Front Page Titles (by Subject) CHAPTER XIII.: OF SPONTANEOUS OR UNINTERROGATED TESTIMONY. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XIII.: OF SPONTANEOUS OR UNINTERROGATED TESTIMONY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF SPONTANEOUS OR UNINTERROGATED TESTIMONY.
In what cases ought uninterrogated testimony to be received?
In the description given of the mode of bringing facts, or supposed facts, under the cognizance of the judge, a supposition all along, though tacitly, made, has been, that, for the eliciting of the facts, a correspondent question or series of questions has been employed. To the best, or rather only proper mode of conducting the business, such introductory interrogations are, as has been seen, necessary. For what reason they are necessary, has also been fully shown. But, in whatever degree this mode is preferable in general to the opposite mode, it is by no means the only one in use. Hence comes the necessity of another distinction on the subject of evidence:—1. Evidence brought out in answer to questions, or, more shortly, evidence by examination; 2. Evidence spontaneous, issuing from the source of its own accord.
Of this sort is that species of testimony, the expression of which (so much of it as is exhibited by one and the same deponent, uno flatu, in one and the same instrument) forms the tenor of what, in the spurious latinity of English law, has obtained the name of an affidavit. Say, then—1. Evidence by examination; 2. Evidence by affidavit.
When I spoke of the opposite form as preferable to this, I subjoined (what was necessary to be subjoined) a mark of limitation, expressed by the words in general. Cases there certainly are, in which this mode of exhibiting evidence may be preferable to the other. Abused as it will be found to be, it is by no means without its use.
As a mode of coming at the truth of the case, where the extraction of the truth is attended with any considerable difficulty, nothing can be more palpably incompetent than the use of this irregular shape, when confronted in this point of view with the regular shape in which evidence is exhibited in ordinary cases. Yet evidence in this shape is employed in a multitude of instances, and with indisputable advantage. It is so in English practice, it is so in French practice; nor can I conceive how the use of it can well be avoided in the practice of any other political state.
Cases, therefore, being to be found in which it is employed with advantage, what are those cases? By what marks are they to be recognised?
The regular mode of extracting evidence being (with reference to the main end of procedure, viz. rectitude of decision) the only tolerably competent mode in most cases, and not inferior to this irregular mode in any case,—if in any case it can be proper to resort to this extraordinary mode in preference—to depart from that which is in general the only eligible mode—it must be in respect of some special advantage to be derived from such departure. This special advantage, if the list of the several subordinate ends of procedure (viz. avoidance of delay, of vexation, and of expense) is rightly made up, must be referable to one or more of those ends. Thus far, then, we are arrived, viz. that it is only for the sake of some saving to be made in the articles of delay, vexation, and expense—one or more of them—that the sort of evidence called spontaneous, evidence by affidavit, ought to be received.
What cases come within this limitation? They are comprisable under the following description: viz. cases where the extraction of the truth is not attended with any considerable difficulty. How, then, to search out these cases?
To quadrate with the mass of facts requisite to be brought to view, the evidence exhibited in each instance must in the first place be correct—conformable to the facts as far as it goes; in the next place, complete—corresponding in its extent to that of the whole mass.
But how to make sure of its covering the whole mass? To make sure of it in each instance, a complete description of the whole mass requisite must be capable of being given in each instance. This is actually done in all cases where the nature and extent of the facts sought is described and settled by pre-appointed forms. A form of this sort, has it been pre-appointed by the legislator? He has framed then to himself a conception of the exact purport and description of the mass of facts, the existence of which he wishes, for the purpose in question, to see ascertained: he has given expression to it in and by that form. Being according to that form, it cannot, in the legislator’s own view of the matter, fail of being complete.
In the drawing up of a form of this sort, two cautions present themselves as highly material to be observed: viz. 1. That the description of the mass of facts to be averred shall, if possible, be of such a description, that the averment of it (if false) cannot be made without subjecting the deponent to the imputation, at least, of perjury; 2. In the next place, that, in case of perjury, the facts pitched upon in this way for attestation shall be such (if possible) as that, of the perjury, if committed, the nature of the case shall afford a probability of a mass of contrary proof sufficient for conviction.
