Front Page Titles (by Subject) CHAPTER XVI.: MODE OF EXTRACTION IN ENGLISH EQUITY PROCEDURE—ITS INCONGRUITIES. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XVI.: MODE OF EXTRACTION IN ENGLISH EQUITY PROCEDURE—ITS INCONGRUITIES. - 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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MODE OF EXTRACTION IN ENGLISH EQUITY PROCEDURE—ITS INCONGRUITIES.
Equity is the name that has been given to law (jurisprudential law,) when the inquiry into the matter of fact and other proceedings are carried on according to a particular mode.
The origin and history of Equity, or rather of Equity courts, will be given in a subsequent book.*
It is in the mode of procedure pursued, and in nothing else, that the difference between common law and equity is to be sought. Law—common law—is that sort of jurisprudential law (understand, substantive law,) the arrangements of which are formed and carried into effect according to the system of procedure pursued in the courts originally styled simply courts of law, now occasionally, by way of distinction, courts of common law. Equity is that sort of law (jurisprudential substantive law,) pursued in the courts of more modern institution, which have by degrees acquired the name of courts of equity. That between law and equity there is any natural, intrinsic, original distinction, is a shallow conceit, the offspring of prejudice and ignorance. Equity itself is a mere word; the thing, of which it is the name, is the mere creation of the imagination. The arrangements of substantive law, to which men with the word equity in their mouths give effect, are, in many instances, different from the arrangements to which men with common law in their mouths give effect: but,—for distinguishing the one set of arrangements from the other, or the cases in which it is proper, from those in which it is not proper, that the courts of equity should interpose, and, by proceeding according to their system, establish such arrangements as they are in use to establish,—there is not in the word equity anything from which any the slightest direction can be obtained.
In the courts called courts of equity, the procedure is said to be by bill; that is, the instrument by which the suit is commenced (understand, the first instrument after the mere instrument of summons—the first instrument in and by which either party is considered as speaking) is thus denominated. Not but that, in the lexicography of English jurisprudence, the same denomination is given to a thousand other sorts of things.
In this procedure, both modes of delivering and extracting testimony are employed—the ready-written, and the vivâ voce mode: the one of them employed upon the one description of deponents, the other upon another; the one upon parties speaking in the character of witnesses, the other upon extraneous witnesses.
In this mode, as in the common-law mode,—lest malâ fide litigants should stand excluded, and lest, between bonâ fide litigants, the business should be settled too soon, and at too small an expense of words to the lawyers and money to the suitors,—the door is of course left open to mendacity in the first instance. In the written instrument, the bill, by which the suit commences, the plaintiff, not upon oath, enjoying a complete licence for mendacity, tells whatever story suggests itself to his professional fabricator as best adapted to whatever may be the purpose. In this bill (the length, and by that means the expense, of which, is whatever he is pleased to make it,) he possesses an engine of destruction, by the use of which, the stock of plunderable matter at the command of the defendant being given (not exceeding a certain quantity,) the victim may be consigned to certain ruin. To this purpose, it is not necessary that, from the beginning to the end, the bill should contain a single syllable of truth: and (that the licence given to him in this respect may be the more complete and uncontradicted) besides that he is freed from all apprehension on the score of punishment, he is not, even in this comparatively unimpressive mode, subjected to any such check as that of cross-examination. From the burthen of costs, it is true, he is not altogether exempted. In case of ultimate failure, in most, though not in all cases, he is liable to bear, not only the whole burthen of his own disbursements, but a considerable part (probably in general the greater part) of those incurred by his adversary. But, of this compensation on the one part, this check to oppression on the other, the time is postponed to the conclusion of the suit: a point of time which it depends upon the author of the suit to postpone, always for several months, and commonly for years—a length of time, previous to the expiration of which, the ruin of the defendant, and by that means the attainment of the object of the suit, without either right or shadow of right, may have been reduced to certainty.
Thus it is that, by the essential structure of the system, mendacity, in the character of an instrument of oppression, receives ample licence and encouragement. Truth, at the same time, and on the part of the same person, enjoys no licence: mendacity is not simply permitted—it is in large quantities, on various occasions, and in various shapes, compelled. A plaintiff whose delicacy should shrink from it would be punished with the loss of his cause. Not that, in the natural course of things, his delicacy is likely to be put to the test. The answer to this sort of bill must be the defendant’s own, and, besides his oath, he is made responsible for it by his signature. The bill is, on the contrary, the discourse, not of the plaintiff, whose discourse it purports to be, but of his lawyers: neither swearing to it nor signing it, in the ordinary course of things he never so much as looks at it.
The mendacity thus bespoken by authority, forced into the mouth of the suitor by the hand of power, may be distinguished into two masses—the unappropriate, and the appropriate.
By the unappropriate, I mean that which is of the same tenor or purport in every individual instance. This trash (besides that the quantity of it is, in comparison with the other, not very abundant,) being generally known, at least by lawyers, for what it is, produces, in the character of a mass of falsehood, a degree of mischief comparatively inconsiderable: no other than what consists in the exposing to the eye of the world the spectacle of intellectual debility, in conjunction with moral insensibility, occupying the sears of judicature,—the depraved taste which can endure the eternal repetition of so much useless nonsense,—the moral insensibility which, sheltering itself behind the plea of usage, is content in such sort to abuse its power, as to force one party to write falsehood, that both parties may be forced to pay for it.
