The Online Library of Liberty

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

CHAPTER XXII.

EXCLUSIONS BY ENGLISH AND OTHER LAWS—ANALYTIC AND SYNOPTIC SKETCHES.

§ 1.

Undisguised Exclusions.

Of the two most permanent and most comprehensive grounds and cases of exclusion, a view, howsoever abridged, has been already given a detailed view will be seen to occupy the extent of not less than a volume in the body of the work.* But even in this place, to leave in the state of a mere blank space, so important a compartment in the field of actual jurisprudence, was not to be endured:—an analytic sketch, howsoever meagre and compressed, seemed preferable to total silence.

Undisguised and disguised: by these two words, expression may be given to the first and most comprehensive distinction that requires to be brought to view.

Undisguised the exclusion may be termed, when, and in so far as, both the fact of the exclusion—the fact that upon a species of evidence of such or such a description an exclusion has been put, and the consideration on which, in the character of grounds or reasons, that exclusion has been, or upon occasion would be justified, seem out of doubt:—disguised it may be termed, when, and in so far as, either that fact or those reasons appear more or less unobvious and difficult to be discerned or ascertained.

Indirect—undiscriminating—limping—undiscernible—blind—wanton: by these several adjuncts—sometimes one, sometimes two or more of them together, the exclusion will, it is supposed, be found not unjustly characterizable, in most, if not all of the cases, in which it will appear susceptible of the more comprehensive appellation of disguised.

When the exclusion presents itself as having been the result of a view taken of some one or more apprehended inconveniences, considered in the character of grounds or justificative causes, serving as warrants for the exercise of such an act of power, the act of exclusion, as well as the consideration or considerations on which it was grounded, will concur in entitling it to the appellation of undisguised:—and here, although the ground itself should in the balance of reason be found deficient, still it is to thought itself, not to the mere absence of it, that the exclusion will appear referable.

On a simple ground, or on a complex ground: by these two words, viz. simple and complex, may be characterized the distinction which takes for its subject the cases in which the exclusion is undisguised:—simple, when one circumstance and no more presents itself as the ground on which the exclusion was built:—complex, where several such grounds present themselves.

Take, in the first place, the case where the ground of exclusion is simple. In this as in other cases, the ends of justice which, if any, have been had in view, will have been either the direct ends, or the collateral ends:—the direct ends, viz. prevention of misdecision, in the several forms of which it is susceptible:—the collateral ends, i. e. prevention of unnecessary delay, vexation, and expense.

Misdecision, in so far as produced by evidence, is produced through the medium of deception: deception, i. e. erroneous judgment, produced by it in the mind of the judge.

On the part of an article of evidence, whatsoever circumstance tends to diminish its justly probative force—this same circumstance, in proportion as the judge fails of being adequately apprized of such its tendency, tends to produce deception in the mind of the judge. On this consideration, every such circumstance has been already stated as constituting a proper ground for suspicion, though, for the reasons that have been given, not a proper ground for exclusion.

In English practice, any such cause of inferiority, how minute soever, is to a large extent considered and employed as a proper ground for exclusion: but with a degree of inconsistency, of which intimation has been already given:—such being the effect, which, in cases where the force of the cause is at its minimum, has been deduced from it, while in cases in which that force is at its maximum, this same effect has not been deduced.

Such, so far as concerns exclusion of evidence, is the complexion exhibited by English practice, when viewed in a mass, and when, and as the cases successively present themselves, groupe after groupe. In particular groupes, this complexion will not be seen to exhibit any considerable change.

In regard to collateral inconvenience, in all its three several forms as above, it has been stated as capable of constituting a proper ground of exclusion: the propriety depending, on each individual occasion, upon the proportion between the two evils—viz. the evil to be apprehended in case of exclusion, and the evil to be apprehended in case of admission. At the same time, temperaments have been brought to view, having for their object the exclusion of evil from both those sources, the complete exclusion of it, or, at any rate, the reduction of it to the least dimensions of which it is susceptible.