An example sufficient for the illustration of the above rules may be found in the case of an affidavit made requisite (suppose) to entitle a man to receive a periodical payment due upon an annuity granted for the term of another man’s life.
1. Suppose the form of the deposition to be in these words:—Juratus (the deponent) maketh oath and saith, that the said Vivant Denom (the person in question) was living at the city of Paris on the first day of this instant January. Affidavits of life, of a tenor not more precise than this, have, I am inclined to think, been received. But can perjury be assigned (as the term is) upon an affidavit thus worded? I should much doubt it. Vivant Denom was no longer living at that day. Juratus, on being prosecuted as for perjury, produces a man who deposes, and that truly, that he, the deponent, had, previously to the taking of the affidavit, in the presence of Juratus, mentioned Vivant Denom as a person then alive: the deposition may easily enough have been true: it may have been equally true, whether the deponent at the time of the above conversation believed Denom to be then alive, or believed, or was even certain, by the evidence of his own senses, to the contrary. Yet, after a deposition to this effect, would Juratus be convicted of perjury?
Instead of being worded as above, let the form run thus:—Juratus maketh oath and saith, that the said Vivant Denom was living at the city of Paris on the first day of this instant January, inasmuch as he (this deponent) did, on the day aforesaid, of the month aforesaid, at the place aforesaid, see the said Vivant Denom, he the said Vivant Denom being then alive. In this case, supposing it established by sufficient evidence, either that Denom was then dead (say, to put the matter out of doubt, several days before,) or that Juratus was in no part of France near that time,—so far at least as depends upon the wording of the form, no doubt could exist to prevent a conviction as for perjury.
Among the variety of steps that come to be taken in the course of any system of procedure, facts in abundance may be found simple enough in their nature to give occasion to affidavits, printed forms for which might be framed by the appointment even of a legislator. But, over and above the cases of this description, others might, from time to time, present themselves, in which, at the instance of the party calling for the evidence, a form might be prepared, in conformity to the above rules, under the eye and with the allowance of the judge. It would be his care to provide that the indulgence prayed for, on the ground of a saving in point of delay, vexation, and expense, should not be purchased by too great a sacrifice (if by any sacrifice at all,) in respect of rectitude of decision, the main end of judicature.
But, how commodious and eligible soever it may be that evidence should (to save the trouble of personal attendance in the course or on the occasion of a suit, or, where there is no suit, to prevent a suit) be received in this form in the first instance, it by no means follows that the evidence thus given should not, so long as the deponent were living and forthcoming, be on any subsequent occasion subjected to scrutiny in the ordinary mode. The expectation of such a scrutiny would, at the time of making the affidavit, be a very powerful check to incorrectness as well as mendacity—a very powerful security for the correctness as well as veracity of the testimony contained in it.
At present, under the English law, no such check, no such security, exists—at least in any sort of regularity. In the case of a non-litigant witness, the having made an affidavit in regard to any fact, would not indeed exempt him from being called upon to give his evidence vivâ voce, in the ordinary way, in any cause in which he might have been called upon for this purpose had there been no such affidavit made. But as, according to the general rule, no defendant can be examined vivâ voce in a cause of either kind, penal or non-penal, nor any plaintiff in a non-penal one, the consequence is, that, upon the whole, it can seldom happen that a person who has given his testimony in this unscrutinized shape, can look upon himself as liable to be called upon to speak to the same points under the check of the regular vivâ voce scrutiny.
At present, the only security there is for the truth of testimony taken in this way, is the prospect of a prosecution as for perjury. Several causes concur in rendering this remedy a very inadequate succedaneum to the proposed eventual vivâ voce examination.
1. Where the side of the prosecution could produce but one witness, the prospect of producing by such evidence the degree of persuasion requisite for conviction, would at best appear extremely precarious, commonly hopeless: in this case, the common phrase is, it is but oath against oath: and though it is in words only that the equality is constant, in real amount accidental and even rare, yet the simplicity of the argument gives it weight which cannot but be expected to be in general prevailing.
2. In the next place, how fully soever the falsehood of a statement in an affidavit may be put out of doubt, there cannot be, any more than there ought to be, any expectation, that, in a case where that falsehood is regarded as standing clear from mendacity, a prosecution for perjury (supposing it instituted) would be followed by conviction.
