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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER VI.

OF SPONTANEOUS* SELF-INCULPATIVE TESTIMONY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.

Confession, and confessorial evidence, what—distinction between them.

When the supposed delinquent is really guilty—the offence the subject of discourse between himself and another person—and he himself the speaker,—in the natural course of things, the composition of the discourse will be a mixture of falsehood and truth: fear of detection, and the view of the criminative force with which (in so far as followed by detection) falsehood never fails to act, being sufficient to prevent it from being willingly recurred to in any other case than where, to repel suspicion, it seems altogether indispensable. But, though in the discourse itself these elements will generally be found in a state of combination, yet, for the purpose of explanation, it will be neither useless nor impracticable, to separate them in idea, and examine them apart.

Moreover, on the occasion of any such discourse,—howsoever it should have happened that the discourse was begun by the supposed delinquent, whose conduct, by the supposition, is the subject of it,—yet it will seldom happen but that, in the view taken of it by the hearer or hearers (say, for simplicity’s sake, the hearer,) it will in this or that part appear obscure, ambiguous, or (if not incorrect) at any rate more or less imperfect; in every one of which cases,—if, on the part of the hearer, discourse as well as thought is free,—interrogation on that part, responsion on the other, will, in some shape or other, take place of course.

In the ordinary colloquial intercourse between man and man, it is, however, not less natural for the discourse to take its commencement without interrogation than by interrogation: having been thus begun, it may happen to it to continue upon that same footing for any length of time: and, so long as upon that same footing it does continue, it will be conducive to distinctness of conception to consider in what shape the sort of evidence in question—self-disserving and self-criminative verbal evidence—is capable of presenting itself by itself, and without any admixture of that sort of evidence in the extraction of which interrogation has been the instrument employed.

When, on the part of a supposed delinquent, discourse of the self-regarding kind, and (with relation to the offence in question) of a self-disserving, and thence (it being a case of supposed delinquency) of a self-criminative or self-inculpative tendency, is considered as sufficient of itself to justify a judgment of conviction, declaring him convicted of that offence,—such discourse is, when taken in the aggregate, styled in judicial practice a confession.

In regard to the two modifications of evidence distinguished from each other by the denominations of direct and circumstantial, it has already been remarked how intimate the connexion is—how faint, and oftentimes scarce determinative, the boundary line which separates them.

A confession, if so it really be that it is particular enough to form a sufficient ground for conviction, cannot fail to contain more or less of that sort of evidence which, requiring no ulterior inference to be drawn from it, may with propriety be considered as being of the nature of direct evidence. But, moreover, what can scarcely happen is, that it should not contain any admixture of circumstantial evidence; viz. of propositions, each of which (coming as they do from the supposed delinquent,) supposing it to have stood by itself, might have operated with more or less probative force towards conviction, by means of some inference for which it would afford a ground,—by means of some such inference, and not otherwise.

When it amounts to a confession, the mass of discourse in question is full and satisfactory, as above. But even when, so far as it goes, the tendency of it is disserving, and, in respect of the occasion, self-criminative; yet, when delivered in loose and casual fragments, it may happen to it to possess this tendency in any the slightest degree imaginable; operating with any degree of probative force, from the highest to the lowest.

In the case where the whole mass, being complete, would have amounted to a confession; if any fragment is broken off, the remaining force may be styled a mass or article of confessorial evidence.*

This, it will be seen presently, is far from being the only species of imperfect self-disserving, and thereby self-criminative or self-inculpative, evidence, exemplified in practice. It is, however, one species of self-disserving evidence: and forasmuch as a mass of simply confessorial evidence (i. e. a mass of confessorial evidence not amounting to a confession) does not of itself form a sufficient ground for conviction, while a mass of confessorial evidence amounting to a confession does of itself form a sufficient ground for conviction,—it would be of no small utility in practice, if a criterion was established, whereby, without danger of dispute or misconception, it might upon every occasion be pronounced of a mass of self-disserving and self-inculpative evidence, whether it was a complete confession, or nothing more than a mass more or less considerable of confessorial evidence.

Let this criterion be constituted by the application of the process of interrogation: interrogation, oral or epistolary (as shall be determined,) but at any rate judicially performed: insomuch that,—be the mass of confessorial evidence, upon the face of it, ever so correct as well as complete,—yet, until and unless, for the assurance of its correctness as well as completeness, it has had that security which it is not in the power of anything but the process of interrogation to afford, let it not be considered as amounting in any case to a confession, for any such practical purpose as that of conviction, as above mentioned.

Short of a confession—although (so far as it goes) confessorial—it may of course be, after and notwithstanding interrogation; but without interrogation let it never be considered as amounting to a confession, in what degree soever, upon the face of it, ample and instructive.

Another condition which it might, perhaps, be proper to add to the description of a confession, is this: viz. that, to amount to a confession, although extracted by judicial interrogation, it ought to be such as would have been sufficient to warrant a conviction had it been delivered by an extraneous witness.

