Front Page Titles (by Subject) CHAPTER IX.: EPISTOLARY MODE OF INTERROGATION, IN WHAT CASES APPLICABLE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER IX.: EPISTOLARY MODE OF INTERROGATION, IN WHAT CASES APPLICABLE. - 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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EPISTOLARY MODE OF INTERROGATION, IN WHAT CASES APPLICABLE.
Reasons for employing the epistolary mode of interrogation in certain cases.
That the oral mode may be applied without the epistolary, and this (unless in particular cases) without any prejudice to correctness or completeness, is manifest enough.
The epistolary mode,—shall it in any case, and what cases, be employed without the oral, in such sort, as that, for the formation of a decision, testimony thus extracted shall of itself be capable of being taken for a sufficient ground?
One objection presents itself in limine. This mode of receiving evidence, being in so high a degree and in so many points interior to the vivâ voce mode, ought not to be employed instead of it, but for special reasons.
These reasons will be found reducible to two heads:—1. Impracticability; 2. Preponderant collateral inconvenience: meaning by collateral inconvenience, here as elsewhere, the aggregate of delay, vexation, and expense.
Impracticability—absolute physical impracticability, will of course be admitted as a reason, without further discussion, supposing the existence of a case in which it takes place: but this is a supposition that will seldom, if at all, be verified. A case that at first sight might be apt to present itself as belonging to this head, would, on examination, be probably found to amount to no more than a high and manifestly preponderant mass of collateral inconvenience. The matter in dispute is the value of a day’s labour; and, to give the cause the benefit of vivâ voce examination instead of written examination, it would be necessary to fetch a man from the antipodes. This, in common parlance, might well pass for a case of impracticability; whereas, in strictness, supposing the full power of government seriously employed in the overcoming of the difficulty, the objection amounts to no more than the indication of a manifestly preponderant mass of delay, vexation, and expense.
One case, however, of utter impracticability, may at any rate be found; and it is this:—The residence of the defendant is in a foreign country—a country which, by the nature of its system of procedure, is disabled from affording the necessary power; or by possibility is, on the particular occasion in question, induced to refuse it. Powers for causing the defendant to be examined vivâ voce by the judge of the court within the jurisdiction of which he has his residence, do not exist, or are suspended. In this case, the vivâ voce mode being precluded, the receipt or extraction of his testimony must, if at all, be performed in the way of written correspondence. The former may be impracticable, and at the same time the latter practicable without difficulty. Though, with relation to the court in quâ the defendant be not only absent, but absent with a full determination of never being present,—means of effective jurisdiction may be possessed by it in abundance: an estate in land, a valuable office exercised by deputy, debts due to him and capable of being sequestered, may serve for examples. A paper containing the interrogatories is dispatched to the defendant, at his foreign residence. The plaintiff has at that same place a correspondent, to whom it goes in the first instance, by the common conveyance (say the letter post;) and the correspondent, having himself delivered it to the defendant in person, or left it at his house, writes to this effect to the court; the plaintiff deposing to the authenticity of the letter, and to his persuasion of the truth of its contents, and being in other respects responsible for the truth of it. Silence on the part of the defendant so served (as the phrase is) with notice, would in this case form as reasonable a ground for decision in favour of the plaintiff (at least for a provisional one,) as if the place of delivery had been within the jurisdiction of the Court.
Prudential impracticability is another word for preponderant inconvenience.
