The Online Library of Liberty

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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 XV.

MODE OF EXTRACTION IN ENGLISH COMMON-LAW PROCEDURE—ITS INCONGRUITIES.

§ 1.

Case, penal: offence, a felony: procedure by indictment.

Where the punishment rises to a certain pitch, the offence is called a felony: below that pitch, it is called a misdemeanour. Without endless details, any more precise account would be impossible.

The mode of collecting the evidence is, in these different cases, distinguished by material differences; but these differences are made to depend, not upon the nature of the case, but upon the nature of the punishment.

In the case of a felony, the evidence is collected (the whole or the principal part of it) three times over: each time by a different tribunal, and according to a different set of arrangements. Once, by an inferior and non-professional sort of judge called a justice of peace, without a jury: in this case, the hearing or hearings are called the examination. A second time, by a sort of jury without a judge, called the grand jury. And a third time, by, or rather with, another sort of jury (directed by a judge, inferior or superior, non-professional on professional,) called a petit jury. It is on the last occasion only that the hearing is called the trial, a term for which no other language affords anything like an equivalent.

So in the case of a misdemeanour, regarded as amounting to a breach of the peace.

In the case of a misdemeanour not so regarded, the preliminary examination has no place. The cause comes, in the first instance, before the grand jury; unless where the proceeding is by information, of which afterwards.

We shall begin with the case of felonies.

I. Inquiry before a justice.

Before this tribunal there are commonly at least two hearings. At the first, comes a person in the character of a prosecutor, to state the fact of the supposed offence, and the person of the supposed offender, for the purpose of thus forming the ground of his application for a warrant.* A warrant is an order to be directed to a proper officer by the justice, for the arrestation of the defendant, that he may be brought before him for examination, and, in the meantime, committed to a proper prison, to secure his forthcomingness for that purpose.

At this first hearing, the absence of the defendant is supposed by the nature of the case.† The plaintiff, or (as he is called) the prosecutor, being first put on his oath, states his case in the way of spontaneous deposition; the judge on his part interposes what questions he thinks fit; which questions, it is evident, so far as their operation or tendency is in favour of the defendant, have the effect of adverse interrogation.

This ex parte examination is either altogether private, or more or less public in any degree, according to accidental circumstances, and the discretion of the judge. By a provision of statute law, minutes of such examination ought to be taken by this magistrate. Whether they ever are taken, does not appear in print. What does appear is, that there are instances in which this statute is disobeyed; in which ill consequences arise from this disobedience; in which the superior judges are apprized of the disobedience, see the ill consequences of it, and take no notice of it.*

Next comes the reciprocal hearing; when, the defendant being produced in the character of a prisoner, the prosecutor (being, as before, upon oath) tells his story as before. He is confronted with the defendant; the defendant puts what questions to him he thinks fit, which questions have of course the effect of an adverse examination: to the one, as well as to the other, questions such as the occasion demands are put of course by the judge. With or instead of the above-mentioned first witness, may have come on this occasion any number of other witnesses, according to the individual circumstances of the case. The defendant, on this occasion, is not upon oath: he is neither required nor permitted to subject himself to the ceremony. In case of an illegal attack made upon a man’s person in the way of physical force, the faculty of self-defence is allowed to him for his protection, by English as well as other laws. In England, for his protection against legal accusation, the faculty of mendacity, with its attendant, non-responsion, is (on this occasion as on others) carefully reserved to him, as a branch of the lawful faculty of self-defence. In putting questions to a defendant thus under examination, it is a sort of fashion to give him warning that he is at liberty to answer them or not as he thinks fit; for, though whatever a supposed delinquent is supposed to have said, out of the presence of a judge, to his own prejudice, is heard with perfect readiness,—yet, whatever evidence of the same nature it might have happened to him thus to furnish against himself in the presence of a judge, is carefully prevented from coming into existence. The criminal (for to a criminal alone can the intimation be of any use) the criminal, if the case admit of his availing himself of this friendly warning, avails himself of it, and is eventually turned loose again into society to afflict it with fresh crimes. The judge obtains the praise of patriotism and humanity and legal science, at no other expense than that of the interests of truth, justice, and public security. A deluded public pays a man with its praise for betraying its own interests. Sometimes it may happen that the public, besides being duped to its own prejudice, is duped for its own advantage. The magistrate, wishing to reconcile, if possible, the merit of serving the public interest, with the praise of having betrayed it, extracts the confessorial testimony where the cause stands in need of it, reserving the warning for the cases in which he perceives the inutility of it. But all this is matter of chance.

The number of these examinations depends of course upon the exigency of the individual case: upon the number of the witnesses, the remoteness of their situation, and the several other possible causes of unavoidable complication and delay.

Of the evidence thus obtained, the aggregate constitutes what, under the Roman procedure, would constitute ground sufficient for a decision in the first instance—for a decision which, supposing no appeal, would be definitive.

In English procedure, the acts of this tribunal serve but as a passport to the two others. In a large proportion of cases of this class (perhaps the greater number,) the truth is as effectually brought to light in one hearing (that hearing being a reciprocal one,) as it could be in fifty: but, because ulterior inquiry is in some few cases necessary, it is employed in all; including those in which it is useless, and worse than useless.

II. Inquiry before the grand jury.

Applied to the class of cases still in question, the operations of this intermediate tribunal may be set down as purely mischievous. They had once an object, but that object has been done away: it might be seen to be so, if bigotry had eyes; but bigotry is blind: the incumbrance keeps its place; lawyers and their dupes never speak of it but with rapture.

The object was to preserve an innocent man from the vexation incidental to prosecution: and innocent he might well be pronounced, if, even upon the face of the evidence produced against him by the adversary, delinquency did not appear probable.

The design was laudable: and to this design, the procedure, whatsoever might be the inconveniences attached to it in other respects, was naturally enough adapted.

1. Evidence was received only on one side—on the side of the prosecutor: on the side of the defendant, not; for to call upon him for his evidence would be to subject him to the very vexation from which it was intended he should be preserved.