In English practice, in the shape of delay or expense, such collateral inconvenience appears scarcely to have been taken into account. In the shape of vexation it has been employed in the character of a ground of exclusion, but with a degree of inconsistency, of which intimation has also been given above.

Let us consider, in the first place, the distinctions which present themselves in the case where the evil, by the apprehension of which the exclusion was produced, has been misdecision, viz. through deception.

The fact, to which the article of evidence in question immediately applies, may be either the fact itself which is in question,—say as before, the principal fact,—or some other matter of fact, which, in relation to it, is considered as evidentiary,—say as before, the evidentiary fact,—viz. either probative or disprobative. In the former case, the evidence is said to be direct: in the latter case is all circumstantial evidence, as above.

In its very nature, circumstantial evidence, viz. any single article taken by itself, has already been stated as being generally inferior in probative force to direct, (though not so in disprobative,) and in so far, as being comparatively speaking a proper object of suspicion, but in no instance as involving in its nature a proper ground for exclusion.

In English practice, circumstantial evidence, as such, is not in general considered as doomed to exclusion: but, in cases to a considerable extent, it will be found to be so; as will be seen more particularly in the body of the work.

Take now the case in which the evidence is direct. Source and shape: in these two, may be seen the characteristic terms by which the two branches produced by the next division, will stand expressed.

If, in respect of probative force, weakness be on any specific ground imputed to the evidence, the object pointed to as the seat of the weakness will either be in the source from whence—i. e. the person from whom—the evidence is immediately derived, or the shape in which it is received or extracted from him.

If, as above, it be in the person—i. e. of the proposed deposing witness—it will be either in his relative position, relation being had to the means of information afforded by it, or in the personal character and qualities attributed to him.

As to his means of information, it will have been presented to him either ab intra, by internal cognizance,—or ab extra, by external report: in the former case, it is afforded to him by the perceptions presented to him by his own senses or intellectual faculties; in the other case, by the supposed perceptions of some other person or persons as reported to him by such other person or persons. In so far as the former is the case, it is only to his own personal character and qualities as above, that any such imputation as above can point itself: in the other case, whatsoever be the personal character and qualities ascribed to such his informant or informants, the testimony delivered by him will, by at least one degree of distance, be removed from the seat or supposed seat of perception: and by such remoteness, how entire soever be the trustworthiness of the several supposed informants,—by such remoteness, in proportion to the number of degrees by which as above it is increased, will in every case be presented an incontestable cause of weakness, or diminution of justly probative force.

In so far as the alleged cause of weakness lies in the supposed character and qualities either of the deposing witness, the supposed percipient witness, or of any supposed intermediate reporting witness or witnesses—the alleged seat of such weakness lies in the supposed nature of the source from which, or of this or that one or more of the channels through which it is supposed to have passed. In the other case, it lies in the remoteness of the information from its supposed source.

State of the intellectual department—state of the moral department, of the man’s mind: such are the terms by which the two branches produced by the next division may stand expressed.

Imbecility independently of age, imbecility by reason of age—such is the distinction that has place when the disorder in question, viz. apprehended untrustworthiness, has for its seat the intellectual department as above.

Having its source in the circumstance of age, imbecility will have for its efficient cause either deficiency or excess:—deficiency, viz. in the case of non-age;—excess as in the case of caducity, or say more expressively, antiquation.

If the disorder have the moral deportment for its seat, it can have no other than sinister interest for its efficient cause—sinister interest, i. e. as above, interest in any shape acting in the sinister direction here in question; viz. a direction in which its tendency is to produce deceptious incorrectness or incompleteness in the evidence.

Actual exposure to the operation of sinister interest in this or that particular shape—more than ordinary sensibility to the action of that stimulant: to one or other of these circumstances will the disorder in question be referable, in so far as, having its seat in the moral department of the human frame, it has for its efficient cause, sinister interest, as above.

Actual exposure to the action of sinister interest in the case of him who, with reference to the matter in question, is, in the language of English law, said simply to have an interest, or to be, if a witness, an interested witness.

To the purpose here in question, more than ordinary sensibility to the action of sinister interest is expressible in and by one word—improbity.