The case of sickness excepted, and (in very particular cases) the inconvenience that might result from disturbing public functionaries of different classes in the exercise of their respective functions,—the only remaining cause of inconvenience consists in mutual distance of abode. Supposing all persons whose simultaneous presence is requisite at the seat of judicature,—supposing parties and witnesses, all of them,—to have, for the time in question, their abodes within a short distance of the seat of judicature; then, and in that case, no inconvenience results from the proposed ordinary mode of testification, viz. deposition vivâ voce. Suppose the abode of any one of them distant by a certain space from that of the rest, then comes the inconvenience. If,—the abodes of the plaintiff and the defendant being at any given distance from one another, and the defendant’s abode being within the convenient distance of the seat of judicature,—the plaintiff, having occasion to examine the defendant, is willing (for the benefit of performing the examination in the best and most trustworthy mode) to bear the trouble and expense of conveying himself for that purpose,—the defendant can have no reasonable cause of objection; and so far all inconvenience and all difficulty are removed. But if he is not willing so to do, or if parties and witnesses are dispersed, according to any one of a great variety of changes that might be rung upon the possible modes of dispersion,—then comes the inconvenience; and then the option between the inconvenience produced, according to the nature of the cause, by the less trustworthy mode of examination and deposition, on the one hand; and the inconvenience consisting of the delay, expense, and other vexation, resulting from the requisite modes of exprovinciation or expatriation necessary to complete the judicial meeting, on the other. All these several points would require to be settled by apposite provisions of law, grounded on the consideration of the importance of the respective classes of causes, modified by the local and other idiosyncratic circumstances of each political state. But the adjustment of these points belongs neither to the present book nor to the present work, but to the subject of procedure.*
Of this less trustworthy mode of examination and deposition, the only use (it is to be observed) is, to save the personal inconvenience, which, in case of dispersion of abode (as above explained,) is liable to attach upon the more trustworthy mode. In proportion as the mass of the examination is more complicated, the inconvenience attaching (as above) upon the less trustworthy mode increases: and as the precise degree of complication may not always be to be determined beforehand, it may sometimes happen that, in the instance of a cause commenced (and that with propriety) in the way of written correspondence, it may at last be necessary to have recourse to examination or deposition vivâ voce. If the complication appear to have for its cause the misconduct of any one of the correspondents (viz. either in the way of criminal consciousness or temerity;) in such case, the obligation of being subjected after all to deplacement, for the purpose of vivâ voce examination or deposition at a tribunal convenient to some other party or witness, and inconvenient to himself, will operate in the character of a punishment, and the apprehension of it in the character of a preventive.
In the way of legislative provision, the adjustment of these details, in subordination to a sort of compound end, compounded of the direct and collateral ends of judicial procedure, will be matter of considerable nicety:—it will require considerable detail in any country, and considerable variation according to the different circumstances of different countries. In the existing systems, this part of the business of judicature presents, in comparison, little difficulty: why? because the ends of justice are little regarded; the course of procedure having been originally chalked out in some barbarous age, and governed by principles extraneous to the ends of justice. Untied in no case, the knot is cut, sometimes in one way, sometimes in another. In one place, or in one sort of cause, examination and deposition by written correspondence is unknown, and the vivâ voce mode is exclusively practised, at whatever inconvenience; in another place, or in another sort of cause, the converse takes place: very frequently, where distance and dispersion are considerable, the party in the right is left altogether without redress, the main ends of justice being sacrificed altogether, without necessity and yet without regret, to the collateral ends.
Nowhere has the established system of procedure been grounded on any distinct and comprehensive view of the mutually conflicting and difficulty-reconcilable ends of justice: everywhere have the foundations of it been laid at a period antecedent to the establishment of transmarine colonies and other distant dependencies: everywhere at a period prior to the institution, or at least to the present improved state, of the public establishments for the facilitation of written correspondence.
No case so complicated, but that provision must be made for it. By neglect, the mischief of unavoidable complication will not be lessened, much less removed, but aggravated. Happily, the cases of greatest complication, though generically they make the greatest figure, are individually much the least frequently exemplified.†
The cases particularized.
The proposed deponent being in circumstances in which preliminary interrogation vivâ voce (understand coram judice) is physically or prudentially impracticable,—shall deposition ex scripto, accompanied by interrogation in the same form, be admitted in the first instance?
Case I. Proposed respondent, the defendant.
Place the proposed deponent in the station of a party; and in the first instance in that of defendant.*
The option may here without danger be given to the plaintiff. Suppose the plaintiff in bona fides, the advantage of a personal discussion with the defendant, in the presence of the judge, is too palpable to be foregone. But, by the supposition, this advantage is not obtainable: the residence of the defendant is under the dominion of a foreign government, and where no such conference is to be had. In such case, the option of the plaintiff lies between justice on those comparatively disadvantageous terms, or no justice at all. Between this extraordinary mode, and the ordinary mode by confrontation coram judice, the difference is altogether to the advantage of the defendant.