2. The evidence was received and collected in secret; that is to say, in so far as secrecy was compatible with the presence and participation of a number of persons (the persons composing the grand jury) from twelve to twenty-three. In the same intention, these jurymen were sworn to secrecy. Why? Because, at this period, the defendant knew nothing of the matter. The bill being found by this jury (i. e. the accusation pronounced to have had a sufficient ground in point of evidence to warrant the ulterior inquiry,) thereupon went an order for his arrestation. Had it not been for the oath, a friendly juryman might give intimation, and the defendant make his escape.

In the first place, then, the institution is useless: it has been so about these two hundred and fifty years. The defendant has been already subjected to the vexation from which he was thus to have been preserved. From the middle of the sixteenth century, the examinations above described have taken place.

In the next place, it is mischievous. It is so in no small degree. One of the great boasts, as well as one of the greatest merits, of English procedure, is its publicity. This security, it has been seen, is sacrificed: sacrificed, and so continues to be, after the object for which the sacrifice was made is gone. The consequence is, an unlimited domination to popular prejudice; to party, if not personal interest and affection; to false humanity; to caprice under all its inscrutable modifications. In practice, many a bill which ought to have been found, is thrown out without reason—many a mischievous delinquent turned loose. In the abuse of this useless institution may be seen the sole use and justification of the inquiry by information; of which presently in its place.

Under the auspices of publicity, for example—as at the succeeding inquiry before the petit jury, causes in other respects the same, could not be productive of equal mischief. Whatsoever became of the legal sanction, the moral would not lose its hold. Of a guilty man, who is seen and known to be guilty, the proof of his guilt is itself a punishment.

Nor, as applied to the judges themselves, is the tutelary genius of publicity altogether without its influence. In the way of legal punishment, they are indeed exempt from responsibility altogether. In the way of moral reproach,—though, by the want of individual responsibility, the security by publicity against misdecision is, on the part of these ephemeral judges, sadly diminished,—it were too much to look upon it as altogether destroyed.

III. Inquiry before the petit jury, called the trial.

The doors are now thrown open: under the auspices of publicity, collection and registration of the evidence are performed, each in its best mode, with no other exceptions than those which will be mentioned as we proceed.

At this stage, the defendant is necessarily present, as being necessarily in custody: on which account it is that he is never designated by any other appellation than that of the prisoner: if he were not present, the trial would not be legal.*

Being present, one question, and but one, is put to him, and that at the outset of the inquiry: “Are you guilty or not guilty?” If his answer were Guilty, and he were to abide by it, the trial would be at an end: Guilty would of course be the decision—the verdict (as it is called) of the jury.†

That this species of confessorial evidence ought not of itself to be regarded as sufficient to warrant conviction—that it ought to be followed up and confirmed by a detailed narrative—is a proposition which will be maintained in another place.‡ That mendacity, and subornation of mendacity, is no more necessary or conducive to the ends of justice on this than on any other occasion, is a proposition, the truth of which may be left to rest upon its own evidence.

Where it happens to a prisoner to answer in the affirmative—in appropriate language, to plead guilty—if he insists on it, the general understanding seems to be that he has a right to have such his plea recorded: in which case there is a necessary end of the trial, and the verdict follows of course.

In practice, it is grown into a sort of fashion, when a prisoner has returned this answer, for the judge to endeavour to persuade him to withdraw it, and substitute the opposite plea, the plea of not guilty, in its place. The wicked man, repenting of his wickedness, offers what atonement is in his power: the judge, the chosen minister of righteousness, bids him repent of his repentance, and in place of the truth, substitute a barefaced lie. Such is the morality, such the holiness, of an English judge.∥

It would be some extenuation, though by no means a justification, if it were clear that the supplying the defectiveness of the general proposition by a detailed narrative, were the sole or principal object of this unnecessary, and (were it not that custom is a cloak for every enormity) unseemly, subornation. But, such an apology would be but a surmise, and that (to judge by analogy) not the most probable one. When a general disregard to truth, or (to speak more correctly) a fondness for falsehood, coupled with a general propensity to sacrifice the interests of justice to popular prejudice, to curry favour with the people at the expense of moral duty, pervades the whole system, breaking out on a variety of occasions into so many overt acts; it seems much more consistent with probability to ascribe the effect to this known actual cause, than to any other purely conjectural one.

When the witnesses in support of the charge have been respectively subjected to primary examination performed by the advocate for the prosecutor—or by the judge, in the few instances in which it has happened that no advocate has been employed,—the prisoner, by himself and advocate, exercises, in so far as he thinks fit, the right of cross-examination: the witnesses, of course, all of them upon oath.

When the evidence on that side has been gone through, then comes the time for the prisoner to make what is called his defence. For this purpose no advocate is in these cases (cases of felony) allowed to him:* in private, the advocate may, in the way of advice, speak to him; but, in the address to the judge and jury, must not speak for him: an arrangement, the propriety or impropriety of which belongs not to this place. The defence therefore consists of a discourse, shorter or longer, according to the nature of the case, and the rhetorical powers of the prisoner; in which, whatever suggestions promise to his conception to promote his cause, are brought forward without distinction: testimony and argument, facts (or pretended facts) and inferences from these facts, all produced without distinction, all uttered in the same breath.

On other occasions, and on the opposite side, the sanction of an oath, and the use of cross-examination, are magnified, the former far beyond the extent of its real efficacy, as the most indispensable securities for truth and justice: on this occasion, and as against the defendant on behalf of the public, neither is permitted to be employed.

Out of court, under circumstances favourable to every species of abuse, the faculty of interrogating the defendant has been open to every man without distinction, and without regard to fitness: and the hearsay account of the result of such adverse examinations, in any number, is admitted in evidence without scruple. In court, under the eye of the judge, in circumstances in which the possibility of abuse (unless the judge himself were to be supposed a party to it) is excluded, all exercise of that faculty is forbidden; nor must a single question be put to a defendant in that view.

§ 2.

Case, penal: offence, a misdemeanor: procedure by indictment.

Let us next pass to the case of misdemeanors attended with breach of the peace.

