Front Page Titles (by Subject) CHAPTER V.: OF PUNISHMENT, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY. - The Works of Jeremy Bentham, vol. 6
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CHAPTER V.: OF PUNISHMENT, CONSIDERED AS A SECURITY 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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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.
[* ]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.
[† ]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.
[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.