The Online Library of Liberty

A project of Liberty Fund, Inc.

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

CHAPTER XI.

HELPS TO RECOLLECTION, HOW FAR COMPATIBLE WITH OBSTRUCTIONS TO INVENTION?

Correctness and completeness are, both of them, qualities, the union of which is necessary in every aggregate mass of evidence. Of a deficiency in respect of either, deception and consequent misdecision may be the result.

If, on the part of the witness, the testimony be the product of the imagination, instead of the memory,—incorrectness is, in so far, the quality given to it.

If, for want of such helps to which on the particular occasion it may happen to be necessary, recollection fail to bring to view any such real facts as with these helps might and would have been brought to view,—incompleteness in the mass of the evidence is the result.

But, by the same suggestions by which, in case of veracity, memory alone would be assisted and fertilized, it may also happen, and is but too apt to happen, that invention (which, where testimony is in question, is synonymous with mendacity) shall also be set to work, and rendered productive. To administer assistance to recollection, to veracity—to administer, not assistance, but obstruction, to invention, to mendacity,—in these we see two opposite, and, to a first view, irreconcilable, pursuits. How then to reconcile them? or, at any rate, to do what is possible to be done towards it? In this question may be seen a problem, the solution of which is no less conspicuous for its difficulty than for its importance.

The first point to be considered is, the natural opposition between the two ends. In the instance of any arrangement by which recollection is assisted, how natural, if not necessary and unavoidable, it is, that mendacious invention should receive assistance likewise? In the instance of any arrangement by which mendacious invention is obstructed, how natural, if not necessary, it is, that recollection should be subjected to interruption likewise?

From the observation of these several relations, results the following practical inference:—

To put a negative upon the use of an arrangement designed for the assistance of honest recollection, it is not sufficient to say, “Nay—for so it may happen, that mendacious invention shall moreover be served by it.” So again—

To put a negative upon the use of an arrangement designed for the obstruction of mendacious invention, it is not sufficient to say, “Nay—for so it may happen, that honest recollection shall moreover be obstructed by it.”

In each case, the question will be, on what side is the preponderant probability in regard to deception: be the measure a measure of assistance or a measure of obstruction, is it by the adoption or the rejection of it that deception is most in danger of being produced? For (except with relation to that effect), whether recollection be or be not obstructed, whether invention be or be not employed, is, with relation to the individual cause in hand, a matter of indifference. I say, with relation to the individual cause in hand, for, to the general interests of morality, whether mendacious invention be or be not practised, can never be a matter of indifference.

The next point to be considered is, how far the nature of things admits of the throwing obstacles in the way of mendacious invention. For, wherever things are so circumstanced that the offering of any effectual obstruction to mendacious invention is either of itself impossible, or not possible by any means that will not, in an equal or superior degree, have the effect of depriving recollection of the helps necessary to the completeness and correctness of the testimony,—then one of the two pursuits, viz. obstruction of invention, ought clearly to be abandoned.

Antecedently to the delivery of the interrogatories to the proposed deponent—or at least (when the proposed deponent is made a defendant in the cause, and the cause is such as to warrant his commitment to provisional safe custody)—antecedently to the moment of his arrestation,—all the powers of government are insufficient to keep from him whatsoever time for mendacious invention he may have thought proper to employ. In the case of the malâ fide suitor, whether plaintiff or defendant, from the moment of his delinquency, or rather from the moment of his beginning to form the plan of delinquency—in the case of the malâ fide and mendacious witness, from the moment in which he has reason to expect that his testimony will be called for—his thoughts will with more or less assiduity be employed in the task of mendacious invention.

On this occasion, among the tasks given to his imagination will be the representing to him such adverse questions, as, when the time comes for the delivery of his testimony (willing or unwilling,) may be expected to be propounded to him on the part of his adversary or adversaries: and it is only in so far as his imagination has failed of executing the task to perfection, that it will be possible for him to be taken unprepared—that it will be possible for his answer to have been unpremeditated.

The only interval, therefore, in which obstruction to mendacious invention, acting independently of all assistance by suggestion from without, can find room to place itself, is (on the occasion of the examination of the supposed delinquent) the interval between each interrogatory and the response returned to it. Of the obstruction capable of being thus applied, the influence will, however, be seen to be far from inconsiderable.