Self-regarding evidence, as has been observed in a former chapter, is the only species of direct testimonial evidence which, with reference to a complex act of the description in question (a criminal act,) can be complete, without comprehending any article whatever of circumstantial evidence—without leaving any fact to be made out by inference. When it is thus complete—mention being made in it of every fact (psychological as well as physical) which is necessary to complete the description of the offence (this deponent, the person whose testimony it is, being the defendant, the person who stands accused or suspected of that offence;) such body of evidence may be termed plenary confession. If there be any one such fact, of which express mention is not contained in the mass of evidence so denominated, the confession, whether satisfactory or not, is, at any rate, short of plenary. In practice it may very well happen that in this or that instance it may, without being strictly speaking plenary, be considered as being equivalent to plenary, and as satisfactory as if it were so. As, for instance, if Reus, being accused of the murder of Occisus, on being interrogated, says, “Yes; it was indeed I who struck the fatal blow.” In this example, nothing more is necessarily deposed to than the physical act: but, from the confession thus made of the physical act, the existence of the correspondent intention (a psychological fact) will naturally enough be inferred of course.*

There is no imaginable lot of testimonial evidence which may not (as hath already been observed) operate in the character of direct as well as in that of circumstantial evidence. As this is the case with extraneous, so is it, and more particularly, with self-regarding evidence. Direct with reference to one fact (the fact asserted by it,) it may be circumstantial with regard to another fact, a fact inferred from the assertion. But its being capable of operating in the character of direct evidence, does not lessen the force of the demand which calls upon us to consider it in the character of circumstantial evidence. There is, therefore, no possible modification of confessorial evidence, that will not require to be considered here under the head of circumstantial evidence. In truth, it is only in its character of confessorial evidence—in respect of its capacity of affording inferences, meant or not meant by the party to be drawn from it—that it admits so great a variety of modifications. Consider it purely and simply in the character of direct evidence—consider the asertion as evidentiary of the fact asserted by it, and nothing more,—all these distinctions vanish. By the assertion in question, the fact asserted is proved, or not proved,—that fact, and that fact alone,—according as the testimony is regarded as true or false.

In considering whether a given lot of self-regarding evidence belongs or not to the head of confessorial evidence, regard must be had, not to the conception entertained or not by the confessionalist himself, in regard to the consequences of it (whether to himself or others,) but merely to the use eventually made of it when exhibited in the course of the cause. The application of which it is regarded as susceptible being considered, the idea of reluctance on the part of the confessionalist will naturally enough be presented by the term confession, and its several conjugates. But if reluctance were looked upon as a necessary component circumstance, the extent of the idea thus annexed to the term would be found to fall far short of the extent that will be found necessary to be given to it on many of the occasions on which the demand for it presents itself. These occasions will be distinctly brought to view, when we come to speak of the different modifications of confessorial evidence. The case where the utterance of it is attended with reluctance, is but one out of many distinguishable modifications.

§ 2.

Of spontaneous confessorial evidence extra-judicially delivered.

Of this species of evidence it being one characteristic property that the tendency of it is prejudicial, and that in any degree up to the highest, to him to whom it owes its birth; and another, that it comes out spontaneously, and without any application of the instrument, with the help of which, evidence of the same tendency is capable of being extracted from the unwilling mind by the hand of power; two doubts naturally present themselves as seeking for satisfaction: viz. to what causes it is capable of owing its birth? and to what others its introduction to the theatre of justice?

To the first of these questions an answer may be conveyed by so many specific denominations, each of them having the effect of indicating the cause (the psychological cause) to which the species so denominated owes its birth. To the other, an answer will be afforded by an indication given in each instance of the causes of transpiration; incidents, by the force of which it has been found in practice that evidence of the species in question has made its way to the theatre of justice.

1. First species of self-inculpative or self-criminative evidence, conspiratorial evidence. Discourse held amongst delinquents as to the time, place, means, and other circumstances, of the offence; whether already committed, or as yet but meditated.

Examples of the causes of transpiration:—1. Over-hearing; 2. Loss of papers by accident, by interception, by seizure; 3. Disclosure, with or without treachery, on the part of one or more of the co-delinquents.

2. Simply confidential. A disclosure made (whether from any interested view, or merely in expectation of sympathy) by one or more of the co-delinquents, before or after the commission of the offence, to an individual who either was or was expected to be a partaker in it.

Transpiration causes, the same in this second case as in the first.

3. Jactitantial—directly or purposely jactitantial. The supposed offender, taking a pride in the offence, or in the reputation of having committed it, makes an intentional and unreserved statement of it, in a manner more or less circumstantiated, to one on whose part he expects on that account esteem or sympathy.*

Transpiration causes still the same.

4. Jactitantial through unadvisedness. In the view of conciliating esteem or sympathy, a man relates some act of his, in itself not criminal or otherwise obnoxious, but which (in one way or other) becomes evidentiary of the principal act—the act of delinquency in question.

Transpiration causes, still the same.

5. Simply unadvised, or unadvisedly colloquial. In the way of ordinary conversation, without any design of boasting, a man speaks either of some act of his own, or of any other incident, any other matter of fact, which—in virtue of some connexion, that he is not aware of, with the principal fact in question, the fact of his delinquency—operates in the character of an evidentiary fact in relation to it: for example, his having been in such a place at such a time.

Transpiration causes, still the same, except that there is no place for treachery, no confidence having been placed.

6. Unadvisedly exculpative. Finding or apprehending himself exposed to the imputation of the act of delinquency in question,—the supposed delinquent, in the view of wiping off the imputation, or screening himself from it, mentions in discourse some matter of fact, which, without his being aware of such its tendency, contributes to the contrary effect, as above.

Transpiration causes, as per last; no room for treachery.

7. Penitential, or penitentially confessorial. Though, by the supposition, the occasion on which it is delivered is here extra-judicial, it may happen to it to have been delivered in contemplation of its being judicially produced in evidence. If so,—here, as in the case of a confession or confessorial evidence judicially delivered, transpiration is out of the question. If so it were that the communication was made in confidence, it then, in respect of transpiration causes, coincides with simply confidential self-disserving evidence, as above. But, in this case, as in that other, it remains for inquiry, by what causes a course so repugnant to the universally-prevalent principle of self-preservation was produced.