In this case, two obvious duties present themselves to the judge; at least, on the supposition that the residence of the plaintiff is within the geographical limits of his jurisdiction.
The plaintiff making his appearance in court, the judge receives his spontaneous testimony, interposing such questions as appear requisite for the correction and completion of it.
If, on this occasion, the assistance of a professional advocate† be admitted, in this case the testimony may as well be previously digested in the form of a ready-written deposition, annexed to the instrument of demand, of which it presents the grounds. But in this case, as in the other, the personal appearance of the plaintiff, and his personal interrogation by the judge, are securities not to be dispensed with.
2. If the judge, on hearing the case thus stated on one side, thinks fit to subject the proposed defendant to the obligation of standing in that character, and putting in an answer in consequence,—then comes the drawing up the tenor of the instrument of interrogation. If there be no advocate, this will be work for the judge, and may be performed on the spot: if there be an advocate, it will be work for the advocate. But at any rate, carrying with it the authority of the judge, it must have the fiat of the judge; and for the same reason, his should be the person in which it speaks.
Another option that in this case may be left to the discretion of the plaintiff, is,—where the case happens to afford extraneous testimony on his side,—whether to collect it or no: and, when collected, whether to communicate it or no to the defendant, in such manner as that it may reach his cognizance before his answer to the instrument of interrogation has passed out of his hands. If any part of such extraneous testimony runs counter to the testimony contained in his instrument of response, it may perhaps be necessary that he should receive communication of it, and have an opportunity of replying to it, and making observations on it, before a decision is pronounced to his prejudice. But as to the seeing any extraneous evidence, before his own is delivered in the first instance,—this (as already explained) is a sort of information, which to a mendaciously-disposed witness may be eminently subservient, but which to a veracious witness can scarcely be of use.
Another point to be left to the discretion of the judge, may be, whether, on the ground of the plaintiff’s testimony thus scrutinized, (supported or unsupported by extraneous evidence,) provisional arrangements shall or shall not be taken for securing the forthcomingness of the subject-matter in dispute, and preserving it against irreparable damage: the whole, on condition of the plaintiff’s giving adequate security for eventual restitutio ad integrum.
Case II. Proposed respondent, the plaintiff.
Let us now suppose the respondent to be the plaintiff in the cause: he having obtained the judge’s fiat for the interrogation of the defendant, as above.
In this state of things, the plaintiff stands upon ground very different from that of the defendant. Against the defendant, the disadvantageous mode of proceeding, the interrogation ex scripto, has been embraced by the plaintiff—embraced by him under the pressure of necessity, the defendant being out of the way of being reached by any other mode. But the plaintiff himself (by the supposition) the person of the plaintiff himself, is within the reach of the judge—of the very judge by whose authority, at the instance of him the plaintiff, and on the ground of his vivâ voce deposition, the instrument of interrogation was just addressed to the defendant. Without sufficient assurance of his eventual forthcomingness for the purpose of justiciability (vivâ voce interrogability included,) the fiat of the judge will not have been given. Two modes of interrogation accordingly present themselves for the option of the defendant: 1. Interrogation ex scripto, interrogation in the same mode in which he himself has been interrogated; 2. Interrogation vivâ voce, by the mouth of an agent, non-professional or professional, appointed by him for that purpose.
That he should embrace the makeshift mode, when the ordinary and more advantageous mode is open to him, will be seen not to be in the natural and ordinary course of things: the rather, when it is considered, that, even after the vivâ voce interrogation, the scriptural mode (if in the judgment of his proxy the delay given by it should appear necessary to the purpose of allowing the plaintiff respondent any such time as may be necessary for recollection), will still be open to him.
Case III. Proposed respondent, an extraneous witness.
In the case of an extraneous witness, the propriety of admitting this mode of interrogation stands upon very different grounds.
Suppose, indeed, bona fides, and absolute impartiality—this mode will (in this as in other cases) be not merely equal, but preferable, to the vivâ voce mode: but (except in the case of official evidence* ) to ground arrangements upon any such presumption would be sufficient to lay all rights whatsoever at the mercy of dishonest plaintiffs or defendants supported by mendacious witnesses. A security which is good only against bona fides, is good only in the case in which it is least wanted,—which affords the least demand for it.