If the positions hereinabove endeavoured to be established be conformable to reason, suspicion, and no more than suspicion, is the proper practical inference deducible from any such disorder, actual or presumable, in the frame of mind of the proposed witness, and that whether the intellectual or the moral department be the seat of it.

Not only in England, but in other countries, and probably without exception in all other countries, either by statute or by judge-made law, have causes of exclusion been deduced from all these several sources: but with a degree of inconsistency, the complete development of which would require volumes.

Period of supposed perception, and period of deposition: by the state of things that has had place in one or other or both of these two periods, it is, that the shape in which the evidence presents itself is determined; and to one or other of which any intrinsic weakness that can be found imputable to it will be to be referred.

In so far as the period of perception is the time to which the weakness is referred, the imputation will have for its ground the absence of some one or more of those accompaniments which, in the case of preappointed evidence, have already been brought to view under the appellation of formalities:—in so far as the period of deposition is the time to which the untrustworthiness imputed to it is referred, the imputation will have for its ground the absence of some one or more of those accompaniments which have already been brought to view under the appellation of securities—securities for trustworthiness, securities against deceptious incompleteness and incorrectness.

As to formalities, the state of things which admits them is confined to that which admits of preappointed evidence: a case in which, the fact in question being foreseen, provision is made beforehand for the preservation of the means of proving it.

Of the accompaniments which, in the character of formalities, presented themselves as promising to be in the most advantageous way conducive to that proposed end, a general idea has hereinabove been given:—suspicion, not exclusion, has on that same occasion been mentioned as the practical inference, and the only practical inference proper to be deduced from any incorrectness or incompleteness, with which the best of such of them, as on any given occasion happens to have been employed, may be found chargeable.

In the state and condition of English law, statute and common law together, notice of the tissue of inconsistencies observable under this head has been already given. In the way of real law,—in the way of prospective law,—no tolerably complete system of formalities ever appointed:—in the way of judge-made law,—in the way of ex-post-facto law,—here and there, this or that formality set up in the character of one that ought to be observed:—from the non-observance of this never-notified formality, exclusion sometimes deduced, sometimes not:—practical inference, always exclusion, if anything; simple suspicion, never.

Prescribed or not prescribed by the law, the securities termed formalities—the securities for the eventual forthcomingness of adequate evidence—are capable—such is their nature—of existing and being employed, without having been called into existence by the law. The securities termed as above securities—the securities against deceptious incorrectness and incompleteness in the evidence when produced—are, almost without exception, creatures of law, depending upon the law for their existence.

As to these last-mentioned securities, if the positions herein endeavoured to be established be conformable to reason, in so far as practicable,—prudential as well as physical practicability taken into the account,—to a proposed article of evidence not yet brought into existence, they ought, all of them, to be applied: as also, upon occasion, to an article of evidence already in existence, such, if any, as have not as yet been applied to it; and from the absence, coupled with the inapplicability of all or any of them, suspicion, but not exclusion, ought to be, and that uniformly, the principal inference.

In the course taken under this head by English law—understand judge-made law—for in this part, as almost in every other part of the field of evidence, it is to the judicial authority that the framing the rule of action has been almost entirely abandoned by the legislative—the features of inconsistency have already been shown to be still broader, perhaps, than in any other. The accompaniments best adapted to this purpose have been fully understood; and on these occasions—i. e. on the occasion of those modes of trial in which the mode of procedure has not been capable of being shaped altogether according to the interest and pleasure of the judges—the absence of any of them has been laid hold of as a ground of exclusion; and exclusion—inexorable exclusion—in some instances has been put upon the evidence accordingly; while, on other occasions, viz. on the occasions of those modes of trial, the framing of which has been the work of the uncontrouled authority of the judges—on those occasions, all these securities have been excluded,—that inadequate portion of them excepted, which has been wrapped up in, and disguised and enfeebled by the ceremony of an oath:—and thus, as far as circumstances permitted, the door has been shut against evidence in its most trustworthy shape, opened to it in no shape but the most deceptious that could be given to it.