Howsoever the general tendency and scope of the system of interrogation may be anticipated,—it will seldom happen, especially if the function of interrogation be lodged in able hands, that the separate particular import of each interrogatory taken separately can be exactly divined. So far, then, as in any instance the purport of this or that interrogatory fails of having been foreseen, and a response provided for it—a response which though mendacious shall not be discovered to be so,—the length of time which invention has for the performance of its task, has for its limit the length of the interval above described.

In the case where the process of interrogation is performed in the epistolary mode, the length of this interval may, to the purpose in question, be considered as being without limit. Under the oral (or say colloquial) mode, its limits are extremely narrow: and hence, to any such purposes as that in question, the prodigious advantage of the colloquial over the epistolary mode.*

When the form is that of oral conversation, the time allowed for recollection is naturally and usually extremely short: to speak at hazard, seldom so long as a minute.

Nor yet is it necessary that the faculty of veracious and honest recollection should in any degree receive obstruction from the promptitude thus exacted in the first instance. A veracious deponent, on those occasions, has nothing to fear—sees no cause for fear: whatever facts his recollection presents to him, he utters without hesitation: all true facts being consistent with each other, he fears but little the being contradicted, at least with effect, by others—he fears not at all the being contradicted by himself. If, for the purpose of searching in the store-room of his memory, a certain interval of time be unavoidably employed by him,—having nothing but real facts to search for, having no other receptacle than memory to search into for them, he fears not the result: it is in the honest and unhazardous task of recollection that he employs himself, not in the dishonest and perilous task of invention. In the course of his exertions to hunt out the truth, should it happen to him to have taken up and brought to view error in its place, and thereupon to have discovered his mistake,—still the contradiction, which he perceives himself thus to have given to himself, will not be productive of confusion: no sinister views being harboured by him, no sinister views are disappointed by what has happened; there being nothing dishonest to conceal, nothing dishonest has been betrayed by it. A misrecollection on his part has indeed been brought to light: but in this, what cause is there for shame or apprehension? The failure is neither more nor less than that sort of failure, of which every man of the purest probity has, in his own instance, the continually repeated consciousness—which is continually happening to a man in cases where his dearest interest, his most decided wishes, call upon him, were it possible, to avoid it.

Between recollection previous, and recollection subsequent (both having respect to the time, and consequently to the process, of interrogation,) the distinction has already been brought to view.†

If adequate time for subsequent recollection be but allowed, supposing the nature of the case to call for it (understand always of the individual case in hand,) the time allowed for previous recollection can scarcely be too short. Why? Because, in case of mendacity, the shortness of the interval applicable to the purpose of invention is a capital security, and, in the first instance at least, the only one.

But what (it may be said)—what if the answer be (and a more natural answer there cannot be, whether on the part of a bonâ fide or on the part of a malâ fide witness,) I do not as yet remember:—unless time be given me for recollection, I cannot speak to the purpose? Certainly: nothing more natural, nor more frequent: but, in case of mendacity, in case of an actual recollection at the time, and this answer given—an answer by which the act of recollection is denied,—the purpose of the question is in some degree fulfilled: the evidence, presumptive at least, of mendacity, is obtained, or a way opened for the obtainment of it, just as in the case of a decided answer denying the fact spoken of.

You say you have forgotten what happened? How can that be, the transaction being of a nature so unlikely to be forgotten? For there are incidents, incidents in abundance, such as (supposing a man to have been a percipient witness of them, and the intervening length of time not extending beyond a certain length, according to the nature of the case) it is morally impossible that a man should fail of recollecting: such, at any rate, that, if oblivion in relation to them be possible, mendacity will always be much more probable. Nor is the comparative estimate any other than what a man, to whose lot it falls to weigh evidence against evidence, finds himself continually called upon to make.

You say you have forgotten what happened. How can that be, on this occasion,—you having, on other occasions not very remote, given an account of it to other persons? How can that be, considering the account that has been given of it by others, whose opportunities of observation were not better than your own? How can that be, considering what you yourself have already been stating relative to that same transaction, since you have been called upon to speak to it?

It is with non-recollection, the alleged non-recollection of the moment, as with evasion, indistinct responsion, and silence. If none of these courses of action were capable of affording any indication, mendacity would be impregnable—interrogation a vain resource.