Witnesses being at every man’s choice, so it be their choice to appear in that character,—and witnesses who, in the case of mendacity, have by the supposition nothing to fear from the power of the judge; a man who should propose to himself a plan of conquest to be carried into effect by the power of the law, would have the whole world to range in, in quest of false witnesses. The only caution necessary in this case would be, not to set a witness to speak in the character of a percipient witness to a transaction, the scene of which lay in a place at which it were notoriously impossible he should have been present at that moment of time.
A merchant in London, with the assistance of two or three correspondents in Paris, ready to depose ex scripto in the character of extraneous witnesses, might prove false debts to any amount upon any number of persons in London. A person in Paris, with the assistance of two or three persons in London, might prove false debts to any amount upon any number of persons in Paris.
Perilous as this state of things would be to the interests of truth and justice,—is not a state of things still more perilous (it may be asked) actually exemplified in England, and in every day’s practice? On the occasion of the sort of suit called a petition in a matter of bankruptcy, are not debts to any amount proved by a still less trustworthy species of evidence, by ready-written affidavits—by depositions ex scripto, altogether exempt from the check of adverse interrogation?
Yes: and had the matter rested upon the wisdom and probity of the unprofessional framers of this branch of jurisprudential law, the mischief would long ago have been felt in its full force; and, on this as on so many other occasions, society, if preserved (as of course it would have been) from perdition, would have been indebted for its preservation to the interposition of the legislature. But, against a danger which (unless for the purpose of giving extension and increase to it) has never been thought of, a barrier has all along been opposed by an arrangement which, in this point of view, seems to have been as little thought of. An affidavit to be made use of in a court in which the Lord Chancellor presides, must have been sworn to, either at an office in the district of the metropolis, or (if out of that district) before some person having a standing commission from the Chancellor for administering oaths on occasions of that description. The only sort of person to whom commissions of this sort are usually granted, is an attorney, whose residence is in some part or other of that part of the united kingdom called England. And thus, and thus only, it happens, that testimony, delivered in so enimently untrustworthy a shape, can seldom issue but from a person ultimately amenable (viz. by a prosecution as for perjury) to English judicature.
But where it happens that, after having on an occasion of this sort sworn to an affidavit, a person disposed by character to lend himself to a scheme of depredation finds soon afterwards occasion to quit the country,—or meets with an employer who makes it worth his while, after rendering a service of this sort, to quit the country on purpose,—the accidental barrier above mentioned yields, it is evident, no opposition to the scheme: and the mischief above mentioned as attached to the proposed arrangement, hangs in full force over the existing state of things.
By these observations, it will probably have been made sufficiently apparent, what certain and extensive ruin might be the consequence, if it were made obligatory upon the judge to regulate his decision by testimony thus circumstanced. On the other hand,—when the symptoms of untrustworthiness attached to evidence of this description are once pointed out, and placed in full daylight, there seems not any sufficient reason why, on the mere score of security against deception, a peremptory exclusion should be put, in this case, any more than in anyother, upon any information that can bear the name of evidence.
Frequent as mendacity is, it is not yet quite so frequent, let us hope, as truth: and if this proposition be not the reverse of true, how unfavourable to the interests of truth and justice a peremptory exclusion put upon this sort of evidence would be, seems sufficiently manifest.
Instances will not unfrequently present themselves (especially among persons in the mercantile line) in which a person altogether and for ever out of the reach and power of the court may, in the character of an extraneous witness, possess in equal degree the confidence of both parties. An instance still more frequent will be, that, after a witness thus circumstanced has delivered his testimony, the party to whose disadvantage it operates will not only in his own mind give credit to it,—but, when with judicial solemnity called upon to say whether he does or does not, will by general probity of character, or at least by the sentiment of shame, be deterred from answering in the negative.