8. Superior-benefit-seeking. By the pursuit of some benefit, it may happen to a man to make known some fact, which—without his being aware of it, or even though he be aware—may happen to contribute, in the character of an evidentiary fact, towards his being convicted of the offence in question. Probability and nearness, as well as magnitude, considered on both sides, it may happen that the value of the benefit shall be in his eyes so great, as to more than compensate for the risk of the whole mass of evil, punishment included, which he beholds attached to the offence.

The infirmative considerations applicable to the probative force of criminative circumstantial evidence of this class, seem capable of being designated in general terms by three words: viz. 1. Misinterpretation; 2. Incompleteness; 3. Mendacity.

1. Misinterpretation has in this case the effect that incorrectness on the part of the evidence itself has, if not misinterpreted: inasmuch as, though the evidence itself be not incorrect, yet the conception produced by it (either in the mind of the judge, or in the mind of the extra-judicially percipient witness, the ear-witness of the discourse, and through him in the mind of the judge) is incorrect and deceptitious; causing the supposed delinquent to be believed to have committed an act of delinquency which in truth he did not commit.

2. As to incompleteness; it depends upon the manner in which it is incomplete, whether the effect of it shall, to the prejudice of the supposed delinquent, be the same as that of incorrectness, or whether it shall amount to nothing more than the rendering the probative, the criminative, force of it, less considerable than if it had been nearer to the being complete.

3. By mendacity (here as elsewhere) is to be understood wilful and purposed incorrectness; where the evidence thus delivered, the discourse thus used, is incorrect, being rendered so wilfully, and on purpose.

1. Misinterpretation. By misinterpretation on the part of the judge, the deceptitious effect produced by circumstantial evidence of this description is susceptible of modifications, analogous to that already mentioned as producible by misinterpretation of preparations and attempts, directed in appearance, but (as in the case supposed it happened) not in reality, to the act of delinquency eventually committed. Instead of the act which, by means of the misinterpretation, is supposed and concluded to have been committed—under the supposition of its having been virtually acknowledged to have been committed,—the act really performed may have been—1. Blameless, though seeking secrecy; 2. Blameless, and not so much as seeking secrecy; 3. Imaginary: as, if the intimation given of it, whether directly or in the way of allusion or insinuation, was meant in the way only of sport or jest; or, if the act committed by the supposed delinquent, and meant by him on the occasion in question to be spoken of, was an act which, though culpable, was culpable in a different manner, or in less a degree, than the act which, from the consideration of such his discourse, is inferred from it, and believed to have been committed.

Many cases may be put, in which that which really is not a confession might be taken for and acted upon as such.

A paper is found, in the defendant’s handwriting, charging him, the defendant, with a crime. Though written by the defendant’s hand, it may have been the discourse of another person, and all of it false: simple curiosity, or even the intention of refuting it, in a private way, or with the assistance of justice, might have been his motive for copying it.

The poet Jean Baptiste Rousseau wrote a virulent libel, aspersing a multitude of respectable characters, Saurin’s among the rest, and circulated it in manuscript. Saurin, having borrowed one of these manuscripts, copied it with his own hand, for the purpose of answering it, or instituting a prosecution on the ground of it. Rousseau, hearing of this, or suspecting it, got possession of Saurin’s copy, and on the ground of it, with the help of some false evidence for the explanation of it, instituted a prosecution against Saurin, charging him with being the author of it. The truth was discovered by the vivâ voce examination of the false witnesses: and this, too, without the benefit of that sort of examination which, under the name of cross-examination, they would have undergone had it been in England.*

The confession may have been given in the way of jest: the whole of it, or any part, devoid of truth: neither, in fact, conformable to the truth of things, nor so much as meant to be taken for such.

A case of this description happened, if I have been rightly informed, not many years ago in England. From I know not what circumstances, a person, whom I will call Juraturus, was expected to be put upon the jury, in a cause of public expectation, in which the affections of political parties took an interest. A letter was written to him by Jocosus, conjuring him to see the defendant convicted, right or wrong. For this letter Jocosus was prosecuted, as for embracing (the name given by the English law to the act of extra-judicial solicitation, where the sort of ephemeral judge, called a juryman, is the subject of it.) The matter being somehow explained, Jocosus escaped conviction, or at least punishment administered under that name; but the costs of prosecution were in effect a punishment, and a very severe one. Had the testimony of the defendant been receivable in law, and known to be so, the prosecution would hardly have been instituted.

2. Incompleteness. It is evident that an extra-judicial confession may be incomplete to any imaginable degree. For—1. In the shape in which the discourse flows from the lips of the confessionalist, it may be loose and imperfect up to every conceivable degree of imperfection. 2. The interlocutor—who may be sensible, or to the highest conceivable degree insensible, of such its deficiency—may accordingly let it pass in such its imperfect state, without applying himself in any way to render it more complete. 3. Though he possessed, in ever so high a degree, the requisite inclination; the power, the effective power, of commanding and producing the requisite explanations, may on his part be deficient, in any conceivable degree.