3. In the third place, this remedy (a vexatious one to the party already vexed, as well as severely penal to the author of the vexation) cannot be administered but by a suit on purpose.
4. In the fourth place, the satisfaction to the party injured is not either immediate or certain, but remote and even precarious.
On the other hand,—suppose the expectation of an eventual vivâ voce examination and cross-examination to hang over a man’s head,—an expectation to this effect would afford a degree of security for correctness as well as veracity, much beyond what hitherto men have been accustomed to experience, or so much as conceive.
The expectation of this scrutiny will in no inconsiderable degree answer the purpose of the actual application of it—as in the case of the declaration of property, required for the purpose of the income tax, alluded to in a former place.
Upon the whole, the admission of affidavit evidence appears to stand on similar ground to that of unsanctioned and thence unscrutinized official evidence. In both instances, evidence, in a shape evidently inferior, is received in lieu of evidence in that shape which, on account of its manifest superiority, is become the ordinary shape. In both instances, the presumption is, that, in respect to the security for veracity and correctness, and thence for rectitude of decision, the evidence which in other cases would be manifestly inferior, is not so, practically speaking (at least, in such a degree as to forbid the employment of it,) in the particular circumstances of these two cases. In both instances, the reason for departing from the superior and regular mode, consists in the saving made in point of delay, vexation, and expense, or at any rate of vexation. In both instances, therefore, the substitution ought to be no more than provisional; the superior and regular mode being liable to be recurred to after it, on either of two suppositions: if the saving in point of delay, vexation, and expense, together, is looked upon as not worth regarding; or if on any particular account the danger of deception (whether by mendacity or simple incorrectness,) and thence of undue decision, threatens to rise to such a pitch as to constitute a mass of disadvantage more than equivalent to the saving in point of delay, vexation, and expense.
How to lessen the imperfections of uninterrogated testimony.
How eminently ill-adapted to every useful purpose testimony is when deprived of the security afforded by interrogation, has already been observed. The more imperfect it is in the essential part of its nature, the more diligent should the legislator be in doing what depends upon him towards lessening its imperfections, to the end that, where the exhibition of the testimony in question in any less imperfect form is either physically or prudentially impracticable, it may in this unavoidably imperfect shape make its appearance under the least possible disadvantage.
In the case where two masses of testimony in this form are opposed to one another,—each, it has already been observed, by the opposition it cannot but receive in case of falsity, serves as a sort of security for the trustworthiness (as far as respects correctness) of the other: acting in this respect as a sort of succedaneum, though a very inadequate one, to the process of interrogation.
To apply it in this character to most advantage, all that can be done for it in respect of securities, is to make what provision can be made for it under the head of distinctness.
The arrangements which presented themselves as favourable to the production of this quality, have already been brought to view, when considered as applicable to a discourse of the same nature considered as subjected to the process of interrogation.* The application of them to a mass of uninterrogated evidence will be an operation little more than mechanical. Mutatis mutandis, they apply of course; and to discover what the mutanda are, the slightest glance will serve. The requisite changes being made, the description of the arrangements will stand as follows:—
1. The statements should be divided into articles, distinct and numbered. Though the reasons which render such distinctness desirable are the same in this case as in that of the questions and answers in the case of deposition taken on examination, unfortunately the facility of securing it is far from being so. Questions naturally clothe themselves in the form of distinct and short and simple propositions: if, instead of being simple, a question happens to be of a complex nature, it is easily seen to be so, and in what respect it is so: and it being seen that it is complex, and in what respect, it is commonly seen in what way it requires to be decomposed, in order to its being resolved into simple ones. Where the framer of the question really wishes for a clear answer, his wish will dispose him to make the question as simple and distinct as possible: even where it happens not to be his wish to obtain a clear answer (as in the case of a party wishing to involve the cause in confusion by written examinations for the sake of delay, or his law-agent for the sake of the profit to be extracted from it,) the very form of the interrogation, by betraying the complexity, serves in a considerable degree to betray the mala fides that gave birth to it.
