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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 XVII.

MODE OF EXTRACTION IN ENGLISH ECCLESIASTICAL AND ADMIRALTY COURTS—ITS INCONGRUITIES.

In the courts, called in English Ecclesiastical courts, as in the ecclesiastical courts of most other countries in Europe, the old Roman system forms (as everybody knows) the ground-work of the procedure. Hence (as bath so often been observed) a regular, but a pretty uniform and consistent, deviation from the natural mode, the only mode that could have been suggested by a real regard to the ends of justice. Hence at the same time a degree of uniformity, as between the procedure in penal and the procedure in non-penal cases: such a degree as indicated the convenience of bringing to view both branches under one head; especially on considering within what comparatively narrow, though still too ample, limits, the jurisdiction of these courts is, under the domineering controul of the original Anglican courts, confined.

With the exception of a slight regard to general utility, seconded by here and there a ray of the light of human reason let in in very modern times.* the state of existing jurisdictions is in England, as elsewhere, but more particularly in England, the result of the universal scramble, between violence and fraud on the part of each casual occupant of a branch of judicial power, and the like violence and fraud on the part of every other.

For putting in, each for his share (the greatest of course that could be obtained) of the common stock of plunderable matter, each set of learned depredators formed, in a different word or combination of words, a pretence. To the original gang, the original and primeval words law and justice were sufficient. These words having by hard wear been worn down into a certain degree of disrepute came another troop bearing another standard—the word Equity. All this while, in another quarter the attack was carried on by a third set, who were continually pronouncing the words Church, Soul’s health, Good of Souls.

That the chance for the attainment of truth will depend upon the mode employed in the extraction of it, and not upon the pronouncing this or that one out of the above, or any other, collection of words, will be evident enough to any man who is not determined not to see it. Yet in this third, as in the two former instances, the change of the word, thus affording a pretence for the exercise of judicial power, was accompanied by a change more or less considerable in the mode of inquiry pursued or allowed of, under the notion of coming at the truth.

Of penal procedure, three modes of primary distinction, with so many appropriate names: accusation, denunciation (or say presentment) and inquisition. Accusation, where an individual appears in the character of plaintiff or prosecutor: denunciation, where that function is undertaken by an official person or a set of official persons, a churchwarden or the churchwardens of a parish: inquisition (otherwise styled procedure ex mero officio,) where the function of prosecutor is exercised, for a time at least, by the judge.

The accusatorial mode is the mode that seems the properest to be taken for a standard; that of denunciation being only an inconsiderable modification of it, and the inquisitorial (how much soever in use in other countries) a sort of irregular and as it were incomplete mode, in which (as in an enthymeme when compared to a complete syllogism of three terms) one of the members naturally looked for is in appearance wanting, being consolidated with another.

1. First lot of evidence or deposition:—articles spontaneously exhibited by the accuser.

In these articles is included the statement given of the supposed offence by the accuser, he not being upon oath. Except that, from its division into articles (probably numbered articles,) it may be expected to be more particular,—the place it occupies in the cause seems to correspond to that of the indictment or information in the penal branch of the indigenous system of procedure, to the declaration in the civil or non-penal branch, and to the bill in equity.*

As to the imperfection attached to the evidence exhibited in this mode, it consists, here as elsewhere, in its being exhibited without the check of interrogation, and without the sanction of an oath. It is the same imperfection which (as if by an original contract) lawyers of all nations and all times have agreed in planting in the system, as the necessary means for rendering it well adapted to their own professional ends, and proportionably ill adapted and hostile to the ends of justice.

In other respects, we see already how much superior this sort of instrument is to those instruments of indigenous law, to which, in respect of its station in the cause, it corresponds. Digested into articles, and these articles numbered, a source of perspicuity is seen, the utility of which has already been pretty fully brought to view.

None of the technical nonsense—none of the gratuitous, and frequently injurious and insulting, falsehoods, of which those instruments of indigenous law are in so large a proportion composed. Of misplaced rhetoric, placed there for the benefit of the scribe, probably a pretty ample stock. But simple depredation is one sort of abuse—depredation stained by mendacity, and bedaubed with nonsense, is a more aggravated species of abuse.