3. The case of mendacity requires more explanation. To a first view, nothing can be more paradoxical than the case of a man’s having recourse to falsehood for the purpose of subjecting himself, perhaps to the punishment, at least to the disrepute, attached to a supposed act of delinquency which in fact he has not committed. In the relation between the sexes may be found the source of the most natural exemplifications of this as of so many other eccentric flights. The female umarried,—punishment as for seduction hazarded, the imputation invited and submitted to, for the purpose of keeping off rivals, and reconciling parents to the alliance. The female married,—the like imputation, even though unmerited, invited, with a view to marriage, through divorce. Even without view either to marriage, or to possession without marriage,—vanity, without the aid of any other motive, has been known (the force of the moral sanction being in these cases divided against itself) to afford an interest strong enough to engage a man to sink himself in the good opinion of one part of mankind, under the notion of raising himself in that of another.*

False confessions, from the same motive, are equally within the range of possibility, in regard to all acts regarded in opposite points of view by persons of different descriptions. I insulted such or such a man: I wrote such or such a party-pamphlet, regarded by the ruling party as a libel, by mine as a meritorious exertion in the cause of truth: I wrote such or such a religious tract, defending opinions regarded as heretical by the established church, regarded as orthodox by my sect.

In many cases, probably in most, the infirmative facts above brought to view will be seen to have no place: the import of the discourse, and its applicability to the purpose for which it is adduced, will be out of dispute. Though not complete (for it is seldom that a lot of extra-judicial evidence will be endowed with that completeness with which it is the object of judicial examination to endow it,) it will, as far as it goes, be thus far complete, that it will be sufficiently manifest that no addition which it could have received could have been of a nature to destroy, or materially to change, the inference. The act, to the imputation of which the confessionalist was exposing himself by this his discourse, was really his act—really done by him; nor was he, on the occasion of holding such discourse, acting in prosecution of any such eccentric and perilous a design as that of subjecting himself to an imputation known by himself not to be merited.

A distinction requires here to be noted, between the case where the evidence may be said to be designedly furnished, and that in which it may be said to be undesignedly furnished, having been obtained, as it were, surreptitiously, by the party by whom it is produced or offered to be produced, without the consent of the party whose confession is contained in it.

In the former case, it partakes, in a great measure, of the nature of judicial confessorial evidence: the person to whom it is delivered, though not a magistrate, yet, by the relation he bears (casual and momentary as it is,) may be considered as standing, in many respects, in the situation of a magistrate. The proprietor of stolen goods, having, by a train of indicative evidence, been led to the discovery of the thief, makes up to him, and charges him with the theft: the delinquent, through remorse, confusion of mind, or hope of favour, confesses the offence in all its circumstances, in a degree more or less particular. To extend the illustration, substitute for the case of theft the case of any other offence, of that class which supposes the existence of an individual exposed to special injury; and to the case of the proprietor of the stolen goods substitute that of the individual so injured.

The reason and use of the distinction is, that when, as here, the confessorial evidence is furnished ex propasito confitentis, the same causes that are capable of giving birth to false confession, when judicially exhibited, are capable of producing the same effect in the case where it is furnished extra-judicially, as here:—confusion of mind,—hope of commuting a severer punishment for a less severe one,—hope of obtaining mercy,—despair of acquittal, produced by prospect of false evidence.

The opposite case, the case where the confession was obtained imprudentiâ confitentis, is the case which, on the former occasions referred to, was principally in view. The party, the confessionalist, has made a memorandum in relation to the fact, for his own use; this falls into the hands of the adverse party, who thereupon produces or offers it in evidence. In terms more or less particular, either direct or more or less indirect, the confessionalist has mentioned the fact in a letter to an accomplice or a friend: the letter falls into the hands of the adverse party, who produces it, or offers it, in evidence. The confessionalist has been overheard to mention the matter in conversation with an accomplice, a friend, or even (for no species or degree of imprudence is altogether without example) an utter stranger: through the medium of the extra-judicially audient witness, it comes round to the adverse party, who (with or without his good will) engages him to come forward with the information, in the character of a judicially-deposing witness.

From the differences that exist in respect of the mode in which the evidence was obtained in the two cases, result several other differences. When of a nature approaching to judicial, the extra-judicial confession (having conviction, or, at least, full information, for its object, either on the part of him who delivers it, or on the part of him to whom it is delivered) will naturally be more or less effectually shaped and adapted to that purpose. When obtained, as above explained, in a manner by surprise, neither the confessionalist, nor (in the case of hearsay evidence) his interlocutor or auditor, has any such object; nor has the interlocutor or auditor, generally speaking, any means of shaping the evidence to that object. The shape in which it presents itself will naturally be that of some broken scrap, variable ad infinitum in respect of form, and quantity of information.

In the case where, as above, it is furnished by a man as it were with a halter about his neck, the language will necessarily be direct and explicit; and in that respect, whatsoever it may be in point of precision (for precision will depend as much upon the party receiving the information as upon the party furnishing it,) nearly upon a par with that which it assumes when extracted by an official hand. In the case where it is furnished without apprehension of the use eventually made of it, it may indeed happen to the language of it to be equally direct and explicit (as is apt to be the case with libels;) but it is equally capable of existing in a form to any degree mysterious and indirect. It may consist of nothing but mere allusion; and, in any case, to find out a key to it, and apply it to the proof of the fact endeavoured to be proved from it, may be the task of argumentation and conjecture.

§ 3.

Of spontaneous confessorial evidence, judicially delivered.

For the advantage of viewing objects one at a time, the species of criminative evidence in question has hitherto been considered as being delivered as well without the intervention of interrogation, as without the intervention of the authority of a judge, present at the time. Of the intervention of these two circumstances, the consequences will be seen to be material.