By the appropriate mass of falsehood, I mean those particular false allegations which the rules of the court compel a plaintiff to employ his law assistant to stuff and stain his bill with, on pain of losing his suit.
In the matter of every bill, as before observed, there are two distinguishable parts: in the one, the plaintiff exhibits his own testimony in his own behalf: by the other, he endeavours to obtain, to extract, the testimony of his adversary the defendant. Aiming at the latter object, he is permitted to clothe, and accordingly does clothe, a correspondent portion of the matter of his bill in the form of questions or interrogations. So far, so good: but if this were all, the quantity of trash manufactured and sold, the quantity of profit extractable from the manufacture and sale of it, would not be sufficient. To supply the deficiency, a rule of practice has been established, and it is this: every interrogatory must have a charge to support it. What is here meant by the word charge? An assertion, commonly false, whereby the plaintiff, applying to the defendant for information concerning a matter of fact of which he (the plaintiff) frequently is altogether ignorant, declares his knowledge of it. The defendant, for example, is executor of the will of a deceased testator, by which a legacy has been left to the plaintiff. The plaintiff, knowing nothing of the state of the testator’s affairs, knows not whether, after payment of debts, there will be any and what pecuniary matter left for the payment of the legacy. Simply to put the question would be exhibiting an interrogatory without a charge for the support of it. To steer clear of this irregularity, the draughtsman turns to his common-place book for an inventory of the several shapes in which property is capable of exhibiting itself; and without resorting to his employer (a recourse which would be altogether useless,) speaking always in the person of his principal, he gives a list of all these modifications, and without more ado alleges and asserts that the testator had property in some, or if he thinks fit (for it makes no sort of difference) in every one, or all, of these shapes.
The same rule extends itself over every part of the case. To obtain a true statement, you must begin with giving a false one; and the object of the false statement being to exhaust the whole stock of modifications of which the fact in each case is susceptible, the mass of mendacious matter must be proportionally voluminous. The power of the judge is indefatigably displayed in enforcing the observance of this immoral rule.*
On this occasion an option addresses itself to the prudence of the draughtsman—an option to be made between the present interest of his purse, and the permanent interest of his professional fame. Of any sort of deficiency in the charging part, a natural result is a corresponding deficiency in the answer of the defendant—especially if the fact be of the number of those which are material to the support of the plaintiff’s claim, in which case a faithful adviser will be alert in the discovery of the flaw, and in enabling his client to take due advantage of it. The consequence is, that the correspondent interrogatory remains unanswered. This produces the necessity of an amendment to the bill; which accordingly comes back to be new tinkered up by the same hand by which the hole in it had been left. Infirmity is the general lot of human nature; but it is in the practice of the law only that a man may be sure to gain by it. Designed or undesigned, it is upon the head of the unlearned that the transgressions of the man of learning are avenged.
When, in this system of procedure, the individual subjected to examination is not a party but an extraneous witness, we shall see the mass of interrogative matter very properly broken down into distinct questions, and these questions numbered. Under the eyes of the same court, and in the same cause—in this initial stage of the same individual cause—this source of distinctness, this principle of order, is uniformly, and as it were carefully, steered clear of: the interrogative part is one undivided mass, the charging part is another undivided mass, placed before the interrogative. If, the charging part being divided into articles, the interrogative were divided into a correspondent number of articles, a deficiency in either would too readily be observed: the licence to evasion on one part, the demand for amendment on the other, would be too unfrequent: this must not be.
The charging part is accordingly elaborated into one shapeless mass, agreeing in that respect with the sort of composition which in common-law procedure we have been viewing under the name of an affidavit: differing only in respect of the licence for mendacity—a liberty which, in the case of a bill, is conducive (as hath been seen) to the professional and real ends of judicature; in the case of an affidavit, not so.
The charging part is worked up into one such mass, the interrogative into another. Not that the nature of the interrogative suffers its elementary parts to be quite so undistinguishable as in the other case: inasmuch as, if not a complete division, a sort of joint is naturally formed, as often as any of the interrogative parts of speech—the a hot, the when, the where, the whether—come to be repeated. The questions, and consequently the propositions to which answers are to be adapted,—these portions of the discussion, though not denominated, though not numbered, are in some sort (though thus insufficiently) distinguished.