The nomenclature is not here very expressive or determinate; but it is such as English jurisprudence furnishes. Offences attended with violence to person or property, but not in such sort as to be punished with the punishment of felony,—is a description that seems to come as near the mark as any other that could be given without limitations, exceptions, and dissertations.†

Here too come the same three inquiries as before. The first, however (viz. that before a justice of the peace,) is not so uniformly resorted to as in the case of felonies. Of this inquiry, the principal use and object is prospective—to put a stop to a course of intended or apprehended injuries. It is for this purpose that power is given to the magistrate to oblige the defendant, on pain of imprisonment, to find sureties for abstaining from such transgressions in future.

Here, as above, a but too obvious remark is, that, if justice had been the object in preference to plunder, this one of the three inquiries would in general have been the only one. To warrant, in point of natural justice, the imposition of this burthensome obligation upon the defendant, the magistrate cannot but have been satisfied of his delinquency—satisfied of it with that degree of persuasion which warrants him in passing a sentence of conviction to other purposes, in the cases where power to that effect has been conferred upon him by the law. Satisfaction, or punishment, or both (according to the nature of the case,) might as well be administered at the end of this first inquiry, when the state of the evidence is ripe for it, as at the end of ever so many more. But, by any such arrangement, the regularity of the procedure would have been destroyed: it would have been cut down, and reduced to summary; every application of which is an injury to the profession, useful only to the public and the suitors.

In this case, the registration of the evidence has not been made obligatory, as in the case where the subject-matter of the inquiry belongs to the class of felonies. Being unperformed where commanded, whether it be performed where uncommanded, may be easily imagined.

As between the two parties to the quarrel, the same want of reciprocity is observable as in those other cases. That one of them who happens to have come forward in the character of plaintiff, narrates and answers upon his oath; the defendant, not.

In virtue of the established principle, here as there, the defendant may refuse to make answer if he pleases: but, forasmuch as from the nature of the case it is in general more for his advantage to be explicit than to be silent, the effect of the privilege is scarce perceptible in practice: and, forasmuch as the praise of humanity and patriotism is not to be reaped in so large a proportion in this case as in that, by the protection of guilt and the obstruction of justice, the practice of cautioning the defendant against the unprudence of speaking truth is not here so fashionable.

This (it must further be observed) is among the cases in which the party grieved has his option, whether he will consider the act of delinquency on the footing of a crime, or of what is called a civil injury. In the first case (to speak strictly rather than correctly,) he obtains punishment without satisfaction; in the other case, satisfaction without punishment. In this latter case, those three stages of inquiry are out of the question, and the inquiry is conducted in the purely non-penal mode, of which in its place.

Among the circumstances which a man has to take into account for the purpose of this option, one is, the absence or presence of a sufficient mass of extraneous evidence. If the mode of procedure be of the non-penal, called the civil, kind (in which case it is called an action,) the party seeking redress is not trustworthy, and, in the character of a self-serving witness in his own behalf, cannot be heard. If, as above, it be of the penal kind (in which case it is called an indictment,) the same individual is trustworthy, and his testimony in his own behalf is accordingly admitted.

The reason given for the distinction is, that, in the case of an action, he has money at stake upon his testimony, whereas, in the case of an indictment, he has nothing at stake but revenge: as if, in the eyes of the bidder, revenge were not worth to a man the money he is content to pay for the prospect of obtaining it. In point of fact, the reason is notoriously untrue:* but, in the reasoning of English jurisprudence, falsehood is a virtue, truth at best a superfluity; nor is the argument weakened by the want of it.

For injuries of the self-same description, there is yet another mode of procedure, which is called an information; of which by and by in its place.

In this, again, the mode of inquiry and the rules of evidence undergo many material changes. The first inquiry—that before a justice of the peace—does not usually take place. The second—that before a grand jury—never can take place: an essential object of this form of procedure being to preserve justice against the obstruction apprehended from that secret, and consequently arbitrary, tribunal.

Among the advantages of the natural form of procedure, is that of its fixing the evidence in the earliest stage, and thus saving it from deperition. The first of the three above-mentioned inquiries,—viz. the examination before a magistrate—the inquiry which, if it were the only one, would denominate the procedure summary instead of regular,—possesses this great advantage. In procedure by indictment without such previous examination, and in procedure by action, and (as it should seem,) in procedure by information, this benefit has no place.

English lawyers and their dupes are in raptures at the thoughts of so rich a variety of remedies (the list of which is not yet exhausted,† ) all for the same injury. But, as there is not one of them that gives more than a fragment, a scrap, of a remedy, the plain fact is, the greater the number of them, the more inadequate to the object:—understand here the professed object—the fulfilment of the ends of justice: for as to the real object, there is no want either of contrivance or success.

The greater the number of these forms of procedure, and the greater the variety of the arrangements they present in respect of the rules of evidence, the more impenetrable is the darkness, which has for so long a time been thicker than Egyptian, and without a miracle.

The case of misdemeanor not attended with breach of the peace, calls not for any remarks, over and above those which have been given under the other heads.

In these cases, the preliminary inquiry before a magistrate has no place. The first inquiry is the ex parte inquiry before the grand jury. In this, as well as in the last stage, the same observations apply to this class of offences as to the two others.

§ 3.

Case, penal: offence, a contempt: procedure by attachment.

Causes determined without a jury: the commencement by motion: the inquiry carried on by or before the professional judge or judges.

Now opens a scene of point-blank contradiction. Every rule of evidence, every principle held sacred where the species of cause gives occasion for the pronouncing of the magical word jury, is now completely abandoned. On a system of procedure completely opposite to the former, the inquiry is conducted; always by the same persons, always with the same self-satisfaction and content.

In the species of procedure here in question, the court is one of the superior courts in Westminster Hall. The cause commences by motion—motion for a rule to show cause: an application made to the court by the plaintiff’s advocate, praying that an order (a rule, the technical word is) may be addressed to the intended defendant, commanding him to show cause why that should not be done (whatsoever it be) which at his charge the plaintiff wishes to see done.

The evidence in this case is composed wholly of affidavit work.

