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

CHAPTER X.

EPISTOLARY MODE OF INTERROGATION, HOW TO APPLY IT TO THE BEST ADVANTAGE.

§ 1.

Rules to be observed, what?

As between the oral, or say colloquial, mode of interrogation, and the epistolary,—the epistolary, being unsusceptible of some of the securities with which (under the name of sub-securities) the oral mode has been seen to be provided,† is not the most eligible. But (as hath been seen) there are cases in which the oral alone is not sufficient; others, in which it is not capable of being applied.

The epistolary mode being therefore a mode of extraction not to be dispensed with,—remains the problem, how to apply it to the best advantage.

To apply it to the best advantage, is to apply the best remedies which the nature of the case admits of, to the disorders to which both modes are exposed, but the epistolary in a manner peculiar to itself.

The remedies are these—

1. Let not the deponent speak otherwise than in the first person,—I did or saw so and so: exactly as when interrogated in the colloquial mode: not in the third person,—defendant did or saw so and so; as, under the technical system, has become the general practice. Deposition never but in the first person.

2. Let both discourses, that of the interrogator, and that of the proposed respondent, stand divided into parts, uncompounded, short, and numbered: the interrogatories, that the responses may be thus short and manageable; and the responses, even in cases where, the statement or narrative drawn forth by a single interrogatory being long and complex, the interrogatory admits not of any correspondent comminution. In the instruments on all sides, the paragraphs short and numbered.

§ 2.

First rule—That the deponent speak always in the first person.

The first of these rules is so obvious, that it would have been unnecessary to make mention of it, but for the frequency of the contrary practice—a practice, the absurdity of which is too flagrant to be covered by anything but custom; that veil, by which no absurdity, nor any improbity, is too flagrant to be masked.

To no honest purpose was a man ever made or suffered to speak in the third person, in the way of testification. On his examination before a jury, conceive a witness speaking in the third person, in a manner in which, when a pen is put into his hand, he is forced to speak by lawyers—speaking of himself as if he were one beside himself,—what a burst of scorn and laughter among those same lawyers! He would be treated as if he were one beside himself in another sense.

Thus simple is this arrangement: it is purely negative. On this important occasion, adhere to those modes of speech which in common conversation no man ever thinks of swerving from. Abstain from those artificial forms which probably had deceit and depredation for their object, and certainly have never had any other than mischief for their effect.

Read as you would speak, is the fundamental precept in the art of reading: it is the precept of good taste. Write as you would speak, at any rate in the same person as you would speak in,—is a law in the enactment of which good taste concurs with probity.

Prevention of incorrectness and incompleteness, especially when incurred through temerity or suggested by mendacity, is the main advantage: prevention of indistinctness and redundance are ulterior advantages attached to it—advantages of subordinate rank, yet surely not to be despised.

1. Prevention of incorrectness and incompleteness. When a man speaks in his own person, he considers what he says to be his own discourse, and himself to be in the highest degree responsible for it. To a man expressing himself in this form, the idea of responsibility is in the highest degree impressive. When he is made to speak in the third person,—to speak of himself as he would of another person, the idea of responsibility is apt to be in a considerable degree fainter. He scarce knows in what character to consider himself—whether in that of the author, or only of the subject of the discourse. Does he find himself tempted to swerve from the line of truth? Self-deceit conceals from him his own image in the character of the author, bids him consider himself as the subject, and look for the author in the person of the professional scribe by whom he is thus spoken of, and who, in fact, is the author of the words.

2. Prevention of indistinctness—prevention of ambiguity and obscurity, and thence unintelligibility (temporary at least:) in the language, whence ultimately delay, vexation, and expense, perplexity, and frequently incorrectness, on the part of those who have to study the deposition and reply to it. When the author of the discourse is spoken of, not in that his distinctive character, but in that character which is common to him with every other person—to know, on each occasion, which is meant, is matter of perpetually-recurring, although it should be but momentary difficulty.*

3. Prevention of circumlocution and unnecessary voluminousness; whence again delay, as above, with the etceteras in its train. One he not being of himself distinguishable from other hes, an addition such as this deponent is a sort of badge which it becomes necessary to pin upon him, as often as he makes his reappearance upon the stage.

On all legal occasions on which spontaneous deposition in this form is employed (and in established practice there are few instances in which it is employed in any other form,) the transfiguration is of course the work of the man of law. Whatever may have been the object—in point of tendency and effect it may be reckoned as one of the most efficient of the numerous arrangements by which the distinctive points of individual character have been worn down, and the important boundary-line which separates sincerity from insincerity,—veracity from mendacity, rendered more and more obscure. A court of justice is thus converted into a sort of masquerade, to gain admission into which, instead of a domino, the suitor or other witness is obliged to swaddle himself up, not in a fool’s coat, but in a sort of knave’s coat; or (to use an appellative not many years ago applied in vulgar language to a particular sort of surtout) a wrap-rascal—anhabiliment manufactured for him, and sold to him at masquerade price by his lawyer.

