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BOOK II.: —ON THE SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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—ON THE SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY.
OBJECT OF THE PRESENT BOOK.
In the preceding Book, a survey has been taken,—on the one hand, of the standing causes,—the psychological causes, of trustworthiness in human testimony,—on the other hand, of the occasional causes of untrustworthiness; including the incitements to mendacity, the seducing motives, the sinister interests, by which the tutelary influence of the causes of veracity is liable to be counteracted and overborne.
In the planning of the system of judicial procedure, with a view to the main end of procedure, viz. the rendering of decisions conformable on all occasions to the predictions pronounced by the substantive branch of the law; the object of the legislator will be to strengthen as much as possible, the influence of the causes of trustworthiness; to weaken as much as possible, the influence of the causes of untrustworthiness—the sinister interests of all kinds; that is to say, interests, motives, of all kinds, as often as it may happen to them to be acting in this sinister line.
To exhibit a view as complete as may be, of the several arrangements of procedure, capable of being made to operate in the character of securities for trustworthiness in testimony, and thence as securities against deception from that quarter, and consequent misdecision on the part of the judge, is the business of the present book: to show, in the first place what may be done, and ought to be done, to this end; in the next place, what, in the Roman and English modifications of the technical system, has been done on this subject, in pursuit of whatsoever ends the authors have on such occasions set before them.
A mass of evidence, consisting of human testimony, brought into existence for the occasion and on the occasion, (without any mixture of real evidence, pre-appointed written evidence, or other written evidence antecedently brought into existence by other causes,) a mass of evidence of this description is about to be presented to the cognizance, and to serve as a basis for the decision, of the judge. By what means, within the power of the legislator, shall its trustworthiness be raised to a maximum? By what means shall the danger of deception on the part of the judge, and, from that or other causes, of misdecision on the ground of the evidence, be reduced to its minimum? To find an answer to these questions, is the problem the solution of which will be the object of the present book.
The mass which is the subject of our problem, is the whole mass, and every mass, to which it may happen on any occasion to be taken into consideration for the purpose of forming, by means of it, a ground for a judicial decision. It must therefore be considered in respect of every modification, of which, in judicial practice, a mass of this description is susceptible. It may be simple to the utmost degree of simplicity—complex to any degree of complexity. It may consist of the testimony of no more than a single person, and consequently on one side only—the plaintiff’s side; it may consist of the testimony of any number of persons, and that either on the plaintiff’s side, or on the defendant’s as well as the plaintiff’s—each side being again to this effect divisible into as many sides as there are parties ranged on it, with different, and actually or possibly conflicting, interests. It may consist of the testimony of an extraneous witness or witnesses only, or of a party or parties only, or of a mixture of testimonies of both descriptions. For all these diversifications, provision must be made in the system of arrangements destined to serve as securities for trustworthiness in testimony.
DANGERS TO BE GUARDED AGAINST, IN REGARD TO TESTIMONY, BY THE ARRANGEMENTS SUGGESTED IN THIS BOOK.
The proper object of the judge, according to the most general description that can be given of it, is, on every occasion to pronounce such a decision as shall be called for by the law, on the ground of the facts of the case: and, for that purpose, to form, in relation to each material fact, by means of a statement afforded by human testimony or otherwise, a conception exactly conformable to the truth; so far at least as is material to the decision which he is called upon to pronounce:—
In this endeavour he will be liable to be defeated by any of the following results.
1. If in relation to any such material fact the testimony be in any point incorrect, although such incorrectness be unaccompanied with that self-consciousness which mendacity implies.
2. If in relation to any such fact it be incorrect in the way of mendacity, as above.
3. If the collection of the facts thus presented to his conception, be in any respect incomplete.* By such incompleteness, the rendering of the decision duly adapted to the case may be as effectually prevented as by incorrectness or mendacity itself. To warrant a decision (say on the plaintiff’s side,) let proof of certain facts, in a certain number (say four,) be necessary. If three of these only be proved (say each of them by two witnesses, the testimony of each witness being correct in the extreme) and not the fourth, the plaintiff will be as effectually debarred of his right, as if there had not been a single particle of truth in the testimony of so much as one of their number.
Incorrectness, mendacity, and incompleteness—such are the imperfections from which it will be the object of the legislator to preserve, on each occasion, the evidence that, in the shape of human testimony, comes to be presented to the judge.
The idea of incorrectness being included in that of mendacity, the mention of the word incorrectness may be apt to appear superfluous.
The distinction will, however, be found to be highly material, and that to more purposes than one:—
1. In the first place, as will be seen, the list of securities is not the same in the two cases. Suppose bona fides, for example:—prompting—suggestive indication and interrogation, would in many cases be highly conducive to the correct and complete disclosure of the truth of the case; highly useful against false asseveration, false negation, and, in particular, false omission; and, comparatively speaking, free from danger: suppose mala fides, the same sort of assistance may be to be guarded against with the legislator’s utmost anxiety and diligence.
2. The other purpose regards punishment. Unaccompanied with temerity, simple incorrectness presents, it is obvious, not the least demand for punishment: accompanied with temerity, it may present a demand for punishment, viz. in some comparatively inferior degree, not rising above that which is insuperably attached to the burthen of rendering pecuniary satisfaction in case of injury: accompanied with mala fides, it rises into that serious crime, which, by a very intimate, though, as will be seen, a very unfortunate association, has, in the cases where punishment has been attached to it, been designated by the name of perjury.
So far as the failure is accompanied with bona fides, the legislator finds, by the supposition, no will acting in opposition to him; he has scarce any difficulty to contend with; the demand for securities is inconsiderable. When, on the contrary, the transgression is accompanied by, and originates in, mala fides, it originates in design, in fraud: he finds human will, perverse will, acting against him with all its might; and all the securities he can muster, with all the force it is in his power to give to them, prove but too often inadequate to his purpose.
Were it possible for the legislator, viewing each transaction from his distant station, to draw a line in each instance between the two cases, and say to himself, this man is in mala fides, but this other in bona fides, his task would still be comparatively an easy one. Unfortunately, from the distant station he occupies, no such determinate line can be drawn: of one sort of man, he may say he is most likely to be in mala fides, as in the case of an accomplice; of another sort, he is most likely to be in bona fides, as in the case of official evidence:* but, with sufficient grounds of assurance, he can never ground his arrangements exclusively either on the one supposition or on the other, in any instance. A determination of this kind must either be abandoned altogether, or (under favour of the appropriate information extractible from each individual case) intrusted to the probity and prudence of the judge.
There being no individual whatever, of whom the legislator, in his position, can be warranted in regarding himself as completely sure that his testimony will be altogether pure from mala fides—there is no individual soever, for whose case he can avoid providing—to be applied eventually at least, and sooner or later—whatever securities it is in his power to supply, for the purpose of combating those sinister motives, to the action of which human testimony can never cease to be exposed.
To the three imperfections above enumerated, must be added, for practical reasons that will be presently seen, that of indistinctness—an imperfection which, though not exactly synonymous either with incorrectness or incompleteness, may, according to circumstances, have the effect of either. In truth, one of the two effects it must be attended with, to be capable of giving birth to deception, and thence to misdecision: if it be not productive of this bad effect, the only remaining bad effects of which it is capable of being productive (and of those it is but too apt to be productive,) are reducible to the heads of vexation, expense, and delay.
To the consideration of the dangers to be guarded against by the securities in question, must be added that of the stations to be guarded against those dangers: these are, all of them, reducible to two—that of the deponent, and that of the judge.
Under the designation of deponent must here be comprised, not only extraneous witnesses, but each and every party in the cause, where it happens to him, whether at his own instance or that of an adversary, to deliver his testimony in the cause.*
The quarter from which the imperfections above mentioned are most to be apprehended, is evidently that of the witness. But as judges, as well as witnesses, are men, both of them exposed, though not altogether equally exposed, to the seduction of sinister interest, the station of the judge is not, any more than that of the witness, to be wholly overlooked in the precautionary arrangements taken on this ground. As it may be, in a certain sense: the interest, and at any rate the endeavour, of the witness, to suppress the truth, in the whole or in part, so may it be that of the judge: as it may be the endeavour of the witness to convey false impressions to the judge, so may it be that of the judge to receive, or to have a pretence for acting as if he had received, such false impressions, in preference to true ones. In a certain sense, the judge will always have an interest in receiving the evidence in an incomplete state; because the farther it is from being complete, the less his trouble. One species of sinister interest there is, the love of ease, by which, on every occasion, the judge will be prompted to receive the evidence in an incomplete state. The influence of this cause of seduction will become but too manifest as we advance.†
This interest is, on this occasion, the more dangerous, inasmuch as it is opposed with so little force by the tutelary sanctions, the political and the popular, and its agency is so little apt to betray itself to the eyes of those to whom the application of the castigatory force of these sanctions respectively appertains. The exertions a man makes in this way, to preserve himself from trouble, are oftentimes scarce perceptible even to himself. Against corruption on the part of a judge, all mankind are up in arms—all mankind are constantly upon the watch; ready to impute it upon strong grounds, upon slight grounds, and sometimes without any grounds. To precipitation, to inattention, on the part of the judge,—his suitors, his auditors, his superiors—in short, mankind in general, are comparatively inattentive.
The transgression of the deponent is as nothing, any farther than as it is productive either incidentally of vexation, expense, and delay, or ultimately of misdecision, the transgression of the judge. But of the judge’s possible sphere of transgression, that of the deponent forms no more than a part. On the part of the judge, misdecision may indeed have been produced by some transgression (occasioned either by his inattention, or by his ill-directed attention) on the part of the evidence. But it is equally possible for the judge to transgress, to misdecide, without any regard to the evidence.*
Correspondent to the nature of the several imperfections, is that of the respective remedies. To incorrectness and mendacity,—detection, and thence, if possible, correction, by the substitution of correct evidence in the place of it. To incompleteness,—detection of the incompleteness, and thence acquisition of evidence concerning the facts not brought forward by the evidence in its original incomplete state.
A remedy of a higher nature than the above—a remedy never to be lost sight of in such remedial measures, such securities for trustworthiness, as come to be employed,—is prevention in the first instance—prevention of incorrectness and mendacity, especially the latter; prevention also of incompleteness.
But the two objects—detection on the one hand, prevention on the other—these two objects, distinct as they are in a theoretical view, will, in a practical point of view, be found to coincide. Why? Because the one of them cannot be pursued but through the other; the means by which the prevention of the malpractice is aimed at, being no other than those, by the use of which, supposing the malpractice hazarded, detection, it is wished and expected, may ensue. The witness is incompassed with the fear of detection, and of the unpleasant consequences in its train—a misadventure which he sees ready to befal him, in the event of his swerving from the path of truth. The prospect of this miscarriage is before his eyes; and, by the fear which it inspires, the wish and expectation is, that his footsteps will all along be confined to that desirable path, the only one that leads, directly at least, to justice.
By the detection and correction of the above several imperfections on the part of the evidence, the danger of the correspondent failures on the part of the judge—viz. deception and non-information, and in either case misdecision, is obviated, as far as that danger has its source in the tenor of the evidence.
To the above imperfections and dangers, the remedies immediately applicable are as above. These, however, being altogether obvious—too completely so to be the objects of remark, are not the remedies, are not the securities, we are in quest of. If they are worth mentioning here, it is only in the way of memento, not of instruction, and for the purpose of keeping the line of investigation and arrangement unbroken and complete. The remedies that require research, and are of a nature to pay for it by their importance, are those remedies of a higher order that will meet us a little farther on, under the appellation of securities for trustworthiness in testimony.
Among these, so far are they from being obvious, we shall find some, and those among the most efficient, which, with a comparatively narrow exception, have hitherto remained hidden from the eyes of the most enlightened nation on the globe.
INTERNAL AND EXTERNAL SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY ENUMERATED.
Correctness and completeness may be called the primary qualities desirable in testimony. There are others, which may be called secondary qualities, and which are desirable for the sake of the primary.
To facilitate the conception and comprehension of the several secondary qualities that promise to operate, on the part of an aggregate mass of testimony, in the character of securities for its trustworthiness—that is to say, for its correctness and completeness,—it may be of use that the reader should, in the first place, be in possession of a naked list of them. From the inspection of that list, some general conception may be formed of them in the first instance: by a separate consideration of each article, that conception will be cleared and fixed as we advance.
To avoid the harsh effect which would result from the finding or making an abstract appellation correspondent to each quality, it may be necessary to discard the corresponding list of substantives, and confine ourselves to adjectives.
In relation, then, to an aggregate mass of evidence, and to each the several testimonies of which it may happen to be composed, there will be, or there may be (let us say) reason to desire that it may be as follows:—
1. Particular; as particular as possible: as special as possible, down to individuality: and besides that, circumstantial; of which distinction in its place.
2. Recollected; sufficiently recollected: the deponent, before the delivery of his testimony is concluded, having possessed and employed whatever portion of time may have been necessary to his bestowing upon it the primary qualities of correctness and completeness.
3. Unpremediated; that is, not sufficiently recollected for any such purpose as that of mendacious invention. This and the preceding quality are evidently opposite to each other, and to a certain degree incompatible. To determine how to reconcile them in so far as they may be reconcilable, and which to sacrifice in so far as they may be irreconcilable, will be amongst the nicest and most difficult problems that can be presented by the subject to the skill of the legislator.
4. Assisted by suggestions ab extrà—viz. in so far as such suggestions may be necessary to the assistance of recollection—true unfeigned recollection.
5. Unassisted by mendacity-serving suggestions ab extrà; unassisted by any such suggestions, true or false, as, in case of a disposition to mendacity, may enable the deponent to give to his mendacious statements an air of truth, so as to enable him to produce the deception he aims at producing in the mind of the judge. Another pair of opposite qualities—further demand for reconciliation as far as practicable, and, beyond that point, for sacrifices on one or both sides.
6. Interrogated: called forth by interrogation: by examination—questions—interrogatories,—and, for the sake of correctness and completeness, these questions put on all sides—put by every individual in whose person a mass of appropriate information, qualifying him for putting apt questions (i. e. questions calculated to contribute to the trustworthiness of the testimony, either in the article of correctness or in the article of completeness) is united with a degree of interest, and thence with a degree of zeal, sufficient to produce the exertion necessary to the purpose.
7. Distinct as to the expression. Of indistinct expression the consequence may be, either to cause the testimony, though correct, to produce the effect that would have been produced by testimony of a different purport, and failing in respect of correctness or completeness; or, by appearing to express something, when on a clear examination it would be found to express nothing, to preserve a witness whose discourse has been no more than equivalent to silence, from affording those indications which silence, when manifest, affords in the character of circumstantial evidence to the prejudice of the sincerity and probity of him by whom such reserve is persevered in.
8. Expressed by permanent signs; such, for example, as those of which written discourse is composed. If, destitute of the support of those permanent signs, it be limited to such evanescent signs as those of which oral discourse is composed, it will be liable to produce deception, as in case of indistinctness; unrecollected, when occasion comes for recollecting it, it will be tantamount to silence, except as to the affording of those instructive indications which silence is so frequently calculated to afford in the character of circumstantial evidence: misrecollected, it will, though originally correct, be converted into some modification or other of incorrect, erroneous, and perhaps deceptitious, evidence.
If substantives correspondent to these several adjectival expressions—abstract terms corresponding to those several concrete terms—were already in use, or capable of being put into use, they would be equivalent to those which follow; of which, some are already in use—others have been constructed for the purpose:—
2. Recollectedness; viz. to the purpose of correct and complete information.
3. Unpremeditatedness; viz. to the purpose of mendacious invention.
4. Suggestedness; viz. in so far as necessary to the purpose of correctness and completeness.
5. Unsuggestedness; viz. when not necessary to these purposes; more especially when conducive to the purpose of mendacious incorrectness, or its equivalent, intentional suppression, productive of intentional incompleteness.
6. Interrogatedness; if a conjugate of so harsh a form may, for the purpose of the moment, be endured.
7. Distinctness; viz. in point of expression.
8. Permanence; viz. in respect of the nature of the signs to which it is committed.
Such is the list of qualities that have presented themselves in the character of securities, internal securities, for trustworthiness, for correctness and completeness, in the aggregate mass of testimony. It remains to bring to view those arrangements which present themselves in the character of external securities, with reference to the same purpose: arrangements tending to secure, on the part of a mass of testimony, those desirable qualities which have been enumerated under the name of internal securities. These seem all of them referable to one or other of the following heads, viz.—
1. Punishment: (including, in case of special injury to individuals, the burthen of satisfaction in so far as it tends to operate in the character of punishment:) arrangements calculated to attach punishment, in the character of an eventual consequence, to incorrectness or incompleteness of testimony, when accompanied with blame, whether in the shape of mendacity or temerity. In case of manifest mendacity or intentional silence, on the part of defendant or plaintiff, when called upon to depose,—loss of cause, that is, loss of the advantages, or subjection to the inflictions, at stake upon the cause, may be considered as a sort of virtual punishment, growing naturally out of the offence.
2. Oath: arrangements attaching the sort of ceremony so called to the act of deposition, for the purpose of causing punishment from a supernatural source to attach upon the act, in case of mendacity; a species of misbehaviour which, on the occasion of the association so formed, receives the appellation of perjury.
3. Infamy: arrangements followed, or designed to be followed, by the effect of attaching to false testimony, through punishment or otherwise, the sort of ideal burthen characterized by a variety of denominations, such as infamy, ignominy, shame, disgrace, dishonour, disrepute: in other words, causing the punishment of the moral or popular sanction to attach upon the offence.
4. Interrogation: arrangements conferring on the different classes of persons already spoken of, those powers, the application of which to the deponent produces on his part an obligation more or less coercive and efficient in respect to the furnishing such ulterior information as the questions put in virtue of such powers, call for at his hands. To this head belongs, in the language peculiar to the English law, cross-examination, and its opposite, examination-in-chief.
5. Reception in the vivâ voce, or ready-written form, or both, according to circumstances: arrangements leaving it in the power of the judge, under such restrictions (if any) as may be needful, to receive the testimony in the one form, or in the other, or in the one after the other, according to the exigencies of each individual case: in the vivâ voce form, to save the superior expense, delay, and vexation, incident in general to the ready-written form, and to avoid giving facility to mendacious invention: in the ready-written form, when ulterior time for recollection and methodization seems requisite to the purpose of correctness and completeness, and when the expected advantage in these respects is such as promises to overbalance the delay, vexation, and expense.
6. Notation: or say recordation, registration, scription, note-taking, minute-taking, minuting down the evidence: the operation by which testimony, when delivered in the vivâ voce form, is made to receive the above-mentioned quality of permanence; and in that respect is, or may be, put upon a footing with ready-written testimony.
7. Publicity: arrangements tending to increase the number of the persons to whose cognizance the testimony, on the occasion of its issuing from the lips or the pen of the deponent, may convey itself. The virtue of this security applies itself partly to the station of the deponent, partly to the station of the judge: to that of the deponent, by leaving or throwing open the door, in case of incorrectness or incompleteness, to correction and completion by opposite or supplemental evidence: to both stations, by giving (by the same means) increased probability to eventual punishment, viz. legal punishment, and by introducing and strengthening the force of that punishment of the moral sanction, which for its application neither requires, nor is accompanied by, the forms and ceremonies of procedure.
To this head belong the arrangements indicated by the words open doors, courts of sufficient amplitude, liberty of publication, publication by authority, whether of the minuted vivâ voce testimony, or of the ready-written depositions.
To this head also belongs the opposite of publicity, privacy or secresy, in so far as any case may arise presenting a sufficient demand for arrangements directed to that end. In some cases, secresy may be subservient to correctness and completeness; viz. by withholding from a mendaciously-disposed deponent, mendacity-serving information: in other cases, whatever use it is susceptible of will be confined to the prevention of vexation—of that vexation, which, it will be seen, is liable to spring in various shapes out of the communications liable to be made by the unrestained divulgation of judicial evidence.
8. Counter-evidence: arrangements for giving admission to such evidence from whence opposition may come to be presented to the testimony in question: evidence tending to the correction of it, and thence convicting it of incorrectness, or to the filling up of the deficiencies intentionally or unintentionally left in it, and thence convicting it of incompleteness.
9. Investigation: arrangements designed or tending to promote the discovery of one article of evidence through the medium of another: the discovery of a lot of testimonial evidence, for example, of a sort fit to be lodged in the budget of ultimately employable evidence; whether the article, by means of which it is discovered, be, or be not, itself fit to be so disposed of—fit to be attended to in that character: the finding out, for example, a person who was an eye-witness of the transaction, by the examination of a person who was not himself an eye-witness of it, but heard the other speak of himself as having been so.
Arrangements competent to the process of investigation, as here described, are in every case necessary, to preserve the aggregate mass of evidence from being untrustworthy and deceptitious on the score of incompleteness.*
The list of arrangements presenting themselves as capable of being employed in the character of securities against deception and misdecision, being thus numerous and multifarious—to enable the mind to obtain a clear and comprehensive view of them, in respect of their mutual relations—to observe in what respects they severally agree, in what others they disagree, and how it is that these different means co-operate in their several spheres, and become conducive to the common end—it may not be amiss to divide them into groups:—
1. In the first group come the topics of punishment, oaths, and shame—all considered as capable of being applied for the prevention of false testimony; each of them indicative of a mass or source of evil, by the fear of which it is designed that a person exposed to the temptation of delivering false testimony shall be deterred from the act. So far as these three articles are concerned, the object of the legislator is, so to manage, as that a person exposed to the temptation of falling into that species of delinquency by which false testimony, and with it the danger of deception, is produced, may never be without an adequate motive (at least a motive bidding as fair as possible to prove adequate) for strengthening him against the temptation, in such manner as to prevent his yielding to it. The course taken by these three securities for restraining the person in question from falling into the obnoxious practice, is by operating upon his will; and that in such manner as to overcome, in a direct way, whatever inclination he might otherwise have to do those things, which in this case ought not to be done.
2. In the next group come the securities which, without applying directly to the will of the deponent, aim at doing whatsoever may without preponderant inconvenience be possible to be done, towards depriving him of the power (supposing on his part the existence of the inclination,) to give into the obnoxious practice. To this head belong the taking away the faculty of premeditation (premeditation considered as a source of falsehood,) so far as can be done without prejudice to recollection—to recollection considered as a source of truth; and the depriving him of the faculty of receiving, from without, mendacity-serving information (information considered as a source of falsehood) without prejudice to the faculty of receiving, also from without, veracity-serving information—information considered as a source of truth; that is, information for the assistance of the faculty of recollection, the only way in which information from without can in any way be contributory to that useful purpose.
3. To the third group belong those securities which operate by lending the powers of the law to the procurement of all such evidence as the case happens to afford, thereby preventing such incorrectness and incompleteness in the aggregate mass of evidence (incompleteness amounting, in some cases, to the total absence of all evidence) as might be the result of such evidence, when delivered, as happened to present itself without the assistance afforded by those powers:—1. General powers for compelling answers to interrogatories; 2. Powers for insuring the production of evidence operating as counter-evidence to what would otherwise have been delivered; 3. Powers for investigation of evidence—i. e. for obtaining the testimony of one man, by means of indications given of it by the testimony of another.
4. By itself (there being nothing either to contrast or match with it) comes publicity: an instrument of multifarious application and use: an instrument, the destination of which seems to be (like that of the grindstone and the hone) to give power and efficiency to all those other instruments; augmenting the tutelary force of punishment and shame, and extending and promoting the application of it to all the characters of the forensic drama—to parties, extraneous witnesses, and judges—care being taken not to push the application of it in such manner as, by affording mendacity-serving information to the ill-disposed, to contravene the ends of justice in one way, more than it promotes them in another; nor by preponderant vexation to outweigh the advantage produced in respect of those direct ends, by inconvenience produced in respect of the collateral ends of justice.
5. By itself, again (there being nothing either to contrast or match with it,) comes the use of writing; the application of that handmaid of all the other arts and sciences to the particular use of judicial practice, and of that branch of it in particular which concerns testimony: a security to which publicity itself is indebted for the greatest part of its existence, and all those other securities (including testimony itself) for their permanence.
For the exhibition of these arrangements, no novelty will be produced—no force of invention will be employed. I do but copy: the pattern, approved by the experience and applause of ages, is furnished by established practice: what features of novelty may be found, will be confined to the exhibition of the use and reason of each arrangement, and to the claim made to the tribunal of common sense and common honesty for the steady and constant use and employment of those instruments of truth and justice, the existence of which is indisputed and indisputable.
Yes, so it is: it is from the established order of things, and from that alone, that the above list of securities for testimonial trustworthiness is deduced: but, if the virtue of them were turned to the account to which it might and ought to be turned, the changes that would be made in the established order of things would not be inconsiderable.
In the estimation of the propriety and utility of these several securities,—the main end, rectitude of decision, with the more particular ends on this occasion subordinate to it,—viz. prevention of incorrectness, mendacity, incompleteness, and consequent deception, as above—will not be the only objects to be kept in view. The collateral end—the avoidance of collateral inconvenience, in its triple shape of vexation, expense, and delay, ought never to be out of sight.
The uses pointed out as resulting from the several proposed securities—the uses employed in the capacity of reasons to justify the recommendation given of them—will be drawn partly from one of these sources, partly from the other.
At the tail of the group of expedients, in and by which it is altogether proper, and more or less customary, for the legislator to take an active part in the service of truth and justice, seems to be a proper place for putting him upon his guard against the expedient, of which in the same view so abundant, and in every instance so unhappy, a use has been made; viz. the exclusion of proffered testimony—not on the ground of its irrelevancy, of its uselessness in that character, of its worse than uselessness in respect of the expense, vexation, and delay with which the delivery and receipt of it would be attended,—but on account of the danger of its becoming productive of deception, and thence of misdecision, on the part of the judge; a vain, but unhappily too prevalent terror, of the vanity of which proof will require to be given in its place.
ON THE INTERNAL SECURITIES FOR TRUSTWORTHINESS IN TESTIMONY.
1. First internal security, particularity of the statement.
In this respect, we may conceive the statement as resting altogether in generals, or as descending lower and lower in the region of particulars, till at last everything is in such a degree particular as to become individualized: persons, things, portions of space, and portions of time.
The more particular it is,—the more instructive, the more satisfactory, the more trustworthy. Why? The reason is very simple. The more completely it thus descends into particulars, the more matters of fact it contains and exhibits, in respect of each of which, supposing it to vary from the truth, its variation is liable to be disproved, and the witness convicted of mendacity, or error at least, by other evidence. Every step it takes in the region of particulars, whether downwards in the Porphyrian scale, or sideways all round in the field of circumstances, affords an additional security. The degree of particularity proper to be insisted on in each case cannot be indicated by any description applicable to all cases. But, in jurisprudential practice, examples are not wanting of a degree of generality so vague, that, to a judgment unblinded by prejudice, it will be manifest at first glance, that scarce any the slightest degree of trustworthiness can reasonably be attached to it. Yet, in these very instances, the testimony has not only been received, but treated as conclusive.*
Hence one cause of the comparative untrustworthiness of purely spontaneous testimony. Why? Because, by the supposition, there being no room for interrogation, the degree of particularity rests altogether at the deponent’s choice. In the function and right of putting questions, is included the right of commanding the deponent to descend to any degree of particularization, of which, with or without any deceptious design on his part, he may have stopped short.
Give to any person—for example, to the judge—this scrutinizing power,—the testimony, supposing it to abide this test, possesses a degree of trustworthiness which otherwise could not have belonged to it.
Under the head of particularity, two qualities may be included:—speciality, or rather individuality—and circumstantiality: qualities, which, how intimately soever connected, will be found distinct in their nature, and in some respects in their application to the purpose now in hand.
For the purpose of forming a ground for decision, so long as the fact is in other respects exposed to doubt, a relation is never particular enough, unless the fact be individualized, that is, fixed and circumscribed in respect of time and place.
Titius has killed a man: a relation to this effect is as yet no evidence; though repeated by a hundred deponents, each declaring himself an eye-witness, this would not as yet be ground sufficient for a decision pronouncing Titius convicted of homicide. Titius has killed an Englishman or a Frenchman, an old man or a young man, a tall man or a short man: by no such specification would the deficiency in the former relation be sufficiently supplied. Titius has killed Sempronius: this is nearer the mark, but neither is this sufficient. At what time was the act committed? In what year, month, day, hour?—in what place?—in what province, township, road, field, garden, house, room in the house? It is not till all these points have been fixed, that the fact has been individualized: and till the fact has been thus individualized, the evidence is scarce as yet brought to the level of direct evidence; it hangs still in the air, in the character of circumstantial evidence.
“Quis? quid? ubi? quibus auxiliis? cur? quomodo? quando?” says a verse, useful for memory, and to be found in the institutional books of ethics.
By the ubi and the quando, place and time are designated; and by the answers to those questions, if sufficiently particular for the purpose, the fact is individualized.
As to the other questions, so far as they go,—by the answers to them, the fact, besides being individualized, is circumstantialized, circumstantiated.
So many circumstances, so many criteria by which, supposing the testimony false in any point, the falsity of it may be indicated and detected. Hence, the more circumstantiated the testimony, the greater the security it affords against deception and consequent misdecision, on the part of the judge.
Between speciality and circumstantiality there is this difference: Circumstances which contribute to the giving speciality, down to individuality, to the statement, will all of them be found relevant to the purpose or object to which the testimony is directed—to the substantiating the demand, or the defence—to the showing that the individual fact in question belongs to the species of fact to which the law has intended to annex such and such consequences. They belong, accordingly, to the list of those circumstances, which, in so far as they happen to be present to his recollection, it is proper that he should bring to view in the first instance.
To the head of circumstantiality, considered as distinct from speciality and individuality, belong all those circumstances which, without being relevant to the purpose in question, may yet serve as tests or criteria of the correctness of the deposition—of the veracity and attention of the deponent.
Being, with respect to the purpose in question, irrelevant, they will not come with propriety from the deponent in the first instance. But if (as by interrogation) it be required of him to give to his statement the additional extent in question, an extent that shall embrace the circumstance or circumstances indicated to him for that purpose,—in that view it is, that, the question being relevant, the answer will be so too, and both question and answer proper and instructive.
Take, for example, the case of Susanna and the two Elders. To the head of speciality, down to individuality, belonged the several circumstances which these false accusers thought it advisable to bring to view of their own accord, for the purpose of producing in the mind of the judge a persuasion of the delinquency of the intended victim of their malice.
But, by way of test of their veracity, the ingenuity of her advocate suggested, and called upon each of them to speak to, a topic in itself irrelevant. Affirming that it was under a tree that the fact was committed, and that in the supposed scene of the transaction trees of different sorts were included,—of what sort was that tree? The witnesses being examined out of the hearing of each other, each out of the way of receiving mendacity-serving information from the other,—one pitched upon a tree of one sort, the other upon a tree of a different sort; and, by this mutual contradiction, the falsity of their statement was detected.
Whether under a tree, or not under a tree,—and if under a tree, under what sort of tree,—were circumstances, the irrelevance of which, with relation to the guilt of the supposed transaction, was altogether manifest; but, from the contradiction thus produced, these irrelevant circumstances acquired a sort of accidental relevancy; and the purpose for which they were brought to view was accomplished.
2 and 3. Recollectedness and unpremeditatedness.
These qualities are, as logicians say, simul naturâ: and primâ facie directly opposite, and mutually exclusive of one another.
Recollectedness to every good purpose, unpremeditatedness to every bad purpose: recollectedness to the purpose of a man’s searching into the storehouse of his memory, and spreading out before the judge the articles it contains: unpremeditatedness to the purpose of a man’s setting his judgment and invention to work upon these same articles, in the view of suppressing, disguising, or altering, any of the facts his memory has furnished him with, or delivering false facts in lieu of them, or along with them. Even in this closer view, the two qualities still present themselves as mutually exclusive and incompatible. For, if recollection be necessary, time must be allowed for it: and unless it be by the allowance of suggestion (of which presently,) it is only by the allowance of time that any assistance, tending to put the testimony in question in possession of this quality, can be afforded by the legislator. But if time be allowed for this honest and desirable purpose, what shall hinder its being employed for the opposite dishonest and undesirable one?
Notwithstanding these unfavourable appearances, a still closer view will show it not to be altogether out of the reach of the ingenuity of the legislator to afford the necessary assistance to the desirable result, and at the same time to throw no inconsiderable obstruction in the way of the undesirable one.
No man but must have felt—no man but feels every day of his life, the necessity of recollection for his own use,—the necessity of recollection, and thence of time to be applied to that purpose: for his own use, and therefore when the existence of any desire to deceive is impossible.
As to the quantity of time that may by possibility be necessary to this purpose,—necessary to a man in the character of a deponent,—there is scarce any assignable limit to it. Does Titius owe anything, and what, to Sempronius? To enable the deponent to find an answer, and that with truth and full assurance, perhaps not a second of time may be necessary—perhaps a number of weeks, or months, not to say years. Titius and Sempronius are both merchants, dealing to all parts of the world: the accounts between them are long and complicated:—or, Titius is an executor, his testator a man possessed of large property in a variety of shapes, burthened with a variety of debts; among assets and among debts, a number of articles depending upon so many diversified contingencies.
Nor is the demand for recollection terminated in every instance by the moment which completes the delivery of the testimony:—forgetfulness or mis-recollection is but too frequent, when it is for a man’s own use that he makes his search, and when, as before observed, the existence of any desire to deceive is impossible. But if the testimony brought out in the first instance has been in any material respect incorrect or incomplete, there remains a demand for ulterior recollection on the part of the same deponent: recollection, if possible, of new facts, for the correction or completion of the mass delivered in the first instance.
It is for this contingency that we shall see provision made by design, though with a hand not always equal, and sometimes rather scanty under the names of repetition and recolement, by the Roman law: as also (though without a name, because without design, and consequently in some instances with great redundance, in other instances not at all,) by English law.
4 and 5. Suggestedness and unsuggestedness: the quality of having been assisted by suggestions to every good purpose, and the quality of not having received any such suggestions to any bad purpose.
Between this pair of antagonizing qualities and the former, there is manifestly a very intimate connexion. And here again recurs the mystery, by what contrivance the good purpose can be promoted without the bad—the bad obstructed without the good.
The same experience—the same constant and universal experience, which evinces to every man the need he may have of whatever information can be derived from his own memory, evinces to him also the need he may have of whatever assistance can be derived to his memory from the memory of others: and that, too, where the existence of any desire to deceive, or to be deceived, is alike impossible.
On this ground, as on the former, first appearances are apt to be fallacious; shutting out a hope which a closer scrutiny will show not to be an unreasonable one. To suggestions from without, what possible obstruction can ever be thrown, it may be asked, by any obstacle which it lies within the power of the legislator to apply?
When a man delivers false testimony, what there is of falsification in it may be either of his own invention, or of the invention of some one else—either home-made or imported.
Made at home or abroad, the inventor of it must have had a stock, a ground, composed of true facts, to work upon.
To the true man, knowledge of facts—of any other facts than what are presented to him by his own memory, is of no use. Why? Because all true facts are consistent with each other: his facts being true, they cannot receive contradiction from any other facts that are so likewise.
To the mendacious deponent, on the contrary, knowledge of other connected facts is indispensable: his stock of this sort of information cannot be too extensive for his security against detection; it can never, indeed, be sufficiently extensive: because every true fact that has any discoverable bearing upon the case, presents a rock upon which, if unseen, his false facts, one or more of them, are liable to split.
So they be but relevant, true and false information may be alike subservient to the purpose of the mendacious deponent: or rather, on the single condition of being relevant, truth cannot but be of use to him; whereas, the use he can make of suggested falsehood will depend, not only upon its being well adapted to his mendacious purpose, but also upon its being better adapted than any which his own invention could, on that same occasion, have supplied him with.
Upon this view, the importance of the quality of unsuggestedness appears already in its true light: at the same time, the difficulty of promoting it by any arrangements within the power of the legislator, presents itself as yet in a false, and, happily, an exaggerated light. What are the problems that seem to present themselves to him for a solution? Required, on the present occasion, to exclude a man from all intercourse with his fellow men,—on the former occasion, to deliver him from all access to his own thoughts, from all communication with himself.
Thus much indeed is true, that in every instance there exists a point of time, down to which recollectedness and suggestedness are qualities of which no man’s testimony can be deprived, unpremeditatedness and unsuggestedness, qualities which no ingenuity on the part of the legislator can endow it with. Equally true it is, that from and after that point of time, no inconsiderable degree of security is actually produced (not to speak of what may be produced) by arrangements lying within the power of the legislator and the judge. What will also be seen is, that from the commencement of this period there is no such absolute incompatibility as hitherto there has appeared to be, between the antagonizing qualities compared with one another—between recollectedness and unpremeditatedness—between suggestedness and unsuggestedness: no such incompatibility but that a sufficient portion of time to a good purpose—time applicable to the purpose of recollection, and opportunity sufficient for receiving information assistant to that same purpose, may be allowed to a deponent; while the time and information capable of being employed in the fabrication, or receipt and adoption, of false and mendacious testimony, may in no inconsiderable degree be kept out of his reach. But the designation of this critical point of time, as well as the delineation of the requisite system of arrangements commencing at that same date, will be more clearly apprehended, when, under the head of external securities, we come to speak of interrogation.
6. Interrogatedness.—A mass of testimony, extracted from a man by the process of interrogation, will almost always be more or less different, in substance as well as in form, from the testimony of the same man on the same occasion, if spontaneously delivered, without the assistance or controul of any such operation. To the external security created by that process, corresponds, therefore, an internal security, afforded by the texture which, under the influence of that operation, the testimony itself has been made to assume. Nor is the case materially different, where, a mass of testimony having been delivered in the first instance without the aid of interrogation, the extractive force of that process is afterwards employed in adding to the original a supplemental mass.
It is by interrogation, and not without interrogation, that testimony too general for use is brought down to individuality, and clothed with instructive circumstances: it is by interrogation, and not without interrogation, that indistinct testimony is rendered distinct—cleared from the clouds in which it has involved itself, or been involved.
It is by interrogation, aptly and honestly applied, though not exclusively by interrogation, that testimony is assisted by information, subservient to it in respect of correctness and completeness. It is by the skilful application of this instrument, that a mass of testimony, while left in possession of that degree of recollectedness which is necessary to correctness and completeness, is deprived of the quality of premeditatedness in a state of things in which the time demanded on pretence of recollection might be but too apt to be employed to the purpose of fraud.
7. Distinctness.—Distinctness, like health, is a negative quality in the garb of a positive one. Health, in the natural body, is the absence of disease: distinctness, in a body of evidence, is the absence of a most pernicious disease called indistinctness—a disease for which, as will be seen under the natural system of procedure in its original simplicity, there is no place—a disease which owes its birth in most cases to the implanting hand of the regular-bred practitioner. Even when not planted by art, the seeds of it are attached, as it were, to the nature of written evidence: in vivâ voce evidence, if for a moment it makes its appearance, interrogation, if admitted, drives it out the next.
An article of testimony, so long as it is indistinct, may be neither general nor particular, and neither true nor false. Until subjected to that process, by which it may be ascertained whether the confusion in it be the result of honest weakness or of dishonest artifice, no indications, no decision, can be justly grounded on it. It is worse than false evidence—it is worse than no evidence: for from falsehood, when seen to be such, as well as from silence, indications highly instructive may be, and are, every day deduced: but from indistinct testimony, till it be understood to be tantamount to silence, nothing can be deduced.
8. Permanence. So great, as must be obvious to everybody, is the importance of this quality, that, till the means, the only means of producing it, came into use, justice must everywhere have stood, or rather floated, upon a basis comparatively unstable.
Purport depends upon tenor—effect and substance, upon words: and if the words are forgotten, or doubtful, or in dispute, on what sort of foundation is it that the decision has to ground itself? Everything may come to depend on the question whether this word or that word—whether this word has or has not—been employed: and when the decision on this question rests on the memory of one man, opposed by the memory, or pretended memory, of another, justice is thus left to be the sport of fortune.
For the effects of all kinds produced by it at the first moment after its utterance, a mass of testimony depends upon itself; but at every moment after the first (one may almost say without exaggeration) it depends upon its having, or not having, received the quality of permanence;—in a word, on its having, or not having, been clothed in the form of written discourse. Divest it of this security, it becomes each moment more and more liable to be changed or lost; having been correct—to become incorrect, having been complete—to become incomplete: for, the instrument whereby the effect is produced upon the mind of the judge, and of all other persons taking upon themselves at any subsequent period to contemplate it in the point of view in which it is contemplated by the judge, is—not the testimony itself, but that picture of it only which is present to the conception of him by whom it is so contemplated. So that, by the want of this one security, whatever care has, with whatever success, been taken to endow the testimony with those other qualities, may be lost.
Nor is it merely by its existence that this quality is productive of the desirable effects in respect of correctness and completeness: even upon the mind of the deponent, at the very instant of giving utterance to his testimony, the assurance that nothing of it will be misrepresented or lost, will, by the force it gives to the truth-ensuring motives (whatever they may be,) to the action of which he is exposed, operate with no inconsiderable force as a security for the attention requisite on his part to invest it with those primarily essential qualities.
Such is its importance in the case of a bonâ fide deponent: for even in the case of a bonâ fide deponent (especially if, being without interest of any kind, he be completely indifferent to the issue of the cause) a certain degree of attention on his part will be necessary to his bestowing upon his testimony whatever degree of correctness and completeness it happens to be in his power to bestow upon it.
But to the supposition of bona fides and complete indifference, substitute that of mendacity, or even bias. In what case now lies the chance for correctness and completeness? It is not merely that there may be a deficiency in the force of the motives necessary to secure the measure of attention necessary to these qualities; but the motives by which the bias, or determination of mendacity, has been produced, act in a manner without check. The punishment or the shame a man may be exposed to by the falsehood of his testimony,—every security of this sort depends upon the words of it, upon the recollection which somebody has, or pretends to have, of them; and the words of it are liable at all times to be mis-recollected, or forgotten.
Before writing came into use,—in order to give the best hold that could be given upon the memory,—laws, moral sayings, and whatever other discourses were judged most worthy of remembrance, were clothed in rhyme or measure. But even among Italian improvisatores, where is the man who, along with correctness and completeness, could give measure and rhyme to testimony?
Strictly speaking, it is only in respect of its influence on the mass of testimony in question—on the correctness and completeness of it, that the consideration of the quality of permanence belongs to the present head. But the correctness and completeness—the trustworthiness, of testimony itself, is no otherwise of importance than in the character of a security against misdecision on the part of the judge. Suppose, then, the testimony vanished, or the purport of it a subject of doubt and dispute,—and, from any cause whatsoever, a disposition to misdecision, wilful or temerarious, on the part of the judge,—in what condition is the only check that can be opposed to it?
Independently of desert,—power and authority never fail to invest with a prodigious body of factitious credit the assertions, direct or implied, of every man who speaks from so commanding a station as the seat of judicature. Be the reclamations of the losing party ever so well founded, what degree of credence can they hope to find, when this security is wanting against the testimony—the implied testimony, of the judge?
In this state of things, when, either from the mendacity of a deponent, or from the unrighteousness of the judge, a suitor has received an injury, on what basis stands his chance for redress?
Nor are the benefits that depend upon the permanence of testimony confined to the station of the suitor. If in this imperfect quality the unrighteous judge finds a necessary check, the righteous judge finds in the same quality a most desirable protection. On the testimony, as really delivered, he pronounces a decision aptly deduced from that testimony. But, from the clamour of rash or mendacious tongues, the testimony, or the extra-judicial accounts thus given of it, being misrepresented and mutilated, he finds himself covered with the obloquy and disrepute due only to wilful misdecision and injustice.
Take away this security, and mark the contrast, the deplorable contrast, which is liable to be exhibited by the fates of the unrighteous and the righteous judge. The former reaps insecurity, the fruit of his unrighteousness: the latter, the righteous judge, suffers under the affliction which ought to have fallen upon the unrighteous one.
When justice was left to totter upon this fluctuating basis in the case of original judicature, what must have been its condition in the case of judicature upon appeal?
1. On the occasion of this fresh inquiry, if the evidence be collected de novo, every day, by helping to rub out the impression left upon the memory of the deponent, will lessen the probability of correctness and completeness in the testimony.
Every day, while it thus lessens the assurance for trustworthiness on the part of the testimony of the deponent, will lessen in the same proportion the security for probity, and on that ground the security against wilful misdecision, on the part of the judge.
If no part of the original mass of testimony but what is thus delivered de novo, be admitted, every day adds to the chance of deperition, by death, absentation, or latency, designed or casual, on the part of the deponents of whose testimony it was composed.
The expense and vexation attached to this second exhibition, is, moreover, so much added to the account of collsteral inconvenience.
2. If the same witnesses be not thus heard over again, there remains no other alternative but that of hearing an account of the supposed substance of their testimony from some person who has been, or pretends to have been, present at the time of its being delivered.
But, in this way, all the above-mentioned probabilities of incorrectness and incompleteness receive an indefinite increase: the whole mass of direct evidence is transformed and degraded into hearsay evidence.
Of the importance of publicity, a view will come to be taken in its place: but in how great a degree that external security will, for its possible extent and magnitude, be dependent on the permanence of the signs to which the testimony is committed, is obvious to every eye.
When the testimony was destitute of the quality of permanence, how precarious at best must have been the chance for justice, is but too apparent. But a circumstance not altogether so evident, nor yet unworthy of regard, is, in how great a degree this chance, such as it was, must have depended upon promptitude: understanding by promptitude, the shortness of the interval between the time of receiving the testimony, and the time of pronouncing the decision grounded on it.
Give permanence to the evidence,—delay no longer adds, to its own appropriate and certain mischiefs, the danger of being productive of misdecision and ultimate injustice. A body of evidence hastily delivered, must be followed in every instance by a decision hastily pronounced: lest the traces left upon the memory of the judge be obliterated or distorted, the decision must be pronounced at a period before the time necessary for due reflection has been completed, and before the tumult that may have been raised in his passions has had time to subside.
Many are the instances in which it happens that a mass of evidence, delivered or extracted on the occasion or for the purpose of one suit, may be applied with advantage to the just decision, or (what is much better) to the prevention, of another. But in how great a degree its use in this respect depends upon the permanence or impermanence of its form, is obvious at first sight. Give it but permanence—commit it but to writing,—the same mass of evidence may be applied to the decision or prevention of any number of suits, and this without any considerable addition to vexation or expense; whereas, without this instrument of economy, the quantity of each inconvenience would be to be multiplied by the number of such suits.
OF PUNISHMENT, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
Species of falsehood—Necessity of substituting the word Mendacity for Perjury.
