The Online Library of Liberty

A project of Liberty Fund, Inc.

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

CHAPTER XIX.

OF CONFRONTATION UNDER THE ROMAN LAW.

Confrontation, considered as belonging to the nomenclature of judicial procedure, is a term peculiar to Roman law. Ex vi termini, it denotes the bringing of one person into the presence of another: by institution, it denotes the bringing into the presence of a defendant, a person who, whether in the character of a co-defendant or that of an extraneous witness, has delivered testimony tending to the crimination of such defendant.

Under the head of confrontation may be found whatever advances (scanty indeed they will be seen to be) have been made in Roman procedure towards the introduction of that universal and equal system of interrogation above delineated and proposed: consequently whatever part has been covered by Roman law, of the ground covered by the operation called cross-examination in English law.

The operation has two professed objects: one is, the establishing the identity of the defendant, viz. that the person thus produced to the deponent is the person of whom he has been speaking; the other is, that an opportunity may be afforded to the defendant, in addition to whatever testimony may have been delivered to his disadvantage, to obtain the extraction of such other part (if any) of the facts within the knowledge of the deponent, as may operate in his favour. At the instance of the defendant, interrogatories suggested by him are accordingly permitted by the legislator (but subject to the discretion of the judge) to be propounded; thereby enabling the operation, as far as it goes, to contribute towards the trustworthiness and probative force of the testimony, as well in respect of correctness as completeness.*

This security has already been spoken of as being in its application confined far within the amplitude demanded for it by the exigencies of justice: the more closely it is examined, the more thoroughly will this conception of it be confirmed. It is narrowed and curtailed in a variety of directions: the quality of the cause; the description of the interrogators and respondents; the plenitude of the right.

1. Quality of the cause. It is confined absolutely to criminal causes; and, in general practice, to such criminal cases as may subject the defendant to corporally-afflictive punishment—peine affictive.

The defendant having already been interrogated by the judge in the darkness of his closet; the witnesses in support of the prosecution cited by the judge, where there is no prosecutor, or by the prosecutor (public or private) where there is one, having been examined in the same manner a first time, having under the name of repetition or recolement† been examined in the same manner a second time (the defendant not present at their examination either time:) a third examination takes place, as secret as before, except that the defendant, and the witnesses, one by one, are now, for the first time, introduced into each other’s presence.

Considering confrontation in the character of an instrument for the correction and completion of a lot of testimony,—an observation almost too obvious to be repeated is, that the demand for the use of it (that is, for one all-comprehensive system of interrogation, and for this operation as being among the branches of that system) has no respect whatsoever to the general nature,—to the penality or non-penality,—of the suit. The more highly penal the cause, the greater is the mischief of injustice, supposing it to take place; but as to the probability of its taking place for want of the sort of security in question, it stands exactly upon a par in both cases.

In the cases in which it is not afforded, as well as in the cases in which it is afforded, the importance of it has been not altogether a secret to the technicalists by whom it has been refused. To obtain the benefit of it, a defendant that has been proceeded against in the non-criminal (called the civil) mode, has begged to be treated as a criminal. Prayers to this effect have not been rejected; but the adverse party is permitted to oppose the grant of the prayer, on the ground that the importance of the cause is not considerable enough to warrant the expense. It seems, upon the whole, that where the defendant is able and willing to pay the expense of being treated as a criminal, the grace has not been refused.

On the first-mentioned ground, that of establishing the identity of the defendant, the appropriation thus made of the operation to criminal cases is in a double way incongruous.

Cases occur, and without number, in which the witness, though against the defendant a very material witness, has never been in his presence. Goods, for example, stolen in the absence of the owner, are found in the possession of the thief: the owner knows his own goods; but what knows he of the thief?

Cases occur also in abundance, in which, though the cause has nothing criminal in it, the point in dispute (and a point not to be settled without a judicial interview) may be, whether the person of whom the witness has spoken under a name the same as that of the plaintiff or that of the defendant, was in truth the person thus in question, or another. He saw a person, called by a name the same as that of the defendant, execute a deed: but was it really the defendant, or another person, who, perhaps for the occasion only, was called by that same name?—He saw a person called by a name the same as that of the plaintiff, living with an older person of that same name, in the character of his son: the like question again in this case.