When the established sources of delay have been exhausted (delay, a mischief which belongs not to the present work,) comes at length the defendant’s answer. The established licence to mendacity, having given birth to the suit—having, if the suit be a malâ fide one, thus fulfilled its obviously intended purpose—is now withdrawn: what a man says in the character of a defendant, he is made to deliver upon cath.*
If the bill, the instrument exhibited on the part of the plaintiff, were broken down into numbered articles,—in that case, if the matter contained in the defendant’s answer were broken down in like manner, the deficiencies in it (if any such were left) would be too clearly apparent: of an allegation unanswered, it would be seen, that it had been left unanswered, and thence virtually admitted to be true—of a question unanswered, it would be seen that it had been left unanswered, and in so far the obligation of furnishing the requisite evidence left unfulfilled. This again is what must not be: for, besides that on every occasion the influence of light is unfavourable to the health of the professional system, it would not be so easy as at present, when the first answer is called in, to increase the bulk of the second answer by groundless exceptions (exception is the technical appellative,) imputing deficiencies to the first. If charge article 2, or interrogatory article 2, had, in the corresponding article of the answer, received a fair and full reply, a degree of salutary shame might be felt by a draughtsman, who, in drawing up a paper of exceptions, should be disposed to accuse the answer of insufficiency in relation to these respective articles. But, when the charging part of the bill has been digested into one sort of confusion, the interrogative part into another, and the matter of the answer into a third, the industry and ingenuity of the drawer of the list of exceptions stands happily exempt from all restraint. Full or scanty, explicit or evasive, the answer is (for anything that can be seen clearly to the contrary) alike open to exception. Bill and answer together compose so thick a wood, that a bonâ fide traveller may lose his way in it, and a malâ fide traveller may, without fear of exposure, make as if he had lost his way in it: whatever be the means, the professional purpose is equally well fulfilled.
When the thread of examination has thus at length been spun on to its end—when papers of exceptions have been followed by fresh answers, these answers by new editions of the bill with amendments, these amendments again by fresh answers, these answers by fresh exceptions, these exceptions again by fresh answers, and so on to an end (if haply the suit be destined to have an end,)—the entire state of the case, so far as depends upon what the parties themselves know of it, is frequently but half exhibited. To complete the picture, what is called a cross bill is necessary. In the cross bill, as may be imagined from the name, the parties now change places: the defendant takes upon himself the character of plaintiff, and the obligation of answering questions is exchanged for the less irksome task of putting them.
In this cross cause, as it is called, veracity is now required from him upon whom in the original cause mendacity had been forced: and the same judge, by whose well practised hand mendacity had been planted in the heart of the suitor, calls for (can it be said expects?) sincerity as the fruit of it.
In other respects, no fresh observations seem necessary on the occasion of this supplemental half of a mercilessly-protracted, yet still imperfect, course of litigation: without any variation worth noticing, whatever has been predicated of the original cause may with equal propriety be predicated of the cross cause.
All this while no other progress has been made in the cause or causes (singular or plural, which you please) than the extraction of the self-regarding testimony on both sides. There remains to be collected (not to speak of evidence of the real or written kind) the testimony of extraneous witnesses—of whatever witnesses of this description the individual nature of the case has happened to present.
A moment’s pause.—In speaking of the testimony of the self-regarding kind—the testimony of the parties themselves, as having been extracted in the course of this process, (meaning the whole of it extracted,) I went too far. What each party has said to his own prejudice is now indeed looked upon as proved; credit is understood to be due to it: but whatever, in the character of plaintiff, either party may have said to his own advantage, is (as already observed) understood to be so much falsehood, and in that character goes for nothing. If, then, of what facts a party happens to have known to his own advantage, any part be, in the instance of either of them, capable of being employed to the advantage of him by whose discourse it is brought to view, it can only be in so far as it is in the character of defendant, that the ingenuity of the draughtsman has contrived to make him come out with it. Even then, great doubts and difficulties seem to have encompassed the question, how far he, of whom it is certain that he has spoken truth in one case, ought to be regarded as capable of speaking truth in the other case: and, for clearing up these doubts and difficulties, recourse has been had, on this as on every other part of the field of evidence—not to the discernment of the judge, judging from the particular circumstances of the individual case—but to unbending rules, binding the judge in each individual case to disregard the circumstances of the case before his eyes, in order to govern himself exclusively by the circumstances of some other case, of which the circumstances have never presented themselves, nor can ever be made to present themselves, to his view.
Lest the road of mendacity should not yet be smooth enough, and that the professional hand, which the suitor is forced to hire, may have as much to do as possible,—the change of persons (that species of falsehood, of which, besides the falsity, the mischief in other respects has already been brought to view) is imposed upon the defendant in each cause—upon him who, on pain of punishment as for perjury, is commanded to speak true—as well as upon the plaintiff, that is, upon him from whom (so long as he continues to speak in that character) truth is neither expected, nor so much as tolerated. In the case of the answer, as in the case of the bill,—the discourse ascribed to the party, having the professional assistant for its penman—who again speaks in his own person, if in any determinate person, at any rate not in the person of the party,—the party is thereupon required to swear it, and to sign it. In a language not his own—a language in which, from beginning to end, whatsoever of truth there be, is, if not falsified, at least disguised and travestied—in a language not his own, by a person he knows not who (for between the party and the draughtsman there is never any sort of contact, the attorney being the medium of communication,) he reads or does not read, hears read or does not hear read, hears read correctly or incorrectly, intelligibly or not intelligibly, what he swears and signs. Under these circumstances, if the burthen of legal responsibility is too conspicuous and too formidable not to have made some impression—not to have produced the effect of a check, as to such of the facts to which in the nature of the case it may have appeared applicable,—in the burthen of moral responsibility, if so it happens that he has any feeling of it at all, he is but too apt to feel, not so much a yoke itself, as the shadow of a yoke.
