The Online Library of Liberty

A project of Liberty Fund, Inc.

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

BOOK III.

OF THE EXTRACTION OF TESTIMONIAL EVIDENCE.

CHAPTER I.

OF THE ORAL MODE OF INTERROGATION.

Such being the means which the nature of things furnishes for securing the correctness and completeness of testimony, what remains to be considered is, how to employ them to the best advantage.

Punishment, shame, oath, publicity, privacy: of these securities, sufficient has been said under their respective heads.

In the process of interrogation, we see an instrument, the application of which is susceptible of much greater diversification. It will constitute, though not the sole object, yet the principal object, throughout the course of the present book.

So far as testimony delivers itself of its own accord (as in the case of affidavit evidence,) interrogation, extraction, are not of the question.

Where testimony is extracted, it is by interrogation that it is extracted. Where interrogation is employed, it is administered in one or other of two simple modes, the oral and the epistolary. But, out of these two, other modes of a complex nature are capable of being made up. Of this number, what is called examination upon interrogatories—extraction of oral responses by ready-written interrogatories—is one. This demands special notice, in consideration of the so unhappily abundant use made of it in practice.

That the fullest possible scope should be given to examination ex adverse—that every person who can by possibility have an interest in rendering the testimony correct and complete, should have the power of employing interrogation to that end—has been shown in the last book.

Four rules still remain to be explained, on which the utility and efficiency of the oral mode of extracting and delivering testimony appear chiefly to rest. viz. 1. Answers impromptuary; 2. Questions put singly; 3. Questions arising out of the answers; 4. The process carried on in the presence of the judge.

I. First point,—promptitude of the response.

On the promptitude of an answer depends its unpremeditatedness; and thence the degree of security afforded against the exercise of the faculty of invention, considered as applicable to the purpose of mendacious evidence.

The security it thus affords, depends upon a matter of universal experience, expressible by this axiom—memory is prompter than invention: (understand, of such statements as, though false, shall not be capable of being shown to be so.* )

This restriction must be carefully preserved in mind. Without it, the proposition will frequently be untrue. When memory has length of time, or the obscurity of original perception, to contend with, and neither punishment nor shame is the apprehended consequence of incorrectness or incompleteness, invention may be the more prompt of the two. Hence the comparative inaccuracy of the ordinary narratives to which common conversation gives birth.

Of the oral form of interrogation, promptitude of response is the natural, but not the absolutely necessary, accompaniment.

So, of the epistolary mode, tardiness of response is the natural accompaniment; but, as anybody may see, not even here the necessary one.

As to the degree of promptitude, it must, in each individual instance, be left to the judge. In regard to the demand for recollection, the scale of variation has no determinate limits. Here, as in ordinary conversation, the time proper to be allowed will be indicated by the nature of the case.

One answer, that, with little modification, can be returned, in any case in which a particular answer cannot be returned, is—at the instant I cannot recollect; by the help of a little time for reflection, perhaps I may.

But, in general—when, in obedience to a summons from justice, a man stands forth to deliver testimony,—his time for recollection has begun, if not from the moment of the transaction, at any rate from the moment of his receiving the summons, or being applied to in a less formal manner to know what he will have to say. So far as this is the case, there will be little need of any time for reflection at the time of his examination.

Protracted beyond the natural and proper time, delay becomes silence; and, under certain circumstances, silence becomes, to the disadvantage of the proposed deponent (if an extraneous witness,) a presumption of a propensity to mendacity, or deceptitious reticence; (if a party) of the like propensity, and, what is more directly material, of a consciousness of his not having right, and thence of his actually not having right, on his side.

II. Second point,—questions put one by one, not in strings.

Of the oral mode of interrogation, neither is this feature a physically necessary accompaniment—an accompaniment essentially inseparable.*

On the part of an interrogator, what is possible, not only in this judicial but in ordinary conversation, is,—to deliver question after question—to let fly (as it were) a volley of questions, without waiting for the answers. But of such a proceeding the possibility is not more manifest, than the absurdity and inutility to every beneficial purpose.

String together a multitude of questions, immediate confusion will demonstrate the inconvenience of the practice. With equal clearness, two questions, not included one in the other, can no more be answered at once, than, with equal clearness, two objects can be seen at once. While one of the questions is receiving an answer, the attention must be divided and strained, to keep the other from escaping out of the memory.

Where the questions are presented in the ready-written form, this source of confusion has no place. Ink does not lose its hold on the paper, as facts do on the memory. While the first question is receiving its answer, any number of others may, for any length of time, be waiting for theirs.

Confusion is not the only evil of which this stringing together of questions would be productive. Force the interrogator to produce at once all the questions he would wish in any event to produce; force him to produce any more than he would wish to produce; force him, in a word, to produce any more than a single one, than the least number that can be produced at a time;—you may force him, in many instances, to furnish a mendaciously-disposed deponent with information subservient to such his sinister purpose. By the nature and quantity of the information a man calls for at other hands, no bad measure may, in many cases, be formed of the nature and quantity of the information of which he is already in possession.

III. Third point,—questions arising out of the answers.

This is as much as to say—of the answer made to each preceding question, communication received by the interrogator, with liberty to ground on such preceding answer each succeeding question.†N. B. This hinders not but that the first question, or one of the first questions put, may be of a nature to draw out the main substance of the testimony in the form of a single answer, viz. in the form of one continued and complete narrative. As for instance—What do you know in relation to this affair?

Of the oral mode of interrogation, knowledge of the answers, with the faculty of grounding ulterior questions upon them, is an accompaniment no less natural than the obligation of presenting the questions one by one.

But, though a natural, and a too obviously useful one to be separated in practice, the faculty is not (any more than the obligation) an inseparable accompaniment.

The first question having been delivered; before the answer were delivered, the interrogator might be sent out of court, and not let in again to put his second question, till after the answer to his first were finished. Absurd as the arrangement may seem in the oral mode of interrogation, it is not the less a possible one, and in effect in the epistolary mode it is realized. When a chain of written interrogatories is upon the anvil, it is frequently by the nature of the case rendered much more certainly impossible for the interrogator, in framing his second interrogatory, to know what the answer to the first will be, than on the occasion of an examination performed in the oral mode it could be rendered by the mere physical operation of putting the interrogator out of court—unless his senses of seeing as well as hearing were destroyed, antecedently to his being let in again.*

In such a state of darkness—after any one question has been delivered—to know what, for the purpose of giving completeness as well as correctness to the testimony, the next question ought to be, will frequently be, no less impossible than, in a game of chess or draughts, to know what your next move ought to be, without knowing what your antagonist’s last preceding move has been.

Even in a conversation with a confidential friend, where both interlocutors are alike desirous, the one of receiving the whole and exact truth of the case, the other of communicating it:—consider with yourself whether, the subject being a matter of importance to your personal interest or your affections, it would be a satisfaction to you to know beforehand, that, after an answer given to your first question or string of questions, it would be impossible to you to put another.

This done,—setting aside your veracious and willing respondent, call up in his place any person who, on the ground of improbity, and that disposition to mendacity which is so natural an accompaniment of it, has happened to attract your notice: then think with yourself what would be your chance for extracting from him a truth which a powerful interest urged him to conceal, if, attached to the known necessity of making a full answer to your first question or string of questions, he possessed the assurance that, however false his answers might be, no ulterior questions could ever be grounded on his lies.

True it may be, that there are occasions on which, from the extreme simplicity of the case, the answer or answers to a first question or string of questions may by a person of ordinary sagacity be foreseen with sufficient correctness and completeness; and upon the first answer so imagined, a second question framed, suitable to the purpose of succeeding to it. But the cases are perhaps not less numerous, in which such forecast would to any man, or (what to this purpose comes to much the same thing) to the ordinary run of men, be plainly impossible. But even were such forecast sure for the first question—for a question of the first degree, who would venture to assure it, for a second, for a third degree, and so on? for the utmost number of links of which it can happen to be requisite that a chain of questions and answers thus connected shall be composed?

A case which may serve to place in a clearer light the general impossibility of this kind of forecast in a degree adequate to all purposes, is one that has already been brought to view: viz. the case where, for the purpose of setting indubitable facts in opposition to the testimony of a mendacious witness, questions are put to him, calling for statements on his part relative to circumstances in all other respects irrelevant—relevant and instructive by accident only, and with reference to this single purpose.—What had you for supper? To the merits of the cause, the contents of the supper were in themselves altogether irrelevant and indifferent. But if, in speaking of a supper given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare; the contrariety affords evidence pretty satisfactory (though but of the circumstantial kind) that at least some of them were not there.

But to reach beforehand, either by provision or so much as by imagination, all the false facts to which in the agony of the conflict it may happen to a mendacious witness to give utterance—to pre-comprehend all these facts,—and on them, when so pre-comprehended, to ground a set of questions adequate to the purpose of bringing their falsity to light in the manner that has just been mentioned, is a task, the general impracticability of which appears too clear to need any further elucidation.

IV. Fourth point,—responsion performed in the presence of the judge.

From the oral mode, this feature, like the preceding one, is separable in idea, and in possibility: in the epistolary mode, it has no place in fact; in the mixt mode (oral interrogation according to written interrogatories,) it has place, but (as will be seen, and from the causes that may already be suspected) to very little good purpose.

Not to repeat what has been said of the faculty of interrogation on the part of the judge,—a faculty naturally indeed as well as properly, but not necessarily, connected with that of his presence,—the use of this presence is, in case of mala fides, to afford to him, by observance of deportment, circumstantial evidence of the emotion of fear: and thence (as above observed) of a disposition to mendacity, if the respondent be an extraneous witness; of the like disposition, or (what is more material) of a consciousness of not having right on his side, if he be a party, whether defendant or plaintiff.

In using the word presence, a reference more or less explicit is or ought to be made, as well to the occasion or purpose, as to the particular sense or senses upon which the object, in virtue of its presence, acts. At the same instant of time, two men being in every sense present to each other, the self-same object is present to one, not present to another. Objects removed to an infinite distance with relation to all the other senses, are still present to the sight.

In a Grecian court of judicature, a point was made (we are told) that the parties should not be visible—should not, in this sense, be present—to the judges. The story has much the air of fable: perhaps (as in relations of all sorts of transactions, judicial more than any other, is so apt to be the case) an individual instance was magnified into a general rule. Supposing the existence, what was the reason of this rule? By a female bosom, too deep an impression had been made (it seems) upon judicial eyes. If we believe the story, a constant and most instructive source of evidence was thus cut off, for the momentary chance of preventing a rare and casual and possible abuse. A shawl, or whatever equivalent to a shawl was then in fashion, would have been as simple and a rather less expensive remedy.

A material point is, that the testimony be delivered in the presence of a judge; of an official person, who, in case of mendacity—mendacity detected on the spot—shall be armed with authority competent to the following it up with punishment: with punishment, seizing the delinquency in the very act—not crawling after her at a snail’s pace (as under the technical system,) to afford time for squeezing the injured and the injurer with undiscriminating pressure, while the judge, by the hands of his workmen, is wire-drawing them through the offices.

Another material point is, that the presence in which the testimony is delivered be the presence of the judge—of the judge by whom the decision, to be grounded on that evidence, comes afterwards to be framed. Change the judge,—the circumstantial evidence, the important evidence above spoken of, almost entirely perishes.*

CHAPTER II.

NOTES, WHETHER CONSULTABLE?

In any, and (if in any) in what cases, shall the liberty of recurring to ready-written notes or memoranda in his possession, be allowed to a proposed respondent, pending the process of interrogation (viz. in the oral mode?)

Suppose him deprived of this faculty, cases exist in great variety and to a great extent, in which correctness and completeness would, on the part of his testimony, be physically impossible.

Suppose him left in possession of this faculty,—the advantage occasionally derivable, in case of mala fides, from the promptitude, and thence from the unpremeditatedness, of the answers, is in a considerable degree lost.†

To the extent of the class of cases above alluded to,—certainty of incorrectness and incompleteness being the result of the exclusion, and not more than a chance of these causes of deception and misdecision being the result in case of admission; by this statement, upon the face of it, the proper practical course seems to be already indicated.

The demand for this help to memory depending not so much on the species of the case, as on the individual circumstances of the individual case; drawing the line between the cases in which the faculty shall be allowed, and those in which it shall be disallowed, cannot, with safety and propriety, be the work of the legislature. If drawn at all, it must be left to the discretion of the judge.

1. On the part of the mass of facts required to be deposed to, suppose a certain degree of complication,—the union of completeness and correctness will, in the instance of every man (prodigies excepted,) be manifestly impossible: take, for instance, a mass of pecuniary accounts.

2. To memories of all sorts, some classes of circumstances will be more difficult to retain than others. The most difficulty retained of all is a mere date, i. e. an individual portion of time: except in the case where some other circumstance has intervened, whereby to distinguish that portion from like contiguous portions—some circumstance, whereby, in virtue of some connexion or other which it has with the deponent’s interest (the word interest being taken in its largest sense,) his attention has been drawn to it with a peculiar degree of force.

3. But (not to speak of figures) for one purpose or another, a history of any kind or length may come to be required for evidence. In the capacity of a public functionary, the conduct of a man through a great part of his life, may, by being rendered the subject of legal inquiry, be rendered the subject of evidence.

4. To a memory below the average or ordinary degree of retentive force (whatever be that average degree,) helps may be necessary, such as to a memory above that standard would be superfluous. But between memory and memory who shall draw the line? And not only memory is in question, but appropriate firmness of mind; regard being had to the presence of the judge—not to speak of an unknown circle of bystanders.

Whatever danger of mendacity and consequent deception and misdecision may be attached to the admission of this help to recollection or instrument of mendacious invention, may be more or less reduced by conditions annexed to the faculty of utterance. It is not till after the reduction practicable in this way has been effected, that the propriety of admission or exclusion can be fairly estimated.

1. Whenever a deponent being under examination, asks leave to look at notes, he should, in the first place, at the instance of the adverse party, be examined, and that on both sides, before he has looked at his notes.*

Why? Because, if he be honest, be his answers at that time what they may, neither he nor the side on which he deposes has any thing to fear. Suppose him to say—I am absolutely unable to recollect anything about the matter without my notes: even an answer to that effect may be highly instructive; for, on recurrence to the nature of the transaction, as delineated in his notes, it will be a point to be judged of, whether it be probable that his oblivion of it should be thus entire.

Being honest, whatever he says, he need not have anything to fear. Of the matter of fact which, under these circumstances, he advances, more or less may be erroneous, and proved to be so: inconsistent with facts proved to be true by evidence from other sources—inconsistent with his own statements, as delivered in his notes. Still, if he be honest, it is not the mere falsity of his vivâ voce statements, that under these circumstances will mark him out as having knowingly and wilfully deviated from the line of truth: at the same time that, in case of dishonesty, it may very well happen that the nature and circumstances of the deviation shall betray it.

2. Before such recurrence on his part, and after his examination performed as above on both sides, his papers should (at the instance of the judge, or at the instance of an adverse party, by order of the judge) be handed up to the judge, with liberty to the judge thereupon to continue his examination, by further interrogatories grounded on the paper and its contents.

3. Like liberty to the judge to hand the paper down, for the like purpose, to the party or advocate on the adverse side.

4. Should it so happen that the paper, in addition to the relevant matter, contains other matter, in the disclosure of which no one of the parties has any interest, and by the disclosure of which the deponent, or any third person, would, without any legal transgression on his part, suffer a prejudice to any amount—would be exposed, for instance, to contempt or ridicule, or to vexation in any other shape; here would be an opportunity for the judge so to order matters, that, in the communication made (as above) to hostile hands, this collateral inconvenience be avoided.†

5. Power, again, to the judge, of his own accord, or at the instance of the party concerned, to impound the script,‡ that, like any other article of written evidence, it may be subjected to scrutiny, with whatever degree of time and attention may be requisite. Power again to the judge, either to cause the script itself to be redelivered to the deponent, or to retain it, delivering or not delivering a copy in its stead.

6. Power to the judge, of his own accord, or at the instance of either side, to appoint another day for the re-examination of the deponent on the ground of the paper of notes; after time taken for the examination and consideration of it, as aforesaid.

It is almost superfluous to observe, that, on this as on all other occasions, the demand for all this delay, vexation, and expense, will be preponderant or otherwise, according to the importance of the cause itself, and the importance of the evidence in question to the cause.

On this occasion, an intimation given of a few particulars to which it may happen to be found proper subjects for inquiry, may be not altogether without its use.

1. The person by whom the notes were penned: whether the proposed respondent himself, or any other person.*

2. The time at which the transaction, or supposed transaction, is supposed to have happened, whether at such a distance from the time of interrogation, as to have produced a sufficient demand for recurrence to such helps.

3. The time at which the script was penned: whether at, or how long after, the time of the transaction of which it contains a statement. Not that it will always be material at what distance of time. Whenever an apprehension of relative failure of memory presents itself, then is the time for obviating it.

4. The cause (final cause) of its being penned.

5. If by the respondent himself,—whether it be the original memorandum, or a transcript made of it by himself? if a transcript, for what reason made?

N. B. A very natural and not censurable cause is, the original’s having been mixed with other memoranda (as in an ordinary memorandum-book,) material to the writer, and not material to the cause. But what may notwithstanding be with reason insisted upon, if for special cause, is, that the original, in whatever state, be produced.

6. If not by the hand of the witness,—by what other hand?

7. Whoever were the penman (whether the witness himself, or any other person)—whether it were worded by the writer himself, or written from dictation, by any, and what, other person?

8. If it be not in the witness’s own hand, from what cause came it to be in another hand than his own? whether from a physical cause, such (for example) as his inability to write,—or from what other?

9. In the hand of what person soever it be alleged by the witness to be, a case may happen in which it may be material (though at the expense of a distinct inquiry) to authenticate or deauthenticate it by ulterior evidence.

Objection: Allow the proposed respondent to recur to notes not in his own handwriting, you allow a suborned witness to deliver a mendacious story, framed for him by his suborner.

Answer: But, for the exclusion of such helps, on the ground of the possibility of such a case, in this instance, no reason can be given but what (if admitted) would put an exclusion upon them in any case. May it be that a third person has happened to invent a false tale for the witness? So may it that the witness has invented one for himself. May it be that the witness has received from a third person a false story penned for him by the inventor? So may it that he has transcribed with his own hand a false story, written originally by the inventor in his (the inventor’s) hand.

Refuse such recurrence absolutely, veracious testimony may stand excluded, while mendacious is admitted and gains credence. A liar with a good memory may remember a mendacious statement, better than an honest man, with a bad memory, will, without the help in question, remember his own real perceptions and observations.

With, or even without, the above-proposed inquiries and conditions,—in no case can the admission of this subsidiary species of evidence be so much in danger of being productive or deception, as in the case of other species or evidence admitted in English practice.

1. Wherever the process of interrogation is conducted in the epistolary mode, the liberty of recurrence to notes is necessarily unbounded. If, in all cases, such liberty were upon the whole prejudicial to justice, this or itself would be a sufficient reason for interdicting altogether all interrogation in the epistolary mode.

True it is, that, in English practice, the epistolary mode is not applied to extraneous witnesses: true it likewise is, that in the application of it to extraneous witnesses, there would be a danger of deception, over and above what has place in its application to a party. But of this in another place.†

2. After the death of the writer or supposed writer, memoranda in writing are, in cases to a great extent, received without scruple, in the character of evidence. By death, the writer is withdrawn out of the reach or interrogation, with the security of which it is pregnant: but in the present case, there he is, and in the act of undergoing it.

3. At the instance of a party on the other side, a memorandum or letter of any person, being a party, is received as evidence. He is alive, and perhaps in court: but,—for the purpose of giving completeness and correctness to this frequently incorrect and almost always incomplete fragment of evidence,—neither at the instance of his own side, nor at that of the opposite side of a cause, is a question admitted to be put to him; unless when, under the mask of an extraneous witness, the interest which he has in his real character of a party be disguised.

4. In whatever cases evidence is admitted in the shape of affidavit evidence, the faculty of recurring to notes is, by the very shape of the evidence, possessed and exercised without stint.

This, the most deceptitious of all shapes, is the only shape in which, by English judges, when left to themselves, testimony is ever received.

If, in whatever hand, and under whatever circumstances penned, a proposed respondent were to deliver a paper of notes (whether penned by himself or no) declared to be his testimony, he refusing to answer a single question,—a paper of notes under these circumstances would, in point of trustworthiness, be at least upon a par with the best affidavit evidence.

On this, as on many other heads, should any example be needed to show how completely it is in the power of prejudice to render a man blind to transactions daily passing before his own eyes; how completely it is in the power of indifference—indifference, to say no worse, to the ends of justice,—to render a man unconscious of the obvious nature and character and tendency of his own act; this topic will afford sufficient examples drawn from English practice.

Cases on this subject, all reported in Term Reports, III. 749, 754:—

1. Principal case, Doe v. Perkins, B. R. 11th June 1790.

2. Case thereupon cited by Buller, J.—Tanner v. Taylor, Hereford Spring Assizes, 1756; a manuscript case thus bolted out after a sleep of 34 years.

3. Case cited by Kenyon, Ch. J., from the MS. of the late Lord Ashburten, then Mr. Dunning: Anonymous, 3d December 1753, at Lincoln’s Inn Hall, before the Lord Chancellor (Lord Hardwicke), a cause in equity: a manuscript case bolted out after a sleep of 37 years.*

Doe v. Perkins, B. R. 11th June 1790. III. Term Reports, 749. A variety of reflections are suggested by the statement given in relation to this case.

1. That the evidence, the production of which had been omitted (viz. the original book, with the entries made in it at the instant,) would have been better evidence, more trustworthy, than the extracted copies made of those same entries from that same book, by the same person who himself made some of the entries and saw the others made. And this for the reason given by the counsel, viz. that it might happen in a variety of instances, that something would appear upon the original paper itself which would do away the effect of the evidence, but which might be suppressed in a copy, and still more easily in an extract.

2. That, therefore, the court acted in a justifiable manner in doing what they did—viz. in ordering a new trial; the effect of which order was to disallow the evidence in question, by setting aside the verdict, of the ground of which it formed either the whole or a necessary part.

3. That, if they had acted in a manner directly opposite, i. e. had they refused the new trial, they would have acted in a manner equally justifiable.

4. That, though in either case they would have acted justifiably (viz. taking for the standard of reference the established course of practice;) yet, in neither did they act, nor was it in their power to act on the occasion, without enormous trespasses committed in a variety of ways against the ends of justice: the established course of practice being itself, in a variety of ways, repugnant to the ends of justice, pregnant with injustice in a variety of shapes.

5. That, had the same points come before a justice of peace, acting in the mode of procedure called summary, none of those injustices would necessarily or probably have taken place: but that the whole procedure might have been, and in all probability would have been, in a state of perfect conformity to all the ends of justice.

Supposing the extracts in question to have been at once complete and correct copies of the original entries (that is, of so much of the contents of the whole book as applied to the facts in question,) the propriety of the verdict is out of dispute. But there appears strong reason for concluding them to have been trustworthy in both those points, and scarce any reason for suspecting them to have been untrustworthy in either.

“On his cross-examination, Aldridge” declared (confessed, says the report) “that he had no memory of his own of those specific facts.” This declaration seems a pretty convincing proof of his veracity and trustworthiness: for, had it been an object with him to gain credence for the facts stated in and by the entries, those facts being false, what should have hindered him from deposing to the truth of them at once? why qualify his testimony by a “confession” so likely to destroy the supposed intended effect of it? Yet it is this very declaration that constitutes the whole of the ground on which the whole of his testimony taken together was pronounced unfit to constitute the ground, or any part of the ground, of the verdict.

A multitude of lights which might have been thrown on the case, appear, somehow or other, to have failed of being thrown on it.

Between the day on which this testimony was delivered, and the day on which the entries were supposed to have been made, what length of interval was there? On this head, utter silence. Suppose twenty years:—it might be natural enough that the facts constituting the subject-matter of the several entries (answers given by the several tenants to the question, At what time of the year did your holding expire?) should have left in his memory little or no trace. Instead of twenty years, put half as many months, such utter oblivion would seem scarcely probable: and in this case, and this only, a suspicion might have presented itself. The entries made by you were not true: you knew they were not, were you now to swear them to be true, by the testimony of those tenants or some of them, you might (so you apprehend) be convicted of perjury. It is to avoid the danger, hoping at the same time to have the benefit, of a false oath, that you now confine your declaration to the fact of having made those entries; that being a fact which is true.

Question 1. When you made those respective entries, did you at the time look upon them as true, or as being in any instance or in any respect not true?—Answer in one way: I have no recollection of my being conscious of their being false in any respect: I cannot, therefore, but be persuaded of their being true: for, had it been my intention to make an entry known by me to be false, it must have been in pursuance of some plan of fraud, a matter too remarkable (not to speak of the wickedness of it) to have been so soon forgotten by me.—Answer in the other way: Though it was by me that the entries were made, I cannot but acknowledge that at the very time of making them I was conscious of their not being true.

Question 2. The memoranda, of which the paper you now produce is composed, are not original memoranda made by you at the time, but copies made, in the way of extracts, from the memoranda really made at the time: which memoranda were entered in a book. This transcript which you now produce, does it contain all the entries in that book that bear any relation to the matter in question? if not, then, of the whole number of relevant entries that are in that book, how many, and to what effect, are those which you omitted to include in this your transcript? and for what cause did you omit them respectively? Most probable Answer. In this transcript is contained everything whatsoever that bears any relation to the matter in dispute: the other entries were nothing more than entries of payments made by the tenants at different times, payments which have no relation to the matter in dispute.

Question 3. Here, instead of the book in which the original entries were made, you bring a paper containing memoranda which you say are transcripts made from such of the entries as bear relation to the matter in dispute. How comes it that you have not brought the book itself? How came you to put yourself to all that trouble?—Probable Answer: In the book, these memoranda were a little dispersed: being ranged (as in other books of account) according to their dates, they were intermixed with entries relative to other matters. To have searched for them here, would have consumed I know not how much of the time of the court. As the effect of the whole statement was at any rate to depend on the credit that might be thought due to my testimony, it did not occur to me that my bringing that book would be either necessary or of use.

By the part taken in the business by the judge that tried the cause (Lord Loughborough,) it is clear that by that learned Chief Justice of the Common Pleas, afterwards Lord Chancellor, the production of the original book was deemed not necessary. Is it to be wondered at, if a conclusion to the same effect should have determined the conduct of the unlearned witness?

All these questions, so obvious, so natural, and not one of them put: neither by the counsel employed to impugn the evidence, by the counsel employed to support the evidence, nor by the learned judge, whose support in other ways it received. Was it that unlearned reason and law-learning are mutually exclusive of each other? Was it that, in the opinion of learned gentlemen, it was time to go to dinner? Was it that cause calling for judicature were many, and that (as in the nature of things must commonly be the case in current practice) there was not time for doing justice to any one? Was it that the parties were known to be rich and sturdy, and that, by a sort of professional instinct so natural to learned gentlemen, it was felt that the less the expenditure of untimely reason, the more ample room there might be for supplemental law?

In fact, no fewer than five learned gentlemen, all of them then or since of distinguished eminence, were listed, though in vain, in the support of this evidence: and, before this argument, the cause had been rich in intervening incidents.

The more thoroughly the history of the cause is understood, the less the wonder will be, if the unlearned witness and the learned judge joined in one common error. They were wrong: for the Court of King’s Bench, with Lord Kenyon at the head of it, pronounced them so. They were in an error: but how came they to have fallen into it? The want of having made acquaintance with a law never promulgated—a law never made, but which by learned imagination was capable of being made, in the way of jurisprudential abstraction (that is, of imagination,) out of two decisions, with either of which it was not possible for them to have been acquainted; and which, after having been huried as soon as born, were dug up for the occasion out of the limbus infantum in which they slept: the one by Mr. Justice Buller, after a sleep of thirty-four years, the other by Lord Kenyon, after a sleep of thirty-seven years.

For thus it is, that, on pretence of being declared, laws upon laws, laws fighting with laws, are made throughout the manufactory of common, that is, of judge-made, law. That B may receive warning (warning which it is neither designed nor expected should ever reach him), A must first have been consigned to distress or ruin. Gulfs by the side of gulfs cover in its whole expause the field of jurisprudential law: nor can any of them take its chance of being closed, till the property or liberty of some involuntary Curtius has been thrown into it.

Had the matter come before a court of conscience, or a justice of the peace (and nothing hinders but that a case, the same in principle, may have come ere now before either of those seats of unsophisticated common sense;) had it come (say for exemplification sake) before a justice of the peace, how would he have dealt with it? If the above-proposed rules, obvious as they are, are indeed conformable to the ends of justice, he would have proceeded (for what should have bindered him?) according to the spirit of those rules. By questions such as those above brought to view, he would have scrutinized into the bona fides of the witness; and (if satisfied as to that), into the correctness and completeness of the evidence, when all had been extracted that could be extracted from that source. Previously to his decision, he would have insisted or not insisted upon the production of the book, according to circumstances.

He would have insisted upon the production of it, had any doubts remained on his mind of the correctness or completeness of the alleged transcripts; had the like doubts remained upon the mind of the adverse party; at any rate, if only a few minutes, or only a few hours, or even (if fraud were suspected, or the magnitude of the stake appeared to warrant the delay, vexation, and expense) a few days, were understood to be necessary, in respect of time, to the production of it: nor would be even have grudged days, or weeks, or months, with whatever burthen in respect of expense the burthen in other shapes might be understood to be aggravated, if the party applying for the scrutiny were content to take, and did actually take, the burthen, absolutely or provisionally, upon himself.

He would not have insisted on it, if—the answers given to all such questions as the above proving completely satisfactory, he had been assured that the book was at the other end of the country, and that not less than a week’s or a fortnight’s journey on the part of the witness (it being under his lock and key) would be necessary to its being forthcoming,—if the call made for it on the other side appeared to originate in mala fides, the demander refusing to come into any reasonable measures for indemnification present or eventual,—and to have no other object than that of subjecting the opposite party to vexation and expense.

He would have had recourse to any one of a variety of expedients, rather than, by unconditional order, or unconditional refusal, subject in any shape either the one party or the other to preponderant and unnecessary inconvenience. He would determine in favour of the transcripts in the first instance, subjecting the decision to eventual reversal within a limited time, means of inspection being secured to the adverse party within that time. He would determine against the transcript in the first instance, subjecting the decision to eventual reversal within a limited time, on the production of the book before himself, or the examination of it in other trustworthy hands, agreed upon by both parties, or too notoriously trustworthy to be with any colour of reason objected to by either; the book being in either case found to be correctly and completely represented by the transcripts.

It would be an almost endless task to exhibit on this occasion an exhaustive view of all the expedients, the mezzi termini, to which, under the possible diversifications of which the convenience of the parties in a case of this sort may be susceptible, recourse might have been had. To assist conception, the above may be sufficient for a sample. In the choice of expedients having the legitimate ends of justice for their object, common sense and common honesty would not in practice—when they act by themselves they do not—find any insuperable difficulty. It is only common law, or its faithful ally in the war against justice, English equity, that, by a noble disdain of the convenience and interest of all parties, contrives for its own sinister purposes—contrives by unbending rules—to involve in one common violation all the ends of justice.

The question here on the carpet is of the number of those which respect the admission and exclusion of evidence. At the trial, whether it be in the metropolis at Nisi Prius, or in the country at the assizes, it is always in an abstract point of view that they are considered. In all cases alike, there is a something which is abstracted and set aside: and what is that something?—the interest of all individuals concerned, in the character of suitors; their interest, in respect of the important points of delay, vexation, and expense. In theory, accordingly, the decision may be wrong or right: in theory, and in this abstract point of view, it is actually right, as often as it puts an exclusion upon evidence of inferior trustworthiness, where superior might have been had from the same source. In theory, therefore, it is sometimes (though, on the whole ground of exclusion taken together, perhaps not once in fifty times) right: but in practice,—if in delay, vexation, and expense—all factitious, all manufactured for the sake of the profit to be extracted out of the expense—there be anything of injustice, it is always richly fruitful in injustice. Take the assizes, the circuit business, as the fairest sample of the whole field of common-law regular judicature; embracing the whole territorial expanse, with the exception of the metropolis. The only article of evidence produced, and that an article which (supposing it received and credited) is decisive of the cause, turns out to be of such a sort as to indicate as obtainable from the same source another article: and that other, an article of such a complexion, that, with the help of a micrometer, if viewed with a microscope, it might be seen to stand in the scale of trustworthiness an infinitesimal part of a degree above that one which, being in court, is actually offered. What follows? Considered in the abstract point of view above mentioned, there is nothing to be said against the rejection of the inferior evidence. But in a practical point of view,—in respect of everything that is worth considering—in respect of the interest, the feelings, the property, the well-being, perhaps the being, of the suitors,—observe the consequence. At the end of six or twelve months, or twice as much—at the expense of fifty guineas, or a hundred, or several hundreds—at an expense which not one individual out of fifty would be able to defray, though he were to leave himself as bare as when first brought into the world, the ideal imperfection may or may not receive its corrective; but in the meantime, some one out of a hundred accidents has happened: the better evidence is lost; the party that should have profited by it is dead, heartbroken, or ruined; his life, or his money, or his courage, are extinguished.

Could a respite of half a dozen hours have been allowed, perhaps the theoretically-superior evidence might have been made forthcoming, and the requisite satisfaction given to the delicacy of learned consciences. To an unlearned magistrate, to a dozen of ignorant shopkeepers sitting in a court of conscience, it would as soon have occurred to hang a man without a hearing, as to refuse him any such respite. But neither six hours, nor half the number, can ever be allowed to any such purpose. Necessity, the offspring of professional convenience, opposes an insuperable bar to all such weaknesses. Under the auspices of the learned magistrate, in whose eyes the cosmography of circuit-judicature is a miracle of wisdom and justice; in whose computation four days out of the three hundred and sixty-five are in every place sufficient, and in some places too many by half, for justice; in whose estimate, the time which is sufficient for the collection of fees must needs be sufficient for judicature;—under such auspices, the wheel of judicature can no more be stopped to save a man’s fortune, than a mill-wheel to save his body from being crushed.

CHAPTER III.

OF SUGGESTIVE INTERROGATION.

§ 1.

Reasons against the absolute prohibition of Suggestive Interrogation.

By a suggestive interrogation, is meant an interrogation by which the fact or supposed fact which the interrogator expects and wishes to find asserted in and by the answer, is made known to the proposed respondent. Is not your name so and so? You live at such a place, do not you? You live as a servant with the defendant?

The term is from the Roman school of law; but, without suggesting the idea of Roman or any other law, to the mind of every person to whom the English language is familiar, it suggests readily enough the import above ascribed to it.

Leading is the word employed instead of it by English lawyers. To a non-lawyer, the import meant to be conveyed is not suggested so readily and distinctly (it at all) by this word, as by the word suggestive. It affords, however, the convenience of being applied in cases in which the word suggestive is not applicable. You must not lead your own witness, says one rule one hears among English lawyers: you may lead your adversary’s witness, says another rule one hears in the same school.

Concerning the propriety of these rules, and of the distinction on which they turn, inquiry will presently be made.

That the response ought in every instance to be the expression of the actual recollection of the proposed respondent, and not the allegation of another person, adopted by the respondent, and falsely delivered as his own, is sufficiently manifest. That whatsoever measures may be necessary for the prevention of this effect should constantly be taken, is in like manner manifest. But they belong not to this head.*

The purposes for which an interrogation of the suggestive kind may be not only not prejudicial, but conducive, to the ends of justice, seem reducible to two heads, viz. dispatch, and assistance. In the first case, the interrogation is suggestive in form only; in the other, in substance and effect.

Take, in any individual case, any individual interrogation,—and suppose it subservient to the purpose of dispatch, and of dispatch only, not yielding in any shape any assistance to the proposed respondent; the innocence and the utility of it are by the supposition established: the innocence, by its not being subservient to incorrectness or incompleteness on the part of the testimony, nor thence to deception and misdecision; the utility, by its being subservient to dispatch, thence operating in diminution of delay and vexation.

In this case, the substance of the matter of fact which the interrogator expects and wishes to find asserted in and by the answer, is made known to the proposed respondent; and therefore the interrogation is suggestive. But the fact made known to him for this purpose being no other than what was known to him already, the suggestion is, by the supposition, of a sort from which no assistance to any plan of mendacity can be derived.

From the purposely short exemplification given above—a specimen by which, as yet, little dispatch is gained, little circumlocution saved—a conception may, without much difficulty, be formed, of much greater savings.

You live at such a place? no saving as yet: Where do you live? would be still shorter. You live as servant with the defendant? some saving already. Under a rigorous prohibition of suggestion, the interrogation might have been drawn into some such form as this:—Have you any acquaintance with either of the parties to this cause? Yes.—With which of them? The defendant.—Of what nature is your acquaintance with him, and whence derived? I live with him as his servant.

In the way of supposition,—and even in practice, where, on the part of the party really concerned in interest, the requisite degree of confidence is not wanting,—the use of suggestion to the purpose of dispatch will assume a greater latitude; if the proposed respondent be a person to whom no disposition to make any such deceptitious use of any fact made known to him can be ascribed; or if the fact, though as yet unknown to the proposed respondent, be of such a nature that, though he were even disposed to make any such improper use of it, it would not be in his power.

The appearance of suggestion affords naturally a sort of suspicion of mala fides: information, therefore, which he knows how to obtain without that appearance, a man will not naturally choose to purchase at that price: to incur a suspicion of that sort, and without use, will be a mark of unskilfulness. Hence, in this way, a young advocate of little experience, who, as such, stands exposed to the imputation of unskilfulness, will not naturally hazard the taking liberties, such as an advocate whose eminence has placed him above the imputation, will take without scruple.†

The second ground for admitting suggestive interrogation, is assistance to recollection.

From what has been said under the head of recurrence to notes, it must have been abundantly manifest that cases exist in which, to the correctness and completeness of testimony, helps to recollection cannot but be necessary.‡

In the ordinary intercourse of life,—in cases where the interest, the manifest and recognised interest, of all the parties, requires that the truth, the whole truth, and nothing but the truth, be brought to light,—where from falsehood (supposing it to come out instead of truth) every interest would be prejudiced, none promoted;—no one but must have frequently experienced how useful and necessary suggestions from without are to the correctness as well as completeness of the statement which requires to be delivered.

By such suggestion, a result which, it is true, may happen is, that (honest recollection not being the object) assistance may be given to mendacious invention, and the production of deception may be the consequence. But from this possibility, no just conclusion against the propriety of admitting the suggestion can be deduced.

In favour of the admission, provided certain conditions be observed, several considerations appear to plead.

1. If the bringing to view the fact or circumstance in question be necessary to the giving effect to the right of the cause, on which side soever it lie—in other words, to the prevention of misdecision; at the same time that, without the assistance in question, recollection of the fact or circumstance cannot take place;—exclude the suggestion, misdecision is the certain consequence.

On the other hand admit the suggestion, and,—though it should happen that, of the request made for the admission of it, a plan of mendacious invention was the final cause,—still deception and misdecision are far, very far, from being the necessary result.

2. The probability of the failure of true evidence through want of recollection, is greater than the probability of mendacious evidence in consequence of assistance afforded by suggestive questions.

On the one hand, honest failure of recollection (a weakness that requires assistance from another quarter, to enable a man to declare and make known the fact as it really happened) is an incident extremely common, and therefore proportionably probable. It is what may happen to every man; and is happening to every man continually, in every man’s experience.

Failure of recollection is most apt to happen in the case of a timid witness, who is least likely to be a mendacious, and in particular a successfully mendacious, witness. By the perilousness and novelty of his situation, it frequently happens that the exercise of a man’s mental faculties, and in particular his memory, is greatly disturbed and weakened. From the facts that constitute the subject-matter of his deposition,—from the traces left by the past perceptions in question in his memory,—his attention is irresistibly called off to the variety of sensible objects with which he is encompassed, and which are so many sources of terror to his mind.

So far as the effect of the suggestion (whether exhibited in the form of a question or in any other) is merely to bring back to the recollection of the witness a true matter of fact, which was really there before,—the effect of it is not prejudicial to truth and justice, but advantageous, and frequently altogether necessary.

The case, therefore, in which the effect of such suggestion is beneficial to the interests of truth and justice, is in experience frequent, and in prospect probable.

On the other hand, the case in which the effect of it is prejudicial to the interests of truth and justice, viz. by promoting mendacity—mendacity successful, that is, productive of deception on the part of the judge,—presents itself (at least in the state of things most frequently exemplified in English practice, in which the interrogation is performed in an open judicatory, on a day foreknown to both parties, and by professional advocates on both sides) as likely to be extremely rare.

1. The mischievousness of suggested information is confined to those cases in which the proposed respondent is pre-disposed to make use of it to a mendacious purpose.

2. Supposing the existence of a disposition to mendacity to be productive of any such pernicious effect, the fact thus conveyed to the knowledge of the proposed respondent, must be a fact the knowledge of which could not have been conveyed to him at any earlier period than the commencement of this his examination. For, at any antecedent point of time, the intimation of it might have been conveyed to him without exciting any suspicion: whereas, conveyed in the way in question, it cannot but be productive of a degree of suspicion such as leaves little danger of its being productive of the effect aimed at by it.

3. In the shape of notes or memoranda supposed to have been taken by the proposed respondent for his own use, the information might, at any antecedent point of time, have been furnished to him,—and that in the permanent form of a written document, much more surely subservient to the proposed sinister purpose, than any such verbal information as is supposed, can be.

4. Even within this narrow space of time, it cannot be conveyed to the proposed respondent (however prone to mendacity), otherwise than in the case of a correspondent disposition to the correspondent species of subornation, on the part of the interrogating advocate.

5. In the station of advocate, misbehaviour in this shape is not at all conformable to the natural state of things: the profit would be improbable, and would accrue to the party: the loss, in the shape of loss of reputation, would be probable, and would fall on the supposed delinquent, the advocate, himself.

6. Suppose the two requisites to the species of improbity in question conjoined; viz. on the part of a proposed respondent, a disposition to apply the information to the purpose of a mendacious statement, and on the part of the advocate, a correspondent disposition to furnish it; and suppose the mendacious statement delivered accordingly: still no harm takes place, unless, mendacious as the statement is, it obtains credence, and deception and misdecision are the consequences.

But the probability of any such deception on the part of the judge, in consequence of the mendacity of the witness, and thence of mendacity itself from this source, is, again, much reduced by the remedial virtue of vivâ voce interrogation ex adverso.

Where the answer to the suggestive question would be decisive, and the truth of it not liable to undergo ulterior scrutiny from a quarter interested in the detection of the falsity of it (if false;) here, indeed, the prospect of success in a confederacy of this kind would be highly favourable, and the probability of the attempt proportionable.

Such, accordingly, would be the case, in the instance of the sort of examination carried on in the Roman mode of procedure in causes in general, and in English procedure in the courts of equity. An advocate of the party frames the question in writing; the officer standing in the place of the judge propounds those questions to the witness vivâ voce; the witness gives his answer accordingly; no advocate present on the side opposite to that in favour of which the witness (in the case of a mendacious witness) violates the obligation of veracity; no advocate to ground a fresh string of questions upon the mendacious answer, for the purpose of bringing the falsity of it to view.

But, under the tutelary influence of cross-examination, the chance of success to a conspiracy of this kind cannot but be rendered highly precarious. The assistance which it is in the power of the supposed confederate, in the station of examiner, to give to the examinee, is but momentary. What he does, is to suggest the supposed matter of fact, the existence of which is to be asserted by the response. But, the suggestion once given, the power of support is gone. The next moment, the mendacious witness sees himself delivered into the hands of the adversary; from whose merciless lips will issue an unknown string of questions, all conspiring to bring to light the truth he has endeavoured to disguise; to expose to view the falsehood he has had the imprudence to advance.

7. As in case of false responsion,—where an attempt has been made that fails of producing deception, the natural effect is to put the judge upon his guard: the natural tendency is thus to prevent deception, and to give birth to a decision in favour of the other side.

Of a question of this nature, the distinctive character is too manifest to be in any danger of escaping the observation of the advocate on the other side, or even of the judge. The degree of suspicion and discredit which it will throw on that side of the cause in favour of which the attempt is made, may be set down as (comparatively speaking) a constant and certain effect; while the undue benefit derivable from it, is but an accidental and precarious one.

In a dubious case, or in a case in which success (bad or good) admits of degrees, undue prejudice to the side on which it is employed, is perhaps upon the whole a more probable result than undue advantage. If, by the advocate on one side, any such attempt be made with his eyes open to the tendency and consequent impropriety of it, it must be in confidence of its meeting with no common degree of incapacity on the part of the advocate on the other side, as well as no common degree of incapacity, or carelessness, or worse, on the part of the judge.

Where it is the known destiny of the evidence to be minuted down and published, the probability of any transgression of this sort seems very small indeed: nor, it is supposed, would the exemplifications of it (if any) be found otherwise than very unfrequent in the printed trials, at least of modern times.

The difficulty of drawing any clear line of demarcation, between the cases to which the prohibition of such suggestions shall, and those to which it shall not, be understood to extend, constitutes another objection to the utility of the prohibition. Look at the histories of these proceedings; documents which English judicature furnishes in such instructive abundance: instances in which the questions, put by an advocate to the witness called in on his own side, wear this suggestive form, present themselves, and present themselves unaccompanied with any objection on the other side, at every page.

In fact, when is it that any objection to the use of them appears to be made? On those occasions on which the use of them presents to view any probable prejudice to the other side. These are but few: and of these few, the cases in which the real cause of the objection is not the adverseness, but the serviceableness, of the suggestion to the extraction of truth, would (I am inclined to think) be found to compose the major part. The witness (an honest witness) is bewildered: a hint to refresh his recollection would set him in the right path. It is for this reason that the party who has truth on his side, endeavours to supply him with that assistance: it is for this same reason that the party who has truth adverse to him, is upon the watch to deprive him of that assistance.

The impossibility of marking out before-hand the cases to which the liberty of suggestive interrogation shall extend, will appear sufficiently manifest to any one who considers the tenor of the two rules of English law mentioned above: rules which, taken together, are by much too absurd to experience (even under the technical system) an undeviating obedience; rules which (like most, if not all, other rules of that system) experience double honour, sometimes in the breach, and sometimes in the observance.

Not lead your own witness?—Why not? Because your own witness is partial to your side; and to such a degree partial as to be ready on all occasions to adopt, and deliver as his own testimony,—to adopt, knowing it to be a lie,—any lie that, from your brief or otherwise, you may be disposed to put into his mouth. Thus measured, thus rational, are the professors of this pretended science, in the conclusions they draw in the way of circumstantial evidence. Principal fact, partiality, even to the length of perjury, on the part of the witness called on any side,—partiality on the part of every witness in favour of any suitor by whom he is called upon to depose. Evidentiary fact proving the partiality, the need I conceive myself to be under of calling upon him for his evidence: the accident of his having been present at the transaction, on the proof of which my chance of justice happens to depend.

What if he happens to have been called on both sides?—a case every now and then exemplified in practice. According to this argument, he must in that case be partial on both sides: determined, in case any such question should be put to him, to perjure himself; and so sure of succeeding in his perjury, and of making each side gain the cause, that he must not be heard on either side.

Lead my adversary’s witness? Why may I on all occasions lead my adversary’s witness? on no occasion lead my own? Because, your adversary’s witness (the witness on whose testimony your adversary’s claim happens to stand) being on that account sure to be partial to your adversary, and against you, you may offer to put into his mouth as many untruths as you please, he will not open it to one of them.

Not to speak of any such outrageous force as to plunge a man into the acceptance of an invitation to commit perjury,—in what proportion of the whole number of causes, may a bias more or less strong in favour of the inviting party (the testimony not having been called for on both sides) be expected? There are three cases—partiality for the invoker’s side, partiality for the adversary’s side, partiality for neither side. Antecedently to particular reasons pleading in favour of the several cases, the aggregate list of witness should be equally divided between the three. That the list of cases in which the partiality is on the invoker’s side* will naturally be the most numerous, is indeed evident enough at the first glance: that it can never be so numerous as to swallow up both the others, might, one should have thought, have been at least equally evident.

Observe that, should it so happen that my adversary’s witness, the witness technically so denominated, the witness whose testimony my adversary is so unfortunate as to be obliged to call for or lose his chance of justice—that this witness of my adversary’s in name, should, in affection, be my witness;—in this case, in the regular course of things, the check opposed to mendacity by interrogation ex adverso has no application. For, it being on behalf of my adversery, that this witness has been examined in chief, the examination to which he is subjected on my behalf is the cross-examination: the supposed adverse examination, which, being itself the check upon the examination in chief, is the last of the two parts of which the whole examination is comprised: the last of all, and which, being itself but a check, has no other to be a check upon it.

In this case, therefore, the security of the cause against mendacity by the assistance of suggestive questions, rests on the honour and regard to character on the part of the advocate and of the judge, not on the preventive power of the prohibitive rule.†

But, forasmuch as it rests on this basis entirely in this case, and to a certain degree in all cases, why should it not rest entirely on this same basis in all cases? that is to say, in the sense of the court respecting the propriety or impropriety of suffering the intimation in question to be conveyed to the witness under examination, regard being had to the interests of truth and justice. Every now and then it happens, that a candid witness, conscious of a defect in his memory, speaks out and says (supposing it for instance the name of a person or a place)—“I cannot this moment recollect the name, but if any person will mention to me that name amongst others, such mention will bring it back to my memory, and I shall be able to distinguish it from the rest.” In virtue of the prohibitive rule here contended against, such assistance is, I believe, generally refused. What I contend for is—

1. In the first place, that, when thus requested on the part of the witness, it should not be refused, but rather granted of course, reserving to the discretion of the judge the power of refusing it.

2. In the next place, that,—when, upon the hesitation or declaration of non-recollection on the part of the witness, the advocate conceives it to be a case in which he may honestly make known a disposition to afford to the recollection of the witness that assistance which it appears to stand in need of,—it should be allowable and customary for him to submit such his desire to the judge. To do so vivâ voce, and therefore openly, might not be in every instance practicable, consistently with the reserves necessary to prevent the communication from being actually made by means of the application by which the liberty of making it is prayed. For maintaining this necessary reserve, one expedient is the handing up to the judge in writing (which might also be done through the hands and with the privity of the advocate on the other side) the suggestion proposed to be made: the other is, to cause the witness to withdraw while the question on this subject is under debate.

In this way, it should seem, might frequently be obtained much light, which otherwise would be lost. And where the information thus afforded ab extrà happened to be at once apposite and true, it would often happen that the truth of it, and the truth of the ulterior testimony drawn forth by this means, would manifest itself by tokens sufficient to put the matter out of doubt. Often will it happen that one fact, thus replaced in a memory from which it had escaped, shall draw out from thence other facts, in a stream, the copiousness and rapidity of which shall leave no doubt of its flowing from the right source: from memory, the seat of truth; not from invention, the source of falsehood.

No objection (it should seem) can consistently be made to the committing it to the judge’s discretion to afford assistance or this sort, in whatsoever case it promises to be subservient to the interests of truth and justice. On this occasion, as on all others, the judge must be supposed fit for his office: all such precautionary arrangements must be supposed to have been made as appear necessary, and without preponderant inconvenience promise to be conducive, to that effect. Such is the presumption on which all reasonings must be built.

§ 2.

Conditions of Allowance.

That, during the process of interrogation, information under the notion of a help to recollection ought not to be communicable by an interrogator to a proposed respondent, without permission openly applied for and granted by the judge; and that, in the event of such permission, it ought to be communicable; has been already intimated.

What remains is, to bring to view the cases in which, with propriety, permission to that effect may be, on the condition above mentioned, granted by the judge.

1. If, on being applied for, it appear to you that the information in question would be more likely to assist the framing a mendacious statement (and that in such manner as to render it detection-proof, and so promote deception), than to improve the testimony either in point of correctness or completeness,—refuse to permit the yielding it: in the opposite case, allow it.

A rule to this effect would be extremely general. But it seems scarcely possible to narrow the power thus given, without diminishing the utility of it.

2. There is one case in which the permission ought evidently to be granted: where, from the multitude and variety of the facts to be spoken to by the proposed respondent, it cannot reasonably be expected that the whole mass of them should have been borne in memory, in such sort as that it shall be in his power, without such assistance, to deliver his testimony in relation to it in a state of correctness and completeness.

Instances might be mentioned in which the necessity of refreshment would be obvious, even in the case of a witness of the most practised memory. An account (for example) containing a hundred items on one side, and as many on the other: disbursements or receipts, all having taken place by or with the privity of the deponent. Some of these, perhaps, it may happen to him to recollect of himself: but is there one man out of a hundred, or a thousand, that (especially if called upon on the sudden) would be able to recollect the whole? At the same time, present to him a list of them, there may be none of them to which he may not be able to speak with decision and with truth.

Accordingly, the presenting to a deponent in this way a ready-drawn account, is matter of general practice; yet what can be more clearly leading, more clearly suggestive?

But here the line between the cases in which on this ground the permission ought to be given, and those in which it ought not to be given, cannot (it is evident) be drawn by any general form of words. The necessity, and thence propriety, of the permission, will depend partly upon the length of the account, partly upon the simplicity or complexity of it, partly upon the mental powers of the proposed respondent.

3. Setting aside the case in which, without any application from the proposed respondent himself, it may be proper that, in the shape of a written document, assistance to his recollection should be administered of course; a rule that upon the face of it seems a reasonable one is this:

Unless the proposed respondent, perceiving (as he says) the need of information from without, in regard to this or that one of the points concerning which he is interrogated, makes application for such information accordingly, (which application will of course be openly made;) let it not be furnished to him. If such application be made by him, it will then rest with the judge to allow it or not, according as (regard being had to rule the first) to his discretion shall seem meet.

4. But if, for want of his being apprised of some matter of fact (which, having or not having been matter of dispute, is sufficiently established,) the proposed respondent has, on the occasion and in the course of his testimony, fallen into some erroneous statement, or assumption, or supposition, by which in any particular, without blame on his part, his testimony has been rendered more or less incomplete or incorrect; in such case it should be allowable to the judge, whether at his own motion, or (if he thinks fit) at the motion of any party, or the advocate of any party (the party by whom the testimony of the proposed respondent was called for not excepted,) to correct the mistake: communicating to the proposed respondent whatever information shall be necessary to that purpose.

5. So, in case of need of suggestive information, manifested by the proposed witness, otherwise than by direct confession or unintentional and blameless error (as above,) for instance, by deportment, in the way of hesitation or otherwise, it may be allowable to the judge, of his own motion, or at the instance of a party (as above,) to tender to the proposed respondent such assistance is shall be requisite: and upon his request to administer it accordingly.

6. Such assistance, if administered, should be administered in such manner as to afford no more information than what, on the supposition of veracity on the part of the proposed respondent, may be absolutely necessary; leaving to be done by his memory whatever can be done by it.

Example. If the name of a person form a material part of the testimony: and the witness, hesitating about the name, declares that if he were to hear it he should recognise it;—give him, along with other names taken at random, the name or names stated as true, by the suggestion of either or both the parties; to the intent that the proposed respondent may make his choice: in which case, let it be the care of the judge so to present to notice the whole list of names, that the names, so chosen respectively by the parties shall not be distinguishable by him from the rest.*

7. Excepting cases in which (as in that above exemplified) the length and intricacy of the string of facts to be spoken to, puts the necessity of suggestive information out of doubt; a precaution that may be of use (at least where the circumstances of the case are of a nature to mark out the testimony for suspicion) is the going through with the examination of the witnesses on both sides, without the suggestive information; and then, and not till then, administering the information, if the demand for it be deemed to continue.*

Under the system of procedure above supposed—under a system of publicity such as the English,—a relation of amity, operating to the prejudice of truth and justice, is, as between the proposed respondent and the interrogator, the source, and only source, of whatever mischief is apprehended from the suggestion.

Under a system of darkness, such as that of the Roman school, the opposite relation (a relation of hostility) constitutes an additional relation from which, in case of suggestion, mischief has (and not without reason) been apprehended; the nature of the suit being penal, the interrogator the judge, the interrogation oral, and no other person present, except a scribe, acting in a state of dependence under the judge.

Accordingly, among the rules of that system are to be found rules prohibiting the use of suggestive questions, and to that end requiring that the interrogator’s proposition shall have for its subject the name of a species, and not of an individual. “Did you see a person, any person, there at that time?” A person—not Titius or Titia: no, nor so much as a man or a woman, if anything turn upon the sex.

In the cases which gave occasion to those rules, the mischief was but too real. But the cause of it was not the suggestiveness of the interrogation, but the darkness in which the power exercised on the occasion was involved; involved and screened from the controuling and salutary influence of the public eye.

In the security afforded by such darkness to judicial misconduct, to the prejudice of either side at pleasure,—it is no more than should be expected, that in this or that instance, the judge will be disposed to bestow impunity on a delinquent,—in this or that other instance, to let tall on the head of innocence the punishment due to guilt.

In the latter case, different expedients will, according to the circumstances of the case, offer themselves to his choice. By dint of terror he may so confound the intellectual faculties of the defendant as to extract from him a sort of assent to any or every question that appears to call for it: by a sort of compact (more or less explicit,) he may engage the defendant to confess a less severely punishable offence of which he is innocent, in hopes of saving himself from the punishment attached to a more severely punishable offence, of which he is also innocent: or, to save all this trouble, he may at once extract from his terror, or his ignorance, a signature, by which he is made to recognise, as a true expression of his mind, a discourse of the confessional cast, the contents of which had never been really presented to his mind.

All this while (as above observed) the cause of the mischief lies merely in the secrecy.

Establish the secrecy, the injustice may be perpetrated, and securely, without the improper mode of interrogation. Substitute due and appropriate publicity to the secrecy, the injustice cannot, with any assurance of safety, be perpetrated by means of that improper practice. Supposing this or that interrogatory to be, in the way in question, improper; by the entering of the interrogatory on the minutes, and the publication of the minutes, the interrogator with his injustice will be exposed to shame. By putting the suggestive question, the judge would but expose himself; unless, by causing the insertion of it to be omitted, he were to falsify the minutes: and, supposing this fraud to be in his power, and practised, the other is of no use.

Remove what there is dangerous in the secrecy, and, at the same time, place all relation of undue amity out of the case,—suggestion, be it ever so pointed and particular, not only is capable of being practised without danger, but, without any inconvenience, is in ordinary use. The invitation given to a man to prejudice himself may be ever so pointed; he may be trusted to for not accepting it.

In English equity practice, interrogatories put on behalf of a plaintiff to a defendant, are rendered suggestive without reserve. So, in English common law practice, in the case of the interrogatories put by the advocate on one side to the witness, who (with or without reason) is, from the side on which he has been called in the cause, presumed to be friendly towards the other.

In the Roman school, in cases not penal, interrogatories propounded by the judge to the defendant, have been drawn up for the purpose by the law-assistant of the plaintiff; and in this case, the darkness being in a considerable degree lightened, and the motives for judicial oppression having little application in comparison with what they have in penal cases, (especially in those in which government is a party, in affection as well as name,) little more inconvenience is produced from the source in question, than in the case of English equity practice, as above.

CHAPTER IV.

OF DISCREDITIVE INTERROGATION.

But for a fallacy, no less pernicious in practice than gross and palpable in theory, neither the demand for this chapter, nor consequently the chapter itself, would have had existence.

There stands a witness, whose testimony appears to my apprehension stained with mendacity; and that mendacity of a nature to operate to my prejudice. By the questions I put to him, shall it be permitted to me to endeavour to bring to light his mendacity, or the reasons which I have for suspecting him of a disposition to launch into that crime?

Yes, if he be my adversary’s witness: but no (says a rule of English law,) if he be my own witness.

It is the interest of English judges that chances may never be wanting in favour of any the worst cause: that no cause, how bad soever, may be given up as desperate. Among the vast variety of devices which they have set on foot for this purpose, one is,—to grant to every witness a mendacity-license, subject only to this condition, that, of two parties in a cause, it must be employed against that one by whom the witness has been called upon for his testimony.

In this witness, I behold a person to whom it happened to be a witness—a percipient witness—and perhaps the only percipient witness, of a fact, on which my right, and my hope of success in the cause, is founded. This being the case, I could do no less than call upon him to appear in the character of a deposing witness, and give his statement in relation to the case.

In a loose way of speaking, this person, to whom it may equally happen to be my friend, a person altogether unknown and indifferent to me, or my enemy, may be termed my witness.

On so flimsy a ground as that of a verbal inaccuracy—a loose way of employing a possessive pronoun,—have been raised in judicial practice, three or four most deceptitious rules of very diversified tendency, each of them susceptible of very extensive application, and, in fact, but too frequently applied.

1. You may lead your adversary’s witness.

2. You must not lead your own witness.

Of these two rules, the impropriety was shown in the preceding chapter.

3. You must not discredit your own witness; viz. in the way and by means of counter-interrogation: by means of facts extracted out of his own lips in the shape of confessorial testimony.*

4. You must not discredit your own witness; viz. in the way and by means of counter evidence: by means of facts established by evidence other than as above.

5. Of kin to the above, is a rule confined to equity-court practice. When, in the epistolary mode, in the character of plaintiff, you have interrogated a man in the character of defendant, and in this way extracted from him a mass of ready-written evidence, called his answer;—if you abstain from employing it, or any part of it, in the character of evidence against him, he shall not read it, or any part of it, in the character of evidence for himself: but if there be any part of it, of which you make use as above, it rests with him to make the like use of the whole, or any part, of the remainder.

In support of the three last of these five rules (the two others having already been disposed of,) two arguments, such as they are,—two arguments, in some measure distinct, may be collected from the books. Without confining myself to exact words, the authority of which (for such throughout is the texture of unwritten law) can never be depended upon, my endeavour shall be to display them to the utmost advantage possible.

1. By calling for his testimony, you have admitted him to be a person of credit, acknowledged his trustworthiness: to seek to discredit him would be an inconsistency; and the success of your endeavours would be fatal to your cause: for, if his testimony he not to be believed, and you have none but his, then is your side of the cause without evidence.

2. Were this to be permitted to you, the permission would be attended with consequences fatal to truth and justice. You would call in an untrustworthy person: if you found his testimony in your favour, you would then keep back the means you have in your hands of demonstrating his untrustworthiness: if, on the other hand, his testimony proved disadvantageous to you, then, and then only, would you employ the means you have in your hands to the purpose of discrediting it. Choose, then, which you will have him to be—trustworthy, or untrustworthy: both he cannot be. If untrustworthy, you shall not call him; it is not fit he should be heard: if trustworthy, then whatsoever he says is by your own admission entitled to credence; you are estopped from saying otherwise.

Such are the arguments. They rest upon two grounds.

One is a false axiom of psychology—a proposition enunciative of a complete ignorance of, or inattention to, the universal and universally-known constitution of human nature.

The other is an equally complete inattention to the tutelary and veracity-promoting influence of the securities employed (as above) for insuring the veracity, the correctness, and completeness of testimony—those very securities, of which counter-interrogation (of the benefit of which it is the endeavour of these arguments to deprive the cause) is among the most efficient and impressive.

The false axiom is this:—All men belong to one or other of two classes—the trustworthy, and the untrustworthy. The trustworthy never say anything but what is true: by them you never can be deceived. The untrustworthy never say anything but what is false: so sure as you believe them, so sure are you deceived.

To place the absurdity of this theory in its true light, would be to anticipate the contents of a future book.* But, by an eye not wilfully closed by sinister interest, the true character of it can hardly fail to be seen stamped in sufficiently strong marks upon the face of it. No man is so habitually mendacious as not to speak true a hundred times, for once that he speaks false: no man speaks falsehood for its own sake—no man departs from simple verity without a motive; and that of sufficient force to more than countervail those motives which we have seen acting upon him in the character of securities for his veracity.