So far as the use and application of the principle of confrontation is concerned, in non-criminal and slightly criminal causes, English law (it is true) is no less lame than Roman law. In a cause of another description, on a trial by jury, in the character of an extraneous witness, the attendance of any man may be enforced: in the character of a party, plaintiff or defendant, no man’s attendance can be enforced: mala fides in every shape finds a veil in absence. Happily, to the purpose here in question, the demand for confrontation does not frequently present itself.

2. Description of the interrogators and respondents. Subject to the restrictions that will be mentioned, the faculty of interrogation is allowed to the defendant, against the deponents, of whatever description, that have been testifying on the side adverse to him, whether in the situation of extraneous witnesses or co-defendants: for the caprice which in England prevents one defendant from being examined touching the conduct of another, extends not beyond English ground.

But the judge, it seems, on this third examination, is not allowed to interpose—is expressly interdicted from interposing, any question on his part;—that is to say, any question, which, by the particularity of the responses called for by it, can contribute to the elicitation of fresh lights. He may call upon, and is to call upon, each deponent, to declare over again—to declare, according to the tenor of the ordinance, in general terms, whether the testimony delivered by him on each former occasion was true: but, as to any question that in case of mistatement can help to rectify it, interposition for the purpose is forbidden in express words. On the two former occasions, the judge frames as well as puts all the questions; on this third occasion, he is not suffered to frame one: put questions he may—but such only as are framed by the defendants or witnesses, and by them desired to be put. But of this presently.

The defendant—the individual defendant whose confrontation is performing,—this defendant having put his questions to the co-defendant who is confronted with him, or to the extraneous witness who is confronted with him,—are they respectively at liberty to put questions back to him on their parts? On this head nothing said in the ordinance: on this point as on so many others, the natural result is that the judge does as he pleases—each judge differently, if he thinks fit.

What is clear is, that, when witnesses called for the defendant come to be examined, they are not subject to any interrogation ex adverso—to anything that in the language of English common law goes by the name of cross-examination, either on the part of a prosecutor, or on the part of a co-defendant: not on the part of a prosecutor; because, the examination being performed by the judge alone, and in his own cupboard, no prosecutor, no advocate, is let in: not on the part of a co-defendant; because at this time, if we may believe the commentators, the tide is turned, and mercy is the order of the day.

A circumstance that may help to reconcile justice to the sacrifice is, that by this time the defendant may have lain in prison any number of years, by which time any witness that he could have called may have died, or been otherwise disposed of: for it is a rule, that, till the proof on the side of the prosecution has been completed (and the time of its completion depends upon the pleasure of the judge,) no witness at the instance of the defendant can be heard.

3. Plenitude of the right. Cut down as we have seen it to be in the confused application left to it by the preceding restrictions, a security thus essential to justice is put into the hands of fortune—si besoin est,* if need be: and in each case, whether such need exist, is left, without controul, without a word either of obligation or instruction, to the good pleasure of the judge—of the very person on whose conduct it is designed (or at least ought to have been designed) to operate as a check.†

Nor yet is the defendant permitted (at least by the tenor of the ordinance) to put any one question of himself: his right is confined to the petitioning the judge to put it for him. The judge, as we have seen, is forbidden to put a question that has not been proposed by the defendant;* —the defendant is not allowed to put a question that has not been sanctioned by the judge.

That to the judge should be reserved a power to prohibit or exempt a respondent from making answer to this or that question (the question being noted down and recorded) is no more than necessary: otherwise the door would lie wide open to irrelevant and passionate matter without end. But the difference is considerable between making the right to put the question depend in the first instance on an express sanction given to it by the judge, and the allowing it to be put of course, subject only to stoppage for special reason.