We come now, however, to the mode in use, in this species of procedure, for obtaining the testimony of extraneous witnesses: and now the mode employed is as different as if they were animals of another species, or inhabitants of another world.
Interested allegation, and thence spontaneous exhibition, being now out of the question,—what evidence is to be received from this source falls to be extracted: and the extraction is performed in the mode already brought to view under the name of the Roman (or say Romanigenous) mode: understand always a bad modification of that bad mode.
Of the Roman procedure on this head, considered on the footing on which it stands in general, the defective points in this respect have been already brought to view:—cross-examination by the adverse party, none; to the gap left by that deficiency, no adequate supplement: on each side, sole interrogator the judge—on whose part, not so much as in point of appropriate information, much less in point of zeal, can any degree of aptitude approaching to that of the party be reasonably expected.
On the continent of Europe, the operator on this occasion is at any rate a person bearing the official name, the power, the dignity, of a judge—beholding as such the eyes of the public pointed at his proceeding, curious to spy whatever may be to be spied through the crevices of his closet door; nor does this door, against whomsoever else it may be shut, refuse admittance to his official assistant and subordinate—his secretary—by whatsoever name denominated.
In the English mode (understand always the mode which claims to itself the exclusive praise of having equity for its guide,) no secretary—not so much as a judge—no person who bears the name, the dignity, or on any other occasion whatsoever exercises the function, of a judge. On this important occasion—the only sort of occasion which, were the legislator to perform his part, could ever occur to call into exercise the faculties of a judge,—his function is exercised by nobody knows what deputy, clerk, or clerk’s-deputy—an unknown and nameless underling, who neither in reputation nor in any other respect has anything to gain by good desert—anything to lose (corruption or other such palpable criminality excepted) by ill desert; and who, on each occasion, has but one interest in the business, which is to get through it in as speedy, and consequently in as imperfect, a way as possible.
The person who on this occasion fills the place that, if filled by anybody, ought to be filled by a judge,—this person being considered as an automaton, is not considered as possessed of the smallest particle of discretionary power; but reciting, as a parrot might recite, such questions as on each side have been put into his hands, receives such answers as the witness thinks fit to give to them: to subtract a word, to add a word, to change a word, all these operations are alike superior to his province. One opening indeed there is to further information, and that not chargeable (it must be confessed) with any deficiency in point of amplitude: the misfortune is, that it lies all of it on one side. Do you know anything further that may be of advantage to the plaintiff? says the concluding article in the paper of interrogatories delivered on the part of the plaintiff. Do you know anything that may be of advantage to the defendant? says a corresponding article in the paper delivered on the part of the defendant. Having no one before him that either knows a syllable, or cares a straw, about the matter—seeing no one before him, of whom it is possible for him to stand in any kind of awe,—the witness remembers on each side as much or as little as he pleases. Fear of consequences may prevent him from telling any falsehood for which he sees reason to apprehend detection and punishment from other sources; but for the utterance of any truth which in his view may appear pregnant with anything unfavourable to the side which his inclinations have espoused, there is nothing in the whole system put together that can afford him the slightest motive.
In the situation of the clerk who on this occasion acts the part of a sort of shadow of a judge, what can be supposed to be his inclinations or endeavours from the opening of the business to the conclusion of it? To get it out of his hands, and put an end to his labour—his obscure and thankless and in every shape unprofitable labour, as soon as possible;—to get some sort of answer to each and every interrogatory,—if such be understood to be his duty, i. e. the task, for a failure in which he might be in danger of being punished: to get an answer; but whether true or false, complete or incomplete, distinct or indistinct, intelligible or unintelligible, why should he care?
On this footing is this principal part of the judicial function exercised in that court (the Court of Chancery) by which by far the greatest part of the business called equity business is performed: that is to say, when the examination is performed in the district of the metropolis, being that district in which the greater part of this sort of business is performed. This accordingly is what may be termed the ordinary mode.
In the same court, what may be termed the extraordinary mode, the mode less in use, and at any rate employed only as a makeshift, may be pronounced somewhat less imperfect. Where the scene of the examination lies elsewhere than within the district of the metropolis,—on the occasion of each cause, a commission is granted to four persons, commonly attorneys, two of them recommended on each side. The court of justice is a room in some public house: and there it is, that, under the obligation—the anxiously enforced obligation of secrecy, the witnesses are brought together. Compared with the open mode by examination and cross-examination in a public court of justice, with or without a jury, this mode will be seen to be imperfect; though what particular quarter may be the seat of the imperfection may not be quite so easy to pronounce. These commissioners,—to what known class are their function and their station to be referred? Are they judges, mere judges, and nothing more? Then comes the deficiency in respect of appropriate information, and adequate interest and stimulus to exertion, as before. Are they mere agents of the parties by whom they are respectively nominated and paid? In this way of viewing the matter, we behold a judicature without a judge. The official experience, the habitual sense of dignity, the consequent solicitude in respect of reputation,—these endowments, so naturally attached to the station of the permanent judge, are not reasonably to be looked for on the part of these ephemeral judges. On the other hand, more or less of partiality towards the interests of the parties to whom they are respectively indebted for their appointment, and on that account a proportionable degree of zeal and acuteness in the conduct of the examination (which by this means wears in a certain degree the complexion of the reciprocal process of examination and cross-examination,) may not unreasonably be expected. But their zeal, if any such emotion be felt, has not, unless by accident, been excited or sharpened by any personal intercourse with the immediate agents of the parties, much less with the parties themselves: and, as to information with regard to facts, if they possess any beyond what the interrogatories themselves in their naked and unexplained state afford, it is again a matter of accident; and, if the supposition be realized, the information and function of the agents, the attorneys, of the parties, is communicated to these amphibious functionaries.
