The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 XX.

EXCLUSION CONTINUED—CAUSES FOR WHICH IT IS PROPER OR NOT, ACCORDING TO CIRCUMSTANCES.

§ 1.

Avoidance of Delay.

For the purpose of making it the more distinctly apparent, in what manner exclusion of evidence may be rendered conducive to the ends of justice upon the whole, by and in respect of its subserviency to the collateral ends of justice,—viz. avoidance of preponderantly mischievous delay, vexation, or expense,—and this even in the case where the excluded evidence is neither irrevelant nor superfluous, it may be of use to bring to view, under one or more of these heads, a case or two in which this conduciveness and subserviency will be manifest.

Case I. Where exclusion of evidence may be rendered conducive upon the whole to the ends of justice, by the subserviency of such exclusion to the avoidance of preponderantly mischievous delay.

In a country in which, in such abundance, the legal ties that connect man with man are spread over the whole surface of the polished portion of the globe, no determinate limits can be set to the length of time that may have elapsed, before this or that article of evidence which, in the suit in question, may be necessary to right decision, can be obtained:—no determinate limits, not even on the supposition, that for receiving and extracting evidence from parts of the earth not subject to the authority of the judicatory in question, those operations, which the nature of the case requires as well as indicates, but which are as yet so new, or at best so imperfectly known to English practice, were set on foot, and, upon an all-comprehensive scale, regularly employed.

But in this, as in every case, if the length of delay necessary for the production of the evidence in question be not allowed,—to refuse such allowance is in effect to put an exclusion—a negative exclusion at least—upon the evidence.

Such exclusion—is there a case in which, in this state of things, it could be proper? Answer: Yes;—for, on the other hand, in the same individual case, what may also happen is—that, while an article of evidence necessary to justice on one side of the cause is waited for, another article, not less necessary to justice on the other side, may perish, and cease for ever to be obtainable.

Not that, if evidence B be in the meantime obtainable, it ought to be suffered to remain unobtained, for no other reason than that evidence A cannot as yet be obtained.

But still, in the same individual case, another circumstance, not incapable of having place, is—that while the decision is thus delayed for want of an article of evidence, which a defendant, truly or falsely—and if falsely,—blameably or unblameably—has alleged himself able to procure,—that in this same case, the plaintiff, if found to be fully entitled to the object of his demand, will be found to have suffered, for want of it, and thereby for want of the decision which should have put him in possession of it, such damage as will be irreparable.

In this case, as in so many others, the only choice open to the legislator and the judge, is a choice of evils:—all that is left to them is to reduce to its least dimensions that mass of evil which it is not in their power wholly to exclude.

In this view, the temperament indicated by the nature of the case seems to be to this effect:—In the first instance, let the judge have power to pronounce, in favour of the plaintiff, a decision without waiting for the distant evidence:—but this decision, let it be, not ultimate and immutable, but reversible or modifiable, in the event of the production of the evidence in question, within a time, in the first instance limited, and thereafter enlargeable, or not enlargeable:—the plaintiff, before he is put in possession, finding adequate security for eventual restitution.

By a decision pronounced under these circumstances, without waiting for an article of evidence, by which, had it been forthcoming, a sufficient demand for a different, or even opposite decision, might have been produced, a negative indeed, but not the less effective exclusion, we see, is put upon the distant, and for the present unobtainable, evidence: an exclusion, viz. to the purpose of the decision in question:—but because, for the avoidance of the evil of which the delay necessary to the production of it would have been productive, it is excluded to the purpose of that decision,—it follows not but, that whensoever it is really forthcoming, it may thereupon be admitted, and such fresh decision pronounced as may be required by the aggregate body of evidence, composed of the original mass with the addition of this supplemental article.

On the same principles, though with differences in the mode of application corresponding to the change of situation, a temperament directed to the same ends might be applied to the case, where the side, on which the demand exists for the distant evidence, is the plaintiff’s side.

In what multitude and variety might not facilities be afforded to justice—facilities not less obvious than hitherto unexampled—should the proper ever take place of the actual ends of judicature.

All this while, what is not to be denied is, that if the word evidence be taken in its largest sense, no service can ever be rendered to justice by deciding without evidence. In respect of the question of fact, for anything that he does, or can propose to himself to do, no reason can the judge ever find, other than what is composed of evidence. On this occasion, as on every other, if so it be that what he does is right, inasmuch as while for avoidance of delay he decides against the side from which, at the end of the delay, evidence might be expected, he renders this decision ultimately defeasible,—defeasible on the actual exhibition of the so-expected evidence,—if in so doing, what he does is right, it can only be, because for the so doing he finds even then a sufficient ground and warrant in evidence.

But the case is—that here the evidence is evidence of a particular sort of fact, and in that sense so far is evidence of a peculiar sort. The fact here, is not the fact actually and immediately in question in the cause, but another fact, which howsoever connected with it, is perfectly distinct from it, viz. the existence of evidence—of evidence to the effect in question, relative to that same fact. The evidence on which is grounded the decision pronounced for want of the expected evidence, is simply evidence: the evidence on the ground of which, by another though simultaneous decision, that first decision is rendered defeasible on production of the expected evidence, may be termed evidence of the second order, or evidence of evidence.

In English practice, an application for putting off a cause on the allegation of the absence of a material witness,—which ought to be, and probably always is, coupled with that of his expected forthcomingness within a length of time, more or less precisely indicated,—is a frequently exemplified instance of that incidental and interlocutory sort of cause which is made to spring up within the principal and parent cause:—and, as already noted, it is by affidavit evidence—by evidence delivered in a shape in which it is not fit to form a ground for decision in any the slightest contested question,—that this incidental cause, on which the fate of the principal cause so frequently depends, and with it the question between opulence and want, between life perhaps and death, is decided.

And the delay which in these cases, and for these reasons, is either denied or granted, what is it? Of what length is it? Not the length which justice requires, viz. the shortest time within which, without preponderant inconvenience, the forthcomingness of the evidence can be obtained, but one or other only of those outrageous lengths, in which alone, according to circumstances which have nothing to do with justice, that commodity is cut out in the great shops which sell it; viz. not in lengths of so many days, or of so many hours, but in lengths of a quarter of a year, of half a year, or of a year,—never less than a quarter of a year, according to the distance of the place in which the question is to be tried, from the chief seat of the system of misrule called government.*

§ 2.

Avoidance of Vexation at large—Vexation, its modifications.

To the purpose here in question, vexation, considered as liable to be produced by the exhibition of evidence, may be distinguished into vexation at large, and vexation by disclosure:—and under the former of these two heads may be included every species of vexation that is not comprehended under the other. Follows in the present section what concerns vexation at large.

1. Judges; 2. Subordinate judicial officers; 3. Jurymen, viz. on the occasions in which these temporary assessors to the professional and permanent species of judges are admitted; 4. Agents of the parties, such as counsel and attorneys of all classes and denominations; 5. Parties to the cause; 6. Witnesses, viz. extraneous witnesses, including all such examinees as are not parties; 7. Persons at large. Under one or other of these denominations may be comprised the various descriptions of persons, in whose breasts the search for vexation at large, considered as liable to be produced by the receipt or extraction of evidence, and thence capable of being pro tanto saved and avoided by the exclusion of such evidence, requires to be made.

1. In the situation of the judge, vexation from the source in question may be considered in the first place in itself, i. e. in so far as the seat of it is confined to the bosom of the judge: in the next place, in its consequences, viz. in so far as it is liable to be followed by consequences prejudicial to other persons, such as the parties in the cause in question, or persons at large in the character of litigants, actual or eventual, in other suits or causes.

In the breast of the judge—in proportion to the quantity of the evidence, even when relevant,—but in a greater proportion where irrelevant perplexity is liable to be produced:—by perplexity, hesitation and danger of misconception;—by hesitation, delay, viz. of decision;—by danger of misconception, danger of misdecision. Of vexation derived from this source, and having its seat in the breast of a person in this situation, such are the derivative or consequential mischiefs.