At the head of the fictitious securities for the trustworthiness of testimony, punishment—punishment by appointment of law—must stand without dispute: it is indispensable for the purpose of securing the preponderance of the tutelary over the seductive motives. After this security, a number of others will be brought to view: but a property common to almost all of them, is, the assuming the existence of this primary security: they will be found to consist principally of so many expedients, having for their object the application of this indispensable security to the best advantage.
Falsehood, as already intimated, may be either free from blame, or accompenied with blame. When free from blame, it is rendered so by circumstances (such as invincible ignorance), the effect of which is to preclude the possibility of employing punishment to any advantage.
When accompanied with blame, it is, in the mind of the individual, either accompanied or not with the consciousness of its own existence. If accompanied with that criminal consciousness, it then comes under the denomination of mendacity.
If not accompanied with the cousciousness which renders it thus criminal, and yet accompanied with blame,—it is because, though a man had no complete persuasion—possibly not so much as that faint commencement of persuasion called suspicion—that what he was saying was false, yet had he bestowed on the subject that attention which on legal or moral grounds was due, the falsity of such his testimony would have been perceived by him, or at least suspected: in which case, if, without making known such his suspicion, he had delivered such statement notwithstanding, it would thereby have been accompanied and tainted by mendacity. Falsehood thus accompanied with blame, but with an inferior degree of blame, may be termed falsehood through or with temerity. And thus we fall in with a known and most useful distinction of Roman law.*
In a former Book, occasion presnted itself for observing how close the connexion—how frequently undistinguishable the boundary, between the functions of sense and that of the judgment—between perception (with its consequent recollection) and inference.† In another Book, manifold occasion, in like manner, will present itself, for observing the same sort of connexion between direct and circumstantial evidence. Where a man speaks from simple perception, without the necessity of having recourse to inference, the testimony he gives is purely direct evidence: in so far as what he says is grounded on inference, though it be on inference drawn from his own perceptions—grounded on inference, and seen by others to be so,—his testimony, with whatever propriety it may be ranked under the head of direct evidence, cannot but be seen to involve in it a proportionable mass of circumstantial evidence.
On the other hand, intimate as this connexion is between perception and inference in some cases, in others it may be remote, to every imaginable degree of remoteness: and instances may be found in abundance in which it will be universally recognised, that from the erroneousness of the inference, howsoever ascertained, no such imputation as that of mendacity (in other words, of a thorough consciousness, on the part of the witness, of the non-existence of the fact, the existence of which is represented by his testimony as having been inferred by him) can justly attach.
After this explanation, and subject to the limitations brought to view by it, the following propositions will be found to be true, with a degree of correctness sufficient to enable them to be employed to good account in practice:—
1. In a case which is clearly that of mendacity, the testimony consists of pretended recollections of pretended perceptions which never did take place.
2. Of falsehood through temerity, one case is that where,—from a recollection of certain facts (call them evidentiary facts) actually made known to the witness by perception, by the evidence of his senses,—he avers the existence of other facts, (call them principal facts)—grounding his persuasion of the existence of these principal facts, on inferences of his own, drawn from these evidentiary facts; which principal facts, and consequently the inference on which his persuasion of their existence was grounded, prove to be untrue.
3. Another case of falsehood through temerity is that, where the persuasion entertained or professed to be entertained by the witness is grounded, or purports or professes to be grounded, on the relation of some other person or persons; which relation turns out not to be true.*
Observe, that,—though inference, the work of the judgment, is the proper field for temerity—the sort of operation in which the representation of falsehood is most apt to have been the result of mere temerity (i. e. of insufficient attention,) and to have stood altogether clear of mendacity,—yet neither is this case less susceptible of mendacity than the first. From the fact of my having seen Titius aim a blow at Sempronius, of whose death he stands accused, I may have deposed to the fact of Sempronius’s having received the blow (representing the matter as if, in my judgment, consideration being had of their relative positions, it was impossible that the hand of Titius, moving in the direction in which I saw it move, should have failed of lighting upon Sempronius:) whereas in fact I was in my own judgment persuaded that the blow did not take effect; no such inference being really drawn by me, as must have been, had it really been my persuasion that the blow took place.
Again, from the fact of my having heard Sempronius say that he was so struck by Titius, I may have alleged the existence of a persuasion on my part of his having been so struck: whereas in truth it may have been, either that Sempronius never told me any such thing; or that, though he told me so, I did not believe him, but on the contrary in my own mind was fully persuaded that what he so said to me was false: as if, for the purpose of giving a colour of truth to a knowingly and wilfully false deposition on my part, I had myself suggested to him the felling me a false story, invented by myself for that very purpose.
In a word, two sorts of occurrences there are, of which by personal experience no man living but must have been abundantly conscious: one is, the having believed, on the ground of an inference from other facts, the existence of a fact, which, without any imputation upon his attentiveness, or even his sagacity, turned out not to be true: the other is, the having believed, also on the ground of inference, a fact which turned out not to be true, and to which, had he applied his attention with the utmost degree of closeness with which on some occasions it has been applied, he would not have given credence. Supposing him to have deposed according to such his belief, the first is a case of falsehood in the way of simple incorrectness, without temerity; the other is a case of falsehood accompanied with temerity.†
In the sketch about to be given of the arrangements made by existing institutions in relation to judicial falsehood and its three modifications as above distinguished, there is one circumstance, which if it were not noticed at the outset, would be apt to encounter and embarrass us at every turn.
This is the non-employment of any such word as mendacity on these occasions, and the practice of substituting to it, where anything at all is substituted to it, the word perjury.
One operation there is, and that an indispensable one, by which mendacity is converted into perjury: and that is, the previous connexion established between the act of giving testimony, and the ceremony of an oath.
What is evident enough as soon as noticed is, that between this ceremony (how great soever may be its use) and the mischief of the act, the act of mendacious testimony, which it is employed to prevent, there is not the smallest natural connexion. The mischief exists, exists in all its force, independently of the oath; and it is with the view of helping to prevent that mischief, that the ceremony is employed.
To the applying of legal punishment (and that in a lot as well assorted to the species of delinquency in question as the lots of punishment are that are applied to the respective species of delinquency in other cases,) the previous performance of this ceremony, how beneficial soever it may be, is by no means necessary. To the punishing of Testis for a false and mendacious deposition of his, the consequence of which has been loss of life to Insons, it is (setting aside institution and custom) no more necessary that Testis should have taken an oath not to put his testimony purposely in a false shape, than, for punishing him in the case of his producing the same disastrous effect by his own hand, it was necessary to have made him take an oath promissing to abstain from employing that other member in the commission of the same crime.
Yet so it is, that, with a very few exceptions, in the practice of nations, judicial mendacity—mendacity on a judicial occasion or for a judicial purpose, is scarce ever punished, but in the case where, by means of this collateral and casual additament, it has been previously converted into perjury.
The consequences of this state of things have been, in no small degree, and in no small variety of ways, prejudicial to the interests of truth and justice.
1. All the mischief, all the guilt, all the demand for punishment really attached to mendacity, having thus been transferred in idea to the case in which, by positive institution, it may happen to have been converted into perjury,—the demand for punishment and for infamy (the punishment of the popular sanction) having thus been transferred from the right ground to a wrong one,—the consequence has been, that, where there has been no perjury (that is, where there has been no oath) there has been—in the conception of the bulk of mankind, and even of their rulers—comparatively speaking, no harm done,—no harm, at least, of such sort and degree as to create any demand for punishment.
First inconvenience from the misnomer,—punishment for mendacity, and, in that respect, security for veracity not co-extensive with the demand.
The mischief would not have been so great, if, on every occasion on which mendacity of this description were capable of being committed, care were taken to convert it into perjury. But there exists as yet perhaps no country, in which such care has actually been taken. To take it, would have required, in every country, on the part of the sovereign and his assistants, a commanding view of the ends of justice, and of the means most suitable to their accomplishment.
2. Of the thus resting, in this case, the demand for punishment upon a wrong ground, another evil consequence has been, the applying to it a wrong measure. The ceremony necessary to the commission of perjury being in all cases the same ceremony, the profanation of it by the utterance of the falsehood which it had been employed to prevent, has been regarded in every instance as one and the same sort of offence; whereas the real mischievousness of it, the real demand for punishment on all scores taken together, varies in effect from almost the top to almost the bottom of the scale.
Second inconvenience,—quantum of punishment not proportioned to the demand.
3. A third bad consequence is, that in several instances, where the legislator has not forgotten to make such provision for the punishment of mendacity as was to be made for it by that collateral and imperfect operation, his provision has been rendered ineffectual by an unlooked-for circumstance. To the punishment of a man in the character of a witness as for perjury, it is necessary that he should have performed his part in the ceremony of an oath. But the ceremony being understood to be a religious ceremony, sects of religionists have started up, who, actuated by religious motives, have refused to bear their parts in this ceremony. What was to be done? To render these sectaries punishable without the ceremony, as they would have been in consequence of the ceremony, would have been to depart from custom, the ordinary substitute to reason to attempt to force them into the ceremony, would have been persecution, and, in that respect, against custom, and against reason too. What, then, was the result? To sit still and do nothing; to deprive the public of the benefit of their testimony; to put them, and those in their company, out of the protection of the law; to leave open in so far the door of impunity to all injustice and all crimes.
Third inconvenience,—exclusion of the testimony of all who are unwilling to go through the ceremony of an oath.
Besides the mischief to the public, from this same source results no small degree of embarrassment to the writer, who, by the view of that mischief, is excited to apply his industry to the correction of it. Speak of it as flowing from the perjury,—the impression you convey is erroneous and deceptious: you must therefore either discard the word altogether, or give warning of the error every time the word comes to be employed. This appellation, therefore, this improper and deceitful appellation, must at any rate be discarded: another appellation, mendacity, the only appellation by which it is possible to avoid deception and confusion, must be employed in the room of it. At the same time, the appellation thus unavoidably discarded, is the one, and the only one, which the public is at all in the habit of seeing employed: it is the one which they will be upon the look-out for at every turn; and not finding it, every thing they meet with on the subject will be apt to seem defective and irrelevant.
Moreover, the appellation which they find instead, is one which they are altogether out of the habit of seeing employed to this purpose: they will misconceive, they will undervalue, the force of it; they will wonder, and fancy they see error and injustice, when they see the guilt and punishment of perjury ascribed to a species of misbehaviour, which to their eyes may present itself as no more than a naughty schoolboy’s trick, a venial peccadillo: while, on the other hand, when, to express the misconduct of men in power, as well as of men subject to power, they observe no other appellation employed than one, which in their experience has never been employed to characterize any species of misconduct so high in the scale as even the lowest punishable offence, they will be apt to slight, as scarce worth regarding, what with due attention would be found to be a national disgrace, and a mischievous and most crying grievance.
To give warning, then, once for all,—let the following indisputable, howsoever unwelcome truths, never be out of mind with the reader of these pages. By mendacity, as often as the word presents itself to his view, let him understand that species of misbehaviour, which, if the legislator had done his duty, would have been to be characterized by the word perjury: and in so far as, by the design or negligence of any special person, the practice of mendacity in law proceedings has, for want of such restraint, been left in possession of the profit aimed at by it,—the guilt of such person wants nothing of subornation of perjury, but the punishment and the name.
Rules for the application of punishment to testimonial falsehood.
Rule 1. Punishment, employed as a check to falsehood, should attach throughout upon temerity, as well as upon mendacity: diminishing only in degree, in proportion to the diminution of the demand, produced by the difference between the two cases.
Reason 1. Wherever, in the case of mendacity, mischief is among the consequences of falsehood, so is it in that of temerity. In degree, indeed, it is throughout inferior in this latter case:* but such inferiority is a reason, not for withholding punishment altogether, but only for reducing it in degree.
The distinction between criminative consciousness, temerity, and delinquency clear of both those aggravating accompaniments, is a distinction that runs through the whole system of offences. In every instance, the mischievous consequences of the delinquency, and in particular the mischief of the second order—the danger and alarm* —are either constituted or increased by temerity, in how much less soever a degree than by criminal consciousness. But by falsehood, in one way or other, may be produced, as will presently be shown, mischief in all sorts of shapes—the mischiefs respectively producible by all sorts of offences.
Reason 2. If temerity be not taken as a distinct ground for punishment, distinct from that of mendacity (the only species of falsehood convertible into perjury,)—in that case, in every instance of falsehood accompanied with temerity, but not with that complete self-consciousness which is necessary to denominate it mendacity, the consequence is, either absolute impunity, or punishment as for mendacity; that is, if converted into perjury, as for perjury; and thence punishment in excess.
It has already been remarked, that one of the most common cases of temerity is that in which incorrect inferences are drawn from real perceptions—in which, from one fact which did happen, the existence of another fact which did not happen, is inferred.
As the closeness of connexion, real and apparent, between fact and fact, is susceptible of variation ad infinitum, so is the degree of the temerity imputable to a man, in the case where, the first being true and the others not, he has notwithstanding asserted the existence of the second, inferring the existence of it from that of the first. The more palpably remote the connexion is in the eyes of those to whom it belongs to judge, the less in that case will they be disposed to look upon the pretended error as sincere, to regard the false representation as having had temerity and not mendacity for its accompaniment. But suppose the temerity, the culpable want of attention, to have risen to such a pitch as in its effects on testimony to be undistinguishable from mendacity; the quantity of force necessary to be employed in the two cases in the way of punishment for the prevention of it, may also be undistinguishable: and thus it is, that while for mendacity the lowest lot of punishment may be fixed at a considerable height on the scale,—in the first place it would leave a wide and mischievous door to falsehood, if temerity were left altogether without punishment—and in the next place, the punishment for it ought to be made susceptible of all manner of gradations, from the lowest punishment for perjury, or even above, down to 0.
For fixing the attention of man to whatever happens to be his duty, punishment may be no less necessary than to any other purpose to which it has been employed. Were it not for this, a nurse might with impunity starve her child, a jailor his prisoner; saying, and perhaps with truth, I never thought about it: and so with regard to the payment of taxes, and all manner of other active duties.
In particular, in regard to the attention necessary to preserve a man from giving, without actual mendacity, falsehood for truth,—if the want of such attention were generally known to be sufficient to secure a man against punishment, he would take care to clear himself of so inconvenient an incumbrance, as often as the falsehood, which it should have prevented, held out a prospect of answering any profitable purpose. Where is the profitable absurdity so gross, that men have not professed—do not profess (and in many instances doubtless without mendacity) to believe? Is there any imaginable absurdity so enormous and so gross, that, for the sake of money, or rank, or power, or a mixture of all these, the bulk of mankind are not at all times ready (and, doubtless, in a large proportion, without downright mendacity) to profess themselves to believe? And in these cases, how is it that they keep clear of mendacity, when so it is that they do keep clear of it? By fastening their attention with all their might, to whatever arguments can be found in favour of the object of belief, and by suffering it, with all their negligence, to be put aside by the force of interest, from all arguments that act in opposition to that object.
Rule 2. On this occasion, as well as on every other, punishment—the punishment provided by the legislator—ought to be such as shall appear to him to be of itself adequate to the purpose, without any assistance from either the popular or the religious sanction.
Why? Because the punishment appointed by the legislator himself, is such as he thinks fit it should be, it is pointed at such objects, and adjusted, moreover, in such quantity and quality, as to adapt it in every respect to the purposes he has in view. On neither of the two other sanctions, powerful and useful as their assistance will be to him, can he in any of these respects place any such entire dependence.
The instances are but too many, in which falsehood, and even perjury, have, and even by the highest authorities and on the part of official men, been held up to view as meritorious.*
Rule 3. In determining the quantity and quality of the punishment applicable to this offence in each case, regard must be had to the nature of the mischief of which it is productive.
In respect of the mischief producible by it (viz. by means of the deception, and thence of the misdecision, of which it may happen to be productive,) the field of its influence is nearly co-extensive with the whole field over which wrong has it in its power to range.
Exercising itself within the non-penal branch of the field of law, and to the prejudice of the plaintiff’s side of the cause, it may have the effect of depriving a man of every kind of right, of satisfaction for every imaginable species of wrong.
Exercised in the same branch to the prejudice of the defendant’s side, it may have the effect of imposing on him unduly the obligation corresponding to every kind of right which, at his charge, is capable of being conferred on a plaintiff.
Exercising itself in the penal branch of the field of law, and to the prejudice of the plaintiff’s side of the cause, it may give impunity to the delinquent of any and every description, and by that means by productive of alarm and danger, in any shape, and to any amount, to determinate individuals—to a determinate class of persons—to the community at large.
Exercising itself in the same (viz. the penal) branch of the same field, and to the prejudice of the defendant’s side of the cause, it may have the effect of subjecting an individual altogether innocent, to any article or mass of punishment which has been, or can be, inflicted under the authority of the law.
The mischiefs, therefore, producible by false testimony considered as an eventual cause of deception, and thence of misdecision, on the part of the judge, are, in this view of them, as numerous and as various as the mischiefs producible by misdecision itself.
Neither in the way of punishment, nor in any other way, is there any mischief which, being producible by the exercise of judicial authority, is not producible by judicial falsehood.
The mischief being thus diversified and extensive, the application of the punishment destined to serve as a security against this mischief ought to be correspondently extensive and diversifiable.
No reason can be given why a wrong,—which is followed by satisfaction, or punishment, or both, if committed by any other means,—should go without satisfaction, or without punishment, if committed in this way by a guilty pen or tongue. By either of these instruments, destitute as they are of physical strength, life may be as effectually destroyed as by the cannon or the sword.
To attempt to fix, either in point of quantity or quality, the mode of punishment best assorted to each modification of delinquency thus commissible, belongs not to a design so limited as the present. Principles destined to both purposes are already before the public in two other works.*
One hint only in respect of quantity:—
The alarm inspired by mischief arising from this species of fraud—from a fraud which, like this, has for its theatre the theatre of justice—seems to be not altogether so great as that which springs from a fraud operating upon a more private theatre. In the case of swindling, for example, a man beholds for himself no other security than in his own (perhaps unexperienced) sagacity and discernment: in the case of testimonial mendacity, no otherwise commissible than in so public a theatre as that of a court of judicature, he beholds for his security, besides the unexperienced sagacity of the jury, the thoroughly exercised sagacity of the advocate and the judge.
One other hint in respect of quality:—
A punishment which, in the practice of English jurisprudence, stands upon the list of those which, on the occasion of testimonial mendacity (when duly erected into perjury,) awaits the option of the judge, is the pillory,—an instrument devised for the purpose of inflicting the punishment of corporal ignominy. But considered as applied to testimonial mendacity, the pillory has nothing belonging to it that can serve in any respect to point the attention of the observer to the nature of the crime.†
If, on this occasion, as on others, a proper object be to give to the punishment that species of analogy, or characteristicalness, which is given to it by exhibiting the offending member in a state of sufferance, real or apparent,—the offending member is in this case not the neck, with both the hands for company, but the one offending hand (viz. the hand that gave motion to the offending pen,) or else the offending tongue.
Rule 4. In both shapes, as well that of temerity as that of mendacity, punishment should embrace every case of false statement uttered by any person in the course or for the purpose of judicial investigation—every false statement, at least, from which, in any shape, advantage or inconvenience can accrue to anybody. Neither on this occasion nor on any other, should a man be suffered “to take advantage of his own wrong.”
Reason. If, in the course of procedure, (or on any other occasion in which pecuniary interest, or, in short, any other species of interest, is at stake,) a man is allowed to derive advantage in any shape from false assertions,—false assertions may in every such instance be expected from the generality of mankind. In the course of judicial procedure, in particular—if, in the case of any such assertion, nominal as well as virtual, or virtual only, no punishment be either appointed by positive regulation, or commonly applied in practice, the party who sees an advantage to be gained by such falsehood, will look upon it as allowed: and the habit of such falsehood will thus become general, not to say universal, among suitors.
In such case, whatever injustice results from such falsehood, whether in the shape of direct or in the shape of collateral injustice (vexation, expense, or delay,) ought to be set down to the account, not of the party, but of the legislator and the judge.
For any of the differences, the abolition or prevention of which is prescribed by this equalizing rule, no reason ever has been—no sufficient reason ever can be, given. Whatever may be the sanctions, the force of which employs itself, or is employed, in the endeavour to confine men’s discourse, for the purposes of justice, within the path of truth—sanctions of law, sanctions of morality, sanctions of religion,—they are not less necessary on one side of a cause than on the other—on the part of one of the dramatis personæ in the theatre of justice, than on another: on the part of the professional agent, for example, than on the part of the client. In one station, the natural force of the improbity-and-mendacity-restricting motives acting with more power than in another, the demand for factitious power, acting in the same direction, may not perhaps be quite so great. But, be the station what it will—if the power of the mendacity-restraining motives be inferior to that of the mendacity-promoting motives, mendacity is the certain consequence.
That the interests of truth and justice neither require nor admit of any such distinction, is too self-evident to require proof, or to admit of it. Turn to practice, the distinction is exemplified to a prodigious extent. To a prodigious extent, spontaneous allegations are, in case of mendacity, exempt from those punishments which attach upon it in the case of allegations ex interrogato, which would attach upon the same falsehoods if drawn forth by questions.
The cases in which this licence—the licentia mentiendi—is granted, are sufficiently indicative, as well of the quality of the authors, as of the final cause of it. Concessum est oratoribus, says a famous orator, aliquid mentiri in historiis. Concessum est: By whom? Such is the licence, but who, it may be asked, are the granters? Instead of oratoribus, put litigantibus,—the proposition is at once more determinate, and more unquestionably true. In this case, that the licence is granted, and who the granters are, are two points equally and simultaneously conspicuous: nor will the third point—why it is granted—be much less so.
When a cause has run out its length, the man of law has nothing to lose by the punishment of mendacity; on the contrary, he is a gainer by it: the mendacity may afford matter for a fresh cause; and it is in a fresh cause, if at all, that the inquiry is performed; how satisfactorily soever the fact of the offence may have been established in the course of the cause which gave birth to it. Applied at this stage,—whatsoever it may contribute in regard to the prevention of mendacity in future contingent causes at large,—it contributes little or nothing to the prevention of it in the individual cause in the course of which the falsehood is uttered. If by punishment, or whatever other means are necessary to the production of the effect, truth were not rendered, to appearance at least, more probable than falsehood in judicial causes, there would be no such causes instituted. Accordingly, at this time of day, punishment is almost universally applied to persons called witnesses, (meaning extraneous witnesses,) as likewise to the litigants themselves, when, with reference to the main point in dispute, they come, either of them, to be examined in the character of witnesses.
This community of interest between the professional lawyer and the public—between the class of persons by whom law, especially jurisprudential law, is made, and those for whose interest it is supposed to be made—is, however, by no means co-extensive with the whole extent of the cause: and where it fails of taking place—i. e. to whatsoever point the opposition of interest extends—there, of course, the interest of the governing class governs, and that of the governed is sacrificed to it.
If the truth of the facts on which the commencement of a cause is grounded, were vouched for on the part of the litigant party by whom it is commenced—those which are said to have fallen within his own perception, by a direct deposition on his part—those in respect of which his persuasion is grounded on circumstantial, or on extraneous testimonial evidence, by a declaration of persuasion adapted to the nature of the case,—a most extensive description of causes would thus be nipped in the bud; all causes in which the plaintiff, being completely conscious of a total want of merits, was at the same time assured, either of his inability to produce any sufficient proof (i. e. any proof that would be sufficient if it were believed,) or of seeing the force of it overborne by counter-proof: or (to come to the point at once) all those in which the loss of the cause would, in case of mendacity or temerity on his part, subject him, if not to the legal punishment, to the moral shame, of perjury. Here then is a large description of causes, or rather a large proportion of causes of all descriptions, of which the profit would be lost.
Should it be asked, in what way a man thus circumstanced can find his interest in the institution of any such cause, the answer is but too obvious: Every case in which a man, having oppression for his object, beholds, in the person of his intended victim, a person either unable or unwilling to bear the quantity of expense and vexation which in this case has been attached to the faculty of self-defence. In such case, where the inability is total, or the unwillingness immediate, the profit of the profession is confined to the earliest stage, or first stages, of the cause: if either the one or the other bar to the continuance of the cause does not present itself before a later period, the intermediate stages constitute by so much the longer line, with which the current of profit is co-extensive. As to the malâ fide plaintiff (bating the casualty of pecuniary support afforded to the intended victim by the casual generosity and ability of his friends,) the relative degrees of opulence being given, the operations of this system of warfare may be reduced to certainty. That, in a siege, how long the power of self-defence may be expected to be protracted, may be known, by means of the proper data, if not to a day, at least to a week, is a point that seems to be sufficiently settled by the general opinion of the professors of that branch of the art military. But in the judicial warfare, at what expense a man perfectly honest, and completely innocent and irreproachable, may be either enslaved or ruined by a villain—any villain whatsoever, who happens to be in a certain degree richer than himself,—is a result, the certainty of which, under the system of policy in question, is not at all affected by the uncertainty which, to the prejudice of him who has right on his side, is but too well known to be attached to the operations of the law. The prospect of obtaining redress in any degree is deplorably uncertain: the prospect of obtaining complete redress is, with few exceptions indeed, altogether hopeless: the prospect of oppressing with impunity may be reduced, and every day is reduced, to a complete certainty.
Uttered on a judicial occasion or for a judicial purpose, spontaneous statement will, according to the usage of established language, be understood to require a different appellation, according as it is in the character of a witness or in that of a party that the person is understood to express himself: if in the character of a witness, whether extraneous or self-regarding, deposition,—if, in the character of a party merely, and not in that of a witness, allegation. From depositions, the licence for mendacity has been, in general, taken away—to allegations, it has been, in general, extended; and if, in here and there an instance, it has at different times been withdrawn, the proposition by which the existence of it has been affirmed, continues still to constitute the general rule: nor can the reasonableness and experienced utility of the exceptions be maintained by any arguments, which will not with equal force evince the mischievousness and depravity of the general rule.
In the character of a witness, or of a party under examination in the place of a witness, a man must take care what he says; he is expected to confine his discourse within the pale of truth: but no sooner is he freed from the incumbrance, than all restraints of legal obligation are thrown off along with it; the word of command is, stand at your ease: the field of mendacity is thrown open to him, and in that field he beholds a play-ground, in which fancy and sinister interest are allowed to gambol without restraint.
Depositions and allegations—depositions on the one side, allegations on the other—differ in name; by positive institution, as above, they differ in effect: but, after making due allowance for the slight distinction in nature which gave rise to the difference in name, there is no reason why the one, more than the other, should be exempt from the law of truth. In both cases, the immediate subject of the assertion is the existence of a fact—a psychological fact: in both cases, it is the existence of the same fact; viz. a persuasion concerning the existence of some other fact. In the case of a deposition, where the evidence is strictly and purely direct, without mixture of circumstantial,—the fact constituting the subject of persuasion is the recollection of certain perceptions entertained by the deponent himself, at a point of time more or less remote. In the case of a deposition which explicitly or implicitly involves a mixture of circumstantial evidence,—the fact constituting the subject of persuasion consists, pro tanto, of certain inferences drawn from certain perceptions, so entertained, as above. Where the fact which is the externally apparent subject of the allegation, is a fact the persuasion of which never had the immediate perceptions of the person in question for its ground,—that persuasion has a different ground to rest upon; but, on the part of a veracious speaker, its existence is not less indisputable in this case than in the other: nor is the assertion of its existence less susceptible of mendacity in this case than in the other.
A horse belonging to the defendant has broken into my inclosed field, and damaged my growing corn: deposition or allegation, this at any rate is an assertion on my part—an assertion by which the existence of a persuasion on my part (a persuasion of the past existence of an individual fact belonging to the species of facts designated by these words) is expressed. If this persuasion has for its ground the recollection of a correspondent perception on my part—viz. the sight of the horse when occupied in the act of treading down the corn, and feeding upon it—and if, at the same time, by the terms by which such assertion is conveyed, I declare it to have had such perception for its ground—my assertion is of the nature of a deposition, and is properly susceptible of that name. If I speak of the same fact as a fact which I look upon as proved, or capable of being proved, by my own testimony,—although the fact which presented itself to my senses was not the very fact so described as above, but an evidentiary fact, or assemblage of evidentiary facts (which on account of their supposed necessary connexion with that principal fact, produce on my part a persuasion no less satisfactory of its existence,)—say, for example, my having seen the horse running in a line leading from the field, and in a part of that line commencing immediately without a hedge that bounds the field, the hedge being broken behind, and footsteps tallying with those of the beast discernible on each side of the hedge,—in this case my assertion is not less susceptible than in the former, of presenting itself in the character of a deposition.
If, on the other hand, my persuasion is spoken of by me as not having had any such perception of my own for its ground—neither the perception of the principal fact itself, nor the perception of any physical fact operating on my mind—in relation to it, in the character of an evidentiary fact; but the existence of a set of perceptions of either of the above descriptions on the part of a third person, Titius;—then, and in such case, my assertion cannot, according to the notions and language of jurisprudence, bear with propriety the name of a deposition (except in so far as hearsay evidence is received in depositions:) of the two names in question, it cannot with propriety bear any other than that of an allegation: the deposition, if there be any, must be the work of Titius. But whether the assertion, by which the existence of the principal fact in question is pronounced—the fact on which I ground my claim of satisfaction—the fact which, with reference to my title to such satisfaction, I rely on, in the character of an investitive or collative event—whether such my assertion be of the nature of a deposition, or in the nature of a bare allegation, it is equally expressive of a persuasion: and the declaration of the existence of that persuasion is equally susceptible of truth and falsehood—of veracity, mendacity, and temerity; and the fact of such mendacity or temerity, where it exists (though it be an internal psychological fact, the seat of which is in my mind) is, like so many other facts of that same nature, equally susceptible of proof—of proof of a texture strong enough to afford a ground for the burthen of satisfaction, or for the burthen of punishment.
A declaration assertive of such persuasion, and that (in case of its being knowingly false) on pain as for mendacity, may therefore with equal propriety be insisted on in the case of a party, as in the case of an extraneous witness.
There remains, as capable of being included in the allegation, the point of law—the proposition expressive of a man’s persuasion in regard to the state and condition of the law, so far as respects the subject-matter of his claim.
The reality of the distinction between mendacity and temerity, and the necessity of preserving it (viz. for the sake of avoiding the mischief of applying excessive punishment on one hand, or giving impunity to delinquency on the other) have been already brought to view. Of the two points—the point of fact and the point of law—the latter is the one in relation to which temerity (in contradistinction to mendacity) is most apt to be the accompaniment of erroneous assertion. In regard to matter of fact, persuasion may be the mere copy of perception, the simple result of recollection: in regard to matter of law, it can never be produced without the aid of judgment and inference.
In a general view, the uncertainty of the law is a quality, unhappily, but too strongly stamped upon it, even in those countries in which the mischief is least flagrant: and upon a view thus general and indiscriminating, it may naturally enough seem a harsh arrangement to fix upon an alleged persuasion (how erroneous and groundless soever) the imputation of mendacity, or even of temerity: at least, if followed up by inflictions of a penal or otherwise burthensome nature, in practice.
Unquestionably, the points in which the aspect of the law may appear uncertain, and that even to the most penetrating eyes, are in every system of established law but too numerous; but this partial uncertainty does not hinder but that, in respect of the subject-matter of this or that individual suit, the state of the law may have been much too clear to admit of any possibility, psycholocally speaking, of its having been mistaken. No man who, upon a moment’s search directed to that view, will not meet with objects of property in plenty, to which he will be satisfied that, at the existing point of time, be it what it may, he cannot, under the existing state of the law of his country, be it what it will, possess the least shadow of a claim; insomuch, that if, in relation to any such object, he were upon oath to declare, on his own part, the existence of a persuasion pronouncing that object to be included by law in the mass of his property, such declaration could not but in his own mind be accompanied with a consciousness of the guilt of perjury. Well then, let him, for the purpose of the argument, fix upon any one or more of all that infinite variety of objects: let him, if he pleases, include in the list the contents of the firmament and the host of heaven. If the commencement of a suit at law, for the recovery of an object of property, be understood as involving a declaration of a man’s persuasion, affirming on his part the existence of a right to that object as given him by the dispensations of existing law; a declaration to that effect, under most, if not all, systems of established law, may, in relation to any such object, or number of such objects, be uttered by any man that pleases, without exposing himself to any sort of punishment,—or to any worse consequences than what would ensue from the disallowance of a claim, of the legality of which, a man of the soundest judgment and most intimate acquaintance with the state of the existing body of the laws, might, with ever so clear a sincerity, declare himself persuaded.
Falsehood—false declaration of opinion, accompanied with mendacity; error, declaration of an opinion really entertained but erroneous, accompanied with temerity; error, declaration of an opinion really entertained but erroneous, unaccompanied with temerity: such, in regard to the subject in question, are the broad lines of difference. Of these different states and aspects of the mind, there is not one that is not frequently, the two first but too frequently, exemplified in practice. Of these several facts, all of them of a psychological nature, there is not any one, of which those to whom it belongs to judge of legal facts, are not as competent judges—as capable of framing a well and sufficiently grounded judgment, as of any other fact belonging to the class of psychological facts. Even of mendacity, of perjury, in these cases, the existence, as already shown, is by no means incapable of being pronounced, and on perfectly sufficient grounds. If even of perjury, much more of temerity: of which—inasmuch as (considered in the character of a species of delinquency) the number of degrees and shades of which it is susceptible is infinite, reckoning from perjury down to absolutely blameless error,—so accordingly may be the corresponding shades and degrees of punishment.
In the case of theft, no man is ever convicted of that crime, unless the judge (in English law, the jury) be as fully satisfied in regard to his persuasion concerning the question of law, as, in case of a conviction of perjury, they are in regard to his persuasion concerning the matter of fact. Let it be ever so clear, that the thing supposed to be stolen has been taken by him; still, if there appear to be any degree of probability, how slight soever, that he regarded it as being his own by law, he is no more convicted of theft than if he had never meddled with it.
Suppose it a case in which the suitor has no professional adviser (for in no country is the case absolutely without example:) it is upon the suitor, and upon him alone that, in the case of the offence in question, whether it be temerity or mendacity, the imputation must attach; together with whatever penal or other burthensome consequences may have been annexed to it. But if, in the case of an individual taken at large,—an individual taken from the most numerous, which are necessarily the least informed, ranks in life,—error thus accompanied, may, without oppression or injustice, be taken as a ground for punishment, much more may it in the case of a man by whom the sort of knowledge in question is professed, and whose title to the remuneration he receives, is grounded on the possession he professes to have of that knowledge. So far as facts are concerned, it may have happened to him to be deceived by his client: though, in regard to any declarations made by him on that subject, even on that occasion recurs the question as between mendacity, temerity, and blameless mispersuasion. But, so far as the question of law is concerned, the blame (if any blame there be) must press upon him, in full and undiminished force: and as to the difference between fact and law, if there be any occasions or purposes for which it is determinable, this is one of them. In the case of the ignorant, the irreproachably ignorant, day-labourer or mechanic, to whom any tolerably adequate acquaintance of the law has been rendered impossible—ignorance (according to a maxim generally maintained and acted upon by those by whom the impossibility of knowledge has been created) is no excuse: shall it in their favour alone be an excuse, who profess, and who in so peculiarly abundant a degree are paid for professing, peculiar, and even exclusive science?
The surgeon, or even the farrier, who does injury to his patient, for want of the scientific skill, the possession of which he undertakes for (though it be but by the assumption of that professional name,) is, for compensation to the party injured, taxed by them without scruple; and not without reason, even though it be without the least suspicion of his having intended injury. The man of law,—although on his part the intention, the consciousness of injury, be out of doubt,—shall he alone be exempt from that responsibility which by his own arrangements has been made to attach upon comparative innocence?
The more clearly the question of law, with all declarations of opinion respecting it, is separated from the question of fact, with the corresponding declarations, the easier of course will it be, in the station of the judge, to determine as between mendacity, temerity, and blameless error, and to act accordingly. Turn to established systems, we shall see the two questions lumped together, not to say confounded, by one and the same expression; and punishment, as for perjury, attached to mendacity—to mendacity, and on whose part?—on the part of the suitor, and him only; not in any case on the part of his professional adviser, the man of law.
So much for the rules themselves, and the reasons on which they are grounded. In the remaining sections of this chapter, the light of exemplification will be thrown upon them, by the instances in which they have failed of receiving due observance from established practice. All-comprehensive in their extent, the practical importance of them will be found proportionable.
Defects of Roman law, in regard to the punishment of testimonial falsehood.
Under the ancient Roman law (if Heineccius’s account of it is to depended upon,) falsehood, mendacious falsehood,—though punished on a variety of extra-judicial occasions, mostly bringing it under the denomination of fraud,—yet, when committed on a judicial occasion, in the shape of mendacious testimony, was in general exempt from all legal punishment. One exception is noted, and but one: viz. when, being in the shape of criminative perjury, it had the effect of murder: in this case, it was, with a consistency not yet attained by English law, punished as murder: murder thus committed by the tongue, was punished as it would have been if committed with any other instrument.
In other cases, calumny appears to have been treated on the footing of a punishable offence; and punished as such, sometimes with pecuniary punishment, at other times with the complex and heterogeneous punishment expressed by the name of infamy.* By calumny, appears to have been meant false testimony, when given on the criminative side. Committed on the exculpative side in penal cases, and on either side in cases not penal, mendacity would hardly be understood to come under the name of calumny: in those cases, therefore, it should seem, no punishment would attach to it.
As to perjury; in the ordinary course of judicial testimony, and on the part of an extraneous witness; it could not be committed:—why? because, in that case, the act of deposition was not accompanied by the ceremony of an oath: by that ceremony by which mendacity is converted into perjury. The only cases in which the ceremony of an oath was employed in judicature, were those in which the witness was a self-regarding witness—the testimony was of the self-regarding kind: and then, to complete the absurdity, it was rendered incontrovertible and conclusive.†
Once upon a time, indeed, it is said that a gang of false witnesses were thrown from the Tarpeian rock: to judge from what is said of them, one must suppose that, in some way or other, they had entitled themselves to the name of perjurers. Be this as it may, the misadventure seems to belong to the head of casualties at large, rather than to that of legal executions: it is noticed, by a collector of anecdotes, as a thing that had taken place; not by a legislator, as a thing that, according to the determination of him, the legislator, was in future to take place.
Till the Roman empire was far gone in its decline,—that justice should have truth rather than falsehood for its foundation, was a point not thought worth providing for: always excepting the narrow cases above described, in which falsehood, being preceded by an oath, as well as accompanied by mendacity, received the name of perjury. By the joint tenants of the Roman empire, Arcadius and Honorius, perjurers, we are told, were threatened with infamy: but if it had been made possible for us to know whether any, and what, false witnesses, were on this occasion included under the name of perjurers, or what was meant by threatening; i. e. whether the legislator actually made a law to such effect, or only threatened to make one; or what sort of a punishment the infamy was that the delinquents in question were threatened with; neither would the law have been Roman law, nor Heineccius the expositor of it.
Perjury itself (whatever was meant by perjury) does not seem to have been treated as a punishable crime, except in the particular case where, the avenging deity being the genius of the emperor (whatever was meant by the genius of the emperor,) perjury, in this case, was consequently a species of high treason, or rather a sort of compound of high treason and blasphemy, and consequently could not be too severely punished. Not applying in general to testimonial, commonly called assertory oaths, its application must have been confined for the most part to promissory oaths.
Quitting the masters, we must now apply to the scholars: on this, as on other occasions, let us apply to the head scholars in preference: to the French, as being the most enlightened as well as the most numerous nation of continental Europe.
Among these modern Romanists, at any rate, mendacity, in so far as it has happened to have been previously converted into perjury, has been punished under that name.‡
By these scholars too, as by their masters, homicide committed by means of perjury, has been punished as homicide.∥
Looking at the established course of procedure, under the old French law; on the part of the suitors, as such, falsehood seems to be altogether without a check. No affidavits, as in English judicature, to establish facts for the purpose of introductory or interlocutory decisions. In respect of facts to be established as grounds for the definitive decision, the parties, though interrogated as witnesses, are interrogated upon oath; consequently, in case of proved mendacity, punishable as for perjury. But in respect of assertions made for the purpose of laying a foundation for this or that step, or train of steps, in the track of procedure; ransacking for this purpose a quarto volume of 864 closely-printed pages.* I can see no trace of impending punishment. No oath required or received: every allegation wears the form of a simple affirmation; and cases are mentioned, and that to an undefined extent, in which, though the fact be within the cognizance of the party, the affirmation may be made by proxy, the attorney speaking for his client.†
In an argument of Linguet’s, on the contested marriage of the Vicomte de Bombilles, there is a passage which exhibits a faithful enough picture of a cause, as carried on at that time, under the technical system of Romano-Gallic procedure.‡ “En raisonnant, en dénaturant, en falsifiant ainsi les choses, les mots, et les écrits, on réussit à remplir un Plaidoyer on un Mémoire: . . . mais le public instruit fait justice.”
Where a party is exposed to no punishment, in case of mendacity,—is never subjected to the obligation of giving a word of answer to any question put to him by the adverse party, in the presence of the judge,—has, upon the terms of uttering a lie to this or that effect, a right to continue the series of delays and expenses in one court, or to commence a fresh series in another; if, under such a system, a man, conscious of being in the wrong, suffers the day on which a definitive decision can be pronounced to arrive, he may seek the cause of his defeat in his own ignorance or indolence, rather than in any obstacle opposed to his success, by the discernment, and zeal or activity, of the legislator or the judge.
In most established systems of law, the triple distinction, between delinquency accompanied with self-criminative consciousness, delinquency accompanied with temerity, and delinquency clear from both these accompaniments—and therefore free from moral blame,—has obtained more or less notice. On the other hand, in no established system have these important distinctions been clearly conceived and expressed in words, nor therefore applied with any uniformity in practice.
The distinction is in itself applicable, with few or no exceptions, and with equal propriety, to all manner of offences: but it is only in here and there a scattered instance that any such application has been made of it.
To testimonial falsehood it is applicable, with as much propriety as to delinquency in any other shape But, that in established practice any such application has been made of it, appears by no means probable.
In the Roman law, though self-criminative consciousness has been no otherwise indicated than by the inexpressive and inapposite appelatives of dolus and mala fides, the distinction is not unfrequently, how far soever from uniformly, brought to view. Accordingly, where dolus or mala fides is considered as not proved, the absence of it is not always considered as exempting a delinquent completely from all punishment culpa, sometimes styled temerity, is, in certain cases, understood to create likewise a demand for punishment, in effect at least, if not in name; though to an inferior amount.
To the case of testimonial falsehood, indeed, the distinction could scarcely have extended. If testimonial falsehood were converted by the previous ceremony of an oath into perjury, it was matter of doubt whether among the Romans it was considered as generally punishable, under that name at least, even in the most attrocious cases.∥
On this head the modern Romanists have gone far and usefully beyond their guides, the Romans. By the latter, the distinction between dolus and culpa appears to have scarcely gone beyond the case of misbehaviour relative to contracts,§ with or without the addition of that of homicide.¶ By the former, it seems to have received a pretty general application to the higher ranks of offences.
Defects of English law, in regard to the punishment of testimonial falsehood.
The first great defect of the English law, in regard to the punishment of judicial falsehood, is the absolute want even of anything like an approach to a graduated scale of punishments.
Mendacity, when punished at all, being punished not as mendacity, but as perjury; the profanation of the ceremony being regarded as constituting the principal part, if not the whole, of the guilt;—that profanation being the same, whatever be the occasion on which, or the purpose for which, the crime is perpetrated, or whatever be its effects when perpetrated,—no distinction is made in the punishment.
Common sense dictates, that, if there be a difference in guilt, and a difference in the demand for punishment, as between him who assaults a man with intent to kill, and him who assaults with only the intent of inflicting a slight bodily pain, there is at least an equal difference in guilt—an equal difference in the demand for punishment, as between the man who gives false testimony for the purpose of taking away the life of an innocent person, and the man who performs the same act for the purpose of subjecting him to a penalty of five shillings.
Among the Romanists, as has been already observed, murder, when thus perpetrated by the tongue, was treated nearly as if the same crime had been committed by means of any other instrument.
In English judicature, as, in the case of a poor delinquent, there was nothing to be got for the king by punishing the offence,—no knife value sixpence, or sword value six shillings, to be forfeited; no murder could in this case be discerned. In latter times, propositions have been started for treating murder as murder, when committed by these means: but the difficulty of saying what forfeitable commodity a man could on any such occasion be said to have been holding in his right hand, threw out the innovation, and there the matter rests.*
But this is not all: in English law no distinction is made between two offences generally so widely different in point of enormity, as falsehood through mendacity, and falsehood through temerity.
In English jurisprudence, the confusion of men’s conceptions on this subject is evidenced and perpetuated by the inappositeness of their language. For the dolus of the Romanists, they have sometimes malice, sometimes mala fides: for the culpa of the Romanists they have nothing at all. Malice accordingly means, in some cases, existence of the self-criminative consciousness: but it means a hundred things besides. The short account of the matter is, that, when men of law talk of malice, they do not know what they mean: this, though so short an account, differs little, if anything, from the true one. For discovering what they mean, there is one course to be taken, and but one; and that is, to observe the treatment they give to a delinquent, to whose conduct this feature is ascribed. Malice is either express or implied. With this distinction at command, if a fancy happens to take you to punish a man as for malice, it is impossible for you to be under any difficulty. Whatever you happen to mean by malice, if you can prove it, you prove it: if you cannot prove it, you imply it.
But, though the distinction is neither conceived by them, nor expressed,—though, for want of being clearly understood, it is unexpressed, and, for want of being expressed, it is not understood,—it cannot be said to be altogether unfelt: accordingly, so far as discretion in judicature extends, the distinction, in both its branches, may not unreasonably be expected to be seen applied in practice. In general, a man whose delinquency is altogether pure from temerity, as well as self-criminative consciousness, will not, in every instance, be so hardly dealt with—under or not under the name of punishment,—as a man in whose instance delinquency is accompanied with that cause of blame. A man whose delinquency is characterized by temerity, and nothing worse, will not be punished with so much severity as the delinquent whose conduct shows that a full view of the several circumstances, on which the criminality of the act depends, was all the time before his eyes.
In homicide, for example; although a lawyer, bewildered as well as tied up by precedents, will imply malice, where, in the sense annexed by everbody to the word malice, neither he nor anybody else sees any such thing, although, in support of that implication, he will be urgent with a jury to convict as for murder a man who, through temerity, without either self-criminative consciousness or ordinary malice, has committed an act of homicide; yet in another place, another lawyer, or perhaps the same, will betake himself to the fountain of mercy, and substitute, in such a case, to the punishment insisted on by common law, a punishment suggested by common humanity, with the support of common sense.