In the case of an examination, whether vivâ voce or in writing, the most uninformed interrogator knows therefore where to stop, and does stop accordingly, before the proposition has extended to any unmeasurable degree of complexity. In the case of spontaneous deposition—a species of discourse, which, not being broken into by questions, presents itself in the form of one continuous narrative—the above principle of distinction and division has no place. What, then, in this case, is to be done? Suppose a professional agent employed, the difficulty will not be insurmountable, nor very considerable: the statement being required to be broken down into numbered articles, the number of words allowed to be put into each article may be limited. But, in many cases, it is only because the importance of the suit will not pay for the expense of the superior mode of examination and deposition, that the inferior mode is here proposed to be admitted of: and if this costly assistance must necessarily be called in, the cost of it is necessarily (because the labour as well as skill is necessarily) much augmented by the substitution of this inferior mode. To inscribe a logical proposition within a circle of given extent, is a sort of geometry to which the suitor, even though not altogether a stranger to the art of writing, will in general be incompetent. Supposing him indeed to have written what he has to write, what he has thus written will at any rate be divisible (though not always by himself) into grammatical sentences.†
The laws of punctuation are not so universally agreed upon, nor so thoroughly settled, as that the boundary line between every two sentences shall in every case be beyond dispute or doubt: but in each instance—so it be settled (which it may always be) so long as there is somebody whose duty it is to settle it—the mode in which it is settled, and the degree of simplicity resulting from such mode, will comparatively be a matter of indifference. Supposing the statement, in its way to the party interested, to pass through the hands of the judge, or a scribe acting under the direction of the judge,—such judge or scribe would always be able to divide it for this purpose into numbered articles, with scarce any more time and trouble than would be requisite for the simple reading of it.
The above, however, in case of legal intercourse by written correspondence, is far from being the only or the greatest difficulty. In the production of an imperfectly instructed mind, the great difficulty is, not to know where one sentence ends and another begins, but to obviate the confusion resulting from incomplete, inexplicit, indistinct, ambiguous, incoherent, and inconsistent statements. In the case of vivâ voce examination, all these defects are prevented, or all material aberration corrected, by the steady line traced out by the questions put, and the immediate veto opposed to aberrations by the judge. In the case of examination and deposition by writters correspondence, this present guide is wanting: and, unless a professional assistant be called in, many will be the instances in which a correspondence thus carried on will be too rambling and irrelevant to answer the intended purpose.
The danger of such confusion, and the difficulty of avoiding or remedying it, will depend, in a great degree, on the greater or less degree of complexity in the case: and, though now and then a case may run out into a prodigious degree of complexity, happily, in by far the greater number of cases, the degree of complexity will not be such as to oppose any very troublesome bar to distinctness of statement or narration.
2. The deponent should speak in the first person, and not in the third.
Reasons, again, the same as in the case of written deposition ex interrogato; and in an equal degree.
3. It is rarely that a spontaneous deponent can, from his own knowledge, bear testimony to all the facts which he may have occasion to allege. It will be proper therefore to require, for the expression of his persuasion, different terms, corresponding to so many differences in the source from whence that persuasion is derived.
Reason:—For the sake of comprehending them all alike under the obligation to abstain from mendacity and temerity. A persuasion grounded on the relation of others, or on inferences drawn by a man from the relations of others, or from his own perceptions (present or past,) cannot, in point of intensity, stand altogether upon a level with a persuasion grounded either on his own present perceptions, or even his past perceptions, if presented to him by a clear and lively recollection. To these latter the term knowledge is regarded as applicable: to the former, not: no term expressive of any more intense persuasion than what is expressed by the term belief.
In the use of vivâ voce examination, a description of the intensity of persuasion, if not drawn forth with sufficient precision by one question, may be drawn forth with greater precision by another or another. In the case of ready-written testimony, the deponent, having time sufficient before him to choose his words, may be expected and called upon to choose them accordingly.*
Abusive applications made of uninterrogated testimony in English law.
Of the narrow description of cases in which the use made of this comparatively untrustworthy species of testimony may be reconcilable to the ends of justice, a view has just been given: the occasion is now come for observing the use that actually has been made of it in judicial practice.
Neglecting for once the order of precedence as between the Roman and the English mode, the exemplifications afforded of this miserable species of evidence, may, for the sake of illustration, be ranged in a climax, the steps of the ladder rising one above another in the scale of absurdity.