By delay of decision, evil, in a mass proportioned to the length of the delay, is produced:—in the first place, to the prejudice of the parties on one or both sides of the suit or cause in question; in the next place, to the prejudice of such individuals as are, or are about to be, parties in other suits or causes: in each of which the decision experiences a fresh retardation from every retardation that comes to have been experienced by this or any other antecedent suit or cause.

When the evidence is either irrelevant or superfluous, this vexation and this delay, and this danger of misdecision, are so much uncompensated evil:—when the evidence is neither irrelevant nor superfluous, but material and necessary, this vexation and this delay are still each of them, by the whole amount of it, so much evil: which evil has, by the supposition, its compensation; but that compensation may be adequate, i. e. preponderant, or not adequate.*

2. In the case of a subordinate officer of justice, the consequential mischief is in its nature and extent the same as in the case of the judge: between the one situation and the other, the principal as well as most prominent difference being—that what is done by the subordinate, is liable to be reversed or modified by his superordinate.

3. The case of the juryman may be apt to present itself as being in this respect not naturally different from that of the judge: the functions, exercised by the particular species of judge thus denominated, being, to the extent of his authority, the same as those of the judge at large, to whom, in customary language, the appellation is exclusively appropriated.

But the difference is this—and it is of no slight moment. In regard to delay by means of that part of the mechanism of the jury-box, by which the utmost quantity of evidence, that any suit or cause is capable of affording, is compressed within a limited space of time, the maximum of which is the same, whether the time necessary to the delivery of it be one hour or one hundred,—that part of the consequential mischief which consists of mere delay is thus reduced to an amount comparatively inconsiderable.

On the other hand, in regard to misdecision—an evil of which, in that particular situation, a mass of evidence, when disproportionately large, is, through the medium of perplexity, in a particular degree liable to be productive,—the mischief here in question, viz. the consequential mischief of the vexation liable to be produced by the exhibition of evidence—is here at its maximum:—the capacity of forming a right decision, thence the quantity of knowledge derived from experience and degree of skill derived from habit, thence again, in so far as depends on the state of the intellectual faculties, probability of rectitude of decision,—being, in the case of these unexperienced or little-experienced functionaries, less than in that of the more experienced one, while the time allowed for the operation is, in the case of the less experienced operator, compressed and limited as above, instead of being left in that unlimited state, in which, for his own accommodation, the more experienced and skilful operator has taken care to keep it.

4. In the situation of a professional agent of one of the parties, vexation considered as liable to be attendant on the exhibition of evidence is still susceptible of the same distinctions and the same consequences:—the chief difference being that which regards the description of the sort of person on whom the mischief falls.

In the situation of the judge, in so far as, through the medium of perplexity, vexation derived from such a source is liable to be productive of misdecision, the party who is in the right, and he alone, is the party liable, or, when the question concerns degree, the party in the highest degree liable to receive prejudice from it: whereas, in the situation of the professional agent of the party, that party whose agent the professional man in question is, is the party who, if not as at first sight it might seem exclusively, is at any rate, in by far the highest degree, liable, and apt to be the sufferer, by such mischief, of which it happens to it to be productive.

5. By every article of evidence exhibited, be it personal oral, be it personal written, be it real, favourable to the party exhibiting it or unfavourable, vexation more or less considerable to the party by whom it is sought out, procured, and exhibited, is of course produced:—vexation, viz. in so far as the labour thus employed is his own. But, in so far as that labour is turned over to a professional agent, such agent receiving as usual, at the charge of the principal, remuneration for it, and that in a pecuniary shape, the evil becomes in the person of the principal commuted, being transformed into expense.

Be it vexation, be it expense, evil thus producible by the exhibition of an article of evidence can never, in so far as it is confined to the breast of the party who tenders it, form a just ground for the exclusion of it: the evil being, in the estimation of the sole, or at least the most competent judge, preponderantly compensated, viz. by the advantage expected by him to be derived from it.

6. To an individual in the situation of a witness, from the exhibition of his testimony, a mass of attendant vexation is inseparable, and that vexation susceptible of almost boundless variety and magnitude, not to speak of expense, an evil which belongs to another head, and is of a nature to be susceptible of a compensation, which, being in the same shape as the damage, is capable of being rendered completely adequate to it: consumption of time is an evil, to the magnitude of which, regard being had to the infinite variety of which its casual consequences are susceptible, there are no determinate limits; and the nature of which, it not being like pecuniary damage susceptible of compensation in its own shape, puts an absolute negative upon all assurance of adequateness on the part of whatsoever compensation may come to be applied to it,—whether in the pecuniary or in any other shape.

Journeys to and from the theatre of justice—attendance thereat, and demurrage;—such are the standing items of vexation, which in the case of a witness delivering his testimony in the judicatory in question in the oral mode, may be considered as included in, or superadded to that which stands expressed by the words consumption of time.

These,—though, especially where the geographical field of jurisdiction is of small extent, they may frequently, all of them put together be of small importance,—form so many constant items: and in England, where so it happens, that during the length of time in question, the residence of the individual in question is not within the limits of the kingdom, they constitute all together in practice as in justice a ground sometimes for delay, sometimes for definitive exclusion, according to the circumstances of the case. And to these standing causes or elements of vexation are liable to be added casual ones, resulting from the particular situation of the individual witness, altogether indefinite in number and importance.

In regard to parties, in so far as, at his own instance, or at the instance of an adverse party, the testimony of a party comes to be received or extracted, he is, by such receipt or extraction, placed in the predicament of a witness.

But, by the union of the two characters in his one person, instead of being increased, the vexation of which the delivery of his evidence is the cause, is diminished: his labour in hunting himself out, and corresponding with himself, cannot be great; and in respect of journeys and so forth, as above, the two masses of vexation are consolidated.

7. As to persons at large, if to any person, by the receipt or extraction of evidence, how material soever to the suit or cause, vexation in any shape should be liable to be produced, quantity for quantity, evil in this shape, and threatening to fall upon this extraneous quarter, has, in proportion to its quantity, as just a claim to be taken into account, as if it fell in any of the shapes, or in any of the quarters, above mentioned. But, except in the shape of vexation, by disclosure—of which presently under a separate head,—it appears not how, in any such extraneous quarter, unless in this or that state of things too accidental to admit of any common description, any such vexation should have place.

§ 3.

Vexation—in what cases a proper cause of Exclusion.

On these, as on all other occasions, vexation, being so much evil, ought of course to be avoided and excluded, except in so far as, if admitted, it will find a preponderant compensation, in the shape of some greater evil excluded, or some more than equivalent good produced. If, by the exclusion of the article of evidence in question, so it be that the vexation in question will be prevented, the evil produced by such exclusion being not only less than the evil of the vexation, but less than any other evil by the production of which the vexation would be prevented,—on this supposition the exclusion of the evidence is proper; otherwise, not.

When the evidence is either irrelevant or superfluous, then, forasmuch as by the supposition whatsoever evil would be attendant on the exhibition of the evidence, would bring with it no good capable of operating as a compensation for it, the propriety of putting an exclusion upon the evidence stands above dispute.

When the evidence is neither irrelevant nor superfluous, but material and necessary, in these cases—an exclusion cannot be put upon it, but that by such exclusion evil is introduced; viz. a certainty, or a prohability more or less considerable, of injustice by misdecision, to the prejudice of that side of the cause, in favour of which the evidence, had it been admitted, would have operated.

1. In the situation of judge, so far as the evil of vexation is, on this occasion, confined to that which has its seat in the feelings of that one individual, no case can present itself, in which, by any vexation capable of being inflicted on him by the exhibition of material evidence, any sufficient ground can be found for the putting an exclusion upon that same evidence.

If it be with his own consent that he was placed in that commanding situation, whatsoever be the advantages, natural and factitious, by which that consent was determined and produced, in these advantages, all such vexation has found its compensation,* and that by the supposition a preponderant one.

But in England, the too narrow circle excepted, within which the only system of procedure compatible with justice—viz. the natural system,—has been suffered to continue unexcluded, the system actually established having had the judges for its authors, has, on every occasion, and in every shape, had the accommodation of those its authors for its main object, thence it is that evidence in its best shape, being at the same time productive of less profit and more vexation to the judge than in the unfit shapes in which alone it is received, stands excluded in the manner shown on a former occasion,† in so far as it has been in their power to exclude it, in the lump.

