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BOOK VI: OF MAKESHIFT EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF MAKESHIFT EVIDENCE.
OF MAKESHIFT EVIDENCE IN GENERAL.
Makeshift Evidence, what.
Thus much concerning that description of inferior evidence, the inferiority of which consists in this—viz. that the fact, the existence of which is immediately indicated by it, is not the very fact in question—the fact, of the existence of which, a persuasion is endeavoured to be produced in the mind of the judge,—but some other fact, which, though distinct from that principal fact, is so connected with it, as that (with a greater or less degree of assurance) the existence of such principal fact is inferred, and considered as being rendered more or less probable by the existence of the evidentiary fact.
We come now to that description of inferior evidences, the inferiority of which consists in this—viz. that, be the fact what it may (principal or evidentiary,) the information which it conveys has some circumstance belonging to it, which—by rendering inapplicable to it some one or more of the securities that are applicable to ordinary evidence—renders its probative force in a greater or less degree inferior to that possessed by ordinary evidence when those securities (such of them as are applicable to it) are actually applied to it.
Of the different powers, qualities, and operations, serving as securities for correctness and completeness—securities against deceptitious incorrectness and incompleteness—a view has been already given.* By the inapplicability or non-application of these several securities, and the groups which, by ringing the changes, might be formed out of them, may be constituted so many species of evidence of inferior shape;—of evidence, the probative force of which is lessened by the imperfection thus produced in the shape in which it presents itself to the mind to which it belongs to judge.
When the non-application of them has for its cause the mental weakness or corruption of the man in power—of the legislator or the judge,—the principal of the shapes in which this imperfection has displayed itself, have, under the head of Extraction, been already brought to view.†
But cases exist,—and cases the exemplification of which is abundantly frequent,—in which this imperfection has for its cause, not any failure on the part of the man in power, but the unchangeable nature of things. In the imperfect shape in question, the article of evidence is to be had; in any other shape it is not to be had—at least as matters stand at present.
Agreeing in this one common character—viz. that of imperfection, and of imperfection the origin of which is traceable to the source just indicated—being employed only because, from the same source, better evidence, evidence of a more trustworthy complexion, of greater probative force, is not be had,—these several species of evidence, how dissimilar soever in other respects, may be brought together and designated by one common appellation,—viz. that of makeshift evidence.
On this subject three distinguishable tasks present themselves to the eye and conscience of an honest and intelligent legislator:—1. To take an inventory of those species of inferior, yet not the less indispensable, evidence; 2. For the information of the judge, to hold up to view their several features of infirmity; and 3. By apposite powers and instructions, to do whatsoever the nature of things admits of, towards the removal of their several infirmities, by completing in each instance the requisite assortment of securities; or by so ordering matters that testimony in a more trustworthy shape may in future take place of testimony in these less trustworthy shapes.
Of the different species of makeshift evidence.
Under the denomination of makeshift evidence are comprehended two divisions or subclasses, the contents of which, as compared with one another, have nothing in common, except the infirmity in consideration of which the term makeshift is alike applicable to both.
These are, unoriginal evidence, and extra-judicially written evidence.
I. Extra-judicially written evidence. Susceptible alike of this common denomination will be found three sorts or genera; viz. 1. Casually written; 2. Ex-parte pre-appointed; 3. Adscititious or imported.
II. Unoriginal, or (as supposed) transmitted evidence. Susceptible of this common denomination will be found five distinguishable sorts or genera: 1. Supposed oral, delivered through oral; 2. Supposed written (or say scriptitious) delivered through written (or say scriptitious,) thence termed transcriptitious or transcriptural; 3. Supposed oral, delivered through written; 4. Supposed written, delivered through oral; 5. Reported real evidence.
The different modifications, for the expression of which these denominations have been devised, will all of them receive further explanation, each of them in its place.
In every instance, that inferiority in respect of probative force, in consideration of which the term makeshift was found applicable with equal propriety to them all, will be seen to have for its cause the absence of one of the principal securities for correctness and completeness—viz. interrogation ex adverso at the hands of a party, whose interest, in the event of its being incorrect or incomplete, may, in proportion to that incorrectness or incompleteness, be made to suffer by it.
In the case of unoriginal evidence, the word supposed forms, in the instance of each of the genera contained under it (as above,) an indispensable adjunct. If not expressed, it must at any rate be borne in mind, or confusion and misconception will be the result.
In the case of every such article of evidence, there are at least two different statements in question: one, the existence of which is certain; the other such that, though the existence of it is asserted (viz. in and by the statement which, as above, is certainly known to exist,) it may happen, notwithstanding, in the whole or in any part, not to have had existence.
That which is certain, is that which, to a certainty (viz. by the very supposition,) is presented to the mind of him to whom it belongs to judge: to his hearing, if it be oral; to his sight, if it be scriptitious.
Titius, standing before the judge, says—“I heard Sempronius say so and so.” This is supposed oral through oral evidence. The oral evidence is that which is said by Titius: the supposed oral evidence is that which by Titius is said to have been said by Sempronius. By the judge it will naturally be supposed to have been said by Sempronius; because, generally speaking, it will be more likely that what was said by Titius was true, than that it was false. But, in speaking of this supposed statement, to employ the same unqualified expression as that which (as above) is employed in speaking of the statement made before the judge, would be to assume as indisputable that which, in general, will, in case of litigation, be among the matters in dispute. That, in the presence of the judge, Titius said to the judge, “Sempronius said in my hearing so and so,” is out of dispute. But what may happen is, that, in saying thus, what Titius said was altogether false; Sempronius not having, in his hearing, ever said anything at all, or at least not having said anything to any such effect.
Omitting the adjunct supposed, had the denomination been, in this case, oral evidence through oral,—in this case, the truth of what was supposed to have been said by Sempronius would not, indeed, have been represented as out of dispute; but the truth of that which was said by Titius, in saying, “Sempronius in my hearing said so and so,” would have been represented as being out of dispute: whereas, in the nature of this species of evidence, this point is no less open to dispute than the other.
Of the three sorts of evidence here comprehended under the general denomination of extrajudicially written evidence, the points of coincidence and difference may be thus stated:—
Whatever a man writes, that is capable of being employed in evidence, but without any expectation (unless with a fraudulent intention) of its being so employed,—if, being addressed to any other person, it is designed to be communicated to him,—comes, in common language, under the denomination of a letter; if it be not so addressed, it may be, and is, included under that of a memorandum.
In both cases, if it happens to the document to be employed in the character of judicial evidence, it may be designated by the common appellation of casually written evidence.
But there are cases in which,—not wearing the form of evidence, nor, as such, antecedently to their creation, called for by authority of a court of justice—letters, as well as memorandums, are written for a purpose analogous to that for which evidence is so called for; that is, for the giving effect to rights and obligations; and not altogether without a view towards their being made (in so far as the established rules respecting evidence will admit) subservient to the purposes of evidence.
Of this genus, the most striking, and, in respect of their extent and application, the most important species, are,—in the shape of memorandums, all those entries which form the matter of a mercantile book of account,—in the shape of letters, those which are written or received by mercantile men, in the course or for the purpose of their commerce.
These, therefore, being written not without a view to their being eventually made subservient to the purposes of evidence, may appear in that consideration to rank themselves under the head of preappointed evidence:—but, not being endowed with either of those qualities, by one or other of which whatsoever has been ranked under that head stands distinguished so much to its advantage (viz. the being produced by the concurrence of every party whose rights would be injured either by spuriousness or by any deceptitious incorrectness or incompleteness in its tenor; or else by some party whose situation, bating casual fraud, places him out of all danger or suspicion of any sinister interest capable of engaging him in the design of giving to it any such deceptitious character,)—it becomes necessary that this inferior sort should, by a term expressive of the distinguishing circumstance, be distinguished from that superior sort of evidence. It has therefore been called evidence preappointed ex parte.
By the term adscititious or imported evidence, is meant to be expressed any statement in writing, which, on the occasion of its being written, was not designed to be employed in the character of evidence in the cause in question, but was designed to be employed (whether actually employed or not) in the character of evidence, viz. in some other cause: and it is with reference to such other cause that it is termed adscititious or imported, as having, for the purpose of the cause in question, been borrowed (as it were) from that other cause.
In the case of evidence borrowed from another cause, it may happen that some or all of the appropriate securities for the trustworthiness of evidence were applied to it in that cause. But it will scarcely happen that a set of securities was applied to it, the same in all respects as that which, in the cause in question, might be applied to it. Interrogation, for example, yes: but not at the instance of all the same parties; or, even if at the instance of every one of those same parties, yet one or more of them, perhaps, were not at that time possessed of all the material sources of information, and consequent grounds for interrogation, which they possess at present.
This is the most favourable case. But, in respect of probative force, this species of evidence (which at the worst seems to have all the advantages of both the extra-judicially written species of evidence just mentioned) may be rendered by any number of degrees weaker and weaker, by the several defects which, if the judicatory be different, are liable to have place in the course of procedure pursued in such other judicatory, in relation to evidence.
With imperturbable composure we shall see judges after judges employing (and in the English system, which judges shall we not see employing?) and taking for the sole grounds of decision, modes of collection, of the unsuitableness of which to the purposes of justice, they are themselves, and ever have been, perfectly and confessedly convinced:—evidence altogether uninterrogated, in the shape of affidavit evidence: evidence interrogated, not by any of the parties, nor yet by a judge, but by a clerk, who, being alone with the witness in a private room, makes him sign what he pleases. Under these circumstances, supposing the procedure of the judicatory directed to any such ends as the ends of justice, it may be imagined with what varied degrees of distrust it cannot but regard whatever masses of evidence may have been imported into it from any of those judicatories in which the convenience of the judge is substituted to the ends of justice.
Aliâ in causâ—inter alios—alio in foro—alieno in foro: by these adjuncts, an idea may be given of so many obvious specific modifications of the genus adscititious evidence.
Casually written evidence; evidence preappointed ex parte; and adscititious evidence; these form, as it were, a class apart from that for the designation of which the term unoriginal is employed. Not but that evidences, partaking of the qualities in consideration of which they have been designated respectively by those several denominations, are capable likewise of partaking of that quality for the designation of which the word unoriginal is employed. Not that casually written evidence, evidence preappointed ex parte, and the evidence termed adscititious evidence, are less capable than any other sorts, of adding to the qualities designated by those several appellations the quality of unoriginality; in which case they will add, each of them, to its own characteristic infirmity, the infirmity that forms the character of that fourth species. But, of all evidence here comprised under the appellation of unoriginal evidence, this of non-originality constitutes an essential and inseparable quality: whereas, in those several other cases, if it be present, it is but as an accidental one.
Properties common to all the kinds of makeshift evidence—Topics to be touched upon in relation to each species.
Of every one of the several objects comprehended (as above) under the common denomination of makeshift evidence, the following propositions seem capable of being predicated with equal truth:—
1. Of the information respectively conveyed by them, the truth has not been provided for by any, or at least not by all, of the securities, which (as above) are capable of being, and ought to be, applied to evidence—ordinary evidence, when presented in its best shape.
2. The shape in which the information contained in them is presented, renders them respectively inferior, in point of trustworthiness, to ordinary evidence.
3. By the circumstance by which they are respectively distinguished from ordinary evidence, each of them is liable to have been employed as an instrument of a particular species of fraud: a particular modification of what, in speaking of all or any of them, may be termed the characteristic fraud—the characteristic fraud incident to makeshift evidence.
4. This fraud consists in the fabrication and utterance of the evidence, the pretended information, in question,—in contemplation, and under the assurance, of the inapplicability or non-application of the securities for trustworthiness; viz. sanctionment, or interrogation, one or both of them.
5. Though the more formidable part of the mischief is composed of the deception and consequent misdecision of which the characteristic fraud may be the instrument, it is not the whole: since, for want of the security afforded by the safeguard in question against incorrectness and incompleteness, the same evil consequences may take place through temerity, or even without blame.
6. They are all of them indicative of the existence (present, or at least past) of ordinary regular evidence, such as is, or at least at one time was, or ought to have been, obtainable in the best shape from the same source; i. e. either from the same thing (as in case of real evidence,) or from the same person (as in case of personal evidence.)
7. They are, therefore, unless for special causes, not fit to be admitted, any of them, by itself, in its essential shape: the information conveyed by them is not fit to be admitted, unless, being drawn from the same source, it be presented (provided it be capable of being so presented) in the ordinary,—i. e. in the superior and more trustworthy, shape.
8. The information respectively contained in them may, in such its inferior shape, be presented, and by itself, if in its regular and ordinary shape the presentation of it is either altogether impracticable or not practicable without preponderant inconvenience, viz. in the shape of delay, vexation, or expense.
9. By and after the indication and warning thus given of the characteristic fraud of which they are respectively liable to become the instruments,—if it be in the will as well as in the power of the judge to possess himself of it, the danger of deception by means of such fraud is lessened: the probability of succeeding in any attempt, and thence the probability of the attempt itself, is diminished.
Shall it, in any and what cases, be admitted? The danger of deception attached to the admission of it, can it, by any and what means, be diminished? Such are the subjects of inquiry which present themselves as proper to be considered in relation to each of the several species of makeshift evidence hereinabove brought to view.
Previous explanation of their respective natures and sub-modifications, will, in so far as deemed necessary, come in of course.
OF EXTRAJUDICIALLY WRITTEN EVIDENCE.
Of casually written evidence.
To a private letter or memorandum this appellative is applied, for the purpose of distinguishing this from other species of written evidence, widely different in point of trustworthiness, viz. preappointed written evidence at large, and judicially written evidence;—to which last belong, ready written evidence delivered spontaneously; ditto delivered ex interrogato (delivered in the epistolary form, on being called for by interrogation in the same form;) and evidence judicially delivered in the oral form, whether spontaneously or ex interrogato, and thereupon forthwith consigned to writing on the spot.
Evidence preappointed ex parte, though extrajudicially, can scarcely with propriety be said to be casually written; it being written for particular purposes, and those always uniform in their nature.
Of the characteristic fraud, as above considered under a general aspect, the particular modification of which extrajudicially and casually written evidence is liable to become the instrument, may be thus described:—
Under the assurance of not being exposed by it to punishment (no punishment being, in case of mendacity, attached to it, through the medium of an oath, or otherwise,) nor yet to ill repute, or at any rate not of the degree of public shame, the author not being about to be subjected to interrogation in respect of it,—a man utters in this form a fallacious statement, adapted to a deceptitious purpose. It is either incorrect, or incomplete, or both; incomplete in the way of partiality, and thereby calculated to produce deception, and misdecision in consequence.*
Fraud is not the only source in which the inferiority of extrajudicially written evidence, as compared with ordinary evidence judicially extracted from the same source, is to be looked for. Neither of the main securities against incorrectness and incompleteness—neither the fear of eventual punishment in case of falsehood, nor the scrutiny of interrogation and counter-interrogation—have been applied to it. Without other blame than that of temerity, or even without any blame at all, both sources of deception, incorrectness and incompleteness, more particularly incompleteness, may therefore have crept into it.
Whose is the discourse which it conveys, or purports to convey?—that of an extraneous witness, or that of a party in the cause?
If that of a party, at whose instance is it tendered or called for?—that of the party whose discourse it is? or that of another party on the same side? or that of a party on the adverse side?
According as it happens to it to stand in one or another of these different predicaments, the propriety of giving admission to it will (it is evident) stand upon a different footing; as well as, in case of admission, the expedients to be employed for reducing the danger of deception, and consequent misdecision, to its lowest terms.
In what case, if in any, shall evidence of this description be admitted?
When admitted, by what expedients may the danger of deception, considered as producible by the admission of a species of evidence thus liable to be vitiated by incorrectness and incompleteness, be diminished?
To provide an answer to the above questions, is the object of the following rules:—
I. Case the first. He whose discourse the script appears to be,* not a party in the cause: the evidence, therefore, which it contains, extraneous.
Rule 1. Except in the cases excepted in the next rule, admit it not.
Question. Why not admit it?
Answer. Because, by excluding it (deduction made of the cases in which it is proposed to give admission to it,) no information stands excluded. The person whose discourse it purports to be, being forthcoming and interrogable in a mode less exposed to incorrectness and incompleteness, it rests with you to obtain whatever information it contains, and more. Read by itself, he not forthcoming or not interrogated in respect of it, the substitution will naturally be a cause of incorrectness and incompleteness, and misdecision the more or less probable consequence: he interrogated, and this supposed written discourse of his read notwithstanding, the addition is superfluous; inconvenience, in the shape of delay, vexation, and expense, all useless,—the certain consequence.
Rule 2. The evidence extraneous as before, in the following cases admit it.
1. On him whose discourse it purports to be, the process of interrogation (viz. oral interrogation) rendered either physically or prudentially impracticable: physically, as by death or incurable mental infirmity; physically or prudentially, as by expatriation or exprovinciation: the interrogation effectible either not in any terms, or not without preponderant inconvenience in the shape of delay, vexation, and expense.
2. On him whose discourse it purports to be, the process of interrogation performable and performed; the reading of it called for on either side, viz. either for an affirmative or a confirmative purpose; for the purpose of showing that, at the time of framing the written discourse in question, the statements contained in it were in any point discordant, or on the whole concordant, with the testimony now, by interrogation and counter-interrogation, extracted from the same source.†
Question. Why give admission to evidence in a shape thus liable to be vitiated by incorrectness and incompleteness.
Answer. Because, were it excluded, whatsoever information were not attainable from any other source would thereby stand excluded. Here, then, supposing that the information is necessary to a decision in favour of that side, here would be deception, and consequent misdecision, to a certainty; whereas, by admission given to it, certainty of being credited would not be given to it, even supposing it true; still less, supposing it false. Not being (unless in case of fraud, which is comparatively an improbable case) framed for the purpose,—the probability is, that, taken singly, how correct soever, it will be (in relation to the whole of the facts in the cause taken together) more or less incomplete; that, accordingly, it will be composed, in great part, if not in the whole, of circumstantial evidence; and since, without danger or suspicion of danger, circumstantial evidence is received, how slight soever, how weak soever, its probative force; so, therefore, may evidence of the description here in question, not to speak of any other.
Note,—that, if the species of makeshift evidence here in question be incorrect or incomplete, to the degree of utter or material falsity, it will of course be counter-evidenced by the direct and strenuous evidence of the party against whom it operates.
Instruction to the judge for avoidance of deception, considered as producible by the observance of rule second in the first of the two cases therein contained:—
It will on this occasion be matter for inquiry, whether, at the time of the utterance of the written discourse in question, he whose discourse it is, was not exposed to the action of some interest, of a pecuniary or in any other way of a self-regarding nature; and whether his interest did not at that time stand connected by some special tie of dependence or affection, with the interest of the party by whom, in the character of evidence, the paper in question is produced; and this in such sort and degree (the quantum of profit being moreover taken into consideration) as to render the practice of the characteristic fraud more or less probable in this case.
A book-keeper,* for example, charges with goods a customer or supposed customer of his master’s, knowing that by the person so charged the goods were neither received nor ordered. The book-keeper (not to speak of death, an event not likely to have been intended) ceases (viz. by expatriation or exprovinciation) to be forthcoming for the purpose of justiciability. Joined to the fabrication of the written document,—the expatriation or the exprovinciation, may it not have had for its cause the design of putting the undue profit into the pocket of the master? The testimony delivered by the paper is incorrect, to the degree of total falsity; and the falsehood is endeavoured to be screened from detection, by the non-interrogation of the author; while the author himself is effectually secured from punishment, by his non-forthcomingness, and that non-justiciability which is the result of it.
In a case of this sort, against the probability of the characteristic fraud, note this dilemma. If the claim (the unjust claim for the support of which it was designed) be made soon after the fabrication of the evidence, the expatriation or exprovinciation must have taken place in the mean time; and, being so timed, the non-forthcomingness of the fabricator will operate in the character of circumstantial evidence, giving probability to the supposed actual fraud:—if the claim be not made till long after, the non-demand for such a length of time is another article of circumstantial evidence, pointing the same way. And here, as above, note, that this disprobabilizing circumstantial evidence will be seen to have for its support the direct testimony (if received, as it ought to be) of the party against whom the fraud in question operates. And not only the particular account-book in question, but all the others kept by the same dealer, will be, or at least ought to be, producible at the instance of the party so charged.†
II. Case the second. He whose discourse the script appears to be, a party in the cause; the person at whose instance it is called for, a party on the opposite side; the tendency of the evidence consequently confessorial, or otherwise self-disserving.
Rule 3. In this case, let the script be admitted; but upon condition that the party, on recognising the discourse as his, shall he at liberty to deliver his own testimony (subject to interrogation) in explanation of it.‡
Question 1. Why give admission to evidence of this description, thus liable to be rendered, in respect of incorrectness or incompleteness, an instrument of deception?
Answer. Because, in so far as its tendency is to operate against him whose discourse it is (i. e. in so far as its tendency is confessorial,) it is the most trustworthy and satisfactory species of evidence that can be produced; no person being so little in danger of prejudicing a man in this way (either purposely, through mendacity, or heedlessly through temerity) as the man himself; and that the tendency of it (true or false, justly or unjustly) is not (in the opinion of the person best qualified to judge) to operate to the prejudice of him by whom it is called for, is sufficiently proved by the circumstance.
Question 2. Why annex as a condition, that at his own instance he may, subject of course to interrogation, be admitted to testify in explanation of it?
Answer. Because evidence of this description is in a particular manner liable to be, if not incorrect, at any rate incomplete. To admit it to receive explanation, is to allow what misstatements it may contain to be corrected—what deficiencies it may contain to be supplied. To refuse to it the faculty of receiving such explanation, is to keep it, by force of law, in a state, the tendency of which is to produce deception, misdecision, and injustice.*
Rule 4. Although, by death or other cause (such as incurable infirmity of mind, or expatriation,) he whose discourse this self-disserving testimony is, be incapable of testifying in explanation of the script,—admit it notwithstanding.
Question. Why admit it, under the danger of incorrigible incorrectness and unsupplyable incompleteness, as above?
Answer. First, because the danger of misdecision for want of information, in case of exclusion put upon the evidence thus circumstanced, appears in this case to be preponderant over the danger of misdecision by reason of information rendered deceptitious for want of such explanation as, had the party been forthcoming, it might have received. Suppose the information necessary to warrant a decision in favour of that side,—from the exclusion of it, misdecision takes place as a certain consequence; whereas, on the other hand, it is not certain that the information contained in it will be either incorrect or incomplete; and, if either incorrect or incomplete, it is not so likely to be so to the prejudice of the author’s side as to the prejudice of the other; nor, though it should be both incorrect and incomplete, is it certain but that the effect of the incorrectness may be corrected, and the deficiency supplied, by inferences, drawn partly from the script itself, partly from whatsoever other evidence there may be in the same cause.
The safety with which admission may be given to evidence of this description, seems to be indicated by experience. Even without any such security against deception as is here proposed, self-disserving evidence is admitted in this shape—admitted without reserve—in English practice. Even thus, the mischief (though, doubtless, it cannot be unfrequent) seems never yet to have become prominent enough to have been presented as an object of notice to the public mind: much less considerable would it be, were the means of amendment suffered to be applied to it as above.
III. Case the third. He whose discourse the script appears to be, a party in the cause, as before; but he himself the party at whose instance it is proposed to be produced: the tendency of it, consequently, self-serving.
Rule 5. In this case, likewise, let the script be admitted; the party being of course subject to interrogation on the subject of it, and in explanation of it; viz. by interrogatories propounded on the other side, and having, consequently, the effect of counter-interrogation.
Question. Why give admission to evidence so obviously liable, in so high and manifest a degree, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?
Answer. In the case of an extraneous witness, interest can never be, in any case, a sufficient ground for exclusion.† Moreover, in the same case, interests, as strong as any that are most apparent, may exist without being known, without a possibility of being brought to light; while, of the interest which a party has in the cause, the existence is known of course. In the case of a party, the sinister mendacity-promoting interest may in itself be no greater than in the case of an extraneous witness; and in particular in one of those instances in which, being undiscoverable, it cannot be taken for a ground of rejection. But in the case of a party, the interest, whatsoever be its effect in respect of the production of mendacity, is much less liable to be productive of deception, than in the case of an extraneous witness: because, being more manifest, presenting itself the more readily to the observation of every, even the most undiscerning, observer, the suspicion it excites will be stronger,—its probative force, consequently, weaker.
Whatsoever may be the danger, the probability, of mendacity, self-serving mendacity, and consequent deception, attached to the admission of the testimony of the party in his own behalf, deposing in the ordinary mode of oral responsion to oral interrogations,—that danger cannot, from the admission of a written discourse of the same tendency, though of a prior date, receive any increase: he is subject to counter-interrogation in the one case, and, by the supposition, so he is in the other. His extrajudicially composed written statement will, in his conception at least, operate in confirmation of the testimony he has to deliver in answer to interrogatories: But so, and without prejudice to his veracity or title to credence, it very well may; especially when so it happened that, at the time of his framing it, he had not, either in fact or in prospect, any such interest as that in virtue of which he became, at a subsequent point of time, a party in the cause.
Rule 6. Although, by death or other cause (as above,) he whose discourse this self-serving testimony is, be incapable of testifying in explanation of the script; admit it here also, notwithstanding.
Question. Why give admission to evidence liable, in a degree still so much higher, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?
Answer. For the same reasons as those brought to view in support of rules 2, 4, and 5, though not operating with so great a force. In some cases, as above, it may be as well entitled to credence as evidence from any other source, and at the same time of material and indispensable use towards bringing to light and explaining the facts that have application to the cause. And in this case, as in the case mentioned under the last preceding rule, so palpable are the considerations that operate in diminution of the probative force of the evidence, that the danger of its being estimated at a value over and above that which properly belongs to it, does not present itself as naturally preponderant.
No doubt but that, in general, a man will be more strongly disposed to make false evidence to serve himself, than to serve another. But, under the impression of his remaining under the eventual obligation of being counter-interrogated on the ground of this extra-judicially written self-serving evidence, no less sharply than on the ground of oral evidence of the same tendency delivered on the spot,—counter-interrogated, and with time in abundance to frame the plan of interrogation; or (in the case here supposed) under the assurance that such counter-interrogation cannot be escaped from definitively but by death, nor for a time but by expatriation or exprovinciation—both of them facts operating in the character of circumstantial evidence, to the discredit of such his written testimony; the sort of fraud in question does not present itself as likely, either to succeed if attempted, or so much as likely to be attempted.
Where exclusion of evidence would be improper, precautionary regulations, to diminish the chance of deception from such evidence, are very often proper, and in a high degree.
Let the danger of misdecision, the result of deception produced by casually written evidence, be, in comparison with the danger of misdecision from exclusion, ever so inconsiderable, whether in point of magnitude or probability,—still no expedient ought to be neglected by which, without its being productive of preponderant inconvenience in any other shape, the danger from admission promises to be diminished.
To an effect thus desirable, the following regulations present themselves as promising to be conducive:—
1. In every instance in which evidence of the description here in question is, in any of its possible modifications (as herein above enumerated,) produced,—let it be an instruction from the legislator to the judge, to state, at the time of his giving judgment, the infirmity of so much of the evidence as comes under this description, and (in the case of his having given credence to it notwithstanding) the consideration by which such his credence has been determined: and this, if judging without a jury, for the satisfaction of the parties, the audience, and the public at large; if sitting with a jury, for the instruction of the jury.