1. Reciprocal affidavit evidence, affidavits and counter-affidavits, in the English mode: averments on one side upon oath, liable to be encountered by averments on the other side, also upon oath.
2. Reciprocal allegations without oath: averments on one side without oath liable to be encountered by averments on the other side, also without oath. Allegations relative to the main points in issue: allegations called pleadings, and in use as well in English as in Roman law.
3. Ex parte affidavit evidence: averments upon oath, but on one side only (and without any faculty of encountering them allowed on the other side,) rendered decisive: a practice in use in many instances under the English system, but in such manner as to command not a definitive decision relative to the main points of the cause, but a decision, actual or virtual, relative to some incidental point—a decision giving effect to some incidental application.
4. Ex parte deposition without oath, but not without particularization: deposition rendered conclusive in such manner as to command the decision on the main points of the cause: exemplified in English practice in the case of a return to a mandamus.
5. Ex parte deposition upon oath, but without particularization: deposition commanding the decision on the main points of the cause: exemplified in Roman practice, in the averments called respectively Oaths purgatory, suppletory, &c., and in the English wager of law.†
To prove the incongruity of these several exemplifications of uninterrogated evidence, argument will not here be necessary: they are condemned when classed. Enumeration and elucidation are the tasks to which the present chapter is confined.
On the historical cause of such of them as are applicable to the purpose of giving commencement to a malâ fide cause—a cause which, under the immediate obligation of more trustworthy evidence, would not have been commenced,—or continuance to any cause,—of the psychological or final cause of these arrangements, the cause which gave birth to them in the minds of the inventors, nothing need here be said, in addition to what has been said under another head. The more writing, the more business: the more business, the more profit—the more delay, vexation, and expense, at the charge of those whose interests are not regarded; but the more profit to those whose interests alone were ever the real objects of regard.
Of such of them as establish, for the ground of the ultimate decision, such bad evidence in concurrence with, or to the exclusion of, better evidence,—the psychological cause is not equally obvious: imbecility seems to claim a share equal at least to that of improbity in the composition of it.
A species of evidence the most completely divested of all intrinsic securities for truth—a species of evidence standing in the very lowest point of the scale of trustworthiness—a species of evidence not fit, as we have seen, to be trusted to in any contested case, nor so much as in an uncontested one without being supported by the eventual faculty of scrutinizing the same testimony in a better mode: such is the mode to which an exclusive preference has been given by English judges: such is the sort of information, the only sort, which, for their own use, they will allow themselves to receive: such is the only sort of evidence on which they will ground any of their decisions, final or incidental, of which, without the clog of a jury, they assume to themselves the cognizance.
When performed by the judge alone, without the benefit of that zeal and appropriate information on both sides, which cannot be expected from any other quarter than that of the parties,—so sensible is the judge of the comparative imperfection even of the mode by examination, when performed in this way, that—as often as the importance of the cause or the intricacy of the question presents to his mind a warrant for the expense, vexation, and delay—he dismisses the question from his own tribunal, and sends it to be tried at another, before a very different and less experienced judicature; for the benefit of adding examination by the parties to the examination by the judge. Affidavit work has not the benefit of any sort of examination—not so much as of that loose and incurious sort of examination that may be expected from a judge’s deputy, to whom the function of deciding upon it does not belong: affidavit evidence is altogether exempt from scrutiny; and this is the only sort of evidence which an English common-law judge will ever suffer to come before him—the only sort of evidence on which he will suffer any decision of his to be grounded!
Here follow, for illustration, some of the principal applications of it.
In criminali, where the mode of prosecution is by information, the cause is tried upon this improper evidence, to know whether it shall be tried upon proper evidence.
In criminali,—whether the mode of prosecution be by information or by indictment,—after a trial on proper evidence, or rather by evidence in a proper shape, before a jury, the cause is tried over again upon this bad evidence.
If, making no defence before the jury, the defendant suffers judgment to go by default,—in case of indictment the cause is tried for the first time—in case of information for the second time—upon this bad evidence.*
When the prosecution is by attachment (be it really a criminal suit, be it a non-criminal suit in the form of a criminal one) the cause is tried upon no other evidence.