2. The same considerations, in so far as concerns the impropriety of putting an exclusion upon material evidence, on no other ground than that of the vexation or trouble liable to be produced by it to the functionary whose duty it is to extract or receive it, apply alike, it will be seen, to the case of the subordinate minister of justice.

3. Under English and English-bred law, the juryman being, as above, a species of judge, the same considerations should naturally be found applicable to his case. But by the tissue of incongruities and inconsistencies in which, by primeval barbarism, this species of judicature is enveloped, every application of human reason to the subject is in a manner‡ repelled and put aside.

4. In the case of the professional agent of the party, the nature of the relation between him and his employer, i. e. the compensation which, for whatever vexation the agent as such is subjected to, he receives of course, excludes all demand for exclusion of evidence on this score.

5. In the case of the witness, the magnitude of the vexation, combined with the impracticability of making amends for it by an adequate compensation, has very frequently, as above mentioned, the effect of putting not only a temporary, but a definitive exclusion, upon the evidence which it would have been in his power to afford. This exclusion is of the negative cast above mentioned: having for its cause the non-performance of the operations necessary to the extraction of the evidence.

This omission is referable in part to the imperfections of the system; and in so far, the exclusion cannot but be pronounced improper: on the other part, to the obstacles opposed by the nature of the case; and in so far as on that account, proper: those obstacles being either physically or prudentially insurmountable: prudentially, when, if they were surmounted, the mass of vexation thereby produced would be so heavy, that the suffering to the proposed witness, by means of his attendance, would be greater than the suffering to the party, by reason of the non-attendance of such witness, although the loss of a just demand, or the failure of a just defence, were to be the certain consequence.

As to the imperfections of the system, howsoever on this as on other occasions they may be found to have had, for their principal cause, the operation of an active sinister interest, they would be found at the same time owing in no inconsiderable degree to the absence of that active zeal for the service of justice which a system directed to the ends of justice would have inspired:—to carelessness—to indifference—in a word, to the love of ease. Observe now the fruit of sinister interest in this shape.

It is only in so far as the attendance of the proposed witness at the judicatory in question has place, the spot which at the time in question would otherwise have been the chosen place of his residence, being more or less remote from it, that the vexation produced by journeys to and fro, attendance and demurrage, has place. In the character of a ground of exclusion, this vexation would be removable by either of two expedients:—viz. 1. Examination in the oral mode by a judicatory ad hoc; viz. whether of the number of the permanent judicatories already established on the spot, or by a special commission issued from the judicatory in question for this individual purpose:—2. Examination in the epistolary mode;—or if confined to that class of cases in which the security afforded for correctness and completeness by counter-interrogation is not necessary, the uninterrogated or spontaneous deposition mode, as exemplified in the case of affidavit evidence, might in that state of things be employed.

Of all these three modes, there is not one (it has been seen) but what is perfectly familiar to English practice, though, by that practice, with but few exceptions,—excluded from this state of things in which they would have necessity for their sanction,—confined to a state of things in which that sanction does not apply to it.

From a common-law court, a special commission for taking the examination of a witness at any part of the globe, is not without example. But on what condition? That the party, to whose disservice the testimony is to operate, consent to it. Thence comes one or other of two evils: either the remedy is left unapplied, in the case where the party against whom the evidence is wanted is a malâ fide litigant, conscious of being in the wrong, and accordingly determined to take advantage of every incident foreign to the merits, which can contribute to his success,—that is, in the case in which the demand for it is most urgent and most frequent;—or the judge employs some indirect expedient for extorting a forced consent, thereby obtaining a plea, and making a precedent, for the extension of that arbitrary power, the perpetual increase of which is among the sure effects, as it has been among the constant objects, of judge-made law.

An acknowledgment that must here be made is—that, on the part of the judge, the existence of effectual jurisdiction, in relation to the individual and the purpose in question, is not so certain when applied to a man in the situation of an extraneous witness, as when applied to a man in the situation of party litigant in the suit or cause. In the case of a party litigant, the interest, whatever it may be, that he has in the suit or cause, suffices, to a certainty, to give to the hand of justice a hold, the strength of which is proportioned to the value of that interest: while, in the case of an extraneous witness, there being no such interest,—in this case, whether to the purpose in question the hand of justice have or have not any such hold upon him, is matter of accident. But in this, as in every other case, the existence of this or that state of things in which the remedy is not applicable, affords not any reason why, in any instance in which it is applicable, it should not be applied.

§ 4.

Avoidance of Vexation by Disclosure.

In regard to vexation by disclosure, one very simple consideration will suffice to show how necessary it is that it be admitted, in the character of a ground capable of being found sufficient to warrant the putting an exclusion upon an article of evidence.

But for this, it would be in the power of any two persons at any rate—for example, by means of a wager—not to say in the power of any one person, to force disclosures, pregnant with mischief in any degree to the public or to individuals:—disclosures of which the subject might be a fact of any sort at their pleasure:—with the most disastrous effect—investigations which public peace, not less than private delicacy, would forbid, would continually be made by the most indelicate hands.

So far as concerns the public, scarcely a day passes, but, in one or other of the two legislative assemblies, information called for on one side of the House is on this ground refused on the other, and by the majority of the House the refusal sanctioned. That, in out too many of the instances in which refusal takes place, no preponderant mischief would by concession have been produced, the refusal having self-conscious misconduct for its cause, cannot, so long as the conduct of public men remains short of perfection, admit of doubt; since wheresoever misconduct has any shape and place, all evidence, by which such misconduct might be brought to light, will of course, in so far as the power of refusal is in the hands of any person who, in the character of party to such misconduct, or that of third person acting under the influence of undue sympathy towards any such party, be refused:—but what will always be above doubt is, that there will have been other instances in which the mischief from disclosure would have been preponderant, and accordingly by official duty the refusal not only permitted, but commanded.

Parties litigant—extraneous witnesses—individuals at large—and the public at large;—such are the different descriptions of persons on this occasion it may be of use to keep in view.

Vexation by disclosure,—in what cases shall it, in what shall it not, be considered as forming an adequate ground for putting an exclusion upon evidence? Towards furnishing an answer to this question, the following rules, as far as they go, may perhaps be found to be not altogether without their use:—

1. Except as hereinafter excepted (viz. by Rule 6th,) so long as, with relation to the transgression which is directly in question, the article of evidence called for is not either irrelevant or superfluous in such case, although among the consequences or tendencies of the evidence or disclosure thus called for should be that of subjecting or exposing, either the examinee himself or any other person, to legal punishment, whether on the score of the transgression in question, or on the score of any other transgression which is not the direct subject of the inquiry, be that punishment what it may, the vexation produced by it ought not to be considered as constituting a sufficient, or in any degree proper ground, for putting an exclusion upon such evidence.

Reason. For, in the necessarily implied opinion of the sovereign, by whom the penal law creative of the transgression in question is upholden, whatsoever vexation is liable to result from the application of the punishment in question, in execution of the law in question, will receive its compensation:—its compensation, and that a prependerant one; viz. in respect of the evil which it is the object of the law thus to produce. Party litigant—extraneous witness—and individual at large;—to all these several situations, this rule seems to apply with equal justice.

2. Vexation, composed merely of the burthen of satisfaction as for wrong, ought not to be considered as constituting any sufficient ground for the exclusion of the evidence by which an individual would be subjected or exposed to it.

Reason. The same, mutatis mutandis, as in the preceding case.

3. Vexation, consisting merely of the loss and sensation of regret incident to the legal obligation of surrendering or failing to obtain a valuable object, which belongs of right to another party,—or of rendering a burthensome service, which in any other shape is by law due to such other party, ought not to be considered as constituting a sufficient ground for exclusion, as above.

Reason. The same, mutatis mutandis, as above.

