it to inquiries carried on for a legislative purpose—introduce it into the House of Commons.
Conceive now, in that source and seat of inquisitorial scrutiny, evidence wanted for the detection of a peculating or enemy-pensioned minister:—conceive thereupon, instead of the there so happily and unavoidably established efficient mode, that mode of inquiry employed, which, as it were in derision, is called equity:—conceive, under the name of a bill, a volume of notorious lies delivered in, with three or four months time for a first answer, and, after exceptions taken of course, two or three months for a second—then amendments made to the bill, with more such delays, and more succeeding answers,—then a cross bill filed on the other side, and a second such cause thus mounted on the shoulders of the first—then volumes heaped upon volumes of depositions—then, after years thus employed, a decree obtained, by which nothing is decided—then the whole matter, and everything that has been made to grow out of it, sent to be investigated in the hermetically-sealed closet of a sort of under-judge called a Master—with days of attendance, separated from each other by days or weeks—length of attendance each day, nominally an hour, really half or a quarter of the time—a clerk furnishing examination and decision, the Master auspices—the judge paid for three attendances, and bestowing one—(for the statute which transports men for obtaining money on false pretences does not extend to judges)—the party whose interest and purpose is served by delay, attending or not attending, according as by attendance or non-attendance that interest and that purpose are best served,—then, in the course of a few more years thus employed, out of a dozen or two of parties, one carried off by death, and then another,—and upon each death another bill to be filed, and the same or a similar course of retardation to be run.
Conceive this to be the course—the only course—appointed (practised it could not be) for coming at the truth in the House of Commons:—conceive this, and let any experienced equity draughtsman say how long before the first answer had been completed, the House would have found itself made into a barrack for the troops of Bonaparte.*
All this while, the mode best suited to the coming at truth through evidence, does it really change its nature, according as the person who is, or pretends to be, in search of it sits with a gown or without a gown, in one part of Westminster Hall or in another? If so, then, but then only, so it is, that the mode by which, if pursued in a committee-room, the whole country would be involved in prompt and universal ruin,—that this one of the only two modes of inquiry employed by English judges, when they have had their choice, may really be well adapted, and by its employers may really have been thought to be well adapted, to the purposes for which it is professed to be employed—the purposes designated by the sacred names of equity and justice.†
[* ]It is by this deficiency, that, in cases attended with a certain degree of complication,—cases of account, for example—jury-trial has been found to be absolutely unfit for use:—instances to a great extent, and of capital importance, absolutely incapable of being applied to the purposes for which it continues to be in outward show employed, and declared to be in use. In these cases, no decision being really produced by it, the party who is in the right, is made to suffer the whole of the burthen, without the possibility of reaping any benefit from it. Thus is the serpent substituted for the fish, and in the hands of Judge and Co. employed as an instrument of deceit and depredation, in a manner that has been particularized and proved in another place. See Scotch Reform.
[* ]When the art of writing was in a manner confined to priests and lawyers, and among non-lawyers ignorance was so gross and general, as, on an occasion thus solemn and thus formidable, scarcely to admit of any approach to correct and instructive statement, without tutorage,—it was natural enough, that the individual from whom the information came, and who, in writing at least, was not able to give his own account of it, should, instead of being himself the speaker, be spoken of, viz. by the man in authority, by whom in this learned form the information was delivered.
[† ]The reason on which this exclusion is grounded, is such as, of itself, affords an indication of the state of moral depravation, to which such a system of judicature is calculated to give birth and continuance. The assumption is,—that if the facts which a man wanted to have proved were known, for the proof of them, evidence in an unlimited quantity might always, or generally, be obtainable.
[‡ ]Deposition is delivery of affidavit evidence:—what shall delivery of oral evidence be called? Testification? from to testify?—or might not testification be employed as a generic term, including viva voce testification and deposition.
[* ]To no inconsiderable extent, after all that can be done to narrow the application of it, true it is, that admission to evidence in this shape cannot (it will on reflection appear manifest) be refused: for example, on ex parte applications; and on applications to which, supposing the facts to be as stated, there cannot be any reasonable ground for apprehending objection on the other side. But a rule which presents itself as being capable of being without danger established in the character of an inviolable one, is,—that no such evidence shall in any case be received, without being eventually subjectible to counter-interrogation:—and that sooner or later, in the oral form.
[* ]And again.] viz. after conviction on an information, or an indictment, under the name of affidavits in aggravation, or in extenuation, antecedently to judgment or sentence.
[* ]In the Prize and Admiralty judicatory of the American United States, the Rome-bred mode of collecting evidence was at the first sitting of the first congress abrogated, and the jury-trial mode—say rather the natural procedure mode—for it is without a jury,—substituted to it.—(Acts of the American States, I. 120, 121, 134, anno 1795.)
[* ]Written in January 1812. Since that time, this subject appears to have received considerable elucidation, from a conversation, of which the following is the report, given in the Morning Chronicle of the 30th of July 1812:—
[† ]Scotch Reform.
[‡ ]Ibid. Letter I.
[* ]The fatal billet by which the Duke of York was fixt—fixt in the course of an hour or two, by a sudden order from the House of Commons,—say that a bill in equity could have been and had been filed for the discovery of it? To this hour the cause would have remained unconcluded, and, on the part of the defendant, years before any mandate for the production of it had reached his hands, nothing but insanity could have saved it from the all-protecting and all-tranquillizing flames.
[† ]Confined, as in respect of persons it is, to defendants in equity, and at the same time, in respect of the mode of enunciation, to writing—the form given to the instrument called in equity procedure an answer, was not on this occasion thought worth erecting into a separate and independent mode.
[* ]In the Prize and Admiralty judicatory of the American United States, the Rome-bred mode of collecting evidence was at the first sitting of the first congress abrogated, and the jury-trial mode—say rather the natural procedure mode—for it is without a jury,—substituted to it.—(Acts of the American States, I. 120, 121, 134, anno 1795.)
[a]The amount, as per third Report of the House of Commons Committee on Public Expenditure, p. 297. Date of order for printing, 29th June 1808.
[b]Employed in the Consistory Court. This account of the days of sitting was extracted from the official books of the year 1810.
[c]Commons Debate, No. 18.
[d]Third Report, as above, p. 303.