In regard to the offence of testimonial falsehood, scarce any, even the obscurest, notion of the distinction in question (I mean, so far as temerity is concerned) appears, as yet, to have found its way into English jurisprudence. In a case of temerity, a man must either be punished as in a case of self-criminative consciousness, or go unpunished. Falsehood—falsehood committed in giving testimony—is either perjury, and punishable as such, or remains without punishment, because it remains without a name;† and by perjury is understood (how inadequately and improperly soever expressed) falsehood not only preceded by the ceremony of an oath, but accompanied, in the mind of the delinquent, with the self-criminative consciousness so often spoken of.
In the case of Elizabeth Canning, a girl under age, who, in 1754, was convicted of perjury at the Old Bailey, for that, on her disappearance from home for about four weeks, she had sworn to her having been confined during that time, and robbed, in a house of ill fame, by the mistress Mary Wells, and a gipsy woman, then a lodger in the house; on which evidence of her’s, Wells and the gipsy had been capitally convicted;—a majority of the jury, as well as a bare majority of the judges, had regarded the narrative as false in toto, having for its object the saving herself from the imputation of a voluntary residence in company, by which, if known, her character would have been destroyed. This consequently was, in their eyes, a case of self-criminative consciousness. But, to a part of the jury, it appeared that the story was false in circumstance only; and that the falsity was accompanied with nothing worse than temerity, not self-criminative consciousness. That she had been incorrect in her statements, could not be doubted by any one; since in a variety of circumstances it was not only contradicted by extraneous witnesses, but inconsistent and self-contradictory. Temerity on this account—want of the attention which might have been bestowed, and which, had it been bestowed, would have saved her from the stating of so many particulars, of the falsity of which there could be no doubt—could not but be imputed to her by everybody: since, on the occasion on which they were uttered, the lives of the persons actually convicted on her testimony were at stake. But of her consciousness of the falsity of her own statements (it appears) they were not persuaded: at least as to any of the circumstances essential to the conviction of the persons convicted on her evidence. With this exception, they were satisfied of her having committed perjury; and on that account had joined in the verdict convicting her of the crime so denominated. But, in their conception, the perjury was not wilful and corrupt: the wish declared by them, accordingly, had been, that, in the instrument attesting, the words expressive of that imputation should be omitted.
In the words wilful and corrupt, we may observe an endeavour to express a circumstance, which, at the time when the locution was first hit upon, the progress of intelligence had not qualified men to express by clear and apposite words. By the word wilful, a psychological fact, the seat of which is in the understanding, was referred to the will: wilful the assertion could not but be, unless uttered by the perjurer in a state of delirium, or in his sleep. The circumstance meant to be expressed by the word wilful was, that the perjurer, at the time of his uttering the assertion in question, was persuaded—was conscious—of its falsity—of its want of conformity to the truth. The word corrupt is a term intensely but vaguely dyslogistic: what it does express, though still in a vague manner, is the quantity,—what it endeavours, though unsuccessfully, to express, is the quality,—of the blame.
In this case we may observe an occurrence, the exemplification of which is not unfrequent in English judicature: the probity and unsophisticated good sense of the occasional judges (or jury,) coming forward with a request, which the scientific intelligence of their professional instructors does not enable them to comply with. We are not satisfied of the existence of self-criminative consciousness; we are satisfied of the existence of temerity: what we wish is, to give such a verdict as shall subject the defendant to the punishment adapted to that inferior degree of delinquency, but not to the superior. Such was, in substance, the language of these conscientious jurymen. But the established language and practice of the law was not such as to enable the keepers of the officina justitiæ to satisfy so reasonable a demand. They were forced to leave it unsatisfied; they had no such articles in their warehouse. If you want law for wilful and corrupt perjury, there it is for you: as to perjury that is not wilful and corrupt, there is no such thing—no such thing that we know of. Wilful and corrupt perjury is, therefore, what you must convict the defendant of, or else acquit her altogether.
In the practice of English law (with but a single exception) if any punishment be annexed to the practice of mendacity, the sanction of an oath is employed, as a medium of connexion, to attach the punishment to the offence. Mendacity, when the sanction of an oath has been employed as an instrument to bind the conscience of the individual to an adherence to the opposite virtue, is termed perjury. Perjury, accordingly, in these cases, not mendacity, is the denomination given to the offence: insomuch that mendacity, if it fall not within the case of perjury—if it be not punishable as perjury,—is not punishable at all.
The single exception, spoken of above, is constituted by the case of examination taken by the House of Commons, or a committee of the House.
Not that, in that legislative tribunal, truth is of less importance than in a cause about the value of a pot of beer, or a packet of pins. But the helplessness, in this respect, of the most efficient of the three branches of legislature is a great point of constitutional law: and (according to common intendment,) in the constitutional branch beyond every other, it belongs to utility to give way to usage.
Nor yet is mendacity, on these occasions, altogether exempt from punishment. It is called a contempt; and, as such, is punishable with imprisonment; to which, by means of fees exacted by the house for the benefit of the jailor, is added pecuniary punishment. With imprisonment—but mark the consequence. The imprisonment being limited in its duration by that of the tribunal which inflicts it, and the maximum of the latter being seven years, the longer it has sitten, the weaker it has become, in this point, not to mention others. On the one hand, the utility of the law depends on the goodness of the information on which it has been grounded; on the other hand, the most efficient of the three branches of the legislature is less and less adequate to the task of procuring good information, the longer it lives, till at last it finishes its career in downright impotence.
Rabelais, living in a distant province, and wanting to see Paris, forged a quantity of real evidence calculated to throw upon him the suspicion of a state crime, and, upon the strength of it, travelled at free cost. On a favourable conjuncture, the trick might not be altogether incapable of being done into English, by a political adventurer, richer in boldness than in the gifts of fortune. Towards the conclusion of a parliament, he commits a contempt, and is committed to the custody of the serjeant at arms. What is the serjeant to do with him? To starve him is forbidden, not only by the law of humanity, but by the law against murder. He lodges and boards him: and, no sooner is the parliament dissolved, than out walks the delinquent, and with him all prospect of fees.
The English procedure, in almost every branch of it, affords but too many examples, in which mendacity, not being stamped with the name of perjury, remains altogether unpunishable, and secures to the offender, in this respect, the fruit of his offence.
1. In the penal branch of procedure,—in the present state of it,—the encouragement given in this way to mendacity bears but a small proportion to that which we shall see dealt out with so profuse a hand in the non-penal branch.
The only instance in the penal branch, in which an encouragement is given in this way to mendacity, and that encouragement productive in a direct way of consequences immediately prejudicial to justice,—is the practice which has obtained in capital cases and cases next to capital, of dissuading a guilty defendant from the confession he declares himself ready to make, and in a manner forcing him to substitute, in pre-appointed language, what is called the plea of not guilty, that is, a false and mendacious averment of his not being guilty, in the room of it. If, in this case, the extraneous evidence exhibited on the other side fails of coming up to the description of that allotment, which, according to the established rules of evidence, is necessary to conviction,—so often as any such failure takes place, so often does a guilty defendant escape,—so often is the escape attended with a failure of justice. If the evidence be sufficient, and conviction takes place accordingly, even then the satisfaction of the judge and of the public fails of being so complete as it would be if the disposition on the part of the defendant to speak truth had not been checked, by those whose duty, at least in the moral view of the word, it was to cultivate it.
Evidence of inferior quality is in this case received alone, to the exclusion of evidence of a superior quality—of a nature which cannot fail of being more satisfactory to every mind to which it ever comes to be presented. The mendacity thus bespoken, and in a manner commanded, from the highest ground, on pretence of a regard to justice or humanity, but in reality for the purpose of gaining an unmerited popularity at the expense of justice, is sometimes fatal, and in no case of any use, to justice.
Compared, however, with the state of things in this respect as it stood till little above a century ago, the abuse thus noted is a prodigious improvement. A century has scarce elapsed since the practice was abolished, according to which, in a capital case, the witnesses for the defendant were examined without oath, and thence (in case of mendacity,) without being exposed to punishment.* The practice thus abolished was, in both points of view, pernicious: favourable in the highest degree to guilt, by leaving the door wide open to mendacious evidence on that side: unfavourable to innocence, by depriving veracious witnesses of whatever share of confidence it is in the power of the sanction of an oath, in these circumstances, to inspire.
The instances in which mendacity is forced upon the pen of the other party (the plaintiff or prosecutor,) by those who, to the more especial duty, add the exclusive power, of cherishing and enforcing on all occasions the opposite virtue;—these examples, unhappily but too numerous, of corruption issuing in torrents from above, will be apt on this occasion to present themselves to a discerning mind.† But the mischief, great as it is, belongs not to this place. If, by the contempt of veracity and the fondness for mendacity thus displayed, the morals of the profession, and (through that commanding channel) the morals of the community, are tainted in the most vital part; the interests, however, of justice, receive not in this way any immediate prejudice: for, so far as the law in favour of mendacity is complied with, neither plaintiff nor defendant, neither innocent nor guilty, are in any respect the better for it. If, indeed, in any respect, compliance on the part of the plaintiff is deficient, a flaw is thereby produced, through which the defendant, if guilty, makes his escape. But the source from whence the advantage given to the defendant in this case is derived, is not the commission of mendacity on that side, but the omission of it on the other.
2. In non-penal procedure—in both branches of it, the common law and the equity branch,—it will now be seen in what abundance invitation is held out to mendacity on the part of the litigants on both sides, and in what abundancy of produce the fruit thus cultivated may naturally be expected.
In the common-law branch, the regular course, in the shape in which it is pursued at present, can scarcely in the minds of those who planned it, have had any other view. If, at the outset of every cause, the parties, in the presence of each other, and each of them interrogated by the other, were to produce at once the whole budget of their allegations, and their suspicions, as well as their demands, and that under the sanction of an oath: mendacity would not be hazarded by a man, in the station of a party, any more than in that of a witness. But the fundamental allegation, or body of allegations, termed the declaration, is made without any such check. This declaration gives commencement to the cause—operates as an introduction to the several steps and instruments that follow it. A man may be completely conscious of the badness of his own cause; he may be conscious that the facts alleged or assumed by himself are not true; he may be conscious that facts, such as, if proved on the part of the defendant, would defeat his (the plaintiff’s) claim, did really exist; whether the defendent be supposed to be in a condition, or not in a condition, to bring proof of them. In any of these ways he may be fully conscious of the falsity of his averments, and yet withuot being deterred from making them: these being among the occasions on which falsehood has received a licence to come forward and effect its purposes. As to costs of suit—besides that this species of partial satisfaction is not in English procedure applied, with anything like consistency or uniformity, to the cases that call for it,—the inadequacy of it to the purpose in hand will be hereafter brought to view.
The whole system of what is called special pleading, is an edifice erected upon the corrupt foundation just described. The counter-allegations,—such reciprocal ones as the nature of the case admits of—these pleadings (as they are called)—instead of being extracted from the parties speaking viva voce, and face to face, under the authority and in the presence of the judge,—are kept back to be exhibited in writing, in a protracted succession, at distant intervals; and, be they ever so mendacious, no other punishment attaches upon the mendacity but the inadequate and irregularly applied punishment of costs.
In no respect whatever is direct justice benefited by this practice: collateral injustice, in its triple shape of vexation, expense, and delay, is produced by it in abundance.
The commencement as well as final cause of it—the origin of it in both senses—is distinctly before our view. We know of a time in which the abuse had no existence. Like libelling and forgery, it has grown out of the art of writing. But forgery conducts men to the gallows, special pleading to the bench.
In summary procedure it is unknown: as happily and completely so, as in the domestic procedure—which, in forensic practice, serves as a model for summary procedure,—and from which the regular mode may be considered as being for the most part a causeless deviation.
On a variety of occasions it is excluded: the general issue is allowed to be pleaded: and the party to whom such permission is given, is the defendant,—the party whose interest on each such occasion insures his availing himself of it. The propriety of such exclusion is, in these several instances, unquestioned and unquestionable: but on no one of these occasions can it be justified, but by reasons which with equal cogency prove the propriety of the exclusion—the impropriety of this mode of procedure—in the several instances in which it continues to be employed.
Common law, the old original law of the country—common law, though “the perfection of reason,” was here and there a little scanty, and here and there a little harsh. Under the name of equity, a new and smoother kind of law has been half imported, half manufactured, to fill it up and smooth it.
In common-law procedure, for the benefit of the lawyer, mendacity on the part of the suitor enjoys (as has been seen) an almost unbounded licence. If falsehood is, by those whose duty should naturally have been to suppress it, connived at and rendered profitable, and in that way encouraged; if such encouragement be a mode of subornation; at that mode, however, it stops: understand, at common law.
Would you see it in a stronger and more efficient mode, you must look to equity. It is there that the apparatus of subornation is complete: it is there that the effect of it is altogether irresistible.
In equity procedure, the altercations between the parties, including the examination of one of them by the other, are carried on in the way of written correspondence. The cause opens by the plaintiff’s address to the judge, who never reads it: to which the defendant, to whom it is not addressed, is to return an answer. This epistle is called a bill. The bill is composed partly of allegations, partly of questions. In the allegations are stated, on the one hand, the facts,—such facts, designed to constitute a ground for the plaintiff’s claim, as the plaintiff knows, or is made to pretend to know; on the other hand, such facts as he does not know, but which, by means of so many confessorial statements to be extracted from the defendant, he, the plaintiff, wishes and endeavours to learn. For this purpose the court lends its authority to the plaintiff (in equity, the complainant) with the readiness that may be imagined. It however makes one condition with him, viz. that every interrogatory put by him to the defendant shall have a charge to support it. In itself, the rule is sufficiently obscure and vague: but practice has explained and fixed it. If, for example, to make good your title you want a deed, but know not where it is; if you tell the truth, and say you don’t know where it is, you will never get it. You must begin with saying you do know where it is; you must say that the defendant has it; and so, having complied with the condition, and said on your part what you know is false; you are allowed to call upon the defendant to declare on his part what is true.
In respect of delay, vexation and expense, the consequence of this sort of justice is not to the present purpose. In respect of mendacity, the effect produced on the state of the public morals by that vice is another topic that belongs not to this place. Upon the administration of justice, and the advantage derived to judicature from evidence received in this mode, the effect in point of extent may be tolerably conceived from a fact soon stated. The answer being upon oath, may be true or not true: the bill, not being upon oath, is regarded as altogether unworthy of all credit.* In the character of defendant, what a man says may be true or not true: in the character of plaintiff, what the same man says is not a syllable of it true. Why? Because, in the character of defendant, he is made to take an oath: in the character of plaintiff, he is neither subjected nor admitted to any such ceremony. And why, in the character of plaintiff, is he to enjoy this licence for mendacity? To justify him for subjecting a man to the torment of the most tedious and expensive of all suits,—to justify him for stopping him in the pursuit of less expensive and vexatious remedies,—has the court any better, or other, warrant, than the assertion of a man who, by its rules and maxims, is unworthy of all credit?—whom it first forces to make himself a liar, and then stigmatizes for being so.
Besides the radical absurdity of the rule, in any other character than that of a contrivance to corrupt and oppress suitors for the benefit of lawyers; the uncertainty with which it is pregnant is without end. What breadth of charge shall be sufficient for the support of the interrogatories that a man may see occasion to exhibit? To furnish an answer to this question, adapted to all the modifications of which the case is susceptible, is of itself a topic, the discussion of which might be made to fill any number of volumes. Meantime, on every occasion, the prudence of the draughtsman fails not to satisfy him, which is the safe side. From the omission of any portion of matter, which, in the eye of the judge ad hoc,† may chance to present itself as necessary to enter into the composition of the charging part, to enable it to support the interrogatories grounded on it, inconvenience to his client, in the shape of vexation and delay, as well as increased expense, may ensue: from the insertion of any quantity beyond that which, on a just view of the matter, might appear strictly necessary, no inconvenience in any degree approaching to equality can ensue: to the expense an addition, but that comparatively a very small one: to the account of delay and vexation, none. These things being duly considered, the conclusion is but natural. To give the reins to invention, and augment ad libitum the quantity of this species of poetry, will, so long as the above rule remains unrepealed, continue for ever the most natural and pleasant, as for ever it will continue to be the safest course.
OF THE CEREMONY OF AN OATH, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
An oath, what?
On a former occasion, mention was made of the three great sanctions—the political, the popular, and the religious,—as so many powers usually, and in a certain sense naturally, employed, in the character of securities for trustworthiness in testimony. But their efficacy in that character will depend, in no small degree, on the mode in which application is made of them to that use. Although not expressly invoked, nor so much as regarded, by the factitious arrangements of judicial procedure; they might, notwithstanding, be by no means devoid of efficacy. But, in point of fact and general usage, a particular instrument has been employed for the special purpose of pointing their force to this special use. This instrument is the solemnity, or say ceremony, called an oath.
Contemplated in themselves, and abstraction made of the application of this instrument, they might be considered, in a certain sense, as so many natural securities for testimonial trustworthiness: contemplated as applied to this special purpose by the intervention and assistance of this factitious instrument, their united force, so augmented and applied, may be considered as a sort of factitious or artificial security for trustworthiness, superadded to those natural securities.
But, in perhaps every civilized nation upon earth (unless the Chinese nation, the most numerous of all civilized nations, be an exception,) the ceremony distinguished by the name of an oath, or what in other languages is equivalent to that word, has been designed or understood to involve in it an address (or at least a reference) to a supreme being or beings—to invisible, supernatural, and omnipotent, or at least superior, agents: and the object of this address or reference has been to engage those superior powers, or to represent them as engaged, to inflict on the witness punishment, in some shape or other, at some time or other, in the event of his departing knowingly from the truth on the occasion of such his testimony.
Unfortunately in some respects, this same ceremony, with the address or reference included by it, has (besides the above use) been employed as an instrument to bind men to the fulfilment of miscellaneous promises of all sorts: promises having no connexion with testimony.
It has been applied promisenously, and without any discrimination or distinction so much as in name, to purposes of the most heterogeneous nature: to the securing of veracity and correctness on the part of the swearer, on judicial occasions, and thence to the prevention of deception and consequent misdecision on the part of the judge; and, besides that, to the securing the performance of other acts of all sorts.
At present, our view of the ceremony is confined to the case in which the purpose for which it is employed is that of securing the truth of testimony.
Inefficacy of an oath, as a security for the trustworthiness of testimony.
Consistently with the opinion so generally entertained by unreflecting prejudice, a place upon the list of securities for the trustworthiness of testimony, and thence against deception, and consequent misdecision and injustice, could not be refused to the ceremony of an oath. But, whether principle or experience be regarded, it will be found in the hands of justice an altogether useless instrument; in the hands of injustice, a deplorably serviceable one.
1. The supposition of its efficiency is absurd in principle. It ascribes to man a power over his maker: it places the Almighty in the station of a sheriff’s officer; it places him under the command of every justice of the peace. It supposes him to stand engaged, no matter how, but absolutely engaged to inflict—on every individual, by whom the ceremony, after having been performed, has been profaned,—a punishment (no matter what) which, but for the ceremony and the profanation, he would not have inflicted.
It supposes him thus prepared to inflict, at command, and at all times, a punishment, which, being at all times the same, at no time bears any proportion to the offence.
Take two offenders: the one a parricide, by whose false testimony his innocent father has been consigned to capital punishment; the other, by whose false testimony a reighbouring householder has been wrongfully convicted of the offence of laying rubbish on the highway. Take the offence in both cases on the mere footing of false testimony, one sees how unequal is the guilt,—and how widely different the punishment, which, consistently with the principle of religion, cannot but be expected at the hands of divine justice. Take it on the footing of perjury, the guilt is precisely the same in both cases: for in both cases the ceremony is the same; and in both cases it is alike violated and profaned.
In a certain sense, and with reference to a certain relative point of time, the consent of the beneficent power over which authority was supposed to be exercised by a subordinate power could hardly have been looked upon as wanting. It must have been considered as having been given, in general terms, at some anterior period: but,—being thus given, by an engagement, express or virtual, contracted by the superior being,—so long as the engagement thus entered upon was adhered to, the conduct of the superior being would not be less under the command of the inferior, than if the relation had from the beginning been reversed; and whatever promise the superior being might, by means of the oath, be called upon by the interior being to enforce,—to such promise, so long as the engagement was adhered to, it would not be in the power of the superior being to refuse his sanction.*
Will it be said, Nay: for, after and not withstanding this ceremony, God will govern himself by his own good pleasure, as he would have done without it: though the act which the oath-taker engaged himself thus to perform be unperformed, if that act be a criminal one, God will not punish him for the omission of it: commission, not omission, is what God punishes in crimes? Be it so: God will not punish the violation of an oath, when the act engaged for by it is the commission of a crime: God would not have punished Jephthah, had he omitted to put to death his unoffending daughter, notwithstanding his eventual promise so to do. Be it so: but, this being supposed, here is an end of the efficacy, the separate and independent efficacy, of an oath.
To the purpose in question, the authority given by the oath to the inferior being over the superior, must have been understood to be absolute, or it must have amounted to nothing. Were there any exceptions or limitations? If so, the imagination is set to work to look out for the terms and grounds of such exceptions and limitations: to inquire, for example, into the species and degree of mischief that in each instance might be expected to result from the violation of testimonial truth. But if this, then, be the ground of the supernatural punishment attached to the violation of the oath,—then the mere violation of the oath itself, independently of the mischief resulting from the falsehood, is not that ground; that is,—the effect produced by the oath, considered in and by itself, amounts to nothing.
In vain would it be to say, No; when God punishes for perjury, though he punishes for the profanation, that does not hinder but that he may punish for the false testimony in proportion to the mischievousness of the effects produced by it. Whatever reason there is for supposing him to punish for the false testimony, there is the same reason for supposing him to punish for that crime, whether the profanation be or be not coupled with it. Whatever punishment is inflicted by him on the score of the false testimony, is not inflicted by him on the score of the profanation: whatever is inflicted by him on the score of the profanation, is not inflicted by him on the score of the false testimony.
Either the ceremony causes punishment to be inflicted by the Deity, in cases where otherwise it would not have been inflicted; or it does not. In the former case, the same sort of authority is exercised by man over the Deity, as that which, in English law, is exercised over the judge by the legislator, or over the sheriff by the judge. In the latter case, the ceremony is a mere form, without any useful effect whatever.*
2. To justice it is not of any the smallest use. The only character in which it is in the nature of it to render—in which it has ever been supposed to render—service to justice, is that of a security against a man’s doing what (on the occasion in question) he has engaged not to do: viz. assert what he knows or believes to be false. But that in this character it is altogether without efficacy, is matter of daily and uncontroverted and uncontrovertible experience. On the part of the most exalted characters, it is seen every day yielding to the force of the weakest of all human motives.
Comparison being had with the motives of the two other classes—viz. the self-regarding, and the dissocial—the weakest upon the whole, in the great mass of mankind, are those which, belonging to the social class, may be referred to the head of sympathy: of which that sort of sympathy towards an individual, commonly characterized by the term humanity, is one.
But, of all descriptions of men (hangmen perhaps excepted, butchers certainly not excepted,) the lawyer, and, among the lawyers of all nations, the English lawyer, is he on whom,—judging from situation, from habitual exposure to the action of opposite interest, or from historical experience,—the principle of humanity may with reason be regarded as acting with the smallest degree of force. For, under the existing mode of remuneration (viz. by fees,) there is no other class of men whose prosperity rises and falls in so exact a proportion with those miseries of mankind which it is in their power to increase or decrease: nor any set of men, who have had if so effectually in their power, and so determinedly and inexorably in their will, to preserve those miseries from decrease. Unfortunately, this hostility (though undeniable) not being perceptible without such an insight into the system of procedure made by them, as scarce any but themselves had adequate inducements for obtaining, can never be rendered so easily perceptible, as, for the preservation of the rest of the community, it were so desirable that it should be.
Weak as, in the breast of an English lawyer, this weakest of all human motives cannot but be—and more especially in the breast of an English lawyer whose acknowledged experience has raised him to the situation of judge,—in that situation it is found habitually strong enough to overpower whatever regard, if any, is lodged in the same bosom, for the ceremony of an oath.
Many and notorious are the occasions on which, in violation of their oaths, a set of jurymen,—for the purpose of screening a criminal from a degree of punishment to which the legislature has declared its intention of devoting him,—ascribe to a mass of stolen property a value inferior in any proportion to that which, to the knowledge of everybody, is the real one; and this under the eyes and direction of a never-opposing, frequently applauding, or even advising judge: so that here we have in perpetual activity as many schools of perjury as there are courts of justice, having cognizance of these the most frequently committed sorts of crimes; schools in which the judge is master, the jurymen scholars, and the by-standers applauders and encouragers.
Not that there exists, perhaps, any other nation, in which a due regard to veracity on the occasion of testimony is more general. But, of this regard (be it more or less extensive,) the cause must be looked for in the influence of those other really operative securities, to which, in compliance with usage, this delusive one has been so undeservedly associated. What is not only possible, but probable, is, that, in the production of this regard, the religious principle, the fear of God, has no inconsiderable influence. What is certain, as being rendered so by the above experience (not to mention so many others as might be adduced,) is, that in the application thus supposed to be made of it, the religious principle has no influence.
Under the ceremony of an oath are included, it is to be observed, two very different ties,—the moral, and the religious. The one is capable of being made more or less binding upon all men; the other upon such only as are of a particular way of thinking. The same formulary, which undertakes to draw down upon a man the resentment of the Deity in case of contravention, does actually, in the same event, draw down, upon him (as experience proves) the resentment and contempt of mankind. The religious tie is that which stands forth, which makes all the show, which offers itself to view; but it is the moral tie that does by far the greatest part of the business. The influence of the former is partial—that of the latter is universal, nothing, therefore, could be a mark of greater weekness and imprudence than to cultivate the former only, and neglect the latter. As to the religious tie;—not only are there many on whom it has no hold at all—but in those on whom it has a hold as well as the moral, that of the moral is beyond comparison the strongest. Can anybody doubt, that among the English clergy (for example) believers are more abundant than unbelievers? Yet, on some occasions, oaths go with them for nothing.
What gives an oath the degree of efficacy it possesses, is, that in most points, and with most men, a declaration upon oath includes a declaration upon honour: the laws of honour enjoining as to those points the observance of an oath. The deference shown is paid in appearance to the religious ceremony: but in reality it is paid, even by the most pious religionists, much more to the moral engagement than to the religious.
It is, in truth, to the property which the ceremony of an oath possesses, of weakening the power of the only really efficacious securities, that what influence it has is confined. In the character of a security for veracity, take it by itself, it is powerless, and may plainly be seen to be so.
Applied to judicial testimony, if there be an appearance of its exercising a salutary influence, it is because this supposed power acts in conjunction with two real and efficient ones: the power of the political sanction, and the power of the moral or popular sanction. When, to preserve a man from mendacity,—in addition to the fear of supernatural punishment for the profanation of the ceremony, a man has the fear of fine, imprisonment, pillory, and so forth, on the one hand; the fear of infamy, the contempt and hatred of all that know him, on the other; it is no wonder that it should appear powerful. Strip it of these its accompaniments—deprive it of these its supports—its impotence appears immediately.
But of a case in which it is thus deprived of its supports,—and in which impotence complete impotence, is the consequence—the notorious consequence of such deprivation,—the bare word custom-house oaths is sufficient to present to view the complete exemplification.*
So long as two forces, pointing towards the same object, are followed to a certain degree by the effect they aim at, without its being apparent in what proportion they have repectively contributed to the common end; the credit of the result may be given to whichever of the two is most in favour. Watch them, and catch them acting separately, or in opposition: then is the time to see how far the credit given has been due. In certain cases, the tie of an oath is seen to have a powerful effect upon mankind. Where?—in what cases? Where the force of public opinion acts under its command: where it employs itself in insuring the veracity of parties or witnesses in courts of justice (especially in civil causes: or in criminal ones, where falsehood has not the plea of compassion or self-preservation to extenuate it.) In other cases, oaths are cobwebs, or at best, hairs. In what? In all in which the force of public opinion runs counter, or does but withhold its aid: in the case of jurymen’s oaths, in a variety of instances: in the case of a variety of other offices: in the case of university oaths: in the case of custom-house oaths: in the case of subscriptions,—which, considering the solemnity of the act, and the awfulness of the subject, may be placed on the same line with oaths.
If you wish to have powder of post taken for an efficacious medicine, try it with opium and antimony: if you wish to have it taken for what it is, try it by itself.
That in England, in the governing part of the public mind, there has always prevailed a sort of tacit sense of the inefficacy and inutility of this ceremony in the character of a security for testimonial veracity, is evidenced, not by any explicit verbal declarations indeed, but by tokens still more trustworthy—by long-continued practice.
On the occasion of the inquiries carried on by the House of Commons—whether by the whole House in the form of a committee, or by detached committees—no oath is administered (at least in general practice) to any persons examined in the character of witnesses. The ceremony is suffered to remain unperformed. Why? Because, none of the really efficient securities* being wanting, the want of this inefficient one is thought not worth supplying.
This branch of the legislature, not possessing, like the other, ordinary judicial powers, possesses not (it may be said) the power of exacting the performance of this ceremony. Be it so: but this, instead of a refutation of the proposition above advanced, is a confirmation of it. Is legislation of less importance than judicature? So far from it, the importance of an act of legislation is to that of an act of judicature, as the whole number of subjects in the empire is to 2. Is information concerning matters of fact less necessary to constitute a just ground for an act of legislation than for an act of judicature? Nor that neither.
Had the performance of this ceremony been really necessary, or been really thought necessary, to the forming of sufficient grounds for legislation, would the most efficient of the three branches of the supreme power have acquiesced thus long under the non-possession of it?
Conceive the courts of justice throughout the country, all of them abundantly provided with the power of administering oaths, all of them destitute of the power of applying punishment,—in what degree of vigour would have been the power of these courts? For what length of time, in that case, would society have held together?
If, in the character of a security for testimonial veracity, this ceremony were seriously looked upon as possessing any considerable value,—the occasions to which the ordinary judicial securities failed of applying, at the same time that the value at stake is equal to any pecuniary value that is ever at stake in judicature,—these are the occasions on which this supernatural security would (at least supposing any tolerable degree of providence or consistency on the part of the ruling powers) have been resorted to with particular care. I speak of the cases where money is to be received by individuals at any of the public offices instituted for that purpose—the Bank of England, the Navy and Army pay-offices, and so forth. For one pound paid by the appointment of a court of justice, fifty or a hundred pounds perhaps are paid in and by these non-judicial offices. In these pay-offices, there being no adverse party to contest the claim, all those ordinary securities, to the application of which the diligence of an adverse party is necessary (cross-examination, faculty of counter-evidence, and so forth,) are of course inapplicable. For the protection of so prodigious a mass of property, under the deficiency of ordinary securities, what does legislative providence? Does it call in, with peculiar anxiety and exclusive or superior confidence, this extraordinary security?—does it employ oath without punishment? On the contrary, it employs punishment without oath.*
Another proof of the inefficiency and inutility of the ceremony of an oath, in the character of a security for the truth of testimony. Of the modes of delivering evidence—of delivering what is equivalent to testimony,—that which is susceptible of having the ceremony attached to it, is but one. Of the modifications of mendacity (or, what is equivalent to it, the endeavour to gain credence for false facts,) that which is chargeable with the profanation of this ceremony,—that which is, in consequence, susceptible of the appellation of perjury,—mendacious deposition,—is but one. The others (as we have seen) are, forgery commonly so called (forgery in respect of written evidence;) forgery in respect of real evidence; fraudulent obtainment; and personation.† For the prevention of these modifications of malâ fide falsehood, punishment, simple punishment, has all along been trusted to: without any assistance from the ceremony of an oath, and apparently without any suspicion of deficiency on the score of the want of such assistance.
True it is, that in those several cases it may happen to the species of fraud which is not perjury, to be supported by deposition delivered to a court of justice; in which case, the punishment appointed for those several offences will receive, from the ceremony of an oath, whatever support it is in the power of that ceremony to give. But this is but a contingency; and that, comparatively speaking, but seldom exemplified: the case in which the punishment annexed to these offences respectively derives no support from the oath, is by far the most common case.
To the persuasion thus indicated on the part of the governing class, add the like persuasion as indicated on the part of all persons without distinction, in the character of suitors and their law advisers.
Supposing a man wrongfully deprived of the possession of any moveable thing belonging to him; and supposing him to demand restitution of it by the only species of action by which specific restitution is so much as professed to be given; in that case, if the defendant,—performing the ceremony of an oath in conjunction with twelve other men speaking only to his character, and not so much as professing to know anything about the matter—will take upon him to say, in general terms, that the plaintiff’s demand is not a just one,—the plaintiff therefore loses the cause: neither can any question be put to the defendant for the purpose of bringing down from generals to particulars such his self-regarding and self-serving testimony; nor are any witnesses in support of the plaintiff’s demand permitted to be examined. The man who proffered this curious kind of evidence, was said to wage his law.
By what exertion of fraud or imbecility, any species of demand (or action, as it is called) was thus paralyzed, or why one species more than another, are questions which, at this time of day, must be left to the industry of antiquarians. In point of fact, so it is, that to a man who claims the thing itself, this species of defence is still liable to be opposed; while, to the man who, instead of the thing itself, claims money in the name of satisfaction, this same sort of defence is not capable of being opposed. What has been the consequence? That the action of detinue—the only action at common law by which a man can claim the thing itself—has for ages been abandoned altogether: the action called assumpsit—the action by which a man, instead of the thing, demands money under the name of damages,—is the action employed in lieu of it. Men—all men—have all this while, under the guidance of their law advisers, chosen to give up everything moveable they had been accustomed to call their own, rather than trust to this supernatural security, to the exclusion of the other natural ones.
As to judges (I speak of English judges, and more particularly of the highest stages in that office,) the contempt universally entertained by them for this ceremony stands evidenced by every day’s practice.
No jury is ever impannelled, but their entrance into their ephemeral office is prefaced by what is called their oath. Each man bearing his part in this ceremony, promises that the verdict in which he joins shall be according to the evidence, i. e. according to his own conception of the probative force of the evidence. What is the consequence? That, so far as in relation to this probative force (i. e. as to that one of the two sides of the cause, to which the greatest quantity of probative force applies) there is any ultimate difference of opinion, some proportion out of the twelve, any number from one to eleven inclusive, has committed perjury. Lest the consummation of this perjury should be delayed for an inconvenient length of time, a species of torture has, by the care of those judges by whom the foundation of this species of judicature was laid, been provided for the purpose: a species of torture, composed of hunger, cold, and darkness. Hence judicature by jury is a sort of game of brag, in which the stake is won by the boldest and the most obstinate: they or he remain unperjured—all the others perjured. Of all the men of law that ever sat upon the official bench, by what one could this carefully-manufactured and perpetually-exemplified perjury have been unknown?—by what one of them was it ever spoken of as matter of regret?
On the contrary, Englishmen of all classes——non-lawyers and lawyers—have been at all times vying with one another in their admiration, their blind and indiscriminating admiration, of an institution into the basis of which a necessary course of perjury had been wrought: and, at the same time (as if to crown the inconsistency) the oath, the sacred oath, has ever been sounded in men’s ears; as if in that consisted the principal, if not sole, security, for whatever regard for justice is looked for at their hands.
Nor yet is it to the inevitable perjury, the perjury without which the business could not go on,—nor yet is it to the complacency with which this really accidental accompaniment is regarded,—that the proofs of the contempt entertained for the ceremony by all classes, judges and jurymen as well as suitors, lawyers as well as non-lawyers, is confined. Business would not the less go on, although effects to which jurymen are called upon to set a value (the true value) upon their oaths, were accordingly to be appreciated, appreciated without exception, at their true value: although a purse of money, with money of the real value of three pounds, were appreciated at three pounds, instead of being appreciated at nine and thirty shillings. Yet what sessions ever passes over at the Old Bailey, without giving birth to instances, more than one, in which effects, known by all mankind to be worth three pounds, or ever so much more, are valued at less than forty shillings?* Valued, thus under-valued, and for what purpose? For what but to set their power above that of the law; and, in the very teeth of the legislature, consign to a less degree of punishment, some criminal, for whom a greater degree of punishment has been appointed by parliament? When a judge is really displeased with a verdict, his practice and his duty is to send them back to their box, or their room, with a recommendation to reconsider it. What instance was ever known of a judge sending back a jury with a recommendation to exonerate their consciences of a load of perjury thus incurred? On the contrary,—whether by judges, by lawyers of other classes, or by non-lawyers,—in how many instances has such perjury been ever spoken of with any other note of observation, than what has been expressive of approbation and applause? Mercy—humanity—such are the eulogistic names bestowed, regularly bestowed, upon the profanation of this ceremony: as often as the object of the profanation has been to usurp a power lodged by the constitution in other hands, and put the most marked contempt that can be put by a subordinate authority upon superior law.
Blessed effect of this ceremony and its vaunted sanctity! Judges designating by the self-same name the practice they punish, and the practice they encourage! Punishing at one time—promoting, enforcing, at another—the same thing, or at least what they bid men look upon as the same thing: for, to cause two things to be looked upon as the same thing, what shorter or more effectual course can a man take, than to call them by the same name?
In the well-known epigram of Prior, the story of the fat man in the crowd, complaining, in terms of impatience, of the inconvenience of which in his own person he was in so great a degree the cause, presents, as it flows from the pen of the poet, no other sentiments than those sentiments of ridicule and pleasantry which it was intended to excite.
Sentiments of a somewhat different complexion may perhaps be excited, in the instance of the mischief now upon the carpet—that of perjury—when, in the persons of the most constant complainers of it, and indefatigable declaimers against it, we find the chief and unceasing encouragers, and, as far as encouragement goes, authors: encouragers in every mode and form in which encouragement can be administered,—example, precept, commendation, reward, punishment: punishment attached, not, as might have been supposed, to the incurring of the guilt, but to the abstaining or omitting to incur it;—the punishment here spoken of being not that which is administered in ceremony, half a dozen times perhaps in the year, with the professed view of curbing it, but that which is administered without ceremony every day in the year, not merely in the design, but with the indisputable effect, not merely of promoting, but of securing, the perpetration of it.*
Mischievousness of Oaths.
Inefficacious as is the ceremony of an oath to all good purposes, it is by no means inefficacious to bad ones.
1. Under the name of the mendacity-licence will be hereafter treated of, at full length, one of the principal among the devices by which, under the fee-gathering system, judges—the authors of unwritten law in both its branches, the main or substantive branch, and the adjective branch, or system of procedure—have, with so disastrous a success, pursued the ends—the real ends—under the fee-gathering system the only ends—of judicature. It is by the licence granted to mendacity on both sides of the cause, that judges have given encouragement and birth to their best customers, the malâ fide suitors. It is by means of the vain and pernicious ceremony of an oath, that they have been enabled to grant and vend the mendacity-licence. The punishment due to testimonial mendacity has been artfully attached, not to testimonial mendacity, but to perjury: not to testimonial mendacity in all cases without distinction, but to testimonial mendacity in such cases, and such cases alone, in which mendacity has by their authority been converted into perjury: which conversion cannot be effected without the previous ceremony of an oath; of which ceremony they have, at pleasure, caused, or forborne to cause, the performance: and, when the religious ceremony has been withheld, they have not only exempted the offence from punishment, but, by exempting it from punishment, they have exempted it from infamy also.
2. The ceremony having acquired a technical denomination, that of an oath—a substantive which is understood to have for its quasi-conjugate the verb to swear—religionists of different descriptions (in particular those called Quakers) have, by a principle of religion, been prevented from taking a part in it. The consequence has been a licence, inter alia, to commit, to the prejudice as well of Quakers as of all other persons, every imaginable crime, of which, in whatsoever number. Quakers, and they alone, shall have been percipient witnesses.
From the class of wrongs called civil, the licence has, by an act of the legislature, in case of a Quaker witness, been withdrawn; viz. by substituting to the words oath, and swear, the words affirmation, and solemnly affirm: but to the encouragement of the class of wrongs called criminal (to which class belong those which are of the deepest die) the licence continues to operate with unabated force and efficacy.*
3. The last which shall be here mentioned of the wounds inflicted upon justice by this disastrous ceremony, is one, of which, on the present occasion, a short hint is all that can be afforded.
Of the mischief done to justice by the door so inconsistently shut against evidence from the most satisfactory source, viz. confessional evidence, if presented in the best shape,—while, to evidence from the same source, on condition of its being presented in some less trustworthy shape, the same door is left wide open,—mention will be made in the sequel.* To an exclusion thus prejudicial to justice, it seems as if the ceremony of an oath, with the prejudices that cluster round it, had been in some degree necessary. That sacred regard for the ceremony of an oath,—that awful sense which, if it ever was alive, is seen to be so effectually dead, in judges and jurymen—has been supposed to be essentially and tremblingly alive in robbers, murderers, and incendiaries. If (what is not endurable) a man of any of these descriptions were, on his trial, to be subjected to examination, as well as his accomplice, on whose testimony he is about to be convicted, the oath so regularly tendered to the one must not be tendered to the other, for it would be a snare laid to his conscience: and thus it is, that, not being to be interrogated upon oath, he is not to be interrogated at all.
Note, that to one who is really innocent, neither oath nor question can be a snare. It is only on the supposition of his being the robber, the murderer, or the incendiary, which he is supposed to be, that his conscience can be afflicted with the qualms supposed to be infused into it by that ceremony, which is trampled upon even to ostentation by jurymen and judges.
In compelling a man, in the character of an extraneous witness, to declare what he knows touching a transaction in which he has no pecuniary, or other reputedly considerable, interest,—and, on the occasion of such a declaration to such an effect, to join in the ceremony of an oath,—the man of law, the English lawyer for example, finds not the smallest difficulty. In compelling a man, in the character of a party—in the character of a defendant—always with the same ceremony, to make a declaration, in consequence of which (if true) he may find himself divested of the possession of an estate to any magnitude, the property of which, till the question had thus been put to him, he had conceived no apprehension of not carrying with him into his grave—the man of law, and again the English lawyer, finds as little difficulty.
But now comes another case: the defendant is under prosecution for a crime, for which, if convicted, he will be punished with death. Now then, shall a man thus circumstanced be put to his oath? Forbid it, religion! forbid it, humanity! What! subject him to a temptation, under which it is not possible he should not sink! force him, and at such a time, to commit perjury! His body is to be sent to the worms: and, before it has time to reach them, is his soul to be consigned into the hands of the devil—of the devil, at whose instigation the crime, if committed, was committed,—his soul to be consigned over to the devil, to be plunged immediately into hell!
Whence comes all this tenderness, this delicacy, this difficulty? It arises principally, if not entirely, out of the oath. Take the man out of the court of justice—out of that place, where everything that passes, passes in the face of day; where,—either by threats, promises, or other undue influence—by threats of severity, by promises of mercy or positive reward—the idea of seducing his testimony from the line of truth is hopeless and without example;—take him into a forest, or a dungeon—into a recess of any kind, into which no third eye can penetrate; in this case, whatever he may have been made to say, though to his own indubitable condemnation, is unexceptionable evidence. Why? Because, in that case, there is no oath, no perjury: if his body goes to the worms, and his soul to the place of endless torment, it is for whatever he has done; it is not for what he has thus said—it is not for the perjury.
But the mischief, and the difficulty, the inconsistency, end not here. Not only when life may be saved by perjury, may not the temptation be too great? May it not also be too great, when liberty, reputation, property, the great bulk of a large property, may at this price be saved? and so down to a fine of five shillings? Would not this, too, be laying a snare for men’s consciences? Was not this the cruelty practised by the wicked judges of the star-chamber? Could it be proved that a judge of the star-chamber ever folded a piece of paper in three folds—would not the wretch who should presume, at this time of day, to fold a piece of paper in three folds, deserve to be held in execration by all posterity?
Thus it is, that, in the case of a defendant, you must not have the security, the supposed security, that an oath would give: and because you must not have the sham, the hollow security that this ceremony could give, you must not in this same case have the real, the substantial security that punishment would give—punishment applied to mendacity in this, as in any other case.†
It was simply in the character of a security for veracity, and in respect of its inefficiency and inaptitude in that character, that the ceremony of an oath fell to be considered here. Its efficiency, its unhappy efficiency, in a very different character, that of an instrument of tyranny and improbity, by serving to bind men to the performance of engagements fraught with the most pernicious consequences to themselves and others, belongs not directly to the present purpose. The purposes to which it has thus been applied, belong not the less to the list of the objections to the use of it: but, not being directly applicable to the purpose in hand, to mention them pro memoriâ may, in this place, be sufficient.
Suppose but an atom of punishment attached to the profanation on its own account merely—on its own account merely, and, if that be the case, inseparably attached to it; so far as that supposition extends, so far the institution of an oath is mischievous, and purely mischievous. It gives to man, weak, frail, sinful, wicked man—it gives to man pro tanto (so he be but clothed in temporal authority) the command, the absolute command, over a proportionable part of God’s power—applicable to the worst, as easily as to the best of purposes. It makes man the master, God his servant: and not his servant only, but his slave—his slave bound to a degree of unerring obedience such as no human master ever received, or could have received, from any slave.
Attach to the ceremony, and thence to the profanation of it, but the smallest particle of punishment, and that particle inseparable; then has every man a sure recipe for binding himself, and any such other man as the influence of a moment can put into his power for this purpose,—for binding them, with a force proportioned to the quantum of this particle, to the commission of all imaginable crimes: then has man, by grant from God himself, a power over God, applicable at any time to the purpose of converting God himself into an accomplice of all those crimes.
Let this be the supposition built upon, then would Jephthah, by the amount of this inseparable particle,—then would Jephthah, had he spared his daughter, have been punished by God’s power—punished, not for the taking of the rash vow, but for the breaking of it.
Then would the assassin of Henry IV. (punished, or not punished for making the attempt) have been punished, and by divine vengeance, had he refrained from making it.
Assassination,—assassination through motives of piety, is the natural,—in case of consistency the necessary, and as history testifies, the too frequent,—fruit of the popular persuasion relative to the nature and effect of oaths.
It was in the earliest stages of society—in those stages at which the powers of the human understanding were at the weakest—that this, together with so many other articles in the list of supernatural securities, or substitutes for testimonial veracity, took their rise. Ordeals, in all their forms: trials by battle: trials without evidence (understand human evidence:) trials by supernatural, to the exclusion of human, evidence: trials by evidence secured against mendacity by supernatural means—by the ceremony of an oath.