But suppose, in this particular, the disposition of a man ever so depraved. In the present case, that man is the most depraved, in whose bosom the force of the standing tutelary and veracity-promoting motives has least influence; who is most apt to be overborne by the force of any interest or interests whatever, acting on him in a sinister or mendacity-promoting direction. But, if not exposed to the action of any sinister interest, a man of the most depraved disposition will not be more apt to speak false, against so strong a current as that of the motives which tend to keep his testimony within the pale of truth, than the most upright one.

But suppose him as much under the governance of sinister interest as it is possible for a man to be. He has then taken his side: being (such for the argument sake he shall be supposed) an extraneous witness, he has taken his side: his wishes, and consequently the leaning of his testimony, are constantly (say) against the plaintiff’s side, in favour of the defendant’s.

Be the occasion what it may—take what man’s testimony you will, you will scarce ever find the whole of it false: some parts of it at any rate will be kept within the pale of truth, were it only to give credit, or escape the danger of giving discredit, to the rest.

Of this dishonest witness the testimony will thus be resolvable into three parts: one part, which, in pursuance of his plan, he has rendered favourable to the defendant’s side: another part, which, it not having appeared to him to be in his power to render it favourable to the defendant’s side, is neutral, or at least has appeared so in his eyes: a third part, which (as far as it goes) is favourable to the plaintiff’s side, unfavourable to the defendant’s; the dishonest witness, in spite of his wishes and endeavours, not having deemed it advisable to render it otherwise.

Exhibit in the strongest possible colours the untrustworthiness of your witness—his partiality to your adversary’s side, and his improbity of character; you discredit so much of his testimony as makes in favour of your adversary, but in the very same proportion you increase the trustworthiness of all that portion which makes in favour of yourself.

A man’s testimony cannot be believed where it makes for his wishes—therefore it cannot be believed where it makes against his wishes: in other words, a man will be as ready to tell lies to thwart his own purposes, as to forward them. Was ever proposition more directly in the teeth of the plainest common sense?

Such is the proposition assumed and built upon in the intimation, that “the credit” of your own witness (meaning a witness called upon by you through necessity, though in wishes adverse to you) “is destroyed,” in regard to facts extracted from him in opposition to his own wishes, if his credit be destroyed in regard to facts stated by him in furtherance of his own wishes.

Of this same witness, whose credit is thus said to be destroyed, in relation to all facts disclosed by him in opposition to his own wishes, now that, by his having been summoned by you, a pretence is given for calling him your own witness: of this same adverse witness, whose credit as to all such facts is thus said to be destroyed by the name thus given to him,—the credit would, as to all such facts, have been in full vigour, had it so happened that he had been summoned by your adversary, and the self-same answers had been extracted by you, by virtue of the self-same questions. Had the examination which brought out the facts been called a cross-examination, they would have been true; but as the examination they are brought out by is not called a cross-examination, they are false.

The reason, if it were good for anything, would be a reason, not against the adverse examination of a man’s own witness, but against the adverse examination of any witness.

Disbelieve all he says in favour of his adversary when examined by his adversary in the first instance, you must disbelieve all he says when examined by his adversary in the second instance. This you must admit: unless you maintain that the same man is credible or incredible, honest or dishonest, according as it happens to be this or that man who first stands up to question him.

A man’s moral disposition being as yet unknown (which, in truth, will on these occasions he in most instances the case,) his situation is such as (suppose this out of doubt) exposes him to the action of a naturally strong sinister interest: apprised of such his situation, confidence in him you have none. But, unfortunately for you, so it has happened, that in his presence, and no other, the transaction of which it is necessary to you to make proof took place. In his testimony, therefore (viz. in so far as, notwithstanding his manifest situation and his presumed wishes, it may not happen to him to render it incorrect or incomplete to your prejudice,) you behold your only chance.

Among the means which the nature of things affords you for extracting the truth from this or any other unwilling bosom, is interrogation: counter-interrogation it may in one sense be called, in respect of its contrariety to the current of his wishes. No (says one of the rules;) this shall not be permitted to you. Why? says justice: because (adds the rule) this witness, this enemy of yours, is your witness. And so, because the nature of things has made you unfortunate enough to stand in need of this testimony—a testimony which, to your prejudice, has so strong a tendency to become false,—the fee-fed judge, with his technical and arbitrary rules, is to step in, and deprive you of the use of an instrument, without which you have no chance of preserving the testimony from being false, and decisive to your prejudice.

In favour of your claim to apply his testimony to this touchstone, your argument is this—(and where is the inconsistency of it?)

The leaning of this man’s wishes, as is manifest from his situation, is strongly in disfavour of my cause. The truth of the case, which to him is perfectly known—the truth (if he would but speak it, the whole of it, and nothing else) would be decisive in my favour. As yet, what I have been able to extract from him in my favour is not sufficient; and, insufficient as it is, it has been counteracted by false statements that have accompanied it—statements operating in favour of the other side. But this man, honest or dishonest, would naturally not be willing to find himself (whether in danger, or not in danger, of legal punishment) set down in the account of all persons to whose cognizance this cause may happen to present itself, in the character of a false witness. By the apprehension of standing convicted of falsehood by the inconsistency of his testimony, on this occasion, with this or that known matter of fact (whether known by his own testimony delivered on a former occasion, or from any other source,) let me see whether I may not be able to make him confess a part of the truth, which as yet he has not confessed, and retract or explain away, before it be too late, a part of the falsehood which he has hazarded.

Thus much for the endeavour to discredit him by interrogation—by counter-interrogation: remains what concerns the endeavour to discredit him by counter-evidence.

On some other occasion, the testimony delivered by him has been found to be false or he has been known to be guilty of one of those crimes which, without indicating any particular disposition to improbity in this particular shape (the shape of mendacious testimony,) indicate, however, a general depravity of disposition, in such sort, that in case of temptation to fall into this crime, resistance to the temptation cannot, in the instance of a person so disposed, be with reason depended upon as being in a preponderant degree probable.

Proofs of such former mendacity, or such improbity in another shape, are in your power: and the current of his testimony having upon the whole run against you, yet not in such sort as to deprive you of all hope (his not being in the present instance the only testimony you have adduced,) you apply for liberty to produce them. On what ground should it be refused to you? His testimony being incorrect and incomplete, and being so to your prejudice, what reason is there by which you should be prevented from bringing to light this truth, any more than any other pertinent and instructive truth? In the grammatical expression, your witness, howsoever applicable to him, what is there that should prevent your having permission to paint his disposition, any more than the disposition of any other person, in its real colours?

Not to discredit him? Why not, as well as anybody else? To discredit him is to render probable, either by direct proof, or by circumstantial (of which nature is character-evidence operating in diminution of his general trustworthiness,) that the testimony he has been giving, is giving, or (as supposed) is about to give, is, or will be, deficient in respect of correctness or completeness. This counter-evidence, upon which the exclusion is thus put,—is it to be supposed false, or to be supposed true? Suppose it false, there is the same reason, and no other, for the exclusion of this, as for the exclusion of any other false evidence. As there is no knowing whether evidence be or be not false, without hearing it—to know whether the supposition of falsity be just, the evidence must be heard. On the other hand, suppose it true, to what end would you exclude it? What has truth to gain by the exclusion of true evidence?

The testimony which the witness gives, is (by the supposition) incomplete or incorrect. What has truth to gain by its being taken for complete and correct, when in reality it is otherwise?

The tendency of this your counter-evidence is to place the value of your witness’s testimony in its true light. No, say the lawyers; we will not have it placed in its true light: the situation, the moral situation, in which the witness is placed—the sinister interests to the action of which he is exposed—shall not be presented to view.

Oh, but what you contend for is an inconsistency: you want the same man to be regarded as credible and incredible—as speaking true, and speaking false.

Not the smallest inconsistency: what we want to have thought true of this man, is no more than what is true of every man,—at least, of every man of whom it could not be said that he has never, from his birth to the moment in question, said anything that was not true.

Part of his testimony (viz. that part which operates to your prejudice,) you regard as being false; and of the testimony which you have to produce from other sources, the tendency, and (in your expectation) the effect, will be, to cause the judge to regard it as likely to be false. Why? Because, from his situation or other sources, you have shown a great probability that the current of his wishes runs in a direction opposite to your side of the cause; and, by the evidence which you apply for liberty to adduce, a disposition on his part is proved, such as indicates in his instance a greater probability than in the instance of another (an ordinary) man would be indicated, of his testimony being turned aside out of the path of truth by the current of his wishes.

Supposing this then to be his disposition, as I beheve or suspect it to be, what will be the effect of it upon his testimony? To divide it into two parts: that which comes out with the current, and that which comes out against the current, of his wishes. But if, with respect to one of those two parts of his testimony, he is less credible than an average man—than a man endued with an ordinary degree of this branch of probity,—with respect to the other, he is not at all less credible.

If there be a difference, he is more credible. The stronger the sinister current of his wishes, the less likely, in comparison with an ordinary man, he is to deliver out any matter of fact, the consequences of which are sure to militate against those wishes.

In a criminal cause, in which, in the character of defendant, a man is subjected to examination,* are you not the more fully persuaded of the truth of any fact he discloses, the more forcibly it tends to his conviction, and the severer the punishment to which it thereby tends to subject him? No doubt you are: because, the more forcible those tendencies, the more improbable that a man should disclose, should confess, the fact, if he were not fully conscious of the truth of it. To both men it has happened to be placed in a situation in which one part of their testimony comes out in opposition to the current of their inclinations. In both instances, the opposite character of the two branches of their respective testimonies is alike conspicuous: that which comes out with the current is the worst—that which comes out against the current is the best—of all evidence.

But, such as it is (says the last argument,) you have had the benefit of his testimony. Had it turned out favourable to you, these proofs which you say you have of his mendacity, (whether experienced, or rendered probable and presumable by experienced improbity in some other shape,) would not have been produced by you, but suppressed: therefore (continues the argument) now that his testimony has turned out unfavourable to you, they shall not be produced by you; they shall be suppressed: it is I (says the judge) that will not suffer them to be produced; it is I that will cause them to be suppressed.

The witness proves dishonest, following his wishes instead of his duty, and, on pretence of non-recollection, refuses to produce the information which he possesses: instead of disclosing truth for your advantage, he utters falsehood to your prejudice. Before you were driven by your distress to take your chance, slender as you thought it, for his assistance, his character afforded you but too much reason to apprehend the improbity that ensued. You have been injured by falsehood, and you are not suffered to call in truth for your defence. The mischief has been done to you, and you are not suffered to apply the remedy. You are not to account for the turn his evidence has taken to your prejudice: you are not to show his character in its true light. Why? Because, it, contrary to your expectations, he had proved honest, you would not, in this case, have given your reasons for apprehending he would prove otherwise. You shall not give the evidence, now that it is necessary; because, had it not been necessary, you would not have given it. Such is the argument, when cleared of its false gloss. Not to speak of the supposition involved in it; as if general bad character were a sort of thing which one of two parties, by putting into his own pocket, conceals from the other, and keeps in his pocket or pulls out at pleasure.

Of your forbearance, no such thing as suppression of evidence is the result. There stands the evidence: no measure, no active step, was, by the supposition, taken by you, for any such purpose as that of suppressing it. There stands the evidence: and if it can be produced by him to whom (if to anybody,) and to whom alone, the production of it can be of any use, let it be produced, no hand of his is arrested by your forbearance.

Oh, but in this way you had an advantage, and an unfair one, and you ought not to be suffered to make use of it. This counter-evidence of yours was known to yourself, it was not known to your adversary: he could not make use of it; therefore neither shall you.

Oh, hypocrites! what an objection in your lips! On what other occasion did it ever occur to you to say, that, because the evidence that lies without my knowledge is out of the knowledge of my adversary, it shall not be in my power to make use of it? Not to speak of lawyer-craft,—in point of common sense, what a reason is this for shutting out the light of evidence!

To this deficiency (such as it is) it is most completely congenial to the system of reason to afford the remedy,—as completely as it is to yours to refuse it. In the system of common sense, common honesty, and (everywhere but with common lawyers) common practice, there are no secrets. Do you suspect me of being apprized of evidence of which you are not apprized? Ask me, and I stand bound to you. From what party, under your system, is any such information ever permitted to be so much as asked for.

Here is so much truth, say you, but it shall not be brought to light. Why not? Because there is a somebody who does not know of it. Such is your argument—such the reason by which you stand determined to shut the door against material evidence,—against that evidence, without which there will be no justice!

At the very first mention, there is a hollowness in the argument, by which it must, I think, have betrayed itself to every eye not shut against reason by professional interest or prejudice. But there was a fallaciousness in it that seemed to call for exposure, and that fallaciousness consisted in the muddiness of the ideas which it was the tendency of it to excite—in the confusion which it was its tendency to spread over the whole field of evidence. Unhappily, so thick was the confusion, that to dispel it required no inconsiderable mass of words. Such is the jargon of which the great force of unwritten law is composed. So monstrous is it in its mass,—to unpractised minds, so oppressive the weight of it,—that in mere despair they are content to sink under it, rather than be at the pains of wrestling with it.

By the rule, “you must not discredit your own witness,” you are, among other things, prevented from asking him whether he made a different statement on a former occasion. In this manner, to injustice operating by mendacity and aggravated by treachery, the sophism involved in the use of the words your own witness, secures a certain triumph.

Called upon by an agent of yours, or offering himself to you spontaneously,—a man who, by ill-will towards you (the party wronged,) or by sympathy towards, or secret community of interest with, the wrong-doer, has been engaged to practise the fraud in question, states himself as having been a witness (a percipient witness) of the transaction in question: painting it in such encouraging but false colours, as promise to you, the plaintiff, a certainty of success. Relying on this assurance, the party wronged either institutes against the wrong-doer an action, which without this encouragement he would not have instituted; or if, on the strength of other evidence less promising, he was at any rate determined to bring his action, deprives himself of the benefit of the honest evidence which he might have; placing his whole confidence on a testimony, the offer of which had no other object than, by deception, to make him lose his cause. On the trial, or other judicial hearing, the witness speaks the truth, which being by the supposition not sufficient to warrant a decision in favour of the plaintiff, loss of the object at stake upon the cause, together with the costs on both sides, follows as a necessary consequence.

Out of court, on the extra-judicial occasion, what the witness said was replete with falsehood,—falsehood studied, and expressly contrived for this base purpose. But of this plan of falsehood, under English rules of evidence, the success is sure—detection is impossible. Out of his own mouth you stand debarred from so much as the chance of exposing his treachery; debarred by that part of the rule which relates to interrogation. From exposing it by your own testimony you stand doubly debarred: first, by that branch of the rule which regards counter-evidence; next, by the rule which, unless under the cover of some disguise, excludes the receiving the testimony of a party.

Without the slightest provocation on your part, you have been abused, insulted, wounded, by a malignant enemy. You propose to yourself to seek redress at law. In the hearing of a known friend of yours, in pursuance of a plan concocted with the wrong-doer, and founded upon this rule (for, with how much care soever the knowledge of the law is kept in general from the body of the people, bad laws are frequently no secret to the wicked, whose study it is to profit by them,) a confederate of his, who, having been an eye-witness of the transaction, has full knowledge of the nature and circumstances of the injury, relates, as if in the course of casual conversation, everything as it really took place, expressing such sentiments on the occasion as are calculated to impress the assurance of his fulfilling, if called upon, the duty of an honest witness. You call upon him accordingly, and rest your cause upon his evidence. When the cause comes on, instead of stating the transaction according to his former statement,—a statement exactly agreeing with the truth of the case,—he suppresses some circumstances, adds others, makes you the aggressor, and, instead of redress, you are loaded with expense and infamy. Would you ask him whether, on that former occasion, his statement did not wear a different complexion? Your mouth is stopped by this rule.

Such being the absurdity of this cluster of rules, and so sure the mischief of them—a question that naturally presents itself is—what may be the proportional amount of that mischief?

The question has little more than curiosity in it: for, the existence of mischief being established, and that pure from all advantage, be the amount greater or less, the practical inference is the same.

To a first glance, such would be the effect of the rule, that, in one case out of every two, it would exclude a party from the benefit of interrogation: and thus lay justice at the mercy of every mendacious witness.

Blows take place in consequence of a quarrel you have with a man at the house of one of you, and on the occasion of which you prosecute. In point of probability, the house may as well be his as yours. If it be yours, in the natural course of things the evidence which it affords is friendly to your side of the cause: if it be his house, in a course of things altogether as natural, the evidence it affords is hostile to you. Friendly or hostile, if, prosecuting, you have need of it, and, having need of it, call for it, it is (in the practical phrase) your evidence, and (as such) not to be discredited by you; that is (be it ever so mendacious) is not to be shown by you in its proper colours.

To a first glance, the quantity of injustice and mischief thus produced should be enormous: in practice, great as it is, it is found to be not to such a degree enormous as would naturally be supposed. The circumstances by which the amount of it is reduced are various: too various, and requiring too much room to be enumerated here.

CHAPTER V.

OF THE DEMEANOUR OF THE ADVERSE INTERROGATOR TO THE WITNESS, CONSIDERED IN RESPECT OF VEXATION.

This subject presents itself as of the number of those which scarce afford any hold for any determinate rules. A few observations, however, in the way of warning, may not be altogether without their use.

What liberty ought, on this occasion, to be allowed to the adverse interrogator? 1. In the first place, the liberty of doing and saying anything which promises to promote the discovery of material truth, and which at the same time is not productive of vexation to the witness; 2. In the second place, every liberty, the effect of which (although it should be productive of such vexation) promises to be attended with more of advantage in respect of its subserviency and necessity to the discovery of the material truth, than of mischief in respect to any such vexation of which it may be productive.

What liberty ought, on the other hand, to be refused? 1. In the first place, every liberty, the exercise of which, being or not being productive of vexation, has no tendency to promote the discovery of truth; 2. In the next place, every liberty, by the exercise of which (however it may possess that useful tendency) too great a price is paid in the shape of vexation, for the advantage purchased in the shape of furtherance of justice.

Rule 1. Every expression of reproach, as if for established mendacity: every such manifestation, however expressed—by language, gesture, countenance, tone of voice (especially at the outset of the examination,) ought to be abstained from by the examining advocate.

If the tendency of such style of address were to promote the extraction of material truth, at the same time that the action of it could not be supplied to equal effect by any other plan of examination,—the vexation thus produced (how sharp soever) not being of any considerable duration, the liberty might be allowed, with preponderant advantage for the furtherance of justice.

But, on a close investigation, no advantage, but rather a disadvantage, even in respect of furtherance of justice, seems to be the natural result of an assumption of this kind. The instrument by which mendacity is detected, or deterred from the attempt, is the representation of facts inconsistent with the false assertions advanced or meditated: facts established on other grounds, viz. improbability of the opposite facts, indubitable testimony from other quarters, or other assertions advanced by the witness himself on other occasions or on the occasion in hand. The effect of any such contradictive and damnatory manifestations will be in itself sufficiently impressive, and needs not the assistance of any such force as it may be in the power of the advocate, in the way of rhetorical or dramatical artifice, to apply. Their operation will be proportioned to, and dependent upon, the cogency of the argument derived from the contradiction afforded to the statement of the witness by those other adverse testimonies.

Even in the course of the examination, and after having received whatever warrant it is capable of receiving from whatever symptoms of mendacity may have transpired,—it seems to be neither necessary, nor (in comparison with such unobjectionable resources as have just been mentioned) preferably conducive, to the purposes of truth and justice.

At the outset of the adverse examination, and therefore before this style of demeanour can have received any warrant (at least in the eyes of either the judge, the by-standers, or any person besides the advocate himself who is displaying it,) it seems adverse to the interests of truth and justice; and that in more ways than one.

Of the legitimate mode of attack—the attack by the force of adverse facts—the impressiveness depends upon the force of such adverse facts, and is stronger and stronger in proportion as the mendacity is more enormous, and (if undetected) pernicious: the magnitude of the force rises, with the legitimate demand for it, occasioned by the improbity of the individual to whose mental feelings it is applied.

Of the opposite mode of attack, the impressiveness proportions itself, not to the improbity of the witness, but to his sensibility, his natural timidity—a weakness much more naturally allied to probity than to its opposite. By reproachful and terrifying demeanour on the part of a person invested with, and acting under, an authority thus formidable, it seems full as natural that an honest witness should be confounded, and thus deprived of recollection and due utterance, and even (through confusion of mind) betrayed into self-contradiction and involuntary falsehood, as that a dishonest witness should be detected and exposed. The quiet mode above described is not in any degree susceptible of this sort of abuse, the outrangeous mode seems more likely to terminate in the abuse than in the use.

In another way,—far from being conducive to the detection or prevention of mendacity,—it has a tendency to serve the side of injustice, by exciting in the mind of the judge (especially in the case of a non-professional and unpractised judge, the juryman,) prepossesions injurious to an honest witness, and prejudicial to the interests of truth.* The contageousness of persuasion, real or pretended, is no secret to the observing mind.

In the sort of treatment thus given to a witness, two distinguishable injuries may commonly be seen united: the imputation of guilt cast upon the witness, in the way of assumption, frequently without any ground at all, and always without the justification afforded by antecedently apparent grounds; this unwarranted imputation, coupled with the assumption of a sort of magisterial authority over the witness by the advocate. Howsoever it may be in respect of the imputation, the assumption of the authority cannot but be acknowledged to be without ground. For any authority over the witness there is no better pretence on the part of the advocate than there would be on the part of the party: on the part of the agent than on the part of the principal, in whose place he stands, in whose behalf he acts. That the witness is all the while under the pressure of an obligation, moral as well as legal, is not to be disputed: that the party, to the prejudice of whose cause the testimony tends, possesses a right corresponding to that obligation, is as little to be denied: that the advocate, standing in the place or by the side of his client, is entitled to the exercise of that right in its full extent, is equally clear, but as to power, authority, anything of that sort, there is but one sort of person to whom any privilege of that sort can with propriety be ascribed, and that is, the judge.

As to the advocate: whatever restraints in respect of moderation and decorum are binding upon the party, are, in point of justice, equally binding upon this his representative.

Rule 2. Such unwarranted manifestations, if not abstained from by the advocate, ought to be checked, with marks of disapprobation, by the judge.

In the presence of the judge, any misbehaviour, which, being witnessed at the time by the judge, is regarded by him without censure, becomes in effect the act, the misbehaviour, of the judge. On him more particularly should the reproach of it he; because, for the connivance (which is in effect the authorization) of it, he cannot ever possess any of those excuses, which may ever and anon present themselves on the part of the advocate.

The demand for the honest vigilance and occasional interference of the judge will appear the stronger, when due consideration is had of the strength of the temptation, to which, on this occasion, the probity of the advocate is exposed. Sinister interests in considerable variety concur in instigating him to this improper practice.

1. In the way above mentioned, an advantage is naturally derived to his cause: especially (or rather exclusively) if it be a bad one; labouring therefore, in proportion to its badness, under the need of seeking its support in such undue advantages.

2. His zeal in behalf of the interest of his client, finds in this sort of impassioned demeanour an occasion of displaying itself.

3. The love of power, the appetite for respect and deference (passions inherent in the species, and in a particular degree brought into exercise by the profession,) find in this display of superiority a gratification suited to their nature.

Rule 3. When, on the false supposition of a disposition to mendacity, an honest witness has been treated accordingly by the cross-examining advocate (the judge having suffered the examination to be conducted in that manner, for the sake of truth)—at the close of which examination all doubts respecting the probity of the witness have been dispelled,—it is a moral duty on the part of the judge to do what depends on him towards soothing the irritation sustained by the witness’s mind; to wit, by expressing his own satisfaction respecting the probity of the witness, and the sympathy and regret excited by the irritation he has undergone.

That, in any considerable degree, any such sympathy should in any such station really have been felt, is not reasonably to be expected: any more than, on the part of the hunter, for the agonies of the deer whom he has been running down. But the occasions in judicature are not wanting, in which a sense of decorum, and a usage that has been grounded on it, has commonly the effect of giving birth to demonstrations of that kind. In a case of expectation, by which the sympathetic feelings of the by-standers are understood to be excited, when sentence comes to be pronounced upon a criminal,—along with the naturally and properly predominant expressions of sympathy for the suffering interests of the public, expressions of sympathy for the sufferings of the guilty individual are as naturally and properly intermixed. It is one of the common-places of judicial oratory—of judicial acting, upon the forensic theatre. The addition presents itself as one that would neither be unuseful nor undue, if, to these expressions of sympathy for the individual justly wounded by the hand of law, correspondent demonstrations were as regularly added, having for their object the healing the wounds unjustly inflicted by the hand of the lawyer.*

The subject is manifestly of the number of those which admit not of regulation, in any coercive shape. But the more completely unsusceptible it is of regulation, the more urgent the demand it presents for instruction; which, where regulation is inapplicable, is the sole, nor by any means inefficacious (though to English law almost unknown) resource. The more inapplicable the force of the political sanction is, the greater the need for calling in that of the moral, and applying it to the best advantage. That the strongest checks to misconduct cannot be applied, is surely no reason why the benefit of even the mildest and gentlest should be refused.

The remedy most applicable (and from being so simple it is not the less efficacious,) is publicity.

Against malpractice more directly and obviously adverse to the ends of justice, a remedy applied by the legislature at a very early period of the history of the judicial system, is to be found in the instrument called a bill of exceptions. Whatever, in the judge’s charge to a jury, is regarded as being improper, is, at the instance of the party or his advocate, committed to writing, and the judge, on being called upon, is bound to recognise it; whereupon, in case of appeal, the very words are referred to the cognizance of a superior judicatory.

If, without the formality of an appeal to a legal judicatory, provision were in like manner, in the case here in question, made, for laying the history of the transaction duly authenticated before the moral judicatory of the public,—the abuse would find, in an expedient thus simple, a check too efficient to be consented to by those whose power of inflicting injury on pretence of justice would be thus put under restraint.

In the case of those trials of which, in respect of their importance, it is foreknown or expected that what passes in them, being taken down word for word by short-hand writers, will be printed for general sale; this abuse is exemplified (if at all) in a very inferior degree.

A set of monitory rules (and it would not need to be a voluminous one,) hung up in the form of a table, in characters large enough to be legible to all eyes at once,—a set of rules, prescribing what is proper to be prescribed, forbidding what is proper to be forbidden, respecting the deportment of the several classes of the dramatis personæ on the forensic theatre,—(to be prescribed or forbidden, with or without penalties, according as penalties were applicable or inapplicable)—would, surely, not be an unsuitable article of furniture in a court of justice.

If, in such a table of rules, the practice of brow-beating were noticed (though it were but in the gentlest terms) as a practice to be avoided, it is scarcely possible to doubt that it would be eradicated altogether.

CHAPTER VI.

OF THE NOTATION AND RECORDATION OF TESTIMONY.

§ 1.

Uses of notation and recordation, as applied to orally-delivered testimony.

Of the use and importance of permanence in testimony—of the necessity of writing, as being the sole instrument or efficient cause of permanence—of the nature of minuted testimony, as contradistinguished from ready-written testimony—of the use there may be for each in preference or in addition to the other, and of the advantage possessed by minuted testimony, in the essential points of dispatch, and security against mendacity-serving information and reflection,—enough has been said already.

The operation whereby vivâ voce testimony is converted into minuted testimony, is or may be called notation, minute-taking, recordation of testimony, registration of testimony: is, or may be called; for, somehow or other, though the name of the work thus produced is of frequent occurrence, the like frequency cannot be predicated of the name of the operation by which the work is produced.

Permanence in the testimony is of use,—notation, therefore, considered as an efficient cause of permanence, is of use,—in two very distinguishable ways, and on as many distinguishable occasions;—viz. to the judge, and against the judge.*

To the judge, notation is of use, to enable him,—at all times down to the moment which gives birth to the last word of his decree,—to refresh his memory, and render his view of the testimony on which that decree is to be grounded as correct and complete as the purpose of each moment can require.

Against the judge, for the protection of suitors—for the protection of the interests of truth and justice against any errors (voluntary or involuntary) on the part of the judge,—recordation, and thence notation, are of use, for the purpose of giving correctness and completeness to the opinions and decisions of such persons (if any) by whom, in the character of superordinate judges, the question may come to be re-judged, and his conduct in relation to it judged.

To the class of superordinate judges may be referred, on this occasion, in the first place, official judges—judges to whose lot it may fall to take cognizance of the cause itself in the way of appeal, for the purpose of reviewing, and either confirming or abrogating or altering, the decision so given in the first instance: in the next place, the public at large; who, without any authority to abrogate or modify the decision, will, when thus informed, be not the less competent to sit in judgment on the conduct maintained by the judge in respect of it; rewarding or punishing him, according to their conception of his good or ill deserts,—rewarding him with their esteem, punishing him with their disesteem and displeasure.

Let us recapitulate. Use of notation to the judge,—presenting him at all times with a correct and complete view of the ground on which his decision is to be built. Use of recordation as against the judge, in case of appeal,—presenting to the judge of appeal a view of the same ground, as correct and complete as may be:—as may be; for, unhappily (as will be seen) the view taken by the judge of appeal can never be altogether so correct or complete as that which may have been taken by the judge in the first instance. Use of recordation, with or without appeal,—presenting to the public, in their capacity of judges of the conduct of the judge, a view, as correct and complete as may be, of the same ground.

Between notation and recordation (recordation as applied to evidence) a shade of difference may already have been observed. Recordation implies preservation: notation, not. To the judge, considered by himself, notation expresses all that is of use: against the judge, not notation only, but preservation, recordation, is necessary. No sooner is the decision pronounced, than the notes taken by the judge, or by any one for his use, might be destroyed—destroyed, not only without inconvenience to him, but oftentimes to his no small easement and convenience. But, for the use of a judge of appeal, and of the public in their character of judges of judges, it is necessary that the notes taken be not only taken, but preserved.

Reference being had to the occasion, the use of notation and recordation to the judge admits of diversifications which require to be distinguished.

For divers purposes, the testimony of the same deponent may, at different times, require to be repeatedly brought to view: before the judge below, for confrontation with itself, or for confrontation with other testimony delivered by other deponents—(with itself, for elucidation, for proving or disproving the consistency, and thence the trustworthiness, of the deponent:) before the judge of appeal, for the purpose of the appeal. If, on the appeal, the deponent be re-examined vivâ voce, as in the first instance; the minutes taken at the first trial will serve to confront, or (in case of deperition, or for dispatch on points to which the dispute does not extend) to stand in lieu of re-delivered vivâ voce evidence: and, in the like case, testimony delivered in one suit may be employed with advantage or of necessity in another; sometimes in any number of other causes, on to the end of time.

From this comprehensive enumeration of possible occasions, may be deduced the following list of particular and subordinate uses of the connected operations of notation and recordation:—

1. On the occasion of a different examination or inquiry,—confrontation with the testimony of the same deponent: for example, to prevent backsliding.*

2. Ditto with ditto of other deponents.

3. In the case of the death or non-forthcomingness of the same deponent,—to serve instead of his re-examination vivâ voce.

4. To serve instead of, or in addition to, vivâ voce re-examination, in case of appeal.

5. To serve, on the occasion of future disputes between the same or other parties, for the prevention, or (if that cannot be) for the decision, of other suits.

§ 2.

In what cases should notation and recordation be employed?

Such being the uses of recordation, in what cases shall it be employed?

Were security against misdecision the sole object,—in all cases without distinction: for where is the case in which it may not be productive of such security, in virtue of some one article, in virtue of several articles at once, in the above list of uses?

But, on this occasion as on all others, regard for any one or more will require to be tempered by due regard to the other ends of justice. By security against misdecision, the direct ends of justice are provided for; but, in this case as in all others, the advantages obtainable in this shape are not to be obtained but at the expense of collateral inconvenience, in the shape of delay, vexation, and pecuniary expense.

If, to the taking cognizance of a demand of a quantity of corn to the value of no more than 5s., writing which cannot be had for less than 10s. is, in any court, rendered necessary, it is obvious that for a quantity of corn to that value no man has any security; nor, consequently, for the whole quantity of corn in the whole country, or any part of it, does there exist any adequate security, as far as depends upon that court.

If each parcel, how minute soever, be not secure to a man, neither is the whole: if each grain of corn in his granary be not secure to him, neither is the whole granary: if each might be taken from him without redress, so might every one.

It is in this point of view that causes (suits) will come to be distinguished into two classes: causes recordation-worthy—causes not recordation-worthy. The problem will be, in the instance of each cause, and occasionally in the instance of this or that examination that may come to have place in the course of any given cause, to which of these two classes it shall be referred.

Every cause is recordation-worthy, abstraction made of the delay, vexation, and expense: every cause is recordation-worthy, unless, in so far as some special reason can be shown to the contrary—in so far as a sufficient reason can be shown for regarding the inconvenience in the shape of delay, vexation, and expense, as being preponderant over the advantage of security against misdecision (regard being had to the several eventual causes contained in the above list.)

But though no sort of cause, nor any individual cause, can with propriety be placed on the list of non-recordation-worthy causes without special reason, it follows not that that list must be less numerous than the opposite one. On the contrary, it will probably be found by far the more numerous, whether the natural system, or the technical system, in any of its existing modifications, be considered:—the actual proportion under the system by which malâ fide suits in such multitudes are bred, and bonâ fide suits smothered, or the proportion that would take place in a system under which the encouragement and discouragement were to change places.

The reason is, that, on the one hand, under every system of procedure (actual and possible,)—the quantity of evidence delivered, and the mode of delivering if, being given,—the delay, vexation, and expense attached to the recordation of it (I speak of the mere manual operation of committing it to writing) must be the same. On the other hand; out of the whole number of suits of all sorts that receive their commencement, it is happily to a very small proportion only that any considerable demand for notation and recordation, as a security against misdecision, will apply. In by far the greater number, the necessity of a claim in form of law is produced, not by any ability (real or so much as supposed) on the part of the defendant, to oppose a sufficient defence to it,—but either by reluctance, or absolute inability, to comply with it. And even among the cases which do afford matter for a bonâ fide defence, it will only be in a comparatively small number that the evidence will furnish matter of any such difficulty, or for any such difference of opinion, as to attach any considerable importance to the operation whereby a perpetual existence is given to the words of which the tenor of it is composed.

A line, therefore, must be drawn, somewhere and somehow: but where and how? At first view, the difficulty will be apt to present itself as insuperable: on each side injustice, inevitable injustice: on neither, anything better than a choice of injustice; and that choice a task not for reason but for fortune. Draw the line where you will,—on one side will be an expanse, within which, for want of so efficient a check, the machinations of mala fide suitors, whether plaintiffs or defendants, will take sanctuary, and find themselves in force.

On a closer view, means may perhaps be found, by which the separation may be made with somewhat less disadvantage. The line being drawn, and (for experiment and argument) say, in the first instance, through any point at pleasure,—all above the line will be the group of recordation-worthy causes; below it will be the place for non-recordation-worthy causes. In both instances, for causes recordation-worthy and non-recordation-worthy: but in what sense? how taken? Not individually, but only in specie. In the door left open for admitting into the recorded class individuals belonging primâ facie to the non-recordation-worthy class—in this temperament lies the resource against ultimate and preponderant injustice.

Let the suit (for example) be of a pecuniary nature, and the line drawn on the ground of value: in all causes above £50 value, the evidence to be recorded of course; in all causes where the demand rises not to that value, no such recordation of course. But, on this occasion as on every other, the pretium affectionis is an object to be attended to, and one that will be attended to by every legislator to whom the feelings of individuals (the matter of which the prosperity of the state is composed) is an object of regard. And even when, considered by itself, the subject-matter of the dispute is not susceptible of any such value; as where it consists of a mere sum of money, payable in a number of articles (pieces of money,) in their individual character reterred absolutely to the debtor’s choice; still, a value, beyond the current value of the sum, may be attached, to victory, by the circumstances of the dispute. This considered, let it (for argument’s sake) depend on either party to take the suit out of the lower, the non-recordation-worthy, and place it in the higher, the recordation-worthy, class.

Good: but, by this arrangement, is there the value of a single atom subtracted from the account of delay, vexation, and expense?

No, certainly: to annihilate that mass of inconvenience is not possible: but what is possible, is to place it upon the shoulders of him by whom an extraordinary value is set, or professed to be set, upon the advantage to be purchased at the expense of it. There, then, let it be placed—at any rate in the first instance.

When the nature of the cause comes to be understood (understood in all its circumstances,) it is with the judge that it must test to say on whose shoulders the burthen shall, in the last instance, lie.

Good again: but, the party who has need of the security,—what is to be done if he be unable to defray the expense?

In this extraordinary case, must be suffered to take place,—with that concern and regret which, on every such occasion, a lover of mankind, and of justice for the sake of mankind, can never fail to experience—that which, by the conductors of the technical system, is, without any such emotion, suffered, or rather made, to take place in all ordinary cases:—the indigent man must be left to bear the penalty of his indigence.

Not that he will always be condemned to bear it without hope. The security to be purchased at this price, is a security as against the judge. It is because (on some score or other, intellectual or moral) the disposition of the judge is an object of suspicion, that the party is thus anxious to purchase it. But it can seldom indeed happen to the judge to be the object of suspicion, scarce ever to be the object of well-grounded suspicion, to an individual, without being so on the same account (or at any rate at the same time) to a portion, more or less considerable, of the public. But the expense, which to the individual would be an insuperable bar, will to this committee of the public be but as a straw: and it is only by gross prejudice (inherited perhaps from other and far different times,) or by a spirit of aristocratical oppression, that the principle can be discountenanced which points out the voluntary contributions of the opulent as a desirable fund for occasionally bringing within the reach of injured indigence that necessary of life in which all other necessaries are included.*

That a line, the direction of which should be inflexibly determined by the consideration of the species of the cause, without regard to the individual circumstances of the parties, would, on this occasion as on so many others, be pregnant with injustice,—is a proposition which an example or two will suffice to place in a clear light. Titius inflicts on Sempronius that sort of personal injury, which in respect of physical pain or uneasiness amounting almost to nothing, is frequently on a moral account but the more intolerable. Is Sempronius in point of age a school-boy, or in point of condition of life a day-labourer?—the offence amounts to nothing: the evidence cannot be worth the committing to paper, though it were not to occupy ten lines. Is Sempronius, as well as Titius, a person occupying a certain station in the state? scarce any business can be more serious: volumes upon volumes might not be ill-bestowed upon it. Suppose, by a stretch of imagination, a chancellor and a primate thus engaged: the whole country might ring with it, and continue ringing with it for years.

The question, whether the evidence in a suit is or is not recordation-worthy, depending in so great a degree upon the circumstances of the individual suit,—all that can be done is to give, in the way of sample, an indication of such as are most apt, and of such as are least apt, to afford, by their importance in any shape, an adequate counterpoise to the delay, vexation, and expense.

Examples of suits most apt to be recordation-worthy, are—

1. Among penal causes, all such in which punishment other than pecuniary, or pecuniary punishment to the value of such a number of days’ labour (according to an average of the wages paid for a day’s ordinary labour in husbandry,) is assigned.

2. Among causes not penal, all causes by which any right is claimed, having for its subject-matter any article belonging to the class of immoveables; all causes relative to last wills; and all causes in which condition in life (for example, in respect of marriage and parentage) is concerned.

To the class of causes least apt, to the extent in question, to be recordation-worthy, may be referred (for example) causes relative to debts contracted on any of the ordinary grounds, and causes relative to simple personal injuries. And of the individual causes belonging to these classes are composed no fewer perhaps than nineteen-twentieths of the whole aggregate of causes.

§ 3.

In what manner, and by what hands, should notation be performed?

Considered in respect of the accuracy or fidelity of the result, the process of notation is susceptible of two very distinguishable degrees. What is committed to writing may either be the tenor, the very words of which the testimony was composed, or no more than the supposed purport of it: notation ipsissimis verbis, notation in substance.

The distinction is a very material one. Application, utility, inconvenience,—in all these respects the two modes or species of notation differ from each other.

Notation ipsissimis verbis,—being the more accurate of the two, and that upon a scale extendible ad infinitum, by reason of the infinite degrees of aberration of which the looser mode of notation is susceptible,—is the only one of the two that is completely adapted to all purposes: it is consequently the standard of reference, from which, without special reason (that is, without preponderant inconvenience in the shape of delay, vexation, and expense,) no departure ought ever to be made.* It is the only one of the two that is capable of serving completely as against the judge.

If, however, the judge be the only person for whose use the minutes above taken are intended,—notation in substance (especially it performed by the judge himself, or under his immediate direction,) may answer the purpose as well as, or even better than, notation ipsissimis verbis: better, because, the degree of amplitude being capable of being exactly adjusted to his own exigencies, every part of the matter that in his view of it is irrelevant, or immaterial, and thence superfluous, will of course be left out, and his memory will be exonerated of so much incumbrance.

In the case of recordation ipsissimis verbis: the subject-matter and result of the operation being the very words, and all the words, of the testimony,—much room for direction or discussion respecting the mode of recordation (it will naturally be supposed) can scarce be left.

In respect of the testimony itself, true: but what does require to be mentioned, is, that, without the interrogations, the view given of the testimony by the only part of the matter that in strictness of speech comes under the denomination of the testimony, (viz. by the responses) would be in effect and substance incomplete. To the judge, and for his own use, the responses alone will be sufficient, and much more than sufficient; but as against the judge (the judge below,) and for the use of the judge above (if there be one,) and at any rate of the public, cognizance of the interrogatories is indispensable.

Let the judge have misbehaved himself—and let his misbehaviour have been ever so gross and dishonest,—what remedy does the nature of the case admit of, unless the very words, in the utterance of which the misbehaviour consists, are ascertained and registered?

To this subject applies therefore, of course, what has been said in a former place,† concerning the impropriety of the grammatical change from the first person to the third. As the respondent, so let the interrogator, whatever be his station—party, fellow-witness, advocate, judge—speak for himself: let not the scribe take upon himself to speak for any of them: as from his other works of all sorts, so let every man be judged from his own words. Verba “suas teneant auctores.”*

In the case where the only person for whose use the discourse is destined is the judge—the only case in which the security afforded by recordation in substance is an operation completely adequate,—in this case, the proper mode, and the proper hand, are pointed out by obvious and pretty conclusive considerations:—

1. In this case, the object, and sole object, consulted, is and ought to be the convenience of the judge: and to no other person can it be so well known what suits with that convenience, as to himself.

2. By his own conception of the quantity and quality of the words necessary and sufficient to keep the substance of the testimony in his mind, during the time and for the purpose for which his attention is to be fixed upon it, should the quantity and quality committed to writing be regulated.

3. In him alone rests the power of regulating the pace of the discourse in the mouths of the several interlocutors, in such manner that the time thus employed may be sufficient, and not more than sufficient, to admit of his committing to paper the quantity of writing he finds necessary and sufficient for his purpose.

4. What to the conception of another man would present itself as a correct and complete representation of the substance of the discourse, would seldom present itself in exactly the same character to the conception of the judge.

5. At the pace to which, on pain of no inconsiderable waste of time, the course of the pen must on this occasion be kept up, the handwriting of a third person would seldom, to the eye of the judge, be equally legible with his own; or so much as legible at all, without difficulty and waste of time. Writing on such occasions for his own use, every man naturally has recourse to little modes of abbreviation, more particularly adapted to his own individual practice and habits.

As to the possibility of the judge’s uniting in his own person the commanding function of that office, with the sabaltern and almost mechanical operation of the scribe, one proof of it is afforded by English practice. In trials of all sorts in which a jury bears a part, it is a customary feature, on the occasion of giving a charge (as it is called.)—that is, a speech of direction to the jury,—it is, in the state of most men’s memories, a necessary one: in all instances in which a new trial is liable to be moved for (a fresh inquiry liable to be applied for,) it is an indispensable one.

To a document possessing in so pre-eminent a degree the character of trustworthiness, the sort of regard one would naturally expect to find generally bestowed, at least by the authors themselves, whose works these may in some measure be said to be, is of the most confidential and reverential kind. But he by whom any such persuasion should have been entertained, would not apply it long to practice before he would find the necessity of making great abatements. For the single purpose of constituting an eventual ground for a motion for a new trial, yes: and, in point of time, for and during the space of time allowed for such motion; viz. the four first days of the term following the trial, the renovation of which is thus prayed. But no sooner is this short terminus fatalis expired, than whatever little share of trustworthiness this document may have possessed, is deemed to have expired likewise; it is completely converted into waste paper.

In the course of a prosecution (for perjury, for example), a point which it is become necessary to prove is the testimony that was given by somebody (suppose the defendant in the prosecution for perjury) on the occasion of a former trial. To what source (would any one suppose) is reference made for the tenor or purport of such testimony? To the judge’s notes?—the judge by whom the cause was tried? Not so indeed: on the contrary, to any the most suspected source, rather than this, of all conceivable sources the most trustworthy and unsuspectible. To a note, takes or said to have been taken at the time, by the professional agent of either of the parties,† —nay, to a mere recollection, or supposed recollection, on the part of that or any other in dividual, without so much as a written word to fix it,—there would be no objection: but as to any such document as the minutes made by the judge who tried the cause,—of a reference made to any such source, of the admission of any such evidence, no instance is anywhere to be found.

A mass of evidence which has had for its scribe one knows not what clerk, employed for that purpose in the examiner’s office, is (not only in that cause, but on the occasion of other causes tried by other courts) admitted without scruple. A mass of testimony, from the same witness and to the same effect, collected by one of the twelve judges, in the sunshine of publicity, is a species of evidence too extraordinary to have been so much as thought of.

So much for the case in which the only person, for whose use recordation is designed, is the judge. So far as concerns the other cases that have been mentioned, the question, by what hands? will receive a different answer.

For this purpose, while the faculty of taking minutes should be allowed to any person who pleases, an official scribe, a short-hand writer, ought to be employed:* power being given to either party to employ whatsoever expedients shall be found necessary for securing the completeness as well as correctness of the notes thus taken; and for that purpose, as often as the importance of the matter appears to him to warrant the additional vexation, power to call for the momentary stoppage requisite to be applied to the delivery of evidence.

In the early ages of modern jurisprudence, writing was rare, short-hand writing unexampled. Should the ends of justice take place anywhere of the ends of judicature, this talent would be regarded as an indispensable qualification in a judicial scribe.

§ 4.

Of notation and recordation under English law.

Whatever objection there might be in point of reason to the indiscriminate recordation of the evidence in all causes, none could come with any degree of consistency from the lips of an English lawyer. In causes of a certain class, this security has been inexorably exacted. What are these causes? Precisely the class of causes which, individually taken, are of the least importance,—suits for penalties to the lowest amount (as low as a few shillings,) brought before single justices of peace, out of sessions. And by whom was the obligation imposed? Not by the legislature, but by the Court of King’s Bench: by this section of the twelve great judges, legislating in their own way, in the way of ex post facto law. Parliament, by whom the jurisdiction was given in this large class of cases to these subordinate magistrates, imposed not, in any instance, any such duty: the judges of the Court of King’s Bench took upon them to impose it in every instance. How? By quashing convictions, on pretence of the non-fulfilment of a duty that had never been imposed. The prosecutor was punished—that is, the public was punished—because a justice had not complied with a regulation of the Court of King’s Bench, which that court had no right to make, and had never made.

By the act of contempt thus committed against the legislature, two favourite points were gained by the men of law. 1. They made business for themselves, by bringing into their own court causes of which it was the manifest intention of the legislature not to give them the cognizance; 2. They threw discouragement and discredit upon a rival mode of procedure, which, by its conformity to the ends of justice, was and is a perpetual satire upon their own.

Had the usurpation remained altogether unchecked, society would have been dissolved. The legislature has interfered, but how? Instead of punishing the usurpers, it has stolen back by degrees the authority thus filched from it. For a considerable time past, as often as a new offence has been created by act of parliament (a case that takes place many times over in every session,) and cognizance given of it to these subordinate judges, a form of conviction has been prescribed by the act; and in this form, nothing being said of the evidence, the obligation or setting forth the evidence is virtually dispensed with.

The task thus set to unlearned magistrates was a curious one, satisfaction was, on every occasion, to be given to a set of men who had neither the will nor the power to declare what it was would satisfy them—whose interest it was, never to be satisfied—and whose ideas a man might be sure never to meet, by following the dictates of common sense.

The prefence was, the affording to the defendant a security against misdecision to his prejudice—against the being convicted on insufficient grounds. That this formed any part of the real inducement, let him believe whose faith is strong enough. In the character of a security, the information required was not worth a straw; it was not the minutes, the tenor of the evidence, but whatever account (true or false) the subordinate judge might think fit to give of it. To secure the correctness of this account, no measures either were or could be taken by those who thus took upon them to require it; as they well knew. Correct or incorrect, it remained equally exposed to be tried, and either condemned or acquitted—(condemnation or acquittal would serve equally well)—by rules made hot and hot, at the moment they were wanted: by rules which, to have been known, required to have been communicated; and to have been communicated, required to have been made.

So much for summary procedure: a few words will serve for regular.

In the common-law branch, so far as the evidence is concerned, no recordation takes place—nothing, at least, that goes by that name.

A sort of instrument there is, indeed, called the record; but in this instrument, composed chiefly of lies and nonsense, no notice is taken of the evidence.*

Minutes, indeed, are customarily taken by the professional, the directing, judge: they are called the judge’s notes. But it has been already observed, that of these minutes (a sort of document unknown to the system in its original constitution) little notice is taken, in comparison with what might be expected. When taken (which they are not necessarily nor always,) they are not authenticated by any other signature. They do not profess to contain the tenor of the evidence. What they contain is, what, in the view of the judge who penned them, constituted the general substance of the evidence. The purpose for which they were originally taken, was no other than the private purpose of the judge. It being customary for him to give, for the instruction of the jury, a recapitulatory view of the evidence they had been hearing,—the memoranda he took were subservient to that and no other purpose.

When, about the middle of the seventeenth century, the practice of granting a new trial by a fresh jury, without punishing the former jury, came into use,—the notes of the presiding judge constituted a ready document, the only existing one, and the best that could have existed for that purpose.

Then, however, as to this day, no such document as this was known to the genius of jurisprudence; the supply of it was matter of private accommodation from judge A to judge B. Regularly, then were no grounds to go upon: if judge A had taken no notes, there was no remedy. So long as the lies and nonsense were regularly entered,—whether the truth and sense of the case were regularly entered or no, was a matter of no consequence.

In the minds of the original framers of the system, the demand for recordation (it may be thought) was superseded by the unlimited confidence reposed in the judges taken from the body of the people. Vain thought! In an English jury, corruption of the grossest kind was regarded, and not altogether without reason, as every day’s practice; but, in the age of primeval barbarism,—error, innocent error, on the part of those unlearned judges, was not possible. All twelve together, in a mass, they were consigned to utter ruin. The prosecution having this for its object was called an attaint; and, in those days, prosecutions in the way of attaint seem scarcely to have been less common than motions for new trials now.

A judgment by which twelve judges were to be consigned in the lump to indigence, perpetual imprisonment, and infamy, should have had (one would have thought) some fixed ground made for it. No such thing. What they were punished for was, for deciding otherwise than according to the evidence: but what the evidence had been, was a matter scarce worth thinking about: the functions of the recording scribe extended not to any such minutiæ. Of men capable of writing down what they had been hearing, the state of society afforded no abundance.

When the liberty, entire property, and reputation, of twelve men, were at stake upon the correctness of the conception formed of the evidence,—committing it to writing as it was delivered, was an operation, the benefit of which, in the eyes of a learned judge, was not worth the trouble. When a small number of shillings, the price of a few days’ labour, limited the value of the stake, then it was that the judgment of an unlearned judge, on whom no such duty had been imposed, was to be overthrown, for want of his having performed it.

Under the equity branch of regular procedure, the evidence is committed to writing, every tittle of it, and carefully authenticated with undiscriminating particularity. That which is extracted from the pen of the defendant, comes into the world in the form of ready-written evidence. That which is extracted from an extraneous witness, comes authenticated by the signature of the obscure clerk, who to this important purpose is suffered to exercise the function and power of a judge.

Such is the course in all equity causes, be their importance ever so great, or ever so little: always understood, that, in the eye of English equity, a sum that does not exceed £10 (more than a twelvemonth’s subsistence for an average individual) is of no importance; and that the factitious part of the expense of an English equity cause is sufficient to give high importance to a cause which otherwise would have none.

§ 5.

Of the authentication of minutes.

A written discourse is exhibited, purporting to be the minutes of what passed on the occasion of an examination. Good: but is it really what it purports to be? If given for no more than the substance of what passed, may it be taken for the exact substance? Is it in a sufficient degree a correct and complete representation of the tenor? If given for the tenor,—the words it consists of, are they exactly the same words, and are they the whole of the same words, that on the occasion in question were pronounced?

If the identity required regards the substance only—if, in regard to the person for whose use the notes or minutes are desired, there be but one such person, and he the judge (the judge by whom, after the evidence has been collected by him, the decision grounded on that evidence is to be pronounced)—and if, as is natural, the person by whom the minutes are so taken for the use of the judge be no other than the judge himself,—the business of authentication neither presents, nor is even susceptible of, difficulty. Arrangements for securing the authenticity of the written discourse purporting to contain notes or minutes of the testimony in question, with the interrogatories which called it forth, are superseded by the consideration of the person by whom they have been penned; as, in the case of the testimony itself, the operation of taking minutes of it is superseded by the mode of expression employed when it is delivered in the first instance in the form of ready-written evidence.

When the identity required regards the words themselves—when (as in that case will naturally be the case) the hand by which the minutes are taken is a hand other than that of the judge—when, as in the same case will also be natural, it is as against the judge that the document in question is intended to serve,—it is in this case, and in this alone, that difficulties respecting the securing the authenticity of the minutes are liable to present themselves.

There are two opposite dangers with which the nature of the case is pregnant: 1. In some way or other, it may happen to the minutes to be really wanting, materially wanting, in point of authenticity; 2. Not being in any respect wanting in point of authenticity, it may happen to them to be charged (and here, by the supposition, falsely charged) with being so. And again, the falsity of the charge may either be not accompanied, or accompanied, with mendacity.

This last-mentioned case is far from being an imaginary one. Suppose, on the ground of testimony thus recorded, a malefactor to be condemned to death: if the want of sufficient proof be recognised as a sufficient ground for invalidating the judgment, and in this or that individual case any such deficiency be recognised to have taken place, the malefactor, how well convinced soever of the groundlessness of the charge, cannot reasonably be suspected of any backwardness to avail himself of it.*

Moreover, besides the imputation of failure in point of authenticity or genuineness, it may happen to the sort of instrument here in question (as to an instrument of contract, or any other legally-important instrument) to be charged with want of freedom or fairness. In regard to the testimony, it may be alleged, that—though, in the very terms in question, delivered by the deponent—it would not have been delivered by him, had it not been for some undue inducements (whether of a coercive or an alluring nature) in the shape of undue punishment or undue reward, held out to him, at the very time of the delivery of his testimony, by the judge. I say by the judge: for if by any other person, or if by the judge himself at any prior point of time, the mischief will not be within the reach of the remedial arrangements applicable to the present case.

The dangers thus being brought to view, the next thing to be brought to view is the remedy by which all difficulty in regard to the obviating of these dangers is removed. This is no other than publicity—the grand panacea in the system of procedure.

But (as hath already been seen) cases are not altogether wanting in which the propriety of waiving the benefit of this security may be indicated by particular and preponderant considerations. Accordingly, for these cases at least, such arrangements will require to be provided, as, when employed, may upon occasion shut the door against all such imputed deficiencies as may be liable to be urged by the eagerness or insincerity of any party to whose side of the cause the tendency of the evidence in question may happen to be adverse.

Before the breaking-up of the court, let it be incumbent on the judge,—either at the instance of the deponent, or (if he be an extraneous witness) at the instance of either party,—to afford him the faculty of examining into the correctness of the minutes taken of his deposition: and, having so done, to call upon him, in token of his assent, to annex his signature to a short sentence or phrase expressive of such assent—or, if in any particular he objects to them as incorrect, to state in what respect—suggesting, if he thinks fit, the words (if any) that would have the effect of rendering them correct, in tenor or in purport.

To afford him the faculty of ascertaining the correctness or incorrectness of the minutes, let some such course as the following be pursued:—

1. Let the passage in question be read aloud (either by the judge, or, under his authority by some officer of the court) to the deponent; and with such slowness and such pauses as shall be sufficient to enable him on each occasion to fix upon any word or phrase, and object to it as incorrect.

2. If, for the purpose of enabling himself to obtain a clearer conception of the contents,—being able to read, he signifies a desire to have the paper in his own hands, that he may peruse it more at leisure,—let such liberty be allowed: such precautions being taken, as (in case of his being a person under suspicion of criminal delinquency) may be necessary to prevent his employing such liberty to a bad purpose; for example, vexatious delay,—or the discovery of the contents of any part of the minute to which the testimony of any other co-deponent is consigned,—or tearing or otherwise defacing or destroying the paper of minutes, or any part of its contents.

If, on any such occasion, objecting or not objecting to any part of the minutes as incorrect (viz. in the character of an incorrect expression of the discourse of which it purports to be the minute, viz. the discourse delivered by him at the time,) he gives it to be understood, that, in the character of testimony, the discourse so delivered by him was in any particular incorrect; and prays accordingly that he may be admitted to correct it, viz. by the suggestion of such additions, omissions, or substitutions, as are thereupon uttered by him for that purpose;—in such case, let such his application be complied with: and let the tenor (or at least the substance) of what passes upon that occasion, be entered forthwith upon the paper of minutes, in the same manner as any other part of the evidence.

If he declines writing his signature, on the declared ground of his inability, let it be written for him by some one else; as (for example) by the person by whom the other parts of the minute are penned; and, to the signature so written for him, let him annex his mark: but, if he refuses, or wilfully forbears, as well to make his mark as to write his signature, let mention be made of such refusal or forbearance upon the minutes.

On any such occasion, let it be in the power of the judge to call upon all or any of the persons present to attest by their signatures the correctness of the minute so made: and to such order let them be bound to pay obedience, as to any other order issued by the judge in execution of his office. Provided always that, instead of an affirmance (as above,) every such person shall be at liberty to enter a denial; subject, in case of falsity, to such penalty as is annexed to the offence of judicial falsehood in other cases.*

In Rome-bred law, in general, provision is made for obtaining such evidence, as is deemed sufficient, of the authenticity of the minutes. The deponent is called upon to authenticate them by his signature: if, whether through inability or unwillingness, he fails of so doing, mention of such failure is, in general terms, entered upon the minutes.

By this arrangement, the appearance of authenticity and correctness (authenticity applies to the whole, correctness to any and every part taken by itself) is sure enough to be obtained, but as to the reality, how ineffectually it is provided for is but too manifest. To sign or not to sign—such indeed is the option given him: if he does not sign, mention is made of such failure, or (as in the language of French law it is called) his refusal: but as to any grounds which he may have had, or not had, for such refusal, no light is ever afforded by these minutes. They may have been spurious in the whole, or incorrect in every part; yet, upon the face of them, everything in them may appear as completely regular in this case as in any other.

Along with the deponent, there is, indeed, besides the judge, another person—his official secretary. But, should these two persons (through mendacity, temerity, or even blameless misconception,) agree in a statement in any respect false or erroneous, or the inferior be overawed by the superior into acquiescence; it seems impossible to conceive what remedy the nature of the case can afford. In the case of a person of the clearest character, what weight can the testimony of one non-official person have, capable of overpowering that of two official ones? And if that be the helplessness even of a person clear of all suspicion, what must be the condition of a man whose character stands loaded with the imputation of a first-rate crime?†

How ill soever a man may be disposed to think of the English judges, no man can think worse of them than in this respect they appear to have been thought of by parliament and by one another.

On other occasions, to authenticate an instrument of any sort (a judicial writ, for example) by which the authority of any of the great courts of Westminster Hall is exercised, the signature of any of the judges is regarded as sufficient evidence of his participation in the act: not to speak of the case in which the signature of the chief of the four judges is regarded as sufficient evidence of the participation of all the rest.

It now and then happens, that in the course of a trial before a jury, presided over by one of the twelve judges, some instruction or direction is given by the judge in relation to some point of law—for example, as to the admission or rejection of this or that article of evidence—an instruction by which it has always been customary to the jury to be governed in the pronouncing of their verdict. On the occasion of such direction, at a very early period of juridical history, provision was made by parliament for giving to the party prejudiced by it the faculty of appeal to another court. The instrument by which an appeal on this ground is expressed, is called a bill of exceptions. For this purpose it is necessary, that, if not in tenor, at least in substance, the direction given by the presiding judge should be established. It is curious enough to observe the formalities prescribed on this insulated occasion, on which, for any useful purpose, extraordinary formalities would seem to be particularly unnecessary; and the extraordinary distrust with which all persons concerned (judges among the rest) appear, nor altogether without reason, to have been regarded.

The statute by which this remedy is provided, is a statute of Edward I. To save critical discussion, let us take the account given by Judge Buller. “By Westminster 2,” says he, “13 E. I. c. 31, it is enacted, that, if one impleaded before any of the justices allege an exception, [an expression vague and insignificant enough, but practice has found a sense for it,] praying that the justices will allow it, and if they will not, if he write the exception and require the justices to put their seals to it, the justices shall so do, and if one will not, another shall. And if the king, on complaint made of the justices, cause the record to come before him, and the exception be not in the roll [the apprehension being that the justices, to avoid having their proceedings canvassed, would suppress it,] on showing it written with the seal of the justice, he shall be commanded at a day to confess or deny his seal; and if he cannot deny his seal [effrontery, not improbity, being the quality in respect of which it was thought it might happen to him to be deficient,] they [who?] shall proceed to judge, and allow or disallow, the exception.”* Thus far Buller. They? who? Not certainly the judges thus appealed from, but the person appealed to, viz. the king, that is, the judges of the court of King’s Bench, with the king sitting, or rather not sitting, in the midst of them.

It was on the ground of this statute, that, nothing less having been deemed sufficient to prove that the seal of the judge had not been forged, the first Earl Camden (then Lord Chief-Justice Pratt, chief-justice of the court of Common Pleas,) having set his seal to a bill of exceptions, and “not being able to deny it,” appeared personally and confessed it in the court of King’s Bench, then presided over by the first Lord Mansfield.† Reflection upon reflection here presents itself. What use of a seal, which a judge (if so disposed) might deny to be his? Why not that best of all instruments of authentication, the name written by the person whose name it is; the instrument that, without any such useless locomotion, served even then in so many other cases of superior importance? In the case of an illiterate non-lawyer, yes: but as to lawyers, as to judges (even at this early period) was there ever one instance of a person aggregated to this fraternity at all times distinguished by the epithet of learned, and at the same time unable to write his name?

The real danger was, not that, after having given his attestation to the instrument expressive of his own words, a judge should deny his own hand-writing, or (what came to the same thing) the seal which was so absurdly substituted in the room of it; but that the attestation thus required of the judges should not be given by them, or any one of them. That “one will not,” is the case put, with primitive simplicity, by the statute: but if any one find courage to refuse,—to adopt such refusal requires on the part of any other much less courage: and so on, the probability of a refusal going on in an increasing ratio, till the whole number, viz. four, or five (which at one time was the number,) be exhausted.

“If the judges refuse to sign the bill,” continues Judge Buller, referring in the margin to the Institutes of Lord Coke,* “the party grieved by the denial may have a writ upon the statute, commanding the same to be done, juxta formam statuti; it recites the form of an exception taken and over-ruled, and it follows, vobis præcipimus quod si ita est, tunc sigilla vestra apponatis; and if it be returned [viz. by the judges in question] quod non ita est [an incident natural enough, or it would not have been provided for,] an action will lie for a false return [an action, suppose, against a judge or judges of the King’s Bench; but before whom? Themselves? or their subordinates of the Common Pleas?] and, thereupon, the surmise will be tried, and if found to be so, damages will be given; and upon such a recovery, a peremptory writ commanding the same.” And if the same cause which produced the first mal-practice, should continue its influence, and produce a second, what was to come then? An alias peremptory writ, and then a pluries; and thus, in the form of a legal repetend, pluries upon pluries without end.