On this footing stands the danger to the interests of truth, in the case where the side on which the proposed species of evidence is proposed to be adduced, is the plaintiff’s side. Placed on the opposite side, the danger, in other respects the same, will be apt to present itself, at least to a first glance, as not rising to equal magnitude. In the character of plaintiff,—give to a person disposed to depredation a full assurance of success,—the number of such predatory enterprises that will of course be engaged in, is plainly infinite. But the number of defendants, it may be added, is limited by the number of plaintiffs: which being the case, the number of defences, of malâ fide defences, constructed upon the ground of the species of fraud in question, can never exceed, nor so much as equal, the number of bonâ fide demands.
On a more attentive consideration, the primâ facie inequality, though perhaps it will not vanish altogether, will, however, lose much of its magnitude. Various and many are the cases in which the station of defendant and that of plaintiff will present themselves as being equally capable of being occupied in the prosecution of a plan of dishonest enterprise looking to mendacity for its support. At one time, the power of the judge will present itself to the adventurer as an instrument sine quâ non for putting him in possession of the object of his concupiscence: and then it is, that the side he possesses himself of is the plaintiff’s side. At another time, either force or fraud in some other shape will present itself as the more eligible resource:—in this case he will put himself in possession of the object without any help from the judicial power, trusting to his plan of testimonial mendacity for the continuance of the advantage: and then it is, that having so done, he will stand at his ease, ready to act in the station of defendant, should the time arrive.
Should testimony extracted by epistolary interrogation be deemed of itself sufficient to ground a decision?
In this case, the party against whom it is most natural that the testimony should operate, stands deprived of the use of counter-interrogation applied in its most searching and efficacious mode.
That testimony extracted in this inferior mode should be admitted, even when there is no possibility of its being encountered by testimony extracted in the superior and more searching mode from the same source, is what has already been observed.
If admitted, in circumstances where, physically or prudentially speaking, the encountering it with testimony extracted from the same source in the more searching mode is not practicable,—shall it be regarded as sufficient to ground a decision on that side, when and although unsupported by testimony extracted in that best mode from any other source?
The proper answer will, in both instances, depend upon the importance of the suit: and of importance the most prominent criterion (though, without ulterior distinction, by no means a determinate one) is the distinction indicated by the words penal and civil, in the sense in which civil is used as synonymous to non-penal.
There are some cases in which the possibility of a decision grounded on such evidence, if to the prejudice of the defendant’s side, might be productive of such a degree of alarm as it might be found eligible to obviate. Such are—
1. Criminal causes in general, of that class which, the offence not striking against any one individual more than another, would naturally have government itself for its prosecutor, by the instrumentality of some public officer appointed for that purpose. Offences against the authority of the government—offences against justice (and not affecting individuals)—offences against the revenue—may serve as examples.
2. Even in the case of those offences which, though striking in the first instance only against a determinate individual, are (in consideration of the magnitude of the mischief with which they are pregnant) marked out as objects for punishment, in addition to the burthen of satisfaction—the mischief of misdecision, in case of injustice, to the defendant’s side, may still appear too formidable to justify the leaving men exposed to suffer punishment on the ground of such untrustworthy evidence.
Even in any the most trifling class of cases, supposing the decision of the judge bound by the evidence (or, though not so bound, supposing him not sufficiently upon his guard,) the mischief that might be done by the testimony of expatriated and unjusticiable witnesses might be boundless.
But (as will be shown in its proper place* ) it is contrary to justice, that, by a mass of evidence of any description or to any amount, decision should in any case be forced; and, as to the judge’s being upon his guard against weak evidence, it is no more than what he ought to be in every case: and evidence of a complexion beyond comparison weaker than this ever can be, is under every system received without scruple and without inconvenience.†
Of the heap of blind and mischievous exclusionary rules, which in every system of procedure are set in array against justice, one mishief is,—that testimony to such a degree deserving of confidence, that the party against whom it would operate would, through consciousness of its trustworthiness, be ashamed to declare any distrust, is nevertheless, on his application (or even without his application,) by the wayward zeal of the judge, set aside. Such would be the consequence, if the impracticability of subjecting the testimony of the witness to the test of counter-interrogation in the oral mode were established in the character of a peremptory bar to the reception of it.
Epistolary interrogation should not shut the door upon subsequent examination vivâ voce.
A person deposing (whether spontaneously or ex interrogato) in the way of written correspondence—ought he to remain liable, at the discretion of the judge, to be examined vivâ voce?