4. Whatsoever disclosure, in consideration of the vexation which might result from it to an individual in the situation of principal, i. e. person interested on his own account, ought not to be extracted from the breast of the individual himself, ought not to be extracted from the breast of any person to whom it has happened to receive information of it by means of any situation of trust possessed by him in the character of trustee in relation to such principal.*

Reason. For, the disclosure being the same, the vexation produced by it will not be materially different, whatsoever be the source from which the disclosure may happen to have been extracted.

5. But where the principal himself ought not to stand exempted from the obligation of making the disclosure, neither should any trustee of his be, on his behalf, so exempted.*

Reason. For, to the principal, the vexation will not be greater if the breast from which the disclosure is extracted be that of another person, than if it were his own: and if no adequate ground for the exclusion can be formed by the vexation produced by the disclosure in the breast of the individual whose interest in the matter is of the self-regarding kind, still less can it be formed by that sympathetic species of vexation which on such an account is unfit to be considered as forming a separate item, as being liable to be produced, as it were by contagion, in the breasts of a number of persons, and thence, in a quantity altogether indefinite, in the case of each individual in whose breast is produced any particle of vexation of the self-regarding kind.

6. On the ground of apprehended mischief to the public, the judges ought to be not only authorized, but required, to apply to the demanded disclosure, absolutely or provisionally, exclusion or modification, according to the exigency of the case: declaring at the same time, in what particular shape it is that the mischief is apprehended; and if it be to the prejudice of the business of any particular official department, making communication of the matter to the chief of such department, giving at the same time notice to the parties of the communication so made, and appointing a day on which, on failure of sufficient cause shown for non-disclosure, disclosure shall be exigible.

7. There are certain transgressions, the nature of which is such, that the evil which they are liable to produce is produced wholly or principally by disclosure. If on either side, on the occasion of a suit or cause, penal or non-penal, having a different object, evidence be called for, of which, if delivered, the effect may be to expose any person, party or not party to the suit or cause, to the suspicion of having been concerned in a transgression of this description, it ought to be in the option of the judge to exact the delivery of such evidence, to permit it simply without exacting it, or to prohibit and prevent the delivery of it; pursuing that one of those courses which in his judgment promises upon the whole to be productive of the least balance on the side of evil, or the greatest on the side of good.

On any such occasion, for striking a balance such as above mentioned, the following are the items that seem most material to be kept in view in the taking of the account:—

Item 1. The nature and magnitude of the evil, for the avoidance of which—or (what is the same thing in other words) of the good, for the production of which the evidence in question is demanded: the evil, for example, subjection to undue punishment—subjection to an undue burthensome obligation, on the score of satisfaction as for wrong;—subjection to an undue burthensome obligation on any other score;—undue loss of any valuable possession, or of any valuable service due at the charge of this or that individual:—the good—viz. by the application of punishment where due—by the administration of satisfaction as for wrong, at the charge of the wrong-doer—and so forth, as above.

Item 2. The probability of the evil apprehended, in the event of an exclusion put upon the proposed article of evidence. The greater the probability, that without the proposed article of evidence, the effect proposed from it will be produced by other means—i. e. the less the need there is of it, to the purpose of producing that effect,—the less the advantage is, which, in case of its being delivered, there will be to set against the evil attached to the disclosure.

Item 3. The magnitude of the evil producible by the disclosure.

Item 4. The probability or improbability, that if not by the proposed evidence, the disclosure will be brought about by some other means.

To probability substitute certainty, the evil chargeable on the delivery of the evidence in question vanishes.

8. On the score of an offence of a purely public nature, unaccompanied with suffering inflicted on any assignable individual, punishment may with less inconvenience be, in any given individual instance, remitted, than satisfaction as for wrong done to an assignable individual refused.

Reason. For if the offence be but rarely repeated—the more rarely, the less is the need of punishment for the prevention of it: on the other hand, if frequently—the more frequently repeated, the more frequently will the opportunity occur of inflicting punishment in respect of it, without need of producing, in addition to such punishment, the casual and extraordinary evil here in question—viz. the vexation producible by disclosure.

§ 5.

Evidence that ought not to be admitted—Disclosure of Catholic Confession.

Question. On the occasion, or for the purpose of a suit or cause, penal or non-penal, ought a priest to be compellable or receivable to reveal any communication made to him as such in the way of confession, according to the rites of the Catholic or any other church or religious persuasion?

Answer. Neither compellable nor receivable.

Reasons.—1. In any law or mode of procedure, rendering such information compellable or receivable, would be included the effect of a penal law, prohibiting, in relation to the most important cases in general, and all criminal cases in particular, the exercise of the religious function in question:—a penal law, having for its penalty the punishment or burthensome obligation, whatsoever it might be, to which, by the testimony of the priest, the individual confessing, or any other individual, would be liable to be subjected.

In whatsoever suit or cause, penal or non-penal, it were proposed to make a religionist of the persuasion in question defendant, it would become a matter of course for the plaintiff or prosecutor, under the direction or by the instrumentality of his law adviser, to look out for the priest to whom the proposed defendant was in the habit of resorting for this purpose, and to summon him to appear as a witness.

A regulation to any such effect would therefore be a virtual proscription of the exercise of the Catholic religion.

2. In compensation for the evil of this tyranny, no good would in any shape be produced.

To the public at large, in respect of the interest it has in giving execution and effect to the aggregate body of the laws—in a word, to the ends of justice, so far from being conducive, an obligation to this effect would be purely adverse. In relation to the most mischievous crimes, for example, the effect of the institution in question, in so far as it has any, is much the more sincerely and uniformly, not only preventive, but compensative, than the effect aimed at by the laws for the sake of which, if at all, the proscription of it would be called for.

1. It is in regard to the contingent future preventive, in so far as, by means of the intercourse in question, any such impression as repentance and reformation is produced.

2. It may, even in a more determinate way, have, and doubtless ever and anon has had, the happy effect of exercising a preventive influence. Suppose that, by this means, on the part of a penitent of his, the existence of this or that particular mischievous habit or propensity has come to the knowledge of the spiritual guide, various are the ways in which, without exposing the penitent to discovery, measures may be employed for the prevention of the impending mischief.

3. Of this spiritual guide and comforter, the influence will naturally, be it what it may, in proportion as circumstances indicate a probability of success, be applied, not only to the prevention of future transgressions, but the disposing of the penitent to make reparation for mischief done by misdeeds already perpetrated.*

Crimes of sectarian fanaticism apart, by this time nearly, if not altogether, out of date, in no respect or degree can this sort of power be conducive to the taking anything away from the usefully-preventive, or in any other way remedial operation of the political or legal sanction. But if by means of the power of absolution, which is considered as attached to the exercise of this religious function, the usefully-preventive influence of the religious sanction be, in that class of religionists, upon the whole rendered less than 0—a proposition the truth of which will, by the consideration just brought to view, be at least rendered dubious—then the diminution is an inconvenience inseparable from the Catholic religion, and not removable but by the extirpation of it.

§ 6.

Evidence that ought to be exacted,—Clients’ Communication.

Question. A lawyer—ought he to be compellable or receivable to disclose a matter of fact, the disclosure of which would be disserviceable to a client of his, in respect of a suit or cause, non-penal or penal, in which such client is party, plaintiff, or defendant?

Answer. Yes: compellable at any rate; if not when uncalled for receivable. For what reason ought he to be exempted?—from an obligation to that effect, what is the real evil capable of taking place? None whatever: unless, in a penal case, the subjecting a man to punishment where due,—in a non-penal case, the subjecting a man to the obligation of rendering the service demanded where due, or compensation, or both, be to be placed to the account of evil:—placed on this occasion, while they are not on any others.

The considerations which forbid the compelling or admitting the Catholic confessor to disclose misdeeds revealed to him in confession, have just been brought to view:—neither these nor any other considerations of a like tendency, will be found to have any application to the lawyer’s case.

To the non-transgressor—to the innocent and honest client—no such exemption can be of any the smallest use. By the supposition, not having done anything wrong, nothing wrong will he have to confess.

The criminal,—the wrong-doer,—to these and these alone, the man of law himself excepted, can an exemption of this sort be of any use.