As the powers of the human understanding gain strength, invigorated by nourishment and exercise,—the natural securities rise in value, the supernatural, understood to be what they are, drop, one after another, off the stage. First went ordeal: then went duel: after that, went, under the name of the wager of law, the ceremony of an oath in its pure state, unpropped by that support which this inefficient security receives at present from those efficient ones which are still clogged with it: by and bye, its rottenness standing confessed, it will perish off the human stage: and this last of the train of supernatural powers, ultima cælicolâm, will be gathered, with Astrea, into its native skies.
The lights, which at that time of day were sought for in vain from supernatural interference, are now collected and applied, by a watchful attention to the probative force of circumstantial evidence, and a skilful application of the scrutinizing force of cross-examination.
How to adapt the ceremony, if employed, to its purposes.
Objectionable as the ceremony of an oath, considered in the light of a security for the trustworthiness of testimony, has appeared to us to be; still, if it is to be applied to that purpose, it cannot be a matter of indifference to know in what way the little efficiency which it possesses may be made as great as possible.
An oath acts in three ways: it carries with it the operation of three different sanctions: of the religious sanction, from its nature and essence; of the legal sanction, whenever punishment has been attached to the profanation of the ceremony, as such; of the moral or popular sanction, because that which points the force of the legal sanction upon any object, generally points at the same time the force of the moral sanction, and brings to bear the punishment issuing from that source, also.
Suitable to the nature of the three different sanctions concerned, will be the arrangements calculated to raise to its maximum the salutary agency of the ceremony, as applied to the purpose in hand. The practical utility of introducing into practice this or that particular arrangement on the occasion in question, will depend so much upon the state of public opinion in each respective country—upon the prejudices, and humours, and caprices, of the people and their rulers,—that the hints which follow on the subject cannot be adapted to any other purpose than that of illustration. For that purpose, a concise (and as it were) short-hand mention of them will be sufficient, without attempting to enter into details, distinctions, modifications, or justifications.
I. Arrangements for adapting the ceremony of the oath for the purpose of pointing the force of the religious sanction:—
1. Form of words, appropriate and impressive.*
2. Different form of words, rising one above another in solemnity and impressiveness; partly according to the importance of the occasion, as measured by the mischievousness of the offence, according to the modifications above exhibited; partly according to the apprehension of falsehood, excited by the individual circumstances of the case in the bosom of the judge.†
3. On occasions of superior importance, attitudes and gestures directed to the same end—litting up the hands and eyes to heaven,‡ &c.
4. Appropriate graphical exhibitions, constituting in this view a regular part of the furniture of every court of justice. Copy, in painting or engraving, of the death of Ananias and Sapphira (capitally punished on the spot by divine justice, for mendacious testimony of the self-investitive or self-exoncrotive kind,) a subject treated by Raphael in one of his cartoons. Over the picture or print, explanations and applications, in characters legible to all spectators.
5. Other appropriate exhortations and observations taken from scripture.
6. The oath administered, not by a lay-officer of the court, but by a minister of the established religion.∥ On extraordinary occasions (the witness professing a religion other than the established)—power to the judge to call in the assistance of a minister of the witness’s own religion, for the purpose. On occasions of extraordinary importance, prayer by the minister, short but appropriate.
II. Arrangements for adapting the ceremony, on extraordinary occasions, to the purpose of pointing the force of the political sanction:—
1. In front of the station of the witness, as he stands up to deliver his evidence,—a table, in characters large enough to be read from every part of the court, stating the punishment for perjury, according to its various gradations. While the witness is pronouncing the oath, an officer of the court, with a wand, points to the particular modification of punishment attached to the particular modification of perjury, which on the occasion in question, would, in case of mendacity, be incurred.*
2. On extraordinary occasions (for example, when the temptation or the proneness to mendacity is apprehended to be particularly great, and, at the same time, the cause important,) a curtain draws up, and discovers a graphical exhibition, representing a convict suffering the characteristic punishment for perjury, whatsoever it be. The officer, with his wand, directs the attention of the witness to it, as above.
III. Arrangements for adapting the ceremony to the purpose of pointing the force of the moral sanction:—
1. In the wording of the oath, express and distinct reference made to the punishment from this source, as well as from the religious. In the event of mendacity, the witness recognises himself as about to incur, and as meriting to incur, the contempt, or (according to the nature of the case) the abhorrence of all good men.†
2. In case of suspicion of falsehood (whether arising from extraneous contradiction, from self-contradiction, from inconsistency, or improbability,) but without ground sufficient for prosecution; the publication of this particular part of the evidence in the newspapers, authorized, encouraged, or ordered, by the judge: warning given of this arrangement to the witness at the time. Concerning the publicity to be given to judicial examination in general, see a subsequent chapter of this Book.‡
3. To this head may likewise be referred the several arrangements exhibited under the two former heads. Whatever discourses and exhibitions are addressed in this way to the witness, make their way at the same time to the public at large, and through that channel (circuitous as it is) are reverberated upon him with augmented force.
Preach to the eye, if you would preach with efficacy. By that organ, through the medium of the imagination, the judgment of the bulk of mankind may be led and moulded almost at pleasure. As puppets in the hand of the showman, so would men be in the hand of the legislator, who, to the science proper to his function, should add a well-informed attention to stage effect. Unhappily, among the abundantly diversified shapes in which severity has displayed itself in penal exhibitions, scarce the faintest trace of ingenuity is anywhere to be found. No marks of any progress made in the study of human nature—no sign of any skill, or so much as thought, displayed in the adaptation of means to ends. Ends are scarce so much as looked at. Blind antipathy is the spur—blind practice the only guide. To do (though it be to fail) as others have done before him, is each man’s only aim, is each man’s highest praise.
Next (if not superior) in importance, to the study of augmenting the efficacy of the ceremony by these corroborative circumstances and accompaniments, is the attention not to spend its force upon the air—not to consume it upon inadequate objects—nor to debilitate it and bring it into contempt, by employing it upon occasions in which its utter inefficacy is demonstrated by experience: not to persevere in employing it in the character of a security for veracity, in cases where mendacity is the constant and notorious result.
The following are such further rules, as may with advantage be observed in the wording and administering of the oath:—
Rule 1. Let the words of the oath be pronounced by the witness himself: not simply heard, and tacitly assented to, as they issue from the mouth of a third person—such as the person by whom the oath is said to be administered.
Reasons: 1. A ceremony—a discourse—will naturally appear to a man to be the more unequivocally and indisputably his own, the more active the part is which he takes in it. Whatever issues out of a man’s own mouth, will naturally appear to him to be more completely his own, than what he silently hears while spoken by another. Silence, says the proverb, gives consent: True; but not so clear and unequivocal a consent as is given by direct speech. Where the inclination is reluctant, nothing more inventive than the imagination—nothing more flimsy than the subterfuges which it will make or catch at. I did not hear—I did not attend—I did not comprehend: no excuses too weak for a man to pass upon himself, howsoever it be with others. What you yourself pronounced, you cannot but have heard: what you yourself pronounced, you cannot but have attended to: what you yourself pronounced, you cannot but have comprehended; it being that sort of proposition, which a man cannot fail of comprehending, so he have but given it that measure of attention, without which he could not have pronounced it. Such are the bars which the voice of conscience, or of any monitor from without, has to oppose to the propensity to evasion in the case of audible enunciation, but not in the case of silent auditorship.
2. Any denunciation of infamy, though it be but eventual and hypothetical, is reflected upon a man in a more forcible manner, when the mouth from which it is known to have issued is his own. “Thy own mouth condemneth thee, not I.”* “Out of thy own mouth will I judge thee.”†
Rule 2. In the words which the witness pronounces, the verbs and pronouns should be in the first person, I swear, I declare, and so forth.
Reason: This feature in the oath is necessary to give complete fulfilment to the intention expressed in the rule last preceding; to raise to its maximum the force of the inflicted infamy; to raise to its maximum the force of the impression made by the oath upon the mind of him who takes it.
This form, though not only the most apposite, but the most natural, is not however so necessary as to render the opposite form without example. The form, in which the judgment eventually passed upon the conduct of the witness, and pronounced by the witness, is expressed, may be that of a judgment passed upon it, not by himself, but by others, viz. the authors of the disposition of law, by which the oath is instituted.
Rule 3. The form should be as concise as is consistent with the preceding rules.
Reasons: 1. In proportion as a discourse is drawn into length, especially if without material addition to the ideas conveyed by it, the impression made by it is weakened.
2. Where witnesses are numerous (especially where the time allowed for the examination is limited and scanty,) the time consumed in this way may be a material object, in respect of vexation, expense and delay; and at any rate, in respect of the time consumed on the part of the judge.
Oaths, how applied as a security for the trustworthiness of testimony, under past and present systems of law.
Under the original Roman law, the ceremony of an oath (as already mentioned‡ ) does not appear to have been employed in general on the occasion, nor consequently for the purpose of adding to the securities for the truth of testimony. Not extending in general to what are commonly called assertory declarations, it must have been for the most part confined to those occasions on which it has been distinguished by the appellation of a promissory oath.
At one period or other, on here and there an occasion, the ceremony does indeed appear to have been employed for this purpose. But if the intention was really sincere, so shallow was the conception, so clumsy the manipulation, that the interests of truth seem upon the whole rather to have suffered by it, than to have been served.
An oath, in so far as a breach of the engagement is exposed to detection, operates, it is true, as a check to mendacity. But, if the breach of it is entirely covered from detection, it operates,—in here and there a mind of more than common delicacy, as a check to mendacity,—but on minds of vulgar mould, rather as an encouragement. By presenting a colour of efficiency to a check which in reality amounts to nothing, it furnishes a certificate of veracity to any liar who thinks fit to apply it to that use. It gives him credit for virtue which he does not possess; secures to him all the profit of mendacity without any of the risk; and enables him to combine the benefits of mendacity with the reputation of the opposite virtue. When, by the tie of so awful a sanction, a man is bound to the observance of the laws of truth,—can you, without a violation of the law of charity, refuse to take him at his word? Such, on these occasions, is the joint cry of the hypocrite and the dupe.
In case of falsity, the testimony given by a man is the more thoroughly exposed to detection,—in the first place, the more particular and circumstantial it is at the first delivery,—in the next place, the more completely it is subjected to the test of cross-examination. Remove this test, you already grant to mendacity a sort of half-licence. But if, instead of calling upon a man for particulars, you admit of a declaration in general terms,—nothing is more easy, more natural, or more common, than, by the generality of those terms, to render the licence complete.
Such, at any rate, is the effect. More than one cause (speaking of psychological causes) may, any of them, have been adequate to the production of it. In some instances, fraud: the futility of the remedy being understood by the hand that administered it. In other instances, honest imbecility: the prescriber being himself a believer in the efficacy of his own quack medicine.
In what, if in any, cases, the general declaration has been substituted to particular statement, such as would naturally be extracted by examination,—in what cases, if in any, superadded,—does not appear clearly, on the face of such reports as are before me. What seems probable is, that the reporter himself had no clear conception of the difference: what seems equally probable is, that the judges, whose practice he has in view, had not themselves any clear conception of the difference. Sometimes the one course may have been pursued, sometimes the other, according to the occasion, and the object (public or private, good or bad) that happened to have been principally in view. Substitution would be suggested by indolence or favour—addition, by despair and lassitude. In the latter case, the judge stands in the predicament of the miser Harpagon, in Molière: after searching till he was tired, and finding nothing on the supposed thief—“Rends moi,” says he, “sans to fouiller, ce que tu m’as volé.”
Among the Romanists, the following present themselves as the principal instances in which this sort of mock security appears to have been employed:—
1. The juramentum expurgatorium. The sort of case here is a criminal one. The process of examination must have been already undergone; for to employ it, was the constant practice in these cases. The evidence thus extracted was found insufficient: it was so, even with the addition of the extraneous evidence. Had an oath been administered before the examination? then to what use repeat it afterwards? Had no oath been administered at that stage? then why discard it at a time at which (if at any) it might have been useful, reserving it for a time at which all chance of its being useful was at an end?
2. The juramentum suppletorium. The case is here a non-penal one. The plaintiff, for example, demands a debt. The extraneous evidence he produces is deemed insufficient. To supply the deficiency, he is admitted as witness in his own behalf: but on what terms? Not on the terms of submitting to examination, like an extraneous witness,—but on the terms of repeating, in general words, what in general words he had said before. Of so untrustworthy a sort is the testimony, that, so long as any other is to be had, it is not to be received at all: this same untrustworthy evidence, when it is received, is to be received free from those essential checks, which, in the case of the most trustworthy witnesses are deemed indispensable.
3. The oath of calumny: placed by Bishop Halifax at the head of those arrangements the object of which was to restrain what he calls temerity (he should have said mala fides) on the part of litigants. I believe my cause is a good one,—says the suitor, plaintiff or defendant. To a suitor by whom these words have been pronounced, what judge can be so uncharitable as to impute any but the purest wishes and the purest motives? By these words, as surely as by a talisman, everything that savours of temerity is to be restrained. What grounds have you for looking upon your cause to be a good one? A question of that sort would have been too dangerous: a customer who could not answer it, might every now and then be driven from the shop, the officina justitiæ, as Blackstone so truly calls it.
On the vivâ voce examination of a witness, the form observed in English procedure, on the occasion of a trial before a jury, is as follows:—An officer of the court, having put into the hand of the witness a book containing the Christian scriptures (viz. that part which is purely Christian, the New Testament—or, in case of a Jew, that part of the Christian scriptures which is recognized in common by Jews and Christians—the Old Testament)—addresses himself to the witness, and says to him as follows:—The evidence you shall give on the issue joined between our sovereign lord the king and the defendant—or, the prisoner at the bar—or, the parties—shall be the truth, the whole truth, and nothing but the truth—so help you God. The witness thereupon, either of his own accord or at the suggestion of the officer, puts his lips to the book: and then, and not till then, the oath is considered as having been taken.
As to the description of the testimonial duty, it seems happily enough imagined:—comprehensiveness, conciseness, and emphaticalness, are qualities, the praise of which seems to be justly merited by it. Of the three members of the clause—“the truth,” “the whole truth,” “and nothing but the truth”—the sense might perhaps be conveyed by the two last, without the first. But so useful is the first for filling the period, and strengthening the impression made upon the mind through the medium of the ear, that, supposing it omitted, the force of the phrase can scarcely but appear to have sustained a considerable loss. Instead of being considered as an additament purely superfluous, the general expression the truth may be considered as containing in itself the whole of the sense: in which case, the two other members may be considered as added by way of exposition; lest, for want of sufficient particularity, either of the ideas (in particular that of integrality) should fail of presenting itself to notice.
In other respects, if the above rules be considered as affording a proper test, the above exhibited formulary seems ill qualified to abide it. So far as enunciation goes, the witness is purely passive: he is a hearer only, not a speaker, though in a concern so much his own. Not speaking at all, the rule which requires him to speak in the first person is unobserved of course. The kissing of the book is an exhibition altogether vague and inapposite. If it be understood to convey an expression of respect, there is nothing to direct it to any object beyond the book: if it contain an expression of respect for the book, and the objects from which it derives its title to respect, it bears not any express assurance of the veracity of the statement about to be delivered.
Considered as an instrument for calling in the force of the religious sanction for the purpose of binding the witness to the observance of his duty, the phrase So help you God seems but very feeble and inadequate. It contains an allusion to God’s favour, but scarce the faintest allusion to God’s wrath. It brings good alone to view, not evil—reward, not punishment. It holds up to the witness the prospect of a sort of special grace, an extraordinary and unknown reward, to be hoped for by him in the one event; but is silent as to reprobation and punishment, in the other, The worst that is represented as about to befal him in any event—in the event of his defiling himself with the crime of perjury,—is the failure of this special grace: a sort of acquisition, the idea of which not having been ever stamped upon his mind, the apprehension of missing it is not of the number of those by which sensible and serious alarms are wont to be excited. What salutary terror can be expected to be excited in the mind by the faint and altogether oblique intimation of a possible loss, of which neither the value, nor so much as the nature, has in any perceptible degree been ever present to a man’s mind? If a working man (and of such is the bulk of the species) has a burthen to raise, and wants help to lift it, whom has he been used to look to?—not God, but his next neighbour.
In the Danish law, no great value appears to be set upon the judge’s time. In causes of a certain degree of importance, each witness, before or after he takes the oath, is to hear what is called an “exposition” of it, extending to the length of three quarto pages; an expense of time the more wanton, inasmuch as this dissertation is to be kept constantly exposed to view, in every court of justice.*
According to the Danish code, a witness swears with his fingers—the thumb and the two next being held up together, one for each person of the Trinity.†
Of this sort of theology, observe the moral consequence. If murder or incendiarism (for example) be committed in presence of Arians or Socinians in any number, and of no others (not to speak of Jews,) either the crime is to go unpunished, or the witness is to be duly plagued in form of law, till he submit to swear against his conscience.
In case of perjury, besides forfeiture of all forfeitable property, the witness is to lose two fingers,—two of the three offending fingers, it seems natural to suppose,—and thus far analogy seems to have been consulted. Pity an equal regard had not been shown to economy, not to speak of humanity and common sense. The convict, if not already a pauper, was to be converted into one by the forfeiture; and, by the same sentence, his means of livelihood were to be cut of.
As to the punishment of the religious sanction, if any particulars are desired concerning it, reference may be made to the Hindoo code, and to the Danish code.
In respect of quality, the Hindoo code does not afford us much information: in respect of quantity, it is precise to admiration. The misfortune is, every quantity is relative: and what the correlative is, is not explained.
If the subject be a cow (whether the cause be penal of non-penal is not specified,) the guilt of perjury is equal to that of the murder of exactly ten persons: if a horse, guilt equal to one hundred murders: if a man, one thousand murders: if a piece of gold, the number of murdered persons on the other side of the equation is rather difficult to reckon; it is equal to all the men that ever were born, plus all that ever will be.
“If the affair be concerning land,” the ratio of this lot of guilt to the preceding one seems rather difficult to measure: it is that of the murder of all the creatures of all sorts living in the world; but at what period is not specified.
Another difficulty turns upon the distinction between an animal having hair upon its tail, and an animal having none: in the former case (kine and horses excepted as above,) the number of murders, to the guilt of which that of the perjury is equal, is exactly five: when the tail has no hair upon it, the degree of guilt is left to be discovered by the faint light of human reason.
For exculpative perjury (at least for self-exculpative,) when the punishment is capital, there is an express licence—a few cases of particular atrocity excepted, such as the cases of murdering a cow, or drinking wine:* and, for the encouragement of marriage, three or four falsehoods may be told, to promote so laudable an end. At the same time, so much better a thing is gallantry without marriage, than marriage itself, that in the former case the quantity of “falsehood” pronounced “allowable” is unlimited.†
In the Danish code, the punishment of the religious sanction says nothing of proportions, and seems to have but one and the same lot for all offences, whatever be the unhappy occasion,—men, land, horses, gold, animals without hair upon their tails, or cows. In respect of quality, it furnishes considerable information. Besides being excluded for ever from the company of the inhabitants of heaven, with the three persons of the Trinity at their head—a privilege the loss of which might, by want of the experienced enjoyment, have been rendered the more tolerable,—besides this, together with a variety of other negative punishments of the same complexion,—the perjurer’s body and soul are to stand devoted to Satan and his crew (who, for the occasion, are loaded with sad epithets,) and with them in the depth of Erebus, are to be surrounded and tossed about in everlasting and unextinguishable fire, always consuming, never liberated. Another punishment, which in case of perjury the witness is to be understood to wish for, is one that is to be borne, not by himself immediately, but by his cattle. They are not to be roasted, like their master, in Erebus, but to pine away upon earth, and be emaciated, till they have lost their value. Such, it is explained, is to be his wish: but as to the cattle, whether the wish is to be accomplished, is not stated.
By the Swedish law, if the letter of it is to be depended upon,—be the cause what it may—in a cause of property, be the value in dispute what it may,—every man is at liberty to perjure himself for forty dollars: a sum considerably less than the ten pounds, which, in English equity law, is deemed so very a trifle as not to be worth restoring to a man who is unjustly deprived of it. One would think that all the absurdity in human nature had crowded itself into the department of science in which the demand for intelligence is the most urgent.
In the same code, the oath, though little more than a tenth of the length of the Danish explication, is still too long for ordinary occasions. It occupies a dozen quarto lines.‡ No written exposition here, as, on extraordinary occasions, in the Danish code: but, whatever be the occasion, the witness is condemned to hear, and the judge to pronounce, on the subject of it, an extempore admonition, which may be of any length. Much scope for eloquence is not indeed afforded to the sermon, where the text is no more than forty dollars. The pain of being intestabilis (whatever be meant by intestabilis) will not make any very efficient addition to the dollars: if the privilege from which a man is debarred be the making of a will, the terror will not be very great where he has nothing to leave, or is satisfied with the will that the law has made for him: if it be that of serving again as a witness, it is so much trouble saved, the only inconvenience being to a possible somebody else, whom he does not care about: unless the case be his own, and then the exclusion may cost him his life.
Should an oath, if employed in other cases, be employed or not on the examination of a defendant in penali?
When a defendant, in a cause of a penal nature, is examined—in other words, where the testimony extracted or received is of the self-regarding kind, and, in the event of conviction, self-disserving, and self-convicting,—shall an oath he administered to him or not? If not, then the security thus afforded for veracity is left unemployed: and in what cases? In those in which the discovery of the truth is of most importance. If the ceremony be extended to these cases, then comes a hardship, which to some eyes may be apt to appear so tremendous as to be intolerable. In case of perjury, the suffering, being supernatural, may be infinite; while, in case of delinquency, such is the frailty of human nature, more particularly in so guilty a bosom, that the temptation to incur this infinite punishment may be irresistible.
Another difficulty. Suppose it desirable, that, under such circumstances, a defendant should take the oath: what if he refuse? Acquiesce in the refusal, the security is lost,—lost to the most important class of causes. Refuse to acquiesce in the refusal, what resource is there for compelling it? To endeavour to compel it, is but in other words to employ torture. But admitting torture to be a warrantable expedient in any case, is this a case in which to employ it?
Not to pursue, as it were in a parenthesis, an inquiry of such intricacy, a solution for the difficulty presents itself, and such a one as seems equally simple and unexceptionable. Tender the oath: if he accepts it, swear him; if he declines it, do not attempt to force him, but warn him of the inference. From a refusal to take the oath (particular religious persuasions excepted) the inference—an inference which, at the suggestion of common sense, every man will draw immediately,—is exactly the same as that which would be drawn from non-responsion under the oath, or from non-responsion on an occasion of an extrajudicial nature, and which accordingly admits not of an oath.
This course seems to be equally advantageous, whether guilt be supposed, or innocence. In case of innocence, all objection vanishes: being innocent, a man embraces with alacrity this as well as every other means of impressing the court with the persuasion of his innocence. In case of guilt, if he declines taking the oath, a species of circumstantial evidence operating in proof of the guilt—a sort of evidence tantamount to non-responsion, is thus obtained. If, notwithstanding his guilt, and thence his consciousness of guilt, he takes the oath—takes it in the view of avoiding to bring to bear against himself that species of circumstantial criminative evidence,—a result more or less probable is, that, to the symptoms of perturbation produced in his deportment by the apprehension of the legal punishment which he has incurred, may be added those of an ulterior degree of perturbation, produced by the contemplation of the guilt of perjury.
Will it again he said—still you ought not thus to lay snares for consciences; it is cruel, for any temporal advantage, thus to subject a sinful soul to so serious an addition to its guilt? If this reasoning were conclusive, you should abstain from the use of this security altogether: in cases non-penal, as well as penal—in the case of extraneous, as well as in that of self-regarding, testimony; wherever you saw a man determined, as you thought, to commit perjury, this security for veracity ought, in that instance, to be laid aside: the more hardened and determined in mendacity a man were, the more safe.
The mischievous consequences that would ensue from the notion that the profanation of the ceremony were accompanied with any guilt, moral or religious, over and above whatever may be attached to the mendacity by which the profanation is effected, have been already stated: together with the radical incongruity and inconsistency attached to the notion of a frail and weak being, such as a man, disposing, at his pleasure, of the power of a Being all-powerful and all-wise. If the conclusion be just, the above objection, respecting the peril of future supernatural punishment, falls to the ground.
At any rate, the objection can never come with any tolerable consistency or grace from the lips of any one by whom the application made of this ceremony to the function of a juryman, on the occasion of an English trial, is approved. An oath, forced into the mouth of twelve such judges, to oblige them to declare their real opinion; and torture applied to force some number of them, in case of diversity of opinion, to declare (each of them) that to be his opinion which is not!—a mode of judicature so contrived that it could not go on, unless the judges, in unknown numbers, were continually forced by torture into perjury!
True it is, that the incongruity of one such practice does not give congruity to another: but if, for fashion’s sake, a certain quantity of perjury must at all events be preserved, better preserve a sort which is of some use, than a sort which is as useless, as in every other point of view it is incongruous.*
OF SHAME, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
Shame may be considered as operating in the character of a security for trustworthiness in testimony, in so far as, on the occasion of a man’s delivering testimony, the contempt or ill-will of any person or persons is understood to attach, or apprehended as being about to attach, upon a deviation, on his part, from the line of truth.
Shame, it is but too evident, in the character of a principle of action, cannot upon all occasions be relied upon as a sufficient security, without the aid of legal punishment. Some men are below shame; some men are above it. Power will, in some situations, place a man above shame. In England, however, power is hardly sufficient to place a man above shame, without a pedestal of false science. In England, a king, were he ever so much inclined, could scarce dare to deliver a notorious falsehood from the throne. In the same country, however, no judge (I except always the judges for the time being) ever yet feared to deliver from the bench notorious falsehoods, under the name of fictious (and the whole system of common law procedure is made up of fiction)—or to suborn jurymen to deliver falsehoods not less notorious, and aggravated into perjury.
Happily, however, for mankind, shame, in this its character of a security for trustworthiness, is not altogether without its influence on uncorrupted minds,—I mean on minds which, howsoever it may be in respect of corruption from other sources, have not the misfortune to be exposed to that corruption which is poured down in such torrents from the heights of English judicature.
In the Danish courts of justice denominated Reconciliation Offices, oath is out of the question, punishment is out of the question; truth has no other support than the sentiment of shame. Yet, strange to tell—strange at any rate to an English ear—more causes in that country are determined in these courts, from which the professional lawyer is excluded, than in all the courts put together in which the system of technical procedure, with its apparatus of oaths and punishments, bears sway.
Even in England, cases in which the only punishment that bears upon the case is that which consists in shame, are neither unknown to lawyers, nor unheeded by the legislature. Awards, for the correctness and completeness of the testimony on which they are grounded, having nothing else to trust to: and by an act of the legislature,* the power of the regular tribunals is applied to the giving force to these decisions—decisions pronounced by judges, learned or unlearned, constituted by the joint choice of the parties.†
The force of the moral sanction, as applied to this purpose, is a most commodious and valuable supplement to that of the political. It condemns upon less evidence: it inflicts a punishment pro more probationum, reduced in intensity in proportion to the faintness of the evidence: it admits of a middle course between condemnation and acquittal—an expedient which in general cannot be, or at least is not usually, resorted to by the punishment of the political sanction, as applied by judicial procedure: upon the appearance of fresh lights, it is able, without difficulty, to divest itself of any such undecided character, and either fill up the measure of its punishment, or strike it off altogether, according to the complexion of the case.
Much of that which appears to be done by fear of punishment alone, is really done by fear of shame—a fear which, howsoever backed and strengthened by fear of punishment, would not of itself have been by any means without effect.
In the course of this work, we shall have but too frequent occasion to observe the debility that has been introduced into the constitution of the political sanction by the rashness that has given birth to the established rules of evidence. In these cases, the force of the moral sanction—the force of public opinion—steps in, and supplies to a certain degree (however incompletely) the place of that force which, by the unskilfulness of the commanders, has thus been rendered unserviceable. It prevents nominal and apparent impunity from being altogether equivalent to real; and helps to moderate, when it does not do away entirely, the triumph of successful guilt.
When accused for the purpose of punishment, a delinquent, in escaping from punishment, does not always escape from shame. Judges, when by their quibbles—statesmen, when by their intrigues with judges—they save a man from merited punishment, do not always save him from shame. Judge and Co., in selling exemption from punishment,‡ and thus far impunity, do not—cannot (where evidence is heard, and not excluded by other quibbles) sell exemption from shame.
To the efficiency of this security, unhappily the limits are but too apparent. Shame, to constitute on this occasion an adequate succedaneum to legal punishment, supposes on the part of the deponent a certain degree of moral sensibility—a certain degree of probity. But, be that degree what it may, the cases in which the demand for coercive judicature is the most urgent, are those in which no such degree of probity is to be found.
On this as on every other occasion, the influence of shame depends, in no small degree, upon mutual presence—upon the interchange of the language of the eye, between those on whose part the contempt and ill-will is apprehended, and him in whose breast the apprehension of those sources of incalculable affliction is excited.
On this account, the influence of shame is attached, in no small degree, to that mode of collection in which the testimony is delivered vivâ voce—delivered by the deponent in the presence, if not of the adversary, at any rate of a judge, or (what is most usual) an assembly of judges, with his or their ministerial officers and subordinates.
Accordingly, in the procedure of the Danish Reconciliation Courts, this mode of delivery is an essential feature. On the part of the party, or (what comes to the same thing) a non-professional substitute by whose acts and words he is bound—personal appearance,—not sham personal appearance, as at the English regular courts, but real personal appearance—attendance (by what words shall the idea be conveyed to the mind of an English lawyer?)—is an indispensable requisite.
The natural securities for trustworthiness in testimony have been adverted to in the preceding Book:* and of these, that for the designation of which the word shame is here employed, was one. In the present Book, this same principle of action has been comprised in the list of factitious instituted securities. Why? Because to this security, standing by itself, no inconsiderable part of the business of factitious judicature hath, as we have seen, been entrusted: because, in the instance of the Danish Reconciliation Courts, the admission of this security, to the exclusion of factitious punishment, required and called forth a positive act of the Danish legislature: and because the choice of that mode of testification, on which the efficacy of this principle of action in so great a degree depends, is another positive institution, in the establishment of which the will of the sovereign must take an active part.
When punishment, factitious punishment, to be attached to the species of delinquency in question by an express act of will to be exercised by the legislator, was the principle of action in question,—rules were found necessary to be brought to view, for the purpose of guiding the application of it: rules, the demand for which, on this occasion as on others, had been created by non-observance. The legislator, on this as on so many other occasions, acting under the guidance of hands engaged by interest to mislead him, has on this as on so many other occasions, acted in continual opposition to the dictates of utility and justice.
The public, whose finger, on this as on so many occasions, the power of shame is in the habit of following, with a degree of obsequiousness such as it knows better than to bestow upon the “finger of the law;”—the public, in its application of the principle of shame to the subject in question (in so far as the force of that principle is at its disposal,) is already in the habit of following those same rules, which, for the direction of the force of legal punishment, it became necessary, as above, to bring to view.
1. Applied to falsehood in the shape of testimony, punishment (says one of these rules) should attach upon temerity, as well as upon mendacity. And so, under the dispensation of the tribunal of public opinion, does the punishment of shame: making the proper distinction between the degrees of delinquency in the two cases.
2. Applied to falsehood in the shape of testimony, punishment (says another of these rules) should apply to every occasion without exception, in which it is uttered in that shape. And so, with this unerring and unsleeping steadiness, under the uncorrupted dispensation of the tribunal of public opinion, does the punishment of shame: making (in proportion to the instruction it has imbibed from the principle of utility) a distinction, in respect of the severity of its punishment, corresponding to the shades of depravity dependent on the occasion on which it may happen to falsehood to be uttered in this shape.
As to the remaining rules brought to view under that head, they will be seen to bear no application to the present purpose.
OF WRITING, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
The art of writing, besides its other infinitely diversified applications, has been productive of such important effects, good and bad, in relation to evidence, and thence (as well as in many other ways) to judicature,—that a few words, for the purpose of giving a general and comprehensive view of its application in both directions—in the way of conduciveness, and in the way of opposition, to the ends of justice,—may not be misemployed.
Of this inquiry the practical object is almost too obvious to need mentioning: to prepare the mind of the legislator, on the one hand, for pushing to its maximum the use—on the other, for reducing to its minimum the abuse—of so powerful an instrument in the hand of justice or injustice.
In this, as in so many other instances, the union between the use and the abuse is unhappily but too close: the chemistry by which they may be separated, and the abuse precipitated, is not of easy practice.
In the character of an external security for the correctness and completeness of testimony, the uses of writing are as obvious as they are various:—
1. Of distinctness it is oftentimes a necessary instrument. Where the mass of testimony is small,—the string of facts requiring to be brought to view short,—the employment of this security may be unnecessary. But, let the mass be swollen to a certain bulk,—the deponent who is able to give it the distinctness requisite for producing a clear conception of the whole in the mind of the judge, without using a pen of his own, or borrowing that of another, will not often be to be found.*
2. In the same case, the use of it to the purpose of recollection—complete as well as correct recollection—may be equally indispensable. Accordingly—where writing is in common use, and testimony (as under English law) is delivered vivâ voce, and the transaction of which a man has been a percipient witness, has, in respect of its importance, appeared to him to be of a nature to create a probable demand for future testimony—it is no uncommon incident for a man to have given ease and certainty to his memory, by committing to writing a statement of the perceptions entertained by him at the time; and by English practice, such memoranda are allowed to be consulted by him while he is in the act of delivering his evidence. At any rate, if interrogation be employed for the extraction of the testimony, and the string of questions be long, and presented to the witness, all of them, or a considerable number, at a time, the having the questions in writing, for the purpose of giving occasional refreshment to the memory under the burthen thus laid upon it, may be altogether indispensable. For, in this case, it is not sufficient for a man to recollect the perceptions presented to him at the time by the mass of facts in question; he must, besides this, have continually present to his mind the conception of the several questions put to him—of the several facts to which he has thus been called upon to depose.
3. It is to the art of writing that testimony is altogether indebted for the quality of permanence, and thence for the security which that quality affords for the correctness, as well as completeness, of whatever testimony has been delivered: understand, for its correctness and completeness (when it has swelled to a certain bulk) on any day, not to say hour or minute, subsequent to that on which it has been delivered.
4. One case there is, and that of no small extent, in which testimony is indebted to writing for its very existence. This is where, for any cause, the appearance of the witness (the percipient witness) at the judgment-seat—the place where the judicial testimony would have been to be delivered—either is physically, or is deemed to be prudentially, impracticable.†
In every such case, were if not for the use of writing, either the testimony would be altogether lost, or if delivered at all, it would not be delivered without being degraded from the rank of immediate to that of hearsay evidence: suffering thereby, in point of trustworthiness, that defalcation, the nature and value of which will be brought to view in its place.‡
Such is the importance of good judicature to general civilization—such the importance of writing to good judicature—that,—independently of the application of this master art to the several other departments of government,—the absence of it as applied to judicature would of itself (it is probable) have been sufficient to stop the progress of civilization at a stage greatly below any that we see at present anywhere in Europe.
Causes of a certain degree of simplicity,—and happily the great majority of causes are within this desirable degree,—may, supposing probity on the part of the judicatory, be tolerably well decided without writing: because decision may follow upon evidence before the memory of it in the breast of the judge is become incorrect or incomplete. In a cause involved in a certain degree of complication, the use of writing is in a manner necessary to good judicature. But civilization must have stopped far short of its present advanced stage, if complicated causes had not been susceptible of just decision as well as simple ones.
If, under natural procedure (as in the small debt courts) causes are in general sufficiently well decided without the committing of the evidence to writing, it is because the description of the case is there so extremely simple: and even in these cases, security against misdecision is sacrificed in some degree to the avoidance of vexation and expense.
But though, in respect of their number, the causes simple enough to have been suffered to be decided in the way of natural procedure constitute the most important class; yet, individually taken, causes in the highest degree complicated, possess, in general (so far as property is concerned) a proportionable degree of importance: witness bankruptcy causes, and causes relative to testaments, in each of which property to the amount of millions may be at stake upon a single cause.
If such be the importance of writing, even on the supposition of undeviating probity on the part of the judicatory, its importance is in a much higher degree exemplified in the character of a security against improbity: and, in particular, in the character of an instrument of extensive and lasting publication.
As it is only by writing that the grounds of decision can be made known, beyond the narrow circle composed of the few by-standers; hence, without writing, there can be no tolerably adequate responsibility on the part of the judge. But for writing, a single judge would decide on every occasion as he pleased: an oligarchical bench of judges, as they could agree; a democratical bench (as indeed it is too apt to be the case, notwithstanding the benefit of writing,)—a bench, howsoever composed, if the number be such that the idea of individual responsibility is destroyed,—would decide according to the caprice or passion of the moment.
Of the deplorable state in which, for want of the application of writing to this purpose, the business of judicature may be left in a democratically-constituted tribunal (a tribunal composed of numerous assemblage of judges, no matter of what rank,) the character of Election Judicature in the House of Commons antecedently to the Grenville Act, will afford an impressive example. Under favour of the confusion,—the absolute want of all permanent memorials of the grounds which the several suffrages had to rest upon,—and the consequent mischief, the equally complete want of all individual responsibility,—no man’s vote was ever grounded on any other considerations than those of personal convenience.*
By adding to the natural and unavoidable degree of complexity attached to the cause, a suitable dose of factitious, a party in the wrong (especially it favoured by the co-operation of a colluding judge) may give to his bad title an equal chance with the best one.
By lumping charges together, and (after a lumping mass of proof) pronouncing a lumping judgment on the whole mass,—a precedent has been set,† under which a delinquent’s chance of impunity is not in the inverse, but in the direct ratio of the number of his crimes. Such judicature having been found practicable, notwithstanding the check applied by the art of writing, what would it have been without that check?
In the cases of Peru, Mexico, and Tlascala, may be seen a specimen of what degree of civilization it is possible for society to reach without the application of writing to the fixation of the grounds of decision in judicature: higher than in those instances it could hardly have risen without that help.
In its original constitution, jury-trial, being unaided by writing, would in England have been sufficient to confine civilization within bounds as narrow as those which circumscribed it in Peru, Mexico, and Tlascala. If, under jury-trial, writing has latterly been applied to the fixation of the grounds of decision, it is unhappily in but an accidental and imperfect way. Hence it has happened, that, in cases to a certain degree complicated, this mode of judicature is seen to be inapplicable; being in some cases recognised as such by established usage, equivalent in force to law—in others, though not by law, in necessary practice.
Writing being of use, and frequently in a great degree even matter of necessity, in all stages of the suit; so is it in the hands of all classes of persons concerned in it.
In the hands of the parties, it serves to give permanence to evidence—to constitute the matter of the instruments exhibited in the character of sources of evidence.
In the hands of the judge, and his official subordinates, it serves to preserve the memory of operations—to register, to record, to consign to permanent characters, in proportion as they are performed, the fact of their having been so.
But the delivery of an instrument to this or that effect, is itself a capital article in the catalogue of those operations. Hence registration of instruments, as well as of operations, falls naturally within the province of the judge.
The indication which has been given of the uses of writing, as applied to the subject of evidence, has a sort of claim to be accompanied with a correspondent sketch of its uses, as applied to the business of registration.
Subjects for judicial registration, with their uses:—
1. Representation of operations successively performed, and instruments successively presented, for the purpose of grounding such subsequent operations and instruments, as may come to be called for, or warranted, by such preceding ones.
2. Representation of operations performed, and orders given, or other instruments made, by or under the authority of the judge, on the occasion of the operations and instruments emunating from the parties as above.
3. Grounds and reasons of such operations and instruments, as aforesaid, on the part of the judge.
N. B. To be of use, these grounds and reasons will not consist of argumentation uttered on each occasion by the judge himself, but of the indications given of so many matters of fact brought to light in the course of the cause—indications given in the concisest possible form, under heads prescribed by the legislator for that purpose.
4. At the special instance of either party, this or that proposition, or even word, that may have dropt from the lips of the judge. In the particular suit upon the carpet, be the importance of the subject-matter in dispute ever so trifling, the language used by the judge may be to any degree important. By language (not to speak of deportment, which is not so easily rendered the subject of registration,) disposition is manifested: and, in a judge, the effects of disposition extend to whatever suits are liable to come under his cognizance. Not a blemish of which the judicial character is susceptible, but language may have served for the manifestation of it.
In each house of parliament, whatever word is spoken by any member, is liable to be taken down at the instance of any other. This check, instead of being an infringement, is the most efficient security for that just liberty of speech, without which such assemblies would be worse than useless. The beneficial efficacy is in reality the greater, in proportion as it is less manifested; it is composed of the improprieties that but for this check might have been uttered, but are not uttered.
In the practice of the courts of justice (the regular courts) this institution is not without example. Witness the bill of exceptions. But in that instance the application of it is confined within narrow limits: whereas there, as in parliament, the demand for it has no limits.
Uses of the above registrations:—
1. To the several parties, on the occasion of the suit in hand, the use of them, in a direct way, is already evident.
2. So, in a less direct way, in respect of the check they apply to abuse in every shape on the part of the judge,—corruption, undue sympathy, antipathy, precipitation through impatience, delay through indifference and negligence.
3. With a view to appeal on the occasion of the suit in hand,—the service capable of being rendered by such registration to both parties (and especially to him who is in the right,) by the complete and correct indication of all grounds of appeal, justly or unjustly alleged, seems alike evident.
4. In respect of future contingent suits, considered as capable of being produced, prevented, or governed, by the result of, or previous proceedings in, the cause in hand,—suits considered as liable to arise between the same parties, or their legal representatives,—the utility is alike manifest.
5. In respect of future contingent suits, considered as liable to be produced by like causes, or to give birth to like incidents and occurrences,—causes as between other parties having no connexion with those in question; the use of such registration in the character of a stock of precedents seems alike indisputable.
The service thus capable of being rendered, will be rendered partly to individuals at large, in the character of eventual suitors in such eventual causes, in respect of their respective interests; partly to the judge, in respect of security, facility, and tranquillity, in the execution of his official duty.
6. To the legislator, the guardian of the people, and through him to the people at large, the service rendered by the aggregate mass of the facts thus registered, will be seen to be more and more important, the more closely it is considered.
By the abstracts made of the body of information thus collected (abstracts prepared under a system of appropriate heads, and periodically presented and made public,) he will see throughout in what respects the existing arrangements fulfil—in what respects (if in any) they fail of fulfilling—his intentions: how far they are conducive—in what respects (if in any) they fail of being perfectly conducive,—to the several ends of justice.
With the sketch of what is here stated as capable of being done, confront the loose sketches that will hereafter come to be given of what is actually established: the difference between use and abuse will present itself in colours not very obscure.
If the services thus rendered to the interests of truth and justice by the art of writing are thus great, neither are the ways in which it is liable to be made to operate, and to a great extent is continually made to operate, to the injury of those interests, by any means inconsiderable.
1. If, on certain occasions, and in certain ways, it is capable of being employed as an instrument of distinctness for giving that indispensable quality to a mass of evidence,—on other occasions, and in other ways, it is but too apt to be employed in such a manner as to give to the evidence a degree of indistinctness, from which, but for the abuse made of this important art, it would have been free.
The reason (meaning the cause) of this abuse is extremely simple. To the quantity of irrelevant matter, to which (under the spur of sinister interest) the pen of a writer is, on this, as on so many other occasions, capable of giving birth, there are no determinate limits; nor yet to the degree of disorder, and consequent indistinctness, with which the whole mass, made up of irrelevant and relevant matter jumbled together, may be infected: and the same mischief which thus, to an infinite degree, is liable to be produced by mala fides on the part of the suitor or his professional assistant, may (though in a less degree) be produced by mere weakness of mind on either part: whereas, in the case of vivâ voce testimony extracted by, or substituted to, interrogation,—no sooner does an irrelevant proposition make its appearance, than the current of the testimony in that devious direction is stopped, and the stream forced back into its proper channel.
2. When writing is employed in the extraction, and thence in the delivery, of the testimony,—time applicable, and but too often applied, to the purpose of mendacious invention, is a natural, and practically (though not strictly and physically) inseparable, result, as will be seen more particularly in its place.*
3. In the same case, a result no less closely connected with the use of writing than the former, is the opportunity afforded by it for receiving mendacity-serving information from all sorts of sources—a danger from which vivâ voce deposition, though by no means exempt, is more easily guarded.
On the other hand,—where writing is employed for the delivery and extraction of evidence, the superior facility which it affords for planning the means of deception is accompanied, and in a considerable degree counteracted and compensated on the part of the adverse party and the judge, by a correspondent quantity of time (and thence a correspondent means) applicable to the purpose of scrutinizing the supposed mendacious testimony, and so divesting it of its deceptitious influence.
Hitherto we have considered the art in no other light than that of its capacity of being made subservient to the purposes of that species of injustice which is opposite to the direct end of justice: subservient to deception, and thence to misdecision.
But the grand abuse, and that in comparison of which what has hitherto been brought to view shrinks almost into insignificance, is the perverted application that has been made of it to the purposes of that branch of injustice which stands opposed to the collateral ends of justice—of that branch of injustice which consists of factitious delay, vexation, and expense, heaped together for the sake of the profit extractible and extracted from the expense.
In a word, it is in the art of writing thus perverted, that we may view the main instrument of the technical system, and of all the abominations of which it is composed—an instrument by which this baneful system, wheresoever established, has all along operated, and without which it could scarcely have come anywhere into existence.
It is on pretence of something that has been written, or that might, could, or should have been written, that whatever portion of the means of sustenance has, on the occasion, or on the pretence of administering justice, been wrung from the unfortunate suitor, has been demanded and received. Statements that ought not to have been made, have, to an enormous extent, been made: statements that required to be made, have been swelled out beyond all bounds—stuffed out with words and lines and pages of surplusage, oftentimes without truth, sometimes even without meaning, and always without use. This excrementitious matter has been made up into all the forms that the conjunct industry of the demon of mendacity, seconded by the genius of nonsense, could contrive to give to it. Having, by the accumulated labours of successive generations, been wrought up to the highest possible pitch of voluminousness, indistinctness, and unintelligibility; in this state it has been locked up and concealed from general view as effectually as possible. In England it has been locked up in two several languages, both of them completely unintelligible to the vast majority of the people: office upon office, profession upon profession, have been established for the manufacturing, warehousing, and vending of this intellectual poison. In the capacity of suitors, the whole body of the people (able or unable to bear the charge) are compelled to pay, on one occasion or another, for everything that was done, or suffered or pretended to be done, in relation to it—for writing it, for copying it, for abridging it, for looking at it, for employing others to look at it, for employing others to understand it, or to pretend to understand it; interpreting and expounding imaginary laws, laws that no man ever made.