Nothing can be more commodious than this dress to the wearer, where he happens to be in the wrong, and conscious of being (what it is the tendency of this dress to render him) a knave. At any rate, be the wearer honest or dishonest, nothing can be more convenient than it is for the tailor who has the making of it. Between the one and the other, responsibility, no small portion of it, evaporates, and is lost. The lawyer scrawls through thick and thin, and fears nothing: let the mendacity be ever so great, and though it have been brought under the predicament of perjury, not on him will attach the punishment, or so much as any part of the shame. The suitor, or the partial witness, bribed by his wishes to regard as right that which he feels to be so favourable to his purpose—the respondent, be he a party, be he a hired or partial witness,—signs with convenient obsequiousness whatever is pronounced to be right by one who knows so much better what is right than he does. Though here and there a point may present itself which does not coincide exactly with the rigid line of truth, it may (for aught he sees, or chooses to see, to the contrary) be among those points of form, which in law are so numerous, so sacred, and so inviolable. By lawyers of all classes on an infinity of occasions, and by suittors in all causes, under the compulsion of men of law, I see uttered (says he) in abundance, propositions upon propositions, which are known by everybody to be false. So much falsehood in law, and so much of it by which I am prejudiced—shall all opportunity of compensation be neglected? Shall there be none by which I am to be served? And, after all, if there be falsehood, whose falsehood is it? Not mine: it is not I that speak—I am the person spoken of: it was not I (says he) that penned it—not I, but one who knows so much better than I—the professional guardian of my conscience.

True it is, that a mental apology of this sort will not save a man from the pillory—it will not engage him to set his hand to falsehood, when he understands clearly that there exists sufficient proof of it, and that prosecution will be the consequence. But when he understands as clearly that proof sufficient for conviction is wanting, or that (though it exists) prosecution is not to be feared—in a case like this (and how abundant are such cases!) if downright open-eyed mendacity be not the result, how natural and frequent will be a relaxation of that vigilance which is so necessary to weed out from the ready-prepared and scientifically-planted ground every germ of serviceable incorrectness? Thus slippery, on an occasion of this sort, is the position even of the most cultivated mind, how much more so that of a mind taken at random from the ignorant, and undiscerning, and precipitate, and, on such occasions, blindly obsequious multitude?

It is not without an exertion of intelligence, as well as probity, that a simple man can bring himself to contradict a misrepresentation thus put into his mouth: before he attempts it, he has to surmount the awe which self-conscious ignorance cannot but feel at the thought of opposing itself to reputed science. Thus stands the case, while he is hearing or poring over a dark and unaccustomed formulary, to which indeed he is to set his hand (for so the forms require,) but in which he is spoken of as if he were somebody else, by an unknown somebody. But the pronoun I—the interesting pronoun I, with which so many lively ideas, so many acute sensations, are associated,—the pronoun I acts as a spur to attention, and preserves the innocent from dropping into the abyss of falsehood, while slumbering and nodding over the lullaby of his nurse.

As to the man of law, besides that he has nothing to lose by the falsehood, he has much to gain by it, he has everything that is to be hoped from the exultation and gratitude of his client and the reputation of success, and of the ability and science that insured it.

Viewed in the light of incongruity, nothing can be more grossly absurd than this practice. The deponent is the person spoken of: but who is the speaker? Nobody. Instead of the plain truth, you have an absurd and useless (besides being, as shown already, a mischievous) fiction: the man is split into two persons, the one speaking of the other: or, he remaining unsplit, an ideal person is fabricated to speak of the real one. Evidence of prime quality—immediate evidence—is thus converted into evidence of a bad and slippery texture—hearsay evidence, the supposed or percipient witness is the so-styled deponent, but the deposing witness is nobody knows who.

In point of history (not to speak of motives, and other such causes) whence comes this sophistication? Evidently from the man of law. To the production of this effect, even the relative situation of lawyer and client seems of itself sufficient, with or without the aid of sinister policy and reflection on the part of the directing mind. To vivâ voce discourse, whether in the way of responsive or spontaneous statement, no man so simple as not to be competent: the talent of writing was a possession so rare (I speak of the times when law was in her cradle) the talent of writing was the object of little less than a monopoly—the talent of writing for law purposes was the object of a complete monopoly—in the hands of the man of law. In this way, the simple and unlearned suitor or witness was altogether unable to give any sort of account of his own thoughts: whatever account (if any) was to be given of them, came necessarily, and (as far as individual words were concerned) really and truly, from a third person; and that third person was the man of law. The unlearned man being incapable of giving in this learned way any account of his own thoughts, his learned guardian took upon himself to give a learned and proper account, to his friends and brethren upon the bench, of the poor client’s thoughts. Hence comes the division of functions, or at least of characters and situations: the persons spoken of, the client; the spokesman, the man of law.

Even when the art of writing came to be more generally diffused, this assistance was not without pretence, nor even without use. Left to himself, a deponent—an average deponent—will run wild: the testimony he delivers will be whatsoever it is most pleasant to himself to deliver, so as not to be unsafe: relevancy, if at all an object, will be at best but a secondary one. It will be continually wandering from the mark: his lawyer—a professional lawyer—stands engaged, by a sort of professional responsibility, to keep him to it.