Observe, that, though the interval of time allowed for recollection subsequently to the putting of the question be thus short, perhaps not a minute, perhaps not half a minute,—the time previously applicable to the purpose of recollection is not thus short. Was the fact, upon the face of it, of a nature to be likely to become the subject of deposition in a court of justice? a fact exhibiting itself as evidentiary of a crime, of an atrocious injury to person, to property, to reputation? The time applicable, and which naturally would be applied, to the purpose of recollection, dates from the very moment at which the fact presented itself to the deponent’s cognizance. Was the fact, upon the face of it, ever so indifferent,—the time applicable to the purpose of recollection would take its commencement, at any rate, from the moment at which information was given to him (with or without the forms of law) that his deposition in relation to that fact would be called for to a judicial purpose.

Mendacious invention, then, having been either prevented, or encompassed with dangers, by the vivâ voce questions followed immediately by the vivâ voce answers,—should any time be needed by honest recollection, either for searching out what could not be searched out at so short a warning, or for rectifying any misrecollections fallen into through the shortness of the warning; then comes the occasion for the judge, under the guardianship of his probity (consideration being had of the nature of the case, and the colour and complexion of the language, countenance, and deportment of the witness,) to exercise his discretion (of his own motion, or at the instance of the witness himself or either of the parties) in the allowance or refusal of a further length of time to be employed in the forming of ready-written interrogatories on the one part, followed by ready-written answers on the other: the minutes of the vivâ voce deposition, with the minutes of the interrogatories by which they were extracted, serving as a standard of reference and comparison: the interrogator, at any rate, being furnished with the document; the deponent furnished or not furnished with that source of instruction, according to the complexion of his preceding testimony, at the discretion of the judge.

Meantime, vivâ voce interrogation is (as hath already been seen) the only remedy, from the application of which, mendacious invention (the mischief to which the interval necessary for interrogation and deposition in the way of ready-written correspondence affords such opportunities) can receive adequate check. For obtaining in full perfection the testimony of a bonâ fide deponent, the mode that allows full time for recollection is not only a sufficient, but by far the best adapted, mode. But, for protecting justice against the artifices of determined mendacity, the mode that allows the least possible time to the premeditation necessary to that criminal purpose, is the only mode adequately adapted to the purpose.

When, in order to allow the necessary time for recollection, and perhaps for research and methodization, depositions in the form of ready-written answers have been allowed to succeed on the one part to ready-written interrogations on the other,—the faculty of examining the deponent de novo, in the way of vivâ voce interrogation, must still be reserved to the discretion of the judge. As the minutes taken of the vivâ voce examination served as a standard of reference and comparison to the examination in the way of ready-written correspondence, so will the deposition obtained in this latter form serve as a standard of reference and comparison for the second vivâ voce interrogation of the same deponent.

So much for invention. Next, as to mendacity-serving suggestion.

For depriving a man of the faculty of receiving suggestions from without—suggestions to all purposes, and consequently to the purpose of assistance to mendacious invention—the nature of things offers but one expedient: and that is, close confinement.

But, of close confinement, misdecision to the prejudice of the individual so confined, if in the character of defendant, is, unless obviated by due conditions, a contingent result; vexation, and that in an intense degree, a certain accompaniment.

For the purpose of receiving advice, as well as collecting evidence, unlimited communication with the world without doors will in general be necessary: therefore, co-existently with justice, close confinement can never be continued to the time of the trial or other definitive hearing.

But (setting aside those factitious suspensions of judicial procedure, so conducive to the ends of judicature, so adverse to the ends of justice,)—in the instance of a defendant whose case was deemed to warrant eventual confinement for the purpose of forthcomingness—between the moment of arrestation and the moment of the commencement of the process of his interrogation, no other interval would (unless by accident) be necessary, than what was employed in the journey to the seat of the judicatory. In the event of any such accident, or supposing the process of interrogation too long to be completed at one sitting, the judge might be, and ought to be, furnished with power for subjecting the defendant to close confinement, in such manner as to exclude him completely from the faculty of receiving, from without, any communications, but what were seen and allowed of by the judge.

