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

CHAPTER 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.

[† ]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!