That, to a set of lawyers, to whose power this remedy was intended as a check, it might happen not to be very forward in lending their hand to the application of it, was a surmise, neither improbable in itself, nor altogether unsanctioned by experience.

If there was one sort of case, in which, as compared with another, this sort of remedy was particularly needful and important, it would be a penal case, as compared with a non-penal one: and in particular, among penal cases, a capital, in contradistinction to a non-capital, one. “In Sir H. Vane’s case,” continues Buller, “who was indicted for high-treason,” [it was along with the regicides concerned in the murder of Charles I.] the court refused to sign a bill of exceptions.” Refused? why? “Because,” continues Buller, “they said criminal cases were not within the statute, but only actions between party and party.” There the statute is, and throughout the whole of it there is no such absurdity as that of refusing the remedy (such as it is) to the most important class of cases. A man impleaded in a criminal case, is he not “impleaded?” But when a statute was found troublesome, in what instance was it ever an effectual bar to the wishes of an English judge?

Actio personalis moritur cum personâ, says a maxim of English jurisprudence, the design of which (if it had had any) would have been to encourage murders, especially slow and secret ones. Well or ill-grounded, the bill of exceptions being denied, the regicides died: and with them died the “action for a false return,” the “surmise” that should have been “tried,” the “damages” that should have been “given,” and the “peremptory writ” by which “the same” should have been “commanded;” commanded with as much effect as by the non-peremptory one.

The above example may suffice to show that the sorts of cases which, under the system of modern manners, may seem the most unlikely to occur, require not the less to be provided for: and the more effectual the provision made for them, the greater the assurance of their non-occurrence:—and that, on this as on every other occasion that can be named, the provision made by the technical system, constantly adequate to what have been, is wretchedly inadequate to what ought to have been, its purposes.

On another occasion, a bill of exceptions had been tendered by a man who was indicted for a trespass. A trespass, though not so great a crime, is in English jurisprudence as much a crime as murder: indictment is the mode of prosecution employed in the one case as in the other. No such exceptions had at this time been discovered in the statute, as the judges in Vane’s case found it convenient to dream of: but the trespasser was not a regicide. It was after this decision, and in the teeth of the warning given by it, that the dispatchers of regicides dreamt their dream.

CHAPTER VII.

THAT THE EVIDENCE SHOULD BE COLLECTED BY THE SAME PERSON BY WHOM THE DECISION IS TO BE PRONOUNCED.

One person to receive, and help to extract, the testimony—another person to decide upon it. Any such division of labour,—ought it to be made? No, surely: unless in cases (if any such there be) where the union which it cuts asunder is either physically, or (in respect of delay, vexation, or expense) prudentially, impracticable.

To what one of all the ends of justice can it ever be subservient? What one of them all is there that is not counteracted by it?

On which side, and in what way, can it in any conceivable case tend to prevent misdecision on the ground of the evidence?—misdecision to the prejudice of the plaintiff’s, or to the prejudice of the defendant’s, side?

Death, incurable infirmity of mind or body, a motion from the office or from the spot,—in each of these we see an event that may at any time intervene to render the function of decision physically impracticable to him by whom, in the function of receipt and extraction, a progress of any length, from commencement down to termination, has been made. Has any such irremediable impediment taken place? Either ultimate non-decision, with the consequent injustice to the plaintiff’s side, must be the result, or a decision (if pronounced) must be the work of another judge.

Infirmity of mind or body, to appearance not incurable, but (as in respect of future duration, all such indisposition is) of uncertain promise,—time of vacation (if any) to be allowed to the judge, for the pursuit of his personal health, business, or amusements:—in what cases shall these temporary causes of cessation be allowed to have the effect of transferring the business from the hands of one to those of another judge? Topics these of particular detail, the solution of which, depending in no inconsiderable degree upon circumstances of a local and temporary nature, will hardly be looked for here.

The subject of inquiry here is,—where no natural impediments stand in the way of the finishing of the cause by the same hands in which it took its commencement, the deciding upon the evidence by the same person by whom it was collected,—shall the two functions be consigned to two different persons?

From the severance, no advantage can be seen to result in any shape: no advantage (understand) with reference to the ends of justice; how abundant soever (of which presently) the advantage with reference to the actual ends of judicature.

Disadvantages may, on the other hand, be seen in abundance.

1. Loss of the benefit of that most instructive species of circumstantial evidence, which is afforded by deportment: concerning which, see the book on Circumstantial Evidence.*

It is not in every suit, that, from deportment, any instructive indication can be derived. True: in every individual suit, not: but in every imaginable species of suit, yes.

2. Danger of incorrectness and incompleteness on the part of the written minutes, in the character of representations of the testimony orally delivered. In this respect, the infirmity of the evidence is of the nature of that which is essential to hearsay evidence.†

Hence, danger of deception and consequent misdecision: hence, in other words, disadvantage with reference to the direct ends of justice.

3. By this division, writing, minutation and recordation (as will be seen farther on,) is necessitated: necessitated, as well in such causes as are not recordation-worthy, as in those that are so.‡

Hence, inconvenience in the shape of delay, vexation, and expense: disadvantage with reference to the collateral ends of justice.

To the reasons which thus plead against the severance, no just reasons in favour of it can be opposed.

In vain would it be said, To a head which is competent to collect the evidence, it may happen not to be competent to the framing of the decision which is to be grounded on it.

1. It is with a view to whatsoever decision may be proper to be grounded on the evidence, that the collection of the evidence ought to be performed: without such view, it will not be appositely performed. Decision is the end; collection of the evidence on which that decision is to be grounded, is the means: the head that is not adequate to the end, is not adequate to the means.

2. In the process of collection, the whole body of the evidence will necessarily have passed under the review of the judge (for such he is) by whom it has been collected. In the course of this process, it can scarcely happen (supposing, as is the most common case, the whole of it thus collected at once, and by the same judicatory) but that an opinion in relation to it, i. e. in relation to its probative force in regard to the fact in question, must have been formed. But, the opinion formed, the decision follows of course; and it requires but a minute or two, and a word or a line or two, to pronounce it. The decision pronounced; if all parties are satisfied with it, there ends the cause: if on either side a party is dissatisfied with it, then, and then only, is appeal of any use. The ulterior judicatory is thus charged with the suit, in those instances alone (but in all such instances) in which, in the judgment of those to whom it properly belongs to judge, it can be of use.

At whose instance should any such transference be made?

1. At the instance of the collecting judge? This is what has been called remitter. For declining to pronounce a decision, what can be the pretence? Knows he not how? Is his judgment unable to satisfy itself? Let him at any rate try whether he cannot satisfy the parties. Better decide by cross and pile, than not decide: if the parties are satisfied with the decision, everything is as it should be: if either be dissatisfied, the worst that can happen is, the doing for that good reason, what, in the other case, it is proposed to do without reason.

2. At the instance of a superior judge? This is what is called evocation: but still evocation without reason. Whether in any and what cases evocation can be grounded on sufficient reason, is a question that belongs not to this place. Is it to put an end to delay?—at any rate, the delay, the ill-grounded delay, ought to have been proved, and (if this be the only ground) an option given for the removal of it by decision pronounced within the time.

3. At the instance of a party? This is what is called appeal. But, before a party prefers an appeal, let him stay till a ground is made for it: before he complains of the decision, let him stay till he knows what it is. And what must the malcontent party say in this case? Stop, pronounce not your decision, for fear lest, when I hear it, it should not be agreeable to me.

When, however, judicature cannot be performed in the best mode, it follows not that it ought not to be performed in any inferior mode: judicature must be badly performed indeed, if denial of justice be preferable to it.

1. A case that will sometimes happen, is, that the whole of the evidence is to be sought for at the hands of one or more proposed respondents (whether parties or extraneous witnesses,) of whom no one, to the purpose of forthcomingness in order to testification, is subject, in point of fact, to the power of the judicatory by which the decision is to be framed.

In the case of expatriation, this bar may have been opposed by the insuperable nature of things: in the case of exprovinciation, by the shortsightedness or negligence of the legislative branch of government.

2. Another case that may happen, is,—part of the necessary evidence is thus forthcoming; another part, not.

3. In either of the above cases, it may happen, that the securing the requisite forthcomingness is an operation which, though not physically, is prudentially, impracticable: not practicable without preponderant inconvenience in the shape of delay, vexation, and expense.

4. Another case that sometimes happens, is this: A mass of evidence, which, at any distance of time, was collected for the purpose of another cause,—whether on the occasion of the same or a different demand,—between the same parties, between parties altogether different, or between parties in one or more instances the same, in others different,—may contain in it matter applicable to the suit in hand: of the witnesses in question, the forthcomingness being at present either physically or prudentially impracticable.

Whether it he more conducive to the ends of justice, that evidence in this inferior shape be, or that it be not, admitted, will depend upon the class of the cause, and the side on which the admission is applied for: whether the cause be of the non-penal or of the penal class: whether the side on which the admission is called for be the plaintiff’s or the defendant’s side. But for such details this is no fit place.

When the judicatory by which the decision grounded on the evidence is framed, is different in any respect from the judicatory by which the evidence was collected, the difference may be complete, or partial: complete, if the deciding judicatory does not contain any one member who was a member of the collecting judicatory; partial, if it does contain one or more.

If the separation be thus complete, the mischief of it stands exactly upon the footing above represented. If the deciding judicatory contains in it one or more persons who were members of the collecting judicature (say, for example, one,) the mischief stands upon a footing somewhat different:—1. The benefit of deportment evidence is not so completely lost. There sits the collecting judge, by whom some account, such as he pleases, may be given of it to the rest. 2. The danger of incorrectness and incompleteness on the part of the minutes is not quite so great. There sits the collecting judge, who, in answer to any doubts or inquiries that may be started on that head, may give any such elucidations—make any such confessions—as it is agreeable to him to make.

The mischiefs of severance are thus in some indeterminate and ever-varying degree diminished, but far indeed from being removed.

In this case, we see a judicatory composed of a number of members, one of whom is perfectly, the others but imperfectly, competent to the purpose of the decision, in the formation of which they bear each of them an equal part.

Supposing them all equally instructed,—all, except one, are (if what has been endeavoured to be shown elsewhere* be just) much worse than useless: still more, if all above one are comparatively uninstructed. Do the rest suffer themselves to be governed by that one? A decision which in fact had but one author, enjoys (in the event of its being erroneous) so many other apparent co-authors, to compose a screen for the error, and save it from the merited censure.—Do the rest disagree with that one? Here, then, is a number of judges comparatively ill instructed, opposing themselves, and with success, to the only one who is, comparatively, well instructed.

In the French and other continental editions of the procedure of the Roman school, the mischief of the severance has commonly this palliative. In the several English editions of that procedure, viz. those used in the equity courts, the ecclesiastical courts, and the admiralty courts, it has no such palliative. In the Scotch editions, it is for the most part, though not completely, without the palliative. In the principal and highest judicatory by which the decision on the evidence is framed and pronounced, it may happen, and now and then (but rarely) has happened, that some one among the fifteen judges, in the character of Lord Ordinary on oaths and witnesses, had in charge, and (if so) singly in charge, the collection of it.

In this instance, as in every other, the cause of whatever is amiss in judicial procedure may, by every eye that can endure the light, be seen in the opposition between the ends of judicature and the ends of justice. Love of power, ease, profit,—all these persuasive considerations concurred in pleading for the severance.

1. It is by decision—an act of the will—that power is exercised. Previous inquiry—receiving and collecting evidence—hearing arguments on both sides—and supporting the decision by reasons,—all these acts of the understanding are not additions to the power, but clogs upon the exercise of it.

To decide, is an operation that does not necessarily require more time than it is agreeable to the decider to bestow upon it. The performance of those other operations—of those exercises of the understanding,—and in such manner as not to expose a man to disrepute,—requires, for the purpose of each decision, an expense of time any number of times greater than what is necessary for the formation and utterance of the decision itself.

If the extent and quantity of the power in question be measured by the number of decisions pronounced within a given space of time (say a year,)—a hundred, a thousand, any number of times the power may be exercised within the year by the judge who is unshackled, that can be exercised by one who is shackled, with those clogs. And, where the importance of the case is given, this is the fair and proper measure.

2. Witnesses are persons of all castes: and as the great majority of the people are of a low and ignorant caste, they constitute in proportion bad company with relation to the judge. In the advocates on both sides, by whom the comments on the evidence when collected—no matter by whom or how—are delivered, the judge beholds so many brethren, and these brethren learned ones; men of the same caste, superior to all other men, inferior only to himself; in every respect the very pleasantest of company.

Ease, accommodation, convenience (whatever word be the most convenient and agreeable,) are thus, along with power, promoted and augmented by the severance.

3. Where, on the evidence collected by one man or set of men, a decision is to be pronounced by another, writing is an operation not merely of use but of necessity. In the early ages of jurisprudence, writing was an art, the exercise of which was too rare not to be well remunerated: the art even by itself; much more when found in conjunction with the still rarer science of jurisprudence. The greater the expenditure in the article of art and science, the greater the receipt necessary in the article of profit—pecuniary profit—to balance the account.

Profit thus added its influence to those of power and ease.

Whatever part of the business could be turned over to subordinates, those subordinates would take care to be paid for: and the fee paid to the subordinate would be in addition to the fee paid to the principal. Hence, so much patronage in præsenti: and patronage in præsenti becomes, in some shape or other, profit in futurum, if it suits the inclinations and situation of the patron to apply it to that use.

Besides being so much more favourable to his interest, this arrangement was much more directly and certainly in the power of the judge, than the only one that would have been well adapted to the interests of the suitors and the ends of justice. Subordinates could be employed by his own authority: co-ordinates could not be obtained but by the authority of his superiors. The quantity and quality of the business turned over to the subordinate, might be adapted to the convenience of the superior: the quantity and quality of the business done by a co-ordinate would not be thus obsequious.

For illustration, look to the English Court of Chancery.

In the beginning, when causes were comparatively few, the Chancellor,—this new sort of judge, to whom a commission had been given to judge secundum æquum et bonum, (it being but too manifest how widely the rules pursued by the established judges differed from this character,)—this new-made judge proceeded (as any man would naturally proceed in his place)—proceeded as the inferior judges called justices of the peace proceed at this day. He heard the evidence, and then he decided upon it. The evidence on which he was about to decide, he heard with his own ears.

It could not be long before business of this judicial kind would crowd upon him in a much greater quantity than his other business, of which he had no inconsiderable quantity, would allow him time for. What was to be done? Of a co-ordinate, a rival in office, a sharer in the dignity, power, and emoluments attached to it, it was not natural that he should be desirous; nor, had he even been desirous, could he have been sure of obtaining of the king any such coadjutor; at any rate, without such solicitations as it suited not to him to make. From the first, he had of necessity (were it only for the mere mechanical, the writing, part of his business) a number of clerks under his orders; the number of these clerks soon rose to twelve. In process of time, these clerks, not being yet enough, contrived to have other clerks under them: the original sort of clerk became distinguished by the name of Masters. As the writings accumulated,—many of which, if not all, were for some reason or other to be preserved, and for the purpose of occasional consultation, to be put and kept in some sort of order,—this charge, a charge of no small trust, was committed to one of those clerks, who thus became distinguished from and above the rest. In those days, paper had not been invented, or at least was not in common use: parchment was the only substance to which the characters, which written discourse is composed of, was applied: the art of bookbinding was little in use: economy suggested, as the most convenient mode of adding sheet to sheet, and in such successive quantities as came to be required by successive incidents, the tacking them together in such manner that the whole length might be wound up together in the form of spiral rolls. The clerk, in whose keeping these rolls were, was thus distinguished by the name of the clerk of the rolls. When clerks became masters, the clerk of the rolls became Master of the Rolls.

Of the business committed to the Chancellor, such business as was least pleasant to him to do himself, he turned over, of course, to these his clerks. In some instances, entire causes,—decision, as well as collection of evidence. But in general it came to be felt that decision was a more pleasant operation than inquiry: decision has more of power in it—inquiry more labour: inquiry takes up more time, and creates a greater demand for patience. The business of collecting the evidence thus fell into the hands of the twelve master clerks: but more particularly of the head one amongst them, the clerk of the rolls.

The evidence thus collected, was collected by the clerks: but the Chancellor, by whom a decision was to be grounded on it,—how was the purport of it to be presented to his knowledge? The surest channel was the tenor: but that required it to be committed to writing. So much the better: on the account of the suitors, in respect of security against misdecision, for obvious reasons: on the account of this great officer, and these his subordinates, for other reasons not less obvious. Writing is labour:—but the labourer is worthy of his hire: and the labourer acted under the orders of one, in whose hands were vested the easiest and surest means of exacting from his employer, the suitor, whatever it should be thought prudent to demand, on the score of hire.

On interlocutory points, the power of decision, provisional decision, subject of course to appeal to the principal judge (the only judge recognised in that character,) came thus, little by little, to be exercised by all these clerks. Even on definitive points, the like power, though always subject to appeal, came by degrees to be exercised by the chief clerk, or the Master of the Rolls.

Of the whole business of procedure, the part that afforded most trouble, and by assignment had been made to afford additional profit, was that which consists in the collection of the oral part of the evidence: This portion of the business had overflowed (we have seen how, and at how early a period,) from the hands of the Chancellor, into the hands of his head clerk or official servant: the same causes continuing to operate, made it necessarily overflow into still lower and lower channels. The clerk, now become master, of the rolls, turned it over to his “servants.” Servants, not so much as distinguished by the name of clerks, were deemed good enough for this laborious part of the business: what sort of servants (pages, footmen, grooms, or stable-boys) is not said.

These servants kicked it down to servants or deputies of their own.

From page, or foot-boy, or whatever else happened to be his original occupation, the servant rose into a clerk,—the examining-clerk,—the examiner. The examiner has long been rich enough to be above his business: he keeps a deputy, and the deputy acts by his clerks, all for the good of the public, not forgetting the master of the rolls. All these offices have their value: to all of them the nomination is in the master of the rolls: whatever may be the rational cause, the historical cause is at any rate sufficiently apparent.

The king’s turnspit used to be a Member of Parliament:* the clerk of the deputy of a servant of a clerk of the keeper of one of the king’s seals, is still a Judge.

CHAPTER VIII.

FIVE MODES OF INTERROGATION COMPARED.

Putting together the three considerations—of the form of the intercourse, the quality of the interrogator, and the publicity or unpublicity of the process,—we have five modes of interrogation, all of them in use; viz.

1. Interrogation in the oral mode, per partes, publicè, coram judice; the mode pursued under natural procedure and jury trial.

2. Interrogation oral, per judicem, sine partibus, secretò; as under Roman procedure in general.

3. Interrogation oral, per judicem, sine partibus, publicè; as in English procedure, on the occasion of the preliminary examinations taken by justices of the peace.

4. Interrogation oral, per judices à partibus electos; i. e. by commissioners named, one or more on each side; as under the English edition of the Roman school, viz. in the equity courts, in some cases.

5. Interrogation in the epistolary mode.

Compared with each other, what are the advantages and disadvantages attached to these several modes?

The appositeness and importance of the question are sufficiently manifest: but the solution of it belongs not altogether to the head of evidence. Yet in this place the view of the subject would be apt to appear imperfect, if these several modes of obtaining, or professing to aim at obtaining, the same result, were to be left altogether unconfronted and uncompared.

Follows a parallel of the oral mode of collection, and the epistolary, compared with one another: the oral being viewed in the first instance without any reference to any of those distinctions above noticed; and both together being considered with reference to the secondary qualities above noticed as desirable in a mass of evidence, in the character of efficient causes of the primary qualities of correctness and completeness.

1. In respect of particularity and interrogatedness, the two modes of collection are exactly upon a par. In either way, the process of interrogation is alike capable of being employed; in either way, by means of that operation, the quality of particularity is capable of being, in an equal degree of perfection, given to the mass of evidence.

Take days, or weeks, or months, or years enough,—you may, in the way of written correspondence, render the testimony of the deponent as particular, perhaps, as you would have rendered it in the course of a few minutes by vivâ voce examination in the presence of the judge.

2. So in respect of permanence: provided that, in the case of orally-delivered testimony, the operation of writing be employed (as it always may be) to give fixity to the discourse as it issues from the deponent’s lips.

3. In respect of the faculty of obstructing mendacious invention (viz. by the promptitude with which interrogations and responses succeed one another without prejudice to the faculty of receiving, upon occasion, from without, such interrogations as may be subservient to honest recollection;) the advantage is all on the side of the oral mode.

In the epistolary mode, it is not only impossible to oppose to a design of mendacious invention those obstacles which, in virtue of the promptitude of response required, and the symptoms of evil consciousness so apt to be betrayed by deportment, stand opposed to it of course in the oral mode;—but in the very form of the epistolary mode there is a circumstance which, in spite of the exertions of an adverse, or even favourably partial, interrogator, gives aid to invention on the part of a malâ fide and mendacious respondent. In the epistolary mode, the questions not coming out singly, nor consequently arising out of the answers, but the whole string of them being displayed at once; hence by the nature of the questien it may every now and then happen, that, to a mendaciously-disposed respondent, information, though in an oblique and unintended way, shall be communicated; information, the effect of which may be to aid him in the accomplishment of such his dishonest purpose.*

The advantage is thus on the side of the mendacious respondent. On the other hand, the correspondent and opposite disadvantage presses upon his interrogator. For the purposes of justice, the respondent, when mendacious, cannot know too little; his interrogator cannot know too much. Here we see what, for the purposes of justice, for the correctness and completeness of the evidence, is, on the part of the mode of interrogation employed, desirable. Now let us observe what, in the case of the epistolary mode, contrasted with the oral, virtually has place. In the oral mode, whatsoever be the question addressed to the proposed respondent, whatever questions are intended to come after it remain concealed from him: in the epistolary mode, they are all disclosed to him at once. To the interrogator in the oral mode, on the occasion of each question, all the answers that have been made in compliance with preceding questions are revealed: in the epistolary mode, all the answers that will be given to such antecedent questions, are unrevealed, and undiscoverable.

Physically speaking, what indeed is not altogether impossible, is, that, for the collection of evidence in the epistolary mode, the correspondence shall be so conducted that no more than one interrogation shall be transmitted at a time: just as games at chess have been known to be carried on, each move being announced by a letter written for the purpose.

In this way, the unwilling assistance liable to be lent by an interrogator to a mendacious respondent, would indeed be kept back: and thus far, in the instance of the epistolary mode, its subserviency to the direct ends of justice would be upon a par with that of the oral.

Accordingly, in the only case in which, in English practice, the epistolary mode of interrogation has place (viz. the string of interrogations addressed to a defendant—to a defendant alone, not to a plaintiff or an extraneous witnesss—in a court of equity,) the correspondent point of policy is naturally and frequently observed by the professional scribe: in the first edition of the instrument, a part more or less considerable of the string of interrogations proposed to be eventually emitted (together with the correspondent averments that have so unnecessarily been made requisite,) is kept back—purposely kept back—till it be seen what answers are given to the first flight; kept back, and reserved for a second edition, which, under the name of the amended bill, commonly succeeds the first.

But, besides that in respect of promptitude of response, and the obstruction in that way given to a plan of mendacious responsion, the epistolary mode would even thus remain inferior to the oral,—it is easy to see at how vast an expense of inconvenience, in the shape of delay, vexation, and expense, this diminution of disadvantage, in respect of danger of deception and consequent misdecision, is purchased.*

4. Recollectedness. This quality (to any degree beyond that which common conversation admits of, but which, even for the judicial purpose in question, will in ordinary cases be sufficient) is, by the supposition, out of the question: the very arrangements above brought to view as necessary to the perfection of the vivâ voce mode, have for their object the exclusion of it.

It is in this article that we see one of the advantages peculiar to the written mode: it is on this account that, as often as extraordinary cases (cases not comprehended in the description of the ordinary cases above spoken of) present themselves, it may become necessary to have recourse, in due time, to the written mode. But of this hereafter.

5. Remains the quality of distinctness, in regard to which the advantage is in some respects on the side of the epistolary, in others on the side of the oral, mode.

Where the epistolary mode is the mode employed, a respondent who (being in malâ fide) takes for his object the withholding and misrepresenting of the truth so far as it can be endeavoured at with safety, takes of course for his principal means the expedient of indistinctness—as not exposing him in the first instance to those perils to which he would be exposed by disprovable mendacity or pertinacious silence. Either of these courses would be evidently the result of a vicious state of the will; indistinctness, and to any degree, is not altogether incapable of being the result of an infirm state of the understanding: he therefore heaps together words upon words, throwing the whole matter into the completest state of disorder possible, for the chance of propagating a correspondent state of confusion in the conception of the adversary whom he has to deal with, and thus finally saving from observation and detection as large a proportion as possible of his misrepresentation and reticence, over and above the certain advantage of the delay thus fabricated. In a word, evasion is the safest resource of all whose purpose is to conceal the truth, and indistinctness is the quality which his discourse receives from the attempt.

Where the collection is performed in the epistolary mode, there are no bounds to the quantity of nebulous matter thus capable of being raised.

The matter of writing, accessible in an unlimited quantity, is to the dishonest party or the mendaciously-disposed witness, what the forest is to the fox—what the ocean is to the fish. Complain of indistinctness in the first effusion, he increases it in the second: complain of the remedy, he adds to the disease; and so on without end. Will alone is necessary. Stupidity and acuteness are both but too fully competent—both almost equally competent, to the task. A man goes through with it, even without assistance—without that assistance which appropriate learning is so competent and so ready to afford. He goes through with it, even without such assistance; though, with the assistance, he will go through with it (whether with better effect and success, or no) with more fluency, more copiousness, and less shame. The labyrinth increases, and increases without end. Could you find your way through it, distinguish the parts of it, and find names for them, you would be able to point out the mala fides lurking in it, and the indications by which it is betrayed. But the difficulty is to find your way through it: for, as to parts, form, or figure, it has none: a chaos, like a point, has no parts.

Turn now to vivâ voce examination, and observe how all such clouds—all such labyrinths, vanish before it. The power of interrogation, considered as an instrument of distinctness, has been already mentioned: it resides almost exclusively in the vivâ voce mode. After the apposite interrogation, indistinctness in the answers becomes tantamount to irrelevance. Irrelevance is, in that situation, seen to be equivalent to silence. Silence, in the same circumstances, is seen to be equivalent to confession: on the part of a plaintiff or defendant under examination, to confession of want of merits; on the part of an extraneous witness, to mendacity, or that wilful suppression which is equivalent to it; and betrays what it strives to cover up from view.

On the other hand, in the oral mode, browbeating, a species of mal-practice to which on the part of the interrogator that mode stands exposed, and from which the epistolary mode is altogether secure, is but too apt to operate as a cause of indistinctness; and in the instance, not of the malâ fide, but of the bonâ fide, respondent. Clothed in authority derived from the authority, and in symbolic robes analogous to the robes, of the judge,—the hireling advocate, observing in an honest witness a deponent whose testimony promises to be adverse, assumes terrific tones and deportment, and, pretending to find dishonesty on the part of the witness, strives to give his testimony the appearance of it: suppressing thus one part of what he would have had to say, and rendering what he does say,—in part, through indistinctness, unconceived, or misconceived—in part, through apparent confusion and hesitation, unbelieved.

I say the bonâ fide witness: for, in the case of a witness who by an adverse interrogator is really looked upon as dishonest, this is not the proper course, nor is it taken with him. For bringing to light the falsehood of a witness really believed to be mendacious, the more suitable, or rather the only suitable, course, is to forbear to express the suspicion he has inspired. Supposing his tale clear of suspicion, he runs on his course with fluency, till he is entangled in some irretrievable contradiction, at variance either with other parts of his own story, or with facts notorious in themselves, or established by proofs from other sources.

This cause of indistinctness is no inefficient one: but it inheres not, as in the case of epistolary interrogation, in the very essence of the mode. It originates in abuse: and that abuse, howsoever interwoven and intrenched in the general mass of abuse, has been shown in a former chapter not to be in its own nature unsusceptible of correction.

Compare now with each other the four modifications of the oral mode.

On the occasion of the comparative view given of the two modes, the oral and the epistolary, it was from the first-mentioned of the three modifications of the oral mode—interrogation per partes, publicè, coram judice—that the conception of those qualities was taken: because it is in that case that the advantages resulting from these qualities are capable of being made to exist in the greatest perfection. If either of the two other modes be substituted,—in that case, in the degree at least in which these qualities should be expected to be found existing, a considerable abatement will require to be made.

Answers instanter—questions propounded singly—questions arising out of the answers—and the operation performed under the eye, as well as authority of the judge,—these were mentioned as so many sub-securities for correctness and completeness, securities exclusively attached to the oral mode.* To all the several modifications of the oral mode here in question, these several peculiar securities apply, but in all of them with different force: in all of them the faculty of making use of those securities exists, but in no one of the three last can any zeal equal to what may be looked for with confidence in the instance of the first, be expected to animate the exercise of it.

When, for instance, the judge is split into two parts—the collecting part and the deciding part,—the collecting part is always of inferior mould to the deciding: the judge, to whom both originally belonged, reserving to himself (as above noticed) the more palatable function, and turning over the labouring oar to the rib detached by himself from his own substance. By the superior, the deciding judge, all the attention which the public eye has to bestow is engrossed: for his subordinate, the collecting judge, whose bench is in a dark closet, no part of it is reserved. The public not thinking about him, he thinks as little about the public: the public not thinking anything about him, his official superior thinks about him as little: the underling does accordingly as he pleases. By bringing Truth out of her well, he has no more to get, in any shape, than by leaving her there; by attempting to draw her out, he would lose labour: he lets her lie where she is. If he is paid by salary—paid thus for his whole time—he makes short work, the shortest that he can with safety: if, being paid by fees, he is paid in proportion to the time, he makes long work—as long as he can contrive to make it.

1. When it is by the judge ad hoc, by this subordinate functionary, that the testimony is collected, the mode employed is in effect neither oral altogether, nor epistolary altogether, but something between both: another reason why the sub-securities promised by the oral are not employed in equal force nor in equal degree by this degenerate mode. The promptitude with which the answers are made to follow upon the questions in the dark closet, may or may not be equal to that with which they come out in the open judicatory. The questions may be, and probably (forasmuch as they ought to be) generally are, administered singly; but it is only in a very uncertain and intermitting stream that the questions can be made to issue out of the answers. To constitute the necessary fund of information and direction to this essentially careless judge, a string of interrogatories is always drawn up and prepared by the professional agents of the parties. But within the path marked out by this string, the operations of the judge are confined: so that if from the respondent on any occasion an answer happens to come out which has not been foreseen by the party (that is, not by the party, but by his professional draughtsman, who himself never has any personal communication with the party,) and which, not having been foreseen by the party or the draughtsman, cannot have had a correspondent interrogatory deduced from it by the draughtsman; the benefit deducible in that shape from the oral mode, is, by this contrivance for making business and breeding lawyers’ profit, lost.

Thus it is, that, in the factitious gloom of this dark closet, mendacity finds naturally a safe hiding-place. In daylight, there is a known and efficient process for dragging it out, but the operation is not compatible with a string of pre-determined interrogatories. That they may not be capable of being provided against by the mendacious respondent, these interrogatories must always be, in the obvious sense, irrelevant: relevant to the general purpose of proving mendacity, by self-contradiction or opposition to known truths; irrelevant, with relation to the particular fact in question. Defendant Susanna committed adultery with a man in that garden, said the two mendacious Elders. Under what tree? said defendant’s counsel, Daniel. Being examined apart,—Under a mastic tree, answered the one: Under a holme tree, answered the other. Under what tree it was committed, or whether under any, supposing it was committed, was nothing to the purpose: nor, had a string of interrogatories been to be drawn up by Susanna’s counsel, was it much to be expected that by the draughtsman the circumstance of the tree should have been thought of, nor consequently that anything should have been said about it in the interrogatories. Had even the first answer been foreseen, and an apposite interrogatory grounded on it, the foresight would hardly have extended so far as the second; if the second, still less likely so far as a third; and so on.

Paid, whether by salary or by fees, a judge: not nominated and employed by either party, would certainly not—and even though nominated and employed by a party, probably not—hold himself warranted in going out of his string to act the part of Daniel, as above mentioned.

2. Let a judge, or a couple of judges, be named for the business on each side—named of course in that case, and paid by the parties. Paid by salary they cannot be: if paid by fees, paid by the piece they cannot easily be, because it is not easy to foresee what quantity of time will be necessary. Paid by the day, time enough will be taken for the business: but as to the employment given to the time, that will depend upon their own convenience. Being considered as judges, and not as agents for the parties, none of that zeal which is so fluently displayed by avowed agents will be displayed: but in the construction put by them on those rules of impartial justice, for which the regard will on both sides be equal and inexorable, it will be convenient for them to run into disagreements; and, being in station as well as in number equal,—equals all, and without a superior,—the length of the disagreement will naturally, and without any kind of contest, adjust itself, with more or less correctness, to the estimated depth of the plaintiff’s or defendant’s purse.

With a tribunal thus composed, publicity is not absolutely incompatible: publicity, that is, so far as consists in the liberty to strangers of being present if they please. But,—in the case of a judicatory so composed, and especially of a set of judges thus by a tacit engagement pledged to one another that on each day as little shall be done as possible; that the affluence of strangers should be considerable, even in a case of the first importance and of the most attractive complexion, is very far from probable.

Collection by judges named on both sides by the parties, is a sort of middle course between the natural mode of collection, and the pure Roman mode, as performed in his dark closet by an underling of the deciding judge. Taking for its ground the pure Roman mode, it may be considered as a sort of amendment of that mode,—a palliation of the disorder of which it is composed.

Uniting to the character of the judge that of the advocate; attention to the interests of their respective employers, though subordinate to the study of collecting plunder on both sides by made business, will not on the part of these nominees of the parties be so completely deficient, as on the part of the nominee of the deciding judge.

The effect, therefore, of the amendment, is to render the procedure somewhat more subservient to the direct ends of justice, though at the expense of the collateral ends of justice. On the part of the aggregate mass of evidence, the chance of correctness and completeness is somewhat increased; but the mass of collateral inconvenience, in the shape of delay, vexation, and expense, is still more certainly increased.

The advantageousness of it increases therefore in the joint ratio of the importance of the cause and the opulence of the parties. But as the individuals who are altogether unable to support the increase of expense are more numerous than those who are capable of supporting it, the mischief seems upon the whole to be preponderant over the advantage.

3. Collection, when performed by the judge alone, but in public, is, though in appearance widely, in effect not very considerably, different (at least in the instances in which it is in use) from interrogation also in public by the parties or their agents, under the eye as well as authority of the judge.

Of this mode, a well-known exemplification may be seen in the preliminary examinations taken under the English system in the most frequently exemplified species of criminal offences, by single justices of the peace.

In appearance, the function of the judge goes not in these cases beyond that of the evidence-collecting-judge, as above described: but in effect that of the deciding judge is united to it. On the decision of the magistrate it depends, on these occasions, whether the proposed respondent shall or shall not be committed to prison;—shall or shall not be subjected to eventual forthcomingness and ulterior justiciability by being held to bail.

Moreover, to the functions, character, and name of judge, the magistrate unites in effect, though not in name, the functions of advocate for one of the parties concerned; viz. the public: and acting at the same time (in the metropolis at least) under the discipline of the public eye, the care which he takes naturally of the interests of the public will in general not be very decidedly inferior (so far as it is conducive to the ends of justice that it should be equal) to the care which is taken by the advocate of the interests of his client.

They are, it is true, in the habit of betraying the interests of their client the public, and counteracting the direct ends of justice, by the warning which it is customary for them to give to the defendant, not to say anything that shall be capable of operating to his prejudice; thereby authorizing and encouraging him to keep his testimony incomplete, depriving justice of the best and safest species of evidence it can have.

But, of the acts of immorality committed in this shape, the cause is to be found in the example set by, and even coercion apprehended from, their learned superiors, and the vulgar errors and prejudices that have in that example found their source. Nor, on this occasion, is the force of example so uniformly prevalent, as not to be occasionally surmounted by the united powers of common honesty and common sense. But of this more at large, in the Book which has for its subject the system of exclusionary rules, by the force of which, to so prodigious an extent, the light of truth has been shut out from the theatre of law, and the door opened to triumphant wickedness and injustice.

CHAPTER IX.

EPISTOLARY MODE OF INTERROGATION, IN WHAT CASES APPLICABLE.

§ 1.

Reasons for employing the epistolary mode of interrogation in certain cases.

That the oral mode may be applied without the epistolary, and this (unless in particular cases) without any prejudice to correctness or completeness, is manifest enough.

The epistolary mode,—shall it in any case, and what cases, be employed without the oral, in such sort, as that, for the formation of a decision, testimony thus extracted shall of itself be capable of being taken for a sufficient ground?

One objection presents itself in limine. This mode of receiving evidence, being in so high a degree and in so many points interior to the vivâ voce mode, ought not to be employed instead of it, but for special reasons.

These reasons will be found reducible to two heads:—1. Impracticability; 2. Preponderant collateral inconvenience: meaning by collateral inconvenience, here as elsewhere, the aggregate of delay, vexation, and expense.

Impracticability—absolute physical impracticability, will of course be admitted as a reason, without further discussion, supposing the existence of a case in which it takes place: but this is a supposition that will seldom, if at all, be verified. A case that at first sight might be apt to present itself as belonging to this head, would, on examination, be probably found to amount to no more than a high and manifestly preponderant mass of collateral inconvenience. The matter in dispute is the value of a day’s labour; and, to give the cause the benefit of vivâ voce examination instead of written examination, it would be necessary to fetch a man from the antipodes. This, in common parlance, might well pass for a case of impracticability; whereas, in strictness, supposing the full power of government seriously employed in the overcoming of the difficulty, the objection amounts to no more than the indication of a manifestly preponderant mass of delay, vexation, and expense.

One case, however, of utter impracticability, may at any rate be found; and it is this:—The residence of the defendant is in a foreign country—a country which, by the nature of its system of procedure, is disabled from affording the necessary power; or by possibility is, on the particular occasion in question, induced to refuse it. Powers for causing the defendant to be examined vivâ voce by the judge of the court within the jurisdiction of which he has his residence, do not exist, or are suspended. In this case, the vivâ voce mode being precluded, the receipt or extraction of his testimony must, if at all, be performed in the way of written correspondence. The former may be impracticable, and at the same time the latter practicable without difficulty. Though, with relation to the court in quâ the defendant be not only absent, but absent with a full determination of never being present,—means of effective jurisdiction may be possessed by it in abundance: an estate in land, a valuable office exercised by deputy, debts due to him and capable of being sequestered, may serve for examples. A paper containing the interrogatories is dispatched to the defendant, at his foreign residence. The plaintiff has at that same place a correspondent, to whom it goes in the first instance, by the common conveyance (say the letter post;) and the correspondent, having himself delivered it to the defendant in person, or left it at his house, writes to this effect to the court; the plaintiff deposing to the authenticity of the letter, and to his persuasion of the truth of its contents, and being in other respects responsible for the truth of it. Silence on the part of the defendant so served (as the phrase is) with notice, would in this case form as reasonable a ground for decision in favour of the plaintiff (at least for a provisional one,) as if the place of delivery had been within the jurisdiction of the Court.

Prudential impracticability is another word for preponderant inconvenience.

The case of sickness excepted, and (in very particular cases) the inconvenience that might result from disturbing public functionaries of different classes in the exercise of their respective functions,—the only remaining cause of inconvenience consists in mutual distance of abode. Supposing all persons whose simultaneous presence is requisite at the seat of judicature,—supposing parties and witnesses, all of them,—to have, for the time in question, their abodes within a short distance of the seat of judicature; then, and in that case, no inconvenience results from the proposed ordinary mode of testification, viz. deposition vivâ voce. Suppose the abode of any one of them distant by a certain space from that of the rest, then comes the inconvenience. If,—the abodes of the plaintiff and the defendant being at any given distance from one another, and the defendant’s abode being within the convenient distance of the seat of judicature,—the plaintiff, having occasion to examine the defendant, is willing (for the benefit of performing the examination in the best and most trustworthy mode) to bear the trouble and expense of conveying himself for that purpose,—the defendant can have no reasonable cause of objection; and so far all inconvenience and all difficulty are removed. But if he is not willing so to do, or if parties and witnesses are dispersed, according to any one of a great variety of changes that might be rung upon the possible modes of dispersion,—then comes the inconvenience; and then the option between the inconvenience produced, according to the nature of the cause, by the less trustworthy mode of examination and deposition, on the one hand; and the inconvenience consisting of the delay, expense, and other vexation, resulting from the requisite modes of exprovinciation or expatriation necessary to complete the judicial meeting, on the other. All these several points would require to be settled by apposite provisions of law, grounded on the consideration of the importance of the respective classes of causes, modified by the local and other idiosyncratic circumstances of each political state. But the adjustment of these points belongs neither to the present book nor to the present work, but to the subject of procedure.*

Of this less trustworthy mode of examination and deposition, the only use (it is to be observed) is, to save the personal inconvenience, which, in case of dispersion of abode (as above explained,) is liable to attach upon the more trustworthy mode. In proportion as the mass of the examination is more complicated, the inconvenience attaching (as above) upon the less trustworthy mode increases: and as the precise degree of complication may not always be to be determined beforehand, it may sometimes happen that, in the instance of a cause commenced (and that with propriety) in the way of written correspondence, it may at last be necessary to have recourse to examination or deposition vivâ voce. If the complication appear to have for its cause the misconduct of any one of the correspondents (viz. either in the way of criminal consciousness or temerity;) in such case, the obligation of being subjected after all to deplacement, for the purpose of vivâ voce examination or deposition at a tribunal convenient to some other party or witness, and inconvenient to himself, will operate in the character of a punishment, and the apprehension of it in the character of a preventive.

In the way of legislative provision, the adjustment of these details, in subordination to a sort of compound end, compounded of the direct and collateral ends of judicial procedure, will be matter of considerable nicety:—it will require considerable detail in any country, and considerable variation according to the different circumstances of different countries. In the existing systems, this part of the business of judicature presents, in comparison, little difficulty: why? because the ends of justice are little regarded; the course of procedure having been originally chalked out in some barbarous age, and governed by principles extraneous to the ends of justice. Untied in no case, the knot is cut, sometimes in one way, sometimes in another. In one place, or in one sort of cause, examination and deposition by written correspondence is unknown, and the vivâ voce mode is exclusively practised, at whatever inconvenience; in another place, or in another sort of cause, the converse takes place: very frequently, where distance and dispersion are considerable, the party in the right is left altogether without redress, the main ends of justice being sacrificed altogether, without necessity and yet without regret, to the collateral ends.

Nowhere has the established system of procedure been grounded on any distinct and comprehensive view of the mutually conflicting and difficulty-reconcilable ends of justice: everywhere have the foundations of it been laid at a period antecedent to the establishment of transmarine colonies and other distant dependencies: everywhere at a period prior to the institution, or at least to the present improved state, of the public establishments for the facilitation of written correspondence.

No case so complicated, but that provision must be made for it. By neglect, the mischief of unavoidable complication will not be lessened, much less removed, but aggravated. Happily, the cases of greatest complication, though generically they make the greatest figure, are individually much the least frequently exemplified.†

§ 2.

The cases particularized.

The proposed deponent being in circumstances in which preliminary interrogation vivâ voce (understand coram judice) is physically or prudentially impracticable,—shall deposition ex scripto, accompanied by interrogation in the same form, be admitted in the first instance?

Case I. Proposed respondent, the defendant.

Place the proposed deponent in the station of a party; and in the first instance in that of defendant.*

The option may here without danger be given to the plaintiff. Suppose the plaintiff in bona fides, the advantage of a personal discussion with the defendant, in the presence of the judge, is too palpable to be foregone. But, by the supposition, this advantage is not obtainable: the residence of the defendant is under the dominion of a foreign government, and where no such conference is to be had. In such case, the option of the plaintiff lies between justice on those comparatively disadvantageous terms, or no justice at all. Between this extraordinary mode, and the ordinary mode by confrontation coram judice, the difference is altogether to the advantage of the defendant.

In this case, two obvious duties present themselves to the judge; at least, on the supposition that the residence of the plaintiff is within the geographical limits of his jurisdiction.

The plaintiff making his appearance in court, the judge receives his spontaneous testimony, interposing such questions as appear requisite for the correction and completion of it.

If, on this occasion, the assistance of a professional advocate† be admitted, in this case the testimony may as well be previously digested in the form of a ready-written deposition, annexed to the instrument of demand, of which it presents the grounds. But in this case, as in the other, the personal appearance of the plaintiff, and his personal interrogation by the judge, are securities not to be dispensed with.

2. If the judge, on hearing the case thus stated on one side, thinks fit to subject the proposed defendant to the obligation of standing in that character, and putting in an answer in consequence,—then comes the drawing up the tenor of the instrument of interrogation. If there be no advocate, this will be work for the judge, and may be performed on the spot: if there be an advocate, it will be work for the advocate. But at any rate, carrying with it the authority of the judge, it must have the fiat of the judge; and for the same reason, his should be the person in which it speaks.

Another option that in this case may be left to the discretion of the plaintiff, is,—where the case happens to afford extraneous testimony on his side,—whether to collect it or no: and, when collected, whether to communicate it or no to the defendant, in such manner as that it may reach his cognizance before his answer to the instrument of interrogation has passed out of his hands. If any part of such extraneous testimony runs counter to the testimony contained in his instrument of response, it may perhaps be necessary that he should receive communication of it, and have an opportunity of replying to it, and making observations on it, before a decision is pronounced to his prejudice. But as to the seeing any extraneous evidence, before his own is delivered in the first instance,—this (as already explained) is a sort of information, which to a mendaciously-disposed witness may be eminently subservient, but which to a veracious witness can scarcely be of use.

Another point to be left to the discretion of the judge, may be, whether, on the ground of the plaintiff’s testimony thus scrutinized, (supported or unsupported by extraneous evidence,) provisional arrangements shall or shall not be taken for securing the forthcomingness of the subject-matter in dispute, and preserving it against irreparable damage: the whole, on condition of the plaintiff’s giving adequate security for eventual restitutio ad integrum.

Case II. Proposed respondent, the plaintiff.

Let us now suppose the respondent to be the plaintiff in the cause: he having obtained the judge’s fiat for the interrogation of the defendant, as above.

In this state of things, the plaintiff stands upon ground very different from that of the defendant. Against the defendant, the disadvantageous mode of proceeding, the interrogation ex scripto, has been embraced by the plaintiff—embraced by him under the pressure of necessity, the defendant being out of the way of being reached by any other mode. But the plaintiff himself (by the supposition) the person of the plaintiff himself, is within the reach of the judge—of the very judge by whose authority, at the instance of him the plaintiff, and on the ground of his vivâ voce deposition, the instrument of interrogation was just addressed to the defendant. Without sufficient assurance of his eventual forthcomingness for the purpose of justiciability (vivâ voce interrogability included,) the fiat of the judge will not have been given. Two modes of interrogation accordingly present themselves for the option of the defendant: 1. Interrogation ex scripto, interrogation in the same mode in which he himself has been interrogated; 2. Interrogation vivâ voce, by the mouth of an agent, non-professional or professional, appointed by him for that purpose.

That he should embrace the makeshift mode, when the ordinary and more advantageous mode is open to him, will be seen not to be in the natural and ordinary course of things: the rather, when it is considered, that, even after the vivâ voce interrogation, the scriptural mode (if in the judgment of his proxy the delay given by it should appear necessary to the purpose of allowing the plaintiff respondent any such time as may be necessary for recollection), will still be open to him.

Case III. Proposed respondent, an extraneous witness.

In the case of an extraneous witness, the propriety of admitting this mode of interrogation stands upon very different grounds.

Suppose, indeed, bona fides, and absolute impartiality—this mode will (in this as in other cases) be not merely equal, but preferable, to the vivâ voce mode: but (except in the case of official evidence* ) to ground arrangements upon any such presumption would be sufficient to lay all rights whatsoever at the mercy of dishonest plaintiffs or defendants supported by mendacious witnesses. A security which is good only against bona fides, is good only in the case in which it is least wanted,—which affords the least demand for it.

Witnesses being at every man’s choice, so it be their choice to appear in that character,—and witnesses who, in the case of mendacity, have by the supposition nothing to fear from the power of the judge; a man who should propose to himself a plan of conquest to be carried into effect by the power of the law, would have the whole world to range in, in quest of false witnesses. The only caution necessary in this case would be, not to set a witness to speak in the character of a percipient witness to a transaction, the scene of which lay in a place at which it were notoriously impossible he should have been present at that moment of time.

A merchant in London, with the assistance of two or three correspondents in Paris, ready to depose ex scripto in the character of extraneous witnesses, might prove false debts to any amount upon any number of persons in London. A person in Paris, with the assistance of two or three persons in London, might prove false debts to any amount upon any number of persons in Paris.

Perilous as this state of things would be to the interests of truth and justice,—is not a state of things still more perilous (it may be asked) actually exemplified in England, and in every day’s practice? On the occasion of the sort of suit called a petition in a matter of bankruptcy, are not debts to any amount proved by a still less trustworthy species of evidence, by ready-written affidavits—by depositions ex scripto, altogether exempt from the check of adverse interrogation?

Yes: and had the matter rested upon the wisdom and probity of the unprofessional framers of this branch of jurisprudential law, the mischief would long ago have been felt in its full force; and, on this as on so many other occasions, society, if preserved (as of course it would have been) from perdition, would have been indebted for its preservation to the interposition of the legislature. But, against a danger which (unless for the purpose of giving extension and increase to it) has never been thought of, a barrier has all along been opposed by an arrangement which, in this point of view, seems to have been as little thought of. An affidavit to be made use of in a court in which the Lord Chancellor presides, must have been sworn to, either at an office in the district of the metropolis, or (if out of that district) before some person having a standing commission from the Chancellor for administering oaths on occasions of that description. The only sort of person to whom commissions of this sort are usually granted, is an attorney, whose residence is in some part or other of that part of the united kingdom called England. And thus, and thus only, it happens, that testimony, delivered in so enimently untrustworthy a shape, can seldom issue but from a person ultimately amenable (viz. by a prosecution as for perjury) to English judicature.

But where it happens that, after having on an occasion of this sort sworn to an affidavit, a person disposed by character to lend himself to a scheme of depredation finds soon afterwards occasion to quit the country,—or meets with an employer who makes it worth his while, after rendering a service of this sort, to quit the country on purpose,—the accidental barrier above mentioned yields, it is evident, no opposition to the scheme: and the mischief above mentioned as attached to the proposed arrangement, hangs in full force over the existing state of things.

By these observations, it will probably have been made sufficiently apparent, what certain and extensive ruin might be the consequence, if it were made obligatory upon the judge to regulate his decision by testimony thus circumstanced. On the other hand,—when the symptoms of untrustworthiness attached to evidence of this description are once pointed out, and placed in full daylight, there seems not any sufficient reason why, on the mere score of security against deception, a peremptory exclusion should be put, in this case, any more than in anyother, upon any information that can bear the name of evidence.

Frequent as mendacity is, it is not yet quite so frequent, let us hope, as truth: and if this proposition be not the reverse of true, how unfavourable to the interests of truth and justice a peremptory exclusion put upon this sort of evidence would be, seems sufficiently manifest.

Instances will not unfrequently present themselves (especially among persons in the mercantile line) in which a person altogether and for ever out of the reach and power of the court may, in the character of an extraneous witness, possess in equal degree the confidence of both parties. An instance still more frequent will be, that, after a witness thus circumstanced has delivered his testimony, the party to whose disadvantage it operates will not only in his own mind give credit to it,—but, when with judicial solemnity called upon to say whether he does or does not, will by general probity of character, or at least by the sentiment of shame, be deterred from answering in the negative.

On this footing stands the danger to the interests of truth, in the case where the side on which the proposed species of evidence is proposed to be adduced, is the plaintiff’s side. Placed on the opposite side, the danger, in other respects the same, will be apt to present itself, at least to a first glance, as not rising to equal magnitude. In the character of plaintiff,—give to a person disposed to depredation a full assurance of success,—the number of such predatory enterprises that will of course be engaged in, is plainly infinite. But the number of defendants, it may be added, is limited by the number of plaintiffs: which being the case, the number of defences, of malâ fide defences, constructed upon the ground of the species of fraud in question, can never exceed, nor so much as equal, the number of bonâ fide demands.

On a more attentive consideration, the primâ facie inequality, though perhaps it will not vanish altogether, will, however, lose much of its magnitude. Various and many are the cases in which the station of defendant and that of plaintiff will present themselves as being equally capable of being occupied in the prosecution of a plan of dishonest enterprise looking to mendacity for its support. At one time, the power of the judge will present itself to the adventurer as an instrument sine quâ non for putting him in possession of the object of his concupiscence: and then it is, that the side he possesses himself of is the plaintiff’s side. At another time, either force or fraud in some other shape will present itself as the more eligible resource:—in this case he will put himself in possession of the object without any help from the judicial power, trusting to his plan of testimonial mendacity for the continuance of the advantage: and then it is, that having so done, he will stand at his ease, ready to act in the station of defendant, should the time arrive.

§ 3.

Should testimony extracted by epistolary interrogation be deemed of itself sufficient to ground a decision?

In this case, the party against whom it is most natural that the testimony should operate, stands deprived of the use of counter-interrogation applied in its most searching and efficacious mode.

That testimony extracted in this inferior mode should be admitted, even when there is no possibility of its being encountered by testimony extracted in the superior and more searching mode from the same source, is what has already been observed.

If admitted, in circumstances where, physically or prudentially speaking, the encountering it with testimony extracted from the same source in the more searching mode is not practicable,—shall it be regarded as sufficient to ground a decision on that side, when and although unsupported by testimony extracted in that best mode from any other source?

The proper answer will, in both instances, depend upon the importance of the suit: and of importance the most prominent criterion (though, without ulterior distinction, by no means a determinate one) is the distinction indicated by the words penal and civil, in the sense in which civil is used as synonymous to non-penal.

There are some cases in which the possibility of a decision grounded on such evidence, if to the prejudice of the defendant’s side, might be productive of such a degree of alarm as it might be found eligible to obviate. Such are—

1. Criminal causes in general, of that class which, the offence not striking against any one individual more than another, would naturally have government itself for its prosecutor, by the instrumentality of some public officer appointed for that purpose. Offences against the authority of the government—offences against justice (and not affecting individuals)—offences against the revenue—may serve as examples.

2. Even in the case of those offences which, though striking in the first instance only against a determinate individual, are (in consideration of the magnitude of the mischief with which they are pregnant) marked out as objects for punishment, in addition to the burthen of satisfaction—the mischief of misdecision, in case of injustice, to the defendant’s side, may still appear too formidable to justify the leaving men exposed to suffer punishment on the ground of such untrustworthy evidence.

Even in any the most trifling class of cases, supposing the decision of the judge bound by the evidence (or, though not so bound, supposing him not sufficiently upon his guard,) the mischief that might be done by the testimony of expatriated and unjusticiable witnesses might be boundless.

But (as will be shown in its proper place* ) it is contrary to justice, that, by a mass of evidence of any description or to any amount, decision should in any case be forced; and, as to the judge’s being upon his guard against weak evidence, it is no more than what he ought to be in every case: and evidence of a complexion beyond comparison weaker than this ever can be, is under every system received without scruple and without inconvenience.†

Of the heap of blind and mischievous exclusionary rules, which in every system of procedure are set in array against justice, one mishief is,—that testimony to such a degree deserving of confidence, that the party against whom it would operate would, through consciousness of its trustworthiness, be ashamed to declare any distrust, is nevertheless, on his application (or even without his application,) by the wayward zeal of the judge, set aside. Such would be the consequence, if the impracticability of subjecting the testimony of the witness to the test of counter-interrogation in the oral mode were established in the character of a peremptory bar to the reception of it.

§ 4.

Epistolary interrogation should not shut the door upon subsequent examination vivâ voce.

A person deposing (whether spontaneously or ex interrogato) in the way of written correspondence—ought he to remain liable, at the discretion of the judge, to be examined vivâ voce?

He ought.—Reason: That, while deposing under this less close scrutiny, his testimony may be the more effectually confined within the pale of truth, by the prospect of being subjected, upon occasion, to the still closer scrutiny.

This prospect may be expected to have upon the mind an effect not much inferior to the thing itself. The inconveniences, the consideration of which gave birth, in the character of a final cause, to the substitution of the less efficient security for truth to the more efficient, are in so far avoided; at the same time that the advantage looked for from the more efficient security, may frequently, in a considerable degree, be obtained.‡

The employing in the first instance the less trustworthy and efficient, but at the same time less dilatory, vexatious, and expensive, mode of scrutiny, is a sort of experiment, the object of which is to save the quantity of inconvenience which, in the shape of delay, vexation, and expense, would, under the circumstances of the case (circumstanced as the persons concerned are, with relation to each other, in respect of local distance,) be inseparable from the employment of the more trustworthy mode. Does the experiment fail? then, unless the more trustworthy mode be employed in dernier resort, misdecision, failure of justice, or positive injustice, must be the consequence.

The mischief of the failure of justice, or positive injustice, being given,—the comparative eligibility, as between one mode and another, depends upon the magnitude of the collateral inconvenience. But if, on the occasion of the investigation, an act of mendacity, an act of perjury, comes to have been committed,—here comes a fresh offence, the impunity of which (were the offence to prove successful) would be to be added to the original injustice. A mass of collateral inconvenience, which would not have been worth producing for the sake of rectifying the original injustice, may now be worth incurring, when, in addition to the redressing of the original injustice, comes the benefit to be reaped from the punishment of the incidental crime. Were even the mode of examination by written correspondence out of the question,—to fetch a man from a place at the distance of a month’s journey, to decide a dispute relative to the value of a week’s labour, would hardly be worth the while. But the account of profit and loss wears a very different face, when, to the rendering of justice in the original dispute, comes to be added the benefit of stripping of its nefarious profit so mischievous a crime as perjury.

The door ought not to be shut against the employment (when needful) of both modes, alternately and repeatedly, in any order.

Reason, as above: As a necessary security against incorrectness or incompleteness, and thence against misdecision, in certain cases.

To the demand which, in some cases, will present itself for the repeated examination of the same person, and even in a certain sense to the same facts, there are no uniform and certain limits.

The demand which, after vivâ voce examination, may present itself for ready-written deposition, has already been brought to view. But there is no sort of writing—no sort of written testimony, to which it may not happen to require explanation, and that (as already observed) ultimately by word of mouth: which is as much as to say, by vivâ voce examination: and in this case (as well as so many others which frequently occur,) to the sort of alternation and repetition here in question there are evidently no certain limits.

1. The testimony of Primus has been received. Comes Secundus, and gives a testimony which seems difficulty, if at all, reconcilable with that of Primus: for explanation, it seems necessary that Primus be re-examined. By confrontation, the doubt might have been cleared up; the two conflicting testimonies reconciled, or the truth of one of them, and the falsity of the other, established. But, by the supposition, such confrontation,—that is, the appearance of both in the presence of each other and of the judge,—is either physically or prudentially (as yet at least) impracticable.

2. Primus and Secundus have or have not been confronted as above. But, since that time, Tertius, another witness, with or without an article of written evidence or an article of real evidence in his possession, has been discovered. Hence demand for explanation—further demand for examination at the hands of Primus, and perhaps of Secundus.

To the chain of these contingencies there is evidently no determinate assignable end.

Observation. In respect of the possible length of delay, vexation, and expense, the prospect just given may be apt at first sight to appear formidable. But, whatever it be, it is produced by the nature of things; and, whatever it be, it requires to be provided for. It is produced by the nature of things, and not by any particular system of procedure; much less by the natural system, in contradistinction to the technical,—the technical, by which such an enormous load of factitious and unnatural complication has everywhere been produced.

To whomsoever else the view may present itself as formidable,—to the eye of an English lawyer there is nothing in it, which, with anything like consistency, he can find any pretence for being startled at. Twice, three times, four times over, under his system, we shall see the testimony of the same individual received to the same facts; and this not on account of any particular demand that there is for it, any demand presented by the particular nature of the case, but because (without regard to the demand) such has been the practice in this or that sort of suits, of which the plaintiff sometimes has not the choice. In one individual instance out of ten, this reiteration may perhaps have its use (viz. as a security against misdecision:) it is accordingly employed in the other nine, in which it is useless, and where delay, vexation, and expense, are the fruit, and the only fruit, of it.

§ 5.

Incongruities of English law in regard to the application of epistolary interrogation.

As to the form of testimony, we have seen that which, wherever practicable, viz. as well prudentially as physically, is the most eligible; viz. the vivâ voce form, subject to cross-examination, and fixed by writing as it issues. We have seen at the same time, that, in this form, cases are not wanting in which, either in the physical or the prudential sense, it is not practicable: the impracticability being, in either case, either temporary or definitive, as the case may be. In the case where, in either sense, the obtainment of the best species of testimony is impracticable,—and in such case, whether the bar be but temporary or perpetual,—it is necessary to recur to another, which of course ought to be the next best mode. Lastly, we have seen what is this next best mode; viz. examination in writing, or delivery in writing subject to examination in writing, in the way of written correspondence.

Another thing that either has been observed already, or (if not) will naturally be assented to as soon as mentioned, is, that in the justmentioned scale of eligibility no variation can be produced by any variation in the relative quality of the examinee—by any relation it can have happened to him to bear to the cause; whether, for example, that of an extraneous witness, or that of a party (whether plaintiff or defendant) in the suit. Setting aside the associations produced by habit—the prejudices which never fail to grow out of existing institutions,—what could appear more capricious or absurd than to say, In the case where the deponent is a party, the examination (if any) shall be performed in the way of written correspondence; and this although he be close at hand, ready to be examined vivâ voce;—in the case where the examinee is an extraneous witness, he shall never be examined in the way of written correspondence. If provision has been made by law for the examining him in the vivâ voce way, so be it; if not, he never shall be examined at all!

This absurdity—this inconsistency—this source of palpable injustice, is on the list of those absurdities, inconsistencies, and sources of injustice, which never cease to be contemplated with such imperturbable complacency by English judges.

In common-law procedure, in cases not penal, no party (on which side soever of the cause he stands) can depose or be examined in either mode. In equity procedure, the plaintiff cannot, in either mode: the defendant may be, and indeed cannot but be, in one mode; but it cannot be any other than the ready-written mode. To perform such examination is the function of the bill, as it is called—the instrument with which the suit commences.

You have agreed with Fundarius for a piece of land, which he was to sell or let to you; but it was with an agent of his, and not the principal, that the business was all along transacted, except from the report made to him by his agent, the principal knows nothing of the matter. What says equity to this?—English equity? The principal, who knows nothing about the matter,—him it forces you to examine in the first instance; the agent, who knows everything,—him, in the first instance, it does not suffer you to examine.

Not that, in the case of an extraneous witness, deposition in the ready-written form is uniformly prohibited. On the contrary, it is in most abundant use. In use—but upon what terms? Upon these terms, viz. that the test and security of cross-examination be not applied to it. So this check to incompleteness, incorrectness, temerity, and mendacity, be but out of the way, judges (English judges) are never tired of hearing it: among pecuniary causes, those of the highest importance are every day decided upon this unscrutinized evidence and no other.

Let it not be thought that, in the reception given to this species of evidence, prudential impracticability—inconvenience to any amount in the shape of delay, vexation, and expense—has had any the smallest influence. The witness may be actually in court under their eye; if it be a case for affidavit work, they are better taught than to hear him open his lips upon the subject, much more so than to put a question to him, or suffer a question to be put to him by anybody else. Practice forbids it—forbids it in those regions where reason is a pigmy, practice a Colossus. Be the man who he may, be he where he may, the examining him cannot (it is evident,) unless by factitious institution, be clogged by any greater mass of expense, vexation, and delay, in the case of his being an extraneous witness, than in the case of his being a party to the cause.