At the time of the motion, and as a necessary ground for it, an affidavit is produced containing the discourse of the plaintiff. That affidavit is commonly corroborated by other affidavits, exhibiting the testimony of extraneous witnesses: the testimony of divers witnesses being sometimes conjoined in a single affidavit.

The plaintiff, in his affidavit, exhibits his own testimony in his own behalf: the sacred and inviolable rule, nemo debet esse testis in propriâ causâ, is thus regularly violated.

In vain would it be said—“The cause is not his own, he has no interest in it;” by which, in English law language, is meant no pecuniary interest. In the first place, many are the cases in which he has a direct and manifest interest of the strictly pecuniary kind, and that unlimited in respect of magnitude. In all cases he has the sort and degree of pecuniary interest created by costs—the eventual obligation of reimbursing to the adversary his share, in case of miscarriage. Even laying out of the case such eventual obligation, which may or may not be imposed; supposing him not to have any pecuniary interest in the cause, he has at any rate some other interest of stronger quality—stronger than the interest created by the money which in the shape of costs (his own costs) he sacrifices in pursuit of the service which he thus claims.

Vivâ voce deposition, by the general confession, or rather the proclamation, of all English lawyers, is the only completely trustworthy form of testimony: this only fit ground of decision is here abandoned.

Nor let it be said that considerations of convenience—convenience in respect of avoidance of the vexation and expense attached to personal attendance, had any the smallest share in giving birth to this aberration from the line of universally-acknowledged rectitude. The sort of case in which, more frequently than in any other, this mode of procedure is employed, is a case in which this species of vexation is at its minimum, if not equal to 0. Among the cases which find most employment for this species of procedure, is that of a dispute between attorney and attorney, not in a cause of their own, but on the occasion of the cause of their respective clients—a dispute having for its subject, on one part or the other, a supposed deviation from the established rules of procedure. In a case of this sort, both deponents are, in supposition always, in reality commonly, present in court—present at the same time. They are a sort of officers of the court: it is by belonging to the court, that they are what they are styled, attorneys of the court. Though not present as deponents, they are all the while present as attorneys. It is commonly in the hearing of the deponent himself, that the studied and manufactured vehicle of his testimony is read.

Along with vivâ voce deposition, vanishes cross-examination: even that inadequate and comparatively inefficient and untrustworthy species of cross-examination, which we shall see not banished by institution, any more than by the nature of things, from examination in the way of written correspondence.

There stands the plaintiff; close by him the defendant: each speaking—that is, hearing himself speak, by borrowed lips, in the character of witnesses. To neither of them is it possible to put a single question to the other: the court would never suffer it.

Of the utility—in some measure the necessity, of the practice of breaking down into numbered articles a mass of literary matter the destination of which (in whatever shape) is to constitute or help to constitute a ground for judicial decision,—mention has been made already in its place. Further on, instances will be brought to view, in which so important a help to comprehension has not been refused to English practice. The present is not of the number. Of an affidavit, though it were of a length to reach from one side of the Hall to the other, the whole contents would not the less remain in one shapeless undivided mass. On the part of the plaintiff,—his chance of success depending upon the goodness of his case as it stands impressed upon the face of his narrative,—his endeavour (that is, the endeavour of his attorney, in so far as, in respect of intelligence as well as probity, he is qualified to do justice to his client,) is naturally to put it into the clearest order, as being best adapted to that purpose. On the part of the defendant, if so it happens that in his own view of the matter he is in the right, the endeavour to speak clearly will be equally strenuous; and in this case the order pursued by the one will naturally be adopted and followed by the other. If, as is most likely to be the case (for the probability of right is for obvious reasons naturally on the plaintiff’s side,) he is conscious of being in the wrong,—so surely will it be his study, and that of his professional assistant and licensed accomplice, to keep clear of that order, and of every sort of order; in a word, to render as thick as possible that confusion, in which alone he can behold a probability of escape.

It would be something—nay, a good deal, if this unscrutinized species of testimony were, in any court, on any future occasion, liable, and known to be liable, to be subjected to scrutiny, by being extracted over again in the most trustworthy and only proper mode. But this is altogether without example. The bare idea of any such innovation would be enough to strike horror into a professional and learned mind.

If reason had any the smallest concern in the business,—the less trustworthy the source of the testimony, the more searching and efficient would be the arrangements taken for counteracting and checking the propensity to falsehood on the part of the witness—for guarding against deception the mind of the judge. Throughout the system of English jurisprudence, a directly contrary policy (if a term so clearly expressive of thought be applicable) has been pursued. When a man’s testimony is received in his own behalf, it is received in scarce any other form than that of an affidavit—in the form of an elaborate and preconcerted instrument in writing, neither divided into parts, nor liable to be disconcerted by questions. As often as the least trustworthy species of evidence—evidence from the least trustworthy source—is received, it is the inviolable rule to receive it in the least trustworthy shape, and in the least trustworthy modification of that shape.

§ 4.

Case, penal: procedure by information.

Procedure in the way of information—information in criminal cases, is commenced by motion praying a rule to show cause: a rule, or order, upon the defendant, to show cause why an information, a species of accusation, should not be exhibited against him.

This species of procedure, like the other species of procedure in which a jury is employed, is of the composite kind. It contains two distinct inquiries: the definitive one, in which the rules of evidence are exactly the same as in the case of an indictment, as above mentioned; and a preliminary one, in which, as in procedure by attachment (of which already,) the evidence is exclusively composed of affidavit work, as above.

In this species of procedure, the previous examination—the mode of inquiry which, with little alteration, might, with advantage, supersede both of those which follow it—the mode of inquiry with which, as we have already seen, the procedure commences in the case of felony—is not admitted: a deficiency, the effects of which, in respect of the faculty of investigating and following up a thread of evidence, are but too sensible.

The inquiry by affidavit work is here a succedaneum to the inquiry before the grand jury: like that, it is worse than useless, though rendered so by a different cause.

In the inquiry before the grand jury—an inquiry conducted in secret by a tribunal the decisions of which are altogether arbitrary, the members being neither punishable by law, nor so much as subject to the restraint of shame,—the principal danger consists in the grant of impunity to guilt.

