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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.

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.

The system of procedure—judicial procedure—the system of adjective law, is a means to an end. That end is, or ought to be, the execution of the commands issued, the fulfilment of the predictions delivered, of the engagements taken, by the system of substantive law: the system composed of all the other branches of the body of law put together.

The law respecting evidence is one branch of that system of adjective law: it therefore ought to be, and everywhere in some degree is, one part of the means directed and applied to the attainment of that end. In proportion to the steadiness and consistency with which it does act in subservience to that end, is its congruity, its propriety, its fitness, the claim it has to be approved of, and preserved unchanged.

With indisputable propriety may the fulfilment of the predictions delivered by the substantive branch of the law be spoken of as an end of justice. And why not rather as the end? Answer Because, though the principal, and the only direct end, it is not the only one. Vexation, expense, and delay—burthens pressing on the parties throughout every step of the course pursued for the attainment of that end,—constitute, in their aggregate, the price paid for the benefits they derive from the substantive branch of the law. To these certain evils, vexation, expense, and delay (burthens infinitely variable in their amount, but in some amount or other unavoidable,) add the possible vexation—the vexation which, where it does fall, falls on the defendant’s side only—the vexation which, in case of ultimate misdecision to the prejudice of that side, is produced by undue obligations imposed upon him: obligations of a penal or non-penal nature, according to the nature of the demand, and of the suit instituted in consequence—the burthen of punishment imposed on him who has transgressed no law; the burthen of satisfaction imposed on him who has borne no part in any damage that has been produced, or at least in any injury that has been done or supposed to be done the burthen of the obligation correspondent to, and inseparable from, the collation or recognition of some pretended right, which, though claimed by the plaintiff, and conferred on him or confirmed to him by the judge, is really not his due.

The quantity of vexation, expense, and delay, without which the course necessary to the execution of the article of substantive law in question cannot be pursued with effect,—the price thus necessary to be paid for the chance of obtaining the benefit in question,—does it exceed the value of that benefit, or rather of that chance? In such case the price ought not to be paid the law ought rather to remain unexecuted. The vexation and expense, without which the evidence necessary to the establishment of the plaintiff’s claim cannot be produced, does it exceed the value of that claim; the plaintiff being unable or refusing to make adequate satisfaction for it? In that case the plaintiff’s demand ought to remain unsatisfied in that untoward state of things (in itself, and laying out of the account the work of interested lawyers and misguided legislators, happily not a frequent one,) the best choice left to the legislator, here as elsewhere, is the least of two evils, one or other of which is inevitable. A competition has place between two of the ends of justice: one or other of the contending branches of the public interest must yield one or other of them must for the moment fall a sacrifice.

By laying a barrow-full of rubbish on a spot on which it ought not to have been laid (the side of a turnpike road,) Titius has incurred a penalty of five shillings. No man was witness to the transaction but Sempronius; and, in the station of writer, Sempronius is gone to make his fortune in the East Indies. Should Sempronius be forced, if he could be forced, to come back from the East Indies for the chance of subjecting Titius to this penalty? Who would think of subjecting Sempronius to the vexation?—who would think of subjecting Sempronius, or anybody else, to the expense?

Here and there a case may present itself, in which it may be matter of doubt on which side the balance lies, but in general there will be no difficulty all doubt will be removed by clear and indisputable principles. In each individual instance, to weigh mischief on one side against mischief on the other, where occasion calls for it, will be a task suitable to the station of the judge. To provide powers adequate to the taking of it, and acting in conformity to the result, will in every case be an attention suitable to the station of the legislator: an attention demanded at his hands by the indisputable dictates of justice.

In this instance we see an example of a case in which evidence ought to be excluded: in which (all ends taken together) the exclusion is called for by a due regard for the ends of justice: one case,—and it will be found the only one. This is, the case of preponderant inconvenience in the shape of vexation, expense, and delay: inconvenience preponderant over the mischief attached to a sacrifice of the direct ends of justice, the mischief produced by ultimate misdecision to the prejudice of the plaintiff’s side; or (what is equivalent to such misdecision) the mischief produced by an instance of the non-execution of some article of the substantive branch of the law; or (what is less frequent) by the imposition of some undue obligation on an individual standing on the defendant’s side of the cause, produced by the want of some evidence, which, had it been forthcoming, would have demonstrated the obligation to be undue.

Wheresoever the case thus described is realized, the exclusion may be pronounced, and, according to the principle of utility ought to be pronounced proper, legitimate: congruous, conformable, conducive, to the ends (understand always to the aggregate of the ends) of justice.

In every other case, the exclusion (I announce it not as a postulate, but as a proposition to be proved) may be pronounced, ought to be pronounced, improper, illegitimate: incongruous, unconformable, unconducive, repugnant to the ends of justice.

If the above positions be correct, the doctrine of evidence, in so far as concerns the question as between admission and exclusion, will be comprisable in a very narrow compass: in one general rule, with an exception for its limit. The rule will be,—Let in the light of evidence. The exception will be,—Except where the letting in of such light is attended with preponderant collateral inconvenience, in the shape of vexation, expense, and delay.

Let in the light of evidence. The end it leads to, is the direct end of justice, rectitude of decision. The consequence of the exclusion of it is ultimate injustice in respect of that end: if to the prejudice of the plaintiff’s side (by nisdecision or otherwise,) failure of justice; if to the prejudice of the defendant’s side, misdecision to the prejudice of that side, and consequent undue vexation and ultimate injustice: imposing on him, on the score of punishment or satisfaction, either the loss of some right, or some burthensome and painful obligation, to which it was not the intention of the substantive branch of the law that he should be subjected.

Let not in the light of evidence: not in every case, more than the light of heaven. Even evidence, even justice itself, like gold, may be bought too dear. It always is bought too dear, if bought at the expense of a preponderant injustice. Grant even that the dictates of justice were paramount to those of utility in its most comprehensive shape—that the sacrifice of ends to means were an eligible sacrifice—and that the aphorism, fiat justitia, ruat calum, instead of a rhetorical flourish, were an axiom of moral wisdom,—even thus, supposing the choice to be between injustice and injustice, the preferability of the less injustice to the greater would scarcely be contested.

But, in the cases above described, supposing them ever realized, the price paid for justice must, upon the very face of those cases as here described, be acknowledged to be uneconomical and excessive. Of the possibility of their being realized, we have seen already several anticipated exemplifications; we shall see them amply exemplified as we advance.

CHAPTER II.

DISREGARD SHOWN TO THE ENDS OF JUSTICE UNDER THE EXCLUSIONARY SYSTEM.

Of the ends of justice, under their principal divisions, a view has already been given: as likewise a view of the connexion that subsists between them on the one hand, and the arrangements capable of being taken for the exclusion of evidence on the other.

But, if this statement be correct,—under all established systems, the practice (for theory there exists nowhere any) will be found to be a tissue of errors and inconsistencies: compared with others, each system infinitely various—compared with itself, each system infinitely inconsistent.

But (it may be said) under all their varieties, these exclusions, thus universal, as you yourself admit, and even proclaim, does not their universality prove the prevalence of one common principle? This principle, then, has it not the universal voice of all mankind, or at least of the most civilized and intelligent among mankind, to sanction it, and attest the reasonableness of it?

Yes, indeed: it has that sort of sanction: its reasonableness is proved by that medium of proof, by which, till within this century or two, supernatural evidence of various kinds, evidence by duel, by ordeal, was pronounced superior in trustworthiness to all human or other natural evidence.

No, truly: the concord in this case is far from being alike real as in those. In substance, the mode of inquiry was in those instances the same: if between nation and nation there was a difference, it was confined to formalities, to unessential modes; here the arms employed by the combatants were of one sort, there of another sort; here a ring was to be taken out of bubbling, and supposed boiling-hot, water; there a party, supposed to be blindfolded, was to take a walk between two rows of heated, or supposed to be heated, ploughshares. But in the case of the exclusions put upon evidence, the agreement was rather in words than principles. One nation, or rather some one corrupt or lazy lawyer in that nation, called for exclusion on one ground; another lawyer, that is, the lawyer of another nation, called for it on a different ground: by each of these lawyers, the decision pronounced by the other was reprobated. Just as if there appeared in a cause a gang of lying witnesses, all contradicting one another, each giving a different account of the same business: they all agree, it may be said, for they all agree in lying—they are all liars. Look to words only, you may thus make harmony, in all cases, out of the most discordant elements.

In the established systems (for in one respect they will be found not discordant,) in the established systems, if non-exclusion be taken for the general rule, the exceptions must be searched for in very different sources from the only justifiable ones. Yes: in one respect they do agree; and it is this: that in no instance are the exceptions drawn from the source just mentioned. If at every other step the direct ends of justice are contravened, the contravention is gratuitous: at any rate, in no instance has it for its warrant and its cause a regard for any of the other ends of justice, the collateral ends: in no instance have men stopped to inquire whether the inconvenience inseparable from the execution of law, in the shape of vexation, expense, and delay, will or will not be preponderant when compared with the mischief attached to the non-execution or undue execution of that article of substantive law on which the suit has been grounded.

Various as are the exceptions taken in these systems to the rule of admission, they will all of them (unless here and there one should be found dictated by the mere force of blind and unaccountable caprice) be found referable to one or other of two leading terms: deception and vexation: anxiety, real or pretended, for the avoidance of deception, and consequent misdecision, on the part of the judge; anxiety, real or pretended, for the avoidance of vexation: anxiety to avoid giving birth to inconvenience in that shape.

Of neither of these fears (supposing that the conduct of the man of law has been governed by it,) of neither of these fears can it with propriety be said that it was directed to an improper object. In the first, we see an apprehension pointing to the direct end of justice: in the other, an apprehension pointing to one of the collateral ends of justice.

But, in so far as fear of deception was the actuating principle, we shall find in every case the measures dictated or supposed to be dictated by a regard for that object, altogether unsuitable, or rather directly repugnant, to the avowed purpose. And again, so far as fear of vexation was the actuating principle, we shall find the measures dictated and produced by that principle equally incompetent. The vexation—that vexation which was to afford a sufficient reason for the justification of direct injustice, for the contravention of the direct ends of justice—will be found to be a quantity either evanescent, or purely ideal, or, though real and considerable, balanced and overbalanced by a preponderant advantage inseparably connected with it.

Thus much for the cases which afford room to conceive that reason and utility have in any shape been consulted on the occasion of the exclusions that have been established. But the cases will be but too numerous and various in which the discovery of any the least colour or shadow of reason will be seen to be a problem altogether insolvable by the most penetrating and industrious eye.

In referring to these two heads (deception and vexation) the exclusions put upon evidence by the established systems,—what I mean is, not so much to vindicate the considerations which, in the minds of the authors, were actually productive of those several arrangements (a task in many instances by much too difficult for any human mind,) as, among the legitimate ends of justice, to bring to view that one, to which the arrangement in question, supposing it dictated by the ends of justice, bears the most obvious reference. For supposing the objects in question (deception and vexation) to have been really in view, the arrangements, with whatever sort of success, would at any rate have been directed towards the ends of justice; those of which deception, avoidance of deception, was the object, towards the direct ends of justice; those of which vexation, avoidance of vexation, was the object, towards that one of the collateral ends: in principle, the arrangement at any rate correct, howsoever in the application misguided and unfelicitous.

In regard to the exclusions here ranked under the head of vexation,—incongruous exclusions put upon evidence under the notion of avoiding to produce vexation,—the reality of that object, in the character of a final cause of the arrangement in question, will in many instances appear probable enough, or even indisputable. But howsoever the case may be in respect of humanity, small indeed is the wisdom that can reasonably be inferred from the regard thus paid to one of the ends of justice. Here, as elsewhere, so far as evidence is concerned, everything depends upon proportions. If the avoiding to produce vexation were the only object necessary to be regarded in legislation, no child in leading-strings would be unequal to the task. The result would be, not the putting an exclusion upon evidence in here and there an instance—not the shutting the door against evidence in the instance in which, by the arrangements in question, it was shut,—but the shutting the door against all evidence tendered on the side of the plaintiff, in whatever cause; or, to speak strictly, the abolition of the whole system of procedure, the abolition of all coercive laws.

To judge, therefore, whether, in the instance of a lot of evidence excluded on the score of vexation, the exclusion be warranted or unwarranted,—produced by a childish emotion, or by a considerate and manly regard for the ends of justice,—inquiry must be made whether the advantages attached to the act from which the vexation is seen to flow, have or have not been set against it on the opposite scale. Referring to the proper place for the details, to assist the conception of the moment let one example suffice. A witness being called on the other side, and standing in readiness to be examined,—that to put a question to him, the answer to which, if true, would have the effect of subjecting him to an obligation (a legal obligation, non-penal or penal,) would give birth to vexation in his breast, is not to be doubted. But in that vexation, great or little, is any sufficient reason to be found to warrant his being exempted from the obligation of making answer? By no means. The evil of the vexation, be it ever so great, is more than counterbalanced by the good flowing from the substantive law (coercive as it is,) by which the obligation is imposed. By itself the weight is great: but the weight in the other scale greatly overbalances it.

To this case of a spurious exception on the score of vexation, apply now the example above given of a legitimate exception on the same score, and observe the difference. By deposing to the rubbish, Sempronius, the East-India writer, would have given the public the benefit of the five-shilling penalty, but he would have retarded, to the amount of one knows not how many thousand pounds, the augmentation of his fortune. Place now on the carpet (instead of the future nabob, the East-India writer,) a malefactor, who, in consequence of his answers to the questions about the rubbish he is supposed to have seen laid on the road, comes to be convicted of a robbery and murder committed on that same road.

In this case, if the quantity of the vexation be the only object which the eye of the legislator is open to, how much greater the vexation than in the other! But, in the East-India writer’s case, the benefit of the five-shilling penalty is all that there was to set in the scale against the vexation: all the good that the case affords consists in the benefit of the five-shilling penalty: whereas, in the malefactor’s case, the good is composed of the chance of the benefit of the five-shilling penalty, with whatever benefit depends upon so much of the security afforded by the law against robbery and murder, to add to it.

CHAPTER III.

GENERAL VIEW OF THE MISCHIEFS OF THE EXCLUSIONARY SYSTEM.

Evidence is the basis of justice: to exclude evidence, is to exclude justice.

On the plaintiff’s side, in a suit of a criminal nature,—an excluding rule, as often as it has the effect of shutting the door against an article of true and unfallacious evidence necessary to conviction, operates as a licence for the commission of a crime.

In the exclusionary system may therefore be seen a fund of encouragement constantly applied to the production of all imaginable crimes.

On the plaintiff’s side, in a suit of a non-criminal nature,—an excluding rule, as often as it has the effect of shutting the door against an article of true and unfallacious evidence necessary to the giving effect to a rightful demand, operates as a denial of justice.

In the exclusionary system may thus be seen a fund of encouragement constantly applied to the production of injustice in all its shapes, to the prejudice of the plaintiff’s side: to the destruction of all those private rights which it has been the business of the substantive law to create, and for the efficiency of which it stands pledged.

On the defendant’s side, in a suit of a criminal nature,—an excluding rule, as often as it has the effect of shutting the door against an article of true and unfallacious evidence necessary to acquittal (evidence sufficient for conviction having been delivered on the other side,) operates as a licence for inflicting punishment upon the innocent on a false pretence of criminality.

In the exclusionary system may thus be seen a fund of encouragement constantly applied or applicable to the oppression of the innocent, by the infliction of punishment, in all its shapes, on persons in whose instance it is groundless and undue.

On the defendant’s side, in a suit of a non-penal nature,—an excluding rule, as often as it has the effect of shutting the door against an article of true and unfallacious evidence, necessary to a decision exempting him from the obligation sought by the plaintiff to be imposed upon him (evidence sufficient for a decision imposing that obligation having been delivered on the other side,) operates as a licence for imposing undue obligation in general, a licence to oppression by all imaginable wrongs other than on the score of punishment.

Examples: Exclusion put upon all persons of this or that particular description, includes a licence to commit, in the presence of any number of persons of that description, all imaginable crimes.*

In a law which requires two witnesses for conviction, is included a licence to commit, in the presence of one single person of any description, all crimes and offences whatsoever.

This licence we shall find constantly granted by Roman law, and occasionally by English: in the former by jurisprudence, in the latter by statutes.

Consult your lawyer, or your law books: note the description of witnesses (and a most multifarious and extensive list of them you will find,) by which, were it not for the exclusionary system, you transgression would be capable of being made apparent, but under which, be your transgression what it may, you are safe.

Such is the invitation, such the encouragement, given by the exclusionary principle to dishonest men of all descriptions; and, mutatis mutandis, on either side of the cause.

If either self-conscious injustice, or its chief instruments, mendacity and insincerity, belong to the category of vice,—in the technical system in every country to a certain degree, but in England to a most pre-eminent degree, will be found an ever open school of vice—a source of moral corruption, pouring itself forth in a copious and uninterrupted stream throughout the mass of the people. By example, by reward, by compulsion, by every means possible or imaginable, we shall see (every man does see it that does not shut his eyes against it) this most mischievious of all vices propagated under the shelter of the technical system, propagated by the professed and official guardians of the public morals: and, among the instruments of this disastrous husbandry, are to be found some of the most efficient of the evidence-excluding rules.

From the above description of the nature of the mischief, may be deduced the description of the persons interested in the pushing it up to the highest possible pitch: malâ fide suitors on both sides, including malefactors of all sorts, their accomplices and well-wishers: men of law, as being the natural allies of malefactors and other malâ fide suitors: under the technical system, judges, and other official as well as professional lawyers: professional lawyers under any system.

Exclusion (as will be seen) is one of the grand engines by the help of which corruption has been enabled to gain its ends: and by which arbitrary power, with the jus nocendi it enforces, has been acquired; that faculty, the acquisition of which is so delightful to the human heart, whether, on the particular occasion in question, there be or be not a disposition to employ it.

An engine of power, good, but how of arbitrary power? By means of what has been already described under the name of the double-fountain principle. Exclusion of evidence (barring the few exceptions of which account will be taken) is contrary to reason. But, as often as a judge has recourse to reason, he may be pretty sure of having the opinion of non-lawyers on his side. Establish, then, the irrational excluding rule, you have two fountains, from the one or the other of which you draw, as on each occasion is agreeable to you. Would you serve the plaintiff? draw from the fountain of reason: would you serve the defendant? draw from the fountain of the established rule, store decisis. Secure of eulogium either way, the ground of it is at your choice. Adhere to the rule, you have the praise of steadiness, and superior probity: depart from it, you have the praise of liberality, and superior wisdom. Adhere to it, you have the rigorists for your applauders; depart from it, you have for the same purpose the liberalists.

If it be in the nature of the exclusionary rules to save the judge from deception oftener than it leads him into it, all this mischief may be found to be made amends for, and outweighed. Whether it be in the nature of such an arrangement to be productive of any such advantage, is a question that will be considered in its place.

CHAPTER IV.

DICTA OF JUDGES ON THE EXCLUSIONARY SYSTEM.

It may be a spectacle not altogether uninteresting to the reader, to see a picture of the exclusionary system, drawn by the hands of titled and official professors: especially should it happen to be a matter of interest to him to consider, that, were the entire system of jurisprudential law to be represented in the character of Hercules, this member of it might be considered as his foot: ex pede Herculem. From this one limb, no very inadequate conception may be formed of the beauty and proportion of the whole. He to whom it may be a matter of interest or curiosity to contemplate it in that character, need not fear to find himself in any such perplexity as the employer to whom the architect presented a brick as a sample of a house.

In the few specimens, which the reader will now be enlightened with, of the wisdom of English sages, he will see at one and the same time how impossible it is to know how anything is, and how certain it is that everything is, as it should be. He will see at one view a specimen of the discernment, the security, and the consistency, which shine forth with perpetual and undiminished lustre from those exalted stations: and (as in the case of the royal sun of the seventeenth century) he may propound to himself for meditation, or to his neighbour for debate,—of which of this cluster of virtues is the splendour most conspicuous.

I. Peake (Edit. 1801,) 152. Lord Kenyon, C. J. “All questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property, are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded: they are not rules depending on technical refinements, but upon good sense; and the preservation of them is the first duty of judges.” 3 Term Rep. p. 707.

II. Peake, 159. The same Lord Kenyon, C. J. “I premise with mentioning what was said by Lord Mansfield on this subject, that ‘the old cases, upon the competency of witnesses [i. e. upon the question whether they shall be admitted or not admitted,] have gone upon very subtle grounds.’ ”

III. Ashhurst, J. “There is so great a contradiction in decisions respecting the boundaries of evidence, that I rather choose to give my opinion on the particular circumstances of the case, than to lay down any general rule on the subject.” 3 Term Rep. p. 27.

IV. Buller, J. “This case involves in it the question which has been so repeatedly agitated in courts of law, what objections go to the credit, and what to the competency, of the witness:” [what objections have the effect of excluding the witness and what objections have no effect at all;] “than which no question is more perplexed.” Ib. on the same occasion.

V. Grose, J. “The distinction between competency and credit is by no means accurately settled: in many of the books, the shade between them is so light that the boundaries of either can hardly be perceived [i. e. that it can hardly be known whether the witness is to be admitted or excluded.] But in all the books which treat of evidence, there are certain technical rules laid down which are highly beneficial to the public, and ought not to be departed from.”* 2 Term Rep. p. 268, anno 1788.

VI. Speaking of the question, whether, in a criminal cause, the testimony of a proposed witness, having an interest, which may be affected by his testimony, in a future contingent civil cause relative to the same transaction, shall be admitted;—“The cases on this point,” says Mr Peake, “are so contradictory, that it is impossible to attempt to reconcile them.” Thus far the institutionalist. In such provoking colours does the absurdity of this learning sometimes show itself, that the most wary and devoted votaries of the jurisprudential Thenns are sometimes off their guard.

Observe now what follows in the preface (which is always the last part printed) of the same really useful and instructive treatise, in comparison with which the performances of the two titled institutionalists sound like the drivelings of an old woman in her dotage.

VII. Peake. Preface, v. “The chapter on parol testimony also is in a great measure new: for the rules of evidence in this respect have been so much altered, and so much light has been thrown on them by decisions, that comparatively little is to be collected from ancient books that is satisfactory on the subject. It was said by Lord Mansfield (I Blac. 366,) with that force of expression peculiar to great minds, who exercise the right of thinking for themselves before they assent to the authority of others—‘We do not sit here to take our rules of evidence from Siderfin or Keble.’ Rejecting those cases which were not supported by principles, that great judge established a system for his successors to follow; and competence and credibility, so frequently confounded together, are now accurately defined and well understood.

Accurately defined and well understood!—these very objects, in the decisions concerning which, in the declared opinion of one of the noble and learned lord’s colleagues, there was “so great a contradiction;” and at that same time, in the opinion of another of those his learned colleagues, a degree of perplexity than which a greater is not to be found anywhere. Such is the sort of matter endeavoured to be passed upon mankind for accurate definition and good understanding by men of law! Thus it is, that, as far as they have their wish, every intellectual object that comes within the sphere of their activity is defined and understood.

Understood? to be what? The answer is already given—given, and by the same hand:—to be (what they are) “so contradictory that it is impossible to attempt to reconcile them.” The application of the observation has there indeed its limits: but whether any such, or any other, limits to it were necessary, the reader will soon be enabled to judge.

In those seats of learned wisdom, what should a man do, were his longing ever so anxious to escape from praise? “We do not sit here to take our rules of evidence from Siderfin or Keble,” says Lord Mansfield: “and here,” says the commentator, “we see the force of expression peculiar to great minds, who exercise the right of thinking for themselves.” But, my good lord, if not from the decisions of preceding judges, as reported by any man whom chance has raised up to report them, from whom would you take your rules? From your own secret determinations, never communicated, and impossible to be conformed to, because impossible to be known? Think for yourselves, and welcome: thinking for yourselves, you think for us: but at least render it possible for us to know what you think, before you ruin us for not having conformed to it.

CHAPTER V.

SPECIES OF EXCLUSION.

A lot of evidence which one of the parties would wish to see produced, fails of being produced. Whence comes this failure? Is it that it might have been forthcoming, but the law or the judge will not suffer it to be produced? In this case, the exclusion put upon it may be said to be positive. Is it that it might have been forthcoming, but the law or the judge withholds any of those aids, any of those powers (coercive or remunerative, but more especially coercive,) which in the case of this or that other article of evidence are not refused, which are necessary to its being forthcoming, and for want of which it fails of being so? In this case, the exclusion may be said to be negative.

Supposing the exclusion improper, in the former case the injury done is more palpable, but in the other is not less real or extensive.

Positive or negative, at whose instance is the exclusion put upon the evidence? If the person whose evidence is in question be a party in the cause, then come the questions—Is it at his own instance; or at that of a co-party on the same side; or at that of the party, or, if several, of a party, on the opposite side? If he be an extraneous witness, then come the questions—Is it at the instance of a party on the same side of the cause as that of the party by whom his evidence is or would have been called for; or at the instance of the party, or a party, on the opposite side; or at his own instance; or at that of a third person, a stranger to the cause; or, in each respective case, at the joint instance of two or more such persons? By one person the exclusion may be called for on one ground, by another on another ground: on one ground it may be improper, on another not.

The exclusion put upon the evidence, is it put upon it at all events, or only in certain events? or, what comes to the same thing, are there any events in which it may be taken off? Hence we see another distinction: absolute exclusion, conditional exclusion.

By the wonder-working hand of logic, conditions are changed into limitations, limitations into exceptions. Improper if absolute, the exclusion may, by the conditions, the limitations, the exceptions, be brought within the pale of propriety; by its tendency to save collateral inconvenience, delay, expense, or vexation.

Of possible conditions, the number is infinite. Distinguished from the herd, stand those which respect the existence of other evidence to the same facts.

In some instances, the evidence in question is excluded, unless some other evidence is produced likewise. Exclusion nisi alia, or si non alia (probatio, understood.)

The most common as well as important case, is where the other evidence, thus made requisite, is required to be produced on the same side of the cause. Exclusion nisi alia ex eodem (latere, understood.)