On this as on so many other occasions, the real mischief, the root of all the evil, consists in the want of publicity. Under that regimen of darkness, a question, though ever so pertinent and important, may be stopped: an answer that would have saved the life of an innocent person may thus be suppressed, and no trace of the iniquity appear anywhere. Under the safeguard of publicity—adequate and appropriate publicity—no danger on the score of misdecision, capable of outweighing the inconvenience in the shape of delay and vexation on the other side, can present any adequate objection to so necessary a check.

The German edition of Romanistic procedure is, on this head, more explicit than the Gallican; and, by being so, more flagitiously and palpably tyrannical and iniquitous—more resolutely and openly bent upon the scarcely dissembled object of enabling the judge to sacrifice the innocent as often as he pleases to the sinister interests and passions of men in power; among which his own are not much in danger of being forgotten.

In English law, in the case of an extraneous witness, cross-examination is in principle regarded as the indefeasible right of each party; in all sorts of causes, penal as well as non-penal, the examination of a witness is never regarded as complete without it. Confrontation, in German as well as Gallic law, is a distinct operation, to be performed or not, according to circumstances; and at any rate not to be performed but at a different hearing, after the examination of the witness has been performed twice over, both times without the application of a check so obviously necessary to truth and justice.

In Germano-Austrian law, whether the imperfect modification of cross-examination called confrontation shall be performed or no, is in every case left in express terms to the arbitrary will and pleasure of the judge.† On the one hand, in no case is the use of it made obligatory upon the judge: on the other hand, partly by implication, partly in express terms, cases are specified in which it ought not to be employed. In one sort of cases, it is in express terms declared to be superfluous: and what, would an Englishman suppose, is that case? Where the defendant has already been “convicted by two classical witnesses.”‡ And who is a classical witness? Any man against whom no particular cause of objection can be produced.∥ Two witnesses, not the less false by being classical ones, charge an innocent man with a crime supposed to be committed by him at Vienna: two hundred unbribed witnesses agree in deposing that at the same day, hour, and minute, he was seen by them at Prague. Under these circumstances, is the defendant allowed to cross-examine these two classical perjurers? Not he indeed: the operation would be “superfluous”—too evidently “superfluous” to be admissible. The authors of the German Theresian code, and their Latin interpreter Banniza, are altogether clear about it.

After this specimen, to hunt out minor absurdities and atrocities, of which there are a most abundant breed, is an operation that may be spared.

In Romano-German as in Romano-Gallic law, where confrontation ends, there ends adverse interrogation—there ends cross-examination even in that faint shadow of it. In the minor penal branch, and in the whole of the non-penal branch, it is not only not made necessary, but not so much as suffered to be employed. Not that it is forbidden; but that, under any other name than that of confrontation, no such thing was ever heard of; and, without the idea of a criminal prosecution to hitch it upon, the idea of confrontation has never been able to find a place in any Roman-law-bred mind.

[* ]Another purpose mentioned, and much dwelt upon,a is that of the allowance given to a defendant to exhibit against a witness (an extraneous witness) objections tending to weaken the credit, or bar the admission, of his testimony. Of this I take no further notice; partly because, to that particular purpose, presence is not particularly necessary; partly because the subject will receive ample consideration in another place.b

[† ]Chap. XII. Repetition.

[* ]Ordonn. de 1670. Tit. xv. Art i. and ix.

[† ]The subject remains indeed, as usual, involved in thick confusion; the result of which is, as usual, that the judge might, in most cases at least, proceed as he found most agreeable to himself.

In the Ordonnance, in this first article (tit. xv.) after leave has been given to the judge to make the order as to the recolement absolute and peremptory, leave is then added for making the order as to the confrantation conditional and discretionary, as above. Si l’accusation mérite d’étre instrulte le juge ordonnera que les témois . . . . seront récoles en leurs depositions, et, si besoin est, controutés à l’accusé. . . .

In art. xi. a supposition is started, that at a point of time not specified, recolement and confrontation taken together have not been performed: and in that case, leave is given to the judges (les juges in the plural—before, it was le juge in the singular) to order these operations, so mentioned in conjunction, to be then performed.