2. Whensoever, in consequence of the non-forthcomingness and non-interrogability of him whose discourse the script appears to be, it is admitted notwithstanding,—the judge having thought fit rather to give admission to it at that time, than to put off the decision in expectation of the forthcomingness and interrogation of the supposed author of such testimonial discourse; let it be a rule of law, that, so soon (if ever) as the means shall exist of performing the interrogation, without preponderant inconvenience in the shape of vexation and expense, such interrogation shall, at the instance of any party in the cause, be performable.
3. If, upon admission and consideration given to any such article of makeshift evidence, it shall seem good to the judge to determine in favour of the party at whose instance such evidence was received,—power should be given to the judge, on the declared ground of the infirmity of this part of the mass of evidence, to require, at the hands of the party in whose favour such judgment is pronounced, such security for eventual restitution ad integrum, and to take such other measures of precaution, by sequestration or otherwise, as may in his judgment be necessary and sufficient to prevent the happening of irreparable damage: such damage as might afterwards be found to have taken place, if, in consequence of the facts brought to light by such subsequent interrogation or any other means, it shall have turned out that the provisional decision so pronounced (as above) was, in point of fact, ill-grounded.
In ancient French law, casually written evidence appears not to have been considered in the light of makeshift evidence: it was considered, on many occasions at least, as more trustworthy than ordinary testimonial (viz. judicially exhibited testimonial) evidence. It appears to have been designated by, or at least comprehended under, the term commencement de preuve par écrit, mentioned in one of the fundamental codes; the business of which is, in certain cases, to exclude testimonial evidence, as insufficient in itself—insufficient, unless fortified by the support of an article of this species of written evidence.
The impropriety of this preference was not quite so great, under that actually established technical system, as it would be under a natural and rational system. In testimonial evidence, under that system, an infirmity produced by the insufficiency of the mode of receipt and extraction there employed, has been already brought to view (vol. vi. p. 399.) It might be superior in trustworthiness to testimonial evidence so extracted, and yet deserve no better appellation than that of a species of makeshift evidence. The species of written evidence in question is what it is—is the same thing, under all systems; but, under the original Roman, the Romano-Gallic system, testimonial evidence was bereft of part of its natural trustworthiness.
Another circumstance that helps to give colour to the preference, and operates even in diminution of the impropriety of it, is, that, in a certain point of view (i. e. with reference to a matter of fact of a particular description,) casually written evidence is really better than testimonial evidence. What it does not prove so well is, the truth of any of the matters of fact, asserted in and by the assertion made by the script. What it does prove, however, and still better than any testimonial evidence (prove, viz. upon the supposition of the authenticity of the script,) is the fact that assertions to that effect were, by the person in question, actually made—viz. made in and by the script at that time. In itself (supposing always the authenticity of it) it has, as to this point, all the trustworthiness that belongs to the best sort of preappointed evidence: the difference lies only in the property of authenticity, the proof of which is, in the case of preappointed evidence, made the object of special care, instead of being left to chance, as in this other case.
In respect of the source, and therefore of the grounds of comparative untrustworthiness or trustworthiness derivable from that quarter, casually written evidence is (it has been seen) susceptible of whatever modifications testimonial evidence is susceptible of. It may be extraneous; it may be self-regarding: self-regarding, it may be self-disserving, or self-serving: extraneous as well as self-regarding, it may be lowered by particular exposure to sinister interest, or by habitual improbity. To all these differences, important as they are, French practice, grounding itself on the Ordonnance, was in a manner insensible. A commencement de preuve par écrit, a something upon paper, there must be: but what that something should be, seems scarcely to have been considered as worth thinking about.
Even a lot of judicial testimonial evidence* appears to have been considered as constituting a commencement de preuve par écrit.
Judicial evidence, and casually written evidence, were thus completely confounded. So loose, in French law, was men’s conception of the different species of evidence!†
Of ex parte preappointed written evidence.‡
The order adopted requires that something should now be said on the subject of ex parte preappointed written evidence. But it is only in respect of its not being with propriety comprisable under the same denomination as extrajudicially and casually written evidence, that it demands a separate head. For, in respect of trustworthiness (i. e. of probative force,) it partakes of the same nature, and the same natural infirmities, as have been seen operating in diminution of the probative force of casually written evidence.
Preappointed it is; preappointed it cannot therefore but be denominated: but, in respect of probative force (not to speak of other properties,) it partakes not, in any degree, of the trustworthy character of the great mass of preappointed evidence; viz. that which is the work, either of all parties concerned in interest, acting in conjunction, or of some single, but naturally impartial, and commonly highly-stationed, hand.
In comparing ex parte preappointed with casually written evidence, the reader cannot but observe, that unintentional incorrectness is more probable in the case of casually written than of ex parte preappointed evidence, for exactly the same reason which renders such incorrectness still more probable in the case of common conversation than in either, viz. the greater probability of a deficiency of attention.
On the other hand, intentional incorrectness, for the purpose of the characteristic fraud, is, for this same reason, more probable in the case of ex parte preappointed, than it is in the case of casually written evidence of the same import: because, if a man sets himself to forge evidence, the greater apparent trustworthiness of ex parte preappointed evidence, arising from the cause above brought to view, would naturally induce him to give that form, rather than the form of casually written evidence, to the forged document.
The practical rule in regard to ex parte preappointed evidence is the same with that which has been already laid down as applicable to casually written evidence.
Is the person by whom it was committed to writing in existence, and accessible for the purposes of justice? Let him be examined vivâ voce in open court, subject to counter-interrogation; and let not the written evidence be admitted, otherwise than in the character of notes, to assist the memory of the deponent. Is the writer deceased, or the subjecting him to interrogation physically or prudentially impracticable? Admit the document, making allowance for all the circumstances which can operate in diminution of its credibility; hear everybody who can tell you anything concerning the document that can afford you any help in judging of the degree of confidence which it deserves; and make the same provision as in the case of casually-written evidence, for the ultimate interrogation of the writer, should it at any future period become practicable.
The grounds of all these arrangements being precisely the same in the case of ex parte preappointed, as in that of casually written, evidence, it would be superfluous to present them a second time to the reader.
Of adscititious evidence; i. e. evidence borrowed from another cause.
What is meant by adscititious evidence, as also in what its characteristic infirmity consists, has been seen in the preceding chapter. It remains to show, what is the part which ought to be taken in relation to it, by the legislator and by the judge.
Adscititious evidence divides itself into two kinds; which are not indeed mutually exclusive of one another, but which, for reasons that will appear as we advance, require to be distinguished.
1. Evidence inter alios: evidence already exhibited coram judice, in the character of judicial evidence, but in a cause between other parties; i. e. in which the list of the parties on both sides was (either in the whole, or as to some one or more of the persons contained in it) different from the list of the cause in question, the posterior cause.
2. Evidence alio in foro: evidence already exhibited in the character of judicial evidence, but in a cause which (whether carried on by the same list of parties, or by a list in any respect different) was carried on before a different tribunal: understand, by a tribunal in which the rules of evidence are known or suspected to differ more or less from those observed in the tribunal in question.
But the other tribunal, before which the evidence in question had thus on a preceding occasion been exhibited, may either have been a tribunal acting under the government of a foreign state, or a tribunal acting under the same government: and, in the latter case, a tribunal of a different province, or a tribunal of the same province: and in either case, a tribunal governing itself by the same rules of evidence, or a tribunal governing itself by rules of evidence in any respect different.
Between these two last-mentioned modifications of makeshift evidence—viz. evidence inter alios, and evidence alio in foro—there exists a very wide and material difference. Of evidence inter alios, the inferiority, as compared with the opposite case, that of evidence inter eosdem, is produced by an universally operating and irremoveable cause—viz. a deficiency, more or less considerable, in respect of that interest, on which the efficiency of the instituted securities for trustworthiness is apt to be in so considerable a degree dependent.
On the other hand, in the case of evidence alio in foro, the inferiority, real or supposed, depends altogether upon the accidental difference between the rules of evidence actually observed in one court, and those actually observed in another court. Its root lies in the diversities of practice that prevail as between court and court, in matters in which, if it were rational in all, the practice would, with very slight differences, be the same in all. It lies in the wretchedly imperfect state of this branch of procedure (not to speak of any other,) in every nation hitherto existing upon earth.*
The course proper to be taken, in respect to adscititious evidence, will be found to vary according as the document in question is a previous decision, or the whole or some part of the minutes of the evidence delivered in a previous cause.
In respect of the propriety of admission, both these species of adscititious evidence stand nearly on the same ground. Neither of them ought to be admitted, when better evidence from the same source is, without preponderant inconvenience, to be had; neither of them ought to be rejected, when it is not.
There is not, probably, that system of judicial procedure in existence (how bad soever the mode of taking evidence that it employs,) which does not afford a greater probability of right decision than of wrong; and in general the presumption of right decision is a very strong one. True it is, that no decision of a court of justice, certifying the existence of a fact, affords ground for believing it, any further than as such decision renders probable the existence, at the time when it was pronounced, of evidence sufficient to support it: and if the original evidence, on which the decision in the former cause was grounded, were forthcoming in the present, that evidence would be preferable, as a foundation for decision, to the mere opinion formerly pronounced on the ground of that same evidence by a judge. But it scarcely ever happens that evidence which has once been presented, admits of being again presented in as perfect a form as before. All that important species of evidence which is constituted by the deportment of the witness in the presence of the judge, is, in most cases, irrecoverably lost: such evidence as can be obtained now, might not be sufficient to warrant the former decision, and yet the decision, when pronounced, may have been perfectly borne out by the evidence on that occasion adduced. On the other hand, it is true that, in very many cases, by recurring to the original sources, sufficient evidence of the fact might even now be obtained, not, however, without more or less of delay, vexation, and expense: for the avoidance of which, it is often proper that the previous decision, though an inferior kind of evidence, should be received as a substitute, in the place of a superior kind.
As to the minutes of the evidence delivered in the former cause, it is sufficiently manifest that they ought not to be admitted, if recurrence to the original sources of evidence be practicable, without preponderant inconvenience,—if the witnesses in the former cause be capable of being examined, or such written or real evidence as it may have afforded be capable of being exhibited, in the present: unless when there may be a use in comparing two testimonies delivered by the same witness on two different occasions. But if (no matter from what cause) recurrence to the original sources be either physically or prudentially impracticable, the minutes of the former evidence should be admitted, and taken for what they are worth. If the evidence in question be oral testimony, being generally upon oath, subject to punishment in case of intentional falsehood, and to counter-interrogation, it is at any rate better than hearsay evidence, which, at its origin, had none of these securities: if it be real evidence, the official minutes of it are the very best kind of reported real evidence:—of which hereafter.
A question of greater nicety is, whether in any, and, if in any, in what cases, adscititious evidence shall be taken for conclusive?
In the case of minutes of evidence, the short answer is, never. The testimony of a witness, or of any number of witnesses, even if delivered in the cause in hand, and under all the securities which can be taken in the cause in hand for its correctness and completeness, ought not to be, nor, under any existing system of law that I know of, would be, taken for conclusive: much less a mere note of the testimony which they delivered on a former occasion, subject perhaps, indeed, to the same set of securities, but perhaps to a set in any degree inferior to those which there may, in the cause in hand, be the means of subjecting them to.
The case of a decision is more complicated. For the purpose of a prior cause, a decision has been given which supposes proof made of a certain fact: and the question is, whether, on the ground of such decision, such fact shall be taken for true—shall be considered as being sufficiently and conclusively proved—for the purpose of the decision to be given in a posterior cause?
It must of course be assumed, that the prior decision necessarily supposes evidence of the fact in question to have been presented to the judge, sufficient to create in his mind a persuasion of its existence: for there would be manifest impropriety in making the decision conclusive evidence of any fact not absolutely necessary to its legality; with whatever degree of probability the existence of such fact might be inferred from it.
1. Let the parties be the same; and the tribunal either the same tribunal, or one in which the same or equally efficient securities are taken for rectitude of decision. In this case, unless where a new trial of the former cause would be proper, the decision in the former cause ought to be taken as conclusive evidence (for the purpose of the posterior cause) of every fact, proof of which it necessarily implies. A lawyer would say, Quia interest reipublicæ ut sit finis litium. Not choosing to content myself with vague and oracular generalities, which are as susceptible of being employed in defence of bad arrangements of procedure as of good ones, I place the propriety of the rule upon the following more definite ground: that, as every person who would have an opportunity of applying the security of counter-interrogation in the second cause, has had such an opportunity in the first,—and as the rules of evidence which were observed in the former trial, were, by supposition, as well calculated for the extraction of the truth, as those which would be to be acted upon in the present,—the judge on the second occasion would have no advantage, in seeking after the truth, over the judge on the first, to counterbalance the disadvantage necessarily consequent upon lapse of time: and the decision of the first judge (though strictly speaking it be only evidence of evidence) is more likely to be correct, than that which the second judge might pronounce on the occasion of the posterior cause.
The case is different if fresh evidence happen to have been brought to light subsequently to the first trial, or if there be any reason for suspecting error or mala fides on the part of the first judge. But, in either of these cases, a new trial of the former cause would be proper. If the fact be sufficiently established for the purpose of the first cause, it is sufficiently established for the purpose of any subsequent cause between the same parties. It is only when there appears reason to think that it was improperly considered as established in the first cause, that there can be any use in going through the trouble of establishing it again in the second.
The above remarks apply also to the case in which the parties to the second cause are not the actual parties to the first, but persons who claim in their right—their executors, for example, or heirs-at-law; or even persons claiming under the same deed, or, in any other way, upon the same title; all those, in short, who in English law language are quaintly called privies in blood, in estate, and in law: for though these have not had an opportunity of cross-examining the witnesses in the former cause, other persons representing the same interest have.
2. Suppose the parties different, that is, with different interests, and the same reasons do not apply. The deficiency in respect of securities for trustworthiness, which constitutes the inferiority of adseititious evidence, may now have place to an indefinite extent, and is always likely to have place to some extent. It will very often happen that there was some part of the facts, known to the witnesses in the former cause, which would have made in favour of one or other party to the present cause; but which did not come to light, because, there being no one among the parties to the former cause in whose favour it would have made, it found no one to draw it out by interrogation. The former decision, therefore, although conclusive against the parties to the former cause, and all who claim under them, ought not to be conclusive against a third party. If it were, an opportunity would be given for a particular modification of the characteristic fraud: a feigned suit instituted by one conspirator against another, and judgment suffered by the latter to go against him, with the view of establishing a false fact, to be afterwards made use of in a suit against some other person.
The above observations constitute what foundation there is for the rule of English law, that res inter alios acta is not evidence:—of which hereafter. Note, en passant, the character of jurisprudential logic: a decision inter alios is not conclusive evidence, therefore not admissible.
3. Lastly, suppose the tribunals different, and governed by different rules: and let the rules of the tribunal which tried the first cause be less calculated to insure rectitude of decision than those of the tribunal which tries the second. In this case, with or without the deficiency in point of security arising from the difference of the parties, there is at any rate the deficiency which arises from the imperfection of the rules: the impropriety, therefore, of making the decision conclusive, is manifest. Its probative force will evidently vary, in proportion to the imperfection of the rules which govern the practice of the court by which it was pronounced; always considered with reference to the main end—rectitude of decision.
The probative force will be greater, cæteris paribus, when the court from which the evidence is borrowed is in the same, than when it is in a different, country; on account of the greater difficulty, in the latter case, of obtaining proof of the existence of the characteristic fraud. But this presumption is much less strong than that which arises from a difference in the mode of extraction.
We shall see hereafter to how great an extent nearly all the above rules are violated in English law.
OF UNORIGINAL EVIDENCE IN GENERAL.
The quality of unoriginality seems applicable to an article of evidence in either of two cases: 1. Where it is so with relation to persons,—to persons considered as sources of the evidence; 2. When it is so in respect of signs.
It is so as to persons, wherever the perceptions stated by the person whose evidence is rendered present to the senses of the judge, are stated by him as being not his own perceptions or opinions, but perceptions or opinions communicated to him by some other person, as and for the perceptions of that other. Had the perceptions or opinions been stated by him as his own, they might have been termed original: not being stated by him as his own, they cannot with propriety be termed original—they are termed not original, but unoriginal. In himself, if he says truly, they did not originate; but in the other person so spoken of.
The evidence is unoriginal in respect of signs, when the signs (i. e. the collection of visible and permanent signs, viz. written characters) presented to the senses of the judge, are not the same collection of signs by which the discourse in question stood expressed, when consigned to writing for the first time: not these, but some others: which,—having been transcribed from those, in the design of rendering (so far as both go) the signification of the copy thus made exactly the same as that of the original,—may accordingly be termed transcriptitious.
The evidence orally delivered, and of the nature of what is called hearsay evidence;—the evidence delivered in writing, and of the nature of a transcript:—in both these cases, it may alike be termed unoriginal.
In both instances it is understood at once, that, in point of probative force, the unoriginal evidence will be in a greater or less degree inferior to the original. But, in the two cases, the defalcation made by the circumstance of non-originality from the probative force of the evidence, will immediately be seen to be, generally speaking, widely different.
Such as our conceptions are, such ever must language be. In vain, on any subject, will that man seek to add anything material either to the correctness or to the amplitude of the current stock of conceptions, who fears the reproach of the endeavour to make additions to the language. A subject must have a name, before anything can be predicated of it: and of the subject, be it what it may, till something is predicated, nothing will be understood.
Among non-lawyers, as well as among lawyers, the word hearsay is already in use. Among lawyers, the word original, and the word copy, are in use. With so slender a stock of the instruments of discourse, has the business of argumentation and thence the business of judicial decision, been hitherto carried on in this part of the field of law.
Even of so slender a stock—a stock comprised of three words, and no more—there exists one which is not fit for use. By reason of its ambiguity, the word copy is not fit for use. Does it mean transcript, in contradistinction to the original script? or does it mean exemplar? as in the case when, in a mass of letter-press, all may be equally originals, or all equally transcripts.
Such as yet is the supply: here follows a part at least of the demand.
In the case of want of originality (it has already been observed) the seat of the defect may be in the person by whom the evidence is delivered, or (in the case when at the time of delivery it wears the form of writing) in the collection of signs of which the writing is composed.
When the seat of the defect is in the person—when, upon his own showing, the deposing witness is a different person from him by whom the matters of fact in question were observed,—in this case there are, at least, two persons, upon whose trustworthiness the probative force of the testimony depends—two persons so connected, that, by the reduplication, the probative force, far from being increased, is lessened.
Of the deposing witness the existence is, by the supposition, certain: of the alleged percipient witness—of any percipient witness, the existence is necessarily and constantly a matter of doubt. On this account it is, that, without some such prefix as the word supposed, he ought never to be mentioned.
Instead of supposed percipient witness, the occasion may sometimes require us to say, the supposed extrajudicially stating or narrating witness: for neither are the terms synonymous, nor the persons in every case the same.
In the character of a percipient witness, a man will not, generally speaking, have made himself known to the deposing witness, unless by having made himself an extrajudicially narrating, reporting, or stating witness. But, in the character of an extrajudicially narrating, reporting, or stating witness, a man may easily have certified himself to the deposing witness, without having been a percipient or observant witness.
Notions other than such as can, strictly speaking, be termed perceptions, may moreover be not altogether without their use in evidence: and, useful or useless, they may serve to constitute the matter of which evidence is composed.
Of the persons through whose mouths the supposed statement of the supposed percipient or originally extrajudicially narrating witness may, from one to the other, have passed, or be supposed to have passed, the number may, to any amount, be great. Under French judicature, in the famous case of Calas, between the supposed precipient and the deposing witness there were no fewer than five.
So many of these supposed successive narrators (including the deposing witness,) so many media through which the supposed perception has been transmitted, in its way to the ear or the eye of the judge; so many media; of which one alone is judicial, the others extrajudicial.
By every extrajudicial medium, the evidence is removed—removed by one remove—from that degree of proximity which it were desirable it should possess, and which in the case of ordinary evidence it does possess, with reference to the eye or the ear of the judge.
Equal to the number of media, as above, may be said to be the number of degrees: equal to the number of media and degrees minus one, may be said to be the number of removes.
Media, degrees, removes: with equal propriety, and in the same sense, though with very different effect, and with much less force, does this nomenclature apply to the case of transcriptitious evidence.
And thus it is, that, in either case, constitutive of so many modifications or species of unoriginal evidence, we have unimedial, bimedial, trimedial, and so forth; in a word, multimedial evidence.
The two sources or causes of inferiority, the two modes of unoriginality, may be combined in the same lot or article of evidence.
Thus, for species or modifications of multimedial evidence, we have simple (composed either of multi-personal alone, consisting of person supposed to have spoken after person, or of transcriptural alone) and complex, composed of both those modes of unoriginality put together.
Not of personal evidence alone, but of real also, may originality and unoriginality be both predicated.
Real evidence is original—is originally delivered—when the thing which is the source of it is itself presented to the senses of the judge: unoriginal, when all the conception he can entertain concerning it is that which is conveyed to his mind through the medium of the testimony of a witness—commonly a deposing witness.
The shape in which the testimony of the deposing witness is conveyed to the senses of the judge, may be either the oral or the written shape. Hence it is that, when there has been no transcription, scriptitious may stand exactly upon a footing with hearsay, as well as with original evidence.
When the testimony, being unoriginal, is composed of that of two persons, one as it were behind the other,—the form in which the respective testimonies have been delivered, viz. oral or scriptitious, is a circumstance by which differences, which require to be noted, may be produced in the probative force of the compound testimony.
In the case where the supposed original evidence is of the real kind; in that case, the species of inferiority which, in the case of personal evidence, requires two persons, two witnesses, to the production of it, is produced by the testimony of a single witness, interposed between the thing which is the source of the evidence and the senses of the judge.
After these explanations, the following modifications of unoriginal evidence may, it is supposed, be rendered sufficiently intelligible by the denominations here employed for giving expression to them.
1. Supposed oral through oral: supposed orally delivered evidence of a supposed extrajudicially narrating witness, judicially delivered vivâ voce by the judicially deposing witness.
This is the only species of unoriginal evidence which the term hearsay evidence is, strictly speaking, competent to the expression of.
2. Supposed oral through scriptitious.
3. Supposed scriptitious through oral.
4. Supposed scriptitious through scriptitious: in other words, transcriptitious evidence.
In all four cases, the supposed original testimony must, in whichever shape delivered, be supposed to have been extrajudicially delivered.
In all these four cases, an interval of considerable length must, moreover, be supposed to have intervened between the supposed extrajudicial statement and the judicial one. Suppose no such interval, and the evidence stands, to every practical effect, undistinguishable from original evidence.
1. Thus, in the case of supposed oral through oral. A percipient witness, being in or near the judicatory, delivers his testimony in a low tone: and this evidence, not being sufficiently audible, is, by some other person (suppose an officer of the court,) repeated in a more audible tone, for the convenience of the judge.
2. So again in the case of supposed oral through scriptitious. This would be the common case of note-taking. Deposition of a percipient witness, extracted vivâ voce before a judicatory; notes or minutes thereof taken by a clerk, and the minutes delivered in to another. In this case, the word supposed would (it is evident) be regarded as superfluous or ill-placed. The note-taker, unless specially interrogated, would not be considered in the character of a distinct deposing witness.
3. So again in the case of supposed scriptitious through oral. This would be no more than the common case of written evidence read in court: for example, an affidavit. Here, too, the use for the adjunct supposed vanishes.
4. Lastly, in the case of supposed scriptitious through scriptitious. The witness having read to himself on one day a document capable of being adduced in evidence, parts with it immediately out of his hands. On the next day, from memory, he, in a judicial form, interrogated or not, writes an account of what, according to him, are the contents. This is supposed scriptitious through scriptitious; and he, the writer, is a witness. But while he is thus writing his account of the contents, suppose the paper to be lying before him. This is no longer the case of a reporting witness, simply reporting (if extrajudicially,) or deposing (if judicially,) to the contents of a statement made by another person, who is considered in the character of a percipient and extrajudicially narrating witness: it is the case of a scribe; and according as in his script words the same as those employed in the original, or words more or less different, are employed, his script is a transcript, an extract, or an abridgment.
Thus various and thus faint are the shades of difference by which one modification of unoriginal evidence is distinguished from another.
All modifications of unoriginal evidence that are of the nature of, or bear similitude to, hearsay evidence, as above, have this in common,—that for every remove (mendacity and fraud out of the question) they afford an additional chance of incorrectness and incompleteness.
But besides this,—supposing admission to be secured to them, and known to be so,—they afford, all of them, invitation to one and the same plan of fraud; which fraud is moreover equally applicable to casually-written and ex parte preappointed evidence. Secure, not only against punishment, but against adverse interrogation, the extrajudicial narrator and supposed percipient witness delivers his statement vivâ voce, or in writing, as the case may be; that statement being tinctured with mendacity, in the shape that seems best adapted to the sinister purpose, whatever that may be. The extrajudicially narrating witness has contrived, for the purpose, to place himself (if he be not so already) out of the reach of punishment. The judicially deposing witness, so long as he reports nothing but what has, to his knowledge, been expressed by the extrajudicially narrating witness, is not punishable; since, by the supposition, he says nothing that is not true.
OF SUPPOSED ORAL EVIDENCE TRANSMITTED THROUGH ORAL, OR HEARSAY EVIDENCE.
So many features belong in common to extrajudicially written and to hearsay evidence, that what would have been necessary to have been said on the subject of this last-mentioned species of evidence, had it been considered before the other, is, by what has been already said on the subject of the other, rendered unnecessary to be said here.
It is of the essence of hearsay evidence to present to the notice of the judge two distinct persons in the character of witnesses: a supposed percipient and extrajudicially narrating witness, stating, at some antecedent point of time, in the hearing of any person not on that occasion invested with the authority of a judge, some matter of fact as having had place; and a deposing, or say judicially narrating witness, who hears testimony, not to the truth of that matter of fact, but to its having actually been asserted, on the extrajudicial occasion in question, by the extrajudicially stating or narrating witness.
So distinct are the two characters, and, to the purposes of truth and justice, so material to be distinguished, that, while the one (viz. that of the deposing witness) is in every individual instance filled by a really existent person,—the other (viz. that of the percipient or extrajudicially stating or narrating witness) may happen to be a character altogether fictitious. The person, it may happen, is fictitious; or, though the person be at the time in question a person really existing, the statement or narration, and alleged perceptions, attributed to that really existing person, may on the whole, or as to any part, be fictitious.*
To the statement or narration judicially delivered by the deposing witness, and to that alone, belongs therefore, in propriety of speech, the denomination of hearsay evidence.
Supposed extrajudicially stating or narrating witnesses may have stood in a series of any length, one behind another. The causes of untrustworthiness applying to every human being, and, to every being of which nothing more is known than that he or she is human, with equal force,—it is evident that, the longer the line of these supposed witnesses, the less is the probative force of their supposed testimony.
Of the case which exhibits more such supposed extrajudicial witnesses than one, what little requires to be said, will be said in another place:* throughout the course of the present chapter, no more than one will be supposed. Of whatever is said under this head, it will be easy to make application to the whole possible series of those other cases.