Remains the class of cases, in which, for the designation of the ground on which the exclusion appears to have been built, the term complex was employed. Fear of the evils opposed to the direct ends of judicature, fear of the evils opposed to the collateral ends of judicature, or one of them; in other words, desire, real or pretended, of avoiding to produce misdecision through the medium of deception—desire, real or pretended, of avoiding to produce, in this or that particular shape, vexation: such were the two grounds, with a view to which the word complex was employed.

The individual in question, a party to the suit or cause—a party, whether plaintiff or defendant;—the individual in question, connected by the matrimonial tie, with a party in the cause, bearing towards him or her, the relation of wife or husband:—

By these two more particular cases, the class of cases here in question are, if not absolutely exhausted, at any rate extensively exemplified.

From neither of these grounds, saving the comparatively narrow exceptions already indicated, if the positions hereinabove endeavoured to be established be conformable to reason, on neither of them, nor, for the same reasons, from both of them put together, can any proper cause of exclusion be deduced.

Under English practice, inconsistency may be seen triumphant here as elsewhere: exclusion abundant, but far from constant:—where it has place,—what the ground of it has been,—what the mischief meant to be avoided—whether one alone of the two mischiefs in question, or both, is not always clearly discernible:—to an ample, though not everywhere easily definable extent, the front-door has been shut against the evidence, but a side-door opened to it:—fact in question the same,—state of interests the same—the same in quantity, in quality, or in both—no matter, so the name given to the species of suit or cause be different:—since thus, besides the general benefit of uncertainty, and thence of obscurity and confusion,—two or more suits or causes have not unfrequently been manufactured out of one.

In the case where the term negative applies to it, the exclusion has for its efficient cause the non-application of some legal instrument necessary to the obtainment of the evidence.

On the part of a proposed witness, antecedent and introductory to the act of deposition, may be seen a multifarious and complex train of acts—all of them, for the purpose in question, sufficiently brought together by one word, forthcomingness.

Correspondent to these two modes of being on the part of the proposed witness, are so many modes of negative exclusion on the part of the law: non-provision of the powers, and other means necessary to the production of deposition, on the part of the proposed witness, supposing him in a state of forthcomingness;—non-provision of the powers and means, one or more or all of them, necessary to insure his being found in that state.

When, and in so far as it is left to a man’s option, whether, on the occasion in question, he will or will not appear and act in the character of a witness,—in this case, in the positive sense, exclusion is not put, but in the negative sense, exclusion is put, upon evidence.

In the present work, what in relation to this head is contended for is, that,—due provision, excepted in this as in all other instances, for the case of preponderant inconvenience in the shape of delay, vexation, and expense, more particularly in the shape of vexation,—to render or not to render to justice, service in this shape ought not to be left to the option of the individual:—in other words, that negative exclusion is not proper, but where positive exclusion is so too:—for that of such option the tendency is to stock the judicatory with partial, and in that respect less trustworthy witnesses: and more particularly to render testimony, and thence decision dependent upon money or power—upon overbearing and oppressively aristocratical influence.

As to actual law: under this head, as under so many other heads, judge-made law may be seen exhibiting its usual inconsistencies as well as its usual imperfection and deficiency: in regard to forthcomingness, to no small extent the necessary means not applicable, because not created:—in other instances, though created, not suffered to be applied.

In particular, as to optionality, when the only shape in which evidence is admitted is that favourite shape which is the worst of all shapes in which the information admitted receives the name of evidence—viz. affidavit evidence,—deposition or non-deposition left completely at the option of the proposed witness:—thereby the probability of misdecision, viz. through the medium of deceptiously incorrect and incomplete evidence, screwed up to its maximum—say, in one word, maximized.

§ 2.

Disguised Exclusions.

So much for the cases where the fact of the exclusion, the evidence it applies to, and the ground which, in point of utility, real, or supposed, it proceeds upon, all lie open to view. Come now the cases in which, wrapt in some disguise, these same objects shrink from observation. Thick is now the darkness that covers the face of the jurisprudential deep.

