Front Page Titles (by Subject) CHAPTER X.: OF PUBLICITY AND PRIVACY, AS APPLIED TO JUDICATURE IN GENERAL, AND TO THE COLLECTION OF THE EVIDENCE IN PARTICULAR. - The Works of Jeremy Bentham, vol. 6
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CHAPTER X.: OF PUBLICITY AND PRIVACY, AS APPLIED TO JUDICATURE IN GENERAL, AND TO THE COLLECTION OF THE EVIDENCE IN PARTICULAR. - 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 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?
ADDITIONAL NOTES TO BOOKS I. & II.
P. 244, col. 2, Note *.
The doctrine laid down on this occasion by the judges was, that it was not proper for the counsel for the Crown to press an unwilling witness called by themselves, as such a course would end in destroying the credit of their own witness. In Crossfield’s case, where the same doctrine was laid down by the Lord Chief-Justice Eyre, the witness who was thus protected swore the very reverse of what he had sworn at his prior examination. This doctrine is now in abeyance, and the usual course which is pursued, is to allow the examination in chief in such cases to assume the style of a cross-examination. It seems to have been first allowed at the trial of Codling and others in 1803, for feloniously destroying a brig on the high seas. The mistress of one of the prisoners was called by the counsel for the Crown, and cross-examined by him.
P. 273, col. 2, line 5—“forty shillings.”
The act 7 & 8 Geo. IV. cap. 29, which abolished the distinction between grand and petty larceny, makes the value of the property stolen immaterial in the case of simple larceny: but stealing in a dwelling-house, property to the value of £5 or more, is by the 12th section made punishable with death. The death-punishment has, however, been abolished by 3 & 4 Wil. IV. cap. 44.
P. 286, col. 2, end of 3d paragraph.
The wager of law, one of the instances here alluded to was abolished by the last Law Amendment Act, 3 & 4 Wil. IV. cap. 42, § 13.
P. 292, col. 2 of Note, line 9—“personation.”
To personate another, for the purpose of fraud, is a misdemeanor at common law. 2 East, P. C. cap. 20, § 6, p. 1010. The personation of proprietors of shares in the public funds and stocks, was made a capital offence by various statutes; and lastly, by 11 Geo. IV. and 1 Wil. IV. cap. 66, § 6, in cases where any transfer or receipt of money actually took place. The 2 & 3 Wil. IV. cap. 123, takes away the punishment of death, and substitutes transportation for life. A former act appears to have been overlooked, viz. 2 & 3 Wil. IV. cap. 59, which was passed for the purpose of transferring the management of certain annuities from the Exchequer to the Commissioners of the National Debt. By the 19th section, the personation of any nominee is made a capital felony. The 7 Wil. IV. and 1 Vict. cap. 84, abolishes the punishment of death for this offence, and substitutes transportation, or imprisonment for not less than two years; whereas the 2 & 3 Wil. IV. cap. 123, takes away all discretion from the Court in the numerous cases to which it refers.
P. 294, col. 2, line 22—“perjury.”
By the English law, all judicial mendacity, though upon oath, is not perjury; for a necessary ingredient in the crime of perjury is, that the matter sworn to, shall be material to the issue in question, on each individual occasion, as well as wilfully false. 5 Bac. Abr. Perjury. 1 Hawk. P. C. cap. 69, § 8. Thus it frequently happens, that witnesses wilfully perjure themselves in foro conscientiæ, though not in point of law, because the false testimony may not be material to the issue, upon the record. By the late legislative alterations which substitute declarations for oaths (see some of these noticed above, Vol. V. p. 288,) the punishment of perjury has been awarded against false declaration.
P. 295, col. 1, line 37—“crimes.”
By the 3 & 4 Wil. IV. cap. 49, Quakers and Moravians are allowed to make an affirmation in all cases, criminal as well as civil, in which the law requires an oath: a false affirmation being punishable as for perjury. The same relief is granted to the sect called Separatists, by the 3 & 4 Wil. IV. cap. 82. By 1 & 2 Vict. cap. 77, the same privilege is conceded to those who declare themselves to have been Quakers or Moravians, though they have ceased to belong to either of such denominations of Christians, if they continue to entertain conscientious objections to taking oaths. In the session 1838-9, a bill was brought in to allow all persons professing conscientious objections to oaths, to give evidence on solemn affirmation, under sanction of the pains of perjury in case of falsehood. It was thrown out by the House of Commons, where it was introduced.
