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

CHAPTER VI.

FIRST DEVICE—EXCLUSION OF THE PARTIES FROM THE PRESENCE OF THE JUDGE.

§ 1.

Mischiefs of the exclusion.

In the exclusion put upon the parties may be seen the master-device, the sine quâ non of the whole system. To this, as to the centre, may all the others be referred: their office being, in each instance, to give either birth, continuance, or effect to it.

By exclusion of the parties from the presence of the judge, must here be understood exclusion of their allegations, in the character of testimony, applicable to the purpose of grounding a decision, giving termination to the suit. An express exclusion put upon their persons would have been too flagrantly odious, and more than was necessary to the purpose.* It was done by so ordering matters that a party should have nothing at all to gain by attendance, while he had as much as possible to suffer and to lose. Nothing at all to gain; when he could neither gain credit for any testimony of his own, not extract any testimony from the lips of his antagonist, nor so much as comprehend, through the jargon in which it had for this purpose been enveloped, what had been done, or was intended to be done. Much to suffer; partly from the natural causes of vexation, expense, and delay, the unavoidable concomitants of judicial attendance: but a great deal more by the arrangements that had been established for the purpose of wearing out his patience, rendering the burden of attendance intolerable and thus forcing him into the arms of the paupers and dependants of the judge, the professional substitutes and assistants.†

It is in virtue of this commanding feature, that a glance, however rapid, over the whole expanse of the technical system, became so indispensable a part of the present work. Exclusion of parties is exclusion of witnesses,—of the persons in whose instance an acquaintance more or less intimate with the mass of facts pertaining to the cause, or at least with some of them, is matter of course; and that acquaintance frequently most intimate, not unfrequently peculiar—the cause affording no other witnesses.

Under the technical system, the ends of judicature being throughout in opposition to the ends of justice,—to bring to view the several ways in which the appearance of the parties in the presence of one another and of the judge, or (where that cannot be) at any rate of the judge, is subservient to the ends of justice, is to show in other words the several ways in which it is adverse to the ends of judicature. So many services which it is in the nature of this meeting to render to justice, so many considerations by which the authors of the technical system were called upon to oppose an inexorable bar to it at any price: as also, on the other hand, so many considerations by which the legislator, in proportion as justice is the object of his regard, will feel himself called upon to rid the country of a system by which the dictates of justice are thus trodden under foot.

In the most common and natural state of things, both suitors will (at least in the outset of the cause) find themselves together in the presence of the judge. What other arrangement so natural? Whom should the judge hear, if not the parties? And if either, why not the other, and (were it only that time may not be wasted) at the same time? In this case the meeting is tripartite: parties to it, the two suitors (the plaintiff, the defendant) and the judge: tripartite, taking the judge into the account: bipartite and reciprocal, as between the suitors.*

Cases, however, are not wanting, in which, either in a physical or in a prudential sense, the reciprocity is impracticable: then comes a meeting bipartite, a hearing ex parte.

When the party is not present, his presence may either remain altogether unsupplied, or supplied (in so far as it is capable thus to be supplied) by an agent or substitute, private,† or professional,‡ or both.

In the character of a party, the suitor (if he be present) appears necessarily and of course: in the character of a witness, he may appear or not, as it may happen: according as it happens or not that a fact or facts, having an influence on the fate of the suit, had or had not fallen under his cognizance.

Saving always the case of impracticability, physical or prudential,—justice presents a constant demand for the presence of each suitor, on two opposite accounts: on his own account, that, of the facts, arguments, and demands, which the cause is susceptible of, and he capable of adducing, such part may be brought forward as tend in favour of his side of it; on the account of his adversary, that the adversary may on his part be in possession of his share of the same advantages.

In the character of a witness, the suitor may present himself either as an immediate, or as a non-immediate witness. If as a non-immediate witness, it will then be merely as giving indication of some other source of evidence, real, oral, or written: some being, whether belonging to the class of persons or of things, from whom, or from which, evidence fit to serve in the character of immediate, or say ultimately-employable, evidence, may (it is supposed) be extracted.

In any case, the supposed ulterior source of evidence thus referred to may either be determinate, known to the suitor as qualified to serve in that character, or hypothetical and indeterminate. From what, of his own knowledge, he knows of the nature of the case, taking into account the circumstance of place and time, he supposes (with a degree of persuasion more or less intense) that, from a person or a thing of such or such a description, evidence pertinent to the cause in hand may be to be obtained.