Thus much for this branch of the abuse: thus much for a bird’s-eye, or rather an ærostatic, view of it. To consider it heap by heap, is a task that belongs not to this place—a labour that will continue to press upon us through every part of this toilsome and thankless course.
The uses and the abuses of writing in judicial procedure have now been briefly enumerated: the various arrangements which have for their object to bring the use to its maximum, and the abuse to its minimum, will be severally brought to view in the proper place.
OF INTERROGATION, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
Uses of interrogation, as applied to the extraction of testimony.
In the character of a security for the correctness and completeness of testimony, so obvious is the utility and importance of the faculty and practice of interrogation, that the mention of it in this view might well be deemed superfluous, were it not for the cases, to so prodigious an extent, in which, under English law, it is barred out by judicial practice.
1. The case in which its utility is most conspicuous, is that of mala fides on the part of the deponent; and this, being a state of things which in each individual instance may (for aught the legislator can know) have place, is a state of things for which, on every occasion, in the arrangements taken by him, provision ought to be made.
Completeness is the primary quality, with reference to which the demand for it is most obvious: fear of punishment and fear of shame having here less influence than as applied to secure correctness. In case of incompleteness, neither punishment nor shame apply, any further than as it is established that the omitted part came under the perception of the deponent, preserved a place in his remembrance, and presented to him, along with itself, the idea of its importance.
Importance being assumed, incompleteness may indeed become equivalent to, and a modification of incorrectness: but in general it is by interrogation, and by interrogation only, that it is rendered so.
Do you remember nothing more? did nothing further pass, relative to this or that person or thing (naming them?) By interrogations thus pointed, such a security for completeness is afforded, as can never be afforded by any general engagement which can be included in the terms of an oath or other formulary: be the engagement what it may, in the course of the deposition the memory of it may have evaporated and suppose it borne in mind—yet, without the aid of interrogation, the violation of it by suppression of the truth loses its best chance of detection.
2. Particularity, if it be not included under the notion of completeness, is no less indispensable to the purposes of testimony. But suppose a deposition delivered, and, in so essential a point, a deficiency remaining in it; by what means, it at all, shall the defect be supplied? Interrogation, it is evident, is the sole resource.
By particularity only can that repugnancy to known truths be established, by which mendacity is demonstrated.
Under what tree was the act committed? was the question put by the prophet Daniel to each of the two calumnious elders. Under a holme tree, answered the one: under a mastic tree, answered the other. But for the proof of mendacity, the question would have been irrelevant and superfluous; for, supposing the forbidden act committed, what mattered under what tree, or whether under any tree? But, for the detection of mendacity, no question that can contribute anything, can be irrelevant; and the more particular, the better its chance of being productive of so desirable an effect.
By interrogation, and not without, is the improbity of a deponent driven out of all its holds. An answer being given, is it true? It is useful in the character of direct evidence. Is it false? It stands exposed to contradiction, both from within and from without: and, being detected, it operates as an evidence of character and disposition, and thence in the way of circumstantial evidence. Is silence, pure silence, the result? Even this is evidence, circumstantial evidence. The deponent,—is he an extraneous witness? According to the nature of the question, it may afford as impressive a presumption of falsehood, antecedent or subsequent, as could have been afforded by detected falsehood. Is he a party to the cause? Besides the particular mendacity, it may afford a presumption of his own consciousness of the badness of his cause.
The testimony, is it indistinct, nugatory, unintelligible? Such indistinctness, if persevered in, and not the result of mental infirmity, is equivalent to silence.
In no case, be the sincerity of the deponent ever so unquestionable—in no case, either to completeness or correctness, can the faculty of interrogation be a matter of indifference, not even in ordinary conversation between bosom friends.
What father could be satisfied with the narrative of a long lost child,—what lover with that of his mistress,—without a possibility of perfecting his satisfaction by questions?
In no state can a deponent’s mind be, in respect to interest, but that interrogation may be necessary to the purpose as well of correctness as of completeness.
In every possible result, does he behold an event of the most consummate indifference? A fact really important may be left out of his narrative, either because not recollected at the time, or because, though recollected, its materiality, with regard to the cause, had not presented itself to his view.
Is he even desirous and eager to bring forward every circumstance that can serve the party by whom his testimony has been invoked: Still a circumstance may have been forgotten, or its materiality have escaped notice.
Supposing even a party in the cause—say a plaintiff—adducing his own testimony, deposing in support of his own demand (under English law, a state of things rarely exemplified in form, but in substance frequently:) a poor person, say, prosecuting in the hope of recovering goods lost by stealth. With all the interest and all the will that can be imagined, intellectual power may be insufficient to bring to light, in a complete body, the material circumstances, without the aid of some superior intelligence in the character of an interrogator, in the person of an advocate or a judge.
In a word,—but for interrogation, every person interested, in whatever way interested, in the manifestation of truth, is completely dependent on the deponent and on the state not only of the moral but of the intellectual part of the deponent’s mind.
Exceptions to the application of interrogation to the extraction of testimony.
Were security against deception and consequent misdecision the only object that had a claim to notice, the use of the security afforded by interrogation ought never to be foregone.
But, in this case as in all others, the mischief of that injustice which is opposite to the direct ends of justice, may find more than a counterpoise in mischief which is opposite to the collateral ends of justice,—inconvenience in the shapes of delay, vexation, and expense, jointly or even separately considered.
Take for examples the following cases, in which for avoidance of preponderant collateral injustice, it may happen that the security afforded by interrogation ought to be foregone; that is, in which it will generally or frequently happen, that the mischief resulting from the application of the security, will be greater in value (probability taken into the account) than any mischief that can take place for want of it.
I. Cases where the delay necessary to interrogation may be productive of irreparable damage: where, for example, the use of the evidence is to ground an application for stopping, 1. expatriation of the defendant, for avoidance of justiciability;* 2. exportation of property in his hands, for the like purpose; 3. deportation for the purpose of slavery; 4. deportation (the person a female) for the purpose of wrongful marriage or defilement; or, 5. wrongful destruction or deterioration of another’s property, by operations clandestine or forcible. To form a ground for arrestation, seizure, sequestration, and so forth, on any of these accounts, testimony is requisite. If time admit of the subjecting this testimony to the scrutiny of judicial interrogation, so much the better; but if not, better that it be received and acted upon without the interrogation, than that any such irreparable mischief should be done.†
2. Cases where the benefit of the security afforded by interrogation may be outweighed by the expense unavoidably attached to the application of it: as, if the seat of the judicatory in which the decision is to be pronounced, be in London or Paris, and the evidence of the deponent in the East Indies.
To determine the preponderance, as between the mischief on the score of direct injustice, and the mischief on the score of collateral inconvenience in this shape, will be matter of detail for the legislator, and under him for the judge.
Interrogation in the epistolary mode, or by judges for the occasion, on the spot, affords, for the giving the evidence the benefit of this security, two other resources: either of which, where practicable, will be preferable to the receipt of the testimony in an uninterrogated state.
As to the case of vexation, independent of expense; examples of it will be seen to more advantage in another place; when the cases, where it is proper to put on that ground an absolute exclusion upon evidence, come to be considered.
Where, for the avoidance of collateral inconvenience in the shape of delay, vexation, and expense, the application of this security is dispensed with, the following rules are expressive of the conditions which seem proper to be annexed to the dispensation:—1. The exemption ought not to be absolute and definitive. The inconvenience being removed, either in toto, or to such a degree as to be no longer preponderant, interrogation ought to take place; either of course, or at the instance, of a party interested, or of the judge. 2. In a case where the deponent (he who has been deposing in the uninterrogated form) is liable as above to interrogation,—if his deposition was either delivered in the ready-written form, or, being delivered in the oral form, was committed thereupon to writing, for which purpose appropriate paper is employed; notice of the eventual interrogation ought to be inserted (as for example it is when ready printed) on the margin.
For, to the purpose of preventing incorrectness and incompleteness (preventing, in a word, the testimony from being rendered deceptitious) it is material that the deponent should be pre-apprized of the scrutiny which it may continually have to undergo: and, for making sure of his being thus pre-apprized, no other expedient can be more effectual than this simple and unexpensive one.
On whom ought interrogation to be per-formable?
On whom? Answer: On every individual from whom, in the character of a deponent, testimony is received: saving the case of preponderant collateral inconventence, as above.
If, at his own instance, at the instance of a co-party on the same side, or at the instance of his adversary, the testimony of a party (plaintiff or defendant) be received, it should or course, and for reasons not less cogent than in the case of an extraneous witness, be subjected to this scrutiny: and it will be shown elsewhere,* that, in no instance, in any of the above cases, should the testimony of a party stand excluded, of the measures proper and necessary for the extraction of it, if called for by an adverse party, be omitted: any more than in the case of an extraneous witness.
Official evidence presents a case in which the demand for interrogation on the score of security against mendacity, and thence against deception and misdecision, will, generally speaking, be at its minimum: while on the other hand, the inconvenience, in respect of vexation, may be at its maximum, comparison being made with individuals whose residence is at no greater distance: inconvenience, of which part will be to be placed to the account of the individual (the officer,) part to that of the public service.
But unless, by being placed in the office in question, a man is purified from all the infirmities (intellectual as well as moral) incident to human nature; in the instance of no such office can the exemption from this security be with propriety regarded as unconditional and definitive.
Applied to official testimony, the objection bears with considerably greater force on oral interrogation than on scriptitious: the oral being the only mode of the two, to which the vexation and expense incident to attendance (at the judicatory,) with journeys to and fro, and demurrage, is liable to be attached.
If the above observations be just, the practice of English law under the technical system must, in cases in great abundance and to a great extent, be radically vicious,—favourable to incorrectness, to incompleteness, to mendacity, to consequent deception and misdecision:—affidavit evidence (i. e. uninterrogated testimony) being received, and to the exclusion of interrogated testimony from the same individual,—on the main question, in a class of causes in great abundance and to a great extent,—and in causes of all classes, on those incidental questions by the determination of which the fate of the cause is liable to be, and frequently is, determined:—official evidence received without the security afforded by interrogation, as well as without the security afforded by the eventual subjection to that punishment, which, by the penal consequences attached to a violation of the ceremony of an oath, is hung over the head of mendacity at large:—and these securities against mendacity removed with particular care, in the instance of that class of official evidence (I speak of the sort of judicial evidence called a record,) each article of which is by no other circumstance so remarkably and incontestably distinguished from every other species of official evidence, as by its being replete with pernicious falsehoods: some with facility enough, others with more or less difficulty, capable of being distinguished from the small proportion of useful truths that are to be found in it.
By whom ought interrogation to be performable?
To whom ought the power of interrogation to be imparted? Answer: To every person by whom it promises to be exercised with good effect: subject always to the controul of the judge, but for which, any power of command might, on this as well as on any other occasion, run into the wildest despotism.
And by whom is it likely to be exercised with good effect? Answer: By every person in whom suitable will and power are likely to be found conjoined. Will, the product of adequare interest, in the most extensive sense of the word,—power, consisting, in the present case, of appropriate information, accompanied with adequate ability of the intellectual kind.
Of the extent thus proposed to be given to the power of interrogation, the propriety stands expressed in the following aphorisms, which seem to claim a title to the appellation of axioms:—
1. For every interrogator, in whose person adequate interest and natural power unite, an additional sceurity is afforded for correctness and completeness, and thence against mendacity and temerity on the one part and deception and misdecision on the other.
2. Against the admission of any proposed interrogator, no objection consistent with the ends of justice can be raised, on any other ground than that of mendacity-serving suggestion, or that of preponderant collateral inconvenience in the shape of delay, vexation, and expense: placing to the account of useless delay and vexation every proposed interrogation, that, in the judgment of the competent judge, is either irrelevant or superfluous.
The individuals in whose persons these requisites may be expected are,—1. The judge (including, in English jury-trial procedure, the jurymen, as well as the directing judge or judges;) 2. The plaintiff or plaintiffs; 3. The defendant or defendants; 4. The advocate or advocates of the plaintiff or plaintiffs; 5. The advocate or advocates of the defendant or defendants; 6. In some cases even extraneous witnesses.
There is a species of procedure in which there is no party on the plaintiff’s side: in causes tried under this species of procedure, the function of the plaintiff is really exercised by the judge.
There is another species of procedure, in which there is no party on the defendant’s side: in causes thus tried, the function of the defendant is exercised by the judge.
In causes of the above several descriptions, the number of possible interrogators suffers a correspondent reduction.*
When the list of characters capable of bearing a part on the theatre of justice is complete, there are, of proposed deponents, four descriptions; a plaintiff; a defendant; a witness (viz. an extraneous witness) called on the plaintiff’s side; a witness called on the defendant’s side.
Proposed interrogators, to each proposed deponent, seven. When the proposed deponent is the plaintiff; 1. the judge (including, in the case of jury trial, the several jurymen;) 2. this same plaintiff’s own advocate; 3. any defendant or his advocate; 4. any co-plaintiff or his advocate; 5. any witness called by this same plaintiff; 6. any witness called by any defendant; 7. any witness called by a co-plaintiff.
From hence, mutatis mutandis, may be determined the correspondent proposable interrogators in the respective cases of the three other descriptions of proposed deponents. Proposed deponents, 4: to each one of them, proposed interrogators, 7: by multiplication, total number of cases for consideration, 28.*
If the principle above laid down be correct (viz., that, except as excepted, every interest ought to have its representative in the person of an interrogator,) a consequence which follows is—that, of the above eight and twenty cases of interrogation, in so many as under any system of procedure are peremptorily excluded from having place, so many cases of incongruity stand exemplified.
English common-law procedure exhibits a multitude of different modes of receiving and collecting testimony: Roman and Rome-bred procedure: including English equity, English ecclesiastical court, and English admiralty court procedure) another multitude: in many, or most of them, the list of proposed deponents and interrogators is more or less different, and the difference not governed by any consistent regard (if by any regard at all) to the grounds of exception above brought to view. Of these established modes of practice, that all are wrong, will, it the above principle be correct, be found more than probable; that all are right, will be found absolutely impossible.
All the parties, and on both sides of the cause, have been placed upon the above list of persons, on whom, in the character of witnesses (each of them as well at his own instance and at the instance of a party on the same side of the cause, as at the instance of any party on the opposite side of the cause,) the process of interrogation may with propriety be performed. Under the established forms of procedure, under the general rule (so far as, in the midst of such diversity and inconsistency, anything under the name of a general rule can with propriety be spoken of,) both these classes of proposed deponents stand excluded: excluded, it proposed at their own instance or that of a party on the same side, on the score of interest; if proposed at the instance of the opposite side, excluded (principally in the case of a defendant) on the ground of vexation.
But on the ground of interest, so futile is the pretence, that, in cases where to any amount the impulse of sinister interest is mere forcible, the exclusionary rule is itself excluded: and on the ground of vexation, when the vexation is not less galling, and (by reason of the inferiority of the species of evidence) attended with a much greater probability of deception and misdecision, the exclusion on this ground has no place: and moreover, at his own instance, the same party, who is not admitted in the guise of a party, is admitted with the sinister interest acting in full strength in his bosom, under a variety of disguises.*
In so great a multitude of proposed cases for interrogation, two clusters shall be here selected for special explanation: the case of the advocate under all its diversifications, and the case of the extraneous witness under all its diversifications. The other cases are sufficiently simple to require no special notice.
In case the second of the twenty-eight, it is assumed, that a plaintiff ought to be capable of being interrogated by his own advocate. To an English lawyer on one side of the great hall, the necessity of the admission will be apt to appear so palpable, that every word employed in proof of it would be so much thrown away. But on the other side of the same hall, the door of the evidence-collecting judicatory is inexorably shut against the interrogating advocate, as well as against every other interrogator but the underling, who to this purpose stands in the place of judge.
In the cases of interrogation here proposed, are included two assumptions: the propriety of admitting as the representative and assistant of a party, a person who is not a party; and the propriety of his being a professional advocate: the professional advocate being of course understood to be included under the appellation of advocate.
Of the occasional admission of a person in the character of an assistant to the party (supposing it a case in which admission may with propriety be given to the party himself,) the necessity stands demonstrated by the following causes of infirmity and relative incapacity, under which a party is liable to labour: 1. Infirmity from immaturity of age, or superannuation; 2. Bodily indisposition; 3. Mental imbecility; 4. Inexperience; 5. Natural timidity; 6. Female bashfulness; 7. Lowness of station, in either sex.
True it is that there sits a judge, whose duty (it may be said) is, on this occasion as on others, to act as an advocate—not indeed on either side, but on both.
But on the part of an advocate, to enable him to fulfil his duty in an adequate manner, two endowments are necessary: appropriate information in all its plenitude, and the zeal that is necessary to turn it to full account. On the part of a judge, neither requisite (in a measure sufficient for all causes, or even for the general run of causes,) can on any sufficient ground be expected: much less both.
In the particular case here supposed, the party is by the supposition, present: but he may be absent, and that unavoidably.
Of a substitute to the party, the necessity is co-extensive with the cases where the attendance of the party is either in the physical or the prudential sense impracticable.
On the occasion here in question, as on other judicial occasions, the necessity of giving admission to a professional advocate is indicated by the following considerations:—
1. An adequately qualified non-professional and gratuitous assistant or substitute would not always be to be had.
2. In so far as appropriate learning is necessary (and all the art, as well as all the power, of the profession has been employed for ages in rendering that necessity as universal and cogent as possible,) a non-professional assistant or substitute would very seldom be adequately qualified.
True it is that (so far as matter of fact only is in question) neither in point of appropriate information nor in point of zeal, can the professional advocate be naturally expected to be so much as upon a par with the friendly and unpaid substitute of assistant. Though in practice Judge and Co. have taken too good care of themselves and one another not to exclude all such odious interlopers; yet the exclusion is the result of positive and abusive institution, not of the nature of the case.
Besides those which, as above, are the result of artifice,—two other advantages are, on the occasion in question, naturally enough attendant on the intervention of the professional, in contradistinction to the non-professional, advocate: advantages which may be reckoned as such, even with reference to the cause of justice.
But for this resource, a wrongdoer may, to the prejudice of the party wronged, possess on this occasion two advantages of a very oppressive nature: the advantage of the strong over the weak in mind; and the advantage of the high over the low in station. In a cause of a doubtful or intricate nature, nothing but such a union of talent and zealous probity, as would be too great to expect with reason on the part of an ordinary judge, more especially of a juryman, can prevent these advantages (even in a separate state, much more when united) from operating in a degree highly dangerous to justice. But, unless in case of a species of corruption, which is not of the number of those over which fashion throws its veil, the advocate is the same to all,—to low as well as high.
Unfortunately, however, in this supposition is included the being in a condition to purchase such high-priced assistance: and the great majority of those who have need for justice, are far from being in that condition.
But though the advocate (whatsoever may be the ascendant attached to his rank in the profession,) being the same to all, will not be more apt to make an abusive application of it, to the advantage of the high and opulent (as such,) in their warfare with the low and indigent; this sort of impartiality will not hinder him, it may be said, from employing it in another manner, more directly and certainly prejudicial to the cause of justice.
Under the name of brow-beating (a mode of oppression of which witnesses in the station of respondents are the more immediate objects,) a practice is designated, which has been the subject of a complaint too general to be likely to be altogether groundless. Oppression in this form has a particular propensity to alight upon those witnesses who have been called on that side of the cause (whichever it be) that has the right on its side; because the more clearly a side is in the right, the less need has it for any such assistance as it is in the nature of any such dishonest arts to administer to it.
But, of the assistance of a professional advocate to the cause of justice, where such asistance is to be had, the utility is grounded in the nature of things: whereas the abuse thus characterized by the name of brow-breating, is not, as will be seen, altogether without remedy.* Brow-beating is that sort of offence which never can be committed by any advocate who has not the judge for his accomplice.
In respect of appropriate information (with relation to the purpose in question,) under the technical system the advocate is but too apt to be deplorably deficient: the advocate seeing nothing of the facts but through the medium of another professional man, rich in opportunity, and prompted by interest in a variety of shapes, to misrepresent or intercept them. But the sinister advantage which the technical system has contrived to give itself in this respect, depends upon the fundamental arrangement by which it excludes the parties, on all possible occasions, from the converse and presence of the judge. On the occasion here in question, the presence of the party in question is supposed.
In the particular case here in question, that of a party (the plaintiff) in the cause, proposed to be interrogated by his own advocate, an objection, obvious enough in theory, grounds itself on the danger of prompting or suggestive questions,—in a word of mendacity-serving information. But on a closer examination this danger will be seen to lose much of its magnitude:† meantime it may not be amiss briefly to observe, that in the shape of actual mischief it does not appear to have been felt in English practice.
Compared with this second case, case ninth (in which, the deponent’s own advocate being still the proposed interrogator, the party proposed to be interrogated by him, instead of being as in the former case the plaintiff, is the defendant,) presents some slight difference:—in a criminal case, especially in a case where the punishment is raised to the highest pitch of severity, the incitement to afford mendacity-serving information in the shape of a question is in itself much greater; at the same time that the topic of humanity presents an excuse, beyond any that applies in the other case. But, that even in this case, the objection is not weighty enough to be preponderant, will be seen in the place referred to as above.
Be this as it may: whether for this or for any other reason, or (what is on all occasions at least equally probable) without any consideration on the ground of reason, in English criminal law,—though the plaintiff, under the name of prosecutor, is allowed to be interrogated by his own advocate,—that allowance is not extended to the defendant. But an observation to be made at the same time is,—neither is he allowed to be interrogated by anybody else: he tells his own story if he pleases; but, however deficient it may be, either in point of correctness or completeness, effectual and anxious care is taken that (in this way at least) the deficiency shall not from any quarter be supplied.
In twelve, out of the eight and twenty cases, it is assumed that a witness ought to be considered as capable of being admitted to act in the character of an interrogator, i. e. to put questions, as well to a party as to a witness, on either side of the cause.
To an English lawyer, on either side of the great hall, the idea will be apt to appear too strange and visionary to have ever been exemplified in practice. It was, however, in common practice, at any rate in the French modification of the Roman system of procedure, in criminal causes of the most highly penal class. Confrontation was the name of a meeting which the judge was in most instances bound to bring about between the prisoner and the several witnesses on the other side—the witnesses by whom he was charged: and, on the occasion of such meeting, each was allowed to put questions to the other: the judge present, and (except a clerk for minuting down what passed) no one else.
If so it be that cases may happen, in which, in the most highly penal class of criminal cases, questions put by an interrogator of this description may be conducive to the ends of justice,—so may it in all other classes of criminal cases: and if in criminal cases, so also in non-criminal. Whatever may be the demand for the use of it, the propriety of that demand will not be varied, either by the distinction between most highly penal and least highly penal cases, or by that between criminal on the one part, and non-criminal on the other.
Cases are not wanting in which, on the score of the direct ends of justice (in other words, in respect of the merits of the cause,) interrogation, if performed by the sort of interrogator here in question, promises to be more efficient than if originating from any other source.
A contradiction, real or apparent, takes place (suppose) between the testimony delivered by an extraneous witness, and that delivered by a defendant in the character of a witness, a plaintiff in the character of a witness, or another extraneous witness, called, whether on the same side, or (what is more apt to be the case) on the side opposite to that on which the first was called. By reciprocal interrogation, in which (on one side or on both) an extraneous witness takes a part, truth will acquire a better chance for being brought to light than it could have without this assistance: the seeming contradiction may be cleared up, or the incorrect testimony shown to be so.
True it is, that the same end might be arrived at, without admitting any extraneous witness to perform the function of an interregator; viz. by the instrumentality of the party, or his advocate.
But in the case in question, it is only by means of the witness that the party can be apprized of the facts, or supposed facts, on which the questions are to be grounded. By interposing, between two individuals to whom (if to anybody) the facts of the case are known, another individual to whom they are unknown (besides the useless consumption of time), no help to truth can be gained, and much help may be lost.
Both were present (suppose) at the same transaction: how prompt and lively in such a case is the interchange of questions and replies on both sides! How instantaneously the points of agreement and disagreement are brought to view! How instructive is the department exhibited on both sides on the occasion of such a conference! Of the advantage possessed by the oral mode of extraction in comparison with the epistolary, much (as will be seen* ) depends on the promptitude of the response—on the exclusion thereby put upon mendacity-serving reflection and invention. Interpose between the two individuals (both privy to the transaction) another who is a stranger,—both the advantages in question (viz. the promptitude of succession as between question and answer, and the real evidence furnished by deportment) are in great measure lost.
Other cases there are, in which the regard due to the interest of the witness himself (the proposed interrogator) calls for the admitting him to the exercise of that function.
1. The witness happens to have a collateral interest in the matter of dispute. In the testimony delivered by another deponent (plaintiff, defendant, or extraneous witness on either side,) incorrectness has taken place to the prejudice of such collateral interest. The testimony (suppose) will be, or is liable to be, divulgated and recorded.—It seems unreasonable, that, from a dispute having place between two parties, a third should suffer an irremediable prejudice. Here we see the case of a special interest: and an interest susceptible of almost as many diversifications as any which can be at stake in the principal cause.
2. His reputation for veracity is, by the proposed interrogator, seen to be put in jeopardy by the incorrect statement delivered by another witness as above. Why for this, any more than any other injury, should a man stand precluded from the means of self-defence?
Attacked in his person, the law would not refuse him permission to defend himself on the spot: the protection which it grants to his person, why should it refust to his reputation? Here we see the case of a sort of general interest, the interest of reputation: or (to employ the denomination more in use in the language of evidence) of character.
Causes (says an objection) would at this rate grow out of one another, and thence litigation without end.
Nay (says the answer) it is not the demand for litigation, it is not injury, that would in this way be increased: it is only the means of redress for injury, that would in this way be afforded: redress rendered incompatably more easy and effectual than at present.
It is not by the fear of an excess, but by the fear of a deficiency, of litigation, that, under the fee-gathering system, this undilatory, unexpensive, and comparatively unvexatious, mode of redress, has been shut out. To open the door to such explanations would be to rip open the belly of the hen with the golden eggs.*
All three cases being accidental, and comparatively extraordinary; no doubt but that the admission of a witness to the faculty of interrogation must be committed to the discretion of the judge: grantable either of his own motion, at the instance of the party, or at that of the witness himself, according to the nature of the case, as above.
In the case of the party, liberty of interrogation is a matter of right: since a case cannot be figured in which it ought not to be allowed. Of the several distinguishable descriptions of witnesses, if to any one it were matter of right, so would it be to all: the consequence might be the most intolerable confusion. A malâ fide plaintiff or detendant, by calling in adherents and confederates of his own in unlimited numbers, might swell the amount of delay, vexation, and expense, to any height.
One case, that of a party (say the plaintiff,) made subjectable, on the occasion of delivering his testimony, to interrogation by a person whom he is about to call in the character of an extraneous witness, affords a particular objection on the ground of the danger of mendacity-serving information. By the supposition, the witness—the extraneous witness—has no interest, no avowable and rightful interest, in the cause. If then he be to be admitted to interrogate, it can only be in the character of an advocate; an agent of the party whom it is proposed he should interrogate. But, between the character of an agent and the character of a witness, there is a sort of incompatibility: on the part of an agent, partiality ought to be supposed; on the part of a witness, impartiality is a quality that ought to be cultivated and guarded with all imaginable care. To admit interrogation from such a quarter, is to incur a needless danger of bias or of mendacity on the part of the extraneous witness, and thus of mendacity-serving information from him to the plaintiff-deponent.
Answer: 1. From a man’s being disposed to afford that assistance, the affording of which is consistent with the laws of probity (viz. affording information in a direct way by his own testimony, and in a less direct way by questions tending to extract information from another person,) it follows not that he will be effectually disposed, or so much as at all disposed, to afford mendacity-serving information.
2. Between the character of a witness for one of the parties, and the character of an agent for the same party, there neither ought to be any such incompatibility, nor is in general in established practice; at any rate not in English practice. A man known to be an agent of the party, is admitted to depose at his instance, and in that respect on his behalf, without difficulty.
3. If the danger on this score were serious enough to be conclusive, excluding the witness from acting in this case in the character of an interrogator would not suffice to obviate it: for so long as any other person alike partial to the interest of the plaintiff (say the plaintiff-deponent’s own advocate, say a fellow-plaintiff or his advocate) were permitted to interrogate, the same sinister end might be compassed, as well by the witness’s communicating the proposed question to these allowed confederates, as by his propounding it himself.
Thus stands the matter on the footing of sinister interest; interest prompting the individual in question to promote the departure of the deponent from the line of truth. But in the case of an extraneous witness (considered with a view to his appearance in the character of an interrogator) there exists a naturally-operating tutelary interest, tending to engage him to employ the information he is master of in framing questions, the tendency of which will be to confine the testimony of the deponent within the pale of truth. The deponent has been delivering his testimony—the extraneous witness has had communication of it, or heard or read the minutes taken of it: a passage that he has remarked in it strikes him as deficient (no matter from what cause) in correctness or completeness—in those respects, one or both, it disagrees with the testimony which he himself has delivered. Independently of all personal interest (honest or dishonest) in the cause; what desire can be more natural, what more general, than, by questions, or any such other means as are allowed, to interpose in the view of supplying the deficiency? Let the permission of satisfying this desire be allowed, a sort of contest springs up, a sort of combat takes place, between the deponent and the interposing witness: a clashing of counter-assertions and counter-interrogatories,—a collision from which truth and justice have nothing to fear, everything to hope.
Instead of this immediate collision between the deponent and the proposed interrogating witness, substitute an examination performed by the party interested or his advocate, without other assistance than that of the proposed interrogating witness: who does not see that this operation will be, comparatively speaking, languid and ineffective? When two persons, each a percipient witness of the transaction of which they both speak, stand up in contradiction to each other, the guard of artifice is beat down: mendacious invention, unable to find apt matter at such instantaneous warning, is confounded, and driven into self-contradiction, or self-condemning silence.*
For the deponent, instead of the plaintiff (as above,) put the defendant; making at the same time, in the description of the interrogator, the correspondent changes: you will mid the arrangement subjecting him to be interrogated by the three other sort of persons proposed in that quality, recommended by the same reasons.
Such and so various are the descriptions of persons by whom it may be of advantage to the interests of truth and justice that the process of interrogation should be performed. Performed and to what purpose? To the purpose so often mentioned, viz. that of making what provision can be made for the completeness, as well as correctness, of the aggregate mass of evidence.
And in what view and intention were these several classes of persons looked out for?—In the view of collecting the requisite stock of appropriate skill and appropriate information: whatever skill (derived from experience) might reasonably be looked for as requisite and sufficient for the purpose, applied to whatever information the particular circumstances of the individual case might happen to afford.
But without the requisite share of zeal to put those means into action, and give them a suitable character, all the skill and all the information imaginable would still be of no use. It was for this purpose that all the distinguishable interests, which, in each individual case, the nature of the case might happen to afford, were carefully looked out for; for, supposing any one such interest left out, and the case so circumstanced as to afford a fact which no other but that interest would prompt an interrogator possessing the requisite share of skill and information to call for,—the necessary consequence is that pro tanto the mass of evidence remains incorrect or incomplete: and howsoever it may fare with other persons having other interests, misdecision and injustice to the prejudice of the possessor of that interest will be the probable consequence.†
Thus much then is, I flatter myself, pretty clearly understood; viz. that when all the interests at stake in a cause are comprehended, and the faculty of interrogation allowed to the possessors of those several interests without exception, over and above the faculty of adducing such testimony as they themselves may happen to have it in their power to adduce; the best provision is made that can be made for correctness and completeness (so far as information and zeal at least are concerned:) and that, on the other hand, while there be any one such interest to which that faculty is denied, the provision made is imperfect, and pregnant with deception, misdecision, and injustice.
But what (I think I hear an English lawyer crying out and saying)—what is all this but a round-about way of observing, that in every cause cross-examination ought to be allowed?
In answer, what may be admitted is, that, towards conveying the conception above meant to be conveyed, this word (to which no equivalent seems to be afforded by any other language than the English) does more than can be done by any other single word in actual use.
What on the other hand requires to be observed, is, that, had this word and no other been employed, the conception conveyed by it would, as well in point of correctness as in point of completeness, have been in no slight degree discordant with the truth of things, for,—
In the first place, the salutary effect in question will be seen to be obtained in a variety of cases in which no such operation as that denoted in English practice by the word cross-examination is performed.
In the second place, cases will be seen in which an operation called by the name of cross-examination is performed, and the salutary effect in question is either not promoted at all, or promoted in a mode and degree very imperfect in comparison with that which is generally understood as attached to the performance of the operation so denominated.
There is another and a perfectly sufficient reason, for not being contented with saying that cross-examination should be allowed. This work, if it be of any use to any one nation, may be of no less use to any other: if it be of any use to-day, its use will not be obliterated by cycles of years succeeding each other in any number. It to the substance of the practice denoted in the English language by the word cross-examination, there be attached (as it appears to me there is attached) a virtue in a peculiar degree salutary to justice; it would be too much to say or to suppose that an acquaintance with the language of this small part of the globe is indispensable to it; that it is only by understanding English that a man can understand what is necessary to justice.
Thus extensive, and in themselves occasionally almost unbounded, are the demands presented by the direct ends of justice,—the latitude demanded in respect of the number of persons to be admitted to the faculty of interrogation, to make it absolutely sure, that of the persons (whatsoever may be their number) having each a separate interest in the cause, no one shall be exposed in any degree to suffer for want of it.
But on this, as on every other occasion, the operations prescribed by the direct and ultimate ends, find their necessary limit in the regard due to the collateral end, of justice. On this as on every other occasion, care must be taken—taken by the legislator, and discretionary power in corresponding amplitude allowed by him to the judge,—that, for the avoidance of a possible mischief in the shape of a misdecision, a certain and immediate mischief be not admitted to a preponderant amount in the shape of delay, vexation, and expense. But for this, the number of persons standing together on the defendant’s side of the cause, and possessing each a distinguishable interest, might, by the nature of the cause, be every now and then swelled to such a pitch, that, by conjunct operation (with or without concert and conspiracy,) the value of the service demanded (how considerable soever,) might eventually, or even to a certainty, be overborne by the weight of the delay, vexation, and expense thus attached to the prosecution of it; and thus, sooner or later (over and above all the collateral inconvenience,) direct and certain injustice to the prejudice of the plaintiff’s side would be the necessary result.
On the part of the judge exists the requisite allotment of skill: this, provisionally at least, must all along be supposed. At the command of the judge lies the whole stock of information which, in each individual case, the nature of the case affords: for this may all be supposed,—understand always, in so far as the information possessed by one man can, to this purpose, be deemed with propriety to be in possession of another.
In the exercise of judicature in every country, among the occupations of the judge—among the obligations which the judge is expected to fulfil, is that, of applying that skill and that information to the discovery of the truth through the medium of evidence. If, then, interrogation be indeed, as it was not denied to be, an apt instrument for that purpose, why, it may be asked, look out for any other hands to lodge it in? What is there in his station to hinder him from employing it? and employing it to the utmost advantage to which it is capable of being employed?
What should hinder him? Two deficiencies:—deficiency in respect of two out of three endowments (not to speak here of probity,)* the union of which is necessary to the discharge of this function to the best advantage: appropriate information, and zeal.
1. Appropriate information: for the faculty of obtaining possession is not itself possession: to have a chance, and but a chance, of possessing a thing some days hence, is not the same thing as the actual possession of it at this very instant: information at second hand is not the same thing as information at first hand. These considerations have already been mentioned among the reasons for allowing the judge to admit a witness to the exercise of this function, as well as a party or his advocate.
2. In the article of zeal, the inferiority of the judge as compared with the party, is not less obvious or undeniable. Equality in this respect is an endowment which seems hardly to be wished for, were it even attainable: as being incompatible with that characteristic calmness and impartiality, for the want of which no other endowments can atone.*
In this general point of view, the deficiency natural to the station of the judge is, indeed, sufficiently obvious: although in Roman practice the recognition of it has not had any such effect as to have produced (except in a comparatively narrow case) the communication of any share of it to any other of the stations in the cause; that of a party or that of an extraneous witness.
But what is not quite so obvious, nor is yet altogether unworthy of remark, is the different degrees of zeal which, in causes or inquiries differently circumstanced, will naturally be apt to infuse itself into the station of the judge.
1. In one class of causes, and that more numerous than all the others put together, his zeal may be set down as being naturally at its minimum. This is the class of causes between man and man; the class composed of non-criminal causes.
Not but that, even here, the indifference so natural, and frequently so observable, in the situation of the judge, may be referable, in no inconsiderable degree, to a collateral and not altogether inseparable cause: viz. the natural state of procedure under the technical system; which, in these cases, never fails to afford, on some terms or other, to each of the persons an advocate, or advocates: one sure way of realizing which state of things, is the refusal to listen to the party unless he employs an advocate.
In this state of things, by one sort of interest, to the action of which the judge, like every other man, is continually exposed (viz. the interest corresponding to the love of ease,) he is continually urged to get through the business with as little trouble to himself as possible. Here then we have a sinister interest, which (supposing it to stand alone, or without being encountered by any interest, acting in a tutelary direction, of sufficient force to overcome it) will be sufficient to render the faculty of interrogation, as far as he is concerned, altogether nugatory.
In the view that will come presently to be taken of the existing modifications of technical procedure, we shall see this sinister interest acting with very little opposition from any tutelary one: but of this in its place.
In the employment of this instrument to the best advantage, the advocate, in so far as he is admitted to wield it, has an obvious, and in a considerable degree efficacious, interest: his bread, in many cases, depending on his professional reputation; and the reputation of the advocate having a natural and intimate connexion with the success of the client.
In this interest, the judge, it is evident, has not the smallest share. His reputation is, indeed, in a certain degree, dependant on the apparent justice and propriety of his decisions; and on their actual, in so far as their apparent depends upon their actual, justice. But the apparent justice of a decision grounded on a body of evidence depends upon that evidence: depends upon the evidence, not as it might have been, but as it is. In this state of things,—so long as the evidence, as collected by him, does not appear to be either incorrect or incomplete,—in what degree it really is so, is to the interest of his reputation a matter of indifference. Moreover, so far as appearances are concerned, everything depends upon publicity: insomuch that, supposing perfect secresy, it is with this part of the business as with every other,—let it be done as well as possible, or as ill as possible, his reputation is exactly in the same state.
2. The case in which the zeal of the judge on this occasion may be expected to be found at its maximum, is that of the species of procedure already described under the name of inquisitorial procedure: a case which comprehends the whole of the criminal branch,—in so far as the business of receiving, collecting, and investigating the evidence against the defendant, rests (especially if it rests exclusively) in the hands of the judge,—without any co-operation, (or at least without the necessity of any co-operation) on the part of any other person in the character of prosecutor (the name, in this branch, given to those who act on the plaintiff’s side of the cause.)
In this case, that in the article of zeal there should be any considerable deficiency on the part of the judge, will not, on a general view, be found natural to the case.
To repress his activity, the same vis inertiæ the love of ease, is operating, in this as in the other case: but in this case it is natural to it to find counter-forces (and these adequate to the surmounting of it) such as do not apply to that former case.
Here is an end to be accomplished; an end which (setting aside particular and casual interests and affections) men in general have an interest in seeing accomplished, and an interest which, in some degree or other, is pretty generally felt by the judge himself, along with the rest: and his is precisely that particular situation from which the general interest will naturally be viewed in one of its strongest lights. To accomplish this end, is a task committed, and universally known to have been committed, to his charge—a task not forced upon him, but voluntarily accepted by him, along with the other functions attached to his office; his reputation for professional skill, as well as industry, is attached to the due execution of this power, and, in the case of real delinquenry, to the successful execution of it.
Under these circumstances,—to produce a considerable, and in general an adequate, degree of zeal and exertion on his part—neither to excite it in the first instance, nor, à fortiori, to keep it up, is any such interest as pecuniary interest, in the shape of a mass of fees depending in any way upon success, necessary. Of the hunter who toils the whole day to catch a stag or a fox, whom he lets go as soon as caught, the zeal is neither awakened nor kept up by any such prospect as that of fees.
In so wide a field, general principles of action are liable, in certain cases, to be overborne by particular ones. But upon the whole, that in this case the situation itself is literally adequate to the production of the quantum of zeal requisite for the effectual discharge of the function, directly and principally attached to it (viz. the receiving, collecting, and investigating evidence, and, by means of the instrument of interrogation, giving correctness and completeness to it,) at least in so far as the operation of the evidence tends to bring about the conviction of the real delinquent, seems pretty generally testified by experience.
In this view may be cited—1. Under the Roman system, the conduct of the business, from beginning to end, in the case of those crimes of high degree, which, affording no individual prompted by peculiar interest to take upon himself the vexation and expense attached to the station of private prosecutor, are left to be prosecuted for, as well as decided upon, by the judge. 2. Under the English system, the preparatory inquiry conducted by a justice of the peace, in the case of a crime of the rank of felony. 3. Under the same English system, the inquiries conducted by tribunals organized on special occasions, for special purposes—whether by the authority of either house of parliament, under the name of a committee—or under the authority of the whole legislature, under the name of a commission of inquiry.
Excess rather than defect of zeal has in these cases been the more frequent topic of complaint. In the case of that tribunal (the inquisition) to which the denomination of this species of procedure has become attached,—as if it were the only tribunal in which the two functions of prosecutor and judge had ever been united,—the complaint has risen long ago to a height become proverbial.
It is from the abuse made of the faculty of interrogation, on the occasion of its being applied to the disastrous purpose there in view, that criminals of all sorts, co-operating in this way without the need of concert—criminals of all sorts, with their accomplices after the fact, and abettors of all sorts—have taken occasion to labour, and with but too much success, in deluding the public mind, and setting it against the application of the same instrument to the most necessary purposes—laboured, and with as much reason, and even appearance of reason, as if their enendeavour had been to stamp the like infamy upon the power of judicature itself, or upon the use of the interrogative mood as applied to any of the other common purposes of social intercourse.
Though interrogation by the parties is of itself, in general, a more effectual security than interrogation by the judge, the former, nevertheless, does not supersede the latter.
Though, in respect of special information applying exclusively to the facts appertaining to the individual cause in hand, the parties will (one or other, or both of them) be better qualified for the task than the judge,—yet, in many instances, the superiority of general information, discernment, and promptitude, naturally resulting from the superiority of experience, will enable him to bring to light facts, for want of which the testimony would have been incomplete, or meudacity, if employed by the witness, would have escaped detection. In no case, it is evident, can such assistance be deemed superfluous; but there are various circumstances by which the demand for it may be increased: it there be any deficiency in point of intelligence or exertion on the part of the advocate on either side; if on either side there be no advocate,—and the party (by mental weakness, the result of sex, age, bodily indisposition, want of education, natural dulness, and so forth) be in any particular degree disqualified from conducting his own cause with due advantage.
As to zeal: though in this point the judge cannot reasonably be expected to be upon a par with the party interested; yet, with the advantage of professional education and experience, a much inferior degree of exertion will frequently enable him to render much more effectual service;—so that, upon the whole, in the character of an interrogator, the judge, though but an inadequate substitute, may, with reference to the party, be deemed an indispensable assistant.
Affections of the several proposed interrogators and respondents towards each other, how far presumable.
Such or such a person in the character of an interrogator,—shall it be permitted to him to interrogate such or such another person in the character of a proposed respondent? To settle the answers to these several questions is one practical use of the double list of proposed respondents and interrogators.
But, in judicial practice, rules have been grounded on the supposed affections of this or that person in the character of a respondent, to this or that other person in the character of an interrogator, or vice versâ: rules prohibiting or allowing such or such a mode of interrogation in the several instances.
Here, then, we have another practical use of the list: inquiring into the nature and solidity of the grounds for ascribing to such or such a situation such or such a state of the affections; and thence into the propriety of the prohibitions and permissions respectively administered by these rules.
In most instances we shall find ground for a presumption ascribing to a party in one of these situations, with relation to a party in such or such another of these situation, such or such a state of the affections. But in each of these instances it will be manifest, that, from one cause or another, such presumption is liable to fail: from which inconclusiveness and uncertainty, follows, in every instance, the impropriety, whether of prohibition or of permission, if established by any such peremptory and unbending rule.
1. Proposed respondent, an extraneous witness called by the plaintiff; proposed interrogator, the plaintiff or his advocate.
The superior probability is, that the affections of the proposed respondent are either neutral, or favourable as towards the side from which the interrogation proceeds. For, supposing the party to have his choice of witnesses, he will pitch upon such as he expects to find favourable to him, or at least neutral: he will avoid calling such as he expects to find adverse.*
But this probability, such as it is, is manitestly much exposed to failure. It is not of course, and always, that a party has any such choice of witnesses: those cases which afford no such choice are the most apt to be productive of legal dispute. Of whatever number of distinct facts it may be necessary to the plaintiff to prove, it there be a single one which cannot be proved by any other evidence than the testimony of a witness rendered adverse to himself by any repuguancy of interest or cause of antipathy, or (what comes to the same thing) rendered amicable towards the defendant by any tie of interest or sympathy; he must either give up his right altogether, or, instead of finding the road to information smoothed by the neutrality or sympathy of the proposed respondent, find it obstructed by his ill-will and reluctance.
2. Proposed respondent, an extraneous witness called by the defendant; proposed interrogator, the defendant or his advocate.
Under these different names, to the purpose here in question, this second case is in substance the same as the first.
3. Proposed respondent, a plaintiff; proposed interrogator, a co-plaintiff or his advocate.
Here the presumption is, that the affections of the proposed respondent are not merely neutral, but highly favourable to the proposed interrogator, and vice versâ; because here, in respect of the cause itself, is a declared community of interest.
In this third case, the presumption, it is evident, is much stronger than in either of the two former.
But here also it is liable to failure. 1. Under the apparent bond of union, an original opposition of interests may be concealed.* 2. The declared interest which the proposed respondent has in common with the proposed interrogator, may be outweighed by some undeclared and secret opposite interest: or, between the proposed interrogator and a party or parties on the other side of the cause, collusion may have place.†
4. Proposed respondent, a defendant; proposed interrogator, a co-defendant or his advocate.
Presumption here the same as in case 3: causes of failure also the same. But in this fourth case the presumption is weaker; the existence of a cause of failure being more probable. For, without his own consent, no man can be made a plaintiff—any man a defendant. Into the station of defendant it rests with any individual in the character of plaintiff to force any number of individuals actuated by mutually opposite interests.