In non-criminali, in all the courts, but more especially in the common law courts, an extensive and numerous class of causes hereinafter distinguished by the name of motion causes, are never tried on any other evidence.
When brought before the Chancellor in the form of a petition, questions relative to the estates of bankrupts (questions, the value of which may rise to any amount) are tried on no other evidence.†
In every regular court, whether of the common law or equity class, where, in the course of a cause brought on in any of the established modes (whether indictment, information, action, or bill,) any incidental application comes to be made, grounded, as in almost every case it must be, upon some specially alleged matter of fact,—the fact is tried upon no other evidence.—N.B. Before the principal inquiry comes on (if destined to come on at all,) the fate of the cause is liable, perpetually liable, to be disposed of by this or that incidental one.
Why so exclusive a predilection for the worst evidence?—why this inviolable determination never to decide but upon the worst grounds? The reason (meaning by reason not surely the justificative cause, of which sort of reason there is none—but the historical and psychological cause)—the reason in this sense is not difficult to perceive, to any one who is not determined not to see it.
1. Affidavit work brings grist to the official and professional mill: vivâ voce examination brings none.
2. Having extracts read from ready-written and manufactured testimony, when occasionally referred to in argument by a brother of the long robe, is comparatively an easy process: watching and assisting the extraction of testimony, in its genuine colours, and in all its plenitude, from willing and unwilling witnesses, is a task comparatively laborious.
Two interests, two all-mighty interests, and both sinister ones, have therefore concurred in determining the arbiters of man’s fate never to judge but upon bad grounds: the interest of their purses, and the interest of their ease.
When evidence was to be received by them, by them who had all possible modes at their choice,—what mode of all modes did they choose? The mode the most repugnant to all the ends of justice—the mode the most lucrative and most easy to themselves, their dependents, and their friends.
Nor is it in their power to plead in self-defence, that this bad mode of extraction is employed by them to save the delay, vexation, and expense, which might be the consequence of requiring the testimony to be delivered vivâ voce.
He whose testimony is desired,—let him be all the time within view of the great hall, and all the time known to be so; let him be the whole time in court, as the several attorneys of the court, for example, always are supposed to be, and sometimes are;—would any judge of the court suffer the man to be examined vivâ voce, instead of receiving the testimony in the shape of affidavit evidence?—Not he indeed.
One of their rules is—You must give the best evidence the nature of the thing admits of. Behold in this example one specimen of the regard paid to the engagement taken by that rule!
Cases there are, and happily to a large extent, in which the choice in question—the choice of the form to be given to evidence, was not open to them. In these instances, and in these alone, they did consent to receive it—consent, as it were per force, to receive it in some less improper shape. But in every instance (one excepted, of which presently, in which choice was absolutely chained,) they took effectual care not to be sufferers from the exchange.
A rule, not (like the other) proclaimed, but observed, and with a degree of fidelity with which no rule ever proclaimed is ever observed, is, never to suffer the light of evidence to find its way directly to the eye of the judge: never but through some impure medium, by which one part is absorbed, another part distorted into false colours: written affidavits, through the pen of one sort of lawyer—an attorney; written answers through the pens of two sorts of lawyers (a barrister being forced upon the party by modern regulation, to make up for the assumed untrustworthiness of the attorney:) even vivâ voce testimony delivered in that pure state to the jury, must first have been misrepresented, curtailed, and added to, by the venal eloquence of a lawyer hired for the purpose, whose falsehoods and sophistry it is part of the duty of the judge (if he happens to be in the humour), to persuade them, if possible, to blot out of their minds.
What if any unlearned judge—what if any court of conscience—what if any justice of peace—were to take it upon them to try a cause upon affidavit evidence? Even in the way of supposition, the idea is scarce endurable. Absurdity thus palpable, iniquity thus flagrant, never yet found its way into the practice, scarcely into the imagination, of any unlearned judge. To try causes without any evidence but such as is unfit to be received in any cause, is among the uncommunicable (in this instance the happily uncommunicable) privileges of learned judges.