He ought.—Reason: That, while deposing under this less close scrutiny, his testimony may be the more effectually confined within the pale of truth, by the prospect of being subjected, upon occasion, to the still closer scrutiny.
This prospect may be expected to have upon the mind an effect not much inferior to the thing itself. The inconveniences, the consideration of which gave birth, in the character of a final cause, to the substitution of the less efficient security for truth to the more efficient, are in so far avoided; at the same time that the advantage looked for from the more efficient security, may frequently, in a considerable degree, be obtained.‡
The employing in the first instance the less trustworthy and efficient, but at the same time less dilatory, vexatious, and expensive, mode of scrutiny, is a sort of experiment, the object of which is to save the quantity of inconvenience which, in the shape of delay, vexation, and expense, would, under the circumstances of the case (circumstanced as the persons concerned are, with relation to each other, in respect of local distance,) be inseparable from the employment of the more trustworthy mode. Does the experiment fail? then, unless the more trustworthy mode be employed in dernier resort, misdecision, failure of justice, or positive injustice, must be the consequence.
The mischief of the failure of justice, or positive injustice, being given,—the comparative eligibility, as between one mode and another, depends upon the magnitude of the collateral inconvenience. But if, on the occasion of the investigation, an act of mendacity, an act of perjury, comes to have been committed,—here comes a fresh offence, the impunity of which (were the offence to prove successful) would be to be added to the original injustice. A mass of collateral inconvenience, which would not have been worth producing for the sake of rectifying the original injustice, may now be worth incurring, when, in addition to the redressing of the original injustice, comes the benefit to be reaped from the punishment of the incidental crime. Were even the mode of examination by written correspondence out of the question,—to fetch a man from a place at the distance of a month’s journey, to decide a dispute relative to the value of a week’s labour, would hardly be worth the while. But the account of profit and loss wears a very different face, when, to the rendering of justice in the original dispute, comes to be added the benefit of stripping of its nefarious profit so mischievous a crime as perjury.
The door ought not to be shut against the employment (when needful) of both modes, alternately and repeatedly, in any order.
Reason, as above: As a necessary security against incorrectness or incompleteness, and thence against misdecision, in certain cases.
To the demand which, in some cases, will present itself for the repeated examination of the same person, and even in a certain sense to the same facts, there are no uniform and certain limits.
The demand which, after vivâ voce examination, may present itself for ready-written deposition, has already been brought to view. But there is no sort of writing—no sort of written testimony, to which it may not happen to require explanation, and that (as already observed) ultimately by word of mouth: which is as much as to say, by vivâ voce examination: and in this case (as well as so many others which frequently occur,) to the sort of alternation and repetition here in question there are evidently no certain limits.
1. The testimony of Primus has been received. Comes Secundus, and gives a testimony which seems difficulty, if at all, reconcilable with that of Primus: for explanation, it seems necessary that Primus be re-examined. By confrontation, the doubt might have been cleared up; the two conflicting testimonies reconciled, or the truth of one of them, and the falsity of the other, established. But, by the supposition, such confrontation,—that is, the appearance of both in the presence of each other and of the judge,—is either physically or prudentially (as yet at least) impracticable.
2. Primus and Secundus have or have not been confronted as above. But, since that time, Tertius, another witness, with or without an article of written evidence or an article of real evidence in his possession, has been discovered. Hence demand for explanation—further demand for examination at the hands of Primus, and perhaps of Secundus.
To the chain of these contingencies there is evidently no determinate assignable end.
Observation. In respect of the possible length of delay, vexation, and expense, the prospect just given may be apt at first sight to appear formidable. But, whatever it be, it is produced by the nature of things; and, whatever it be, it requires to be provided for. It is produced by the nature of things, and not by any particular system of procedure; much less by the natural system, in contradistinction to the technical,—the technical, by which such an enormous load of factitious and unnatural complication has everywhere been produced.