The use of the grand jury inquiry is, in the event of the non-delinquency of the intended defendant, to save him from judicial vexation—the vexation and expense attached to the obligation of defending himself against the charge: and such (supposing the bill thrown out) is, and that very completely, the effect of that inquiry. What is the effect of the previous inquiry in the way of information? It does not merely fail of diminishing the vexation: it does more than double it. An inquiry is carried on, to know whether an inquiry shall be instituted: an inquiry is carried on in a bad mode, to know whether an inquiry shall be carried on in a good mode: a cause is tried upon bad evidence, to know whether the same cause shall be tried upon good evidence.

This is not all. If, in the inquiry called the trial, the defendant is convicted, a third inquiry scarce ever fails of taking place: and this, like the first, is carried on by affidavit work. On the day of trial, the evidence is exhibited before the jury, under the direction of a single judge. When the defendant comes to receive judgment, it is in the court of King’s Bench, in Westminster Hall, a tribunal composed of four, and those professional, judges. On this occasion, the defendant, on his part, is admitted to state (provided always it be by affidavit) any such facts as may be thought to operate in mitigation of his punishment: the prosecutor is, on his part, at liberty to bring forward, always in the same way, any facts, the tendency of which may be to operate in aggravation of the punishment: and each party will, in general, be admitted to contest, by counter-affidavits, the representations given by the other.

Among the facts which the prosecutor is thus admitted to bring forward, are any facts constitutive of subsequent bad behaviour on the part of the defendant—bad behaviour subsequent to the day of trial, on which the conviction took place; not to speak of the anterior period intervening between that day, and the date of the offence, as charged in the instrument of information. Here, then, for the hundredth time, we have the bad mode, the acknowledged bad mode, used promiscuously with the good mode—the (by lawyers) never enough to be admired and eulogized good mode. Nokes offers a personal insult to Stiles. Being prosecuted for this in the way of information, he is tried in the first place in the affidavit mode; and, if found guilty in that mode, tried over again in the vivâ voce mode. Being thus found guilty a second time,—after his conviction he offers to the same person (his prosecutor) a second insult, exactly of the same nature with the first. What is the consequence? For this second insult, he is tried but once, and that by affidavit work, and, if upon the result of that inquiry deemed guilty, punished without any reference to a jury; the punishment for this second offence being pronounced at the same time with the punishment for the first, and indistinguishably confounded with it.

When sentence (judgment it is called in this case) is to be pronounced, the personal attendance of the defendant is either insisted upon or dispensed with, as the court thinks fit. But when he does appear, it is for the purpose of hearing merely, and not for the purpose of being admitted to be heard. There he is; and, with him, the physical faculty of being examined in the best mode. No—it cannot—legally speaking, it cannot be. Speak he may, if he pleases: always understood, that whatever, when heard in this best mode, he advances in the way of fact, must go for nothing. Go for nothing? Why so? Only because it is offered in this best mode. The acknowledged bad mode—the mode by affidavit, in which ample time for preparation is allowed, and scrutiny by cross-examination not allowed, is the only mode in which his testimony in the character of a witness—a self-regarding, self-serving witness, is admitted to be heard. To the subjecting him to the vexation of personal attendance, there is no reluctance. The only thing resisted, and that most inexorably, is the employing for the extraction of his evidence that acknowledged best mode, against which the only objection ever made, or capable of being made on the ground of reason and utility, consists in the vexation of attendance—that very vexation to which the party is so readily subjected, on condition of its being of no use.

As to the vexation and the expense attached to this so elaborately complicated and inconsistent plan of procedure (the vexation which is the unheeded result, and the expense which, in the shape of profit, has been so manifestly the final cause,)—these are topics, the handling of which in detail must be referred to the subject of procedure. Of the vices of the system, the only ones that belong directly to the present purpose are those the tendency of which is to weaken the security for truth on the part of the witness, and thence for right decision on the part of the judge.

Elsewhere, it is in the character of an engine of oppression,—here, it is in no other than that of a vast manufactory of mendacity and deception,—that our business is to exhibit the technical system of procedure.

The composition of the tribunal is another point which requires to be carefully abstracted from the present investigation. Procedure by information, and procedure by attachment, were at one time the butts of popular and party clamour. Wherefore? For no other reason than as being rivals and succedanea to the indiscriminately-cherished and never-enough-to-be-idolized trial by jury. Information leaves work but for one out of two juries; attachment, none for any.

As to this matter, thus much is (as I presume) by this time tolerably clear; viz. that, of all the modifications of the technical (alias regular) mode of procedure, that in which a jury is employed is the only one tolerably well adapted to the pretended purpose of elicitation of the truth. Well adapted: why?—Because the judges are unexperienced, uninformed, numerous, unresponsible, the minority or majority of them regularly forced by torture into perjury? No: but because it is only when ephemeral judges are called in, that the mode of inquiry, acknowledged to be the only good one, is suffered to be employed. Against the professional, the learned, the veteran class of judges, my complaint (in so many instances) is, not that they have taken upon themselves, without the co-operation of their unlearned colleagues, to exercise the function of judicature,—but that, with their eyes open, and with a degree of pertinacity and assurance not to be exceeded, they have made it an inviolable rule, when left to themselves, never to conduct an inquiry but in a mode which they know to be a bad one; uniformly rejecting the very mode the superiority of which they are continually recognising, and that not only in language, but practice.

§ 5.

Case, non-penal: procedure by jury-trial.

Compared with the procedure in criminal cases (especially those which stand, or are supposed to stand, highest in the scale of mischievousness,) the mode of procedure, in cases non-penal, presents, under the head of evidence, several important differences.

The cause of these differences need not be a secret, to any eye that has courage enough to look it in the face. In criminal cases, the law had the more pressing exigencies of society for its object, and, for the subjects of its operation, a description of persons in whose purses any considerable quantity of plunderable matter was seldom to be found. In the non-penal branch, the demand for justice was less pressing, and the quantity of plunderable matter ample enough to pay for the detention of the parties in the trammels of procedure.