2. Examination of the defendant, in answer to the above articles.

This examination,—being conducted, in the usual secrecy of the Roman mode, by the judge alone, or his representative, without the presence of the adverse (the accusing) party, or the advocate of either,—is therefore performed in the same way as the examination is performed (as above) by and before the master in the King’s Bench: with this difference, that the ecclesiastical examination has an object, viz. the finding out whether the defendant be guilty or no; whereas, in the case of the lay-examination, being performed after he has been deemed guilty, no object is discernible.

In the countenance of the initiative articles, there is one feature very particular, and which affords a curious enough specimen of ecclesiastieal justice. Over and above the statement made, in a manner more or less detailed, of the supposed facts and circumstances of the supposed offence,—a distinct fact is stated, viz. that a general report or rumour of it prevails in the neighbourhood: which is as much as to say that it is affirmed extrajudicially, by hearsay witnesses in unknown numbers, and whose statements respectively were removed by an unknown number of degrees, from the original source of evidence.

By the articles, the defendant is called upon to answer,—or at least, in consequence of them, he is obliged (and on pain of excommunication as for contumacy) to answer—as to what? As to the truth of criminative facts contained in the accusation? No: but only as to the existence of such a report, true or false.

Why not as to the only material point, the fact of the offence? For this very good reason,—that in an express statute it is declared, that, by the sort of court in question, no such obligation shall be enforced. Driven from this hold, from this mode of coming at material truth, they betake themselves thus to a lawyer’s shift:—Well then, we must not ask you what it was you did, but what is it that people say of you? To common sense and common honesty, nothing could be more idle than this question. Why are you in any event to be punished for what people say of you, unless what they say of you is true? In such a case, if punishment is due anywhere, the authors of the defamation, not the persons labouring under it, are the persons to whom it is due.

Not so, in the opinion of these ecclesiastics. In their opinion, or at least by their laws, it is on the party defamed that the punishment ought and is to be made to fall—at least if costs imposed under the name of punishment be a punishment. Though not guilty of the fact;—if to your knowledge there be such a report to your prejudice, being (or, if you are a true man, although not being) upon your oath, you can do no less than confess the existence of it: in this case it is expressly declared, that you are to be subjected to costs.* Confess or not, if it be proved that there has been such a report, guilty or not guilty, you are equally to be condemned to costs. Si fama confissata vel probata fuerit, pars rea condemnabitur in expensis.

What is again curious is, that,—though without a rumour the defendant could not have been obliged to make answer to questions concerning the truth of the charge,—yet, the existence of a rumour being established, as above, whether by his own confession, or by extraneous testimony, the protection meant by the legislature to be given him against these relevant questions is now taken off by these ecclesiastical judges; and (according to Oughton at least) he is obliged to make answer to all such questions, just as if no such law had been enacted. Obliged? How? By a mode which (it must be confessed) is not only a proper, but the only proper mode: by his being adjudged guilty—to wit, on the ground of his silence, considered in the character of circumstantial evidence.

Here then, we see, ecclesiastical ingenuity has afforded a pretty effectual contrivance for getting rid of the manacles imposed upon these holy hands. Spread a lying report, and then with the fruits of your own lie nullify the act of the legislature.†

If, either by the confession of the defendant or by extraneous witnesses, the existence of the rumour be proved,—a final remedy to which (always according to Oughton) it is competent to the spiritual practitioner to have recourse, is to propose to him (on pain of the ultimate punishment, excommunication) to declare upon oath, and in terms of convenient generality, without the inconvenience of adverse or particular examination, that he is not guilty of the offence charged. Giving a man this invitation to commit perjury, is, in the technical language of Romanigenous, canonical, and spiritual pharmacy, called giving him a purge (purgatio, purgotionis indictio:) perjury being, it seems, no less conducive than the evacuation of the purse, to the health of souls.

The administration of this cathartic stands prohibited in explicit terms in the Westminster Dispensary.‡ Oughton, though he recommends a reference to the statute, does not on that account think it necessary to represent this branch of practice as being the less in force.∥

To the eye of reason, standing upon experience, the pertinacity of a man refusing to answer questions (when they are permitted to be put) in relation to his supposed delinquency, is a more satisfactory proof of his being guilty, than any that can be afforded by any extraneous testimony. It is after having given this proof of his guiltiness, that the spiritual judge is allowed by the practice of the court to urge the defendant, on pain of conviction and the severe punishment of excommunication, to this protestation of his innocence.