The inferior, the less trustworthy, mode, is admitted; but on condition that nothing be done by which its untrustworthiness may be mitigated:—admitted, and that to the exclusion of the mode universally acknowledged to be the most trustworthy; and in cases where the excess of expense, vexation, and delay, is on the side of the least trustworthy mode.*

For illustration’s sake, apply to vivâ voce deposition this exemption from adverse scrutiny, and observe the consequences. In the sunshine of a trial by jury, or in the darkness of an examiner’s office, suppose an extraneous witness produced to tell his story, and telling it accordingly—no man living being allowed to put a single question to him—neither the examining clerk at the office, the invoking party, the adverse party, nor the judge at the trial;—the absurdity being without a precedent, or nearly so, in English law, the imagination of an English lawyer starts at it.—Instead of being delivered vivâ voce, let a testimony from the same person and to the same effect be delivered ready-written, i. e. in the form of an affidavit; the case is now reversed. The imagination of the sage is now no less grievously shocked by the idea of putting any such questions, than before it was by the idea of not putting them. By precedent, reason is turned into absurdity, absurdity into reason—vice into virtue, virtue into vice.

CHAPTER X.

EPISTOLARY MODE OF INTERROGATION, HOW TO APPLY IT TO THE BEST ADVANTAGE.

§ 1.

Rules to be observed, what?

As between the oral, or say colloquial, mode of interrogation, and the epistolary,—the epistolary, being unsusceptible of some of the securities with which (under the name of sub-securities) the oral mode has been seen to be provided,† is not the most eligible. But (as hath been seen) there are cases in which the oral alone is not sufficient; others, in which it is not capable of being applied.

The epistolary mode being therefore a mode of extraction not to be dispensed with,—remains the problem, how to apply it to the best advantage.

To apply it to the best advantage, is to apply the best remedies which the nature of the case admits of, to the disorders to which both modes are exposed, but the epistolary in a manner peculiar to itself.

The remedies are these—

1. Let not the deponent speak otherwise than in the first person,—I did or saw so and so: exactly as when interrogated in the colloquial mode: not in the third person,—defendant did or saw so and so; as, under the technical system, has become the general practice. Deposition never but in the first person.

2. Let both discourses, that of the interrogator, and that of the proposed respondent, stand divided into parts, uncompounded, short, and numbered: the interrogatories, that the responses may be thus short and manageable; and the responses, even in cases where, the statement or narrative drawn forth by a single interrogatory being long and complex, the interrogatory admits not of any correspondent comminution. In the instruments on all sides, the paragraphs short and numbered.

§ 2.

First rule—That the deponent speak always in the first person.

The first of these rules is so obvious, that it would have been unnecessary to make mention of it, but for the frequency of the contrary practice—a practice, the absurdity of which is too flagrant to be covered by anything but custom; that veil, by which no absurdity, nor any improbity, is too flagrant to be masked.

To no honest purpose was a man ever made or suffered to speak in the third person, in the way of testification. On his examination before a jury, conceive a witness speaking in the third person, in a manner in which, when a pen is put into his hand, he is forced to speak by lawyers—speaking of himself as if he were one beside himself,—what a burst of scorn and laughter among those same lawyers! He would be treated as if he were one beside himself in another sense.

Thus simple is this arrangement: it is purely negative. On this important occasion, adhere to those modes of speech which in common conversation no man ever thinks of swerving from. Abstain from those artificial forms which probably had deceit and depredation for their object, and certainly have never had any other than mischief for their effect.

Read as you would speak, is the fundamental precept in the art of reading: it is the precept of good taste. Write as you would speak, at any rate in the same person as you would speak in,—is a law in the enactment of which good taste concurs with probity.

Prevention of incorrectness and incompleteness, especially when incurred through temerity or suggested by mendacity, is the main advantage: prevention of indistinctness and redundance are ulterior advantages attached to it—advantages of subordinate rank, yet surely not to be despised.

1. Prevention of incorrectness and incompleteness. When a man speaks in his own person, he considers what he says to be his own discourse, and himself to be in the highest degree responsible for it. To a man expressing himself in this form, the idea of responsibility is in the highest degree impressive. When he is made to speak in the third person,—to speak of himself as he would of another person, the idea of responsibility is apt to be in a considerable degree fainter. He scarce knows in what character to consider himself—whether in that of the author, or only of the subject of the discourse. Does he find himself tempted to swerve from the line of truth? Self-deceit conceals from him his own image in the character of the author, bids him consider himself as the subject, and look for the author in the person of the professional scribe by whom he is thus spoken of, and who, in fact, is the author of the words.

2. Prevention of indistinctness—prevention of ambiguity and obscurity, and thence unintelligibility (temporary at least:) in the language, whence ultimately delay, vexation, and expense, perplexity, and frequently incorrectness, on the part of those who have to study the deposition and reply to it. When the author of the discourse is spoken of, not in that his distinctive character, but in that character which is common to him with every other person—to know, on each occasion, which is meant, is matter of perpetually-recurring, although it should be but momentary difficulty.*

3. Prevention of circumlocution and unnecessary voluminousness; whence again delay, as above, with the etceteras in its train. One he not being of himself distinguishable from other hes, an addition such as this deponent is a sort of badge which it becomes necessary to pin upon him, as often as he makes his reappearance upon the stage.

On all legal occasions on which spontaneous deposition in this form is employed (and in established practice there are few instances in which it is employed in any other form,) the transfiguration is of course the work of the man of law. Whatever may have been the object—in point of tendency and effect it may be reckoned as one of the most efficient of the numerous arrangements by which the distinctive points of individual character have been worn down, and the important boundary-line which separates sincerity from insincerity,—veracity from mendacity, rendered more and more obscure. A court of justice is thus converted into a sort of masquerade, to gain admission into which, instead of a domino, the suitor or other witness is obliged to swaddle himself up, not in a fool’s coat, but in a sort of knave’s coat; or (to use an appellative not many years ago applied in vulgar language to a particular sort of surtout) a wrap-rascal—anhabiliment manufactured for him, and sold to him at masquerade price by his lawyer.

Nothing can be more commodious than this dress to the wearer, where he happens to be in the wrong, and conscious of being (what it is the tendency of this dress to render him) a knave. At any rate, be the wearer honest or dishonest, nothing can be more convenient than it is for the tailor who has the making of it. Between the one and the other, responsibility, no small portion of it, evaporates, and is lost. The lawyer scrawls through thick and thin, and fears nothing: let the mendacity be ever so great, and though it have been brought under the predicament of perjury, not on him will attach the punishment, or so much as any part of the shame. The suitor, or the partial witness, bribed by his wishes to regard as right that which he feels to be so favourable to his purpose—the respondent, be he a party, be he a hired or partial witness,—signs with convenient obsequiousness whatever is pronounced to be right by one who knows so much better what is right than he does. Though here and there a point may present itself which does not coincide exactly with the rigid line of truth, it may (for aught he sees, or chooses to see, to the contrary) be among those points of form, which in law are so numerous, so sacred, and so inviolable. By lawyers of all classes on an infinity of occasions, and by suittors in all causes, under the compulsion of men of law, I see uttered (says he) in abundance, propositions upon propositions, which are known by everybody to be false. So much falsehood in law, and so much of it by which I am prejudiced—shall all opportunity of compensation be neglected? Shall there be none by which I am to be served? And, after all, if there be falsehood, whose falsehood is it? Not mine: it is not I that speak—I am the person spoken of: it was not I (says he) that penned it—not I, but one who knows so much better than I—the professional guardian of my conscience.

True it is, that a mental apology of this sort will not save a man from the pillory—it will not engage him to set his hand to falsehood, when he understands clearly that there exists sufficient proof of it, and that prosecution will be the consequence. But when he understands as clearly that proof sufficient for conviction is wanting, or that (though it exists) prosecution is not to be feared—in a case like this (and how abundant are such cases!) if downright open-eyed mendacity be not the result, how natural and frequent will be a relaxation of that vigilance which is so necessary to weed out from the ready-prepared and scientifically-planted ground every germ of serviceable incorrectness? Thus slippery, on an occasion of this sort, is the position even of the most cultivated mind, how much more so that of a mind taken at random from the ignorant, and undiscerning, and precipitate, and, on such occasions, blindly obsequious multitude?

It is not without an exertion of intelligence, as well as probity, that a simple man can bring himself to contradict a misrepresentation thus put into his mouth: before he attempts it, he has to surmount the awe which self-conscious ignorance cannot but feel at the thought of opposing itself to reputed science. Thus stands the case, while he is hearing or poring over a dark and unaccustomed formulary, to which indeed he is to set his hand (for so the forms require,) but in which he is spoken of as if he were somebody else, by an unknown somebody. But the pronoun I—the interesting pronoun I, with which so many lively ideas, so many acute sensations, are associated,—the pronoun I acts as a spur to attention, and preserves the innocent from dropping into the abyss of falsehood, while slumbering and nodding over the lullaby of his nurse.

As to the man of law, besides that he has nothing to lose by the falsehood, he has much to gain by it, he has everything that is to be hoped from the exultation and gratitude of his client and the reputation of success, and of the ability and science that insured it.

Viewed in the light of incongruity, nothing can be more grossly absurd than this practice. The deponent is the person spoken of: but who is the speaker? Nobody. Instead of the plain truth, you have an absurd and useless (besides being, as shown already, a mischievous) fiction: the man is split into two persons, the one speaking of the other: or, he remaining unsplit, an ideal person is fabricated to speak of the real one. Evidence of prime quality—immediate evidence—is thus converted into evidence of a bad and slippery texture—hearsay evidence, the supposed or percipient witness is the so-styled deponent, but the deposing witness is nobody knows who.

In point of history (not to speak of motives, and other such causes) whence comes this sophistication? Evidently from the man of law. To the production of this effect, even the relative situation of lawyer and client seems of itself sufficient, with or without the aid of sinister policy and reflection on the part of the directing mind. To vivâ voce discourse, whether in the way of responsive or spontaneous statement, no man so simple as not to be competent: the talent of writing was a possession so rare (I speak of the times when law was in her cradle) the talent of writing was the object of little less than a monopoly—the talent of writing for law purposes was the object of a complete monopoly—in the hands of the man of law. In this way, the simple and unlearned suitor or witness was altogether unable to give any sort of account of his own thoughts: whatever account (if any) was to be given of them, came necessarily, and (as far as individual words were concerned) really and truly, from a third person; and that third person was the man of law. The unlearned man being incapable of giving in this learned way any account of his own thoughts, his learned guardian took upon himself to give a learned and proper account, to his friends and brethren upon the bench, of the poor client’s thoughts. Hence comes the division of functions, or at least of characters and situations: the persons spoken of, the client; the spokesman, the man of law.

Even when the art of writing came to be more generally diffused, this assistance was not without pretence, nor even without use. Left to himself, a deponent—an average deponent—will run wild: the testimony he delivers will be whatsoever it is most pleasant to himself to deliver, so as not to be unsafe: relevancy, if at all an object, will be at best but a secondary one. It will be continually wandering from the mark: his lawyer—a professional lawyer—stands engaged, by a sort of professional responsibility, to keep him to it.

In the oral mode, every excursion of this sort is stopped at the first step. Being productive of so much unprofitable delay—producing vexation to all present, and no increase of profit to the man of law,—the advocate on the same side, no less than the judge, and the advocate on the opposite side, is upon the watch to stop it. The closet, in which the epistolary response is penned, affords no such bars.

Thus natural, and even thus useful, it was and is, that, in the framing a mass of testimony to be delivered in the ready-written mode, a deponent, not being a lawyer, should have a lawyer at his elbow.

But that the discourse so delivered, and with this assistance, should, in form any more than in substance, be the discourse of any person other than of him whose discourse it is said to be, neither was, nor is, nor can ever be, of any use: on the contrary, in the shape of an encouragement to incorrectness and incompleteness, as well in the way of mendacity as of temerity, we have seen of what mischief it is productive.

§ 3.

Disregard shown to the first rule, in English law.

Comparatively speaking, the ground on which interrogation ex scripto has found its exemplification under any branch of the technical system, is extremely narrow.

Under the Roman system, no such arrangement is to be found. Under that system, either interrogation has no place—or, if employed, it is performed coram judice, and in the vivâ voce mode, and by the judge only, as well as in his presence.

It is only under the English system that any example of it can be found; viz. that which is afforded by a bill in equity. In this case, the respondent is always a party; and that on one side only of the cause, the defendant’s side: the interrogator likewise is never other than a party, and he on the opposite, the plaintiff’s, side of the cause. The defendant, who is punished if he does not answer (punished in the first instance as for contempt of court, and ultimately by loss of the cause,) is not permitted to answer by himself. To entitle himself to the privilege of delivering in an answer, he is forced to take in a partner for the manufacturing of it: in fact, two partners—one of the attorney class, whose name does not appear in the firm—another of the advocate class, whose name does and must appear in it. The iniquity of thus forcing upon a man this burthensome assistance, and the shallowness of the pretences on which this part of the system of extortion has been attempted to be justified, belong not to this place.

What does belong to this place is, that,—if the different orders of leeches thus fastened upon a man were ever so necessary, and ever so much more numerous than they are,—the propriety of the respondent’s being suffered and made to speak in his own person (in other words, the propriety of suffering and obliging the proper person to speak in his own person, and not suffering a wrong person, known or unknown, to speak of and for him,) would not be the less, but rather the more, incontestable. Neither reason, nor so much as pretence, can apply to anything more than the stopping him from saying something that ought not to have been said: neither reason nor pretence can assign to the man of law any other function than that of obliteration: whatever is said, whatever is suffered to be said, it is from the non-lawyer surely, not from the lawyer, that it is intended it should come. But, if the testimony delivered by the defendant in the character of deponent is really to be his, and not the lawyer’s—the produce of the client’s recollecting, not of the lawyer’s inventing,—it is surely in the person of the real deponent, not in the person of another man who knows nothing about the matter, that whatever is delivered ought to be expressed.

The part which the suitor has thus been forced to call in a lawyer to take, in the delivery of his (the suitor’s) testimony, accounts in a satisfactory manner, in the character of an historical cause, for the absurdity which gives to what is (or at least ought to be) immediate evidence, the form of hearsay evidence. But in the character of a rational cause, a cause demonstrative of the propriety of the effect (that is, of its conformity to the ends of justice,) it is as incompetent as, under the technical system, the historical cause of the existing arrangement is almost in every instance sure to be.

That the absurdity here reprobated is the work, not of the non-lawyer—of the party or witness,—but of the man of law—that it is amongst the frauds of the technical system, is evident enough. When, on a judicial occasion, a man expresses himself in writing, nowhere is he suffered to express himself in his own words.

Under the Roman system, though a respondent answers vivâ voce, and though a discourse pretended to be his is committed to writing and employed in evidence, the discourse thus given for his is never his: in purport, perhaps, sometimes; in tenor, never. The judge, scribe, and deponent, being shut up, without any other person present in the closet of the judge,—the judge puts a question—the deponent speaks in answer; the scribe sets down as the substance of the answer what the judge pleases—the deponent signing it, or entry made of his refusal to sign it.

Under the English system, it is only in the equity courts that interrogation is permitted, and, in these, one of the parties only (viz. the defendant) is allowed to be interrogated; and, being interrogated, it is in this scriptural mode only that he is interrogated—it is in the scriptural mode alone that he is admitted to deliver his responses. To deliver his responses? No: not his (singly, at least,) but responses delivered in partnership—in partnership with an attorney for a non-apparent partner, and an advocate for an apparent as well as real one. The party signs, and the advocate signs: the party or the attorney has the initiative, but the advocate has a negative upon every syllable.

A negative, how and why? Why, because, without the signature of an advocate, the answer will not be received. If he does not give in an answer, he is punished—punished as for a contempt of the judge in the first instance, and ultimately by the loss of his cause. If he were to give in an answer, it would not be received—not received, until, being tinkered by the advocate, it ceases pro tanto to be the answer of the client. Well then and properly may he be spoken of, since it is not he that is permitted to speak. The judge, with a sword called the sword of justice in his hand, forces him into the shark’s mouth.

To power, pretence is never wanting: and where power is irresistible, no pretence so shallow but it may serve. Left to himself, the non-lawyer, forsooth, might stray into the path of irrelevancy—he might write surplusage. What is certain is, that the man of law writes surplusage. A certain quantity of that commodity is sanctioned by professional custom: the man of law finds himself under a happy impossibility of omitting it. A certain and constant inconvenience is thus produced, on pretence of preventing a possible inconvenience of the same kind. Nor yet without an attorney, is a man, here any more than elsewhere, admitted to defend himself. What is there in the attorney, that should hinder him from being responsible, and of himself sufficiently responsible, for the non-insertion of unaccustomed surplusage? But the attorney has not been the brother in trade, and companion of the judge: the advocate has.

If such tinkering be necessary, or in any degree serviceable, to the interests of truth and justice, why not give vivâ voce testimony the benefit of it? Why not, in a trial at common law, station an advocate between the jury and the witness, to receive his testimony and improve it—to make it what it ought to be, and keep back what it is?

One plain proof there is that this ostensible ground is not the real one. Take it all together—take the whole stock furnished by all the courts—the quantity of uninterrogated evidence delivered in this mode, exceeds by far the quantity of interrogated. Even in the courts of equity themselves, the number of affidavits is not inferior to the number of answers: for, though interrogated written evidence is not admitted but on one side (the defendant’s side,) uninterrogated evidence is delivered, affidavits are delivered, in indefinite numbers, on both sides. No advocate’s name is ever signed to an affidavit. Why is it not? Is there anything in the want of interrogation to render surplusage impossible?

This improvement remains yet to be made: for in this line there has never been any backwardness to make improvements; nor, under the technical system, ever can be.

In Anglican procedure, in the courts called Common-law courts, where the trial is by jury, the testimony is in general delivered in the form of a deposition vivâ voce and ex interrogato: interrogato autem non solum judicis, sed etiam, et præcipue partium. No official perpetually-remaining minute being in this case taken by any special scribe (for, as to the judge’s notes, the treatment given to them is the same which was given to the Sybil’s leaves;) it is not known in what person it is, whether the first or the third, that in these recondite documents the defendant is made to speak; in the first or the third, according to the inspiration received by the modern Sybil in each particular instance.

But in a number of instances much greater (I speak of individual instances,) in almost all instances in which the information thus collected is treated as if it were worth preserving, the testimony is delivered in the ready-written form: and in all those instances, the only person in which the deponent is suffered to speak is the third.

Take up an English trial (I speak of trial at common-law:) if the subject be interesting, the very evidence is amusing: it is in the form of ordinary conversation; it is in the dramatic form; it is the drama of real life.

Take up the history of an old French law-suit, the evidence is absolutely unreadable; it is the same dull formulary in every case. Of the witness you see nothing—you see nothing but the lawyer: what you see plainly is, that nothing could have really passed exactly as it is there represented to have passed: what you cannot hope to see, is, how anything really passed. Accordingly, in the Causes Celebres, you know nothing of the evidence: all that you see—all that you could bear to see, is the account (faithful or unfaithful) given of it by the advocates, together with the observations which they ground on it.

In a suit in equity, the evidence is collected and worded exactly as under the old French law. The evidence, of course, is equally uninstructive, uninteresting, unreadable. Accordingly, you scarce ever meet with a publication containing at large the evidence taken in a court of equity.

In the English Romano-ecclesiastical courts the evidence is on the same footing. Here, indeed, histories of causes—publications answering to trials at common law—are at least sufficiently abundant. Why? Because the subject is adaltery: and on this subject at least, the adage holds good: Historia quoque modo seripta delectat.

§ 4.

Second rule—Paragraphs short and numbered.

The other rule which has been already mentioned as essential to the proper application of the epistolary mode of interrogation, is, that both discourses, that of the interrogator and that of the respondent, be divided into numbered paragraphs: or, more particularly, thus:—

1. Questions uncompounded, short, and numbered.

2. Answers numbered in correspondence with the questions.

3. Replies, if necessary (as in the case of exceptions for supposed insufficiency) numbered in correspondence with the answers, and thence with the questions.

4. Ulterior answers, if called for, numbered in correspondence with the exceptions, and thence with the original answers and the questions.

All these several arrangements, though in themselves distinct and distinguishable, require to be considered at the same time.

Of the answers (articles 2 and 4) original and ulterior, consists the evidence. It is for the sake of securing distinctness to this part of the conversation, that the principle of distinctness, the division and numeration, are required to be given to the questions, and to the exceptions or other observations.

Of these arrangements the object is to give the maximum of simplicity, and thence of facility, to the task of the interrogator: that the point of view under which the testimony is presented to him may be as clear and as distinct as possible: that in this mode the process of interrogation may be as clear as possible from that entanglement, to which (as we have seen) it is scarce in any degree exposed in the vivâ voce mode.

Of the above divisions and distinctions, what is the object and practical use? That, with as much certainty and as little trouble as possible, the interrogator may discern whether, of the questions contained in the instrument of interrogation, there be any, and if any, what, to which either no response has been given in return, or such a one as in any (and what) respect is insufficient.

Of the importance of the quality of distinctness—of the proneness of bona fides to be let fall by mental imbecility into the opposite evil quality, without intending it—of the natural eagerness with which mala fides avail itself of the opportunity of promoting its purpose undetected—of the readiness with which the inconvenience finds its remedy under the vivâ voce mode—and of the unhappy facility afforded by the scriptural mode to mala fides for swelling out the inconvenience,—enough has already been said. On the present occasion, what remains is, to show by what means the weakness incident to bona fides may receive the most effectual support, and the artifices of mala fides be most effectually obviated and counteracted.

Divide et impera, is a maxim of no less use when applied to the operations of intellectual power, than to those of physical and political power. The fable of the old man and his sons and the bundle of sticks, should on this occasion never be forgotten: nor yet (how widely different soever the fields of the two images) the emblem of the cuttle-fish—the fish which, to blind and confound its pursuers, deluges with a flood of ink the medium in which it moves. The special pleader and the equity draughtsman might interplead at the Herald’s Office for the privilege of taking for an armorial bearing this original manufacturer of troubled waters.

Division, however, is but of little use without nomenclature, without nomenclature, indeed (at least when intellectual objects are in question,) it can hardly be said to be performed. For to what use is division without distinction? And how can distinction be preserved without a name? Divided one moment, the parts of an idea unite again or are dissipated the next: it is by nomenclature, and by nomenclature only, that the division is either rendered permanent for the benefit of the operating mind, or communicable to any other.

In natural history, in botany, the objects themselves—the individual objects, are distinct enough, and, without the aid of names, distinguishable, while present to the material eye: but it is by nomenclature, and nomenclature only, that the attribute of distinctness can be preserved to them any longer,—that any one species (one might almost add individual) can be so much as spoken of. Accordingly, an observation that has every now and then been brought forward by those who have felt themselves disposed to depreciate that amusing study, is, that it consists of little more than a system of nomenclature. True: but what a fund of ingenuity, added to what a fund of knowledge, does it not require, in any branch of science, to bestow upon it a good system of nomenclature? It is because the subject of legislation is as yet in so barbarous a state, that its nomenclature is so too.

Among the logicians, an instrument of universal empire in the regions of intelligence was supposed to have been discovered by the invention of the syllogism. Yet, in truth, what is the exploit achieved by it: The dividing an argument into three parts or members, distinguished from each other by so many names,—names, in the invention of which (of two of them at least) not quite so much felicity has been displayed, as in those for which we are indebted to the genius of Lavoisier and Linnæus.

Characteristic names are names for the species, and for ever. Numbers are names and names adequate to the purpose, for the individual; which, when they have performed their transitory office, may slide into oblivion without damage to mankind: or even for the individual, however permanent, when, for the purpose of human intercourse, no species requires to be moulded on it. Numeration, therefore, is the sort of nomenclature most advantageously applicable to the different parts of which the ready-written testimony of a witness is composed: including the questions, if it is by questions that the testimony is called forth.

When the questions are thus distinguished one from another, so may the answers be;—otherwise, not. Suppose twenty questions duly distinct and numbered: so many questions, so many statements, or groups of statements, in form of answers. Each question having a name (viz. a number) which it may be called by, each answer has a name which it may be called by. The examinee, viewing each question separately, sees whether he has given a sufficient answer to it: so many questions to which he has thus given a sufficient answer, so much of his task is gone through: seeing this, as far as he has thus proceeded, he fears not to see his answers excepted to for insufficiency. The examiner, on his part, when the examination of the examinee comes to be transmitted to him, performs the same review with great facility. With each question he confronts the answer given to that question. To judge whether question 1 has received an answer, and that answer sufficient, he has no more of the examination to look for than the answer to question 1; and so in regard to question 2, and every other article in the list of questions.

Leave the questions unnumbered, what is the consequence? On the occasion of each question, the examiner has the whole of the examination to look over and study, for the purpose of judging whether, upon the whole, an answer sufficient with reference to that one question be to be found in it. The labour is thus twenty times as great as on the plan proposed; and the inlet to incorrectness, mendacity, incompleteness, delay, vexation, and expense, as above, twenty times as wide.

The more complex the interchange of communication is between examiner and examinee (as above,) the more involved will the mode of distinction by numbers be, as above.* But the more involved it is, the more necessary: for, without it, the more complex the above interchange, the thicker the confusion.

A numerical nomenclature of this sort is the only check that can be applied to the studied confusion that will naturally be manufactured by malâ fide suitors, and, occasionally at least, by the law-agents of bonâ fide as well as malâ fide suitors. When the whole examination is one unbroken chaos, and of the length that it is so apt to be, a malâ fide examinee makes or endeavours to make his escape, under favour of the confusion, and leaves questions unanswered, or insufficiently answered: an insufficiently attentive or malâ fide examiner, or his insufficiently attentive or malâ fide agent, overlooks, or pretends to overlook, answers; imputes or pretends to impute insufficiency to answers really sufficient; and takes exceptions accordingly. But as, in the proposed rule, the subject of attention is in each case drawn to a point, censure may the more readily attach upon insufficiency on the one hand, and groundless exception on the other; and so, by the fear of censure and of shame, abuse will be the more frequently prevented.

In case of obscurity, for want of employing the prescribed means of distinctness, the culpable party should be liable to the burthen of satisfaction:—Reason 1. To prevent misdecision. 2. To prevent, or make satisfaction for, expense, vexation, and delay.

Were it not for a provision of this sort, the consequence might be, that, by confusion, produced through carelessness, or even by design, considerable inconvenience in the above shapes might frequently be produced. A malâ fide suitor, or an extraneous witness under the guidance of a malâ fide suitor, might, by studied and persevering confusion, delay justice, and heap upon the head of the injured party expense and vexation without end.

Under the existing technical systems of procedure, the costs, mostly factitious, are so high, that, when properly applied, they operate in this way with still greater force than could have been wished. But, if the factitious part were removed, the burthen of bearing the remainder might frequently not be sufficient to restrain a malâ fide suitor from purposely producing those delays and vexations that might so easily be produced by those means. In certain cases, therefore, a suitor transgressing in this way ought to be subjected to an ulterior burthen in the shape of punishment. Otherwise he might be without a motive operating so as to restrain him from producing, to the injury of himself and others, the delay and vexation producible from this source. Where there is no assignable individual by whom any injury can be said to have been sustained, as in the case of a prosecution for an offence purely public, there is no party to whom satisfaction can be rendered, unless in so far as the nature of the offence may be to subject the public to a pecuniary loss. In such case (the case not admitting of satisfaction) if no burthen could be imposed under the name of punishment, the party under temptation might be frequently without a motive tending to restrain him from the offence.

It will generally be proper to subject a man, in such a case, to vivâ voce examination. Reason: Because, as already observed, vivâ voce examination is a sovereign remedy, and in some cases may be the only effectual remedy, against all such confusion as (by design, or through imbecility) is likely to take place in ready-written statements framed by designing or illiterate persons.

§ 5.

Disregard shown to the second rule in English law.

In English law, it is to the practice of the courts called courts of equity, that we must look for the only exemplification of the scriptural mode of interrogation, as above described.

In those courts, the business of interrogation is conducted upon two completely different plans.

1. In the initial instrument called the bill,—to a string of allegations not upon oath, nor expected to be true, succeeds a string of questions. The whole string constitutes one unbroken undivided chaos: not being broken down into paragraphs, it has, like a mathematical point, or an English statute, no parts: it has nothing to which numbers can be applied.

In spite of the cloud-compelling power of the draughtsman, a sort of natural principle of division will show itself. The force of the common interrogative proposition, “my will is, that you declare so and so,” being combined with different particles, as when, where, who, what, how long, and so forth,—as often as one of these particles is changed for another, a fresh and distinguishable question is brought to view. In spite of all the powers of darkness, this circumstance is sufficient to diffuse over the interrogative part a glimmering of light, such as cannot ever be discernible in the assertive part.

In reply to this instrument called the bill, comes from the defendant’s side of the cause an instrument called the answer.

The questions being squeezed together in one undivided mass, so of course are the responses of which the answer is composed.

The sort of person to whom, in the character of respondent, this mode of interrogation is applied, is the defendant, and the defendant only: not the plaintiff, he not being subject to interrogation in any mode: not any extrancous witnesses, they not being interrogated but in a different mode, which will come next to be described. The interrogator is the plaintiff, or rather the plaintiff’s advocate. For, lest the utterance of the falsehoods without which the judge would not give any effect to the bill, should experience any impediment from the probity of the unlearned client, he is neither called upon, nor permitted, to authenticate it by his signature.

2. When an extraneous witness is the sort of person whose testimony is to be collected, he is interrogated indeed, but upon a plan altogether different. It is in the Roman mode that the respondent is now interrogated.

This mode is a sort of mixed mode, partaking in some respects of the nature of the scriptural, in others of that of the vivâ voce, mode. It has (as will be seen) the disadvantages of both, without the advantages of either.

A string of interrogatories is drawn by the party at whose instance the testimony of the respondent is called for: by the party—that is, not by the party (for by the party they are not signed,) but by the party’s advocate, by whom, if made use of, they must be signed: for it is only on condition of seeing a learned brother fee’d, that this indispensable part of a judge’s duty will be executed by the judge: by the judge, that is, not by the judge by whom the decision grounded on this evidence is to be pronounced, but by another judge ad hoc, who has nothing to do with it.

The string of interrogatories thus drawn by an advocate, and an advocate who would take it as an affront if it was proposed to him to have any personal communication with his ultimate client—with the suitor—the only person who, of his own knowledge, is capable of affording him any information,—the string of interrogatories, thus framed, is put into the hands of the judge: understand the judge ad hoc—a sort of person of two different and almost opposite descriptions,* but which agree in this, that in neither case is he to bear any part in the decision of the cause,—that is, in applying to its only use the testimony he has collected.

Thus far the interrogation is performed ex scripto: interrogatories are committed to writing. But, though the interrogatories are committed to writing, it is in the vivâ voce form that the responses are delivered: delivered in the vivâ voce form, though thereupon the purport of them, or something which is to pass for the purport of them, is noted down, and drawn up in the usual official style. Interrogatories have been committed to writing: but it is not in writing that these or any other questions are communicated to the respondent. The only person to whom these written interrogatories are communicated, is the judge: to him they serve for instructions: and on him, besides serving simply in the way of information, they exercise thus far a sort of binding force, that, in so far as any of the questions contained in the instrument remains without an answer, the task given to him is not done.

Though to him communicated all together,—by him to the respondent they will of course be communicated separately: so that the mendacity-serving instruction, which in some cases might be deduced from a simultaneous view of the whole assemblage by a mendacious respondent, will not in this place be to be had.

Nor, by the tenor of the interrogatories thus put into his hands for his instruction, is the judge ever understood to be so strictly bound, but that he is at liberty to propound to the respondent any such other questions as may have been suggested by the respondent’s answers: which power the judge will of course employ, in a manner depending partly on his own individual turn of mind, partly on the relation which the interest arising out of his position bears to the interests of truth and justice: if nominated by the parties, each commissioner using his industry with more or less zeal for the benefit of that one of the parties by whom he has been employed; if otherwise selected, getting through the business as soon as it is in his power to get through it, observing that to each question there be some sort of answer—whether true or not, being no concern of his. Be this as it may, the mass of interrogatories is constantly broken down into articles, and those articles numbered: and it is to an article thus distinguished and denominated, that the answer entered upon the minutes bears reference by name: and it is always under the head of the interrogatory by which it has been extracted, that the response is entered; “to the first interrogatory this deponent saith,” and so forth.

The defendant comes sometimes to be interrogated upon the plan above described as calculated for the station of the extraneous witness. For interrogated, say re-interrogated: for, in his own station, and in the mode calculated for that station, he must always have been interrogated in the first instance.

In the case of the defendant interrogated in that character—interrogated in and by the plaintiff’s bill,—if the answer fail of being satisfactory, if in any part it be deemed incomplete or indistinct, an instrument is grounded on it on the part of the plaintiff, under the name of exceptions. In this paper (as in the paper of interrogatories framed, as above, for the interrogator of the extraneous witness, by the judge,) the mass is broken down into articles, and those articles are numbered.

For the purpose of grounding ulterior interrogations on the responses of which the defendant’s answer is composed—or when the answer, though complete and distinct, presents itself as being in any respect incorrect,—in the hope of exposing such its incorrectness, the plaintiff frequently, indeed most commonly, is advised to make amendments in his bill. These amendments, according to the number of the words respectively contained in them, are either inserted in the way of interlineation in the authentic exemplar of the bill, or subjoined in a separate mass. But, though subjoined in a separate mass, this supplemental mass, like the original mass, is one mass; the unity of the second not being, any more than that of the first, violated by any such operation as that of breaking it down into articles.

In the choice thus made of the two modes of interrogation—in the application made of them respectively to the respective stations—in the refusal of the principle of distinctness to the one case, in the allowance of it to the other,—there is nothing more than natural.

The more indistinct, as well as voluminous, the bill with its interrogatories, the more difficult will it be for the learned gentleman by whom the answer with its responses must be drawn, to make sure of having given to each interrogatory its complete and distinct response,—and thereby to take away, if by miracle he were so inclined, all occasion for exceptions. Thus it is that (here as elsewhere, under this as well as every other part of the system) by and out of business, more business is made. The more unintelligible the bill is, the more certain is the demand for work for the same learned hand, in the shape of exceptions.

The shoemaker when he makes a shoe, the tailor when he makes a coat, does not make a hole in his work for the sake of having it to mend. But, besides that flaws are not always so conspicuous in ideal as in physical work, no shoemaker finds a judge disposed to support him in the making of bad shoes: every advocate finds a judge determined to support him in making, in the way here described (not to mention so many other ways,) bad bills, and consequently bad answers.

To the instrument composed of interrogatories, this principle of distinctness is not refused. The reason—(I speak here of the historical and physical cause, not certainly of the justification)—the reason is no less simple in this case than in the opposite one. By putting or leaving in a state of confusion a mass of interrogatories, technically so called—of interrogatories that are to serve for instruction to the examining judge, nothing is to be got. By the learned drawer of the interrogatories, nothing; by the examining judge, by whom those instructions are to be made use of, perhaps as little: but, be that as it may, it is no concern of the draughtsman—no sort of relation subsisting between him and the obscure clerk, or the unknown country attorneys, to whom this indispensable part of the business of a judge (of every judge in whose eyes justice appears preferable to injustice) is turned over, as a matter of no importance, to the judge by whom the decision is to be pronounced.

On this head, as on others, the state of the practice (however in the first instance it may depend upon the subordinate lawyer, upon the office-clerk, the advocate, or the attorney) depends ultimately upon the superintending and ruling lawyer—the lawyer who, on pretence of expounding, legislates—the judge.

Originally, to all appearance, the judge to whom it belonged to decide upon the testimony, was the person, the same person, by whom the questions (if any) that were propounded to the deponent, were formed, and the answers to them received. But, in causes between party and party, such as those here in question,—the judge of himself knowing nothing, and caring not much more,—an arrangement always useful, sometimes necessary, was, that, in respect of the points to which the testimony of the deponent was to be obtained, information should be furnished by him whose purposes were to be served by it.

No man who is not paid for being perplexed, and in proportion as he is perplexed, likes perplexity. Every judge who does not make a preponderant profit by judging ill, derives a profit from judging well: that is, from being thought to judge well; for which the really judging well is the simplest and surest recipe. Even under the technical system, every judge, when he has no particular interest to the contrary, finds it his interest to judge well: for it is upon whatever reputation may be to be got by judging well, that he depends more or less for the patience with which the deluded public submits to the load of factitious delay, vexation, and expense, out of which, under that system, his profit, and even honour, is extracted.

Having, in case of confusion, certain perplexity to suffer from it in the first instance, together with a chance of disrepute in case of misdecision—nothing could in this state of things be more natural, than that so obvious a principle of distinctness should be laid hold of by the judge. When you lay before me a statement of the points which I am to examine, do not throw them altogether into a confused mass, but break them down into articles, distinguishing the articles by numbers. By this means, I shall see my way all along as I go; I shall see the progress I have made, and, as fast as an article is answered to, I shall mark it off as answered, and go on to the next.

But in the world of law, as in other world’s, when motion has once got into any track, vis inertiæ keeps it in the same track: and thus—when, for the accommodation of the ruling judge, this principle of facility had taken root—afterwards, when this principal part of a judge’s duty came to be turned over to an underling, the benefit of the accommodation fell, along with the duty, to the underling’s share.

The principle of distinctness, the division, thus refused to the parts of a defendant’s answer, but applied to interrogatories, is also applied to exceptions: to the instrument composed of a list of the points in respect of which the defendant’s answer is charged on the part of the plaintiff with being defective. Why to these exceptions, as well as to these interrogatories? For a like reason. The paper of exceptions being given in; if, by advice of his professional advisers, the defendant preferred the not giving in a further answer, the propriety of those exceptions was matter of argument before the judge. In this case, therefore, as in the other, some sort and degree of distinctness—something better than utter chaos, was matter of personal accommodation to the judge. The exceptions, therefore (as in the former case the interrogatories,) were to be, and were numbered. In the first exception, my lord, it is stated that, to the question to this effect, no sufficient answer has been given: if any such answer be to be found, the learned gentlemen on the other side will produce it.

The demand on the part of the judge for the principle of distinctness ceasing, the accommodation ceased along with it. If, instead of arguing the exceptions, the defendant, always under the orders of his professional advisers, submitted to make further answer,—in such further answer no mention was made of any particular exceptions. It was for the sake of the judge, that the principle of distinctness was employed: his profit was not diminished, his ease was served by it. The judge being here out of the question, the use of the principle ceased. With reference to the professional lawyer, the defendant’s advocate, it was useless: what was there for him to gain by breaking this second answer into numbered parts corresponding to the exceptions which gave birth to it? The first was not thus classified: to what use should the second be? In this case, as in the former, distinctness would, with reference to the only interests which had any claim to be considered, be worse than useless. From the second answer, if kept in a state of as convenient confusion as the first, may come a demand for a second set of exceptions: to which second set of exceptions a third answer would come to be made.

CHAPTER XI.

HELPS TO RECOLLECTION, HOW FAR COMPATIBLE WITH OBSTRUCTIONS TO INVENTION?

Correctness and completeness are, both of them, qualities, the union of which is necessary in every aggregate mass of evidence. Of a deficiency in respect of either, deception and consequent misdecision may be the result.

If, on the part of the witness, the testimony be the product of the imagination, instead of the memory,—incorrectness is, in so far, the quality given to it.

If, for want of such helps to which on the particular occasion it may happen to be necessary, recollection fail to bring to view any such real facts as with these helps might and would have been brought to view,—incompleteness in the mass of the evidence is the result.

But, by the same suggestions by which, in case of veracity, memory alone would be assisted and fertilized, it may also happen, and is but too apt to happen, that invention (which, where testimony is in question, is synonymous with mendacity) shall also be set to work, and rendered productive. To administer assistance to recollection, to veracity—to administer, not assistance, but obstruction, to invention, to mendacity,—in these we see two opposite, and, to a first view, irreconcilable, pursuits. How then to reconcile them? or, at any rate, to do what is possible to be done towards it? In this question may be seen a problem, the solution of which is no less conspicuous for its difficulty than for its importance.

The first point to be considered is, the natural opposition between the two ends. In the instance of any arrangement by which recollection is assisted, how natural, if not necessary and unavoidable, it is, that mendacious invention should receive assistance likewise? In the instance of any arrangement by which mendacious invention is obstructed, how natural, if not necessary, it is, that recollection should be subjected to interruption likewise?

From the observation of these several relations, results the following practical inference:—

To put a negative upon the use of an arrangement designed for the assistance of honest recollection, it is not sufficient to say, “Nay—for so it may happen, that mendacious invention shall moreover be served by it.” So again—

To put a negative upon the use of an arrangement designed for the obstruction of mendacious invention, it is not sufficient to say, “Nay—for so it may happen, that honest recollection shall moreover be obstructed by it.”

In each case, the question will be, on what side is the preponderant probability in regard to deception: be the measure a measure of assistance or a measure of obstruction, is it by the adoption or the rejection of it that deception is most in danger of being produced? For (except with relation to that effect), whether recollection be or be not obstructed, whether invention be or be not employed, is, with relation to the individual cause in hand, a matter of indifference. I say, with relation to the individual cause in hand, for, to the general interests of morality, whether mendacious invention be or be not practised, can never be a matter of indifference.

The next point to be considered is, how far the nature of things admits of the throwing obstacles in the way of mendacious invention. For, wherever things are so circumstanced that the offering of any effectual obstruction to mendacious invention is either of itself impossible, or not possible by any means that will not, in an equal or superior degree, have the effect of depriving recollection of the helps necessary to the completeness and correctness of the testimony,—then one of the two pursuits, viz. obstruction of invention, ought clearly to be abandoned.

Antecedently to the delivery of the interrogatories to the proposed deponent—or at least (when the proposed deponent is made a defendant in the cause, and the cause is such as to warrant his commitment to provisional safe custody)—antecedently to the moment of his arrestation,—all the powers of government are insufficient to keep from him whatsoever time for mendacious invention he may have thought proper to employ. In the case of the malâ fide suitor, whether plaintiff or defendant, from the moment of his delinquency, or rather from the moment of his beginning to form the plan of delinquency—in the case of the malâ fide and mendacious witness, from the moment in which he has reason to expect that his testimony will be called for—his thoughts will with more or less assiduity be employed in the task of mendacious invention.

On this occasion, among the tasks given to his imagination will be the representing to him such adverse questions, as, when the time comes for the delivery of his testimony (willing or unwilling,) may be expected to be propounded to him on the part of his adversary or adversaries: and it is only in so far as his imagination has failed of executing the task to perfection, that it will be possible for him to be taken unprepared—that it will be possible for his answer to have been unpremeditated.

The only interval, therefore, in which obstruction to mendacious invention, acting independently of all assistance by suggestion from without, can find room to place itself, is (on the occasion of the examination of the supposed delinquent) the interval between each interrogatory and the response returned to it. Of the obstruction capable of being thus applied, the influence will, however, be seen to be far from inconsiderable.

Howsoever the general tendency and scope of the system of interrogation may be anticipated,—it will seldom happen, especially if the function of interrogation be lodged in able hands, that the separate particular import of each interrogatory taken separately can be exactly divined. So far, then, as in any instance the purport of this or that interrogatory fails of having been foreseen, and a response provided for it—a response which though mendacious shall not be discovered to be so,—the length of time which invention has for the performance of its task, has for its limit the length of the interval above described.

In the case where the process of interrogation is performed in the epistolary mode, the length of this interval may, to the purpose in question, be considered as being without limit. Under the oral (or say colloquial) mode, its limits are extremely narrow: and hence, to any such purposes as that in question, the prodigious advantage of the colloquial over the epistolary mode.*

When the form is that of oral conversation, the time allowed for recollection is naturally and usually extremely short: to speak at hazard, seldom so long as a minute.

Nor yet is it necessary that the faculty of veracious and honest recollection should in any degree receive obstruction from the promptitude thus exacted in the first instance. A veracious deponent, on those occasions, has nothing to fear—sees no cause for fear: whatever facts his recollection presents to him, he utters without hesitation: all true facts being consistent with each other, he fears but little the being contradicted, at least with effect, by others—he fears not at all the being contradicted by himself. If, for the purpose of searching in the store-room of his memory, a certain interval of time be unavoidably employed by him,—having nothing but real facts to search for, having no other receptacle than memory to search into for them, he fears not the result: it is in the honest and unhazardous task of recollection that he employs himself, not in the dishonest and perilous task of invention. In the course of his exertions to hunt out the truth, should it happen to him to have taken up and brought to view error in its place, and thereupon to have discovered his mistake,—still the contradiction, which he perceives himself thus to have given to himself, will not be productive of confusion: no sinister views being harboured by him, no sinister views are disappointed by what has happened; there being nothing dishonest to conceal, nothing dishonest has been betrayed by it. A misrecollection on his part has indeed been brought to light: but in this, what cause is there for shame or apprehension? The failure is neither more nor less than that sort of failure, of which every man of the purest probity has, in his own instance, the continually repeated consciousness—which is continually happening to a man in cases where his dearest interest, his most decided wishes, call upon him, were it possible, to avoid it.

Between recollection previous, and recollection subsequent (both having respect to the time, and consequently to the process, of interrogation,) the distinction has already been brought to view.†

If adequate time for subsequent recollection be but allowed, supposing the nature of the case to call for it (understand always of the individual case in hand,) the time allowed for previous recollection can scarcely be too short. Why? Because, in case of mendacity, the shortness of the interval applicable to the purpose of invention is a capital security, and, in the first instance at least, the only one.

But what (it may be said)—what if the answer be (and a more natural answer there cannot be, whether on the part of a bonâ fide or on the part of a malâ fide witness,) I do not as yet remember:—unless time be given me for recollection, I cannot speak to the purpose? Certainly: nothing more natural, nor more frequent: but, in case of mendacity, in case of an actual recollection at the time, and this answer given—an answer by which the act of recollection is denied,—the purpose of the question is in some degree fulfilled: the evidence, presumptive at least, of mendacity, is obtained, or a way opened for the obtainment of it, just as in the case of a decided answer denying the fact spoken of.

You say you have forgotten what happened? How can that be, the transaction being of a nature so unlikely to be forgotten? For there are incidents, incidents in abundance, such as (supposing a man to have been a percipient witness of them, and the intervening length of time not extending beyond a certain length, according to the nature of the case) it is morally impossible that a man should fail of recollecting: such, at any rate, that, if oblivion in relation to them be possible, mendacity will always be much more probable. Nor is the comparative estimate any other than what a man, to whose lot it falls to weigh evidence against evidence, finds himself continually called upon to make.

You say you have forgotten what happened. How can that be, on this occasion,—you having, on other occasions not very remote, given an account of it to other persons? How can that be, considering the account that has been given of it by others, whose opportunities of observation were not better than your own? How can that be, considering what you yourself have already been stating relative to that same transaction, since you have been called upon to speak to it?

It is with non-recollection, the alleged non-recollection of the moment, as with evasion, indistinct responsion, and silence. If none of these courses of action were capable of affording any indication, mendacity would be impregnable—interrogation a vain resource.

Observe, that, though the interval of time allowed for recollection subsequently to the putting of the question be thus short, perhaps not a minute, perhaps not half a minute,—the time previously applicable to the purpose of recollection is not thus short. Was the fact, upon the face of it, of a nature to be likely to become the subject of deposition in a court of justice? a fact exhibiting itself as evidentiary of a crime, of an atrocious injury to person, to property, to reputation? The time applicable, and which naturally would be applied, to the purpose of recollection, dates from the very moment at which the fact presented itself to the deponent’s cognizance. Was the fact, upon the face of it, ever so indifferent,—the time applicable to the purpose of recollection would take its commencement, at any rate, from the moment at which information was given to him (with or without the forms of law) that his deposition in relation to that fact would be called for to a judicial purpose.

Mendacious invention, then, having been either prevented, or encompassed with dangers, by the vivâ voce questions followed immediately by the vivâ voce answers,—should any time be needed by honest recollection, either for searching out what could not be searched out at so short a warning, or for rectifying any misrecollections fallen into through the shortness of the warning; then comes the occasion for the judge, under the guardianship of his probity (consideration being had of the nature of the case, and the colour and complexion of the language, countenance, and deportment of the witness,) to exercise his discretion (of his own motion, or at the instance of the witness himself or either of the parties) in the allowance or refusal of a further length of time to be employed in the forming of ready-written interrogatories on the one part, followed by ready-written answers on the other: the minutes of the vivâ voce deposition, with the minutes of the interrogatories by which they were extracted, serving as a standard of reference and comparison: the interrogator, at any rate, being furnished with the document; the deponent furnished or not furnished with that source of instruction, according to the complexion of his preceding testimony, at the discretion of the judge.

Meantime, vivâ voce interrogation is (as hath already been seen) the only remedy, from the application of which, mendacious invention (the mischief to which the interval necessary for interrogation and deposition in the way of ready-written correspondence affords such opportunities) can receive adequate check. For obtaining in full perfection the testimony of a bonâ fide deponent, the mode that allows full time for recollection is not only a sufficient, but by far the best adapted, mode. But, for protecting justice against the artifices of determined mendacity, the mode that allows the least possible time to the premeditation necessary to that criminal purpose, is the only mode adequately adapted to the purpose.

When, in order to allow the necessary time for recollection, and perhaps for research and methodization, depositions in the form of ready-written answers have been allowed to succeed on the one part to ready-written interrogations on the other,—the faculty of examining the deponent de novo, in the way of vivâ voce interrogation, must still be reserved to the discretion of the judge. As the minutes taken of the vivâ voce examination served as a standard of reference and comparison to the examination in the way of ready-written correspondence, so will the deposition obtained in this latter form serve as a standard of reference and comparison for the second vivâ voce interrogation of the same deponent.

So much for invention. Next, as to mendacity-serving suggestion.

For depriving a man of the faculty of receiving suggestions from without—suggestions to all purposes, and consequently to the purpose of assistance to mendacious invention—the nature of things offers but one expedient: and that is, close confinement.

But, of close confinement, misdecision to the prejudice of the individual so confined, if in the character of defendant, is, unless obviated by due conditions, a contingent result; vexation, and that in an intense degree, a certain accompaniment.

For the purpose of receiving advice, as well as collecting evidence, unlimited communication with the world without doors will in general be necessary: therefore, co-existently with justice, close confinement can never be continued to the time of the trial or other definitive hearing.

But (setting aside those factitious suspensions of judicial procedure, so conducive to the ends of judicature, so adverse to the ends of justice,)—in the instance of a defendant whose case was deemed to warrant eventual confinement for the purpose of forthcomingness—between the moment of arrestation and the moment of the commencement of the process of his interrogation, no other interval would (unless by accident) be necessary, than what was employed in the journey to the seat of the judicatory. In the event of any such accident, or supposing the process of interrogation too long to be completed at one sitting, the judge might be, and ought to be, furnished with power for subjecting the defendant to close confinement, in such manner as to exclude him completely from the faculty of receiving, from without, any communications, but what were seen and allowed of by the judge.

The testimony of the individual being thus collected, under circumstances by which mendacious invention stands precluded from all assistance from without, and has undergone all the obstructions which the nature of things allows to be opposed to it,—then is the time for the doors of the place of confinement to be thrown open to all communication from without: and not only must this communication be allowed of, for the purpose of just defence in case of innocence, but moreover the allowance of it is attended with less advantage to delinquency than might at first view be supposed. The statements made under these circumstances by the delinquent (for let delinquency be supposed for the purpose of the argument) being consigned to writing, it will rarely happen, that, for the purpose of mendacious invention, any subsequent information can be of use.

On receipt of the information, the delinquent, pretending that in this or that point his statement had by misrecollection been rendered erroneous, or by non-recollection incomplete, demands another hearing for the purpose of amending the pretended defect. With a demand to this effect, compliance can scarcely ever, consistently with justice, be refused. But, in the original testimony, the judge possesses a standard of comparison, with which every subsequent testimony from the same source will have to be confronted and compared: and, supposing a variance and inconsistency, it will rest with the judge to satisfy himself which of the two presents the image of truth in the strongest characters, and whether it be to honest recollection, or to mendacity-serving suggestion from without, that the change is to be ascribed.

Thus much for the case of a defendant, considered in the character of a source of testimonial evidence. The case of an extraneous witness stands, in relation to these points, on grounds in a considerable degree different. Suppose him (whether on the particular occasion in question an accomplice or not) an habitual confederate or intimate of the defendant, and, as such, ready to deliver whatsoever testimony (true or false) promises to be of use to him. By the close confinement of the defendant, the witness stands as effectually precluded (so far as the defendant alone is concerned) from the faculty of receiving, as from that of communicating, mendacity-serving suggestions. But, supposing mendaciously-disposed witnesses of this description more than one,—to their case, be they ever so numerous, the effect of the obstruction does not extend.

Here, then, suppose the collateral ends of justice not attended to, or suppose the case such, that the mischief, consisting of the vexation necessary to be inflicted on the extraneous witness in question, is outweighed by the benefit attached to the additional security obtained for the fulfilment of the direct and positive end of justice; here the same reason which has been seen urging the application of the security afforded by close confinement to the case of the defendant, will be seen applying, and with equal force, to the case of the extraneous witness.

The extraneous witness being, by the supposition, not a partaker in the supposed course of delinquency—being by the supposition not guilty,—should not (it may be said) be treated as if he were guilty. True: on the score of punishment, unquestionably he ought not. But on this score, neither ought the defendant himself, in this incipient stage of the cause. If it be fit that the defendant should be thus treated, it is because probability appears of his being found guilty: if it be fit that the extraneous witness be thus treated, it is because a probability appears that his being thus treated is necessary to the removing of the obstacles that might otherwise be opposed, by mendacious testimony, to the conviction of the guilty defendant.*

What is manifest is, that the price thus considered as capable of being paid for an additional security against the liberation of a guilty defendant by mendacious testimony, is not a small one. Whether there be any, and (if any) what, cases, in which a practice of this kind ought to be considered as likely to be upon the whole an advantageous one, are questions that belong not to this place.

Whatsoever be the species of delinquency, of the vexation in question the magnitude will be the same. The proportion between the two mischiefs, between the two benefits, or between the benefit on one hand and the price paid for it in the shape of mischief (viz. vexation) on the other hand, will depend in every case upon the magnitude, that is, upon the mischievousness of the offence.

Against undue suggestions from bystanders while the witness is under examination, or waiting for it, such remedies as the nature of the case admits of, are on the one hand not very difficult to discover, nor on the other very efficient. They are of a purely physical nature, and consist of the temporary exclusion of the individual from whom any such undue suggestion may be apprehended.

Objects capable of being brought to view by such suggestion may be referred to the class of means or that of motives: means of mendacity,—information true or false: motives to mendacity,—by addresses made to the hopes of the witness, or to his fears.

The use of such exclusion, for the purpose of guarding the mind of the witness from the action of seductive motives, or (to use the common language) from undue influence, may be exemplified by the case of a non-adult witness,—a parent, or other person under whose direction he has been accustomed to act, being in the number of the bystanders. Of undue partiality on the part of the superior, mendacity on the part of the inferior will naturally enough in these circumstances be the apprehended consequence. To the mischief apprehended from this source, the temporary removal of the superior will in this case be an obvious, and in general an unobjectionable, remedy.

Other relations of dependency will naturally present themselves as affording a ground for the more extended application of the same remedy.

The wife being about to depose, the husband may in like manner be required to withdraw: the apprentice,—the master of such apprentice. The principle thus stated, the discussion of the particular applications of which it may be susceptible, will scarcely afford payment in the shape of utility for the place it would fill up. A discretionary power in the hands of the judge presents itself as preferable, in every such instance, to an unbending rule.

CHAPTER XII.

OF RE-EXAMINATION, REPETITION, OR RECOLEMENT.

§ 1.

Re-examination, with faculty of amendment, how and in what cases proper.

Under the head of repetition, in French recolement, we have to speak of an operation, the nature and the use of which will be apt to appear strange to an English eye. In England, no such thing was ever heard of: whence can come the demand for it anywhere else? Are witnesses a different set of people, testimony a different sort of thing, elsewhere, from what they are in England?

Repetition, however, is no less familiar on the north side of the Tweed, than it is strange on the south side. It is a term borrowed by Scotch from Roman law. Recolement is exactly the same thing in French law. French recolement, though in point of signification in an irregular sort of way, is a conjugate of Roman and English recollection. A deponent or his testimony is in Scotch said to be repeated, in French recoled (recolé or recollé), when, after having been interrogated at one time, he is at another time brought again to the judgment-seat, for the purpose of its being put to him whether to abide by his antecedently-delivered testimony, or amend it.

Not that, under any system of law, opportunities of this sort can be altogether wanting. Under English law, if in some sorts of causes they are altogether wanting, in other sorts of causes (and those grounded on the same facts) they present themselves in abundance. But, in English law, they present themselves without design—without any thought on the part of the legislator or the judge. Under Roman law, the faculty in question is the subject of anxious care and inflexible regulation: care, that is to say, as applied to a certain sort of causes, and as complete neglect in all the others. Problem for an academical prize:—Which of the two sets of jurists, the Roman and the English, has on this occasion shown itself blindest to the ends of justice?

In one quarter or another, three distinguishable objects appear to have been aimed at in the institution of this process:—1. Providing for the correctness and completeness of the testimony taken by itself, all seductive influence out of the question; 2. Preserving the purity of it from being violated by seductive influence, whether terrific or alluring, on the part of the judge; 3. Guarding against incorrectness and incompleteness, from this or any other cause, such minutes as may happen to have been taken of it.

Of these three objects, the first is the only one that appears to have met with any considerable regard under the original and generally prevalent system of Roman procedure.

In regard to the two other objects, the only system in which any indications can be found of their being looked to on this occasion, is the ecclesiastical branch of Anglo-Roman law. The deponent, after having been examined in the first instance by one sort of judge at one time and place, is, for the purpose of a sort of repetition (though in very general terms) brought before another sort of judge, a judge of superior dignity, at another time and place. The object of this change is made no secret of. It is to give the deponent, in case of misbehaviour to his prejudice on the part of the judge below, protection and redress at the tribunal of his superior.

No such advantage could have been looked to by the framers of the French ordinance. In France, at any rate, if the judge before whom the re-examination were taken were a different person from him by whom the original examination had been taken, he would have been a judge from the same bench—a judge of co-ordinate rank, not superordinate. But, if any such change took place, it could only be by accident: for in the ordinance it is assumed, or at least presumed, that, on the occasion of the several successive operations, the learned operator is the same.*

To the prosecution of these two collateral objects, a change in the person of the judge is an arrangement, the necessity of which seems obvious and indisputable. On the part of one and the same judge, seduction, if effected on the first occasion, would be persevered in on the second: if, by the tenor of the minutes, the testimony actually delivered had been misrepresented at the one time, the misrepresentation would hardly be corrected at any other.

On any such second occasion, the power of the check would of course be rendered more impressive by superordinate power on the part of the judge: but (though superiority were out of the question) the check afforded by the intervention of another person, though it were only in the character of a witness, much more if in character of a co-ordinate magistrate, could not but be in a very considerable degree impressive.

An objection is,—the information gained by the first judge, including the whole body of circumstantial evidence afforded by the deportment of the respondent, would be lost to the second judge. The objection is good in itself; but, by the legislators in question, not receivable. For under their system, be the number of judges by whom the evidence is decided on ever so great (and, were it not for the expense, the notion there is, or at least was, that there could never be too many,) no more than one of them is ever to set eyes on the evidence, or any species or part of it.

Henceforward, then, in speaking of this security, let us consider it in its application to the first object only; viz. the making better provision for the correctness and completeness of the testimony, by affording opportunity for the delivery of amendments on the ground of their having presented themselves since the time when the original mass to which they are applied was delivered.

On the principle of utility, the course which presented itself as proper to be taken in relation to this point, has been already brought to view: in the first instance—(to prevent, in case of mala fides, mendacity-serving recollection, and at any rate to save unnecessary delay, vexation, and expense)—interrogation on all sides vivâ voce, if practicable: then (if by the judge deemed necessary for the assistance of recollection, and not otherwise,) interrogation on all sides ex scripto: then again, interrogation vivâ voce ad explicandum, if deemed by him necessary for explanation of the scriptural testimony so obtained in the second instance, and its reconciliation with the original or first extracted mass of vivâ voce testimony, according to the minutes taken of it: the third again, if deemed by the judge necessary for the clearing up any doubts or differences remaining, according to his conception, upon the face of the two first,—and not otherwise: in each succeeding instance, the opportunity afforded, in case of special and adequate reason, but in no instance, of course.

By what description of persons, on each such occasion, it seemed proper that the process of interrogation should be performed, has also been brought to view: a system of all-comprehensive interrogation having on that occasion been proposed, as alike adapted to all sorts of causes: to all parties having a distinct and opposite interest, the faculty to be considered as belonging de jure: as likewise to the judge: and to extraneous witnesses, not without special allowance from the Judge, for special cause, in a case of difficulty.

If, with or without such supplemental and extraordinary (though regular and established) examinations, a suggestion should be presented from any of those quarters, urging on special ground the propriety of receiving from any such deponent an alleged amendment to his already delivered testimony,—better the door should (at any time before judgment, or even before execution) be opened, though out of time, than that incorrect or incomplete evidence should prevail, and misdecision and ultimate injustice be the consequence.

On these conditions, and these conditions only, does any operation analogous to the repetition or recolement of Roman law present itself as conducive to the ends of justice.

On the contrary, if no such special demand for re-interrogation should present itself, to what end have recourse to any such process? the delay, vexation, and expense attached to it, would be so much inconvenience in waste.

In any sort of cause, so to order matters as that the performance of the operation shall be matter of necessity, is entailing upon the public a certain and constant inconvenience, for the sake of a casual advantage.

And if one such re-examination must come of course, why not another? and so on, another and another without end?

In the three forms or stages of examination above proposed (vivâ voce once for all, or primary; ready-written; and vivâ voce explanatory,)—the application for each succeeding examination has been supposed to originate with one or other of the parties: the demand being presented, in the case of the second examination (the object of which is to afford the necessary time and opportunities for recollection, and opportunities of investigation and arrangement) by the nature of the case; in the instance of the third examination, by some casual inconsistency, real or apparent, between the two preceding ones.

In the present instance, the object to be provided for is that of a casual recollection, or alleged recollection, on the part of the deponent himself—operating in correction or completion of the deposition antecedently delivered. Supposing such alleged recollection sincere and real, no doubt surely can be entertained of the propriety of its being received—no reason suggested why deception, and consequent misdecision, should be admitted, for want of lights attainable from this quarter and in this mode, any more than for want of lights attainable from any other quarter or in any other mode.

In fact, it is from this quarter and in this mode alone, that it was the object of the Roman institution of recolement to throw lights upon the cause: for it is only in the case where the application proceeds from the quondam deponent himself, that any addition is on this occasion made to his evidence. Do you persist in your former evidence? If his answer be in the affirmative, no fresh interrogatory is put to him. If indeed his answer be, Yes, but my wish is, that an addition be made to such or such an effect, or that an alteration be made to such or such an effect,—then indeed, if in what he says on that occasion there be anything which in the conception of the judge requires elucidation, nothing can be more natural, or frequently more necessary, than that question should succeed question, until such a set of answers as shall have appeared productive of the requisite degree of distinctness, have been obtained. This being the case, a recolement exhibits, as it may happen, the characters of an additional examination, or those of a pure and simple confirmation of the testimony delivered on a preceding one, according to circumstances.

The fixation of an interview on purpose, at a more or less distant period of time, for the purpose of affording an opportunity for alterations in testimony, whether the deponent applies for it or no, and whether the judge thinks it of any use or no, forms a strange contrast with the blind confidence reposed in the Roman judge in so many other respects, especially in that of the total absence of publicity. The power of the judge being left without controul in so many other points, the coercion imposed upon him in this respect may be numbered among the inconsistencies of this system, as well as among the incongruities.