5. Proposed respondent, a witness called by the defendant; proposed interrogator, the plaintiff of his advocate.
Here the presumption is, that the affections of the proposed respondent are adverse to the proposed interrogator. But, under the first case, it may already have been seen in how high a degree, in the present case also, that rule is exposed to failure.
6. Proposed respondent, a witness called by the plaintiff; proposed interrogator, the defendant of his advocate.
What belongs to this sixth case may be seen in what has been said of the last preceding one.
7. Proposed respondent, a defendant; proposed interrogator, the judge.
Here the presumption—the first presumption at least—is, that, as towards the defendant, the affections of the judge are neutral.
But where the case has been a criminal one, and more particularly of the most highly penal class, under the secret modes of inquiry which have been generally in use in the Roman school,—the judge, in many instances, uniting to that neutral the partial function of plaintiff,—a suspicion that has trod fast upon the heels of that presumption is, that an occasional wish has place on the part of the judge (whether in prosecution of his own inclinations or those of some other member or members of the government) to find pretences for misdecision to the prejudice of the defendant’s side.
After the above exemplifications, the extension of the inquiry to the several other diversifications of which the relation as between proposed respondent and proposed interrogator is susceptible, will, it is imagined, be found to present but little difficulty.
Distinction between amicable interrogation and interrogation ex adverso.
Not for completeness only, but for correctness likewise, suggestion ab extrà, such as it is of the nature of interrogation to afford, and occasionally perhaps almost any suggestion that it is in the power of interrogation to afford, may be necessary; and this, whatever may be the state of the interests or affections of the respondent, as towards the person by whom, or in whose behalf, he is interrogated.
It may be necessary where the affections of the respondent are indifferent, or even partially favourable, as towards the interrogator; for, on any ordinary occasion on which you seek for information (if the subject be of a certain latitude,) apply to your most intimate friend—let him be fluent in speech as well as communicative in disposition—how seldom will it happen that a single question (how comprehensively soever framed) will be sufficient to draw from him all the information you wish to receive!
Interrogation from an interrogator, between whom and the respondent the affections are in either of these states, may, to distinguish this case from the opposite one, be termed amicable interrogation.
But the case in which the demand for this security is by far the stronger and more conspicuous, is that where between the two interlocutors there exists a contrariety of interests or affections.
Interrogation in this case may be termed adverse interrogation: interrogation ex adverso, or ex opposito.
In a former section, different descriptions of persons, in considerable and almost indeterminate variety, have been brought to view, as being upon occasion capable of rendering service to justice by contributing to the extraction of the light of evidence; in particular, the parties on both sides (with their representatives,) the judge, and extraneous witnesses.
In the language of English law, there are two descriptions of persons, and but two, from the consideration of whose relation to the cause the operation of interrogation or examination receives a particular denomination. When the deponent (being an extraneous witness) is interrogated at the instance of the party by whom his testimony was called for, he is said to be examined in chief—his examination is styled the examination in chief: when, immediately after such his examination in chief, he is interrogated on the part of a party whose station is on the opposite side of the cause, he is said to be cross-examined—the examination is termed his cross-examination.
Attached in general to the circumstance of his being examined by that side of the cause by and from which his testimony was called for, is the notion of his affections being favourable to that side of the cause, and thence of a willingness on his part to give a correspondent shape and complexion to his responses. Attached in like manner to the circumstance of his being examined on that side of the cause which is opposite to that by and from which his testimony was called for, is the notion of his affections being unfavourable to that side of the cause, and of a corresponding adverse shape and complexion given to his responses.
And, from this supposition, practical rules of no slight importance have been deduced.
Were this notion uniformly correct, then, and in that case, examination ex adverso would be synonymous with cross-examination. But we have already seen how far this notion is from any such uniform correctness.
To the supposition of an agreement or disagreement of interests, that of a correspondent relation of affections naturally attaches itself. Concerning this relation (of whichsoever of the two opposite kinds it be,) the natural supposition is, that it is mutual, and even (in default of reasons to the contrary) equal. Neither this equality, nor even that mutuality, is, however, as is sufficiently known to everybody, constantly verified in practice. When either the term amicable interrogation, or the term adverse interrogation (or rather interrogation ex adverso) is employed, then the above-noted irregularities ought not to be overlooked.
Where the exertions of one of two parties (the interrogator) are employed in the endeavour to bring to light a fact, or other object, which the exertions of the other party are all the time employed in the endeavour to keep back,—on the part of that one of them on whom the force is thus endeavoured to be put, the existence of an emotion of the angry kind, to a degree more or less intense, can scarcely be supposed to be altogether absent: more especially if, with reference to the respondent, the obvious consequences of the disclosure be of a nature decidedly and eminently penal; such as the loss of property, liberty, reputation, or life.
At the same time, on the part of the interrogator, on that same afflicting occasion, the supposition of an emotion of the angry kind (looking towards the unhappy respondent) is far indeed from being a necessary one; as in the case where, on that same occasion, the melancholy function is in the hands of a humane and upright judge.
To warrant the employment of this necessary term, it therefore is not necessary that the emotion or the natural ground should exist on the part of both interlocutors: it is sufficient if it exists on either part. Be it reciprocal, or but unilateral,—in either case there will be the same reluctance on the part of the respondent—the same sort of unwillingness as to the yielding the information which it is the endeavour of the interrogator to extract: the same psychological difficulties and obstacles will therefore be exerting their force in the endeavour to prevent the testimony from possessing that degree of completeness and correctness with which, for the purposes of justice, it is so necessary that it be endowed.
Nor is this sort of dialogue between interlocutor and interlocutor, the only relation by which the sort of opposition above described, and the consequent danger of incompleteness and incorrectness, is liable to subsist.
The interrogator being a party (say the defendant,)—let the respondent be an extraneous witness, called by an opposite party (the plaintiff,) and already interrogated by or in behalf of that party; and, in point of affections, let the witness be, with reference to each party, altogether unopposite—equally indifferent, to both, or equally a friend to both. The string of questions put to the witness being completed, will his evidence be altogether correct, as well as complete? Correct, seldom; complete, still more seldom. Why? Because, in quality as well as quantity, the facts delivered by the respondent will naturally have been influenced, more or less, by the nature and object of the questions, and hence by the object which the interrogator had in view: and the object which the interrogator had in view probably embraced the keeping back a part (more or less considerable) of the facts considered as likely to operate to his prejudice; and almost to a certainty did not embrace the bringing forward any such facts.
In this case, then, the interrogation,—though not adverse with relation to any interest, or affection, or emotion, of the person interrogated,—may, with not the less propriety, be termed interrogation ex adverso—ex adverso with relation, not to the respondent himself, but with relation to an antecedent interrogator.
In the case just put, the affections of the respondent were, with reference to the party by or in whose behalf he is under interrogation, supposed to be in a state of indifference. But a case not less natural, and indeed considerably more natural, is a state of favourable partiality. In this case, the obstacles tending to prevent the completeness and correctness of the testimony, the obstacles which the interrogator has to contend with, act (it is evident) with additional force.
On the other hand, while it is certain that the interests and affections of the preceding interrogator will be opposite with relation to the interests and affections of the succeeding interrogator, a case which, though comparatively unfrequent, is notwithstanding sometimes verified, is, that the affections of the witness shall be partial, in favour not of the party by whom he was called, but of the party adverse to the party by whom he was called.
This being the case, the force tending to produce incorrectness and incompleteness on the part of the testimony,—the force against which the second interrogator has to contend,—this force, considered in respect of its dependence upon the state of the affections of the three several individuals bearing a part in the business, admits of three cases or gradations:—Case 1. The respondent favourable to the second interrogator: Case 2. The respondent indifferent: Case 3. The respondent adverse to the second interrogator.
When the respondent is a mere witness (an extraneous witness,) himself without interest or affection in the cause,—on the part of the judge, the process of interrogation is scarcely susceptible of either of the pair or adjuncts, amicable or adverse. The witness has no desire to keep back anything: the judge has, or at least ought to have, a desire to get out everything—every fact and circumstance (in favour of whichsoever side it may chance to operate) that promises to be material to the cause. To prevent the judge from getting whatever evidence the source affords, there is nothing on his part but want of skill, want of appropriate information to direct his interrogatories, and deficiency of zeal, as above.
When the respondent is a party, the judge, in the character of an interrogator, cannot fulfil his obvious and acknowledged duty,—cannot do in every instance what depends upon his exertions towards giving completeness and correctness to the aggregate mass of testimony,—without occasionally presenting to the party (according to the nature and tendency of the fact sought—according to the side in favour of which it operates) two opposite aspects; the one amicable, the other adverse, amicable, in so far as the fact sought for promises to operate in favour of the respondent’s side; adverse, in so far as it promises to operate against that side, or (what comes to the same thing) in favour of any opposite side.
Of the question put by the judge to an extraneous and indifferent witness, not one (it has just been observed) can be termed either amicable or adverse in relation to such respondent witness. But, of the same questions, not one (so it be material to the purpose) can fail of being at once amicable and adverse with reference to the parties: amicable, with relation to the one; adverse, in the same degree, with relation to the other.
In a criminal case—at least if it be of that class of criminal cases which presents no individual in the character of a party injured,—there being but one individual whose interest is at stake (viz. the defendant,)—in the language naturally employed on this occasion, that one individual is the sole object in view: and he, and he alone, is the party with relation to whom the adjuncts amicable and adverse are employed.
Considered, then, with relation to this individual, it will be always true to say, in speaking of the whole string of interrogations put to him by the judge, that the aspect manifested by the judge, in respect of them, to the defendant, ought to be at once amicable and adverse: and on this occasion, each of these adjuncts may be employed with propriety, so the other be at the same time employed with it; neither can, without the most flagrant impropriety, be employed alone.
That, in respect of his interrogatories, the aspect of the judge ought to be adverse to the defendant (who, in a case where the arrangements of procedure bring him into court in a state of confinement, is called, in the language of English law, the prisoner,) if nothing be said of what it ought to be on the other side,—is a proposition too monstrous, too revolting, to have ever been advanced. How often soever it may have been pursued in practice, in discourse no such monstrous maxim has ever been professed.
That, in the same respect, the aspect of the same public functionary ought to be amicable to the prisoner, in the sense just mentioned as attached in this case to the term amicable (the same silence being observed as to the opposite aspect, with which it is necessary it should be accompanied, if it be reconcilable to the ends of justice,) is a proposition equally monstrous, though in an opposite way; and equally repugnant to the ends of justice; but, unhappily (such has been the weakness of the public mind,) not equally revolting: and it is under favour of this weakness that currency has been given to one of those sophisms, under which, by the artifices of hypocrisy, the grossest selfishness and the most sordid corruption have succeeded in imposing themselves upon mankind under the names of humanity and virtue.
I speak of the current maxim, that the judge ought to be of counsel with the prisoner—meaning the defendant, in a prosecution which subjects the defendant to provisional imprisonment for safe custody. This proposition, being in one sense indubitably true and consonant to justice, but liable to be taken, and most commonly taken and applied, in a sense in which it is false and hostile to justice, bears no inconsiderable part among the causes that concur in keeping up the stock of crimes in its present state of abundance.
In every cause, these are at least two sides—that of the plaintiff, and that of the defendant. In every cause it is the indisputable duty of the judge to do what depends upon him towards bringing to light all the material facts which the cause is capable of furnishing; whatever facts make in favour of the one side—whatever facts make in favour of the other. To apply his endeavours to bring to light such of the facts as promise to operate in favour of that side of the cause on which he is engaged, is at any rate the function (not to enter into the question of duty) of the counsel, the advocate, on that side—in favour of the defendant’s, the prisoner’s side, when engaged on that side. In this sense it is the equally indisputable duty of the judge to be of counsel with the defendant. His duty? Yes: but on what condition? On condition of being of counsel in the same sense, and to the same purpose, on the opposite side—on the side of the prosecutor, or other plaintiff. On every occasion, and to whatever purpose—on which side soever the truth promises to operate, it is his duty to use his endeavours to bring it out. Giving this double direction to his endeavours, he serves both sides of the cause.
Now, of the man who serves both of the opposite sides of a cause, it cannot be denied but that he serves each of them. Take which side you will, it cannot be denied but that he serves that side—it cannot be denied but that he acts as counsel on that side.
Here, then, lies the mischief. Beneficial and justifiable in one sense,—the proposition is employed in another sense, in which it is pernicious and unjustifiable. It is only on condition of his occupying himself with equal industry in favour of the opposite side, that it is the duty of the judge—that it is otherwise than a crime in the judge—to occupy himself in the way in question, or in any other way, in favour of the other. Set aside this indispensable condition, it is a crime on the part of the judge to occupy himself in favour of either side. In point of propriety, next after impartial activity comes impartial negligence.
Fairly translated, stripped of its disguise, what is the argument of this sophism? It is the duty of the judge to be impartial;—therefore it is his duty to be partial.
Question of duty once more set aside,—it is the function, at any rate it is the constant occupation, of the counsel for either side—of the counsel for the defendant, of the counsel for the prisoner—to use every endeavour that the law does not forbid, towards procuring success for that side—towards procuring an acquittal for the defendant his client; whether he be innocent or guilty, whether by truth or falsehood (so the falsehood be unpunishable,) are questions which make no difference—questions not worth thinking about—questions that in practice are not thought of, nor, according to current axioms, have any need or title to be thought of.
A man has committed a theft; another man, who, without a licence, knowing what he has done, has assisted him in making his escape, is punished as an accomplice. But the law (that is, the judges, by whom in this behalf the law has been made,) have contrived to grant to their connexions acting in the character of advocates, a licence for this purpose. What the non-advocate is hanged for, the advocate is paid for, and admired.
Among the expedients that have been contrived for selling impunity to such criminals as have wherewithal to purchase it, is the invention which will be hereafter spoken of under the appellation of a decision on grounds foreign to the merits.* To discover all grounds of this sort that can be discovered, and, as often as any such ground can be discovered, to call for a decision productive of an acquittal to the delinquent defendant, is among the functions of the counsel when enlisted in the criminal’s service. Justifying, and even commending, on the part of the judge, discoveries of the same kind, is one of the most favourite of the services on which the maxim here in question is wont to be employed. It is the duty of the judge to do that which, if he were not a judge, or a man of law in some other shape, he would be punished (and not without reason,) in the character of an accomplice, for doing.
Of a rational and honest aphorism on this subject, what would be the purport and effect? That the judge ought to be counsel for all parties, and that in all sorts of causes. Not in criminal causes alone, and such criminal causes alone in which the defendant is in the condition of a prisoner,—and in those causes on the side of the defendant alone; but alike for all parties, and in all sorts of causes. Where is the cause in which any the slightest departure from the rule of impartiality is, in the eye of justice and reason, anything less than criminal on the part of the judge? Not that a mere negative impartiality is sufficient; a positive, an active impartiality, must be added to it: to be equally active in his endeavours to search out the truth on both sides,—that is the true impartiality, the only true and proper sort of impartiality, befitting the station of the judge.
Thus much is true, indeed,—that, next to the positive and negative impartiality conjoined, comes negative impartiality alone: next to his taking equal pains to search out the truth on both sides, is his not giving himself any concern to search it out on either side.
The psychological cause of this adage—is it worth looking for? In the currency given to it, humanity, or rather childish weakness, may possibly, in here and there an instance, have had a share;—hypoerisy, selfishness covering itself in the mask of virtue, is in every instance a more probable cause. It is among the artifices employed by lawyercraft to reconcile the public mind to the sale of indulgences, elsewhere spoken of. Decision in favour of the defendant on a ground foreign to the merits—decision grounded on a quirk or quibble—is among the instruments by which this species of traffic has ever been carried on.
In the individual instance in which the quibble is not only applied to this purpose, but discovered, by the judge, no immediate profit, perhaps, results to anybody: either there is no counsel, or if there be, the counsel, without the quibble, and for the mere chance of his finding out that or some other quibble, has received his fee.
But the practice itself is, in its own nature, shocking to common sense and common honesty: the public mind, had it not been duped and gulled, could never have contemplated it without the indignation and scorn it merited. A sophism, therefore, was to be invented for that purpose—a lying spirit was to be sent forth to deceive the people: and this was the imp that offered itself.
The traffic would not have been borne in any case, if the credit of the commodity had not been kept up in all cases: and nothing could contribute more powerfully to keep up the credit of the sophism, than the distributing it through the pure (and to appearance unpaid) hands of the judge. The policy is no secret to any species of impostor: like the husbandman, he knows when to scatter as well as how to gather in: the quack, that he may sell the more of his pills at one time, distributes them gratis at another.
Without strict search, assertion is not to be ventured: but, from principle, I should not expect to find that the adage had ever been employed to any other than a bad purpose. How should it? Good wine needs no bush: putting a pertinent question, bringing to light the innocence of the innocent, needs no apologies, no adages.
Nothing can be more artful than the sophism—nothing more guarded, more impregnable. Who shall contest the truth of it? Fallacious in the highest degree, no one can say that it is false. It is like one of the two sides of a correct account. So far as it goes, it is all pure justice: stop there and sink the other side, it is the quintessence of injustice. But so sure as the account thus drawn up by lawyercraft is produced, so sure is one of the sides sunk.
The English judge—would he dare to put to a guilty defendant so much as a single question that might throw light upon his guilt? Not he indeed. The sophism nursed up so carefully by his predecessors for the benefit of the common cause—the sophism here in question, is not of the number of those which a judge can bring forward or put aside as caprice may dictate: firm as a rock, his power would be shaken by it, were he to venture to attack it.
The policy has still deeper root: it is for this cause that cruel punishments are to be multiplied; and in particular that the punishment of death (a punishment not good in any case) is, as opportunity serves, to be extended to all cases. The more barbarous the punishment, the less disposed is the public mind to scrutinize into the pretences by which here and there a vietim is preserved from it.
For this cause amongst so many others, the punishment of death has ever been, and (so long as lawyercraft reigns) will ever continue to be, a favourite policy with the English lawyer.
A connexion, says Cicero, may be traced between all the virtues: a connexion still more obvious may be traced between the several branches of injustice. Injustice to the defendant’s side, injustice by excess of punishment,—and injustice to the prosecutor’s side, injustice operating by quibbles,—are consanguineous vices—vices that act in partnership, and play into one another’s hands.
OF PUBLICITY AND PRIVACY, AS APPLIED TO JUDICATURE IN GENERAL, AND TO THE COLLECTION OF THE EVIDENCE IN PARTICULAR.
Preliminary explanations—Topics to be considered.
Considered as applied to judicial procedure, and in particular as applied in the character of securities for the correctness and completeness of evidence,—of the mass of evidence which a judicial decision, pronounced on the question of fact, takes for its ground; publicity, privacy, and secrecy, are qualities which cannot, if considered at all, be considered otherwise than in conjunction.
Publicity and privacy are opposite and antagonizing, but mutually connected, qualities, differing from one another only in degree. Secrecy might be considered as exactly synonymous to privacy, were it not that, upon the face of it, it seems to exclude gradation, and to be synonymous to no other than the greatest possible degree of privacy.
For the correctness and completeness of the mass of evidence, publicity is a security in some respects: privacy—its opposite, in some other respects.
Publicity and privacy have for their measure the number of the persons to whom knowledge of the matters of fact in question is considered as communicated, or capable of being communicated.
The degree of actual publicity will be great or high, in the direct ratio of the number of persons to whose minds the knowledge of the matter or matters of fact in question has been communicated: the degree of privacy, in the inverse ratio of that same quantity.
The highest conceivable degree of publicity is that according to which the matter of fact in question would be present at all times to the minds of all the inhabitants of the globe. This highest conceivable degree of publicity being in no individual instance ever exemplified or capable of being exemplified, is consequently greater or higher than the highest possible degree of publicity.
The highest conceivable degree of privacy, is that in which the number of the persons to whose minds the knowledge of the matter in question is capable of being present (so it be present to any one such mind,) is the smallest number conceivable. This number is, of course, unity. But that in this or that instance there should be one person, and no more than one person, to whose mind the knowledge of the matter of fact in question has, on the occasion in question, been communicated, is a case the exemplication of which is neither impossible, nor so much as difficult.
Some matter of fact, for example, applicable in the character of circumstantial evidence, to the question of fact on which a decision is to be pronounced,—suppose that by some accident it has happened to it to have presented itself to the senses of the judge or a judge by whom the decision is to be pronounced; and suppose matters so ordered, that, until the time when the decision is to be pronounced, this matter of fact has not been communicated to any other mind.
Thus it is, that of publicity, the highest degree conceivable and the highest degree possible do not coincide: the highest degree possible falling short of the highest degree conceivable. But of privacy, the highest degree conceivable and the highest possible do coincide. The case in which they both have place, is that in which there is but one mind to which the knowledge of the matter in question is present, and that one mind the mind of the judge.
The highest conceivable degree of privacy, and the lowest conceivable degree of publicity, coincide: the two expressions are synonymous.
In the examination bestowed upon these opposite and antagonizing qualities, it is that of publicity that must take the lead. In publicity will be seen a quality, of which, for the most part, the highest conceivable degree can do no harm; and of which a very high degree, and such a one as cannot without some attention and exertion be secured, will be subservient and conducive at least, if not indispensable, to the purposes and ends of justice.
This being the case, establishment of publicity (and without any limits to the degree of it but what are set by the consideration of the collateral inconveniences of delay, vexation, and expense) will stand recommended by the general rule, as being, in most cases, conducive to the direct ends of justice: whereupon the cases in which privacy (viz. in a mode as well as degree adapted to the nature of this or that particular case) is conducive to those ends, will, with reference to that general rule, wear the character of exceptions.
On the present occasion, correctness and completeness of the mass of evidence are the points and objects to be provided for and secured: qualities, in relation to which, the most effectual and eligible mode of securing on each occasion the existence of them, is the problem to the solution of which it is the object and endeavour of the contents of this part of the work to contribute.
But, as the mass of evidence itself, so the correctness and completeness of that mass, is not itself an ultimate end, but a means only with reference to an ulterior end. This ulterior end is rectitude of decision; viz. on the subject of the matter in question; which, in so far as evidence is concerned, is the existence or non-existence of some matter of fact.
For what reason, it may be asked, on the present occasion, bring this distinction in view?
The answer is: For giving, on the sort of theatre in question, to rectitude of decision its best chance, it will not be altogether sufficient, either that the chief instrument of security, publicity,—or that publicity and privacy together (each in its proper place)—be applied to the mass of evidence and to that alone (or to this or that portion of it, as the case may require:) it may be necessary that these same safeguards should respectively be applied to this or that other article; for example, to the declared grounds and reasons of the decision, considered as delivered, or capable of being delivered, and rendered more or less public, by the deciding judge.
And forasmuch as (considered with relation to the correctness and completeness of the mass of evidence) the degree of consideration necessary to be bestowed on the subservient qualities of publicity and privacy will be in no slight degree ample, it may be advisable to give to the inquiry that degree of extension (beyond the proper subject of the present book, as announced by its title) which will be necessary to enable it to comprehend such other of the instruments and operations of procedure, as these same qualities of publicity and privacy may, according to the nature of each case, be found applicable to, with advantage.
In relation to publicity and privacy, the following are the topics that present themselves for consideration:—
I. The operations and instruments (judicial operations and judicial instruments) capable of being the subject-matter of publicity or privacy—of divulgation or concealment.
These seem reducible to the following heads, viz.
1. The mass of evidence in question, of whatsoever materials composed, viz. real or personal which again is either testimonial or documentary.
2. The interrogatories whereby, of what is testimonial, such part as is not spontaneously exhibited, is elicited and extracted.
3. The arguments delivered by the parties or their representatives, in the character of observations upon the evidence.
4. The interrogatories (if any) that come to have been administered by the judge.
5. The recapitulation (if any;) i. e. the summing up of the mass of evidence, performed (with or without observations of his own) by the judge.
6. The decision pronounced by the judge on the question of fact; with or without reasons.
II. The different characters in which it may be of use that, by the means and instruments of publicity employed, different members of the community should receive communication of these several matters.
These characters will be found to be those of—1. Eventual witnesses—(percipient witnesses)—furnishing ulterior and supplemental testimony, in relation to the matters of fact which are the subjects of the inquiry.
2. Witnesses who—in the character of percipient witnesses of the testimony exhibited by the principal witnesses—may eventually, in the character of deposing witnesses, be of use, by deposing in confirmation or disaffirmance of the correctness and completeness of the minutes taken of the testimony delivered by the principal witnesses.
3. Judges, who, in quality of administrators of the force of the popular or moral sanction, take eventual cognizance of the whole proceeding, for the purpose of passing a judgment of approbation or disapprobation on the conduct of the several actors in the judicial drama, (viz. parties, agents, representatives of parties, witnesses, judge or judges, subordinate judicial officers acting under the direction of the judge or judges.)
4. Executioners, viz. of the judgment pronounced, by themselves and colleagues, on the conduct of the several actors, as above: executioners; viz. by the bestowal of their good or ill opinion, their good or ill will, and hence upon occasion (as the substantial fruits and results of such good or bad opinion and will) their good or ill offices.
III. The mode in which, by the members of the public (as above) in their several characters (as above,) communication of the matters of fact (viz. the evidence in question) is capable of being received.
This mode of reception will be determined by, and will be correspondent to, the form in which the evidence is delivered; viz. according as, in virtue of such form, it comes under the denomination of oral (otherwise called vivâ voce) testimony, or scriptitious evidentiary matter, already consigned to writing at the time of its being delivered.
If it be oral,—to the reception of it by any person at the time of its delivery, and in the character of orally-delivered testimony, it is necessary that, at the very time, he be present at the delivery of it. If it be scriptitious,—all that is either necessary or possible is, that the writing, or the contents of it, be present to his mind in time enough for the performance of the function (whatever it be) which it is desirable he should perform in relation to it. If it be an article of real evidence, of the evanescent kind, it stands in this respect upon the footing of orally-delivered testimony: if of the permanent kind, it stands, in this respect, upon the footing of scriptitious evidence.
IV. The means, or instruments, capable of being applied to the purpose of giving publicity to the evidentiary matter in question; together with the several degrees of publicity capable of being given to it by those means.
Of the degree of publicity in each instance, an exact measure is afforded by the number of the persons to whose minds, on the occasion in question, in time for the purpose in question, the evidentiary matter in question is present.
In the case of testimony orally delivered and not consigned to writing, the greatest possible number of such cognizant persons, if the judicial theatre be a closed room (as is always the case in England, and, with few or no exceptions, in modern Europe,) will be determined and limited by the magnitude and structure of the room.
In the case of evidence consigned to writing, the number of such persons will be determined, in the first place, by the number of exemptions made; in the next place, by the number of persons to the mind of whom it happens to each such exemption to be present, as above.
In both cases, the means or instruments of publicity may be distinguished into natural and factitious. Natural, are these which take place of themselves, without any act done by any person (at least by any person in authority) with the intention and for the purpose of producing or contributing to the production of this effect. Factitious, are such as, for this very purpose, are brought into existence or put in action by the hand of power.
Considered in itself, a room allotted to the reception of the evidence in question (the orally delivered evidence) is an instrument rather of privacy than of publicity; since, if performed in the open air and in a plain, the number of persons capable of taking cognizance of it would hear no fixed limits; it would, in no individual instance, have any other limits than those which were set to it by the strength of the voice on the one part, and the strength and soundness of the auditory faculty on the other.
Considered on the other hand in respect of its capacity of being so constructed as to be in any degree an instrument of privacy,—the room in question, the place of audience, may (in so far as, in the magnitude and form given to it, the affording room and accommodation to auditors in a number not less than this or that number is taken for an end) be considered, in this negative sense, as an instrument of publicity.
If—in the view of securing what (for the purposes in question, as above, and in the character in question, as above) is looked upon as a requisite or desirable number for the minimum number of the audience—means are taken by public authority for securing attendance on the part of persons of such or such a description, in such or such a number,—whether the means thus taken be of the nature of reward or punishment, or both in one (as is the case where attendance is made matter of duty to an official person, who receives a recompense for the performance of the duties of his office,) such means are an example of the sort of means above described under the appellation of factitious means.
If, while in the act of vivâ voce utterance, or afterwards, the purport or tenor of the evidence be committed to writing, the same means and instruments of divulgation become applicable to it, which have place in the case of that sort of evidence which is scriptitious in its origin.
But in the case of vivâ voce evidence, there is a demand, not only for those means and instruments which are necessary and sufficient to any given degree of divulgation in the case of evidence which is in its origin scriptitious, but also for such antecedently employed means and instruments as are necessary to the purpose of bringing about this perpetuation. Minuting or note-taking, copying, printing, publishing,—those are so many successive operations, which, according to the degree of divulgation or publicity given or proposed to be given to the matter, become necessary in the character of means of publicity: and so many as there are of these operations performed, so many are the instruments or sets of instruments, personal and real, that come to be employed about it.
These means and instruments (like those others that were brought to view in the case of orally-delivered evidence, considered as being thus delivered without being consigned to writing,) may be distinguished from each other by the epithets of natural or factitious, according as the hand of authority is or is not employed in the giving existence or aid to them.
The place of evidence itself being, on the occasion in question, naturally, and usually and properly, in the hands and at the command of the judge; and the several operations conducive to divulgation being (like any other operations) capable of being interdicted, not only on each particular occasion by the judge, but on every or all occasions by the legislator:—hence, in so far as forbearance is in any instance given to the exercise of such prohibitive power, a sort of negative means of publicity comes to be, by the hand of authority, employed. Admission given, extra-accommodation given, to note-takers—permission of publication or republication at length, in the way of extract or abridgment, given to the editors of newspapers, and other periodical papers,—in this way (on the occasion in question, as on other occasions,) whatsoever mischief is by the hands of authority forborne or omitted to be done, is naturally and frequently placed to the account of merit, and taken for the subject of approbation and praise.
Instruments of privacy.—In this character, two sorts of apartments, both of them fit appendages to the main theatre of justice, may be brought to view, viz.—
1. The witnesses’ chamber or conservatory.
2. The judge’s private chamber, or little theatre of justice.
Of the nature and destination of these two apartments, explanation will come to be given under another head.
As, when publicity is the object, the magnitude of the theatre is among the instruments employed for the attainment of it; so, when privacy is the object, the smallness, if not necessarily of the apartment itself, at any rate of the company for which it is destined, qualifies it for operating in the character of an instrument of privacy.
Uses of publicity, as applied to the collection of the evidence, and to the other proceedings of a court of justice.
The advantages of publicity are neither inconsiderable nor unobvious. In the character of a security, it operates in the first place upon the deponent; and, in a way not less important, though less immediately relevant to the present purpose, upon the judge.
1. In many cases, say rather in most (in all except those in which a witness bent upon mendacity can make sure of being apprized with perfect certainty of every person to whom it can by any possibility have happened to be able to give contradiction to any of his proposed statements,) the publicity of the examination or deposition operates as a check upon mendacity and incorrectness. However sure he may think himself of not being contradicted by the deposition of any percipient witnesses,—yet, if the circumstances of the case have but afforded a single such witness, the prudence or imprudence, the probity or improbity, of that one original witness, may have given birth to derivative and extra-judicial testimonies in any number. “Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsuspected channel, burst forth to his confusion.”*
2. In case of registration and recordation of the evidence, publicity serves as a security for the correctness in every respect (completeness included) of the work of the registrator.
In case of material incorrectness, whether by design or inadvertence,—so many auditors present, so many individuals, any or each of whom may eventually be capable of indicating, in the character of a witness, the existence of the error, and the tenor (or at least the purport) of the alteration requisite for the correction of it.
3. Nor is this principle either less efficient or less indispensable, in the character of a security against misdecision considered as liable to be produced by misconduct in any shape on the part of the judge. Upon his moral faculties it acts as a check, restraining him from active partiality and improbity in every shape: upon his intellectual faculties it acts as a spur, urging him to that habit of unremitting exertion, without which his attention can never be kept up to the pitch of his duty. Without any addition to the mass of delay, vexation, and expense, it keeps the judge himself, while trying, under trial:—under the auspices of publicity, the original cause in the court of law, and the appeal to the court of public opinion, are going on at the same time. So many by-standers as an unrighteous judge (or rather a judge who would otherwise have been unrighteous) beholds attending in his court, so many witnesses he sees of his unrighteousness;—so many ready executioners—so many industrious proclaimers, of his sentence.
On the other hand,—suppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge,—that judge will be at once indolent and arbitrary: how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are insufficient: in comparison with publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks—as cloaks in reality, as checks only in appearance.†
4. Publicity is farther useful as a security for the reputation of the judge (if blameless) against the imputation of having misconceived, or, as if on pretence of misconception, falsified, the evidence. Withhold this safeguard, the reputation of the judge remains a perpetual prey to calumny, without the possibility of defence: apply this safeguard, adding it as an accompaniment and corroborative to the security afforded (as above) by registration,—all such calumny being rendered hopeless, it will in scarce any instance be attempted—it will not in any instance be attempted with success.
5. Another advantage (collateral indeed to the present object, yet too extensively important to be passed over without notice) is, that, by publicity, the temple of justice adds to its other functions that of a school—a school of the highest order, where the most important branches of morality are enforced by the most impressive means—a theatre, in which the sports of the imagination give place to the more interesting exhibitions of real life. Sent thither by the self-regarding motive of curiosity, men imbibe, without intending it, and without being aware of it, a disposition to be influenced, more or less, by the social and tutelary motive, the love of justice. Without effort on their own parts, without effort and without merit on the part of their respective governments, they learn the chief part of what little they are permitted to learn (for the obligation of physical impossibility is still more irresistible than that of legal prohibition) of the state of the laws on which their fate depends.
Uses of leaving it free to all persons without restriction, to take notes of the evidence:
1. To give effect, in the way of permanence, to the general principle of publicity—to the general liberty of attendance, proposed to be allowed as above. From no person’s attendance in the character of auditor and spectator, can any utility be derived, either to himself or to any other individual, or to the public at large, but in proportion as his conceptions of what passes continue correct: and by no other means can he make so sure of their correctness as by committing them (or at least having it in his power to commit them) to writing, with his own hand, at the very time.
But for this general liberty, there would be no effectual, no sufficient check at least, against even wilful misrepresentation on the part of an unrighteous judge. Against written testimony from such a quarter, what representation could be expected to prevail, on the part of individuals precluded by the supposition from committing to writing what they were hearing—precluded from giving to their testimony that permanence on which its trustworthiness would so effectually depend?
2. To afford a source of casual solution or correction to any casual ambiguity, obscurity, or undesigned error, in the representation given of the evidence by the judge or other official scribe:—*
Rule: Allow to persons in general the liberty of publishing, and that in print, minutes taken by anybody of the depositions of witnesses, as above.
Reason: Without the liberty of publishing, and in this effectual manner, the liberty of penning such minutes would be of little use. It is only in so far as they are made public, that they can minister to any of the above-mentioned uses (except that which consists in the information they afford to the judge.) By a limited circulation, room is left for misrepresentation, wilful as well as undesigned: by an unlimited circulation, both are silenced: by the facility given to an unlimited circulation, both are prevented.
Look over the list of advantages by which the demand for publicity is produced in respect of the evidence; you will find them applying (the greater part of them, and with a force quite sufficient) to the extension of the demand to all observations of which the evidence is the subject, whether on the part of the judge, or of the parties or their advocates. Security to suitors (to the suitors in each individual cause)—and through them to men in general, in the character of persons liable to become suitors—against negligence and partiality on the part of the judge; security to the judge against the unmerited imputation of any such breach of duty; instruction to the people at large, in the character of occasional spectators and auditors at the theatre of justice, and occasional readers of the dramatical performances exhibited at that theatre.
The evidence itself is so and so: from this evidence, the decision which the judge proposes to ground on it, and the conclusion necessary to warrant that decision, are so and so. This conclusion, is it a just and proper deduction from the evidence? In some instances the conclusion may follow so plainly and inevitably from the evidence, that any words which should be expended in displaying the propriety of it would be thrown away; while, in other cases, the conclusion (though clear enough to him who with full time before him shall take upon himself to bestow upon the subject an impartial and attentive consideration) may yet present itself to the hearers under such a veil of obscurity as may well require explanations on the part of the judge, to satisfy them that he has not availed himself of the obscurity to any such sinister purpose as that of pronouncing a decision not warranted by the truth of the case.
If, previously to the decision for the purpose of which the inquiry is performed, debate should arise, with arguments on both sides;—in such a case, under the auspices of publicity, a result altogether natural (whether obligatory or no) is, that the judge should state, in the presence of the bystanders (his inspectors,) the considerations—the reasons—by the force of which the decision so pronounced by him has been made to assume its actual shape, in preference to any other that may have been contended for. In such a situation, that to any judge the good opinion of such his judges should be altogether a matter of indifference, is not to be imagined. In such a state of things, that which the judge is to the parties or their advocates, the by-standers are to the judge: that which arguments are in their mouths, reasons are in his.
Publicity therefore draws with it, on the part of the judge,—as a consequence if not algether necessary (since in conception at least it is not inseparable,) at any rate natural, and in experience customary, and at any rate altogether desirable—the habit of giving reasons from the bench.
The same considerations which prescribe the giving an obligatory force to the one arrangement, apply in like manner to the other, subject only in both instances to the exception dictated by a regard to preponderant inconvenience in the shape of delay, vexation, and expense. Whenever the reason of the arrangement made by the judge is apparent upon the face of it, entering into a detailed explanation of it would be so much time and labour lost to everybody.
So difficult to settle is the proportion between the advantage in respect of security against misdecision on the one hand, and the disadvantage in respect of delay and vexation on the other, that the practice of giving reasons from the bench can scarcely be made the subject of any determinate rule acting with the force of legal obligation on the judge. Of courts of justice it may be said, that they shall be open, unless in such and such cases; while, in the description of these cases, a considerable degree of particularity may be employed, designative of the species of cause, or of the stage at which the cause (be it what it may) is arrived in the track of procedure. But of the judge it cannot be determined with any degree of precision, in what cases he shall, and in what cases he shall not, be bound to deliver reasons.
This, however, is but one out of the multitude of instances in which, though an obligation of the legal kind is inapplicable, an obligation of the moral kind will be neither inapplicable nor inefficacious. Specifying reasons is an operation, to the performance of which, under the auspices of publicity, the nature of his situation will (as already observed) naturally dispose him to have recourse. Consigned to the text of the law, an intimation to the same effect, in terms however general, can scarce fail of producing upon the minds of the persons concerned, the effect on this occasion to be desired: in the minds of the public, a more constant disposition to expect this sort of satisfaction from the mouth of the judge—in the mind of the judge, a more constant disposition to afford it.
In legislation, in judicature, in every line of human action in which the agent is or ought to be accountable to the public or any part of it,—giving reasons is, in relation to rectitude of conduct, a test, a standard, a security, a source of interpretation. Good laws are such laws for which good reasons can be given: good decisions are such decisions for which good reasons can be given. On the part of a legislator whose wish it is that his laws be good, who thinks they are good, and who knows why he thinks so, a natural object of anxiety will be, the communicating the like persuasion to those whom he wishes to see conforming themselves to those rules. On the part of a judge whose wish it is that his decisions be good, who thinks them so, and knows why he thinks them so (it is only in proportion as he knows why he thinks them good that they are likely so to be,) an equally natural object of anxiety will be the communicating the like persuasion to all to whose cognizance it may happen to them to present themselves; and more especially to those from whom a more immediate conformity to them is expected.
In neither case, therefore, does a man exempt himself from a function so strongly recommended as well by probity as by prudence; unless it be where—power standing in the place of reason—the deficiency of psychological power being supplied by political, of internal by external,—he exempts himself, because it is in his power to exempt himself, from that sort of qualification which, feeling himself unable to perform well, he feels it at the same time in his power to decline performing.
Oughton, in his Treatise on the Practice of the Ecclesiastical Courts, maintains without reserve, that the practice of examining witnesses in public is a bad practice.
In support of this censure he adduces two reasons:—
1. The witnesses, in this case, have the faculty of entering into a confederacy, and of fashioning their stories in such manner as to preserve them from inconsistency.
True; this faculty they possess where the examination is performed in public: but this same faculty,—is it less open to them where it is performed in secret?
The danger peculiar to the system of publicity, is confined to the short space of time during which, if the requisite and not impracticable precaution be not taken, a mendacious witness about to depose may profit by hearing the deposition, as it issues, of a preceding witness, deposing in evidence to the same fact.
This danger, as it is frequently worth obviating, so neither is it incapable of being obviated: and this (as will be seen) it may be, without depriving the process of the benefit of publicity.
The observation of Oughton is confined to the case of mutual concert. But the advantage derivable by a mendacious witness from the knowledge of the purport of the anterior deposition of another witness, does not require any such complicity on the part of such other witness: it is equally derivable from the testimony of an adverse, as from that of a friendly, witness.
2. Fear of the resentment of one or other of the parties might operate upon the witness, so as to produce in his testimony a departure from the truth. It might occasion him to keep locked up in his breast some fact, which, if disclosed, might operate to the prejudice of the party by whom his testimony was called for, or of the opposite party.
To this objection the following observations seem applicable:—
1. In a cause between individual and individual, whatever interest one party has in the witness’s speaking false, the opposing party has a correspondent interest in causing him to speak true.
2. The disposition of the witness, even if left to himself, might be, on this or that point, to speak false: at the same time that, for confining him within the pale of truth, there is no other chance than that power of contradiction and refutation, which depends upon a mass of information which the party in question, and he only, is in possession of.
3. The secrecy in question is but temporary. Upon this, as upon the other system, when the cause comes to be heard, the depositions the divulged. Whatever is contained in the deposition, of a nature displeasing to either party—the invoker or the adversary—is then disclosed.
True it is, that this applies only to actual deposition: it does not apply to silence. By the apprehension of the displeasure of one of the parties, it may happen that by the witness something should be suppressed, which, had it not been for such presence, might have come out. But this inconvenience is too slight to be put for one moment in comparison with the transcendent benefits of publicity: it can never afford ground for anything more than an occasional exception.
By the admirers of the technical system as it exists in England, the bar has been spoken of as constituting the best, if not the only necessary, public—as a most excellent and efficient check upon the bench.
Thus far may be admitted,—that, in the character in question (viz. that of uncommissioned inspecting judges,) so far as either practical experience or technical science are concerned, no other persons, in equal number, can come up to them; that they are scarce ever altogether wanting; and that upon the whole, the number of them bears (as it were to be wished it should do) a proportion to the importance of the cause.
Thus stands the matter under the technical system. But were any one to say, that under the natural system this check would be wanting, and that therefore, under the natural system, there would be no sufficient security for good judicature,—in such a case, its title to the character of an indispensable security would require a more particular scrutiny.
1. So long as the technical system were the object to be pursued,—to the conduct of a set of judges acting under that system, no other adequate inspectors could be found than a set of persons alike impregnated with technical science. Remove those features and arrangements, which, being peculiar to the technical system, are repugnant to common sense as well as common honesty,—and unlearned inspectors might be nearly as competent to that function, as those learned ones are at present.
2. Of the incongruities, absolute or relative, into which the judge is liable to fall, it is with reference to those only which are such in relation to the technical system as it actually stands at present, that the eyes of those technical inspectors can afford any security. So far, indeed, as the technical system has for its ends in view the ends of justice, so far the inspection exercised by these watchmen might serve, and does serve, to confine the course of judicature within the proper track of justice. But in proportion as these only legitimate ends have been neglected or contravened, in so far that same system of inspection, instead of being subservient, is adverse, to the ends of justice. Wherever misdecision has for its source either the sinister interests that gave birth, or the prejudices that have given support, to the technical system,—far from operating as a check to misdecision, the presence of these technical inspectors will operate as a security in favour of it. In how many instances does the technical system not only authorize, but prescribe, and that professedly and avowedly, decisions contrary to the merits, on grounds foreign to the merits? What in these cases, will be the effect of a system of inspection administered by such inspectors? Not to diminish the frequency of such injustice, but to give it security and increase.
The faculty of appeal may be apt to present itself as an effectual succedaneum to publicity in judicature. In many countries—under the Rome-sprung system in general—under Anglican law in some instances, it is the actual, and in some, the only one.
The utility of appeal in general—its efficacy in regard to the particular points here in question—will depend in no small degree upon the arrangements made in relation to that branch of procedure; a detail which belongs not to this work.
But, that the faculty of appeal, however conducted, cannot operate in any such way as to supersede the demand for publicity in the collection of testimony, may even in this place be made sufficiently evident by various considerations.
1. Appeal, howsoever conducted, is clogged by an unavoidable mass of delay, vexation, and expense. Publicity is in no case productive of considerable delay; and, so far as concerns open doors—in a word, as to everything but the official registration of the evidence, when that operation is thought fit to be prescribed (concerning which, see further on,)—is altogether unattended with expense.
2. In the case of appeal, as generally established, the evidence, as registered, is the very basis on which the appeal, so far as concerns the question of fact, is made to stand. But of the instruments to which the tenor or purport of the testimony is professed to be consigned, the correctness is taken for granted, and not suffered to be disputed. Appeal, therefore, in this point of view, howsoever it may be an auxiliary, is no succedaneum to publicity. Is publicity necessary to secure the correctness of the registration for the purpose of the immediate decision?—then so is it for the purpose of the appeal. Appeal, instead of rendering it unnecessary, increases the demand for it.
3. If grounded on the same evidence, it affords no sort of security against incorrectness or incompleteness, whether from mendacity, bias, or blameless misconception or omission, on the part of the evidence: in all points, the correctness of the evidence is taken for granted.
4. Punishment or disapprobation, experienced or apprehended from the judge above, in virtue of the appeal, operates, even without publicity, as a check and remedy more or less effective, against misconduct (whether through mental weakness, improbity, or negligence) in the judge below. But the judge above,—where is the check upon misconduct on his part in any shape? What possible check so effectual as publicity?—and it the court above is at the highest stage, what other possible check is afforded by the nature of things?
5. Publicity, a principle of the most simple texture, is so much the less liable to be out of order;—not is it in the power of mismanagement to do much towards the destruction of its efficacy. Of the principle of appeal, the utility depends altogether upon the details—upon the propriety of the arrangements taken in relation to it: among which, this of publicity is one of the most natural.
“Appeals without publicity, are an aggravation, rather than a remedy: they serve but to lengthen the succession, the dull and useless compound, of despotism, procrastination, precipitation, caprice, and negligence.”
Of the exceptions to the principle of universal publicity.
The uses and advantages of publicity have already been brought to view: so far as those uses are concerned, the most complete and unbounded degree of publicity cannot be too great.
But in other ways, in particular cases, publicity, if carried to this or that degree, may on this or that score be productive of inconvenience, and the mass of that inconvenience preponderant over the mass of the advantages. To the application of the principle of publicity—of universal and absolute publicity, these cases will present so many exceptions.