The only source of information they are sure to possess, consists of the above-mentioned sets of interrogatories, exhibited one on each, or perhaps only on one, side. These interrogatories must, by the rules of the court, have received the signature of an advocate, having been drawn up either by the advocate himself from a paper of instructions given to him by his client the attorney, or by the attorney himself. Drawn by whomsoever they may, they are necessarily presented uno flatu to the commissioners, to whom, in their character of judges or agents of the parties, they are to serve in the character of instructions. Comparing the situation of these deputies with that of the parties, it is obvious how indifferently qualified they will be for the putting of such questions as neither have been nor can have been comprised in the paper of interrogatories,—fresh questions arising in unlimited number and variety out of the unforeseeable answers to immediately preceding questions. Thus, in the respect in question, stands this modification of the regular mode, when compared with the summary mode, in which the mutual presence of the parties forms the essential and characteristic feature. Compared indeed with the mode observed in trial by jury, in which the presence of advocates, coupled with the absence or at least the inaction of the parties, is an inseparable circumstance,—the disparity in this respect may not be so great. If, when transmitted to the commissioners, the paper of interrogatories be accompanied by a paper of instructions as full as that which, under the name of a brief, has on the occasion of a trial by jury been put into the hands of the advocate,—it follows that (excepting the occasional faculty of vivâ voce communication with the attorney at the time of the trial) between the situation and means of information on the part of the advocate so called, and those of the commissioner thus qualified for exercising the function of an advocate, there is no very striking difference.
What might seem extraordinary enough (if in the practice of English jurisdiction any exemplification of inconsistency or of established contempt for the known ends of justice could appear extraordinary) is, that the comparative incongruity of this equity mode of receiving and extracting extraneous testimony is by no description of persons so explicitly and habitually recognised as by the very persons under whose authority it is so regularly pursued. In ordinary cases indeed, in by far the greater number of causes, this wretchedly adapted mode of investigation is suffered to take its course. Yet sometimes it does happen, that the least defective of the existing modes of extraction—the jury-trial mode, by examination and cross-examination, is looked upon as worth being employed; and in this case, trial by jury is the resource. The Chancellor knowing, and, by expression stronger than any words, confessing and proclaiming, that the only mode which he is in the constant habit of employing for the discovery of truth is a bad one, sends the cause (that is to say, this part of it) to another tribunal, the habits of which are less aberrant from the ends of justice. The practice is so familiar as to have acquired an appropriate technical name: it is called directing an issue.
The whole character and complexion of English judicature would be belied, if on this occasion as well as so many others, the professional fondness for mendacity were not indulged with its gratification. The operation belonging to the head of Procedure, the details of it belong not to this place. How the parties are forced, or one of them, to say a wager has been laid between them, though it is no such thing—a wager, as to whether the fact in question happened or no; how one of them is made to bring an action for the money pretended to be at stake on the pretended wager, saying that it has been won by him, for that the fact happened as he said—which the other on his part denies; how the connexion is made out between the sham demand and the real object of inquiry; how the court, in consideration of its self-created incapacity of conducting the inquiry in any tolerably good mode, finds itself under the manufactured necessity of sending the cause to another court, which has not precluded itself from the use of a less imperfect mode; how and in what proportion the delay, vexation, and expense, of a suit at law is by this ingenious husbandry grafted upon the stock of a suit in equity;—these are subjects, the exhibition of which will find a more apposite place under the head of Procedure.
The storehouse of inconsistency is not yet exhausted. The cognizance of a court of equity, how ill-defined soever its limits may be in other respects, is at any rate confined to questions of property. Among the largest masses of property apt to come thus in question—among those which give rise to the greatest number of causes cognizable by a tribunal thus denominated—may be reckoned the estates of bankrupts. Claims to the amount of a million or more have come thus to be disposed of on the occasion of the bankruptcy of a single house.* In cases of this sort, though there is nothing to hinder the claim from being preferred by the sort of suit above described under the name of a bill, it is much more common for it to be preferred by a different sort of suit, called a petition.† In this case, again, the mode of inquiry is altogether different. To avoid the only natural, and (when practicable without preponderant collateral inconvenience) the only just and rational mode, the same scrupulous and unvarying care is taken in this case as in all others. But neither is the mode pursued in all other cases by the same tribunal, less completely relinquished. The mode now pursued is exactly the mode already described as the worst of all modes—as the one exclusively pursued by the common-law courts on the occasion of every inquiry in which no jury bears a part:—I mean the affidavit mode.