In the oral mode, every excursion of this sort is stopped at the first step. Being productive of so much unprofitable delay—producing vexation to all present, and no increase of profit to the man of law,—the advocate on the same side, no less than the judge, and the advocate on the opposite side, is upon the watch to stop it. The closet, in which the epistolary response is penned, affords no such bars.

Thus natural, and even thus useful, it was and is, that, in the framing a mass of testimony to be delivered in the ready-written mode, a deponent, not being a lawyer, should have a lawyer at his elbow.

But that the discourse so delivered, and with this assistance, should, in form any more than in substance, be the discourse of any person other than of him whose discourse it is said to be, neither was, nor is, nor can ever be, of any use: on the contrary, in the shape of an encouragement to incorrectness and incompleteness, as well in the way of mendacity as of temerity, we have seen of what mischief it is productive.

§ 3.

Disregard shown to the first rule, in English law.

Comparatively speaking, the ground on which interrogation ex scripto has found its exemplification under any branch of the technical system, is extremely narrow.

Under the Roman system, no such arrangement is to be found. Under that system, either interrogation has no place—or, if employed, it is performed coram judice, and in the vivâ voce mode, and by the judge only, as well as in his presence.

It is only under the English system that any example of it can be found; viz. that which is afforded by a bill in equity. In this case, the respondent is always a party; and that on one side only of the cause, the defendant’s side: the interrogator likewise is never other than a party, and he on the opposite, the plaintiff’s, side of the cause. The defendant, who is punished if he does not answer (punished in the first instance as for contempt of court, and ultimately by loss of the cause,) is not permitted to answer by himself. To entitle himself to the privilege of delivering in an answer, he is forced to take in a partner for the manufacturing of it: in fact, two partners—one of the attorney class, whose name does not appear in the firm—another of the advocate class, whose name does and must appear in it. The iniquity of thus forcing upon a man this burthensome assistance, and the shallowness of the pretences on which this part of the system of extortion has been attempted to be justified, belong not to this place.

What does belong to this place is, that,—if the different orders of leeches thus fastened upon a man were ever so necessary, and ever so much more numerous than they are,—the propriety of the respondent’s being suffered and made to speak in his own person (in other words, the propriety of suffering and obliging the proper person to speak in his own person, and not suffering a wrong person, known or unknown, to speak of and for him,) would not be the less, but rather the more, incontestable. Neither reason, nor so much as pretence, can apply to anything more than the stopping him from saying something that ought not to have been said: neither reason nor pretence can assign to the man of law any other function than that of obliteration: whatever is said, whatever is suffered to be said, it is from the non-lawyer surely, not from the lawyer, that it is intended it should come. But, if the testimony delivered by the defendant in the character of deponent is really to be his, and not the lawyer’s—the produce of the client’s recollecting, not of the lawyer’s inventing,—it is surely in the person of the real deponent, not in the person of another man who knows nothing about the matter, that whatever is delivered ought to be expressed.

The part which the suitor has thus been forced to call in a lawyer to take, in the delivery of his (the suitor’s) testimony, accounts in a satisfactory manner, in the character of an historical cause, for the absurdity which gives to what is (or at least ought to be) immediate evidence, the form of hearsay evidence. But in the character of a rational cause, a cause demonstrative of the propriety of the effect (that is, of its conformity to the ends of justice,) it is as incompetent as, under the technical system, the historical cause of the existing arrangement is almost in every instance sure to be.

That the absurdity here reprobated is the work, not of the non-lawyer—of the party or witness,—but of the man of law—that it is amongst the frauds of the technical system, is evident enough. When, on a judicial occasion, a man expresses himself in writing, nowhere is he suffered to express himself in his own words.

Under the Roman system, though a respondent answers vivâ voce, and though a discourse pretended to be his is committed to writing and employed in evidence, the discourse thus given for his is never his: in purport, perhaps, sometimes; in tenor, never. The judge, scribe, and deponent, being shut up, without any other person present in the closet of the judge,—the judge puts a question—the deponent speaks in answer; the scribe sets down as the substance of the answer what the judge pleases—the deponent signing it, or entry made of his refusal to sign it.

Under the English system, it is only in the equity courts that interrogation is permitted, and, in these, one of the parties only (viz. the defendant) is allowed to be interrogated; and, being interrogated, it is in this scriptural mode only that he is interrogated—it is in the scriptural mode alone that he is admitted to deliver his responses. To deliver his responses? No: not his (singly, at least,) but responses delivered in partnership—in partnership with an attorney for a non-apparent partner, and an advocate for an apparent as well as real one. The party signs, and the advocate signs: the party or the attorney has the initiative, but the advocate has a negative upon every syllable.