Presenting himself, or presented, in the character of a witness,—the facts which a party will be most ready and most sure to bring to light, will be such facts as (in his view of the matter) promise to be of service to his side of the cause. In respect of these, his evidence is self-serving, and will naturally be spontaneous. Facts seen to be of the opposite tendency, if they come out at all, will scarcely come out but on demand made by the adverse party or the judge: in a word, but by interrogatories: in respect of these, his evidence will be self-disserving.∥

I.*Facienda by the plaintiff. Functions, for the performance of which the presence of the plaintiff is or may be requisite:—

1. To state the nature of his demand; i. e. what the nature is of the service which, at the charge of the defendant (in virtue of the authority supposed to be given to him by the law,) he demands at the hands of the judge; ex. gr. in criminali, infliction of punishment on the defendant; in non criminali (and, in so far as satisfaction is concerned, in criminali,) transference of the matter of wealth in any shape (an individual thing, immoveable or moveable, a sum of money liquidated or to be liquidated,) from the possession of the defendant into that of the plaintiff, &c. &c.

2. To state on what title such demand is grounded, viz. in point of law: ex. gr. delinquency, contract, succession, &c. &c.; referring to the tenor of the law, where there exists a law—i. e. to the words of the statute, where there exists a statute; in other words, where the legislator has rendered it possible for the subject to be apprized of, and to observe, the law, for the non-observance of which he is doomed to suffer.

3. To state what the facts are, which, to his knowledge in the character of an immediate witness, or to his belief in the character of a non-immediate witness, have taken place: they being such as, in virtue of such law, have given to him such his title to such service: events or other facts investitire, or say collative,—having the effect of investing him with, or conferring upon him, such his title to such service.†

4. To state the grounds of his persuasion respecting the existence of such collative or investitive facts: whether they be his own perceptions, or the supposed perceptions of any and what other persons, or whether they are composed of other information, in the shape of real or written evidence: and, in his own instance, to make known, if necessary, whether the facts so perceived by him were the very facts themselves that are in question (as in case of direct evidence,) or other facts regarded as evidentiary of them: as in case of circumstantial evidence.

5. To state (as well for the benefit of the defendant as for his own benefit, and whether called upon or not,) all such persons as he expects to find qualified to speak, in the character of witnesses, to any such relevant facts, as above: stating, in regard to each such person, what facts,—and on what grounds such his expectation rests.

6. To propose (whether by name or by description, as the case may be) such persons, if any, through the medium of whose testimony, ultimately employable or not (and on what ground,) he looks for immediately relevant and ultimately employable evidence, as probably obtainable by investigatory inquiries and examinations.

7. To state (as well for his own benefit as for that of the defendant) all such relevant articles of real or written evidence as lie within his own custody, power, knowledge, or supposal; together with the places in which they are respectively lodged, or supposed to be lodged, the time within which, and the means by which they may respectively be made forthcoming for the purpose of evidence: and, in case of apprehended difficulty, what the nature of the difficulty is, and what means (if any) seem best adapted to the removal of it.

8. To authenticate (whether for his own benefit or that of the defendant, and thence whether in the way of spontaneous allegation or confessorial recognition,) in the character of sources of written evidence, or else to disavow, all instruments and other scripts, purporting or alleged to be of his writing, inditing, or adoption, whether by signature or otherwise.

9. To deliver (either on the spot, or, in case of necessity and for special cause, at a subsequent time, in writing, and with the benefit of recollection) answers to all such relevant and not improper questions as shall be propounded to him by or on the part of the defendant (subject to the disallowance of the judge,) or by the judge himself.

10. To declare, if needful and required, his means of justiciability, for the purpose of eventual satisfaction, or even punishment, for any undue expense and vexation imposed by such his demand on the defendant, and any other person or persons,—especially in the event of the demands being deemed groundless, or being left unsupported; more especially if the institution or pursuit of it be accompanied with mala fides (consciousness of wrong) or temerity.‡

11. Unless where, previously to the institution of the suit, demand (demand extrajudicially made to the defendant) was physically or prudentially impracticable,—to declare whether such demand were made by him, and where, and when, and how; and if not, why not? to the end that, if the vexation attached to the institution of the suit were causeless, especially if malicious, due satisfaction for it may be made by him.*

12. To afford (whether by means of interrogatories properly adapted to the purpose, or otherwise) the means of establishing or disproving his own sincerity, that is, his persuasion of the demand: to the end that, in case of insincerity, he may, on the score of undue vexation, be the more highly responsible.

13. To receive warning that, for the truth and sincerity of his several declarations and alleged persuasions, as above, as well in respect of completeness as of correctness, he is about to be responsible, i. e. justiciable: to wit, upon exactly the same footing as an extraneous witness, deposing in like manner in a suit to which he was not a party.†

14. For his own benefit, to receive communication of the several allegations on the same occasion made by the defendant on his (the defendant’s) own behalf; and, by counter-interrogation on the spot, and eventually by counter-evidence and apposite observations, to do what lies in his power towards securing the plenitude as well as correctness, or exposing the incompleteness or incorrectness, of such the defendant’s testimony and declarations.