Of this case an example is presented by the rule of law which requires two witnesses. Every man is excluded—every man, be he who he may, unless he comes with another in his hand. Two propositions are here assumed: All men are liars, and all judges fools. Without the second, the first (we shall see) would be insufficient.

Another case is, where the evidence thus made requisite is required to have been produced (or at any rate to be about to be produced) on the opposite or adverse side. Exclusion nisi alia ex opposito, or ex adverso.

To this head may be referred the exclusion put upon counter-evidence, in the case where the primary evidence, by which the demand for it would have been produced, fails itself of being produced. If the evidence supposed to have been prepared against the character of Testis fails of being produced, any evidence that may have been prepared in support of the character of the same witness, will naturally be excluded. And so in the case of alibi evidence. Failing, on the other side, the evidence which supposed the man there, you have no need to prove him elsewhere.

In every case of conditional exclusion, a case of absolute exclusion is included. By the condition, the limitation, the exception, the case is divided into two cases: in one, the evidence in question is not excluded; in the other, it is. To the first of the two, the discussion concerning the propriety of the exclusion is confined.

Where no condition, limitation, or exception, is spoken of, the exclusion must be understood to be absolute.

In other instances, the evidence is excluded, if there be other evidence: not excluded, unless there be other evidence (understand, of this or that particular description.) Exclusion si alia.

If the case afford other evidence, and that other evidence sufficient, and this sufficient and admitted evidence not attended with a mass of collateral inconvenience, preponderant over that with which the delivery of the excluded evidence would have come accompanied,—the exclusion, it is plain, can do no harm. To this head belongs (as we shall see) one of the two classes of cases in which the exclusion put upon evidence is proper and justifiable.

The party whose interest, according to his conception, would be served by the evidence, insists upon it. The collateral inconvenience with which it would be attended, is not noticed by him, or not regarded by him, or is perhaps the very and only cause, the final cause, of the demand he makes of it. But by the judge it will be regarded, and regarded with other eyes.

To this head will be found referable, kinds of evidence in great masses, against which, with more or less reason, the door is, or has been proposed to be, shut:—1. Inferior makeshift evidence excluded, or proposed to be excluded, in consideration of ordinary regular evidence from the same source; 2. Ordinary excluded, in expectation of super-ordinary, more satisfactory and persuasive, evidence, from the same or other sources; 3. Where the demand for it is created by some other lot of evidence on the same side or on the opposite side of the cause,—any sort of evidence excluded; viz. in the case where the evidence by which (had it been produced) the demand would have been created, fails of being produced.

So far as the supposition of better evidence is verified, the inferior would produce the bad effects of irrelevant evidence: so far as the supposition fails of being verified, certain misdecision, as certain as in cases of deception by bad and false evidence, is the result.

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.

Of the production of evidence, pecuniary expense is an ordinary vexation,—in some shape or other, in some degree or other, an inseparable, consequence. To warrant the production of any lot of evidence, the necessity of it to some one of the other purposes of justice (ultimate decision, when due, on the plaintiff’s side, ultimate decision, when due, on the defendant’s side) is an indispensable condition. A lot of evidence is proposed to be produced. The advantage proposed from the production,—is it imaginary?—is it outweighed by the inconvenience? In either case, exclusion is the result.

The cases, then, in which exclusion may be proper, may be distributed under two grand heads:—

I. To the first head may be referred, those in which no mischief at all can result from the exclusion.

If this be the case, it must be either—1. because the suit itself is of such a nature that no good can come from it; or, 2. because, though the part taken by the party by whom the evidence is called for be necessary to justice, the evidence in question is not necessary to his making it good. The plaintiff being in the right, the evidence is not necessary to the establishment of his demand; or, the defendant being in the right, the evidence in question is not necessary to his defence—to the saving him from that burden which the demand seeks to throw upon him.

To the first of the two divisions belong all those cases in which obtainment of the information sought for, is sought for, not in the character of a means, but in the character of an end: where, instead of calling for the evidence for the purpose of the suit, the suit itself is instituted for no other purpose than that of coming at the evidence: coming at the information wanted, by demanding it and employing the hand of the judge to extract it by force of law, in the character of evidence. The suit in this case is what has been called a feigned suit, or might better be called a sham or fraudulent suit; for the suit itself is real, though the object of it be disguised.

On this occasion, however, if the exclusion be to be justified, it must be understood that the party (say the plaintiff) has no right, on any score, to the information called for by him on the score of evidence: which is as much as to say, that he could not have obtained it by a suit professedly directed to that end. For if, having a right to it, he obtains it like a corollary in mathematics, in the form of evidence called for on the occasion of another suit, so much the better: the business of two suits is done in one: two birds are killed with one stone. If, in prosecuting for one crime or one wrong, you get evidence that enables you to punish, or compel satisfaction, as for another, so much the better: out of two lots of vexation, expense, and delay, one is saved.

Thus to the man of reason: not so to the man of law. To him it will be downright cheating—cheating him out of that part of the expense which becomes profit in his hands. If, of the evidence which the case affords, there be any material part behind, there wants no other ground for postponing the decision, though the suit be a single one. But if, of the mass of evidence sufficient for warranting a dozen decisions, in allowance or disallowance of so many different demands, the whole be brought forth on the occasion of one demand,—the controversy is as ripe for the dozen decisions in this case, as for the single decision in the other. But this sort of arithmetic does not accord with the books of the man of law. The ends of justice only are served by it : the ends of judicature are sacrificed by it.

To the other division belong all those cases in which, howsoever it happens, the information tendered or called for in the character of evidence, is not necessary to justice: it is irrelevant, or, though relevant, useless, because there is enough without it, whether from a different source, or of a better kind from the same source; or whether there be enough without it or no, it is still useless, because sure to be refuted or outweighed by other evidence.*

In all these cases, as in the former, if the evidence in question were produced, the vexation, expense, and delay, attendant on the production of it, would be so much pure mischief, unpaid for by any advantage. There is more or less to put in one scale; there is nothing to put in the other.

II. Thus much for the first principal head. To the other, belong all the cases in which there is more or less to put in each of the two scales: in the one, the mischief from the exclusion of the evidence (a mischief, in the composition of which, misdecision, or the danger of it, will in general be either the chief or the sole ingredient:) in the other, the mischief from the admission of the evidence; a mischief which resolves itself into vexation, expense, and delay, jointly or separately, as already so often mentioned.

In all these cases, we may see work, more or less, for the judge: for the legislator, none: at least if, in the drawing of his first lines, he has wrought with a skilful hand. In every instance there is a question of fact to be tried; in no instance need there be, ought there to be, any question of law. Understand, any new question of law, created by the arrangements here proposed to be made, relative to exclusion and admission: for the question, whether a man has a right to the information on any other score than that of evidence (evidence in relation to a different suit,) is indeed professedly a question of law, but a question supposed to have been already settled, on its proper grounds.

I. First grand and proper head of objection to the admission of the proposed evidence. The information is not really wanted as evidence, and is such as the party has no right to on any other score. Or, though called for under the notion of its serving as evidence, it is not capable of being of any use.

Questions for the consideration of the judge:—

1. Has the party a right to call for the information in question, by a suit on purpose, having that object and no other? A question of law; but supposed to be already settled.

2. The evidence proposed for delivery, is it necessary to justice? Is it relevant? Is either party in want of it? To either party is it capable of being of use? Questions which are, all of them, questions of fact: questions upon which no light can be thrown by reference to rules of law, deduced or deducible from anything that has been done in any preceding cause.

If the answer to these several questions be in the negative, there is no account to be taken of vexation, expense, and delay. To some amount, inconvenience in all these shapes cannot but be attendant on the production of the evidence: but, as to the quantum, it is needless to inquire, since, for the purpose of the exclusion, there is sure to be enough; there is nothing to set against it.

II. Second and last grand and proper head of objection to the admission of the proposed evidence. The delivery of it is attended with collateral inconvenience, in the shape of vexation, expense, and delay, to an amount greater than the advantage derivable from the admission of it; that is, than the mischief, in the shape of danger of misdecision, attendant on the exclusion of it.

Questions for the consideration of the judge:—

1. Amount of the mischief of misdecision (or, what comes to the same thing, failure of justice for want of decision.) This depends upon the nature and importance of the cause: its nature, whether criminal or non-criminal; its importance,—if criminal, measured, on the side of the public, by the magnitude of the mischief—on the side of the defendant, by the magnitude of the punishment: if non-criminal, measured on both sides by the value of the benefit and burthen at stake, taking into account the circumstances influencing sensibility on both sides.* This will be at any rate a question of fact, including or not including questions of law, according as the legislator has done or left undone, done well or ill, the duty of giving a complete catalogue and set of definitions of the several crimes, with their respective punishments, of the several sorts of rights, with the several modes of satisfaction attached to infringement in each case. But, be there ever so much of law, it will be a sort of law the demand for which is to be set down to other accounts, and not to this.

2. Amount of the danger of misdecision; i. e. of the probability of misdecision, considered as liable to result from the exclusion proposed to be put upon the evidence: this will at any rate be a pure question of fact.

Under each of these several heads, five propositions have presented themselves as true:—

1. That, on each of the grounds indicated by these heads, cases may arise in which, whatever mischief may result from exclusion, a greater mischief may arise from non-exclusion: a mischief, viz. in the shape of the vexation, expense, and delay, to which, separately or in conjunction, it may happen to be inseparable from the admission of the evidence.

2. That, between the cases in which the quantities on the one side are the greater, and the cases in which the quantities on the other side are the greater, the separation is not in general (if indeed in any instance) so clear, as to be capable of serving with advantage as a foundation for any general rules.

3. That therefore it is in all these cases incumbent on the legislative authority to leave, or rather to place, in the hands of the judicial, such a latitude of discretionary power, as shall enable it to form the estimate on both sides, and thence to draw the balance in each individual instance, on the occasion of each individual suit.

4. That, inasmuch as on these grounds general rules cannot to any good purpose be laid down in the way of statute law, by the legislature itself—by the only authority avowedly and directly competent, at any given point of time, and of its own motion, and by its own authority, to lay down general rules,—much less can any such rules be laid down, to any good purpose, in the way of jurisprudential law, by a man exercising, under the mask of the judge, the authority of the legislator; professing obedience, when he is exercising power; pretending to find ready-made—made already by an imaginary being, the law, the very law which he himself is making at the time.

5. That, to obviate this propensity to do by bad means that which on this occasion ought not to be done by any even the best means, the legislator ought not to content himself, on this occasion, either with simply abstaining from tying up the hands of the judge, or even with committing to his hands the requisite latitude of discretion in express terms; but that it will be further necessary expressly to declare, that in no instance shall the judge, on forming his decision for the admission or exclusion of the evidence in that individual cause, make or admit of any reference to what may have been done by any other judge, or even by himself, in any preceding cause: any more than a jury does, in giving damages for a trespass against person or goods: for that, in these cases, the path of precedent is the path of constant error.

Of the absence of the discretionary power here contended for, what is the consequence? That the chances against right decision will be all along as infinity to one; in a word, that the decision pronounced will be almost always wrong and mischievous. The ground of decision in each case will be, not the circumstances of that individual case, not the proportions between the quantities in that case, but the circumstances of, the proportions between, the quantities in some other case: some other case, in which they have but one chance against an infinity of chances for not being different from what they are in the case in hand.

In a word, in a case of this description, the looking to precedent for a rule would be exactly as incongruous and mischievous as if, on an account between A and B, the balance were to be deduced, not from a comparison of the sum of the items on one side with the sum of the items on the other, but by copying the balance of a former account, in which the items, as well as the persons, were all different: an account between C and D.

In other words, and those more familiar to English ears, the question as between admission of the evidence on one hand, and exclusion on the ground of vexation, expense, and delay (jointly or separately,) on the other, ought in every instance to be treated as a question of fact, in no instance as a question of law: and accordingly it should be the special care of the legislator, by apt prohibitory words, to make sure, as far as it depends upon him, that no question of law shall ever be made of it.

CHAPTER II.

EXCLUSION ON THE GROUND OF VEXATION, IN WHAT CASES PROPER.

§ 1.

Modifications of which vexation, considered as a ground for excluding evidence, is susceptible.

The idea of vexation, judicial vexation, is a most extensive one: punishment itself—punishment in all its modifications—is but a modification of it.

Vexation is evil, any evil, produced by the hand of law: if with a direct intention (ultimate or not ultimate) the evil comes under the name of punishment: if not with a direct intention, whether with or without an indirect intention (which is as much as to say, with or without a prospect of this result, in the character of a consequence of the act of power exercised,) it then comes under the notion, not of punishment, but of vexation.

From the acts done, with or without necessity, in a course of judicial procedure; and in particular from the acts done for the purpose of the obtainment and delivery of evidence,—vexation (it will be seen) is liable to be produced in the breasts of persons of various descriptions, implicated habitually or occasionally in the juridical transactions:—1. Parties; 2. Witnesses; 3. Third persons; 4. The public at large; 5. Professional lawyers, in the character of assistants to the parties; 6. Judges, and the official lawyers under them.

As to the vexation considered as liable to fall upon the parties in the mere character of parties, it belongs not to the present purpose. But a party, whether at his own instance, or at that of an adversary or a co-party, is liable to be received in the character of a witness: received to give information relative to the matters of fact in question, just as it might happen to an extraneous witness to do. It is in this quality, and this alone, that any vexation to which it may happen to him to stand exposed, is to the purpose here.

I. Of vexation by reason of attendance, the evil will not, in a direct way, naturally fall on any other person than the proposed witness.

In the character of a ground of exclusion, it therefore has no place, if, notwithstanding the vexation, the proposed witness, by his own consent freely and fairly obtained, delivers, or is ready to deliver, such his testimony.

No more has it, in the opinion of the judge, if a compensation, such as in the opinion of the judge is an adequate one, be tendered to him: and in this case there is nothing which should render the compensation incapable of being rightly estimated, more than in a multitude of other cases in which such estimation is performed in every day’s practice.

In a remote way, it may however happen that the evil of vexation by reason of attendance shall fall on persons other than the proposed witness.

One example is, when, in consequence of the evidence of the proposed witness, it becomes necessary to the party against whom such evidence makes, to oppose it by counter-evidence, such as otherwise would not have been produced. In this case, to any vexation pressing on the proposed witness, must be added the vexation attached to the delivery of such counter-evidence: which vexation (it being supposed to be of that sort which attaches on attendance) will, if uncompensated, rest on the shoulders of the counter-witness; if compensated (viz. at the expense of the counter-party,) upon those of the counter-party at whose expense it is compensated.

Another possible example is this:—Over and above any vexation pressing upon the proposed attendant witness himself by reason of his attendance, some vexation (some positive loss, for example, or loss of an opportunity of gain) may befall some third person, by reason of some connexion which his interest has with the attendance of the proposed witness at another place. An inconvenience of this sort will, to the extent of it, form as substantial an objection to the delivery of the evidence, as if the proposed witness were himself the individual suffering under it. But, in this case, the difficulty of proof, where the mischief exists, will naturally be more considerable; as likewise the danger of deception by fallacious evidence, where the evil has no real existence.

In a mass of vexation produced by reason of attendance, four branches will in almost every instance be distinguishable: four branches, producible respectively by the four following causes:—

1. Journey out, to the seat of judicature; viz. from the spot or spots at which, had it not been for the obligation of the attendance, the witness would, during the length of time consumed by the attendance, have been stationed. Of this branch of the vexation, the weight is of course variable ad infinitum,—having no other limits than those of the globe of the earth itself. Where the distance is considerable, this branch of the vexation will naturally be accompanied with the obligation of pecuniary disbursement: of which elsewhere, under the separate head of expense.

2. Attendance in court (i. e. in the presence of the judge by whom the evidence is received) during, or for the purpose of, the delivery of the evidence. If, the witness being sick in bed, the judge, for the purpose of receiving his testimony, visits him at his bed-side, his chamber becomes thereby, to this purpose, a court of justice.

3. Demurrage. Attendance in the neighbourhood of the court, for a length of time frequently uncertain—hours, days, or even weeks—that he may be in readiness to pay his attendance in court, when the time comes for the delivery of his evidence.

4. Journey home, or from the seat of judicature; viz. to the spot which, had it not been for the fulfilling of the obligation thus imposed on him, he would at that time have occupied.

II. Vexation by reason of disclosure, may fall to the charge of any person or persons to whom it may happen to sustain inconvenience in any shape from the disclosure of any matter of fact capable of being disclosed by delivery of evidence; which is as much as to say, any sort of fact whatsoever.

These persons may be—1. The proposed witness himself, or persons specially connected with him, whether in the way of self-regarding interest, or of sympathy; 2. Other individuals at large; 3. The public at large: including the members of the governing body, considered in respect of such their public capacity.

For the different shapes in which vexation, in the case of an individual (the proposed witness, or any other,) may assume, look to the shapes in which injury may display itself, corresponding to the possessions in respect to which injury may befall him; viz. person, property, reputation, condition in life.*

Facts, from the disclosure of which it may happen to the public at large, or to government, in respect of the public interest, to receive harm, may be comprised under the general denomination of state secrets.†

For the respects in which it may happen to the public at large to experience vexation from this source, consult the catalogue of public offences.‡

In respect of that branch of the vexation by reason of attendance which consists of attendance in court, the witness has as many co-sufferers as there are persons of other descriptions on whom the same duty is imposed: the aggregate mass increases, consequently, with the number of these persons.

Among these persons must be distinguished—1. The professional assistants so attending for the several parties; 2. The judge or judges so attending, with his or their official subordinates.

§ 2.

Vexation to the witness, or to persons at large, in so far as affected by his testimony, how far a proper ground of exclusion.

Where the vexation, in all shapes taken together, that would result from the delivery of the evidence in question, constitutes a greater evil than the evil that would result for want of the evidence, the evidence in question ought not to be delivered. In the opposite case, it ought to be delivered, and if not about to be delivered without compulsion, compelled.

To determine the preponderance, as between the evil (the vexation) by delivery of the evidence, and the evil (unjustice or danger of injustice) for want of the evidence, belongs of course to the legislator: in so far as, in the situation in which he acts, it lies within his power to make such an estimate as shall prove a just one in all individual cases. Optimus legislator qui minimum judici relinquit.

In so far as it lies not within the power of the legislator to form any such estimate, he ought to invest the judge with the power of forming an estimate for that purpose in each individual case.

So little can be done in this way with propriety by general rules, that the first and fundamental rule should be that which gives the requisite latitude of power to the judge: in relation to which, the limitations, if any, which it may be thought proper to apply to that power (i. e. where the legislator thinks fit to take the determination upon himself,) will come in afterwards as exceptions.

If the suit itself is instituted for no other purpose than that of procuring the disclosure (the disclosure not being intended to be made use of as evidence in any other suit,) there is not, in fact, any demand for the disclosure in the character of evidence. There is no real suit, at least no justly-grounded suit, for the purpose of which the disclosure is called for, to any such intent as that of its serving in the way of evidence. The suit is a feigned suit; an attempt to impose unlawful compulsion upon the witness, making the judge the instrument of it—making him lend his power in this way to a purpose to which it was not intended, either by himself or by the legislator, that it should be made subservient. In this case, the vexation, whatever it be, has no benefit to weigh against it in the scale—no such benefit, as the power of the law, applied in the way of judicial procedure, was intended to produce.

Let the compulsory process which the judge has the power of applying to a proposed witness for the extraction of his testimony, be the sort of torture applied to produce the pretence of unanimity in an English petty jury; viz. keeping him in a state of imprisonment, without meat or drink, and so forth. Let the fact, the disclosure of which is thus endeavoured to be obtained, be a secret in trade: understood or not understood in that character by the proposed witness; possessed by some other person, a manufacturer, and constituting his only source, and that an ample source, of livelihood. Were the disclosure compelled, and compelled by this means, here would be two persons, with a distinct injury inflicted upon each: on the manufacturer, wrongful interception of pecuniary gain, equivalent to wrongful imposition of pecuniary loss; on the witness, unlawful compulsion, by fear of corporally afflictive imprisonment. Just as if the plaintiff had got the witness into a room, and there kept him locked up without food and so forth, till he discovered what was wanted.

Such would be the consequence, if in lending his sanction to contracts (thereby adopting them, and converting them into so many particular laws,) the legislator were to include wagers; omitting to make an exception in respect of wagers having for their object the giving effect and impunity to the sort of injury just above described.

Two leading cautions present themselves as proper to be submitted to the legislator: the first tending to enlarge the sphere of exclusion on this ground—the other to contract it.

I. Fancy not, that, by the regard due to justice, you are bound to lay down any such unlimited rule, as that, on every occasion, every man has a right to the testimony of every other man, without regard to consequences. Fiat justitia, ruat cælum, might lead you to this, if, as they are but too apt to be, the flourishes of orators were to be taken for inviolable rules.

Observe one consequence: all secrets then are at an end. From all those weaknesses, the mischief of which results rather from divulgation than from commission, malignity or idle curiosity tears the veil: the absolutely immaculate, if such there be in the world, excepted, all reputation is at an end. All that ill-humour, which, had it not been dragged forth into the light and air, would, like embers under ashes, have died away in the bosom in which it was kindled—died away without further consequences,—all this magazine of malignant combustibles, being dragged forth into the light, blazes out and kindles into quarrels.

From this source of unfathomable mischief, states are no more secure than individuals. All cabinets, all war-offices, are laid open: the most vulnerable part of each weaker state laid open to each stronger state which, whether in a state of actual or only premeditated hostility, lies in wait to take advantage of it.

Mischief enough without doubt: but by what means producible? Oh, for the means, nothing can be more simple. They have been invented; they have been practised: nor yet altogether without success. Lay a wager. Would you know the sex of this or that person?* Would you know the use or the uses that he or she has made of it?† Would you know to what happy exertion of invention your too successful rival owes his present opulence?‡ Would you, for the benefit of your liberal employer on the other side of the frontier line, know in what part of it the magazines of your own state are empty, in what other quarter such as are full may be fired to most advantage?∥ Here are your means. You and an associate of yours lay a wager: one, that the matter in question lies or lay in one way; the other, that it lies or lay in the opposite way. To determine this wager, you call in as witnesses all persons whose situation and connexion have placed them in a way to know. In a word, you take in reality that sort of course which in England the lord high chancellor forces you and your adversary to say you had taken (though it is no such thing) on pain of seeing justice denied to that one of you to whom it is due.

II. The opposite caution will not require many more words.

On the score of vexation, do not set down on the side of mischief (unless on the side of advantage you set down a sum much greater,) the certain or contingent result from any disclosure by which it may happen to the witness, or anybody else, to be subjected (whether in the way of satisfaction or even of punishment) to any legal obligation: or (what is the same thing in other words) by which the law may come to receive its execution: by which the predictions and engagements taken by the substantive branch of the law, may come to be fulfilled.

Be the amount what it may, all such vexation is overbalanced. An assumption to that effect must in every case be made. If the vexation be not overbalanced, the fault lies in the substantive branch of the law: in that part of the law by which the obligation is imposed: it is to that branch of the law, and that alone, that the remedy should be applied. The prediction made by the substantive branch of the law should be recalled, not disfulfilled; the engagement taken by it dissolved, and violated.

To establish as a sufficient reason for the exclusion of the evidence, any vexation liable to result from it in this shape, is exactly as unreasonable as in an account current it would be to set down on either side a debt already paid and overpaid.

The tendency of the evidence, is it to cause some other debt to be paid, which otherwise might not have been paid, or of which payment might not otherwise be obtained so cheaply or so speedily? So much the better. Is it to cause some other offence to be punished, which otherwise might never have been punished, or not so cheaply or so soon? So much the better. In both cases, justice is done in two causes, at the expense of one.

Upon the whole, then, let it be understood that, whenever the vexation that might be produced by the delivery or receipt of the evidence in question is stated as affording an adequate reason for the exclusion of it (i. e. as outweighing the mischief that would result from the exclusion of it,—viz. the misdecision,) the vexation must be understood to be pure, and not having any such counterbalance to it as above-mentioned.

Yet it is in the case where it is thus overbalanced, that English lawyers make it a matter of pride and glory to carry it to account. On the other hand, where it has nothing at all to balance it, how often shall we not see it left out of the account altogether, as if no such mischief were produced.

Take for a feigned case, one that till the other day was in part a true one. A catholic priest, saying mass—that is, discharging the indisputable duties of his office—in England, is liable to be hanged.* Delivering his testimony on a dispute about an affair of a few shillings, in which he has no concern, questions are put to him, the answers to which, if true, will, with a force sufficient for conviction, prove him to have committed the act thus convected into a crime. The vexation that would thus befall him, does it constitute a sufficient reason for stopping the mouth either of the witness or his examiner? By no means. The law which attaches this penalty to the performance of that religious duty, so long as it continues on the statute-book, must, to this as well as every other purpose, be taken for a good law; and fit and proper to be executed, as well upon the ground of this as of any other evidence. The law shall be as bad a one as it pleases the reader to suppose it. But in whose mouth does it lie to call it so, and to seek to defeat it in this way? In the mouth of the legislator? But in his hands is the power of doing away the mischief of the law, not only in this chance and solitary instance, but in all instances, and for ever. How inconsistent and absurd, to do away the mischief in retail, and, in the very self-same shape, leave it to remain in gross! In the mouth of the legislator? He contradicts himself. In the mouth of the judge? He contradicts the legislator, usurps his power, puts himself into his place.

Suppose that—instead of applying the remedy to the really peccant part, the substantive branch of the law—the legislator were to be inconsistent enough to determine upon applying it, and in the way here in question, to the adjective branch,—applying it in the shape of an evidence-excluding rule. What shall be the extent of the rule? Particular, or general? Shall it be particular, and stand thus:—A catholic priest, if called in as a witness in a cause in which he is not a party, shall not be compelled to make answer to any questions, the answers to which, if true, would prove him to be such? By the supposition, this persecution ought to be abolished: what does the rule towards the abolition of it?