The capital feature, the radically pernicious and corruptive feature, of close secrecy, being established, partly upon avoidable grounds, partly upon unavoidable ones—partly for the obstruction it afforded to mendacious invention, partly for the facility it afforded to corrupt judges for doing as they pleased; the pretence it afforded for a regular addition to the mass of official and professional profit in the shape of fees, had probably at least as large a share as any other circumstance, in the composition of the mass of psychological and final causes.* For, that the expenses of criminal procedure were considerable, and that, by the particular operation here in question, a considerable addition was made to the aggregate mass, are facts sufficiently established.

Moreover, if in any one sort of cause, why not in every sort of cause? Is there any one sort of cause in which it may not as well happen to a man to forget a fact at one time, to recollect it at another time, as in any other? The principal circumstances on which the demand for recollection-time is apt to depend, are, 1. Impressiveness of the transaction (i. e. its relative importance in the eyes of the percipient witness;) 2. Complexity; and 3. Remoteness or staleness. The degree of these respective qualities being given, the natural result should be, that the transaction should be more correctly and completely present to the mind at any antecedent point of time, than at any subsequent one. True: and so it will be in general: on the other hand, in virtue of the principle of association, so it will now and then happen,—so in every man’s experience it does happen,—that a circumstance which at one time will not present itself, notwithstanding the sincerest and most anxious search that can be made for it, shall, by means of some train of ideas with which it has happened to it to have associated itself, be brought up, as it were, by accident, at some subsequent point of time.

At any rate,—on whatever it may be that the demand for opportunity of amendment may happen to depend,—what it never does depend upon is the nature of the cause, as characterized by any such terms as criminal and civil, criminal and non-criminal. If, therefore, it be fit that the opportunity be afforded in all criminal cases, so is it in all other cases.

No (says somebody:) it is not that in criminal causes the probability of a demand for recollection is greater than in non-criminal ones; but that, should the mischief of misdecision take place for want of recollection, for want of that amendment which the recollection would have given to the aggregate mass of evidence, this mischief is much greater in the one case than in the other, and consequently creates a greater demand for this as well as all other securities that present a chance for the prevention of it.

True: but, in the first place, all that can be admitted in regard to the superior importance of criminal causes, as compared with non-criminal ones, resolves itself into this, viz. that, upon an average of all sorts of each description, the importance of a criminal suit will be greater than that of a non-criminal one. But, this being admitted, it will not be the less true that there will be many and many a non-criminal cause superior in importance to many and many a criminal one.

In the next place, whatever be the superior importance of an average criminal cause, it will never follow, either that, in a criminal cause, recollection-time, with the delay, vexation, and expense attached to it, should be given where it is not wanted; or that, in a non-criminal cause, it should be refused where it is wanted.

It certainly is not in every instance, in every individual instance, that the need of this opportunity presents itself. In English law it is not granted, eo intuitu, in any instance.

If this be true, it might surely have been sufficient so to have left the door open to it, as to have rendered it obtainable on special order of the judge, either of his own motion, or at the application of the deponent himself, or of some other person having an interest in the correctness and completeness of his testimony.†

§ 2.

Faculty of amendment, in what cases refused in English Equity practice.

If the practice of English equity courts be tried by the standard which we have now laid down, it will be found inconsistent in a most extraordinary degree.

In equity, a deposition is sometimes called a deposition, sometimes not. I shall begin with the depositions which are not called depositions, and then go on to those which are.

1. Depositions called answers, containing the testimony of a party on one side, viz. the defendant.

In some instances, the equity courts have allowed a defendant to amend his answer: and in all those instances they have done well.

In other instances they have refused this liberty: and in all these instances they have done ill.

In the sort of thing called an answer, two instruments of very different kinds are confounded: 1. Claims, or demands; viz. on the part of a defendant (for a plaintiff in equity never makes answers,) counter-claims, counter-demands; and 2. Responses, in the way of testimony, extracted by the interrogatories.

On this occasion, as on many others, to refuse to a man, at any time, the faculty of preferring any such claims as he conceives himself able to make good in law, is manifest iniquity. A claim may indeed be ill-timed; and, on that ground, the reception of it may with propriety be refused at that time. But that is not the ground of refusal here; for, in a variety of instances, amendments to answers have been permitted.

Rational cause, none: probable historical, psychological, final cause, desire of making business. Let it not be thought that the counter-claim, be it what it may, would never be entertained. No claim can be framed so unreasonable as not to be received; but there must be another suit for it. File your bill, defendant; change yourself into a plaintiff, and treat the court with a fresh suit: that you may do, and welcome.

To refuse to a man whose testimony has been incorrect or incomplete, the liberty of making it correct and complete, is iniquity equally gross, and something worse: it is producing the effect of false testimony, without incurring the punishment.

Oh, but, instead of adding truth to falsehood, he may add falsehood to truth.

Answer 1. The objection, if good in any instance, would be good in all instances. Yet still your cases are open to applications for this liberty.

Answer 2. What if that which he now wishes to add be false,—are you under any obligation to believe it? The second deposition, will it prove inconsistent with the first? Inconsistency is one of the means of detecting falsehood.

Answer 3. On an indictment in the King’s Bench for an assault, the same deponent, the prosecutor, tells his story three or four times over: three or four times, on the occasion of so many stated inquiries, besides any number of casual times on the occasion of the first of those three or four inquiries.

But when, in order to make the amendment, a part of the answer is obliterated, the inconsistency does not appear. It is only in one of two modes of amendment that this can happen: nor in that can it happen, but by your fault. First you make the inconvenience, and then you plead it.

The amendment which the defendant wishes to make,—the tendency of it may be to his advantage, or it may be to his adversary’s advantage. In the latter case, the iniquity is doubled: you will not suffer the defendant to speak truth—you will not suffer the plaintiff to have justice.

“An answer,” it is said, “shall not be amended, after an indictment for perjury, preferred or threatened, in order to avoid the indictment.”* “Upon a motion to amend a schedule to the defendant’s answer, an indictment for perjury having been preferred, or at least threatened, the Lord Chancellor refused to interfere, although he took it to be clear that the defendant did not intend to perjure himself, as he had no interest in so doing. The question would be proper before the Grand Jury, who, if they thought the defendant did not intend to perjure himself, would throw out the indictment: on the other hand, if there were ground for the indictment, it would be wrong for him to interpose.”

“The reporter” (says a note) “has been informed, a similar application had been rejected a few days before, in the case of Vaux v. Lord Waltham, where, however, the Lord Chancellor seemed inclined to grant the motion, if the affidavit had clearly shown it to be a mistake.”

The amendment not made, the Grand Jury would have found the bill or thrown it out: and the amendment made, what should have hindered them from doing exactly the same thing? If those to whose prejudice the refusal operated had not been thus injured, in what way, unless by positive and needless institution, would the authority of the Grand Jury have been obstructed?

Observe the wavering: a natural effect, where reason is unknown, and precedents, as usual, opposite. Observe too the process: testimony actually received, to know whether testimony, and from the self-same person to the self-same point, shall be allowed to be received: folios upon folios written and received, to know whether a word or two of the words contained in them shall be received.

On this footing stands the business of repetition, or of making amendments to answers, in the practice of English equity. By what combination of power and industry could it have been placed on any footing more favourable to the maintenance of profitable uncertainty,—less favourable to the extraction of truth and the maintenance of justice? “Shall the amendment be permitted?” is a point always subjected to contestation. But, if it be received, it is received in the mode in which falsehood receives as little discouragement as it can receive:—no room for ulterior interrogation—no room for vivâ voce scrutiny.

Besides whatever number of unreported cases that may remain lost to the world, carent quia vate sacro, the books afford I know not how many reported ones: in some of these the liberty was granted, in some refused: and, upon the whole, the man of law may read for his encouragement, and the suitor, if he has eyes for looking into such books, to his dismay, that “there are no certain rules for amending answers.”*

Take a case in which the object of the defendant in his amendment was to speak, not in the simple character of a deponent, recollecting himself, correcting himself, and delivering confessorial testimony, but in the mixed character of a deponent and a party defendant, delivering self-serving testimony, asserting a fact for the purpose of grounding on it a fresh counterclaim. At a time subsequent to that of the putting in the answer, the fact wished in this way to be brought to view had taken place. The fact is true: is the defendant to be suffered to allege it? The claims founded on it are just: is he to be suffered to take the benefit of them? Not he, indeed. And why is he not? because he would have his due a year or two sooner: because the man of law, in all his hundred shapes, would thus be defrauded of his prey.

“To order the cause to stand over, till a new bill, in which the fact can be put to issue, be brought to a hearing with the original suit,”—this is what, in the eyes of the then learned, and since by such learning ennobled, treatise-writer, “seems to be the proper way.” Suitor, would you grudge your hundred pounds, or your two hundred pounds (supposing you to have it)? Can you be so unreasonable, when you are informed that, in the eyes of the same supremely learned person, a bill for this purpose seems to be in the nature of a plea puis darrein continuance at common law?—so that equity, it seems, consists in catching with avidity at every pretence for the manufacture of delay, vexation, and expense, that can be found in the storehouse of the special pleader. The fact is ready to be seen, but the man of law is not yet ready to see it: the parties must first have been under a fresh course of vexation and pillage for a few months or years. All this while, observe that, by the plea puis darrein continuance, the party receives the benefit of a fresh fact without the misery of a fresh suit: and the proposal here is, that the party shall not have the benefit of any fresh fact without a fresh suit: such is the logic, such the morality, of this learning: such is the improvement made upon common law by equity.

Think of what any one suit in equity is; think of what an additional suit must be; and think of the judge who would force men into it for such a cause!

Objection.—Was it not your own plan, that the making or not making amendments to testimony should be committed to the discretion of the judge?—Yes: on the supposition that the testimony is collected in the mode acknowledged to be the only good one, viz. by interrogation vivâ voce. Why? Because this mode, though so much more trustworthy than every other with reference to the direct ends of justice, involves a sacrifice in the way of delay, vexation, and expense. But, in the case where under the technical system the faculty of amendment is so often refused,—in the case of the answer in equity, amendments might succeed one another in any number without addition to the expense. The amendment not being to be subjected in any case to interrogation, the transmission of the few lines, or few words, that in such a case would be necessary, would not be attended with any expense worth regarding—(factitious expense excepted, to which of course there are no bounds.) The receiving it quietly without argument, would not be attended with any expense. What creates the expense, is the dispute whether it shall be received, after it has been received already for the purpose of the dispute.

On the proposed plan, everything turns upon the proportion between the advantage in respect of the direct ends of justice, and the inconvenience in respect of delay, vexation, and expense: to take measure of this proportion is what the judge is called upon to do in every case, and the only thing he has to do in any case. On the existing plan, not a thought is ever bestowed on the delay, vexation, and expense, unless it be in the manner that has been seen, for the purpose of giving increase to them.

II. Depositions called depositions: containing the testimony of extraneous witnesses.

This case is less complex than the preceding: claims confounded with testimony are here out of the question: claims are the claims of parties only: witnesses, as such, have no claim.

Six cases relative to the amendment of depositions are afforded by the books:* in the earliest and latest the faculty was refused; in the four others it was allowed.

In the 4th (Greills and Gansel) the language of the Lord Chancellor (Lord King) is so consonant to the ends of justice, so dissonant to the general tenor of the language of law and equity, that I cannot refuse myself the satisfaction of contemplating it in the very words:—“When it appears to the Court that either the examiner is mistaken in taking the deposition, or the witness in making it, I think it for the advancement of truth and justice, that the mistake should be amended, and the sooner this is done the better, in regard the witness may be dead, or in remote parts, before the hearing: it will be hard and unjust to pin a witness down to what is a mistake, by denying to rectify it: as to what has been objected of the inconvenience of amending the deposition after publication, it was impossible to know it until publication: whereupon let the deposition be amended, as desired, and the witness swear it over again.”

This was the language of a man of sense and honesty—a spring in an Arabian desert: but it was not of a nature to run long. Anno 1800, the digested index affords this note: “Motion to amend depositions after publication refused.” Ingram v. Mitchell, March 1800, 5 Ves. jun. 297.

Compare what Lord King says about amending depositions, with all that is said and done, as above, about amending answers: see whether there be anything in the situation of a defendant, that should render the interests of truth and justice less worthy of the regard of a Lord Chancellor than in the situation of an extraneous witness; or anything in the testimony of the one that should render the rectification of a mistake in it less conducive than in that of the other, to the advancement of truth and justice.

Compare the language of sense and honesty in the mouth of Lord King, on the subject of amending depositions, with the language of everybody else on the subject of amending answers: but of all things forget not to compare it with the use above proposed to be made of the plea of puis darrein continuance.

A not the least curious circumstance in this business is the utter want of reference between the cases relative to depositions and the cases relative to answers. Between two objects, in themselves so nearly approaching to coincidence, the difference of denomination seems to have raised up a barrier impenetrable to every learned mind. No allusion in arguments—no reference in books of practice, or abridgments, or indexes. The light of reason had shone upon the expanse, the whole expanse of the subject, in both its branches, from the mind of Lord King: but it was not that light that was suited to the sensibility of learned eyes. The light shone in darkness; but the darkness comprehended it not.

CHAPTER XIII.

OF SPONTANEOUS OR UNINTERROGATED TESTIMONY.

§ 1.

In what cases ought uninterrogated testimony to be received?

In the description given of the mode of bringing facts, or supposed facts, under the cognizance of the judge, a supposition all along, though tacitly, made, has been, that, for the eliciting of the facts, a correspondent question or series of questions has been employed. To the best, or rather only proper mode of conducting the business, such introductory interrogations are, as has been seen, necessary. For what reason they are necessary, has also been fully shown. But, in whatever degree this mode is preferable in general to the opposite mode, it is by no means the only one in use. Hence comes the necessity of another distinction on the subject of evidence:—1. Evidence brought out in answer to questions, or, more shortly, evidence by examination; 2. Evidence spontaneous, issuing from the source of its own accord.

Of this sort is that species of testimony, the expression of which (so much of it as is exhibited by one and the same deponent, uno flatu, in one and the same instrument) forms the tenor of what, in the spurious latinity of English law, has obtained the name of an affidavit. Say, then—1. Evidence by examination; 2. Evidence by affidavit.

When I spoke of the opposite form as preferable to this, I subjoined (what was necessary to be subjoined) a mark of limitation, expressed by the words in general. Cases there certainly are, in which this mode of exhibiting evidence may be preferable to the other. Abused as it will be found to be, it is by no means without its use.

As a mode of coming at the truth of the case, where the extraction of the truth is attended with any considerable difficulty, nothing can be more palpably incompetent than the use of this irregular shape, when confronted in this point of view with the regular shape in which evidence is exhibited in ordinary cases. Yet evidence in this shape is employed in a multitude of instances, and with indisputable advantage. It is so in English practice, it is so in French practice; nor can I conceive how the use of it can well be avoided in the practice of any other political state.

Cases, therefore, being to be found in which it is employed with advantage, what are those cases? By what marks are they to be recognised?

The regular mode of extracting evidence being (with reference to the main end of procedure, viz. rectitude of decision) the only tolerably competent mode in most cases, and not inferior to this irregular mode in any case,—if in any case it can be proper to resort to this extraordinary mode in preference—to depart from that which is in general the only eligible mode—it must be in respect of some special advantage to be derived from such departure. This special advantage, if the list of the several subordinate ends of procedure (viz. avoidance of delay, of vexation, and of expense) is rightly made up, must be referable to one or more of those ends. Thus far, then, we are arrived, viz. that it is only for the sake of some saving to be made in the articles of delay, vexation, and expense—one or more of them—that the sort of evidence called spontaneous, evidence by affidavit, ought to be received.

What cases come within this limitation? They are comprisable under the following description: viz. cases where the extraction of the truth is not attended with any considerable difficulty. How, then, to search out these cases?

To quadrate with the mass of facts requisite to be brought to view, the evidence exhibited in each instance must in the first place be correct—conformable to the facts as far as it goes; in the next place, complete—corresponding in its extent to that of the whole mass.

But how to make sure of its covering the whole mass? To make sure of it in each instance, a complete description of the whole mass requisite must be capable of being given in each instance. This is actually done in all cases where the nature and extent of the facts sought is described and settled by pre-appointed forms. A form of this sort, has it been pre-appointed by the legislator? He has framed then to himself a conception of the exact purport and description of the mass of facts, the existence of which he wishes, for the purpose in question, to see ascertained: he has given expression to it in and by that form. Being according to that form, it cannot, in the legislator’s own view of the matter, fail of being complete.

In the drawing up of a form of this sort, two cautions present themselves as highly material to be observed: viz. 1. That the description of the mass of facts to be averred shall, if possible, be of such a description, that the averment of it (if false) cannot be made without subjecting the deponent to the imputation, at least, of perjury; 2. In the next place, that, in case of perjury, the facts pitched upon in this way for attestation shall be such (if possible) as that, of the perjury, if committed, the nature of the case shall afford a probability of a mass of contrary proof sufficient for conviction.

An example sufficient for the illustration of the above rules may be found in the case of an affidavit made requisite (suppose) to entitle a man to receive a periodical payment due upon an annuity granted for the term of another man’s life.

1. Suppose the form of the deposition to be in these words:—Juratus (the deponent) maketh oath and saith, that the said Vivant Denom (the person in question) was living at the city of Paris on the first day of this instant January. Affidavits of life, of a tenor not more precise than this, have, I am inclined to think, been received. But can perjury be assigned (as the term is) upon an affidavit thus worded? I should much doubt it. Vivant Denom was no longer living at that day. Juratus, on being prosecuted as for perjury, produces a man who deposes, and that truly, that he, the deponent, had, previously to the taking of the affidavit, in the presence of Juratus, mentioned Vivant Denom as a person then alive: the deposition may easily enough have been true: it may have been equally true, whether the deponent at the time of the above conversation believed Denom to be then alive, or believed, or was even certain, by the evidence of his own senses, to the contrary. Yet, after a deposition to this effect, would Juratus be convicted of perjury?

Instead of being worded as above, let the form run thus:—Juratus maketh oath and saith, that the said Vivant Denom was living at the city of Paris on the first day of this instant January, inasmuch as he (this deponent) did, on the day aforesaid, of the month aforesaid, at the place aforesaid, see the said Vivant Denom, he the said Vivant Denom being then alive. In this case, supposing it established by sufficient evidence, either that Denom was then dead (say, to put the matter out of doubt, several days before,) or that Juratus was in no part of France near that time,—so far at least as depends upon the wording of the form, no doubt could exist to prevent a conviction as for perjury.

Among the variety of steps that come to be taken in the course of any system of procedure, facts in abundance may be found simple enough in their nature to give occasion to affidavits, printed forms for which might be framed by the appointment even of a legislator. But, over and above the cases of this description, others might, from time to time, present themselves, in which, at the instance of the party calling for the evidence, a form might be prepared, in conformity to the above rules, under the eye and with the allowance of the judge. It would be his care to provide that the indulgence prayed for, on the ground of a saving in point of delay, vexation, and expense, should not be purchased by too great a sacrifice (if by any sacrifice at all,) in respect of rectitude of decision, the main end of judicature.

But, how commodious and eligible soever it may be that evidence should (to save the trouble of personal attendance in the course or on the occasion of a suit, or, where there is no suit, to prevent a suit) be received in this form in the first instance, it by no means follows that the evidence thus given should not, so long as the deponent were living and forthcoming, be on any subsequent occasion subjected to scrutiny in the ordinary mode. The expectation of such a scrutiny would, at the time of making the affidavit, be a very powerful check to incorrectness as well as mendacity—a very powerful security for the correctness as well as veracity of the testimony contained in it.

At present, under the English law, no such check, no such security, exists—at least in any sort of regularity. In the case of a non-litigant witness, the having made an affidavit in regard to any fact, would not indeed exempt him from being called upon to give his evidence vivâ voce, in the ordinary way, in any cause in which he might have been called upon for this purpose had there been no such affidavit made. But as, according to the general rule, no defendant can be examined vivâ voce in a cause of either kind, penal or non-penal, nor any plaintiff in a non-penal one, the consequence is, that, upon the whole, it can seldom happen that a person who has given his testimony in this unscrutinized shape, can look upon himself as liable to be called upon to speak to the same points under the check of the regular vivâ voce scrutiny.

At present, the only security there is for the truth of testimony taken in this way, is the prospect of a prosecution as for perjury. Several causes concur in rendering this remedy a very inadequate succedaneum to the proposed eventual vivâ voce examination.

1. Where the side of the prosecution could produce but one witness, the prospect of producing by such evidence the degree of persuasion requisite for conviction, would at best appear extremely precarious, commonly hopeless: in this case, the common phrase is, it is but oath against oath: and though it is in words only that the equality is constant, in real amount accidental and even rare, yet the simplicity of the argument gives it weight which cannot but be expected to be in general prevailing.

2. In the next place, how fully soever the falsehood of a statement in an affidavit may be put out of doubt, there cannot be, any more than there ought to be, any expectation, that, in a case where that falsehood is regarded as standing clear from mendacity, a prosecution for perjury (supposing it instituted) would be followed by conviction.

3. In the third place, this remedy (a vexatious one to the party already vexed, as well as severely penal to the author of the vexation) cannot be administered but by a suit on purpose.

4. In the fourth place, the satisfaction to the party injured is not either immediate or certain, but remote and even precarious.

On the other hand,—suppose the expectation of an eventual vivâ voce examination and cross-examination to hang over a man’s head,—an expectation to this effect would afford a degree of security for correctness as well as veracity, much beyond what hitherto men have been accustomed to experience, or so much as conceive.

The expectation of this scrutiny will in no inconsiderable degree answer the purpose of the actual application of it—as in the case of the declaration of property, required for the purpose of the income tax, alluded to in a former place.

Upon the whole, the admission of affidavit evidence appears to stand on similar ground to that of unsanctioned and thence unscrutinized official evidence. In both instances, evidence, in a shape evidently inferior, is received in lieu of evidence in that shape which, on account of its manifest superiority, is become the ordinary shape. In both instances, the presumption is, that, in respect to the security for veracity and correctness, and thence for rectitude of decision, the evidence which in other cases would be manifestly inferior, is not so, practically speaking (at least, in such a degree as to forbid the employment of it,) in the particular circumstances of these two cases. In both instances, the reason for departing from the superior and regular mode, consists in the saving made in point of delay, vexation, and expense, or at any rate of vexation. In both instances, therefore, the substitution ought to be no more than provisional; the superior and regular mode being liable to be recurred to after it, on either of two suppositions: if the saving in point of delay, vexation, and expense, together, is looked upon as not worth regarding; or if on any particular account the danger of deception (whether by mendacity or simple incorrectness,) and thence of undue decision, threatens to rise to such a pitch as to constitute a mass of disadvantage more than equivalent to the saving in point of delay, vexation, and expense.

§ 2.

How to lessen the imperfections of uninterrogated testimony.

How eminently ill-adapted to every useful purpose testimony is when deprived of the security afforded by interrogation, has already been observed. The more imperfect it is in the essential part of its nature, the more diligent should the legislator be in doing what depends upon him towards lessening its imperfections, to the end that, where the exhibition of the testimony in question in any less imperfect form is either physically or prudentially impracticable, it may in this unavoidably imperfect shape make its appearance under the least possible disadvantage.

In the case where two masses of testimony in this form are opposed to one another,—each, it has already been observed, by the opposition it cannot but receive in case of falsity, serves as a sort of security for the trustworthiness (as far as respects correctness) of the other: acting in this respect as a sort of succedaneum, though a very inadequate one, to the process of interrogation.

To apply it in this character to most advantage, all that can be done for it in respect of securities, is to make what provision can be made for it under the head of distinctness.

The arrangements which presented themselves as favourable to the production of this quality, have already been brought to view, when considered as applicable to a discourse of the same nature considered as subjected to the process of interrogation.* The application of them to a mass of uninterrogated evidence will be an operation little more than mechanical. Mutatis mutandis, they apply of course; and to discover what the mutanda are, the slightest glance will serve. The requisite changes being made, the description of the arrangements will stand as follows:—

1. The statements should be divided into articles, distinct and numbered. Though the reasons which render such distinctness desirable are the same in this case as in that of the questions and answers in the case of deposition taken on examination, unfortunately the facility of securing it is far from being so. Questions naturally clothe themselves in the form of distinct and short and simple propositions: if, instead of being simple, a question happens to be of a complex nature, it is easily seen to be so, and in what respect it is so: and it being seen that it is complex, and in what respect, it is commonly seen in what way it requires to be decomposed, in order to its being resolved into simple ones. Where the framer of the question really wishes for a clear answer, his wish will dispose him to make the question as simple and distinct as possible: even where it happens not to be his wish to obtain a clear answer (as in the case of a party wishing to involve the cause in confusion by written examinations for the sake of delay, or his law-agent for the sake of the profit to be extracted from it,) the very form of the interrogation, by betraying the complexity, serves in a considerable degree to betray the mala fides that gave birth to it.

In the case of an examination, whether vivâ voce or in writing, the most uninformed interrogator knows therefore where to stop, and does stop accordingly, before the proposition has extended to any unmeasurable degree of complexity. In the case of spontaneous deposition—a species of discourse, which, not being broken into by questions, presents itself in the form of one continuous narrative—the above principle of distinction and division has no place. What, then, in this case, is to be done? Suppose a professional agent employed, the difficulty will not be insurmountable, nor very considerable: the statement being required to be broken down into numbered articles, the number of words allowed to be put into each article may be limited. But, in many cases, it is only because the importance of the suit will not pay for the expense of the superior mode of examination and deposition, that the inferior mode is here proposed to be admitted of: and if this costly assistance must necessarily be called in, the cost of it is necessarily (because the labour as well as skill is necessarily) much augmented by the substitution of this inferior mode. To inscribe a logical proposition within a circle of given extent, is a sort of geometry to which the suitor, even though not altogether a stranger to the art of writing, will in general be incompetent. Supposing him indeed to have written what he has to write, what he has thus written will at any rate be divisible (though not always by himself) into grammatical sentences.†

The laws of punctuation are not so universally agreed upon, nor so thoroughly settled, as that the boundary line between every two sentences shall in every case be beyond dispute or doubt: but in each instance—so it be settled (which it may always be) so long as there is somebody whose duty it is to settle it—the mode in which it is settled, and the degree of simplicity resulting from such mode, will comparatively be a matter of indifference. Supposing the statement, in its way to the party interested, to pass through the hands of the judge, or a scribe acting under the direction of the judge,—such judge or scribe would always be able to divide it for this purpose into numbered articles, with scarce any more time and trouble than would be requisite for the simple reading of it.

The above, however, in case of legal intercourse by written correspondence, is far from being the only or the greatest difficulty. In the production of an imperfectly instructed mind, the great difficulty is, not to know where one sentence ends and another begins, but to obviate the confusion resulting from incomplete, inexplicit, indistinct, ambiguous, incoherent, and inconsistent statements. In the case of vivâ voce examination, all these defects are prevented, or all material aberration corrected, by the steady line traced out by the questions put, and the immediate veto opposed to aberrations by the judge. In the case of examination and deposition by writters correspondence, this present guide is wanting: and, unless a professional assistant be called in, many will be the instances in which a correspondence thus carried on will be too rambling and irrelevant to answer the intended purpose.

The danger of such confusion, and the difficulty of avoiding or remedying it, will depend, in a great degree, on the greater or less degree of complexity in the case: and, though now and then a case may run out into a prodigious degree of complexity, happily, in by far the greater number of cases, the degree of complexity will not be such as to oppose any very troublesome bar to distinctness of statement or narration.

2. The deponent should speak in the first person, and not in the third.

Reasons, again, the same as in the case of written deposition ex interrogato; and in an equal degree.

3. It is rarely that a spontaneous deponent can, from his own knowledge, bear testimony to all the facts which he may have occasion to allege. It will be proper therefore to require, for the expression of his persuasion, different terms, corresponding to so many differences in the source from whence that persuasion is derived.

Reason:—For the sake of comprehending them all alike under the obligation to abstain from mendacity and temerity. A persuasion grounded on the relation of others, or on inferences drawn by a man from the relations of others, or from his own perceptions (present or past,) cannot, in point of intensity, stand altogether upon a level with a persuasion grounded either on his own present perceptions, or even his past perceptions, if presented to him by a clear and lively recollection. To these latter the term knowledge is regarded as applicable: to the former, not: no term expressive of any more intense persuasion than what is expressed by the term belief.

In the use of vivâ voce examination, a description of the intensity of persuasion, if not drawn forth with sufficient precision by one question, may be drawn forth with greater precision by another or another. In the case of ready-written testimony, the deponent, having time sufficient before him to choose his words, may be expected and called upon to choose them accordingly.*

§ 3.

Abusive applications made of uninterrogated testimony in English law.

Of the narrow description of cases in which the use made of this comparatively untrustworthy species of testimony may be reconcilable to the ends of justice, a view has just been given: the occasion is now come for observing the use that actually has been made of it in judicial practice.

Neglecting for once the order of precedence as between the Roman and the English mode, the exemplifications afforded of this miserable species of evidence, may, for the sake of illustration, be ranged in a climax, the steps of the ladder rising one above another in the scale of absurdity.

1. Reciprocal affidavit evidence, affidavits and counter-affidavits, in the English mode: averments on one side upon oath, liable to be encountered by averments on the other side, also upon oath.

2. Reciprocal allegations without oath: averments on one side without oath liable to be encountered by averments on the other side, also without oath. Allegations relative to the main points in issue: allegations called pleadings, and in use as well in English as in Roman law.

3. Ex parte affidavit evidence: averments upon oath, but on one side only (and without any faculty of encountering them allowed on the other side,) rendered decisive: a practice in use in many instances under the English system, but in such manner as to command not a definitive decision relative to the main points of the cause, but a decision, actual or virtual, relative to some incidental point—a decision giving effect to some incidental application.

4. Ex parte deposition without oath, but not without particularization: deposition rendered conclusive in such manner as to command the decision on the main points of the cause: exemplified in English practice in the case of a return to a mandamus.

5. Ex parte deposition upon oath, but without particularization: deposition commanding the decision on the main points of the cause: exemplified in Roman practice, in the averments called respectively Oaths purgatory, suppletory, &c., and in the English wager of law.†

To prove the incongruity of these several exemplifications of uninterrogated evidence, argument will not here be necessary: they are condemned when classed. Enumeration and elucidation are the tasks to which the present chapter is confined.

On the historical cause of such of them as are applicable to the purpose of giving commencement to a malâ fide cause—a cause which, under the immediate obligation of more trustworthy evidence, would not have been commenced,—or continuance to any cause,—of the psychological or final cause of these arrangements, the cause which gave birth to them in the minds of the inventors, nothing need here be said, in addition to what has been said under another head. The more writing, the more business: the more business, the more profit—the more delay, vexation, and expense, at the charge of those whose interests are not regarded; but the more profit to those whose interests alone were ever the real objects of regard.

Of such of them as establish, for the ground of the ultimate decision, such bad evidence in concurrence with, or to the exclusion of, better evidence,—the psychological cause is not equally obvious: imbecility seems to claim a share equal at least to that of improbity in the composition of it.

A species of evidence the most completely divested of all intrinsic securities for truth—a species of evidence standing in the very lowest point of the scale of trustworthiness—a species of evidence not fit, as we have seen, to be trusted to in any contested case, nor so much as in an uncontested one without being supported by the eventual faculty of scrutinizing the same testimony in a better mode: such is the mode to which an exclusive preference has been given by English judges: such is the sort of information, the only sort, which, for their own use, they will allow themselves to receive: such is the only sort of evidence on which they will ground any of their decisions, final or incidental, of which, without the clog of a jury, they assume to themselves the cognizance.

When performed by the judge alone, without the benefit of that zeal and appropriate information on both sides, which cannot be expected from any other quarter than that of the parties,—so sensible is the judge of the comparative imperfection even of the mode by examination, when performed in this way, that—as often as the importance of the cause or the intricacy of the question presents to his mind a warrant for the expense, vexation, and delay—he dismisses the question from his own tribunal, and sends it to be tried at another, before a very different and less experienced judicature; for the benefit of adding examination by the parties to the examination by the judge. Affidavit work has not the benefit of any sort of examination—not so much as of that loose and incurious sort of examination that may be expected from a judge’s deputy, to whom the function of deciding upon it does not belong: affidavit evidence is altogether exempt from scrutiny; and this is the only sort of evidence which an English common-law judge will ever suffer to come before him—the only sort of evidence on which he will suffer any decision of his to be grounded!

Here follow, for illustration, some of the principal applications of it.

In criminali, where the mode of prosecution is by information, the cause is tried upon this improper evidence, to know whether it shall be tried upon proper evidence.

In criminali,—whether the mode of prosecution be by information or by indictment,—after a trial on proper evidence, or rather by evidence in a proper shape, before a jury, the cause is tried over again upon this bad evidence.

If, making no defence before the jury, the defendant suffers judgment to go by default,—in case of indictment the cause is tried for the first time—in case of information for the second time—upon this bad evidence.*

When the prosecution is by attachment (be it really a criminal suit, be it a non-criminal suit in the form of a criminal one) the cause is tried upon no other evidence.

In non-criminali, in all the courts, but more especially in the common law courts, an extensive and numerous class of causes hereinafter distinguished by the name of motion causes, are never tried on any other evidence.

When brought before the Chancellor in the form of a petition, questions relative to the estates of bankrupts (questions, the value of which may rise to any amount) are tried on no other evidence.†

In every regular court, whether of the common law or equity class, where, in the course of a cause brought on in any of the established modes (whether indictment, information, action, or bill,) any incidental application comes to be made, grounded, as in almost every case it must be, upon some specially alleged matter of fact,—the fact is tried upon no other evidence.—N.B. Before the principal inquiry comes on (if destined to come on at all,) the fate of the cause is liable, perpetually liable, to be disposed of by this or that incidental one.

Why so exclusive a predilection for the worst evidence?—why this inviolable determination never to decide but upon the worst grounds? The reason (meaning by reason not surely the justificative cause, of which sort of reason there is none—but the historical and psychological cause)—the reason in this sense is not difficult to perceive, to any one who is not determined not to see it.

1. Affidavit work brings grist to the official and professional mill: vivâ voce examination brings none.

2. Having extracts read from ready-written and manufactured testimony, when occasionally referred to in argument by a brother of the long robe, is comparatively an easy process: watching and assisting the extraction of testimony, in its genuine colours, and in all its plenitude, from willing and unwilling witnesses, is a task comparatively laborious.

Two interests, two all-mighty interests, and both sinister ones, have therefore concurred in determining the arbiters of man’s fate never to judge but upon bad grounds: the interest of their purses, and the interest of their ease.

When evidence was to be received by them, by them who had all possible modes at their choice,—what mode of all modes did they choose? The mode the most repugnant to all the ends of justice—the mode the most lucrative and most easy to themselves, their dependents, and their friends.

Nor is it in their power to plead in self-defence, that this bad mode of extraction is employed by them to save the delay, vexation, and expense, which might be the consequence of requiring the testimony to be delivered vivâ voce.

He whose testimony is desired,—let him be all the time within view of the great hall, and all the time known to be so; let him be the whole time in court, as the several attorneys of the court, for example, always are supposed to be, and sometimes are;—would any judge of the court suffer the man to be examined vivâ voce, instead of receiving the testimony in the shape of affidavit evidence?—Not he indeed.

One of their rules is—You must give the best evidence the nature of the thing admits of. Behold in this example one specimen of the regard paid to the engagement taken by that rule!

Cases there are, and happily to a large extent, in which the choice in question—the choice of the form to be given to evidence, was not open to them. In these instances, and in these alone, they did consent to receive it—consent, as it were per force, to receive it in some less improper shape. But in every instance (one excepted, of which presently, in which choice was absolutely chained,) they took effectual care not to be sufferers from the exchange.

A rule, not (like the other) proclaimed, but observed, and with a degree of fidelity with which no rule ever proclaimed is ever observed, is, never to suffer the light of evidence to find its way directly to the eye of the judge: never but through some impure medium, by which one part is absorbed, another part distorted into false colours: written affidavits, through the pen of one sort of lawyer—an attorney; written answers through the pens of two sorts of lawyers (a barrister being forced upon the party by modern regulation, to make up for the assumed untrustworthiness of the attorney:) even vivâ voce testimony delivered in that pure state to the jury, must first have been misrepresented, curtailed, and added to, by the venal eloquence of a lawyer hired for the purpose, whose falsehoods and sophistry it is part of the duty of the judge (if he happens to be in the humour), to persuade them, if possible, to blot out of their minds.

What if any unlearned judge—what if any court of conscience—what if any justice of peace—were to take it upon them to try a cause upon affidavit evidence? Even in the way of supposition, the idea is scarce endurable. Absurdity thus palpable, iniquity thus flagrant, never yet found its way into the practice, scarcely into the imagination, of any unlearned judge. To try causes without any evidence but such as is unfit to be received in any cause, is among the uncommunicable (in this instance the happily uncommunicable) privileges of learned judges.

Decisions of unlearned judges, decisions of justice of the peace, are quashed without mercy—quashed for no reason, quashed on no pretence, except that, what no law had ever ordered them to do, they had omitted to do, viz. to set forth the evidence.* Set forth the evidence?—to what end? Unless they had omitted the ceremony of an oath, and usurped the privilege of granting the mendacity-licence so regularly granted by their learned superiors, was there any danger of their grounding their decisions on any evidence so bad as the only evidence which those their superiors ever suffer themselves to hear? No: nor so much as a possibility of it.

When a course of guilt rendered necessary by ill-constructed laws, and become inveterate by habit, is become so familiar to the eye as no longer to be productive of any perceptible sensation; men, though in the theatre of justice accustomed to talk morality, as a poor player in the like character might do upon the stage,—such men will, like the poor player, sometimes forget their part. The men I have in view shall not be named by me; they are particular men, and there are more than one of them: I was never set against them by any the least cause of enmity; enmity, had there ever been any, would long since have been extingnished in the grave; they would scarcely, were they alive, regard the observation so much as a token, or even as a cause of displeasure: but I will not, on this occasion, refuse to mankind the benefit of this my testimony. Oftentimes have I observed them, while affidavits have been reading, looking about to their brethren on the bench, or across the court to their quondam brethren at the bar, with sympathetic nods and winks and smiles, noting perjury, and treating it as a good joke. Such, while suitors are men, and while judges are men, must be the consequences of affidavit evidence. These were old men—I was then a young one: youth, where there is any virtue, is the season for it: virtue, at a distance from temptation, may be practised without difficulty. Whatever be the cause, well do I remember that no such jokes, especially when followed by such marks of relish, have ever met my eyes or ears without exciting a mixed sensation of disgust and melancholy.

Are judges insensible to the impropriety of this species of evidence? No: they are not insensible of it. How often have I not heard them speaking with displeasure of the task imposed upon them, or attempted to be imposed upon them, of trying a cause by affidavits! Why then submit to it at all? Because, in certain cases, like so many other unpleasant tasks (unpleasant, at least, in proportion to a man’s love of justice,) it stands imposed upon them by the inviolable law of usage.

When the decision is by a judge without a jury, could not the examination be carried on without a jury likewise, at the same time carried on in other respects as if there were a jury to hear it, and decide upon it? Oh no: not for the world. Was ever proposition so extravagant? Littleton, with Coke upon his back, would rise out of his grave to protest against it.

Locke, in his Essay, speaks of a student in the art of dancing, who could not practise unless an old trunk he had been used to see in the rooms, were in the particular place he had been used to see it in. An English judge would not know how to lend an ear to the examination of a witness, unless he saw a dozen tradesmen sitting in the box in which on these occasions he had been used to see them.

So much for affidavit evidence. Bad as it is, this species of evidence must be acknowledged to be a great improvement on the sort of information to which, in all incidental, as well as initiative applications, the effect of evidence was at that time, and still continues to be, given, in the courts established on the Roman model, in most parts of the continent of Europe.

CHAPTER XIV.

GENERAL VIEW OF THE INCONGRUITIES OF ENGLISH LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE.

Taking the ends of justice, and, in so far as any contrariety or opposition is discernible on the part of any one as compared to any other, taking the aggregate interest of justice, as constituted by the preference due to this more important end,—the above rules, are they conformable to those ends? If yes, every arrangement contrary to any one of them, is, pro tanto, contrary to the ends of justice, and (in so far as the ends of justice meet with regard on the part of those on whom the state of the law depends) will not be suffered to continue. So many instances of departure from the above rules, so many instances of incongruity in the established practice.

To any one to whom the general spirit of the established systems (which is as much as to say, the existing modifications of the technical system) is known, it must already be pretty apparent, that whichsoever of them be taken, and subjected to this test of propriety, will be found altogether incapable of abiding it.

Referred to this test, the incongruities of the Anglican modification of that system will be found more numerous and more flagrant than those of any other. Not that it is upon the whole more adverse, perhaps, than every other to the ends of justice; but that the others, or at least its grand rival the Roman system, being in its deviation from the rule of right more uniform, those of the Anglican system will be found more numerous, more diversified, more inconsistent, and, in respect of their inconsistency, upon the whole more revolting to the scrutinizing eye.

As to the possible modes of incongruity, or deviation from the track marked out by the ends of justice,—in this part of the course, as in every other, they are of course innumerable. Imagination being here at fault, it is to observation that we must have recourse for examples. Directed to the field of English procedure, observation will accordingly afford us but too ample a stock. At every line it will become more and more evident, that, taking altogether the arrangements which will be referred to, or brought to view, it is scarce possible that, in the framing of them, any sincere regard should ever have been had to the ends of justice.

The standards of congruity, and thence the tests of incongruity, having already been established, no more remains to be done at present, than, upon a view of the several leading arrangements of Anglican procedure (so far as the present part of the subject is concerned,) to mark out—in the first place, the several incongruities,—in the second place, the several institutions in which they have respectively been exemplified.

The following are the heads under which the principal incongruities belonging to this part of the field of evidence appear reducible:—

1. Receiving testimony in the ready-written, that is, the less trustworthy, form, without any regard to expense, vexation, and delay; and thence, in instances in which the sacrifice of the direct ends of justice is pure and simple, uncompensated by any saving or advantage, having respect to these incidental or collateral ends.

2. Receiving testimony exempt from that security which is afforded by punishment against mendacity and temerarious falsity; and that in cases in which punishment is applicable for that purpose, with no less propriety than in any of the other cases in which punishment is actually thus applied.

3. Receiving testimony exempt from that security which is afforded against mendacity and temerarious falsity by the sanction of an oath; and that in cases in which that sanction is applicable for that purpose with no less propriety than in any other of the cases in which it is actually thus applied.

4. Receiving testimony, whether in the vivâ voce or the ready-written form, exempt from that security which is afforded as well against mendacity and temerarious falsity as against undesigned incorrectness and incompleteness, by the faculty of special interrogation, especially by or on behalf of the party adverse to him by whom the testimony has been called in; and this too not on any such score as that of a regard to preponderant inconvenience in the shape of expense, vexation, and delay.

5. Receiving testimony (vivâ voce testimony) in secret—i. e. without the benefit of publicity, in cases in which no ground of demand for secrecy applies: in cases in which the general advantages attached to publicity do not stand counterweighed by any of the inconveniences which, in the shape of vexation, are apt in particular cases to result from the employment of that security.

6. Receiving testimony (vivâ voce testimony) in public, in cases in which either no considerable advantage results from the employment of that security, or such advantage (if any) is outweighed by the inconvenience resulting, as above, from the employment of that security in particular cases.

7. In the case of testimony delivered vivâ voce, neglecting to make any express provision, or any provision at all, for recordation: and—where, without any such provision, such means have actually been brought into existence as it were by accident—making no adequate use of them, but suffering evidence of a less trustworthy, and comparatively highly untrustworthy, complexion, to be employed, and even to the exclusion of the most trustworthy sort above mentioned.

8. Providing to causes of one denomination, viz. criminal causes, one mode or plan of collection: to causes of another denomination, viz. civil causes, another mode or plan of collection altogether different: allowing, at the same time, the same individual case to be inquired after in either or both of those widely different modes.

9. Applying to suits of the same denomination (viz. criminal causes,) modes or plans of collection altogether different, according as this or that arbitrarily allotted sub-denomination happens to have been given to them, such as indictment, information, attachment: allowing, at the same time, the same individual case to be inquired after in any one, or in several together, of those modes; amongst which, as compared one with another, the difference is again extremely wide.

10. Applying in like manner to divers suits, all comprehended under the same general denomination of civil suits, modes or plans of collection altogether different, according as this or that arbitrarily allotted sub-denomination happens respectively to have been given to them, such as action, bill in equity, petition in bankruptcy, suit in ecclesiastical court: allowing here also the same individual case to be inquired after in any one, or in several together, of those modes; amongst which the difference is again extremely wide.

11. Applying, in the course of the same suit, modes and plans of collection altogether different, according as the fact or question forming the subject of inquiry were the principal, or an incidental one, and the inquiry thereupon considered as definitive, or but preparatory: and this, although in both the importance be exactly the same, the fate of the cause being as effectually determined by a decision on the incidental question, as by a decision on the principal question.

12. Rendering it necessary that one and same fact or question should in all cases be inquired into several times over; and this not in respect of any special demand which in this or that individual instance may present itself for such repetition, but in virtue of a general unbending rule, grounded on the denomination under which the species of cause or demand happens to have been aggregated, by an appointment altogether arbitrary, as above.

Should it enter into the conception of any admirer of technical procedure to fancy, or pretend, that, in the allotment of the modes of collection to each case, any regard has really been paid to the different demands presented by different cases for closeness and elaborateness of scrutiny; or, in other words, that any symptoms have been manifested in it of any consideration had of the interests of truth and justice, unless it be in the view of making the more complete sacrifice of them on the altar of professional profit; let him take into mind the following example, and then answer, if he has courage enough for the task.

Læsus, having (as he says) sustained a personal injury from personal violence offered to his person by the hand of Furius, has it in contemplation to call him to account in the way of law. In this, one of the most simple and common of all cases, the following are the options he has, in the first place, of the courses or modes of procedure which he will pursue, and thence of the modes of collection which will be pursued in relation to the testimony by which the fact of the offence is to be established.

I. In the first place, he may proceed by action—civil action: and in this case the collection of the evidence is twice performed, each time in a different mode; viz. 1. At the outset of the cause, by the declaration: the instrument so called, in which the plaintiff, without the sanction of an oath, and without being subject to examination, is made to assert in general terms the fact of the offence, coupled with the designation of the person of the offender, and the individual person who has been the subject of the offence. 2. At the trial: but on this occasion, so far from being deemed necessary, the testimony of the plaintiff is universally excluded. Extraneous witnesses, such, if any, as the transaction happens to have furnished, are (unless excluded upon some other pretence, out of the legion of pretences which, in the technical system, men of law have started upon this ground) heard and examined vivâ voce, in the mode in that behalf already indicated.

II. In the next place, he may proceed by indictment, with or without previous application to a justice of the peace. In the case of the indictment, he is twice heard, if he thinks proper, in the character of a witness in his own behalf, in his own cause, with or without extraneous witnesses, as the case may be (the same person who, had he proceeded in the mode of procedure called action, would have been too untrustworthy to be heard;) both times deposing vivâ voce, and subject to interrogation on the part of the judge—1. At the inquiry before the grand jury, without being subject to cross-examination by or in behalf of the defendant; 2. At the definitive trial, before the petit jury, subject to that scrutiny.

As to the defendant, Furius:—at the inquiry before the grand jury, he cannot depose, either for or against himself, being excluded from both faculties by the physical bar of absence: at the inquiry before the petit jury, he stands also excluded from both, but by the legal bar of positive institution. No question can be put to him by the advocate on the other side; no question can be put to him by his own advocate. He has a right, if he thinks fit to exercise it (a right which, if he listens to the advice of his advocate, he will not exercise,) to speak, as the phrase is, in his own defence: but as the oath cannot be tendered to him on his own application, any more than at the instance of the adversary, what he says is not considered as testimony.

3. Previously to the application to the grand jury for the allowance, on their part, necessary to the production of the evidence before the petit jury, Læsus has, if he has thought fit, made application to a justice of the peace: on which occasion, Furius having also, by summons or warrant (i. e. without or with bodily force,) been brought before the magisstrate in the presence of Læsus, the whole transaction may have been completely brought to light by a mass of testimony collected in a mode not differing by any features worth expatiating upon, from the mode just mentioned as observed on the occasion of the definitive inquiry, the trial before the petit jury.

III. In the third place, he may proceed in the way of information: in which case are exhibited the two or the three courses of inquiry and masses of testimony above stated under that head, viz.

1. Affidavit work, on the occasion of the motion made by the advocate of Læsus for the rule upon Furius to show cause why the information proposed to be exhibited against him by Læsus should not be filed; i. e. entered among the records, to form a groundwork for the definitive inquiry called the trial. On this occasion, Læsus exhibits his own testimony, his own ready-written and uninterrogable testimony, in the shape of an affidavit, together with the testimony of any such extraneous witnesses as (the transaction having happened to furnish them) can be persuaded voluntarily to join their affidavits to his.

2. On the occasion of showing cause, as above, comes, on the part of the defendant Furius, his own testimony in his own behalf; which, being in the ready-written form, and secure against the scrutiny of adverse interrogation, is therefore admitted without scruple. Of course, unless subject to any special objections, so are the affidavits of as many extraneous witnesses as he can prevail upon to take part with him: for in this stage the cause affords not, on either side, any compulsive process for the obtainment of evidence: so that, on this stage, upon which the remaining ones are built, there cannot be any other witnesses than partial ones.

3. At the time of the trial, the evidence and the mode in which it is collected stand on the same footing here, in the case of information, as above in the case of indictment. But, compared with the views of reason and justice entertained or professed to be entertained at an anterior stage, procedure by information affords a contrast not exhibited in the procedure by indictment. The self-same person who, on the preliminary inquiry, discoursing in the way of ready-written and uninterrogable testimony, has been received to depose upon oath, is now, on the trial, subjected to the same disadvantage, and screened by the same privilege, as in the case of the indictment. He can neither be compelled by questions, with or without the sanction of an oath, to bring forward or admit such truths as make against him; nor suffered, under the same sanction of an oath, to bring forward such truths as make for the advantage of his cause. The oath which, in the same case and the same cause, was no hardship, is now become, on a sudden, an intolerable one: the same individual, upon whose credibility the fate of the cause has been depending, now becomes so completely incredible as to be unreceivable.

4. In case of conviction, after the trial, comes (though not necessarily yet frequently, perhaps most frequently) the fresh batch of affidavit work, as above described. The credibility, the trustworthiness, now remains or is revived on all sides: the incredible prosecutor (incredible, had his suit been called an action) is now encountered, and for the second time, by the lately incredible, and now again credible and trustworthy, defendant. They are now again both credible: why? Because it is in the least trustworthy of all modes of testification that they both of them make application to be heard.

IV. It was (suppose) on the occasion of the serving on Furius the process of the court (the court in which the new mode of procedure now to be spoken of is instituted,)—that is, of conveying a summons issued from the court, or ministering in some other way to the power and authority of the court,—that Læsus received from him the injury complained of. It is a case that happens every now and then, and may happen at any time. In this case, another option he has, is, to proceed by way of attachment.

1. Affidavit work, the least trustworthy of all modes of collection, now completely supersedes and renders unnecessary every other, that is, every better, mode. Grand jury and petit jury are now found to be mere lumber, and, as such, thrown into the dust-hole. Both fools’ baubles being thus put out of the way, the Chief justice, like Cromwell in the House of Commons, wields the rod of power and punishment at his ease: and this he is suffered to do by the worshippers of the idol with twelve heads: always on condition of his acting upon improper evidence—upon evidence too untrustworthy ever to be offered to that idol.

2. When, on the ground of the mass of evidence thus collected, the defendant Furius has been convicted and consigned to punishment (to imprisonment) in consequence of the attachment’s having gone against him, as the phrase is; then comes the fresh inquiry above mentioned under that head—the inquiry by interrogatories. This mode, being different from the former, can therefore scarcely avoid being better. Though the questions be premeditated, and (unless by a discretionary latitude assumed by the subaltern judge) incapable of being accommodated, each succeeding one, to the preceding answers, the answers at any rate are unpremediated: or at least may be, for aught that appears to the contrary, if the judge ad hoc (the master) thinks fit to insist on their being delivered on the spot. But, lest the mode of inquiry should be too good, it is now carefully wrapped up in official darkness: and, after everything has been brought to light that was deemed necessary to warrant the punishment imposed, a deep secret covers the rest. The party injured, too—the prosecutor Læsus—from whose suggestions further questions and further lights might have been expected with more reason than from anybody else, had any such further lights been necessary,—finds the door of this secret court shut against him, as against everybody else. As far as zeal is worth looking for on the part of the master, the subaltern of the great judge, against whose authority the contempt has militated, as much may perhaps be not unreasonably looked for, as may in general be sufficient for the purpose. But all the zeal in the world will not stand in the place of information: and, if the case were of a sort to need any, the only person on whose part it can rationally be looked for, is the prosecutor; on whose face, for anything that appears, the door of the closet is shut, as well as against every other but the examiner and examinee, with or without a third person in the character of scribe.

Meantime, should that be true which has pretty much the air of being so, viz. that the supplemental inquiry is an inquiry without an object, unless it be the extracting from the examinee the fees for the exercise thus given to his patience,—any defects observable in the plan of operation will be the less to be regretted.*

* V. Let Læsus be a clergyman: the misfortune is of the number of those to which a clergyman, no less than any other man, is exposed. In this case he has the option of yet another remedy,—a remedy by suit in the ecclesiastical court. The badness of the mode of extraction employed in courts of that class will be hereafter seen.

Amidst all these remedies, with the corresponding manipulations for the collection of testimony—a question that to a thinking reader can scarce fail to present itself, is—can they all, or any, and which of them, be employed together? To meet this question by an all comprehensive and at the same time determinate set of answers, is what the most experienced lawyer would scarcely take upon him.

When, for an injury of this nature, a man has prosecuted the wrong-doer in the way of indictment and (the indictment still pending) has afterwards sued him in the way of action,—instances have been known where (on application made in the way of motion) the court have compelled the plaintiff to make his election between the two remedies, by staying, or threatening to stay, the action, till he has undertaken not to go on with the indictment.

On inquiry, it would perhaps turn out that the restraint thus put upon multiplied litigation, for the same cause, may have been modified in other ways besides the above. But the changes that might be rung in this way would, if taken in hand by a mathematician, be found in no small degree numerous; and amongst them might perhaps be found as many for which, for want of precedents, a circumspect lawyer would not take upon him to answer, as of those concerning which the oracle would not scruple to pronounce: especially as ecclesiastical law would require to be included in the sphere of his meditations; and, the law (ignorance of which is not excused in any man) being, for the general convenience of the practitioners, divided into divers branches, some of them having little communication with their rivals, the judge who is erudite in the one, confesses himself, with habitual modesty and reciprocally-requited candour, less than a tyro in the other.

For example: though, in the order above exemplified, the restriction is applicable, it follows not that it would be so, were the order, as between remedy and remedy, reversed. By an action for the injury, a man recovers damages—obtains money under the name of damages: it follows not by any means, that an indictment brought afterwards for the same offence could be got rid of on that ground. In case of conviction, in considering the amount of the penalty (if pecuniary) to be inflicted, the court might, and probably enough would, consider the prior burthen so imposed: but, though the penalty should be reduced to a nominal one, the costs would remain without reduction; and, in comparison with that part of the burthen which is not capable of being adjusted to merits and demerits, the part which is capable of such adjustment is commonly very inconsiderable.

Another consideration which the oracle would know better than to bring to view, is, that, for a man to take his chance of getting rid of one such burthen, it would be necessary for him to begin with taking upon himself another. For, in an English court of justice, nothing is done out of the way without motion, nor any regard paid to a motion unless supported (and in general with the faculty of being combated) by affidavit work: a sort of contest which is in fact a suit of itself, in everything but the name; being, as hath already been seen, that sort of suit in which matters of any degree of importance may be and are determined.

One point on which a man may venture to pronounce with greater confidence, is, that, in the case of the clergyman (for example,) the three remedies, as they are called, each with its proportion of irreducible and previously unascertainable costs, must each of them be brought into action, or a correspondent end of justice (at least according to Blackstone’s, which is the technically correct conception of the ends of justice) remain unfulfilled. Reparation of the breach made in the king’s peace, reparation of the damage sustained by the party injured, and reparation of the damage done by the sin to the sinner’s soul,—these are the objects to be provided for; and, where money is the healing matter, it requires for each a different sum to be levied by a different set of hands.† By a sum of ten pounds, for example, conveyed into the pockets of the individual injured, the injury sustained by that individual (that is to say, to the extent of the sum, and in consequence of its repairing or healing property,) is repaired. But by this ten pounds no sort of repair is applied to the breach that had been made in the king’s peace: to make this second repair requires another sum, suppose a like sum of ten pounds, by which, if duly conveyed into the pocket of the king—(what in law is said of the king is commonly a fiction, but here it is plain truth)—duly conveyed into the royal pocket by the surveyor of the green wax (there is much learning in that green wax,* ) may be presumed to produce that salutary effect.

As little, although put into the pocket of a clergyman, does this same ten pounds contribute to the repair of the damage done by the assault to the sinner’s (the assaulter’s) soul: the soul remains as sinful and as sick as ever, unless and until a third sum, say also of ten pounds (according to Blackstone, it must be a round one,) has found its way into the pockets of the officers of the court, by way of “commutation of penance.”† Thus stands the matter according to Blackstone, to whose peering eyes depredation is an object of scorn or adoration, according to the power of the depredator; and by whom every fee that finds its way into the pockets of those by-practitioners is regarded as so much stolen from the superior college.

If Blackstone were to be trusted to, “these three kinds of prosecution may, all of them,” (he says not, any of them,) be pursued for one and the same offence. Interrogated about the stop that might be put to the action, he might probably enough have replied, that to pursue is one thing, to pursue with effect is another. But he who, on any occasion, trusts to Blackstone, leans on a broken reed: and it is among the privileges of an interpreter of English jurisprudence, that his interpretations may always be deceitful, without ever being false.

On the subject of testimony, the following presents itself as a tolerably correct and tolerably complete list of the sources from whence the distinctions struck out by the sinister industry of the man of law have been derived:

1. The relation borne to the cause by the proposed deponent: that of an extraneous witness, with or without interest—(not that his being without interest is a point that, to the purpose of its sinister effect on the mind, ever can be ascertained)—or that of plaintiff, or that of defendant, in the cause.

2. The modification given to the course of procedure, as distinguished by the terms criminal and civil.

3. The sub-modifications given to that course, as further distinguished by the appellations of indictment, information, appeal, criminal suit in the spiritual or ecclesiastical court, action, mandamus, prohibition, bill in equity, petition, civil suit in the spiritual or ecclesiastical court.

4. The stage to which, according to the sub-modification to which it has been referred, the inquiry by which the evidence in question is called for happens to belong:—on an indictment for felony or breach of the peace, the preparatory examination; the inquiry before the grand jury; the trial (except in case of felony;) the supplemental affidavit work, preparatory to the pronouncing of judgment or sentence:—in an information, the preparatory affidavit work; the trial; the supplemental affidavit work preparatory to the receiving judgment or sentence: and so on.

5. The station of the demand on the occasion of which the testimony is proposed to be received; viz. whether it be the principal demand, which gave beginning to the cause, or some incidental demand, made (whether by the plaintiff or by the defendant) in the course of the cause.

6. The person at whose instance the testimony is proposed to be exhibited; whether the proposed deponent himself, the judge, a plaintiff, a defendant, a co-witness, or an advocate, on the one side or the other: and (in each case except the two first) whether the party on whose side the deponent was first called upon to depose, or any other person calling for his testimony on the same or on the opposite side.

7. The willingness or reluctance, whether on the part of the proposed deponent himself, or on that of either party or any co-witness, in respect of his coming to act in that character, according to which modifications, his testimony, if admitted, is admitted either without compulsion or on compulsion; if excluded, is excluded either on the score of reluctance, or notwithstanding willingness.

8. The condition of the testimony in respect to particularity: whether resting altogether on generals, or descending more or less deep into particulars, through the fixation of limited or individual portions of time and place, and the designation of the things and persons that are the subjects of it, by classes, determinate assemblages, or individuals.

9. The occasion, whether judicial or extrajudicial, on which the testimony in question is proposed to be, or has been, delivered.

10. The nature of the signs by which it has been or is proposed to be expressed, at the moment of its first utterance, or afterwards: i. e. whether delivered by evanescent signs, as vivâ voce, or by permanent signs, as in the state of a ready-written document; and if by evanescent signs, whether fixed or not fixed, during its utterance, or at any subsequent period of time, as by written notes or minutes.

11. In case of falsehood with mendacity, or falsehood through temerity (though this latter species, materially as it differs from the other, is scarcely distinguished;) the annexation or non-annexation of punishment to a deviation from the path of truth.

12. In the above cases, the performance or non-performance of the ceremony called swearing, or taking an oath—a ceremony instituted for the purpose of binding witnesses the more effectually to an adherence to the line of truth, on the occasion of their acting in the character of deposing witnesses.

It is of distinctions like these that nineteen parts out of twenty of the chaos of jurisprudential law are composed. It is from effusions like these, that the manufacturer of that chaos of fraud and imbecility derives, from his accomplices and his dupes, the praise of ingenuity and science.

To the eye of common sense and common honesty, looking to the ends of justice, all these distinctions are the baseless fabric of distorted vision. In the estimation of common sense and common honesty, it matters not—

1. What relation the individual whose testimony is in question, bears to the cause—whether that of extraneous witness (interested or not interested,) plaintiff, or defendant.

2. Nor whether the suit be called criminal or civil.

3. Nor, in either case, by what capricious, or accidental, or obsolete, or insidious modifications, the course of procedure in it has been diversified, and by what denominations those modifications have been distinguished.

4. Nor in what stage the inquiry is: and so on, as the reader may easily pursue for himself, through the twelve sources of distinction.

CHAPTER XV.

MODE OF EXTRACTION IN ENGLISH COMMON-LAW PROCEDURE—ITS INCONGRUITIES.

§ 1.

Case, penal: offence, a felony: procedure by indictment.

Where the punishment rises to a certain pitch, the offence is called a felony: below that pitch, it is called a misdemeanour. Without endless details, any more precise account would be impossible.

The mode of collecting the evidence is, in these different cases, distinguished by material differences; but these differences are made to depend, not upon the nature of the case, but upon the nature of the punishment.

In the case of a felony, the evidence is collected (the whole or the principal part of it) three times over: each time by a different tribunal, and according to a different set of arrangements. Once, by an inferior and non-professional sort of judge called a justice of peace, without a jury: in this case, the hearing or hearings are called the examination. A second time, by a sort of jury without a judge, called the grand jury. And a third time, by, or rather with, another sort of jury (directed by a judge, inferior or superior, non-professional on professional,) called a petit jury. It is on the last occasion only that the hearing is called the trial, a term for which no other language affords anything like an equivalent.

So in the case of a misdemeanour, regarded as amounting to a breach of the peace.

In the case of a misdemeanour not so regarded, the preliminary examination has no place. The cause comes, in the first instance, before the grand jury; unless where the proceeding is by information, of which afterwards.

We shall begin with the case of felonies.

I. Inquiry before a justice.

Before this tribunal there are commonly at least two hearings. At the first, comes a person in the character of a prosecutor, to state the fact of the supposed offence, and the person of the supposed offender, for the purpose of thus forming the ground of his application for a warrant.* A warrant is an order to be directed to a proper officer by the justice, for the arrestation of the defendant, that he may be brought before him for examination, and, in the meantime, committed to a proper prison, to secure his forthcomingness for that purpose.

At this first hearing, the absence of the defendant is supposed by the nature of the case.† The plaintiff, or (as he is called) the prosecutor, being first put on his oath, states his case in the way of spontaneous deposition; the judge on his part interposes what questions he thinks fit; which questions, it is evident, so far as their operation or tendency is in favour of the defendant, have the effect of adverse interrogation.