According, in the construction of the criminal branch of procedure, the interests of justice seem to have taken the lead; views of plunder being comparatively inefficient and subordinate. In the formation of the plan of procedure in non-penal cases—in cases in which the title to rights of property forms the principal object of dispute—plunder, and the means of extracting it from both parties in the greatest possible quantity, would be the main object; justice, the collateral result, having, in the mind and intention of the founders of the law, afforded little more than the occasion and the pretence.

In criminal procedure there has accordingly been no fear, or at least no equal fear, of bringing the parties together, face to face, in the first instance, in the presence of the judges; nor in general has any apprehension manifested itself of seeing the cause pushed to too speedy a conclusion.

It is in the non-penal branch alone that an arrangement thus imperiously prescribed by the most obvious dictates of natural and universal justice, has been so systematically and pertinaciously excluded by men of law: except on the few occasions on which, in spite of their reluctance, the dictates of genuine justice have, under the spur of necessity, been obeyed by legislators.

Reciprocal explanation and interrogation between the parties, under the sanction of an oath, with the fear of present shame as well as future punishment staring in the face that one of the parties who, being in the wrong, is conscious of being so,—would have nipped in the bud all malâ fide causes. By a view jointly taken at the outset, of all the evidence afforded by the nature of the cause, together with a survey of all other causes (if any) natural and unavoidable, of delay and complication, which happened to be attached to the individual matter in dispute,—causes of both descriptions, malâ fide and bonâ fide causes together, would receive of course the speediest termination of which they were respectively susceptible.

To prevent malâ fide causes from being themselves prevented—to keep the doors of justice open to the best class of customers,—one fundamental rule accordingly was, that an unlimited licence for mendacity should be granted to all mankind in the character of plaintiffs.

Another was,—from the first to the last, never to admit the parties, much less bring them by compulsion, into the presence of the judge.

To the joint influence of these rules, suitors are indebted for everything which in English common law goes by the name of pleading.

The plaintiff has a demand (suppose for a sum of money) on the defendant. Plaintiff and defendant live (suppose) within a stone’s throw of one another, and of the seat of justice. In the summary mode of procedure, had that mode been permitted to take place, the grounds of the dispute might be liquidated—evidence, such as the case affords, heard—and a decision pronounced, all within the compass of an hour. The ground being a note of hand,—whether the sum be £2 or £200, makes, in regard to the proof, and the time necessary for the exhibiting of it, not the smallest difference. The plaintiff, in this case, coming forward spontaneously with the statements made in his own way of the facts relied on by him as the grounds of his claim, general allegations and particular statements might naturally enough in this way come mixed; but a few questions from the judge would be sufficient to effect the decomposition, and place each under its proper head.

Under the technical system,—instead of appearing before the judge, and there stating the grounds of his demand, subject to counter-interrogation, and under those securities for veracity which have place in the instance of an extraneous witness,—the plaintiff (or, more properly speaking, his attorney) produces a written paper, called the declaration, from which almost all such information as could be of use for acquainting the judge or the defendant with the nature and grounds of the claim, is carefully excluded; an enormous mass of surplusage, garnished with innumerable lies, being substituted in its place. This paper the plaintiff’s attorney deposits in an office, whence the defendant’s attorney obtains a copy, on payment of a fee. If the defendant pleads the general issue—that is, contents himself with a general denial of the justice of the claim, the cause then goes to trial. If the defendant pleads any special plea—that is, makes any answer, other than such general denial, the matter of this answer is expressed in another instrument called a plea, which is also filled with surplusage and lies. To this plea the plaintiff may answer by a third instrument, called a replication; to which the defendant may further reply by a rejoinder; and so on, without any certain limit.

No security whatever being taken for the veracity of all this testimony (for testimony it is in the eye of reason, though not of technical law)—neither punishment, oath, interrogation, nor any other check, being applied to falsehood in this shape,—the consequence is, that, saving just so far as it is the interest of the party who gives in the testimony that it should be true, not a word of truth does it ever contain.

But of this more fully hereafter.*

At length, when the stock of reciprocal scrawls is exhausted, when the quiver of useless arrows is on both sides emptied, the first and only inquiry, the trial before a petty jury, takes place. On this occasion, the meeting of the parties in the presence of the judge—the first stage in every system of procedure that has really the ends of justice for its ends in view—this harbinger of reconciliation, and condition sine quâ non to thorough explanation, though purely accidental, is at least not impossible.

On this occasion, if so it happens that both parties are in a state of bona fides, each conceiving himself to be in the right,—in such case, whether both or either of them are or are not present, a scene of mutual frankness and expansion of heart may not unfrequently be observed. A spectator who, not knowing or not adverting to the stage at which these amicable demonstrations present themselves, should be witness only to the effect, would be apt to wonder how it should happen that between parties so well meaning, assisted by agents at once so faithful and so ingenuous, a difference capable of plunging them into litigation should ever have subsisted. In one consideration, and one only, can any cause be found adequate to the production of so remarkable an effect. The cause has, at this stage of it, furnished to the lawyers of all classes whatever pickings are to be had out of it. The stage in which agreement thus takes place, if it takes place at all, is that in which, if the cause did not end in this way, it would alike find its termination in another way. The stage at which all this virtue manifests itself, is that in which the parties have little or nothing to gain by it—their lawyers little or nothing to lose by it.

On this happy occasion, the advocates on both sides appear seldom backward in contributing their parts towards so salutary a result. Why should they? Before things are come to this pass, the learned gentlemen have had their fees.

By termination in the ordinary way—viz. by a verdict in favour of one party or the other—nothing farther would be to be got. By a termination in some extraordinary way, in virtue of an agreement for that purpose, ulterior fees may be to be got in more ways than one; and if the overture be made, as it commonly is, before the evidence is begun to be heard, so much time and trouble is saved.

By agreement, the result may come to be modified, amongst others, in either of the following ways:—

1. By a direct compromise upon the spot.

2. By reference to arbitration: in which case, after a bad mode of inquiry, the cause is subjected to the only good one. To a good mode of inquiry—even to the very best—lawyers have no objection, when it is not substituted for, but given in addition to, their own, the bad one.

§ 6.

Case, non-penal: procedure without jury-trial: cause originating in a motion.