Supposing (as above) one, and no more than one, supposed extrajudicially stating or narrating witness,—the character of the testimony will be found to admit of nine variations: the supposed testimony of the supposed extrajudicial witness, under each of three characters, being capable of being deposed to by the deposing witness under each of the same three characters. Thus,
I. By an extraneous deposing witness may be related the supposed extrajudicially delivered testimony of the three sorts of extrajudicial witnesses, viz.
1. Another extraneous witness.
2. A party on that side of the cause on which the hearsay evidence is not called for.
3. A party on that side of the cause on which the hearsay evidence is called for.
II. By a party on that side on which the hearsay evidence is not called for, may, in like manner, be related the supposed extrajudically delivered testimony of the same three descriptions of persons, viz.
1. An extraneous witness.
2. Another party on that side of the cause on which the testimony of the hearsay witness is not called for.
3. A party on that side of the cause on which the hearsay evidence is called for.
III. Lastly, by a party on the side of the cause on which the hearsay evidence is called for, may, in like manner, be related the supposed extrajudicially delivered testimony of the same three descriptions of persons, viz.
1. An extraneous witness.
2. A party on that side of the cause on which the hearsay evidence is not called for.
3. Another party on that side of the cause on which the hearsay evidence is called for.
In the case of hearsay evidence, the particular description of the characteristic fraud above mentioned (the fraud applying in common to every species of makeshift evidence) is as follows. Under the assurance of his not being subjectable to eventual punishment or to counter-interrogation, a man utters vivâ voce, on some extrajudicial occasion and place, a statement or narration, of the incorrectness or partial incompleteness of which he himself is conscious.†
In regard to admission, and the terms on which it shall take place, the rules which have been seen applying to extrajudicially written evidence, will be found to apply to hearsay evidence, without any difference considerable enough to render it worth while to exhibit those rules in the case of hearsay evidence, at the same length as those regarding extrajudicially written evidence.
The considerations from which, in the character of reasons, these rules were deduced, being the same, so of course will be the rules.
The only difference which there is, turns, so far as concerns admission, upon the magnitude of the danger (the danger from admission) under the two species of makeshift evidence: of which difference the delineation will constitute the matter of a following chapter.
In rule the sixth and last may be seen that which presents itself as the only instance in which the reasons in favour of the admission recommended by it seem to require, in the case of hearsay evidence, ulterior delineation, over and above such as correspond with those that have been already brought to view under the head of extrajudicially and casually written evidence.
Insulated, the alleged extrajudicial statement or narration of an alleged percipient witness will be little in danger of obtaining credence to such a degree as, if false, to be productive of deception. In connexion with other evidence, it may be necessary for the explanation and completion of an aggregate body of connected evidence: as in the case of a chain of facts following each other in a series, and composing together a body of circumstantial evidence.
Such may, in some degree, be the use of the makeshift document, even in the case of extrajudicially and casually written evidence. But more particularly it may be observed, in favour of the proposed admission of hearsay evidence, that if, on the occasion of what passed in a conversation between two interlocutors, the discourse of one be excluded, that of the other will frequently be unintelligible: an incident, the probable frequency of which is the same, whether (relation had to that one of the interlocutors whose discourse it might be proposed to exclude) the tendency of the discourse were self-disserving, or self-serving.
INSTRUCTIONS CONCERNING THE PROBATIVE FORCE OF EXTRAJUDICIALLY WRITTEN AND HEARSAY EVIDENCE.*
That which ought in scarce any case to be done, and is most abundantly done (it has already been observed,) is, to put an exclusion upon evidence, on the ground of danger of deception. That which ought throughout to be done, and nowhere has been done, is—if legislation be the work of reflection, and reflection pointed to right ends—to give the benefit of it, in the form of instructions, to the judge.
To bring to view such considerations as, on the occasion in question, present themselves as capable of being, in that character, assistant to the judge, if not in the way of information, in the way of reminiscence,—is the object of the present section.
I. Supposing admission given to both, and on the same conditions,—hearsay evidence is less likely than extrajudicially written evidence to have originated in the characteristic fraud: and (in so far as its incorrectness or incompleteness is regarded as not to be apprehended otherwise than as the result of such plan of fraud) is less untrustworthy—may with propriety be considered as acting with a greater degree of probative force.
The only case in which, from either species of makeshift and thence uninterrogable evidence, any advantage would be to be hoped for, is that of a posthumous advantage—an advantage not looked to as capable of accruing during the lifetime of the contriver, to be reaped by the contriver himself, but, after his death, to his family, or some other person whose interests are dear to him. For as to the man himself, if he be in esse, a reasonable condition to require of him (wheresoever he be, at home or abroad) is, that he submit to counter-interrogation; which if he do, his doing so makes, in both cases, an end of the makeshift evidence.
In this case, to make a species of evidence which shall be exempt from counter-interrogation as well as eventual punishment, he has his choice between casually written evidence and hearsay evidence.
Suppose him to choose casually written evidence. This (it being by the supposition admissible) is that one of the two that will afford him the best chance.
If he writes it himself, in the name of another person not privy, this will be an act of forgery; a punishable offence, committed, in the first instance, in prospect of a benefit expected to accrue to others, and at a time when he will not be able to enjoy it.
If for the writing it he engages an assistant, who is privy to the fraud, and who writes it in his own character,—here, indeed, is no forgery, but here is a fraud with an accomplice, in whose power the contriver puts himself.
If he writes it himself in his own person,—here is no forgery, nor is there any person in whose power he puts himself. This, supposing both species of makeshift evidence receivable (viz. casually written and hearsay,) is, in both points of view (probability of success, and security against punishment,) the most eligible.
Thus stands the plan of fabrication by means of makeshift evidence, on the supposition that casually written evidence is to be the instrument employed in it.
In this way, a man may use his endeavours to render an undue service to persons dear to him, even without subjecting the evidence to the discreditive observation of its being self-serving evidence. If it be a case in which their title cannot be derived but through himself, they taking in quality of his representatives, no: but the right which he thus fraudulently conveys may be drawn by him from another source. A father, for example, may, by a fraud thus shaped, convey to his son an estate derived, not from the father’s side, but from the mother’s.
Suppose revenge, or gratification of causeless enmity, the posthumous benefit—the sole benefit—in view. Here the testimony stands not exposed to any such discreditive observation as the above.
In this may be seen by far the most promising, in other words the most deceptitious, shape, which the characteristic fraud can assume. If in this it be not too deceptitious to be admitted, in no other can it be.
Hearsay evidence renders an assistant necesary. The contriver of the fraud utters the statement or narration in the hearing of the assistant: so long as the contriver lives, the assistant is silent; for such silence is what (as above) the nature of the fraud requires: the contriver dead, then, for the purpose of giving effect to the benefit which (though to him a posthumous one) the contriver had in view, comes the assistant forward with his hearsay evidence.
The inferiority of this species of makeshift evidence, in comparison with the other, may be seen in more points of view than one. If the assistant dies before the contriver, or (though not till afterwards) before his hearsay evidence has been judicially derived,—the plan is defeated: so if he expatriates, or forgets his lesson, or quarrels with the contriver. So much as to comparative probability of success. Meantime the contriver exposes himself to loss of character, and (if the law has done its duty) to punishment, through the infidelity of his assistant.
The assistant, it is true (so it may easily be managed,) need not be privy to the fraud: to the intended assistant the false story is narrated as if it were true. In this way, danger of punishment through infidelity is avoided; but danger of ill success, by reason of death and expatriation, remain the same; danger of ill success through quarrel, not much less. But the danger from forgetfulness is much greater, the cause of remembrance being wanting. Taking a memorandum might, it is true, be recommended by the contriver to the intended innocent assistant, or a memorandum put into his hand. But this circumstance would be still more likely to be remembered than any other; and in the mind of the judge, if not in that of the innocent assistant, in his character of deposing witness, it would cast a shade of suspicion upon the scheme.
The number of innocent persons thus taken for intended assistants, might be multiplied to any amount; but by no such multiplication could hearsay evidence, in the character of an instrument of this fraud, be raised to an equality with a letter or memorandum in writing, framed with a view to its officiating in the character of an article of extrajudicially written evidence.
Of the authenticity of a script, framed for any such express purpose, proof cannot, in the nature of the case, be wanting. Where adequate cause of rememberance is wanting, a story told is liable to be lost, whatsoever be the number of the hearers. In point of probability of remembrance, the difference between the seeing of a fact, and hearing a relation of it, is plainly infinite.
II. Setting aside, in both instances, the characteristic fraud, and purposed mendacity, to whatever purpose directed, hearsay evidence seems in general more likely to be fainted, and moreover in a higher degree, with material incorrectness and incompleteness, than extrajudicially written evidence is.
Extrajudicially written evidence presents but one witness in whose person the causes of untrustworthiness, intellectual and moral (sinisteraction of interest included,) are liable to have place. It requires, indeed, to be authenticated; a distinct purpose, for which evidence is necessary: but, in general, authentication is a matter little exposed to doubt; and, moreover, proveable by witnesses in abundance, none of whom are exposed to the action of any of the causes of untrustworthiness.
Hearsay evidence presents always two witnesses, viz. the deposing witness, and (unless when the deposition is a mere fiction) the supposed extrajudicially stating or narrating witness: two witnesses, and the causes of untrustworthiness repeatable upon each.
In case of mendacity on the part of the deposing witness, the evidence is exposed to a cause of falsehood, against which the extrajudicially written evidence is comparatively secure. The fact, that, by such or such a person, such or such words, or words to such or such an effect, were spoken, is a fact of the evanescent kind,—not of a nature to leave behind it, in any case, any physical traces, capable of operating (if it be true) in confirmation of it, in the character of circumstantial evidence.
Even in case of veracity on the part of the deposing witness, the evidence is exposed to a cause of error to which extrajudicially written evidence is not exposed. In the case of extrajudicially written evidence, the discourse being in written or other permanent characters, the tenor of it is fixed: whereas, in the case of hearsay evidence (especially if the discourse run into length,) it is frequently impossible for the deposing witness to speak to the very words; and then comes the uncertainty whether, of the words really spoken, the purport attributed to them by the deposing witness be a faithful representation—whether, and how far, the interpretation put upon them by the deposing witness is correct.*
To multiply in this way the number of hearers, not under any engagement of secrecy, will be to multiply the number of persons by whose conversation the story may be conveyed to some who will know it to be a lie, viewing at the same time in the person of the contriver the author of that lie. Thus, of a story which can be of no use to his purpose till after his death, the credit will have been destroyed in his lifetime.
Upon the whole, it appears that, so long as the supposed extrajudicial witness is not exempted from cross-examination, mischief in the way of misdecision would often ensue from the exclusion either of casually written or of hearsay evidence, and no adequate danger is to be apprehended from the admission of it.
If, indeed, the extrajudicial witness were exempted from cross-examination, and his unsanctioned and unscrutinized statement (or, in the case of hearsay evidence, his supposed statement) were received during his lifetime in the place of his judicial testimony, much danger of misdecision would be the result:—for, in this case, as any sort of man, the most untrustworthy, might, for the purpose of any suit whatsoever, without any the smallest danger to himself, make evidence, either for his own purpose, or for the purpose of any one who suborned him,—such evidence, being on every occasion at the command of any person, would, in point of trustworthiness, in the eye of reason, be worth nothing. If, then, on this consideration, it were never to receive credence in any case, justice would be deprived of the benefit of it in all such cases in which, had it been adduced, it would have been true, and (as such) conducive to the ends of justice. If, on the other hand, it were in general to be admitted, and receive credence, it would be but too apt to be received in cases in which it would be false and deceptitious; the known security with which it might be manufactured and exhibited, would occasion its being manufactured in a multitude of instances without stint. False claims, in a number altogether unlimited, would be set up on the mere ground of the support to be given to them by this evidence: and, since the nature of the evidence admits scarce any means or chance of distinguishing false from true, the number might be so great, that, in every instance in which credence were given to this sort of evidence, deception and consequent misdecision on the part of the judge would be a result more probable than the contrary.
Here, then, would be a double mischief: the two opposite mischiefs of undue credence and undue discredence, running on at the same time. Out of twenty false claims, set up on the ground of this evidence, suppose it to obtain credence in one only, and to be discredited in the nineteen others. The amount of the injustice thus done in the one case out of twenty, would itself be an enormous evil: this evil would be the result of undue credence. But the nineteen instances in which it were discredited, would be sufficient to throw a general, and to a considerable degree indiscriminating, discredit upon this species of evidence: the consequence would be, its being discredited in a number of instances in which, it being true, the discredit thus cast upon it would be productive of misdecision and injustice.
True it is, that—on the supposition that it were generally known to be admissible, when, from death or other causes, the extrajudicial witnesses were no longer exposed to cross-examination—motives for the fabrication of it, in the hopes of its serving a man’s purpose after his death, would not be altogether wanting. But as, in such case, the inducement for the fabrication of it would, in comparison, be extremely feeble: the quantity of it fabricated, if any, would be proportionably inconsiderable. The instances, if any, in which it were thus fabricated, and false, would scarcely be equal in number to the instances in which it would be true, and conducive, or even necessary, to the fulfilment of the ends of justice. But in the instances in which it were false, it would not follow by any means, that because admitted it must obtain credence and be regarded as conclusive. The possibility of its having originated in the characteristic fraud, would be an obvious objection—a species of psychological circumstantial evidence, that could never fail to be opposed to it: and, being by the supposition false, it would find itself counter-evidenced and opposed at the same time by as many true facts as happened to be brought forward by whatever true evidence the cause happened to afford. Under these circumstances, there seems little danger of its being taken for more in each given case, than in that same case it were really worth: no more in the case of this transmitted evidence, than in the case of immediate evidence.
OF SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH ORAL; OR MEMORITER EVIDENCE.*
The supposed written evidence may either be of the nature of casually written evidence, or of written preappointed evidence (private or public, contractual or official.)
Its trustworthiness will accordingly be varied according to the nature of its supposed source: the medium through which it is transmitted, being supposed the same in both cases.
When the alleged writing (supposing it oral) is of the nature of casually written evidence, the report thus made of it from memory, it is evident (be the reporter who he may, be he in all respects ever so trustworthy,) must in trustworthiness be inferior to what the article of casually written evidence would have been, had it itself, and without passing through any such medium, been presented to the senses of the judge.
In the case of memoriter evidence of this description, the characteristic fraud is this:—For his own advantage, or for the advantage of a person dear (privy or not privy,) Stellio, having fabricated or altered a script, puts it in the way of Memor, and then withdraws it again; to the end that Memor, having informed himself of the contents, may, on being judicially examined, report them in the character of a memoriter witness.
In respect of trustworthiness (the characteristic fraud out of the question,) in a general point of view, this species of transmitted evidence may be apt to appear scarce distinguishable from the more ordinary modification, supposed oral through oral, i. e. hearsay evidence. In the supposed source of information consists the only difference: the medium, the chief source of deception, is the same.
On a closer examination, it will present some not altogether inconsiderable differences, resulting principally from the nature of the script, as above diversified.
To understand the relation, and measure the difference, a distinction must be made between the danger of mendacity, and the danger of incorrectness.
In the case of a supposed script amounting (if genuine) to no more than an article of casually written evidence, much of course will depend upon the particular nature of the script. If it be altogether anomalous, such as a letter, or a loose memorandum made not in the way of any regular business,—the difference in this respect between feigned memoriter evidence, and feigned hearsay evidence, will be scarce discernible. If it belong to any regular class of scripts, such as the shop-book of a shopkeeper, or any book of accounts kept in regular form, though by a person not embarked in any profit-seeking occupation,—the sphere of mendacious invention will be proportionably confined. To obtain credit, the supposed script, according to the mendacious account given of it, must wear a certain degree of conformity to scripts of the like sort: it must be so far consistent with those true facts which the nature of the case cannot but afford, as not to be exposed to receive contradiction, on the ground of improbability, from circumstantial evidence.
In the case where the script was, or (if it had been really existing) would have been, an article of preappointed evidence—say an article of contractual evidence (a deed of conveyance)—the field of mendacious invention is in general still more narrowly limited: though, in this respect, much of course will depend upon the nature of the deed: and so in the case of official evidence.
In the case of an article of contractual evidence, a man’s chance for succeeding in his plan of imposition will depend not only on his acquaintance with the circumstances of the parties or supposed parties, but on his acquaintance with the dispositions made on that subject by the law.
In like manner, in the case of an article of official evidence, his success will naturally be more or less dependent on his acquaintance with the course of business as carried on in the particular office.
By this necessity of appropriate information, as a condition sine quâ non to the planning and carrying on an imposition of this kind with any promising prospect of success,—not only is the source of danger reduced to the testimony of a comparatively narrow description of persons, but to that sort of description of persons who, by reason of mental culture and situation in life, may naturally be expected to be above the ordinary level in point of trustworthiness.
In respect of the danger of incorrectness (mendacity out of the question,) where, as here, the source of the evidence is a discourse fixed by the permanent signs of written discourse, it seems to possess a probative force considerably stronger than ordinary hearsay evidence never consigned to writing.
In the case of a purely oral discourse, the original received its birth and death at the same instant: the impression left by it on the conception, however faint, cannot at any subsequent time be strengthened: however incorrect, it can never afterwards be corrected. In the case of a discourse committed to writing, what is possible, indeed, is, that the glimpses caught by the eye may have been as faint or as incorrect as the glimpses caught by the ear, in the other. On the other hand, nothing hinders but that the view taken of it may have been as attentive, as correct, and as often repeated, as could be desired.
For the reason given above, the chances in favour of correctness may naturally be expected to be in general somewhat greater in the case of the preappointed, the contractual or official script, than in the case of the purely casual article of written evidence. In the case of the contractual species of script (the deed of conveyance more especially,) the memory of the idiosyncratic particulars will naturally (to a professional, or in other words practised, mind) be assisted, and the field of recollection narrowed, by the general form of the species of deed—by those parts of the context which belong in common to deeds of that sort.
OF SUPPOSED ORAL EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR MINUTED EVIDENCE.
If the person by whom the minute is supposed to have been taken, be an official person, acting in virtue of his office,—and the discourse which he is committing to writing be the discourse of a person by whom, on the delivery of it, he is addressed in his official character,—such evidence is a species of preappointed evidence—preappointed official evidence: and, in a word, if the purpose for which, or occasion on which, the minute is thus made, be a judicial purpose or a judicial occasion, the discourse thus orally exhibited and minuted is neither more nor less than a mass of judicial testimony. The minutes taken of the deposition of a judicial witness, whether spontaneously exhibited, or extracted by interrogatories,—taken whether by the judge himself, or by a scribe of his in his presence,—belong to this head of evidence.
If the person by whom the minute is supposed to have been taken, be not an official person, this species of evidence is of a nature that presents itself as having been already included (or at least as capable of being included) under the denomination of casually written evidence.
If, in a memorandum or letter, mention be made of a supposed fact, that fact may as well consist of a discourse supposed to have been holden by another person, as of anything else. If mentioned as being holden by another person, it may be mentioned as being holden by him either at the very time of its being thus committed to writing (as in the case of a judicial deposition or examination, as above mentioned,) or at any preceding point of time, separated from that point of time by any distance.
In general, the judicially scrutinized testimony of any given person will, in all points taken together, be more trustworthy than the casually written evidence of the same person—a memorandum or letter written by him. Yet instances are not wanting in which casually written evidence will present a preponderant probability of standing the closest to the truth.
In the presence of Oculatus, a transaction takes place, of which, on that same day, he gives an account in a letter to a friend. Suppose Oculatus a man of probity, and either not exposed to the influence of any sinister interest, or too firm to be drawn aside by it; and suppose, at the same time, that either discernment or accident has rendered his account of it, not only correct as far as it goes, but complete; nothing can be more evident, than that such a letter will present a much more satisfactory account of the matter than could reasonably be expected from the judicial testimony of the same person, examined, though in the best mode, at a distance say of twenty or thirty years after the event.*
Cæteris paribus, the chance which an article of casually written evidence has of being superior in trustworthiness to the judicial testimony of the same person, will be in the direct ratio of the interval of time elapsed between the day of the event and the day of the examination.†
The length of time, as above, being given,—the advantage of the casually written evidence, in comparison with the judicial testimony, will be inversely as the apparent relative importance of the transaction, the importance which it possesses in his eyes. The real absolute importance will no otherwise contribute to strengthen in his mind the impression made by it, than in as far as its eventual importance happens to be apparent to him, and to be the same in the instance of that particular individual as it would be to an average individual in his place.
Nor, in ordinary instances at least, will the importance of the fact, any other than its relative importance with respect to the percipient witness himself (that is to say, its connexion, real or supposed, with his own happiness,) afford security for permanence and accuracy of recollection.
The state of the witness’s mind at the time is another circumstance by which the strength of the impression made by the transaction at the time, and thence the strength and accuracy of his recollection of it, cannot but be in a very considerable degree influenced. If, by business of a more interesting nature to himself, his attention be pointed another way,—especially if, by the urgency of it in point of time, his mind have been put into a hurry,—the impression made by the transaction in question may be slight, indistinct, and fleeting, and his recollection of it proportionably uncertain and confined; although, in other circumstances, the impression made by a transaction of that same nature might have been sufficiently strong, distinct, and permanent.
A still better, and in every case without exception a more trustworthy, lot of evidence, than can be constituted by judicial testimony alone (how well soever the examination be conducted,) is that which consists of the judicial testimony of the same person, with an article of casually written evidence of his inditing (a letter or memorandum of his penning) at the time (or, if after, the sooner after it the better) for his assistance; the script being at the same time produced, or, at the demand of either party, ready to be produced. Against incompleteness on either side, there is the security afforded by examination and cross-examination against mendacity and bias on one side, there is the security afforded by cross-examination; against simple incorrectness on either side, there is the security afforded by the fortunate script, the fortunate letter or memorandum, the article of casually written evidence.
This composite sort of evidence, when the written element happens to present itself, may be regarded as a sort of super-ordinary lot of evidence, still better than that which in general passes under the denomination of the best. But, eligible as it is when it is to be had, it would evidently be a vain arrangement to exact it in all cases, or even to place it upon the footing of regular and ordinary evidence; since the existence of it is merely fortuitous, depending altogether upon the free pleasure and accidental disposition, as well as literary endowments, of the witness. If it could be required by law, it would come under the notion of preappointed evidence.*
OF SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR TRANSCRIPTITIOUS EVIDENCE.
A transcript, what—Modes of transcription.
On the occasion of this, as of other modifications of transmitted evidence, the main objects of inquiry are still two:—1. What shall be received? and, 2. Whatever comes to be received, by what consideration shall the estimate formed of it, in respect of comparative trustworthiness, be directed?
But, previously to our entrance into this inquiry, the bounds of the object must be previously fixed, and its several modifications distinguished.
By a transcript, taken in its largest sense, may be understood any discourse which, being expressed by permanent signs or characters, is proposed as capable of producing, in the way of evidence, the same effect as another discourse, which, being also expressed by permanent signs, is with reference to it termed the original.
Under this most general description are comprehended three modifications:—
1. A transcript which is such in tenor: a copy taken verbatim et literatim.
2. A transcript in purport only, without being such in tenor. Couched in a set of words more or less different, it contains what is looked upon as conveying precisely the same sense. To this head belong translations made into other languages.
3. A transcript in effect only. Not professing to contain so much as the purport of the original, at any rate not the whole of the purport, it professes to contain that which, with reference to the purpose in question, is sufficient for the purpose. To this head belong extracts and abridgments.
A transcript in tenor is a transcript both in purport and effect: a transcript in purport is also a transcript in effect.
A transcript in tenor is that modification which seems the most apt to be presented by the word; but the others have little less claim to consideration, and they also may be naturally expected to be considered under this head. Let this be examined in the first place. Whatever is said in relation to this principal and most proper modification, will serve as a model and standard of reference for whatever there may be occasion to say of the two others.
For making transcripts (understand transcripts in tenor,) the word transcript being taken in the most extensive sense, there are divers modes, performed by so many correspondent operations. Not being altogether upon a par in respect of probability of correctness, they require on that account to be distinguished:—
1. One is, writing, in the more common and confined sense of the word: writing with pen and ink. This is the most in use, except in the case where transcripts of the same original are required in large numbers, as in the case of.
2. Printing: including the old-established mode by moveable types, and the mode of modern invention in solid masses, called stereotypage.
3. Engraving, in the case where the characters are to be taken off in the way of impression: as in the ordinary case of engraving on copper, pewter, wood, glass, &c.
4. Sculpture: in the case where no impressions are meant to taken off.
5. Painting in various ways: which is but an elaborate mode of writing, comparatively of little use.*
In the case of the recently invented mode of writing with two or more pens at once, the distinction between original and transcript has, it is evident, no place: except in so far as, by an independent act of authentication, one or more of such draughts or copies should come thus to be distinguished from the rest.
So in the case of the anteriorly invented mode of taking off impressions from writing.
As between one mode of transcription and another, the probability of correctness, fraud apart, will depend on the following circumstances:—
1. The number of persons employed in the making and verification of the transcript.
2. The degree of attention requisite, and naturally to be expected, on the part of each.
3. The degree of publicity with which errors in general will, in the instance of each, be likely to be known and noticed.
On all these accounts taken together, printing seems to present a superior chance for correctness, in comparison with writing.†
As, by writing, a transcript may, for practical purposes, be, by means of due examination and verification, put upon a level with the original; so may printing, and with still greater facility and certainty.
In the case of laws, and all other documents of a public nature that are consigned to print, the printed copies ought to be placed, by appointment of law, upon the same level as the original.
Reason: In the case of laws, the printed copy is the only standard to which access is rendered possible to the people, who, at their peril, are bound to pay obedience to them.
In whatsoever cases forgery in the way of writing is made punishable, forgery in the way of printing, for the same purpose, ought to be made punishable in the same manner.
1. Forgery of laws; whether in the way of fabrication or falsification.
2. Forgery of a deed of administration; such as proclamations, nominations to offices, orders issued to public functionaries.
3. Forgery of articles of intelligence, or advertisements, in a newspaper published under the direct orders of government.
4. Forgery of articles of intelligence, or advertisements, in any private newspaper; the appearance of the paper current under that title being counterfeited by a person other than the accustomed publisher.
Reason: In the case of fraud, if any one of the possible modes of transcription were left unincluded in the penal consequences, fraud in that shape would be without a check; and being, as often as it succeeds, alike mischievous, in whatever shape, there is no reason why it should be exempted in one shape, more than in another.
In regard to a transcript professing to be such in tenor, a distinction must be taken between a transcript verified, and a transcript unverified, or (which comes to the same thing) not known to have been verified.
By a transcript verified in tenor, I understand a transcript, the conformity of which (i. e. of the tenor of it) to the tenor of the original, has been sufficiently established for every judicial purpose; at least for the judicial purpose to which, on the occasion in question, it is proposed to be applied.
Verification is to a transcript what authentication is to an original. By what means this effect may most advantageously be produced, is a topic of consideration that may be posted off to a separate head, with as much advantage, and with as little inconvenience, in this case as in that other, and for the same reason.*
Supposing the transcript verified—verified according to the import of the term as just fixed,—it thereby becomes dismissed in effect from the present subject. It is alter et idem, a perfect equivalent for the original; it can no longer be considered with propriety—with consistency at least, in the light of makeshift evidence.