15. At the requisition of the defendant or the judge,—to settle a channel and mode of correspondence with him, during and for the purpose of the suit; in such manner as to obviate thereafter all difficulties and uncertainties in respect of his having or not having, on this or that occasion, received notice (viz. of anything which he may be called upon to do or receive, either for his own benefit, or that of the defendant, or any one else.)

II. Facienda by the defendant:—

1. To declare whether he admits, or contests, the justice of the plaintiff’s demand:—and this whether the demand be of a criminative, or a non-criminative nature.

2. If he contests it,—whether on the ground of law, or on the ground of fact, or on both.

3. If on the ground of fact,—to declare whether he means to advance, in the character of divestitive (or say ablatice) facts, any counter facts; and if yes, to advance them accordingly: proceeding, in regard to such counter facts, in the course stated in the case of the plaintiff, as per articles 4, 5, 6, 7, and 8.

4. To undergo examination on the part of the plaintiff: as in the case of the plaintiff, by article 9.

5. If (by his own confession or otherwise) the justice of the plaintiff’s demand has been established (or provisionally, in the event of its being established)—and if the nature of the obligation in that event imposed on him requires it,—to declare whether he is able to fulfil it (for example, to endure the punishment, render the satisfaction, pay the money due, deliver up the thing due, &c.) upon the spot, or at what other time or times, place or places, &c.

6. If not upon the spot,—then to pray the respite he desires, stating the grounds of such his prayer; and, if requisite, to indicate and declare his justiciability (or say responsibility) as in the plaintiff’s case, article 10; to the end that the judge may determine, whether any and what indulgence may and shall be granted to him, consistently with the plaintiff’s rights and exigencies: that, on a comparative consideration of the exigencies of both parties, the judge may determine whether any and what abatement may be made from the plaintiff’s right, to save the defendant from suffering in excess.

7. Inter alia (in case of need,) with a view to pecuniary punishment or satisfaction, as above,—to give an account of all debts due, or about to be, or likely to be, due to him, and of all other expected pecuniary resources, and all other means (if any) by which his eventual justiciability in point of fact may be secured and carried into effect.

8. To be warned of his responsibility for the truth and sincerity, the completeness and correctness of his declarations of all kinds; as per article 13 in the plaintiff’s case.

9. For his own benefit,—to receive communication of the plaintiff’s self-serving, and (if any) self-disserving, testimony, as above: to the end that, by counter-interrogation, and (if the facts admit of it) by counter-evidence, he may do what lies in his power towards securing the completeness and correctness, or exposing the incompleteness or incorrectness, of the plaintiff’s testimony and declarations.

10. To settle a channel and mode of correspondence with him, during and for the purpose of the suit; as per article 15, plaintiff’s case.

III. Facienda by both parties in concert:—

In particular cases,—the demand for such a mass of evidence as shall, on one or both sides, be to a certain degree complex, being established by their mutual declarations, as above,—to take an anticipative survey of it; for any or all of the following purposes, viz.*

1. To discard any such articles as, were it not for such concert, might in reality or appearance be necessary to the parties having in contemplation to produce them respectively, but, by virtue of such concert and mutual explanation, may be rendered unnecessary.

2. When this or that article of evidence is so circumstanced, that the production of it threatens to be attended with delay, expense, and vexation, to any considerable amount,—to take measures in concert, for reducing to its minimum that mass of collateral inconvenience.

3. Where the quantum of the inconvenience appears to be to such a degree considerable as to outweigh either the value of the evidence in the character of a security against misdecision, or even the mischief of misdecision, though on the exclusion of the evidence it were seen to be a certain consequence,—an exclusion may accordingly be put upon that article of evidence; an exclusion to wit, either definitive or provisional, as the case may require.†

4. Where, by the influence of any cause or causes of complication, any ulterior meeting or meetings have been made requisite,—to concur with the judge in the fixation of such time or times as shall be productive of least delay, expense, and vexation; regard being had to the convenience of both parties, as also of the suitors in other causes depending before the same judge.

To the uses attached to the functions which by this means the parties are in the most advantageous mode enabled and obliged to perform (enabled, each for his own benefit, or obliged, each for that of his adversary,) may here be added an advantage, which consists, not in anything that either of them does, but in the situation in which each of them finds himself. I speak of that which places him in the presence of the judge, and commonly (except where special circumstances afford special reasons to the contrary) in the presence of a more or less numerous and miscellaneous auditory: bringing thereby to bear against each party, in case of malpractice or insincerity on his part, that sense of shame which is so powerful a preservative against any the slightest deviation from the line of rectitude, and of which, in the solitude of the closet, the force is as nothing in comparison with that which it derives from society, especially from society so composed.