In the criminal class of suits, we have seen causes that take their commencement in motions: of this description are informations. We have seen others, that, having begun in motions, end there, without passing into any other mode of inquiry: such, unless in the accidental and comparatively rare case of supplemental interrogation, are attachments. Inquiry, in these cases, but one, and that by affidavit work.

The non-penal division furnishes, in like manner, causes (comparatively speaking) of the like simple texture: to this head belong causes arising out of awards, and causes arising out of judgments without previous litigation, or judgments (as they are called) by consent.

Incidental applications of all kinds—applications grounded on incidents arising out of a cause already commenced in some one or other of the above regular modes,—are introduced by motion, and carried on by affidavit work.

The class of causes here in question, though in substance and effect original, are in form and appearance incidental. Judgment as for debt, entered up (as the phrase is) on a warrant of attorney to confess judgment, is, in effect and substance, a mere contract between the creditor and the debtor—the supposed plaintiff and the supposed defendant; the judge, whose decision the enrolment of judgment professes to deliver, never having actually heard anything of the cause: but, according to the course of mendacity established in that behalf, the judges of the court in question are said to have taken cognizance of the pretended cause, and pronounced judgment accordingly; and by this means an inquiry, in reality original, assumes the form of an incidental one.

The like observations may apply to the case of motions grounded on awards, without much other difference than this,—viz. that the jurisdiction in this case, instead of being woven in the loom of jurisprudence by the shuttle of fiction, was fashioned in the proper manufactory, and put into the hands of the judge by the well-meant providence of the legislature.

The award—a decision formed by arbitrators, a sort of judges chosen by the parties—is made a rule of court, it is by that means placed on a footing with the judgment by consent, as described above.*

In this case, does the cause originate with the party who is satisfied with the award? A motion is made for an attachment against the other for non-performance of the award—for not rendering that service, the non-reddition of which has, by the conversion of the award into the equivalent of a judgment, become an offence against the authority of the court.

Does the cause originate with him who is dissatisfied with the award? It comes in the shape of a motion made by him, to set aside the award: the virtual judgment, though pronounced, is one the execution of which would not, it is contended, be consistent with the dictates of justice.

In the case of the judgment by consent, there has been no previous inquiry: the consent, the confession implied in that consent, stands in lieu of inquiry, and supersedes the use of it.

In the case of the award, there has been a previous inquiry; and that inquiry conducted in the best mode—the natural mode: examination ex interrogatu judicis et partium (cross-examination included), by vivâ voce answers to vivâ voce questions.

From the unlearned, the cause is brought before the learned, judge: and in what mode is it now conducted? In the very worst of modes. How so? Because it is a rule with them, an inflexible rule, when assembled four of them together, and without a jury, never to receive evidence in any other mode than the worst in use.

Compared with the general run of causes,—motion causes, causes originating in affidavit work, whether they end there or not, but more especially if they end as well as begin there, have one advantage: they bring the kernel of the cause to view at once, without the husk—the evidence, without the mass of useless and mendacious allegation on both sides, which neither is received, nor is intended to be received, as evidence. In comparison with the main body, they are a sort of summary causes.

Compared with the regular causes, these summary ones afford this instruction to the eye that is not afraid or ashamed to look at it; viz. that, by the implicit, but not less clear and undeniable, confession of those by whom regular and summary procedure are administered with the same imperturbable complacency, so much of the regular as consists in the sham inquiry, is so much sheer abuse.

What, in a word, is the character of this species of procedure? It wants nothing of being coincident with the domestic, the natural, the truly and solely just mode of procedure, but this one circumstance, viz. the conducting the inquiry in the best mode instead of the worst.

If the most learned persons who sit in judgment over the award, did but receive the evidence in the same mode as the unlearned persons who pronounced the award, “everything would be as it should be.”

Everything would be as it should be, if those who sit in judgment over inferior judgments would allow themselves the possibility of coming at the truth, instead of giving the monopoly of it to inferior hands.

[* ]In consequence of the efficiency of the new police, applications to the magistrates in the metropolis, for warrants to apprehend individuals charged with felony, are now very rare. When for the first time the magistrates hear of the matter, the person accused is, generally speaking, already in custody.—Ed.

[† ]Unless where the delinquent, being caught in the commission of the offence, is by individuals (with or without the assistance of a constable) brought to the magistrate in the first instance, before any warrant granted by him for the purpose, and therefore without any such warrant. In this case, the first ex parte inquiry is of course wanting, or (what comes to the same thing) converted into a reciprocal one.

[* ]Leach’s Cases. 3d edit.

[* ]Why not legal? Because, if not present, he stands bereft of two essential faculties, both necessary to his defence—the faculty of cross-examining the witnesses on the other side, and the faculty of producing evidence on his own side. To preserve him from this disadvantage, what is the course taken by the law? In case of his non-appearance, he is outlawed—subjected to an unfathomable mass of punishment, of which the punishment appropriated to the particular sort of offence of which he stands suspected, constitutes but a part.

[† ]It he pleads “not guilty,” in a case of felony, he is also told that he may challenge the jury, by objecting to any of the jurymen as they come to be sworn.—Ed.

[‡ ]Book V. Circumstantial; Chap. VI. Spontaneous self-inculpative Testimony.

[∥ ]A rule which in itself has no reason, affords, so long as it is suffered to exist, a reason, and even a use, for this preposterous subornation. Unless the defendant will plead not guilty, the particular facts by which his guilt is evidenced cannot forsooth be brought to view.a Why not be brought to view? What should hinder them? Why not receive his confession in general terms, and at the same time receive the confirmation of it by the relation of all the particulars? That, in point of reason, confessorial evidence conceived in general terms does not by any means supersede the demand for the statement of the facts in detail, will be shown in another place: but, to this purpose, mendacity on the part of the criminal—subornation of mendacity on the part of the judge, is no more necessary, or so much as conducive, than it is to any other useful and commendable purpose. In the nature of things, the plea of guilty would no more prove an obstacle to the continuance of the inquiry, than the plea of not guilty. But so familiar and so delightful is falsehood to the ear and the lips of an English lawyer, that without it he would be perpetually at a stand: it is the oil, with which the wheels must at every turn be greased, or the machine would stand still.