A negative, how and why? Why, because, without the signature of an advocate, the answer will not be received. If he does not give in an answer, he is punished—punished as for a contempt of the judge in the first instance, and ultimately by the loss of his cause. If he were to give in an answer, it would not be received—not received, until, being tinkered by the advocate, it ceases pro tanto to be the answer of the client. Well then and properly may he be spoken of, since it is not he that is permitted to speak. The judge, with a sword called the sword of justice in his hand, forces him into the shark’s mouth.

To power, pretence is never wanting: and where power is irresistible, no pretence so shallow but it may serve. Left to himself, the non-lawyer, forsooth, might stray into the path of irrelevancy—he might write surplusage. What is certain is, that the man of law writes surplusage. A certain quantity of that commodity is sanctioned by professional custom: the man of law finds himself under a happy impossibility of omitting it. A certain and constant inconvenience is thus produced, on pretence of preventing a possible inconvenience of the same kind. Nor yet without an attorney, is a man, here any more than elsewhere, admitted to defend himself. What is there in the attorney, that should hinder him from being responsible, and of himself sufficiently responsible, for the non-insertion of unaccustomed surplusage? But the attorney has not been the brother in trade, and companion of the judge: the advocate has.

If such tinkering be necessary, or in any degree serviceable, to the interests of truth and justice, why not give vivâ voce testimony the benefit of it? Why not, in a trial at common law, station an advocate between the jury and the witness, to receive his testimony and improve it—to make it what it ought to be, and keep back what it is?

One plain proof there is that this ostensible ground is not the real one. Take it all together—take the whole stock furnished by all the courts—the quantity of uninterrogated evidence delivered in this mode, exceeds by far the quantity of interrogated. Even in the courts of equity themselves, the number of affidavits is not inferior to the number of answers: for, though interrogated written evidence is not admitted but on one side (the defendant’s side,) uninterrogated evidence is delivered, affidavits are delivered, in indefinite numbers, on both sides. No advocate’s name is ever signed to an affidavit. Why is it not? Is there anything in the want of interrogation to render surplusage impossible?

This improvement remains yet to be made: for in this line there has never been any backwardness to make improvements; nor, under the technical system, ever can be.

In Anglican procedure, in the courts called Common-law courts, where the trial is by jury, the testimony is in general delivered in the form of a deposition vivâ voce and ex interrogato: interrogato autem non solum judicis, sed etiam, et præcipue partium. No official perpetually-remaining minute being in this case taken by any special scribe (for, as to the judge’s notes, the treatment given to them is the same which was given to the Sybil’s leaves;) it is not known in what person it is, whether the first or the third, that in these recondite documents the defendant is made to speak; in the first or the third, according to the inspiration received by the modern Sybil in each particular instance.

But in a number of instances much greater (I speak of individual instances,) in almost all instances in which the information thus collected is treated as if it were worth preserving, the testimony is delivered in the ready-written form: and in all those instances, the only person in which the deponent is suffered to speak is the third.

Take up an English trial (I speak of trial at common-law:) if the subject be interesting, the very evidence is amusing: it is in the form of ordinary conversation; it is in the dramatic form; it is the drama of real life.

Take up the history of an old French law-suit, the evidence is absolutely unreadable; it is the same dull formulary in every case. Of the witness you see nothing—you see nothing but the lawyer: what you see plainly is, that nothing could have really passed exactly as it is there represented to have passed: what you cannot hope to see, is, how anything really passed. Accordingly, in the Causes Celebres, you know nothing of the evidence: all that you see—all that you could bear to see, is the account (faithful or unfaithful) given of it by the advocates, together with the observations which they ground on it.

In a suit in equity, the evidence is collected and worded exactly as under the old French law. The evidence, of course, is equally uninstructive, uninteresting, unreadable. Accordingly, you scarce ever meet with a publication containing at large the evidence taken in a court of equity.

In the English Romano-ecclesiastical courts the evidence is on the same footing. Here, indeed, histories of causes—publications answering to trials at common law—are at least sufficiently abundant. Why? Because the subject is adaltery: and on this subject at least, the adage holds good: Historia quoque modo seripta delectat.

§ 4.

Second rule—Paragraphs short and numbered.

The other rule which has been already mentioned as essential to the proper application of the epistolary mode of interrogation, is, that both discourses, that of the interrogator and that of the respondent, be divided into numbered paragraphs: or, more particularly, thus:—

1. Questions uncompounded, short, and numbered.

2. Answers numbered in correspondence with the questions.

3. Replies, if necessary (as in the case of exceptions for supposed insufficiency) numbered in correspondence with the answers, and thence with the questions.

4. Ulterior answers, if called for, numbered in correspondence with the exceptions, and thence with the original answers and the questions.

All these several arrangements, though in themselves distinct and distinguishable, require to be considered at the same time.

Of the answers (articles 2 and 4) original and ulterior, consists the evidence. It is for the sake of securing distinctness to this part of the conversation, that the principle of distinctness, the division and numeration, are required to be given to the questions, and to the exceptions or other observations.