The testimony of the individual being thus collected, under circumstances by which mendacious invention stands precluded from all assistance from without, and has undergone all the obstructions which the nature of things allows to be opposed to it,—then is the time for the doors of the place of confinement to be thrown open to all communication from without: and not only must this communication be allowed of, for the purpose of just defence in case of innocence, but moreover the allowance of it is attended with less advantage to delinquency than might at first view be supposed. The statements made under these circumstances by the delinquent (for let delinquency be supposed for the purpose of the argument) being consigned to writing, it will rarely happen, that, for the purpose of mendacious invention, any subsequent information can be of use.

On receipt of the information, the delinquent, pretending that in this or that point his statement had by misrecollection been rendered erroneous, or by non-recollection incomplete, demands another hearing for the purpose of amending the pretended defect. With a demand to this effect, compliance can scarcely ever, consistently with justice, be refused. But, in the original testimony, the judge possesses a standard of comparison, with which every subsequent testimony from the same source will have to be confronted and compared: and, supposing a variance and inconsistency, it will rest with the judge to satisfy himself which of the two presents the image of truth in the strongest characters, and whether it be to honest recollection, or to mendacity-serving suggestion from without, that the change is to be ascribed.

Thus much for the case of a defendant, considered in the character of a source of testimonial evidence. The case of an extraneous witness stands, in relation to these points, on grounds in a considerable degree different. Suppose him (whether on the particular occasion in question an accomplice or not) an habitual confederate or intimate of the defendant, and, as such, ready to deliver whatsoever testimony (true or false) promises to be of use to him. By the close confinement of the defendant, the witness stands as effectually precluded (so far as the defendant alone is concerned) from the faculty of receiving, as from that of communicating, mendacity-serving suggestions. But, supposing mendaciously-disposed witnesses of this description more than one,—to their case, be they ever so numerous, the effect of the obstruction does not extend.

Here, then, suppose the collateral ends of justice not attended to, or suppose the case such, that the mischief, consisting of the vexation necessary to be inflicted on the extraneous witness in question, is outweighed by the benefit attached to the additional security obtained for the fulfilment of the direct and positive end of justice; here the same reason which has been seen urging the application of the security afforded by close confinement to the case of the defendant, will be seen applying, and with equal force, to the case of the extraneous witness.

The extraneous witness being, by the supposition, not a partaker in the supposed course of delinquency—being by the supposition not guilty,—should not (it may be said) be treated as if he were guilty. True: on the score of punishment, unquestionably he ought not. But on this score, neither ought the defendant himself, in this incipient stage of the cause. If it be fit that the defendant should be thus treated, it is because probability appears of his being found guilty: if it be fit that the extraneous witness be thus treated, it is because a probability appears that his being thus treated is necessary to the removing of the obstacles that might otherwise be opposed, by mendacious testimony, to the conviction of the guilty defendant.*

What is manifest is, that the price thus considered as capable of being paid for an additional security against the liberation of a guilty defendant by mendacious testimony, is not a small one. Whether there be any, and (if any) what, cases, in which a practice of this kind ought to be considered as likely to be upon the whole an advantageous one, are questions that belong not to this place.

Whatsoever be the species of delinquency, of the vexation in question the magnitude will be the same. The proportion between the two mischiefs, between the two benefits, or between the benefit on one hand and the price paid for it in the shape of mischief (viz. vexation) on the other hand, will depend in every case upon the magnitude, that is, upon the mischievousness of the offence.

Against undue suggestions from bystanders while the witness is under examination, or waiting for it, such remedies as the nature of the case admits of, are on the one hand not very difficult to discover, nor on the other very efficient. They are of a purely physical nature, and consist of the temporary exclusion of the individual from whom any such undue suggestion may be apprehended.

Objects capable of being brought to view by such suggestion may be referred to the class of means or that of motives: means of mendacity,—information true or false: motives to mendacity,—by addresses made to the hopes of the witness, or to his fears.

The use of such exclusion, for the purpose of guarding the mind of the witness from the action of seductive motives, or (to use the common language) from undue influence, may be exemplified by the case of a non-adult witness,—a parent, or other person under whose direction he has been accustomed to act, being in the number of the bystanders. Of undue partiality on the part of the superior, mendacity on the part of the inferior will naturally enough in these circumstances be the apprehended consequence. To the mischief apprehended from this source, the temporary removal of the superior will in this case be an obvious, and in general an unobjectionable, remedy.