The use here in question is over and above that which consists in the party’s being personally responsible for every breach of sincerity or probity committed on his side of the cause. Such responsibility might be made, and is made,‡ to attach upon him, without his ever finding himself in the presence either of the adverse party, or of the judge.

The check here in question is that which is applied to a man by the consciousness that, in the event of a present detection or well-grounded suspicion of any impropriety of speech or conduct on his part, the stain thereby made on his reputation will be witnessed by a number of persons more or less considerable, in which his adversary and the judge will at any rate be included; the adversary, whose triumphant eye, and the judge, whose reproving eye, his own humiliated and suffering eye will have to encounter on the spot.∥

Of all the above modes of turning to account the presence of the parties, there is not one that is not the obvious result of the plainest common sense: not one that is not, wherever the nature of the case admits of it, subservient to all the ends of justice: not one of them the use of which in that character is not felt in the courts of natural procedure, according to the nature of the causes of which those sanctuaries of justice are respectively permitted to take cognizance. But, by so many points as this arrangement is subservient to the ends of justice, by so many is it adverse to the established ends of judicature: accordingly, the opposite arrangement, the exclusion of the parties, constitutes the basis of every system of technical procedure, wheresoever established, and howsoever modified. All the other devices presuppose this, and serve but to improve the advantage gained by it.

In whatever court this basis of all justice has been restored, or suffered to remain, the best evidence, so far as it applies, takes place; and, besides furnishing such lights as frequently are not to be had from any other quarter, saves the vexation, expense, and delay, attached to the production of inferior evidence: and the cause receives the very speediest, as well as least expensive, and in every way least vexatious, conclusion, which the nature of it admits.

Even when ulterior evidence is ultimately necessary, by the preliminary meeting much vexation and expense is saved in the exhibition of it.

Under the technical system, for want of the necessary preliminary explanations, each party finds himself, generally speaking, under the obligation of having in readiness, by a particular day and hour, every article of evidence (how vast soever may be the expense) which it is supposed can by any possibility be sound necessary, or so much as rendered serviceable.

Under the arrangement proposed, not only in respect of this or that individual article of evidence, is the delay, vexation, and expense saved, that would have been produced by the exhibition of it, but (without any the smallest prejudice to the direct ends of justice) needless evidence, with the delay, vexation, and expense attached to the exhibition of it, is shovelled out in whole masses: as for example:—

1. Whenever the burthen of delay, vexation, and expense, attached to the collection of the evidence, constitutes an object worth regarding,—if any point of law is in question, the collection may on both sides be postponed till after the determination of the point of law: for, suppose the point of law given (for example) against the plaintiff, all evidence, as well on his side as on the other side, will be altogether useless.

2. In like manner, where, on the defendant’s side, the burthen threatens to swell to a certain amount, the collection may on that side be postponed till after the plaintiff’s evidence has been collected and provisionally pronounced upon: for if the plaintiff fails in making out his case, it is needless to put the defendant to the trouble of making out his.*

Neither party (it may seem at first sight) ought to be present without the other: no ex parte appearance previous to their simultaneous appearance. Supposing this to be the case, the simultaneous appearance will be the first step in the cause, after the delivery of the summonses by which it is brought about.

But in some cases it may not be right that the defendant should be subjected to the vexation of attendance, until the primâ facie justice of the demand has been so far established as it can be by the examination of the plaintiff. In these cases, it is for the advantage of the defendant that the plaintiff should be heard without him, and before him, and consequently out of his presence.

Again, in some cases it may be necessary, for security, to apprehend the person of the defendant without warning: and, by that means, at some casual and unforeseeable time and place. In all such cases, the ends of justice require, as peremptorily as the ends of judicature have forbidden, that, without loss of time, and (it possible) antecedently to his being inclosed within the walls of any prison (ordinary or extraordinary,) he be conducted into the presence of the judge.† In these cases it is only by an accident, and that a rare one, that the plaintiff can be there exactly at that same time. Here, then, it is for the advantage of the defendant to be heard out of the presence of the plaintiff.

Again: On the part of the plaintiff, the obligation of personal appearance is attended with a degree of vexation, which, when without preponderant vexation it can be saved, ought to be saved: besides, that the fulfilment of the obligation will in some cases be physically, in others prudentially, impracticable. Here then comes in the consideration, in what cases,—antecedently to the issuing of the summons commanding, or the warrant for compelling by physical means, the attenddance of the defendant,—a succedaneous security shall be accepted at the hands of the plaintiff, in lieu of that which would have been afforded by his preliminary attendance at the judgment-seat, and examination by the judge.