Here, as at common law, the substitution of a less searching to a more searching mode of scrutiny, is sufficient to give admissibility and credit to the most decidedly inadmissible and incredible species of testimony. On this occasion as on that, the too-hastily adopted dictate of inconsiderate caution, nemo debet esse testis in propriâ causâ, is adopted, with no other change than that of a single word—the change of nemo into omnis. Call yourself plaintiff, your testimony goes for nothing:—call yourself petitioner, it is as good as anybody’s.*
Compared with procedure by bill, procedure in this way by petition may be, not altogether without propriety (as in practice it sometimes is,) styled summary: for the pace of an ox, how slow soever when compared with that of a greyhound, is swift when compared with that of a tortoise. But it would have been profanation, as well as confusion, to have degraded the only mode of inquiry dictated by nature, and honestly subservient to the ends of truth and justice, by confounding it with any modification of that factitious mode, which has so evidently had an end of a widely different description for its result, not to speak of its final cause.
The Roman mode of collecting evidence furnishes a source of complication and misdecision from which the English mode is happily exempt. In the English mode there is no medium between existence and non-existence: a proposed witness is either heard or not heard; his testimony is either delivered or not delivered: delivered, it exists, and it has its effect, if not with reference to all persons in general, at any rate with reference to all those who are parties in the cause.
In the Roman mode, the same testimony is susceptible of as many modes of imperfect existence, as the cause has parties: existing as to Titius, it may be non-existing as to Sempronius, and so on, in relation to as many points as there may happen to be found in the juridical compass.
A mass of ready-written evidence is constructed, constructed in private, in the secret workshop of the patent manufacturer, the judge. Thus constructed, it becomes an instrument that may be let out to anybody, refused to anybody: it may be applied to use at the instance of one person, refused to be applied to use at the instance of another.
Two plaintiffs: one of them has delivered assertions concerning the existence of certain matters of fact—assertions capable in their own nature of being employed in the character of evidence. This testimony (so, for argument’s sake, let it be called,) shall it be employed, or not? admitted, or not admitted? read (to employ the word in common use,) or not read? It may be read at the instance of that one of the plaintiffs whose testimony it is not—not read at the instance of the other. Being read, no matter at whose instance, it may be allowed to operate in favour of (or, as the phrase is, for) the one, not allowed to operate in favour of the other: operate to the prejudice of (or, as the phrase is, against) the one, not operate to the prejudice of the other.
Add now a defendant (or, for dispatch, say two defendants,) to match with the two plaintiffs. The testimony of the plaintiff in question may be read at the instance of one of the two defendants, not read at the instance of the other: it may be admitted to operate in favour of the one, not operate in favour of the other: operate against the one, not operate against the other.
Discard now the two plaintiffs: and let the testimony in question be that of one of the two defendants. The deposition may be allowed to be read at the instance of the deponent, not allowed to be read at the instance of the non-deponent:† or (what will be apt to appear more natural, because less dangerous) read at the instance of the non-deponent, not read at the instance of the deponent. Being read, it may be suffered or not suffered to operate for the deponent, suffered or not suffered to operate against him: and again, suffered or not suffered to operate for the non-deponent, suffered or not suffered to operate to his prejudice.
To reduce to its minimum the burthen of this disastrous arithmetic, two has been taken as the smallest multiplier: two, the number of the sides of a cause, increases the multiplier to four; those other points, at whose instance, for whom, against whom, swell it to twelve. But the number of parties in a case may, on either, or each side, be half-a-dozen—it may be half a score—an entire dozen, or an entire score—a hundred, any number of hundreds: a number amounting to divers hundreds may not improbably have been exemplified in practice. Take a parcel of creditors on one side, a parcel of legatees on the other, it will be evident that on neither side has the number any certain limits. Thus it is that the number of changes that are capable of being rung, in answer to the question, read, or not read? is plainly infinite. The number of folio volumes capable of being filled with discussions on the subject of these changes, is alike infinite.
The courts which have given admission to the distinctions pregnant with these changes and these discussions—the courts which have sowed the seeds of all this science—are the courts, which by the courtesy of England, have been complimented with the title of courts of equity.
Of all these possible distinctions, the number of those which have actually presented themselves to notice, and called forth decisions, and those decisions ripened into rules, is as yet extremely small: but, as yet, equity is but in her cradle.
Will reason be referred to, as the power by which the number of these distinctions either has been, or is capable of being, limited? Reason rejects them in the lump. If that power by which the existing ones have been fixed (supposing any to have been fixed) be reason, no other number but may equally be fixed by the virtue of the same cause.
That the testimony of one defendant, whether it be in the shape of an answer or in the shape of a deposition, cannot be read for or against another defendant without special order, seems tolerably well fixed. Unfortunately, in the words special order, a mystery is inclosed. The application by which the special order is called forth,—is it acceded to, as the phrase is, of course—that is, without being subject to contestation? In some of the instances where evidence is not admitted but upon special order, the affirmative is the case in every day’s practice. Special order, in that case, means nothing but a pretence for that for which, to a hand clothed with adequate power, any pretence serves; viz. extracting fees. In this case, if the order be understood to be preceded by reflection, the money extracted on the occasion is extracted on false pretences; for wherever the application (whether called motion or petition) is acceded to of course, the circumstances of the case are never so much as presented to the conception of the judge. Excepting always the part that consists in the eating of the fees, a wooden judge would be as competent to the business as the living one.