Decisions of unlearned judges, decisions of justice of the peace, are quashed without mercy—quashed for no reason, quashed on no pretence, except that, what no law had ever ordered them to do, they had omitted to do, viz. to set forth the evidence.* Set forth the evidence?—to what end? Unless they had omitted the ceremony of an oath, and usurped the privilege of granting the mendacity-licence so regularly granted by their learned superiors, was there any danger of their grounding their decisions on any evidence so bad as the only evidence which those their superiors ever suffer themselves to hear? No: nor so much as a possibility of it.
When a course of guilt rendered necessary by ill-constructed laws, and become inveterate by habit, is become so familiar to the eye as no longer to be productive of any perceptible sensation; men, though in the theatre of justice accustomed to talk morality, as a poor player in the like character might do upon the stage,—such men will, like the poor player, sometimes forget their part. The men I have in view shall not be named by me; they are particular men, and there are more than one of them: I was never set against them by any the least cause of enmity; enmity, had there ever been any, would long since have been extingnished in the grave; they would scarcely, were they alive, regard the observation so much as a token, or even as a cause of displeasure: but I will not, on this occasion, refuse to mankind the benefit of this my testimony. Oftentimes have I observed them, while affidavits have been reading, looking about to their brethren on the bench, or across the court to their quondam brethren at the bar, with sympathetic nods and winks and smiles, noting perjury, and treating it as a good joke. Such, while suitors are men, and while judges are men, must be the consequences of affidavit evidence. These were old men—I was then a young one: youth, where there is any virtue, is the season for it: virtue, at a distance from temptation, may be practised without difficulty. Whatever be the cause, well do I remember that no such jokes, especially when followed by such marks of relish, have ever met my eyes or ears without exciting a mixed sensation of disgust and melancholy.
Are judges insensible to the impropriety of this species of evidence? No: they are not insensible of it. How often have I not heard them speaking with displeasure of the task imposed upon them, or attempted to be imposed upon them, of trying a cause by affidavits! Why then submit to it at all? Because, in certain cases, like so many other unpleasant tasks (unpleasant, at least, in proportion to a man’s love of justice,) it stands imposed upon them by the inviolable law of usage.
When the decision is by a judge without a jury, could not the examination be carried on without a jury likewise, at the same time carried on in other respects as if there were a jury to hear it, and decide upon it? Oh no: not for the world. Was ever proposition so extravagant? Littleton, with Coke upon his back, would rise out of his grave to protest against it.
Locke, in his Essay, speaks of a student in the art of dancing, who could not practise unless an old trunk he had been used to see in the rooms, were in the particular place he had been used to see it in. An English judge would not know how to lend an ear to the examination of a witness, unless he saw a dozen tradesmen sitting in the box in which on these occasions he had been used to see them.
So much for affidavit evidence. Bad as it is, this species of evidence must be acknowledged to be a great improvement on the sort of information to which, in all incidental, as well as initiative applications, the effect of evidence was at that time, and still continues to be, given, in the courts established on the Roman model, in most parts of the continent of Europe.
[* ]Vide supra, p. 383, et seq.; and p. 437, et seq.
[† ]Under the discipline of the stamp duties, the number of words allowed to be put into a page is limited, in many (if not most) instances, in Britain, France, and probably other countries.
[* ]See Book I. Chap. VI.
[† ]Wager of law is now abolished.—Ed.
[* ]In the King’s Bench, in case of an indictment, for example, for an assault, if the defendant, having witnesses whose partiality is in his favour, thinks them capable of standing cross-examination, he pleads not guilty, and stands trial: if not, he suffers judgment of guilty to go by default; and, in mitigation of punishment, antecedently to his receiving judgment (say sentence,) he produces their testimony in the shape of affidavit evidence.
[† ]Unless (what does not happen in one cause out of twenty) the Chancellor thinks fit to direct an issue; i. e. a suit to be carried on in a common-law court, for the purpose of trying the question (it being a question of fact) before a jury, and consequently by evidence presented in a proper shape, as above. But, in this case, so far from being a loser, the partnership is a gainer by the admission of the proper evidence: the trial of the issue being a suit within a suit: the suit with the evidence in a good shape being not substituted, but added to the suit with the same evidence in a bad shape. The same observation applies for the most part to issues sent to be tried out of the equity courts.
[* ]By 3 Geo. IV. cap. 23, a general form is given for the record of convictions. It requires the evidence to be set forth.—Ed.