Let us observe what these cases are—observe, in regard to each, what the circumstance is, by which the demand for the degree of privacy in question is presented,—appreciating, in each instance, as near as may be, the proportion as between inconvenience and advantage.
1. Publicity is necessary to good judicature. True: but it is not necessary that every man should be present at every cause, and at every hearing of every cause. No—nor so much as that every man should be so present, to whom, for whatever reason, it might happen to be desirous of being present.
A man, a number of men, wish to be present at the hearing of a certain cause; and in what view? To disturb the proceedings—to expel or intimidate the parties, the witnesses (or, what is worse and more natural, this or that party, this or that witness,) or the judge. Because judicature ought to be public, does it follow that this ought to be suffered?
2. Publicity is necessary to good judicature. True: but even to him to whose cognizance it is fit that a cause, and such or such a hearing in the cause, should come, it is not absolutely necessary that he should be actually present at the hearing, and that during the whole of the time. Nor, again, is it necessary that any one person should be present, over and above those whose presence is necessary and sufficient to ensure the rendering, upon occasion, to the public, at a subsequent time, a correct and complete account of whatever passed at that time.
3. What is more:—suppose a cause absolutely devoid of interest to all persons but the parties to the cause, and those parties agreeing in their desire that the doors shall be open to no other person, or no other than such and such persons as they can mutually agree upon: in this case, where can be the harm of the degree of privacy thus required? As to unlimited publicity, the existence of the inconvenience that would result from it is sufficiently established by the suffrage of those who by the supposition are the only competent judges.
If the guarding the parties against injustice in the individual cause before the court, were the only reason pleading in favour of unrestrained publicity,—this reason would cease in every case in which unrestrained publicity being the general rule, all the parties interested joined in an application for privacy; or in which, privacy being the general rule, no application were made by either of them for publicity. For by common consent they might put an end to the proceedings altogether; and where no proceedings existed, there would be none to make public.
But neither by any such joint application, nor by any such joint acquiescence, would more than a part (and that scarcely a principal part) of the demand for publicity, unrestrained publicity, be removed. 1. In the character of so many schools of morality, the courts of judicature would, by every such exception, lose more or less of their practice and their influence. 2. What is much more natural, the habit and sense of responsibility would be proportionably weakened on the part of the judge. 3. If privacy were the general rule, both the above inconveniences would receive a great increase: and in other respects this arrangement, as compared with the opposite one (publicity, subject to exception if on special application,) would be highly unfavourable to the ends of justice. The main use of publicity being to serve as a check upon the judge, no particular application could be made for it without manifesting a suspicion to his disadvantage. Much, therefore, as a party might conceive himself to stand in need of this security, he would have no means of obtaining it without exposing himself to the displeasure of the judge.
4. The supposition is, that all parties who have any interest in this question (at any rate any special interest) join in the consent given to the privacy. But this supposition is very apt to prove erroneous: nor will it perhaps be easy to pitch upon any individual case in which there can be any very perfect assurance of its being verified. More interests, it will frequently happen, are involved in a cause, than those of the individuals who appear in the character of parties to the cause.
At any rate, this case has been exemplified as often as evidence, delivered in a cause between two parties, has come to be relevant in a cause having any other party or parties. True it is, that, by compromising the suit in question, or compromising their difference before the commencement of any suit, they equally had it in their power to withhold from all third persons the benefit of all such evidence as would otherwise have been called into existence by that suit: but true it also is, that on the occasion of the delivery of the evidence, each party, whether he prejudiced his own interest or no, might prejudice the interest of such third persons, not being parties to the suit.
In consenting to the privacy, either party, or even each of them, may, in one way or other, have done prejudice to his interest: in this case, the public, and perhaps individual third persons, will have participated in the inconvenience resulting from such imprudence.
The cases which present themselves as creating a demand for a certain degree of restriction to be put upon the principle of absolute publicity, each for an appropriate mode and degree,—these cases, as expressed by the several grounds of the demand, may be thus enumerated:—
Object 1. To preserve the peace and good order of the proceedings;—to protect the judge, the parties, and all other persons present, against annoyance.
Object 2. To prevent the receipt of mendacity-serving information.
Object 3. To prevent the receipt of information subservient to the evasion of justiciability in respect of person or property.
Object 4. To preserve the tranquillity and reputation of individuals and families from unnecessary vexation by disclosure of facts prejudicial to their honour, or hable to be productive of uneasiness or disagreements among themselves.
Object 5. To preserve individuals and families from unnecessary vexation, producible by the unnecessary disclosure of their pecuniary circumstances.
Object 6. To preserve public decency from violation.
Object 7. To preserve the secrets of state from disclosure.
Object 8. So far as concerns the taking of active measures for publication,—the avoidance of the expense necessary to the purchase of that security, where the inconvenience of the expense is preponderant (as in all but here and there a particular case it will be) over the advantage referable to the direct ends of justice. This case will be considered in another book.*
Object 9. (A false object.) To prevent the receipt of information tending to produce undue additions to the aggregate mass of evidence.
Purpose 1. Securing the persons of the judge and the other dramatis personæ against violence and annoyance.
The importance of this object, the necessity of making due provision for it, is too obvious to be susceptible either of contestation or proof. Being thus incontestable, the necessity is the more apt to be converted into a plea for abusive application for undue extension.
Suppose the judge destitute of all controuling power, the place of audience being alike open to all comers,—the whole quantity of room might be engrossed at any time by a host of conspirators, coming together for the express purpose of intimidating the judge, and causing injustice to be done.
What seems necessary to this purpose is, therefore, that, of the whole number of seats or stations contained in the judicatory, a certain number should, upon a declaration made by him of the presumed necessity, be at any time at his command, to be filled by persons nominated by himself, and armed in such manner as he thinks fit; all other persons being precluded from bringing arms of any kind.
But to enable a man to contribute his physical force to the preservation of the peace in a room or apartment of this kind, it is not necessary that the place occupied by him should be among those which are most effectually adapted to the purpose of enabling a man to comprehend distinctly the conversations that have place there. The stations allotted to these eventual guards to the person of the judge, should therefore be such as to leave free to promiscuous visitants such as are best adapted to the purposes of sight and hearing.
On such occasion, to warrant the assumption of this power, it should be necessary for the judge to declare his opinion of the needfulness of such a precaution; the declaration to this purpose being notified by a placard signed by the judge, and hung out in a conspicuous situation on the outside of the court.
But for this precaution, a natural result would be his taking to himself, as his own property, such part of the judicatory as were allotted to him in trust for that purpose, and in some way or other disposing of it to his own profit.
Doors open to persons of all classes without distinction: but any one whose presence would, by disease, or filth, or turbulence, be a nuisance to the rest, individually, and on that account, excludible.
Nor is pay, exacted for places of superior convenience, inconsistent with the spirit of the principle—not in the theatre of justice, any more than in any other theatre. The more elevated the spectator’s condition in life, the better his qualification to act in the character of guardian to the probity of the judge. But a man bred up in the delicacy of the drawing-room, will not willingly frequent any place in which he is liable to be elbowed and oppressed by men whose labours, how much soever more profitable to the community than his indolence, have just been employed in the foundry or in the slaughter-house. For purposes of this sort, rate of payment is perhaps the only practicable principle of selection; at any rate, the least invidious possible.
Purpose 2. Prevention of mendacity-serving information.
Wheresoever, on the part of a deposing witness (party or not party to the cause,) there exists a propensity to mendacity,—the probability of preventing his giving way to that disposition, or (in the event of his giving way to it) of preventing his dishonest endeavours from being productive of their intended effect,—depends in no small degree upon the measures taken for preventing him from obtaining, in time to avail himself of it, information concerning the testimony delivered or about to be delivered by this or that other person in relation to the same matter. The co-witness,—is he on the same side with the supposed mendaciously-disposed witness?—the purpose for which he needs to be apprized of such testimony, is the giving to it what confirmation may be in his power, and the avoiding to contradict it. The co-witness, is he on the opposite side?—the use then is, that he may be enabled either to overpower it, or to avoid being overpowered by it, according to the probable degree of its probative force. By the nature of the case, or the mass of accordant evidence, does it appear too strong to be overborne?—in this case, for fear of being overborne and discredited by it, he avoids, as much as may be, touching on the main points; as, in the opposite case, he touches upon those same points with care and preference.
To a propensity, at the same time so unavoidably prevalent, and so pernicious to truth and justice, every obstacle ought of course to be opposed, that can be opposed.
When (as in the Roman school) the mode of examination is private in the highest degree, or in a degree near to the highest,—this purpose is in a great measure effected of course, with or without thinking of it. The testimony delivered by a witness not being known, but either to the judge himself, or to some other person or persons on whom it is supposed that (whether equal or no) at least sufficient dependence may be placed, his testimony, or such part of it as the judge thinks fit, is committed to writing,—and thereupon (until the time comes for hearing arguments, and pronouncing a decision grounded on it) remains wrapt up in darkness.
There remains, in the character of a means of divulgation, the discourse—the extra-judicial discourse—of the examinee himself. Against this source of mendacity-serving information, if the process of examination is not finished at the first meeting, there exists no remedy—unless his case be that of a person in whose instance immediate commitment to safe custody is for this or other purposes regarded as warrantable.
On the other hand, if the case be such as is understood to warrant such commitment, accompanied with the seclusion of the person, for the time requisite for this purpose, from promiscuous intercourse (personal as well as epistolary;) in that case, this source of mendacity-serving information is sealed up of course.
Even when the mode of examination is public, and no such power of commitment has place, still, so long as the examination is begun and concluded at the same meeting, the nature of the case does not refuse a remedy. The persons about to be examined being predetermined and foreknown at the time appointed for the examination, they repair to one and the same room (a room allotted to the purpose;) in which, under the custody of an officer appointed to prevent conversation, they remain together, each person not being suffered to quit the room till called for to undergo his examination: which performed, he is permitted to go at large, but not permitted to return to the room and company from which he came.
In cases where a second examination of a witness is expected to be necessary, with a view to confrontation or subsequent sifting, he is reconducted out of court, to prevent his hearing the information communicated by any other witness, and kept in the place of safe custody in which he was before, till again called.*
To give to the system of precautions demanded for this purpose, the utmost degree of efficiency of which the nature of things allows them to be susceptible—to determine on this occasion what shall be the fittest decision, between the antagonizing claims of the direct ends of justice on the one hand, and the collateral ends of justice on the other—belongs not so much to this subject as to that of procedure at large.
The reason why it was necessary that mention should be in this place made of it, is, that whenever such seclusion has place, a correspondent degree of relative privacy necessarily has place. During the time he is thus kept in the witness’s waiting-room, each such paulò-post-future examinee remains precluded from the faculty of rendering himself a member of the assemblage of persons of whom the audience is composed.†
Purpose 3. Prevention of disclosures subservient to non-justiciability, through non-forthcomingness.
The fulfilment, in each case, of the direct ends of justice (in other words, rectitude of decision,) depends, in so far as concerns the question of fact, upon the complete forthcomingness of all things and persons whose presence is necessary thereto in the character of sources of evidence. The efficiency of the decision depends upon the complete forthcomingness of all things and persons which, for the purpose of justiciability, it is necessary should be at the disposal of the judicatory.
There exists not that sort of cause in which, to this or that party on one or other side of the cause (but more especially on the defendant’s side,) it may not happen to have an interest in preventing the forthcomingness either of persons or things, to one or other, or both, of the judicial purposes just mentioned.
There exists not that species of cause in which it is not the interest of each party that every witness whose testimony would, if delivered, operate to his disadvantage, should be prevented from delivering it. Nor is this interest necessarily, and in all cases (though naturally and in most cases it will be,) a sinister one. For, in the instance of any given witness, suppose his testimony about to be false, and at the same time likely to gain credence. Though on account of the impossibility of establishing, to any legal purpose, the existence of both these facts, it could never be right for the law itself to lend its assistance to any such evasion, nor so much as to leave the attempt dispunishable; yet in a moral point of view, supposing the expectation of the eventual union of the two disastrous incidents sincere, and to a certain degree intense, it would not be easy (it should seem) to find in it a just ground of censure.
As little exists there that species of cause, in or on occasion of which it may not happen to this or that party on either side (more particularly on the defendant’s side) to be, by decision of the judge (direct or incidental,) subjected to some obligation, which, for the fulfilment of it, requires the forthcomingness of this or that person, or this or that thing or aggregate mass of things, to the purpose of his or its being at the disposal of the judicatory;—some obligation, the fulfilment of which, as being attended with evil in some shape or other to the party on whom it should be imposed, it will be his interest (and thence naturally his inclination) to escape from.
It is evident, that all information calculated to assist either of the parties in removing out of the way, either sources of evidence, or anything else which for purposes of justiciability ought to be forthcoming, should (if practicable without preponderant disadvantage) be withheld. The demand for privacy on this account is chiefly confined to investigatorial procedure: when the case is ripe for being brought to trial, it will in general be practicable to take other securities against the frustration of the ends of justice in this way. Discretionary power ought therefore to be vested in the judge, to give temporary privacy to the preliminary examinations taken in the course of investigatorial procedure. Their subsequent publication would in general be a sufficient security against the excercise of this power for any but proper purposes, or on any but proper occasions.
Purpose 4. Preservation of pecuniary reputation.
The demand for the application of the principle of secrecy to this purpose, is of great extent and variety.
In almost every court of justice, in almost every day’s practice, cases present themselves in which, without a correct acquaintance with the pecuniary faculties of one or both parties, nothing that deserves the name of justice can be done.
On the other hand, neither are cases much less frequent, in which a public disclosure of those circumstances would, on whichever side it fell, be productive of inconvenience, preponderating in some cases over every advantage derivable from such knowledge.
1. For the purpose of punishment, a necessary point of knowledge is the pecuniary ability of the one party, the delinquent.
2. For the purpose of satisfaction, the finances of two parties (the delinquent and the party injured) are included in the demand for knowledge.
3. Let the suit be one in which costs are incurred. Not to speak of any such enormous and undiscriminating and oppressive load of factitious costs as that which, under judge-made law, has, by the power and to the profit of judges and their confederates, been created and preserved,* there are few causes individually taken, and no sort of cause specifically taken, in which costs, necessary and unavoidable costs, have not place. Of these, at the conclusion of the cause or causes, some disposition cannot but be made. Nor can that disposition be conformable to utility and justice, unless, for the prodigious disproportion which may happen to have place between the pecuniary circumstances of one party and the pecuniary circumstances of another party, some eventual provision be made, and thereupon some account be rendered liable to be taken.
4. Knowledge of the circumstances of the debtor is necessary to the judge, to enable him to do justice as between him and his creditors—whether on a criminal, or on a non-criminal score.
5. In case of danger to ultimate solvency, knowledge of the time or times, mode or modes, to which, without ultimate, or at least without preponderant, prejudice to the creditor, the payment may be adjusted,—may be necessary to the judge to enable him to preserve the defendant debtor from unnecessary ruin.
6. In addition to the knowledge of the aggregate amount of his debts, knowledge of the circumstances of the creditors to whom they are respectively due may be necessary to the judge, to enable him to preserve from unequal and unreasonable loss, third persons, not parties to the suit by which the demand for the inquiry has been produced.
To an English lawyer, considerations such as the above will scarce appear worthy of a thought. In his hands, the knots in question (like so many others) are cut, as with a sword, by a magnanimous contempt for all such niceties. It is by such magnanimity that the coffers of English judges are gorged with the accumulated pittances of the distressed—the promiscuous spoils of creditors and debtors.
It is only by the examination of the party—the vivâ voce examination, that his pecuniary circumstances can in general be established with any approach to accuracy. But (especially if performed in time) this operation would, in nine cases out of ten, or nineteen out of twenty, dry up the source of profitable misery. Hence it is that the presence of the creditors is accordingly not less intolerable to the eye of the insolvent debtor, than that of creditor and debtor is to the English judge. In cases to a vast extent, the ear of the judge is inexorably shut to all evidence respecting the pecuniary circumstances of parties. On what occasion is any such disposition manifested, as that of adjusting time and mode of payment to ability? On what occasion is any regard paid to the interests of co-creditors, who, unsuspicious of the danger, are not parties to the suit? What steam-engine is there, that, beating upon a mass of iron, would pay less regard than is paid by an English judge, with his capias or his fieri facias, to all such trifles?
On these points, is his ear open to anything in the shape of evidence? It is open to interence—open to the very worst that can be found, to the exclusion of this best, evidence: open to what, in the character of a witness, a third person (perhaps a stranger) shall suppose in relation to the party’s circumstances: open to what the party himself shall think fit to say of them, delivering his testimony without the possibility of being questioned—delivering it in the shape of affidavit evidence.
Purpose 5. Fifth purpose of privacy. Prevention of needless violation to the reputation of individuals and the peace of families.
On the occasion of those disputes which are liable to have place between individuals, instances are frequent, in which, either no such blame as deserves punishment has place on any side, or none but such, for the repression of which, the quantity of suffering (in the shape of expense, and other shapes) unavoidably attached to the process of litigation, is of itself sufficient: much more it any part of that vast load of factitious vexation be added to it, which is so much in use to be added to it.
At the same time, in many a cause of this kind, such is the quantity of suffering produced on the part of this or that party, or perhaps all the parties, by the mere exposure of such incidents as have happened to have place in the course of the dispute (in particular, of the conduct maintained by them in the course of the dispute,) that, in comparison with the suffering thus unintentionally produced, any suffering, that by any express, act of the judge, would on the occasion in question be intentionally produced, would be to any degree inferior in its amount.*
In so far as (without prejudice to the interest of the community in general, in respect of the direct ends of justice and of that sense of security which depends upon the persuasion entertained of their being faithfully pursued) any such suffering can be prevented from taking place, the general happiness of the community will (it is evident) receive proportionable increase.
Vexation, whether to individuals or to the public, is brought to view under the head of Exclusion,* as a ground on which the door may sometimes with propriety be shut against evidence. But if in any case, without preponderant inconvenience, the door of justice may be shut against the evidence itself, with much less inconvenience may it in that same case be shut against this or that individual, or against the public at large, in quality of co-auditors of the evidence.
By means of this temperament, the direct ends of justice may be fulfilled, in many instances in which otherwise it might have been necessary to make a complete sacrifice of them to the collateral ends. The light of evidence, instead of being extinguished altogether, may be set to shine under a bushel—under a bushel, and nevertheless, though in so confined a situation, fulfil its office.
Of these considerations, if just, the following is the use which (it should seem) might be made in practice:—
In cases in which punishment, for the benefit of the public, and for the sake of example, is out of the question, the subject of the contest being some matter of private right;—supposing it sufficiently established that either party was desirous of substituting the private to the public mode, and the other not averse to it, it might, generally speaking, be of use, that (unless for special cause to be assigned by himself) the judge should, on the petition of either party, substitute to the ordinary or public, the private mode.†
By a regulation to this effect, no small part of the vexation incident to litigation might be saved: a species of vexation teeming with a degree of suffering frequently exceeding in its amount that which is produced by the expense, even under the vast increase which such part of the expense as is necessary and unavoidable receives from the amount of such part as is factitious and useless.
Against an arrangement to this effect, three objections may be apt to present themselves:
1. One is, that, by intimidation, this or that one of the litigants may be (as it were) compelled to join in the application; or at any rate to forbear opposing it.
2. Another is, that, in a case in which it would have been for his advantage that the proceeding should have been public, he may by false or fallacious representations, have been deceived into the giving his consent to its being carried on in the private mode.
3. A third is, that, in many instances in which the private mode is substituted (as above) to the public mode, the use of the theatre of justice in the character of a school of moral instruction will be done away.
To the first and second objections it may be answered, that against the mischief thus apprehended, two remedies present themselves:—
One consists in the probity of the judge. If in his opinion the case is of the number of those in which publicity would have been more subservient to the purposes of justice than privacy; in this case, though the possibility of letting in the public at large in the character of spectators is gone by, yet, by himself, or by some person under his direction, minutes having been taken of what passed,—it will rest with him to take order for the publication of those minutes, laying the burthen of the expense on whichever shoulders seem best adapted for it.
If, in the course taken by any party for the obtaining the consent of any other to the substitution of the private to the public mode, any sign of intimidation or fraud should be observed, it may rest with him to inflict moreover on the offending party whatever censure may appear suitable to the case; viz. by expression of disapprobation, or by addition made to the expense of divulgation (as by adding to the number of copies to be printed at the offender’s expense,) &c.
The punishment will then be analogous to the offence; and that in such a way as to give it its best chance of being efficacious. Good repute was the possession, to the value of which his sensibility stands indicated and proved, by the sinister course which he took for the preservation of it: reputation is accordingly the possession upon which the punishment attaches, in such a way as to make a defalcation from it.
The other remedy is one that may be left in the hands of the party himself. This remedy consists in the liberty of printing and publishing the minutes at his own expense.
For the purpose of doing all that in this case seems proper or necessary to be done for the repression of such inconvenience as is liable to be produced by such publication, in cases in which the suffering produced by it will be excessive,—the judge might be allowed to mark upon the minutes his disapprobation of any such publication: which note of censure, the party who persists notwithstanding in the design of publication, shall be under the obligation of including in it.
Here, then, should publication be made notwithstanding, the effect of it will be to prefer as it were an appeal to the bar of the public, from the decision pronounced as to this point by the judge. In this way, between the judge and the litigant in question, a sort of silent litigation will take place, in the course of which the judge will act (as it is desirable he should) with all that advantage which it is in the nature of his commanding situation to put into the hands of him who occupies it.
To the third objection, two answers present themselves:—
One is, that, to whatever services the theatre of justice is capable of being made to render to society in the character of a school of moral instruction, no determinate number of causes is necessary. When all are defalcated which the purpose here in question requires to be defalcated, there seems no determinate ground for any such apprehension as that the remainder will not be sufficient for this collateral purpose.
The other is, that forasmuch as, in every such case, it would be in the power of the parties (agreeing in the manner in question) to deprive the public of the use of the theatre of justice in the character in question, either by not commencing the suit, or by compromising it (in which case the public would also be deprived of the use of it in that its principal character,)—any such inferior loss as (to preserve individuals from unnecessary vexation) the public may be subjected to in respect of this collateral and inferior use, seems the less to be regretted.
In causes in which the peace and honour of families is concerned, so long as there is any hope of reconciliation, there cannot be any sufficient objection to secrecy.
Publicity in these cases (understand always if administered in the first instance) can have no better effect than that of pouring poison into whatever wounds have already been sustained.*
Should the pacific endeavours of the judge have proved ineffectual—should reconciliation prove hopeless, hostility and suspicion still alive, and seeking every advantage,—then is the time for either of the parties (though even then at his peril) to demand his pound of flesh, his right of tormenting his adversary, by dragging into daylight all those shades in his character, which (for the tranquillity or reputation of one or both parties, their families, and other connexions) had better have remained in darkness. I say at his peril; for if, upon the continuance and completion (that is, in part, if necessary, the repetition) of the investigation in public, it should appear that this sort of appeal had for its cause the malignant satisfaction of inflicting on the adversary this species of vexation, and that no real apprehension of partiality or misconduct in any other shape bore any part of it,—there seems no reason why malicious vexation in this shape should go unpunished, any more than in any other. The character in which the vexation operates is that of an offence against reputation—an offence of which the hand of the judge, as in case of conviction on a false accusation, has been made the unwilling instrument.
Let but the right of appeal be reserved—in that case,—though in the court below publicity were ultimately and peremptorily refused by the judge, the only serious part, of the mischief against which publicity is particularly calculated to operate as a security, would be avoided. At the court of appeal, it is here assumed that, sooner or later, even in causes in which the demand for secrecy is the strongest, it is in the power of the appellant (alway at his peril) to force publicity.
But such (it may be still observed) is sometimes the force of malice, that, notwithstanding any punishment that can be thus denounced, one of the parties, for the pleasure of injuring the reputation of the other—of perpetrating the mischief, whatever it be, to which the family or any part of it is exposed,—will persevere to the last in the demand of publicity. Possibly: since men are every now and then to be found, who, for the pleasure of depriving an adversary of life, are content to risk their own. Against defamation, when practised in any of the ordinary ways—by word of mouth, by writing, or in print—the punishments appointed for that offence are not always effectual. True: but that is no more than may be said of every other sort of offence, and every other sort of punishment: and after all, the worst mischief arising from publicity is always a limited one; whereas the mischief attached to inviolable secrecy in judicature is altogether boundless. Whatever may be the punishment annexed to defamation when committed in any of the ordinary ways, and whatever in these cases may be its degree of efficacy, a much superior degree of efficacy may be expected from it where it has for its object defamation committed or attempted to be committed in this extraordinary way. In the former case, the passion finds nothing to oppose it: in the latter case, it finds itself opposed by whatever can be done, either in the way of advice or examination, by the authority of the judge. Finding security (security purely pecuniary, constituted by the apprehension of the loss of a fixed sum of money) is the remedy in common use against known or apprehended malice: and among the instances in which it is employed, how small is the proportion of those in which it fails of answering its intended purpose!
Purpose 6. Regard to decency.
Among the cases in which the demand for secrecy is created by a regard to the peace and honour of individuals and families, those in which the injury has its root in the sexual appetite, claim the like attention by this additional title.
If on this score it be proper that exclusion from the right of attendance should be pronounced upon any description of persons by the authority of the legislator and the judge, the classes it would fall upon would naturally be the female sex in general, and, in both sexes, minors below a certain age; more especially in the case of any of those irregularities of the sexual appetite, in which the error regards the species or the sex.
On a subject of this sort, reason stands so little chance of being regarded, that reasoning would be but ill bestowed. The topic being thus brought to view, discussion and decision may be abandoned to those in whose eyes all the others might comparatively appear of small importance.
Minors being under power, it will rest with parents and guardians to keep them out of such scenes, or of any other such scenes by which their morals may be put in jeopardy. Answer per contrà: It is easier for the judge to guard the entrance into court, than for a parent or guardian to guard all the roads that lead to it.
How shall age be tried for this purpose? An attempt to try age by view produced the insurrection under Wat Tyler and Jack Straw. A discretionary power of exclusion on this ground to be exercised on view (view of the countenance without ulterior scrutiny,) shall it be lodged in the hands of the judge?
In England, the resort of persons of the female sex to scenes so little suited to female delicacy, has been a frequent subject of animadversion. Exclusion in this case (supposing it worth while) could no otherwise be effected than by the authority of the judge. The subject, however, can scarcely present itself as of light importance to the sort of reformers who of late years have busied themselves so much about print-shops, and who, when they have excluded loose characters from this or that house or garden, conceive themselves to have extinguished looseness; like those politicians who, when without increasing capital they have increased the number of places capable of being traded with, conceive themselves to have increased trade.
Suppose courts of justice as well as printshops sufficiently fenced, what is to be done with bathing places? amongst others, with the sea coast and the shores of rivers?*
Purpose 7. Preservation of state secrets from disclosure.
To give the question a body, and that the discussion may be somewhat more useful than a mutual beating of the air in the dark, let us frame a feigned case out of a real one. On the occasion of the peace that ensued in 1806 between France and Austria after the battle of Austerlitz, and the change that took place soon afterwards in the British administration, parliament received from the departing ministry a communication of the negotiations that had preceded the rupture terminated by that peace. The communication thus made, was charged with imprudence: the military weakness of your late unfortunate allies, the weakness of their councils, the intellectual weakness of the persons by whom those councils were conducted, the designs entertained in your favour by other powers who were in a way to become your allies;—all these (it was said) you have betrayed: such is the imprudence; and what is the probable consequence? That on future contingent occasions, powers who otherwise might have become your allies, will shrink from your alliance, deterred by the apprehension of the like imprudence.
Such was the imputation: as to the justice or injustice of it, it is altogether foreign to the present purpose. To adapt the case to the present purpose:—suppose that the conduct of the British administration, antecedently to that disaster, had been made the subject of a charge of corruption; and suppose that, for the pronouncing a judicial decision upon that charge, it would have been necessary that the communication spontaneously made as above should have been produced in the character of evidence; and, for the argument’s sake, suppose it sufficiently established, that, from the unrestricted publicity of that evidence, the inconveniences above spoken of would have ensued; and that the weight of those circumstances would have been preponderant over any advantage that could have been produced by the punishment of the persons participating in that crime.
Here, then, would have been two great evils, one of which, under the system of inflexible publicity, must necessarily have been submitted to: on the one hand, impunity and consequent encouragement to a public crime of the most dangerous description; on the other hand, offence given to foreign powers, and the country eventually deprived of assistance which might be necessary to its preservation.
By a considerate relaxation of a system, which, inestimably beneficial as it has been in its general tendency, was introduced without consideration, and has been pursued in the same manner, both these evils might in the supposed case in question be avoided.
To give a detailed plan for this ideal purpose would occupy more space than could be spared. But, as to leading principles, precedents not inadequate to the purpose might be found without straying out of the field of English practice. The privacy of secret committees, though as yet confined to preparatory inquiry, might on an emergency of this sort be extended to definitive judicature: the mode in which, in equity procedure, the examining judges are appointed by the parties—appointed out of a body of men to a certain degree select,—and (to come nearer the mark) the mode in which two of the fifteen judges are chosen in the House of Commons for the trial of election causes,—would afford a more promising security for impartiality than could be afforded by any committee chosen (though it were in the way of ballot) in either House.
Precautions to be observed in the application of the principle of privacy.
Whatever be the restriction applied to the principle of absolute publicity, care must be taken that the mischief resulting from the restriction be not preponderant over the advantage; that the advantage, consisting in the avoidance of vexation (the inconvenience opposite to the collateral ends of justice,) be not outweighed by any considerable abatement of the security necessary with reference to the direct ends, or rather to all the ends, of justice.
The following are a few precautions, by the observance of which, whatever advantage depending on the relaxation of the principle of publicity be pursued, the more important security afforded by the general observance of that principle may (it should seem) be maintained, either altogether undiminished, or without any diminution worth regarding:—
1. In no case should the concealment be foreknown to be perpetual and indefinite. For to admit of any such case, would be to confer on the judge under whose direction the evidence were to be collected, and the inquiry in other respects carried on, a power completely arbitrary; since, in relation to the business in question, let his conduct be ever so flagitious and indefensible, by the supposition he is, by means of the concealment in question, completely protected from every unpleasant consequence; protected not only against punishment—legal punishment, but against shame.
At all events, in the hands of every party interested must be lodged (to be exercised on some terms or other,) in the first place, the power of establishing each act, each word, by proper memorials; in the next place, the power of eventually bringing those memorials to light. If, in the case of a secret scrutiny, the examination be performed vivâ voce, questions and answers both should be minuted ipsissimis verbis, and the authenticity of the minutes established in the strictest and most satisfactory mode.
2. In no case let the privacy extend beyond the purpose: let no degree of privacy be produced (if one may so say) in waste. For every restriction put upon publicity, in tendency at least (whether in actual effect or not) infringes upon the habit, and weakens the sense of responsibility on the part of the judge.
3. Care in particular should be taken not to have two different sets of tribunals; one of them reserved for secret causes. The tribunals reserved for secret causes will be so many seats of despotism; more especially if composed of judges who never judge but in secret. Under a judge trained up (as it were) from infancy to act under the controul of the public eye, secrecy in this or that particular cause will be comparatively exempt from danger: the sense of responsibility, the habit of salutary self-restraint, formed under the discipline of the public school, will not be suddenly thrown off in the closet.
4. Instead of secret courts, of which there should not anywhere be a single one, let there be to every court a private chamber or withdrawing room: behind the bench, a door opening into a small apartment, into which the judge, calling to him the persons requisite, may withdraw one minute, and return the next, the audience in the court remaining undisplaced.*
In this way, just so much of the inquiry is kept secret as the purpose requires to be kept secret, and no more. In one and the same cause, the interrogation of one deponent may be performed in secret, that of another in public: even of the same deponent, one part of the examination may be performed in the one mode, another in the other mode.
Cases particularly unmeet for privacy.
In cases of a non-criminal nature, between individual and individual,—so long as the faculty of attendance for himself and a sufficient number of his nominees is secured to each person having a distinct interest in the cause, the privacy can be attended with no other inconvenience except the loss of the casual security afforded for the correctness and completeness of the evidence, by the chance of ulterior witnesses, as above explained (a chance which will only apply to here and there a particular case,) and the infringement made in the habit of responsibility on the part of the judge.
In the case of offences of a criminal nature,—and in particular those in the punishment of which the members of the government† or the public at large‡ have an interest,—privacy is far from being equally exempt from danger.
The interest which the public at large have in the conformity of the procedure to the several ends of justice, added to the general reasons that plead in favour of publicity (as above,) seem sufficient to establish the rule of unrestrained publicity in the character of the general rule. What remains to be considered is, whether, among the above-mentioned reasons in favour of privacy, there be any which in a case of this class can constitute a sufficient ground for the establishment of an exception to that general rule.
1. The judge without the concurrence of either party—the judge alone, could not present so much as a colourable reason for any mode or degree of privacy.
2. Nor yet the judge and the prosecutor together. In other words, it would not be eligible that the judge, at the instance of the prosecutor alone, should, for any cause, withdraw the procedure from the cognizance of the public at large.
Whatsoever be the form of government—monarchical, aristocratical, democratical, or mixed—the sort of dependence or connexion which can scarcely fail of subsisting as between the judge and the members of the administration, is such, that, to a person in the situation of defendant in any cause in which any member of that body (as such) has any personal interest, the eventual protection of the public eye is a security too important to be foregone: the vexation—the greatest vexation—that could befal the public functionary for want of that privacy which, in a case between individual and individual, might without preponderant danger be allowed, would be confined to the individual: but, in case of misdecision to the prejudice of the defendant, and undue punishment in consequence (besides that to the individual the affliction of the punishment in this case would be so much greater than that of the vexation on the other,) the alarm which a bare suspicion of such unjust punishment is calculated to excite, would, in respect of its extent, be an additional and more serious evil: and although there were no other cause, the simple fact of a desire on the part of the prosecutor, and a consent on the part of the judge, to withdraw the procedure from the cognizance of the public eye, would of itself be a ground of alarm, neither unnatural nor unreasonable.
The minutes being in this case taken, and taken ipsissimis verbis,—if, when the proof had been closed, the minutes were to be read in the presence of the defendant and of the open committee of the public—if, in answer to appropriate questions, the defendant were then, in the presence of the public, to recognise the correctness of the statement,—the security thus afforded to him against misrepresentation, would (it might be supposed) be sufficient for the purpose.
If, however, throughout the whole of his examination, the defendant were to be altogether destitute of assistance and support (as in Roman procedure is actually the case,) no such security would be sufficient. Having no one to bear witness for him, intimidations of all kinds may, on the part of the judge, or on the part of the judge and prosecutor, be applied to him, and (if unsuccessful) disavowed. On the occasion of the public hearing (as above,) it may happen to him to come ready-instructed—and by such irresistible authority—what to say, and what not to say.
Corrupt indeed must be the state of justice, where such abuses are not at the worst extremely rare; but (be the abuse itself ever so rare) what in the midst of such darkness cannot reasonably be expected to be rare, is the apprehension of it.
What if, no such abuse being really practised, the defendant, temerariously, or through mala fides, should set up a false complaint of it? If indeed he is prudent, and at the same time not without hope of what is called mercy (absolute or comparative,) he certainly will not pursue a course at once so injurious and so offensive. But, that hope of mercy should be altogether wanting, cannot, in a case of this class, be an unfrequent occurrence: nor yet, where revenge can promise itself an immediate gratification, is any such imprudence out of nature.
Under every government, cases will occur, in which (not to speak of pretences) there may be just grounds for wishing that the evidence may be, more or less of it, kept secret. Suppose, for example, the occasion of the supposed offence to be a transaction, the disclosure of which would betray the military projects or the military weakness of the state; or a transaction, exposing to obloquy the conduct of some foreign state. Be the mischief of publicity preponderant or not, few indeed will be the political states (none, perhaps, but the English and the Anglo-American) in which the members of the administration, whose conduct might by the disclosure be exposed to censure, would have self-denial sufficient to forbear availing themselves of the plea for withdrawing it from the scrutiny of the public eye.
In a case of this kind, a sort of middle course might be observed. In the class of professional lawyers, there can never be wanting, in every country, men of reputation, adequate to be trusted with such secrets, if bound to secrecy by an oath, or other the most solemn engagement in use. Out of a list formed for this purpose, but formed at a period anterior to that in which the individual cause could have come into contemplation, let the defendant, in such case, have the liberty of choice. The professional assistant thus chosen, without being near enough to prompt the defendant in his answers, might be present to the purpose of witnessing any impropriety of conduct (supposing it to take place) on the part of the judge, and by that means to serve as a security against its taking place, and to attest its not having taken place.
What if the defendant should be too poor to pay, on the occasion, the price of professional assistance? He must, on this as on other occasions, obtain it through charity, or remain destitute of it. But in a case of this sort, which is always a case of extensive expectation and interest, charity for this purpose can scarcely fail of being at hand, either on the part of sellers, or on the part of purchasers.
3. Nor yet would it be conducive to the ends of justice, that in a case of this description it should rest with the judge to withdraw the procedure from the cognizance of the public at large, at the instance of a defendant; to withdraw it, at any rate but so that, the prosecutor (if there be one) be present on each examination, with at least one professional assistant, by way of witness, at his choice. Without this check (supposing, on the part of the judge, any undue partiality in favour of the defendant’s side) matters might easily be so arranged as that the acquittal of the defendant, though guilty, might be the result; and this without being productive of any of that disrepute which would naturally attach upon the conduct of the judge who should give impunity to a malefactor whose guilt was written in legible characters upon the face of the evidence.
The objection to the privacy extends not, however, beyond the case in which, in consideration of the interest which the public at large has in the suppression of the offence, the judge stands interdicted from remitting the punishment attached to it. For wherever the power of remission obtains, the worst that can happen from the privacy is the exercise of that same power—the exercise of it in an indirect way, instead of a direct one.
4. Nor yet, in the class of cases in question, would it be eligible that the mode of privacy in question should take place, although it were even at the joint solicitation of both parties (or say all parties,) as well as with the consent of the judge.
The reason is, that here (as before) there is a party interested (viz. the public at large) whose interest might, by means of the privacy in question, and a sort of conspiracy, more or less explicit, between the other persons concerned (the judge included) be made a sacrifice. Here (as before) if the case be of the number of those in which, by the concurrence of those several parties (or, much more, if by any two or one of them) the punishment incurred or supposed to be incurred by the defendant may avowedly be remitted, the objection against privacy extends not to this case.
So publication in the scriptural mode were kept open, privacy, as against publicity in the vivâ voce mode (it might seem,) might be maintained without inconvenience; at any rate, if ultimate decision and execution were not admitted till the public had had time sufficient for taking cognizance of the communication made to it.
Several causes, however, concur in preventing the latter of these securities from being an equivalent to both together.
In the first place, it is not the whole of the evidence that is capable of being expressed by writing. Deportment (an article constituting a considerable branch of circumstantial evidence, and itself distinguishable into a considerable number of varieties) is an article not communicable but in a very imperfect manner, to any that are not at once auditors and spectators.
In the next place, the discourse published under the name of the depositions delivered vivâ voce on the occasion in question,—is it really, in tenor or in purport, the very evidence—neither more nor less than what on that time or occasion, was actually delivered? For the completeness, as well as correctness, of the evidence, the presence of an unrestricted assemblage of bystanders affords a security which on some occasions may be absolutely necessary to the prevention of misconduct on the part of the judge (misconduct, the fruit of which may be the violation of all the ends of justice)—a security, of which, in some cases, privacy, as against publicity in the vivâ voce mode, may be absolutely destructive.
In the third place (the evidence being, or not being, represented as it was actually delivered)—that which was delivered under the degree of privacy in question,—is it exactly the same as would have been delivered had the conduct of the judge been carried on under the controul of the public eye, in a state of unrestricted publicity?
The advantages of publicity,—whether considered in themselves, or in comparison with the advantages of secrecy (i. e. with the disadvantages of publicity) in the several cases in which the demand for secrecy presents itself,—will be apt to appear different, according to the state of the constitutional branch of law in the country in question—according as the degree of influence possessed by the body of the people is more or less considerable. Under the republican institutions of British America (for example) it is evident that the value set upon publicity should be at the highest pitch: nor, in this respect, should one expect to see British Europe in any considerable degree behind.
Not that in respect of the real value of publicity in this character of a security for good judicature, there is any very distinct and assignable difference. But in monarchies, the difficulty (if there be any) will naturally be to prevail on the government to give to the application of the principle of publicity, the extent which abstract utility would require. Under a mixed constitution like the British, or a republican constitution like the Anglo-American, the difficulty would be to prevail on the people to view with complacency any such extent given to the principle of privacy as the dictates of abstract utility might be thought to require.
The class of causes in which, under a constitution more or less popular, it is more particularly material that the principle of publicity should be maintained, are such as may be termed constitutional causes—causes in which the government of the country may naturally be expected to take a more particular interest, and in which (if in any) the sinister influence of government (that is of the other members of government) might be apprehended as likely to act with effect in the character of a sinister influence upon the probity of the judge. Such, for example, are—
1. In penali, Prosecutions for endeavours to subvert the government.
2. Prosecutions for endeavours to excite resistance to the power of government on this or that particular occasion.
3. Prosecutions for endeavours to injure the reputation of the public functionaries of the higher orders.
4. Actions by individuals against the public functionaries, especially of the higher orders, for abuse of power or influence.
5. In non-penali, Election causes: suits in which the right to the possession of this or that public office is the subject-matter in dispute.
Of all these sorts of causes (which, however, are given but as examples,) there is not any one that comes within any of the classes marked out for secrecy. Thus far, therefore, the advocate of a popular constitution need find no objection to the application of the principle of publicity.
Even under the most absolute monarchy, in a constitutional cause (as above described) it will not often happen to the sovereign to wish to see injustice done; it can never happen to him to be content to be regarded as harbouring such a wish.
In all cases, therefore, except such in which he is seriously anxious that injustice should be done, he might at least suffer the evidence to be collected in public, without prejudice to his wishes.
But the arguments?—the arguments of advocates in favour of the prisoner,—might it not happen to them to be delivered in too popular a tone, especially where a question of law came to be discussed? In pursuit of professional celebrity and the praise of eloquence, might it not be a natural endeavour on the part of the advocate to raise the spirit of the people, and point their passions against the existing order of things? Supposing this inconvenience a preponderant one, the bar of secrecy might be applied to these effusions of rhetoric, leaving the evidence to be collected in public notwithstanding.
English jurisprudence, supposing it on this ground to rest upon any rational principle, goes much farther in this track. In penal causes of the rank of felonies (high treason only excepted, and that by statute,) it imposes absolute silence upon the defendant’s advocate, so far as the question of fact is on the carpet. So jealous were the founders of the system, of the power of professional rhetoric over the affections of their favourite class of judges—so jealous (always supposing them to have consulted reason on the subject, which very likely they never did)—that by putting a gag into the mouths of the advocates, they determined to give the same sort of security to their judges that Ulysses, when amongst the Syrens, gave to his companions—by putting wax into their ears.
It there were no other option than between publicity in all cases and secrecy in all cases, there can be no doubt in favour of which side it ought to declare itself. It is only in here and there a particular case, that secrecy is of any use—that publicity is liable to be productive of any inconvenience. The inconvenience, where it does happen, confines itself to a few individuals, and that in a few sorts of causes: the evil attached to secret judicature strikes against the whole body of the community—deprives the public of an indispensable security for good judicature—runs counter to all the ends of justice.
Errors of Roman and English law in respect to publicity and privacy.
Such (as far as it can be represented by rough outline) is the course which, as between publicity and privacy, seems, at the present advanced state of society, to be naturally suggested by a solicitous and attentive regard to the ends of justice.
Such, or not very different from it, would have been the course pursued in the civilized states of Europe, and in England in particular, if, being devised and put together at any such advanced stage in the career of civilization, they had had for their authors men who had proposed to themselves the ends of justice as the main object by which their labours were to be guided, and towards which they were to be directed.
At the time when the system of procedure had arrived at such a stage as to have taken a form and character of which it could not, without an extensive and sudden change of lights and views and interests, be divested; unhappily, both the two elements of aptitude, the two requisites to the pursuit of the right path as above sketched out (viz. probity and wisdom,) were, on the part of those in whose hands the power was lodged, everywhere wanting.
In every country, the fashioning of the main body of the laws, and with it, of its necessary appendage the system of procedure, was in the hands of men who, from the blindness which had place as well below them as above them, derived the faculty of taking for the main object of their exertions and arrangements their own personal, separate, and sinister interest:—the interest of the public, of the community in general, and thence the ends of justice, being either in no degree at all, or at best in a very subordinate and inferior degree, the objects of their regard.
For the pursuit of those sinister ends, everywhere the stock of wisdom existing on the part of this class of men was abundantly sufficient: while, for the pursuing of the several ends of justice on every occasion by the most direct and proper course, even had the suggestions of probity been listened to, the stock of wisdom could not but (as we go farther and farther back in the track of history, cutting off thereby more and more of the now-accumulated stock of experience) have been proportionably deficient.
Two opposite systems, the English and the Roman—both of them harsh, unreflecting and unbending—both of them running to extremes, blindly pursuing a general principle to the neglect or contempt of all requisite exceptions—divided between them, in England itself, the field of power; while, upon the continent of Europe, the principle of privacy, pushed to the pitch of absolute secrecy, covered the whole expanse.
In the Roman procedure, as exemplified on the continent, the whole business of examination is performed in secreto judicis: in a place which, whether actually the private closet of the judge or not, is at any rate equally inaccessible to the public at large. Screened by this means almost entirely from the force of the moral sanction, from the tutelary inspection of the public eye,—improbity and (what is still more common) indolence and indifference, may accomplish their ends with comparatively little risk. The court above (for, under the Roman law, the check of appeal, being the only one, is almost uniformly applied)—the court above, were they to discover any marks of improbity apparent to their eyes, would naturally prevent it from taking effect. But under the system of privacy, it is only from the information given them by the inferior judges themselves, that the superior judges obtain what information they acquire concerning what is done by those inferior judges. In case of mere indolence, impropriety of conduct may rise to such a degree as to be continually giving birth to wrong decision, and frustrating the purposes of justice, without betraying itself by any such indications as would necessarily find their way to the eye of the court above. And in case of improbity, or prepossession,—if the seducing motive or prejudice were either imbibed by the inferior judges from the superior, or shared with them in any other way, a check which at best (as we have seen) is but inadequate, would by that means be reduced to nothing.