Of these arrangements the object is to give the maximum of simplicity, and thence of facility, to the task of the interrogator: that the point of view under which the testimony is presented to him may be as clear and as distinct as possible: that in this mode the process of interrogation may be as clear as possible from that entanglement, to which (as we have seen) it is scarce in any degree exposed in the vivâ voce mode.

Of the above divisions and distinctions, what is the object and practical use? That, with as much certainty and as little trouble as possible, the interrogator may discern whether, of the questions contained in the instrument of interrogation, there be any, and if any, what, to which either no response has been given in return, or such a one as in any (and what) respect is insufficient.

Of the importance of the quality of distinctness—of the proneness of bona fides to be let fall by mental imbecility into the opposite evil quality, without intending it—of the natural eagerness with which mala fides avail itself of the opportunity of promoting its purpose undetected—of the readiness with which the inconvenience finds its remedy under the vivâ voce mode—and of the unhappy facility afforded by the scriptural mode to mala fides for swelling out the inconvenience,—enough has already been said. On the present occasion, what remains is, to show by what means the weakness incident to bona fides may receive the most effectual support, and the artifices of mala fides be most effectually obviated and counteracted.

Divide et impera, is a maxim of no less use when applied to the operations of intellectual power, than to those of physical and political power. The fable of the old man and his sons and the bundle of sticks, should on this occasion never be forgotten: nor yet (how widely different soever the fields of the two images) the emblem of the cuttle-fish—the fish which, to blind and confound its pursuers, deluges with a flood of ink the medium in which it moves. The special pleader and the equity draughtsman might interplead at the Herald’s Office for the privilege of taking for an armorial bearing this original manufacturer of troubled waters.

Division, however, is but of little use without nomenclature, without nomenclature, indeed (at least when intellectual objects are in question,) it can hardly be said to be performed. For to what use is division without distinction? And how can distinction be preserved without a name? Divided one moment, the parts of an idea unite again or are dissipated the next: it is by nomenclature, and by nomenclature only, that the division is either rendered permanent for the benefit of the operating mind, or communicable to any other.

In natural history, in botany, the objects themselves—the individual objects, are distinct enough, and, without the aid of names, distinguishable, while present to the material eye: but it is by nomenclature, and nomenclature only, that the attribute of distinctness can be preserved to them any longer,—that any one species (one might almost add individual) can be so much as spoken of. Accordingly, an observation that has every now and then been brought forward by those who have felt themselves disposed to depreciate that amusing study, is, that it consists of little more than a system of nomenclature. True: but what a fund of ingenuity, added to what a fund of knowledge, does it not require, in any branch of science, to bestow upon it a good system of nomenclature? It is because the subject of legislation is as yet in so barbarous a state, that its nomenclature is so too.

Among the logicians, an instrument of universal empire in the regions of intelligence was supposed to have been discovered by the invention of the syllogism. Yet, in truth, what is the exploit achieved by it: The dividing an argument into three parts or members, distinguished from each other by so many names,—names, in the invention of which (of two of them at least) not quite so much felicity has been displayed, as in those for which we are indebted to the genius of Lavoisier and Linnæus.

Characteristic names are names for the species, and for ever. Numbers are names and names adequate to the purpose, for the individual; which, when they have performed their transitory office, may slide into oblivion without damage to mankind: or even for the individual, however permanent, when, for the purpose of human intercourse, no species requires to be moulded on it. Numeration, therefore, is the sort of nomenclature most advantageously applicable to the different parts of which the ready-written testimony of a witness is composed: including the questions, if it is by questions that the testimony is called forth.

When the questions are thus distinguished one from another, so may the answers be;—otherwise, not. Suppose twenty questions duly distinct and numbered: so many questions, so many statements, or groups of statements, in form of answers. Each question having a name (viz. a number) which it may be called by, each answer has a name which it may be called by. The examinee, viewing each question separately, sees whether he has given a sufficient answer to it: so many questions to which he has thus given a sufficient answer, so much of his task is gone through: seeing this, as far as he has thus proceeded, he fears not to see his answers excepted to for insufficiency. The examiner, on his part, when the examination of the examinee comes to be transmitted to him, performs the same review with great facility. With each question he confronts the answer given to that question. To judge whether question 1 has received an answer, and that answer sufficient, he has no more of the examination to look for than the answer to question 1; and so in regard to question 2, and every other article in the list of questions.

Leave the questions unnumbered, what is the consequence? On the occasion of each question, the examiner has the whole of the examination to look over and study, for the purpose of judging whether, upon the whole, an answer sufficient with reference to that one question be to be found in it. The labour is thus twenty times as great as on the plan proposed; and the inlet to incorrectness, mendacity, incompleteness, delay, vexation, and expense, as above, twenty times as wide.

The more complex the interchange of communication is between examiner and examinee (as above,) the more involved will the mode of distinction by numbers be, as above.* But the more involved it is, the more necessary: for, without it, the more complex the above interchange, the thicker the confusion.