This ex parte examination is either altogether private, or more or less public in any degree, according to accidental circumstances, and the discretion of the judge. By a provision of statute law, minutes of such examination ought to be taken by this magistrate. Whether they ever are taken, does not appear in print. What does appear is, that there are instances in which this statute is disobeyed; in which ill consequences arise from this disobedience; in which the superior judges are apprized of the disobedience, see the ill consequences of it, and take no notice of it.*

Next comes the reciprocal hearing; when, the defendant being produced in the character of a prisoner, the prosecutor (being, as before, upon oath) tells his story as before. He is confronted with the defendant; the defendant puts what questions to him he thinks fit, which questions have of course the effect of an adverse examination: to the one, as well as to the other, questions such as the occasion demands are put of course by the judge. With or instead of the above-mentioned first witness, may have come on this occasion any number of other witnesses, according to the individual circumstances of the case. The defendant, on this occasion, is not upon oath: he is neither required nor permitted to subject himself to the ceremony. In case of an illegal attack made upon a man’s person in the way of physical force, the faculty of self-defence is allowed to him for his protection, by English as well as other laws. In England, for his protection against legal accusation, the faculty of mendacity, with its attendant, non-responsion, is (on this occasion as on others) carefully reserved to him, as a branch of the lawful faculty of self-defence. In putting questions to a defendant thus under examination, it is a sort of fashion to give him warning that he is at liberty to answer them or not as he thinks fit; for, though whatever a supposed delinquent is supposed to have said, out of the presence of a judge, to his own prejudice, is heard with perfect readiness,—yet, whatever evidence of the same nature it might have happened to him thus to furnish against himself in the presence of a judge, is carefully prevented from coming into existence. The criminal (for to a criminal alone can the intimation be of any use) the criminal, if the case admit of his availing himself of this friendly warning, avails himself of it, and is eventually turned loose again into society to afflict it with fresh crimes. The judge obtains the praise of patriotism and humanity and legal science, at no other expense than that of the interests of truth, justice, and public security. A deluded public pays a man with its praise for betraying its own interests. Sometimes it may happen that the public, besides being duped to its own prejudice, is duped for its own advantage. The magistrate, wishing to reconcile, if possible, the merit of serving the public interest, with the praise of having betrayed it, extracts the confessorial testimony where the cause stands in need of it, reserving the warning for the cases in which he perceives the inutility of it. But all this is matter of chance.

The number of these examinations depends of course upon the exigency of the individual case: upon the number of the witnesses, the remoteness of their situation, and the several other possible causes of unavoidable complication and delay.

Of the evidence thus obtained, the aggregate constitutes what, under the Roman procedure, would constitute ground sufficient for a decision in the first instance—for a decision which, supposing no appeal, would be definitive.

In English procedure, the acts of this tribunal serve but as a passport to the two others. In a large proportion of cases of this class (perhaps the greater number,) the truth is as effectually brought to light in one hearing (that hearing being a reciprocal one,) as it could be in fifty: but, because ulterior inquiry is in some few cases necessary, it is employed in all; including those in which it is useless, and worse than useless.

II. Inquiry before the grand jury.

Applied to the class of cases still in question, the operations of this intermediate tribunal may be set down as purely mischievous. They had once an object, but that object has been done away: it might be seen to be so, if bigotry had eyes; but bigotry is blind: the incumbrance keeps its place; lawyers and their dupes never speak of it but with rapture.

The object was to preserve an innocent man from the vexation incidental to prosecution: and innocent he might well be pronounced, if, even upon the face of the evidence produced against him by the adversary, delinquency did not appear probable.

The design was laudable: and to this design, the procedure, whatsoever might be the inconveniences attached to it in other respects, was naturally enough adapted.

1. Evidence was received only on one side—on the side of the prosecutor: on the side of the defendant, not; for to call upon him for his evidence would be to subject him to the very vexation from which it was intended he should be preserved.

2. The evidence was received and collected in secret; that is to say, in so far as secrecy was compatible with the presence and participation of a number of persons (the persons composing the grand jury) from twelve to twenty-three. In the same intention, these jurymen were sworn to secrecy. Why? Because, at this period, the defendant knew nothing of the matter. The bill being found by this jury (i. e. the accusation pronounced to have had a sufficient ground in point of evidence to warrant the ulterior inquiry,) thereupon went an order for his arrestation. Had it not been for the oath, a friendly juryman might give intimation, and the defendant make his escape.

In the first place, then, the institution is useless: it has been so about these two hundred and fifty years. The defendant has been already subjected to the vexation from which he was thus to have been preserved. From the middle of the sixteenth century, the examinations above described have taken place.

In the next place, it is mischievous. It is so in no small degree. One of the great boasts, as well as one of the greatest merits, of English procedure, is its publicity. This security, it has been seen, is sacrificed: sacrificed, and so continues to be, after the object for which the sacrifice was made is gone. The consequence is, an unlimited domination to popular prejudice; to party, if not personal interest and affection; to false humanity; to caprice under all its inscrutable modifications. In practice, many a bill which ought to have been found, is thrown out without reason—many a mischievous delinquent turned loose. In the abuse of this useless institution may be seen the sole use and justification of the inquiry by information; of which presently in its place.

Under the auspices of publicity, for example—as at the succeeding inquiry before the petit jury, causes in other respects the same, could not be productive of equal mischief. Whatsoever became of the legal sanction, the moral would not lose its hold. Of a guilty man, who is seen and known to be guilty, the proof of his guilt is itself a punishment.

Nor, as applied to the judges themselves, is the tutelary genius of publicity altogether without its influence. In the way of legal punishment, they are indeed exempt from responsibility altogether. In the way of moral reproach,—though, by the want of individual responsibility, the security by publicity against misdecision is, on the part of these ephemeral judges, sadly diminished,—it were too much to look upon it as altogether destroyed.

III. Inquiry before the petit jury, called the trial.

The doors are now thrown open: under the auspices of publicity, collection and registration of the evidence are performed, each in its best mode, with no other exceptions than those which will be mentioned as we proceed.

At this stage, the defendant is necessarily present, as being necessarily in custody: on which account it is that he is never designated by any other appellation than that of the prisoner: if he were not present, the trial would not be legal.*

Being present, one question, and but one, is put to him, and that at the outset of the inquiry: “Are you guilty or not guilty?” If his answer were Guilty, and he were to abide by it, the trial would be at an end: Guilty would of course be the decision—the verdict (as it is called) of the jury.†

That this species of confessorial evidence ought not of itself to be regarded as sufficient to warrant conviction—that it ought to be followed up and confirmed by a detailed narrative—is a proposition which will be maintained in another place.‡ That mendacity, and subornation of mendacity, is no more necessary or conducive to the ends of justice on this than on any other occasion, is a proposition, the truth of which may be left to rest upon its own evidence.

Where it happens to a prisoner to answer in the affirmative—in appropriate language, to plead guilty—if he insists on it, the general understanding seems to be that he has a right to have such his plea recorded: in which case there is a necessary end of the trial, and the verdict follows of course.

In practice, it is grown into a sort of fashion, when a prisoner has returned this answer, for the judge to endeavour to persuade him to withdraw it, and substitute the opposite plea, the plea of not guilty, in its place. The wicked man, repenting of his wickedness, offers what atonement is in his power: the judge, the chosen minister of righteousness, bids him repent of his repentance, and in place of the truth, substitute a barefaced lie. Such is the morality, such the holiness, of an English judge.∥

It would be some extenuation, though by no means a justification, if it were clear that the supplying the defectiveness of the general proposition by a detailed narrative, were the sole or principal object of this unnecessary, and (were it not that custom is a cloak for every enormity) unseemly, subornation. But, such an apology would be but a surmise, and that (to judge by analogy) not the most probable one. When a general disregard to truth, or (to speak more correctly) a fondness for falsehood, coupled with a general propensity to sacrifice the interests of justice to popular prejudice, to curry favour with the people at the expense of moral duty, pervades the whole system, breaking out on a variety of occasions into so many overt acts; it seems much more consistent with probability to ascribe the effect to this known actual cause, than to any other purely conjectural one.

When the witnesses in support of the charge have been respectively subjected to primary examination performed by the advocate for the prosecutor—or by the judge, in the few instances in which it has happened that no advocate has been employed,—the prisoner, by himself and advocate, exercises, in so far as he thinks fit, the right of cross-examination: the witnesses, of course, all of them upon oath.

When the evidence on that side has been gone through, then comes the time for the prisoner to make what is called his defence. For this purpose no advocate is in these cases (cases of felony) allowed to him:* in private, the advocate may, in the way of advice, speak to him; but, in the address to the judge and jury, must not speak for him: an arrangement, the propriety or impropriety of which belongs not to this place. The defence therefore consists of a discourse, shorter or longer, according to the nature of the case, and the rhetorical powers of the prisoner; in which, whatever suggestions promise to his conception to promote his cause, are brought forward without distinction: testimony and argument, facts (or pretended facts) and inferences from these facts, all produced without distinction, all uttered in the same breath.

On other occasions, and on the opposite side, the sanction of an oath, and the use of cross-examination, are magnified, the former far beyond the extent of its real efficacy, as the most indispensable securities for truth and justice: on this occasion, and as against the defendant on behalf of the public, neither is permitted to be employed.

Out of court, under circumstances favourable to every species of abuse, the faculty of interrogating the defendant has been open to every man without distinction, and without regard to fitness: and the hearsay account of the result of such adverse examinations, in any number, is admitted in evidence without scruple. In court, under the eye of the judge, in circumstances in which the possibility of abuse (unless the judge himself were to be supposed a party to it) is excluded, all exercise of that faculty is forbidden; nor must a single question be put to a defendant in that view.

§ 2.

Case, penal: offence, a misdemeanor: procedure by indictment.

Let us next pass to the case of misdemeanors attended with breach of the peace.

The nomenclature is not here very expressive or determinate; but it is such as English jurisprudence furnishes. Offences attended with violence to person or property, but not in such sort as to be punished with the punishment of felony,—is a description that seems to come as near the mark as any other that could be given without limitations, exceptions, and dissertations.†

Here too come the same three inquiries as before. The first, however (viz. that before a justice of the peace,) is not so uniformly resorted to as in the case of felonies. Of this inquiry, the principal use and object is prospective—to put a stop to a course of intended or apprehended injuries. It is for this purpose that power is given to the magistrate to oblige the defendant, on pain of imprisonment, to find sureties for abstaining from such transgressions in future.

Here, as above, a but too obvious remark is, that, if justice had been the object in preference to plunder, this one of the three inquiries would in general have been the only one. To warrant, in point of natural justice, the imposition of this burthensome obligation upon the defendant, the magistrate cannot but have been satisfied of his delinquency—satisfied of it with that degree of persuasion which warrants him in passing a sentence of conviction to other purposes, in the cases where power to that effect has been conferred upon him by the law. Satisfaction, or punishment, or both (according to the nature of the case,) might as well be administered at the end of this first inquiry, when the state of the evidence is ripe for it, as at the end of ever so many more. But, by any such arrangement, the regularity of the procedure would have been destroyed: it would have been cut down, and reduced to summary; every application of which is an injury to the profession, useful only to the public and the suitors.

In this case, the registration of the evidence has not been made obligatory, as in the case where the subject-matter of the inquiry belongs to the class of felonies. Being unperformed where commanded, whether it be performed where uncommanded, may be easily imagined.

As between the two parties to the quarrel, the same want of reciprocity is observable as in those other cases. That one of them who happens to have come forward in the character of plaintiff, narrates and answers upon his oath; the defendant, not.

In virtue of the established principle, here as there, the defendant may refuse to make answer if he pleases: but, forasmuch as from the nature of the case it is in general more for his advantage to be explicit than to be silent, the effect of the privilege is scarce perceptible in practice: and, forasmuch as the praise of humanity and patriotism is not to be reaped in so large a proportion in this case as in that, by the protection of guilt and the obstruction of justice, the practice of cautioning the defendant against the unprudence of speaking truth is not here so fashionable.

This (it must further be observed) is among the cases in which the party grieved has his option, whether he will consider the act of delinquency on the footing of a crime, or of what is called a civil injury. In the first case (to speak strictly rather than correctly,) he obtains punishment without satisfaction; in the other case, satisfaction without punishment. In this latter case, those three stages of inquiry are out of the question, and the inquiry is conducted in the purely non-penal mode, of which in its place.

Among the circumstances which a man has to take into account for the purpose of this option, one is, the absence or presence of a sufficient mass of extraneous evidence. If the mode of procedure be of the non-penal, called the civil, kind (in which case it is called an action,) the party seeking redress is not trustworthy, and, in the character of a self-serving witness in his own behalf, cannot be heard. If, as above, it be of the penal kind (in which case it is called an indictment,) the same individual is trustworthy, and his testimony in his own behalf is accordingly admitted.

The reason given for the distinction is, that, in the case of an action, he has money at stake upon his testimony, whereas, in the case of an indictment, he has nothing at stake but revenge: as if, in the eyes of the bidder, revenge were not worth to a man the money he is content to pay for the prospect of obtaining it. In point of fact, the reason is notoriously untrue:* but, in the reasoning of English jurisprudence, falsehood is a virtue, truth at best a superfluity; nor is the argument weakened by the want of it.

For injuries of the self-same description, there is yet another mode of procedure, which is called an information; of which by and by in its place.

In this, again, the mode of inquiry and the rules of evidence undergo many material changes. The first inquiry—that before a justice of the peace—does not usually take place. The second—that before a grand jury—never can take place: an essential object of this form of procedure being to preserve justice against the obstruction apprehended from that secret, and consequently arbitrary, tribunal.

Among the advantages of the natural form of procedure, is that of its fixing the evidence in the earliest stage, and thus saving it from deperition. The first of the three above-mentioned inquiries,—viz. the examination before a magistrate—the inquiry which, if it were the only one, would denominate the procedure summary instead of regular,—possesses this great advantage. In procedure by indictment without such previous examination, and in procedure by action, and (as it should seem,) in procedure by information, this benefit has no place.

English lawyers and their dupes are in raptures at the thoughts of so rich a variety of remedies (the list of which is not yet exhausted,† ) all for the same injury. But, as there is not one of them that gives more than a fragment, a scrap, of a remedy, the plain fact is, the greater the number of them, the more inadequate to the object:—understand here the professed object—the fulfilment of the ends of justice: for as to the real object, there is no want either of contrivance or success.

The greater the number of these forms of procedure, and the greater the variety of the arrangements they present in respect of the rules of evidence, the more impenetrable is the darkness, which has for so long a time been thicker than Egyptian, and without a miracle.

The case of misdemeanor not attended with breach of the peace, calls not for any remarks, over and above those which have been given under the other heads.

In these cases, the preliminary inquiry before a magistrate has no place. The first inquiry is the ex parte inquiry before the grand jury. In this, as well as in the last stage, the same observations apply to this class of offences as to the two others.

§ 3.

Case, penal: offence, a contempt: procedure by attachment.

Causes determined without a jury: the commencement by motion: the inquiry carried on by or before the professional judge or judges.

Now opens a scene of point-blank contradiction. Every rule of evidence, every principle held sacred where the species of cause gives occasion for the pronouncing of the magical word jury, is now completely abandoned. On a system of procedure completely opposite to the former, the inquiry is conducted; always by the same persons, always with the same self-satisfaction and content.

In the species of procedure here in question, the court is one of the superior courts in Westminster Hall. The cause commences by motion—motion for a rule to show cause: an application made to the court by the plaintiff’s advocate, praying that an order (a rule, the technical word is) may be addressed to the intended defendant, commanding him to show cause why that should not be done (whatsoever it be) which at his charge the plaintiff wishes to see done.

The evidence in this case is composed wholly of affidavit work.

At the time of the motion, and as a necessary ground for it, an affidavit is produced containing the discourse of the plaintiff. That affidavit is commonly corroborated by other affidavits, exhibiting the testimony of extraneous witnesses: the testimony of divers witnesses being sometimes conjoined in a single affidavit.

The plaintiff, in his affidavit, exhibits his own testimony in his own behalf: the sacred and inviolable rule, nemo debet esse testis in propriâ causâ, is thus regularly violated.

In vain would it be said—“The cause is not his own, he has no interest in it;” by which, in English law language, is meant no pecuniary interest. In the first place, many are the cases in which he has a direct and manifest interest of the strictly pecuniary kind, and that unlimited in respect of magnitude. In all cases he has the sort and degree of pecuniary interest created by costs—the eventual obligation of reimbursing to the adversary his share, in case of miscarriage. Even laying out of the case such eventual obligation, which may or may not be imposed; supposing him not to have any pecuniary interest in the cause, he has at any rate some other interest of stronger quality—stronger than the interest created by the money which in the shape of costs (his own costs) he sacrifices in pursuit of the service which he thus claims.

Vivâ voce deposition, by the general confession, or rather the proclamation, of all English lawyers, is the only completely trustworthy form of testimony: this only fit ground of decision is here abandoned.

Nor let it be said that considerations of convenience—convenience in respect of avoidance of the vexation and expense attached to personal attendance, had any the smallest share in giving birth to this aberration from the line of universally-acknowledged rectitude. The sort of case in which, more frequently than in any other, this mode of procedure is employed, is a case in which this species of vexation is at its minimum, if not equal to 0. Among the cases which find most employment for this species of procedure, is that of a dispute between attorney and attorney, not in a cause of their own, but on the occasion of the cause of their respective clients—a dispute having for its subject, on one part or the other, a supposed deviation from the established rules of procedure. In a case of this sort, both deponents are, in supposition always, in reality commonly, present in court—present at the same time. They are a sort of officers of the court: it is by belonging to the court, that they are what they are styled, attorneys of the court. Though not present as deponents, they are all the while present as attorneys. It is commonly in the hearing of the deponent himself, that the studied and manufactured vehicle of his testimony is read.

Along with vivâ voce deposition, vanishes cross-examination: even that inadequate and comparatively inefficient and untrustworthy species of cross-examination, which we shall see not banished by institution, any more than by the nature of things, from examination in the way of written correspondence.

There stands the plaintiff; close by him the defendant: each speaking—that is, hearing himself speak, by borrowed lips, in the character of witnesses. To neither of them is it possible to put a single question to the other: the court would never suffer it.

Of the utility—in some measure the necessity, of the practice of breaking down into numbered articles a mass of literary matter the destination of which (in whatever shape) is to constitute or help to constitute a ground for judicial decision,—mention has been made already in its place. Further on, instances will be brought to view, in which so important a help to comprehension has not been refused to English practice. The present is not of the number. Of an affidavit, though it were of a length to reach from one side of the Hall to the other, the whole contents would not the less remain in one shapeless undivided mass. On the part of the plaintiff,—his chance of success depending upon the goodness of his case as it stands impressed upon the face of his narrative,—his endeavour (that is, the endeavour of his attorney, in so far as, in respect of intelligence as well as probity, he is qualified to do justice to his client,) is naturally to put it into the clearest order, as being best adapted to that purpose. On the part of the defendant, if so it happens that in his own view of the matter he is in the right, the endeavour to speak clearly will be equally strenuous; and in this case the order pursued by the one will naturally be adopted and followed by the other. If, as is most likely to be the case (for the probability of right is for obvious reasons naturally on the plaintiff’s side,) he is conscious of being in the wrong,—so surely will it be his study, and that of his professional assistant and licensed accomplice, to keep clear of that order, and of every sort of order; in a word, to render as thick as possible that confusion, in which alone he can behold a probability of escape.

It would be something—nay, a good deal, if this unscrutinized species of testimony were, in any court, on any future occasion, liable, and known to be liable, to be subjected to scrutiny, by being extracted over again in the most trustworthy and only proper mode. But this is altogether without example. The bare idea of any such innovation would be enough to strike horror into a professional and learned mind.

If reason had any the smallest concern in the business,—the less trustworthy the source of the testimony, the more searching and efficient would be the arrangements taken for counteracting and checking the propensity to falsehood on the part of the witness—for guarding against deception the mind of the judge. Throughout the system of English jurisprudence, a directly contrary policy (if a term so clearly expressive of thought be applicable) has been pursued. When a man’s testimony is received in his own behalf, it is received in scarce any other form than that of an affidavit—in the form of an elaborate and preconcerted instrument in writing, neither divided into parts, nor liable to be disconcerted by questions. As often as the least trustworthy species of evidence—evidence from the least trustworthy source—is received, it is the inviolable rule to receive it in the least trustworthy shape, and in the least trustworthy modification of that shape.

§ 4.

Case, penal: procedure by information.

Procedure in the way of information—information in criminal cases, is commenced by motion praying a rule to show cause: a rule, or order, upon the defendant, to show cause why an information, a species of accusation, should not be exhibited against him.

This species of procedure, like the other species of procedure in which a jury is employed, is of the composite kind. It contains two distinct inquiries: the definitive one, in which the rules of evidence are exactly the same as in the case of an indictment, as above mentioned; and a preliminary one, in which, as in procedure by attachment (of which already,) the evidence is exclusively composed of affidavit work, as above.

In this species of procedure, the previous examination—the mode of inquiry which, with little alteration, might, with advantage, supersede both of those which follow it—the mode of inquiry with which, as we have already seen, the procedure commences in the case of felony—is not admitted: a deficiency, the effects of which, in respect of the faculty of investigating and following up a thread of evidence, are but too sensible.

The inquiry by affidavit work is here a succedaneum to the inquiry before the grand jury: like that, it is worse than useless, though rendered so by a different cause.

In the inquiry before the grand jury—an inquiry conducted in secret by a tribunal the decisions of which are altogether arbitrary, the members being neither punishable by law, nor so much as subject to the restraint of shame,—the principal danger consists in the grant of impunity to guilt.

The use of the grand jury inquiry is, in the event of the non-delinquency of the intended defendant, to save him from judicial vexation—the vexation and expense attached to the obligation of defending himself against the charge: and such (supposing the bill thrown out) is, and that very completely, the effect of that inquiry. What is the effect of the previous inquiry in the way of information? It does not merely fail of diminishing the vexation: it does more than double it. An inquiry is carried on, to know whether an inquiry shall be instituted: an inquiry is carried on in a bad mode, to know whether an inquiry shall be carried on in a good mode: a cause is tried upon bad evidence, to know whether the same cause shall be tried upon good evidence.

This is not all. If, in the inquiry called the trial, the defendant is convicted, a third inquiry scarce ever fails of taking place: and this, like the first, is carried on by affidavit work. On the day of trial, the evidence is exhibited before the jury, under the direction of a single judge. When the defendant comes to receive judgment, it is in the court of King’s Bench, in Westminster Hall, a tribunal composed of four, and those professional, judges. On this occasion, the defendant, on his part, is admitted to state (provided always it be by affidavit) any such facts as may be thought to operate in mitigation of his punishment: the prosecutor is, on his part, at liberty to bring forward, always in the same way, any facts, the tendency of which may be to operate in aggravation of the punishment: and each party will, in general, be admitted to contest, by counter-affidavits, the representations given by the other.

Among the facts which the prosecutor is thus admitted to bring forward, are any facts constitutive of subsequent bad behaviour on the part of the defendant—bad behaviour subsequent to the day of trial, on which the conviction took place; not to speak of the anterior period intervening between that day, and the date of the offence, as charged in the instrument of information. Here, then, for the hundredth time, we have the bad mode, the acknowledged bad mode, used promiscuously with the good mode—the (by lawyers) never enough to be admired and eulogized good mode. Nokes offers a personal insult to Stiles. Being prosecuted for this in the way of information, he is tried in the first place in the affidavit mode; and, if found guilty in that mode, tried over again in the vivâ voce mode. Being thus found guilty a second time,—after his conviction he offers to the same person (his prosecutor) a second insult, exactly of the same nature with the first. What is the consequence? For this second insult, he is tried but once, and that by affidavit work, and, if upon the result of that inquiry deemed guilty, punished without any reference to a jury; the punishment for this second offence being pronounced at the same time with the punishment for the first, and indistinguishably confounded with it.

When sentence (judgment it is called in this case) is to be pronounced, the personal attendance of the defendant is either insisted upon or dispensed with, as the court thinks fit. But when he does appear, it is for the purpose of hearing merely, and not for the purpose of being admitted to be heard. There he is; and, with him, the physical faculty of being examined in the best mode. No—it cannot—legally speaking, it cannot be. Speak he may, if he pleases: always understood, that whatever, when heard in this best mode, he advances in the way of fact, must go for nothing. Go for nothing? Why so? Only because it is offered in this best mode. The acknowledged bad mode—the mode by affidavit, in which ample time for preparation is allowed, and scrutiny by cross-examination not allowed, is the only mode in which his testimony in the character of a witness—a self-regarding, self-serving witness, is admitted to be heard. To the subjecting him to the vexation of personal attendance, there is no reluctance. The only thing resisted, and that most inexorably, is the employing for the extraction of his evidence that acknowledged best mode, against which the only objection ever made, or capable of being made on the ground of reason and utility, consists in the vexation of attendance—that very vexation to which the party is so readily subjected, on condition of its being of no use.

As to the vexation and the expense attached to this so elaborately complicated and inconsistent plan of procedure (the vexation which is the unheeded result, and the expense which, in the shape of profit, has been so manifestly the final cause,)—these are topics, the handling of which in detail must be referred to the subject of procedure. Of the vices of the system, the only ones that belong directly to the present purpose are those the tendency of which is to weaken the security for truth on the part of the witness, and thence for right decision on the part of the judge.

Elsewhere, it is in the character of an engine of oppression,—here, it is in no other than that of a vast manufactory of mendacity and deception,—that our business is to exhibit the technical system of procedure.

The composition of the tribunal is another point which requires to be carefully abstracted from the present investigation. Procedure by information, and procedure by attachment, were at one time the butts of popular and party clamour. Wherefore? For no other reason than as being rivals and succedanea to the indiscriminately-cherished and never-enough-to-be-idolized trial by jury. Information leaves work but for one out of two juries; attachment, none for any.

As to this matter, thus much is (as I presume) by this time tolerably clear; viz. that, of all the modifications of the technical (alias regular) mode of procedure, that in which a jury is employed is the only one tolerably well adapted to the pretended purpose of elicitation of the truth. Well adapted: why?—Because the judges are unexperienced, uninformed, numerous, unresponsible, the minority or majority of them regularly forced by torture into perjury? No: but because it is only when ephemeral judges are called in, that the mode of inquiry, acknowledged to be the only good one, is suffered to be employed. Against the professional, the learned, the veteran class of judges, my complaint (in so many instances) is, not that they have taken upon themselves, without the co-operation of their unlearned colleagues, to exercise the function of judicature,—but that, with their eyes open, and with a degree of pertinacity and assurance not to be exceeded, they have made it an inviolable rule, when left to themselves, never to conduct an inquiry but in a mode which they know to be a bad one; uniformly rejecting the very mode the superiority of which they are continually recognising, and that not only in language, but practice.

§ 5.

Case, non-penal: procedure by jury-trial.

Compared with the procedure in criminal cases (especially those which stand, or are supposed to stand, highest in the scale of mischievousness,) the mode of procedure, in cases non-penal, presents, under the head of evidence, several important differences.

The cause of these differences need not be a secret, to any eye that has courage enough to look it in the face. In criminal cases, the law had the more pressing exigencies of society for its object, and, for the subjects of its operation, a description of persons in whose purses any considerable quantity of plunderable matter was seldom to be found. In the non-penal branch, the demand for justice was less pressing, and the quantity of plunderable matter ample enough to pay for the detention of the parties in the trammels of procedure.

According, in the construction of the criminal branch of procedure, the interests of justice seem to have taken the lead; views of plunder being comparatively inefficient and subordinate. In the formation of the plan of procedure in non-penal cases—in cases in which the title to rights of property forms the principal object of dispute—plunder, and the means of extracting it from both parties in the greatest possible quantity, would be the main object; justice, the collateral result, having, in the mind and intention of the founders of the law, afforded little more than the occasion and the pretence.

In criminal procedure there has accordingly been no fear, or at least no equal fear, of bringing the parties together, face to face, in the first instance, in the presence of the judges; nor in general has any apprehension manifested itself of seeing the cause pushed to too speedy a conclusion.

It is in the non-penal branch alone that an arrangement thus imperiously prescribed by the most obvious dictates of natural and universal justice, has been so systematically and pertinaciously excluded by men of law: except on the few occasions on which, in spite of their reluctance, the dictates of genuine justice have, under the spur of necessity, been obeyed by legislators.

Reciprocal explanation and interrogation between the parties, under the sanction of an oath, with the fear of present shame as well as future punishment staring in the face that one of the parties who, being in the wrong, is conscious of being so,—would have nipped in the bud all malâ fide causes. By a view jointly taken at the outset, of all the evidence afforded by the nature of the cause, together with a survey of all other causes (if any) natural and unavoidable, of delay and complication, which happened to be attached to the individual matter in dispute,—causes of both descriptions, malâ fide and bonâ fide causes together, would receive of course the speediest termination of which they were respectively susceptible.

To prevent malâ fide causes from being themselves prevented—to keep the doors of justice open to the best class of customers,—one fundamental rule accordingly was, that an unlimited licence for mendacity should be granted to all mankind in the character of plaintiffs.

Another was,—from the first to the last, never to admit the parties, much less bring them by compulsion, into the presence of the judge.

To the joint influence of these rules, suitors are indebted for everything which in English common law goes by the name of pleading.

The plaintiff has a demand (suppose for a sum of money) on the defendant. Plaintiff and defendant live (suppose) within a stone’s throw of one another, and of the seat of justice. In the summary mode of procedure, had that mode been permitted to take place, the grounds of the dispute might be liquidated—evidence, such as the case affords, heard—and a decision pronounced, all within the compass of an hour. The ground being a note of hand,—whether the sum be £2 or £200, makes, in regard to the proof, and the time necessary for the exhibiting of it, not the smallest difference. The plaintiff, in this case, coming forward spontaneously with the statements made in his own way of the facts relied on by him as the grounds of his claim, general allegations and particular statements might naturally enough in this way come mixed; but a few questions from the judge would be sufficient to effect the decomposition, and place each under its proper head.

Under the technical system,—instead of appearing before the judge, and there stating the grounds of his demand, subject to counter-interrogation, and under those securities for veracity which have place in the instance of an extraneous witness,—the plaintiff (or, more properly speaking, his attorney) produces a written paper, called the declaration, from which almost all such information as could be of use for acquainting the judge or the defendant with the nature and grounds of the claim, is carefully excluded; an enormous mass of surplusage, garnished with innumerable lies, being substituted in its place. This paper the plaintiff’s attorney deposits in an office, whence the defendant’s attorney obtains a copy, on payment of a fee. If the defendant pleads the general issue—that is, contents himself with a general denial of the justice of the claim, the cause then goes to trial. If the defendant pleads any special plea—that is, makes any answer, other than such general denial, the matter of this answer is expressed in another instrument called a plea, which is also filled with surplusage and lies. To this plea the plaintiff may answer by a third instrument, called a replication; to which the defendant may further reply by a rejoinder; and so on, without any certain limit.

No security whatever being taken for the veracity of all this testimony (for testimony it is in the eye of reason, though not of technical law)—neither punishment, oath, interrogation, nor any other check, being applied to falsehood in this shape,—the consequence is, that, saving just so far as it is the interest of the party who gives in the testimony that it should be true, not a word of truth does it ever contain.

But of this more fully hereafter.*

At length, when the stock of reciprocal scrawls is exhausted, when the quiver of useless arrows is on both sides emptied, the first and only inquiry, the trial before a petty jury, takes place. On this occasion, the meeting of the parties in the presence of the judge—the first stage in every system of procedure that has really the ends of justice for its ends in view—this harbinger of reconciliation, and condition sine quâ non to thorough explanation, though purely accidental, is at least not impossible.

On this occasion, if so it happens that both parties are in a state of bona fides, each conceiving himself to be in the right,—in such case, whether both or either of them are or are not present, a scene of mutual frankness and expansion of heart may not unfrequently be observed. A spectator who, not knowing or not adverting to the stage at which these amicable demonstrations present themselves, should be witness only to the effect, would be apt to wonder how it should happen that between parties so well meaning, assisted by agents at once so faithful and so ingenuous, a difference capable of plunging them into litigation should ever have subsisted. In one consideration, and one only, can any cause be found adequate to the production of so remarkable an effect. The cause has, at this stage of it, furnished to the lawyers of all classes whatever pickings are to be had out of it. The stage in which agreement thus takes place, if it takes place at all, is that in which, if the cause did not end in this way, it would alike find its termination in another way. The stage at which all this virtue manifests itself, is that in which the parties have little or nothing to gain by it—their lawyers little or nothing to lose by it.

On this happy occasion, the advocates on both sides appear seldom backward in contributing their parts towards so salutary a result. Why should they? Before things are come to this pass, the learned gentlemen have had their fees.

By termination in the ordinary way—viz. by a verdict in favour of one party or the other—nothing farther would be to be got. By a termination in some extraordinary way, in virtue of an agreement for that purpose, ulterior fees may be to be got in more ways than one; and if the overture be made, as it commonly is, before the evidence is begun to be heard, so much time and trouble is saved.

By agreement, the result may come to be modified, amongst others, in either of the following ways:—

1. By a direct compromise upon the spot.

2. By reference to arbitration: in which case, after a bad mode of inquiry, the cause is subjected to the only good one. To a good mode of inquiry—even to the very best—lawyers have no objection, when it is not substituted for, but given in addition to, their own, the bad one.

§ 6.

Case, non-penal: procedure without jury-trial: cause originating in a motion.

In the criminal class of suits, we have seen causes that take their commencement in motions: of this description are informations. We have seen others, that, having begun in motions, end there, without passing into any other mode of inquiry: such, unless in the accidental and comparatively rare case of supplemental interrogation, are attachments. Inquiry, in these cases, but one, and that by affidavit work.

The non-penal division furnishes, in like manner, causes (comparatively speaking) of the like simple texture: to this head belong causes arising out of awards, and causes arising out of judgments without previous litigation, or judgments (as they are called) by consent.

Incidental applications of all kinds—applications grounded on incidents arising out of a cause already commenced in some one or other of the above regular modes,—are introduced by motion, and carried on by affidavit work.

The class of causes here in question, though in substance and effect original, are in form and appearance incidental. Judgment as for debt, entered up (as the phrase is) on a warrant of attorney to confess judgment, is, in effect and substance, a mere contract between the creditor and the debtor—the supposed plaintiff and the supposed defendant; the judge, whose decision the enrolment of judgment professes to deliver, never having actually heard anything of the cause: but, according to the course of mendacity established in that behalf, the judges of the court in question are said to have taken cognizance of the pretended cause, and pronounced judgment accordingly; and by this means an inquiry, in reality original, assumes the form of an incidental one.

The like observations may apply to the case of motions grounded on awards, without much other difference than this,—viz. that the jurisdiction in this case, instead of being woven in the loom of jurisprudence by the shuttle of fiction, was fashioned in the proper manufactory, and put into the hands of the judge by the well-meant providence of the legislature.

The award—a decision formed by arbitrators, a sort of judges chosen by the parties—is made a rule of court, it is by that means placed on a footing with the judgment by consent, as described above.*

In this case, does the cause originate with the party who is satisfied with the award? A motion is made for an attachment against the other for non-performance of the award—for not rendering that service, the non-reddition of which has, by the conversion of the award into the equivalent of a judgment, become an offence against the authority of the court.

Does the cause originate with him who is dissatisfied with the award? It comes in the shape of a motion made by him, to set aside the award: the virtual judgment, though pronounced, is one the execution of which would not, it is contended, be consistent with the dictates of justice.

In the case of the judgment by consent, there has been no previous inquiry: the consent, the confession implied in that consent, stands in lieu of inquiry, and supersedes the use of it.

In the case of the award, there has been a previous inquiry; and that inquiry conducted in the best mode—the natural mode: examination ex interrogatu judicis et partium (cross-examination included), by vivâ voce answers to vivâ voce questions.

From the unlearned, the cause is brought before the learned, judge: and in what mode is it now conducted? In the very worst of modes. How so? Because it is a rule with them, an inflexible rule, when assembled four of them together, and without a jury, never to receive evidence in any other mode than the worst in use.

Compared with the general run of causes,—motion causes, causes originating in affidavit work, whether they end there or not, but more especially if they end as well as begin there, have one advantage: they bring the kernel of the cause to view at once, without the husk—the evidence, without the mass of useless and mendacious allegation on both sides, which neither is received, nor is intended to be received, as evidence. In comparison with the main body, they are a sort of summary causes.

Compared with the regular causes, these summary ones afford this instruction to the eye that is not afraid or ashamed to look at it; viz. that, by the implicit, but not less clear and undeniable, confession of those by whom regular and summary procedure are administered with the same imperturbable complacency, so much of the regular as consists in the sham inquiry, is so much sheer abuse.

What, in a word, is the character of this species of procedure? It wants nothing of being coincident with the domestic, the natural, the truly and solely just mode of procedure, but this one circumstance, viz. the conducting the inquiry in the best mode instead of the worst.

If the most learned persons who sit in judgment over the award, did but receive the evidence in the same mode as the unlearned persons who pronounced the award, “everything would be as it should be.”

Everything would be as it should be, if those who sit in judgment over inferior judgments would allow themselves the possibility of coming at the truth, instead of giving the monopoly of it to inferior hands.

CHAPTER XVI.

MODE OF EXTRACTION IN ENGLISH EQUITY PROCEDURE—ITS INCONGRUITIES.

Equity is the name that has been given to law (jurisprudential law,) when the inquiry into the matter of fact and other proceedings are carried on according to a particular mode.

The origin and history of Equity, or rather of Equity courts, will be given in a subsequent book.*

It is in the mode of procedure pursued, and in nothing else, that the difference between common law and equity is to be sought. Law—common law—is that sort of jurisprudential law (understand, substantive law,) the arrangements of which are formed and carried into effect according to the system of procedure pursued in the courts originally styled simply courts of law, now occasionally, by way of distinction, courts of common law. Equity is that sort of law (jurisprudential substantive law,) pursued in the courts of more modern institution, which have by degrees acquired the name of courts of equity. That between law and equity there is any natural, intrinsic, original distinction, is a shallow conceit, the offspring of prejudice and ignorance. Equity itself is a mere word; the thing, of which it is the name, is the mere creation of the imagination. The arrangements of substantive law, to which men with the word equity in their mouths give effect, are, in many instances, different from the arrangements to which men with common law in their mouths give effect: but,—for distinguishing the one set of arrangements from the other, or the cases in which it is proper, from those in which it is not proper, that the courts of equity should interpose, and, by proceeding according to their system, establish such arrangements as they are in use to establish,—there is not in the word equity anything from which any the slightest direction can be obtained.

In the courts called courts of equity, the procedure is said to be by bill; that is, the instrument by which the suit is commenced (understand, the first instrument after the mere instrument of summons—the first instrument in and by which either party is considered as speaking) is thus denominated. Not but that, in the lexicography of English jurisprudence, the same denomination is given to a thousand other sorts of things.

In this procedure, both modes of delivering and extracting testimony are employed—the ready-written, and the vivâ voce mode: the one of them employed upon the one description of deponents, the other upon another; the one upon parties speaking in the character of witnesses, the other upon extraneous witnesses.

In this mode, as in the common-law mode,—lest malâ fide litigants should stand excluded, and lest, between bonâ fide litigants, the business should be settled too soon, and at too small an expense of words to the lawyers and money to the suitors,—the door is of course left open to mendacity in the first instance. In the written instrument, the bill, by which the suit commences, the plaintiff, not upon oath, enjoying a complete licence for mendacity, tells whatever story suggests itself to his professional fabricator as best adapted to whatever may be the purpose. In this bill (the length, and by that means the expense, of which, is whatever he is pleased to make it,) he possesses an engine of destruction, by the use of which, the stock of plunderable matter at the command of the defendant being given (not exceeding a certain quantity,) the victim may be consigned to certain ruin. To this purpose, it is not necessary that, from the beginning to the end, the bill should contain a single syllable of truth: and (that the licence given to him in this respect may be the more complete and uncontradicted) besides that he is freed from all apprehension on the score of punishment, he is not, even in this comparatively unimpressive mode, subjected to any such check as that of cross-examination. From the burthen of costs, it is true, he is not altogether exempted. In case of ultimate failure, in most, though not in all cases, he is liable to bear, not only the whole burthen of his own disbursements, but a considerable part (probably in general the greater part) of those incurred by his adversary. But, of this compensation on the one part, this check to oppression on the other, the time is postponed to the conclusion of the suit: a point of time which it depends upon the author of the suit to postpone, always for several months, and commonly for years—a length of time, previous to the expiration of which, the ruin of the defendant, and by that means the attainment of the object of the suit, without either right or shadow of right, may have been reduced to certainty.

Thus it is that, by the essential structure of the system, mendacity, in the character of an instrument of oppression, receives ample licence and encouragement. Truth, at the same time, and on the part of the same person, enjoys no licence: mendacity is not simply permitted—it is in large quantities, on various occasions, and in various shapes, compelled. A plaintiff whose delicacy should shrink from it would be punished with the loss of his cause. Not that, in the natural course of things, his delicacy is likely to be put to the test. The answer to this sort of bill must be the defendant’s own, and, besides his oath, he is made responsible for it by his signature. The bill is, on the contrary, the discourse, not of the plaintiff, whose discourse it purports to be, but of his lawyers: neither swearing to it nor signing it, in the ordinary course of things he never so much as looks at it.

The mendacity thus bespoken by authority, forced into the mouth of the suitor by the hand of power, may be distinguished into two masses—the unappropriate, and the appropriate.

By the unappropriate, I mean that which is of the same tenor or purport in every individual instance. This trash (besides that the quantity of it is, in comparison with the other, not very abundant,) being generally known, at least by lawyers, for what it is, produces, in the character of a mass of falsehood, a degree of mischief comparatively inconsiderable: no other than what consists in the exposing to the eye of the world the spectacle of intellectual debility, in conjunction with moral insensibility, occupying the sears of judicature,—the depraved taste which can endure the eternal repetition of so much useless nonsense,—the moral insensibility which, sheltering itself behind the plea of usage, is content in such sort to abuse its power, as to force one party to write falsehood, that both parties may be forced to pay for it.

By the appropriate mass of falsehood, I mean those particular false allegations which the rules of the court compel a plaintiff to employ his law assistant to stuff and stain his bill with, on pain of losing his suit.

In the matter of every bill, as before observed, there are two distinguishable parts: in the one, the plaintiff exhibits his own testimony in his own behalf: by the other, he endeavours to obtain, to extract, the testimony of his adversary the defendant. Aiming at the latter object, he is permitted to clothe, and accordingly does clothe, a correspondent portion of the matter of his bill in the form of questions or interrogations. So far, so good: but if this were all, the quantity of trash manufactured and sold, the quantity of profit extractable from the manufacture and sale of it, would not be sufficient. To supply the deficiency, a rule of practice has been established, and it is this: every interrogatory must have a charge to support it. What is here meant by the word charge? An assertion, commonly false, whereby the plaintiff, applying to the defendant for information concerning a matter of fact of which he (the plaintiff) frequently is altogether ignorant, declares his knowledge of it. The defendant, for example, is executor of the will of a deceased testator, by which a legacy has been left to the plaintiff. The plaintiff, knowing nothing of the state of the testator’s affairs, knows not whether, after payment of debts, there will be any and what pecuniary matter left for the payment of the legacy. Simply to put the question would be exhibiting an interrogatory without a charge for the support of it. To steer clear of this irregularity, the draughtsman turns to his common-place book for an inventory of the several shapes in which property is capable of exhibiting itself; and without resorting to his employer (a recourse which would be altogether useless,) speaking always in the person of his principal, he gives a list of all these modifications, and without more ado alleges and asserts that the testator had property in some, or if he thinks fit (for it makes no sort of difference) in every one, or all, of these shapes.

The same rule extends itself over every part of the case. To obtain a true statement, you must begin with giving a false one; and the object of the false statement being to exhaust the whole stock of modifications of which the fact in each case is susceptible, the mass of mendacious matter must be proportionally voluminous. The power of the judge is indefatigably displayed in enforcing the observance of this immoral rule.*

On this occasion an option addresses itself to the prudence of the draughtsman—an option to be made between the present interest of his purse, and the permanent interest of his professional fame. Of any sort of deficiency in the charging part, a natural result is a corresponding deficiency in the answer of the defendant—especially if the fact be of the number of those which are material to the support of the plaintiff’s claim, in which case a faithful adviser will be alert in the discovery of the flaw, and in enabling his client to take due advantage of it. The consequence is, that the correspondent interrogatory remains unanswered. This produces the necessity of an amendment to the bill; which accordingly comes back to be new tinkered up by the same hand by which the hole in it had been left. Infirmity is the general lot of human nature; but it is in the practice of the law only that a man may be sure to gain by it. Designed or undesigned, it is upon the head of the unlearned that the transgressions of the man of learning are avenged.

When, in this system of procedure, the individual subjected to examination is not a party but an extraneous witness, we shall see the mass of interrogative matter very properly broken down into distinct questions, and these questions numbered. Under the eyes of the same court, and in the same cause—in this initial stage of the same individual cause—this source of distinctness, this principle of order, is uniformly, and as it were carefully, steered clear of: the interrogative part is one undivided mass, the charging part is another undivided mass, placed before the interrogative. If, the charging part being divided into articles, the interrogative were divided into a correspondent number of articles, a deficiency in either would too readily be observed: the licence to evasion on one part, the demand for amendment on the other, would be too unfrequent: this must not be.

The charging part is accordingly elaborated into one shapeless mass, agreeing in that respect with the sort of composition which in common-law procedure we have been viewing under the name of an affidavit: differing only in respect of the licence for mendacity—a liberty which, in the case of a bill, is conducive (as hath been seen) to the professional and real ends of judicature; in the case of an affidavit, not so.

The charging part is worked up into one such mass, the interrogative into another. Not that the nature of the interrogative suffers its elementary parts to be quite so undistinguishable as in the other case: inasmuch as, if not a complete division, a sort of joint is naturally formed, as often as any of the interrogative parts of speech—the a hot, the when, the where, the whether—come to be repeated. The questions, and consequently the propositions to which answers are to be adapted,—these portions of the discussion, though not denominated, though not numbered, are in some sort (though thus insufficiently) distinguished.

When the established sources of delay have been exhausted (delay, a mischief which belongs not to the present work,) comes at length the defendant’s answer. The established licence to mendacity, having given birth to the suit—having, if the suit be a malâ fide one, thus fulfilled its obviously intended purpose—is now withdrawn: what a man says in the character of a defendant, he is made to deliver upon cath.*

If the bill, the instrument exhibited on the part of the plaintiff, were broken down into numbered articles,—in that case, if the matter contained in the defendant’s answer were broken down in like manner, the deficiencies in it (if any such were left) would be too clearly apparent: of an allegation unanswered, it would be seen, that it had been left unanswered, and thence virtually admitted to be true—of a question unanswered, it would be seen that it had been left unanswered, and in so far the obligation of furnishing the requisite evidence left unfulfilled. This again is what must not be: for, besides that on every occasion the influence of light is unfavourable to the health of the professional system, it would not be so easy as at present, when the first answer is called in, to increase the bulk of the second answer by groundless exceptions (exception is the technical appellative,) imputing deficiencies to the first. If charge article 2, or interrogatory article 2, had, in the corresponding article of the answer, received a fair and full reply, a degree of salutary shame might be felt by a draughtsman, who, in drawing up a paper of exceptions, should be disposed to accuse the answer of insufficiency in relation to these respective articles. But, when the charging part of the bill has been digested into one sort of confusion, the interrogative part into another, and the matter of the answer into a third, the industry and ingenuity of the drawer of the list of exceptions stands happily exempt from all restraint. Full or scanty, explicit or evasive, the answer is (for anything that can be seen clearly to the contrary) alike open to exception. Bill and answer together compose so thick a wood, that a bonâ fide traveller may lose his way in it, and a malâ fide traveller may, without fear of exposure, make as if he had lost his way in it: whatever be the means, the professional purpose is equally well fulfilled.

When the thread of examination has thus at length been spun on to its end—when papers of exceptions have been followed by fresh answers, these answers by new editions of the bill with amendments, these amendments again by fresh answers, these answers by fresh exceptions, these exceptions again by fresh answers, and so on to an end (if haply the suit be destined to have an end,)—the entire state of the case, so far as depends upon what the parties themselves know of it, is frequently but half exhibited. To complete the picture, what is called a cross bill is necessary. In the cross bill, as may be imagined from the name, the parties now change places: the defendant takes upon himself the character of plaintiff, and the obligation of answering questions is exchanged for the less irksome task of putting them.

In this cross cause, as it is called, veracity is now required from him upon whom in the original cause mendacity had been forced: and the same judge, by whose well practised hand mendacity had been planted in the heart of the suitor, calls for (can it be said expects?) sincerity as the fruit of it.

In other respects, no fresh observations seem necessary on the occasion of this supplemental half of a mercilessly-protracted, yet still imperfect, course of litigation: without any variation worth noticing, whatever has been predicated of the original cause may with equal propriety be predicated of the cross cause.

All this while no other progress has been made in the cause or causes (singular or plural, which you please) than the extraction of the self-regarding testimony on both sides. There remains to be collected (not to speak of evidence of the real or written kind) the testimony of extraneous witnesses—of whatever witnesses of this description the individual nature of the case has happened to present.

A moment’s pause.—In speaking of the testimony of the self-regarding kind—the testimony of the parties themselves, as having been extracted in the course of this process, (meaning the whole of it extracted,) I went too far. What each party has said to his own prejudice is now indeed looked upon as proved; credit is understood to be due to it: but whatever, in the character of plaintiff, either party may have said to his own advantage, is (as already observed) understood to be so much falsehood, and in that character goes for nothing. If, then, of what facts a party happens to have known to his own advantage, any part be, in the instance of either of them, capable of being employed to the advantage of him by whose discourse it is brought to view, it can only be in so far as it is in the character of defendant, that the ingenuity of the draughtsman has contrived to make him come out with it. Even then, great doubts and difficulties seem to have encompassed the question, how far he, of whom it is certain that he has spoken truth in one case, ought to be regarded as capable of speaking truth in the other case: and, for clearing up these doubts and difficulties, recourse has been had, on this as on every other part of the field of evidence—not to the discernment of the judge, judging from the particular circumstances of the individual case—but to unbending rules, binding the judge in each individual case to disregard the circumstances of the case before his eyes, in order to govern himself exclusively by the circumstances of some other case, of which the circumstances have never presented themselves, nor can ever be made to present themselves, to his view.

Lest the road of mendacity should not yet be smooth enough, and that the professional hand, which the suitor is forced to hire, may have as much to do as possible,—the change of persons (that species of falsehood, of which, besides the falsity, the mischief in other respects has already been brought to view) is imposed upon the defendant in each cause—upon him who, on pain of punishment as for perjury, is commanded to speak true—as well as upon the plaintiff, that is, upon him from whom (so long as he continues to speak in that character) truth is neither expected, nor so much as tolerated. In the case of the answer, as in the case of the bill,—the discourse ascribed to the party, having the professional assistant for its penman—who again speaks in his own person, if in any determinate person, at any rate not in the person of the party,—the party is thereupon required to swear it, and to sign it. In a language not his own—a language in which, from beginning to end, whatsoever of truth there be, is, if not falsified, at least disguised and travestied—in a language not his own, by a person he knows not who (for between the party and the draughtsman there is never any sort of contact, the attorney being the medium of communication,) he reads or does not read, hears read or does not hear read, hears read correctly or incorrectly, intelligibly or not intelligibly, what he swears and signs. Under these circumstances, if the burthen of legal responsibility is too conspicuous and too formidable not to have made some impression—not to have produced the effect of a check, as to such of the facts to which in the nature of the case it may have appeared applicable,—in the burthen of moral responsibility, if so it happens that he has any feeling of it at all, he is but too apt to feel, not so much a yoke itself, as the shadow of a yoke.

We come now, however, to the mode in use, in this species of procedure, for obtaining the testimony of extraneous witnesses: and now the mode employed is as different as if they were animals of another species, or inhabitants of another world.

Interested allegation, and thence spontaneous exhibition, being now out of the question,—what evidence is to be received from this source falls to be extracted: and the extraction is performed in the mode already brought to view under the name of the Roman (or say Romanigenous) mode: understand always a bad modification of that bad mode.

Of the Roman procedure on this head, considered on the footing on which it stands in general, the defective points in this respect have been already brought to view:—cross-examination by the adverse party, none; to the gap left by that deficiency, no adequate supplement: on each side, sole interrogator the judge—on whose part, not so much as in point of appropriate information, much less in point of zeal, can any degree of aptitude approaching to that of the party be reasonably expected.

On the continent of Europe, the operator on this occasion is at any rate a person bearing the official name, the power, the dignity, of a judge—beholding as such the eyes of the public pointed at his proceeding, curious to spy whatever may be to be spied through the crevices of his closet door; nor does this door, against whomsoever else it may be shut, refuse admittance to his official assistant and subordinate—his secretary—by whatsoever name denominated.

In the English mode (understand always the mode which claims to itself the exclusive praise of having equity for its guide,) no secretary—not so much as a judge—no person who bears the name, the dignity, or on any other occasion whatsoever exercises the function, of a judge. On this important occasion—the only sort of occasion which, were the legislator to perform his part, could ever occur to call into exercise the faculties of a judge,—his function is exercised by nobody knows what deputy, clerk, or clerk’s-deputy—an unknown and nameless underling, who neither in reputation nor in any other respect has anything to gain by good desert—anything to lose (corruption or other such palpable criminality excepted) by ill desert; and who, on each occasion, has but one interest in the business, which is to get through it in as speedy, and consequently in as imperfect, a way as possible.

The person who on this occasion fills the place that, if filled by anybody, ought to be filled by a judge,—this person being considered as an automaton, is not considered as possessed of the smallest particle of discretionary power; but reciting, as a parrot might recite, such questions as on each side have been put into his hands, receives such answers as the witness thinks fit to give to them: to subtract a word, to add a word, to change a word, all these operations are alike superior to his province. One opening indeed there is to further information, and that not chargeable (it must be confessed) with any deficiency in point of amplitude: the misfortune is, that it lies all of it on one side. Do you know anything further that may be of advantage to the plaintiff? says the concluding article in the paper of interrogatories delivered on the part of the plaintiff. Do you know anything that may be of advantage to the defendant? says a corresponding article in the paper delivered on the part of the defendant. Having no one before him that either knows a syllable, or cares a straw, about the matter—seeing no one before him, of whom it is possible for him to stand in any kind of awe,—the witness remembers on each side as much or as little as he pleases. Fear of consequences may prevent him from telling any falsehood for which he sees reason to apprehend detection and punishment from other sources; but for the utterance of any truth which in his view may appear pregnant with anything unfavourable to the side which his inclinations have espoused, there is nothing in the whole system put together that can afford him the slightest motive.

In the situation of the clerk who on this occasion acts the part of a sort of shadow of a judge, what can be supposed to be his inclinations or endeavours from the opening of the business to the conclusion of it? To get it out of his hands, and put an end to his labour—his obscure and thankless and in every shape unprofitable labour, as soon as possible;—to get some sort of answer to each and every interrogatory,—if such be understood to be his duty, i. e. the task, for a failure in which he might be in danger of being punished: to get an answer; but whether true or false, complete or incomplete, distinct or indistinct, intelligible or unintelligible, why should he care?

On this footing is this principal part of the judicial function exercised in that court (the Court of Chancery) by which by far the greatest part of the business called equity business is performed: that is to say, when the examination is performed in the district of the metropolis, being that district in which the greater part of this sort of business is performed. This accordingly is what may be termed the ordinary mode.

In the same court, what may be termed the extraordinary mode, the mode less in use, and at any rate employed only as a makeshift, may be pronounced somewhat less imperfect. Where the scene of the examination lies elsewhere than within the district of the metropolis,—on the occasion of each cause, a commission is granted to four persons, commonly attorneys, two of them recommended on each side. The court of justice is a room in some public house: and there it is, that, under the obligation—the anxiously enforced obligation of secrecy, the witnesses are brought together. Compared with the open mode by examination and cross-examination in a public court of justice, with or without a jury, this mode will be seen to be imperfect; though what particular quarter may be the seat of the imperfection may not be quite so easy to pronounce. These commissioners,—to what known class are their function and their station to be referred? Are they judges, mere judges, and nothing more? Then comes the deficiency in respect of appropriate information, and adequate interest and stimulus to exertion, as before. Are they mere agents of the parties by whom they are respectively nominated and paid? In this way of viewing the matter, we behold a judicature without a judge. The official experience, the habitual sense of dignity, the consequent solicitude in respect of reputation,—these endowments, so naturally attached to the station of the permanent judge, are not reasonably to be looked for on the part of these ephemeral judges. On the other hand, more or less of partiality towards the interests of the parties to whom they are respectively indebted for their appointment, and on that account a proportionable degree of zeal and acuteness in the conduct of the examination (which by this means wears in a certain degree the complexion of the reciprocal process of examination and cross-examination,) may not unreasonably be expected. But their zeal, if any such emotion be felt, has not, unless by accident, been excited or sharpened by any personal intercourse with the immediate agents of the parties, much less with the parties themselves: and, as to information with regard to facts, if they possess any beyond what the interrogatories themselves in their naked and unexplained state afford, it is again a matter of accident; and, if the supposition be realized, the information and function of the agents, the attorneys, of the parties, is communicated to these amphibious functionaries.

The only source of information they are sure to possess, consists of the above-mentioned sets of interrogatories, exhibited one on each, or perhaps only on one, side. These interrogatories must, by the rules of the court, have received the signature of an advocate, having been drawn up either by the advocate himself from a paper of instructions given to him by his client the attorney, or by the attorney himself. Drawn by whomsoever they may, they are necessarily presented uno flatu to the commissioners, to whom, in their character of judges or agents of the parties, they are to serve in the character of instructions. Comparing the situation of these deputies with that of the parties, it is obvious how indifferently qualified they will be for the putting of such questions as neither have been nor can have been comprised in the paper of interrogatories,—fresh questions arising in unlimited number and variety out of the unforeseeable answers to immediately preceding questions. Thus, in the respect in question, stands this modification of the regular mode, when compared with the summary mode, in which the mutual presence of the parties forms the essential and characteristic feature. Compared indeed with the mode observed in trial by jury, in which the presence of advocates, coupled with the absence or at least the inaction of the parties, is an inseparable circumstance,—the disparity in this respect may not be so great. If, when transmitted to the commissioners, the paper of interrogatories be accompanied by a paper of instructions as full as that which, under the name of a brief, has on the occasion of a trial by jury been put into the hands of the advocate,—it follows that (excepting the occasional faculty of vivâ voce communication with the attorney at the time of the trial) between the situation and means of information on the part of the advocate so called, and those of the commissioner thus qualified for exercising the function of an advocate, there is no very striking difference.

What might seem extraordinary enough (if in the practice of English jurisdiction any exemplification of inconsistency or of established contempt for the known ends of justice could appear extraordinary) is, that the comparative incongruity of this equity mode of receiving and extracting extraneous testimony is by no description of persons so explicitly and habitually recognised as by the very persons under whose authority it is so regularly pursued. In ordinary cases indeed, in by far the greater number of causes, this wretchedly adapted mode of investigation is suffered to take its course. Yet sometimes it does happen, that the least defective of the existing modes of extraction—the jury-trial mode, by examination and cross-examination, is looked upon as worth being employed; and in this case, trial by jury is the resource. The Chancellor knowing, and, by expression stronger than any words, confessing and proclaiming, that the only mode which he is in the constant habit of employing for the discovery of truth is a bad one, sends the cause (that is to say, this part of it) to another tribunal, the habits of which are less aberrant from the ends of justice. The practice is so familiar as to have acquired an appropriate technical name: it is called directing an issue.

The whole character and complexion of English judicature would be belied, if on this occasion as well as so many others, the professional fondness for mendacity were not indulged with its gratification. The operation belonging to the head of Procedure, the details of it belong not to this place. How the parties are forced, or one of them, to say a wager has been laid between them, though it is no such thing—a wager, as to whether the fact in question happened or no; how one of them is made to bring an action for the money pretended to be at stake on the pretended wager, saying that it has been won by him, for that the fact happened as he said—which the other on his part denies; how the connexion is made out between the sham demand and the real object of inquiry; how the court, in consideration of its self-created incapacity of conducting the inquiry in any tolerably good mode, finds itself under the manufactured necessity of sending the cause to another court, which has not precluded itself from the use of a less imperfect mode; how and in what proportion the delay, vexation, and expense, of a suit at law is by this ingenious husbandry grafted upon the stock of a suit in equity;—these are subjects, the exhibition of which will find a more apposite place under the head of Procedure.

The storehouse of inconsistency is not yet exhausted. The cognizance of a court of equity, how ill-defined soever its limits may be in other respects, is at any rate confined to questions of property. Among the largest masses of property apt to come thus in question—among those which give rise to the greatest number of causes cognizable by a tribunal thus denominated—may be reckoned the estates of bankrupts. Claims to the amount of a million or more have come thus to be disposed of on the occasion of the bankruptcy of a single house.* In cases of this sort, though there is nothing to hinder the claim from being preferred by the sort of suit above described under the name of a bill, it is much more common for it to be preferred by a different sort of suit, called a petition.† In this case, again, the mode of inquiry is altogether different. To avoid the only natural, and (when practicable without preponderant collateral inconvenience) the only just and rational mode, the same scrupulous and unvarying care is taken in this case as in all others. But neither is the mode pursued in all other cases by the same tribunal, less completely relinquished. The mode now pursued is exactly the mode already described as the worst of all modes—as the one exclusively pursued by the common-law courts on the occasion of every inquiry in which no jury bears a part:—I mean the affidavit mode.

Here, as at common law, the substitution of a less searching to a more searching mode of scrutiny, is sufficient to give admissibility and credit to the most decidedly inadmissible and incredible species of testimony. On this occasion as on that, the too-hastily adopted dictate of inconsiderate caution, nemo debet esse testis in propriâ causâ, is adopted, with no other change than that of a single word—the change of nemo into omnis. Call yourself plaintiff, your testimony goes for nothing:—call yourself petitioner, it is as good as anybody’s.*

Compared with procedure by bill, procedure in this way by petition may be, not altogether without propriety (as in practice it sometimes is,) styled summary: for the pace of an ox, how slow soever when compared with that of a greyhound, is swift when compared with that of a tortoise. But it would have been profanation, as well as confusion, to have degraded the only mode of inquiry dictated by nature, and honestly subservient to the ends of truth and justice, by confounding it with any modification of that factitious mode, which has so evidently had an end of a widely different description for its result, not to speak of its final cause.

The Roman mode of collecting evidence furnishes a source of complication and misdecision from which the English mode is happily exempt. In the English mode there is no medium between existence and non-existence: a proposed witness is either heard or not heard; his testimony is either delivered or not delivered: delivered, it exists, and it has its effect, if not with reference to all persons in general, at any rate with reference to all those who are parties in the cause.

In the Roman mode, the same testimony is susceptible of as many modes of imperfect existence, as the cause has parties: existing as to Titius, it may be non-existing as to Sempronius, and so on, in relation to as many points as there may happen to be found in the juridical compass.

A mass of ready-written evidence is constructed, constructed in private, in the secret workshop of the patent manufacturer, the judge. Thus constructed, it becomes an instrument that may be let out to anybody, refused to anybody: it may be applied to use at the instance of one person, refused to be applied to use at the instance of another.