Without any such rumour, confessed or proved,—in the administration of this cathartic, the spiritual judge is equally warranted by circumstantial evidence; provided that it merit the appellation of “vehement,” which is as much as to say, provided it be of that degree of strength which, under the indigenous practice, is held of itself sufficient for conviction in the most highly penal cases: another reason for suspecting that, if administered at all, this dose is scarce ever swallowed without carrying down with it at least a quantum sufficit of perjury.

One good thing is, that it does not appear there is any obligation upon the judge to make application of this drastic remedy: what I should expect to find, if there were any means of knowing, is, that within the memory of man it has scarce ever been applied.

Instead of being put to his oath, as in the Anglican mode,—at the very instant of his delivering his testimony in the Romanigenous mode, an examinee is made to swear on one day before one person, that he will deliver his testimony another day before another:* on which other day it appears not that any fresh oath is taken. In the promissory oath, does it expressly stand as part of the promise that the testimony when so given shall be true?† If not, the testimony can hardly be said to be delivered upon oath, according to the import annexed to that phrase by common use. The professed object of the oath so tendered is to secure submission in this behalf to the authority of the judge: and this object is attained by the mere act of submitting to examination: howsoever the matter of deposition may stand in respect of truth and falsehood.

In the practice of the ecclesiastical courts, (if the conception entertained by a modern institutionalist be correct) much inconvenience has arisen from the practice of taking the examining judges at the recommendation of the parties: as we have seen to be the practice in the case of country causes in the lay equity courts. Each one of these ephemeral judges espouses (it is said) too warmly the cause of the party to whom he is indebted for his appointment: the temper they bring into the business is that of the agent or the advocate, rather than that of the judge.

Since Oughton’s time, it has been the practice for the judge himself—the principal and permanent judge—to take upon himself the nomination of these occasional judges: not referring the recommendation to the parties, but choosing some person—some official person for example, some co-practitioner in the same branch of ecclesiastical law, to whom the interests of both are supposed to be alike indifferent. The situation of the person who officiates in that character, is by this means analogous to that of the examiner’s clerk, by whom, in the lay equity courts, the business is conducted in town causes.

This is spoken of as if it were a prodigious and clear improvement.

It may be too much to affirm, with absolute persuasion, that the change is for the worse: but whether on the whole it be advantageous, is at any rate extremely questionable.

Leave the nomination to the parties, you leave a danger of partiality, and ex parte zeal. But the danger is alike on both sides; and excess on either side finds its check and counterpoise in a similar excess on the other.

Give the nomination to the permanent judge; he being in the habit of choosing the judge or judges ad hoc among his fellow-practitioners, the danger to which the arrangement is exposed, is that of carelessness and negligence. But to this inconvenience there is no check whatever. From the secrecy so carefully preserved, it derives every facility and encouragement which it would be possible for it to receive.

The only indispensable advantage resulting from the change, is that which is reaped by the judge, and consists in the patronage he has contrived to create for himself by means of it. It affords him the means of throwing business into the hands of some personal friend and dependent.

This circumstance is of the class of those considerations which politicians in their mutual altercations are never backward to bring to view, but of which not the smallest hint is ever to be found in any book which has a lawyer of any class for its author.

For the conducting of the business in the best manner, two opposite endowments (it has been seen) are wanting; such as cannot with reason be expected to be found habitually united in one person or set of persons:—the zeal and appropriate information peculiar to the situation of party; and the moderation and skill derived from exercise—endowments which are naturally looked for on the part of the judge.

Of two systems, one of which affords the first of these qualifications without the second, the other the second without the first, nothing better can be said, than that they are both deficient. But, if the question be, which of the two, upon the ground of general principles, presents itself as most deficient and ineligible,—the answer seems to be, that which threatens the interests of truth and justice with irremediable negligence.

In the lay equity courts, both these defective and opposite courses have from the beginning of things been pursued with equal and equally imperturbable composure. A circle of ten miles’ radius is drawn round some central point in the metropolis of England—suppose the cathedral of St Paul’s. In all places an inch without that circle, the danger of deficiency of zeal predominates, and the examinations are taken by persons nominated by the parties. In all places an inch within that same circle, the danger of excess of zeal predominates, and the business affords a little mine of patronage for the benefit of some great dignitary in the law.