Analysis is here at a stand. Directed by her best guide, pursuing here and there such faint lights as offer themselves, enumeration enters upon her task, without any assurance of its completion.

1. Cases where the exclusion is effected by limits set to the quantity of evidence that shall be allowed to be extracted or received: for example, to the number of the witnesses who, in the case in question, or in relation to the fact in question, shall be heard: much as if a similar limitation were set to the number of sheets of paper on which the depositions shall have been entered, or to the bulk or length of the aggregate mass. Spanish, not English, is the system of law from which the idea of this species of exclusion has been derived. Vexation on the part of the judge, thence perplexity, thence misdecision—or delay, vexation, and expense—or both, appear to have been the evils the avoidance of which was contemplated here.

In this case, the object hid from sight is—not the fact of the exclusion, but the particular nature of the evidence to which it applies.

2. Cases where the exclusion is effected by limits set to the length of time during which evidence shall be received: thence excluding in the lump whatsoever is over and above the quantity that can be received within the length of time thus limited.

To this head belongs the exclusion put, under English law in jury-trial, by the practice which confines the quantity to that which can be received on the compass of a single sitting: in particular, when justice travels post, as on the circuits. Of the evidence thus excluded, the nature is wrapt in impenetrable darkness. Even the fact of the exclusion seems to have been a secret to the people at large. In the instance last mentioned, the exclusion will be readily enough acknowledged to be absurd, being outlandish, and having nothing to do with jury-trial:—in this latter instance, it is as it should be, being English, and connected with jury-trial, and thereby with liberty.

Such is the justification which the man of law has in store for it, should eyes ever be opened, and complaint made of it—made by any of the thousands who, under and by virtue of it, are wronged and plundered.

Want of reflection seems to have here been the cause—if not of the mischievous arrangement itself, at any rate of the patience of the people under it—if not of the creation of the abuse, at any rate of the preservation of it. On these occasions, and in this manner, evidence continues to be excluded from the judicatory, because reason continues to be excluded from the throne, custom and prejudice having usurped its place.

3. Cases where, before the body of evidence which the fact happens to have afforded has been collected, or otherwise disposed of, such evidence as has been already collected is kept concealed. Of such concealment, one effect, and that a declaredly intended effect, is—to put an exclusion upon all such other evidence, in regard to which, but for such concealment, either the need of it, or the means of procuring it, would or might have been indicated.

In this instance, the exclusion is a natural, and seems to have been a constant accompaniment of the Rome-bred mode of collecting evidence,—viz. extraction per judicem ad hoc, in secreto judicis, partibus non præsentibus—and from the Roman school, adopted and employed in the English edition of Rome-bred procedure, as employed in the equity, the ecclesiastical, and the admiralty judicatories.

In this class of cases, the disguise is still thicker than in the class last mentioned: the mode of exclusion still more indirect.

The evil, the contemplation of which appears to have furnished, in this instance, not only a pretence, but in some measure a reason, is—the immensity of the mass of collateral inconvenience—of delay, vexation, and expense—to which the evidence thus excluded might perhaps have given birth: but to whatsoever evidence may come thus to be excluded, the reason cannot apply without having in the first place, and with equal justice, been applied to whatsoever has been, and is predestined to be, admitted.

Here, as elsewhere, the mischief has for its cause—the exclusion put by technical procedure upon those timely explanations between the parties in the presence of the judge, to which there has been such frequent occasion to make reference, and which, under the natural system of procedure, take place of course.

4. Cases where, to this or that species of evidence, are given, if by any general rule, the denomination and effect of conclusive evidence. The effect is to exclude in the lump all evidence whatsoever, that could have been brought on the other side.

This conclusive and exclusive evidence,—is it of the nature of direct evidence? Infallibility and impeccability are the attributes ascribed to the witness. Is it of the nature of circumstantial evidence? Between the principal and the evidentiary fact in question, a connexion is supposed, so close and intimate, that, in the whole storehouse of nature, no species of fact has place, by which, in the character of an infirmative fact, a severance between them is capable of being made. Cases of this sort are at any rate extremely rare: and if so it be, that of any such infirmative fact no instance exists, the advantage reaped from the exclusion of such non-existent evidence cannot be very considerable.