What follows is, therefore, to be confined in its application to the case of a transcript not verified: either not known to have been verified by any means, or at least not known to have been verified by sufficient means.
Sources of untrustworthiness in transcriptitious evidence. Hearsay and transcriptitious evidence compared, in respect of probative force.
Applied to transcriptural evidence, the description of the characteristic fraud—the fraud liable to be practised without detection, if the transmitted evidence were to be received on the same footing as the original—is as follows. A man falsifies a real original, or fabricates a spurious one, to the end that, a transcript (here understand in tenor) being made of it, the effect of a forged script may be produced; at the same time that, the falsified or spurious original being destroyed, and thence no longer producible, the fraud may by that means pass undetected.
In the case of the characteristic fraud, as above described, the falsity, so far as the written evidence is concerned, is confined to the extrajudicial part of the evidence. The object is distorted, or a fallacious object is fabricated, or the true one falsified; but the medium (for anything that appears) is correct and pure.
Here, however, as elsewhere, though complicity on the part of the writer of the transcript (privity, which is as much as to say complicity) is not of the essence of the fraud, neither is it excluded by it. The fraud may have been committed, and, having been committed, may ultimately, or for the time, have succeeded, whether the vice of the original was or was not known to the maker of the transcript, at the time of his making it.
Setting aside the characteristic fraud,—in the case of this, as of other transmitted evidence, for one source of true information, there are two sources of untrustworthiness and deception: 1. If there be an original from whence the transcript was made, that original may have been spurious, fraudulently altered, or simply incorrect; 2. The pretended transcript may have had no original, or, being taken from an original, may by fraud or by accident be incorrect.
To be spurious or incorrect, whether from mendacious design or from accident, is what may have happened (it may be said) to any single script, considered in the character of an original, or pretended original; and on that account, these causes of untrustworthiness ought not to be set down to the account of the supposed transcript as such. True: but in the case of a script purporting to be an original, and chargeable either with spuriousness or incorrectness, it may happen to it to wear upon the face of it marks of the spuriousness, or marks of the incorrectness, such as upon the face of a transcript would not be equally open to observation.
Moreover,—in the case where the script, to present the appearance of an original, would require to present the appearance of being authenticated (for example, by the person or persons whose discourse it purports to be, with or without the signature of any other person or persons in the character of attesting witnesses,)—if the supposed transcript were, without having been verified, to be received on the same footing as an original,—a person intending fraud would find a much better chance of success and safety in the making of a pretended transcript of the tenor in question, than in the fabrication of a spurious original, or the fraudulent alteration of a really existing one, since the means of detection capable of being afforded by the spurious signatures in the one case, and the obliterations, additions, or substitutions, in the other, would all be avoided by the expedient of the pretended transcript.
So far as simple incorrectness, the result of accident, clear of design and mendacity, is concerned, this species of transmitted evidence, supposed written through written, will appear much superior in trustworthiness to hearsay evidence; and that whether the supposed script which is the supposed source of the evidence, or the indubitably existing script constituting the medium through which the other is supposed to be conveyed, be considered.
1. As to the supposed original (whether really existing or not,) it may either be of the nature of preappointed evidence, or of the nature of casually written evidence. If it be of the nature of preappointed evidence, the trustworthiness of the discourse contained in it, is, by the supposition, placed, in one way or other, upon a superior footing. The lowest footing on which it can stand, is that of casually written evidence: and this (as hath already been seen) presents, in the nature of it, a security against incorrectness, superior to that which naturrally belongs to oral discourse. Writing, in the very nature of the operation, requires a degree of attention and recollection more than is required in speaking.
2. On the part of that one of the two persons concerned, whose writing constitutes the medium through which the supposed tenor of the original is transmitted,—the superiority of this modification of transmitted evidence, as well over supposed oral through oral, as supposed written through oral, is easily discernible.
1. In the case of supposed oral through oral,—the judicially reporting witness, at the time when the supposed extrajudicial statement presented itself to his ear, caught it as he could—caught it as it flew. He may have misconceived it from the first—he may have forgotten it in any part, or misrecollected it afterwards. The writer of the transcript has the original all along before him, and commits not to writing so much as a word till he is satisfied that his conception of it is just: and no sooner is a word thus fixed, than the preservation of it is placed on a ground much stronger than any that could be given to it by the firmest memory.
2. In the case of supposed written through oral,—the judicially reporting witness may or may not have had his own time for the forming of his conceptions in relation to the contents of the script. But, let the time actually taken by him have been ever so sufficient,—whether with any, and what, degree of correctness those conceptions have at the time of his deposition been preserved, depends altogether upon the power, the relative power, of his memory.
Supposing fraud entirely out of the question,—in a practical view, the trustworthiness of a transcript will be but little inferior to an original. There are two cases in which an error is of no practical importance: 1. When the words it falls upon are of no practical importance: 2. When, though the importance of the words it falls upon be ever so considerable, the correction requisite for it is sufficiently indicated by the context.
The oftener a series of words comes to be repeated, the less probable it is that an unintentional error in respect to any given words should be repeated in each instance: and if there be but a single instance in which it fails of being repeated, the true reading remaining in that instance will commonly serve for the correction of the false readings in all the others. This, of course, will hold equally good, whether in the original script the repetitions were, or were not, necessary to the purpose. Hence an advantage resulting from repetitions that otherwise would be useless: an advantage, though such a one as shrinks to nothing when compared with the disadvantages.
The more rare it is for a mere unintentional error of the transcriber to be productive of an incurable error in the sense, the stronger the indication given of fraud, where the error is material, and material in such a way as to be subservient to any assignable sinister purpose.
On the part of the transcriber, the faculty of conception being so amply assisted, and the use of the faculty of remembrance superseded,—whatever danger of incorrectness from this source remains open, depends upon the accidental deficiency of the faculty of attention. From the consideration that this is the faculty most exposed to fail, some light may be thrown on the question, which of the three shapes, omission, substitution, addition (in case of honest incorrectness,) the inaccuracy seems most likely to take.
1. Omission presents itself as being the most natural. On the part of any given word in the original, a momentary failure of attention to that word may have a correspondent omission for the result: and in this case (if a failure of the conception be altogether out of the question,) a larger portion of a line may with almost equal probability—an entire line with still greater probability, be the result.
2. Substitution of one word for another (in general by means of the substitution of this or that particular letter for another,) seems nearly, if not altogether, as probable as simple omission. What renders it the more probable is, that this species of inaccuracy is more apt than the preceding to originate in misconception. It may be referable in a greater or less degree to misconception, if, the transcriber being a man sufficiently acquainted with the subject to form a judgment, the transcript, deviating in this way from the original, presents, notwithstanding, an intelligible sense. If the sentence altogether presents either no sense at all, or none but what is plainly absurd and irrational, the transcriber not being altogether disqualified from judging, it is to a failure of attention, and that alone, that the inaccuracy seems referable.
3. Addition of a word—insertion of a word to which no correspondent word exists in the original—is a mode of inaccuracy not altogether without example, but much less frequently exemplified than either of the two others. Judgment, attention, applied to the subject, applied to the original script, cannot be the cause of an inacuracy of this nature: the cause of it, when it does take place, must be sought for in the imagination: it must be considered as a product of the imagination, a production which finds its way into the transcript for want of that attentive comparison with the original, which, by showing the original to have no such part in it, would be sufficient to prevent it from being admitted into the transcript.
The use and object of the above distinctions, in so far as they may be found just, is to give facility to the detection of fraud—to serve for the distinguishing of a case of fraud from a case of honest incorrectness. If, in general, insertion be in any degree less apt to originate in accident than either omission or substitution,—then—if in any individual instance insertion should happen to have been discovered,—in that instance, should any marks of design (which here is as much as to say of fraud) be discovered, this particularly may perhaps be added to that side of the account.
In what cases, and on what conditions, shall a transcript be received in evidence?*
A script being tendered in evidence in the character of a transcript from another, that other spoken of in the character of an original,—shall it, or shall it not, be received?
For the purpose of an answer to this question, seven cases must in the first place be distinguished:—
I. The alleged original is in existence, producible or consultable, and known to be so.
II. The alleged original is in a state of expatriation.
III. The alleged original is in a state of exprovinciation.
IV. The alleged original is known to have existed; but is known to be no longer in existence.
V. The alleged original is known to have existed; but whether it be still in existence or not, is uncertain.
VI. It is not known whether the alleged transcript be a transcript or not, i. e. whether there ever existed a script, from which, in the character of a transcript, its existence was derived.
VII. The alleged original is known to be in existence, but in the power of the adverse party.
To meet these possible modifications in the relative situation of the lot of evidence, there are three modifications of which the conduct of the judge in relation to it is susceptible.
1. It may be received absolutely and unconditionally.
2. It may be rejected absolutely and unconditionally.
3. It may be received conditionally, or according to circumstances: say received sub modo.
This last course will, upon the whole, he found, in most cases, the most advantageous one.
Case I. The original known to be producible or consultable.
Rule 1. Where the original is, at the time, producible or accessible, no transcript or alleged transcript ought to be received without some special reason.
Reason: Because, in point of trustworthiness, and with a view to the danger of misdecision, no transcript can ever be, strictly speaking, exactly upon a par with the original. If, then, the original be produced at the same time, the transcript (except in the cases immediately following) is superfluous, and the vexation and expense incident to the production of it, uncompensated: if the original be not produced, the transcript may be deceptitious.
Rule 2. Where, on the occasion in question, the original cannot, without a considerable degree of difficulty, be referred to and perused,—in such case, a transcript in tenor, purport, or effect, as the case may be, may be exhibited in addition to the original, and at the same time.—Examples:
1. The original, in respect of obsoleteness of language, or handwriting, or both, difficult to be conceived or perused, and read with fluency.
2. The original conceived in a language (dead or living) other than the current language: (in this case, the transcript will be a transcript not in tenor, but in purport or effect.)
3. Where not the whole of the original, but a particular part or parts only, are applicable to the purpose in question, in the character of evidence: especially if the relevant portions be more or less scattered, and distant from each other. In this case, the transcript is of the nature of an extract or abridgment: a transcript neither in tenor, nor (throughout at least) in purport, but only in effect.
Rule 3. So, where, on the hearing of the cause, for the convenience of consultation, a number of copies are wanted at the same time.
Rule 4. For special preponderant reason, a transcript may, in every instance, under appropriate conditions, be received instead of the original.
Rule 5. Such reason will, in every instance, be reducible to some one or more of the modifications of collateral judicial inconvenience (viz. delay, vexation, or expense,) considered as resulting from the production or consultation of the original, over and above what would result from the production or consultation of the supposed transcript.
Rule 6. Of the cases in which it may happen that the production of the original in the first instance shall be productive of preponperant inconvenience in the shape of delay, vexation, and expense, the following may be examples:—
1. Where, at the time in question, it happens to be lodged in a place out of the dominions of the state.
2. Or in a place within some province beyond sea, or other widely distant province—(viz. with reference to the seat of the tribunal to which the evidence is to be presented.)
3. Where the original script in question forms part of a volume, which cannot conveniently be removed from the repository in which it is kept, by reason that other parts of its contents are requisite to be kept in that same place for other purposes.
Rule 7. When (for the avoidance of delay, vexation, or expense) a transcript is received in the place of the original, its faithfulness ought to have been previously established in the most trustworthy manner; or—if (for the avoidance of delay, vexation, and expense) not in the manner the most trustworthy of all—in the manner the next most trustworthy that shall be compatible with the avoidance of a preponderant degree of such collateral inconvenience.
Rule 8. With reference to the adverse party—the party against whom the lot of evidence is produced,—its fidelity will have been established in the most satisfactory manner, when such adverse party, by himself or his more competent agents, having (upon sufficient opportunity of access) compared the transcript with the original, finds the transcript equivalent in every respect to the original, in point of effect.
Rule 9. But no script ought ever to be received (except as by the next rule) in the character of a transcript, in lieu of the original (as above,) from the hands of any suitor, without a declaration upon oath, on the part of him or his law-agent, declaring the fact of his having examined it by the original, and of the persuasion he entertains of its fidelity.
Rule 10. If the transcript—having been examined by the original, and appearing upon the face of it so to have been, by some appropriate official person,—has thereupon been certified to be correct,—the party so tendering it in evidence is not bound so to re-examine it: but neither in this case should the declaration of his own persuasion respecting the fidelity of it be omitted; although such persuasion have no other ground than the general consideration of the security afforded by this species of preappointed evidence.
Reason 1. A possible case is, fraud on the part of the official examiner, by collusion with the party tendering the evidence.
2. Error on the part of the official examiner, viz. to the advantage of the party, and discovered by him by accident.
Case II. The original known to be in a state of expatriation.
This case is, upon the very face of it, a modification of the first case: but, presenting a demand for an appropriate set of arrangements, it requires to be arranged under a separate head.
In the case of transcriptural evidence, expatriation of the script is analogous to expatriation of the person in the case of casually written and hearsay evidence. The arrangements demanded—though, by reason of the different nature of the subject-matter, they will not in terminis coincide with the arrangements suitable to those two preceding cases—will, under the guidance of analogy, be naturally indicated by them.
Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of expatriation,—let the following arrangements await the option of the judge:—
1. To cause the transcript to be sent abroad (viz. to the place where the original is kept,) for examination, and attestation of verity.
2. To cause a fresh transcript from the original, duly verified, to be imported and produced.
3. To cause the original itself to be imported and produced, if practicable, and without preponderant inconvenience.
Any one of these arrangements to be taken, or none, according to the importance of the cause, the importance of the article of evidence in question in relation to the cause, the degree of persuasion respecting the faithfulness or unfaithfulness of the transcript, and the comparative degrees of inconvenience, in the shape of delay, vexation, and expense, attached to the three respective courses.
A time to be declared, subject to abbreviation or enlargement for sufficient cause, at the expiration of which, if the intended operation chosen (as above) be not performed, it shall be regarded as impracticable.
The provisional decision to be in favour either of the party proffering the evidence, or of the adverse party: and in either case, with or without security taken for eventual reinstatement.
Observations. Unless the non-existence of the alleged original, or the unfaithfulness of the transcript in all material points, he believed—even although there should be no other direct evidence of the existence of the original than the judicial testimony of the party, nor of its faithfulness, than his declared belief,—the judge will scarcely refuse to pronounce the provisional decision in favour of the faithfulness of the transcript, taking security for reinstatement in case the result of the reference so made to the original should prove unfavourable. For the reasons why, see the examination of Case VI. further on.
Case III. The original known to be in a state of exprovinciation.
This case is, also, upon the face of it, a modification of Case I.: a modification closely analogous to the last preceding case, the case of expatriation. The arrangements requisite to be taken will, in their general description, coincide with those already brought to view in that last-mentioned case; but, in detail, the description of them will obviously require to be, in various particulars, different. In the case of expatriation, everything that can be done is more or less dependent upon the facilities given or withholden by the government in the foreign state: in the case of exprovinciation, it depends upon the arrangements taken in that behalf by the government in the state in question—in the same state.
Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of exprovinciation,—let the same arrangements as in the case of expatriation await the option of the judge; subject to such arrangements, if any, as may have been taken in this behalf by the legislator, the common sovereign of both provinces.
Observations. As far as local distance is concerned, the quantum of delay, vexation, and expense, attendant upon that circumstance, may be as great in the case of exprovinciation as in that of expatriation;—the only uniform difference between the two cases consists in this, viz. that, in the case of exprovinciation, access to the original, or the production of it, will be at the command of the government of the country in which the transcript is thus proffered; in the case of expatriation, not.
Case IV. The original known to have existed, but to be no longer in existence.
Rule. Where, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but that it is no longer in existence; let the transcript be received in place of the original, subject to whatever considerations may be alleged in diminution of its trustworthiness.
Reason. Neither fraud, nor material incorrectness, are to be presumed: both cases are, in comparison, extremely rare. In this case, forgery in the way of fabrication is by the supposition out of the question. An original to the transcript there really was: the only question is, whether the representation given of it by the transcript be substantially a faithful one. If for every thousand transcripts there have been one unfaithful one, and no more; on this supposition, the probability of misdecision, even supposing the unfaithful transcript to obtain credence, is but as a thousand to one; whereas, on the other hand, if the transcript be necessary to warrant the decision prayed for on the side of him by whom it is proffered, and being so, is rejected, misdecision, in case of rejection, is a certain consequence.
Or say thus: If, in every ten transcripts of each of which the original has ceased to be in existence, whereupon the transcript has been proffered in evidence in its stead, there has been one unfaithful and no more; then, in case of admission, the probability of misdecision is, at the utmost, but as one to ten; whereas, in case of rejection, it is certain.
Previously to the deperition of the original, no fraud in any shape can have existed, unless at the time of the fraud the deperition had been foreseen; which it could hardly have been, unless an intention of procuring such deperition had formed a part of the fraudulent contrivance: no fraud in any shape, either by, or by the help of, purposed infidelity on the part of the transcriber; or by the like on the part of an examiner; or by forgery in the way of falsification, committed by another person at a time posterior to the examination: always understood and supposed that, according to the known dispositions of the law, so long as the original is in being, the transcript cannot be received on any terms; or not but upon the terms of being confronted with the original, in case of dispute.
No sooner, however, is the deperition known, than the check which the existence of the original opposed to forgery in the way of falsification is at an end. The transcript becomes, in that event, at that period, exposed to falsification; to wit, as much as an original would have been, but no more: the transcript, as such, is not on this score less trustworthy than an original would have been in its place.
Here, if the author of the falsification was the party by whom the transcript is proffered in evidence, the most natural case is, that, for the purpose of giving room for the falsification, it was by him, or by his means, that the deperition of the original was procured: but another possible case is, that the deperition took place without his participation; for example, by accidental fire, or in some other way by mere accident; and, the opening to fraud being thus made, then it was that it occurred to him to take advantage of it.
If it be clear that, from the time of the deperition of the original down to the time of the production of the transcript, the transcript has never been either in his custody, or, to any such purpose, in his power,—all suspicion of fraud on his part of course falls to the ground.
As to mere accident: in one point of view it should afford no reason at all for the rejection of a proffered transcript in this case. For (design being by the supposition out of the question) an incorrectness, even supposing it material, is not more likely to operate to the prejudice of one party than of another: the chances of advantage and disadvantage being, therefore, equal, and that with reference to each party, their situations are respectively the same as if there were no chance either of advantage or disadvantage on either side.
But this circumstance is not altogether destructive of all probability of misdecision from this source. Whether the incorrectness be taken advantage of or no, will depend upon that one of the parties in whose custody or power the transcript is: if the error be to his disadvantage, and he aware of it, he will either not produce the transcript at all, or not without pointing out the error, and claiming the benefit of its being corrected; if it be to his advantage, and his disposition be to such a degree dishonest, he will in that case take advantage of the error, although he had no part in the production of it.
If, from the above considerations, the cases on which the investigation turns seem far-fetched and improbable,—the more far-fetched and improbable the cases appear on which the investigation turns, the clearer will be the impropriety of any rule, which, in the case supposed, should pronounce the exclusion of transcriptural evidence.
Case V. The alleged original known to have existed; but whether it be still in existence or no, is uncertain.
Rule. When, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but whether it be still in existence is uncertain,—let the transcript be received in evidence: but, in the framing of the decision grounded on the evidence, for the avoidance of irreparable injustice, let the same arrangements await the option of the judge, as in the case where (as above) the original is known to be in a state of expatriation.
Case VI. A script purporting upon the face of it to be a transcript, is proffered as such, but the existence of the supposed original has not been ascertained.
Rule. It may sometimes happen that a script, purporting or appearing upon the face of it to be a transcript taken from some original of the same tenor, purport, or effect, shall be proffered in evidence to serve in place of the supposed original; at the same time that no other direct evidence of the existence of such original is producible. In such case, let such supposed transcript be received in evidence for what it appears to be worth; subject always to the double uncertainty whether any such original as it purports to have been transcribed from, ever existed; and whether, supposing such original to have existed, the supposed transcript in question be a sufficiently faithful transcript of it.
In some modifications of this case, the persuasive force of an article of evidence of this description may be of itself very slight and inconsiderable. At the worst, however, it will operate as a lot of circumstantial evidence, evidentiary of the existence of a correspondent original; and it is of the nature of circumstantial evidence to be susceptible of any degree of persuasive force: and, as circumstantial evidence, be it in what shape it may, cannot be too slight to be received, in company with other evidence, so neither can it in this.
If the supposed original be an article of casually-written evidence, it may be extremely difficult to determine whether the script in question be a transcript of an original of the same tenor or effect, or whether it may not itself be an original, not having been transcribed from any other. (See below, § 5.)
In the case where the supposed original (supposing it to exist) must have been an article of preappointed evidence, it will in general be sufficiently apparent that the script in question—the alleged transcript, if it had not an original, could not itself be an original. Why? Because the original, being by the supposition an article of preappointed evidence, (for example, an instrument of agreement or conveyance,) will have been furnished with some intrinsic marks of authentication, prescribed or customary, such as could not, without forgery, be given to a transcript.
In this case, another doubt may also arise concerning the alleged transcript,—viz. whether it be a transcript from an original actually authenticated, or only a preparatory sketch or draught of an instrument to the same effect, not at that time authenticated. In the former case, a correspondent original must, by the supposition, have existed: in the other case, though intended, it may never have existed. In the former case, it is of the nature of that species of circumstantial evidence, distinguished on a former occasion by the name of posteriora priorum evidence; on the other, of the opposite nature, priora posteriorum evidence.
If, upon the face of an original of the nature in question, a certain formulary of attestation (whether by positive appointment of law, or by custom) be generally to be found,—the difference between a transcript and a preparatory draught will, in general, not be difficult to decide: if it be a transcript, the formulary of attestation will hardly have been omitted in it; if it be but a preparatory draught, no such formulary can make part of it.
The most suspicious modification of this case is where a party proffers in evidence a script, which, according to his account of it, is a transcript, in tenor, purport, or effect, made from an original instrument, of the nature of preappointed evidence (contractual, for instance, or say an agreement or conveyance;) which instrument, he says, was once in his possession (or in the possession of some person to whose interest he succeeds in quality of representative—suppose his ancestor or testator,) but is now, to use the common expression, lost: i. e. not that he knows of its having perished, or has any particular reason for supposing it to have perished; but that, after every search he can make, he has not been able to find it, nor can think of any place, as yet unsearched or uninquired at, at which he sees any probability of its being found.
This sort of case lies obviously open to the characteristic fraud. It may be, that no such original instrument was ever in existence; and that the party, not choosing to run the hazard of forging, in the way of fabrication, any pretended original to the same effect, makes and produces this pretended transcript, regarding the fraud in this shape as being more promising in point of success, or less exposed to danger.
What, on the other hand, may also be, is, that a genuine original to that same effect was once, and perhaps still continues to be, in existence, but, by the operation of some cause altogether out of the reach of his knowledge or conjecture, either was destroyed, or was concealed or removed out of his knowledge. But, as neither judicial mendacity, nor fraud in any other shape, ought to be presumed—i. e. regarded as certain, without special inquiry and consideration into the idiosyncrasy of the case,—the state of things in question, though a ground of suspicion, forms no sufficient ground for the absolute rejection of the evidence.
This, in the most suspicious form that it can assume, is but a modification of self-serving evidence; of which, even in its most questionable and least trustworthy shape, it has already been in some degree, and will hereafter* be more fully, shown, that it ought not in any case to be absolutely excluded; much less where, as here supposed, the party is subjectable to vivâ voce cross-examination upon oath.
By whose hand was the alleged transcript made? By that of the party by whom, in the character of a transcript, it is proffered in evidence? It is in this case so obviously exposed to suspicion, that it seems little in danger of being accepted for more than it is worth. Is it in the handwriting of another person? Then there must have been some other person concerned in the business, and (if not imposed upon) privy to the fraud. If, in respect of punishment, a fraud of this kind is placed (as it ought to be) upon a level with ordinary forgery,—in such case, the danger incurred by the admission of this transcriptural kind of evidence differs but inconsiderably from the danger inseparably attached to the admission of preappointed but unregistered contractual evidence in general; since all such evidence, being unregistered, is liable to be forged.
If the party disguises his hand, to make it look like that of another person, a question that cannot fail to be put to him is, who the writer is. In this case, whether he names a particular individual, or declares that he knows not who it is, here at any rate is a case of judicial mendacity, superadded to a fraud which ought likewise to be considered as a modification of forgery. If the person named by him be a living individual, then the individual is living to contradict him: if an individual now dead, there will be other writings, the genuine writings of that same individual, to confront with this forged and spurious script: if it be an individual of whose hand no specimens are to be found, then comes the species of counter-evidence constituted by the improbability of the alleged fact, viz. that, of a hand expert in writing, this, and no one other production, should be to be found.
Supposing the instrument genuine, it will seldom happen that no circumstantial evidence, evidentiary of the occasion of executing it, and the probability of its having been executed, should be to be found. In proportion as the existence of this sort of confirmative circumstantial evidence appears probable, the unforthcomingness of it will constitute an objection to the trustworthiness of the supposed transcript; and an objection too obvious to be in danger of being overlooked.
By all these considerations, not only the danger of deception in case of fraud, but the probability of an attempt at deception by fraud, will surely appear to be reduced very considerably below—I will not say certainty—but below an even chance. To facilitate conception,—out of a hundred cases in which evidence of this sort is proffered, in ten, and no more than ten, it is accompanied with fraud, and in one out of these ten the fraud succeeds. Thus stands the matter, on the supposition of the admission of the evidence. In ninety cases out of every hundred, right decision—justice, is the consequence; in one only, misdecision—injustice. Next, suppose a peremptory exclusion put upon this species of evidence. Here the proportions are reversed: in one instance, misdecision—injustice, is prevented; in ninety instances, right decision is prevented, injustice is produced.
If the above ratios appear too great, take lesser ones: but they will hardly be taken, by anybody, so small, but that, in his view of the matter, the probability will be still on the same side—the practical result will be still the same.
Case VII. The original in the power of the adverse party.
Observations. In this case, so long as the party in whose hands the original is, does not produce it, the existence of the alleged transcript being notified to him, the fidelity of the transcript is thereby proved, as against such detainer, by a most satisfactory species of evidence—the virtual admission of the party interested in the proof of unfaithfulness on the part of the transcript, if in truth it were chargeable with any such defect.