The only indisputable disadvantage attendant on that arrangement which gives the nomination to the parties, consists in the expense. Four functionaries, or at least two, require on this plan to be paid, instead of one. A single person, were it made his duty to do all the business of this kind that comes within the compass of a certain district, might, in consideration of the constancy of his employment, afford to do it upon cheaper terms than those others to whom it affords but a casual resource. These ephemeral judges have moreover a manifest interest in prolonging their existence, for the sake of prolonging their pay. A permanent judge would not be exposed to any sinister interest of this kind; to whatsoever other sinister interests he might stand exposed.*

In the institution of the examiner’s office, the geographical limits set to the jurisdiction of it were evidently suggested by considerations of utility and convenience. Within the space in question, less vexation and expense would be produced by sending the witnesses to a fixed tribunal, than by providing occasional tribunals all over the country, within an equally short distance of their several abodes: without that space, the economy of the arrangement would no longer hold. Not that the difference between ten miles exactly and ten miles and a foot, would be worth taking into account; but that all lines of demarcation must be drawn somewhere.

Making amendments of this nature in the equity or any other branch of the technical system, would be like laying new boards on a floor eat up by the dry-rot. But, inasmuch as, at the time when the radius of ten miles was marked out, the means of local communication were much less expeditious, and travelling much less frequent, than at the present day,—if (all circumstances taken into account) the examination at the examiner’s office were preferable upon the whole to examination by commissioners, a twenty-miles radius might seem better adapted than one of no more than ten miles, to the present state of things.

But every observation thus pointing to immediate practice stands exposed to this general objection, viz. that it supposes, on the part of those dignitaries on whom the state of the laws depends, the existence of some one person at least, to whom their degree of aptitude with reference to the ends of justice is not a matter of complete and incurable indifference.

In the Anglican ecclesiastical courts, the practice in respect of the mode of collecting the evidence of extraneous witnesses differs not materially from that of the equity courts. The leading features—examination per judicem solum, and that conducted under the seal of inviolable secrecy—are in both cases the same.

What differences there are, consist chiefly in an arrangement of two peculiar to the Romanistic courts; which, in so far as they are to be considered as having any of the ends of justice for their object, may be considered as so many sacrifices made to the direct ends, at the expense of the collateral ends.

After the deposition given by the examinee has been taken down by the examiner, it is read over to him article by article; whereupon liberty is given to him to make what amendment he thinks fit.†

The authenticity of the deposition being thus established,—for further confirmation of it, he is on another occasion brought into the presence of the judge; on which occasion the opportunity of making alterations is again afforded him.‡

Other ceremonies there are, which in the ecclesiastical courts appear to be added to those which have place in the lay equity courts. What they do towards making the bill of costs, is evident enough: but, as what they do towards increasing the security against falsehood seems to amount to nothing, they present no title to admission in this place.∥

The mode of collecting evidence in the admiralty courts differs not materially from that which is in use (as above described) in the ecclesiastical courts.§

A pamphlet was written a few years ago under the title of “War in Disguise,”—a pamphlet of considerable celebrity (proceeding from a name, which, though not announced, was not disguised,) having for its object the making it appear that, in the dispute between the British government and that of the American United States on a point of international law, the American government was in the wrong; and, moreover, that, for eluding the authority of those British judicatories to whose cognizance the point in question appertains, perjury was an instrument habitually and regularly employed by the subjects of those states.

That, in the charge thus made, there was a considerable degree of truth, there seems but too much reason for believing; the misfortune is, that, if so it be that it is the truth, it is far, very far, from being the whole truth.

In speaking of what in his language was “war in disguise,” it seemed to the gentleman that, in bringing to view the cause of the war, he had completely stripped it of all disguise. Unfortunately,—if, to the cause brought to view by him in the character of the immediate cause (or at least an immediate cause,) that character does appertain with too much justice,—a still higher cause, the cause of that cause, remains still in disguise; in a disguise which the gentleman was not quite so willing, as he was able, to divest it of.