Shall the exclusion, though made to no other end than that of serving as a remedy against the particular sort of tyranny here in question, be general? and accordingly, instead of a catholic priest, shall it say a person? and instead of the words to be such, say, to have been guilty of any offence? What a price would here be paid for the benefit of this remedy! The whole fabric of the law weakened, with all the securities that rest upon it; and the protection to the innocent religionist no better on this plan than on the foregoing one.

Instead of being the work of the legislature, suppose the extension to be the work of the judicial authority; on the occasion of some individual suit, the judge finding or making a pretence for stopping the disclosures, by an individual decision made on the occasion of that individual suit; and on the next occasion of the like kind another judge making, either out of the decision itself, or out of something of a general nature supposed to have been said on that individual occasion, a general rule. Of the additional mischief, intimation has just been given. Insubordination, contempt, usurpation; the confidence of the subject in the legislator shaken; disobedience preached by example—by the example of those whose employment, profession, and peculiar duty it is, to exact obedience from everybody else.†

To the vexation attached, as above, to the delivery of the testimony, when the will, the intention, to deliver it, has been formed, must be added for consideration the vexation that may come to be attached to the coercive arrangements which it may be necessary to take for the purpose of causing the will, the intention, to be formed. To this head belong, in the case of personal evidence, search for the person of the proposed witness: entry, with or without force, into the house, land, ship, or other receptacle, for that purpose: arrestation, detinue, conveyance, commitment, alimentation. In the case of real and written evidence,—entry as before; search as before; examination, seizure; detinue, conveyance; and in some cases, where the source of evidence is a living animal, alimentation, as before. In the case of written evidence, examination of books and papers, making of transcripts, extracts, translations, abstracts.

In regard to vexation of this casual and multifarious description, two propositions present themselves as expressive of the line of propriety on this ground.

1. In forming a comparative estimate, as between the mischief of admission and the mischief of exclusion, for the purpose of determining whether the evidence shall be received or excluded,—so much of the vexation (in whatsoever shape or shapes it presents itself) ought to be taken into account, as will take place notwithstanding any inclination on the part of the witness (including, in case of real or written evidence, the person on whom the production of the source of evidence depends) to yield the evidence.

2. But in this account no vexation ought to be included, the necessity for which is produced by the repugnance of the proposed witness. He himself being the author of it, be it ever so heavy, the weight of it can afford no just reason for depriving the party of the benefit of the evidence—of the legal service which is his due.

As to the provision which it may be necessary and proper to make for the forthcomingness of the evidence, considered under its several modifications, as above, and in the several cases of difficulty that may arise,—it belongs rather to the subject of procedure at large, than to the subject of evidence. The field would be much too wide a one to be inclosed within the limits of the subject now in hand.

On this part of the ground, the utmost that can be done is to give principles. Propositions fit to appear in terminis, though it were not in the character of laws, but of mere instructions, could not be given without giving also in terminis the laws (substantive as well as adjective) in modification of which they would have to operate.

§ 3.

Vexation to the judge, or to any of his subordinates, how far a proper ground of exclusion.

The sort of vexation here in question is that and that alone, against which the exclusion of this or that mass of evidence is capable of operating as a remedy. The vexation will therefore be of that sort, and that sort only, which is producible by excess in respect of the quantity of evidence which it has been made incumbent on him to receive, and turn in his thoughts, to serve as a ground for the decision he is called upon to pronounce: in a word, vexation having excess of evidence for its cause.

Flowing from this source, vexation to the judge has a claim to regard on a double account:—1. In respect of the feelings of the individual; and 2. In respect of the consequence of it to the cause.

On his own account, and looking no further, the feelings of the judge have exactly the same claim, neither stronger nor weaker, to be considered, as those of any other individual in the state.

Considering the matter in this single and abstract point of view, it may seem difficult to comprehend how it should happen that, if the evidence in question be material, a lot of vexation thus narrow in extent should ever swell to such a pitch as to form a ground sufficient in point of reason and utility for the exclusion of it.

Difficult, yes; but not impossible: especially under English law; especially considering among how large a number of persons it may happen to the judicial power to be shared; say a dozen occasional judges (jurymen,) and one permanent one, with from two or three to half-a-dozen or more subordinate judicial officers. These jurymen have all been shut up together for twenty-four hours, a case that has sometimes happened: value at stake, perhaps a hundred thousand pounds—perhaps not a hundreth part as many pence.

But (besides that, in this sense of the word material, there are degrees of materiality) what may happen is, that the information proffered in the character of evidence may be irrelevant altogether; of which case afterwards. In this case there can be no difficulty.

The service of the judge is in some instances voluntary, in others compulsory. If voluntary, he derives from the office, in some shape or other, what in his own judgment (which is the only competent one) is a sufficient recompense. But even in this case, vexation, labour, attendance, should not be imposed upon him to no use: much less where the service is compulsory, as in the case of juries, and several other cases.*

What applies, as above, to the principal, applies, and for the same reason, to all subordinates.

But in this way, when the quantity of the vexation swells to a certain pitch, the connexion is most intimate between the personal interest of the judge, and the interest of the public at large, through the medium of the parties, or rather of such one of them as happens to have right on his side.

From an overload of evidence, comes perperplexity: from perplexity, misdecision: if the perplexity be at its maximum, an even chance of it. Probably in every system, certainly under the English, the instances have been but too numerous, in which (not to say misdecision) decision which to many impartial minds has presented itself as erroneous, has been traced up to this source.*

When the hearing of a cause has been drawn out to a length regarded as excessive, the principal matter and cause of the excess has generally consisted of the evidence.†

In causes of certain descriptions, to such a pitch has the mischief swelled, as to be regarded as a subject of general horror to persons whose situation in the state has threatened them with this species of forced service.‡

Much, in this case, will depend upon the modification given in respect of time to this species of service: whether de die in diem (with or without intervals of repose,) or the whole to be executed within the compass of one sitting, and thence, occasionally, towards the close of it, in a state of imprisonment and slow torture.

The personal suffering of the judge is not much in danger of passing unheeded, nor even unremedied, by the judge: at least by such person or persons on whom, in that commanding station, the duration of each attendance depends. Nor yet has it the less claim to the legislator’s care: since to whatever relief it happens to be assumed or granted in these cases by the subordinate, without the observation of the superior, it may happen to be either insufficient or excessive.

But under the system of payment by fees (that is, under the regular part of the existing system of procedure in most countries,) vexation to the judge is apt to have an ulterior and much more important claim to notice. Under this system, vexation to judges and their subordinates is expense to suitors: changing its shape, it transfers its seat at the same time to other shoulders. The quantity given, on what individual it falls, is to the public (that is, to the aggregate composed of all individuals) a matter of indifference. The misfortune is, that, when the seat and shape of vexation is thus changed, the quantity of it tends to increase with a velocity plainly infinite. In this tendency, the final cause of the technical system has already been brought to view. On these terms, vexation, instead of being shrunk from, is courted: the crown of martyrdom graces the peruke of the judge.

Men of the class of professional lawyers (assistants to the parties) being, under all their varieties and sub-varieties, men,—vexation weighs as heavy on their shoulders as on any other.

But vexation to the lawyer is expense to the suitor. Under the fee system, this transformation is undergone by that portion of the vexation which in the first instance alights on the shoulders of the judge: under every system, by that portion which alights upon the shoulders of the professional lawyer, the frequently indispensable and naturally treacherous assistant of the parties. But, under the fee system, the two avalanches, being connected from the first, roll on and accumulate together: pursuing the same object, co-operating, without any need of concert, from the beginning of the game to the end, the lawyers of both classes keep playing into each other’s hands. At the card-table, signs and tokens are necessary between the ostensible partners and the latent ones behind their backs: no such dangerous intercourse is necessary amongst the partners in the lottery of procedure.

Under any system of payment, pecuniary or non-pecuniary, by which the interest of the functionary were not placed in a state of opposition to his duty, the zeal by which the martyr to professional duty will never cease to be instigated to heap thorns upon thorns on his self-devoted head, will find a constant moderator in the probity, the honour, and the indolence of the judge: under the fee system it finds ostensible checks, of which the efficiency is destroyed, by spurs, not the less sensible for being invisible.

Such being the mischiefs of which vexation from the delivery of evidence is composed, or of which it is liable to be productive—such the mischiefs to which exclusion of the evidence presents itself as a remedy,—does not the nature of things ever admit any cheaper remedy? This will be the subject of inquiry in a separate chapter;* in which, in this point of view, the three kindred diseases, vexation, expense, and delay, all considered as attached to evidence, are considered together. In the case of these political, as in the case of physiological diseases, to find the best remedy, we must understand the causes.

§ 4.

Arrangements of English law connected with this subject.

Towards this subject what is the aspect of English law? The answer may be contained in a line or two, or require a volume. What on this ground has been done by English law? By design, nothing: but by accident, and without thought, much more than can here be brought to view.

By design, by design towards such an end, how should anything have been done? On this subject, had anything been done, it would have belonged to the system of procedure: and, except here and there in patches, the system of procedure has never been the work of the legislator. What has been done, has been the work of the judicial authority. But to avert vexation is one of the ends of justice; and the ends of judicature, instead of coinciding, have been at variance with those ends. Vexation is inseparably connected with expense: and the ends of judicature have been, not to save, but (for the sake, and in proportion to the amount, of the profit obtainable from it) to embrace every occasion for the augmentation of, expense.

Under the head, for example, of vexation to individuals (whether strangers or parties) in the character of witnesses,—ordinary vexation, in respect of journeys to and from, attendance and demurrage: what on this head has been done?

By design, as already observed, nothing: by accident, more or less:—here one thing, there another.

What in this way has been done at all, has been done by the limits, the topographical limits, that have taken place in regard to fields of judicature. But, in the tracing out these limits, nothing of design has had any share: boundaries have formed themselves here, as boundaries formed themselves after the deluge: as shores grew up against seas. May it happen to a man to have so many hundred miles to travel for the delivery of his evidence, or only so many miles? It depends upon the local jurisdiction of the court: and thence upon the court in which the cause originated, or in which it is to be tried. Did it originate in Westminister Hall, three hundred and upwards may be the number of miles. In a court of quarter-sessions, for the county of Rutland for example, not so many as twenty miles.

Three hundred and upwards, or only twenty,—if the delivery of the evidence be altogether free as well as voluntary, there is no vexation in the case: if obligatory, then it is that vexation mixes with it. Delivery of testimony, is it obligatory? Yes and no: yes in a hundred cases; no in a hundred others. To give a picture of the law on this one head, that is, of the clouds of uncertainty in which it is involved, would require a volume. 1. In causes non-criminal, obligatory at one stage, unobligatory at another: obligatory if the persons capable of yielding testimony are known; unobligatory for want of their being known. 2. In criminal causes;—in felonies, obligatory: obligatory as well at the first stage as afterwards. 3. In misdemeanours, if prosecuted by indictment;—obligatory, if known, and living within the jurisdiction of the court (unless, to avoid the vexation, their device be to travel a few miles, or as many steps, to escape from it;) unobligatory, for want of their being known, unless some justice of the peace, under the spur of that zeal which has become a monopoly in the hands of unlearned judges, acting by custom, without (which is as much as to say against) law, has, by the terrors of undefined and uncognizable authority, contrived to wring the secret from the reluctant breast. 4. In the same misdemeanours, if prosecuted by information—but here, however abruptly, the theme must end. 5. Then again comes the Tweed. Think you that a judge, standing on one side of that river, speaking to a witness on the other, could command his evidence? No more than if it were the Styx.* 6. Is it, again, for plaintiff, or for defendant, that a man’s testimony is needed? Here comes another ocean of distinctions and deficiences. Fancy not, that because a man’s evidence is necessary to save your life from unjust punishment, you can have (unless it be here and there by accident) any better security for it than that humanity, which, if it be to be found in individual bosoms, is not to be found in the bosom of the law.†

The best method of supplying all these deficiences, belongs to the science of judicial procedure at large. In the existing system, how was it possible they should have been supplied? To have supplied them, the objects of its regard must have been the ends of justice.

On the score of the vexation of which the disclosure would be productive to the individual whose condition in life was the subject of inquiry,—the party calling for the disclosure having no other interest in it than what he had taken upon himself to give to himself by laying a wager, and when consequently there is no gain to justice, to out weigh the vexation thus produced,—the court of King’s Bench, with indisputable propriety, forbade the extraction of the evidence.

On the score of vexation to the public at large, by the disclosure of facts comprisable under the denomination of secrets of state, no decision appears to have been ever pronounced. Why? Because no known case ever presented itself, in which a decision to that effect was called for on that ground. In this instance, as in every other, it depends upon chance to open the mouth of jurisprudence.‡

In both houses of parliament, exclusions are, in every day’s practice, put, on this ground, upon communications that otherwise would be made.

Where the vexation in question is outweighed, outweighed by the profit to justice attendant on the execution given to some article or other of the substantive branch of the law; in this case, the exclusion put upon evidence, the allowance given to the plea of vexation in the character of a ground or justificative cause of such exclusion, will be found under the head of cases where exclusion on the score of vexation is improper, and the allowance ranked among the errors by which English jurisprudence is defiled.

CHAPTER III.

EXCLUSION ON THE GROUND OF EXPENSE, IN WHAT CASES PROPER.

Of the category of expense, though the mischief of it be but a modification of that of vexation, a separate consideration requires to be made.

There are but two cases in which expense, expense attendant on the delivery of evidence, is capable of forming a rational and legitimate ground for the exclusion of that same evidence.

One is, the case in which, not being defrayed by the party by whom it is called for, it must, if delivered at all (which is as much as to say not excluded,) fall without compensation upon some third person. The other is, where, though it were to fall upon that one of the parties who is in the wrong, the quantity of vexation attendant on it in his instance would be too great to be defensible on the score of punishment.

In each of these cases, supposing them really exemplified, the propriety of the exclusion presents itself as unquestionable.

The load of rubbish has been improperly deposited as before. Penalty five shillings. For the mere purpose of levying this penalty, would you put an innocent bystander to an expense of two voyages between London and the East Indies? would you even subject the delinquent himself to any such expense?

All reason, therefore, for exclusion on the ground of expense is taken away—all reason and all pretence, when any person, who conceives himself to have need of the evidence, takes upon himself the expense.

But evidence, and evidence the delivery of which would be attended with considerable expense, exists on both sides. On one side, there exists ability as well as desire to defray the expense of his own evidence: on the other side, there exists inclination only, ability not. What in this case is to be done?

The knot is a Gordian one: what presents itself as capable of being done towards untying or cutting it, will be found under another head.*

Expense is to be considered at two periods: 1. When the disbursement is to be made, or at any rate undertaken for; 2. At the conclusion of the cause, when the time comes for definitive justice to be done.

Even though, in the rubbish case, the expense of fetching over the witness from the East Indies should have been defrayed by the plaintiff in the first instance, would you, in case of conviction, saddle the defendant, guilty as he is, with the burthen of reimbursing this expense? No, verily, if guided by the rules of humanity and rational justice: Yes, if guided by principles such as those of English law. Whether a man shall have his costs or not—whether the party who prevails shall receive reimbursement at the expense of the loser, depends upon a thousand capricious and inconsistent rules: but it is only in here and there an instance, that this rembursement is refused on the ground of the excess of the burthen imposed on the loser, in comparison with the value of the benefit pursued.

It remains to bring to view what has been done by English law under this head.

As it is with vexation at large, so is it with that particular modification of it which is produced by forced expense. By the same causes, by the same accidents, by which bounds have been set to the vexation by reason of attendance, bounds are also set to the expense: I speak of the expense of journeys to and from, and demurrage in the neighbourhood of, the seat of judicature: items which, when added to the fees of the persons employed in the collection of the evidence, compose in general, wherever the evidence is delivered vivâ voce, the whole, or nearly the whole, of the expense attending it.

By these bounds—the bounds by which the territorial field of jurisdiction of the court stands limited—limits are thus far set to the expense to which the party or any other person shall be subjected by reason of the expense of the journey, in the instance of any one witness. From beyond these bounds, no man can for that purpose be obliged to come: and therefore, unless by the consent of a willing witness, no mass of expense exceeding the expense of such longest journey, can be imposed upon any one who is not disposed to bear it. Every witness, and thence the testimony of every witness, who, were his testimony to be delivered, would have to come from the greater distance, stands negatively excluded; i. e. it is not compellable.

Thus much then is done, is actually done, though without design, in English law (viz. by general arrangements,) towards the limitation of the expense of evidence.

But in no instance is any exclusion put upon a lot of evidence, on the mere ground of the inordinateness of expense; understand, of the mass of expense of which the delivery of the evidence would be productive in that individual cause.

In the first instance, each party bears of course the burthen of that part of the aggregate mass of expense which consists in the money disbursed by himself, on the occasion of whatever steps he takes in the institution and prosecution of his own claim—(claim, on the part of the plaintiff, to see the obligation imposed upon the defendant—on the part of the defendant, to see himself exonerated from it.) When the cause has received its ultimate decision in any court, then comes the question, whether, by him who in that court has gained the cause, anything, and what, shall be received from the losing party, on the score of satisfaction for the disbursements made by him?

Deficiency, inconsistency, uncertainty, all at the highest pitch, are the result of those learned labours, the picture of which fills a volume of near seven hundred pages.

To a set of arrangements on such a subject, would it be possible to give the opposite qualities? In so large a compass, scarcely—in a twentieth part of it, with ease.

In regard to the plaintiff, one question is, whether he be king or no: for, if the suit he called a criminal one, the plaintiff is king, whatever else he may be. In this case, the answer is clear. Be the suit ever so unjust, and the expense which the innocent defendant has been put to in defending himself against it ever so heavy, he receives no indemnity; for the power of heaping oppression in this way on innocent men in the character of defendants, is among the king’s prerogatives. Therefore, to prove that an innocent defendant ought to be thus oppressed, you want no other postulate, than that John-a-Nokes is king: than which nothing is more easy: after which, you may write Q. E. D.

The rule is indeed scrawled over by exceptions: yet not so, but that the ground predominates.

Again. Be the delinquency of the defendant ever so enormous, the expense of prosecution ever so great, reimbursement is not to be thought of. Why not? Because, to receive money under the name of costs is “beneath the royal dignity.”* Call it costs, he disdains to receive it back, though he is so much out of pocket: that is, the law servants of the real king disdain to see either their royal master receive it, or the John-a-Nokes, who really disbursed the money, and whom they have set a strutting under the king’s name. Call it costs, he disdains receiving it, though it be a hundred pounds (it is frequently much more:) call it a fine, he is ready to pocket it, though it be a shilling: the elephant disdains the cannon, but is ready to pick up the pin. Rendered splendid by this its destination, many a shilling, bating official clipping, finds its way, and by itself, into the real and royal privy purse.†

Indications may be found to show that, in England, lawyers have had it in their heads to set bounds to the excess of vexation and expense. In their heads, at times, yes: in their hearts, scarce ever. Bounds to the excess of vexation and expense from all causes put together, natural and fictitious, yes: not to this, an article of natural expense, taken by itself.

Under the direction of lawyers, statute law has, in some instances, interposed in some such view: but how? By refusing, to the party injured, the reimbursement of his share of the costs of suit; and thereby doing much more than refusing him any redress at all for the injury, where the value of the injury is judged not to exceed a certain amount.‡ And what amount? A sum, which, if annual, would have constituted an independent provision for a parliamentary elector.

But, in this case, no separate account is taken of that part of the expense which is occasioned by the production of evidence; not to speak of what may have been occasioned by the production of this or that particular article of evidence.

In the equity courts, jurisprudential law has explained itself in the same way. For any sum below a certain amount, no redress is given in these courts. Why? Because it would be beneath their dignity. And to what amount? £10; a sum, in those days, equal at least to the expense of two years’ subsistence of an average individual of any of those classes of which nine-tenths of the body of the people are composed. Outlawry was thus pronounced upon the great body of the people. Outlawry: and to what end? To maintain the dignity of the judge! The dignity of an equity judge consists, in what? In refusing to do justice. Dignity, forsooth? What has dignity to do in this case? The fees on the less valuable, would they have been worth less than the fees to the same amount on the more valuable, cause?—would Vespasian had found them beneath his dignity? But pride, in these instances, blinded the eyes of avarice. Humanity? No such motive was so much as dreamed of.

At common law, to a cause in which it is settled that either nothing shall be given to the plaintiff, or, if anything, one shilling, a more than ordinary degree of importance is not unfrequently ascribed: and the question in dispute argued with great ceremony. So different, on the head of dignity, are the notions that prevail on the one side, and on the other side, of a twelve-foot passage.

Suppose any reason, grounded in utility, for the denial of justice in all pecuniary demands under £10, and conceive what a character you are giving of an equity suit! Think of the virulence of that disease, to which, in the judgment of the inoculators, denial of justice, and in a great majority of the cases that would otherwise have occurred, is an eligible remedy!

Along with the vexation, the expense of evidence has, in the same lumping style, undergone a remedy by exclusion, in another way; viz. by barring it out.*

CHAPTER IV.

EXCLUSION ON THE GROUND OF DELAY, IN WHAT CASES PROPER.

A lot of evidence being proposed,—the delay in question in the character of a ground of exclusion, is that which might in some cases happen to be produced by a determination to give admission to that evidence. The question for decision then is:—of the two mischiefs, the two opposite, and, as it were, rival, mischiefs and injustices, which is the greater?—the injustice attached to the misdecision or danger of misdecision that would be produced by the exclusion of the evidence? or the collateral injustice attached to the quantum of delay (of extra delay, it must here be understood) that must be incurred, if, antecedently to the decision, that quantity of time be allowed, which is understood to be necessary to the production of the evidence?

Were all the material evidence forthcoming which the case has happened to furnish, a decision might be pronounced to-morrow. But, of this existing and obtainable stock, a part, more or less material, exists at the antipodes. Shall the decision wait till a correspondence can be had with the antipodes for that purpose?

The cause having but one party on each side—the cause being, in that respect, and in that sense, a simple one,—the proposition for the exclusion, if any such proposition come at all, must come either from the party who conceives himself to stand in need of the evidence (say the plaintiff,) or from the opposite party. From the party whose wish it is to see the evidence delivered, no such proposition can come: since he has but to forbear calling for the evidence, and the exclusion thus attaches upon it silently and of course.

If, in this simple case, a demand be made for an exclusion to be put upon the evidence—a demand having for its ground the delay that would be necessary for the production of it,—it is from the opposite side (say the defendant’s) that the demand must come. For anything I know, the evidence alleged by the plaintiff to exist, may or may not exist: the effect of it, if produced, may or may not be more or less material, more or less necessary, more or less conclusive. But the case is such, that, if the decision be not passed till the requisite time has been taken for the arrival of the evidence, added to what notice may be to be taken of it, the mischief resulting to us from that delay will be greater than the mischief resulting to the plaintiff from the disallowance of his claim: at any rate, than whatever chance of such miscarriage may be the result of the non-production of that evidence.

Reverse the case, the mischief of the delay will be more sensible. It is the defendant that applies for the delay, to save the exclusion (the negative sort of exclusion) that, for want of it, would be put upon the evidence he has to produce. No, says the plaintiff;—the mischief from this delay would on my side be so great, that, in consideration of it, my petition is that the cause may go on in its natural course—that the delay prayed for may be refused: although of such refusal the sure consequence will be, that an exclusion will thus be put upon the article of evidence.

Again, let the cause be a complex one—complex in respect of its affording divers parties (say five) on a side: and first, say, on the plaintiff’s. One plaintiff applies for the delay, as necessary to the delivery of the evidence: the other plaintiff opposes the delay; in other words, applies for the exclusion, the evidence not being, in his view of the matter, worth the purchase. To the present purpose, this third case differs from the first only in name. The parties stand on the same side of the cause, but, on this point at any rate, their interests are opposite. The plaintiff, by whom the application for delay is opposed, is to this purpose, as against his co-plaintiff, a defendant.

The two quantities here compared with one another, being both of them in their nature susceptible of variation upon a scale of almost indefinite length—on the one hand the materiality, the probative force, of the evidence, on the other hand the duration of the delay; the ratio of each to the other is of course susceptible of variation upon a correspondent scale.

If, however (as will frequently be the case,) the evidence in question be indispensably necessary to warrant a decision on that side,—the mischief of mere delay, that is, mere postponement of the decision on one side of other (abstraction made of the contingent mischiefs with which it may happen to it to be pregnant, viz. on the one side deperition of the matter of satisfaction, on the other side deperition of counter evidence,) can seldom be equal to the mischief of the exclusion. From the exclusion of the evidence, results in this case, by the supposition, and that as a necessary consequence, misdecision to the prejudice of that same side: and the mischief resulting from that misdecision, perpetual and irremediable: whereas from delay, considered in respect of that part of its mischief which is certain, no worse effect ensues than the temporary duration of that same mischief, which, in case of exclusion, is perpetual.

In respect of the evidence, the supposed temporary absence of which produces the demand for the delay,—what are the expectations entertained by the plaintiff (or the defendant, if the delay be prayed for on his side;) and what the grounds of them? What assurance has he that the witness cannot now be forthcoming? that he will be forthcoming within any reasonable space of time? that he knows anything about the matter, and that what he knows will, if truly reported by him, operate to the effect alleged, and with a sufficiently persuasive force? All these questions together constitute a sort of incidental cause, collateral indeed to the principal cause, but sometimes not inferior to it in importance, because the main cause itself may altogether turn upon it. All these questions, with others that might be added, constitute a complex question—a question of fact, which, like any other question of fact, must be tried by the light of its own evidence,—of such evidence as it happens to afford: direct evidence, circumstantial evidence, the evidence of the prosecutor if necessary, the evidence of any other individual as it may happen. The witness (understand, he in whose absence the demand for delay originates) was an inmate of the owner of the goods taken in the way of theft or robbery,—he was in the house at the time: he was a lodger in the house of the individual killed, and of whose murder the defendant stands accused,—he was in the house at the time, or came in soon afterwards. The question, whether the alleged witness was in a situation that would qualify him to give evidence, is a question of fact, to be tried, like any other question of fact, upon its own evidence. Does the main cause turn upon it? It is a question that requires to be examined into with the same care, and therefore with the assistance of the same securities for trustworthiness, as those which are looked upon as indispensable to the principal cause.