That a script, or anything else, should have been in the power of the party in question, or any other individual, is one of those events against the happening of which, be they ever so undesirable, no industry on the part of the law can afford security. But that a script, or anything else, the forthcomingness of which is requisite for the purposes of justice, should continue unforthcoming notwithstanding, and at the same time continue in existence, is a state of things which cannot have place from any other cause than an inexcusable imperfection—a voluntary imbecility, in the system of procedure. Supposing it (for argument’s sake) put out of doubt, that a man, having any such article in his custody or power, wilfully persists in the non-production of it,—no torture that he chose to submit to, rather than comply in this respect with the obligations of justice, could be too severe: at no price should it be permitted to a man to purchase the privilege of flying in the face of law, and committing a known injustice.*
A possible, and not very extraordinary case, is this: The original, having been in the hands of the adverse party, has passed out of his hands, and altogether out of his power, without any design of eluding the probative force of the transcript, and, in a word, without any default of his in any shape. In this case, he will naturally be able to show, if it has perished, that it has perished: if not, into what other hands it has passed. If, instead of this, he declares (being, of course, judicially examined) that he knows not what is become of the original,—in such case, although the declaration should be true, no injustice can reasonably be to be apprehended from considering the verity of the transcript, as between them two at least, as sufficiently established. If, after this declaration, he declares, moreover (under the same securities for veracity as are applied to the testimony of an ordinary witness,) that he does not believe the alleged transcript to be faithful, but to be unfaithful in such or such specified points,—here comes a contrariety of evidence, a difficulty under which the judge must form, on this as on other cases, the best judgment in his power.
In this case,—as between these two parties, the withholder of the original, and the holder of the transcript,—it manifestly makes no difference, whether the original be produced, that, by comparison with it, the transcript may be verified; or whether, on the non-production of the original, the verity of the transcript be declared to be sufficiently ascertained.
As between them two, yes: supposing the holder of the transcript satisfied of its verity—satisfied, consequently, that the original itself, if produced, would not be more favourable to his cause. As between them two, yes: but not as between other persons. If it were understood that, on the terms of establishing the verity of an alleged transcript, the possessor of the alleged original had it absolutely in his power to protect it from the scrutiny of the judge, and to make the alleged transcript good evidence against other persons, in the same or other suits,—the effect of forgery might thus be rendered attainable, without any of the risks. In pursuance of a preconcerted scheme of collusion, in an action brought on purpose, a pretended transcript of a deed of any description and to any value is proferred in evidence by the plaintiff; notice for the production of the original is given to the defendant; the defendant forbears to produce it; and thereupon the character of an original—an original confirmed by judicial inquiry, is given to the fraudulently pretended transcript.
Arrangements for securing the fidelity of transcripts.
Rule 1. Upon every transcript, made by a public scribe in the course of office, let a pledge of correctness be entered upon the face of it, as follows:—
1. The name of the transcriber, written by his own hand.
2. The designation of the actual time of taking the transcript; expressed by the day, month, and year.
3. The designation of the place at which the transcript was taken.
Rule 2. If, of the same transcript, one part be written by one hand, another by another, the designation should be repeated every time in thus changes hands; but, the name once given at length, the initials will afterwards be sufficient.
Rule 3. This obligation ought equally to be extended to professional scribes: for example, to notaries, conveyancers, attorneys, and their clerks.
Rule 4. Where, either at the time of making the transcript, or afterwards, it comes to be examined by any person other than the transcriber, the same pledge of correctness should be given by such examiner likewise.
Rule 5. And this whether, on the part of the transcriber, the transcript bears on the face of it any such pledge of correctness, or not.
Rule 6. Of every such official, as well as of every such professional transcript, as well the writer as the examiner should at all times be subject to judicial examination, touching the fidelity of the transcript, and the truth of their respective marks of verification, as above.
Rule 7. If, notwithstanding all such external evidence, the fidelity of the transcript be in dispute, and the original be still forthcoming,—the examination of the transcript by the original, as touching the points in dispute, may be made at any time, by or under the eyes of the judge.
Taken on the whole, the uses of these entries are not unobvious.
1. To afford a security against incorrectness through negligence. If error appears, it appears at the same time who the person is, to whom it is to be imputed.
2. To afford a security against fraud. If fraud have any share in the production of the error,—being the work of design, it cannot but be a material one, so as to operate to the prejudice of some right. But, the more material it is, the more strongly it points the eye of suspicion upon the person of the transcriber; and there he is, to answer for it. If the entry be not the writing of the person whose writing it purports to be, it is then a forgery: and, in this case, the punishment and peril of forgery attach upon the fraud.
3. A collateral and inferior use, in the case of the transcriber, is, to serve as an index and measure of his capacity and diligence, by showing the quantity of business dispatched by him in each given portion of time.
The use of the designation of the time, coupled with that of the place, is to throw difficulties in the way of forgery. The forgery will be detected, if it should appear that, on the day in question, there was no such person writing in that office, in that place. And, as to the clerk himself whose hand is thus forged, it will be easier to him to say with assurance that he wrote no such paper on this or that particular day, than that he never wrote any such paper in the whole course of his life. At the particular time in question, it may happen to him to recollect that his whole time was occupied about other business.
In the case of the examiner’s mark of attestation, an effectual indication of forgery will be afforded, should it ever appear that, before the time therein specified, the original had perished.
In the case of an official transcript, the designation of the place may, at first sight, appear superfluous. The situation of the official house is a matter of universal notoriety; and the official books and documents are kept at the official house. But,
1. In some cases, the office itself is ambulatory; as in the case of military offices, by sea and land.
2. The transcript may be of the nature of those which are destined to be sent out of the office; such as circular letters, and the like.
3. The document in question, though designed to be kept in the office, may, on some unforeseen occasion, be sent out of it, or, by accident, separated from it. The designation of the place will in this case serve for the replacement of it.
4. The designation of the person is scarcely complete without the designation of the place. Of the names called proper names, there are few but what are in fact common to many persons.
Of the above-proposed arrangements, the description is simple, the efficiency obvious, and the trouble not considerable. The application of them may at least be considered as forming the matter of a general rule. If, in this or that particular instance, the labour should appear to outweigh the utility,—in every such particular instance it will be easy to discard them by a special rule of exception adapted to the case.
In the case of an official transcript (as above,) a transcript having for its writer, or examiner, or both, a public functionary,—if the above arrangements for the security of individual responsibility be established, the security afforded (as above) by the relative date of the judicial deposition, will be the less material; inasmuch as the certificate or attestation of transcription or examination will never have been attached to the transcription, but under the persuasion of eventual liability to judicial scrutiny.
On that supposition, the case to which it applies with particular efficiency is that where the examiner has not been any such public functionary, but some unofficial individual—such, for instance, as a professional agent of this or that one of the parties in the cause; or, in case of an instrument of conveyance, or other contract, the man of law, or the clerk of the man of law (notary, attorney, or conveyancer,) by whom the original was drawn, or who, in the way of his professional functions, had had occasion to advert to the contents of the original for any other purpose.
With the help of this check, so strong is the collective body of security thus afforded, that the trustworthiness of an examiner of the least trustworthy description may be raised by it to a level superior in the eye of reason to a person of the most trustworthy description, to whom, for want of the requisite arrangements, the security for individual responsibility is found not to apply. For example, the testimony of the party by whom, and consequently in favour of whom, the supposed transcript is proffered in evidence, will, under these circumstances, present a better claim to credence than can be presented by any supposed official transcript;—nay, even by any transcript, of which, though it be known that it was made or examined in this or that particular office, and consequently by one or other of the clerks that at one time or other have been employed in that office, it is not known by what one in particular of those clerks it was written or examined.
How to distinguish between original and transcript.
In the case of preappointed evidence, all difficulty from this source is, or at least naturally will be, endeavoured to be provided against and prevented.
But, in the case of casually-written evidence, the case may remain exposed to every difficulty.
If it be a letter, that letter will naturally be signed by him whose discourse it is. But, among persons in habits of intimacy with each other, and perfectly acquainted with each other’s hands, the formality will often have been omitted.
But a script appears in form of a letter, and that letter signed by a name. To a person sufficiently acquainted with the handwriting, it may be proportionally clear that it is the handwriting of the individual whose name it bears: but, to the persons interested in the business, that person and his handwriting are (suppose) alike unknown. In that case, fraud of every kind apart, it cannot assuredly be known to a certainty whether the script be an original or a copy. All that can be said is, that its being an original is the more frequent, and thence in each individual case (setting aside idiosyncratic indications) the more natural and probable, result. For,
1. Considered in an aggregate point of view, the number of letters of which no transcripts are taken, exceeds (it may well be thought) in a prodigious degree the number of those of which transcripts are taken. But the strength of this consideration will depend upon a variety of circumstances:—1. Upon the importance of the subject of the letter; commercial, or non-commercial—relative to business purely private, or to business more or less public, &c.: 2. Upon the prevalence of the faculty and habit of taking copies of letters, in the country in question, at the time in question.
2. When a transcript of a letter is taken (fraud apart,) it is common and natural that upon the face of it it should be so intituled; or, at any rate, that in some way or other an indication should be given of its not being meant for anything more. On the other hand, this indication is a circumstance to which it may easily happen to be omitted. A letter lies before me: I take a copy of it (no matter for what purpose) for my own use: I know it to be but a copy: what need have I to give the information to myself?
Suppose other persons are meant to share with me in this use—all of whom are acquainted either with me or with the writer of the original, and with our respective hands. Even in this case, the indication will be apt to appear alike superfluous, and, as such, to be omitted.
3. If the original be no more than a memorandum, written by the writer for his own use, and not addressed to anybody, or meant to be sent to anybody;—in that case, if a transcript be taken of it by another person, it may be impossible for any third person (otherwise than by examination of one of the persons—the writer of the original, or the transcriber) to give so much as a guess which was the original, which the transcript. Either, presenting itself without the other, would of course be taken for an original: from the sight of the original alone, no person would be led to conclude that any transcript had been made of it; from the sight of the transcript alone, no person would be led to conclude that it was not an original, but a transcript. Such would generally be the case, supposing both of them equally free from alterations and slips of the pen. On the other hand, where alterations and blemishes are visible, from the nature of these blemishes some sort of indication or ground of conjecture respecting the script in question taken singly, as to the question whether it be an original or a copy, may every now and then be discoverable.
In an original, whatever alterations occur will naturally have arisen from a correspondent change in the thought and plan of the discourse. If one word be struck out, and another written over it, the word thus substituted will commonly have no resemblance in physical appearance to the word to which it is substituted: especially if, a clause composed of three or four words in connexion being struck through, another clause, embracing also a number of words, be put to serve instead of it.
In a transcript, where any such alterations are perceptible, if the error consisted in the omission of a word or series of words, the correction will consist in the insertion of such omitted word or words; which insertion, the error not having been discovered till the line is finished, will commonly be made in the way of interlineation. If the error consisted in the substitution of one word for another, the improper word will, in general, be a word more or less nearly similar in physical appearance to the proper one.
In short,—in an original, if any alterations are perceptible, they will be such as, being the result of a change of thought, will be indicative of such a change: in a transcript, if any alterations are perceptible, they will not be indicative of any change of thought.
On the occasion of these and all other such diagnostics, a caution as useful as any or all of them put together, is, not to place too implicit a confidence in them; and this for two reasons:—1. Because, even frand apart, their conclusiveness is susceptible of an infinity of gradations; 2. Because, if any one were understood to be conclusive, fraud would naturally bend its endeavours to take advantage of the rule.—Example: In the natural state of things, fraud apart, an original brouillon may swarm with substitutions and interlincations, to any degree of complication: a transcript will not naturally be infected in any considerable degree with any such blemishes. But, if this were to be understood in the character of a peremptory rule, to which the judge were obliged to conform—a man who, making a transcript, wished for any sinister purpose to make it pass for an original, would fill it with such blemishes on purpose.
Rule. Where, as between divers scripts emanating from the same original source, a doubt arises which is to be considered as the authentic draught; as, for instance, between two such scripts, whether the first be a rough sketch preparatory to the original, and the second the original, or the first an original, and the second a transcript (viz. either in tenor or in substance;)—let not the claim of any such script to be considered as the more authentic, be regarded as fixed by any general rule applicable to all sorts, or to any sorts, of scripts, except so far as, in the instance of this or that particular species of script, the distinction may have been fixed by an appropriate provision of statute law. But, in each instance, let all such of the contending scripts as can be produced, be produced accordingly; and, from a joint comparison of them all, let the true import of the discourse be collected.
1. Shop-books. Several shop-books kept by the same shopkeeper. In some, the order of the entries will have been purely chronological: in the waste-book and journal. In others, the primary principle of arrangement will be logical; the transactions being classed in groups, sometimes according to the persons, sometimes according to the things, to which they relate: the chronological principle of arrangement being secondary with relation to these logical ones.
In general, an entry belonging to that book in which the transaction is entered before it is entered in any other, will be more trustworthy than the correspondent entry in any other of the books: because the former one will be of the nature of an original, the others no more than transcripts, entered on so many different principles of arrangement. But it may happen that a mistake was made in the prior entry, and that it received correction in a posterior one.
2. Official books of any public office. The documents usually entered in the office being known,—the document, as made out in proper form, will naturally have been preceded in many instances by a short minute or memorandum, indicative of the species of the document which is to be made out, and serving for instruction to the clerk by whom it is to be made out.
3. The documents (if more than one) serving to exhibit a man’s last will:—viz. if no sufficient care has been taken by the legislator to stamp the character of anthenticity upon a document of a particular description, to the exclusion of all others that are liable to come into competition with it: or if a document, upon the face of it authentic, should come to be impugned on the ground of spuriousness, falsification, or unfairness in respect of the mode of bringing it into existence.
OF REPORTED REAL EVIDENCE: i. e. SUPPOSED REAL EVIDENCE, TRANSMITTED THROUGH ORAL JUDICIAL TESTIMONY, OR THROUGH CASUALLY-WRITTEN EVIDENCE.
The inferiority of transmitted evidence, as compared with immediate evidence from the same source, is as manifest in the instance of this, as of any other, species of transmitted evidence. This species of evidence cannot therefore but be ranged under the head of makeshift evidence. At the same time, the cases are numerous, and the description of them extensive, in which the correspondent immediate evidence is not to be had, yet in which evidence from that source is so material, that, in a general view, the admissibility of it, even in the secondary and reported form, is altogether out of dispute.
Of the instructiveness and importance of real evidence, a general view has already been given under the head circumstantial evidence, of which it constitutes a species. On the present occasion, what remains to be brought to view is the specific description of the characteristic fraud, and the modifications which this species of transmitted evidence is susceptible of, according to the nature and trustworthiness of the medium through which it may happen to be transmitted to the conception of the judge.
The species of fraud to which this species of makeshift evidence stands exposed, may be thus described:—A person (suppose the defendant, or any other person on his behalf, in an expected criminal cause)—applying himself to the thing which, with relation to the principal fact in question, is already become, or which he proposes to convert into, a source of real evidence—either obliterates or alters the evidentiary appearances presented by it in the state in which he found it, or superinduces upon it fresh appearances of his own production, such as appear to him conducive to his purpose (viz. in the present case, that of exculpating him from the charge.)
This, it is evident, is neither more nor less than the sort of fraud which there has already been occasion to bring to view (to wit, in the Book on Circumstantial Evidence,) under the denomination of forgery of real evidence: alterative or fabricative, as the case may be.
One circumstance is remarkable, as being peculiar in relation to this modification of transmitted evidence. Exposed, as it has been seen to be, to a characteristic fraud, it is so no otherwise than as the corresponding immediate evidence is: the real evidence afforded by the same physical object,—issuing from the same source.
The cause of the difference is, that, in the case of the other modification of transmitted evidence, there are at least two persons concerned, or supposed to be concerned, in the character of witnesses or sources of evidence, two persons, the one of which (viz. the extrajudicial witness) may, under favour of his exemption from the sanction of an oath, and from cross-examination, put a deceit upon the other (viz. upon the intended judicial witness;) such a deceit, from which the judge, armed as he is with those instruments for the extraction of truth, is proportionably defended.
But, to the fraud liable to be practised upon, or in relation to, real evidence, the situation of one cause stands no less exposed than that of another—that of the judge, no less than that of any reporting percipient witness, on whose report, through choice or necessity, he rests his conception of the fact,—instead of the testimony of his own senses, with his own judgment for their assistance.
For this same reason, everything that relates to the examinability of the supposed extrajudicial witness has no place here. Here there is no extrajudicial witness in the case; in the room of the interrogable or uninterrogable person, we have the uninterrogable thing.
The personal evidence, by which the supposed real evidence in question is transmitted to the conception of the judge, may wear any of the forms which have already been brought to view:—1. Oral evidence, judicial testimony, delivered or extracted in the judicial, that is (by the supposition) the most trustworthy, mode; 2. Casually-written evidence; minutes taken, descriptive of the appearances exhibited by the thing—by the source of the real evidence; taken by a private individual, in the situation of an extrajudicial, and not an official, witness,—taken consequently at the time when the evidentiary appearances are freshest and most instructive, or at any late period (if any,) when, by the agency of time, they have been rendered less correctly instructive: taken, again, either at the very moment of inspection, or at any succeeding period, and at the end of any longer interval of time. 3. Written evidence taken by a preappointed, and, quoad hoc at least, an official, witness: not by the judge himself, but by some person of chosen trustworthiness, appointed for the purpose either by general and permanent designation of the law, or by special appointment from the judge. 4. Judicial testimony, delivered and extracted in the judicial mode, but grounded and supported by written minutes, containing the result of the inspection: the view itself taken, and the result committed to writing, at a period earlier than that at which the business could have been performed by a judicial presentation, or examination in the first instance.
Comparing with each other the two species of evidence, the original and reported (hearing in mind the several causes of inferiority observable in makeshift evidence, with relation to the correspondent species of regular evidence,) we shall find the difference much less in this, than in any other, instance.
1. The person by whom the reported real evidence is reported, may always be a preappointed witness—and that witness preappointed even by the judge. Here then vanishes all danger of fraud. Of all the several species of makeshift evidence, this is the only one which is not exposed to any variety of what we have called the characteristic fraud.
2. The person appointed thus to act in the character of reporting witness, may be, and naturally will be, a person possessed of that appropriate stock of information, which, with relation to the subject-matter of the deposition, will place him in the predicament of a scientific witness. The danger of deception on the part of the judge, without fraud on the part of the deposing witness—without any symptom of weakness in his rational faculties—without any other than such of which his intellectual faculties may be the seat,—is thus reduced to its minimum.
To the moral trustworthiness of official evidence (viz. of judicial, the most trustworthy species of official, evidence,) he may, and naturally will, add the intellectual trustworthiness of scientific evidence. If no appropriate modification of physical science be requisite, the person selected for this purpose will naturally be appointed by the judge; a person known to him through the medium of official relation and intercourse: in the opposite case, some person recommended by the general reputation of appropriate science.
It follows, then, that if, between the immediate and the thus reported real evidence, there be in any case any practically material difference in point of trustworthiness, it can only be in so far as there is something in the particular nature of the real evidence in question, that disqualifies it from being transmitted with accuracy through the medium of personal report: the perceptions which it affords to a percipient witness being such as cannot, without material alteration, be transmitted through the medium of language.
But, even in this case, the difference in point of trustworthiness will not be so great, as, upon the face of the above statement, it might at first sight appear to be. The judge—the official permanent judge—is not, upon the footing of this arrangement, so correctly and fully informed, as in the case where the information is presented to him in the shape of immediate real evidence. True: but (though he is not) his nominee, his deputy,—the person selected by him on the ground of his appropriate trustworthiness, as qualified, for the purpose in question, to officiate in his place,—receives and contemplates the information in its character of immediate real evidence. The decision of the case does not in effect lose the benefit of immediate real evidence: the result of the arrangement is no more than this, viz. that the decision in effect is transferred from the judge in ordinary, to another judge, who, though but an occasional one, may, on the particular occasion in question, for anything that appears, be regarded as equally fit and competent.
Upon this footing stands the disadvantage which reported real evidence lies under, when compared with immediate real evidence. Considered in another point of view, it may (at least in certain circumstances) appear possessed of an advantage. For the judicial trustworthiness of the official judge—for the probity, attention, and intelligence, brought into action by him on the occasion,—the public possesses in this case a sort of security, which it possesses not in the other. Suppose in the place of the judge an all-perfect human being, and at the same time, on the part of the proposed occasional judge-depute ad hoc, a character considerably inferior in these respects to his principal; the difference and the disadvantage on the side of the reported real evidence, in its comparison with the immediate, may be very considerable. On the other hand, suppose any considerable degree, though it be no more than the ordinary degree, of deficiency in point of trustworthiness on the part of the ordinary judge; or (what is at once an equally natural and less invidious supposition) suppose but, on the part of the public, a degree (though it be no more than the ordinary degree) of suspicion of a deficiency of trustworthiness in any of these points on the part of the judge; the advantage capable of being possessed by the information when in the shape of reported evidence, may be not inconsiderable. The judge (supposing him to repair to the spot alone) sees as much of the evidence as he pleases, and no more than he pleases: pays what attention to it he pleases, and no more than he pleases: contemplates it, if he pleases, on one side only, and with no other intention than that of discovering what pretences can be found, what excuses can be made to the public and his own conscience, for deducing from it inferences favourable to that side of the cause which his affections induce him to espouse. With these eyes it is that he views it: and it is after thus viewing it, in his character of a witness, that he reports it—to whom? To himself, in the character of a judge. It is the judge himself who is the witness; and that witness examined in secreto judicis, in the recesses of the judge’s own conscience: examined, and without cross-examination, by the judge.
Turn now to the opposite case, and see upon what footing stands the case of information from the same source, when reported to the judge through the medium of some other official (or at any rate a preappointed) witness. His report is delivered,—it may at least be, and therefore (at the instance of either party) ought to be, delivered,—upon the same footing, in every respect, as that of any ordinary witness—in public, and subject to cross-examination, with the several attendant securities. It is from this completely scrutinized evidence, delivered under the eye of the public, that the judge, himself speaking and acting under the eye of the public, draws his inferences.
In the one case, the judge decides upon data not before the public, and the public in consequence has no controul over him: in the other case, the judge decides, as in ordinary cases, from data which are as completely before the public as before himself.
With respect to the option, the question therefore seems to be brought to this point:—In the case where the information presents itself to the judge in the shape of immediate real evidence (the judge conveying himself to the spot for the purpose of contemplating it in that shape,) can he, or can he not, take the public, a sufficient portion of the public, with him? If he can, and does,—in such case the immediate evidence preserves its superiority over transmitted evidence: if he does not,—in that case, the transmitted evidence, instead of being inferior, is in fact, in a practical view, superior, to the immediate evidence; the transmitted evidence (though in itself it possesses the characteristic property of makeshift and irregular evidence) to the regular.*
OF EVIDENCE TRANSMITTED THROUGH AN INDEFINITE NUMBER OF MEDIA.
We come now to the case where the information in question presents itself as if transmitted through media, simple or complex, as above described, and in each case with repetitions, in any number, of any one or more of the elements.
The modifications of which this case is susceptible, are evidently infinite. Happily, the conduct that seems proper to be observed in relation to them will be found capable of being determined by a few simple principles.
The first point to be ascertained under this head, is the influence exercised by the number of the media upon the probative force of the information thus conveyed.
For this purpose, instead of the word medium, there may on some occasions be a convenience in employing the word degree.
The mode in which this is to be done, is by reckoning, for every medium through which the evidence passes, a degree. Thus, hearsay evidence through one medium is of the first degree, through two media of the second degree, and so on.
1. In every succession from one medium to another, by which a supposed extrajudicial statement passes, in its way from the supposed percipient or other primary extrajudicial narrator, to the ear or eye of the judge,—it loses a portion of its probative force.
2. This it does of course from the mere consideration of the general chance of incorrectness, and without taking into the account any peculiar chance of incorrectness capable of being produced by the idiosyncratic character of any of the supposed intervening relators.
3. The circumstance of mendacity or bias affords likewise at every step an additional chance or probability of incorrectness, as well as of falsehood in toto: but this chance, depending upon idiosyncratic character and circumstances, is incapable of being estimated, any further than as the situation and character of individuals is taken into the account, and made the subject of special investigation.
4. Conceive divers supposed extrajudicial witnesses of the same remove or degree, each represented as confirming, in tenor or in purport, the supposed statement supposed to have been given by the rest:—for each such witness (credit given to the fact of their having existed in that character,) the evidence acquires a portion of probative force.
5. But the greatest additional portion of probative force capable of being thus acquired, can never be great enough to raise the probative force of a lot of hearsay evidence standing at that degree, to a level with one standing at a higher degree, i. e. in which the number of media it is supposed to have passed through is less.
6. Deponens (for example) states, that, on a certain occasion, a number of persons, whom he names (John Middleman, Thomas Middleman, and others,) concurred in assuring him that they were present when Percipiens was giving an account of a duel fought in his presence between the defendant and Occisus, in the course of which Occisus received his death wound. It is evident that, so far as Deponens is believed, the fact of defendant’s having been the cause of the death of Occisus will acquire an additional, and (setting aside idiosyncrasy) a determinate, portion of probability, for every additional person of which this number is stated as consisting. But, if there were a thousand such supposed intermediate and mutually confirmative extrajudicial relators, this could never impart to the hearsay evidence of Deponens any such degree of probative force, as if Deponens, instead of representing himself as having taken his information through these thousand media all at the same degree, were to represent himself as having himself taken it immediately from the lips of Percipiens.
Recapitulation:—I In the case of transmitted evidence, the probative force of the information presented immediately to the judge, is inversely as the number of degrees. 2. Supposing, at each degree, one witness, and no more; at each degree, it is therefore inversely as the number of media or witnesses. 3. But, at any given degree, it is directly as the number of witnesses standing at that same degree, and supposed to have agreed with one another in their respective extrajudicial statements in relation to the same fact.*
Hence it appears how inconsiderate and inadequate the provision is, of those laws, which, without entering into any such explanations as above, take upon them to obviate misdecision, by requiring, as a necessary ground to the validity of the decision, a specified number of witnesses. The number may be completed, and the probative force of the evidence may in fact, instead of greater, be but so much less, than if there were but one.
On the part of the judge, common honesty, enlightened by common sense, would (it may be thought) be sufficient to supply any such deficiencies on the part of the legislator, and thence to prevent misdecision on this ground. But the instances in which the light of common sense has been extinguished by the vapours of jurisprudential science, are, as it will be seen throughout, but too abundant: and to obviate in that quarter some apprehended deficiency in the article of common honesty, is the undisguised object of the legislator in the framing of such restrictive and exclusive regulations.†
Transmitted evidence purporting to have passed through more media than one, may still be received, whatsoever be the number of such media: to wit, in every case in which makeshift evidence transmitted through no more than one medium would be received—always under the same conditions and restrictions. So likewise in the case where the individual description, or even the number of the media, cannot be ascertained.
To a mind impregnated with the principle of the excluding system, a proposition to this effect cannot but appear in the highest degree alarming. What? let in upon the mind of the judge a deluge of evidence, to the untrustworthiness of which there is no bounds?
Reasons in support of the rule—arguments à priori, supported and well supported, by arguments à posteriori—are, however, by no means wanting: reasons, and such (it is believed) as will be found satisfactory upon the whole.
1. The main and most striking reason is, that, by the alleged increase in the number of the media, no new facility is given to fraud. On the contrary, it can never answer the purposes of fraud—it would be unfavourable to the purposes of fraud, falsely, or even truly, to represent any such increase. That assurance of correctness cannot but be diminished in proportion to the number of media the evidence has passed through, is a truth, the force of which cannot but be felt by every mind to which it is presented. But a man actuated by fraud, intending deception, to be brought about by mendacity, will of course give to the information the most plausible, the most trustworthy, form, of which it is susceptible: he will never spontancously and unnecessarily multiply causes of untrustworthiness and distrust in regard to it.