In the case of perjury, as of any other crime,—if the station of the suborners be not too high to leave them within the reach of punishment,—in looking for the perjurers, it is customary not to stop there, but to look out also for the suborners. Unfortunately, in this as in so many instances, the station of the suborners is too high to leave them within the reach of justice. Of justice? of penal infliction? Aye, or so much as of shame.

These suborners are those (need it be mentioned?) by whom, with full and complete consciousness of such its character, a system of procedure thus fruitful in perjuries, having been found created, is preserved—preserved with full and complete consciousness of such its character; and, if not for the sake of the profit, yet surely not without pretty effectual knowledge of the profit, which, in so many shapes—money, power, and ease—in such abundance flows from it.

By what is the perjury supported? By the generally experienced efficacy of it in the courts to which it is presented. And what is the cause of this efficacy? What but a mode for collection of the evidence—a mode by which, whether obtainable or not obtainable in the universally-acknowledged best shape, an exclusion is put upon it in that best shape, while the door is kept open to evidence in the worst shapes from the same source: a mode than which, were the object (as perhaps it was) to encourage, to propagate perjury, none more promising, none more effectual, could have been devised.

For so many hundreds of years past, in more courts than one, and, in each court, in so long and illustrious a line of judges, by whom evidence in these perjury-begetting shapes has exclusively been received,—has there been one to whom the efficacy of this mode for the generation of perjury, its inefficacy for the support of justice, has been a secret, or could have been a matter of doubt? Has there been any one of them to whom trial by vivâ voce evidence with questions arising out of answers, and with cross-examination by parties, has been unknown? Have there been many of them to whom, when changes agreeable to them have been to be made, the road to Parliament has been unknown?

Now then, on the score of perjury, how stands the account between the United States and the United Kingdom? In the United States, the system of procedure known on both sides to be thus rich in perjury, has been abolished—long abolished. In the United Kingdom, having been sometimes attacked, it has been, and continues to be, strenuously defended and kept up. In these as in other cases, in regard to this abomination, the government of the United States has done what was in the power of government to do towards the extirpation of it: in the United Kingdom, government has done, and continues to do, what is in the power of government for the preservation of it.

In the United States, the transgressors are, not the rulers—(they have done whatever was in their power to purge themselves of the transgression)—but individuals. In the United Kingdom, the main transgressors—those to whom belongs the wo denounced against those from whom evil comes—are the rulers. As to individuals, members of those states,—if so it be that, in defending themselves against force which in their eyes is injurious, they abstain not from defiling their lips with perjury,—whence is it that they do so? It is from the facility and encouragement which, in the United Kingdom, as above, they receive from its rulers.

In the opinion of the late Dr. Browne, professor of civil (i. e. Roman) law in the university of Dublin, and representative in three parliaments for the same, the practice of the ecclesiastical courts (to which may be added that of the admiralty courts) has the advantage (he wishes us of course to understand in respect of conduciveness to the ends of justice) over the practice of the equity courts.*

Two main reasons are assigned by him:—

1. In the ecclesiastical courts, in the course of one and the same suit, each party has it in his power to obtain the testimony (the testimony upon oath) of the opposite party (this supposes only one of a side:) whereas in the equity courts, for the defendant to obtain in this way the testimony of the plaintiff, requires an additional suit, viz. a cross bid.*

If, in the one ecclesiastical or admiralty suit, the quantity of vexation, expense, and delay is (upon the average of the number of cases in each respective court presenting an equal demand for vexation, expense, and delay) less than in the equity courts,—in so far, the practice of the ecclesiastical and admiralty courts has the advantage over the practice of those its rivals, in respect of conduciveness to the ends of justice. How, in these respects, the account stands between them, it is impossible for an individual to pretend to say: it is in the power of the rulers of the people to know, should it ever occur to them that these matters belong to the list of “secrets worth knowing.”

In the ecclesiastical courts, “I scarcely ever knew,” says he,* “even the most complicated last two years. How few equity suits,” adds he, “are so soon over.” But the suits which come before the equity courts, are they not upon an average of a nature considerably more complicated than those which come before the ecclesiastical courts?