In the article immediately preceding (art. viii.) it had been provided, that if an order has been made (it does not say by whom) that the witnesses be recoled and confronted, the deposition of those who have not been confronted shall not be received as proof, except in case of their respective deaths during the (defendant’s) contumacy. By this article, confrontation is thus rendered indispensable, viz. in case of an order for that purpose; but as to the making of such order, it is not rendered indispensable: and the article immediately following assumes that recolement and confrontation, one or both, have somehow or other failed of being performed.

As to le juge in art. i., and les juges in art. ix., the expressions may naturally enough be imagined to be synonymous. No such thing. For the performance of all these several operations,—examinations, recolements, confrontations,—a single judge is in every case sufficient: more than one are scarce ever employed. For pronouncing the bare order for these respective purposes (a matter, of course, that requires much less reflection) a multitude of judges. I pretend not to say how many, was in many cases indispensable. Accordingly, when, as in art. i., the ordonnance itself speaks of but one judge,—according to Jousse, the commentator, three or seven are necessary: three, if in a court appreciable from; seven, if in a court appealed to: referring, as to the three, to another title of the same Ordonnance (tit. xxv. art. x.) the provision of which, in this behalf, appears to be such as he represents it.

Another reference he makesa is to an arrêt of the Tournelle, by which it is adjudged and thence ordained, that no punishment either of an afflictive or infamous nature shall be pronounced, unless when recolement and confrontation have been both performed:—adjudged (I say) and thence ordained; for in France it was in this way the custom among judges to make laws avowedly in the prospective way, like legislators, instead of confining themselves to the making them in an unavowed and ex post facto way, as in England. But of this Tournelle court, the jurisdiction was limited by that of the Parliament of Paris: so that, in other parts of France, a judge (or the judges) did not find their liberty incommoded by this rule.

As mal-practice is but a casualty, especially among judges, there seems but little doubt that, in practice, conviction seldom took place without previous confrontation. A circumstance that will hardly be thought to weaken the probability on that side is, that, by the application of these subsidiary securities, the expense of the procedure, and with it of course the profit, never failed to receive a considerable augmentation.

As to the original legislator, the penner of the ordinance,—an expression he has let drop may afford at one view a proof of the value set by him on this security, and a sample of a technically-learned mind. In the case of non-forthcomingness on the part of the defendant,—recolement, the opportunity given to him and the other deponents to amend their respective answers,—recolement, a possible re-examination,—is declared to be equivalent to itself and confrontation put together: recolement vaudra confrontation, not, recolement tiendra lieu de confrontation. The logic of this jurisprudence, and the arithmetic, are worthy of each other: if both be correct, 0 must be the exact value of this security; a security which among English lawyers is regarded as so indispensable as to be without equivalent and without price.

Not but that in English law, the treatment given in this same case to a defendant is much worse—the contravention of the ends of justice much more flagrant. Absence, which though a circumstantial evidence with reference to guilt, is evidently a most untrustworthy and precarious one, receives among English judges the effect of a conclusive one. The Roman judge, complete evidence not being to be had, grounds his decision on what, of any that he is acquainted with, is the next best evidence: the English lawyer, shocked at the idea of convicting a man on imperfect evidence, convicts him without any evidence. But of this more fully in its place.

[* ]Jousse, p. 286; Tit. xv. Art. i. Note 7.

[† ]Branniza, ii. 219. § 460, referring to Code Therese, Art. xxxv. § 2.

[‡ ]Branniza, ii. p. 223, § 468. Code Therèse, Art. xxxii. § 15.

[∥ ]Ibid. ii. 193, § 409, 412, 415.

[* ]Another purpose mentioned, and much dwelt upon,a is that of the allowance given to a defendant to exhibit against a witness (an extraneous witness) objections tending to weaken the credit, or bar the admission, of his testimony. Of this I take no further notice; partly because, to that particular purpose, presence is not particularly necessary; partly because the subject will receive ample consideration in another place.b

[† ]The subject remains indeed, as usual, involved in thick confusion; the result of which is, as usual, that the judge might, in most cases at least, proceed as he found most agreeable to himself.