A man says what is not only sooner said, but more likely to be believed, and yet not more likely to be detected if false, if he says, I had the fact from Titius, who said he saw it, but is now dead,—than if he says, I had the fact from Titius, who is dead, and who says he had it from Sempronius, who, if Titius is to be believed, gave Titius to understand that he saw it, but being dead also, cannot be called upon for his testimony.
Take, for example, a case from English jurisprudence.* The validity of a will being in question—a will purporting to have been executed in the presence of three witnesses, whose names were entered upon the face of it in the character of attesting witnesses:—two of these supposed witnesses were proved to be dead; the third, on her cross-examination, deposed, that, on her attending one of the other two in his last illness, about three weeks before his death, he pulled the will from his bosom, and acknowledged to her that it was forged by himself.† This evidence (it appears) was received, was credited, and the decision—a decision pronouncing the will a spurious one—grounded upon it. This supposed oral evidence transmitted through oral—this evidence, hearsay evidence as it was, was received and credited. It was regarded as not only veracious, but true, by the proper judges, judging from the whole complexion of the evidence on both sides.
Now to the point in question. Suppose that, instead of being deemed true, it had been deemed false and mendacious, and had been so accordingly. The will was, on this supposition, a genuine one: the story of its having been declared by one of the attesting witnesses to be spurious (spurious as having been forged by himself,) was a mendacious story trumped up by this witness, who, it being false, could not but have been conscious of its being so. Now then, suppose that, instead of saying that what she heard as above, she heard from the supposed forger himself, she had spoken of it as having been heard from John Middleman, now also dead, who said he heard it from the supposed forger, under the same circumstances as above: would the fraud in this shape have presented any more plausible title to credence than in the other? The answer, it should seem, will hardly be in the affirmative.
2. The danger of fraud (i. e. of deception by fraud) not being increased by the number of supposed media,—there remains the danger of incorrectness, i. e. of deception by incorrectness. But in this case, in whatsoever proportion the danger of incorrectness may be thus increased, the danger of deception does not increase with it: for, whatsoever be the danger of incorrectness, it is apparent to every eye, upon the very face of the evidence—apparent to all eyes alike, and in no danger at all of being set down at any value below its real value.
In regard to fraud, a possible observation on the other side is this:—Information being, according to your observation, more likely to be incorrect when transmitted through several media, than if transmitted through no more than one, and so in that light likely to appear to everybody,—a man who, meaning fraud, were to represent the information as having passed through more media than one, might by that device exempt his testimony from the imputation of fraud, and by that means gain for his false testimony, in this complex shape, a degree of credence beyond what could be gained for it by its being presented in the more simple shape. The propriety of this observation might perhaps be admitted: but at any rate it does not seem worth controverting on one side, or worth relying upon on the other side. For a lot of evidence to gain credence, it is not sufficient that it appear exempt from fraud; it must appear correct and true: it is not sufficient that it be regarded as being pure from material error from this or that particular source; it must be regarded as pure from material error from whatever source. But the fresh degree of untrustworthiness it is necessarily tinged with by every medium through which it passes, is essential to its very nature: and it is only in part, and not in the whole, that it can be done away by any marks of comparative purity in no more than one out of whatever may be the number of the media through which it is supposed to flow.
Add to which (if it be worth adding,) that this supposed receipt for putting a varnish of veracity upon mendacious evidence, is on no other supposition a promising one, than that of its remaining a secret—a secret in mendacious hands. But, the secret being now published (not to say that it is of itself sufficiently obvious,) the virtue of it, if it ever possessed any, or would have been capable of possessing any, is already at an end: the eventual offspring of fraud has been torn from her womb and been rendered abortive.
The truth of the above conclusions will be found to receive ample confirmation from general, and (it may be added) even necessary, practice.
Turn to any established system of judicature, an extensive class of cases may be found (and that the same, or nearly the same, in all,) in which transmitted evidence is received without scruple: whatsoever may be the number of media through which it purports to have been transmitted; or even although the very number, as well as the individuality, of such media be undiscoverable.—The class of cases in question is that in which the principal fact in question, the principal fact to be proved or disproved, belongs to the class of what may be called ancient facts: a fact which, supposing it to have happened, happened so long ago, that it would be in vain to look to any witnesses, forthcoming, and consequently still living, from whose examination it might be proved in the regular and most trustworthy mode. But there is nothing in the mere date of a fact, and that relative, measured from a particular point of time (the time in which the proof of it comes to be called for,) that is capable of rendering it credible upon weaker evidence than would be requisite to gain equal credence for it at another time. That a man of such or such a name, living at such a place, should at that place have been married to a woman of such a name, and had by her children of such and such names, is not a whit more credible if placed at the end of the seventeenth century, than if placed at the end of the eighteenth.
But (except in so far as the application of preappointed evidence may have happened to extend itself to the instances in question,) in former ages, there are no sort of facts that are capable of being established by any other than this weak and long-spun sort of evidence: and yet, for the purposes of legal decision, facts of various descriptions—facts, though placed at ever such remote periods, are, under every system of established law, continually adduced and credited.
Nor can it be said that, if such evidence be at all admissible, no causes except what are of light moment can with propriety be rested upon such slight evidence. In the case where the fact in question belongs to the class of ancient facts, none of those questions of which the great mass of questions of light moment is composed—small debts, slight assaults, and verbal injuries—can ever come upon the carpet. Questions of the greatest moment—questions relative to the title to estates, to immoveables to any amount, to hereditary powers and honours,—of this sort are the questions that come to be tried upon the ground of this slight evidence.*
Truths of the mathematical class—truths in any number, might be heaped together in this field: but in every instance, if attempted to be employed in practice, they would be found either altogether inapplicable, or, if applied, more likely to lead to misdecision than to justice.
Suppose, for example, that a mathematician, taking up the observations brought to view above, were to set to work in his own way, and, because demonstration is the fruit of his own science, fancy he had given certainty to the conclusions capable of being formed in relation to the trustworthiness of evidence. In a series of remotely-transmitted hearsay evidence, every article standing at a degree indicated by a higher number, is lower in the scale of trustworthiness than an article standing at a degree indicated by a lower number. Expressed, as of course it would be, in mathematical short-hand, by single letters instead of words or combinations of letters, a proposition to the above effect might put in a specious claim to the character of irrefragable truth. Yes: but in what way? On the supposition of a matter of fact, not announced, but gratuitously assumed, and, in a mathematical sense, altogether incapable of being proved: viz. that, in each instance,—an article of hearsay evidence at a lower degree being compared with an article of ditto at a higher degree,—in each medium or rank of mediums, the idiosyncratic trustworthiness of the intermediate witness or witnesses were on the same level. Suppose a suit, having for its subject-matter a pecuniary object of inconsiderable value: suppose on both sides a lot of hearsay evidence; on the side of the plaintiff, evidence of the second degree, the deposing witness and the supposed intermediate witness both of them universally known, and known as of the highest rank, as well in the scale of moral reputation as in that of opulence; on the side of the defendant, hearsay evidence only of the first degree, but the reporting witness—the judicial witness—a pauper notorious for mendacity. By the mathematician, the superior weight of evidence would be demonstrated to be on the side of the defendant; while, by everybody but the mathematician, it would be regarded, and, though without demonstration, yet with more reason, as being on the side of the plaintiff.
Add to this, that, in many instances, in which, not without good cause, hearsay evidence of many removes from the supposed source has been employed (for example, in English practice,* ) not only the persons of the supposed intermediate witnesses, but even the number of the degrees, has not been ascertained, nor been capable of being ascertained. The general sense, conception, understanding, of the neighbourhood: in the case of a testimony to this effect, supposing the conception just, there must in every instance have been a matter of fact at bottom—some determinate matter of fact, the conception of which must, through the respective relations of a certain number of intermediate witnesses, singly or in ranks, have been transmitted to the ears of the deposing witnesses.
In a case of that description, the number of degrees not being ascertained, the requisite data not being given, matter for the hand of the mathematician would not be to be found. Truth, however, would be but the better served by the deficiency: for, the mathematician, with his scientific mode of deceit, not being capable of being set to work, no deception could flow from that source.
WHAT OUGHT, AND WHAT OUGHT NOT, TO BE DONE, TO OBVIATE THE DANGER OF MISDECISION ON THE GROUND OF MAKESHIFT EVIDENCE.
Impropriety of excluding any kind of makeshift evidence.
It has been seen how various in specie, and how abundant probably in number, are the instances in which makeshift evidence of one description or another, is habitually received, and must ever be received, in judicature.
It has been seen, that a danger of deception, and consequent misdecision, is in every instance naturally attached to the reception of makeshift evidence.
It has been seen, on the other hand, how—by the influence of a principle common to human nature, and in particular to men in the situation occupied by men of law—the danger of deception has been generally exaggerated: or, what comes to the same thing, such arrangements have been produced as could not be justified on any other supposition than that of a degree of danger beyond the danger really existing in each case:
That this exaggerated estimate has had for its cause an assumption, which, upon a closer examination, turns out to be decidedly erroneous; viz. that the danger of deception on one part is as the danger of falsity on the other:
That the erroneousness of this assumption is proved by every instance in which the prevalence of it is exemplified in practice; for the exemplification of it in practice consists in the determination formed and executed in each instance—the determination not to pay any regard whatever to the lot of suspected evidence; to consider the falsehood of it as certain, instead of being more or less probable; in a word, to regard it as certain that in each instance the disposition of the judge is to overvalue it: whereas the truth is, that, by every instance in which an exclusion is thus put upon a lot of evidence, a fresh proof is given that the disposition of men in judicial situations is to undervalue it—to treat as if it were incapable of having any weight at all, that which is never altogether without weight, in any instance:
That, under the most natural and extensively prevalent constitution of the judicial establishment, in which the tribunal is composed of one or more permanent and official judges, nothing can be more extravagant or inconsistent than the distrust of which the practice of exclusion is the practical result—whether the object of the distrust be the judge himself by whom the exclusion is pronounced, or his colleagues and successors.
So prone am I to give too much credence to evidence of this description, that I give it no credence at all—that I determine to disregard it altogether. So prone am I to decide on insufficient evidence on the one side, that I decide without evidence, and against evidence, in favour of the opposite side.
So prone are all my colleagues—so prone will all my successors be, to give too much credence to such untrustworthy evidence, that I, who alone am proof against such delusions—I, in order to preserve them against the influence of it, am determined for their sake to pronounce a decision, which, in the character of a precedent, shall tie up their hands, and prevent them from throwing open the door to any such delusive evidence. I, who cannot trust myself with the faculty of pronouncing from the evidence—I, confident in that exclusive portion of sagacity in which I have none to share with me, have determined by this means (such is my prudence) to impose on my colleagues and successors, to the end of time, the obligation of deciding, in every such case, without and in despite of evidence.
The only instance in which this system of exclusion has any colour of rationality, is that in which (as in one of the many forms of English judicature) the tribunal is composed of a set of ephemeral, unofficial, unprofessional, unexperienced judges, placed under the tutelage, and in some respects under the controul, of one or more permanent, official, experienced judges. The jury, were they to be trusted with such evidence, would to a certainty be deceived with it; therefore they never shall be trusted with it.
Supposing the conception of unfitness on the part of the professional judge to be trusted with such evidence—supposing this conception just, in its application to himself and his experienced brethren,—the extension of the same imputation to this unexperienced class of judges, seems, at any rate, clear of the charge of inconsistency,—the absurdity is gross and palpable, but it is all of a piece.
On the other hand, suppose the professional sort of judge to be proof against the influence of this species of delusion,—suppose the danger of being deceived by it not universally extensive, but confined to the non-professional class of judges,—the system of exclusion, even in this limited application of it, is still precipitate and indefensible. You conclude they will be deceived by it: why so hasty in your conclusions? To know whether they have or have not been deceived by it, depends altogether upon yourself. What? can you not so much as stay to hear their verdict? Condemn men unheard?—condemn thus your fellow judges? Apply, where as yet there is no disease, a remedy, and a remedy worse than the disease?—a remedy worse than the disease, when, had you but patience to wait for the disease, a remedy is in your hands as safe and gentle as it is infallible?
Day after day, you annul the verdict of a jury without disguise, and send the cause to be tried by another jury, on the alleged ground of its being a verdict against evidence. Would it cost you anything to extend the allegation to cases of this description? or to add to the cases calling for a new trial, that of a verdict grounded on untrustworthy and deceptitious evidence?
Thus much for supposition and argument. In fact, however, no such distinction has had place: the manacles once constructed, unexperienced and experienced hands are alike confined by them. Peers have been not less ready, not to say eager, to impose it upon themselves, than yeomen and shopkeepers to submit to it. It is by such easy means, and at so cheap a price, that favour, when agreeable and convenient, is seated upon the throne of justice.
Nor is the application of the system of exclusion by any means confined to English judicature. Under the auspices of Roman jurisprudence, it is perhaps, upon the whole, still more extensive. What difference there is, seems to be to the advantage of the English system. On the ground of personal untrustworthiness at least, the causes of exclusion are, on the one hand, still more abundantly extensive than in the English system; on the other hand, the adherence to them seems to be much less steady. The range of cases that afford to the judge the faculty of putting an exclusion upon the witness, is still more extensive: but in each instance it is rather a power than an obligation. Is it his pleasure to put an exclusion upon a witness? He may find a warrant for it. Is it his pleasure not to exclude the witness? He may likewise, and equally, find a warrant for it. In the English system, the cases in which, by the advantage of the conflict between preceding decisions, judges have been at liberty to decide either way, are but too abundant; but, on the other hand, in the cases to which the conflict has not extended, the option and the licence fails: where the decision that stands nearest to the individual case in question is not opposed by any other, usage will not permit its being disregarded.
Adopt the principle of exclusion, in the character of a security against deception,—adopt it in any case whatsoever, there is not any point at which its application can with any consistency be made to cease. Exclude for this reason any one lot of evidence whatsoever, by the same reason you are alike bound to exclude all evidence, and along with it all justice.
Discard the principle of exclusion altogether (that is, in all cases where the exclusion of the lot of evidence in question would have the effect of excluding all evidence from that source—from the source from which the information issues,)—adopt in its stead the principle of universal admissibility,—you do no more than give extension to a principle, the innoxiousness of which, in every point to which the application of it has been extended, has been made manifest by undeviating experience. Among the cases to which it remains to be extended, there cannot be any in which the evidence can be so weak, but that cases in which, being equally weak, it is admitted notwithstanding, abound, and have ever abounded, and without objection or complaint, to an extent, the magnitude of which affords a conclusive proof of the safety with which this sort of liberty may be allowed.
The cases in which weak evidence is admitted—weak to every imaginable degree of weakness—are cases in which whatever danger may be attached to the admission is altogether out of the reach of remedy:—1. Weak circumstantial evidence: evidence, in the case of which, the connexion between the principal fact and the supposed evidentiary fact is loose and remote to any degree of remoteness. 2. Weak direct evidence; in the case where the veracity or correctness of the testimony is endangered by some cause of illusion, or by some sinister interest, which either in specie is not taken into the account, or, in the individual instance, is out of the reach of observation.
The inconveniences attached to the observance of the principle of exclusion are altogether out of the reach of all remedy, palliative as well as curative. The dangers attached to the principle of universal admissibility are not only in themselves inferior, in a prodigious degree, to the mischiefs attached to the principle of exclusion; but, whatsoever they may amount to, at the worst, arrangements are not wanting by which (in one way or other) defalcations may be made, reductions may be applied, and at any rate certain limits may be set, to the mischief; that is, to the number of the instances of misdecision capable of flowing from this source.
These arrangements, such as the nature of the subject has suggested, remain to be brought to view in this place.
Arrangements for indicating the amount of the danger.
Arrangements having for their object to lessen the danger of misdecision from the admission of makeshift and other weak evidence, may be distinguished, in the first place, into such as have for their more immediate object the making known the actual amount of the danger, and such as have for their more immediate object the lessening the amount of it.
Arrangements having for their immediate object the lessening the amount of it, may combat it in either of two ways: by lessening the frequency of it, or by lessening the amount of it when it happens.
Provisions having for their result the bringing to view, in the shape of experience, the utmost possible amount of the mischief from this source, that is, the limits of that amount, would, in a variety of ways, be of unquestionable use:—
1. They will constitute a sure, and the only sure, basis of legislation, in this as in so many other cases: facts, showing, by the light of experience, the effects of existing institutions.
2. They will form a natural, proper, and most satisfactory accompaniment of any such arrangements as might be thought fit to be made, on this part of the ground of evidence, tending to do away, or narrow, the application of the excluding system.
3. They will form, in the first instance, a visible security against any durable and considerable inconvenience, considered as derivable from any such defalcation from the authority of the excluding system. Should deception, and consequent misdecision, be suspected, justly or unjustly, or running in any increased stream, from any branch of the newly-opened and apprehended source,—measures may thereupon be taken for remedying the mischief, at any time, and at its earliest stage. They will also serve as an anodyne to any panic terrors that might otherwise be produced by the contemplation of an innovation, which to some eyes may be apt, in spite of the clearest deductions of reason and even experience, to appear a formidable one.
4. On the supposition of the adoption of the other proposed remedial arrangements,—they will serve to give a correct view—the only tolerably correct view that can be given, of the degree in which those arrangements prove conducive to their intended purpose.
If the different modifications of makeshift evidence, and the other sorts of evidence particularly liable to prove weak, and, by their weakness, deceptitious, have been here delineated and explained with sufficient clearness,—a judge, and the scribes his subordinates, will find no difficulty in committing to paper, as often as a lot of evidence appertaining to any of these heads presents itself, the head to which it appertains. In such or such a cause (naming it,) on the side of the plaintiff, the evidence was of this or that description (naming it,) and no other; on the side of the defendant, there was no evidence, or evidence of this or that description (naming it:) the decision was in favour of the plaintiff, or vice versâ.
Referring a lot of evidence to the species to which it appeared to belong, in a system of nomenclature thus constructed, would be a sort of exercise analogous to that scholastic exercise, which, in the language of grammatical instruction, is called parsing; referring each word to that one of the genera generalissima of grammar, the eight or nine parts of speech to which it appears to belong.
If the principle thus brought to view—the principle of methodical registration—were applied to every suit without exception, whether turning or not turning upon any suspicious species of evidence,—the sort of register thus produced would, in more ways than one, be conducive in no inconsiderable degree, to the ends of justice; as has been shown in treating of preappointed evidence.
From a register of this kind, the utmost possible amount of the mischief produced by the admission of evidence of a suspicious complexion, as thus distinguished—produced by the aggregate of suspicious evidence, of all sorts taken together, and of each sort in particular—may be indicated, with the utmost degree of exactness that can be desired: and, by comparing year with year, it will be seen whether it be in a stationary state, in a state of increase, or of decrease.
Suppose, for example, that, in a given year, the number of instances in which, on one side, no other evidence was exhibited than what belonged to one or another of the species of makeshift or other suspicious evidence, amounted to 100; and, of this number, in 50 instances the decision went in disfavour of the side on which the suspicious evidence was exhibited; in the 50 other instances, in favour of that side. This last number would represent the utmost possible amount, on one hand, of the mischief (as likewise, on the other hand, of the good) produced by the leaving or throwing open the door to evidence of this sort. Thus much as to the aggregate of the cases of all sorts put together: and the same instruction would be afforded in relation to each sort taken by itself.
Though the number of the instances in which benefit or mischief has been produced by the admission of evidence of this description, would thus be given; yet, to exhibit the aggregate quantum of the benefit on the one hand, and of the mischief on the other, would require another head or two, having for their object the indication of the quantum of benefit or mischief thus produced in each cause. To furnish this information would require a statement of the species of causes to which the individual cause belonged, in each instance (for example, penal or non-penal; and, if penal, relative to what species of offence:) and, in the cases where money or money’s worth was at stake, the amount of the value adjudged, or claimed and refused to be adjudged, to either side.
Arrangements for diminishing the amount of the danger.
We come now to the second class of remedial arrangements applicable to the diminution of the quantum of mischief from this source: arrangements aiming, in a direct way, at the diminution of the frequency of it.
I. Oath of credence or sincerity on the part of the exhibitant (the party by whom the article of makeshift evidence in question is exhibited:) his declaration to this effect, viz. that, according to his persuasion, the information presented by the article of evidence is, so far as concerns the purpose for which he presents it, correct and true: such declaration being given under the sanction of an oath (where that ceremony is in use) or solemn declaration, and subject to vivâ voce examination as to the grounds and causes of such persuasion.
The test of sincerity thus proposed is no other than what, on a former occasion, was brought to view in the number of those securities, the refusal of which, on any occasion whatsoever, was represented as an omission altogether repugnant to the ends of justice.* It nevertheless seemed to call for a separate mention here: partly, lest, on an occasion on which the use of it is so manifest, it should fail of presenting itself to view; partly, because, on the occasion of its application to the present purpose, it finds the case attended with material circumstances, such as do not apply to it in other cases—with circumstances which call for particular observation.
The cases in which the demand for this security is most imperative, are those in which the evidence presented immediately to the judge, presents itself, not in the oral, but in the written form; viz. casually-written evidence, and minuted evidence, with any number of media interposed. In the cases where the evidence presented immediately to the judge is in the oral form, whatever security for sincerity is afforded by judicial examination in the usual manner, is applied, of course, to the judicial witness. Where there is no extraneous witness, this security is wanting; and hence the demand for a supply to the deficiency, by the examination of the party by whom the evidence (in this case the written evidence) is exhibited.
No good reason could be given why this same security (whatever be the worth of it) should not be applied, in like manner, to those modifications of transmitted evidence, in the case of which the evidence immediately presented to the judge is presented in the oral form; viz. hearsay evidence, and memoriter evidence. Indeed, unless excluded by special appointment of law, the general liberty of examination, applying itself to self-regarding as well as extraneous evidence, would involve the points in question in the present case. In the way of distinction, all that can be said here is, that, where there is another person (viz. the extraneous witness) to whom the security applies, the demand for the application of the like security to the testimony of the party, in the character of a self-regarding witness, is not quite so great.
In a certain point of view, the security thus afforded may be apt to present itself as little worth. A party, who, having been dishonest enough to procure or fabricate an article of evidence of this sort, is dishonest enough to make use of it, will come prepared for all the consequences; nor will he shrink from perjury—from the scarce punishable perjury necessary to give this support to it. True: but, in regard to the written evidence of this kind, many a man who, either knowing or suspecting the falsity or incorrectness of it, would present it notwithstanding, and thus let it take its chance, would at the same time be far enough from supporting it at the peril of the punishment of detected, or though it were only the shame of suspected, perjury: and, in regard to the oral evidence of this kind, not only would many a man, notwithstanding any secret suspicion entertained by him of its falsity or incorrectness, suffer it, if proffered to take its chance as before; but there are also others, who, though not bold enough to support a tale of perjury with their own lips, would yet be dishonest enough to send other lips upon the adventure.
Thus, in two cases, both of them but too common, the arrangements proposed would afford considerable security. At present, under every system of technical procedure, this security is altogether wanting. When judges, on so many occasions as we have seen, not only apply no discouragement to insincerity, but apply encouragement and even compulsion to the production of mendacity—when judges, by the whole tenor of their practice, proclaim a predilection for insincerity,—can it with any reason be expected that suitors in general, or more particularly that their professional guides and agents, the worshippers of the judicial hierarchy, should in general be averse to it, or, when employable with safety, backward to employ it?
II. To this head also belongs another arrangement, all along proposed, for allowing to the judge (to be exercised at his discretion) the power of exacting from the party in whose favour the decision operates in the first instance, security for eventual reinstatement; for affording to the other party completely adequate satisfaction, in case, by the subsequent exhibition of more trustworthy evidence from the same original source, the decision having the makeshift evidence for its ground should turn out to be erroneous.
On those occasions, the description of the contingency was confined to the particular event bearing a special relation to the case then in contemplation—the event of the disproof of the makeshift evidence, by other evidence emanating from the same original source. But, from what source soever any such subsequently corrective evidence may have issued,—if it be true, and the decision called for by it be different from that which it finds in force, the practical inference (it is evident) is precisely the same.
III. In what cases, for the remedying of the injustice liable to be produced by the decision of one tribunal, liberty should be granted or obligation imposed of submitting the cause to the cognizance of another, is a question that belongs not to the present subject, nor to the present work.
In the extraordinary sort of case here in question, that of a decision grounded on such weak and comparatively untrustworthy evidence,—such reference might perhaps with propriety be prescribed or allowed of, in causes and circumstance in which, supposing the decision grounded on evidence of the ordinary stamp, such reference might not be eligible. Without attempting at present to decide upon the eligibility of any of these arrangements, the present indication will be confined to such remedies of this stamp as the nature of the case admits of. The question of their ultimate eligibility properly appertains to another subject, that of Procedure.
1. Liberty of appeal; i. e. of appealing to another tribunal, whose decision shall have for its ground this same body of evidence, without either addition or defalcation. The person by whom such appeal (if preferred at all) will be preferred, is of course a party, and that party to whose prejudice the decision, having the supposed insufficient evidence for its ground, is regarded by him as having operated.
2. Liberty of reference: power given to the judge to refer the decision, in a case of this sort, to another tribunal (naturally a superior tribunal,) if he thinks fit; with or without a provisional decision of his own annexed to it.
An arrangement of this description is superseded (it may be thought) by the one immediately preceding it: if appeal be allowed, the party in whose disfavour the decision (the decision grounded on the comparatively untrustworthy evidence) operates, will, if he considers it as being injurious to him, appeal of course: if he does not regard it as injurious to him, the case calling for a reference does not exist: so that, in each and every case, such reference is of no use.
To this it may be answered—1. The party, howsoever willing to appeal, may be disabled by the expense. 2. He may be deterred by the contemplation of the expense and vexation added together. 3. He may be deterred by the consideration of the weight and authority of the opinion declared by the court below. The court above—whether, if it had to frame a decision on the subject in the first instance, it would or would not have pronounced the same as that which has been pronounced below—may not regard the case as clear enough to warrant the reversing a decision already pronounced by a competent judicature.
Upon all these considerations taken together, it will probably appear that the demand for the power thus proposed to be given to the judge, would by no means be superseded by the power of appeal, if given to the party.
Moreover (in case of appeal,) argument, and consequently expense or vexation on the part of the appellant, and consequently on the part of the adversary, would be naturally (though, it should be added, not necessarily) allowed: whereas, in case of a reference made (as above) by one tribunal to another, such argument, with the vexation and expense attached to it, would not be so much in course.
3. Obligation of reference—obligation superadded to the power above proposed to be given to the judge: the reference in this case being or not being accompanied by a provisional decision previously pronounced by himself.
4. In the case of trial by jury,—power to the judge (the professional directing judge) to order a new trial, if dissatisfied with a verdict given on the ground of the suspicious evidence.
This arrangement takes for granted a previous charge, or direction from the judge, warning the jury against the error into which the order for a new trial assumes them to have fallen, by deciding in favour of the evidence, the insufficiency of which is thus assumed.
In English law (it has already been observed,) new trial granted, at the instance of a party, on the ground of the verdict’s being against evidence, is in familiar use: the extension would be a very slight one, were the power extended to the case of a verdict supposed to be grounded (as above) on insufficient evidence.