Between delay for the sake of evidence, on the one hand, and exclusion of the evidence, for want of the requsite delay, on the other, the connexion will, after all, it carefully and honestly looked into, he found (like so many other of the evils with which the system of procedure is pregnant) in a much greater degree factitious than real. Such will be the result presented by the chapter,* the business of which is to bring to view the arrangements capable of serving in lieu of absolute exclusion, in the character of remedies to vexation, expense, and delay.†

The strongest case, in favour of the exclusion, is where imprisonment, itself tantamount in vexation to a severe punishment, is the lot of the defendant during the coutinuance of the delay. Here, then, is punishment—a perfectly distinct and incontestable lot of punishment, inflicted: inflicted, where perhaps it is undue, and, at any rate, before it is proved to be due.

In this case, however, there is an evident medium between the continuance of this perhaps unjust punishment, and exclusion of the evidence—whence acquittal from all punishment. Bail him, if he can find bail: if he cannot, it will in general be a further presumption of delinquency: if no bail, take other securities for appearance, of which many might be enumerated, if the present were a fit place for it: in default of all such securities, discharge him out of prison, even without security. But liberation from prison is one thing—definitive acquittal is another:—because the plea is sufficient when applied to the one, it follows not that it must be so when applied to the other.

At any rate, the question (it will be seen) turns still upon proportions. The perhaps altogether undue or excessive vexation being a determinate quantity, the proportion will depend upon the quantity of the delay. Admitting it to be better that a delinquent should go unpunished, than that a punishment should remain hanging over his head for years,—it follows not that the proposition would be true, if, instead of years, a man were to say days or weeks.

All this while, an argument that pleads against the delay, and therefore in favour of the exclusion, ought not to be lost sight of. The evidence, if produced, will tend to conviction: will operate in disfavour of the defendant. A result this, of which the probability at least must be assumed, to justify the delay, with the vexation thus attached to it. But the supposed probability, on what is the persuasion of it grounded? It is on the part of the plaintiff that the evidence is called for: a considerable presumption this, but by no means a conclusive one.

Expecting to see the defendant proved guilty, expecting to find the guilt established by this evidence, he applies accordingly for the delay necessary to the obtainment of this evidence: on this supposition, indeed, it is a matter scarcely to be apprehended that it would be the endeavour or wish of the plaintiff to extend the quantity of delay for the purpose of vexation,—to extend it beyond the exigency of the case; for, the longer the delay continues, the longer the manifest object of the prosecution, the natural wish on the part of the plaintiff, continues unaccomplished.

So much for ordinary probability. But a case neither improbable, nor perhaps altogether without example, is this:—The plaintiff has no expectation that the evidence he applies for will operate to the conviction of the accused: he entertains no such persuasion or suspicion as that the accused is really guilty of the crime: the object, the real object, of the application for delay, is not justice, but vexation: the vexation of an individual, of whose innocence the accuser himself is conscious.

The case is a possible one; though, if examples of it were to be looked for, happily for mankind they would be found (I believe) extremely rare. But the case where, on the part of the plaintiff, an ill-grounded but sincere persuasion of the defendant’s guilt, or an exaggerated estimation of it, has been productive of an ill-grounded prosecution, is much less rare.

On the ground of that one of the evils opposite to the ends of justice which we are now considering,—in so far as evidence (i. e. an extra quantity of delay, considered as being necessary to the production of it) is the cause of the disease, and exclusion proposable as the cure,—English law, however heedless, is not quite so impotent, as on the ground of either of the two preceding ones.

Delay? Oh yes: of that there is no want: but, for exclusion to be put upon evidence for the avoidance of preponderant delay, no tokens of any provision—no token of so much as a thought.

To the allegations on both sides, in general terms, respecting the general matters of fact on which depend the propriety or impropriety of excluding an article of evidence to save the delay that would be necessary to the production of it, the ears of the courts are open. But, as to any tolerable security for the truth of these allegations, on this occasion as on all others, learned judges know better than to suffer themselves ever to receive it.

Between every two operations, needful or needless, a determinate length of delay being fixed* by general rules—a length in most instances too great, in here and there an instance too scanty,—where, on the ground of the impracticability of causing the evidence to be forthcoming at the regular time, coupled with the probability of obtaining it at a more distant period of time, a further length of time is or is pretended to be needful, a special application is made to the court for this indulgence. In this case, if the materiality of the article of evidence in question be out of dispute, and yet the demand of the delay be resisted, the consequence of such resistance, if successful, is a virtual exclusion put upon the evidence; and this on the score of delay, i. e. of the undue delay that would be the necessary result, if the lot of evidence in question were to be received. It is in this way, and this way alone, that, on the ground of delay, i. e. of the mischief that may come to be the result of it, any exclusion can be put upon any article of evidence.

The question here concerned is of the number of those incidental questions, on which the fate of the cause is liable to be completely dependent: as completely as upon any evidence respecting the principal matter in dispute.

For the truth, correctness, and completeness, of the evidence on which the decision of this incidental point is founded, there is in every such case exactly the same demand for the best security that can be afforded (whatever that security may be,) as for the correctness and completeness of the evidence respecting the principal matter in dispute.

Note, that, independently of all ultimate loss by deperition of evidence, or of the matter of satisfaction, mere delay may, to a malâ fide defendant, be productive of certain gain, at the expense of an injured plaintiff, to an amount to which there is no certain limit. Sum in dispute £10.000; trial staved off till next assizes, six months distant; interest at five per cent.; sure profit £250: deducting only the expense of the business thus made, as the reward to the law partnership for their service, the price of the delay thus manufactured.

For grounding an application for delay on the score of the absence of a material witness, forms, every day in use, are given in the books of practice: the testimony of a witness (a single witness is sufficient,) delivered in the affidavit mode. Thus far, nothing particular; learned judges (as above mentioned) never suffering themselves to receive testimony in any but this worst of shapes. But the evidence received in this bad shape is hearsay evidence: supposed declarations, supposed to have been made extrajudicially, and even by persons undesignated,—by the common voucher, the French On; this supposed testimony thus transmitted to the court, through the pen of the affidavit-man’s attorney, when the immediate testimony of these supposed extrajudicially-speaking witnesses might, for anything that appears, have been obtained—obtained with as little trouble, and without the expense. And, unless opposed on the other side (opposed by testimony, which, so far as the mode of delivery at least is concerned, cannot be of any better complexion,) the evidence is conclusive.†

Observe the form stated as being in common use in the King’s Bench.‡ 1. “The deponent (as he is advised and believes) cannot safely proceed to the trial . . . without the testimony of” [the proposed witness.] No averment, even in the way of opinion, in general terms, that he can safely proceed with such testimony,—that he has any just ground to stand upon.

2. “In consequence of the notice of trial . . . he, this deponent, caused inquiry to be made,” &c. (stating [says the form] the nature and result of the inquiry made after the witness, and the time when he is likely to attend.)

Here we see hearsay evidence of the second remove: the persons inquired of, if any such there were, not upon oath, not judicially examined, nor even, without examination, judicially deposing: the supposed inquirer again in the same case.

Such is the sort of evidence which, if the statement be correct, is habitually received, and (unless victoriously opposed by counter-evidence) habitually acted upon as conclusive by the King’s Bench.

The Common Pleas seems not much more nice. The following extracts are from a learned practiser in that court,* who does not express indeed that it is exclusively, or more frequently, in use in that court, than in the King’s Bench.

Here divers particulars respecting the nature and result of the inquiry (as above) are given . . . “He, this deponent [no intermediate inquirer here,] hath been [not said when] to the house of the said P. W. [the proposed witness] and was informed [not said by whom] that he was gone to Norwich [not said when,] and that he, this deponent, hath sent there [not said whom nor when] for the purpose of subpœnaing him; but that the said P. W. is gone from thence, as this deponent hath heard [not said from whom,] and verily believes to be true: and that he, this deponent, cannot get any information where the said P. W. is, but is informed [not said by whom, or when, or where, nor that he so much as believes the information to be true] that he will be at home in two months. . . . .”

Can any danger attend the attempt, successful or unsuccessful, to stave off a just demand for an indefinite length of time, or for ever, by false representations thus conveyed?

The application may, it is true, be opposed: but with what effect? Not a question can the opponent (the plaintiff) put to any one in this chain of witness. It may be a complete tissue of lies: and nothing can he do that can contribute to the detection of any one of them. The defendant’s attorney being the deponent, his client may have posted persons to give such false answers or statements (not that it is worth the while;) or the like friendly deception may have been put by the attorney upon the defendant, his client.

The least unpromising course seems to be to follow the precedent of the ingenious attorney, who, to combat the forged bond, forged the release. The plaintiff makes a counter-affidavit, saying nothing of the defendant’s story (for, be it ever so false, what can he say of it to any purpose?) but telling a like story of his own, showing how he has an equally material witness now forthcoming, but whose testimony, were the required delay granted, would be lost.

If to a dishonest defence success may thus be given, defeat to a just demand,—so, on the other hand, may defeat be given to a just defence, success to an unjust demand, by the same system of—what shall we say? Inquiry? where not a question can be put? say at any rate receipt of evidence. Affidavit,† “that A B and C D are material witnesses for defendant in this cause, without whose evidence defendant cannot safely proceed to trial, as defendant is advised and verily believes,” was held bad; “because the belief seemed to go through the whole, as well to A B and C D being material witnesses, as to the other necessary part of the affidavit, that the party cannot safely make defence without their testimony; the former part, respecting A B and C D being material witnesses, ought to be positively sworn; belief as to it is not sufficient, but as to the latter part it is.”

“Held bad:”—and certainly not without something like a pretext, at any rate. Possibly, in the way above suggested, evasion was designed: but possibly, and much more probably, not. But to what use pretend to stop up this loop-hole, when so many doors are left wide open in so many other places?

To the materiality of the evidence, “belief” not sufficient, “positive swearing” necessary. Precious distinction! as if anything could ever be sworn to, howsoever positively, but belief: as if the materiality of an article of evidence were not a matter of opinion; and not only of opinion, but (for so it has been made by lawyers) a matter of law. What an indignation was once manifested at the presumption of a deponent, who took upon him to “swear the law!” Ignorant and presumptuous man! to pretend to know the law!

Held bad: and what was the consequence? Was the cause called on, without the defendant’s material, and (if his statement were true) necessary, witness? and was the subjecting him to the obligation of complying with an unjust demand the ultimate result? Let us hope rather, though it is not said, that the badness of the expression was not so fatal but that opportunity was given to amend it; viz. by ulterior affidavits.

But the badness, the real badness, where is it? Not in the suitors, justly and unjustly suspected of evasion, but in the practice of the court, by which questions are never tried but upon evidence so bad, as to afford to insincerity a perpetual chance of success, without the smallest danger of punishment, or even of shame.

Suppose the maker of this “bad” affidavit present in court, answering upon oath, impromptu; instead of having employed, as many days as he thought fit, in studying means of evasion, with his attorney at his elbow. A word or two in the way of question, half a minute in the way of time, and the ambiguity would have vanished.

A case must not be omitted,—a case of prodigious extent in the field of law,—in which no competition takes place between the mischief of delay and the mischief of exclusion; but, the delay (with or without design) taking place, the exclusion follows without remedy—follows by act of law.

It results from the principle of fixed times with long intervals. The time for the trial is come: it has been fixed, as it is of course, by a blind rule. A witness, or an article of written evidence, that was to have been produced, fails of being produced. A few days, hours, or minutes more, the evidence would have been produced. But the time is past. It therefore cannot be produced. In the first place, suppose the failure on the plaintiff’s side: what is the consequence? Misdecision, to the prejudice of that side. To the plaintiff, loss of the right in respect of punishment: to the malefactor (whatever may have been his guilt,) impunity; temporary or ultimate, according to circumstances.

In this case, the exclusion of the evidence, that is, the non-forthcomingness of it for want of the delay, may have been designed or undesigned: the work of man, or the work of adverse fortune. But the mischief resulting from it, the misdecision, is the work, exclusively the work, of the man of law: the work of the technical system, with its fixed days and excessive intervals. Considered in respect of its duration, the exclusion may be distinguished into two periods. The first is not the work of the man of law: his is not the blame: accident, or unlicensed misbehaviour, is the cause: but the second is his altogether. A slight evil he sees produced without his participation: this does not satisfy him; but, upon the mere ground of this slight evil, he inflicts another—in all cases a much greater, in some cases an infinitely greater, evil, of the same kind.

At the preappointed time, the evidence is not forthcoming: what, in point of reason and justice, is the practical result? Appoint for the production of it the earliest open day in which, according to probability, it can be forthcoming. No, says the man of law to himself: no purpose of mine will be answered at this rate.

In cases not criminal (i. e. where, be the case what it may, the species of suit belongs to that class,) if it be on the plaintiff’s side that the failure takes place, the mischief is not irreparable. It depends upon him to suffer a nonsuit, and proceed anew, paying costs: whereupon, at the end of six or twelve months from that time, and at the expense of three or four or five score pounds, if the evidence has not perished in the meantime, he may take another chance.

If it be on the defendant’s side, it may perhaps be allowed to him to take such other chance: but it depends not upon himself; and it must be at an increased expense. On the trial in question, the verdict must be against him—he in general paying the costs on both sides,—and, if he obtains the felicity of a new trial, it cannot be till after motion and argument thereupon.

In criminal cases opens a very different scene.

If it be on the defendant’s side that the failure takes place, it seems rather difficult to pronounce, in every case, what may be the result. On an application made on the ground in question on that side, power for putting off the cause is not wanting; and in each instance the great probability seems to be, that, the judge being satisfied of the propriety of the application, due time would accordingly be given.

It is where the plaintiff’s is the side on which the failure takes place, that the prejudice applies, and the mischief flows in consequence. Breaking out on this side, no mischief is ever to be repaired: and this is called humanity and justice.

At the preappointed hour, a witness who should have appeared, fails to appear: an article of written evidence which should have been produced, fails of being produced. Had the failure been foreseen, application for time might have been made, and time granted accordingly. The failure not having been foreseen, not having been foreseeable, no time is to be granted: the omission is fatal: the malefactor triumphs.*

Behold here another exemplification of the practice of deciding, and against the merits, on grounds foreign to the merits.

Behold here again the power of pardon thrown out of the window, like medals on a coronation day, to any one that will take it up: to any witness whose testimony is necessary: to the possessor, for the time being, of any piece of paper, the production of which is necessary: to any one who, by fraud or force, discoverable or undiscoverable, will manage so as to keep the man or the piece of paper out of the way for a few minutes.

All this is in favorem vitæ. No man’s life shall be put twice in jeopardy. Hypocrites. Say, why is man’s life ever put once in jeopardy? Did ye ever, could ye ever, give any better reason for your human sacrifices, than used to be given in Mexico, and is now given in New Zealand? “Because it is what we do, and have been used to do, for so many hundred years?”

But the same hypocrisy reigns where there is no life in jeopardy. On the continent, nonbis in idem is moreover a maxim of Rome-bred law: a maxim made indeed of stretching stuff, like all maxims of all lawyers.

The malefactor in whose instance the witness or the bearer of a paper has fallen sick, or been drowned, or been made drunk, and so forgotten himself,—how much less guilty is he than if the man had come to his time? If the chance of triumph must be secured to every malefactor, let it at any rate be a fair chance: let fortune judge, not fraud in fortune’s name. Admit dice and boxes among the furniture of the temple of justice: but let the dice be fair, the boxes fairly handled; no loading or cogging, as at present.

CHAPTER V.

EXCLUSION OF IRRELEVANT EVIDENCE, PROPER.

Of the mischief liable to result from the admission of irrelevant evidence, no separate mention need be made, be it what it may, it is resolvable in toto into the mischief producible by vexation, expense, and delay,

The difference between the ground of exclusion in the present case, and in those others, consists in this:—in those three cases (i. e. in every case where the evidence is not irrelevant,) there is an option to make—there is a quantity of mischief, a weight in each scale: there is something to lose by the proposed exclusion,—a chance in favour of justice; there is a disadvantage that must be incurred by the proposed exclusion,—a probability in favour of misdecision, or perhaps a certainty. But in this case, in the case where the information proposed to be delivered in the character of evidence is irrelevant, there is nothing that can be lost by the proposed exclusion: not the least danger of misdecision is incurred by it.

In this case, then, the inquiry is much more simple than in any one of those three others: there, there are two quantities to weigh, two values to find: here, but one. Suppose the proposed evidence irrelevant, exclusion is the indisputable consequence.

Irrelevant evidence is evidence that bears no efficient relation to the fact which it is brought to prove: evidence which proves nothing: as well might one say, no evidence.

Fit, unquestionably fit, to be excluded. But to what purpose speak of it? Who is there to whom it could occur to propose the admission of any discourse coming under this description? Who is there, whose purpose could in any way be served by it?

To a party, plaintiff or defendant, acting in bonâ fide,—believing himself to have right on his side, and seeking nothing but the means of proving it,—there can be but one inducement for the demanding or delivering irrelevant evidence; viz. the belief of its being relevant: add, material and needful, without which the relevancy of it would not help him.

False conceptions on this head are far from being unfrequent: conceptions which, whatever ground there may have been for them in opinion, prove false in the result.

By the force of prejudice, in a weak judgment, in a disorderly imagination, there is no saying what reverie may not be presented in the character of a lot of evidence. If every such supposed or pretended article of information were liable to be obtruded upon the judge, and in any quantity, at the instance and at the pleasure of either party, and of each party, no power of exclusion on this ground being left to the judge,—it is easy to conceive how completely, in any cause, the justice of the case might by this means be overwhelmed.

Prosecution for witchcraft: oral evidence in support of the charge. On the part of the defendant, no direct evidence, but the general proposition, the alleged improbability of the fact, in the character of circumstantial evidence.* In reply, on the part of the plaintiff, to prove the probability, Glanville’s History of Witchcraft, or any other article of the demonological library, proffered in evidence. Upon this invitation, shall it be the duty of the judge to take up the book on the spot, and, previously to his giving his decision in the cause, to read it from beginning to end? and so on with regard to every other article in that same library? If not, and if he should not think fit to read it, his reason for rejecting it would naturally be founded on some such ground as what is expressed by the above-mentioned clause. In a reasonable mind (he would say) it does not appear to me that the contents of this book are of a nature to contribute anything, or at least anything worth regarding, toward the forming a persuasion affirming the existence of the alleged acts of witchcraft, charged by the plaintiff to have been committed by the defendant.

To a party acting in malâ fide, the inducements, constant and casual together, are equally obvious. We have seen the mischiefs liable to result to the party in the right, from excessive loads of matter, relevant or irrelevant, thrown upon the mind of the judge: perplexity, deception, misdecision. We have seen the mischief in the shape of vexation, expense, and delay, capable of being drawn down from the same source upon the party who has right upon his side: so many mischiefs, so many inducements, in the eyes of a malicious and unscrupulous adversary.

The following are natural exemplifications of irrelevant evidence:—

1. Be the suit criminal or non-criminal, evidence against Tertius is relevant or irrelevant as against Reus, according as participation is or is not brought home to him. Will it be so, or not? Sometimes it will not be to be known, till the whole of it has been gone through: sometimes the fact of the participation may be proved or disproved in the first instance. The line of conduct by which a burthen, a legal obligation, criminal or non-criminal, is, or ought to be, imposed upon Tertius, is (we shall say) a chain of acts, the connexion of which with the conduct of Reus may be proved by some act antecedent to the very first link, subsequent to the last, or in concomitancy with any intermediate one. An example of the first-mentioned case, an order; of the next, an act of confirmation; of the last, extrajudicial discourse of a confessorial nature, in the way of conversation, acknowledging participation by any of those modes of behaviour which in a criminal case denominate a man an accessary, whether before the fact or after the fact.

What may have happened is, that, though Reus was in confederacy, all along, with Tertius, and though evidence sufficient for the proof of the confederacy exists, and can be produced, yet the nature of it cannot be understood till after the part acted by Tertius has been brought to view.

In all these cases, prove participation upon Reus, everything that has been done by Tertius is material: all evidence which contributes to proof of it is relevant. If no such participation be proved, all that was done by Tertius is, with regard to Reus, immaterial, all the evidence of it irrelevant.

If (as in case of an order, or formal act of ratification) it be agreed or established that no proof of participation, no other proof, can be given, than what is distinctly separate from the evidence of the principal course of action; if, at the same time, the proof of the act of participation be short, that of the principal course of action long; the proof, or what is given for proof, of the act of participation, should come first. Why? Because, failing this proof, evidence of the principal course of action falls into the category of irrelevant evidence, and the suit should of course be rid of it.

What has been done by English law in relation to irrelevant evidence, distributes itself naturally under two heads: what has been done for the exclusion of irrelevant matter, and what has been done for the accumulation of it.

First, as to the exclusion of it. In this respect, much depends upon the words in which the evidence is collected.

1. Collected vivâ voce, coram judice et partibus, all irrelevant matter everything that appears to wander from the point, is nipped in the bud.

Accordingly, to the extent in which this mode (including its sub-modifications) is employed, irrelevancy, in the character of a source of vexation, expense, and delay, is scarce known: exclusion takes place instanter, and no mischief is produced on either side. None by the exclusion, because what is excluded is of no use: none by the irrelevant evidence, because, before it has time to produce any mischief, the door is shut against it.

In the following modes of collection, accordingly, the plague of irrelevancy is in a manner unknown:—1. In the natural mode, as employed in causes tried in courts of conscience, and before justices of the peace out of sessions; 2. In the jury trial mode; 3. In preliminary examinations taken before a justice of the peace, or before a coroner; 4. In examinations before committees of inquiry, or commissioners of inquiry.

2. Irrelevant evidence is the peculiar growth of equity. In the language of that country, it is called scandal and impertinence. For the designation of matter to which nothing worse can be objected than that it is useless, the word impertinence seems to have been employed: when the irrelevancy is aggravated by injuriousness, the word scandal.

A consequence inseparable from the modes of collection there in use, is, that in this case the peccant matter, before it is turned out, must be let in. This circumstance we may be pretty well assured was not overlooked, when the mode of collection came to be chosen, in, by, and for, those courts. Nothing could be better adapted to the ends of judicature. Business made by the quantity of peccant matter let in; business made by the discussions relative to the exclusion of it: business made by admission in the first place; business made by exclusion in the second place.

The mischief swelled to such a height as to be past endurance the auditory nerves of the judge (of a judge who never heard anything about the matter) were continually wounded by it: it became necessary to apply a preventive remedy. Order that no answer* be given in without having been signed, and thence manufactured and dressed up, by counsel: order that no interrogations be exhibited for the examination of witnesses, without having received the same security against scandal and impertinence. An additional load of vexation, expense, and delay, laid upon all causes, and the chance of misdecision increased by the sophistication of the evidence, for the adding of a sham security against the irrelevant matter that might come to be introduced in here and there a cause! As if the responsibility of the underling sort of lawyer whom the judge punishes every day without scruple, could receive any material addition from the responsibility of another sort of lawyer, whose situation is too near that of the judge to be exposed to punishment.

Business made by letting in the irrelevancy; business made by tossing it about when in, and throwing it out; business made by stationing a set of porters whose constant employment is to keep it out. Should irrelevancy creep in notwithstanding, does the responsibility amount to anything? Oh, no: that would be contrary to all rule. It is the lawyer that transgresses; it is the client that is punished for it.

How irrelevancy is shut out, when it is men’s wish to shut it out, has been seen already. But what could be more adverse to the ends of judicature?

We come now to speak of the arrangements whereby the accumulation of the same valuable matter is compelled, or otherwise encouraged, in subservience to the same ends.

1. Of one of the consequences of the exclusion put upon the most satisfactory kind of evidence, confessorial evidence, a momentary mention has been already made: the time of the judge consumed, his faculties oppressed, by an inundation of inferior, of hearsay and other extraneous, evidence. First sample of virtually irrelevant evidence artificially and habitually accumulated,—extraneous, vice confessorial at large.

2. In this case, and from the rest of the matter belonging to this case, should be distinguished the more particular case where the use of the confessorial evidence is to serve for the authentication of an article of written evidence (contractual, or casual and informal:) a sort of evidence extractable from the party, without any additional vexation, expense, or delay; and not without a boundless mass of vexation, expense, and delay, from extraneous sources. Second sample of virtually irrelevant evidence artificially accumulated,—extraneous evidence vice confessorial for the purpose of authentication.

In a mass of assertive matter, whatsoever is false without conveying instruction by its falsity, is, on that account, whether relevant or irrelevant, at any rate superfluous and useless. The falsehoods of the thief, or other unlicensed malefactor,—such falsehoods, especially when drawn from him by interrogation, in court or out of court, are pregnant with instruction, useful instruction: the fictions and other falsehoods of the lawyer, relevant or irrelevant, always superfluous and useless, barren of instruction, are pregnant with nothing but confusion and misconception, their intended fruit.

3. Of the nature of that sort of discourse which forms the matter of written pleadings, a slight sketch has been already given: of its inutility—of its repugnancy to the ends of justice—of its subserviency to the ends of judicature. Third sample of virtually irrelevant evidence artificially accumulated,—matter of written pleadings, and more especially of that sort of written pleading which is called special.

What! Pleading? the matter so carefully distinguished from evidence? Do you call pleading evidence?

It is, and it is not, evidence. It is not, to any good purpose; it is, to a variety of bad ones. It is not, for the purpose of giving termination, or at least any right termination, to the suit; it is, for the purpose of giving continuance to the suit. It is not, for the purpose of grounding any right decision upon, and in favour of, the merits; it is, for the purpose of grounding wrong decisions on points foreign to the merits. It is not, for the purpose of any decision, subservient to any of the ends of justice, because, being partly irrelevant and partly false, it is known to be unworthy of all regard, and accordingly no regard is ever paid to it: it is, for the purpose of producing, without compensation, that vexation, expense, and delay, for which a compensation is afforded by genuine evidence: it is, for producing that misdecision, the danger of which constitutes the characteristic mischief of false evidence.