A numerical nomenclature of this sort is the only check that can be applied to the studied confusion that will naturally be manufactured by malâ fide suitors, and, occasionally at least, by the law-agents of bonâ fide as well as malâ fide suitors. When the whole examination is one unbroken chaos, and of the length that it is so apt to be, a malâ fide examinee makes or endeavours to make his escape, under favour of the confusion, and leaves questions unanswered, or insufficiently answered: an insufficiently attentive or malâ fide examiner, or his insufficiently attentive or malâ fide agent, overlooks, or pretends to overlook, answers; imputes or pretends to impute insufficiency to answers really sufficient; and takes exceptions accordingly. But as, in the proposed rule, the subject of attention is in each case drawn to a point, censure may the more readily attach upon insufficiency on the one hand, and groundless exception on the other; and so, by the fear of censure and of shame, abuse will be the more frequently prevented.

In case of obscurity, for want of employing the prescribed means of distinctness, the culpable party should be liable to the burthen of satisfaction:—Reason 1. To prevent misdecision. 2. To prevent, or make satisfaction for, expense, vexation, and delay.

Were it not for a provision of this sort, the consequence might be, that, by confusion, produced through carelessness, or even by design, considerable inconvenience in the above shapes might frequently be produced. A malâ fide suitor, or an extraneous witness under the guidance of a malâ fide suitor, might, by studied and persevering confusion, delay justice, and heap upon the head of the injured party expense and vexation without end.

Under the existing technical systems of procedure, the costs, mostly factitious, are so high, that, when properly applied, they operate in this way with still greater force than could have been wished. But, if the factitious part were removed, the burthen of bearing the remainder might frequently not be sufficient to restrain a malâ fide suitor from purposely producing those delays and vexations that might so easily be produced by those means. In certain cases, therefore, a suitor transgressing in this way ought to be subjected to an ulterior burthen in the shape of punishment. Otherwise he might be without a motive operating so as to restrain him from producing, to the injury of himself and others, the delay and vexation producible from this source. Where there is no assignable individual by whom any injury can be said to have been sustained, as in the case of a prosecution for an offence purely public, there is no party to whom satisfaction can be rendered, unless in so far as the nature of the offence may be to subject the public to a pecuniary loss. In such case (the case not admitting of satisfaction) if no burthen could be imposed under the name of punishment, the party under temptation might be frequently without a motive tending to restrain him from the offence.

It will generally be proper to subject a man, in such a case, to vivâ voce examination. Reason: Because, as already observed, vivâ voce examination is a sovereign remedy, and in some cases may be the only effectual remedy, against all such confusion as (by design, or through imbecility) is likely to take place in ready-written statements framed by designing or illiterate persons.

§ 5.

Disregard shown to the second rule in English law.

In English law, it is to the practice of the courts called courts of equity, that we must look for the only exemplification of the scriptural mode of interrogation, as above described.

In those courts, the business of interrogation is conducted upon two completely different plans.

1. In the initial instrument called the bill,—to a string of allegations not upon oath, nor expected to be true, succeeds a string of questions. The whole string constitutes one unbroken undivided chaos: not being broken down into paragraphs, it has, like a mathematical point, or an English statute, no parts: it has nothing to which numbers can be applied.

In spite of the cloud-compelling power of the draughtsman, a sort of natural principle of division will show itself. The force of the common interrogative proposition, “my will is, that you declare so and so,” being combined with different particles, as when, where, who, what, how long, and so forth,—as often as one of these particles is changed for another, a fresh and distinguishable question is brought to view. In spite of all the powers of darkness, this circumstance is sufficient to diffuse over the interrogative part a glimmering of light, such as cannot ever be discernible in the assertive part.

In reply to this instrument called the bill, comes from the defendant’s side of the cause an instrument called the answer.

The questions being squeezed together in one undivided mass, so of course are the responses of which the answer is composed.

The sort of person to whom, in the character of respondent, this mode of interrogation is applied, is the defendant, and the defendant only: not the plaintiff, he not being subject to interrogation in any mode: not any extrancous witnesses, they not being interrogated but in a different mode, which will come next to be described. The interrogator is the plaintiff, or rather the plaintiff’s advocate. For, lest the utterance of the falsehoods without which the judge would not give any effect to the bill, should experience any impediment from the probity of the unlearned client, he is neither called upon, nor permitted, to authenticate it by his signature.

2. When an extraneous witness is the sort of person whose testimony is to be collected, he is interrogated indeed, but upon a plan altogether different. It is in the Roman mode that the respondent is now interrogated.

This mode is a sort of mixed mode, partaking in some respects of the nature of the scriptural, in others of that of the vivâ voce, mode. It has (as will be seen) the disadvantages of both, without the advantages of either.

A string of interrogatories is drawn by the party at whose instance the testimony of the respondent is called for: by the party—that is, not by the party (for by the party they are not signed,) but by the party’s advocate, by whom, if made use of, they must be signed: for it is only on condition of seeing a learned brother fee’d, that this indispensable part of a judge’s duty will be executed by the judge: by the judge, that is, not by the judge by whom the decision grounded on this evidence is to be pronounced, but by another judge ad hoc, who has nothing to do with it.