Two plaintiffs: one of them has delivered assertions concerning the existence of certain matters of fact—assertions capable in their own nature of being employed in the character of evidence. This testimony (so, for argument’s sake, let it be called,) shall it be employed, or not? admitted, or not admitted? read (to employ the word in common use,) or not read? It may be read at the instance of that one of the plaintiffs whose testimony it is not—not read at the instance of the other. Being read, no matter at whose instance, it may be allowed to operate in favour of (or, as the phrase is, for) the one, not allowed to operate in favour of the other: operate to the prejudice of (or, as the phrase is, against) the one, not operate to the prejudice of the other.

Add now a defendant (or, for dispatch, say two defendants,) to match with the two plaintiffs. The testimony of the plaintiff in question may be read at the instance of one of the two defendants, not read at the instance of the other: it may be admitted to operate in favour of the one, not operate in favour of the other: operate against the one, not operate against the other.

Discard now the two plaintiffs: and let the testimony in question be that of one of the two defendants. The deposition may be allowed to be read at the instance of the deponent, not allowed to be read at the instance of the non-deponent:† or (what will be apt to appear more natural, because less dangerous) read at the instance of the non-deponent, not read at the instance of the deponent. Being read, it may be suffered or not suffered to operate for the deponent, suffered or not suffered to operate against him: and again, suffered or not suffered to operate for the non-deponent, suffered or not suffered to operate to his prejudice.

To reduce to its minimum the burthen of this disastrous arithmetic, two has been taken as the smallest multiplier: two, the number of the sides of a cause, increases the multiplier to four; those other points, at whose instance, for whom, against whom, swell it to twelve. But the number of parties in a case may, on either, or each side, be half-a-dozen—it may be half a score—an entire dozen, or an entire score—a hundred, any number of hundreds: a number amounting to divers hundreds may not improbably have been exemplified in practice. Take a parcel of creditors on one side, a parcel of legatees on the other, it will be evident that on neither side has the number any certain limits. Thus it is that the number of changes that are capable of being rung, in answer to the question, read, or not read? is plainly infinite. The number of folio volumes capable of being filled with discussions on the subject of these changes, is alike infinite.

The courts which have given admission to the distinctions pregnant with these changes and these discussions—the courts which have sowed the seeds of all this science—are the courts, which by the courtesy of England, have been complimented with the title of courts of equity.

Of all these possible distinctions, the number of those which have actually presented themselves to notice, and called forth decisions, and those decisions ripened into rules, is as yet extremely small: but, as yet, equity is but in her cradle.

Will reason be referred to, as the power by which the number of these distinctions either has been, or is capable of being, limited? Reason rejects them in the lump. If that power by which the existing ones have been fixed (supposing any to have been fixed) be reason, no other number but may equally be fixed by the virtue of the same cause.

That the testimony of one defendant, whether it be in the shape of an answer or in the shape of a deposition, cannot be read for or against another defendant without special order, seems tolerably well fixed. Unfortunately, in the words special order, a mystery is inclosed. The application by which the special order is called forth,—is it acceded to, as the phrase is, of course—that is, without being subject to contestation? In some of the instances where evidence is not admitted but upon special order, the affirmative is the case in every day’s practice. Special order, in that case, means nothing but a pretence for that for which, to a hand clothed with adequate power, any pretence serves; viz. extracting fees. In this case, if the order be understood to be preceded by reflection, the money extracted on the occasion is extracted on false pretences; for wherever the application (whether called motion or petition) is acceded to of course, the circumstances of the case are never so much as presented to the conception of the judge. Excepting always the part that consists in the eating of the fees, a wooden judge would be as competent to the business as the living one.

In the particular case in question, do the words special order imply faculty of contestation on the part of the adversary, and consequently the exercise of the faculties of hearing and reflection on the part of the judge? If yes, the special order may in each instance be governed and modified by the special circumstances of the case: and then, at the door thrown open by these special circumstances, in comes the goddess of Equity, with her infinity, her incomprehensibility, and all her other attributes, and with a pile composed of an infinite number of volumes for her throne.

From anything that has been said it must not be concluded that the ears of the principal judges in the equity courts are inexorably shut against all vivâ voce evidence. They are still open to receive it, in certain cases; and these cases are those in which it is of no use.

Proof of the authenticity of a deed is on one supposition, and one supposition only, of any use; viz. that it may have been fabricated or falsified in the way of forgery. Is forgery suspected? In this case, indeed, the proof of the authenticity of the deed is of real use; provided always that cross-examination and counter-evidence be allowed. On every other supposition, and setting aside this condition, it is a vain formulary—an operation without use.

In how many instances out of ten thousand is any suspicion, real or pretended, of forgery, manifested? If in ten, the proportion seems a large one.

In every other case—at least every other contested case—the probability seems to be, that, on one account or another, vivâ voce examination will be of use.

The result is, that this most efficient mode of scrutiny is, among the votaries of equity, reserved, as it were, with care, for the only class of cases in which it is of no use.

Of the myriads of instances in which it has been employed, perhaps not a single one is to be found in which it ever was of use. In the chancellor’s court of equity, does a suspicion of this kind present itself? Whatever contestation may arise, it is not the chancellor that will hear it, no; he will send it to be tried before a jury—he will direct an issue.

The collection of this part of the evidence in a mode thus comparatively undilatory, unexpensive, unvexatious—does it then belong to the list of grievances? No, surely: no otherwise than in as far as it stands parcel of the processes of that immense manufactory of expense, vexation, and delay, of which the existence is one continued and prodigious grievance. The fault belongs not to the head of absolute faults, but to the head of inconsistencies—not in the giving this best mode of scrutiny to these cases, but in the refusal put upon it in all other cases.*

If, following the track of his predecessors, it were possible (which it is not) for an English judge to do wrong, the narrow set of instances in which they have done right would only serve to render their conduct the more inexcusable. The result of it is, that they have known what is right—that they have had power to do what is right—but that they have not thought fit to exercise it.

In the accounts which are given by practical writers, of the mode of collecting the evidence, as practised under the authority of a court of equity, the word cross-examination every now and then presents itself. But, between the operation here spoken of, and the operation spoken of under the same name on the occasion of the inquiry called a trial, as carried on in a court of law, there is a very material difference. In the common-law operation thus denominated, the examination is performed by the advocate of the party, i. e. of the party opposite to him by whom the witness has been examined in the first instance: and, the answers given on that occasion being already known, the questions put in the way of cross-examination have the faculty of grounding themselves on any of those answers; as well as each successive cross-question (if so it may be called,) on the answers given to the several cross-questions that have preceded it. Under the cross-examination of the Romanists,* no such faculty is possessed. The exhibition of that set of interrogatories which is furnished to the examiner by the party by when alone, or by whom in the first place, the testimony of the examinee was called for, is called simply the examination, and answers to the examination in chief of the common lawyers. The exhibition of that set of interrogatories which is furnished to the examiner by that one of the parties by whom the testimony of the examinee was either not called for at all, or not called for till after it had been called for by the other, is what the Romanists mean when they speak of the cross-examination.

That this cross-examination of the Romanists does not afford any security equal to that which is afforded by the cross-examination of the Anglicans, will appear evident enough. To the lawyer by whom the set of interrogatories furnished by the party opposite to the invoking party are drawn up, it is not possible in every instance to foresee the interrogatories that will be exhibited on the other side: it is still farther from being possible to him to foresee each answer that will be drawn forth by each such question: it is, therefore, on a double account impossible for him to ground on every such answer, such question as in case of incorrectness or incompleteness (from whatever cause, mendacity, temerity, or negligence) might be conducive and necessary to the full and correct disclosure of the facts on which the merits of the cause depend.

To form the best conception that can be formed of the course pursued in this part of English judicature, a Frenchman can do no better than to think of the course pursued in his own country in legislative oratory. From pulpit No. 1, orator No. 1 having read a previously-written declamation, from pulpit No. 2, orator No. 2 reads another prepared declamation, in which (though the thesis is the same) no notice is or can be taken of a single syllable of what has been said in the declamation that preceded.

In the ecclesiastical courts, the examination being conducted in the same manner, the insufficiency of this spurious sort of cross and adverse examination, in comparison with the natural and genuine (the Anglican mode,) is of course felt in equal force.

What is curious enough is, that, in the case of the ecclesiastical courts, not only the effects of it are felt by the parties—felt to the prejudice of that one of them who has right on his side, but recognised and confessed by the institutionalists themselves.†

Speaking of the ecclesiastical courts,—“Imperfect and wretched” (said his Majesty’s attorney-general, addressing himself to the House of Lords.‡ ) “imperfect and wretched” is the “manner, in which cross-examination is managed upon paper, and in these courts.” Hearing this in their judicial capacities,—to how many of their lordships, in their legislative capacities, in the course of the fifty years that have elapsed, has it ever occurred that it might be matter of duty to endeavour to substitute in those courts a suitable mode of doing the business, to an unsuitable one? Not to a single one. What was said, was said in the presence of at least three law lords: Earl Bathurst, lord chancellor; Lord Mansfield, lord chief-justice of the King’s Bench; and Lord Camden, lord chief-justice of the Common Pleas. The same gentleman to whom, in the station of attorney-general and member of the House of Commons, the form or extracting evidence in these courts had with so much reason presented itself as wretched and imperfect, became afterwards lord high chancellor, and a member of the House of Lords: nor in the one station any more than in the other, does it appear ever to have occurred to him that the difference between the bad mode of administering justice and the good one was worth trying to do away. Whether what is established answers its purpose well or ill, is not worth inquiring about, so long as it is established.

Wretched and imperfect, however, as is the manner in which cross-examination is managed upon paper and in those courts, it cannot in any respect have been worse, or materially different, from the only one which is in use, was then, is now, and perhaps ever shall be in use, in those other courts of tenfold greater business and importance, in which this successful votary of the law was then practising at the head of the faculty of advocates, and afterwards for so many years presiding in the character of sole judge.

For profiting by the wretchednesses and imperfections of the law, the reward is rich and ample: for endeavouring to remove them, there is none. To carry on the existing bad course of procedure, according to the existing system of inconsistent and ever-fluctuating rules, is at once a matter of obligation, and a source of honour and veneration. To endeavour to make it less bad, is neither matter of obligation to anybody, nor source of anything but jealousy, hatred, and contempt.

CHAPTER XVII.

MODE OF EXTRACTION IN ENGLISH ECCLESIASTICAL AND ADMIRALTY COURTS—ITS INCONGRUITIES.

In the courts, called in English Ecclesiastical courts, as in the ecclesiastical courts of most other countries in Europe, the old Roman system forms (as everybody knows) the ground-work of the procedure. Hence (as bath so often been observed) a regular, but a pretty uniform and consistent, deviation from the natural mode, the only mode that could have been suggested by a real regard to the ends of justice. Hence at the same time a degree of uniformity, as between the procedure in penal and the procedure in non-penal cases: such a degree as indicated the convenience of bringing to view both branches under one head; especially on considering within what comparatively narrow, though still too ample, limits, the jurisdiction of these courts is, under the domineering controul of the original Anglican courts, confined.

With the exception of a slight regard to general utility, seconded by here and there a ray of the light of human reason let in in very modern times.* the state of existing jurisdictions is in England, as elsewhere, but more particularly in England, the result of the universal scramble, between violence and fraud on the part of each casual occupant of a branch of judicial power, and the like violence and fraud on the part of every other.

For putting in, each for his share (the greatest of course that could be obtained) of the common stock of plunderable matter, each set of learned depredators formed, in a different word or combination of words, a pretence. To the original gang, the original and primeval words law and justice were sufficient. These words having by hard wear been worn down into a certain degree of disrepute came another troop bearing another standard—the word Equity. All this while, in another quarter the attack was carried on by a third set, who were continually pronouncing the words Church, Soul’s health, Good of Souls.

That the chance for the attainment of truth will depend upon the mode employed in the extraction of it, and not upon the pronouncing this or that one out of the above, or any other, collection of words, will be evident enough to any man who is not determined not to see it. Yet in this third, as in the two former instances, the change of the word, thus affording a pretence for the exercise of judicial power, was accompanied by a change more or less considerable in the mode of inquiry pursued or allowed of, under the notion of coming at the truth.

Of penal procedure, three modes of primary distinction, with so many appropriate names: accusation, denunciation (or say presentment) and inquisition. Accusation, where an individual appears in the character of plaintiff or prosecutor: denunciation, where that function is undertaken by an official person or a set of official persons, a churchwarden or the churchwardens of a parish: inquisition (otherwise styled procedure ex mero officio,) where the function of prosecutor is exercised, for a time at least, by the judge.

The accusatorial mode is the mode that seems the properest to be taken for a standard; that of denunciation being only an inconsiderable modification of it, and the inquisitorial (how much soever in use in other countries) a sort of irregular and as it were incomplete mode, in which (as in an enthymeme when compared to a complete syllogism of three terms) one of the members naturally looked for is in appearance wanting, being consolidated with another.

1. First lot of evidence or deposition:—articles spontaneously exhibited by the accuser.

In these articles is included the statement given of the supposed offence by the accuser, he not being upon oath. Except that, from its division into articles (probably numbered articles,) it may be expected to be more particular,—the place it occupies in the cause seems to correspond to that of the indictment or information in the penal branch of the indigenous system of procedure, to the declaration in the civil or non-penal branch, and to the bill in equity.*

As to the imperfection attached to the evidence exhibited in this mode, it consists, here as elsewhere, in its being exhibited without the check of interrogation, and without the sanction of an oath. It is the same imperfection which (as if by an original contract) lawyers of all nations and all times have agreed in planting in the system, as the necessary means for rendering it well adapted to their own professional ends, and proportionably ill adapted and hostile to the ends of justice.

In other respects, we see already how much superior this sort of instrument is to those instruments of indigenous law, to which, in respect of its station in the cause, it corresponds. Digested into articles, and these articles numbered, a source of perspicuity is seen, the utility of which has already been pretty fully brought to view.

None of the technical nonsense—none of the gratuitous, and frequently injurious and insulting, falsehoods, of which those instruments of indigenous law are in so large a proportion composed. Of misplaced rhetoric, placed there for the benefit of the scribe, probably a pretty ample stock. But simple depredation is one sort of abuse—depredation stained by mendacity, and bedaubed with nonsense, is a more aggravated species of abuse.

2. Examination of the defendant, in answer to the above articles.

This examination,—being conducted, in the usual secrecy of the Roman mode, by the judge alone, or his representative, without the presence of the adverse (the accusing) party, or the advocate of either,—is therefore performed in the same way as the examination is performed (as above) by and before the master in the King’s Bench: with this difference, that the ecclesiastical examination has an object, viz. the finding out whether the defendant be guilty or no; whereas, in the case of the lay-examination, being performed after he has been deemed guilty, no object is discernible.

In the countenance of the initiative articles, there is one feature very particular, and which affords a curious enough specimen of ecclesiastieal justice. Over and above the statement made, in a manner more or less detailed, of the supposed facts and circumstances of the supposed offence,—a distinct fact is stated, viz. that a general report or rumour of it prevails in the neighbourhood: which is as much as to say that it is affirmed extrajudicially, by hearsay witnesses in unknown numbers, and whose statements respectively were removed by an unknown number of degrees, from the original source of evidence.

By the articles, the defendant is called upon to answer,—or at least, in consequence of them, he is obliged (and on pain of excommunication as for contumacy) to answer—as to what? As to the truth of criminative facts contained in the accusation? No: but only as to the existence of such a report, true or false.

Why not as to the only material point, the fact of the offence? For this very good reason,—that in an express statute it is declared, that, by the sort of court in question, no such obligation shall be enforced. Driven from this hold, from this mode of coming at material truth, they betake themselves thus to a lawyer’s shift:—Well then, we must not ask you what it was you did, but what is it that people say of you? To common sense and common honesty, nothing could be more idle than this question. Why are you in any event to be punished for what people say of you, unless what they say of you is true? In such a case, if punishment is due anywhere, the authors of the defamation, not the persons labouring under it, are the persons to whom it is due.

Not so, in the opinion of these ecclesiastics. In their opinion, or at least by their laws, it is on the party defamed that the punishment ought and is to be made to fall—at least if costs imposed under the name of punishment be a punishment. Though not guilty of the fact;—if to your knowledge there be such a report to your prejudice, being (or, if you are a true man, although not being) upon your oath, you can do no less than confess the existence of it: in this case it is expressly declared, that you are to be subjected to costs.* Confess or not, if it be proved that there has been such a report, guilty or not guilty, you are equally to be condemned to costs. Si fama confissata vel probata fuerit, pars rea condemnabitur in expensis.

What is again curious is, that,—though without a rumour the defendant could not have been obliged to make answer to questions concerning the truth of the charge,—yet, the existence of a rumour being established, as above, whether by his own confession, or by extraneous testimony, the protection meant by the legislature to be given him against these relevant questions is now taken off by these ecclesiastical judges; and (according to Oughton at least) he is obliged to make answer to all such questions, just as if no such law had been enacted. Obliged? How? By a mode which (it must be confessed) is not only a proper, but the only proper mode: by his being adjudged guilty—to wit, on the ground of his silence, considered in the character of circumstantial evidence.

Here then, we see, ecclesiastical ingenuity has afforded a pretty effectual contrivance for getting rid of the manacles imposed upon these holy hands. Spread a lying report, and then with the fruits of your own lie nullify the act of the legislature.†

If, either by the confession of the defendant or by extraneous witnesses, the existence of the rumour be proved,—a final remedy to which (always according to Oughton) it is competent to the spiritual practitioner to have recourse, is to propose to him (on pain of the ultimate punishment, excommunication) to declare upon oath, and in terms of convenient generality, without the inconvenience of adverse or particular examination, that he is not guilty of the offence charged. Giving a man this invitation to commit perjury, is, in the technical language of Romanigenous, canonical, and spiritual pharmacy, called giving him a purge (purgatio, purgotionis indictio:) perjury being, it seems, no less conducive than the evacuation of the purse, to the health of souls.

The administration of this cathartic stands prohibited in explicit terms in the Westminster Dispensary.‡ Oughton, though he recommends a reference to the statute, does not on that account think it necessary to represent this branch of practice as being the less in force.∥

To the eye of reason, standing upon experience, the pertinacity of a man refusing to answer questions (when they are permitted to be put) in relation to his supposed delinquency, is a more satisfactory proof of his being guilty, than any that can be afforded by any extraneous testimony. It is after having given this proof of his guiltiness, that the spiritual judge is allowed by the practice of the court to urge the defendant, on pain of conviction and the severe punishment of excommunication, to this protestation of his innocence.

Without any such rumour, confessed or proved,—in the administration of this cathartic, the spiritual judge is equally warranted by circumstantial evidence; provided that it merit the appellation of “vehement,” which is as much as to say, provided it be of that degree of strength which, under the indigenous practice, is held of itself sufficient for conviction in the most highly penal cases: another reason for suspecting that, if administered at all, this dose is scarce ever swallowed without carrying down with it at least a quantum sufficit of perjury.

One good thing is, that it does not appear there is any obligation upon the judge to make application of this drastic remedy: what I should expect to find, if there were any means of knowing, is, that within the memory of man it has scarce ever been applied.

Instead of being put to his oath, as in the Anglican mode,—at the very instant of his delivering his testimony in the Romanigenous mode, an examinee is made to swear on one day before one person, that he will deliver his testimony another day before another:* on which other day it appears not that any fresh oath is taken. In the promissory oath, does it expressly stand as part of the promise that the testimony when so given shall be true?† If not, the testimony can hardly be said to be delivered upon oath, according to the import annexed to that phrase by common use. The professed object of the oath so tendered is to secure submission in this behalf to the authority of the judge: and this object is attained by the mere act of submitting to examination: howsoever the matter of deposition may stand in respect of truth and falsehood.

In the practice of the ecclesiastical courts, (if the conception entertained by a modern institutionalist be correct) much inconvenience has arisen from the practice of taking the examining judges at the recommendation of the parties: as we have seen to be the practice in the case of country causes in the lay equity courts. Each one of these ephemeral judges espouses (it is said) too warmly the cause of the party to whom he is indebted for his appointment: the temper they bring into the business is that of the agent or the advocate, rather than that of the judge.

Since Oughton’s time, it has been the practice for the judge himself—the principal and permanent judge—to take upon himself the nomination of these occasional judges: not referring the recommendation to the parties, but choosing some person—some official person for example, some co-practitioner in the same branch of ecclesiastical law, to whom the interests of both are supposed to be alike indifferent. The situation of the person who officiates in that character, is by this means analogous to that of the examiner’s clerk, by whom, in the lay equity courts, the business is conducted in town causes.

This is spoken of as if it were a prodigious and clear improvement.

It may be too much to affirm, with absolute persuasion, that the change is for the worse: but whether on the whole it be advantageous, is at any rate extremely questionable.

Leave the nomination to the parties, you leave a danger of partiality, and ex parte zeal. But the danger is alike on both sides; and excess on either side finds its check and counterpoise in a similar excess on the other.

Give the nomination to the permanent judge; he being in the habit of choosing the judge or judges ad hoc among his fellow-practitioners, the danger to which the arrangement is exposed, is that of carelessness and negligence. But to this inconvenience there is no check whatever. From the secrecy so carefully preserved, it derives every facility and encouragement which it would be possible for it to receive.

The only indispensable advantage resulting from the change, is that which is reaped by the judge, and consists in the patronage he has contrived to create for himself by means of it. It affords him the means of throwing business into the hands of some personal friend and dependent.

This circumstance is of the class of those considerations which politicians in their mutual altercations are never backward to bring to view, but of which not the smallest hint is ever to be found in any book which has a lawyer of any class for its author.

For the conducting of the business in the best manner, two opposite endowments (it has been seen) are wanting; such as cannot with reason be expected to be found habitually united in one person or set of persons:—the zeal and appropriate information peculiar to the situation of party; and the moderation and skill derived from exercise—endowments which are naturally looked for on the part of the judge.

Of two systems, one of which affords the first of these qualifications without the second, the other the second without the first, nothing better can be said, than that they are both deficient. But, if the question be, which of the two, upon the ground of general principles, presents itself as most deficient and ineligible,—the answer seems to be, that which threatens the interests of truth and justice with irremediable negligence.

In the lay equity courts, both these defective and opposite courses have from the beginning of things been pursued with equal and equally imperturbable composure. A circle of ten miles’ radius is drawn round some central point in the metropolis of England—suppose the cathedral of St Paul’s. In all places an inch without that circle, the danger of deficiency of zeal predominates, and the examinations are taken by persons nominated by the parties. In all places an inch within that same circle, the danger of excess of zeal predominates, and the business affords a little mine of patronage for the benefit of some great dignitary in the law.

The only indisputable disadvantage attendant on that arrangement which gives the nomination to the parties, consists in the expense. Four functionaries, or at least two, require on this plan to be paid, instead of one. A single person, were it made his duty to do all the business of this kind that comes within the compass of a certain district, might, in consideration of the constancy of his employment, afford to do it upon cheaper terms than those others to whom it affords but a casual resource. These ephemeral judges have moreover a manifest interest in prolonging their existence, for the sake of prolonging their pay. A permanent judge would not be exposed to any sinister interest of this kind; to whatsoever other sinister interests he might stand exposed.*

In the institution of the examiner’s office, the geographical limits set to the jurisdiction of it were evidently suggested by considerations of utility and convenience. Within the space in question, less vexation and expense would be produced by sending the witnesses to a fixed tribunal, than by providing occasional tribunals all over the country, within an equally short distance of their several abodes: without that space, the economy of the arrangement would no longer hold. Not that the difference between ten miles exactly and ten miles and a foot, would be worth taking into account; but that all lines of demarcation must be drawn somewhere.

Making amendments of this nature in the equity or any other branch of the technical system, would be like laying new boards on a floor eat up by the dry-rot. But, inasmuch as, at the time when the radius of ten miles was marked out, the means of local communication were much less expeditious, and travelling much less frequent, than at the present day,—if (all circumstances taken into account) the examination at the examiner’s office were preferable upon the whole to examination by commissioners, a twenty-miles radius might seem better adapted than one of no more than ten miles, to the present state of things.

But every observation thus pointing to immediate practice stands exposed to this general objection, viz. that it supposes, on the part of those dignitaries on whom the state of the laws depends, the existence of some one person at least, to whom their degree of aptitude with reference to the ends of justice is not a matter of complete and incurable indifference.

In the Anglican ecclesiastical courts, the practice in respect of the mode of collecting the evidence of extraneous witnesses differs not materially from that of the equity courts. The leading features—examination per judicem solum, and that conducted under the seal of inviolable secrecy—are in both cases the same.

What differences there are, consist chiefly in an arrangement of two peculiar to the Romanistic courts; which, in so far as they are to be considered as having any of the ends of justice for their object, may be considered as so many sacrifices made to the direct ends, at the expense of the collateral ends.

After the deposition given by the examinee has been taken down by the examiner, it is read over to him article by article; whereupon liberty is given to him to make what amendment he thinks fit.†

The authenticity of the deposition being thus established,—for further confirmation of it, he is on another occasion brought into the presence of the judge; on which occasion the opportunity of making alterations is again afforded him.‡

Other ceremonies there are, which in the ecclesiastical courts appear to be added to those which have place in the lay equity courts. What they do towards making the bill of costs, is evident enough: but, as what they do towards increasing the security against falsehood seems to amount to nothing, they present no title to admission in this place.∥

The mode of collecting evidence in the admiralty courts differs not materially from that which is in use (as above described) in the ecclesiastical courts.§

A pamphlet was written a few years ago under the title of “War in Disguise,”—a pamphlet of considerable celebrity (proceeding from a name, which, though not announced, was not disguised,) having for its object the making it appear that, in the dispute between the British government and that of the American United States on a point of international law, the American government was in the wrong; and, moreover, that, for eluding the authority of those British judicatories to whose cognizance the point in question appertains, perjury was an instrument habitually and regularly employed by the subjects of those states.

That, in the charge thus made, there was a considerable degree of truth, there seems but too much reason for believing; the misfortune is, that, if so it be that it is the truth, it is far, very far, from being the whole truth.

In speaking of what in his language was “war in disguise,” it seemed to the gentleman that, in bringing to view the cause of the war, he had completely stripped it of all disguise. Unfortunately,—if, to the cause brought to view by him in the character of the immediate cause (or at least an immediate cause,) that character does appertain with too much justice,—a still higher cause, the cause of that cause, remains still in disguise; in a disguise which the gentleman was not quite so willing, as he was able, to divest it of.

In the case of perjury, as of any other crime,—if the station of the suborners be not too high to leave them within the reach of punishment,—in looking for the perjurers, it is customary not to stop there, but to look out also for the suborners. Unfortunately, in this as in so many instances, the station of the suborners is too high to leave them within the reach of justice. Of justice? of penal infliction? Aye, or so much as of shame.

These suborners are those (need it be mentioned?) by whom, with full and complete consciousness of such its character, a system of procedure thus fruitful in perjuries, having been found created, is preserved—preserved with full and complete consciousness of such its character; and, if not for the sake of the profit, yet surely not without pretty effectual knowledge of the profit, which, in so many shapes—money, power, and ease—in such abundance flows from it.

By what is the perjury supported? By the generally experienced efficacy of it in the courts to which it is presented. And what is the cause of this efficacy? What but a mode for collection of the evidence—a mode by which, whether obtainable or not obtainable in the universally-acknowledged best shape, an exclusion is put upon it in that best shape, while the door is kept open to evidence in the worst shapes from the same source: a mode than which, were the object (as perhaps it was) to encourage, to propagate perjury, none more promising, none more effectual, could have been devised.

For so many hundreds of years past, in more courts than one, and, in each court, in so long and illustrious a line of judges, by whom evidence in these perjury-begetting shapes has exclusively been received,—has there been one to whom the efficacy of this mode for the generation of perjury, its inefficacy for the support of justice, has been a secret, or could have been a matter of doubt? Has there been any one of them to whom trial by vivâ voce evidence with questions arising out of answers, and with cross-examination by parties, has been unknown? Have there been many of them to whom, when changes agreeable to them have been to be made, the road to Parliament has been unknown?

Now then, on the score of perjury, how stands the account between the United States and the United Kingdom? In the United States, the system of procedure known on both sides to be thus rich in perjury, has been abolished—long abolished. In the United Kingdom, having been sometimes attacked, it has been, and continues to be, strenuously defended and kept up. In these as in other cases, in regard to this abomination, the government of the United States has done what was in the power of government to do towards the extirpation of it: in the United Kingdom, government has done, and continues to do, what is in the power of government for the preservation of it.

In the United States, the transgressors are, not the rulers—(they have done whatever was in their power to purge themselves of the transgression)—but individuals. In the United Kingdom, the main transgressors—those to whom belongs the wo denounced against those from whom evil comes—are the rulers. As to individuals, members of those states,—if so it be that, in defending themselves against force which in their eyes is injurious, they abstain not from defiling their lips with perjury,—whence is it that they do so? It is from the facility and encouragement which, in the United Kingdom, as above, they receive from its rulers.

In the opinion of the late Dr. Browne, professor of civil (i. e. Roman) law in the university of Dublin, and representative in three parliaments for the same, the practice of the ecclesiastical courts (to which may be added that of the admiralty courts) has the advantage (he wishes us of course to understand in respect of conduciveness to the ends of justice) over the practice of the equity courts.*

Two main reasons are assigned by him:—

1. In the ecclesiastical courts, in the course of one and the same suit, each party has it in his power to obtain the testimony (the testimony upon oath) of the opposite party (this supposes only one of a side:) whereas in the equity courts, for the defendant to obtain in this way the testimony of the plaintiff, requires an additional suit, viz. a cross bid.*

If, in the one ecclesiastical or admiralty suit, the quantity of vexation, expense, and delay is (upon the average of the number of cases in each respective court presenting an equal demand for vexation, expense, and delay) less than in the equity courts,—in so far, the practice of the ecclesiastical and admiralty courts has the advantage over the practice of those its rivals, in respect of conduciveness to the ends of justice. How, in these respects, the account stands between them, it is impossible for an individual to pretend to say: it is in the power of the rulers of the people to know, should it ever occur to them that these matters belong to the list of “secrets worth knowing.”

In the ecclesiastical courts, “I scarcely ever knew,” says he,* “even the most complicated last two years. How few equity suits,” adds he, “are so soon over.” But the suits which come before the equity courts, are they not upon an average of a nature considerably more complicated than those which come before the ecclesiastical courts?

2. The other alleged advantage is, that, in the ecclesiastical and admiralty courts, “the personal answer of the party is demanded to the assertions and charges of his adversary, without putting them into the form of interrogation.”† This he calls “superfluous tautology:”† repeating the same story twice, first in the shape of assertion, “and then in the form of interrogation.”‡ And this “superfluous tautology” (he informs us) has been “corrected,” as he calls it, in the ecclesiastical courts, and not in the courts of equity; which he observes is very remarkable.∥

That there is tautology enough, and to spare, might perhaps, in the instance of which of these courts he pleased, be conceded to him without much danger: but how it should have happened to him to conceive that there is tautology in putting questions after having stated supposed facts, remains to be explained. True it is, that, what a man knows, or chooses to profess to know, he may express in the form of an assertion: but suppose a point, concerning which he really knows not anything, nor conceives nor professes himself to know anything, but wishes for information, and to obtain such information addresses himself to the adverse party, who he supposes may have it in his power to afford it. Where in this case is the tautology? So far as a man is really ignorant, to obtain information, there is but one way, which is to ask for it: to obtain answers, there is but one way, which is to put questions: to obtain information in relation to such and such particular points, there is but one way, which is to name those points.

That in a bill in equity there is commonly no want of superfluity, may safely enough be conceded: but so far as regards the parallel drawn by the learned professor, wherein does it consist? Not in the interrogative part, but in the assertive part—not in the endeavours used to obtain the information which a man does not possess, and has occasion for, but in the false pretensions in which, by weak or wicked judges it has been made necessary to a plaintiff to say that he possesses it, when the sole cause and reason of his asking for it is, that he does not possess it.

The courts of equity have split each suit into two suits; making a separate suit necessary to enable the defendant of the first suit to obtain the confessorial testimony of his adversary, in return for that which has been already furnished to him. The source of vexation, expense, and delay, thus opened, is an improvement made by English equity upon the original Roman practice retained in the ecclesiastical and admiralty courts, as well as in the whole system of procedure pursued in several other nations of Europe, in so far as they have taken the Roman system (as for the most part they have done) for the foundation of their own. But, from another source of vexation, expense, and delay, from which the ecclesiastical and admiralty courts (according to the information of the same learned professor) have made copious draughts, the equity courts have made no such draughts. To the sort of inquiry, on the occasion of which no licence is given to mendacity (viz. that on which each party, at the requisition of the other, deposes upon oath, and which consists of the effect of the equity bill reciprocalized, and in that way doubled,) the ecclesiasticalists have contrived to prefix the sort of inquiry by which the requisite licence is given to mendacity—by which the requisite profit is furnished to the men of law—by which no information consequently is furnished to anybody, nor (excepting the vexation, expense, and delay, to the parties) anything else but the profit to the men of law. In a word, before it suffers any information that can be depended upon to be obtained on either side, it makes it necessary that the men of law should occupy themselves in giving sham information on both sides: it mounts the common-law abuse of special pleading upon the more useful part of equity practice.

That, after everything that has thus been done by the ecclesiasticalists to augment the profitable mass of vexation, expense, and delay, still more has been done in the same line of industry by the dispensers of equity, is maintained by the learned professor, and may perhaps be true enough. If so it be, then it follows that there are grievances still worse than the system which he stood engaged to explain, was accustomed to draw upon for honour and for profit, and became thus disposed to eulogise. To compare one branch of the system with another, when a tempting opportunity offers in this or that particular to display the superiority of his own over a rival branch,—this is what a professor of any one of them, and each of them, may do without much difficulty. But to compare his own branch with the ends of justice—the professor who has courage to make any such comparison, is still to seek, and ever will be.

As to the supposed improvement in which the learned professor prides himself, it consists, we may see, so far as it takes place, in neither more nor less than cutting down examinations, and reducing them to affidavit work. Whether it be in the nature of this difference to add to the chance in favour of a full discovery of the truth, is a question that has already been considered.

CHAPTER XVIII.

INCONGRUITIES OF ROMAN LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE.

For the extraction and receipt of testimony, the Roman system admits of but one of the two modes—the vivâ voce mode: the mode by written correspondence has no place in it.

Except in one case, and that a narrow one, viz. the case of confrontation, as between a prisoner defendant and the witnesses on the other side (of which presently,) the practice of cross-examination is unknown to it. Cross-examination, a term of English jurisprudence—a term for which (like the terms witness, testimony, right, obligation, and other terms of natural jurisprudence) one should have expected to have found an equivalent in every language—has actually out of Britain no single-worded equivalent in any European language.

Hence the door is left wide open to mendacity, falsehood, and partiality, whether from unblameable incorrectness, from temerity, or from mendacity: against mendacity, in very gross cases, some faint and inadequate prospect, perhaps, of punishment at some future contingent period; but for prevention, cross-examination being unknown, nothing can be done immediately, and upon the spot.

In the perusal of the Causes Célébrus, an observation that presented itself almost in every cause, was the extraordinary frequency of the cases of repugnant testimony, in comparison with anything which is presented by the ordinary run of causes on the occasion of the trials conducted in the English mode—a repugnancy which, for want of cross-examination, remains uncleared up; and that in cases where, from the nature of the fact, it appears evident, that by a few questions put in the way of cross-examination, or (in Romano-Gallic language) by confrontation, if confrontation were extended to these causes, the contradiction would be naturally, and in all probability satisfactorily, cleared up.

In looking for the cause of this repugnancy, and of the superior frequency of it in the Romano-Gallic practice in comparison with the English, a more candid and consolatory mode of accounting for it presents itself than would be presented by any supposed difference on the ground of morality between the two nations. False testimony is so much more frequent in France than in England—why? Because the witness, though examined vivâ voce and extemporaneously in France as in England, had in France no apprehension of seeing questions put to him in that same way, and on that same occasion, by the experienced sagacity of the legal assistant on the other side.

Whatever be the nature and rank of the cause—higher penal, lower penal, or non-penal,—the person, the only person by whom testimony could be either received or extracted, was the judge. But, unless by mere accident, it is not in the nature of things that the judge should of himself know anything about the facts on either side. In the way of extraction—that is, of interrogation, examination, putting questions,—whatever can be done from that commanding station cannot have any other ground to proceed upon, any other lights for guidance, than such facts or supposed facts as are furnished by one of the parties. The judge is, or ought to be,—the judge is supposed to be (and let him be supposed to be) impartial; but, in the instance of each witness whom he examines, the instructions, the only instructions he acts or can act from, are partial instructions, furnished by one alone of the contending parties, viz. that one by whom the testimony of the witness is invoked.

When each witness is examined by the parties—examined by both parties—examined primarily by the party by whom his testimony was called for (if called for by both,* by the plaintiff,) cross-examined by the adverse party; he is examined by two persons, who, taken together, have every interest which the matter at stake in the cause can give them, to draw from him the whole truth: each having every interest which the value of the matter in dispute to himself can give him, in drawing forth so much of the truth as makes in favour of his side. So far as the extraction of the truth is concerned, justice, under this system, has nothing to fear but such casual deficiency as may happen to take place in respect of the intellectual sufficiency of the parties and their agents in relation to this task.

Deficiency of zeal, the result of deficiency of interest, is not to be apprehended on either side. Excess of zeal, the result of excessive sensibility to the sinister action of interest, may naturally be apprehended on both sides; but its operation on each side is checked and compensated by its operation on the other.

When the business, the proper business, of both parties, is taken out of the hands of both parties, and lodged in the hands of the judge,—so far as depends upon the state of the affections, of motive and interests, the business is as badly arranged as possible. General deficiency of zeal, variegated by occasional excess of zeal, and that on one side only—general carelessness, variegated by occasional partiality, both of them almost without controul,—such is the natural result of so incongruous a state of things. Are the parties, both of them, unknown—the interests of them alike indifferent—to the judge? His interest is to get rid of them and their dispute as quickly as possible. The points he cannot help examining the witnesses to, he examines them to: the points he can help examining them to, he suffers to pass without notice. Attentive only to his own case, inattentive alike to the interests of both parties, the merit of impartiality cannot be denied to be his due. On the other hand, does it happen to him, from amity, enmity, or self-regarding interest, to have any leaning on either side? All facts operating on that favoured side find him eager to draw them forth; all facts operating in favour of the opposite side find him as determined as the care of his reputation suffers him to be, not to think of them. Under the eye of a scrutinizing public, such studied blindness would not at all times be equally safe. But, in the Roman system, whatever is done in this way is done under the veil of secrecy: besides the judge and the person under examination, no one is present but the judge’s subordinate, the recording scribe. If the object were to push carelessness and corruption to their maximum—to render, in one or other way, misdecision as frequent as possible,—no means could be better adapted to that end.

Under this system, the arrangements recommended (as above) as subservient to the purpose of cross-examination, are indeed admitted; the testimony delivered in the shape of answers to questions; each answer extemporaneous, following immediately upon the question which called for it, and in so far unpremeditated; the questions put separately—not uno flatu, in a simultaneous string; each question having the whole string of preceding answers, and in particular the last preceding answer, for a ground to work upon, for a light to work by. True: but of these subordinate arrangements, useful as they are, what is the chief use? Answer—to give effect to cross-examination: but, in the system which thus employs them, cross-examination has no place.

The notes of the evidence are taken down, not by the judge himself, but by a scribe who attends him for that purpose. Of what passes, or of what does not pass, more or less is set down, as the superior and his subordinate can agree. To the account there given of what has passed, or is supposed to have passed, the person examined is indeed made to annex his signature; but the words, even of the answers, are not so much as supposed to be given—much less, of the questions. Of the answers, no more than the substance, or supposed substance; of the questions, not so much as the substance, except such part as is, as it were, seen through the answers—such part without which the answers would not be intelligible. Negligence, violence, subornation effected or attempted by threats or promises, with or without the intention of fulfilling them—misbehaviour in every imaginable shape, may on the part of the judge have been committed, yet not the slightest trace of it need, or is at all likely, to appear upon the face of any of these minutes.

Had it been really an object to guard individuals against a species of injustice, which in capital cases would amount to legal murder aggravated by torture,—arrangements so obvious as those which in this view might be imagined, would hardly have been so universally omitted.

Without being stationed so near the prisoner as to be capable of prompting him without the observance of the judge,—a friend and nominee of the prisoner might be in the same apartment, effectually present to the purpose of hearing everything that passed.

If, for fear of prompting by signs, it were not thought fit that this assistant should be present during any part of the examination, he might at any rate be present at the final reading of the minutes. In case of their being in every respect correct, and acknowledged to be so, he might be present at the time when the prisoner, being finally interrogated concerning their correctness, confessed them to be correct, either by positive assent, or (what would be equivalent) by silence:—present to the purpose of hearing and testifying his assent, observing and testifying his silence. In case of the prisoner’s objecting to any part of the minutes as incorrect or incomplete, he might be present to the purpose of hearing, seeing, and attesting the discussion produced in consequence; he might be present to the purpose of doing, what in most cases he would naturally have to do, and think fit to do—viz. to confirm by his subscription the statement drawn up on that occasion by the official scribe, or (in the extraordinary but still possible case of an irreconcilable disagreement) entering upon the minutes his dissent, together with whatever observations he might think fit to add to it.

This assistant would naturally have been a professional assistant, of the attorney or advocate class, as most competent to the business: it might have been a non-professional friend. The prisoner (for no possible case ought ever to pass unprovided for) is too poor to purchase assistance—he is too friendless to obtain it gratis. What is to be done? Shall it rest with the judge to provide him with an assistant? An assistant so named would afford but slender security against any possible mal-practice on the part of the functionary by whom he had been named.

But wherever the Roman system of jurisprudence has been prevalent, other functionaries have never been wanting, whose function, while it has made the exercise of such charity a duty, has secured to them the requisite portion of public confidence. The confessor, for example, by whom the prisoner, if capitally convicted, would have been attended and supported in his last moments,—he, or some one of his cloth, would be the person to guard him (as above) from such oppression as might involve him in any such suffering without its having been his due.

Thus hostile is the Roman system of procedure to every end of justice—thus subservient to the sinister interests by which it has been created and preserved.

By the several governments of the American states—by those republican legislators, though bred in the sink of English corruption, this abomination has for these many years been extirpated.

Even by Napoleon, the most absolute of all despots that the world ever saw, it has been extirpated.

In this, as in its other shapes, republicans abhor corruption—despots have no need of it.

In England alone is it an object of worship; rulers protesting, and people sottish enough to believe, that the very life of the government depends upon it, and that without it everything would fall to pieces.

CHAPTER XIX.

OF CONFRONTATION UNDER THE ROMAN LAW.

Confrontation, considered as belonging to the nomenclature of judicial procedure, is a term peculiar to Roman law. Ex vi termini, it denotes the bringing of one person into the presence of another: by institution, it denotes the bringing into the presence of a defendant, a person who, whether in the character of a co-defendant or that of an extraneous witness, has delivered testimony tending to the crimination of such defendant.

Under the head of confrontation may be found whatever advances (scanty indeed they will be seen to be) have been made in Roman procedure towards the introduction of that universal and equal system of interrogation above delineated and proposed: consequently whatever part has been covered by Roman law, of the ground covered by the operation called cross-examination in English law.

The operation has two professed objects: one is, the establishing the identity of the defendant, viz. that the person thus produced to the deponent is the person of whom he has been speaking; the other is, that an opportunity may be afforded to the defendant, in addition to whatever testimony may have been delivered to his disadvantage, to obtain the extraction of such other part (if any) of the facts within the knowledge of the deponent, as may operate in his favour. At the instance of the defendant, interrogatories suggested by him are accordingly permitted by the legislator (but subject to the discretion of the judge) to be propounded; thereby enabling the operation, as far as it goes, to contribute towards the trustworthiness and probative force of the testimony, as well in respect of correctness as completeness.*

This security has already been spoken of as being in its application confined far within the amplitude demanded for it by the exigencies of justice: the more closely it is examined, the more thoroughly will this conception of it be confirmed. It is narrowed and curtailed in a variety of directions: the quality of the cause; the description of the interrogators and respondents; the plenitude of the right.

1. Quality of the cause. It is confined absolutely to criminal causes; and, in general practice, to such criminal cases as may subject the defendant to corporally-afflictive punishment—peine affictive.

The defendant having already been interrogated by the judge in the darkness of his closet; the witnesses in support of the prosecution cited by the judge, where there is no prosecutor, or by the prosecutor (public or private) where there is one, having been examined in the same manner a first time, having under the name of repetition or recolement† been examined in the same manner a second time (the defendant not present at their examination either time:) a third examination takes place, as secret as before, except that the defendant, and the witnesses, one by one, are now, for the first time, introduced into each other’s presence.

Considering confrontation in the character of an instrument for the correction and completion of a lot of testimony,—an observation almost too obvious to be repeated is, that the demand for the use of it (that is, for one all-comprehensive system of interrogation, and for this operation as being among the branches of that system) has no respect whatsoever to the general nature,—to the penality or non-penality,—of the suit. The more highly penal the cause, the greater is the mischief of injustice, supposing it to take place; but as to the probability of its taking place for want of the sort of security in question, it stands exactly upon a par in both cases.

In the cases in which it is not afforded, as well as in the cases in which it is afforded, the importance of it has been not altogether a secret to the technicalists by whom it has been refused. To obtain the benefit of it, a defendant that has been proceeded against in the non-criminal (called the civil) mode, has begged to be treated as a criminal. Prayers to this effect have not been rejected; but the adverse party is permitted to oppose the grant of the prayer, on the ground that the importance of the cause is not considerable enough to warrant the expense. It seems, upon the whole, that where the defendant is able and willing to pay the expense of being treated as a criminal, the grace has not been refused.

On the first-mentioned ground, that of establishing the identity of the defendant, the appropriation thus made of the operation to criminal cases is in a double way incongruous.

Cases occur, and without number, in which the witness, though against the defendant a very material witness, has never been in his presence. Goods, for example, stolen in the absence of the owner, are found in the possession of the thief: the owner knows his own goods; but what knows he of the thief?

Cases occur also in abundance, in which, though the cause has nothing criminal in it, the point in dispute (and a point not to be settled without a judicial interview) may be, whether the person of whom the witness has spoken under a name the same as that of the plaintiff or that of the defendant, was in truth the person thus in question, or another. He saw a person, called by a name the same as that of the defendant, execute a deed: but was it really the defendant, or another person, who, perhaps for the occasion only, was called by that same name?—He saw a person called by a name the same as that of the plaintiff, living with an older person of that same name, in the character of his son: the like question again in this case.

So far as the use and application of the principle of confrontation is concerned, in non-criminal and slightly criminal causes, English law (it is true) is no less lame than Roman law. In a cause of another description, on a trial by jury, in the character of an extraneous witness, the attendance of any man may be enforced: in the character of a party, plaintiff or defendant, no man’s attendance can be enforced: mala fides in every shape finds a veil in absence. Happily, to the purpose here in question, the demand for confrontation does not frequently present itself.

2. Description of the interrogators and respondents. Subject to the restrictions that will be mentioned, the faculty of interrogation is allowed to the defendant, against the deponents, of whatever description, that have been testifying on the side adverse to him, whether in the situation of extraneous witnesses or co-defendants: for the caprice which in England prevents one defendant from being examined touching the conduct of another, extends not beyond English ground.

But the judge, it seems, on this third examination, is not allowed to interpose—is expressly interdicted from interposing, any question on his part;—that is to say, any question, which, by the particularity of the responses called for by it, can contribute to the elicitation of fresh lights. He may call upon, and is to call upon, each deponent, to declare over again—to declare, according to the tenor of the ordinance, in general terms, whether the testimony delivered by him on each former occasion was true: but, as to any question that in case of mistatement can help to rectify it, interposition for the purpose is forbidden in express words. On the two former occasions, the judge frames as well as puts all the questions; on this third occasion, he is not suffered to frame one: put questions he may—but such only as are framed by the defendants or witnesses, and by them desired to be put. But of this presently.

The defendant—the individual defendant whose confrontation is performing,—this defendant having put his questions to the co-defendant who is confronted with him, or to the extraneous witness who is confronted with him,—are they respectively at liberty to put questions back to him on their parts? On this head nothing said in the ordinance: on this point as on so many others, the natural result is that the judge does as he pleases—each judge differently, if he thinks fit.

What is clear is, that, when witnesses called for the defendant come to be examined, they are not subject to any interrogation ex adverso—to anything that in the language of English common law goes by the name of cross-examination, either on the part of a prosecutor, or on the part of a co-defendant: not on the part of a prosecutor; because, the examination being performed by the judge alone, and in his own cupboard, no prosecutor, no advocate, is let in: not on the part of a co-defendant; because at this time, if we may believe the commentators, the tide is turned, and mercy is the order of the day.

A circumstance that may help to reconcile justice to the sacrifice is, that by this time the defendant may have lain in prison any number of years, by which time any witness that he could have called may have died, or been otherwise disposed of: for it is a rule, that, till the proof on the side of the prosecution has been completed (and the time of its completion depends upon the pleasure of the judge,) no witness at the instance of the defendant can be heard.

3. Plenitude of the right. Cut down as we have seen it to be in the confused application left to it by the preceding restrictions, a security thus essential to justice is put into the hands of fortune—si besoin est,* if need be: and in each case, whether such need exist, is left, without controul, without a word either of obligation or instruction, to the good pleasure of the judge—of the very person on whose conduct it is designed (or at least ought to have been designed) to operate as a check.†

Nor yet is the defendant permitted (at least by the tenor of the ordinance) to put any one question of himself: his right is confined to the petitioning the judge to put it for him. The judge, as we have seen, is forbidden to put a question that has not been proposed by the defendant;* —the defendant is not allowed to put a question that has not been sanctioned by the judge.

That to the judge should be reserved a power to prohibit or exempt a respondent from making answer to this or that question (the question being noted down and recorded) is no more than necessary: otherwise the door would lie wide open to irrelevant and passionate matter without end. But the difference is considerable between making the right to put the question depend in the first instance on an express sanction given to it by the judge, and the allowing it to be put of course, subject only to stoppage for special reason.

On this as on so many other occasions, the real mischief, the root of all the evil, consists in the want of publicity. Under that regimen of darkness, a question, though ever so pertinent and important, may be stopped: an answer that would have saved the life of an innocent person may thus be suppressed, and no trace of the iniquity appear anywhere. Under the safeguard of publicity—adequate and appropriate publicity—no danger on the score of misdecision, capable of outweighing the inconvenience in the shape of delay and vexation on the other side, can present any adequate objection to so necessary a check.

The German edition of Romanistic procedure is, on this head, more explicit than the Gallican; and, by being so, more flagitiously and palpably tyrannical and iniquitous—more resolutely and openly bent upon the scarcely dissembled object of enabling the judge to sacrifice the innocent as often as he pleases to the sinister interests and passions of men in power; among which his own are not much in danger of being forgotten.

In English law, in the case of an extraneous witness, cross-examination is in principle regarded as the indefeasible right of each party; in all sorts of causes, penal as well as non-penal, the examination of a witness is never regarded as complete without it. Confrontation, in German as well as Gallic law, is a distinct operation, to be performed or not, according to circumstances; and at any rate not to be performed but at a different hearing, after the examination of the witness has been performed twice over, both times without the application of a check so obviously necessary to truth and justice.

In Germano-Austrian law, whether the imperfect modification of cross-examination called confrontation shall be performed or no, is in every case left in express terms to the arbitrary will and pleasure of the judge.† On the one hand, in no case is the use of it made obligatory upon the judge: on the other hand, partly by implication, partly in express terms, cases are specified in which it ought not to be employed. In one sort of cases, it is in express terms declared to be superfluous: and what, would an Englishman suppose, is that case? Where the defendant has already been “convicted by two classical witnesses.”‡ And who is a classical witness? Any man against whom no particular cause of objection can be produced.∥ Two witnesses, not the less false by being classical ones, charge an innocent man with a crime supposed to be committed by him at Vienna: two hundred unbribed witnesses agree in deposing that at the same day, hour, and minute, he was seen by them at Prague. Under these circumstances, is the defendant allowed to cross-examine these two classical perjurers? Not he indeed: the operation would be “superfluous”—too evidently “superfluous” to be admissible. The authors of the German Theresian code, and their Latin interpreter Banniza, are altogether clear about it.

After this specimen, to hunt out minor absurdities and atrocities, of which there are a most abundant breed, is an operation that may be spared.

In Romano-German as in Romano-Gallic law, where confrontation ends, there ends adverse interrogation—there ends cross-examination even in that faint shadow of it. In the minor penal branch, and in the whole of the non-penal branch, it is not only not made necessary, but not so much as suffered to be employed. Not that it is forbidden; but that, under any other name than that of confrontation, no such thing was ever heard of; and, without the idea of a criminal prosecution to hitch it upon, the idea of confrontation has never been able to find a place in any Roman-law-bred mind.

CHAPTER XX.

RECAPITULATION.

From the view that has above been taken of the practice of English and Roman law in relation to the collection of evidence, the following propositions seem deducible:—

1. That there is but one perfectly good and fit mode of collecting testimony.

2. That this is no other than what common sense suggests: and, as far as power and opportunity admit, and the importance of the occasion appears to demand, is naturally and commonly practised in the bosom of every private family.

3. That, to give precision and permanence to the information thus collected, so as to adapt it to the use of all times and all places, nothing more or less is necessary than the committing the testimony to writing in proportion as it issues from the lips of the person deposing or examined.

4. That, so far as writing is concerned, there is but one cause that can in any case warrant any departure from this most perfect mode; and that is, the expense, vexation, and delay inseparably attached to that invaluable mode of fixation and perpetuation.

5. That the mode of collecting evidence by means of its delivery vivâ voce, and subsequent though immediate consignment to writing, is essentially preferable to the mode which operates by the delivery of the testimony in writing in the first instance.

6. That there are but two justificative causes that can warrant the use of the inferior mode, in contradistinction to the superior mode; viz. physical impracticability, and prudential impracticability—prudential impracticability, in respect of preponderant inconvenience in the shape of expense, vexation, and delay.

7. That, on the part of the superior mode, physical impracticability may for an indefinite length of time be constituted by local distance, for ever by expatriation, as contradistinguished from exprovinciation,—prudential impracticability, for a time, or for ever, by preponderant expense, vexation, and delay, the result of local distance.

8. That English lawyers, recognising the incontrovertible superiority, not to say the exclusive fitness (where practicable,) of the above-described superior mode,—yet, so far from employing it exclusively on every occasion in which the employment of it is not impracticable, depart from it in all manner of ways, employing inferior and bad made-before it, after it, and instead of it: in cases, too, in none of which can any warrant for such departure be found under the head of impracticability, either physical or prudential, as above explained.

9. That, on these occasions, so far is the prudential impracticability (viz. in respect of expense, vexation, and delay) from being the cause of the departure from the most trustworthy mode, that, when the less trustworthy modes are attended with a superior share of that triple inconvenience, it is then that they are employed—employed to the exclusion of that superior mode which, besides its superiority of trustworthiness, has the advantage of being comparatively free from that collateral inconvenience.

10. That, taking together the entire system of procedure of which the collection of evidence forms a part,—the inferiority of the technical mode, in the English form more especially, in comparison with the natural mode herein-above recommended, is, in respect of expense, vexation, and delay, too flagrant and notorious not to be recognised by everybody—men of law themselves not excepted: but that, as often as this disadvantage is brought to view, if the system be defended notwithstanding, it is always on this ground, viz. that the mass of inconvenience attached to it in this form is (if not wholly and absolutely unavoidable) at any rate compensated for, absolutely compensated, by a preponderant mass of advantage in respect of superior security against ultimate injustice, whether by misdecision or by failure of justice: against ultimate injustice, from whatever causes derivable—whether from improprieties in respect of the mode of collecting the evidence, or from any other causes: and that, accordingly, it is its supposed superiority in respect of the mode of collecting the evidence, that constitutes either the source or at least one of the sources of that compensation, that ample compensation which it is supposed to afford on the score of superiorly good ultimate justice, for whatever inferiority may be observable in it in respect of the provision made by it against collateral inconveniences, viz. against delay, vexation, and expense.

11. That so far is this supposed compensation from being in any degree real, that in truth its deficiency in respect of security against delay, vexation, and expense, remains altogether unaccompanied by any compensation in any other shape: and that, in respect of security against misdecision and failure of justice (so far at least as the system employed for the collection of evidence is concerned,) its defects are such as to constitute an enormous addition and heavy aggravation to the load of imperfection attached to it in all those other shapes.

12. That it is not in human nature, that, in the forming a system, in which, in the pretended pursuit of the same ends, so many discordant and inconsistent courses are employed (discordant as well with one another, as, all of them, with the modes actually and from the beginning employed in pursuit of the same ends in the daily intercourse of private life,) the ends professed and pretended to have been pursued, viz. the real and genuine ends of justice, should have been the ends and objects really, steadily, and exclusively (not to say ever, and in any degree) pursued.

13. That, under the circumstances under which the existing system took its rise,—as it is not natural that in the adjustment of the detail the faculties of observation and invention should have been, so neither in fact do they appear to have been, steadily and anxiously occupied in any other endeavour than that of adding to the load of inconvenience and mischief in all imaginable shapes, in so far as profit and advantage in all shapes to be reaped by the authors and contrivers of the system, could be made to spring out of it.

14. That, in like manner, in regard to the real ends of justice,—as it was not natural that in the construction of that system they should have been taken (at least any otherwise than incidentally and occasionally, and in subordination to those sinister ends) for the objects aimed at,—so neither does it appear that in fact they have, it at all, been pursued in any other character: insomuch that the attainment of them, in so far as in fact they have taken place, is to be regarded no otherwise than in general as the accidental result, and at best no otherwise than as the occasional object, of the exertions actually made on this ground.

15. That, for ages together, the object of the contrivers and conductors of the existing system (in so far as anything that can be called an object appears to have been kept by them with anything like constancy and consistency before their eyes) will appear to have been neither more nor less than the employing the powers and privileges attached to their respective offices, and professions in the character of an instrument of depredation—licensed and unpunishable depredation: the ends of justice, as before, being, if ever, only occasionally, an object, and then a subordinate one, though constantly and invariably a pretence.

16. That, as to the existing race of lawyers, taken at any given point of time,—pupils and successors of these learned depredators,—regarding, or pretending to regard, as perfect in its kind (it not in every minute point of detail, at least in respect of its leading features) the work of such their predecessors,—not only their endeavours and wishes, but their very pretensions and professions, are confined to the keeping it, as near as may be, to its present state of assumed and pretended excellence.

17. That, of the modifications of the plan in use for the collection of evidence, the impropriety is fully and unequivocally recognised by those under whose direction it is pursued: but that from this recognition no symptoms are anywhere observable of so much as a wish, much less an endeavour, to substitute, in the room of those which they regard as comparatively unconducive, those which are regarded by everybody (themselves in particular not excepted) as in a superior degree conducive, to the ends of justice.

The best possible mode of extracting testimony—the mode which a considerate master of a family would employ when sitting in judgment on the conduct of a servant or a child—in a word, the mode by oral interrogation and counter-interrogation,—is a production of English growth. If, on a microscopical observation, the germ of it be found discoverable in the Roman process of confrontation, the same scrutiny will show how confined was the use made of it in that its primeval state, and with how much propriety the appellation of a discovery may be applied to the vast edifice that in England has been built, or might be built, upon a foundation so narrow.

If the application made of this discovery has been found neither all-comprehensive, nor comparatively very extensive, the wonder need not be great. To England the glory of it, or at any rate (so far as it extends) the advantage of it, belongs without dispute: but whether, in the establishment of the practice, wisdom or fortune had the greatest share, may not be easy to decide. Had wisdom planned it, wisdom would have carried it as far as it would go, would not have suffered it to be arrested in its progress; but the same system which employs it in one instance, neglects it in another, to which not only with equal propriety, but with equally obvious propriety, it would have been applicable.

A circumstance which contributes in no inconsiderable degree to weaken the claims of wisdom, is, that the value which appears to have been implicitly set upon this feature in the system, has never been explicitly set upon the right ground. All mouths are open in praise of the trial by jury; and this is the mode of extraction employed on a trial by jury. But its connexion with the species of procedure in which the intervention of a court so constituted is employed, is altogether accidental: the same mode of extraction might be employed, and is employed, with equal facility and equal propriety, in a court composed of a number of permanent and professional judges, or in a court consisting of a single judge. It had been observed that somehow or other the ends of justice were more effectually accomplished in that sort of court of which the tribunal called a jury was one feature, and the use of this mode of extracting evidence another, than in other courts of a different appearance in respect of both these features: but to which of them the effect was principally to be ascribed, is a question that seems rever to have presented itself. As water was considered till of late years as a simple substance, so was the trial by jury considered as a simple institution: the sagacity by which confused perceptions are rendered clear, and composite objects are resolved into their constituent elements, had never exercised itself (for when has it ever exercised itself?) upon the field of jurisprudence. The feature which consists in the composition of the court, being the feature which on many accounts would strike with peculiar force the eyes of the herd of politicians,—this feature, while it has given denomination to the complex system, seems to have engrossed all the praise of it. Trial by jury! ever blessed and sacred trial by jury! juries for ever! is the cry: not trial by oral and cross-examined evidence.*

It is, however, to this comparatively neglected feature, that that most popular of all judicial institutions would be found to be indebted for the least questionable and most extensively efficient, if not the most important, of its real merits. Against the advantages attending the mode of extraction practised, no objection can be urged, no inconvenience opposed; while the advantages purchased by the peculiar composition of the tribunal are not purchased but by great sacrifices in other shapes: the popularity, the unsuspectedness, is not purchased, but at the expense of appropriate experience; the superiority in probity, by the sacrifice of superiority of wisdom, and of the security which individual responsibility alone can afford either for probity or for wisdom. I speak of the really useful features, in which whatever there is of excellence in the institution is enshrined: not to speak of the errors and abuses that have been worked up with it by the hand of undistinguishing barbarity; the ethnico-theological and apostolic number; the mendacious unanimity, proclaimed by perjury, after having been produced by torture: not to mention a variety of other ingredients, good, bad, and indifferent, which might be modified for the better of the worse, without destroying or very materially changing the general effect.

With these advantages in point of practical efficiency and indisputable innocence, no political institution of real worth was ever kept more completely hidden from general observation. Among those who in its native country are so cordial in their admiration of this mode of trial, there are not twenty perhaps who at this moment are aware that, in contradistinction to Roman jurisprudence, the mode of extracting the evidence on this occasion is as peculiar to English procedure as the constitution of the court. The peculiarity of the practice called in England cross-examination—the complete absence of it in every system of procedure grounded on the Roman, with the single exception of the partial and narrow use made of it in the case of confrontation,—is a fact unnoticed till now in any printed book, but which will be as conclusively as concisely ascertained at any time, by the impossibility of finding a word to render it by, in any other language.

[* ]Vide supra, p. 262—Book I. Chapter XI. Moral Causes of Trustworthiness: § 4. Physical Sanction.

[* ]The necessity which the judge is under of summing up the evidence to the jury, affords him a strong motive for compelling singleness of interrogation, and singleness in the answers: it is also the interest generally of the party in whose favour the evidence preponderates, to extract it as clearly as possible. Under the combined influence of these motives, the English examinations are free from the vice here adverted to.—Ed.

[† ]This feature, though naturally connected with the one last mentioned, is not so connected with it as to be undistinguishable from it. An arrangement easily conceivable is this:—In the first place comes a string of questions calling for answers; in the next place, a string of answers in return to those questions; in the third place, a second string of questions, arising out of the answers delivered in return to the first. Here—though the questions have come, not singly, but in a string, or rather in a lump,—it is not the less open to the interrogator to ground questions upon preceding answers—ulterior questions upon the answers extracted by preceding ones.

Suppose a bill in equity with its string of interrogatories,—answer thereto consisting of a string of responses,—amendments to the bill, including a fresh string of interrogatories grounded on those responses;—suppose these several instruments spoken extempore, and at the same meeting, by the several interlocutors. In this imaginary dialogue we should have a set of questions not put singly, and yet some of them arising (viz. the second set) out of the answers.