In lawyers’ language, it is not evidence; because lawyers have settled with themselves not to give the name of evidence to any assertion, which, in case of mendacity, they are not prepared to punish. It is evidence, because, with the exception of that accidental and adventitious property, viz. that of subjecting the utterer to punishment in case of mendacity, it has all the characters of evidence.

It is not evidence, for the purpose of subjecting to punishment the liar by whom it is delivered; it is evidence, for the purpose of subjecting to pillage the innocent suitor at whose expense it is delivered.

4. Bills in equity may either be included under the last preceding head, or be considered as constituting a separate one.

The matter of them may be considered as part of the matter of written pleading, inasmuch as it takes shelter, along with the rest, under the wing of the mendacity-licence.

It may be considered as a separate article, in virtue of the multifariousness of its contents: in virtue of its containing (over and above the matter of assertion) matter of interrogation, and matter of surplusage,—general matter, which, if the appropriate matter happens to be more or less true, is still irrelevant.

From the rest of the irrelevant matter, which, whatever might be the consequence of omitting it, never is omitted, may be distinguished one never-omitted portion of scandal and impertinence: impertinence, and that of a scandalous nature, regularly put in by the learned person whom the party is forced to pay for keeping out scandal and impertinence.

Another difference. In the sort of matter that is more apt to be presented by the word pleading—in what at common law goes by that name—a man puts in, or does not put in, lies, as he sees convenient: at any rate, the obligation of mendacity does not extend to any of the assertions appropriate to the individual suit. In the matter of a bill, one necessary part is appropriate matter, in respect of which matter the learned draughtsman is forced to tell lies, on pain of loss of cause to his client; this part is distinguished by the name of charging part; a chain of assertions, constituting the indispensable foundation of the corresponding chain of questions. What you do not know, and ask to know (ask of the defendant whom you suppose to know,) you must declare that you know, and pretend to tell the court how it is.

5. To the account of the difference in respect of the mode of collecting the evidence, as between common law and equity, must be set down an unknown mass of irrelevant or otherwise redundant matter, in such of the written instruments as have the name of evidence. The commissioner or examiner, the judge ad hoc, by whom the evidence is extracted in this shape, is paid according to the quantity. That in this state of things a portion of surplusage should in the aggregate mass of causes be generated (not to say in each particular cause,) follows as matter of course. It is equally obvious, that the quantity of it lies not within the reach of calculation; varying with individual circumstances, as well as with the idiosyncracy of the individual in each individual cause.

6. Indistinctness is the parent, not only of confusion, but of surplusage. Confusion generates business: surplusage is business ready generated. In the courts called ecclesiastical, the plaintiff’s story, true or false, possesses at any rate that species and degree of distinctness which is produced by a division into numbered articles. The principle of distinctness thus infused into the charges, with the indirect questions virtually included in them, extends itself to the answers, and so on to any objections (or, as they are called, exceptions) which, on the score of insufficiency, or any other, may come to have been taken to the answer. In equity practice,—after the clouds of confusion that have been raised by an undivided bill, followed by an undivided answer, each with its train of surplusage,—two species of instruments (viz. the list of questions by which, under the name of interrogatories, testimony is extracted from extraneous witnesses, and the list of observations by which, under the name of exceptions, ulterior responses are called for at the hands of a defendant) have somehow or other been suffered to receive the benefit of this principle. To no lawyer by whom any such articulated instrument was ever drawn—to no professional lawyer (not to speak of judges,) could the distinctness and comparative perspicuity of the instrument thus divided, have ever been a secret: by no such lawyer could that confusion, which, in the undivided instruments, results from the non-application of that principle, have been unexperienced, have passed unperceived. It would therefore have long ago been applied to every such instrument, had distinctness been among the ends of judicature.

7. Of affidavit evidence, that worst sort of evidence, on which, and which alone, so many causes are tried—the only sort which a judge of the learned class ever receives for his own use,—mention has been made already. To point out how efficient, in the character of a cause of clearness, the same principle, articulate division, would be in this case, the slightest hint may (after what has been said already) suffice. In the case of a bill in equity, the line that separates question from question forms a sort of indirect principle of division, and thence of distinctness, however inadequate. In an affidavit, even this faint light is wanting. What can be more evident than the utility of affidavit evidence to the ends of judicature?

The confusion that pervades affidavit evidence is still more favourable to evasion; and thence (through the medium of deception) to misdecision; thence to vexation, expense, and delay, through the medium of irrelevancy. But its subserviency to the intermediate ends of technical judicature does not lessen its subserviency to these ultimate ends; nor therefore supersede the mention of it.

When, in a bill in equity, an answer, or a deposition, the adverse party has observed what to him appears to come under the denomination of scandal or impertinence,—he applies to the court, that the obnoxious instrument may be referred to the master (the subordinate judge of the court,) to report whether there be any matter of that description; and if yes, to cause it to be expunged: costs to be paid by the delinquent.

How useful an arrangement, if, in the equity (as the phrase is) of this equity practice, some master were employed, or some other connoisseur in scandal and impertinence, to look over the whole of the current mass of “practical forms” in this view. Ten volumes of this sort of matter lie before me, all in one modern publication, virtual folios, though nominal octavos.

Impertinence (to speak technically) he might find to constitute the ground of all of them; scandal, an appropriate sort of embroidery, in not a few: more particularly in those copious effusions of technical eloquence called indictments and informations: more particularly still where the effusion comes under the denomination of a libel, or (on that or any other score) comes under the denomination of a state or political offence.

On the occasion of a libel more particularly, certain scandal is (or at least used to be) regularly employed to encounter problematical; vicious or virtuous, the defendant’s life, character, and behaviour, is or was aspersed Between the two scandals, observe the difference: that which is certainly scandal, is uttered under a licence, and the author paid for it: that which may either be scandal or useful truth, is uttered without the licence, and the author, guilty or not guilty, together with an indeterminate train of innocent men in the character of printers and venders, is made to pay for it.

In the mean time, and until the master here spoken of shall have received the reference, and made his report, and that report been acted upon, and the expunction effected,—the way might be paved, at any rate, for such a reform, by a constitutional resolve: I mean, among jurymen, but more especially special jurymen, and on the occasion of all those political offences of which the mischievousness is so problematical as it is commonly in the case of state libels:—to lay it down to themselves as an inviolable rule, to pronounce a verdict of not guilty, if, among all these charges so coupled together in the conjunctive, there be a single one, which (whether capable of proof or not capable) is not fully proved. Of what use is that man’s conscience to him, who suffers an attorney-general, or any other lawyer at the bar, with or without the support of an imperious and brow-beating lawyer upon the bench, to force him to commit perjury?

CHAPTER VI.

EXCLUSION OF THE EVIDENCE OF A CATHOLIC PRIEST, RESPECTING THE CONFESSIONS INTRUSTED TO HIM, PROPER.

Among the cases in which the exclusion of evidence presents itself as expedient, the case of catholic confession possesses a special claim to notice.*

In a political state, in which this most extensively adopted modification of the christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded on this ground will probably appear too imperious to admit of dispute.

In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods.

Any reasons which plead in favour of the exclusion in this case will, à fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established.

These reasons seem referable partly to the one, partly to the other, of two of the heads above mentioned:—viz. 1. Evidence (the aggregate mass of evidence) not lessened; and 2. Vexation, preponderant vexation.

1. First reason in favour of the exclusion: mass of evidence not lessened by it.

Suppose it an established, and thence a known rule of procedure, that a catholic priest is not exempted from the obligation of disclosing (if called upon in a judicial way, like any other witness) statements made to him in such his character, by a person appearing before him in the character of a penitent, in the catholic sense: statements of such a nature, as would operate in the character of self-prejudicing (including self-criminative) evidence, if reported by such his confessor, in or for the use of a court of justice.

What would be the consequence:—That, of that quantity of confessorial evidence which is now delivered in secret for a purpose purely religious, a certain proportion (it is impossible to say what, but probably a very considerable one) would not be so delivered: would be kept back, under the apprehension of its being made use of for a judicial purpose. The rule would operate as a prohibition upon all such confessions for the spiritual purpose, as would be applicable to the temporal purpose: and the penalty would be, whatever consequence of a penal or otherwise burthensome nature might be expected to flow from the decision which such testimony would warrant, and would therefore be calculated to draw forth.

So far as the prohibition thus applied had its natural effect—the effect of preventing the practice,—so far, the support afforded to the exclusion by the reason “mass of evidence not lessened,” would extend. So far as the prohibition failed of being followed by this effect, the reason operating in support of the exclusion would be to be sought for under another head: vexation, preponderant vexation.

Of this vexation, then, what would be the quality and the amount? It would present itself in a variety of shapes:—

I. I set out with the supposition, that, in the country in question, the catholic religion was meant to be tolerated. But with any idea of toleration, a coercion of this nature is altogether inconsistent and incompatible. In the character of penitents, the people would be pressed with the whole weight of the penal branch of the law; inhibited from the exercise of this essential and indispensable article of their religion; prohibited, on pain of death, from the confession of all such misdeeds as, if judicially disclosed, would have the effect of drawing down upon them that punishment; and so, in the case of inferior misdeeds, combated by inferior punishments.

Such would be the consequence to penitents: to confessors, the consequences would be at least equally oppressive. To them, it would be a downright persecution: if any hardship, inflicted on a man on a religious account, be susceptible of that, now happily odious, name. To all individuals of that profession, it would be an order to violate what by them is numbered amongst the most sacred of religious duties. In this case, as in the case of all conflicts of this kind, some would stand firm under the persecution, others would sink under it. To the former, supposing arrangements on this head efficient and consistent, it would have the effect of imprisonment—a most severe imprisonment for life. As to those who sunk under it,—what proportion of the number would on this occasion be visited by the torments of a wounded conscience, and to what degree of intensity those torments would amount in the instance of each individual, are questions, the answer to which must on this occasion be referred by a non-catholic to the most competent judges amongst catholics: but a species of suffering, the estimation of which does not require any such appropriate and precise information, is the infamy that could not but attach itself to the violation of so important a professional as well as religious duty.

The advantage gained by the coercion—gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. Without reckoning the instances in which it happened to the apprehension to be realized, the alarm itself, intense and all-comprehensive as it would be, would be a most extensive as well as afflictive grievance.

But the vexation pointed to as above would not be the only price that would be to be paid for so inadequate an advantage. The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice.

To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely emporal, to the design of this work. The basis of the inquiry is, that this institution is an essential feature of the catholic religion, and that the catholic religion is not to be suppressed by force.

If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past: such are the well known consequences of the institution; though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form and the complexion of the moral part of their character in other respects.

But, without any violation of this part of his religious duty, and even without having succeeded so far as to have produced in the breast of the misdoer any permanent and efficacious repentance, modes are not wanting in which it may be in the power, as it naturally will be in the inclination, of a conscientious and intelligent confessor, to furnish such information as shall render essential service to the interests of justice. I mean, by ministering to the prevention of such individual misdeeds as, though meditated, are as yet at a stage short of consummation; or of such others as, though as yet not distinctly in contemplation, are in a way to present themselves to the same corrupted mind. Who the misdoer is, the confessor knows better than to disclose; as little will he give any such information as may lead to the arrestation of the delinquent, under circumstances likely to end in his being crushed by the afflictive hand of the law. But, without any such disclosure, he may disclose what shall be sufficient to prevent the consummation of the impending mischief. “At such or such an hour, go not, unless accompanied, to such or such a place: strengthen such or such a door: be careful to keep well fastened such or such a window.”

Warnings of this kind, if I understand a-right, have not unfrequently been given:—warnings, which might have been given, and would have been given in better times, might (had they been given) have operated as preventives to the most grievous public calamities. At the time of the religious wars in France, more than one of the fanatics, who, with different degrees of success, aimed a murderous hand at the person of the monarch, prepared themselves for the enterprise, according to the histories of the times, by previous confessions, in the course of which the design was more or less disclosed. Without exposing the intended assassin, it might naturally have been in the power of the confessor to have frustrated his flagitious project: without opportunity, the attempt would not have been made; and, without the attempt, the design would not have afforded evidence sufficient for the purpose of penal justice.

The discussion has been rendered the more particular, for the purpose of giving the clearer view of the essential differences by which this case stands distinguished from another, with which it might be liable to be confounded: I mean the case of those disclosures which may come to be made by an individual, criminal or non-criminal, to a law adviser, in the character of attorney or advocate; a topic which will come to be considered in its place.*

CHAPTER VII.

REMEDIES SUCCEDANEOUS TO THE EXCLUSION OF EVIDENCE.

We have seen how easily it may happen that the evils opposite to the collateral ends of justice shall be greater than the evils opposite to the direct ends; that the vexation, expense, and delay, produced by the delivery of this or that lot of evidence, shall constitute a greater mass of evil than that of the undue decision or failure of justice that may take place for want of it: and this, even supposing the misdecision to be not merely the accidental or probable, but the necessary, result of the exclusion put upon the evidence. We have seen that, in this case, if there be no other resource, the propriety of the exclusion is a necessary result.

But, how necessary soever, it is manifestly an extreme and a most disastrous remedy. It is sitting down under the disease, to save the unpleasant consequences apprehended from the remedy. It is taking the course the patient would take, who should resolve to endure the torment of the stone, in order to save the pain and danger of the operation.

But as, under the pressure of that bodily affliction, a skilful physician will naturally look out with anxious diligence for whatever milder remedy presents any prospect of relief,—so, where vexation, expense, and delay, is the disease, a vigilant and honest legislator will never embrace exclusion and thence misdecision in the character of a remedy, without applying all his industry to the discovery of other remedies that may be applied without contravention of any of the ends of justice.

If the exclusion of evidence be proper and justifiable in any case, it can only be in default, or by reason of the insufficiency, of such milder remedies. The indication therefore of what presents itself in that character, is a task which seems indispensable to the present work.

The following short descriptions may serve, in the first instance, to afford a general conception of the principal arrangements that offer themselves to this view. Explanations, when they appear necessary, will follow. Let it not be regarded as an objection, if a set of arrangements presented here in the character of succedanea to a comparatively narrow abuse, exclusion of evidence, should be found to include the leading features of a system competent to the extirpation of the immense mountain of abuse, of which that inferior hill forms a part. Its utility with reference to that extraneous purpose, neither destroys nor impairs its utility with reference to the direct purpose of this work.

I. Against vexation, expense, and delay, taken together:—

1. Anticipative survey of the contents of the budget of evidence on both sides.

2. Tribunals within reach:—in which is included, limitation of the local extent of judicial districts; thence augmentation, or (according to what has been, or has not been, done before) restoration, or non-reduction, of then number: the county courts, and more especially the hundred courts, of former times in England.

3. Sittings of each uninterrupted. Exemplifications: the different courts of conscience scattered here and there over the face of the country; but more particularly and literally the London police offices.* Also, the courts held to so many purposes by justices of peace, acting, not in general sessions, but in voluntary division meetings: or singly, at their own houses.

4. Meeting of the parties coram judice, at the outset of every cause, for the purpose of the above-mentioned anticipative survey, as well as for so many other purposes. Exemplifications:—practice of the courts of conscience, and of the courts held by justices of the peace, as above.

5. Examination by epistolary correspondence; and, by that means, of persons resident at any magnitude of distance: whether within or without the effectual jurisdiction of the court in question, or the government under which it acts. This, in the case where examination vivâ voce is barred by impracticability, physical or prudential.

II. Against expense, exclusively or more particularly:—

† (6) 1. Power to any party to insist upon the production of any evidence, notwithstanding any preponderancy of expense, on condition of bearing the burthen of it definitively, as well as in the first instance. This includes the defraying the expense necessary to the production of evidence deemed necessary to the opposite party, in preference to the seeing a decision pronounced in favour of the adversary (say the defendant) on the ground of the inordinateness of such necessary expense.

(7) 2. Advertisement for assistance to justice for the expense of evidence. The need of such assistance to be certified by the judge, if he thinks fit, after hearing what, on the occasion of the anticipative survey, has been said on both sides.

(8) 3. Abolition of taxes upon justice.

III. Against delay:—

Against delay, in respect of the contingently consequent deperition of the matter of evidence:—

(9) 1. Prompt collection of forthcoming, without waiting for the unforthcoming, evidence.

Against delay in respect of the contingently consequent deperition of the matter of satisfaction:—

(10) 2. Provisional decision on either side: taking sufficient security for restitution ad integrum, in the event of a subsequent production of the as yet unforthcoming evidence.

(11) 3. Provisional sequestration of the matter of satisfaction, without ulterior decision at that time.

IV. Against vexation to the judicial breasts, and consequent delay, in the paramount appellate judicature of the House of Lords (a very particular case, peculiar to the British constitution.)

(12) 1. Application of the principle of the Grenville Act to that upper house of parliament.

After this summary view, let us now descend to particulars.

I. Remedy the first:—Anticipative survey of the contents of the budget of evidence; viz. of the contents of it on both sides, and (when there are divers persons on the plaintiff’s side, or on the defendant’s side, or on both) on all sides.

That vexation, expense, and delay, may be saved, by putting an exclusion upon a lot of evidence, is manifest enough. Be the evidence ever so necessary to right decision, the production of it will always be attended with some portion (be it ever so small) of each of those collateral inconveniences. Exclude the evidence, you exclude right decision, you exclude justice; but, on the other hand, you exclude along with it those collateral, and minor, and (generally speaking) inferior, inconveniences.

Among the advantages resulting from the preparatory operation, one is obvious enough: the exclusion which it would, every now and then, enable the judge to put upon evidence that would otherwise have been to be received—upon evidence deemed irrelevant or superfluous; which is as much as to say, of such a nature, that, by the exclusion of it, no prejudice could come to the ends of justice.

But, on the present occasion, it is not in the character of a means of exclusion that this operation is proposed, but as a means of saving the judge from the necessity of putting exclusion upon evidence: from the necessity of an operation so adverse, or even fatal, to the direct ends of justice, in the case where the lot of evidence which but for that survey would have been to be excluded, was material; and still more, if it was absolutely necessary to enable the judge to pronounce such a decision as shall be conformable to those direct and principally-to-be-regarded ends. In this character, the use of the anticipative survey is not quite so obvious as in the other character just mentioned.

1. Under the blind arrangements made, on the ground here in question, by English jurisprudence (a limited allowance of time for the whole trial, including the production of all the evidence—a limited allowance of time, for a quantity of business that may be any number of times greater than the whole quantity of the business that can possibly be done in that time,)—an incident which, for want of such anticipative survey, must every now and then take place, is, that, in the confusion produced by this forced condensation, a quantity of evidence altogether indispensable shall stand excluded; while another mass, which upon the anticipative survey would have been seen to be superfluous, has been admitted. Introduce the anticipative survey, the superfluous evidence is excluded; and, by means of the room thus gained, the indispensable mass of evidence, the evidence necessary to the principal end of justice, is let in.

Of the blind fixation and limitation of the quantity of time allotted for the reception of a mass of evidence, the quantity of which, for the purpose of any general rule, is incapable of being foreknown,—of this imbecility or this fraud, the consequence is, an indiscriminating exclusion of an indeterminable proportion of the whole mass of the evidence which would otherwise have been delivered. Of the prevalence of this blind practice in the English system, an indication somewhat more in detail has been given in another place.* Rendering the practice on this head completely consistent with the ends of justice, is what could not be done without the abolition of those barricades, and the restitution of natural liberty. But, supposing them to remain, in the proposed anticipative survey may be seen the only remedy by which the venom of that abuse can be mitigated, and the mischief of it reduced.

English home-bred law, as also Rome-bred law (English as well as continental,) afford each of them a remarkable exemplification of a blind and indiscriminate exclusion put upon masses of evidence, in nature as well as quantity altogether indeterminate: English home-bred, by means of the limited and unextensible quantity of time allowed in most cases for the reception of the whole mass of evidence; Rome-bred, in consequence of the studied secrecy, by the operation of which the door is shut against all such counter-evidence, or other ulterior evidence, the demand for which would have been created and made known, had the mass of evidence adduced by each party been known in time to the other. These examples, while they bring to view the demand for the anticipative survey here proposed, will serve to show, at the same time, how exclusion of evidence is liable to be produced, not only without benefit, but without thought: and, while they show the use of this survey in other respects, will also show in what it has the effect of preserving from exclusion, evidence which would otherwise have been subjected to that fate.*

The following would be the sort of anticipative survey which I would propose:—

Each party, in the presence of the other or others, produces a list of the contents of his budget of proposed evidence: names and descriptions of the proposed witnesses; whence they or their testimony have to come; with the articles of real and written evidence (if any) which they will respectively have to produce, and the particular purposes for which each article of evidence is wanted. Each party, in a word, gives in, for the consideration of the judge and the opposite party or parties, the same sort of information (so far as evidence is concerned) that, under the existing system each party’s attorney puts into the sort of document called a brief, for the instruction of the advocate.

Results of such a survey:—

1. All evidence which (supposing it to be true) will, in the opinion of the judge, be either irrelevant, or unnecessary, or unavailing, discarded beforehand: and the vexation, expense, and delay, attached to the production of it, saved.

2. Item, all evidence, from the production of which, though material and even necessary, a preponderant amount of vexation, expense, and delay, would be inseparable.

3. In the instance of each article, arrangements taken in concert, for the production of it in such time and manner as shall be attended with least delay, vexation, and expense.

It is only where the cause labours under a certain degree of complexity, that the demand for this sort of survey can have place. In the great majority of causes, this one meeting would serve for the termination as well as commencement of the cause: as it does in the English courts of conscience.

In some cases, neither the effect nor the substance of the evidence can be anticipated: the effect of an original, for example, from an alleged transcript: and the points to which it is possible for a witness to speak may often be foreknown with certainty, when the effect of his testimony can not reasonably be presumed.

Many are the cases in which the irrelevancy or inutility of one mass of evidence follows with certainty from the omission of another. Discard Titius, all testimonies respecting his character, all evidences which are wanted for no other purpose than to operate in opposition or support of his, become (whether irrelevant or no) useless.

Confront the anticipative survey with special pleading. The information which special pleading gives (or rather professes to give without giving,) and in the worst possible mode, and by a chain of communication purposely wire-drawn through a course of months or years,—that, and more, the anticipative survey gives, freely and honestly gives, in the course of a single meeting, commonly in fewer minutes than the other course would consume months. Special pleading brings forward the allegations, carefully keeping back the evidence (if any) from which they are to receive their support: the anticipative survey brings to view at the same time, the allegations, and either the evidence itself or the sources from which it is to come. Special pleading, giving (i. e. selling) encouragement, reward, to false allegations, to which,—exempting them from the punishment provided for allegations recognised in the character of evidence,—it has secured the effect of evidence: the anticipative survey, throwing the sunshine of cross-examination upon every syllable that is said,—call it allegation, call it evidence.

Meantime, this anticipative survey, what is it? Is it vision, imagination, innovation? Comes it from Formosa? from Utopia? No: not it indeed: nothing is there in the least new in it, but the name. You may see it, in every court where Justice is in honour, and, at the same time, permitted by Power to show her face. You may see it in every arbitration court; in every police office; in the court of every justice of the peace throughout the kingdom, acting out of the trammels of regular iniquity. You may see it in any court of conscience, as often as the nature of the cause admits of its containing a mass of evidentiary matter complex enough to afford a demand for any such distant scrutiny. You may see it in every counsel’s, in every attorney’s, brief: with no other difference than between complete, correct, and voluntarily or involuntarily honest, information, on the one hand, and, purposely incomplete, purposely incorrect, mutilated, garbled, sophisticated, on the other.

II. Remedy the second:—Tribunals within reach.

In other points of view, the importance of this remedy belongs not to the present purpose. Diminish in idea the importance of the matter in dispute in the cause; increase the distance of the spot from which a witness, or the bearer of an article of real or written evidence (who to this purpose may be called a witness,) has to come; increase, in like manner, the number of such witnesses;—you may always bring about a state of things in which the vexation, expense, and delay, attached to such conveyance, shall severally or jointly form a mass of collateral inconvenience preponderant over the evil opposite to the direct ends of justice in the case in question; over the evil of misdecision. But wherever this reversal of the more usual and natural proportion takes place, exclusion of the evidence (though misdecision follow) is the result authorized and required by a due regard to the aggregate of the ends of justice. But misdecision, especially when manifest, is a great and glaring evil: it is a lamentable resource. Diminish, on the other hand, the distance of the spot from whence the witness or witnesses have to come, in order to reach the seat of judicature, you may make sure of coming to a state of things in which the aggregate inconvenience of vexation, expense, and delay, by reason of attendance, can never be equal in weight to the evil of misdecision in any the least important cause.

The length to which, in point of prudential and even physical practicability, the application of this remedy can be carried, depends, it is manifest, upon the state of the population. Confront, on this ground, the state of London or Paris, with that of Siberia or the back settlements in America.

In default or aid of vivâ voce deposition and examination, comes naturally the epistolary mode, as mentioned elsewhere. Unfortunately, the same causes which render the establishment of tribunals within everybody’s reach for vivâ voce deposition and mutual examination of the parties, impracticable, render the epistolary mode of communication unapt to be generally practicable.

But, in this same state of things, the substitution of professional agents, as under the technical system, would in general be not less impracticable; and, instead of assuaging the inconvenience, would be more apt to aggravate it.

The consequence is, that, in a thinly peopled country, for slight injuries (more precisely as to the degree it is impossible to speak) the nature of things admits not of a remedy. Within the bosom of each family, absolute power in the head; as between a member of one family and that of another, independence and anarchy: such is the state of things, unless in so far as it may be susceptible of relief from the occasional and rare visitations of delegated (yet to this purpose absolute) power from a distance.

In a system of abuse, particular abuses serve sometimes as palliatives, sometimes as covers and apparent justifications, to each other.

In the absence of tribunals within reach, may be seen the most plausible pretence for the expulsion of the parties from the presence of the judge.

Out of British ground, it would be difficult to form an idea of the pitch to which the grievance opposite to the arrangement now proposed has been raised in England. Value at stake, a few thousands of pounds, or a few shillings; station of the judge in the metropolis; abode of suitors at 350 miles distance.