In the Ordonnance, in this first article (tit. xv.) after leave has been given to the judge to make the order as to the recolement absolute and peremptory, leave is then added for making the order as to the confrantation conditional and discretionary, as above. Si l’accusation mérite d’étre instrulte le juge ordonnera que les témois . . . . seront récoles en leurs depositions, et, si besoin est, controutés à l’accusé. . . .

In art. xi. a supposition is started, that at a point of time not specified, recolement and confrontation taken together have not been performed: and in that case, leave is given to the judges (les juges in the plural—before, it was le juge in the singular) to order these operations, so mentioned in conjunction, to be then performed.

In the article immediately preceding (art. viii.) it had been provided, that if an order has been made (it does not say by whom) that the witnesses be recoled and confronted, the deposition of those who have not been confronted shall not be received as proof, except in case of their respective deaths during the (defendant’s) contumacy. By this article, confrontation is thus rendered indispensable, viz. in case of an order for that purpose; but as to the making of such order, it is not rendered indispensable: and the article immediately following assumes that recolement and confrontation, one or both, have somehow or other failed of being performed.

As to le juge in art. i., and les juges in art. ix., the expressions may naturally enough be imagined to be synonymous. No such thing. For the performance of all these several operations,—examinations, recolements, confrontations,—a single judge is in every case sufficient: more than one are scarce ever employed. For pronouncing the bare order for these respective purposes (a matter, of course, that requires much less reflection) a multitude of judges. I pretend not to say how many, was in many cases indispensable. Accordingly, when, as in art. i., the ordonnance itself speaks of but one judge,—according to Jousse, the commentator, three or seven are necessary: three, if in a court appreciable from; seven, if in a court appealed to: referring, as to the three, to another title of the same Ordonnance (tit. xxv. art. x.) the provision of which, in this behalf, appears to be such as he represents it.

Another reference he makesa is to an arrêt of the Tournelle, by which it is adjudged and thence ordained, that no punishment either of an afflictive or infamous nature shall be pronounced, unless when recolement and confrontation have been both performed:—adjudged (I say) and thence ordained; for in France it was in this way the custom among judges to make laws avowedly in the prospective way, like legislators, instead of confining themselves to the making them in an unavowed and ex post facto way, as in England. But of this Tournelle court, the jurisdiction was limited by that of the Parliament of Paris: so that, in other parts of France, a judge (or the judges) did not find their liberty incommoded by this rule.

As mal-practice is but a casualty, especially among judges, there seems but little doubt that, in practice, conviction seldom took place without previous confrontation. A circumstance that will hardly be thought to weaken the probability on that side is, that, by the application of these subsidiary securities, the expense of the procedure, and with it of course the profit, never failed to receive a considerable augmentation.

As to the original legislator, the penner of the ordinance,—an expression he has let drop may afford at one view a proof of the value set by him on this security, and a sample of a technically-learned mind. In the case of non-forthcomingness on the part of the defendant,—recolement, the opportunity given to him and the other deponents to amend their respective answers,—recolement, a possible re-examination,—is declared to be equivalent to itself and confrontation put together: recolement vaudra confrontation, not, recolement tiendra lieu de confrontation. The logic of this jurisprudence, and the arithmetic, are worthy of each other: if both be correct, 0 must be the exact value of this security; a security which among English lawyers is regarded as so indispensable as to be without equivalent and without price.

Not but that in English law, the treatment given in this same case to a defendant is much worse—the contravention of the ends of justice much more flagrant. Absence, which though a circumstantial evidence with reference to guilt, is evidently a most untrustworthy and precarious one, receives among English judges the effect of a conclusive one. The Roman judge, complete evidence not being to be had, grounds his decision on what, of any that he is acquainted with, is the next best evidence: the English lawyer, shocked at the idea of convicting a man on imperfect evidence, convicts him without any evidence. But of this more fully in its place.

[a]Ordonnance de 1670, tit. xv.

[b]Infra, Book IX. Exclusion.

[a]P. 281; Art. i. Note 1.