Here again comes in the question, in what cases examination in writing ought to be employed, in aid, or provisionally in lieu, of examination vivâ voce (reciprocal or ex parte) by and before the judge. I say provisionally, and never definitively and exclusively (as in the case of the answers extracted from defendants in equity practice,) under the assurance of never being subjected to the other more efficient mode.

So, again, in what cases the reciprocal examination incidental to the meeting of the parties in the presence of the same judge shall give place to a reciprocal ex parte examination; viz. of the plaintiff before one judge, of the defendant before another, whose seat may be at the antipodes.

Obvious enough these several considerations, to those whose views are directed to the ends of justice. To men of law they will be apt (many of them) to appear new, as not being conducive to the ends of judicature. They are here glanced at, as being necessary to fit up the natural system for performing, not what is performed, but what is pretended or supposed to be, without being performed, by the technical.

§ 2.

Uses of the exclusion to Judge & Co.

Use 1. Making business, i. e. profit, by forcing the suitor into the hands of professional lawyers, assistants, substitutes; linked with the judge himself in a virtual partnership, in the mode already explained.

2. Making business, by the exclusion of the testimony of the parties in that most trustworthy, most correct and complete, as well as promptest and cheapest, shape; giving occasion to the production of it in shapes more expensive and more profitable: to the partnership, more profitable; to the parties more expensive.*

3. Making business, by giving birth to erroneous decisions, grounded on incorrect or incomplete masses of evidence; which decisions give birth to ulterior suits, seeking relief in ulterior and better-grounded decision.

4. Making business, by exempting, on each occasion, the party in the wrong, from that sensation of shame, which, at the moment of detection (especially if in the presence of a miscellaneous mass of by-standers, as well as of the judge,) attaches itself upon self-conscious and detected falsehood or injustice. Opening the door to whatever falsehoods and frauds present themselves as promising to serve the purpose of the cause, or of the moment; and thereby to demands and defences, and thence to suits, which, but for the assurance of being able to employ to advantage such falsehoods and frauds, would not have had existence.

5. Making ease (without prejudice to profit,) by exempting himself from the plague and indignity of having to do with low people, with the mob, the rabble, the populace,—i. e. the great majority of the people; wretches, who, being ignorant of things in general, and of jurisprudential science in particular, are, in proportion to their ignorance, apt to be troublesome.

6. Giving to the partnership (or at any rate to the judge, and his younger brother the advocate) the profit of inhumanity—of inhumanity to any extent, clear of the opprobrium that otherwise would attach upon it.

Were the debtor and creditor both in court, in the presence of each other and the judge, shame would every now and then prevent him from extorting, in the shape of fees, the pittance which, if not left to the debtor in the name of humanity, should have been delivered to the perhaps equally distressed, perhaps still more grievously distressed, creditor, in the name of justice.

7. Giving to the partnership, or at any rate to the judge and to the advocate, the profit of inhumanity, clear of any pain of sympathy that might otherwise be exerted by the spectacle of distress, in the bosom of him for whose benefit it has been produced.

Often does the unlearned judge, the country magistrate, give up his trifling retribution: Why? Because the distress, of which the exaction of it would be productive, is before his eyes.

Who ever heard of fees given up by the learned and ermined magistracy?

Of the profits drawn by them, in such copious draughts, from the extremity of distress, a great part, perhaps the greater, is never set down to their account. It is sunk in the pocket of some officer: and the profit to the judge is from the sale, or what is equivalent to the sale, of the office.*

Even of that part which finds its way directly into his coffers, care has been taken that the individual contributors, with their respective distresses, shall be as completely unknown to him, as if the scene of them were at the antipodes.

“What the eye does not see, the heart does not rue.” Nowhere has the truth and value of this proverb been more fully understood, and more completely profited by, than in the great hall at Westminster. Hence, the miseries and iniquities of which the English system of imprisonment for debt is composed,† —a mass of abomination not to be matched in any other clime, a source of profit as religiously protected as it has been elaborately organized,—have ever found as much sympathy in the stones of which the pavement is composed, as in the bosoms of those who walk upon it. Misery in abundance; but the heart never rues it, care having been taken, and that so effectually, that the eye shall never see it.

In the division made of the labour among the members of the partnership, all this opprobrium, and whatsoever may be supposed to be realized of this pain of sympathy, lies on the shoulders of the attorney. His inferior share of the aggregate profit, comes to him loaded with this incommodious drawback. The superior share, of the authors of the system—the judge and the advocate—drops into their learned laps, free from all incumbrance.