2. The other alleged advantage is, that, in the ecclesiastical and admiralty courts, “the personal answer of the party is demanded to the assertions and charges of his adversary, without putting them into the form of interrogation.”† This he calls “superfluous tautology:”† repeating the same story twice, first in the shape of assertion, “and then in the form of interrogation.”‡ And this “superfluous tautology” (he informs us) has been “corrected,” as he calls it, in the ecclesiastical courts, and not in the courts of equity; which he observes is very remarkable.∥

That there is tautology enough, and to spare, might perhaps, in the instance of which of these courts he pleased, be conceded to him without much danger: but how it should have happened to him to conceive that there is tautology in putting questions after having stated supposed facts, remains to be explained. True it is, that, what a man knows, or chooses to profess to know, he may express in the form of an assertion: but suppose a point, concerning which he really knows not anything, nor conceives nor professes himself to know anything, but wishes for information, and to obtain such information addresses himself to the adverse party, who he supposes may have it in his power to afford it. Where in this case is the tautology? So far as a man is really ignorant, to obtain information, there is but one way, which is to ask for it: to obtain answers, there is but one way, which is to put questions: to obtain information in relation to such and such particular points, there is but one way, which is to name those points.

That in a bill in equity there is commonly no want of superfluity, may safely enough be conceded: but so far as regards the parallel drawn by the learned professor, wherein does it consist? Not in the interrogative part, but in the assertive part—not in the endeavours used to obtain the information which a man does not possess, and has occasion for, but in the false pretensions in which, by weak or wicked judges it has been made necessary to a plaintiff to say that he possesses it, when the sole cause and reason of his asking for it is, that he does not possess it.

The courts of equity have split each suit into two suits; making a separate suit necessary to enable the defendant of the first suit to obtain the confessorial testimony of his adversary, in return for that which has been already furnished to him. The source of vexation, expense, and delay, thus opened, is an improvement made by English equity upon the original Roman practice retained in the ecclesiastical and admiralty courts, as well as in the whole system of procedure pursued in several other nations of Europe, in so far as they have taken the Roman system (as for the most part they have done) for the foundation of their own. But, from another source of vexation, expense, and delay, from which the ecclesiastical and admiralty courts (according to the information of the same learned professor) have made copious draughts, the equity courts have made no such draughts. To the sort of inquiry, on the occasion of which no licence is given to mendacity (viz. that on which each party, at the requisition of the other, deposes upon oath, and which consists of the effect of the equity bill reciprocalized, and in that way doubled,) the ecclesiasticalists have contrived to prefix the sort of inquiry by which the requisite licence is given to mendacity—by which the requisite profit is furnished to the men of law—by which no information consequently is furnished to anybody, nor (excepting the vexation, expense, and delay, to the parties) anything else but the profit to the men of law. In a word, before it suffers any information that can be depended upon to be obtained on either side, it makes it necessary that the men of law should occupy themselves in giving sham information on both sides: it mounts the common-law abuse of special pleading upon the more useful part of equity practice.

That, after everything that has thus been done by the ecclesiasticalists to augment the profitable mass of vexation, expense, and delay, still more has been done in the same line of industry by the dispensers of equity, is maintained by the learned professor, and may perhaps be true enough. If so it be, then it follows that there are grievances still worse than the system which he stood engaged to explain, was accustomed to draw upon for honour and for profit, and became thus disposed to eulogise. To compare one branch of the system with another, when a tempting opportunity offers in this or that particular to display the superiority of his own over a rival branch,—this is what a professor of any one of them, and each of them, may do without much difficulty. But to compare his own branch with the ends of justice—the professor who has courage to make any such comparison, is still to seek, and ever will be.

As to the supposed improvement in which the learned professor prides himself, it consists, we may see, so far as it takes place, in neither more nor less than cutting down examinations, and reducing them to affidavit work. Whether it be in the nature of this difference to add to the chance in favour of a full discovery of the truth, is a question that has already been considered.

[* ]Compared with the pure Anglicans (the common and equity lay-lawyers,) the ecclesiastical and other Romanist lawyers (the civilians as they are cailed) exhibit a perceptible distinction. Acting under the yoke of a predominating power, the latter refer every now and then to the principle of utility, as an oracle from which they look for popularity and for defence against the hand, the weight of which is constantly felt pressing on their shoulders. For such and such a reason (meaning in respect of such or such an article of perceptible convenience or inconvenience,) such or such a feature of Romanistic is preferable to the correspondent feature in Anglican practice.—Such was the language of Oughton, twenty years before Blackstone made his appearance: such was the language of Oughton, at a time when no lay-lawyer, no common lawyer or equity lawyer, had ever deigned to make any the loosest reference of the consecrated established arrangements of procedure to the ends of justice.