In the case of exclusion in general, the assumption is, that, if the jury were suffered to hear the evidence, they would be sure to be deceived by it. Experience, had judges but patience to consult her, would have superseded the demand for this rash suspicion. Will they be deceived by it? Stay and see. Should their decision prove erroneous, then, and not till then, it may be proper to take measures for obtaining a new one.
Importance of admitting makeshift in the character of indicative evidence.
The principle employed for fixing the conditions to be annexed to the admission of makeshift evidence, was this:—viz. not to admit any such comparatively untrustworthy evidence, where evidence to the same effect is to be had in a more trustworthy shape, from the same source.
But, supposing the sources of information to exist, will the information be always to be obtained from them in any such more trustworthy shape? He whose interest it is to bring forward the information in question, will it be in his power to draw it forth from those superior sources? This will depend upon the sagacity and industry displayed on this ground by the legislator—upon the care taken by him to afford the requisite powers to him (whosoever he be) whose inclination and will is in a state of preparation for this service.
The powers in question are those which are requisite to the investigation of a chain or thread of evidence—to the discovery of such evidence as the individual nature of the case may have happened to afford; and (when discovered) to the securing of its forthcomingness for the purposes of justice.
To take the arrangements adapted to this purpose, constitutes one of the principal functions of the system of procedure: to that subject accordingly they belong, and not to the subject of the present work. A brief intimation of the mode in which evidence, fit or unfit to constitute a ground for definitive decision, may be applied to this incidental purpose, may, not without reason, be expected to be found here.
By the term indicative evidence, I understand, not any particular and separate sort of evidence, such as circumstantial, direct, self-regarding, and so forth,—but evidence of any sort, considered as being productive of a particular effect; viz. the indicating or bringing to view the existence, certain or probable, of some other article of evidence. Indicative evidence is evidence of evidence.
To apply the distinction to the subject of makeshift evidence. If the rule above laid down in this behalf be a proper one, no article of makeshift evidence ought to be received (viz. into the list of the articles constituting on that side the ground for decision,) where evidence in a more trustworthy form is to be had from the same source: in other words, no such article of evidence ought to be received into the budget of documents designed by the judge for ultimate use. Be it so: but neither of this description, nor of any other conceivable description, can any sort or article of evidence be named, which it may not be proper to employ in the character of indicative evidence; viz. as a help to the discovery or procurement of other evidence, such as may be fit for ultimate use.
Thus, for example, in the instance of hearsay evidence—hearsay evidence of the second degree—supposed oral evidence transmitted through two media. Says deposing witness, in his examination before the judge,—Middleman, as he said to me, heard Percipiens say, that he was by, and saw what passed, when the defendant gave Occisus his death’s wound; and there ends his evidence. Now then, Middleman and Percipiens, are they both alive? The evidence is plainly unfit to be received into the budget for ultimate use: accordingly, neither would it in any case be so received into any such collection under English law.
But ought such information to be altogether unemployed and lost? By no means. Unfit, in the character of evidence, for ultimate use, it is not the less fit for serving in the character of indicative evidence. Let Percipiens be convened before the judge; and if, on being examined, he gives evasive answers, or says he knows nothing about the matter, let Middleman be convened to confront him;—that, by means of Middleman’s testimony, the misrecollections (if any) in the evidence of Percipiens, may, if possible, be corrected—the deficiencies in his recollection may, if possible, be supplied.
The same explanations are alike applicable to every other modification of makeshift evidence. Casually written evidence is indicative, with relation to the judicially extractable oral evidence of the writer of the script: transcriptural evidence is indicative, with relation to the original script: minuted evidence is so, with relation to the writer of the minute, as well as to any extrajudicial witness whose oral statement or narration is the subject of it: memoriter evidence is so, with relation to the script, the supposed tenor, purport, or effect of which, is thus reported: reported real evidence is so, with relation to the real evidence which is the subject of the report: and, in case of the interposition of divers media, transmitted evidence of any degree is indicative, of course, of all superior degrees of evidence from the same original source.
From the bare description of this species of evidence (that is, of the use thus to be made of any species of evidence,) it will be manifest beyond dispute that any system, which, for the purpose of any sort of cause, penal or non-penal, should (unless for the avoidance of preponderant delay, vexation, and expense) omit to make use of makeshift or other evidence in this way,—to make use of it to the utmost, for the purpose of discovering and obtaining such information as is to be had in a state fit for ultimate use,—is, to the amount of such omissions, defective, and unconducive to the ends of justice.
The proposition is not a purely hypothetical one. In the instance of the English system of procedure, exemplifications of it but too extensive may be observed. In the penal branch, in cases of felony unclergyable and clergyable,* or (to speak without nonsense) in first and second rate crimes, evidence, applicable or not to ultimate use, becomes by accident applicable to this use: it serves for the discovery, and thence perhaps for the obtainment, of evidence ultimately employable. This incidental use is extendible always by accident,—(for design (design, at least, directed to the legitimate ends of justice) is an incident still wanting to the jurisprudential system of English procedure.)—this use is extendible, to a certain degree, to inferior offences. But, to causes non-penal, carried on in any branch of the regular mode (whether it be the branch called the common-law branch, or the branch called the equity branch,) it is scarce in any case extendible. If the evidence which the witness whom you have summoned has it in his power to give, happens to be of that sort which is applicable to ultimate use, well and good,—it may be put to use accordingly: if not, the arrangements of procedure will not suffer it to be put to the other use: if you have no evidence from any other source, be the evidence obtainable from this source ever so conclusive, you lose your cause.
ABERRATIONS OF ENGLISH LAW IN REGARD TO MAKESHIFT EVIDENCE.
Such are the arrangements, such the rules of judging, that have been suggested by a regard for the ends of justice: the avoidance of misdecision, on one hand; and, on the other, the reducing, on every occasion, to their least dimensions, the collateral and never completely avoidable inconveniences of delay, vexation and expense.
If the above arrangements are well adjusted to such their ends—and if the arrangements actually pursued by English jurisprudence were also well adjusted to these same ends,—those actually existing arrangements could not, in any point, he very widely distant from the above proposed ones. So much for the argumentative picture of things. The picture next to be given must be taken from life. If, on this occasion, the reader has prepared his mind to view a system of arrangements suggested by, and bonâ fide directed to, the ends of justice, great indeed will be his surprise and disappointment. If, on the other hand, the coutrary hypothesis be assumed—if, on considering the natural opposition of interest on this ground between the governors and the governed, his assumption should be, that, in the views and wishes of the authors of these arrangements, the difference between right decision and misdecision has been in general a matter of indifference—and that, in so far as was conducive to the profit of the governing profession, not the minimum, but the maximum, of delay, vexation, and expense, has been the object of endeavour,—he will find every object consistent with that assumption—every arrangement flowing naturally from that source.
An explanatory hint must in this place be given to the non-professional, and more particularly to the non-English, reader. Observing one copy of the same document rejected, at the same time that another copy of the same instrument is admitted,—if, for anything that appears, both are in existence and producible, it may naturally enough appear to him that the rejection of either, however ill-founded in principle, would be matter of indifference in practice. Reasonable as it is, the supposition would be erroneous and delusive. Under a different system of procedure—under the system drawn from Roman law, and generally prevalent on the continent of Europe,—it would either be agreeable to, or at least less widely distant from, the truth. But in English procedure, no option thus made, if it be exclusive, is ever a matter of indifference. The document thus excluded is always the document, whatever it be, that happens to have been tendered. The consequence of the exclusion is, not a simple reference to the approved document, without further delay, vexation, or expense, but an actual loss of the cause to the party whose document is thus rejected. The direct injustice thence resulting as to the main point in dispute, is not indeed, in this case, in every instance, irreparable; but in many and many an instance it is: either because, under the existing arrangements, the door is not left open to a fresh demand on the same ground; or because, in the interval, and before it can receive a decision, either some necessary evidence has perished, or the fund necessary for the alimentation of the suit has been exhausted. Be this as it may, and according to the least calamitous result, a fresh trial, hearing, or whatever be the name of it, is necessary—in a word, a fresh suit: in consequence of which, the delay, vexation, and expense, bestowed upon the preceding one, are in a great part (or, as the case may be, in the whole) wasted and thrown away.
Here then, once for all, let this deplorable and but too indisputable truth be borne in mind: that—howsoever it might be under a natural system, and even in the technical system of any other country—in the technical system of English jurisprudence there are no innoxious, no completely reparable, nor anything like completely reparable, mistakes; and that, whatsoever absurdity is discernible—fraud, and the spirit of extortion, may or may not have been the cause—plunder, oppression, and affliction, are infallibly the result.
On this ground, as on every other part of the vast demesne of jurisprudence, whatever is at variance with the ends of justice will be to be referred, in proportions not always to be distinguished, to the two grand sources of misdecision,—improbity and folly. The improbity, has for its cause the as yet unremedied but not irremediable, opposition of interests between this class of governors and the governed. The folly has for its cause, at least for a very principal one of its causes, one of the essential characters of jurisprudential law—the taking the conceptions and practice of a less experienced and less informed, as a standard for the notions and practice of a more experienced and better informed, age.
I proceed to bring to view the most important of the aberrations from the above rules, exemplified in English law; together with the inconveniences with which they respectively appear pregnant.
1. The first consists in admitting, at the instance of the plaintiff, to the prejudice of the defendant, in the lifetime of the defendant, a letter or memorandum in his hand: the defendant, though alive, being neither compelled nor permitted to stand forth himself in the character of a deposing witness, to be examined upon oath (as a non-litigant witness would be) touching the facts brought to view in such written discourse.* And so in the case of a written statement of the plaintiff’s, at the instance of the defendant.
By the influence of a superstition, which has been already touched upon, and which will be more thoroughly discussed in another place, the evidence of a defendant is not permitted to be extracted in the mode recognised to be the best. But the objection confines itself to the best mode: no sooner does a bad mode present itself, than the prohibition is taken off.
Refusing to hear the testimony of a defendant, extracted in the way of vivâ voce examination, the law refuses (as may well be imagined) to receive the testimony of the same person exhibited in the form of written non-judicial evidence—in the form of a letter or memorandum, not designed at the time of writing it (or at least not purporting to be designed) to be exhibited as evidence. So far, at any rate, it is consistent: and, admitting the propriety of not suffering the defendant to be examined in the character of a witness, unexceptionable.
But when the plaintiff, having by any accident possessed himself of a letter or memorandum in the handwriting of the defendant, thinks fit on his part to exhibit it as evidence; then the rule goes for nothing, and the evidence is admitted. In this admission, the law considers itself as safe against deceit: and so it undoubtedly is; viz. on one side, the side of the plaintiff,—the only side to which, on this occasion, its views appear to have extended. To the prejudice of the plaintiff, the admission of it will not be productive of injustice. Why? Because it is he who produces it. So far is right: the reason is a conclusive one. But the defendant? are his interests taken equal care of? The answer is, No: they are entirely neglected. In a multitude of cases—each of them capable of being realized, each of them, doubtless, every now and then realized,—conclusions as contrary to truth, as they are prejudicial to the defendant, will every now and then be drawn: necessarily drawn, when a deaf ear is turned to those vivâ voce explanations, by which the truth of the case might, in its whole extent, be brought to light.
2. The second aberration consists in the exclusion put upon the like written testimony of a witness, litigant or non-litigant, after his decease: a point of time, after which, on the one hand, the examination of such witness is become impossible; on the other hand, the capacity of profiting, in his own person at least, by such his testimony, supposing it false and fraudulent, is at an end.
Such (it will be seen) is the course taken in general by the English law: a course crossed indeed by a multitude of exceptions, the propriety of which can by no other arguments be maintained, than by such, the validity of which is the condemnation of the general rule.
In the whole field of evidence, which is as much as to say, in the whole field of justice, few points can be of greater importance. Under this head come the books of a shopkeeper, including the register kept by him of the monies due to him. That these books should not of themselves, and during the master’s lifetime, be conclusive evidence in his favour, the evidence unsanctioned, and the author uncross-examined, is a proposition too plain to stand in need of argument. Each shopkeeper might, at that rate, impose a tax to any amount, on any number of persons, at his choice. That the written evidence even of his servant in his behalf should not be received as conclusive—should not be received at all during the lifetime of such servant, such servant being capable of being examined in the regular mode, and yet not examined—is another proposition which I have endeavoured to establish. But if, after the death of such servant, the entries made by him were not permitted so much as to be received in the character of evidence, what would be the consequence?* That every tradesman’s title to the monies owing to him for his goods, would be dependent, completely dependent, on the life of the servant, the book-keeper, the journeyman, the porter, by whom they had been respectively delivered to his customers. The death of the servant, and the ruin of the master, would be the effect of the same inevitable cause.
A word, a phrase, a broken hint, an uncompleted and perhaps uncompleteable sentence,—such is the garb in which Reason clothes herself on those great and rare occasions, on which she vouchsafes to visit the shelves of English law. Sometimes the word “necessity,” sometimes the phrase “course of trade,” is the fragment of a reason, under favour of which a pretence is sought for the breach made, upon this ground, in the irrational and intolerable rule. But to what use introduce necessity?—what justification can necessity afford for the breach of any rule laid down by reason—of a rule prescribed by any comprehensive view of the dictates of utility? The species of evidence being admitted, one or other of two opposite results—deception, or non-deception, is the most probable. If admitted, would it be oftener productive of deception, and thence of erroneous decision, than of a just persuasion, and thence of a decision according to truth and justice? In this case, where is the necessity (let what will be understood as signified by that vague appellation)—where or what is the necessity that can warrant the admission of the fallacious light?
Apply the same observation to the compound term, the course of trade. Trade is a good thing; it is universally agreed to be so: great sacrifices, though not always very advantageous ones, are made continually in its service. But is it in the nature of trade, any more than of any other desirable object, to be benefited or promoted by the letting in a species of light, of which injustice oftener than justice will by the supposition be the consequence? Is it in the nature of trade, any more than of justice, to receive advancement by a system of decision, of which the effect will be, to put the fruits and profits of trade more frequently into the pocket of a cheat than of the lawful owner?
Of two things, one. The evidence admitted either promises to be most frequently productive of justice, or of injustice. If of justice, no such word as necessity or trade can be necessary—if of injustice, no such word can be sufficient, to warrant the admission of it.†
It has been observed already, that there is a whole class of facts, for the proof of which, in spite of all excluding rules, a door is thrown wide open to all sorts of evidence without scruple: not only to this but too suspicious evidence, but to the much more suspicious and fallacious evidence, which, by English lawyers, has so often been confounded with it: I mean hearsay evidence. And what are these facts? I can think of but one attribute by which, indeterminate as it is, they can be designated; and that is, ancient: ancient facts—facts tending to the establishment of family relation, locally obligatory custom, ancient possession of rights of partial ownership, and the like. If, on one part of the ground more than another, the argument from necessity can be said to apply with peculiar force, it will be on this. On this sort of ground, exclude this sort of evidence, you exclude all evidence. The witch of Endor, the sibyl once so complaisant to the curiosity of Ulysses, are not now in office. Ghosts cannot now be brought into court, obtorto collo, to be sworn and cross-examined. An interval of a certain length, has it elapsed between the present time and the time of the fact or supposed fact?—such evidence as the nature of things furnishes, you must admit, or none. Written extrajudicial evidence, if it be to be had, howsoever it happens to present itself, it is your best chance: failing this, even hearsay evidence—hearsay evidence, remote from the fountain head by any number of degrees, and with or without being able to trace it to the fountain head, or so much as to number the degrees. Such is the choice, in respect of sorts of evidence: one of these two, or none. But, even in this case, of what avail, or even import, is the plea of necessity, any more than in any other? As to the import, here indeed it is plain enough that such is the case—this evidence or none. But, in this case, as in every other, is not the absence of all evidence a preferable result to the presence of a species of evidence, which, be the case what it will, is more likely to give birth to a wrong judgment than to a right one?
In vain would it be to say, that in this case the danger of deception is in any respect less than in any other: on the contrary, it is even greater. Recent testimony—testimony concerning recent facts, if mendacious or otherwise incorrect, possesses its chance of receiving confutation or correction in the regular and most satisfactory mode, from the sanctioned and scrutinized testimony of persons still alive: circumstantial evidence will, in the character of indicative evidence, afford a clue to this or that lot of vivâ voce evidence—a clue which fraud, with all its cunning, may not have suspected. But, in the case of ancient facts, who shall follow out the clue that has been broken by the same hand that cut the thread of life?
It may be thought superfluous, after this, to add any such reflections as the following:—1. That, in point of distance of time, no determinate line has been so much as attempted to be drawn, nor could easily be drawn, between these ancient facts and facts of more ordinary occurrence; 2. That, among the facts thus treated as ancient facts, are facts that may have been but as of yesterday; 3. That in particular, in a case that has given birth to a decision pronouncing the admission of even hearsay evidence, the length of interval extended not beyond twenty years; 4. That the length by which, in the proposed rule, the place of the line which separates admission from exclusion is proposed to be determined, is the length of human life—a length which, though in one case it may be but that of an atom, may in another case be some number of times the above recorded and admitted length of twenty years; and 5. That the true criterion between cases for admission and cases for rejection, is constituted, not by the length of time, considered in itself, but by the existence or non-existence of the faculty of submitting the testimony to the action of the scrutinizing and purifying tests. The witness, in mind as well as body, is he still ready at the call of justice? Admit not his written statement, though it have an antiquity of sixty, of eighty years, to plead for it. Has he taken his departure from the world we live in? Admit the paper, though the ink have scarce yet ceased to wet it. But may it not then be false? false, and fabricated for the purpose? Indubitably it may: though, in our own times at least, such fraud, or any mark of such fraud, committed by a hand so circumstanced, is neither natural nor common. But is the presence of such fraud, in each case, more probable than the absence? And, where present, is the success of it more probable than the failure, after all the warning recommended to be given of it, and which so naturally will be given of it? And are these the only times in which the propensity to fraud has been to be found in the nature of man? Forged deeds, and other fruits of lettered fraud, are they in greater proportion to true and authentic writings in these our times, such as they are, than in the times of monkery and monkish charters?
Such are the questions of minor account, that present themselves as applicable to this particular case. But have they not been already superseded and rendered superfluous by that broadest and all-comprehensive line of argument, which covers the whole of the ground to which the species of evidence now before us is applicable?
3. A third aberration consists in receiving the testimony of a witness in the unsatisfactory form of casually written evidence, upon the ground of a mere unforthcomingness on his part at the time; without any inquiry into the cause, whether temporary or perpetual;* and without provision for reparation of the wrong, in the event of its being proved false by subsequent vivâ voce examination in the regular and proper mode. The admissibility of this evidence, under these circumstances, being established, what would be the consequence? That, where the value at stake was sufficient to pay the expense of the fraud, a man would procure his witness, in the first place, to fabricate a piece of written evidence adapted to the circumstances of the case; in the next place, to keep out of the way till after it had been put to its judicial use, and a decision had been grounded upon it. Or, by procuring the like testimony from a man, whose known intention it was never to revisit the country in which it was to be fabricated, the expense of purchasing absence might thus be saved.
Not that it follows, by any means, that if, under favour of the rule protested against, the characteristic fraud were even to be frequently attempted, the attempt would be as frequently, or anything like as frequently, successful. With the warning which it is here proposed should be given of it, and which, without any such proposal, would naturally be given of it, to the judge of fact by the judge of law, I should not expect to see such evidence frequently productive of a decision on that side, even where the truth of the case was on that same side; much less to see any frequent reason for suspecting that fraud had by this means been rendered triumphant. But where, without incurring any such risk, the purposes of substantial justice might in an equal degree be accomplished, the danger, whatever it may amount to, seems to have nothing to compensate it.
Symptoms of a tendency at least to admit in this unguarded way evidence in its own nature so suspicious—so apt to be fallacious, has been here and there betrayed by English law.
4. In regard to the admission of transcripts, the aberrations of English law are still more remarkable.
In the case where the original is not absolutely unproducible, the question respecting the admission of transcripts will be apt at first to present itself as of little or no practical importance: if the transcript will serve, let it be admitted—if not, let the original be produced. Thus, in effect, the matter will stand, taking the world at large. But in English procedure, the spirit of chicane has, on this part of the ground, as on so many others, contrived to raise a cloud of frivolous distinctions, under the influence of which the interests of justice have in numerous instances gone to wreck. In that system of procedure, so far as the use of trial by jury extends, whatever evidence is capable of contributing to form the ground of decision, must be presented, every part of it, within the compass of a given part of a given day. At that period a transcriptural document being presented, if it be a case where a transcript is allowed to be received in place of the original, well and good; if not, and the document is a necessary one to the side of the party by whom it was produced, the cause is lost for that time at least, i. e. in respect of the action then depending: and whether the loss be reparable or no, depends upon a variety of circumstances. If the transcript be presented on the defendant’s side, and essential to it—and if the case be of the number of those in which a transcript, or that sort of transcript, happens to be found inadmissible,—woe to the man whose lot it happens to be to occupy the station of defendant! If it be the pleasure of the judge to grant him a new trial, on condition of taking his chance for that expensive remedy, the omission may be repaired—the original may be produced. But at the best, and even at that expense, the reparation of the omission—the saving his cause from perdition and injustice, and himself perhaps from ruin—depends not upon himself; whereas, were his station in the cause that of the plaintiff, it would depend upon himself to suffer what is called a nonsuit, and, at the price of a fresh action, to substitute the admissible document for the inadmissible one.
On the ground of transcriptural evidence, among the inconveniences by which suitors are apt to be tormented, those which consist in undue decision or failure of justice having the spuriousness or incorrectness of this species of evidence for their cause, constitute but a small proportion of the aggregate mass. It is in the triple shape of delay, vexation, and expense, that the principal part of the mischief displays itself.
Transcripts are made of a mass of writing to any extent, where a glance of the original would be sufficient:
Of a mass of writing, of which but a small part is relevant, or at least necessary to the purpose, the whole is transcribed without distinction:
Transcripts are made by an official hand, at an extra expense—an expense sometimes altogether arbitrary, and most commonly excessive, as being at a monopoly,—where transcripts made at an ordinary expense might afford a lot of evidence equally satisfactory to an impartial or candid mind:
Originals are fetched from unlimited distances, in official, or other appropriate, and consequently high-paid custody,—when transcripts in the way of extract, or even entire, might be obtained and sufficiently authenticated at an inferior price.
The mass of delay, vexation, and expense, which has for its cause any real bonâ fide disbelief or suspicion as to the genuineness or correctness of a lot of transcriptural evidence, is perhaps not a tenth, not a twentieth, not a hundredth part, of that which has mala fides, on the one part or the other, for its cause. In the view of guarding against spuriousness and incorrectness, certain regulations are established. If, in any the most minute particular, party A is found departing from these regulations, party B takes advantage of the flaw. Each party, sure of being opposed by morally unjust, though legally just, objections on the part of the other, heaps paper upon paper, expense upon expense. A party, though secure in his own mind against objection on the part of his adversary, will, for the sake of inflicting vexation on him, pretend to apprehend vexation from him; or rather, without so much as the necessity of any such pretence, act as if he apprehended it. Agents of the parties, on both sides, and of all descriptions, official scribes of all descriptions, all have an interest in increasing the load by additions in themselves unnecessary; all have pretences for giving birth to such increase; all have it more or less in their power to give birth to it. Judges, by whom such abuses should be watched with a sleepless eye and averted by an inexorable hand, contribute not so much to reduce the load as to increase it; by useless and groundless punctilios, the result of some caprice of the imagination—of partial views, in which the contemplation of some ill-chosen means has eclipsed the prospect of the ultimate and proper end, the prevention of the inconveniences so often mentioned.
Parties, their agents, and the subaltern officers of justice, each on his own part aims at profitable injustice: judges second the endeavours of all.*
5. Few questions have been more agitated in English law than those which relate to the admissibility of, and the effect to be given to, different articles of adscititious evidence.† The subject occupies sixty closely printed nominal octavo, real quarto pages, in Phillipps’s exposition of the law of evidence. Of a subject thus extensive, more than a very general view cannot be expected to be given in the present work: nor is it necessary for our purpose to go beyond the more prominent features.
One remarkable circumstance is, that the whole body of the rules of law relating to this subject are, with a very small number of exceptions, exclusionary. Either the decision given in a former cause is said not to be evidence; and then it is that decision which is excluded: or it is said to be conclusive evidence; and then an exclusion is put upon the whole mass of evidence, howsoever constituted, which might have been capable of being presented on the other side.
In saying this, enough has already been said to satisfy any one, who has assented to what was said in a former chapter concerning adscititious evidence, that nearly the whole of the established rules on this subject, except to the extent of the single and very limited case in which it was there seen that exclusion is proper, are bad. Accordingly, the rule that a judgment directly upon the point is conclusive in any future cause between the same parties, is a good rule—it is almost the only one that is.
Even this rule is cut into by one exception: that verdicts in criminal procedings are not only not conclusive, but are not even admissible evidence, in civil cases.‡ For this exception, two reasons are given: the one founded on a mere technicality—the other on a view, though a narrow and partial one, of the justice of the case. The first is, that it is res inter alios acta: the parties in the civil cause cannot, it is said, have been also the parties in the previous criminal one, the plaintiff in a criminal proceeding being the king. It is obvious, however, that the king’s being plaintiff is in this case a mere fiction. Although the party in whose favour the previous verdict is offered in evidence, was not called the plaintiff in the former proceeding, there is nothing whatever to hinder him from having been the prosecutor, who is substantially the plaintiff. Now if he was the prosecutor, and his adversary the defendant, it is evident that the cause is between the same parties; that it is not, in reality, res inter alios acta; and that if it be treated as such, justice is sacrificed, as it so often is, to a fiction of law.
The other reason is, “that the party in the civil suit, in whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution.”∥ This is true. He might have been a witness; and the previous verdict might have been obtained by his evidence. But it might be, that the contrary was the case. Whether he was a witness, or not, is capable of being ascertained. If he was not a witness, why adhere to a rule which cannot have the shadow of a ground but upon the supposition that he was? But suppose even that he was a witness, and that the verdict which he now seeks to make use of, was obtained from the jury by means of his own testimony. This will often be a very good reason for distrust; but it never can be a sufficient reason for exclusion. Under a system of law, indeed, which does not suffer a party to give evidence directly in his own behalf, it is consistent enough to prevent him from doing the same thing in a roundabout way. A proposition, however, which will be maintained in the sequel of this work, is, that in no case ought the plaintiff to be excluded from testifying in what lawyers indeed would call his own behalf, but which, by the aid of counter-interrogation, is really, if his cause is bad, much more his adversary’s behalf than his own. Should this opinion be found to rest on sufficient grounds, the reason just referred to for not admitting the former verdict as evidence, will appear to be, on the contrary, a strong reason for admitting it.
Thus much may suffice, as to the first rule relating to this subject in English law—a rule which has been seen to be as reasonable, as the above-mentioned exception to it is unreasonable. We shall find few instances, in the succeeding rules, of an approach even thus near to the confines of common sense.