8. Giving the necessary support, or increased effect, to the several ulterior device, (of which in their order:) and, in particular, to the practice of decision without evidence and without thought, to the principle of nullification, to the use of written pleadings, with the benefit of the mendacity-licence, to the chicaneries about notice, to motion business, to the entanglement of jurisdiction as between law and equity courts, and to the opinion trade.‡

[* ]The French practice of trying and giving judgment on offenders in their absence, is frequently alluded to in terms of reproach; yet a similar one is pursued in England, in the Court of Queen’s Bench. In misdemeanours tried in that court, it is not necessary, nor is it required, that the defendant should be present; the court looks to his sureties. It is by no means clear that the accused must be present, even in cases of felony. About two years ago, two gentlemen were charged with a capital felony, on the Norfolk Circuit, and the case was moved by certiorari from the assizes into the King’s Bench. It was argued at great length, that the accused need not be present at their trial, and no precedent could be found to the contrary. Without deciding the point, Mr. Justice Littledale said he should object to try them in their absence, and they accordingly appeared on the floor of the court.—Ed.

[† ]Add to which, that the practice of committing to writing whatsoever was said by either of the parties,—this practice, when once established (which it was not, nor well could be, but by degrees,) superseded, as of course, the demand and occasion for oral intercourse. In one instance, perhaps, out of twenty, the demand for writing would present itself: under favour of the pretence afforded by this one instance, the purchase of written paper was forced upon the parties in the nineteen other instances in which it was useless or unnecessary.

[* ]For the sake of simplicity, the case which affords divers parties on one side, or on each side, is here passed over.

[† ]Husband, father, guardian, private friend.

[‡ ]Attorney, or advocate, or both, or (as in America) both in one.

[∥ ]Attendance of parties is one thing—exclusion of professional assistants another thing. Care should be taken not to confound the two arrangements, or to regard the one as a necessary consequence of the other.

In the greater, the far greater, number of suits (understand individual suits, not sorts of suits,) professional assistance will be needless; and, if needless of course mischievous. But some there will always be, in which the exclusion of professional assistance might be the exclusion of justice. Various are the deficiencies, the natural deficiencies, any of which may be sufficient to prevent the suitor from doing justice to his own cause. Minority, superannuation, mental infirmity in any shape: regard being always had to the quantity and quality of mental qualification, the demand for which is presented by the nature of the case. If gratuitous assistance, the fruit of natural relationship or of any other source of sympathy, be forthcoming, and that competent to the task, so much the better: if not, the assistance of strangers must be obtained, upon the only terms on which the assistance of a stranger can be made sure of: or, the lamb being opposed to the wolf, and without a shepherd, the consequence is obvious.

The zeal of the judge, the unfee’d judge (it may be said,) ought to be such as to render the assistance of the hireling needless. It ought to be,—true: but will it? Choose and manage your judges as you will, can you be sure of its being so, and in every instance? If not, saying that it ought to be is not a reason, not an argument applying to the question, but a departure from it.

What if the judge be not merely negligent, but (by the influence of sinister interest) positively and actively partial? Such things have been, and therefore ought never to remain unprovided against, as if they were impossible.

[* ]For a further statement of the author’s views on the subjects treated of in the ensuing pages, see “Principles of Judicial Procedure,” Vol. II.

[† ]See Dumont, “Traités de Legislation.” See also “View of a Complete Code of Laws” Chap. XV. (Vol. III. p. 186.)

[‡ ]In this case, the security given for the assurance of such justiciability, of what nature shall it be?—a topic to be considered. For example, shall it be self-furnished, or extraneous? real, or merely corporal? eventual only, or depositious, i. e. by deposit made in the first instance?

[* ]Under the natural system, the importance of this use will in general be very inconsiderable. Why? Because, under that system, the vexation attendant on litigation is so inconsiderable.

Under the technical system, the importance of it would, for the opposite reason, be great: great in proportion to the vexation attached to the particular species of suit employed.

In the most vexatious of all suits (at least all English suits,) an equity suit,—in the instrument called a bill,a by which it is commenced, a statement of the existence of such previous demand is at least frequent, if not constant: not that, whether such demand was ever made or no, is a fact concerning which the draughtsman ever deems it worth his while to inquire. To the party, it is perfectly useless, the judge never taking any the slightest cognizance of it: the only use it is of, is to the partnership, by swelling the quantity of profit-yielding surpulsage. The charge is inserted under the mendacity-licence,—of which in its place. In a suit at common law, nothing is ever said about it.

[* ]The care taken, in so many instances, under the technical system, to exempt parties, on various occasions, from this obligation, constitutes the device spoken of below under the appellation of the mendacity-licence. See the chapter so intituled. (Chap. XV.)

[* ]See infrà, Book IX. Exclusion; Part II. Proper; Chap. VII. Remedies succedaneous to Exclusion.

[† ]See Book IX. Part II.