If the self-criminative discourse be conceived to be held in the presence of the judge, it is not natural that (adequate power not being wanting) the use of so efficient a security for correctness as well as completeness should be foregone. But that which, in respect of its manifest mischievousness and absurdity, will be apt to appear most unnatural, is, under the influence of the sinister interest which gave birth to the technical system of procedure, but too frequently realized: for example, under English law, in the case of all those modifications of delinquency in relation to which the evidence is delivered in no other shape than that of affidavit evidence.

The scene of intercourse being now removed from the closet to the theatre of justice,—one consequence is, that, of the eight modifications of self-disserving evidence above brought to view, five stand excluded, as being incapable of finding entrance into a place so defended. These are—1. conspiratorial; 2. simply confidential; 3. purposely jactitantial; 4. unadvisedly jactitantial; and, 5. simply and unadvisedly collognial. Superior-benefit-seeking, a modification under all circumstances rare and eccentric, is, by the authority of a present (though mute and inactive) judge, rendered still more unlikely to be hazardeo, still more so by the presence of an interrogating judge.

Remain, as the only two modifications of self-disserving evidence natural to the spot now in question,—1. unadvisedly self-exculpatire evidence; and, 2. penitential or penitentially confessorial evidence.

To ground conviction, confession (it has been said) ought to be perfectly free, not produced either by hope or fear. Such is the language we frequently meet with in English law books. Reason is here obscured by a covering of absurdity. Accused or suspected of a crime, guilty or innocent,—what but hope or fear should induce a man to speak? Guilty, in particular, what but hope or fear should induce a man to confess? Confession without hope or fear, is an action without a motive, an effect without a cause. It is more: it is an action without an inciting motive, overcoming a force (and that a mighty one) of restraining motives. It is as if, on a level billiard-table, a ball should run into one of the pockets, not merely without being struck with the mace or cue, but in spite of the impulse of the instrument striking it in a direction exactly opposite.

What there is of reason in the rule amounts to this:—A judge, in examining an accused or suspected person, should be upon his guard against the sinister inducements, to the action of which a man in such a situation is exposed.

The causes which may be capable of giving birth to evidence of the description in question, when it is not true, come now to be enumerated.

I. Causes capable of giving birth to untrue confessorial evidence, even when plenary.

1. Guilty of a greater crime (i. e. a crime more severely punished than the crime now charged,) a man makes a confession of the crime now charged, in order to avoid the severer punishment: or, being charged with two crimes, he confesses the less, to avoid being punished as for the greater: and so in regard to facts subjecting a man to non-penal damage, or otherwise to an obligation of an unpleasant cast.

2. Not guilty of the crime charged, nor, consequently, being justly subjectable to the punishment annexed to it,—but exposed, or conceiving himself exposed, to undergo some severer suffering (whether on the score of criminality or any other) at the hands of the prosecutor, or some other man in power, to whom it would be acceptable that he should suffer as for the offence in question,—he makes confession of it accordingly, in the hope of thereby escaping such severer suffering.

Various is the description of the person by whose power (i. e. by the hopes and fears that point to it) a man may be drawn into a false confession. It will depend in a considerable degree upon the nature of the offence: an ordinary offence, or a political offence. It may, accordingly, be a private individual; it may be, in a monarchy, the monarch, or one or more of his ministers; in a commonwealth, some officer or some individual invested by law or influence with appropriate power; it may be (though without atrocious abuse of judicial power it cannot be) even the judge.

3. If, in the case above supposed—hoping, as above, to mollify the enmity of his too potent adversary—he regards the stream of the evidence as likely to run against him, and with a force sufficient for conviction (though this be what, by the supposition, cannot take place without falsehood somewhere;) an adequate motive—a cause adequate to the production of the supposed effect, viz. that of a false confession—will in this way too be exemplified.

4. Lastly, the same effect is capable of being produced by mere confusion of mind; the state of mind producible in a man by terror—by the contemplation of his impending fate.

The case of false confession is a case which, in the present state of jurisprudence among civilized nations (including a century or so under the notion of present time,) has seldom been exemplified: so at least one wishes and hopes to be able to believe, for the honour of governments and of human nature. The only instance in which it has been in any degree frequent, even for some centuries past—and in this instance it has been but too frequent—is that of a case in which the fact was not only false, but impossible, I speak of the case of witchcraft. Turn which way we will—to France, to England, to North America—we shall find wretched women not only convicted, but confessing themselves guilty, of that imaginary crime. So at least say the accounts that have been transmitted to us. In these deplorable instances, in what shape has the confession been conceived? To produce a frantic cry of guilty—to produce the mark of a trembling hand to a paper full of calumnious lies, contents known or unknown—these are effects to the production of which confusion of mind may be fully adequate, in the instance of the weakest and most ignorant certainly not less than in that of the strongest and best-informed minds. But to produce, and produce extempore, a circumstantial and consistent account of intercourses and conversations with an imaginary being,—this would be scarce possible even to the strongest; and, if possible, where should be the inducement, when the consequence was the being hanged or burnt?

To guard against false confessions, therefore, the two following rules ought to be observed:—

1. One is, that, to operate in the character of direct evidence, confession cannot be too particular. In respect of all material circumstances, it should be as particular, as, by dint of interrogation, it can be made to be. Why so? Because (supposing it false) the more particular it is, the more distinguishable facts it will exhibit, the truth of which (supposing them false) will be liable to be disproved by their incompatibility with any facts, the truth of which may have come to be established by other evidence. The greater the particularity required on the part of the confession, the greater is the care taken of the confessionalist,—the greater the care taken to guard him against undue conviction, brought on upon him by his own imbecility and imprudence.