Even in England, it is comparatively an innovation. In former times, each county, each hundred, had its court; not to speak of minor ones: and if for one sort of cause, why not for another? But the great judges, whose lips were close to the sovereign’s ear, stole the sword from his side, and crushed their little rivals at a distance: the metropolitan courts swallowed up the country ones. By these and other devices, personal attendance being rendered intolerable to the parties,—admission of substitutes, under the name of attorneys, was prayed for, and granted, as an indulgence. Dependants, accomplices, and instruments of the judges,—these substitutes became the natural enemies, and (with their confederates the advocates, called serjeants and apprentices) the sure betrayers, of the parties their employers.

To these real grievances, circuit courts added a sham remedy: excess of delay, crowned by excess of precipitation. In each separate cause, six or twelve months consumed in the London offices, in doing worse than nothing; at each one of a given list of county towns, from one to four days employed in a year, in running causes against time: for any given number of causes, each of any given length, exactly at every place the same time.

III. Remedy the third:—Sittings uninterrupted.

This remedy corresponds to another article in the list of the devices of the technical system, viz. fixed times with long intervals; and consists in the removal of that abuse. In other respects, the mischievousness of that abuse, the consequent importance of this remedy, are topics that belong not to the present head.*

What belongs to the present head, is to show how the evil attached to misdecision by reason of exclusion of evidence, and thence to exclusion of evidence, may be removed or lessened by these other means; viz. by filling up the vast gulfs fixed at present between the to-day and the to-morrow, in the chronology of technical judicature.

In Westminster Hall, as everybody knows or is supposed to know, there are exactly four days, and no more, in every year: each day consisting of twenty-eight ordinary days, more or less. Distance between to-day and to-morrow various: minimum, about one month; maximum, more than four calendar months.

In the rest of England, certain northern counties excepted, there are, according to the same chronology, but two days in a year, viz. in the juridical metropolis, the assize town of each county: each such day consisting of two ordinary days, or thereabouts; distance between to-day and to-morrow, half a year.

In three northern counties there is but one such day;† the length of it not differing, in any considerable degree, from that of a southern day: distance between to-day and to-morrow, one whole year.

To give a complete and accurate system of juridical chronology would be to give a complete institute of a separate branch of science, forming, as already observed, a twig of that branch of the flash language. Illustration only being the object here, the above outline will be sufficiently full and accurate for the present purpose.

Of these great gulfs between day and day, the effect in respect of exclusion of evidence is two-fold:—1. To increase the evil of it, when it takes place; 2. And thereby the cogency of the demand for it.

The plaintiff’s right rests upon a deed. To-day the original is not, could not have been, forthcoming: to-morrow, at least for anything that is known to the contrary, it will or would be: a transcript, a correct and complete transcript, is forthcoming now. But, the original being in existence, the transcript, not being the best evidence, stands excluded, unless the defendant, by and with the advice of his learned assistants, thinks fit to admit it.

Observe now the difference between natural time, and juridical time.

The juridical to-morrow, is it the natural to-morrow? The delay, taken by itself, is scarce an object to either party: no advantage worth stickling for to a malâ fide defendant and his learned accomplices. The expense, though commonly an inferior, would indeed be something of an object more or less (understand the expense of a fresh hearing, with its fresh fees.) But, forasmuch as in most cases the costs on both sides fall to the charge of him against whom the decision passes, the costs of the delay thus purchased would fall upon the purchaser: and the amount of the respite being, by the supposition, no more than a natural day, it can scarce ever happen that the advantage thus to be purchased shall be adequate to the expense. He will, therefore, of course, admit the transcript instead of the original: in other words, not call for the putting upon the original that exclusion which he has a right to call for.

The juridical to-morrow, on the other hand, is it so long to look for as this day six months? In the ordinary state of things, the exclusion of the inferior second-hand evidence will be rigorously exacted. The injured plaintiff excepted, it is the interest of all parties that the application of the excluding rule be exacted without mercy. It is the interest of the malefactor’s learned accomplices of all classes; and they have taken care that it shall be his. Costs of to day’s fruitless hearing; so much revenge at any rate. Half a year’s interest upon the sum due; or, what comes to the same thing, upon a sum equal to the value of the service (in what shape soever) demanded by the plaintiff, at the charge of the defendant, at the hands of the judge. Half a year’s interest upon the sum due: to this amount is the premium which the learned contrivers of the system have taken care to secure, for encouraging men to engage and persevere (in the teeth of conscience) in the defence of a bad cause: a bounty, to the value of which, as any one may see, there are no limits. Add to the above, the chance of saving the principal, by the deperition of the evidence in the course of this juridical day; or the certainty of it by withdrawing the matter of satisfaction, the defendant’s property, out of the plaintiff’s reach. Add again two other chances, which, in a mass of cases covering a great exent of ground in the field of law, for the better encouragement of business-making injustice, the same learned wits have been ingenious enough to provide, and happy enough to preserve. In many cases, upon the death of the malefactor, death of the suit, for the benefit of his representatives: upon the death of the party injured, death of the suit, for the benefit of the malefactor himself.

Thus stands the premium in the south of England; and in the northern counties above mentioned, the value of it, as above mentioned, is exactly double.

Thus at common law: but in equity, it sets calculation at defiance.

Thus stand the interests of the defendant, dishonest or honest: thus stand the interests of the defendant’s honest or dishonest, but in both cases equally unpunishable and irreproachable, professional assistants and advisers.

But the interest of the injured plaintiff’s assistants and advisers, which way do they point? The same way as those of their own client? No: but the same way, and with equal force, as those of his adversary’s equally learned professional assistants and advisers.

In this state of things, is it in the nature of man—is it in the nature of the man of law, that the exertions made for the admission should be equally sincere, equally strenuous, with the exertions made for the exclusion, of the evidence?

In equity you have plaintiffs and defendants by dozens, scores, or even hundreds, on a side. Observe the consequence: Mors Ricardi, vita Roberti; from the mortality of the suitors, comes the mortality of the suit. One of the plaintiffs dying, the lawyers kill the suit: then comes a bill of reviver, to raise it like the phœnix from its ashes.*

IV. Remedy the fourth:—Meeting of the parties at the outset, in the presence of the judge.

This remedy corresponds to the first and fundamental article in the list of the devices of the technical system, viz. exclusion of the parties from the presence of the judge: and consists in the removal of that abuse. In other points of view, the mischievousness of that abuse, the importance of this remedy, belong not to the present purpose.

What belongs to the present purpose, is simply the importance of this meeting, and at this stage of the cause, to a preceding article in this list of remedies—the proposed anticipative survey of the contents, of the budget of evidence on both sides, nor to this operation in respect of every beneficial effect with which it is pregnant, but only in respect of the room it is capable of making for material evidence, by the exclusion of superfluous and less material evidence.

In regard to the matter of fact which constitutes the principal subject-matter in dispute, it may, in the instance of each one of the parties, have happened, or not have happened, to him, to have been in a situation enabling him to deliver evidence, direct or circumstantial, respecting it. But a matter to which it is scarce possible, in regard to either of them, that he should not be able to speak, in the way of evidence,—and to which, in most cases, he will be better able to speak than any one else,—is the result and particulars of his information and expectations relative to the quantity and quality of the mass, and of each article in the mass of the evidence which he looks upon himself as able (with the assistance of the arm of justice) to procure.†

Whether the correctness, or the completeness, of the information on this head be considered—whether in each instance the party be considered as honest or dishonest, sincere or insincere,—the importance of his presence will still be out of doubt. Honest, his own purpose—dishonest, the purpose of his injured adversary—can never be adequately answered by any person in his stead.

It is from himself, in most instances, that the information will have to come. From any other person, from any professional law-assistant of his, the information thus afforded would in all such instances be upon no better footing than second-hand evidence, derived, or pretended to have been derived, from the client: false perhaps in its origin, and without danger to the author of the falsehood; or, if true, truncated or perverted by the negligence or sinister interest of the lawyer through whose lips it would be to be delivered.

From the original source, the breast of the client, all pertinent questions that could be put on the other side would come accompanied with a reasonable expectation of their extracting (true or false) an instructive answer. Directed to the breast of the law-assistant,—if, on the part of the client, there were any deficiency in respect of the maximum of honesty and sincerity, all such expectation would in general be vain. Such and so much information as in the conception of the client it would be for his advantage to be handed in to the judge,—such and so much he would (in so far as it occurred to him) communicate to his professional substitute for that purpose: such and so much as in his conception threatened a contrary effect, such and so much, it would be equally his care not to communicate.

In lieu of original vivâ voce testimony, conceive the business of the proposed survey managed in the only way in which learned judges will allow themselves to manage by themselves any sort of evidence—by the affidavit testimony of the parties, their respective attorneys, or all together. With the outside show of justice, the learned and venerable personages in question would as usual be delighted; with the inward fruit and effect, they would not, any more than usually, be afflicted.

On this, or any other occasion, affidavits from the defendants, lawyers or non-lawyers, would they be an adequate succedaneum to the presence of the deponents themselves? Yes, if, like the man, the paper could stand up and answer questions, could betray what it would wish to conceal,—by blushes, by hesitation, by evasive responsion, by self-detected or otherwise detected mendacity, or by silence.

V. Remedy the fifth:—Examination in the epistolary mode.

This remedy has not its counterpart anywhere in the list of the engines of chicane.

The idea of this remedy is, on the contrary, drawn from that fountain, in other respects so rich in abuse, the practice of the courts of technical procedure.

The mode here in question is the mode in which, in equity procedure, evidence is extracted from a defendant, by the bill, the amendments (if any) to the bill, and the exceptions (if any) taken to the answer.

That this mode, if substituted to the best mode (examination vivâ voce per partes et per judicem) is not so favourable to the ends of justice, as the same mode subjoined, where the importance of the cause warrants so great an addition to the delay, vexation, and expense—subjoined, I say, to that vivâ voce mode—seems to be out of dispute.

But a case has been already mentioned (and that a case which, in so commercial a country as England, cannot but receive frequent exemplification,) in which vivâ voce examination will be in general not to be obtained; viz. where, at the time in question, the residence of the proposed witness is within the dominions of some foreign state. In this case, if no assurance, regarded as sufficient, be given, that the proposed witness will, within a sufficiently short interval, be forthcoming in England (taking that for the proposed country,) in such manner that his testimony shall be delivered in the accustomed mode (regard being had to the nature of the suit,)—the effect of the expatriation is thereby to put an exclusion upon the testimony.

In this same sort of case, it will not unfrequently happen that the proposed witness, though at the time not resident within the jurisdiction of any English court, shall in effect be not the less subject to the power of it; as (for example) in virtue of some property there, which he is unable or unwilling to remove; or in virtue of any other bond of attachment, by which his affections are fastened to the spot.

In this case, give to the party who has need of the testimony the power of extracting the testimony of the proposed witness in this mode, you apply a remedy succedaneous to that of exclusion; you obtain a mass of evidence, which (by reason of the delay attached to the production, or to the chance of the production of it) it might otherwise have been necessary—prudentially, or even physically, necessary—to exclude.

Upon the face of it, this remedy is bad in the way of diet, good in the way of medicine: bad, by reason of the opportunity it allows for mendacity-serving premeditation and instruction, and of its depriving the cause of the circumstantial evidence afforded by deportment: good, viz. in cases where, premeditation being necessary to complete and correct responsion, examination vivâ voce is not of itself sufficient; and in the cases in which, by reason of distance from every judgment seat the power of which is applicable to this purpose, such examination is not to be had.

Pursuing no ends but those of judicature—blind, when not hostile, to all better ends,—the English technical system, where it does employ this remedy, employs it in the way of diet—refuses to employ it in the way of medicine.

In the room of the mode of examination better adapted (as above) to ordinary use, English equity, within the irregular and comparatively narrow field of its jurisdiction, employs this mode of examination in all cases. In lieu of that preferable mode of examination, where rendered impracticable by distance, it does not indeed reject altogether the assistance of this remedy, but, by useless clogs and conditions impairs the efficacy of it. The defendant himself being the proposed witness—his own self-regarding testimony being to be extracted by the adversary, in the hope of its having the effect of self-prejudicing testimony,—a set of commissioners are to be sent to the antipodes, or found there, to apply to him, in the character of a security for veracity (by means of the ceremony of an oath,) that eventual punishment, to the application of which no such ceremony is (except thus by positive institution) necessary. From the plaintiff, while remaining such, no such testimony is permitted to be obtained; and from an extraneous witness, though in the same cause, testimony (if in that distant situation extracted at all) is not allowed to be extracted in that mode; is not allowed to be extracted but in another, the vivâ voce mode, per judices ad hoc, appointed on both sides, the parties not present (neither by themselves nor by their advocates;) nor in any mode can it at this distance be extracted but by consent of parties on both sides.

Out of the comparatively narrow field of equity jurisdiction (with the addition of the still narrower fields of ecclesiastical court and admiralty court jurisdiction,) the remedy, except in an extraordinary case presently to be mentioned, is alike unknown for diet and for medicine.

From the superior courts of common law, commissions for taking examinations of witnesses (extraneous witnesses only, not parties in the character of witnesses) have been known to be sent into foreign parts, in imitation of the commissions issued, also, at more early periods, and in more frequent instances, from the courts of equity, as above.* But this appears never yet to have been done, but by consent of both parties. Precious remedy! Good against bonâ fide, inapplicable against malâ fide, litigation! Inapplicable, where the disease cries aloud for remedy: good, where there is no disease, or next to none! But, in this case, the mode of examination, whether better or worse than epistolary, is not epistolary, but vivâ voce.

Neither by equity nor by common law is the remedy applied in any other than that class of causes indicated by the denomination of civil, synonymous in this case to non-criminal causes.

Such, according to a rough outline, are the distinctions themselves: causa patet, here as elsewhere.

When, to give the suitor a partial relief under the denial of justice produced in the practice of the common-law courts by the exclusion of both parties from the presence of the judge, equity came in and proffered her treacherous assistance,—it was on condition of paying her retainers to scribble questions instead of speaking them; and thus, instead of prompt and spoken answers, to extract studied answers, manufactured by others of her retainers, to be set to work on the other side. On what occasions was it that these pretended servants of justice were ready and desirous of lending to this purpose their dear-paid services? Not on the few occasions alone in which, on the part of the party in the right, and for the purposes of justice, there was a real need of it; but on all occasions in which, by the sale of their services, there was money to be got; that is, on all occasions whatever, that arose within the limits of that field, which, in the scramble for jurisdiction had fallen to their share.

VI. Remedy the sixth:—Remedy the first applying to expense alone. Power to either party to charge himself with the expense of an article of evidence, to the relief of a party on the other side.

The application of this remedy admits of two diversities. Forget not that, in both, the use of it is to serve in the character of a makeshift provision, the intention of which is to save justice from the danger which she cannot fail of incurring as often as the door is shut against needful evidence.

The first case is where, it being presupposed that the burthen of the evidence on both sides is to be made to rest on the shoulders of the party in whose disfavour the cause is decided, this burthen (as to such part of it as one of the parties has created) would, when compared to the value in dispute, be too heavy to be thrown on the other of the parties. Value in dispute, say £5: expense of necessary evidence on the plaintiff’s side, say £500: expense of evidence on the defendant’s side, not worth bringing to account. Under the natural arrangement respecting costs in ordinary cases, the plaintiff producing this expensive evidence, would, in case of success, be entitled to throw the burthen upon the defendant. But, rather than that any such disproportionate oppression should be inflicted, much better would it be that this thus inordinately expensive evidence should be excluded; although of such exclusion the consequence by the supposition would be, that, as to the subject-matter of the demand, the £5, the plaintiff would be without remedy.

But suppose the plaintiff to stand up and say, My honour, my interest, or, if so you will have it, my caprice, is (in a way which I do or do not choose to mention) in such sort concerned in the business, that, rather than not have the business settled, I am content, in the event of my gaining the suit, to remain charged with the burthen of this mass of evidence. The remedy here in question consists in the making it a matter of obligation, or of discretion, on the part of the judge, to accede to a proposition to the above effect.

The remaining case is of a nature not so apt to take place, nor, in respect of the matter of fact, so easy to establish.

The plaintiff having brought his action for the £5, as before, the defendant stands up and says, I have a good defence; the money is not due. But, to produce the evidence necessary to the proof of this my defence, an expense of not less than £500 would be indispensable: I have or have not the £500; but, whether I have or no, the hardship of being charged with such an expense would be extreme. A less evil would certainly be the payment of the £5 claimed, though not due: but persuaded as I am that nothing at all is due, even this would be no small hardship on me.

To apply the proposed remedy to this second case, it would be necessary for the plaintiff on his part to stand up and say (reasons imaginable as before,) Rather than not have a decision in my favour on this my demand, I am content to relieve the defendant from this expense, and take it upon myself, enormous as it is, in the first instance. Here is the money: let it be applied to the production of the evidence, in the keeping, and under the direction of the court.

Even here the disproportion is not too great to have been actually exemplified. But, if it appears too great for probability, pare it down till you bring it within the pale.

To pre-establish, in relation to the article of evidence in question, every circumstance necessary to give probability and rationality to the offer above exemplified,—the nature and effect of this distant evidence, the trustworthiness of it, the necessity of that expense to the obtaining it, and the assurance of its being obtained by means of that expense,—will be apt to be matter of no ordinary difficulty. But cases where the necessary expense has been much greater, have been already examined, and, when the expense of a voyage round (or about half round) the world is considered, may easily be conceived: and as to the probable nature and effect, and the trustworthiness, these are points continually exposed to uncertainty, and as continually calling for calculations, which by each suitor, on his own account, are as constantly made: with more or less anxiety, ability, and exactness.

Where the expense of producing the evidence rises to a certain pitch, the resource of epistolary examination will, in most cases, be apt to present itself as being upon the whole the more eligible remedy.

The discussions necessary to the settling of the several points in question, as above, presuppose the establishment of the proposed anticipative survey, and help to exemplify the utility of it. They are no other than such as, in every day’s practice, come under discussion between client and attorney. In the place where the scene lies, rests the only difference: in the one case, the client’s parlour, or the attorney’s office; in the other case, the place of mutual rendezvous, the court of justice.

Technical practice—English or continental, English home-bred or continental Rome-bred (it is but repetition to say,) knows of no such remedies—knows of no such temperaments. The pound of flesh on the one side, or the pound of flesh on the other: such, when the flesh of suitors is concerned, is the alternative given by the man of law. In either case, the man of law makes equally sure of his share.

VII. Remedy the seventh:—Remedy the second against expense alone. Advertisement for pecuniary assistance for defraying the expense of evidence.

If ever there can be a beneficial application of money, it is this. To every man, be he who he may, what is more valuable, what more necessary, than justice? What is there that is valuable to a man, and of which the preservation depends not upon justice? By whom can property, reputation, condition in life, life itself, be retained—by whom can property, reputation, or condition of life, when ravished, be recovered, without justice?

Gratuitously bestowed, what can be more generously bestowed than assistance given to a man to enable him to call in to his assistance the hand of justice?

Gratuitously, or for a price, what assistance can be more innoxious, more secure against all abuse, than assistance lent to justice—lent under the direction of the judge?

On every occasion on which charity presents a demand, what nation so prompt, so ardent as the English, to pour the balm of relief into the bosom of distress?

The probability of the demand for an inordinately expensive mass of evidence—the nature, materiality, and necessity of the evidence so demanded,—the inability of the party to defray the expense; all these points have been established to the satisfaction of the judge, by the anticipative survey. He gives a certificate, and (with it, and on the ground of it) an authority to solicit for this purpose, from the lovers of justice, contributions, to be lodged in the hands of the officers of the court.

The lawyer alone continues to uphold the scarecrow set up so many centuries ago to frighten away from this field the hand of charity. For depriving the indigent of all chance for justice, what has been left undone that could be done? Claims that for indigence, for mere indigence, could not be prosecuted, have been forbidden, as if in odium spoliati* —are still forbidden—to be sold.

Advertisement for subscriptions? Oh yes: for relief of distress in other shapes, no rule of law forbids it. But for distress (however exquisite) for lack of justice, advertisement would be useless: subscription would be too dangerous. Dangerous? Yes, dangerous: for has not the man of law contrived to convert it into a crime? Charity thus exercising itself, has it not, by the spell of jargon, been stamped with the name of barretry, or maintenance, or champerty, or some other stigma, on pretence of which, charity, or mutually beneficial traffic, may be alike converted into crimes? Perhaps yes; perhaps no: here, as elsewhere, authorities lean one way, authorities lean the other. In waters thus troubled and thus deep, what is the wonder if men choose not to run the risk of being drowned?

Forty years ago this abuse was denounced, in company with a kindred abuse, still more mischievous, because still more extensive.* Forty years hence the denunciation may be repeated, and with as little fruit. For, under the reign of jurisprudence, one generation witnesses the birth of an abuse, three or four more the maturity, and then perhaps comes the death.

As to the buying and selling of legal demands of all sorts, the only objection that could at any time have been made against it, is in this strain: judges are so weak, so dependent, so cowardly, so corrupt—feudal barons so profligate and so formidable, that, after buying a bad title for the purpose, by his own hands or by that of a retainer of his, a baron (it will frequently happen) will, by bribery or intimidation, engage the judges to give to this bad title the effect of a good one.

Supposing it good for anything, what an argument, to come from learned lips!

Supposing it at that time good for anything, what would it be worth at present? Between the present state of judicature in that respect, and the state of judicature as above delineated, is there any more resemblance than between the present state of judicature in England, and the present state of it in Otaheite? Three or four centuries ago, the benefit had danger mixed with it; therefore, now that the effects of the remedy would be all pure benefit, the proscription put upon it is to continue: such is the logic of jurisprudence.

Not that there ever was, or could have been, a time in which the reason was worth a straw. He who could thus convert a bad bought title into a good one, what should have hindered him from giving the same effect to a bad one of his own making? The purchase-money would have been so much saved, applicable to the purpose of bribing the judge, or suborning witnesses.

For restoring the indigent to a chance of justice, there is what is called a remedy, in the pauper acts. Like so many others, however, to which men of law have given a permit, it may be set down to the account of sham remedies. What it applies to, is that factitious part of the expense, which ought not to have been imposed upon the most opulent: what it does not apply to, is that part (that here in question included) which presses upon all ranks, being natural and inevitable.

VIII. Remedy the eighth:—Abolition of taxes upon justice.

In speaking of this or any other expedient for obtaining pecuniary supplies for the relief of this species of distress, it is impossible to avoid thinking of the factitious loads by which it has everywhere been aggravated. I speak not here of what has been done by the judge for his own profit; but of what has been done by the finance minister for his own use. The subject has elsewhere been treated pretty much at large. See “Protest against Law Taxes,” (Vol. II. p. 573.)†

Upon evidence itself, the tax does not in every instance bear with any peculiar weight. But, being imposed in the preliminary proceedings rendered necessary to the introduction of evidence, and the subsequent proceedings necessary to the giving effect to evidence, the influence is the same as if the tax had been imposed directly upon the evidence.

Like most other taxes, it operates partly as a burthen, partly as a prohibition: as a burthen upon him who stands up for his right, notwithstanding the tax; as a prohibition upon him who (through utter inability, or in choosing the least evil) gives up his right: giving up a just debt or other demand, or submitting to an unjust one, or submitting to be punished for an offence never committed, by the coercive force of the tax.

A tax upon capital, when the amount is considerable, is regarded as a bad tax. Why? Because, for the sake of a present supply, it nips future prosperity in the bud. The force of the objection, it is evident, depends upon the quantum. The tax may be a very bad one, or it may be as tolerable as most others.

But a tax upon capital would be a blessing, in comparison with the taxes upon justice. It takes men, indeed, as it finds them; but it does not single out the distressed.

The existing taxes upon justice are a tax upon the distressed, falling almost always upon capital, carrying off sometimes this or that proportion of capital, and (by the help of those other taxes upon justice, which are imposed by lawyers for their own benefit, and sunk in the pockets of the collectors) in many instances the whole of it.

They fasten down, in a state of slavery under the rich, not those commonly understood by the name of poor—indigent persons of the labouring classes—but the indigent of all classes.

The tax on medicine, though equally bad in principle (and the only one that can be so,) is, in comparison, owing to its comparative lightness, probably much inferior in mischievousness. If it were possible that a return should be made of the number of persons killed by it in England, in a year, I should not expect to find it amount to more than a few hundreds.

A law-suit is a perpetual blister upon the mind. If your wish be to do as much mischief as possible by another tax to the same amount as that of the impost upon justice (including that part which lawyers have imposed and collect for their own benefit,) get a return from the physicians and apothecaries all over England, of the patients under their care, and distribute among them an impost to an equal amount. Proportions are of course no more to be regarded in the one case than they are in the other: but, lest the lawyer and his partner, the law-taxing financier, should leave you behind them, omit not to employ collectors to go about in cold nights to strip the last blanket from the beds of the most wretched of the patients.

The medicine tax, if it kills men, suffers them to die at home. The law-tax sends them to rot, broken-hearted, in jails.

Oh, but the necessities of the country are so great! they furnish us an excuse for bad taxes: be the oppression of the tax more or less, it is too late to think about it. Notable excuse for barbarity and ignorance! Exactly the reverse: the greater the aggregate pressure of the taxes, the more solicitous should be your study to choose the least oppressive.

IX. Remedy the ninth:—Remedy the first against delay: and thence against intervening deperition of evidence, and of the matter of satisfaction:—Collection of forthcoming evidence, without waiting for unforthcoming evidence, or for fixed days.

Of those things which ought to be done, what is there that ought not to be done at the only time at which it can be done? Because one lot of evidence cannot yet be had, or because, though it might be had, it is not suffered to be got, is that a reason why another should be lost? In an exclusion thus indirectly put upon a lot of evidence, value unknown, is there anything like common honesty or common sense?

This remedy (so far as it extends) corresponds therefore to two articles in the list of the devices of the technical system, viz. sittings at long intervals, and blind fixation of times; and is no more than a particular application of the remedy already proposed (under the head of sittings uninterrupted) for that barefaced and most pernicious abuse.