To the Catholic priest and confessor, it is matter of universally understood and acknowledged duty to do what depends upon him, as above mentioned, towards the lessening the number of mischievous acts in general, and lessening the amount of the mischief produced by such as have been committed; and that towards so salutary an end, more or less, how much soever less than could be wished, is constantly done, can scarcely be doubted.

By the lawyer, in his character of counsel or attorney for the criminal or self-conscious wrong-doer, so far from being ever exercised, no such salutary influence is ever so much as pretended to be exercised, or anything done towards the exercise of it.

On the contrary, in relation to a transgression of any description—say for example a felony—the part taken by a lawyer in the character of counsel for the defendant, is exactly the part which is taken by an accessary after the fact to that same felony, with no other difference than that between ignorance and danger on the one part, and knowledge, skill, and security, on the other.

In the situation of judge, the man of law (I speak more especially of English practice) manufactures flaws and loop-holes for malefactors and wrong-doers to creep out at:* —in the situation of counsel for the criminal or wrong-doing defendant, (not to speak of wrong-doing and unjustly demanding plaintiff,) he lets out to the malefactor and wrong-doer his best endeavours, to the purpose of enabling him to make his advantage of the assistance and encouragement thus provided and held out to him by his confederate on the bench.

It is a maxim among the brotherhood—a maxim not only acted upon but avowed, as often as under favour of opportunity, acquiescence can be hoped for—that right and wrong are creatures of their creation, and of which the existence is at all times dependent upon their pleasure; that, in so far as practised or encouraged by a judge, vice becomes virtue—in so far as punished or vituperated by him, virtue becomes vice.

It is in virtue and under favour of this maxim, that, under the name of fictions, falsehoods, in comparison of which the worst of those which in vulgar language receive the name of lies, are current: liberty-oppressing and money-catching falsehoods—falsehoods by these same arbiters of human destiny themselves committed, rewarded, and more than encouraged,—compelled; were, as Blackstone himself found himself everywhere obliged to confess, employed throughout as materials in the foundation of the system of procedure in particular, and in general in the whole fabric of judge-made law, alias common, alias unwritten law.

It is in virtue and under favour of this same maxim, that, for the benefit of Self and Co. they have licensed Co. to render to malefactors that sort of support and encouragement for the rendering of which, those to whom they have not communicated the licence are, under the name of accessaries after the fact, dealt with by them as felons.†

§ 7.

Avoidance of Expense.

Cases where exclusion of evidence may be required, by the subserviency of such exclusion to the avoidance of preponderantly mischievous expense.

Of this class of cases, an exemplification, though under another head, has been already given. In case of compensation, vexation to A becomes expense to B, at whose charge the compensation is afforded. But in this case, the effect of the compensation is—to take away the need, and thence the propriety, of putting an exclusion upon the evidence, even supposing that, but for the compensation, the propriety of such exclusion would have been ever so clear and incontestable.

But, by whatsoever cause produced (compensation for vexation, or any other,) in what cases, if in any, shall expense attached to the exhibition of evidence—expense in its own shape—be considered as constituting a proper ground for the exclusion of it?

Of the general principle from which, in every case, an answer to this question may be deduced, sufficient explanation, it is supposed, has been given above.

For conveying a conception, however slight of the difficulties with which this spot in the field of procedure is incumbered, a reference, however short, to existing practice, seems scarcely to be dispensed with.

Under English judge-made law, for getting through these, as well as so many other difficulties, a very simple rule suffices:—right to justice depends upon opulence. The law is a lottery: have you money enough for a ticket? Down with your money and take your chance. Does money run short with you? Lie still and be ruined. It was not for you that justice, or, what is the same thing, that judge-made law was made.

On the mere tender of a sum of money adequate (i. e. that shall eventually be deemed adequate) to the expected expense, be his testimony relevant to the matter in issue or not, every man is bound to attendance: without such adequate tender, no man is bound to attendance.

Where needless and uncompensated, the vexation imposed—where necessary to justice, and thereby the vexation compensated, the service not exacted—such, on this part of the field, are the evils produced by judge-made law.

From the further end of the kingdom a man may be called away from his business, and kept from it days or weeks: for his expense, he receives a compensation, adequate or inadequate: for his loss of time—a loss in which pecuniary loss, the equivalent of expense to an indefinite amount, may have been involved—no compensation does he receive whatever.

Watching his opportunity, it is in the power of any man buying at the justice-shop an instrument called a subpœna, and paying moreover to the proposed witness any sum of money of the sufficiency of which he is assured, to inflict injury to an unlimited amount on any other man in whose suffering he beholds a source of sinister enjoyment.

Such is the mischief to which the hand of venal justice lends itself, by exacting labour in this shape, where it ought not to be exacted.

On the other hand, let the need of it be ever so urgent—let the consequences of its being withholden be ever so ruinous—let the vexation attached to the rendering of it be to the proposed witness ever so slight and inconsiderable,—no money, no evidence.

Money at stake upon the cause, say £4000; advance necessary to defray the proposed witness’s expense, say £5;—rather than the rich man should suffer a loss of £5, upon the poor man a loss is imposed of £4000.

Of the mass of mischief capable of issuing from this source, under the complication of uncertainties under which business of this sort labours, a portion more or less considerable must, it cannot but be acknowledged, remain always unavoidable.

But in comparison of that, the source of which may be seen in the imperfections of the system, the part which has its source in the inexorable and incorrigible nature of things will be found inconsiderable.

By those timely explanations, the need of which there has been such perpetual occasion to bring to view,—difficulty in this, as in so many other shapes, would, by far the largest portion of it be cleared up—evil in these, as in so many other shapes, by far the largest portion of it dispelled. No such explanations have place—no such explanations ever can take place. Effectual care has been taken that no such explanations ever shall take place:—and why? Lest in these same shapes, evil to suitors, and thence good in the shape of profit, power, and ease to Judge and Co., should be dispelled.*

8.

How to minimize Evil in all these cases.

Of the course necessary to be taken for this purpose, an indication has, in general terms, been already given—(see § 3.) The first thing to be done, is to reduce to its minimum the whole mass of the delay, vexation, and expense necessary to the production of each such portion of the proffered or supposed obtainable evidence, as shall be pronounced neither irrelevant nor superfluous. This done, as to any portion the exhibition of which appears to be unavoidably attended with a mass of evil in the shape of delay, vexation, and expense, such as threatens to outweigh any evil of which, in respect of danger of misdecision, for example, the exclusion of that same portion of evidence would be productive, then it is that, as to any such portion, a determination is to be taken, whether, upon the whole, it is by admission or by exclusion that the most effectual provision would be made for the fulfilment of the ends of justice.

But as to both these points, what, upon the hare mention of it, can scarcely fail to render itself manifest to an unprejudiced mind is—that, to the purpose of any individual cause, no well grounded or rational determination can ever be taken but upon a distinct and comhensive view of the particular circumstances of the individual case. What are the indivividual facts that require proof?—in relation to each such fact, what are the articles of evidence that are expected?—and in relation to each such article of expected evidence, what are the source or sources from whence it is expected?

What, at the same time, will be no less manifest is—that by no other means can these individual circumstances be ascertained, either with anything near the security against deceptious incorrectness and incompleteness, or with nearly so little delay, vexation, and expense,* as by means of those mutual explanations which take place with such perfect facility and effect, wheresoever at the outset of the cause, the parties are brought together face to face in the presence of the judge: in which confrontation is included and implied, not only spontaneous deposition on both sides, but interrogation ex adverso, and, upon occasion, even interrogations undequâque, as in a former chapter explained.

In a subsequent chapter, on the occasion of a particular species of fact, viz. the genuineness or spuriousness of a proffered legal instrument, an exemplification will be given of the service which, by such timely opportunities of mutual explanation, would, throughout the whole field of judicature, be rendered to the ends and interests of justice.

Relevant, or irrelevant?—not superfluous, or superfluous? On questions such as these, the power of deciding may to some eyes present itself as exposed in no inconsiderable degree to abuse. It will, however, he found not to be so in a greater degree than many others of the powers inseparably involved in the general power of judicature; and in particular that of determining, in each individual instance, whether, as just mentioned, the degree of collateral inconvenience—of delay, vexation, and expense incident to admission, shall or shall not be regarded as sufficient to render exclusion preferable.