2. The other rule is, that, in respect of all material facts (especially the act which constitutes the physical part of the offence,) it ought to comprehend a particular designation in respect of the circumstances of time and place. For what reason? For the reason already mentioned: to the end that, in the event of its proving false (a case not impossible, though in a high degree rare and improbable,) facts may be found by which it may be proved to be so. “I killed such a man” (says the confessionalist, mentioning him,) “on such a day, at such a place.” “Impossible” (says the judge, speaking from other evidence:) “on that day neither you nor the deceased were at that place.”

But time and place are both infinitely divisible. To what degree of minuteness shall the division be endeavoured to be carried for this purpose? A particular answer, that shall suit all cases, cannot be given. The end in view, as above stated, must be considered, and compared with the particular circumstances of the case, in regard to either species of extension, ere the degree of particularity proper to be aimed at by the interrogatories can be marked out. Under the head of time, the English law, in the instrument of accusation, admits of no other latitude than what is included in the compass of a day. The nature of things did not, in this instance, render uniformity impossible: the parts into which time is divided are uniform and determinate. Place—relative space—is not equally obsequious: the house? yes; if the supposed scene of the supposed transaction be a house: the street? yes; if the scene were in a street: but a field, a road, a common, a forest, a lake, a sea, the occan; any of these may have been the scene.

The question therefore still recurs upon us, and at the same time the difficulty of finding a general answer for it recurs undiminished. Supposing the confession—the narration—false,—will the intimation which it has been made to include of time and place be sufficiently particular to enable the judge, supposing it to be false, to extract sufficient proof of the falsity of it from other evidence?

Between the degree of particularity to be looked for in the article of place, and the degree of particularity to be looked for in the article of time, there will be a mutual dependence. Supposing it clear from other evidence, that, on a given day, the confessionalist and the deceased were upwards of two days’ journey distant from one another,—the specification of the day on which, in the false confession, the murder is stated to have been committed, will be sufficient to prove the falsity of the confession—to prove the non-delinquency of the confessionalist. But suppose the distance no more than two hours’ journey,—the specification of the day will, it is evident, not be sufficient for the same purpose: he should be called upon to fix the very hour: the hour becomes as material in this second case, as the day was on the first.

In the wording of the instrument of accusation, particularity in respect of both species of extension is insisted upon, and evidently for the reasons above given, by the English law. But, between the case of an indictment (a statement of the offence, as drawn up by an accuser,) and a confession, whereby the defendant himself becomes as it were his own accuser, there is in this respect a great difference. In the case of the instrument of accusation, compliance with this requisition, however desirable, may, in respect of this or that degree of particularity, be impossible. Why? Because, antecedently to the exhibition of the whole mass of obtainable evidence (though ultimately that evidence should prove ever so satisfactory,) it is but natural that an accuser should be in the dark; while (supposing the charge true, and the defendant willing to confess the fact,) that same degree of particularity which it was altogether out of the power of the accuser to give to the relation, may be exhibited in the confession of the defendant without any difficulty. For from whom can so precise an account of a man’s acts be expected as from the man himself (especially acts of such moment to himself,) so he be but disposed to give it?*

[* ]By spontaneous self-inculpative testimony, is here meant, as will hereafter be seen, not self-inculpative testimony which is voluntary, and intended to be self-inculpative, in contradistinction to that which is not so intended; but merely that which is not, as distinguished from that which is, extracted by interrogation. Spontaneous is here, as in the book on Extraction, employed as synonymous with uninterrogated.

[* ]The word confession is apt to suggest the idea of a voluntary acknowledgment made by the defendant of his having committed the offence with which he is charged. The confession, however, may be either voluntary or involuntary; and it may have for its subject, not the offence itself, but some fact or facts evidentiary of it.

The fact which is the subject-matter of the confessorial evidence, may be either a fact of the number of the principal facts by which, taken together, the complex fact of the defendant’s criminality is composed; or it may belong to any one of those classes of evidentiary facts which have been or will hereafter be brought to view in the character of so many species or modifications of circumstantial evidence:—Preparations, attempts, declarations of intention, threats: physical and involuntary symptoms of fear, betrayed by the confessionalist upon an occasion specified: the care taken by him to conceal the obnoxious event, the criminal act—or his person while engaged in it; to keep out of the way all persons whose presence might have been dangerous in the character of percipient witnesses of it: the language held by him, before the act and after it, in the view of quieting suspicion, or preventing it from coming into existence: the exertions employed by him upon a variety of objects, of the class of things, in the view of preventing them from assuming appearances capable of testifying against him in the character of real evidence: the exertions employed by him in the view of giving to any of those objects delusive appearances, tending to bring to view the obnoxious event as being the work of mere accident, or of some other agent: the labour employed by him upon the apprehended witnesses, whose observations, in the characteror percipient witnesses, he could not prevent from coming into existence: the exertions made by him to keep them out of the way by direct threats or promises by deceitful representations, or by downright force—or, in the event of their appearance, to suppress the facts indicative of his guilt, or even substitute to them pretended facts indicative of his innocence: the exertions made by him for the purpose of operating in the like manner upon persons who had begun, or were expected by him, to act against him, in the character of prosecutors: the exertions made by him for withdrawing his person and property out of the reach of justice, and in the meantime for concealing himself: the motives by which he was stimulated to the commission of the offence: the length of time during which these motives had been operating on his mind, and the turn which this disposition of mind had, on different occasions, given to his conduct: the language which it had occurred to him to hold to different persons on different occasions, whose questions or observations he had to encounter in relation to the principal facts of the offence, or any other facts whose connexion with it might, to his apprehension, be discovered or suspected: the silence he ventured or was forced to maintain on some occasions; the false or evasive answers it occurred to him to give on other occasions; with the self-contradictions which, on some of those occasions, he fell into in consequence: the memoranda he had made of some of the facts connected, in one way or other, with the criminal enterprise; the letters he had written to or received from associates; and his alarm under the apprehension that some of these documents had fallen into the adversary’s hands: his fears under the apprehension that among his consultations with his confederates there were some that might have been overheard by persons, through the evidence of whose discourse they would not fail to be conveyed to the notice of the adversary: his fears that among his associates there were some who either already had been, or soon would be, unfaithful to their trust.