[‡ ]Viz. in English regular procedure, in the case of the instrument called an answer to a bill in equity.

[∥ ]So successfully has the industry of the technical system exerted itself, that not only this corroborative to personal responsibility has been cleared away, but the very foundation of it, the responsibility itself: and this so effectually, that neither shall the party himself be responsible for the falsehood or dishonest trick by which he profits, nor yet the person or persons, the professional assistant or assistants, to whom, in the character of instruments or assistants, he is indebted for it. The licence thus granted to insincerity and malpractice requires, it is true, the removal of the check here in question,—requires the exclusion of the parties from the presence of each other and the judge,—requires the withdrawing out of the joint presence of his adversary and the judge, the party on whose behalf the dictates of sincerity or probity are to be transgressed; but, to render the licence complete, and completely effectual, ulterior devices (of which presently) were necessary, and have accordingly been employed. It was necessary, that for every such transgression a safe author or accomplice should be provided: and that matters should be so managed, that, whatsoever be the transgression, and whatsoever the advantage reaped or sought from it, no inconvenience, either on the score of punishment or on the score of satisfaction, should fall anywhere. To this purpose the exemption here in question was indeed necessary, but was not sufficient. It was necessary that, besides improbity in other shapes, a full and unrestrained liberty of lying should be secured to the party, for himself, and any number of assistants at his nomination, they being members of the partnership: and this accordingly is what has been done. See Chap. XV. Mendacity-licence.

[* ]True it is, that, when the question is concerning quantity or degree,—for example, how much money is due to the plaintiff (it being out of dispute that something is due,) and not whether anything or nothing,—it will frequently, if not generally, happen, that, under the head of evidence exhibited, no saving will be to be made. But, where the question is, whether anything be due, or nothing, there it is that the door is open for such saving in all cases.

[† ]In Sergeant Wilson’s reportsa we have a case, in which a widow, being illegally imprisoned, lay eight months in jail, from no other cause (as declared by the Lord Chief Justice) than that no judge knew anything about the matter. In the nature of things, cases where the like consequence is produced by the like cause, must be happening in every day’s practice; but, mere accident excepted, what is it that can ever bring them to light? For, of those who could remedy it, who is there that either knows or cares about it?

On this occasion, the observation made by the Chief Justice is worth remarking. “It was in some measure Mrs. Barker’s (the widow’s) own fault, that she was detained in prison so long as eight months; for that, if she or her attorney had applied to the Court of King’s Bench, or to any judge of that court, at his chambers, she might have been discharged out of custody within a day or two after she was arrested, upon laying her case properly before the court, or a judge.”

At the expense of a suit, in which the judge would have had his fees, the widow might have obtained earlier, what, at the like expense, she did obtain at last, an enlargement from an illegal imprisonment: to which imprisonment she never would have been exposed, had it not been a rule with learned judges wilfully to neglect (for the evident purpose of making such suits) a duty imposed upon all judges by the most obvious principles of justice and common sense—a duty from which no judge of the class of unlearned judges ever is exempted—viz. the duty of not punishing or plaguing men without suffering themselves to know anything about the why or wherefore. See Chap. XII. Decision without Thought.

The cause was tried by De Grey, Lord Chief Justice: his sympathy was excited by it: In whose favour? That of the widow by whom the eight months imprisonment had been suffered? No: but that of the attorney by whose malpractice it had been caused: he was an object of compassion. Why? Because no such offence as that of conspiracy had been proved upon him.

[* ]Viz. in all the courts, affidavits, and in the equity courts, answers (answers to bills,) and depositions received (not in the presence of the parties) by a judge ad hoc, who has no part in the decision.

[* ]Vide supra, p. 199.—Ed.

[† ]Vide supra, Vol. VI. p. 173, Note.—Ed.

[‡ ]In any judicatory, suppose, for (argument’s sake) any such rule established, as that, of any two parties, the judge shall be at liberty to hear which he pleases: refusing peremptorily to hear the other, in any mode or upon any terms. In this may be seen a rule of which no person (as is supposed) would hesitate to pronounce,—not solely that it is in itself contrary to justice,—but that it is imposible that, in any system of judicature of which any such rule stood part, justice should really have been the end in view.

Accordingly, in no one judicatory under the technical system, has any such rule been acted under or established. Of its non-establishment one cause probably may have been, that in all probability the people of the country could not have endured it: another cause probably was, that,—if a hearing must be given,—with the advantage of a power to make those to whom it is given pay for it, more money may be to be got by allowing the privilege to two or more parties, than if it were confined to one.

But as there have been senses in which, and occasions on which, the half has been said to be more than the whole,—so are there in which the double may be seen to be less than the whole.