To whomsoever else the view may present itself as formidable,—to the eye of an English lawyer there is nothing in it, which, with anything like consistency, he can find any pretence for being startled at. Twice, three times, four times over, under his system, we shall see the testimony of the same individual received to the same facts; and this not on account of any particular demand that there is for it, any demand presented by the particular nature of the case, but because (without regard to the demand) such has been the practice in this or that sort of suits, of which the plaintiff sometimes has not the choice. In one individual instance out of ten, this reiteration may perhaps have its use (viz. as a security against misdecision:) it is accordingly employed in the other nine, in which it is useless, and where delay, vexation, and expense, are the fruit, and the only fruit, of it.
Incongruities of English law in regard to the application of epistolary interrogation.
As to the form of testimony, we have seen that which, wherever practicable, viz. as well prudentially as physically, is the most eligible; viz. the vivâ voce form, subject to cross-examination, and fixed by writing as it issues. We have seen at the same time, that, in this form, cases are not wanting in which, either in the physical or the prudential sense, it is not practicable: the impracticability being, in either case, either temporary or definitive, as the case may be. In the case where, in either sense, the obtainment of the best species of testimony is impracticable,—and in such case, whether the bar be but temporary or perpetual,—it is necessary to recur to another, which of course ought to be the next best mode. Lastly, we have seen what is this next best mode; viz. examination in writing, or delivery in writing subject to examination in writing, in the way of written correspondence.
Another thing that either has been observed already, or (if not) will naturally be assented to as soon as mentioned, is, that in the justmentioned scale of eligibility no variation can be produced by any variation in the relative quality of the examinee—by any relation it can have happened to him to bear to the cause; whether, for example, that of an extraneous witness, or that of a party (whether plaintiff or defendant) in the suit. Setting aside the associations produced by habit—the prejudices which never fail to grow out of existing institutions,—what could appear more capricious or absurd than to say, In the case where the deponent is a party, the examination (if any) shall be performed in the way of written correspondence; and this although he be close at hand, ready to be examined vivâ voce;—in the case where the examinee is an extraneous witness, he shall never be examined in the way of written correspondence. If provision has been made by law for the examining him in the vivâ voce way, so be it; if not, he never shall be examined at all!
This absurdity—this inconsistency—this source of palpable injustice, is on the list of those absurdities, inconsistencies, and sources of injustice, which never cease to be contemplated with such imperturbable complacency by English judges.
In common-law procedure, in cases not penal, no party (on which side soever of the cause he stands) can depose or be examined in either mode. In equity procedure, the plaintiff cannot, in either mode: the defendant may be, and indeed cannot but be, in one mode; but it cannot be any other than the ready-written mode. To perform such examination is the function of the bill, as it is called—the instrument with which the suit commences.
You have agreed with Fundarius for a piece of land, which he was to sell or let to you; but it was with an agent of his, and not the principal, that the business was all along transacted, except from the report made to him by his agent, the principal knows nothing of the matter. What says equity to this?—English equity? The principal, who knows nothing about the matter,—him it forces you to examine in the first instance; the agent, who knows everything,—him, in the first instance, it does not suffer you to examine.
Not that, in the case of an extraneous witness, deposition in the ready-written form is uniformly prohibited. On the contrary, it is in most abundant use. In use—but upon what terms? Upon these terms, viz. that the test and security of cross-examination be not applied to it. So this check to incompleteness, incorrectness, temerity, and mendacity, be but out of the way, judges (English judges) are never tired of hearing it: among pecuniary causes, those of the highest importance are every day decided upon this unscrutinized evidence and no other.
Let it not be thought that, in the reception given to this species of evidence, prudential impracticability—inconvenience to any amount in the shape of delay, vexation, and expense—has had any the smallest influence. The witness may be actually in court under their eye; if it be a case for affidavit work, they are better taught than to hear him open his lips upon the subject, much more so than to put a question to him, or suffer a question to be put to him by anybody else. Practice forbids it—forbids it in those regions where reason is a pigmy, practice a Colossus. Be the man who he may, be he where he may, the examining him cannot (it is evident,) unless by factitious institution, be clogged by any greater mass of expense, vexation, and delay, in the case of his being an extraneous witness, than in the case of his being a party to the cause.