Not only so, but a fact that in itself has no perceptible connexion with any criminative fact, may, by accident, operate to the prejudice of the defendant; and in that respect the discourse, by which the existence of that fact has been stated by him, may operate against him in the character of confessorial evidence.

An extraneous witness, speaking to a supposed confessorial discourse supposed to have been held in his presence by the confessionalist, mentions a variety of facts as having on that occasion been stated by the confessionalist—facts, of the existence of which, but for such confessorial discourse, such reporting witness could not have been apprised. A number of facts—(suppose) transactions of the confessionalist himself, connected or not connected with the criminal enterprise—are thus reported as having, on the occasion in question, been reported to the witness by the confessionalist; the existence of these several facts is put out of doubt by other witnesses coming forward, and deposing, in the character of percipient witnesses, as to such facts as, in the character of evidentiary facts, point directly at the defendant’s criminality:—the report made of them by the confessionalist to the reporting witness assumes directly and obviously the character of confessorial evidence. But even those which have no such operation serve to confirm the veracity of the statement by which the reporting witness reports the tenor or the purport of the already-described portion of the defendant’s confessorial evidence. Moreover, in the same proportion in which it tends to demonstrate the trustworthiness of the evidence of the reporting witness—of the whole body of it taken together—in that same proportion it evidently operates in prejudice of the defendant’s cause. It therefore comes, as incontestably as the other branch, though not so obviously, under the character of confessorial evidence.

In the trial of John the painter, the incendiary who in 1777 burnt the rope-house at Portsmouth, the conviction was grounded principally on the defendant’s confessorial evidence, as reported by an extraneous witness, Baldwin; and, of the evidence given by other witnesses, a great part consisted in confirmatory statements of other facts, in themselves immaterial, but stated by the defendant in the confessorial narrative given by him to that reporting witness. Yet on this occasion the advocate for the prosecution boasted much, and not without reason, of the probative force—of the conclusiveness, of his evidence.

[* ]Confessorial evidence, when not plenary per se—in itself—may yet be so by relation. It is so by relation when it refers to some other discourse in which whatever is wanting to make it plenary is contained.

Thus, when, in the form of English law, at the opening of the trial, the question is put to the defendant, How say you, guilty, or not guilty?—if the answer be, Guilty, the confession is plenary by relation; for it refers to the full description of the offence, as contained in the instrument of accusation called the indictment.

[* ]In the case of John the painter, who (anno 1777) was hanged for setting fire to a public storehouse at Portsmouth, under the notion of rendering service to the American states on the occasion of the war which terminated in their independence, the principal part of the evidence was of this complexion.

So in the case of Crossfield, who was tried on a charge of being concerned in a plot for the assassination of his late Majesty by means of an air-gun.

[* ]There is a well-known (though not very well authenticated) anecdote of Rabelais, in which it is narrated, that being anxious to visit Paris, and not being possessed of sufficient funds to gratify his wish, he forged a plot against the life of the King, the Queen, and the Duke of Orleans, and provided self-inculpative testimony against himself, sufficiently strong to occasion his being sent to Paris at the expense of the government.—Ed.

[* ]A story current enough, but of which the source cannot be distinctly recollected, may serve as an exemplification of the field of enterprise in this line, which has been laid open by nature (too well seconded, as will be seen, by the blundering hand of English law) to unprincipled speculators. A man wishes to secure to himself, in the way of marriage, a hand, of which, by direct and honourable means, he has no sufficient hope. His object is, by destroying the reputation of his intended victim, to deprive her of all hopes that do not centre in himself. He takes the requisite measures: he bribes servants; he provides himself with the requisite equipment: in the costume of a happy lover, he shows himself to observers, casual or posted, through the window of her bed-chamber, as Galatea showed herself:—Et fugit ad latebras, et se cupit ante videri.a

The outline thus delineated, the particular object, and the details of the plan, will (as already hinted) admit of considerable diversification. To the value of the prize obtainable at the price in question, there are evidently no determinate limits; and this, whether pecuniary profit (to the amount of which there is also no limit) be or be not taken into the account.

As to the price in the way of punishment; few if any are the existing systems of legislation that have, with any sufficient degree of consistency and uniformity, raised it to a pitch too high to find bidders. For seduction, under English law at least (which, in everything that concerns marriage, indicates for its author some old woman in her dotage.) for seduction, the maximum would be but a flea-bite: punishment as for capital violence, the charge being of the adventurer’s own framing, he will know better than to subject himself to.

To any bosom in which either love or money has infused the spirit of enterprise, the Chancellor (who fancies himself, or pretends to fancy himself, the guardian of female orphans—who fancies, or pretends to fancy, his authority the bar to ill-assorted marriages, the protector against deception or imprudence) is but a laughing-stock. Ever ready to punish, he is ever impotent to prevent: powerful to do mischief, he is impotent to do good; that good always excepted, of which his professional brethren are the sharers, and which consists in distributing among them, in due form of practice, a portion of the orphan’s substance.