To refuse a hearing to either of two contending parties, to the advantage of the other, is that sort of practice, against which neither non-lawyers in general, nor even judges themselves, would be backward in bestowing the most vehement and unqualified censure. Why? Because no such thing is ever done.

But, to refuse a hearing to both parties—to refuse to hear either of them, so much as by a hired proxy (which after all, if the principal he not present, is not a hearing of the principal)—to refuse to hear either of them, even in that improper sense and in that inadequate way, till after the greater part of that evil has taken place, which, by a timely hearing of the parties themselves, would have been prevented,—this is what not only lawyers of all sorts, and especially such of them as are judges, are ready at all times to defend by all means whatsoever that are in their power, but even non-lawyers (such is the effect of custom and prejudice) to acquiesce in.

In Mexico, a rule was established, giving power to a certain person or set of persons in authority, on condition of pronouncing some word or other, translated by us into the word sacrifice, to murder any and as many persons as he pleased. In some newly-discovered island of the South Sea, the like rule has place, and is acted upon to this day.

In this country, this rule is looked upon as an improper one: nor, supposing a motion made for the establishment of any such rule, would so much as a single voice (it is supposed) be found to second it. Why? Answer: For three very good reasons:—1. Because it is established in a foreign country; 2. Because, in that foreign country, the manners and opinions are in a savage state; 3. Because it is not established in our own.

But, supposing this said rule actually established, and still in force, and a motion now made tending to the abolition of it,—would such a motion pass nemine contradicente? So far from it, that, if at all, it would not pass but at the end of a considerable number of years: during which, every session, would have been emptied upon it the whole quiver full of those fallacies which, having for their common property that of being irrelevant with relation to every proposition which they are employed to combat, would apply with equal force and propriety to a proposition for divesting a king of the prerogative of murdering an unlimited number of his subjects at his pleasure, and to a proposition for divesting a king’s nominees, under the name of judges, of the privilege of destroying every year, by a slow death, an unlimited number of those same subjects; having first brought them to ruin, under and by virtue of a violation of that primary principle of justice, which prescribes as the first step proper to be taken by a judge, the giving to the parties on both sides (with or without their respective agents) a real hearing in his presence.

[* ]Under the natural system, the importance of this use will in general be very inconsiderable. Why? Because, under that system, the vexation attendant on litigation is so inconsiderable.

Under the technical system, the importance of it would, for the opposite reason, be great: great in proportion to the vexation attached to the particular species of suit employed.

In the most vexatious of all suits (at least all English suits,) an equity suit,—in the instrument called a bill,a by which it is commenced, a statement of the existence of such previous demand is at least frequent, if not constant: not that, whether such demand was ever made or no, is a fact concerning which the draughtsman ever deems it worth his while to inquire. To the party, it is perfectly useless, the judge never taking any the slightest cognizance of it: the only use it is of, is to the partnership, by swelling the quantity of profit-yielding surpulsage. The charge is inserted under the mendacity-licence,—of which in its place. In a suit at common law, nothing is ever said about it.

[† ]In Sergeant Wilson’s reportsa we have a case, in which a widow, being illegally imprisoned, lay eight months in jail, from no other cause (as declared by the Lord Chief Justice) than that no judge knew anything about the matter. In the nature of things, cases where the like consequence is produced by the like cause, must be happening in every day’s practice; but, mere accident excepted, what is it that can ever bring them to light? For, of those who could remedy it, who is there that either knows or cares about it?

On this occasion, the observation made by the Chief Justice is worth remarking. “It was in some measure Mrs. Barker’s (the widow’s) own fault, that she was detained in prison so long as eight months; for that, if she or her attorney had applied to the Court of King’s Bench, or to any judge of that court, at his chambers, she might have been discharged out of custody within a day or two after she was arrested, upon laying her case properly before the court, or a judge.”

At the expense of a suit, in which the judge would have had his fees, the widow might have obtained earlier, what, at the like expense, she did obtain at last, an enlargement from an illegal imprisonment: to which imprisonment she never would have been exposed, had it not been a rule with learned judges wilfully to neglect (for the evident purpose of making such suits) a duty imposed upon all judges by the most obvious principles of justice and common sense—a duty from which no judge of the class of unlearned judges ever is exempted—viz. the duty of not punishing or plaguing men without suffering themselves to know anything about the why or wherefore. See Chap. XII. Decision without Thought.

The cause was tried by De Grey, Lord Chief Justice: his sympathy was excited by it: In whose favour? That of the widow by whom the eight months imprisonment had been suffered? No: but that of the attorney by whose malpractice it had been caused: he was an object of compassion. Why? Because no such offence as that of conspiracy had been proved upon him.

[a ]2 Maddock’s Chanc. p. 202.

[a ]3 Wilson, 368. Barker v. Braham and Norwood.