The exclusion to which it is a remedy, is purely factitious—the work of the technical system, with its blind or too sharp-sighted arrangements. Six or twelve months must elapse, before any evidence can so much as begin to be collected. What follows? That all the evidence which, having been obtainable within that time, is not obtainable after that time, stands excluded in the lump. Is it possible, that, in the mind that devised these arrangements, any the smallest spark of regard should have been felt for the ends of justice? any more effective feeling for the sufferings of the oppressed, than the wolf has for those of the lamb he slaughters? What is it that the man wanted to be informed of? Was it a secret to him that witnesses are men, or that men die?

Even now, in the eyes of an English lawyer, this abuse is the very summit of perfection. How should it be otherwise? It gives him holidays: absolutely matchless holidays: it subtracts nothing from the mass of fees. Subtracts? It adds to the mass: it makes business: it forms a capital article in the mass of advantage provided for the encouragement of malâ fide demands, and more especially malâ fide defences.

Provision being wanted for a new-born orphan, or information lodged for an offence,—what if a justice of the peace were to say. Come again this day six months: then, and not till then, I receive your evidence? But when, from any one of those seats of natural justice, was anything heard thus monstrous? No; the licence to work iniquity descends not upon these unlearned judges: not being granted by them, it has been neither granted to them, nor to their use.

If, in the arrangement of terms and circuits, there be common sense or common honesty, give to diseased indigence, as well as oppressed and plundered innocence, the benefit of it. Extend it from courts of justice to hospitals: let no hospital be founded in future, without vacations of two months and four months for physicians, surgeons, and nurses. Men die for want of timely medicine: but do not men also die for want of timely sustenance? For want of the substance which the client, by the advice and assistance of his lawyer, has ravished; and which the official lawyer, lest the amusements of his long vacation should be disturbed, refuses to restore; are not all jails for debt slaughter-houses, filled and emptied for their benefit?

Even courts of justice have not received the benefit of this arrangement to its full extent. The reason has been already given. Against the depredations and violence of the unlicensed malefactor, neither the house, the pocket, nor the person of the lawyer are (happily for mankind) more secure than those of another man: and were the matter of wealth to perish, so would the matter of fees. Accordingly, instead of once or twice in the year, the Old Bailey sits eight times;* and the sound of the word vacation is not so much as heard in Bow Street.

Equity, indeed, has her examinations de bene esse, and her examinations in perpetuamrei memoriam. For, equity finding more fees to collect than could be got in within the limits of the common-law harvest-time, her shops are never shut long together: moreover, her birth-place was on the continent, where men were cursed with no such regalia beneficia* as terms and circuits.

But, to measure the ratio of this remedy to an adequate one, compare the scanty and irregular and undefined field of equity jurisdiction with the remainder of the field of law, criminal and non-criminal. Compare the examination of an equity examiner’s dark closet with the examination of a police office: efficiency with efficiency, delay with delay, expense with expense.

As to common law; even those resources, miserable and treacherous as they are, are more than she has ever had a heart or a head to give herself. When she is in a mood to have them, she borrows them of equity: for now, the whole trade being consolidated into one vast firm, and all interests mixed together and rendered undistinguishable, shop and shop are upon the best terms imaginable.

On this head, equity has a whim or an artifice, in so general a view scarce worth mentioning, unless it were for curiosity’s sake. If your witness is dying, or making off; if, in short, the evidence you depend upon is wanted at any of these odd times; in such case, although you are in the right, and found to be so, you must thus far pay the piper, as if the right were not on your side.

The same whim or the same artifice governed on the continent, as often as, in a suit not criminal, any one of the parties called for the testimony of an adversary.

X. Remedy the tenth:—Remedy the second against delay:—Provisional decision, without waiting for the best evidence.

When the original of a deed or other written document is so situated that the production of it cannot be effected without a more than ordinary degree of vexation, expense, and delay,—lodged in some place between this and the antipodes, in the hands of some possessor, who, proprietor or not, does or does not choose to part with it or to bring it;—where such is the situation, or supposed situation, of a supposed or alleged original, at the time that an alleged transcript, or sufficient extract or abstract, is ready to be produced;—a question may arise as between the two documents, the alleged original and alleged transcript (both certainly not being necessary, one perhaps sufficient,) which, if either of them, shall be admitted. Were both present, the admission of the transcript (unless it were for momentary provisional consultation, for the purpose or in the course of argument) would evidently be attended with some (howsoever little) danger, and with no use. A transcript, how little soever inferior in point of trustworthiness to the original, can never, so long as man is fallible, be considered as exactly upon a par with it. But the original is so circumstanced, that, rather than load the cause with the vexation, expense, and delay, attached to the production of it, it would be better to exclude it: nay, even although, to the prejudice of the side by which it should have been produced, misdecision were sure to follow. It ought therefore to stand excluded: and thereby the whole of the evidence from that source, were there no other remedy.

But the transcript,—although, in preference to or indiscriminately with the original, it ought not to be produced,—yet, rather than the evidence from that source should be altogether lost, and misdecision take place in consequence, might (if ordinarily well authenticated)—might, with much less danger than what is frequently incurred in practice, be (under the conditions above proposed) received instead of it. Nevertheless, mischief from misdecision ought at the same time (so far as is consistent with the regard due to the avoidance of preponderant collateral inconvenience in the shape of vexation, expense, and delay) to be obviated as effectually as possible. Accordingly, previously to execution, obligation (or at least liberty) ought to be in the hands of the judge, for taking from the party thus to be instated, sufficient security for the eventual reinstatement of the other party; in case that, within a time to be limited, the propriety of the opposite decision should have been made appear,—the authenticity of the transcript, or its correctness or completeness with relation to the point in question, having been disproved.

The character ascribed to the proposed arrangement (viz. that of a remedy succedaneous to the exclusion of evidence) belongs to it beyond dispute. Under English practice, but for this remedy, both would or might have been excluded—the original, and the transcript: the original, by reason of the preponderant inconvenience attending the production of it; the transcript, by reason of its being but a transcript, and the original still in existence, and the production of it, though prudentially, not physically impracticable. In virtue of this arrangement, neither stands excluded: the transcript is admitted absolutely and at the instant; the original left to be produced, eventually and if need be, at another time.

In English practice, the original being lost,—the previous existence of it, the subsequent deperition of it, and the authenticity of the alleged transcript, being proved by what is regarded as sufficient evidence,—the transcript is received instead of it. The alleged transcript received, when there exists no longer the original with which upon occasion it is capable of being compared! With how much more safety, when the original with which it may be compared is still in existence? when, in case of perjury, the witness swearing to the correctness of the transcript is capable of being detected, convicted, punished?

When received (if received at all) it is, in practice, received absolutely: without any such conditions imposed; conditions, in case of misdecision on the ground of it, providing for the reparation of the injustice.

XI. Remedy the eleventh:—Remedy the third against delay:—Provisional sequestration.

This is an arrangement of still more entire security, capable of being substituted, upon occasion, to those measures, which would be the natural result of unreserved admission of the evidence, and unreserved decision on the ground of it.

The party in whose behalf this makeshift evidence is produced, instead of the regular evidence from the same source, is (for instance) the plaintiff: the decision regularly called for by this evidence, would be, the putting that party in immediate possession of the subject-matter in dispute, on condition of finding security for eventual restitution in kind, or other adequate satisfaction, as proposed by the last preceding remedy. But, the character or situation of the plaintiff is not (to the purpose here in question at least) altogether trustworthy: the subject-matter is a female, whose honour and condition in life, in the character of daughter, ward, or wife, claimed as such by one or both the parties, is at stake; the subject-matter, though of the class of things, is an article susceptible of a pretium affectionis, and thence of damage not to be repaired by money. On any of these accounts (not to look for others,) it may be more advisable upon the whole, that,—until the authenticity of the supposed transcript can be put out of doubt (for example, by being sent to the original for reauthentication, under official or other altogether unsuspected care)—the subject-matter should either be suffered to remain in the hands of the defendant (he on his part finding security,) or be lodged in the hand of the official or other unsuspected third persons, satisfaction in the meantime being made to the plaintiff for the loss of possession sustained by him.

While the bill, without the benefit of which equity will not grant even her de bene esse examination, is scribbling by the plaintiff’s lawyers, or an answer to it by the defendant’s—while the examiner’s clerk, closeted with the witness like a confessor with his penitent, is setting down what the witness says, between sleeping and waking, or what he does not say, regardless whether it be sense or nonsense, complete or incomplete, true or false,—all this while the defendant (if he be what defendants so often are) is making the best use of the time thus given him, eating the plaintiff’s property, or sending or putting it out of reach, according to his humour and his circumstances.

While the boy is running to the chandler’s shop to buy the salt to lay upon the sparrow’s tail (an instruction not grudged to infant bird-catchers,) the bird hops or flies off at leisure. If it were in the nature of equity, English equity, to be sincere, she would find her emblem in this child. But no: the imputation would be unjust to her, if this lameness were to be ascribed to blindness.

By preventing mischief, mischief in any of the shapes in which equity is at every man’s service to prevent it, there would be nothing to be got. By making a show, and that a false one, of being ready to prevent it, much is to be got, and is got. The groom, who, having a common interest with the horse-stealer, waits till the steed is stolen, and then marches up to shut the stable door in ceremony,—he, and not the infant bird-catcher, is the true emblem of English equity.

While the bill is preparing, to ground the writ ne exeat regno, the cuckoo swindler that should have been hedged in, is winging his way to the continent, laughing at or with the hedgers. While the Injunction Bill, by which waste should have been stayed, is scribbling, the axe of the disseisor or malicious life-holder is levelling to the ground the lofty oaks from which the venerable mansion has derived shelter and dignity from age to age. While, in all the luxury of skins and parchment, the female orphan is dressing out to make her appearance in the character of a ward of the court, the sharper whom the charms of her person or her purse have laid at her feet, is clasping her in his arms, at the temple of the Caledonia hymen, laughing with her to think how the union of hearts has been facilitated by the incompleteness of the union between kingdoms.

Malefactor, whoever you are, you deserve to be confined for idiocy, or your solicitor struck off the roll for ignorance, if ever it be your ill fate to see your schemes anticipated and frustrated by English equity.

Among the almost numberless uses of the initial meeting of the parties in the presence of the judge, one is (as already intimated) the putting an instant stop to so sure a course for eluding the power of justice.

Is the party’s solvency out of suspicion, out of danger? No use in conveying him to a jail, or to a spunging-house: as little in forcing him to beg or buy sureties for his eventual forthcomingness. Is his solvency a point too dubious or too complicated to be settled at the first examination? A guard placed over him in his own house would give it all the useful properties of a spunging-house without any of the pernicious:—as if a guard could not as well remain in charge of his person, as at present of his goods! Consign the defendant to either a jail or a spunging-house, for no better or other reason than that (without any doubt of his solvency) the plaintiff believes, or pretends to believe, that the money he claims of him is due! The reason were as good for hanging him.

The inquiry thus made, does his solvency prove dubious? Seizing his person affords no security. In jail, or in a spunging-house, his effects, for every purpose of removal or dissipation, are as much in his power as if he were at home. Secure the effects themselves, all removal, all dissipation is at end.

Of this same blind arrangement, of which, in some instances exclusion of necessary evidence, in other instances unnecessary vexation, expense, and delay, for the averting the mischief of such exclusion, is the result,—and which arrangement consists itself in the constant and inexorable establishment of factitious delay, without use or shadow of pretence, of which delay a frequent and natural result is deperition of evidence,—another fruit is the deperition of the matter of satisfaction, in the manner above delineated. To secure the subject-matter in dispute from perishing, or going into wrong hands, nothing can as yet be done, for want of evidence. Why? Because it is by evidence alone that the defendant’s title to it can be made dubious, the plaintiff’s probable: and, to this as to all other purposes, the receipt of evidence, instead of being brought forward as early as possible, is put off as long as possible! Why not brought forward as early as possible? Because (as there has so often been occasion to state) it was against the interest of the founders of the system, that any evidence fit to be acted upon should be brought forward at this early stage.

On all these several points, the interest of the founders of the system was in clear and diametrical opposition to that of the suitors, and more especially to that of the honest among suitors, which is as much as to say, to the ends of justice. It was the interest of these arbiters of human destiny, that as much human misery should be produced, as the sovereign and the people would bear to see produced: and as much misery as the sovereign and the people have borne to see produced has been produced accordingly. It was their interest that as little relief under this misery should be afforded, as the sovereign and the people would bear to see withholden; and as much relief as could be withholden, has thus been withholden accordingly.

What is, and ever has been, the interest of the people, taken in the aggregate, in their character of suitors, is, that as few of them as possible should go to jail: that as little as possible of the mass of property at the disposal of the judges should either perish, or be lost to the person intitled to receive it; and that, to avert as far as possible both these mischiefs, the defendant (in all cases where his solvency was exposed to doubt, or where in any other way the plaintiff stood exposed to the danger of suffering irreparable damage) should be brought into the presence of the judge, to have, for the benefit of all his creditors (and, above all, for his own benefit, and at his own request,) the state of his pecuniary circumstances laid open to the judge as early as possible.

Unfortunately, on these same subjects and occasions, what all along has been, and still continues to be, the interest of the judges, is, that on neither side (much less on both sides) should the suitors ever be suffered to come into their presence, when it is possible to prevent it: that, above all things, no such unpleasant company should be forced upon them at the outset of the cause: that, instead of this, as many individuals as possible should go to jail, and (unless when the jails were already so full as to hold no more) be kept there as long as possible: that, while the defendant is so lying in jail, the property which, by law and justice, ought to have been restored or transferred by him or from him to the use of the plaintiff, should remain at the disposal of him, the defendant, to be wasted or embezzled by him, to as large an amount as possible: that, while in those receptacles of infection debtors were rotting in body and mind, while oppressed debtors and injured creditors were dying broken-hearted—judges, the authors of this misery, with their dependants, protégés, and bottle companions, should have as much time to enjoy and amuse themselves in as possible: and that, lest business should be presented to them in any other than the most pleasant and least troublesome form, the fate of the wretches on both sides should never be disposed of by these its arbiters, on any other ground than that of a sort of evidence utterly unfit for the purpose, and universally acknowledged so to be.*

In complaining of this, as of any other branch of the system of abuse, it has been a practice among men of law to dispute the legality of it. Dispute the legality of a sort of practice persevered in by the superior courts in general, for centuries! Dispute as well the validity of an act of parliament. As if, while legislators connive or sleep, a law were not exactly what the judges, for the time being, are pleased to make of it.

The cause of this paralogism must be looked for in a notion, entertained through prejudice, or affected from prudence, of the excellence of the law: of its subserviency to the ends of justice: whatever is not reason is not law. Whether the opposite inference would not be the more rational one, the reader is by this time in a way to judge.

The subject-matters of law are persons and things: the force of law is occupied in causing them to be forthcoming: both, incidentally, in the character of sources of evidence; both, ultimately (and, for precaution’s sake, incidentally,) in the character of parcels of the matter of satisfaction: persons, besides (in cases of corporal punishment,) in the character of subject-matters of the punishment.

The operations, the object of which is to cause them to be forthcoming for the purpose of satisfaction or punishment, are, in the books of practice, ranged under the head of execution: by them is done, or pretended to be done, that which the decision, judgment, decree, commanded to be done.

In this part of the field of law, as in most others, the dictates of utility, as pointed out by the ends of justice, are plain and simple. General rule:—in no case to omit any operation by which the forthcomingness of the article can be made more sure. Exception, where the operation is either physically or prudentially impracticable;—prudentially, because the vexation and expense attached to the execution of the decision, would be a greater evil than that of its not being executed. Memento:—in the pursuit of this object, to take that course, in which the quantity of expense and vexation created shall be the least that can be.

Uncertain, confused, voluminous, and, by its very voluminousness, rendered defective (for the more abundant the swarm of absurd and pernicious distinctions and diversifications, the more abundant the defects;) fraudulent to creditors, oppressive to debtors, beneficial to lawyers—to lawyers of all classes, from the chancellor to the bailiff’s follower,—and to none but lawyers:—such, in its bearings upon this part of the field of procedure, as upon every other, is the system still in force in England.*

To frame a system free from all these abuses,—a system in which the ends of justice and dictates of utility, as above indicated, shall be accomplished, and in the compass of from ten to fifty pages, would be an easy task: in from one hundred to five hundred pages, an impossible one.

PART III.

VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF DANGER OF DECEPTION.*

CHAPTER I.

CASES ENUMERATED.

In regard to evidence, admission, non-exclusion (it has already been shown,) is the general rule. Evidence is the basis of justice: exclude evidence, you exclude justice.

The propriety of the general rule being so conspicuous—whatever be proposed in the character of an exception, the onas probendi, in respect of the propriety of it, lies upon the proposer of the exception—upon the exclusionist. In the last proceding Book, this task has been performed.

If, as above supposed, in the account stated in the proceding book, the entire list of the cases in which exclusion of evidence can be reconcilable to the ends of justice, is included; in all other cases in and for which it ever has been or can be proposed, it will be improper.

Having done with the cases in which it may be proper, the examination of the cases in which it cannot be proper will occupy the remaining part of this Book.

In technical jargon, the question as between admission, and non-admission, admission and exclusion, is clothed in different language. For admission, competency is the word—for exclusion, incompetency. Not only so, but incompetency finds another synonym, or at least a substitute, such as would not easily have been suspected; and this is credibility. An objection is made to the admission of the witness: a question is to be argued:—The question is now as between competency and credibility; whether the objection goes to the competency of the witness, or only to his credibility:—If, being considered as applying itself to his competency, the objection is deemed well-grounded, exclusion is the consequence: if, as levelled at the same mark, the objection is considered as ill-grounded, as insufficient, admission is the consequence; the witness is to be heard, as if no objection had been adduced.

Objections to the competency being objections the effect of which is to operate the exclusion of the witness altogether; and objections to his credit having no such effect; it might seem that the latter class of objections have no effect at all but that is not the case. The objection itself, being the allegation of a matter of fact, must be made good by evidence. If an objection is not good as an objection either to competency or to credibility, evidence in proof of the objection is not admitted to be produced. If it be allowed to be good as an objection to competency, the objection is allowed to he produced, and the witness not. If it be good as to credibility, but not as to competency, the witness, and the evidence of the objection to him, are allowed to be produced together.

Those who support the evidence against an objection to its competency, have seldom any unwillingness to have the same objection received in the character of an objection to credibility. Why? Because in this case the objection frequently amounts exactly to nothing at all. How so? Because it is so perfectly frivolous, that, in the scales of common sense (the false scales and weights of common law being put out of the way,) it would not weigh against the evidence to the value of a feather. The objection being good, is it good as against competency? the man is not so much as heard. Does it apply to credibility? he is not the less believed.

In effect, the difference amounts to diametrical opposition: in language, it is presented as but a sort of a hair-breadth difference; so minute, so microscopical, that by a high-seated eye it has happened to it to be over-looked. Like the difference between purport and tenor, it was that sort of difference to which a lawyer (if, with the reputation of a great orator, seated on a high and commanding station—in a word, a Mansfield) might, without shame, confess himself to have been scarcely sensible. In sound, the difference is like the famous one between tweedle-dum and tweedle-dee: nor, in effect, is there any greater difference than between justice and injustice—a difference which, to a learned eye, is too minute to have any claim to notice.

In practice, they had been confounded: so happily confounded, that, when a statute had required that a witness or witnesses should be credible, it was a matter of doubt whether credibility was or was not the same as competency. Instead of talking of credibility, speak of inadmissibility, non-admission, or exclusion; instead of competency, speak of admissibility, admission, and non-exclusion; you could then he understood without difficulty: the difficulty would then be in contriving how to misunderstand you. But, well suited as such clearness would have been to the purposes of common sense and common honesty, it would have been proportionably ill suited to the purposes of common law. The absurdity of the arrangement was in some measure hidden from view, by the cloud which hung over the language. Prevented from knowing so much as what it was that was done, non-lawyers were the more effectually prevented from seeing into the irrationality and mischievousness of what was done: and, upon this part of the ground as upon every other, the rubbish thrown up by the lawyers, while working and fighting in the dark, contributed its part to thicken the entrenchment which defends the garrison of the old castle of chicane.

Deception, and vexation, have already been mentioned as the two inconveniences, in the apprehension of which (in so far as any reason, or so much as the slightest colour of a reason, has ever been assigned or glanced at) the exclusionary system, in what cases soever it has been applied, has had its root.

Exclusions grounded on the consideration of vexation, form the matter of the next succeeding Part.

The present Part is appropriated to the consideration of those examples of exclusion, in which the fear of deception has been the ground, real or ostensible.

Incorrectness, and incompleteness. In these two expressions may be included all the properties, by means of which it can happen to the testimony of a witness to produce deception in the bosom of the judge.

If, in respect of either or both these qualities, there be any failure on the part of the witness, the root or cause of it will be to be found either in the will, or in the understanding; in the volitional, or the intellectual, branch of his mental frame. With relation to the result here in question, the state of those faculties respectively may be said to be an unfit one.

When, on the part of the testimony, incorrectness or incompleteness in any degree has its source in an unfit state of the will, interest, sinister interest is the cause of it: when in an unfit state of the understanding, imbecility.

Our business, at present, is to bring to view, not so much what ought to have been, as what has been, done and thought.

Topics different in appearance, though in effect coincident, have been, in the existing systems, substituted or added to the above. Qualities or acts considered as blemishes upon the moral character of the proposed witness, have, in a variety of instances, been considered as grounds of exclusion. For the designation of all these, one word, improbity, may on occasion serve.

But improbity, on what score does it present itself, in reality or in appearance, as constituting a proper ground of exclusion? and what relation, if any, does improbity bear to interest?

One answer will serve for both these questions:—

Interest, when acting in such a direction and with such effect as to give birth to falsehood, may be termed sinister interest. The effect of improbity is to render a man, in proportion to the degree of it, more and more apt to be led into falsehood by the force of sinister interest.

Thus it is that improbity, considered as a ground of exclusion, coincides with, and is included in, the ground expressed by the word interest. Be it lying, be it what it will, no man does anything wrong, anymore than right, without interest, without a motive. Suppose everything capable of acting in the character of a motive in a mendacity-prompting direction, out of the question, a man of the most profligate character will be no more likely to deliver false testimony, than an average man taken at large.

Under the head of improbity may be included, to the present purpose, that of religion. Improbity has been generally ascribed to a man on the supposition of his having no religion, or having a bad one. Religion has, accordingly, furnished pretences for refusing to hear evidence: with what reason, will be seen in its place. He who is considered as having no religion, no God, is termed an atbeist; he whose religion is bad, whose God is considered as a bad one, whose notions concerning God are considered as bad notions, has been termed a cacotheist. Subordinate to the head religion, atheism and cacotheism may, accordingly, constitute two distinguishable heads.

Subordinate, in like manner, to the more extensive head of imbecility, we shall find three particular heads: infancy, dotage or superannuation, and insanity (including casual mental debility.)

By reason of infancy, and to the extent of the age denoted by that word, every man is kept in a state of relative imbecility. In the course of his life, every man is subject to have his intellectual faculties more or less disturbed and weakened by mental debility (whether caused by bodily debility or not;) and, towards the close of it, by dotage.

Putting together these several articles, we have eight general heads, under which the circumstances that have been employed as grounds or pretences for putting exclusion upon evidence may be ranked: viz.—

• 1. Interest. Sinister interest of all sorts without distinction.
• 2. Pecuniary interest.
• 3. Inprobity at large.
• 4. Atheism.
• 5. Cacotheism.
• 6. Infancy. Imbecility in respect of infancy.
• 7. Insanity.
• 8. Dotage.

In the former set of cases which have just been under our review, we have seen but little work, in the way of exclusion, for the providence of the legislator; and of that little, the greater part left everywhere undone. In the set of cases now coming under review, we shall see nothing at all, in point of propriety, to be done in that same way by the providence of the legislator, and at the same time in point of fact we shall see him (or rather his substitute, his essentially and everlastingly incompetent substitute, the judge) at work everywhere, in all directions, and with a sort of activity as pernicions in effect as it is rash and unwarranted in principle.

CHAPTER II.

DANGER OF DECEPTION, NOT A PROPER GROUND FOR EXCLUSION OF EVIDENCE.

§ 1.

Exclusion of evidence, no security against misdecision.

Misdecision is the word to be used in this place, not deception. Why? Because in misdecision consists the mischief, the only mischief. Suppose deception, and yet no misdecision, there is no real mischief: suppose misdecision, yet no deception, the mischief is as great as if deception had been the cause of it.

Deception supposes conception: previous hearing, or what is equivalent. The judge who should ascend the bench with a resolution never to hear anybody, would conduct himself badly enough; but in no case could it be said of him that he had been deceived. Misdecision, as many instances of it as there were causes endeavoured to be brought before him: misdecision, in abundance; deception, none.

The first thing to be done then, is to show that, on whatever ground exclusion may be placed, it is not in the nature of it to afford any security against misdecision. This accomplished (if it be accomplished,) the remainder of the book, were all minds upon a level with the highest, would be but artum agerc. But the mind of the public is not so easily satisfied: prejudice is not eradicated upon such easy terms.

In every case, the evidence (whatever it be) which it is on any side proposed to produce, is either necessary, or less than necessary, to the decision prayed for on that side: say (to take the clearest example,) the only evidence or not the only evidence, on that side.

1. In the first place, let it be necessary.

Exclusion, if put upon necessary evidence, produces, if the evidence would have been true, a certainty of misdecision: deception, supposing it to have taken place, can do no worse. But no man surely will be found who will either think or say, that, of falsehood (supposing the evidence false,) deception will in any one instance be a certain consequence. To say this, would be as much as to say, every judge is a machine. What, then, is the effect of exclusion? To produce, for fear of an uncertain mischief—to produce to a certainty, and in the first instance, the very mischief which it professes to avert. It is as if a copyist, considering that he now and then makes mistakes, should, for greater security against incorrectness, determine never to copy any more but in the dark.

What, then, would the lawyer be with his exclusionary remedy, supposing he were sincere? He would be like the panic-struck bird, which, for fear of the serpent, flies into its mouth.