[* ]It is even conceivable, that, in the course of a vivâ voce conversation,—a question or string of questions being put by the interrogator, and an answer or correspondent string of answers given in a breath by the deponent,—the lips of the interrogator may thereupon be closed, as those of a frog are for a certain part of the year, and then the examination may end.

It is conceivable this arrangement, and accordingly it stands exemplified: for of human, and especially juridical absurdity, no conceivable modification can be mentioned that does not stand a good chance of being somewhere or other exemplified in practice.

Cause, a criminal one; mode of procedure, by indictment; inquiry, the principal one—that in which the decision is pronounced by a jury: offence, a crime of the rank of felony. Officer of the court to the defendant, called here the prisoner: Prisoner, hold up your hand (hand held up)—How say you? Guilty, or not guilty? Prisoner: “Guilty.” or “Not guilty.” In either case, here the interrogation ends. Whichever be the response, not another question can ensue.a

[* ]Vide infra, Chap. VII.

[† ]The practical rule of the English courts is, that if no sinister motive for making a note can be detected, the note adds much to the probative force of the witness’s testimony, he being allowed to use it only to refresh his memory.—Ed.

[* ]The English practice is, when a witness is seen referring to any written paper, to ask first what it is; and if from the answer it appear that it consists of notes made by the witness himself, and that he uses it to refresh his memory, the counsel who is adverse to the evidence is entitled to look at it, and afterwards to use it as an assistance in cross-examining the witness upon his previous testimony.—Ed.

[† ]If the proposed rule in question have received that effectual degree of promulgation which every rule of law might and ought to receive; the script being, by the supposition, in the deponent’s own possession, the faculty of performing such obliteration for himself will accordingly have been all along in his power. But, in this as well as other cases, negligence is a case too common not to require provision to be made against it by legislative vigilance: add to which, that it may happen, that not the deponent himself, but some third person, shall be the person exposed to suffer by the disclosure.

[‡ ]In the English system, the judge has the power to impound, but it applies only to written papers which are evidence of themselves, independently of any oral testimony. Notes made by an eye-witness or an ear-witness to refresh his memory are not of this kind: they are not evidence which is read to the jury; they are mere grounds of belief for the witness himself, and have no force or technical use, except as aids to his memory.—Ed.

[* ]If the notes are not penned by the respondent himself, he is not in the English courts entitled to use them to refresh his memory.—Ed.

[† ]Post, Chap. IX.

[* ]Note on the Anonymous Equity Case, No. 3, before Lord Chancellor Hardwicke:—

“Should the Court connive at such proceedings as these, depositions would be no better than affidavits.” 1. In the first place, not true. In the case of affidavit evidence, the deponent is completely exempt from interrogation; from interrogation on all sides: from the judge, as well as the adverse party. In this case, the deponent had actually been subjected to interrogation; to a species of cross-examination—to what goes by that name in equity practice; to cross-examination from written interrogatories drawn up by the advocate of the party adverse, and administered by judges ad hoc, a commissioner appointed by the party adverse, in conjunction with another appointed by the party invoking: in a word, to the most efficient mode of scrutiny which the practice of his Lordship’s Court allows of.

2. In the next place; supposing it true that the deposition taken in the mode in question was no better than an affidavit, what would be the result? That it was upon a par with the only sort of evidence which a court of common-law judges, sitting without a jury, ever vouchsafes to hear: the only sort of evidence which his Lordship, sitting in that same place, ever suffered himself to hear, when the cause, instead of commencing by an instrument called a Bill, commenced by an instrument called a Petition: the sort of evidence which, in preference to depositions (by deponents examined vivâ voce by the examining clerk, or by commissioners named on both sides,) and even to the exclusion of such depositions, he was at least as much in the habit of hearing, as of hearing depositions. Connive at such proceedings!

[* ]The subject they belong to is rather procedure than evidence. Among the arrangements requisite, those that belong to architecture constitute the basis of the rest.

[† ]The saving thus made in point of time is among the many causes which concur in rendering it more pleasant to the judge to have to do with advocates of old established eminence, in preference to juniors.

[‡ ]In the case of any such help to recollection, it may exist in the shape of a written document, and that document in the possession of the proposed respondent: in that case, the help is afforded by recurrence to notes.

But a case that may also exist, is, that it shall be in the possession, not of the proposed respondent, but of the interrogator. Here, then, if not in the particular shape of suggestive interrogation, at any rate suggestion, is justifiable. Look upon that paper—the contents of it are a long account (suppose) of receipts and payments:—do you know anything of the contents? are any and what of them true?

By the same causes by which recurrence to notes may be necessitated, suggestion from without may be necessitated.

In the case of recurrence to notes, was seen the necessity of referring the allowance or disallowance to the discretion of the judge: in this case (as will be seen presently) the same necessity prescribes the same arrangement.

[* ]See Book II. Securities: Chap. IX. Interrogation; § 5. Affections of the interrogators and respondents towards each other, how far presumable? p. 346.

[† ]Of the two corresponding rules, thus equally pregnant with theoretical absurdity, the use made in practice may be expected to be considerably different.

When, in the person of his adversary’s witness, an advocate finds himself in possession of a deponent whose affections are (as, from his relation to the parties or the cause, they frequently will be) manifestly and strongly on his (the advocate’s) side; shame will naturally and almost instinctively restrain him from plying the witness with suggestive questions. Of the two rules—the prohibition absurd in itself, the permission absurd by its inconsistency and undiscriminating generality,—the permissive one (it seems probable) is scarce ever in practice productive of any detriment to the interests of truth and justice. It is so flagrantly absurd, that, in a case where the application of it would be productive of the mischief with which it is pregnant, no man has the effrontery to put it in practice.

The corresponding and opposite rule will, naturally speaking, be far from being alike innocent in practice. In this case, no shame being attached to the enforcement of the rule, the enforcement of it will experience little difficulty. Instances in which, by the influence of this rule, testimony may be sure to be rendered incomplete, and decision thus placed on the wrong side, will indeed be not unfrequently presenting themselves. But a spectacle of this sort is too frequent to make any sensation, or (if it were to make any) too favourable to the general interest and propensity of the men of law, to make any other than an agreeable one. It is an article belonging to the list of exclusionary rules: a set of rules of which almost the whole of the jurisprudential law of evidence is composed: rules which are at once the engines of his power, and the foundation of his claim to the reputation of superior wisdom, and recondite science: rules which, being worshipped one moment, trampled upon the next—adhered to in favour of A, broken in favour of B,—throw open the shop of justice and injustice, leaving no right secure, nor any iniquity without hope.

[Mr. Phillipps (Law of Evidence, 6th Edit. i. 256) says, “If a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court will in its discretion allow the examination-in-chief to assume something of the form of a cross-examination.” It appears therefore that this rule of judge-made law has to a great degree been set aside by other judge-made law, subsequently enacted.—Editor.]

[* ]The device commonly known (more particularly among sea-faring men) under the name of a round robin, exemplifies the principle; how different soever the purpose has been, to which, in this instance, it has been most apt to be applied.

[* ]This precaution is the exact counterpart of that which will be found to be suggested in Chapter XI. under the head of time for recollection. Examination in the first instance vivâ voce, to preclude the opportunity of mendacious invention: then (if any special demand for recollection-time be presented by the nature of the case) interrogation ex scripto, to be answered in the same mode.

[* ]Trial of R. T. Crossfield for high treason, at the Old Bailey, 11th and 12th May 1796; his crime, a conspiracy to assassinate his late Majesty [Geo. III.] by shooting a poisoned arrow out of an air-gun. By men, whose purposes it answered to speak of the affair as a good joke, it was called the popgun plot. A paper was produced to one of the witnesses called by the crown (Peregrine Palmer), who, on his own showing, had been of the party with the prisoner, when a tube, for the purpose of an air-gun, had been looked out for. Question put to him, whether he had ever seen it before? After a page or two of shuffling and pretended non-recollection,—question by the counsel for the crown,—“I ask you once more upon your oath, have you never said when you was upon your oath that you had seen a paper similar to that?” Question by counsel for the prisoner,—“Does your Lordship think this is the proper way of examining a witness in chief?” Lord Chief-Justice Eyre:—“The whole course of this species of examination is not regular. This is a witness for the crown: if he disgraces himself, which it is the tendency of this examination to make him do, they lose the benefit of his testimony. The idea of extracting truth from a witness for the crown who disgraces himself is, in my apprehension, and always has been, a thing perfectly impracticable; for the moment he has gone to the length of discrediting his testimony by the manner in which he shuffles with your examination, there is an end of all credit to him. You recollect upon a very solemn occasion, the judges were all of opinion that that kind of examination on the part of a prosecution was improper, for that it always ended in destroying the credit of your own witness.”

Thus far the learned judge. The decision evidently alluded to by him will appear from the following document:—

Extract from p. 43 of a printed paper, entitled “Report from the Committee of the House of Commons, appointed to inspect the Lords’ Journals in relation to their proceeding on the Trial of Warren Hastings, Esq. Ordered to be printed 30th April 1794.”

“Appendix, No. 2. Questions referred by the lords to the judges, in the impeachment of Warren Hastings, Esq.; and the answers of the judges. Extracted from the Lord’s Journals and Minutes.

“Question 1. Whether, when a witness produced and examined in a criminal proceeding by a prosecutor, disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question, containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place; and by demanding of him whether the particulars so suggested were not the answer he had so made? Feb. 29th, 1788:” p. 418.

“Answer. The Lord Chief Baron of the Court of Exchequer delivered the unanimous opinion of the judges, upon the question of law put to them on Friday the 29th of February last, as follows:—‘That when a witness produced and examinedin a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it is not competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place; and by demanding of him whether the particulars so suggested were not the answer he had so made.’ April 10th, 1788.” p. 592.

The above is the first in a list of twelve questions, with their respective answers. To each of the eleven others is subjoined this memorandum,—“and gave his reasons.” If, from this statement, any man should suppose, that, among so many millions of men as are bound by these decisions, there is so much as a single individual breathing by whom the possibility of obtaining cognizance of these reasons is possessed, he would be much mistaken. The reasons were kept purposely from the knowledge of the very party to whom the decisions were professing to do justice;—viz. the managers of the House of Commons. “Against their reiterated requests, remonstrances, and protestations, the opinions of the judges were always taken secretly.” Pp. 13, 20.

The scene was changed from London to Morocco. Happy would it have been for the interests of justice, if the same darkness which covers the reasons, had involved the decisions likewise.

[* ]Book IX. Exclusion.

[* ]In English practice, a prisoner or defendant cannot be examined upon his trial: he may make any statement he pleases. It may have happened, that previous to his trial he has given answers to any number of questions put to him by a police-officer or a private individual. Although this in reality is an examination of the prisoner, yet his answers are received in evidence against him at the trial, provided no threat has been made, or promise held out to the pursuer to induce him to answer, by the person or persons who carried on the examination. The practice in Scotland is, for the statements made by the prisoner in presence of the magistrate at the preliminary examination, to be recorded in an attested writ along with the circumstances under which the declaration is taken, the whole being read as evidence at the trial.—Ed.

[* ]The English practice affords no adequate security against the effects of brow-beating, grimace, and the misleading arts of an adverse counsel. If no witnesses are called for the defendant, the plaintiff’s counsel not having the right of reply, can administer no antidote or corrective to them: if, on the other hand, witnesses are called for the defendant, the plantiff’s counsel has the last speech and last cross-examination, and the defendant’s counsel has no opportunity of applying an antidote or corrective. The judge indeed has the opportunity of checking such improprieties, but he generally confines his correction to the imputations which may be cast on a witness without evidence to support them. It should be added, however, that as juries have improved in taste and civilization, the practices alluded to have become less prevalent. The Grimaldis of the law have become less in request, and are not considered its ornaments.—Ed.

[* ]Under the spur of the provocation, I remember now and then to have observed the witness turn upon the advocate in the way of retaliation. On an occasion of this sort, I have also now and then observed the judge to interpose, for the purpose of applying a check to the petulance of the witness. For one occasion in which, under the spur of the injury, the injured witness has presented himself to my conception as overstepping the limits of a just defence,—ten, twenty, or twice twenty, have occurred, in which the witness has been suffering, without resistance and without remedy, as well as without just cause, under the torture inflicted on him by the oppression and insolence of an adverse advocate. Scarce ever, I think, had I the satisfaction of observing the judge interpose to afford his protection to the witness, either at the commencement of the persecution, for the purpose of staying or alleviating the injury, or at the conclusion, for the purpose of affording satisfaction for it—such inadequate satisfaction as the nature of the case admits of.

[* ]Understand here by the judge, the functionary by whom, for the purpose of decision, the testimony is to be collected, and by whom, on the ground of the testimony when collected, the decision is to be pronounced. These two functions may (for the purpose of the argument at least, let us hope) be considered as being discharged by one and the same person. The world is not so unfortunate but that this union is actually realized in numerous instances. The unnatural and disastrous arrangement by which they have in so many instances been separated, has not been quite so universal, as to have rent in twain, throughout, the veil of the temple of justice.

[* ]In cases of felony and misdemeanour, Justices of the Peace are required, by the 7 Geo. IV. c. 64, to take down in writing the examination of the witnesses, and to send such examination to the court where the trial is to take place. At the trial, the testimony of a witness may thus be confronted with his original deposition; but it is necessary in the first instance, to prove that the deposition in question was duly taken before the justice.—Ed.

[* ]See “Defence of Usury.” Vol. III., and “Protest against Law Taxes,” Vol. II.

[* ]The minutes of what has passed at a trial, or (to use the common abbreviation) the trial, as committed to writing by a skilful scribe using the art of short-hand, affords an example, so happily familiar to every English eye, of this most perfect, or rather only perfect, mode or species of notation.

[† ]Book II. Securities; Chap. VI. Oath; § 4. Mode of application: supra, p. 318.

[* ]Such, accordingly, is the practice in the British House of Commons. If the language used by any Member is pointed at as calling for censure, a preliminary motion always is, that the words be taken down by the clerk: and so like wise in the House or Lords.

[† ]So likewise, “minutes taken by the solicitor for a prosecution, on the examination of a person before a magistrate” (the examination performed without a jury, previously to the trial by a jury) “may be read in evidence at the trial, though not signed either by the prisoner or the magistrate.”—Leach’s Crown Cases, 3d edit. p. 727. The King against Thomas.

[* ]The Central Criminal Court is the only court in this country in which an official short-hand writer is employed. To his notes the judges occasionally refer with great advantage, in order to ascertain the exact words made use of by a particular witness.—Ed.

[* ]The forms of pleading against which this observation is directed, have been much altered since the recent Law Amendment Act, 2 W. IV. c. 39. It must however be confessed, that the pleadings require still farther purgation.—Ed.

[* ]In England, at least, if this or any other such token of probity and sincerity on the part of a malefactor were to betray itself, it would have to encounter the most determined opposition, not only from the advice of counsel, accessaries after the fact, in the character of advocates and attorneys, but from the hypocritical and trust-breaking humanity of judges.

[* ]The course pursued in taking examinations before a justice of the peace, is as follows:—While the witnesses are giving their evidence, a clerk writes it down in a book. If after all the evidence has been heard, the justice dismisses the case, there is an end of the matter; but if the justice determines to send the case for trial, then the evidence of each witness is read over to him; he is asked if it is correct, and whether he wishes to add anything to it. The deposition is altered or not, according to the answer of the witness. After this it is copied out, on separate sheets of paper, by the clerk, from the book in which it was originally entered: it is again read over to the witness, and he then signs his name or puts his mark to it. If he declines to do so, a memorandum is made to that effect. When all the depositions relating to the case in question have thus been copied out and signed by the witnesses, the justice puts his signature at the end. These depositions so authenticated, are returned to the court in which the case is to be ultimately tried.—Ed.

[† ]In one of the Anglican modifications of the Rome-bred mode, there is one person less than even in the Romano-Gallic; from which the practice of the other nations by which the Roman mode has been adopted, may in this particular, be presumed not to be materially different. I speak of the case where the operation is performed under the authority of the Court of Chancery, in what is called the examiner’s office. But, on this occasion, any misbehaviour to the effect in question on the part of the obscure person by whom the examination is performed, would be exposed to so much danger,—in the first place of censure, and perhaps loss of his office, on extrajudicial complaint to his immediate superior—but more especially in case of a public prosecution, to which he might be subjected in more forms than one,—that, of any complaint of this sort, no traces have presented themselves in the books.

[* ]Buller’s Nisi Prius, p. 315.

[† ]Burrow, p. 1694, anno 1765.

[* ]2 Inst. p. 426.

[* ]Vide infra, Book V. Circumstantial.

[† ]Book VI. Makeshift; Chap. IV. Hearsay Evidence.

[‡ ]Vide supra, Chap. VI. § 2, p. 410.

[* ]Scotch Reform, Vol. V. Letter I.

[* ]Burke’s Speech on his Economy Bill.

[* ]On this occasion, a cautious reserve would be the resource, and the only resource, of a man of truth and honour. Confined by circumstances to this disadvantageous mode (a case that, as will soon be seen, is but too frequently exemplified,) his care will be, that, by the declarations he is obliged to make, by the string of interrogations he is obliged to bring forward at the same time, as little as possible shall be afforded of that information, which, in the hands of a malâ fide adversary or mendacious witness, might prove auxiliary (or, in the language of an English lawyer, ancillary) to that sinister purpose.

A reserve thus dictated by prudence and allowed by truth, would be the sole resource of a man of sincerity and honour. Mendacity—a resource more familiar to their hands, more congenial to their tastes, more gainful to their pockets, has been the resource of English lawyers. Under the licence granted from the bench, the practitioner at the bar, in his endeavours to extract truth from the pen of the adversary, puts into the pen of his own client whatever lies present themselves as best adapted to this purpose. Under the ancient regime (I know not how it is under the modern) a French judge, with the view, real or pretended, of extracting the truth out of the bosom of a criminal under examination, would tell him (for example) that an accomplice has confessed, when perhaps no accomplice has been heard. Such advocates are worthy to practise under such judges. Not that the difference is more than apparent: for the lie of the bar is the lie of the bench by which it is permitted. Not that in this instance the part taken from above, in the manufacture of lucrative mendacity, is simply permissive. In the station of plaintiff in equity, a man is not simply permitted to stuff his narrative with lies: he is forced to it. On no other condition will the judge so much as profess to do him justice.

[* ]Exercise for a student: a student, not in the art of depredation under the mask of law, but in the art of legislation; in that art which seeks to show by what means the objects professed to be aimed at by those who have the power, may in reality be attained: in the art of legislation, should any man ever arise, to whom an art so unprofitable and thankless should present itself as having any claim to notice. Exercise for a student:—Take up a bundle of printed trials: look out a suitable one—such a one more particularly in which the truth has been wrung, by this engine, out of the bosom of an unwilling witness. Follow out the genealogy of questions and answers; take note of the number of degrees; pitch upon a case in which, by the answer to question the first, a second question is suggested—a question which, had the answer come in another shape, might not have been put: out of the answer to question the second, in like manner, a third question; and so on, as long as the string is found to run. Take out your watch; repeat to yourself aloud each question with its answer, and note the length of time they occupy. Add up the several lengths of time, and divide by the number of consecutive questions or degrees. Apply the same process to the ready-written mode, taking for each degree three months, or whatever other length of time (greater or less) may appear necessary to found a fairer average. You will probably find the number of minutes occupied in the one case somewhere between the number of months and the number of years consumed in the other. Not that in the ready-written mode, an example of a genealogical tree or string of this sort would probably be found of equal or nearly equal length to that of the longest afforded by the vivâ voce mode: not that any such real parallel would be to be found. But why? Only because it is not in the nature of a mode which gives full scope to mendacity-serving premeditation, suggestion, and consultation, to afford any such instances of detected mendacity, or extorted truth, as these which, in such abundance, are furnished by the mode which affords to mâla fides no such helps.

[* ]Supra, Chap. I.

[* ]Viz. under some such title as that of forthcomingness, i. e. the means of providing for the forthcomingness of individuals, in the respective characters of parties and witnesses—extraneous witnesses. [See Principles of Procedure, Chap. XVIII. § 4, “Procedure inter distantes,” Vol. II. p. 99.]

[† ]The mode of receipt and extraction by written correspondence would hardly have suggested itself to a person whose views were bounded by the line that circumscribes the range of the Roman mode of procedure: it would hardly have suggested itself to a mind unacquainted with English practice.

Under the Roman system, such as it is, the even, and in general not altogether scanty, distribution of judicial tribunals (such as they are,) secures, on condition of their consent and co-operation, the faculty of performing the examination of any individual by the mouth of the judge, without the necessity of the party’s moving himself to any such distance from his abode as would be productive of very material inconvenience. In general, it will be rather a rare case if there be a dwelling situated at such a distance from the nearest court, that a man might not convey himself thither, undergo his examination, and return home, within the compass of the same day.

Britain is the country in which, if not to the exclusion of every other, at least more readily than in most others, the idea of performing the business of examination in this recently-invented (though less trustworthy) mode, would naturally present itself, and accordingly has actually been exemplified. In Britain, the three metropolises of the three compound kingdoms are, each of them in its kingdom, to many purposes, the only seats of judicature. Of local jurisdictions, but more particularly in England, a deficiency presents itself to a degree in any other country altogether without an example: the superior metropolitan tribunals having, by circumstances foreign to the present purpose, been enabled nearly to swallow up the authority of the inferior provincial ones.

[* ]Of this nature is the mode of procedure, as far as it goes, in the English equity court. The first instrument that makes its appearance is called a bill. In this bill (in the first part of it, called the charging part) the plaintiff, without oath, delivers his testimony; to which, it being without oath, no credence is given by the judge. The second part, called the interrogative part, is the instrument he is allowed to employ for the extraction of the defendant’s testimony: which, being delivered upon oath, is considered as having, with certain limitations, the force of testimony. Such is the mode of procedure, even if the plaintiff and defendant live in the same house; or if, being attorneys practising in that same court, they meet one another in court every day in the presence of the judge:—but such, it is evident, and with somewhat better reason, might be the practice, if, one or both residing out of the jurisdiction of the court, the relative situation of the parties were at the antipodes.

No man was ever absurd enough to imagine that interrogation, with three months time to prepare (with the assistance of professional accomplices) a lying or evasive answer,—that this mode of collection by itself was of a nature to afford a better security for the extraction of the truth, and the whole truth, from the bosom of a deponent urged by interest to keep it back, than examination vivâ voce, with subsequent allowance of time for recollection in case of need (and not otherwise.)

But, by interrogation vivâ voce, that is, by the extraction of the truth, and the whole truth, with the least quantity possible of delay, vexation and expense, no other end would have been answered than the ends of justice. The only ends that have ever really been arrived at in the development of this or any other branch of technical judicature, the extorting money from suittors on pretence of administering justice, would have been relinquished by it.

[† ]Few cases present themselves as more proper than this, for imposing on the party the obligation of recurring to the assistance of a professional advocate.

An indispensable exception is, indigence on the part of the plaintiff—indigence, and consequent inability to engage the assistance of an advocate: but if there be a professional advocate employed by government for managing the causes of indigent plaintiffs (an arrangement which seems to require a correspondent officer for the assistance of indigent defendants,) this function will fall with more propriety to their shares respectively, than to that of the judge. Paper (on this as on all other occasions,) appropriate promulgation paper, as of course.—See the next Book. [See Vol. IV. p. 384, et seq.]

[* ]See Book IV. Preappointed; Chap. VII.

[* ]Book IX. Exclusion; Part VI. Disguised; Chap. IV. Conclusive.

[† ]See Book V. Circumstantial; and Book VI. Makeshift.

[‡ ]In the British government, in the instance of some of the taxes imposed of late years upon income, this exemplification of the maxim fortiter in re, suaviter in modo, has been employed, and apparently with very good effect. A deposition, expressive of the particulars of a man’s income, was received from him, according to a prescribed form, in the way of written correspondence, power being at the same time given for examining him on the subject, if thought necessary, vivâ voce, in the first instance, upon oath. Under this power the usage has been to perform the examination in the first instance without the administration of the oath; it being understood at the same time, that, should it appear necessary, the oath may be administered at any time. Under these circumstances, the apprehension of the oath (there seems reason to believe) may in general have exercised an influence not materially inferior in effect to the oath itself. For, in case of previous mendacity or evasion, no sooner would the oath have been administered, than, upon a repetition of the examination with the assistance of that sanction, the delinquent would be reduced to the alternative of risking the future consequences of perjury, or exposing himself to immediate shame.

[* ]What is scarce worth observing (unless it be for illustration) is, that in cases where examination in the vivâ voce mode is impracticable, if there were any reason why examination in the ready-written mode should be admitted in the one case and not in the other, it is rather in the case of an extraneous witness that this less coercive mode should be allowed of,—in the case of a party whose testimony is desired on the other side, that it should not be allowed of. Why? Because, in the case of a party (the defendant,) you are sure of an interest—an interest acting in a sinister direction, and of a strength running in proportion to the whole relative value of the matter in dispute: whereas, in the case of an extraneous witness, it is but by accident that there is any such sinister force to cope with; and though there be, it is not likely to be equal in strength to that, the influence of which the veracity of the defendant stands exposed to.

[† ]Vide supra, Chap. I. Oral Interrogation.

[* ]The perpetual confusion of persons attached to the practice of writing in the third person on the occasion of epistolary correspondence for the trivial purposes of common life (I say writing, for absurdity has not got the length of speaking in this mode), is a well-known source of ridiculous embarrassment, distressing enough in English, and still more in French, and most (if not all) other European languages. It seems to have been among the inventions of cold pride, to keep interiors and intruders at a distance.

[* ]Response 1, 2, or 3, to interrogatory 1, 2, or 3. Again, exception 1, 2, or 3 (exception, in English equity practice, means re-interrogation,) exception 1, 2, or 3, to response 1, 2, or 3, to interrogatory 1, 2, or 3.

[* ]In London, and within twenty miles, the judge ad hoc is a clerk in an office called the Examiner’s Office: beyond that distance, two persons called Commissioners, nominated one by each party: or, in some instances, two on each side. See above, Chap. VII.

[* ]Between the use of writing, and the existence of an interval of time applicable alike to the purpose of veracious recollection and mendacious invention, the connexion is customary, and altogether natural, but not strictly necessary.

What is altogether natural, exclusively usual, and in general reasonable, is, that, as between written and unwritten, in whichsoever of the two forms the interrogations are presented, in the same should the depositions in answer be presented. But in the nature of things there is nothing to hinder this more obvious arrangement from being deviated from in either of two ways:—

1. The interrogations may have been presented to the deponent in the ready-written form; and, immediately upon his receiving them, answers from him, to be delivered vivâ voce, may be insisted upon, just as if the interrogations had also been delivered vivâ voce.

2. The interrogations themselves may have been delivered to the deponent in the vivâ voce form: and notwithstanding their having been so delivered, answers from him to be delivered in the ready-written form may be insisted upon,—to be delivered upon the spot, just as, in return to questions put vivâ voce, answers, if delivered vivâ voce, would naturally be delivered on the spot.

An example may be found in the following extract from the Mémoires de Bezenval, tom. iii. p. 125. 8vo. Paris, 1805:—

“Le jour de l’Ascension de l’année 1785, toute la cour remplissant le cabinet du roi, le cardinal de Rohan, en rochet, et en camail, attendait sa majesté qui alloit passer pour la messe, où sa charge de grand aumônier l’appeloit. Le roi le fit demander dans son cabinet interieur, où il fut un peu étonné de trouver la reine en tiers. Le roi lui demanda ce que c’étoit qu’un collier qu’il devoit avoir procuré à la reine? ‘Ah, sire,’ s’écria le cardinal, ‘je vois trop tard que j’ai été trompe!’—‘Mais,’ lui dit la reme, ‘si vous avez cru si légèrement, vous n’auriez pas dû vous méprendre à mon ceriture, que sûrement vous connoissez.’ Sans lui répondre, le cardinal, s’adressant au roi, protesta de son innocence. ‘M. le cardinal,’ reprit le roi, ‘il est tres-simple que vous soyez un peu troublé de cette explication; remettez-vous; et pour vous en donner le moyen, et que la presence de la reine ni la mienne ne nuisent pas au calme qui vous est nécessaire, passez dans la piece à côté; vous y serez seul, vous y trouverez du papier, une plume et de l’encre; écrivez-y votre déposition, que vous me remettrez ensuite; prenez tout le temps qui vous sera nécessaire.’ Le cardinalobéit, resta à peu près un demi-quart d’heure, rentra, et remit un papier au roi.”

In this latter case it is, however, manifest that the degree of unpremeditatedness cannot be so great, the security against mendacious invention so perfect, as in the former, in which the answers are delivered in the vivâ voce form: since writing in a form that shall be readily and generally legible, necessarily takes up a considerably greater length of time than a discourse of the same tenor delivered vivâ voce; and, under the cloak of the real necessity, it would be easy for mendacious fraud to possess itself of a considerably greater length of time, without exposing itself to censure, or any decidedly prejudicial inference.

[† ]Book II. Securities; Chap. IV. Internal Securities.

[* ]Cases every now and then occur, in which a prosecutor, or an extraneous witness, even where he is not suspected of being implicated in the offence of which the defendant is accused, is sent to prison by the justice to ensure his forthcomingness at the trial, or to prevent his being tampered with;—for instance, when the prisoner happens to be a man of rank and fortune, and the prosecutor or witness a child in a state of poverty. The necessity, however, for this extreme measure of precaution, would not have place were the system proposed by the author, in the instance of a defendant, adopted in that of an extraneous witness, inasmuch as the judicatory in which the evidence was elicited would at once decide upon the case unless, as he observes (p. 450) by accident, or supposing the evidence too long to be elicited at one hearing, it became necessary to adjourn the case.—Ed.

[* ]Predicated of the recolements only: implied probably of the confrontations. In regard to the recolement, in the first draught the identity was pointedly insisted upon: “que le même soit commis pour faire le recolement.” (Art. 4.) In conclusion the point was taken off—“que le recolement se fasse par devant lui,”—probably in contemplation of casual impediments.—Procès Verbal des Conferences, p. 175, edit. Louvain, 1700.

[* ]See the Ordinance, its commentators, and the Causes Celèbres—passim.

[† ]In a criminal cause, the ground of the question will be apt to admit of very considerable variation, according to the deponent’s station in the cause; the station of a defendant, or that of an extraneous witness: a defendant, exposed to punishment (and that perhaps capital,) or a witness, exposed to no such danger, nor anything at all approaching to it.

It is from a defendant that, in case of his being guilty, mala fides is next to certain. From an extraneous witness, in so far as the tendency of his testimony is to criminate the defendant, the absence of mala fides may be presumed to be not much less certain; criminative perjury, in capital cases at least, being happily among the rarest of all crimes.

In this station, at any rate, the penalties for blameable falsehood, especially on the criminative side, being everywhere so heavy,—falsehood on that side is not to be presumed as a matter of course.

The distinction is material. It is on the side of the extraneous witness only, that the probability, comparatively speaking, of honest recollection (viz. oblivion or non-recollection at one time, and deposition accordingly, followed by true and corrective recollection) is considerable.

On the part of a defendant who is guilty (as, under the worst system of criminal procedure that ever was established, a vast majority of the whole number of persons prosecuted always have been)—on the part of a guilty defendant, an application for liberty to amend his deposition will commonly have this origin:—Revolving in his mind the testimony he has been delivering, this or that fact or circumstance will present itself to him as being disproved and rendered untenable by counter-evidence, either ab intra or ab extra: by its inconsistency with some fact, true or false, of his own advancing, or with some fact sufficiently established by evidence from some other source. In these circumstances, opportunity of amendment being then presented to him, he will be apt enough to embrace it: why? Because some scheme has occurred to him, by means of which he hopes to get rid of the inconsistency, and make up his statement to such a consistence, as that, though in many points it be false, it may in the material points afford him a chance of being believed.

[* ]Bro. Ch. Rep. 1. 419.

[*]

[*]

[* ]Vide supra, p. 383, et seq.; and p. 437, et seq.

[† ]Under the discipline of the stamp duties, the number of words allowed to be put into a page is limited, in many (if not most) instances, in Britain, France, and probably other countries.

In the English translation of the Christian scriptures, the matter is broken down into verses, and it is not always that the grammatical sentence is concluded in the verse.

[* ]See Book I. Chap. VI.

[† ]Wager of law is now abolished.—Ed.

[* ]In the King’s Bench, in case of an indictment, for example, for an assault, if the defendant, having witnesses whose partiality is in his favour, thinks them capable of standing cross-examination, he pleads not guilty, and stands trial: if not, he suffers judgment of guilty to go by default; and, in mitigation of punishment, antecedently to his receiving judgment (say sentence,) he produces their testimony in the shape of affidavit evidence.

So much in course is the observance of this policy (it would be superfluous to say by whose advice,) that when it is not employed, the omission is publicly made a merit of. “My lord, gentlemen of the jury, we produce our witness (you see) to stand cross-examination:” it depended upon us to have preserved him from it.

This is but one out of a swarm of abuses that cling to the trial of a misdemeanour, as performed before a learned judge in the King’s Bench or at the Assizes, in contradistinction to the trial for the same offence, performed before a company of unlearned men at the Sessions.

[† ]Unless (what does not happen in one cause out of twenty) the Chancellor thinks fit to direct an issue; i. e. a suit to be carried on in a common-law court, for the purpose of trying the question (it being a question of fact) before a jury, and consequently by evidence presented in a proper shape, as above. But, in this case, so far from being a loser, the partnership is a gainer by the admission of the proper evidence: the trial of the issue being a suit within a suit: the suit with the evidence in a good shape being not substituted, but added to the suit with the same evidence in a bad shape. The same observation applies for the most part to issues sent to be tried out of the equity courts.

[* ]By 3 Geo. IV. cap. 23, a general form is given for the record of convictions. It requires the evidence to be set forth.—Ed.

[* ]If, after an offender has been convicted, the process of subjecting him to an examination of the inquisitorial kind,—this is the appropriate denomination, I use it not in the character of a vituperative one,—if this process be a useful process in any case, why in this case to the exclusion of all others? Why not in many other cases as well as this, or in preference to this? Why not, for example, to ascertain the state of his finances, for the purpose of observing the weight of the pecuniary burthen he is able to bear in the character of satisfaction or of punishment? Why not, in case of apprehended insolvency, for the purpose of securing what remains for the benefit of creditors, in just proportions? Why not, in the case of criminality in the way of depredation, for the purpose of investigating former depredations, and restoring to the persons injured such fruits as may be to be recovered? Why not—but questions of this nature proceed on the supposition—the perpetually-disproved supposition, that the arrangements of technical procedure have for their objects the ends of justice.

[* ]Vide infra, Chap. XVII.

[† ]Bl. Comm. IV. Chap. 15.

[* ]See 23d Report of the House of Commons Committee on Finance, anno 1798.

[† ]IV. Comm. Chap. 19.

[* ]In consequence of the efficiency of the new police, applications to the magistrates in the metropolis, for warrants to apprehend individuals charged with felony, are now very rare. When for the first time the magistrates hear of the matter, the person accused is, generally speaking, already in custody.—Ed.

[† ]Unless where the delinquent, being caught in the commission of the offence, is by individuals (with or without the assistance of a constable) brought to the magistrate in the first instance, before any warrant granted by him for the purpose, and therefore without any such warrant. In this case, the first ex parte inquiry is of course wanting, or (what comes to the same thing) converted into a reciprocal one.

[* ]Leach’s Cases. 3d edit.

[* ]Why not legal? Because, if not present, he stands bereft of two essential faculties, both necessary to his defence—the faculty of cross-examining the witnesses on the other side, and the faculty of producing evidence on his own side. To preserve him from this disadvantage, what is the course taken by the law? In case of his non-appearance, he is outlawed—subjected to an unfathomable mass of punishment, of which the punishment appropriated to the particular sort of offence of which he stands suspected, constitutes but a part.

[† ]It he pleads “not guilty,” in a case of felony, he is also told that he may challenge the jury, by objecting to any of the jurymen as they come to be sworn.—Ed.

[‡ ]Book V. Circumstantial; Chap. VI. Spontaneous self-inculpative Testimony.

[∥ ]A rule which in itself has no reason, affords, so long as it is suffered to exist, a reason, and even a use, for this preposterous subornation. Unless the defendant will plead not guilty, the particular facts by which his guilt is evidenced cannot forsooth be brought to view.a Why not be brought to view? What should hinder them? Why not receive his confession in general terms, and at the same time receive the confirmation of it by the relation of all the particulars? That, in point of reason, confessorial evidence conceived in general terms does not by any means supersede the demand for the statement of the facts in detail, will be shown in another place: but, to this purpose, mendacity on the part of the criminal—subornation of mendacity on the part of the judge, is no more necessary, or so much as conducive, than it is to any other useful and commendable purpose. In the nature of things, the plea of guilty would no more prove an obstacle to the continuance of the inquiry, than the plea of not guilty. But so familiar and so delightful is falsehood to the ear and the lips of an English lawyer, that without it he would be perpetually at a stand: it is the oil, with which the wheels must at every turn be greased, or the machine would stand still.

[* ]By 6 & 7 Wil. IV. cap. 114, counsel for the prisoner may now address the jury in cases of felony.—Ed.

[† ]Peace is a word without meaning, in the mind of an English lawyer. The peace is broken by an unsuccessful attempt to give currency to a forged note or a bad shilling. Adultery, though committed by consent, is never committed any otherwise than by force and arms.

[* ]See Book IX. Exclusion.

[† ]Ecclesiastical Court.

[* ]Book VIII. Technical Procedure; Chap. XVI. Written Pleadings.

[* ]In the minds of the contrivers, these arbitration courts (it seems not impossible) may have originated in the honest wish of diminishing litigation—of extending the benefit of justice to those to whom it might otherwise have been inaccessible, and saving them, at the same time, from the fangs of the men of law. But the projector, whoever he may have been, if not a lawyer, appears in great measure to have been either deceived by the wiles, or overborne by the power of lawyers: what they have gained by the institution is rather more ascertainable than what they have lost; that is, than what has been gained to justice.

1. Parties examinable, and of course examined: but no oath, consequently no punishment; licence for mendacity, as against everything that goes by the name of punishment—as against everything but shame, that punishment to which those only against whom the forms of judicature are least necessary, are sensible.

2. No such tribunal capable of being instituted, but by consent of both parties. Let there be a spark of mala fides on either side, no such tribunal will be instituted, unless it be in virtue of an expectation on one part. of profiting by the bona fides and consequent veracity on the opposite side, reserving to himself the benefit of mendacity on his own side.

3. Care has been taken, as above, that on both sides an appeal shall be open to the learning and probity of the regular tribunals, sitting by themselves, without the incumbrance of a jury. But, neither on these nor on any other occasions, do these masters of wisdom ever determine a question upon any other than that which, in respect of the mode of collection, is the worst evidence—evidence delivered in that form in virtue of which a malâ fide suitor and a malâ fide deponent act to most advantage.

4. There is a class of causes, nor that a scanty one, to the cognizance of which, as Blackstone confesses,a a tribunal with a jury in it is physically incompetent; and which, if not tried by this sort of voluntarily appointed tribunal, would, as he also intimates, not be tried at all—disputes having for their subject-matter long-winded and intricate accounts between merchant and merchant, for example. In respect of so many of these disputes, therefore, as, having been carried on in the first instance before the irregular tribunals, pass from them to the regular, the institution is so much clear gain to the regular ones: and as the mode of trial is such as holds out every encouragement to mendacity and dishonesty, if the source thus opened of litigation is not productive, it is no fault of the man of law.

[* ]Book VIII. Technical Procedure; Chap. XIX.

[* ]As everything has its reason (good, bad, or indifferent,) so has this: and at first glance it is rather a plausible one. If, for every question, a charge—a correspondent allegation, were not to be required, interrogation might run riot: there would be no end to questioning: a door would remain open, and that a boundless one, to impertinence. Plausible thus far: but where is the real utility at the bottom of it? What is required, is, that to every question there should be a charge: what is not required in the instance of any charge, is, that that charge shall be a true one. What follows? That the apprehended impertinence, instead of being checked, is doubled. To constitute a legal ground for each question, pertinent or impertinent, it is prefaced by an allegation, which allegation, as often as it is false (which it is perhaps still oftener than it is true,) cannot possibly be of any use. Thus stands the matter on the ground of utility; particular utility with reference to the particular object in view, viz. the obtaining a just ground for a decision to a particular effect, by the discovery of a particular mass of truth. With a view to the influence of this practice upon general probity, upon the public disposition to veracity, occasion will occur for noticing it in another place.

[* ]He cannot, however, be punished for mendacity, unless upon the evidence of at least two witnesses.

“No decree, it is said, can be made against a man’s answer, upon the proof of one witness.” (1 Vern. 140. 3 Chanc. Cas. 123. 1 Ventr. 213 in Parker’s Harrison I. 224.)

This is as much as to say, that a court of equity cannot or will not form that sort of judgment which is exercised every day by a jury, and to which the meanest jury is acknowledged to be in every sense fully competent:—a judgment concerning the comparative trustworthiness of the opposite testimonies of two deponents.—To what considerations are we to impute this self-created incompetence on the part of these great and learned personages? Is it that, in their own judgments, the mode of inquiry they are content to pursue is completely ill-adapted to the ends of justice?—or is it, that, to their own consciousness, their own minds are so vitiated and enfeebled by false science, as to be unfit for a task for which no unfitness is to be found in a company of unlearned tradesmen?

The effects of this disclaimer are not unworthy of observation.

1. In the character of defendant, the testimony of one man, of every man—so long as he has but the testimony of one extraneous witness to oppose him, be that one witness who he may,—is absolutely conclusive: so that, to whomsoever has but one such opponent, the benefit of triumphant perjury is made sure.

2. And what sort of evidence is it, in comparison with which the most trustworthy evidence goes for nothing? A person who is interested by the amount of the whole interest created by the whole value of the cause: and this in the judgment of those sages with whom it is a maxim that an interest, though to a less value than the smallest coin in currency, is sufficient to render a witness inadmissible.

[* ]Gibson and Johnson.

[† ]Petition is the name given to the instrument by which, in cases of bankruptcy, claims are preferred to the Lord Chancellor sitting in a judicial capacity superordinate to that of the commissioners of bankruptcy, before whom the business is transacted in the first instance. To this species of judicature, in scientific strictness the term equity is said not to extend itself: it is as Lord High Chancellor that this great magistrate sits, and not as judge of a court of equity. Accordingly, in this branch of judicature, the other high court of equity, the Court of Exchequer, when sitting in its equitable capacity, does not participate.—[The judicature in bankruptcy has experienced considerable alteration by the establishment of a Bankruptcy Court, in terms of Lord Brougham’s Act, 1 & 2 Wil. IV. cap. 56. See the author’s remarks on the measure, in the pamphlet called “Lord Brougham Displayed” Vol. V. p. 549.—Ed.]

[* ]Some years ago, in the House of Lords (no matter on what occasion) an advocate (such being the exigency of his case) was inveighing against the monstrous absurdity, the notorious injustice, the immoral tendency, of allowing a party to appear as a witness in his own cause. The answer was a simple, but at least, in the character of an argumentum ad hominem, a pretty decisive one:—“In a court in which you are every day sitting, it is every day’s practice.”

[† ]Exemplified at common law, in criminali.a

[* ]In one other case I find an instance of an examination viv vocâ in court, viz. that before the principal equity judge. It is where two or more affidavits, charged with being contradictory, have been exhibited by the same person.—Wyat’s Practical Register, p. 10.

What seems evident enough is, that had the two supposed contradictory depositions been the depositions of different persons, the demand for such explanation would have been at least as great: so also in case of the like contradiction between two extraneous witnesses, both deposing in whispers to an examining clerk: so also between one such witness, and defendant, in and by his answer: so, in a word, in case of any other contradiction whatsoever.

But in the particular case in question, by some strange accident, in a fit of insanity or inebriety, a chancellor happened to be in a humour to find out the truth—to find out the truth by the force of his own faculties, without sending it to be found out by a jury, in the course and by means of a suit instituted on purpose.

One other instance is upon record, of a person examined in court upon a different ground: but the case is too extraordinary to be worth insisting on.—2. Chancery Cases, 68, 69, 70, in Fowler’s Exchequer (Edit. 1795,) ii. 99. After hearing the depositions of other witnesses, one of a set of persons employed as commissioners to take depositions had himself deposed. A ground of suspicion, which in common-law practice is continually presented, and almost as continually disregarded, was here considered as fatal: and in this, at that time, and almost still, unprecedented mode, the witness was re-examined. Profit to the lawyers, one motion and two hearings: what, if anything, the party in the right got by this sort of judicial frolic, does not appear.

[* ]Browne, i. 478; ii. 421.

[† ]Oughton.

[‡ ]Duchess of Kingston’s Trial for Bigamy, anno 1776, Hargrave’s State Trials, vol. xi. p. 239.

[* ]Compared with the pure Anglicans (the common and equity lay-lawyers,) the ecclesiastical and other Romanist lawyers (the civilians as they are cailed) exhibit a perceptible distinction. Acting under the yoke of a predominating power, the latter refer every now and then to the principle of utility, as an oracle from which they look for popularity and for defence against the hand, the weight of which is constantly felt pressing on their shoulders. For such and such a reason (meaning in respect of such or such an article of perceptible convenience or inconvenience,) such or such a feature of Romanistic is preferable to the correspondent feature in Anglican practice.—Such was the language of Oughton, twenty years before Blackstone made his appearance: such was the language of Oughton, at a time when no lay-lawyer, no common lawyer or equity lawyer, had ever deigned to make any the loosest reference of the consecrated established arrangements of procedure to the ends of justice.

[* ]Oughton, ii. 218, 225.

[* ]Oughton, i. 221, 226.

[† ]The contrivance,—would it hold water?—Apply in the regular way to the Court of King’s Bench, and then you will know. In the year 1738, Oughton speaks of it as the then existing practice: in 1767, twenty-nine years after, Burn drops all mention of it. The contrivance is a trick; but on this ground, not to speak of others, tricks are established practice. If,—a man having been excommunicated for an offence of this description,—the spiritual court, for the purpose of causing pecuniary satisfaction to be made to the parties injured, offer, on that condition, to take off the punishment, their proceedings will be annulled.a But if, instead of making any such offer, they begin with imposing penance, and then, on the same condition, and for the same purpose, offer to take off the penance, so far so good. By a statute still in force,b in the case of this very offence, it is ordained, that, if the offender will redeem it (the penance) of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king’s prohibition shall not lie. The trick, then, is on the part of the lay judges; who,—when the spiritual judge, to save to the delinquent the expense, vexation, and delay of the previous and useless penance, proceeded to make his bargain by the ordinary means of the excommunication without the penance,—took advantage of this regard for public justice on his part, to nullify his proceedings, and leave the injury without redress.

Tenable or untenable, the mode of procedure on this ground, as it stands in Oughton, will serve equally well for illustration. If, in the character of a description of what can lawfully be done by these spiritual judges, it be incorrect,—in the character of a description of what in that way they have done, or would do, or would have done if they could, it is not the less instructive.

[‡ ]Stat. 13. C. II. c. 12, § 4.

[∥ ]Oughton, i. 223

[* ]Oughton, i. 217, 218.

[† ]Ibid. i. 217, Tit. 141, § 1, 2.

[* ]On a system radically bad, observations pointing out, as here, this or that particular defect, together with this or that partial remedy, answer no other purpose than that of illustration. When, instead of being carved out into fair slices by a geographical knife alone, jurisdiction is divided or rather torn into shapeless scraps by metaphysical instruments, the establishment may be oppressively expensive, and at the same time inadequate and insufficient.

[† ]Browne, ii. 421. Admiralty Practice.

[‡ ]See Ch. XII. Repetition.

[∥ ]See Browne, and Oughton.

[§ ]Browne, Compend. View, ii. 413.

[* ]Browne, i. 472.

[* ]Browne, i. 488.

[† ]Ibid. ii. 348.

[‡ ]Ibid. ii. 348.

[∥ ]Ibid. ii. 347.

[* ]It is very evidently possible, but from various causes not a frequent case, that the testimony of one and the same witness shall have been invoked on both sides.

[* ]Another purpose mentioned, and much dwelt upon,a is that of the allowance given to a defendant to exhibit against a witness (an extraneous witness) objections tending to weaken the credit, or bar the admission, of his testimony. Of this I take no further notice; partly because, to that particular purpose, presence is not particularly necessary; partly because the subject will receive ample consideration in another place.b

[† ]Chap. XII. Repetition.

[* ]Ordonn. de 1670. Tit. xv. Art i. and ix.

[† ]The subject remains indeed, as usual, involved in thick confusion; the result of which is, as usual, that the judge might, in most cases at least, proceed as he found most agreeable to himself.

In the Ordonnance, in this first article (tit. xv.) after leave has been given to the judge to make the order as to the recolement absolute and peremptory, leave is then added for making the order as to the confrantation conditional and discretionary, as above. Si l’accusation mérite d’étre instrulte le juge ordonnera que les témois . . . . seront récoles en leurs depositions, et, si besoin est, controutés à l’accusé. . . .

In art. xi. a supposition is started, that at a point of time not specified, recolement and confrontation taken together have not been performed: and in that case, leave is given to the judges (les juges in the plural—before, it was le juge in the singular) to order these operations, so mentioned in conjunction, to be then performed.

In the article immediately preceding (art. viii.) it had been provided, that if an order has been made (it does not say by whom) that the witnesses be recoled and confronted, the deposition of those who have not been confronted shall not be received as proof, except in case of their respective deaths during the (defendant’s) contumacy. By this article, confrontation is thus rendered indispensable, viz. in case of an order for that purpose; but as to the making of such order, it is not rendered indispensable: and the article immediately following assumes that recolement and confrontation, one or both, have somehow or other failed of being performed.

As to le juge in art. i., and les juges in art. ix., the expressions may naturally enough be imagined to be synonymous. No such thing. For the performance of all these several operations,—examinations, recolements, confrontations,—a single judge is in every case sufficient: more than one are scarce ever employed. For pronouncing the bare order for these respective purposes (a matter, of course, that requires much less reflection) a multitude of judges. I pretend not to say how many, was in many cases indispensable. Accordingly, when, as in art. i., the ordonnance itself speaks of but one judge,—according to Jousse, the commentator, three or seven are necessary: three, if in a court appreciable from; seven, if in a court appealed to: referring, as to the three, to another title of the same Ordonnance (tit. xxv. art. x.) the provision of which, in this behalf, appears to be such as he represents it.

Another reference he makesa is to an arrêt of the Tournelle, by which it is adjudged and thence ordained, that no punishment either of an afflictive or infamous nature shall be pronounced, unless when recolement and confrontation have been both performed:—adjudged (I say) and thence ordained; for in France it was in this way the custom among judges to make laws avowedly in the prospective way, like legislators, instead of confining themselves to the making them in an unavowed and ex post facto way, as in England. But of this Tournelle court, the jurisdiction was limited by that of the Parliament of Paris: so that, in other parts of France, a judge (or the judges) did not find their liberty incommoded by this rule.

As mal-practice is but a casualty, especially among judges, there seems but little doubt that, in practice, conviction seldom took place without previous confrontation. A circumstance that will hardly be thought to weaken the probability on that side is, that, by the application of these subsidiary securities, the expense of the procedure, and with it of course the profit, never failed to receive a considerable augmentation.

As to the original legislator, the penner of the ordinance,—an expression he has let drop may afford at one view a proof of the value set by him on this security, and a sample of a technically-learned mind. In the case of non-forthcomingness on the part of the defendant,—recolement, the opportunity given to him and the other deponents to amend their respective answers,—recolement, a possible re-examination,—is declared to be equivalent to itself and confrontation put together: recolement vaudra confrontation, not, recolement tiendra lieu de confrontation. The logic of this jurisprudence, and the arithmetic, are worthy of each other: if both be correct, 0 must be the exact value of this security; a security which among English lawyers is regarded as so indispensable as to be without equivalent and without price.

Not but that in English law, the treatment given in this same case to a defendant is much worse—the contravention of the ends of justice much more flagrant. Absence, which though a circumstantial evidence with reference to guilt, is evidently a most untrustworthy and precarious one, receives among English judges the effect of a conclusive one. The Roman judge, complete evidence not being to be had, grounds his decision on what, of any that he is acquainted with, is the next best evidence: the English lawyer, shocked at the idea of convicting a man on imperfect evidence, convicts him without any evidence. But of this more fully in its place.

[* ]Jousse, p. 286; Tit. xv. Art. i. Note 7.

[† ]Branniza, ii. 219. § 460, referring to Code Therese, Art. xxxv. § 2.

[‡ ]Branniza, ii. p. 223, § 468. Code Therèse, Art. xxxii. § 15.

[∥ ]Ibid. ii. 193, § 409, 412, 415.

[* ]While coupled with trial by jury, lawyers could join and even lead the popular cry, because trial by jury is trial with lawyers: by itself they could not recommend it without sacrifice of their professional interest: recommendation of this principle purely and simply, would involve a recommendation of the natural system (viz. personal attendance of the parties, with mutual cross-examination,) to the exclusion of all technical ones.

[* ]It is even conceivable, that, in the course of a vivâ voce conversation,—a question or string of questions being put by the interrogator, and an answer or correspondent string of answers given in a breath by the deponent,—the lips of the interrogator may thereupon be closed, as those of a frog are for a certain part of the year, and then the examination may end.

It is conceivable this arrangement, and accordingly it stands exemplified: for of human, and especially juridical absurdity, no conceivable modification can be mentioned that does not stand a good chance of being somewhere or other exemplified in practice.

Cause, a criminal one; mode of procedure, by indictment; inquiry, the principal one—that in which the decision is pronounced by a jury: offence, a crime of the rank of felony. Officer of the court to the defendant, called here the prisoner: Prisoner, hold up your hand (hand held up)—How say you? Guilty, or not guilty? Prisoner: “Guilty.” or “Not guilty.” In either case, here the interrogation ends. Whichever be the response, not another question can ensue.a

[∥ ]A rule which in itself has no reason, affords, so long as it is suffered to exist, a reason, and even a use, for this preposterous subornation. Unless the defendant will plead not guilty, the particular facts by which his guilt is evidenced cannot forsooth be brought to view.a Why not be brought to view? What should hinder them? Why not receive his confession in general terms, and at the same time receive the confirmation of it by the relation of all the particulars? That, in point of reason, confessorial evidence conceived in general terms does not by any means supersede the demand for the statement of the facts in detail, will be shown in another place: but, to this purpose, mendacity on the part of the criminal—subornation of mendacity on the part of the judge, is no more necessary, or so much as conducive, than it is to any other useful and commendable purpose. In the nature of things, the plea of guilty would no more prove an obstacle to the continuance of the inquiry, than the plea of not guilty. But so familiar and so delightful is falsehood to the ear and the lips of an English lawyer, that without it he would be perpetually at a stand: it is the oil, with which the wheels must at every turn be greased, or the machine would stand still.

[* ]In the minds of the contrivers, these arbitration courts (it seems not impossible) may have originated in the honest wish of diminishing litigation—of extending the benefit of justice to those to whom it might otherwise have been inaccessible, and saving them, at the same time, from the fangs of the men of law. But the projector, whoever he may have been, if not a lawyer, appears in great measure to have been either deceived by the wiles, or overborne by the power of lawyers: what they have gained by the institution is rather more ascertainable than what they have lost; that is, than what has been gained to justice.

1. Parties examinable, and of course examined: but no oath, consequently no punishment; licence for mendacity, as against everything that goes by the name of punishment—as against everything but shame, that punishment to which those only against whom the forms of judicature are least necessary, are sensible.

2. No such tribunal capable of being instituted, but by consent of both parties. Let there be a spark of mala fides on either side, no such tribunal will be instituted, unless it be in virtue of an expectation on one part. of profiting by the bona fides and consequent veracity on the opposite side, reserving to himself the benefit of mendacity on his own side.

3. Care has been taken, as above, that on both sides an appeal shall be open to the learning and probity of the regular tribunals, sitting by themselves, without the incumbrance of a jury. But, neither on these nor on any other occasions, do these masters of wisdom ever determine a question upon any other than that which, in respect of the mode of collection, is the worst evidence—evidence delivered in that form in virtue of which a malâ fide suitor and a malâ fide deponent act to most advantage.

4. There is a class of causes, nor that a scanty one, to the cognizance of which, as Blackstone confesses,a a tribunal with a jury in it is physically incompetent; and which, if not tried by this sort of voluntarily appointed tribunal, would, as he also intimates, not be tried at all—disputes having for their subject-matter long-winded and intricate accounts between merchant and merchant, for example. In respect of so many of these disputes, therefore, as, having been carried on in the first instance before the irregular tribunals, pass from them to the regular, the institution is so much clear gain to the regular ones: and as the mode of trial is such as holds out every encouragement to mendacity and dishonesty, if the source thus opened of litigation is not productive, it is no fault of the man of law.

[† ]Exemplified at common law, in criminali.a

[† ]The contrivance,—would it hold water?—Apply in the regular way to the Court of King’s Bench, and then you will know. In the year 1738, Oughton speaks of it as the then existing practice: in 1767, twenty-nine years after, Burn drops all mention of it. The contrivance is a trick; but on this ground, not to speak of others, tricks are established practice. If,—a man having been excommunicated for an offence of this description,—the spiritual court, for the purpose of causing pecuniary satisfaction to be made to the parties injured, offer, on that condition, to take off the punishment, their proceedings will be annulled.a But if, instead of making any such offer, they begin with imposing penance, and then, on the same condition, and for the same purpose, offer to take off the penance, so far so good. By a statute still in force,b in the case of this very offence, it is ordained, that, if the offender will redeem it (the penance) of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king’s prohibition shall not lie. The trick, then, is on the part of the lay judges; who,—when the spiritual judge, to save to the delinquent the expense, vexation, and delay of the previous and useless penance, proceeded to make his bargain by the ordinary means of the excommunication without the penance,—took advantage of this regard for public justice on his part, to nullify his proceedings, and leave the injury without redress.

Tenable or untenable, the mode of procedure on this ground, as it stands in Oughton, will serve equally well for illustration. If, in the character of a description of what can lawfully be done by these spiritual judges, it be incorrect,—in the character of a description of what in that way they have done, or would do, or would have done if they could, it is not the less instructive.

[* ]Another purpose mentioned, and much dwelt upon,a is that of the allowance given to a defendant to exhibit against a witness (an extraneous witness) objections tending to weaken the credit, or bar the admission, of his testimony. Of this I take no further notice; partly because, to that particular purpose, presence is not particularly necessary; partly because the subject will receive ample consideration in another place.b

[† ]The subject remains indeed, as usual, involved in thick confusion; the result of which is, as usual, that the judge might, in most cases at least, proceed as he found most agreeable to himself.

In the Ordonnance, in this first article (tit. xv.) after leave has been given to the judge to make the order as to the recolement absolute and peremptory, leave is then added for making the order as to the confrantation conditional and discretionary, as above. Si l’accusation mérite d’étre instrulte le juge ordonnera que les témois . . . . seront récoles en leurs depositions, et, si besoin est, controutés à l’accusé. . . .

In art. xi. a supposition is started, that at a point of time not specified, recolement and confrontation taken together have not been performed: and in that case, leave is given to the judges (les juges in the plural—before, it was le juge in the singular) to order these operations, so mentioned in conjunction, to be then performed.

In the article immediately preceding (art. viii.) it had been provided, that if an order has been made (it does not say by whom) that the witnesses be recoled and confronted, the deposition of those who have not been confronted shall not be received as proof, except in case of their respective deaths during the (defendant’s) contumacy. By this article, confrontation is thus rendered indispensable, viz. in case of an order for that purpose; but as to the making of such order, it is not rendered indispensable: and the article immediately following assumes that recolement and confrontation, one or both, have somehow or other failed of being performed.

As to le juge in art. i., and les juges in art. ix., the expressions may naturally enough be imagined to be synonymous. No such thing. For the performance of all these several operations,—examinations, recolements, confrontations,—a single judge is in every case sufficient: more than one are scarce ever employed. For pronouncing the bare order for these respective purposes (a matter, of course, that requires much less reflection) a multitude of judges. I pretend not to say how many, was in many cases indispensable. Accordingly, when, as in art. i., the ordonnance itself speaks of but one judge,—according to Jousse, the commentator, three or seven are necessary: three, if in a court appreciable from; seven, if in a court appealed to: referring, as to the three, to another title of the same Ordonnance (tit. xxv. art. x.) the provision of which, in this behalf, appears to be such as he represents it.

Another reference he makesa is to an arrêt of the Tournelle, by which it is adjudged and thence ordained, that no punishment either of an afflictive or infamous nature shall be pronounced, unless when recolement and confrontation have been both performed:—adjudged (I say) and thence ordained; for in France it was in this way the custom among judges to make laws avowedly in the prospective way, like legislators, instead of confining themselves to the making them in an unavowed and ex post facto way, as in England. But of this Tournelle court, the jurisdiction was limited by that of the Parliament of Paris: so that, in other parts of France, a judge (or the judges) did not find their liberty incommoded by this rule.

As mal-practice is but a casualty, especially among judges, there seems but little doubt that, in practice, conviction seldom took place without previous confrontation. A circumstance that will hardly be thought to weaken the probability on that side is, that, by the application of these subsidiary securities, the expense of the procedure, and with it of course the profit, never failed to receive a considerable augmentation.

As to the original legislator, the penner of the ordinance,—an expression he has let drop may afford at one view a proof of the value set by him on this security, and a sample of a technically-learned mind. In the case of non-forthcomingness on the part of the defendant,—recolement, the opportunity given to him and the other deponents to amend their respective answers,—recolement, a possible re-examination,—is declared to be equivalent to itself and confrontation put together: recolement vaudra confrontation, not, recolement tiendra lieu de confrontation. The logic of this jurisprudence, and the arithmetic, are worthy of each other: if both be correct, 0 must be the exact value of this security; a security which among English lawyers is regarded as so indispensable as to be without equivalent and without price.

Not but that in English law, the treatment given in this same case to a defendant is much worse—the contravention of the ends of justice much more flagrant. Absence, which though a circumstantial evidence with reference to guilt, is evidently a most untrustworthy and precarious one, receives among English judges the effect of a conclusive one. The Roman judge, complete evidence not being to be had, grounds his decision on what, of any that he is acquainted with, is the next best evidence: the English lawyer, shocked at the idea of convicting a man on imperfect evidence, convicts him without any evidence. But of this more fully in its place.

[a]If a prisoner refuse to plead, the Court may order the proper officer to enter a plea of “Not guilty,” under the authority of the 7 & 8 Geo. IV. cap. 28. § 2. See R. v. Bitton, 6 C. & P. 92.—Ed.

[a]When a prisoner pleads guilty, the usual course in England, is for the judge to read the depositions, and examine the witnesses, if he thinks it necessary, in order to determine what degree of punishment should be inflicted. In Scotland, this practice is not adopted; but in that part of the empire it is not customary for the judge to offer any recommendations as to the prisoner’s plea.—Ed.

[a]Book III. Chap. I. Arbitration, Vol. III. p. 16.

[a]The deposition of a prisoner may also be read at the instance of a prosecutor, though the contents of the deposition will not be evidence against a co-prisoner, but only against the prisoner who made the deposition. 1 Phil. Ev. 108. In Scotland, where the prisoner’s declaration is almost invariably evidence against him (see above, p. 404, note) the same distinction is adopted.—Ed.

[a]Gibson, 9, in Burn, iii. 185.

[b]9 Ed. II. c. 3. [Repealed by 9 Geo. IV. c. 31.—Ed.]

[a]Ordonnance de 1670, tit. xv.

[b]Infra, Book IX. Exclusion.

[a]P. 281; Art. i. Note 1.