As to these powers, particularly in the case of irrelevancy or superfluousness, were they in ever so much greater a degree exposed to abuse, they would not be the less necessary: since, but for the safeguard they afford, cases would not be wanting in which, by the force of overbearing opulence, the merits of the cause, as well as the substance of the less opulent party, might be overwhelmed and drowned—drowned in an ocean of delay, vexation, and expense.†

By the timely explanations just spoken of, all unnecessary evil incident to the production of evidence would be prevented; as in every corner of the field of judicature, fortunate enough not be polluted by the claw of the technical harpy, it is prevented of course.

Articles of evidence, of which, upon explanation, it were seen and acknowledged that they would be either irrelevant or superfluous, would be discarded,—discarded before an atom of that delay, that vexation, or that expense, which would have attended the production of them, had been produced.

When, of two objectionable articles of evidence appertaining to the same fact—the one requiring but a small mass of delay, vexation, and expense—the other, a mass of those same evils in any amount larger, expectation is entertained that the least burthensome may suffice to command the decision, this least burthensome will be the mass to be produced in the first instance; eventual liberty being reserved for the production of the more burthensome mass, should the other be found insufficient.

§ 9.

English Practice in relation to the above Evils.

By the explanations just spoken of, the above several evils would for the greatest part be excluded. But out of these same evils, and in a mass proportioned to the aggregate mass of those same evils, does the profit of Judge and Co. increase. It is therefore the interest of Judge and Co., that—not the evils themselves, but the explanations by which they would be excluded, should be excluded:—and excluded they are accordingly: and of such exclusion a cornucopiæ of those same evils is the result: for the box of Pandora is the cornucopiæ of the man of law.

Under the impossibility of determining beforehand, in relation to this or that article from which advantage is looked for, whether it will be deemed relevant and admitted, or irrelevant and excluded,—in relation to this or that article, whether after the production of what other article there may be of the same tendency, a demand for it will be found existing, or whether it will not be found superfluous,—every particle of information that presents any the smallest chance of proving serviceable and admissible is anxiously looked out for, hunted out, and, at an expense to which there are no limits but those of the pecuniary faculties of the party and the estimated importance of the cause, dragged to the scene of action: and thus the pecuniary faculties of the parties at least, if not the theatre of justice, are oppressed by a load composed of irrelevant or superfluous, or irrelevant and superfluous evidence.

Of this aggregate mass of evidence—this or that item—necessary and proper, irrelevant or superfluous,—cannot (suppose it found or apprehended) be obtained within the regularly allotted time;—thus comes more delay, and by need of application for this extra time—and application made accordingly—and opposed or not opposed,—more expense.

“How many witnesses have you to examine?” So many. “How many hours, think you, may the examination of them, with your speech upon it, take up?” So many. “Oh, then; trying the cause now will be impossible.” Thence comes one or other of two jobs—a remanet, or a reference:—a remanet, with fresh fees for the counsel already employed:—or a reference, with fees de die in diem as above, for others of the same robe, one or more, in the character of judges.

Thus in one cause:—while, in another cause, by economy or by pecuniary inability, this or that article of evidence, which on the trial is discovered and pronounced to be indispensable, is kept back: consequence, if it be on the plaintiff’s side that the deficiency has place, a nonsuit.

If on the defendant’s side, so much the better: because, in that case, under the name of motion for a new trial, comes a second for trying whether there shall be a third;—and thereupon, by the blessing of God, that third:—whereas, in the case of the non-suit, two is the number of blessings to the enjoyment of which, in the first instance at least, the piety of the long robe is limited.

Till a quarter of a year, or half a year, or a whole year, after the discovery has been made, no misconception shall be set right, no error corrected, no omission supplied, no obscurity or ambiguity cleared up—till a quarter, or half a year, or a whole year, according to the distance from the seat of government—behold in this state of things one of the laws virtually included in the institution of terms and circuits: and this too under a system, under which, in virtue of the principle of nullification, errors are imputed to a man ad libitum—errors for which, if not finally debarred of his right, he is thus, in his painful pilgrimage for the attainment of it, thrown back, for having omitted to interpret, or failed in his interpretation of, this or that dream that never had been communicated, if as yet it had been so much as dreamt.

And merely because they are told so—told so by a set of men whose profession it is to deceive everybody, and whose interest it is to deceive them,—still, and in this nineteenth century, the good people of England are weak enough to conceive it possible, that a system, with two such features in it as the above causeless delay established by law, and nullification for causes foreign to the merits—(two such features out of twenty such that have elsewhere* been brought to view)—could have really bad for its object the furtherance of the ends of justice.

Of these two features, one alone, viz. that of religiously-established delay, suffices of itself, in the eye of an English lawyer, to render the very idea of employing exclusion of evidence provisionally, in the character of a remedy against delay, not merely odious, but ridiculous, and scarcely intelligible. That the quantity of delay established should be reducible to anything less than at least ninety times as great as it need be, and elsewhere is,—is a state of things, to the conception of which, even in the way of fiction, familiar as fiction is to him, his mind knows not how to fashion itself.

Under the common-law, the jury-trial system, all these gordian-knots are cut through at a stroke. A mass of evidence, to the quantity of which, and consequently to the length of time necessary to the exhibition of which, there are no determinable limits, is undertaken to be forced into the compass of a single sitting. The consequence is,—that, in no small proportion of the whole number, causes are, of necessity, badly tried, and, in another not inconsiderable proportion, they are not tried at all. In these last cases, the cause is sent off, as above, to reference: and thus it is that, at common law, the trial of matters of fact makes a job for the benefit of barristers, fee’d in the character of judges, quoad hoc in the character of referees, or arbitrators;—as in equity, for the benefit of the sort of subordinate judges called masters: both receiving payment, in such a mode as puts their interest in a state of the most point-blank opposition to their duty:—payment, viz. in proportion to the quantity of delay, vexation, and expense, to which they have given existence—both operating in that secresy by which every desirable facility is afforded to the sacrifice to which the interests of justice have been doomed.

By way of prelude to this scene of pillage, the parties, without any of the benefit of jury-trial, have had the whole of the expense: and thus it is, that the more completely incompetent it is to its professed and pretended objects, the more indefatigable are the eulogies of which this mode of judicature may for ever be assured, at the hands of the only class of persons who can so much as pretend to have anything like a distinct and adequate comprehension of it.

In relation to this subject, anything in the way of detail would here be not only misplaced, but needless: in another work,* indication, and in considerable detail, has been given, not only of the mischief, but of the remedy—the only sort of remedy which the nature of the case admits of.

[* ]Such is the effect, or at least one of the effects, of that master invention of the demon of chicane, composed of terms and circuits; that system of cool atrocity, the maintenance of which might of itself, on the part of all those by whom the real effects of it are understood, suffice for a perpetual refutation of all pretension to any such feeling as a sincere regard for justice;—that abomination to which the duped and misguided people are so well reconciled—reconciled by the same causes by which they have been reconciled to sinecures, to deodands, to sweeping forfeitures, to corruption of blood, to imprisonment for debt, to punishment for opinion—to capital punishment—were so once to trial by red-hot ploughshares, and trial, by duelling,—and, no less than the people of Mexico and Otaheite, would have been to human sacrifices, had the blood of human victims been worth as much as their money to the tribes of priests and lawyers.

At the first institution of circuits, no shorter length was to be had than seven years: and under this mode of dealing, so delighted was the inventora with the invention, that the only symptoms of sensibility exhibited from the beginning of his work to the end of it, are those which are called forth by the thoughts of this offspring of the union of genius with public virtue. And of this invention, what is the date? Not anterior to the flood, but so long posterior to it as the days Henry the Second of England.

[* ]It is always adequate in the case of the judge.

[* ]See note ‡ next page.

[† ]See Chap. XI.

