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.)

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.

[* ]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.