P. 301, col. 2, par. 1.
The remarks in the text apply only to the class of barristers, who are exempted from responsibility on the fiction that their employment is merely honorary. For the same alleged reason, physicians are exempted from responsibility. Special pleaders, however, and attorneys, like surgeons, are responsible for the want of care, knowledge, or skill, in the same manner as other mandatories.
P. 304, col. 1, line 22—“means.”
By the ancient common law, this was considered as murder, Mirror, cap. 1, § 9. Bract. lib. 3, cap. 4; 3 Inst. 91. In 1756, three persons were indicted for murder, for having taken away the life of an innocent person, who had been convicted and executed upon their false testimony. The prisoners were convieted; but the judgment was respited, in order that the point of law might be more fully considered upon a motion in arrest of judgment. The point, however, was not argued by the then Attorney-General, from prudential reasons altogether unconnected with the law of the case. There seems to be good ground for believing that the opinions of the judges were in favour of the indictment. Fost. 132, 1 Leach. 44, 4 Black. Com. 196, note (g.) 1 East. P. C. cap. 5, § 94, p. 333, note (a.) 1 Russ. p. 427.
P. 333, col. 2, line 30—“defilement.”
The 9 Geo. IV. cap. 31, declares that the carrying off of any woman (having an interest in any real or personal estate,) with intent to marry or defile her, is felony. If the woman has no property, it would still be an offence at common law; and the offenders may therefore in either case be taken into custody at once. The same observation would of course apply to the third case supposed by the author, if such a case should occur in this country.
P. 338, col. 2, line 14—“intercept them.”
In criminal cases, the counsel for the prisoner may now, by the 3d section of 6 & 7 W. IV. cap. 114, have the depositions which the witnesses may have made before the committing magistrate. The counsel for the prosecution always had access to them.
P. 340, par. 1 of Note *.
The special law here referred to, is the 3d section of the 23 Geo. II. cap. 11, which says, that judges of assize may direct any witness to be prosecuted for perjury at the public expense. It appears doubtful whether any such clause were necessary. The judges are in the daily habit of ordering prosecutions to be instituted against witnesses for other misdemeanors, and also for felonies; in particular, for receiving stolen goods.
P. 345, col. 1, line 54—“rank of felony.”
Although this is the usual and most proper course of proceeding, it is by no means obligatory, as a prosecutor may, and sometimes, but very rarely, does, go before the Grand Jury at once.
P. 351, col. 2, line 27—“English lawyer.”
Happily, since this passage was written, the punishment of death has been abolished to a very considerable extent, and is now limited to the most heinous crimes, and offences accompanied with personal violence. The last statutes on this subject are the 7 Wil. IV. and 1 Vict. cap. 84 to 89 inclusive, and cap. 91.
P. 358, col. 2, end of par. 4—“the only one.”
Under the English law, there is no appeal in criminal cases (properly so called.) For what is called a writ of error, lies only upon some matter of law apparent on the face of the record.
P. 368, col. 1, line 8—“bathing places?”
In Rex v. Crunden, 2 Camph. 89, it was laid down, that if a man undresses himself on the beach, and bathes in the sea, near inhabited houses, from which he might be distinctly seen, he is guilty of a misdemeanor.
P. 372, col. 2, end of par. 2—“their ears.”
The prisoner’s counsel is now allowed to address the jury on the facts of the case, by the 6 & 7 Wil. IV. cap. 114.
P. 377, col. 1, end of par. 2—“or sells it.”
The public are not admitted into the Central Criminal Court, except on the payment of money. No such tax is now imposed in the courts at Guildhal.
OF THE EXTRACTION OF TESTIMONIAL EVIDENCE.
[* ]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.