The inferior, the less trustworthy, mode, is admitted; but on condition that nothing be done by which its untrustworthiness may be mitigated:—admitted, and that to the exclusion of the mode universally acknowledged to be the most trustworthy; and in cases where the excess of expense, vexation, and delay, is on the side of the least trustworthy mode.*
For illustration’s sake, apply to vivâ voce deposition this exemption from adverse scrutiny, and observe the consequences. In the sunshine of a trial by jury, or in the darkness of an examiner’s office, suppose an extraneous witness produced to tell his story, and telling it accordingly—no man living being allowed to put a single question to him—neither the examining clerk at the office, the invoking party, the adverse party, nor the judge at the trial;—the absurdity being without a precedent, or nearly so, in English law, the imagination of an English lawyer starts at it.—Instead of being delivered vivâ voce, let a testimony from the same person and to the same effect be delivered ready-written, i. e. in the form of an affidavit; the case is now reversed. The imagination of the sage is now no less grievously shocked by the idea of putting any such questions, than before it was by the idea of not putting them. By precedent, reason is turned into absurdity, absurdity into reason—vice into virtue, virtue into vice.
[* ]Viz. under some such title as that of forthcomingness, i. e. the means of providing for the forthcomingness of individuals, in the respective characters of parties and witnesses—extraneous witnesses. [See Principles of Procedure, Chap. XVIII. § 4, “Procedure inter distantes,” Vol. II. p. 99.]
[† ]The mode of receipt and extraction by written correspondence would hardly have suggested itself to a person whose views were bounded by the line that circumscribes the range of the Roman mode of procedure: it would hardly have suggested itself to a mind unacquainted with English practice.
[* ]Of this nature is the mode of procedure, as far as it goes, in the English equity court. The first instrument that makes its appearance is called a bill. In this bill (in the first part of it, called the charging part) the plaintiff, without oath, delivers his testimony; to which, it being without oath, no credence is given by the judge. The second part, called the interrogative part, is the instrument he is allowed to employ for the extraction of the defendant’s testimony: which, being delivered upon oath, is considered as having, with certain limitations, the force of testimony. Such is the mode of procedure, even if the plaintiff and defendant live in the same house; or if, being attorneys practising in that same court, they meet one another in court every day in the presence of the judge:—but such, it is evident, and with somewhat better reason, might be the practice, if, one or both residing out of the jurisdiction of the court, the relative situation of the parties were at the antipodes.
[† ]Few cases present themselves as more proper than this, for imposing on the party the obligation of recurring to the assistance of a professional advocate.
[* ]See Book IV. Preappointed; Chap. VII.
[* ]Book IX. Exclusion; Part VI. Disguised; Chap. IV. Conclusive.
[† ]See Book V. Circumstantial; and Book VI. Makeshift.
[‡ ]In the British government, in the instance of some of the taxes imposed of late years upon income, this exemplification of the maxim fortiter in re, suaviter in modo, has been employed, and apparently with very good effect. A deposition, expressive of the particulars of a man’s income, was received from him, according to a prescribed form, in the way of written correspondence, power being at the same time given for examining him on the subject, if thought necessary, vivâ voce, in the first instance, upon oath. Under this power the usage has been to perform the examination in the first instance without the administration of the oath; it being understood at the same time, that, should it appear necessary, the oath may be administered at any time. Under these circumstances, the apprehension of the oath (there seems reason to believe) may in general have exercised an influence not materially inferior in effect to the oath itself. For, in case of previous mendacity or evasion, no sooner would the oath have been administered, than, upon a repetition of the examination with the assistance of that sanction, the delinquent would be reduced to the alternative of risking the future consequences of perjury, or exposing himself to immediate shame.
[* ]What is scarce worth observing (unless it be for illustration) is, that in cases where examination in the vivâ voce mode is impracticable, if there were any reason why examination in the ready-written mode should be admitted in the one case and not in the other, it is rather in the case of an extraneous witness that this less coercive mode should be allowed of,—in the case of a party whose testimony is desired on the other side, that it should not be allowed of. Why? Because, in the case of a party (the defendant,) you are sure of an interest—an interest acting in a sinister direction, and of a strength running in proportion to the whole relative value of the matter in dispute: whereas, in the case of an extraneous witness, it is but by accident that there is any such sinister force to cope with; and though there be, it is not likely to be equal in strength to that, the influence of which the veracity of the defendant stands exposed to.