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 VIII.

FIVE MODES OF INTERROGATION COMPARED.

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

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

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

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

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

5. Interrogation in the epistolary mode.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[* ]On this occasion, a cautious reserve would be the resource, and the only resource, of a man of truth and honour. Confined by circumstances to this disadvantageous mode (a case that, as will soon be seen, is but too frequently exemplified,) his care will be, that, by the declarations he is obliged to make, by the string of interrogations he is obliged to bring forward at the same time, as little as possible shall be afforded of that information, which, in the hands of a malâ fide adversary or mendacious witness, might prove auxiliary (or, in the language of an English lawyer, ancillary) to that sinister purpose.

A reserve thus dictated by prudence and allowed by truth, would be the sole resource of a man of sincerity and honour. Mendacity—a resource more familiar to their hands, more congenial to their tastes, more gainful to their pockets, has been the resource of English lawyers. Under the licence granted from the bench, the practitioner at the bar, in his endeavours to extract truth from the pen of the adversary, puts into the pen of his own client whatever lies present themselves as best adapted to this purpose. Under the ancient regime (I know not how it is under the modern) a French judge, with the view, real or pretended, of extracting the truth out of the bosom of a criminal under examination, would tell him (for example) that an accomplice has confessed, when perhaps no accomplice has been heard. Such advocates are worthy to practise under such judges. Not that the difference is more than apparent: for the lie of the bar is the lie of the bench by which it is permitted. Not that in this instance the part taken from above, in the manufacture of lucrative mendacity, is simply permissive. In the station of plaintiff in equity, a man is not simply permitted to stuff his narrative with lies: he is forced to it. On no other condition will the judge so much as profess to do him justice.

[* ]Exercise for a student: a student, not in the art of depredation under the mask of law, but in the art of legislation; in that art which seeks to show by what means the objects professed to be aimed at by those who have the power, may in reality be attained: in the art of legislation, should any man ever arise, to whom an art so unprofitable and thankless should present itself as having any claim to notice. Exercise for a student:—Take up a bundle of printed trials: look out a suitable one—such a one more particularly in which the truth has been wrung, by this engine, out of the bosom of an unwilling witness. Follow out the genealogy of questions and answers; take note of the number of degrees; pitch upon a case in which, by the answer to question the first, a second question is suggested—a question which, had the answer come in another shape, might not have been put: out of the answer to question the second, in like manner, a third question; and so on, as long as the string is found to run. Take out your watch; repeat to yourself aloud each question with its answer, and note the length of time they occupy. Add up the several lengths of time, and divide by the number of consecutive questions or degrees. Apply the same process to the ready-written mode, taking for each degree three months, or whatever other length of time (greater or less) may appear necessary to found a fairer average. You will probably find the number of minutes occupied in the one case somewhere between the number of months and the number of years consumed in the other. Not that in the ready-written mode, an example of a genealogical tree or string of this sort would probably be found of equal or nearly equal length to that of the longest afforded by the vivâ voce mode: not that any such real parallel would be to be found. But why? Only because it is not in the nature of a mode which gives full scope to mendacity-serving premeditation, suggestion, and consultation, to afford any such instances of detected mendacity, or extorted truth, as these which, in such abundance, are furnished by the mode which affords to mâla fides no such helps.

[* ]Supra, Chap. I.