[* ]By 6 & 7 Wil. IV. cap. 114, counsel for the prisoner may now address the jury in cases of felony.—Ed.

[† ]Peace is a word without meaning, in the mind of an English lawyer. The peace is broken by an unsuccessful attempt to give currency to a forged note or a bad shilling. Adultery, though committed by consent, is never committed any otherwise than by force and arms.

[* ]See Book IX. Exclusion.

[† ]Ecclesiastical Court.

[* ]Book VIII. Technical Procedure; Chap. XVI. Written Pleadings.

[* ]In the minds of the contrivers, these arbitration courts (it seems not impossible) may have originated in the honest wish of diminishing litigation—of extending the benefit of justice to those to whom it might otherwise have been inaccessible, and saving them, at the same time, from the fangs of the men of law. But the projector, whoever he may have been, if not a lawyer, appears in great measure to have been either deceived by the wiles, or overborne by the power of lawyers: what they have gained by the institution is rather more ascertainable than what they have lost; that is, than what has been gained to justice.

1. Parties examinable, and of course examined: but no oath, consequently no punishment; licence for mendacity, as against everything that goes by the name of punishment—as against everything but shame, that punishment to which those only against whom the forms of judicature are least necessary, are sensible.

2. No such tribunal capable of being instituted, but by consent of both parties. Let there be a spark of mala fides on either side, no such tribunal will be instituted, unless it be in virtue of an expectation on one part. of profiting by the bona fides and consequent veracity on the opposite side, reserving to himself the benefit of mendacity on his own side.

3. Care has been taken, as above, that on both sides an appeal shall be open to the learning and probity of the regular tribunals, sitting by themselves, without the incumbrance of a jury. But, neither on these nor on any other occasions, do these masters of wisdom ever determine a question upon any other than that which, in respect of the mode of collection, is the worst evidence—evidence delivered in that form in virtue of which a malâ fide suitor and a malâ fide deponent act to most advantage.

4. There is a class of causes, nor that a scanty one, to the cognizance of which, as Blackstone confesses,a a tribunal with a jury in it is physically incompetent; and which, if not tried by this sort of voluntarily appointed tribunal, would, as he also intimates, not be tried at all—disputes having for their subject-matter long-winded and intricate accounts between merchant and merchant, for example. In respect of so many of these disputes, therefore, as, having been carried on in the first instance before the irregular tribunals, pass from them to the regular, the institution is so much clear gain to the regular ones: and as the mode of trial is such as holds out every encouragement to mendacity and dishonesty, if the source thus opened of litigation is not productive, it is no fault of the man of law.

[∥ ]A rule which in itself has no reason, affords, so long as it is suffered to exist, a reason, and even a use, for this preposterous subornation. Unless the defendant will plead not guilty, the particular facts by which his guilt is evidenced cannot forsooth be brought to view.a Why not be brought to view? What should hinder them? Why not receive his confession in general terms, and at the same time receive the confirmation of it by the relation of all the particulars? That, in point of reason, confessorial evidence conceived in general terms does not by any means supersede the demand for the statement of the facts in detail, will be shown in another place: but, to this purpose, mendacity on the part of the criminal—subornation of mendacity on the part of the judge, is no more necessary, or so much as conducive, than it is to any other useful and commendable purpose. In the nature of things, the plea of guilty would no more prove an obstacle to the continuance of the inquiry, than the plea of not guilty. But so familiar and so delightful is falsehood to the ear and the lips of an English lawyer, that without it he would be perpetually at a stand: it is the oil, with which the wheels must at every turn be greased, or the machine would stand still.

[* ]In the minds of the contrivers, these arbitration courts (it seems not impossible) may have originated in the honest wish of diminishing litigation—of extending the benefit of justice to those to whom it might otherwise have been inaccessible, and saving them, at the same time, from the fangs of the men of law. But the projector, whoever he may have been, if not a lawyer, appears in great measure to have been either deceived by the wiles, or overborne by the power of lawyers: what they have gained by the institution is rather more ascertainable than what they have lost; that is, than what has been gained to justice.

1. Parties examinable, and of course examined: but no oath, consequently no punishment; licence for mendacity, as against everything that goes by the name of punishment—as against everything but shame, that punishment to which those only against whom the forms of judicature are least necessary, are sensible.

2. No such tribunal capable of being instituted, but by consent of both parties. Let there be a spark of mala fides on either side, no such tribunal will be instituted, unless it be in virtue of an expectation on one part. of profiting by the bona fides and consequent veracity on the opposite side, reserving to himself the benefit of mendacity on his own side.

3. Care has been taken, as above, that on both sides an appeal shall be open to the learning and probity of the regular tribunals, sitting by themselves, without the incumbrance of a jury. But, neither on these nor on any other occasions, do these masters of wisdom ever determine a question upon any other than that which, in respect of the mode of collection, is the worst evidence—evidence delivered in that form in virtue of which a malâ fide suitor and a malâ fide deponent act to most advantage.

4. There is a class of causes, nor that a scanty one, to the cognizance of which, as Blackstone confesses,a a tribunal with a jury in it is physically incompetent; and which, if not tried by this sort of voluntarily appointed tribunal, would, as he also intimates, not be tried at all—disputes having for their subject-matter long-winded and intricate accounts between merchant and merchant, for example. In respect of so many of these disputes, therefore, as, having been carried on in the first instance before the irregular tribunals, pass from them to the regular, the institution is so much clear gain to the regular ones: and as the mode of trial is such as holds out every encouragement to mendacity and dishonesty, if the source thus opened of litigation is not productive, it is no fault of the man of law.

[a]When a prisoner pleads guilty, the usual course in England, is for the judge to read the depositions, and examine the witnesses, if he thinks it necessary, in order to determine what degree of punishment should be inflicted. In Scotland, this practice is not adopted; but in that part of the empire it is not customary for the judge to offer any recommendations as to the prisoner’s plea.—Ed.

[a]Book III. Chap. I. Arbitration, Vol. III. p. 16.