[‡ ]The judge so called is, by the compensation afforded him for the vexation attached to his office, placed in a state of opulence. The common juryman, taken by compulsion from a situation frequently but little above indigence, is subjected to vexation the same in kind, and severer in degree, without any compensation. The special juryman, distinguished from the common juryman by nothing but a superiority, but that a very marked one–a superiority which places him above the habit as well as the need of drawing upon his time for his subsistence,–is left at liberty to serve or not to serve, and when it pleases him to serve, receives a real compensation for an imaginary damage.

At the same time, to the quantity of vexation which, in each suit or cause taken by itself, the juryman is capable of being subjected to, a limit is, in the instances of both classes of jurymen, applied, viz. by the above-mentioned mechanical expedient of confining the mass of evidence to the quantity capable of being delivered within the compass of a single sitting. By this contrivance, in an unknown proportion of the whole number of causes, an unknown proportion of the quantity of evidence that, under a system adapted to the ends of justice, would have been delivered, is squeezed out and excluded: and thus it is, that by exclusion of evidence, the prisoner in the jurybox, after vexation has been heaped upon him with the one hand, is let out from under it with the other,–but not till after the load thus heaped upon him has swollen to such bulk as to become physically insupportable.

[* ]Note, that to the situation of party litigant, and that of extraneous witness, the means of compulsion adapted to the extraction of testimony, are by the nature of things rendered altogether different. To the situation of extraneous witness, that is, of a person who has no such interest in the cause as gives the hand of justice (as above) a hold upon him, some extraneous instrument of compulsion—such, for instance, as coercive imprisonment, is necessary. On the other hand, in the situation of party litigant, the interest a man has in the cause is, in the hand of the judge, an instrument sufficient for the purpose. From pertinacious non-responsion after pertinent interrogation, want of merits is the inference which, on the occasion of any private inquiry, is drawn of course by common sense: and the same on the occasion of legal inquiry would have been the inference drawn by common law, if by common law, common sense, in conjunction with common honesty had been taken for its guides. From non-responsion, and that which is equivalent to it, the inference is, on either side, want of merits: the principal fact probabilized, want of merits: evidentiary fact, non-responsion, false or evasive responsion. In penali, on the defendant’s side, fact probabilized delinquency, viz. in the shape specified in the charge: from false responsion, or evasive inference, the same: of this circumstantial evidence, the probative force is not indeed absolutely conclusive, being liable to be weakened by possible infirmative circumstances (see the chapter on Circumstantial Evidence.) It is, however, much more so than many an article of circumstantial evidence, which, in present practice, is in use to be acted upon as conclusive.

[* ]For avoidance of needless hardship by disclosure, the nature of things admits of a variety of expedients, which, in a system directed really to the ends of justice, and founded in a regard to human feelings, would be adopted with alacrity; but which, under a system directed to such opposite ends, and under the dominion of such opposite affections, will of course be treated with affected scorn as visionary and ridiculous.

The mischief to be guarded against, suppose it to have its source in the apprehended and unpunishable resentment of this or that individual in relation to whom, by some domestic or other intimate connexion, the party has been placed in a state of dependence, more or less strict and irresistible:—father, guardian (the party being of full age, or under age,) husband, expected husband or wife, father or guardian of ditto, patron, official superior, principal customer in the way of trade, and so forth.

1. By the principle of occasional privacy (as explained Chapter VIII. § 10,) much might be done towards the avoidance of mischief in this shape. The witness examined by the judge, in his adjoining privy-chamber—with or without the presence of persons named for the purpose, one by the party on each side, with the approbation of the judge, and bound by a solemn promise want of secresy.

2. The objectionable testimony in question not to be called for, but in case of necessity, i. e. for of other sufficient evidence.

3. Power to the judge, to exact or refuse to exact, to admit or refuse to admit, the objectionable testimony, according to the judgment formed by him on the question, whether by admission or exclusion the greater evil would be produced: such opinion to be supported by special reasons, to be thereupon entered in a book, to be kept for such purpose: a secret register, not accessible but to particular persons and for particular purposes.

4. Power to the judge, if, in his declared opinion, the importance of the matter in question be sufficient to warrant such an expedient, to convene the individual, whose apprehended resentment constitutes the objection—to convene him for the purpose of reconciling him, by proper representations, to the inquiry the necessity of which is imposed by the exigences of justice.

Other temperaments directed to the same objects—amongst them, regulations having in view the prevention of the abuses to which the powers in question stand exposed—might here have been brought to view: but in so contracted a sketch as the present, too much space will already be thought to have been bestowed upon an object so anomalous and so hopeless.

Operations of so domestic a cast will be immediately seen to be not compatible with the system of technical procedure, nor therefore with that mode of jury-trial which it involves.

A system of which they formed a part could be no other than a modification of the system of natural procedure, such as that brought to view in another work (Scotch Reform,) under which, in non-penal cases in general, and perhaps, to a certain extent, as at present under justice-of-peace law in the lighter and less important penal cases, without the forms, and consequently without the delay, vexation, and expense, to which, under the existing system, may be added the precipation, inseparably or otherwise attached to jury-trial, the suit or cause might be tried and receive its decision in the first instance from a single judge, with or without un-law learned assessors, two or some such small number, changing like jurymen, and of the class of jurymen;—jury-trial not to be resorted to, but in so far as demanded by a party in the way of appeal, as at present in the case of new trial: causes too complicated to receive a well grounded decision in the compass of a single sitting, being as there mentioned, decomposed and resolved into separate issues triable by separate juries.

Against discretionary power, when proposed to be given to a judge by law, and limited by the same law, meaning always real law,—against power to the exercise of which all eyes would be directed by the very law by which it would be conferred, the eye of public jealousy is apt enough, frequently more than enough, to put itself upon the alert. Towards power almost infinitely more extensive and exposed to abuse, so it have been assumed and exercised without law,—such as is all power exercised in the haze of common, alias unwritten law—especially if the abuse be in a particular degree inveterate, no such guardian eye can be prevailed upon to open itself.

Under judge-made law, all judicial power is arbitrary—essentially and irremediably arbitrary. Where there is no fixed standard, on whom can aberration justly be chargeable? When there is nothing to err from, how can aberration ever have place?

[* ]In the case of mischievous criminality, the duty of compensation and the use of the confessional in promoting the fulfilment of it, has, among Catholics, been a known subject of consideration and publication. A treatise, Sur la Restitution, by La Plucelle, is a work the title of which cannot be altogether unknown even among Protestants.

To this purpose, let the actual effect produced by Catholicism be ever so small, it can scarcely be much smaller than the utmost effect aimed at by English judge-made law; and in particular, that part of it, which being the product of the most unexperienced and barbarous ages, is so piously held to view as a standard to which the rule of action in a riper and milder state of society ought for ever to be kept conformable. In so far as that branch of the law finds the means of execution, when the criminal has been consigned to legal slaughter, what property he has, instead of remaining for the subsistence of his innocent family, or being applied to the purpose of affording compensation to the injured as well as innocent victim or victims of his crime, is seized and made a prey of, nominally to the benefit of the monarch alone, really to the joint benefit of the monarch and the ever-industrious manufacturers of his prerogative.

With this “vicarious satisfaction,” the morality of Blackstone has declared itself perfectly well satisfied. The satisfaction of the learned panegyrist would probably not have been quite so cordial, had the principle of vicarious application extended itself to lawyers’ salaries and fees.

[* ]Flaws, viz. by means of the principle of nullification, and other devices.

[† ]“Call upon a man—of all men, call upon a man of law—to break his trust?” cries the man of law. Yes, surely: and why? Because the same considerations of general utility and justice, which in other cases call upon the ministers of justice to compel the observance of a trust, call upon him in this case to compel the breach of it: the breach—or if instead of the cooler word breach, the more impassioned word betraying or violation be employed in preference, the state of the case will not be altered.

A trust is but a species of contract. Be the contract what it may, from an arrangement of law authorizing or enjoining the breach of it, what is the consequence apprehended? On each individual occasion, one or other of two consequences it must be, viz. that either the contract will not be entered into, or if entered into, it will be broken. But if the effect of the contract, as often as it has any, be of a nature mischievous to the community, productive of a balance on the side of evil,—that these consequences, the one or the other of them, should on every occasion take place, is exactly the result, the happening of which will be the wish of every man, in whose scale of importance the welfare of the community in question, the greatest happiness of the greatest number of its members—occupies a higher place, than that of a wrong-doer and his hired accomplice.

