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CHAPTER VI.: OF THE NOTATION AND RECORDATION OF TESTIMONY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF THE NOTATION AND RECORDATION OF TESTIMONY.
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.
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.
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.
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.
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.
[* ]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.