[* ]That a certain degree of particularity in these respects is desirable—desirable for the reason above given,—has been sufficiently observed by the founders of this part of the English law. They therefore required, that, in the instrument of accusation, it should be observed; and so serious were they in the requisition, as to determine, that where the requisition to that effect is not complied with, the defendant, guilty or not guilty, shall be acquitted. That causes will often happen in which, though delinquency may be capable of being established, and by abundantly sufficient evidence, that same degree of particularity cannot possibly be exhibited,—was another observation which, true as it is, yet, at the time of establishing that requisition, they failed to make. Compliance with the requisition was impossible; but the impossibility of complying with it was no bar to the establishment of it. The requisition had not been long enforced, before the impossibility of complying with it, consistently with the conviction of the guilty, was discovered. A remedy was accordingly applied. What was that remedy?—Converting a court of penal justice into a school of necessary falsehood—a school in which the scholars were not merely taught and invited, but by main force compelled, to defile themselves with that vice: no falsehood, no justice. A day must be specified; but it need not be the true one.a A day must be specified; but that the fact happened on that day, is not necessary to be proved: another, any other, will do as well. You must say you know the day, and say what that day is: you must so know it, when you know it; you must say you know it, when you know nothing of the matter. But, provided you utter this falsehood, you shall not be prejudiced by it: from falsehood, nothing—it is from truth alone that you have anything, to fear: speak falsely, you are safe; speak truth, you lose your cause.

This is but one instance out of a multitude, in which, by aiming at a degree of precision beyond what the nature of the case admits of, they lost the benefit of such degree of precision as the subject does admit of: they lost precision altogether: they threw away precision, and embraced falsehood in the room of it.

[* ]A story current enough, but of which the source cannot be distinctly recollected, may serve as an exemplification of the field of enterprise in this line, which has been laid open by nature (too well seconded, as will be seen, by the blundering hand of English law) to unprincipled speculators. A man wishes to secure to himself, in the way of marriage, a hand, of which, by direct and honourable means, he has no sufficient hope. His object is, by destroying the reputation of his intended victim, to deprive her of all hopes that do not centre in himself. He takes the requisite measures: he bribes servants; he provides himself with the requisite equipment: in the costume of a happy lover, he shows himself to observers, casual or posted, through the window of her bed-chamber, as Galatea showed herself:—Et fugit ad latebras, et se cupit ante videri.a

The outline thus delineated, the particular object, and the details of the plan, will (as already hinted) admit of considerable diversification. To the value of the prize obtainable at the price in question, there are evidently no determinate limits; and this, whether pecuniary profit (to the amount of which there is also no limit) be or be not taken into the account.

As to the price in the way of punishment; few if any are the existing systems of legislation that have, with any sufficient degree of consistency and uniformity, raised it to a pitch too high to find bidders. For seduction, under English law at least (which, in everything that concerns marriage, indicates for its author some old woman in her dotage.) for seduction, the maximum would be but a flea-bite: punishment as for capital violence, the charge being of the adventurer’s own framing, he will know better than to subject himself to.

To any bosom in which either love or money has infused the spirit of enterprise, the Chancellor (who fancies himself, or pretends to fancy himself, the guardian of female orphans—who fancies, or pretends to fancy, his authority the bar to ill-assorted marriages, the protector against deception or imprudence) is but a laughing-stock. Ever ready to punish, he is ever impotent to prevent: powerful to do mischief, he is impotent to do good; that good always excepted, of which his professional brethren are the sharers, and which consists in distributing among them, in due form of practice, a portion of the orphan’s substance.

[* ]That a certain degree of particularity in these respects is desirable—desirable for the reason above given,—has been sufficiently observed by the founders of this part of the English law. They therefore required, that, in the instrument of accusation, it should be observed; and so serious were they in the requisition, as to determine, that where the requisition to that effect is not complied with, the defendant, guilty or not guilty, shall be acquitted. That causes will often happen in which, though delinquency may be capable of being established, and by abundantly sufficient evidence, that same degree of particularity cannot possibly be exhibited,—was another observation which, true as it is, yet, at the time of establishing that requisition, they failed to make. Compliance with the requisition was impossible; but the impossibility of complying with it was no bar to the establishment of it. The requisition had not been long enforced, before the impossibility of complying with it, consistently with the conviction of the guilty, was discovered. A remedy was accordingly applied. What was that remedy?—Converting a court of penal justice into a school of necessary falsehood—a school in which the scholars were not merely taught and invited, but by main force compelled, to defile themselves with that vice: no falsehood, no justice. A day must be specified; but it need not be the true one.a A day must be specified; but that the fact happened on that day, is not necessary to be proved: another, any other, will do as well. You must say you know the day, and say what that day is: you must so know it, when you know it; you must say you know it, when you know nothing of the matter. But, provided you utter this falsehood, you shall not be prejudiced by it: from falsehood, nothing—it is from truth alone that you have anything, to fear: speak falsely, you are safe; speak truth, you lose your cause.

This is but one instance out of a multitude, in which, by aiming at a degree of precision beyond what the nature of the case admits of, they lost the benefit of such degree of precision as the subject does admit of: they lost precision altogether: they threw away precision, and embraced falsehood in the room of it.

[a ]This act is said to have been perpetrated by the Earl of Stair, and to have occurred in Edinburgh.—Ed.

[a ]Kelyng, 10. 2 Inst. 318. R. v. Aylett, 1 T. R. 70-71.