[* ]Oughton, ii. 218, 225.

[* ]Oughton, i. 221, 226.

[† ]The contrivance,—would it hold water?—Apply in the regular way to the Court of King’s Bench, and then you will know. In the year 1738, Oughton speaks of it as the then existing practice: in 1767, twenty-nine years after, Burn drops all mention of it. The contrivance is a trick; but on this ground, not to speak of others, tricks are established practice. If,—a man having been excommunicated for an offence of this description,—the spiritual court, for the purpose of causing pecuniary satisfaction to be made to the parties injured, offer, on that condition, to take off the punishment, their proceedings will be annulled.a But if, instead of making any such offer, they begin with imposing penance, and then, on the same condition, and for the same purpose, offer to take off the penance, so far so good. By a statute still in force,b in the case of this very offence, it is ordained, that, if the offender will redeem it (the penance) of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king’s prohibition shall not lie. The trick, then, is on the part of the lay judges; who,—when the spiritual judge, to save to the delinquent the expense, vexation, and delay of the previous and useless penance, proceeded to make his bargain by the ordinary means of the excommunication without the penance,—took advantage of this regard for public justice on his part, to nullify his proceedings, and leave the injury without redress.

Tenable or untenable, the mode of procedure on this ground, as it stands in Oughton, will serve equally well for illustration. If, in the character of a description of what can lawfully be done by these spiritual judges, it be incorrect,—in the character of a description of what in that way they have done, or would do, or would have done if they could, it is not the less instructive.

[‡ ]Stat. 13. C. II. c. 12, § 4.

[∥ ]Oughton, i. 223

[* ]Oughton, i. 217, 218.

[† ]Ibid. i. 217, Tit. 141, § 1, 2.

[* ]On a system radically bad, observations pointing out, as here, this or that particular defect, together with this or that partial remedy, answer no other purpose than that of illustration. When, instead of being carved out into fair slices by a geographical knife alone, jurisdiction is divided or rather torn into shapeless scraps by metaphysical instruments, the establishment may be oppressively expensive, and at the same time inadequate and insufficient.

[† ]Browne, ii. 421. Admiralty Practice.

[‡ ]See Ch. XII. Repetition.

[∥ ]See Browne, and Oughton.

[§ ]Browne, Compend. View, ii. 413.

[* ]Browne, i. 472.

[* ]Browne, i. 488.

[† ]Ibid. ii. 348.

[‡ ]Ibid. ii. 348.

[∥ ]Ibid. ii. 347.

[† ]The contrivance,—would it hold water?—Apply in the regular way to the Court of King’s Bench, and then you will know. In the year 1738, Oughton speaks of it as the then existing practice: in 1767, twenty-nine years after, Burn drops all mention of it. The contrivance is a trick; but on this ground, not to speak of others, tricks are established practice. If,—a man having been excommunicated for an offence of this description,—the spiritual court, for the purpose of causing pecuniary satisfaction to be made to the parties injured, offer, on that condition, to take off the punishment, their proceedings will be annulled.a But if, instead of making any such offer, they begin with imposing penance, and then, on the same condition, and for the same purpose, offer to take off the penance, so far so good. By a statute still in force,b in the case of this very offence, it is ordained, that, if the offender will redeem it (the penance) of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king’s prohibition shall not lie. The trick, then, is on the part of the lay judges; who,—when the spiritual judge, to save to the delinquent the expense, vexation, and delay of the previous and useless penance, proceeded to make his bargain by the ordinary means of the excommunication without the penance,—took advantage of this regard for public justice on his part, to nullify his proceedings, and leave the injury without redress.

Tenable or untenable, the mode of procedure on this ground, as it stands in Oughton, will serve equally well for illustration. If, in the character of a description of what can lawfully be done by these spiritual judges, it be incorrect,—in the character of a description of what in that way they have done, or would do, or would have done if they could, it is not the less instructive.

[a]Gibson, 9, in Burn, iii. 185.

[b]9 Ed. II. c. 3. [Repealed by 9 Geo. IV. c. 31.—Ed.]