Other relations of dependency will naturally present themselves as affording a ground for the more extended application of the same remedy.

The wife being about to depose, the husband may in like manner be required to withdraw: the apprentice,—the master of such apprentice. The principle thus stated, the discussion of the particular applications of which it may be susceptible, will scarcely afford payment in the shape of utility for the place it would fill up. A discretionary power in the hands of the judge presents itself as preferable, in every such instance, to an unbending rule.

[* ]Between the use of writing, and the existence of an interval of time applicable alike to the purpose of veracious recollection and mendacious invention, the connexion is customary, and altogether natural, but not strictly necessary.

What is altogether natural, exclusively usual, and in general reasonable, is, that, as between written and unwritten, in whichsoever of the two forms the interrogations are presented, in the same should the depositions in answer be presented. But in the nature of things there is nothing to hinder this more obvious arrangement from being deviated from in either of two ways:—

1. The interrogations may have been presented to the deponent in the ready-written form; and, immediately upon his receiving them, answers from him, to be delivered vivâ voce, may be insisted upon, just as if the interrogations had also been delivered vivâ voce.

2. The interrogations themselves may have been delivered to the deponent in the vivâ voce form: and notwithstanding their having been so delivered, answers from him to be delivered in the ready-written form may be insisted upon,—to be delivered upon the spot, just as, in return to questions put vivâ voce, answers, if delivered vivâ voce, would naturally be delivered on the spot.

An example may be found in the following extract from the Mémoires de Bezenval, tom. iii. p. 125. 8vo. Paris, 1805:—

“Le jour de l’Ascension de l’année 1785, toute la cour remplissant le cabinet du roi, le cardinal de Rohan, en rochet, et en camail, attendait sa majesté qui alloit passer pour la messe, où sa charge de grand aumônier l’appeloit. Le roi le fit demander dans son cabinet interieur, où il fut un peu étonné de trouver la reine en tiers. Le roi lui demanda ce que c’étoit qu’un collier qu’il devoit avoir procuré à la reine? ‘Ah, sire,’ s’écria le cardinal, ‘je vois trop tard que j’ai été trompe!’—‘Mais,’ lui dit la reme, ‘si vous avez cru si légèrement, vous n’auriez pas dû vous méprendre à mon ceriture, que sûrement vous connoissez.’ Sans lui répondre, le cardinal, s’adressant au roi, protesta de son innocence. ‘M. le cardinal,’ reprit le roi, ‘il est tres-simple que vous soyez un peu troublé de cette explication; remettez-vous; et pour vous en donner le moyen, et que la presence de la reine ni la mienne ne nuisent pas au calme qui vous est nécessaire, passez dans la piece à côté; vous y serez seul, vous y trouverez du papier, une plume et de l’encre; écrivez-y votre déposition, que vous me remettrez ensuite; prenez tout le temps qui vous sera nécessaire.’ Le cardinalobéit, resta à peu près un demi-quart d’heure, rentra, et remit un papier au roi.”

In this latter case it is, however, manifest that the degree of unpremeditatedness cannot be so great, the security against mendacious invention so perfect, as in the former, in which the answers are delivered in the vivâ voce form: since writing in a form that shall be readily and generally legible, necessarily takes up a considerably greater length of time than a discourse of the same tenor delivered vivâ voce; and, under the cloak of the real necessity, it would be easy for mendacious fraud to possess itself of a considerably greater length of time, without exposing itself to censure, or any decidedly prejudicial inference.

[† ]Book II. Securities; Chap. IV. Internal Securities.

[* ]Cases every now and then occur, in which a prosecutor, or an extraneous witness, even where he is not suspected of being implicated in the offence of which the defendant is accused, is sent to prison by the justice to ensure his forthcomingness at the trial, or to prevent his being tampered with;—for instance, when the prisoner happens to be a man of rank and fortune, and the prosecutor or witness a child in a state of poverty. The necessity, however, for this extreme measure of precaution, would not have place were the system proposed by the author, in the instance of a defendant, adopted in that of an extraneous witness, inasmuch as the judicatory in which the evidence was elicited would at once decide upon the case unless, as he observes (p. 450) by accident, or supposing the evidence too long to be elicited at one hearing, it became necessary to adjourn the case.—Ed.