In the particular case in question, do the words special order imply faculty of contestation on the part of the adversary, and consequently the exercise of the faculties of hearing and reflection on the part of the judge? If yes, the special order may in each instance be governed and modified by the special circumstances of the case: and then, at the door thrown open by these special circumstances, in comes the goddess of Equity, with her infinity, her incomprehensibility, and all her other attributes, and with a pile composed of an infinite number of volumes for her throne.
From anything that has been said it must not be concluded that the ears of the principal judges in the equity courts are inexorably shut against all vivâ voce evidence. They are still open to receive it, in certain cases; and these cases are those in which it is of no use.
Proof of the authenticity of a deed is on one supposition, and one supposition only, of any use; viz. that it may have been fabricated or falsified in the way of forgery. Is forgery suspected? In this case, indeed, the proof of the authenticity of the deed is of real use; provided always that cross-examination and counter-evidence be allowed. On every other supposition, and setting aside this condition, it is a vain formulary—an operation without use.
In how many instances out of ten thousand is any suspicion, real or pretended, of forgery, manifested? If in ten, the proportion seems a large one.
In every other case—at least every other contested case—the probability seems to be, that, on one account or another, vivâ voce examination will be of use.
The result is, that this most efficient mode of scrutiny is, among the votaries of equity, reserved, as it were, with care, for the only class of cases in which it is of no use.
Of the myriads of instances in which it has been employed, perhaps not a single one is to be found in which it ever was of use. In the chancellor’s court of equity, does a suspicion of this kind present itself? Whatever contestation may arise, it is not the chancellor that will hear it, no; he will send it to be tried before a jury—he will direct an issue.
The collection of this part of the evidence in a mode thus comparatively undilatory, unexpensive, unvexatious—does it then belong to the list of grievances? No, surely: no otherwise than in as far as it stands parcel of the processes of that immense manufactory of expense, vexation, and delay, of which the existence is one continued and prodigious grievance. The fault belongs not to the head of absolute faults, but to the head of inconsistencies—not in the giving this best mode of scrutiny to these cases, but in the refusal put upon it in all other cases.*
If, following the track of his predecessors, it were possible (which it is not) for an English judge to do wrong, the narrow set of instances in which they have done right would only serve to render their conduct the more inexcusable. The result of it is, that they have known what is right—that they have had power to do what is right—but that they have not thought fit to exercise it.
In the accounts which are given by practical writers, of the mode of collecting the evidence, as practised under the authority of a court of equity, the word cross-examination every now and then presents itself. But, between the operation here spoken of, and the operation spoken of under the same name on the occasion of the inquiry called a trial, as carried on in a court of law, there is a very material difference. In the common-law operation thus denominated, the examination is performed by the advocate of the party, i. e. of the party opposite to him by whom the witness has been examined in the first instance: and, the answers given on that occasion being already known, the questions put in the way of cross-examination have the faculty of grounding themselves on any of those answers; as well as each successive cross-question (if so it may be called,) on the answers given to the several cross-questions that have preceded it. Under the cross-examination of the Romanists,* no such faculty is possessed. The exhibition of that set of interrogatories which is furnished to the examiner by the party by when alone, or by whom in the first place, the testimony of the examinee was called for, is called simply the examination, and answers to the examination in chief of the common lawyers. The exhibition of that set of interrogatories which is furnished to the examiner by that one of the parties by whom the testimony of the examinee was either not called for at all, or not called for till after it had been called for by the other, is what the Romanists mean when they speak of the cross-examination.
That this cross-examination of the Romanists does not afford any security equal to that which is afforded by the cross-examination of the Anglicans, will appear evident enough. To the lawyer by whom the set of interrogatories furnished by the party opposite to the invoking party are drawn up, it is not possible in every instance to foresee the interrogatories that will be exhibited on the other side: it is still farther from being possible to him to foresee each answer that will be drawn forth by each such question: it is, therefore, on a double account impossible for him to ground on every such answer, such question as in case of incorrectness or incompleteness (from whatever cause, mendacity, temerity, or negligence) might be conducive and necessary to the full and correct disclosure of the facts on which the merits of the cause depend.
To form the best conception that can be formed of the course pursued in this part of English judicature, a Frenchman can do no better than to think of the course pursued in his own country in legislative oratory. From pulpit No. 1, orator No. 1 having read a previously-written declamation, from pulpit No. 2, orator No. 2 reads another prepared declamation, in which (though the thesis is the same) no notice is or can be taken of a single syllable of what has been said in the declamation that preceded.
In the ecclesiastical courts, the examination being conducted in the same manner, the insufficiency of this spurious sort of cross and adverse examination, in comparison with the natural and genuine (the Anglican mode,) is of course felt in equal force.