The string of interrogatories thus drawn by an advocate, and an advocate who would take it as an affront if it was proposed to him to have any personal communication with his ultimate client—with the suitor—the only person who, of his own knowledge, is capable of affording him any information,—the string of interrogatories, thus framed, is put into the hands of the judge: understand the judge ad hoc—a sort of person of two different and almost opposite descriptions,* but which agree in this, that in neither case is he to bear any part in the decision of the cause,—that is, in applying to its only use the testimony he has collected.

Thus far the interrogation is performed ex scripto: interrogatories are committed to writing. But, though the interrogatories are committed to writing, it is in the vivâ voce form that the responses are delivered: delivered in the vivâ voce form, though thereupon the purport of them, or something which is to pass for the purport of them, is noted down, and drawn up in the usual official style. Interrogatories have been committed to writing: but it is not in writing that these or any other questions are communicated to the respondent. The only person to whom these written interrogatories are communicated, is the judge: to him they serve for instructions: and on him, besides serving simply in the way of information, they exercise thus far a sort of binding force, that, in so far as any of the questions contained in the instrument remains without an answer, the task given to him is not done.

Though to him communicated all together,—by him to the respondent they will of course be communicated separately: so that the mendacity-serving instruction, which in some cases might be deduced from a simultaneous view of the whole assemblage by a mendacious respondent, will not in this place be to be had.

Nor, by the tenor of the interrogatories thus put into his hands for his instruction, is the judge ever understood to be so strictly bound, but that he is at liberty to propound to the respondent any such other questions as may have been suggested by the respondent’s answers: which power the judge will of course employ, in a manner depending partly on his own individual turn of mind, partly on the relation which the interest arising out of his position bears to the interests of truth and justice: if nominated by the parties, each commissioner using his industry with more or less zeal for the benefit of that one of the parties by whom he has been employed; if otherwise selected, getting through the business as soon as it is in his power to get through it, observing that to each question there be some sort of answer—whether true or not, being no concern of his. Be this as it may, the mass of interrogatories is constantly broken down into articles, and those articles numbered: and it is to an article thus distinguished and denominated, that the answer entered upon the minutes bears reference by name: and it is always under the head of the interrogatory by which it has been extracted, that the response is entered; “to the first interrogatory this deponent saith,” and so forth.

The defendant comes sometimes to be interrogated upon the plan above described as calculated for the station of the extraneous witness. For interrogated, say re-interrogated: for, in his own station, and in the mode calculated for that station, he must always have been interrogated in the first instance.

In the case of the defendant interrogated in that character—interrogated in and by the plaintiff’s bill,—if the answer fail of being satisfactory, if in any part it be deemed incomplete or indistinct, an instrument is grounded on it on the part of the plaintiff, under the name of exceptions. In this paper (as in the paper of interrogatories framed, as above, for the interrogator of the extraneous witness, by the judge,) the mass is broken down into articles, and those articles are numbered.

For the purpose of grounding ulterior interrogations on the responses of which the defendant’s answer is composed—or when the answer, though complete and distinct, presents itself as being in any respect incorrect,—in the hope of exposing such its incorrectness, the plaintiff frequently, indeed most commonly, is advised to make amendments in his bill. These amendments, according to the number of the words respectively contained in them, are either inserted in the way of interlineation in the authentic exemplar of the bill, or subjoined in a separate mass. But, though subjoined in a separate mass, this supplemental mass, like the original mass, is one mass; the unity of the second not being, any more than that of the first, violated by any such operation as that of breaking it down into articles.

In the choice thus made of the two modes of interrogation—in the application made of them respectively to the respective stations—in the refusal of the principle of distinctness to the one case, in the allowance of it to the other,—there is nothing more than natural.

The more indistinct, as well as voluminous, the bill with its interrogatories, the more difficult will it be for the learned gentleman by whom the answer with its responses must be drawn, to make sure of having given to each interrogatory its complete and distinct response,—and thereby to take away, if by miracle he were so inclined, all occasion for exceptions. Thus it is that (here as elsewhere, under this as well as every other part of the system) by and out of business, more business is made. The more unintelligible the bill is, the more certain is the demand for work for the same learned hand, in the shape of exceptions.

The shoemaker when he makes a shoe, the tailor when he makes a coat, does not make a hole in his work for the sake of having it to mend. But, besides that flaws are not always so conspicuous in ideal as in physical work, no shoemaker finds a judge disposed to support him in the making of bad shoes: every advocate finds a judge determined to support him in making, in the way here described (not to mention so many other ways,) bad bills, and consequently bad answers.

To the instrument composed of interrogatories, this principle of distinctness is not refused. The reason—(I speak here of the historical and physical cause, not certainly of the justification)—the reason is no less simple in this case than in the opposite one. By putting or leaving in a state of confusion a mass of interrogatories, technically so called—of interrogatories that are to serve for instruction to the examining judge, nothing is to be got. By the learned drawer of the interrogatories, nothing; by the examining judge, by whom those instructions are to be made use of, perhaps as little: but, be that as it may, it is no concern of the draughtsman—no sort of relation subsisting between him and the obscure clerk, or the unknown country attorneys, to whom this indispensable part of the business of a judge (of every judge in whose eyes justice appears preferable to injustice) is turned over, as a matter of no importance, to the judge by whom the decision is to be pronounced.