Either inoperative or deceptious,—in the first case useless, in the latter case pernicious,—such is the character of any such general rule.*

5. Cases where, for the proof of this or that particular species of fact, this or that particular instrument, document, or other species or article of evidence, is pronounced indispensably requisite. The effect is—to put an exclusion upon all other evidence, in relation to the fact in question, on the same side.

In the last preceding case, the evidence excluded was—all evidence on the opposite side. Counterparts, or companions, as it were, to each other—and not ill-matched—are these two cases.

Of this species of exclusion, the most important exemplification is that which is afforded by the rules that have taken place, respecting the evidence required in proof of the genuineness of an instrument of contract—say a deed or a will. To the examination of this particular sort of case, the next succeeding chapter has been appropriated.

6. Cases in which, to one and the same fact, witnesses, in a number greater than one, are pronounced indispensably requisite. The effect is—in relation to the fact in question, to exclude the testimony of every witness who does not bring another in his hand, giving the same account of the matter that he does.

7. Cases in which, antecedently to a man’s being admitted to deliver his testimony, it is made necessary that he should join in the performance of this or that formality, expressive of this or that particular persuasion on the subject of religion: such as the ceremony of an oath. The effect is—to put an exclusion upon the testimony of every person who will not join in such formality.

The ground of exclusion is, in this case, the man’s repugnance to mendacity: for, if he have no such repugnance, there is nothing to hinder his saying what is thus endeavoured to be put into his mouth to say. The man thus excluded is a man who, in demonstration of his repugnance to mendacity, has given a proof, beyond what any man whose testimony is admitted, can ever give.

If, for such refusal, no mode of penal compulsion be appointed, the consequence is—that, to avoid delivering any article of evidence, which it is not agreeable to him to deliver, a man has no more to do than to aggregate himself to any such oath-refusing sect.

If, for such refusal, a mode of penal compulsion be appointed and applied, here is persecution on a religious ground, and the severer the punishment which the man endures, the stronger is that repugnancy to mendacity, of which the endurance is conclusive evidence.

8. Cases where the exclusion has for its efficient cause, the rule of which the leading terms are, the words best evidence: for example, the law requires the best evidence which is to be had.

In this case, the ground or pretence of exclusion is obvious enough: fear of misdecision through deception. Not equally so the fact of the exclusion, or the nature of the evidence to which it is applied or applicable.

Question 1: What is the best evidence?—True answer: Whatever evidence we have thought fit, on the occasion in question, to admit, in preference to,—meaning thereby, when such is our phrase, to the exclusion of,—every other.

Question 2: The evidence which you thus prefer, why do you thus prefer it? Answer: Because it is the best evidence.

Even where the evidence in question may with propriety be termed the best evidence, i. e. where it is of that sort, supposing the sort determined, of which, source, shape, and everything else that is material, taken together—the probative force is greater than of any other,—from no such relative and comparative goodness can any rational cause be deduced for putting an exclusion upon any other evidence. This best evidence, suppose it encountered and shaken, or in danger of being encountered or shaken by counter evidence, or counter interrogation on the other side,—the support, whatever it may be, if any, that might be afforded by other evidence on the same side, ought it to be refused?

§ 3.

Table of grounds of Exclusion, extracted from various Codes.

Whether compared with one another, or with the ends of justice, the various circumstances which, by or under the laws of different nations, have been taken for grounds of exclusion, present a curious, nor altogether uninstructive spectacle. A dozen or so is the number of the bodies of law, from which matter of this sort having been collected, in the body of the work will be seen condensed into a synoptic table.*

Two contrasted subjects of observation will naturally be presented by it to view:—on the one hand, the universality of the practice, and, so far, of the adoption and application made of the principle; together with the amplitude of the extent to which, in the code of each nation, it has been carried:—on the other hand, the extreme diversity of the mode as expressed in the list of particular circumstances, to which in one code this effect has been given, compared with the list of them to which it has been given in the several other codes;—to which, had the sources been accessible, might have been added, in so far as the matter stood on the ground of statute law, at different periods, the diversity of the enactments; in so far as it stood upon the ground of judge-made or bookmaker-made law, the inconsistency of the authorities:—not to speak of the uncertainty, in many cases, whether it was in the character of a cause of exclusion, or only in that of a ground of suspicion, that the circumstance was considered.