An act which in itself—which in its own nature—is prejudicial to society, is it in the power of two men, by agreeing to join in the performance of it—of any two men, so as one of them be a lawyer—to render it innoxious and justifiable?

What is desirable is, that by honest men of all descriptions, honest and preponderantly beneficial contracts of all descriptions should be observed, performed, and carried into effect. Does it follow, that between dishonest men of all descriptions, and their respective confederates and coadjutors, hired from this or that one of the several houses of call in the neighbourhood of Temple-Bar, to contracts having for their object the giving success to dishonest acts, and security to the actors, the like force and effect should, as far as depends upon law and judicature, be secured? In the case of an honest engagement, it is by the observance of it—in the case of a dishonest and pernicious engagement, it is by the breach of it—that the community is served.

In a case of felony—in a case of swindling or smuggling—in a case of criminality or of transgression in any other mischievous shape,—it is not contended that, between accessary and accessary before the fact, engagements, having for their object either the effectuation of the distinct purpose, or the safety of the transaction, should be kept:—then why as between accessary and accessary after the fact?

Mischievous contracts ought not to be formed: and were it only to the end that in other instances they may not be formed,—in those in which they have been formed, they ought not to be performed,—they ought not to be suffered to be performed.

A trust is a sort or species of contract:—and who is the sort of man who, for the furtherance of his own sinister interest, at the expense of every honest interest, calls for a blind and indiscriminating observance of this pernicious contract? Who but that very sort of man, who, for the furtherance of the same sinister interest—with the principle of nullification in his hand—that instrument of his own manufacture, by a touch of which not only all private engagements, but all public engagements—in a word, all laws, are broken and bereft of all their efficacy at his pleasure,—breaks and annihilates any the most beneficial engagements without remorse.

With a view to, and for the sole purpose of the general good, to the prejudice of that particular and sinister interest of his own, he will not hear of the annulment of a contract:—when, without so much as the pretence of good, general or particular, on the mere ground of this or that quibble—this or that palpably absurd or mendacious assemblage of words in his mouth, on grounds confessedly, or rather professedly, foreign and irrelevant to the merits—for non-compliance with this or that condition, never announced, and by the most sagacious discernment and ingenuity incapable of being anticipated—for non-performance of this or that condition, the performance of which he has taken care shall be impossible, he destroys whatsoever contract comes in his way at pleasure.

Note also, that the same sinister interest which for the benefit of his own trade engaged the man of law to secure to himself so convenient an exemption, engaged him, by means of the same uncontrouled power, to secure to himself the monopoly of it. The medical practitioner, to whose healing art a malefactor, wounded in the prosecution of his enterprise, has had recourse for relief, and who by his lips is called upon to help to destroy the life which his hand had saved:—the trust reposed in the exerciser of this pain-assuaging and life-preserving art—of whose labours good in the purest shape is the unvarying object, is this purely virtuous and beneficial trust secured likewise from disclosure? Not it indeed:—any more than that of the banker, or the exerciser of any other honest trade or profession by which service without fraud or hypocrisy is in any shape performed.

[* ]“To enable a man to produce his witnesses before a jury,” says Mr. Peake,—(but how is it where there is no jury?)—“in cases,” continues he, “where they will not voluntarily appear in his behalf,” (add—or it is apprehended may not,) “the law,” continues he, “has provided a compulsory remedy by the writ of sub-pœnâ.”—“The service of the writ of sub-pœnâ is made,” he goes on to say, “by delivering a copy to the witness, and showing him the original, at the same time tendering a reasonable sum of money for his expenses, according to his station in life; and, if after this he neglect to attend, he will be liable either to an attachment, to an action at the common law for damages, or to an action on the statute of 5 Hen. c. 9. for the penalty of £10; and the further recompence given by that statute at the election of the party injured by his negligence.”

Thus far the learned expositor. Of all these several optional consequences, or any one of them, on the occasion in question, in and by the message by which a man’s attendance is commanded, is any the least intimation given to him whatever?—but instead of it, what he is threatened with is—the payment of a sum, the same in all cases (£100,) for which in no known instance was a man ever called upon: a prophecy so sure to be mendacious, that by the learned expositor, in his list of remedies, no mention, it may be seen, is made of it. Here then, as usual, may be seen English judges, in habitual solemnity, declaring themselves “witnesses” to a downright lie, and that capable of being a most pernicious one. For suppose that, at the expense of £100, by withholding this service when due, a man saw an assurance of reaping, in the shape of money, vengeance, or any other shape, an advantage more than equivalent to that expense, what the judge by this message gives him to understand is,—that such is the opportunity which the law, in its wisdom, has put into his hands.

Exists there that malefactor, be he ever so vile, by whom, were credence given to his word, an honest man would be so likely—not to say so certain—to be deceived, as by the purest of English judges, expressing himself deliberately and solemnly—sometimes under his own hand, sometimes by the hands of his appointed instruments, sometimes telling the lie in his own same, sometimes representing the king as telling it, and himself as witnessing it.

On a charge of murdering his father, or cutting a piece of cloth into smaller pieces, suppose a man hanged for want of the exculpation which a man who should have been witness would have afforded:—who in this case gets the promised “damages?” As soon would they be got by the man’s ghost, as by his widow or his orphans. Such from beginning to end—if under the pressure of necessity the terms may be applied to a nonentity which has neither—such, from the beginning to the end of its fictitious texture, is the providence of judge-made law: and under such providence reigns a rule, sacred among lawyers and lawyer-led legislators, consigning to infamy with the word theorist upon his forehead, the man who shall dare to propose any such dangerous innovation as that of applying a remedy in any shape, to mischief in any shape, before it has been proved to have already taken place.

[* ]Except always the comparatively rare case, in which, for a time or for ever, such confrontation is either physically or prudentially impracticable: in which case, oral examination finds a necessary substitute, temporary or definitive, in the epistolary mode.

[† ]In the idea of excluding a mass of evidence on the ground of irrelevancy, a sort of apparent self-contradiction may be apt to present itself;—for, “How can you tell what it is,” it may be asked, “till you have either read or heard it?” But relevancy will, it is believed, be found to regard the relation between fact and fact, rather than that between fact and evidence—rather than the relation between a given matter of fact, and evidence directly probative of that matter of fact:—to reject evidence on the score of irrelevancy, will accordingly in general be, to say—this fact, the existence of which you require to be admitted to prove, viz. in the character of an evidentiary fact or circumstance probative of the principal fact in question, has not, supposing it proved, any connexion with it, sufficiently close and strong to compensate the mass of delay, vexation, and expense, that would he inseparable from the production of it:—therefore it shall not be produced.

[* ]Scotch Reform.

[* ]Scotch Reform.

[* ]Such is the effect, or at least one of the effects, of that master invention of the demon of chicane, composed of terms and circuits; that system of cool atrocity, the maintenance of which might of itself, on the part of all those by whom the real effects of it are understood, suffice for a perpetual refutation of all pretension to any such feeling as a sincere regard for justice;—that abomination to which the duped and misguided people are so well reconciled—reconciled by the same causes by which they have been reconciled to sinecures, to deodands, to sweeping forfeitures, to corruption of blood, to imprisonment for debt, to punishment for opinion—to capital punishment—were so once to trial by red-hot ploughshares, and trial, by duelling,—and, no less than the people of Mexico and Otaheite, would have been to human sacrifices, had the blood of human victims been worth as much as their money to the tribes of priests and lawyers.

At the first institution of circuits, no shorter length was to be had than seven years: and under this mode of dealing, so delighted was the inventora with the invention, that the only symptoms of sensibility exhibited from the beginning of his work to the end of it, are those which are called forth by the thoughts of this offspring of the union of genius with public virtue. And of this invention, what is the date? Not anterior to the flood, but so long posterior to it as the days Henry the Second of England.

[a]Glanville.