Happily for England, that one of the two rival principles to which good fortune rather than wisdom had given the ascendant, was the principle of publicity. At first, the small body of men who in each district, under the name of freeholders, lorded it over a larger body of slaves and other humble dependents, then, by degrees, a sort of select committee of that body,—gained or preserved, together with the right of access and the duty of attendance, a sort of influence which (by the favour of fortune) operated as a check upon the king’s completely dependent creatures, who in this department of goverment operated as instruments of his will under the name of judges.
But of the attendance of every such tribe of assessors—whether the promiscuous body of freeholders, or the committee of twelve under the name of jurors—publicity (and that in a degree unrestrained by any bounds but such as in this or that place came to be applied by casual and local and accidental circumstances) became a natural, and, as good fortune would have it, at length an inseparable, concomitant.
In English judicature, therefore, the principle of publicity predominates over the principle of secrecy; and it is to this predominance, added to two or three other very simple principles, and not the less salutary for being simple,* that, taken in the aggregate, the system of procedure is indebted for its being perhaps the least bad extant, instead of being among the worst.
In English judicature, the genius of publicity predominates over its antagonist. In some parts of the system it is established: and in those parts, loud and universal and incessant are the praises of it. In other parts it is discarded: in those parts the principle of secrecy is watched over with a degree of attention and anxiety much beyond what is manifested for the maintenance of publicity. Publicity is adored—secrecy cultivated: in despite of adages, in despite of consistency, God and Mammon are served in the same breath.
In common law, all is light: in equity law, all is darkness. The light is admirable: the darkness no less admirable. Think not that the darkness, where darkness reigns, has any rational cause, or anything approaching to a rational cause. The circumstances presenting a demand for secrecy have above been brought to view: scarce any of them have any application to any of the sorts of causes of which equity takes cognizance. At any rate, if a selection were made of the sorts of causes least apt to present a demand for secrecy, those of which equity takes cognizance might stand first upon the list. “I think; therefore I exist,” was the argument of Des Cartes: I exist; therefore I have no need to think or be thought about, is the argument of jurisprudence.
What are, and what are not, equity causes, I cannot (happily it is not here necessary) undertake to say: those by whom this exquisite sort of law is administered, do not themselves so much as profess to know. Two things, however, a man may venture to say, with some assurance: that there is not any sort of fact whatever inquired after in this extraordinary, this less trustworthy, this secret mode, that may not at any time be sent to be inquired after in the ordinary, the more trustworthy, the public mode, by virtue of what is called directing an issue: that,—in this division of cases, to which the capacity of being inquired after in the secret mode is confined,—the sorts of transactions in which the peace and honour of families are most liable to be wounded, those in which the laws of decency are most liable to be violated, and those in which pecuniary credit is most liable to be injured, are not comprised.
The reason for this secrecy (for there is a reason for it) is altogether curious: it is, lest the evidence delivered on each side should be opposed by counter-evidence delivered on the other.
And why not suffer the testimony to undergo this correction and completion? Why not? (for this reason has likewise its reason, its superior reason.) Why not? For fear of perjury.* Such is the reason for not suffering evidence to be opposed by counter-evidence. Had it been the express object of these sages to encourage perjury, few means better adapted to that purpose could have been devised.
The notion that seems to be implied, and in a manner assumed, in this arrangement, and the reasoning by which it is supported, is curious enough. It is, that there exists a sort of natural fund of evidence, upon which it is in every man’s power to draw for any quantity for which he happens to have a demand: or else, that every man possesses a sort of manufactory of evidence, in which it depends upon himself to manufacture at any time whatsoever quantity of the article he has occasion for, for his own use.
This unlimited fund of evidence—of what sort is it supposed to be?—true and relevant evidence, or false evidence? If true and relevant, what advantage did the legislator propose to justice from the suppression of it? If false evidence, what is there in this arrangement that can tend to discourage the manufacture? The party who, in consequence of what he has heard of the evidence (true or false) that has been produced by his adversary, sets about the production of false evidence, has therefore as well the will as the power to manufacture false evidence—whatever false evidence suits his purpose. What a supposition! and where is it that anything can be found to countenance it?
Will it be denied that true evidence is rather more frequent, and more easy to obtain, than false evidence? But if so, the evidence suppressed by the arrangement in question is more likely to be true than false.
Is it, that evidence is more likely to be false than true? and being false, to be deceptitious? If this theory were correct, the practical inference would be, that the best course to take would be never to receive any evidence at all.
In the criminal branch, the open inquiry is regularly preceded by a secret one.* To what use the secrecy here? Oh, it had once a use, though the use is gone:—no matter, it is not the less admirable.
The use of the secrecy having for centuries been lost (lost without being missed by anybody,) the secrecy itself continues. What is the consequence? In the seat of secrecy, what could not but be the consequence,—despotism: in another place, caprice, in this or that odd corner of the field of judicature, taking upon itself to controul that despotism—caprice, acting without rule, and tolerated (though not always without grumbling) because despotism jostled and counteracted by caprice, is better than despotism pure and simple. Would informations in any case be endurable, if, in that same case, grand juries were not a source of impunity, an obstruction in the way of justice?
The original purpose of this secrecy was, to avoid divulging to the defendant the evidence that might come to be produced against him in the definitive inquiry (called the trial) before the petty jury. Not divulge it to him? why not? Lest, by absconding, he should elude the hands of justice. Observe, that at this period he has already heard the evidence against him, defended himself against it as well as he has been able, and is already in the hands of justice.
Another case of secrecy at common law is that of the examination of a married woman, on the occasion of her joining with her husband in the alienation of a landed estate held by them in her right. This in itself has nothing to do with judicature. But some centuries ago, the judges of one of the great courts of Westminster-Hall (the Common Pleas) having contrived to introduce themselves into a share of that sort of business, which on the continent of Europe is performed by notaries who are not attorneys, and in Britain by attorneys,—the ceremony thus described has been introduced accordingly into the list of the ceremonies performed by a judge. Whatsoever may have been the origin of it, the effect is innoxious (at least if the expense and vexation of personal attendance be laid out of the question,) and what was probably the object is laudable: the property originating with the wife, the object was to ascertain that her consent to the parting with it was free, not extorted by ill usage.
The veil of secrecy is thrown over examinations and other inquiries, as carried on in the common-law courts, as well as in the equity courts, by the sort of subordinate judge called in most instances the Master—in the other instances, designated by some other name which is regarded as synonymous.†
The matters of fact inquired into by this sort of subordinate judge, are in general such as are regarded but as accidental with relation to the principal matters on which the cause hinges, and which form the subject of the ultimate decision pronounced by the principal judge or judges.
The business of the examiner so denominated—of the subordinate, who, sitting in the office called the examiner’s office, collects the personal evidence—is confined altogether to that narrow function. By him the evidence is collected, but it belongs not to him to pronounce any decision grounded on it. Were he not to commit the testimony to writing, his operations would have neither object nor effect.
Not so the Master. To pronounce decisions is the principal function of his office: another function, subservient to the former, is the making inquiry into the matters of fact on which these decisions are to be grounded. Of the testimony relative to these matters of fact, that he should commit to writing minutes of some sort or other (possibly and eventually for his justification, but at all times for the assistance of his own recollection) may naturally, or rather must necessarily, be presumed. In the present instance, however, everything of this sort is left to chance. For any general proposition expressive of the state of the law or the practice on this head, no sufficient warrant is to be found in any printed book of law. How should there? Operations which are left throughout to be the sport of chance, how should they in any way form the subject of a rule?
A cause, on the occasion of which the testimony, after having been extracted and collected in the sunshine of publicity, is carefully committed to writing by judges of the highest rank, may be to any degree destitute of importance. A decision adjudging to the plaintiff, in the name of damages, the sum of one shilling (a fraction of the value of one day’s labour of an ordinary labourer) is in every day’s experience: a decision adjudging to him no more than the forty-eighth part of that sum, is not without example.
A cause, on the occasion of which the testimony (after having been extracted and collected, in the darkness of a small sitting room, by judges of too low a rank to be spoken of under that respected name) is either committed or not committed to writing,—and (if in any form) in a form more or less adequate or inadequate to the purpose, as indolence, caprice, or any other motive may have prescribed,—may be important to any the highest degree of importance—at least of pecuniary importance.
In the case of the inquiry carried on as above in the examiner’s office, secrecy (as hath already been mentioned) is an object expressly avowed, and anxiously provided for. With a degree of strictness not much less anxious than that which is observed on the occasion of those spontaneous and confessional declarations which in some countries religion is considered as prescribing, the door is avowedly shut against the public at large—against every person besides the two necessary actors in the forensic drama—the examiner and the examinee.
In the case of the inquiry carried on before a Master, no traces of any such anxiety are to be found anywhere in print; no authoritative political bar, visible in that form, has been opposed to the entrance of miscellaneous visitors. Bars of the physical class (such, for example, as brick walls) are, however, not less efficacious; and of these there is no want. The walls which bound a space in which not more than twenty persons can find standing room, are at least as peremptory a bar to the admission of three score, as any act that was ever printed in the statute book, or any proclamation that was ever inserted in the Gazette.
An experiment I should not choose to make, is the attempt to gain admission into a master’s office, not being attorney, or advocate, or witness about to be examined in the cause. Courts of justice—English courts of justice (as any English lawyer will be ready to assure you) are always open: but an argument I should not choose to pay for, is an argument on the question, whether in this sense a master’s office is or is not a court of justice.
In ecclesiastical court procedure, again, as in equity procedure, all is darkness. Why?—because in those courts of narrow jurisdiction the demand for secrecy is particularly urgent? Not for any such cause, most surely: that cause would be a rational one. It is because this smaller branch, as well as the larger, was imported ready-grown from the Roman world. In both instances, who were the importers? Men who, whatever was the cause, loved darkness better than light.
Within the jurisdiction of these courts are included causes relative to adultery: and in these causes is not the peace and honour of families concerned? Yes, surely, if in any. Here, then, at least (it may be added) is not the veil of secrecy well applied? applied fortunately at least, if not wisely? Yes, verily, if it were applied to any effect. But is it? To the delivery of the evidence, the public is not admitted, because it would be against custom and against principle. But the evidence, when delivered, is made public—as public as the press can make it. While concealed, it is not because concealment is favourable to decency: when made public, it is not because publicity is favourable to justice. When concealed, it is not because judges have regard to family peace, to female honour, or to decency; but because judges, or those who act under judges, have a regard for trade. The secrets of the Arches are opened by the same key—the same patent key—by which the courts in Westminster and Guildhall are closed.
There are moral obstacles, and there are physical ones—there are prohibitions, and there are stone walls: the walls are of rather the firmer texture. In the highest criminal court, the King’s Bench, when the doors are not shut, the proceedings are said to be public: and when in a popular mood, magnificent are the eulogiums pronounced on the publicity by learned judges. When the doors are not shut, the proceedings are said to be public: but within these doors, in what numbers it is possible for men to come, or (being come) to hear, is not worth thinking of. When the doors are not shut, the proceedings are said to be public: and so are they when the doors are shut, so long as it is in the power of money to open them. Would you know what becomes of the money? Ask the door-keeper, or the Lord Chief Justice: the door-keeper, who either keeps the money or pays it over; the judge, who either gives the place or sells it.
So much for that branch of publicity which consists in the admission of spectators into the theatre of justice. Next, as to that which consists in the printed publication of the whole of the proceedings, including at any rate the evidence:—publication of the trial, as we say in English. In that part of the cause which is called the trial, is contained (with scarce an accidental exception) as much of it as is capable of exciting, on the part of a non-professional reader, the least particle of interest: all the rest of the proceedings being of a nature common to all causes of that class, and not contributing to add to the conception of the characteristic features of the individual cause. In this document are exhibited;—1. The cause of action, as set forth in the declaration or indictment, according as the cause belongs to the non-penal or penal class; 2. The evidence, as contained in the questions put to the witnesses, whether by advocates, judge, or jurymen, and the answers given in consequence; 3. The arguments of the advocates on both sides; 4. The substance of the evidence as recapitulated by the judge, with any such observations as he thinks fit to make on it, for the instruction of the jury.
In England, the faculty of printing and publishing the trial, as thus explained, is, in the instance of all causes at the hearing of which the public is permitted to be present, open to any person who may find himself disposed to exercise it. It is exercised as often as (in the instance of a party concerned) the care of his reputation, or (in the instance of a bookseller or reporter) the prospect of profit, presents an adequate inducement—an incident that frequently does happen, and may happen in any case, for any assurance that any person interested in the concealment of improbity or negligence or imbecility could ever give himself to the contrary. In this way, not only the parties to the cause are upon their trial before the bar of the public, but all the other actors in the drama: witnesses, advocates, jurymen, and judges.
The fixation of the evidence in this way, by signs of an unevanescent and imperishable nature, affords (it is evident) to the correctness of the expression a much more permanent security than could be afforded by the mere publicity of the transaction—by the faculty afforded to the public at large of catching by the ear such a transient impression as that organ is capable of receiving. Expense apart, the thing to be desired would be, that such complete publication should take place in every case. In the bulk of cases, the magnitude of the expense operates as a bar: but, by a happy coincidence, the more important the cause, the better the chance it possesses of obtaining this matchless security for propriety of conduct on the part of all persons in any way concerned in it.
In this country, an account, more or less particular, of the proceedings of the principal courts of justice, has, for many years past, formed a constant ingredient in the composition of a newspaper. The degree of interest likely to be taken by the public, is in this case the natural measure of the space allowed to the history of each cause. Wherever, according to the calculation made by commercial speculation, the degree of interest promises to spread to a certain extent, the history of each cause forms a separate publication.
The causes which serve to hold up to the view of the public the conduct of the public functionaries, are among those by which the most extensive interest will naturally be excited.
Thus intimate is the connexion between intelligence, curiosity, opulence, morality, liberty, and justice.
Another advantage of this publicity, and one that applies more directly to the present head, is the chance it affords to justice, of receiving from hands individually unknown, ulterior evidence; for the supply of any deficiency, or confutation of any falsehood, which inadvertency or mendacity may have left or introduced. In this way, though it furnishes not altogether the same inducement—(the motive grounded on the religious sanction,) it may be capable of answering in other respects (and if with less efficacy, on the other hand with less danger) the purpose of the French Monitoire.
Such might be the use made of it: and by this means, in penal causes of the two highest classes, a powerful barrier might be erected against the influx of that most copious of all causes of mendacity and consequent impunity, alibi evidence. But as matters stand at present, the rule which forbids new trial* in this the most important class of causes, prevents the application of the principle to this use—prevents the deriving of any advantage to justice from this source. To point out a remedy for that mischief, and (what is of much more difficulty) to inquire whether the remedy, which is obvious enough, would be worth the purchase,—belongs to another Book.*
Such as our exigencies are, such is our nomenclature. For alibi evidence—a branch of perjury springing out of English procedure—English jurisprudence, and that alone, affords a familiar name. At the expense of delay, which, in the system of Roman procedure, has no bounds, that system frees itself from this source of undue acquittal and impunity. Were a guilty defendant to attempt to prove the impossibility of his crime by his distance from the spot—the prosecutor, convinced of the falsity of this evidence by the true evidence which it contradicts, would not fail either to demand or to obtain the time requisite for the confutation of it.
In France, even under the ancien régime, a custom prevailed which could not but have operated in a very considerable degree as a succedaneum to the constant publicity and frequent publication of the English trials. I mean that of printing mémoires in every stage of a cause, and even before the commencement of it: mémoires by or on behalf of the parties, for the purpose of explaining to the body of the public the grounds of their several pretensions. If at the time of the publication of a mémoire of this sort, a decision had already been given by a court of the first instance, the evidence would of course be exhibited and commented upon: and by this means, supposing mémoires published on both sides (as would naturally be the case,) the effect, and in some respects more than the effect, of an English trial, would be produced. Supposing even the publication of the mémoire antecedent to the commencement of the cause, the attention of the public would at any rate be drawn to it, and a guard be thus set upon the probity of the judge.
A circumstance that rendered the demand for this guard more particularly urgent, was the practice of solicitation—a practice not only tolerated, but in a manner necessitated; by which was meant that of paying a visit to the judge, out of court and in secret, to endeavour to obtain his favour, and beg his vote and interest in favour of the solicitant or his friend. Money, or anything to be bought for money, was not to be offered: but neither sex was excluded, either by law or custom; and the advantage afforded by beauty on such occasions was too palpable to be neglected, and too notorious to be denied. The other circumstances contributed to enhance the mischief: the tumultuous multitude of the judges, a circumstance by which the idea of individual responsibility was in a manner obliterated; the common interest possessed by the judges of a superior court as members of a political body; and the constitution of the state, which exempted them from any such prosecutions as that which, under the name of impeachment, English judges are exposed to undergo, at the instance of one of the three branches of the sovereign body, with the members of the others for their judges.
In England, if a man who had a cause depending before a judge should have the option forced upon him, either to spit in the judge’s face, or to wait upon him to solicit him in the ci-devant French style, he would probably choose the first mode of helping his cause as the least dangerous of the two. I can speak only from conjecture: for, as both compliments are equally unexampled, it is impossible to speak from experience.
In England, publications of the cases of litigant parties are altogether unusual; and, if distributed for any such purpose as that of influencing the decision of the jury, would be liable to be treated on the footing of an offence against justice. The censure thus passed upon the practice in England is grounded on reasons which pass no condemnation on the practice just described as prevailing formerly in France:—
1. In the first place, in England there is no such demand and use for it as that which has already been exhibited as resulting from it in France. No solicitations: judges acting singly, whose conduct, without the need of any such occasional lights, is transparent on every occasion and on every point.
2. In England, the ground for the prohibition put upon these ex parte publications, is the danger of their exercising an undue influence on the minds of the jury. This reason, whatsoever may be the force of it, had no application to the judicial establishment as constituted in France. On professional and cultivated minds, engaged by the necessity of office to procure the whole mass of evidence and argument, the premature exhibition of a part would rather be turned aside from as useless, than apprehended by anybody as dangerous. It was to the eye of the public at large, and not to the eye of any person whose office called on him to act in the character of a judge, that these statements were addressed. In what way could the probity of the judge be endangered by receiving at one time a part of those documents, the whole of which would come before him of course? Even in England, the reason on which the prohibition relies for its support has more of surface than of substance in it. The representations given by publications of this sort will of course be partial ones; the colour given to them will be apt to be inflammatory; the judgment of a jury will be apt to be deceived, and their affections engaged on the wrong side. Partial? Yes: but can anything in these printed arguments be more partial than the vivâ voce oratory of the advocates on that same side will be sure to be? The dead letter cannot avoid allowing full time for reflection: the vivâ voce declamation allows of none. The written argument may contain allegations without proofs:—true; but is not the spoken argument just as apt to do the same? When, of the previous statement given by the leading advocate, any part remains unsupported by evidence, the judge of course points out the failure: whatever effect this indication has on the jury, in the way of guarding them against that source of delusion in spoken arguments, would it have less efficacy in the case of written ones?
[* ]Regarded in a certain point of view, the two imperfections—falsehood (including incorrectness and mendacity,) falsehood and incompleteness—may appear to coincide. Previous to the exhibition of the testimony, an oath, suppose, is exacted from the deponent—an oath promising completeness. Such oath having been taken, if the deposition be in any respect incomplete, it is in so far false.
[* ]See Book IV. Preappointed, Chapter VIII. Official Evidence.
[* ]Witness (to speak here of deposing witness) is an appellation that with propriety may be, and sometimes at least of necessity must be, applied to the designation of every person whose discourse, when exhibited to a court of justice, is employed in the character of testimony, or say evidence. If this be true, it must be applied, every now and then, to those who are parties in the cause, as well as to persons who, not being parties, are more commonly meant when the word witness is employed.
[† ]See Book IX. Exclusion.
[* ]In general, whatever security serves to guard the station of deponent by operating as a check to transgression in his sphere, will apply, with more or less efficiency, to the station of judge, by operating as a check to transgression in that superior sphere. But there are some—publicity, for example—that apply, either exclusively, or with a more particular energy, to the station of judge.
[* ]This last article in the list of securities, which, as the reader will have seen, is a security, not for the correctness of any one article of evidence, but for the completeness of the whole mass, belongs to the head of Forthcomingness, which was reserved by the Author to form part of a work on Procedure.—Editor.—[See Principles of Judicial Procedure, (in Vol. II. of this collection) Chap. X. Judicial Communication, and Chap. XXII. Prehension.]
[* ]Ex. gr. Wager of Law.
[* ]With mendacity, a work on the law of evidence has no direct concern, any further than as the falsehood thus characterized is delivered on a judicial occasion or for a judicial purpose.
[† ]Book I. Chapter VIII.
[* ]This case might have been comprised under the second head; inasmuch as persuasion grounded on the testimony of another person, is necessarily matter of inference. But the two cases, that of inference from a man’s own perceptions, and that of inference from exterior human testimony, are, in respect of the opening for error, so widely different, that the latter could not but be referred to a separate head.
[† ]It is only in consideration of the purpose, the mischievous purpose, to which the falsehood is applied—the mischievous effect of which it is or tends to be productive, that punishment can properly be employed to check it. In respect of quality as well as quantity, the demand for punishment will of course vary with the nature of the mischief, and consequently with the occasion on which it is produced, or liable to be produced. To the modifications of falsehood already brought to view, will therefore come here to be added a view of those which result from the particular occasion on which it is uttered: the general description of the occasion being that of a suit at law, either actually instituted, or in contemplation to be instituted.
[* ]Dumont, “Traités de Legislation,”—“Introduction to Moral and Legislation,” ut supra.
[* ]See Book I. Chapter XI. § 5.
[* ]Dumont, “Traités de Legislation.” “Introduction to Morals and Legislation, ut supra.”
[† ]This punishment is abolished by 7 W. IV. c. 23.—Ed.
[* ]Halifax, p. 104.
[† ]Vide infra, Chapter VI. Section 5.
[‡ ]Code Pénal, p. 160—viz. by imprisonment, with forced labour, on board the galleys.
[* ]Ravaut, “Procédure Civile du Palais.’ Paris, 1788.
[† ]Ibid. p. 66.
[‡ ]Linguet’s Plaidoyers, tom vi. p. 404.
[∥ ]Hein. ad Pan. P. iii. § 31.
[§ ]Ib. i. 473—ii. 66, 87—iii. 114.
[¶ ]Ib. vii. 200.
[* ]State Trials—Elizabeth Canning’s trial.
[† ]Except the case of a Quaker, which applies not to this purpose. [By 5 & 6 W. IV. c. 62, which abolished oaths in certain cases (see Note, Vol. V. p. 188,) Justices are prohibited from taking affidavits on oath, except where they are authorised by act of Parliament; but they may receive declarations, and the making such declaration falsely is a misdemeanour.]—Ed. of this Collection.
[* ]Hawk. iv. 446. 1 Ann. c. 9. § 3.
[† ]Ex. gr. Cases in which facts that are either false or unascertainable are required to be averred in indictments, on pain of nullity: that the crime was committed at the instigation of the devil,—that the instrument employed in the commission of it was of such or such a determinate value, &c. &c.
[* ]In here and there a scanty instance, the current of mendacity has indeed received a check: the facts stated in the plaintiff’s bill being required to be verified by affidavit. But the same considerations, by which the attention of the legislator is proved in these odd corners in the field of equity jurisdiction, demonstrate his negligence—his self-conscious negligence—in every other quarter of that vast expanse.
[† ]In the Court of Chancery, the master; in the Court of Exchequer, the barons, the judges themselves.
[* ]In specie it was the same sort of authority as that which was supposed to be exercised by magical incantations: exercised only over a different sort of supernatural person, and to different and even strongly contrasted purposes. The authority exercised by a testimonial oath, was exercised over a divinity spoken of in the character of a beneficent divinity, and for purposes spoken of in the character of beneficial purposes: the authority exercised by a magical incantation, was exercised over a maleficent divinity, and for pernicious purposes.
[* ]“The alternative to which Providence is by consequence reduced, of either giving up that country to everlasting superstition, or of working some miracle in order to accomplish its conversion.” Such are the words in which (in the Edinburgh Review for April 1808a ) a reverend divine is represented as describing one of the consequences which, in his view of the matter, will ensue, should the arm of government be employed in restraining, by coercive measures, the exertions directed to the extension of the benefits of christianity to the natives of Hindostan. “The idea of reducing Providence to an alternative!!” exclaims the reviewer in a double note of admiration: “and by a motion at the India-House, carried by ballot!”—“Providence reduced to an alternative!!!!!”—another exclamation by notes of admiration five deep. Then—for the declared purpose of representing the idea as the ne plus ultra’ of irrationality—this and that and the other idea, represented as irrational, is said to be pure reason when compared to it.
[* ]By 1 & 2 W. IV. c. 4, declarations were substituted to oaths in this department.—Ed. of this Collection.
[* ]Subjection to interrogation ex adverso, backed by fear of punishment and of loss of reputation, to enforce compliance.
[* ]In some of the above cases, the title to the money rests solely upon the authenticity of a script, an order, or other voucher, produced in the character of an article of written evidence. In these cases, he who, instead of an authentic, produces a counterfeit script, subjects himself to the punishment (generally capital) appointed in case of forgery.a In others of these cases, the mere identity of the person is the efficient causes of title. In these cases, he who, not being the person entitled under a certain name to receive a certain sum of money, represents himself as being that person, and receives the money accordingly, subjects himself to the punishment (generally capital) appointed for this offence, under the name of personation.
[† ]See the last Chapter, § 1.
[* ]By 7 & 8 G. IV. c. 29, § 12, the amount is raised to £5,—Ed. of this Collection.
[* ]“Oaths” the seed, “perjury” the “harvest.” Such is the husbandry which by Blackstonea is spoken of as actually pursued; and of which, by the mention made of it in these terms, his disapprobation is pointedly enough declared. O yes! bad indeed was such husbandry in that case. And why in that case? Because, in that case, the husbandman was a competitor in trade: the judge, or the practitioner, in a rival set of judicatories; which—though (under the auspices of the fee-gathering system) united by a common interest with his own—had also for a source of rivalry and discord, its separate interest. Never can he bring himself to speak without a sarcasm, of the business of those decayed and petty traders (once, in the good old times, at the head of the trade,) whom the vast firm to which he belongs have now, for such a length of time, kept like toads under a harrow. Viewing in every rival an usurper, he grudges them even their wretched remnant in the trade of wickedness.
[* ]By 9 Geo. IV. c. 32, the evidence of Quakers is taken in affirmation in criminal cases.—Ed. of this Collection.
[* ]See Book IX. Exclusion.
[† ]What, then, it may be asked—by threatening a man with inferior punishment in case of mendacity, would you expect to see him, by veracity, subject himself to superior punishment? By threatening him eventually with punishment short of death, would you expect to see him subject himself for a certainty to the very punishment of death? No, surely: nor in that case is it necessary to subject a man, in case of mendacity, to any separate, independent punishment. Undetected, it cannot be punished in any case; detected, it will in general subject him to the proper punishment: to the very punishment from which, by that fresh crime, the natural consequence of every former crime, he struggled to escape from it.
[* ]To show how much in this case may depend on form, when in substance the ceremony is the same. I have heard at different times many more instances than I can recollect of the importance attached to particular forms among sea-faring men and other individuals belonging to the unlettered classes—forms not established, but cast by chance in each man’s particular imagination. Say, you wish your tongue may rot off—say, you wish your eyes may drop out of your head this moment,—if you ever saw any such thing. By an adjuration in some such form, or varying from it by some whimsical embroidery which I have now forgotten, and which, if remembered, it might perhaps not be decent to repeat, has a man been made to bring out some truth, which, till then, he had masked by a profusion of false protestations, uttered without scruple; and which could not have been extracted from him by all the force that could have been brought to bear upon him in a court of justice.
[† ]With a view to solemnity and impressiveness, the choice of a formulary is matter of no small difficulty. It is exposed to this dilemma; employ the same form on all occasions, the most trifling as well as the most important,—applied to the most important, it fails of being so impressive as it might be; or else, when applied to the least important, it sounds bombast and ridiculous. Employ divers forms, rising one above another in impressiveness,—then comes another danger: on the occasions on which any form short of the most impressive is employed, the witness, knowing that there is another which is regarded as more efficacious, may conceive lightly of that which, on the occasion in question, is tendered to him, and regard it as wanting in some particular which is necessary to endow it with a completely binding force.
the truth, the whole truth, and nothing but the truth.
knowingly utter anything that is false, or in any respect conceal, disguise, or misrepresent the truth, I acknowledge myself to be deserving of the wrath of Almighty God, and of the contempt and abhorrence of all mankind.
[‡ ]Scotch covenanter’s oath.
[∥ ]On the ground of English law,—if the faculties possessed by ecclesiastical functionaries were not, by a sort of mutual (though tacit) understanding, set down among the sorts of talents better kept under the napkin than drawn out for use,—the application might be made of this principle in a variety of obvious instances:—
[* ]The institution of binding a man to his good behaviour, by obliging him (in the language of English law) to enter into a recognisance, bears, in one respect, an analogy to this arrangement. Considered on the mere footing of a contract, an engagement, an agreement,—so far as the cognizor himself is concerned, and without adverting to the persons joining with him in the obligation in the character of sureties, the operation is useless and nugatory: to what end employ the compulsive force of law, to engage a man to consent to submit to an eventual obligation, which it would be just as easy to impose upon him without such forced consent, as with it? The only real use of the instrument is to fix the penal sum which, on the deprecated event in question, a man will have to pay; and to notify to him the amount of it.
[† ]A very few words, indeed, well chosen and well placed, will be sufficient. There is no sort of incompatibility between the one object and the other. Among men not under the influence of religion, an oath bearing reference to religion and nothing else, is in danger of losing the whole, or a great part, of that respect, which might be secured to it by a prudent attention to their opinions. All men ought to be under the influence of religion—therefore, whether they are or no, we ought to deal with them as if they were—is a most deplorably self-deceiving, though unhappily but too frequent, logic. But deplorable would be a man’s own error—deplorable the misfortunes of his subjects—if, on any practical occasion, any such assumption, any conceit thus hatched, should be taken up by him in the capacity of a legislator, and acted upon as a ground for any of his measures.
[‡ ]Chap. X.
[* ]Job xv. 6.
[† ]Luke xix. 22.
[‡ ]See last Chapter, § 3.
[* ]Code Dan. l. 1. cap. xiii. § 8. p. 58.
[† ]Expositio Juramenti, p. 545.
[* ]Halhed’s Code of Gentoo Law, pp. 129, 130.
[† ]Ibid. p. 130. See above, p. 262.
[‡ ]Page 364.
[* ]For the principal alterations in the law regarding oaths, which have taken place since the above chapter was first published, vide supra, pp. 312 & 316, and Vol. V. p. 188.
[* ]9 and 10 W. III. c. 15, anno 1698.
[† ]If, previously to any regular application to a technically proceeding tribunal, a plaintiff were obliged to address his demands in the first instance to a tribunal proceeding in the mode indicated by natural justice, these arbitration courts would in that respect coincide in their nature with the Danish Reconciliation Offices. But these occasional arbitration courts not having existence but by the joint act of both parties, such coincidence is impossible.
[‡ ]Vide infrâ, Book VIII. Technical Procedure, Chap. XIV. Nullification.
[* ]Book I. Chap. XI. Moral causes of correctness and completeness.
[* ]On this occasion, a distinction necessary to be kept in view is the distinction between the effect of the vivâ voce mode on the quality, the distinctness, of the testimony itself,—and the effect of the same mode on the conception capable of being formed and retained, in relation to that same testimony, by the judge. On the part of the testimony itself, vivâ voce delivery (coupled, as it must be, with vivâ voce interrogation) may often be a necessary bar to the indefinite accumulation of irrelevant matter, and consequent increase of indistinctness: on the part of the conception formed of it by those by whom a judgment on it is to be formed, all chance of adequate distinctness would soon vanish, if the assistance of the art of writing were not called in, to give permanence to the words to which it has been consigned.
[† ]As on other occasions, so on the occasion of any operations which may come to be performed in relation to evidence, impracticability may be distinguished into physical and prudential.
[‡ ]Book VI. Makeshift, Chapters III. & IV.
[* ]The great Douglas cause, and the trial of Mr. Hastings, will by many be regarded as exemplifications of a similar result produced by an opposite cause. Why? Because, where writing is concerned, too much may have the effect of too little. By supersaturation, as well as by inanition, the powers of the mind, as well as those of the body, may be destroyed.
[† ]See the Trial of Warren Hastings.
[* ]See Book III. Extraction.
[* ]A case for the writ called ne exeat regno, in English equity practice.
[† ]In English law, in all the cases in which a man is laid provisionally under restraint pendente lite, the testimony on which the restriction is grounded is in the uninterrogated form, that of an affidavit.
[* ]Book IX. Exclusion. Part V. Double Account.
[* ]The following are cases, in which, if there be interrogation at all, there is but one person by whom it can be applied.
[* ]I. A plaintiff deposing, may be interrogated by or in behalf of the characters following: viz.
[* ]See Book IX. Exclusion.
[* ]Book III. Extraction. Chap. V. Browbeating.
[† ]Book III. Extraction. Chap. III. Suggestive Interrogation.
[* ]Book III. Extraction. Chap. VIII. Modes of Interrogation compared.
[* ]In case of supposed perjury, for the purpose of eventual forthcomingness and justiciability, power has, by a special law, been given to the judge to commit the supposed perjurer on the spot. and to order prosecution at the expense or a public fund.
[* ]The same reasons will serve to show that a plaintiff, on the occasion of his delivering his testimony, should be subjectible to interrogation, even by or in behalf of a fellow-plaintiff. If the interest of the fellow-plaintiff coincide with that of the plaintiff who is about to depose, there is at any rate the chance of additional skill, added to that of additional appropriate information: it the interest of the fellow-plaintiff is different in any respect from that of the plaintiff who is about to depose, the situation of the fellow-plaintiff coincides in that respect with that of a defendant. On the score of danger of mendacity-serving information, the same objection as above may be brought, and the same answer may be given to it.
[† ]Whatever be the number of persons whose interest in any shape is at stake in the cause, each having a separate interest, and demanding to be allowed to do whatever may be lawful and necessary for the support of such his interest (be his demand positive or defensive,) there is as much reason for acceding to one such demand as to another. Audi alteram partem—hear the other side—is the phrase by which this universally applicable and universally undisputed conception appears commonly to have been expressed: such, at least, is the interpretation which that maxim requires to be put upon it, ere it can be admitted to have embraced on this ground, to their full extent, the exigencies of justice. By altera pars, understand every separate interest: for each part, each interest, is altera with reference to to every other. Under audi comprehend the giving allowance to every lawful act, the performance of which is necessary to the support of each such interest. To adduce or exhibit sources of evidence, is one such act: to take a part in the extraction of the evidence from the several sources adduced, by whomsoever adduced, is another: to present to the judge observations on the evidence so extracted, is again another. In any given cause, if the allowance of any one of these operations be necessary to justice, so is that of every other: if in any one cause the allowance of them all is necessary to justice, so is it in every other. If, among three operations such as these, to all of which it may happen to be necessary to justice that they should be respectively performed, there be any one which is less certain of being necessary than the two others, it is the one last mentioned, viz. that or presenting observations. The testimony of Titius, in the character of an extraneous witness, may of itself be so correct and complete, as to supersede all demand for skill and labour to be employed in the extraction of any supplemental testimony from the same source: its application to the demand may at the same time be so plain and obvious, as to render it plainly impossible for it to receive any additional persuasive force from any observations that could be grounded on it. Scrutinized or unscrutinized, evidence may speak, and speak sufficiently for itself: but in a question of fact, observations without evidence would be a discourse without a subject.
[* ]If, on the part of the judge, improbity (which in this case will be a determination or inclination to decide in favour of one side or other, in opposition to the dictates of justice) be supposed; the chance in favour of justice is, in this case, reduced perhaps even lower, than if, the judge being excluded, the right of interrogation were allowed exclusively to the party on one side. For the judge, by the supposition, in point of affection, is, in this case, what the party would be in the other: and for giving effect to his sinister views, the judge possesses powers of which the party is destitute; powers adequate to the accomplishment of the sinister ends.
[* ]Another remark: to extort the truth from the bosom of an unwilling, an unscrupulous, and strong-minded witness, is among the most of difficult tasks: and a pre-eminent degree of fitness for it is one of the brightest and rarest accomplishments that the war of tongues affords to natural talent improved by practice. The judge (as such) never having been, by any motive force equal to that under the action of which the advocate is continually operating, excited to those exertions which are necessary to the exercise of that function with a superior degree of efficiency and success, cannot reasonably be expected to be on a par, in this respect, with an advocate whose stock of experience has been equally abundant.
[* ]Independently, too, of all other causes of favourable partiality, there is something in the relation between party and witness that has a tendency to conciliate the affections and wishes of a witness to the side of that party by whom his testimony is called in.
[* ]Example in civili: Two persons, each in the character of creditor, join in making a demand upon a testamentary executor or other manager of an insufficient fund: it is the interest of each that the other should fail in the proof of his debt.
[† ]Example in criminali: Two persons join in the prosecution of a supposed criminal: one of them, for money or through compassion, is secretly determined to endeavour to bring about the acquittal of the defendant.
[* ]Book VIII. Technical Procedure; Chap. XIV. Nullification.
[* ]Bentham’s Plan of a Judicial Establishment in France, Vol. IV. p. 317.
[† ]The constitution of the judicial establishment, including the question as between unity and multiplicity in regard to the number of the judges sitting and acting at the same time, belongs not to the present work. Meantime, as well with regard to division as with regard to subordination of judicial powers, let it be noted that it operates no otherwise as a guard to probity, than in as far as the chance of disagreement and altercation presents a faint chance of occasional publicity.
[* ]The security thus afforded against misrepresentation (wilful or not wilful) on the part of the judge, may be apt to present itself as belonging in strictness to the subject of procedure at large, or to that of the organization of the judicial establishment, and not to that branch of the subject of procedure which is the subject of the present work—the branch, particularly, relative to the topic of evidence. But as the quality of trustworthiness in a lot of evidence is no otherwise valuable than as a means to an end, and rectititude of decision is that end,—when the reasons of a rule directed to a subordinate object come to be assigned, the reasons which indicate on the part of the same rule a still higher and more important utility, viz. its immediate subservience to the ultimate end, can scarcely be out of place.
[* ]Book III. Extraction; Chapter VI. Notation and Recordation.
[* ]This is precisely the practice adopted in Scotland.—Ed. of this Collection.
[† ]The misfortune is, that, besides the expense of whatever architectural arrangements may be necessary to give full effect to the principle of separation thus applied, a considerable measure of delay will be found unavoidably attached to the employing of this security. After the plaintiff (for example) has told his story out of the hearing of the defendant, the defendant has to tell his, and to tell it out of the hearing of the plaintiff. Thus far, all is smooth and easy. But for the purpose of sufficient security, the defendant must have the faculty of putting questions to the plaintiff, in order to draw from him, in explanation, completion, and perhaps refutation, of allegations or depositions, such parts of his case as he might otherwise have suppressed. Moreover, to obtain any explanation of the testimony which the plaintiff has been delivering, it is necessary that the defendant should be correctly apprized of the purport, or rather the very tenor, of the testimony. But, at the time when it was delivered, he was, for the other purpose, studiously excluded. This being the case, of two things one: either, after having delivered his testimony out of the hearing of the defendant, the plaintiff must, for the purpose of the scrutiny, deliver it over again in the hearing of the defendant; or, minutes having been taken of his deposition on the first occasion, those minutes must on the second occasion be read, to serve as a ground for the questions which the defendant is to havethe liberty to put to him:—and so, vice versâ, for the purpose of the cross-examination to be performed by the plaintiff on the defendant. But to this arrangement, it is evident, no inconsiderable quantity of delay will be attached; and since, if this order of proceeding be invariably observed in all suits, this collateral inconvenience will be produced in many instances in which it will be of no use,—here comes an option to be made between the certain inconvenience produced in the shape of delay, and the contingent profit produced in the shape of security against mendacity, and consequent deception and misdecision.
[* ]See “Scotch Reform,” Letter I. in Vol. V.
[* ]This is more particularly true in the case of disputes in which the disputants are nearly related to one another—more especially between husband and wife, parent and child.
[* ]Book IX. Exclusion; Part II. Proper.
[† ]The proper mode of limitation seems not unobvious: particular individuals on both sides to stand excluded, with or without consent, by authority of the judge. Under the same authority, persons admissible on each side, to be settled (either individually, or only as to number) by blank tickets of admission delivered to the respective parties.
[* ]In the account given of the species of tribunals established in the Danish dominions under a name corresponding to that of Reconciliation Offices, secrecy is spoken of as a universally extensive and inviolable law.
[* ]When a person of the female sex has received an insult of a nature offensive to decency (especially if to youth and virginity refined habits of life be added,) it is no small aggravation of the injury to be obliged, on pain of seeing the author triumph in impunity, to come forward, as in England, and give a description of it, in the face of a mixed and formidable company of starers, many of them adversaries. Females have been seen to faint under such trials. The endeavour on the part of lovers and male relations to supply in this respect the deficiencies of law, is among the causes that give birth to duels. When death ensues, then comes the judge, who, in the case of this species of misery, taught by his books to regard the difference between consent and non-consent as of no importance, urges the jury to consign the defender of a sister or a daughter’s honour, to the fate allotted to midnight assassins and incendiaries.
[* ]In this way, no such affront would be put upon the public as is habitually, and (though naturally enough) not necessarily, put upon it, in the two houses of the British parliament, by the operation of clearing the house.
[† ]E. g. endeavours to overturn the government; endeavours to excite resistance to the government; endeavours to injure the reputation of the governing body, or this or that particular member of it; actions against any member of the governing body for abuse of the powers or functions attached to his station; election causes; suits relative to the right of occupying this or that public station.
[‡ ]Predatory offences,—theft, highway robbery, housebreaking; rape; incendiarism; homicide, in some cases.
[* ]Such as cross-examination and the use of juries, however inconsistently, scantily, redundantly, and inappropriately applied.
[* ]Gilbert’s Forum Romanum [History and Practice of the Court of Chancery 1758,] p. 109—“But if the supplemental bill be moved for after publication” [viz. of the depositions taken in consequence of the original bill,] “the court never gives them leave to examine anything that was in issue in the former cause, by reason of the manifest danger of subornation of perjury, where they have a sight of the examination of the witnesses.”
[* ]Grand jury.
[† ]On the equity side of the court of Exchequer, the Deputy Remembrancer; in the Common Pleas, the Prothonotary.
[* ]In English criminal law, two opposite, but alike baneful, principles,—one of thoughtless cruelty, the other of equally thoughtless laxity,—are constantly at work together: the one infusing its poison into legislation, the other into judicature—the one inimical to all enlightened policy, the other to all substantial justice.
[* ]Book V. Circumstantial; Chap. XVI. Improbability and Impossibility; Section II. Alibi Evidence.
[† ]It is only in consideration of the purpose, the mischievous purpose, to which the falsehood is applied—the mischievous effect of which it is or tends to be productive, that punishment can properly be employed to check it. In respect of quality as well as quantity, the demand for punishment will of course vary with the nature of the mischief, and consequently with the occasion on which it is produced, or liable to be produced. To the modifications of falsehood already brought to view, will therefore come here to be added a view of those which result from the particular occasion on which it is uttered: the general description of the occasion being that of a suit at law, either actually instituted, or in contemplation to be instituted.
[* ]“The alternative to which Providence is by consequence reduced, of either giving up that country to everlasting superstition, or of working some miracle in order to accomplish its conversion.” Such are the words in which (in the Edinburgh Review for April 1808a ) a reverend divine is represented as describing one of the consequences which, in his view of the matter, will ensue, should the arm of government be employed in restraining, by coercive measures, the exertions directed to the extension of the benefits of christianity to the natives of Hindostan. “The idea of reducing Providence to an alternative!!” exclaims the reviewer in a double note of admiration: “and by a motion at the India-House, carried by ballot!”—“Providence reduced to an alternative!!!!!”—another exclamation by notes of admiration five deep. Then—for the declared purpose of representing the idea as the ne plus ultra’ of irrationality—this and that and the other idea, represented as irrational, is said to be pure reason when compared to it.
[* ]In some of the above cases, the title to the money rests solely upon the authenticity of a script, an order, or other voucher, produced in the character of an article of written evidence. In these cases, he who, instead of an authentic, produces a counterfeit script, subjects himself to the punishment (generally capital) appointed in case of forgery.a In others of these cases, the mere identity of the person is the efficient causes of title. In these cases, he who, not being the person entitled under a certain name to receive a certain sum of money, represents himself as being that person, and receives the money accordingly, subjects himself to the punishment (generally capital) appointed for this offence, under the name of personation.
[* ]“Oaths” the seed, “perjury” the “harvest.” Such is the husbandry which by Blackstonea is spoken of as actually pursued; and of which, by the mention made of it in these terms, his disapprobation is pointedly enough declared. O yes! bad indeed was such husbandry in that case. And why in that case? Because, in that case, the husbandman was a competitor in trade: the judge, or the practitioner, in a rival set of judicatories; which—though (under the auspices of the fee-gathering system) united by a common interest with his own—had also for a source of rivalry and discord, its separate interest. Never can he bring himself to speak without a sarcasm, of the business of those decayed and petty traders (once, in the good old times, at the head of the trade,) whom the vast firm to which he belongs have now, for such a length of time, kept like toads under a harrow. Viewing in every rival an usurper, he grudges them even their wretched remnant in the trade of wickedness.
[† ]In English law, in all the cases in which a man is laid provisionally under restraint pendente lite, the testimony on which the restriction is grounded is in the uninterrogated form, that of an affidavit.
[a]Dumont’s “Traités de Legislation.” See also Bentham’s “Introduction to Morals and Legislation,” Vol. I. of this collection.
[b]A right can never be conferred on one party, but a correspondent obligation is imposed upon another. A right being a thing beneficial in its own nature, and indeed incapable of being otherwise, no mischief can result from its being conferred on one party, otherwise than in virtue of the correspondent and inseparably concomitant obligation imposed by the same operation on some other party.
[a]Capital punishment has now been abolished in such cases, by 7 W. IV. and 1 Vict. c. 84.—Ed. of this Collection.
[a]II. 344; and see IV. 361.
[c]Blackstone, IV. 360.
[a]Hob. 289, 291.
[b]Wager of Law.
[c]Paley, II. 263.
[a]MacMillan’s Form of Writings, Edinburgh, 1790, third edit. p. 389.
[b]The law of England on these points has been materially altered by 1 & 2 Vict. c. 110.