As to the extent, if the several grounds of exclusion exhibited by the several codes, were put together, and made into one mass, the proscription would be found to have spread itself over the whole species, and thus not to have left so much as a single witness for the service of justice.

In some of these pictures,—for example, that which takes for its scene quondam France, and that which takes for its scene quondam Scotland,—one half of the species—the whole of the female sex, may be seen cast out at one stroke.†

From the universal reception and employment given to the exclusionary principle, an argument, not altogether destitute of plausibility, will be liable to be deduced: but to this argument in the character of sources of counter-argument, two circumstances may already have presented themselves. In the first place, the extreme diversity of the modes in which the application has been made of the principle,—the diversity real, the identity but nominal:—in the next place, the sinister interest, in which, it being in some instances best served by exclusion, in other instances by admission, the two modes of dealing, how opposite soever in themselves, would so easily find their common root.

[* ]Viz. in the original edition.

[* ]Evidence conclusive—presumption in law. To the eye of unsophisticated common sense, one and the same fact, and that the only fact of which these phrases are ever really conclusive—and of that, as often as they occur, they may well be taken for conclusive,—is the presumption, foolish or dishonest, of the man of law.

Between the principal fact and the evidentiary fact in question, can any room be found for any infirmative fact or facts? The inference is liable to prove false; the rule by which it is rendered peremptory is pregnant with deception. Can no such room be found?—the rule which makes the inference peremptory is needless: no danger is there that an inference to the effect in question will fail of being made.

Whichever be the mode of trial, viz. with or without jury, in which a conclusion is thus blindly drawn, the effect of it is to pronounce, on the subject of the individual fact in question, judgments grounded upon other individual facts that are irrelevant to it—inferences drawn from other facts, that, individually taken, have nothing to do with it.

Such is the mischief when the case in which the blind conclusion is employed is an equity-law case, an ecclesiastical-law case, or an admiralty-law case. Is it a common-law case? It is then by a jury that the question should have been tried. To the other mischiefs, add now that of taking the question of fact out of the hands in which in form and pretension it is reposed—out of the hands in which constitutional principles have reposed it,—out of those only proper hands—into improper hands,—the hands of the judge or judges. Behold in both cases, folly: in the last case, fraud and usurpation.

On a trial for a criminal offence, amongst others murder: in this and that case the law presumes malice. Of the presumption in this case, what is the plain English? That, fearing that by a jury the man would be acquitted, the determination of the judge is, that he shall be convicted.

[* ]1. Roman civil law. 2. Roman canon law. 3. French law. 4. Spanish law. 5. Portuguese law. 6. Hungarian law. 7. Austrian law. 8. Russian law. 9. Polish law. 10. Danish law. 11. Swedish law. 12. Scottish law.

As to English law, on any such enterprise as that of exhibiting in a tabular form the state of it in relation to this subject, several circumstances concurred in putting an unavoidable negative. These were—1. The great variety of the circumstances presented to view by it in this character. 2. In many instances, the extreme uncertainty whether on any future occasion they would respectively be considered as productive of this effect. 3. The multiplicity of the instances in which the exclusion was liable to be evaded; the same evidence which in one mode of procedure is excluded, being in another mode admitted.

[† ]In some cases, by accident, or by the very nature of the case, an ample stock of principal witnesses will have been afforded. In a case of this sort, with or without sufficient reason, to save time, trouble, and perplexity, the judge, it may have happened, selected some to the exclusion of the rest. Noting the general ground of the exclusion without noting the superabundance in which it had its particular cause, the reporter may, for want of the proper distinction, have set down the ground of exclusion absolutely and simply, as applying to persons of the description in question, as well when the fact had not had any other principal witnesses, as when it had had them in superabundance.