What is curious enough is, that, in the case of the ecclesiastical courts, not only the effects of it are felt by the parties—felt to the prejudice of that one of them who has right on his side, but recognised and confessed by the institutionalists themselves.†
Speaking of the ecclesiastical courts,—“Imperfect and wretched” (said his Majesty’s attorney-general, addressing himself to the House of Lords.‡ ) “imperfect and wretched” is the “manner, in which cross-examination is managed upon paper, and in these courts.” Hearing this in their judicial capacities,—to how many of their lordships, in their legislative capacities, in the course of the fifty years that have elapsed, has it ever occurred that it might be matter of duty to endeavour to substitute in those courts a suitable mode of doing the business, to an unsuitable one? Not to a single one. What was said, was said in the presence of at least three law lords: Earl Bathurst, lord chancellor; Lord Mansfield, lord chief-justice of the King’s Bench; and Lord Camden, lord chief-justice of the Common Pleas. The same gentleman to whom, in the station of attorney-general and member of the House of Commons, the form or extracting evidence in these courts had with so much reason presented itself as wretched and imperfect, became afterwards lord high chancellor, and a member of the House of Lords: nor in the one station any more than in the other, does it appear ever to have occurred to him that the difference between the bad mode of administering justice and the good one was worth trying to do away. Whether what is established answers its purpose well or ill, is not worth inquiring about, so long as it is established.
Wretched and imperfect, however, as is the manner in which cross-examination is managed upon paper and in those courts, it cannot in any respect have been worse, or materially different, from the only one which is in use, was then, is now, and perhaps ever shall be in use, in those other courts of tenfold greater business and importance, in which this successful votary of the law was then practising at the head of the faculty of advocates, and afterwards for so many years presiding in the character of sole judge.
For profiting by the wretchednesses and imperfections of the law, the reward is rich and ample: for endeavouring to remove them, there is none. To carry on the existing bad course of procedure, according to the existing system of inconsistent and ever-fluctuating rules, is at once a matter of obligation, and a source of honour and veneration. To endeavour to make it less bad, is neither matter of obligation to anybody, nor source of anything but jealousy, hatred, and contempt.
[* ]Book VIII. Technical Procedure; Chap. XIX.
[* ]As everything has its reason (good, bad, or indifferent,) so has this: and at first glance it is rather a plausible one. If, for every question, a charge—a correspondent allegation, were not to be required, interrogation might run riot: there would be no end to questioning: a door would remain open, and that a boundless one, to impertinence. Plausible thus far: but where is the real utility at the bottom of it? What is required, is, that to every question there should be a charge: what is not required in the instance of any charge, is, that that charge shall be a true one. What follows? That the apprehended impertinence, instead of being checked, is doubled. To constitute a legal ground for each question, pertinent or impertinent, it is prefaced by an allegation, which allegation, as often as it is false (which it is perhaps still oftener than it is true,) cannot possibly be of any use. Thus stands the matter on the ground of utility; particular utility with reference to the particular object in view, viz. the obtaining a just ground for a decision to a particular effect, by the discovery of a particular mass of truth. With a view to the influence of this practice upon general probity, upon the public disposition to veracity, occasion will occur for noticing it in another place.
[* ]He cannot, however, be punished for mendacity, unless upon the evidence of at least two witnesses.
[* ]Gibson and Johnson.
[† ]Petition is the name given to the instrument by which, in cases of bankruptcy, claims are preferred to the Lord Chancellor sitting in a judicial capacity superordinate to that of the commissioners of bankruptcy, before whom the business is transacted in the first instance. To this species of judicature, in scientific strictness the term equity is said not to extend itself: it is as Lord High Chancellor that this great magistrate sits, and not as judge of a court of equity. Accordingly, in this branch of judicature, the other high court of equity, the Court of Exchequer, when sitting in its equitable capacity, does not participate.—[The judicature in bankruptcy has experienced considerable alteration by the establishment of a Bankruptcy Court, in terms of Lord Brougham’s Act, 1 & 2 Wil. IV. cap. 56. See the author’s remarks on the measure, in the pamphlet called “Lord Brougham Displayed” Vol. V. p. 549.—Ed.]
[* ]Some years ago, in the House of Lords (no matter on what occasion) an advocate (such being the exigency of his case) was inveighing against the monstrous absurdity, the notorious injustice, the immoral tendency, of allowing a party to appear as a witness in his own cause. The answer was a simple, but at least, in the character of an argumentum ad hominem, a pretty decisive one:—“In a court in which you are every day sitting, it is every day’s practice.”
[* ]In one other case I find an instance of an examination viv vocâ in court, viz. that before the principal equity judge. It is where two or more affidavits, charged with being contradictory, have been exhibited by the same person.—Wyat’s Practical Register, p. 10.
[* ]Browne, i. 478; ii. 421.
[‡ ]Duchess of Kingston’s Trial for Bigamy, anno 1776, Hargrave’s State Trials, vol. xi. p. 239.
[a]The deposition of a prisoner may also be read at the instance of a prosecutor, though the contents of the deposition will not be evidence against a co-prisoner, but only against the prisoner who made the deposition. 1 Phil. Ev. 108. In Scotland, where the prisoner’s declaration is almost invariably evidence against him (see above, p. 404, note) the same distinction is adopted.—Ed.