For, first, a judgment is not evidence, even between the same parties, “of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”* By the words not evidence, lawyers sometimes mean one thing, sometimes another: here, however, not admissible in evidence, is what is meant. That it ought not to be conclusive as to any fact but such as the judgment, if conformable to law, necessarily supposes to have been proved, is no more than we have seen in a former chapter: that, however, because it ought not to be made conclusive, it ought not to be admissible, is an inference which none but a lawyer would ever think of drawing. A common man’s actions are received every day as circumstantial evidence of the motive by which he was actuated: why not those of a judge?
The next rule is, that a verdict or judgment on a former occasion, is not evidence against any one who was a stranger to the former proceeding: that is, who was not a party, nor stood in any such relation to a party, as will induce lawyers to say that he was privy to the verdict. The reason why a judgment under these circumstances is not evidence, is, that it is res inter alios acta. But we have seen already† that its being res inter alios acta, though a sufficient reason for receiving it with suspicion, is no reason for excluding it.
The more special reason, by which, in the case now under consideration, this general one is corroborated, is, that the party “had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment.”‡ This being undeniable, it would be very improper, no doubt, to take the judgment for conclusive. On this ground, what is the dictate of unsophisticated common sense? A very obvious one. As the party has not had an opportunity to examine witnesses, to defend himself, or to appeal against the judgment, at a former period, let him have an opportunity of doing all these things now: let him have leave to impeach the validity of the grounds on which the former judgment was given, and to show, by comments on the evidence, or by adducing fresh evidence, that it was an improper one: but do not shut out perhaps the only evidence which is now to be had against him, merely because it would be unjust, on the ground of that evidence, to condemn him without a hearing. In the nature of a judgment is there anything which renders a jury less capable of appreciating that kind of evidence, than any other kind, at its just value? But it is useless to argue against one particular case of the barbarous policy which excludes all evidence that seems in any degree exposed to be untrustworthy. The proofs which will be hereafter∥ adduced of the absurdity of the principle, are proofs of its absurdity in this case, as in every other.
Another curious rule is, that, as a judgment is not evidence against a stranger, the contrary judgment shall not be evidence for him. If the rule itself is a curious one, the reason given for it is still more so:—“Nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary:” a maxim which one would suppose to have found its way from the gaming-table to the bench. If a party be benefited by one throw of the dice, he will, if the rules of fair play are observed, be prejudiced by another: but that the consequence should hold when applied to justice, is not equally clear. This rule of mutuality is destitute of even that semblance of reason, which there is for the rule concerning res inter alios acta. There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which he was not a party; but there is no reason whatever for saying that he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A against B should not bar the claim of a third party C; but that it should not be evidence in favour of C against B, seems the very height of absurdity. The only fragment of a reason which we can find in the books, having the least pretension to rationality, is this,—that C, the party who gives the verdict in evidence, may have been one of the witnesses by means of whose testimony it was obtained. The inconclusiveness of this reason we have already seen.
The rule, that a judgment inter alios is not evidence, which, like all other rules of law, is the perfection of reason, is in a variety of instances set aside by as many nominal exceptions, but real violations, all of which are also the perfection of reason. To the praise of common sense, at least, they might justly lay claim, if they did no more, in each instance, than abrogate the exclusionary rule. But if the rule be bad in one way, the exceptions, as usual, are bad in the contrary way.
One of the exceptions relates to an order of removal, executed, and either not appealed against, or, if appealed against, confirmed by the quarter-sessions. This, as between third parishes, who were not parties to the order, is admissible evidence, and therefore (such is jurisprudential logic) conclusive: the officers, therefore, of a third parish, in which the pauper may have obtained a settlement, have it in their power, by merely keeping the only witnesses who could prove the settlement out of the way till after the next quarter-sessions, or at farthest for three months, to rid their parish for ever of the incumbrance. The reason of this is, “that there may be some end to litigation,”* —a reason which is a great favourite with lawyers, and very justly. Litigation—understand, in those who cannot pay for it—is a bad thing: let no such person presume to apply for justice. One is tempted, however, to ask, whether justice be a thing worth having, or no? and if it be, at what time it is desirable that litigation should be at an end? after justice is done, or before? It would be ridiculous to ask for what reason it is of so much greater importance that litigation between parishes should have an end, than litigation between individuals; since a question of this sort would imply (what can by no means be assumed) that reason had something to do with the matter.
What is called a judgment in rem in the exchequer, is, as to all the world, admissible, and conclusive. The sentence of a court of admiralty, is, in like manner, as against all persons, admissible, and conclusive. So is even that of a foreign court of admiralty. The sentence of ecclesiastical courts, in some particular instances,—this, like the others, is admissible, and, like the others, conclusive. It is useless to swell the list. Equally useless would it be to enter into a detailed exposition of the badness of these several rules. The reader by whom the spirit of the foregoing remarks has been imbibed, will make the application to all these cases for himself.
The law recognises no difference in effect, between the decision of a court abroad, and that of a court at home. The sentence of any foreign court, of competent jurisdiction, directly deciding a question, is conclusive, if the same question arise incidentally between the same parties in this country: in all other cases it is inadmissible. The case of debt, in which it is admissible, but not conclusive, is partially, and but partially, an exception; for even in this case the foreign judgment is, as to some points, conclusive.†
To make no allowance for the different chance which different courts afford for rectitude of decision, would be consistent enough as between one court and another in the same country: in England, at least, the rules of the several courts, howsoever different among themselves, being each of them within its own sphere the perfection of reason, any such allowance as is here spoken of would be obviously absurd: that must be equally good everywhere, which is everywhere the best possible. Of foreign judicatories, however, taken in the lump, similar excellence has not, we may venture to affirm, been ever predicated by any English lawyer, nor is likely to be by any Englishman; for Englishmen, how blind soever to the defects of their own institutions, have usually a keen enough perception of the demerits, whether of institutions or of anything else, if presented to them without the bounds of their own country. Were a consistent regard paid to the dictates of justice, what could appear more absurd than to give the effect of conclusive evidence to the decisions of courts in which nearly all the vices of English procedure prevail, unaccompanied by those cardinal securities—publicity and cross-examination—which go so far to make amends for all those vices, and which alone render English judicature endurable? Yet the rule which, in so many cases, excludes those decisions altogether, errs nearly as much on the contrary side; for, the difficulty of bringing witnesses and other evidence from another country being generally greater than that of bringing them from another and perhaps not a distant part of the same country, there is the greater probability that the decision in question may be the only evidence obtainable.
After what has been observed concerning the admissibility of prior decisions in English law, little need be said on that of prior depositions. Wherever the decision itself is said to be res inter alios acta, the depositions on which it was grounded are so too; and are consequently excluded. In other cases they are generally admissible: though to this there are some exceptions. Happily nobody ever thought of making them conclusive.
[‡ Among the causes which have contributed to heap vexation upon suitors on the ground of evidence, one has been the scramble for jurisdiction (i. e. for fees) between the common-law courts, and the courts called courts of equity. Such was the hostility, the common-law courts refused to give credit to whatever was done under authority of their rivals. Depositions in equity were not admissible evidence at common law. When the work of iniquity is wrought by judicial hands, there must always be a pretence; but no pretence has been too thin to serve the purpose. It consists always in some word or phrase: and any one word that comes uppermost is sufficient.
The pretence on this occasion was,—a court of equity is not a court of record. A better one would have been, to have said, it is not a tennis court. The consequence would have been equally legitimate; and the defects of the common-law courts, and the effrontery of the conductors of the business, would not have been placed in so striking a point of view.
With much better reason (if reason had anything to do in the business) might the equity courts have refused the application of courts of record to the common-law courts. In every cause, the evidence, and that alone, is the essence of the cause; in it is contained whatever constitutes the individual character of the cause, and distinguishes it from all other causes of the same species: to a cause, the evidence is what the kernel is to the nut. In a court of equity, this principal part of the cause, though not made up in the best manner, is at any rate put upon record, or, in plain English, committed to writing, and preserved. In a court of law this is never done. The evidence, like the leaves of the Sibyl, is committed to the winds. What goes by the name of the record is a compound of sense and nonsense, with excess of nonsense: the sense composed of a minute quantity of useful truth, drowned and rendered scarce distinguishable by a flood of lies, which would be more mischievous if they were less notorious.
In the court of Exchequer, the same judges constitute one day a court of equity, another day a court of law. What if the occasion for the rejection of the evidence had presented itself in this court? In the hands of an English judge, the jus mentiendi is the sword of Alexander. On the declared ground of iniquity, stopping every day their own proceedings, why scruple to refuse credit to their own acts?]
It is now, however, fully settled, that the answer of the defendant, as well as the depositions of witnesses, in Chancery, are evidence in a court of law; and that “a decree of the court of Chancery may be given in evidence, on the same footing, and under the same limitations, as the verdict of judgment of a court of common law.”*
The exemplifications which we undertook to give of the defects of English law in relation to makeshift evidence, may here end. To what purpose weary the reader with the dull detail of the cases in which casually-written or ex parte preappointed evidence are excluded, with the equally long, and equally dull, list of the cases in which, though exclusion would be just as reasonable (if it were reasonable at all,) admission, and not exclusion, is the rule? To know that the established systems are everywhere radically wrong—wrong in the fundamental principles upon which they rest, and wrong just so far as those principles are consistently applied,—this, to the person who regards the happiness of mankind as worth pursuing, and good laws as essential to happiness, is in a pre-eminent degree important and interesting. But, for one who, by a comprehensive survey of the grand features, has satisfied himself that the system is rotten to the core; for such a person to know that it is somewhat more tolerable in one part than in another part—that principles which are mischievous in all their applications, are a little more or a little less mischievous in one application than in another—that, in this or that portion of the field of law, vicious theories are consistently carried out, and yield their appropriate fruit in equally vicious practice, while in this or that odd corner they are departed from,—would in general be a sort of knowledge as destitute of instruction, as it always is and necessarily must be of amusement.
[* ]Book II. Vol. VI. p. 278, et seq.
[† ]Book III. Vol. VI. p. 383, et seq.
[* ]Objection: If such be the design of it (it may be said,) the epichet casually written cannot with propriety be applied to it.—Answer: The denomination here given to this species of evidence, considered in the aggregate, is taken from the consideration,—not of what, by fraud, it may, on this or that particular and rare occasion, happen to it to be,—but of what in its ordinary condition it is, and what even in the extraordinary case of fraud it purports to be; for, in case of fraud, if known to be directed to the object to which in that case it really is directed (viz. that of operating in the character of evidence,) the object of it would be by such knowledge frustrated.
[* ]A more natural as well as concise mode of designation would have been to say, the writer, or the author. But what may have happened is, that he whose discourse it is, was not the writer of it, as in the case of dictation or transcription: and, by the word author, the conception is apt to be exclusively directed to a long and studied discourse; whereas the roughest and minutest scraps are capable of being produced in this character, and in practice are actually so produced: besides that who the real author is, is a point not always ascertained, or even ascertainable.
[† ]In a preceding Book (supra, Vol. VI. p. 386,) mention was made of memory-assisting memorandums. Employed for that purpose, they would require to be under the eye of the deponent, during and antecedently to the time of the delivery of his evidence: applied to the purpose here in question, they would require to be kept out of his sight till after the delivery of his evidence.
[* ]This is an instance taken from ex parte preappointed evidence; but it is equally good as an illustration of the application of the characteristic fraud to casually written evidence also.
[† ]According to English practice, the books must be produced, if notice is given. If the shopman who made the particular entry be alive, he must be called as a witness, when he may refresh his memory by looking at the entry, and may explain the circumstances attending it. If the person who made the entry is since dead, upon proof of his handwriting, the entry will, under certain restriction, be received as evidence. Digby v. Stedman, 1 Esp. N. P. C. 327; Price v. Lord Torrington, 1 Salk. 285; Cooper v. Marsden, 1 Esp. N. P. C. 2; Evans v. Lake, Bull N. P. 282.—Ed.
[‡ ]Interrogation, viz. in the oral mode, or in the epistolary mode (where the epistolary mode is allowed,) or in both, according to the circumstances of the case. See Book III. Extraotion.
[* ]Refusal of such faculty of explanation is among the rules of English practice. [When the letter is from either of the parties to the suit, no explanation can be given by the writer, inasmuch as neither party can be produced as a witness. But it is competent to the counsel to give any explanation in his address to the jury.—Ed.]
[† ]See Book IX. Exclusion; Part III. Deception; Chap. III. Interest.
[* ]A lot of self-regarding, self-serving and disserving evidence: the testimony of the party, extracted, at the instance of the adverse party, by interrogation sur faits et articles.—Causes Célèbres.
[† ]Plaidoyers de Linguet, vii. 409. De Gouy’s case. “Quelles preuves écrites invoque-t-elle pour les dementir? Un prétendu certificat arraché à un domestique timide, qui n’en a pas prévu les conséquences, et démenti par elle-méme dans sa plainte.” A curious certificate indeed! The witness, for anything that appears, still alive; his testimony not allowed to be judicially extracted; but, in the form of this extrajudicial script, and under the notion of a commencement de preuve par écrit, exhibited and argued upon! By the same rule that the testimony of this servant was thus extracted in the form of what is called a certificate, so on any occasion might that of any other witness; and the security afforded by judicial examination discarded altogether.
[‡ ]This and the following section were left by the Author in the state of mere fragments. Several memoranda, far too incoherent to be inserted, prove it to have been his intention to enter more fully both into the subject of ex parte preappointed evidence, and into that of adscititious evidence. It does not appear, however, that he carried this intention into effect.—Editor.
[* ]Here ends all that Mr. Bentham had written on the subject of adsctitious evidence, with the exception of some loose memoranda. What follows was chiefly made up from these memoranda by the Editor.
[* ]The testimony given by the deposing witness may, if false, be false in toto, or false pro parte.
[* ]Chap. X. of this Book.
[† ]A supposable case of mendacity, and even of fraud, is this:—Mendax, in support of a claim of his own, comes forward in the character of a deposing witness, supporting it by hearsay evidence: which hearsay evidence consists in deposing that in his hearing (on an extrajudicial occasion) Umbra spoke of herself as having, at a time mentioned by her, seen, in the character of a percipient witness, a certain fact which, had it really happened, it would have fallen in her way and in her way alone to have so witnessed: assisted, for instance, in the character of a mid wife, at the birth of Titius. Here we have an article of hearsay evidence, which, though by the supposition false, is of essential use to its fabricator; rendering to the plan of falsehood a service which perhaps could not have been rendered by any evidence of the nature of ordinary original untransmitted evidence. But this is not among the cases that come within the description of the characteristic fraud as above described. Wherever the characteristic fraud, employed in the shape of hearsay evidence, has place, the extrajudicial statement (though false) is really uttered and delivered. The case here supposed, is a case not of hearsay evidence, operating by means of the fraud in question, there not having been in fact any extrajudical statement or narration, any extrajudicial witness. It is a case of false original untransmitted evidence, pretending to be, but not really being, hearsay evidence.
[* ]As a general principle of English law, hearsay evidence and statements in writing are inadmissible in evidence. There are various exceptions to this exclusionary rule: for example, the testimony given on oath by a deceased witness on a former trial may be proved by a person who heard him give his evidence. It has been, however, laid down, that the witness must not be allowed to swear to the effect of what was said, but must recollect the very words. R. v. Carpenter, 2 Show. 47; Ennis v. Donisthorne, Cornw. Sum. Ass. 1789, MS.—Statements made to medical men in answer to questions, are received in evidence. Aveson v. Lord Kinnaird, 6 East, 195, 198.—Letters written by the payee of a promissory-note, to the maker, at the time of the making of the note, are admissible in evidence. Kent v. Lowen, 1 Campb. 177, 180.—Declarations of the deceased, in cases of homicide, after the mortal blow has been given, are received in evidence. 1 East, P. C. c. 5. s. 124; Woodcock’s case, 1 Leach, 502.—Ed.
[* ]In this particular, however, what ought not to escape observation, is, that the meaning of words spoken on an extrajudicial occasion, in the way of statement or narration, concerning a fact to which it may happen to form the subject of an article of evidence, is not more liable to be misconceived, than the meaning of any set of words to which it happens to be considered as constituting the matter of an offence: words, for instance, in respect of which the utterer is charged with defamation; or words by means of which the utterer is considered as having instigated to, or, by instruction, assisted any other person in, the commission of that or any other offence whatever.
[* ]In its original import, the term memoriter is not more properly applicable to this modification of transmitted evidence, than to hearsay evidence: since the subject of recollection, or pretended recollection, may as well be a supposed oral, as a supposed written, discourse.
[* ]A witness would be allowed to refresh his memory by looking at such a letter, although the letter itself would not be allowed to be given in evidence, as proposed by the Author, below.—Ed.
[† ]Or, to speak more correctly, instead of the day of the examination, we should rather put the day on which the recollection of the witness came to be pointed to the subject, by the information that his testimony, in the judicial form, would be called for.
[* ]A mass of evidence of this description may be considered as constituting either one complex lot of evidence, or two simple ones emanating from the same source: whether it be to be spoken of under the one denomination or the other, is manifestly a mere question of words.
[* ]Add to these lithography, which, when this work was written, had scarcely been applied to the multiplication of copies of a written document.—Editor.
[† ]Why so? 1. Because in the natural state of things, the printer, having no particular interest in any legal use to which it may happen to the document to be applied, occupies in this respect a station analogous to an official one. By a printer, I mean a person exercising his function in the ordinary way of trade: not to speak of a printer employed in the printing of laws or other legal documents, by authority of government, 2. Because the printer is in every instance either actually known, or capable of being known, as the workman of his own works; his livelihood depends upon the reputation of them in point of correctness; and the correctness or incorrectness of them is subjected to the eyes of a number of witnesses and judges, greater beyond comparison than usually has place in the case of any transcript performed by hand.
[* ]See Book VII. Authentication.
[* ]The rule of law relating to transcripts is thus laid down by Phillips:—“Examined copies, and the parol evidence of witnesses, are the ordinary and regular proof of the contents of lost writings. But when a written paper has been traced into the possession of one of the parties to the suit, who does not produce it after receiving a notice, something less than an examined copy may reasonably be admitted as sufficient, at least to oblige the party to give better evidence, by producing the paper itself, if he finds the secondary evidence incorrect.” I Phil. Evid. p. 439, 440. In the case of Pritt v. Fairclough, 3 Camph. 305, an entry by a deceased clerk, in a letter-book, was admitted as evidence of the contents of a letter, the receipt of which was acknowledged by the defendant, but which letter was not produced at the trial when required. This case was remarkable for the following dictum laid down by Lord Ellenborough:—“The rules of evidence must expand according to the exigencies of society.” It is much to be lamented, that the Judges, as a body, have not courage enough to act upon this dictum, and sweep away these exclusionary rules, which are in such direct opposition to the exigencies of society,—in other words, to the ends of justice.—Ed.
[* ]Book IX. Exclusion.
[* ]English procedure, with the most perfect complacency, licenses injustice in this shape, to a most deplorable extent. But of this kind of imperfection the display belongs, not to the present subject, but to that of Procedure, and the head of Forthcomingness.
[* ]The justice, that is, of immediate and intrinsic importance—the justice upon which the sense of security on the part of the public depends, is not abstract real justice, but apparent justice. Real justice is no otherwise of importance, than in as far as apparent justice (as is the case in the ordinary state of things) depends upon it. The supposition is a strained and odious one; nor is it without great exertion and reluctance, that the mind of man, especially the mind of an ardent lover of justice, can bring itself to frame it: but, for the moment, and in the character of a supposition, it may be an instructive one. Better by far that injustice should be really done in all cases, so justice be universally thought to be done in the same cases, than that justice should be done in all cases, at the same time that in half, or though it were but a quarter, or say a tenth, or even a twentieth part of those cases (we know not where to draw the line,) injustice, and not justice, were with equal universality thought to be done. In the former case, in respect of the mischief of the second order (see Dumont, and Introduction,) no alarm, no sense of insecurity, by the supposition: in the other case, a violent alarm—a strong sense of insecurity, and that a universal one.
[* ]The above remarks apply not only to the case of hearsay evidence through many media, but also to that of transcriptitious evidence through many media, or transcripts of transcripts. One remark still remains, which is peculiar to the latter species.
[† ]Will it be said, that, when two witnesses are thus made necessary, they must both of them, of course, be deposing witnesses? If any such position were advanced, it would be rejected at any rate by English law. In the case of treason, to ground conviction, there must, indeed, by statute, be two witnesses; but, by jurisprudence, one at least of these two witnesses may be a piece of paper. [The statutes 1 Ed. VI. c. 12, and 5 & 6 Ed. VI. c. 11, render two witnesses necessary in a charge of treason. The 7 & 8 Wil. III. c. 3, requires two witnesses to prove the overt act or acts; either both deponing to the same overt act, or one of them to one, and the other to another overt act of the same treason. The prisoner’s confession may be proved by a single witness, when offered in confirmation of the testimony of the witnesses, or any other collateral matter. Willis’s case, 8 Hargrave’s St. Tr. 254; Crossfield’s case, 26 Howell’s St. Tr. 56, 57. If the overt act is the assassination of the king, or any attempt against his life, or his person, it may be proved under the 39 & 40 Geo. III. c. 93, by a single witness. A confession of the prisoner may also be proved by a single witness. In the case of perjury, two witnesses are necessary to contradict the alleged false statement of the defendant. Q. v. Muscot, 10 Mod. 193. The English law of treason having been, by statute, made part of the law of Scotland, the rules above stated apply to that part of the country. It is worthy of observation, however, that by the principles of the criminal law of Scotland, no man can be convicted of any offence on the testimony of a single witness. The rule has very little effect in practice, as a case scarcely ever occurs in which more than one individual is not cognizant of some portion of the res gestæ; and it is a sufficient compliance with the principle, that the narrative of a percipient witness is confirmed by another, whose statement may have the slightest possible connexion with the criminative circumstances.—Ed.]
[* ]Clymer v. Kettler, Hawk. iv. 428, from 3 Burrows, 1245.
[† ]This is not correctly reported by Hawkins, who has been followed in the text by the Author. In referring to Burrow’s Reports, it appears that it was an action of ejectment, in the course of which, the validity of two wills was called in question, dated respectively 1743 and 1745.—Mary Victor deposed, that William Medlicott pulled out of his bosom the will of 1743, and said it was the true will of John Clymer. This was in her examination in chief: in her cross-examination she added, that Medlicott at the same time acknowledged and declared to her, that the will of 1745 was forged by himself.—Ed.
[* ]The application of evidence to facts of the religious class not coming within the design of the present work, what follows in this note is mentioned in no other character than that of an argumentum ad hominem: but, in that character, applied to all Christian (not to speak of Mahometan and Hindoo) judges, and in particular to English ones, the weight with which it presses seems to be irresistible. Disbelieve transmitted evidence, on the ground of the multitude or the uncertainty of the number of the media through which it purports to have passed, you reject history in general, and all ecclesiastical history in particular. If the facts in support of which evidence of this complexion will naturally be adduced, be, merely on the ground of their having this and no other sort of evidence for their support, to be pronounced incredible, much more must all facts brought to view in the character of a basis of religious opinion be incredible. The supposed facts brought to view for a judical purpose, are all of them of the most ordinary and natural cast: and whatever chance they may have of gaining credence depends upon the vulgarity of their complexion, their conformity in every respect to what is generally understood to be the ordinary course of nature;—e. g. that John and Joan, being married at the usual time of life, had sons and daughters, and having attained a usual age, and being possessed of landed property, left such or such a son, or such and such daughters, to succeed to it. The facts which are the subjects of the earliest period of every ecclesiastical history, are facts more or less deviating from what at present is generally understood to be the ordinary course of nature, or they could not be, what by the supposition they are, facts constituting the subjects of religious faith: that Jared, for example, at the age of 162 years, cohabiting with a woman unknown, begat for his first-born a son named Enoch, and died 800 years afterwards, continuing for an unspecified part of that time to beget sons and daughters.a
[* ]See 1 Phil. Ev. p. 218, and the Note to p. 134, supra.—Ed.
[* ]Vide supra, Vol. VI. p. 325.
[* ]By 7 & 8 G. IV. c. 28. § 6, the benefit of clergy with respect to persons convicted of felony is abolished.—Ed.
[* ]Vide supra, p. 124, Note *.—Ed.
[* ]Vide supra, p. 123, Note †.—Ed.
[† ]For a fuller exposure of the arguments founded upon the words necessity and trade, see Book IX. Exclusion; Part III. Deception; Chap. III. sect. 3.
[* ]This is scarcely consistent with practice. It has been held, that proof of the hand-writing of a clerk, and that he has gone abroad, and is not likely to return, is not sufficient to make a memorandum by him admissible in evidence. 1 Esp. N. P. C. 2.—Ed.
[* ]The papers from which the above remarks on the aberrations of English law have been compiled, were written by Mr. Bentham at different times, and left by him in a very incomplete and fragmentitious state. It appears that he had intended to give some account of what is done by English law in regard to all the different kinds of makeshift evidence, but never completed his design. The remainder of this chapter (with the exception of a fragment, which for distinction’s sake has been printed within brackets,) is the result of a partial attempt to fill up the void which had thus been left in the body of the work.—Editor.
[† ]See Chapter II. of this Book, § 3, supra, p. 127.
[‡ ]Phillipps (edit. 1824,) i. 317, et seq.
[∥ ]Ibid. i. 319.
[* ]C. J. De Grey, in the Duchess of Kingston’s case, apud Phillipps, i. 304.
[† ]Vide Chap. II.
[‡ ]Phillipps, i. 309.
[∥ ]See Book IX. Exclusion; Part III. Deception.
[* ]Phillips, i. 312.
[† ]Ibid. i. 330-334.
[‡ ]Here commences the fragment alluded to in p. 170.
[* ]Phillipps, i. 340.
[* ]The application of evidence to facts of the religious class not coming within the design of the present work, what follows in this note is mentioned in no other character than that of an argumentum ad hominem: but, in that character, applied to all Christian (not to speak of Mahometan and Hindoo) judges, and in particular to English ones, the weight with which it presses seems to be irresistible. Disbelieve transmitted evidence, on the ground of the multitude or the uncertainty of the number of the media through which it purports to have passed, you reject history in general, and all ecclesiastical history in particular. If the facts in support of which evidence of this complexion will naturally be adduced, be, merely on the ground of their having this and no other sort of evidence for their support, to be pronounced incredible, much more must all facts brought to view in the character of a basis of religious opinion be incredible. The supposed facts brought to view for a judical purpose, are all of them of the most ordinary and natural cast: and whatever chance they may have of gaining credence depends upon the vulgarity of their complexion, their conformity in every respect to what is generally understood to be the ordinary course of nature;—e. g. that John and Joan, being married at the usual time of life, had sons and daughters, and having attained a usual age, and being possessed of landed property, left such or such a son, or such and such daughters, to succeed to it. The facts which are the subjects of the earliest period of every ecclesiastical history, are facts more or less deviating from what at present is generally understood to be the ordinary course of nature, or they could not be, what by the supposition they are, facts constituting the subjects of religious faith: that Jared, for example, at the age of 162 years, cohabiting with a woman unknown, begat for his first-born a son named Enoch, and died 800 years afterwards, continuing for an unspecified part of that time to beget sons and daughters.a
[a ]Genesis, v. 18, 19, 20.