On this head, as on others, the state of the practice (however in the first instance it may depend upon the subordinate lawyer, upon the office-clerk, the advocate, or the attorney) depends ultimately upon the superintending and ruling lawyer—the lawyer who, on pretence of expounding, legislates—the judge.

Originally, to all appearance, the judge to whom it belonged to decide upon the testimony, was the person, the same person, by whom the questions (if any) that were propounded to the deponent, were formed, and the answers to them received. But, in causes between party and party, such as those here in question,—the judge of himself knowing nothing, and caring not much more,—an arrangement always useful, sometimes necessary, was, that, in respect of the points to which the testimony of the deponent was to be obtained, information should be furnished by him whose purposes were to be served by it.

No man who is not paid for being perplexed, and in proportion as he is perplexed, likes perplexity. Every judge who does not make a preponderant profit by judging ill, derives a profit from judging well: that is, from being thought to judge well; for which the really judging well is the simplest and surest recipe. Even under the technical system, every judge, when he has no particular interest to the contrary, finds it his interest to judge well: for it is upon whatever reputation may be to be got by judging well, that he depends more or less for the patience with which the deluded public submits to the load of factitious delay, vexation, and expense, out of which, under that system, his profit, and even honour, is extracted.

Having, in case of confusion, certain perplexity to suffer from it in the first instance, together with a chance of disrepute in case of misdecision—nothing could in this state of things be more natural, than that so obvious a principle of distinctness should be laid hold of by the judge. When you lay before me a statement of the points which I am to examine, do not throw them altogether into a confused mass, but break them down into articles, distinguishing the articles by numbers. By this means, I shall see my way all along as I go; I shall see the progress I have made, and, as fast as an article is answered to, I shall mark it off as answered, and go on to the next.

But in the world of law, as in other world’s, when motion has once got into any track, vis inertiæ keeps it in the same track: and thus—when, for the accommodation of the ruling judge, this principle of facility had taken root—afterwards, when this principal part of a judge’s duty came to be turned over to an underling, the benefit of the accommodation fell, along with the duty, to the underling’s share.

The principle of distinctness, the division, thus refused to the parts of a defendant’s answer, but applied to interrogatories, is also applied to exceptions: to the instrument composed of a list of the points in respect of which the defendant’s answer is charged on the part of the plaintiff with being defective. Why to these exceptions, as well as to these interrogatories? For a like reason. The paper of exceptions being given in; if, by advice of his professional advisers, the defendant preferred the not giving in a further answer, the propriety of those exceptions was matter of argument before the judge. In this case, therefore, as in the other, some sort and degree of distinctness—something better than utter chaos, was matter of personal accommodation to the judge. The exceptions, therefore (as in the former case the interrogatories,) were to be, and were numbered. In the first exception, my lord, it is stated that, to the question to this effect, no sufficient answer has been given: if any such answer be to be found, the learned gentlemen on the other side will produce it.

The demand on the part of the judge for the principle of distinctness ceasing, the accommodation ceased along with it. If, instead of arguing the exceptions, the defendant, always under the orders of his professional advisers, submitted to make further answer,—in such further answer no mention was made of any particular exceptions. It was for the sake of the judge, that the principle of distinctness was employed: his profit was not diminished, his ease was served by it. The judge being here out of the question, the use of the principle ceased. With reference to the professional lawyer, the defendant’s advocate, it was useless: what was there for him to gain by breaking this second answer into numbered parts corresponding to the exceptions which gave birth to it? The first was not thus classified: to what use should the second be? In this case, as in the former, distinctness would, with reference to the only interests which had any claim to be considered, be worse than useless. From the second answer, if kept in a state of as convenient confusion as the first, may come a demand for a second set of exceptions: to which second set of exceptions a third answer would come to be made.

[† ]Vide supra, Chap. I. Oral Interrogation.

[* ]The perpetual confusion of persons attached to the practice of writing in the third person on the occasion of epistolary correspondence for the trivial purposes of common life (I say writing, for absurdity has not got the length of speaking in this mode), is a well-known source of ridiculous embarrassment, distressing enough in English, and still more in French, and most (if not all) other European languages. It seems to have been among the inventions of cold pride, to keep interiors and intruders at a distance.

[* ]Response 1, 2, or 3, to interrogatory 1, 2, or 3. Again, exception 1, 2, or 3 (exception, in English equity practice, means re-interrogation,) exception 1, 2, or 3, to response 1, 2, or 3, to interrogatory 1, 2, or 3.

[* ]In London, and within twenty miles, the judge ad hoc is a clerk in an office called the Examiner’s Office: beyond that distance, two persons called Commissioners, nominated one by each party: or, in some instances, two on each side. See above, Chap. VII.