What should we say of a lottery, at £20 a ticket, so many blanks to a prize, £20 the highest prize?—£20 paid to purchase a chance of £20? Among non-lawyers, where is the man to be found that would be weak enough to make such a lottery weak enough to put into if it made? The learned judge who shuts the door against evidence, to save himself or Co. from being deceived by it, makes exactly such a lottery, and buys tickets in it. He buys tickets in it: but with whose money? Not with any of his own money, indeed: no, truly, he knows better things: but with the money of suitors.

Rapax owes you £20 that he borrowed of you: Oculatus Suspectus was present at the transaction, his evidence is the only proof you have of it. If the judge refuses to hear Oculatus Suspectus, misdecision to your prejudice is the certain consequence; your money is gone.

You borrowed £20 once of Rapax; he has abundant evidence of it: but you paid him — Oculatus Suspectus saw you pay him: of this payment his testimony is the only evidence. If the judge refuses to hear Oculatus Suspectus, misdecision to your prejudice is the certain consequence: here, too, your £20 is gone.

On the other hand, suppose, in either case, Oculatus to be a false witness: is deception on the part of the judge, is misdecision and wrongful disposal of the money, a certain consequence? Nothing like it. Every day, false testimony is delivered: every day, false testimony is detected.

2. Next and lastly, let the evidence in question be less than necessary. Being not absolutely necessary, it must be because there is other evidence on that same side. In this case, though the evidence be excluded, misdecision is not the certain consequence.

But in this case, the party who adduces the evidence having other evidence sufficient to warrant a decision in his favour, there is nothing gained by the exclusion. Excluding the evidence, you decide in favour of the party who produces it: what could you have done more, if you had admitted it?

Not that, in this case, the exclusion is merely nugatory. It imposes upon the party on whose side the evidence was produced, the additional delay, vexation, and expense, of procuring other evidence; and if these exceed his means, he loses his cause, and misdecision, or failure of justice, is the consequence.

In neither case, therefore, can the exclusionary system be conducive to the ends of justice.

Of the apprehended danger of misdecision from the receipt of evidence of a comparatively untrustworthy kind, what is the amount and value? In every case, either nothing or next to nothing. The legislator is sufficiently upon his guard against it; indeed, more than sufficiently: and so much more than sufficiently, as to prohibit the reception of it without knowing what it is. But being himself so much more than sufficiently upon his guard, what ground can he have for the apprehension that the judge, on his part, will be less than sufficiently upon his guard? The judge who, with such warning as may be given him by the legislator in the way of instruction, is not sufficiently proof against that deception against which the legislator has thus been so sufficiently upon his guard without warning, ought not to be deemed qualified for his office.

From the precautions taken by lawyers, who would not have supposed that the danger was all of it on one side?—that, while it is an event unhappily so frequent for false testimony to obtain a credit that is not its due, it was a misfortune that could never happen for true testimony to fail of obtaining the credit that is its due? Yet, in point of fact, who is it that can be assured, that in a case so open to general suspicion as most of those to which the exclusionary rules refer, it may not have happened as often to true evidence to be disbelieved, as to false evidence to be believed? Fortunately for mankind, the nature of things does not admit of any such drastic remedy against the former misfortune, as the quackery of lawyers has employed against the latter.

The witness in question, supposing him to have been admitted, would either have been disbelieved or believed. In the first case, the rule is superfluous and useless. All the use of it consists in warding off a danger, which, the event shews, would not have been realized.

Wherever the witness, if admitted, would have been believed, observe the consequence; observe the ground, in point of reason, upon which the law rests. The jury, who have seen the witness—who would have heard his whole story—who would have heard him cross-examined, and had the opportunity of cross-examining him themselves—who would have heard the other witnesses, if there were any—who would have seen who and what the defendant and the prosecutor are—and who would have observed the whole complexion of the case,—the jury, who would have had the benefit of the observations of the counsel and the judge, would have believed his relation to be true. The law, which has not seen the witness, which knows nothing of accused or prosecutor, which—in a word, knows nothing of the case, pronounces him unfit to be believed; and so unfit, and the danger of hearing him so great, that, rather than run the risk, it chooses, as the lesser evil, to license the commission of all sorts of offences in his presence. When I said the law, I might have said the judge—the single judge, to whose partial and hasty conception, hurried away and engrossed by some particular incident in the particular case before him, it first occurred to lay down such a rule.

All this while, the admission of a witness,—the disallowance of the rule which, on the ground of any supposed objection to his veracity, forbids him to be heard,—would not preclude the production of the ground of objection, whatever it may be; the record (for instance,) or other evidence, proving his having been convicted of a crime reputed infamous. Wherever the production of such ground of objection would have had the effect of preventing the jury from crediting his evidence, the rule is superfluous and useless. The only case where it has any effect is that in which, after hearing the objection against him, they were to be satisfied of its being insufficient and inconclusive, and to credit his testimony notwithstanding.

Against danger of misdecision, resulting from the admission of a lying witness, or rather of a witness disposed to lie, there are abundant remedies. There is the natural sagacity of the jury—there is the cultivated sagacity of the judge—there is the perhaps equally cultivated, and still more keenly sharpened, sagacity of the counsel for the defendant—there is, in penal cases (especially in cases of the most highly penal nature,) the candour of the counsel for the prosecution. For (though, in cases of guilt, the more flagrant the guilt, the greater the glory, and thence the greater the zeal of the defending counsel,) what counsel ever presses for a conviction, in a case any way serious, of a defendant of whose innocence he is himself assured? Besides all these securities, there is in this country, after all, the mercy (which in this case would be but the justice) of the crown.*

Where is the consistency between this utter distrust of juries, and the implicit faith bestowed, with so much affectation, on the decisions they are permitted to give on such evidence as they are permitted to receive? When a parcel of people you know nothing of, except that they are housekeeping tradesmen, or something of that sort, are got together by hap-hazard, or by what ought to be hap-hazard, to the number of twelve, and shut up together in a place from which they cannot get out till the most obstinate among them has subdued the rest; political orthodoxy commands them to be looked upon as infallible. I have no great opinion of human infallibility; and if it were necessary to believe in it, I would go to work by degrees, and begin with the Pope. All I contend for (but this I do contend for) is, that these twelve men, whoever they are, that have heard what the witness had to say—heard him examined and cross-examined, and examined him themselves as long as any of them thought proper—are more likely to judge right as to whether he has spoken truth or no, than a judge, who lived centuries ago, who never set eyes on the man, nor ever heard a syllable from or about him in his life, is likely to judge right on the question whether the man would say true or no if he were to be heard. If there be one business that belongs to a jury more particularly than another, it is, one should think, the judging of the probability of evidence: if they are not fit to be trusted with this, not even with the benefit of the judge’s assistance and advice, what is it they are fit to be trusted with? Better trust them with nothing at all, and do without them altogether.

A question continually started to the jury by the judge is,—Do you believe this evidence?—and it happens but too often that the verdict declares the negative. Indeed, little less of their attention is occupied in determining with themselves who is to be believed, than in drawing inferences from the evidence on which their belief has been bestowed. In all these instances, false evidence is poured in upon them, without the smallest mark to distinguish it from the true. In all the cases of exclusion, the witness presents himself with a mark upon his forehead, pointing out the reason there is for looking upon his evidence as likely to prove false. If he did not, there would be no ground for shutting the door upon him. Habet fænum in cornu. Are men more in danger of being deceived when they have warning given them, than when they have none?

But, when the testimony of a witness, being false, is not believed, the very falsehood itself is a source of instruction, and security against misdecision.

Misdecision, be it never out of mind, is the only real evil; falsehood, unless in so far as it produces misdecision, none at all. Yet, to no such object as misdecision is the eye ever directed by lawyers: of no such word is any trace to be found in their books. Falsehood is the great and only object of all fears. What? would you lend an ear to falsehood? Why not, if from falsehood you can obtain a clue that guides to truth? Instruction? do you think to derive instruction from a liar? Why not, as well as from any other enemy?

In what other case can you be so sure of hearing falsehood, as when you have to take the examination of a notorious and professional malefactor, on the occasion of some offence of which he stands accused? Yet, the surer you are of hearing from him all such falsehoods as promise to suit his purpose, the more instructive and satisfactory, if pertinent, are all such truths as his propensity to falsehood has not enabled him to keep back.

Be the deponent who he may, the thread of his testimony should all along be divided, by the eye of the judge’s mind—carefully separated and divided, into two parts:—that which runs in the presumable direction of his wishes; and that which runs in a direction counter to that of his wishes. In the former part, so far as depends upon bias, upon interest, may be seen a sort of evidence less trustworthy than if he were indifferent; in the other, a sort of evidence more trustworthy.

The severer the impending evil, on the score of punishment, or on any other, the stronger, of course, will be a man’s wishes to avoid saying anything that may help to subject him to it; and the more depraved the disposition of the man, the stronger his propensity, on every occasion, to pursue, in word as well as deed, the course indicated by the wishes of the moment, in spite of all suggestions of ultimate interest and moral obligation. Both these considerations laid together, hence it is, that of one part of every malefactor’s, of every liar’s, evidence (viz. the part which tells against himself,) it may be said, and with unquestionable truth, the more determined the liar, the better the evidence. As to the ratio of the trustworthy part to the untrustworthy, it will depend upon the verity-insuring force of the scrutinizing operations to which it is subjected.

Falsehood a certain cause of deception and misdecision? On the contrary, in how many cases is it a guide to truth, a security for rectitude of decision? In the very sort of case in which falsehood is most probable, deception, as a consequence of it, is least probable.

Falsehood, where wilful, forms a species, a most instructive and useful species, of evidence. It forms a particular modification of circumstantial evidence. Falsehood on any occasion is circumstantial evidence of criminality, of delinquency—of consciousness of misbehaviour, on either side of the cause, and in any shape.

When a person labouring under suspicion of a crime is in a course of examination, is it generally expected that all he says will be true? On the contrary,—the severer the punishment, and the stronger the persuasion of his guilt, the stronger is the persuasion, that, so far as what he has to say to any point will, if true, tend to his conviction (appearing to him, as it naturally will, to have that tendency,) whatever it may happen to him to say as to that part will not be true.

Accordingly, it is from that sort of source which, with the fullest and most universal assurance, is looked to as a source of false evidence, that whatever assertion operates in favour of one side of the cause (viz. to the prejudice of the interests and presumed wishes of him whose evidence it is) is regarded as the most satisfactory of all evidence: regarded, and by everybody: the very lawyers not excepted, who to guard themselves against deception, are so anxious to shut the door of judicature against any source of evidence to which it can by possibility happen to yield false evidence. But, forasmuch as the eyes of all mankind, judges themselves not excepted, are universally open to the falsity of false testimony, universally upon their guard against deception from the source that wears any appearance of yielding it,—how can it be, that, on the part of judges, deception by reason of that same evidence, deception from whatever false evidence flows from that source, should be the certain, or so much as the preponderantly probable, consequence?

Not that, even in the cases where falsehood itself is looked to as the most instructive source of information—not that, even in the case of persons thus circumstanced, of persons from whom falsehood is expected in a larger proportion than from any others,—not that, even from them, there seems reason to expect that falsehood should come in greater quantity than truth. Truth, even in these cases, will be the general rule—falsehood, but an exception. Take what false proposition you will, there will be three conditions incident to the utterance of it:—1. That it appear necessary to the accomplishment of the deponent’s wishes (viz. for acquittal, if defendant, and so in other cases;) 2. That if it be not too palpably false to exclude a prospect of gaining credence; 3. That it be not of a sort to expose him to subsequent punishment too severe to be risked.

Symptoms of terror and confusion exhibited in deportment—non-responsion—indistinct and evasive responsion,—all these indications have, on the same sort of occasion, and in the same character of circumstantial evidence, their use, their universally felt and acknowledged use: yet (such is the instruction derivable from falsehood) responsion, direct responsion, is on the same occasions still pressed for; as being (though replete with falsehood, or rather for that very reason) pregnant with a sort and degree of instruction and satisfaction, over and above any instruction and satisfaction that is to be derived from those other sources, any or all of them put together. From manifest improbability on the face of it, from self-contradiction, from counter-evidence—from any of these sources, detection may flow: and then it is that (by operating as evidence of character, evidence much more conclusive than any extraneous testimony on that head,) the falsehood, as such, and recognised as such, affords its instruction, produces its effect in the character of circumstantial evidence.

The case here spoken of, is that of a person labouring under the suspicion of criminality, and on that score stationed, by an act of the judge, in the situation of defendant: the suit having punishment for its object, real or professed. In this case, where any objection has been made to the propriety of receiving evidence drawn from such a source, from the lips or pen of an individual placed in that distressing situation, it has been rested, not on the ground of danger of deception, but on a very different ground,—certainty of vexation on the part of the defendant, the proposed witness: of which in its place.

True it is, that it is only when either recognised, or at least suspected, to be what it is, that falsehood becomes thus instructive, becomes a fence against deception, instead of a source and cause of it. Equally true it is, that it is morally impossible that, in any of the cases in which the door ever has been shut or been proposed to be shut against evidence in consideration of the danger of deception, the falsity of it (whatsoever falsity it may happen to it to contain) should fail of having been suspected.

Thus it is, that exclusion can in no case, on any assignable ground, be put upon evidence, without wearing on the face of it a proof of its own injustice—a proof of the unsolidity of the ground.

Will it be said that, though the ground of the exclusion be just, it may happen to the judge not to be apprized of the justice of it? Admitting the case to be realized, the utmost that it would prove would be, that the appropriate arrangements should in every case be taken for making sure that the judge shall be thus aware of it. What, then, on the principle of this observation, is the proper course? Not exclusion to be put upon the evidence, but instruction to be given to the judge. But this is precisely the remedy which, as a succedaneum to be in all cases substituted to exclusion, it is the object of these pages to recommend.

The judge who, so much at his ease, pronounces a fact not true, because, the witness by whom the existence of it has been testified may find himself a gainer in the event of its being credited, or on this or that particular occasion has been known to have swerved from the path of probity—would this same judge, with equal readiness, pronounce the same judgment, were a fact of the same description to call for his decision for any personal purpose of his own? Not he, indeed. Because a servant of his is believed by him to be addicted to lying, does he on that account lay down any such rule to himself, as never to put a question to that servant in relation to his own conduct, or to that of any other servant? Not he, indeed. If it be his misfortune to have a child whose character is tainted with that vice, does he lay down any such rule in his dealings towards this wayward child? Not he, indeed. The judge who, on the like hastily taken grounds, determines that the will of this or that testator shall be void, and that the augmentation or diminution intended to be made by it in regard to the share of this or that one of his children shall in consequence be without effect,—the same judge, if, with a view of making an augmentation or diminution to that same amount in regard to the share of one of his own children, he has to make inquiry into facts,—does he pay so much as the slightest regard to any of these exclusive rules? Not he, indeed.

Why this difference? Because, in regard to the conclusion he forms in his individual capacity, he is sincerely desirous that it be just and true: whereas, in regard to the conclusion he forms in his official capacity, he cares not a straw whether it be true or untrue. In this case, all his concern is that it be found justifiable; conformable to the standard, whether in the way of statute law or jurisprudential law, to which, by his superiors and the public, his decisions are expected and required to be found conformable.

§ 2.

Probable source of this branch of the exclusionary system—its inconsistencies.

The closer we look into the origin of this system of exclusion, the more thoroughly we may be convinced of its hollowness and injustice.

By whom have the exclusions been put? By the legislator, in the way of statute law? No; but by the judge, in the way of jurisprudential law.

If by the legislator, operating in the way of statute law, the ground for it, though still untenable, would not have been so completely hollow. To the legislator, in his situation, it might have been competent to say,—The judge, I fear, will not be sufficiently upon his guard against evidence thus circumstanced: the safe course will be to exclude it; and so, excluded it shall be—I will not trust him with it. Here, as already shown, there would have been shortsightedness, rashness, error: inconsistency, however, there would have been none.

But from the judge, nothing could have been more inconsistent, nothing (on any other supposition than that of improbity) more absurd. I will not trust myself with this evidence: it will deceive me: I am not upon my guard against it. Is such folly conceivable? Had it been prevalent, the practice of taking the examination of the defendant, on a capital or other criminal charge, never could have taken place. Yet, on the continent of Europe, in the seat of Rome-bred law, from which the doctrine of exclusion was probably imported into England, such examination was and is not only customary but indispensable.

What then? Ought deafness, as well as blindness, to be among the attributes of Justice? Is the story of the Syrens not fable, but history? and is every man, every ruffian, that comes before you, a Syren? so that, wherever there is possibility of falsehood in evidence, there is no safety for you but in stopping up your ears? No, learned sir: no more than you—you who, if honest, can thus reason, are an Œdipus or an Ulysses. Such diffidence,—beyond that of the most inexperienced virgin,—is it credible, in the situation of him who never awakes in the morning but to see the fate of men lying at his feet?

Not qualified to judge of the veracity or correctness of a man speaking to a matter of fact? What is it, then, that you are qualified for? Is not this your occupation? Day by day, on one occasion or other, is not this the occupation of every man that breathes?

But no; improbity, in some shape or other, presents to the difficulty a solution much more natural than is presented by the hypothesis of any such morbid diffidence. The origin of the exclusive system lies deep in the recesses of distant time: it dates in ages of barbarism—ages, in comparison with which the present, whatever may be the dream of vulgar prejudice, is the age of virtue.

Corruption as likely a cause as any—gross and determined partiality: whatsoever bond of connexion—sympathy, common interest, or bribery—may have been the cause. In judicature, corruption, in the worst cases, must have a pretence: and how many pretences have been acted upon, still more shallow and unplausible than this? Shallow as this is, the system of nullification stands not, in any part of is, upon any equally specious grounds.

Indolence, a cause at all times adequate to the effect—a cause still adequate to the production of it, even now that, on these higher seats, within the English pale at least, corruption even in its most refined shape may be pronounced rare, confined to cases of a particular sort; and in its grosser shapes probably without example.

This man, were I to hear him, would come out with a parcel of lies. It would be a plague to hear him: I have beard enough already: shut the door in his face.

As sheep follows sheep, judge, in the technical system, follows judge. Here, quoth judge B, is a man, who, on such or such a score, lies under a temptation to speak false. In this or that shape, in the situation he is in, he has an interest in the cause. Exactly in this sort of situation was a man whom my brother A (though it is so long ago, I remember it as if it had been but yesterday would not hear. Exactly in the same situation? In respect of exposure to temptation, perhaps yes; but when brother A refused to hear the man, perhaps it was that he had already heard witnesses to the same fact till he was tired, and on the same side.

Suppose a riper age: history of judicial transactions brought to light in bits and scraps at the command of booksellers (no thanks to legislators or to lawyers.) Of the cause of suspicion, a short indication; but, as to the absence or presence of other evidence to the same or a different fact on the same side, a man might be a much better reporter than reporters commonly are (or at least used to be,) without thinking of it.*

The grounds of suspicion in evidence may be ranked under four causes:—

1. The fact spoken to—not the fact itself which is in question, but a fact supposed to be connected with it—so connected with it, that the existence of the evidentiary fact affords a reason for inferring the existence of the fact thus evidenced to. This is circumstantial evidence, considered as contradistinguished from direct.

2. The information in question not delivered immediately from the source of the information (the person, the thing, or the script, from which it is derived.) This is transmitted evidence, considered as contradistinguished from immediate: hearsay evidence, transcriptitious evidence, in their infinitely diversifiable degrees of remoteness from the source.

3. The evidence in question not collected or delivered in the best mode—not delivered under the influence of those securities for trustworthiness, which are commonly, and might be generally, employed for securing the correctness and completeness of the mass of information: sanction of an oath, examination, cross-examination, fixation by writing, and so forth. In this rank are, in their own nature, and without the default of any person, all casually-written documents, such as letters and memorandums; and, by the default of the legislator or the judge, all evidence collected in any mode inferior in efficiency, from a source from which evidence might, without preponderant collateral inconvenience in the shape of expense, vexation, and delay, be collected in the best shape. Examples:—affidavit evidence: nakedly assertive discourse (as in unsworn pleadings;) and evidence collected per judicem solum, sine partibus.

4. The person who is the source of the information, exposed to some assignable cause of suspicion, affecting the trustworthiness of his statements.

Here, then, are four causes of weakness in the evidence, of which the one here in question is but one. In the other three cases, either no exclusion at all is put upon the evidence (as in the case of circumstantial evidence in general;) or an exclusion is put in some instances, not put in others, according to a system of infinitely diversified and inconsistent rules (as in the case of the different modifications of unoriginal and casually-written evidence above mentioned;) or the weakness of the evidence in the state in which it is delivered, or offered to be delivered, is the act and deed of the exclusionist himself: he himself bespeaking it in a weak and bad shape, refusing to receive it in a better shape,—even when, in the best possible shape, it would be received with less collateral inconvenience, as above.

This same psychological epicure, the delicacy of whose palate refuses all aliment that, in its unconcocted state, presents a suspicion of any the slightest taint, will not suffer it to be served up to any table of his own, for his own use, unless, by cooks from his own kitchen, it has been brought, by a process of mortification, into a sort of carrion state.

A degree of ridicule attaches itself to the labour of him who perseveres in combating with the arm of reason a practice in the production of which improbity and imbecility took undistinguishable parts, and in which, as soon almost as the idea is started, any one, whose eyes are not determinedly closed, may see that reason had never any share.

Witnesses, each of them with a mark of suspicion stamped upon his forehead, present themselves to the English exclusionist for admittance. Blindfolded by a bandage borrowed certainly not from justice, but from knavery or prejudice, some of them he rejects, in consideration, as he says, of the mark; and in regard to those, the objection, in the jargon of English jurisprudence, goes to the competency: others of them he admits, notwithstanding the mark; and as to these, the objection goes only to the credit: in plain English, amounts to nothing—produces no effect at all.

The whole assemblage of suspicious characters being thus distinguished into two groups, whose lot is so different, the elect and the reprobate,—a requisition that would be to be made (if reason had any share in the concern,) is, that some sign should be shown, by which it might be made to appear that, in the least reprobate of the reprobate, the force of the cause of suspicion is greater than in any of the elect: or, if this be too much to require, that, at the least, in an average man of the reprobate, the force of that same cause was greater than in an average man of the elect.

Such criterion, then, is it anywhere to be found? So far from it, that, on the contrary, instances will be found, instances to an indefinite extent, in which, where the force of the cause of suspicion is at its maximum, or but a hair’s-breadth below it, the proposed witness is admitted notwithstanding,—admitted into the class of competent witnesses: where that same force is at its minimum, a quantity purely ideal, utterly incapable of ever having any the smallest effect in practice, the witness is shut out.*

The shape in which it may happen to testimony to be collected, has just been mentioned as one among the sources of the weakness to which evidence is subject. On this ground an argument may be built by the exclusionists: let us hear it.

In Rome-bred procedure, the means of detecting or preventing mendacity are so perfectly insignificant, that it would be dangerous in the highest degree to admit evidence from any but the purest and most unsuspected source. Parties not admitted: no questions asked but in a whispering room, as between confessor and penitent, by the judge: no counter-interrogation (for the cross-examination of Rome-bred law is an abuse of words, the penner of the counter-interrogations knowing nothing of the answers to the interrogations:) no counter-evidence, for we keep the evidence as close as possible, lest there should be any. Not a creature to hear the evidence, but one who cares not a straw whether it be true or false. Thus circumstanced, the evidence is true or untrue, pure or impure, according to the source from which it flows. Under such a system, ought anything under the degree of angelic purity ever to be heard?

Answer. No, most certainly. Accordingly, until the time comes when angels can be subpænâ ad under such a system there is but one proper course, which is, to exclude everybody. That done, if you think it better to receive evidence than to decide without evidence, you will admit the evidence in a shape in which it is fit to be received.

The argument, such as it is, serves, in the manner we have seen, to justify the application of the exclusionary system to the cases in which the evidence is collected in the Roman mode. It will operate still more strongly in favour of the application of it to evidence received in the English affidavit mode.

Be this as it may,—certain it is, that, under the Rome-bred system (upon the continent, understand,) the exclusionary system has been carried to still greater lengths than under the English; and accordingly, under the former, compared with the latter, if the mischief be greater, the inconsistency is less.

The rules of evidence are the same in equity as in law. So it has been said, and always without exception, any number of times over, by chancellor after chancellor. It is not true; but, so far as it is true, in point of consistency at least, so much the worse. The worse the mode of collection, the more select ought to be the evidence. There ought to be gradations upon gradations—valves behind valves. One exclusionary system, for evidence in causes tried by or before a jury; another, for causes tried in equity; another, for causes tried by learned common-law judges, upon affidavit evidence. Single-refined might do for the jury box; none but double-refined ought ever to be received into an examiner’s office; none but treble-refined ever handed up to the bench.

Thus stands it in point of consistency: how in point of fact? In the shape of affidavit evidence, everything is good, from everybody: from plaintiffs, from defendants, from felons, from perjurers. Present your evidence to a learned judge, he cares not where it comes from, so it come in a bad shape—in a shape in which it is filable and filed;—anglicè, in a shape in which fees are paid upon it.

CHAPTER III.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF INTEREST.

§. 1.

Interest in general, not a proper ground of exclusion.

Seeing that deception is so far from being a certain, so far from being even a preponderantly probable, consequence of falsity in evidence, even when the existence of the falsity is certain,—it seems almost a superfluous task to show, that to regard any of those circumstances which have been held as grounds of exclusion, as being, in any state of things whatever, to a certainty productive of falsehood in the evidence, is a presumption altogether unwarrantable.

The impropriety of it will appear in a clearer and stronger light, when we come to view, one by one, the several alleged causes of exclusion, for security against deception; the several circumstances, of which, falsity in the evidence has been regarded as the necessary, or at least preponderantly probable, result.

To begin with the article of interest. I say here, not sinister interest, but interest without addition: for such is the expression employed in the books of English jurisprudence.

On this occasion, as on every other, to understand what interest means, we must look to motives: to understand what motive means, we must look to pain and pleasure, to fear and hope; fear, the expectation of pain or of loss of pleasure—hope, the expectation of pleasure or of exemption from pain. The causes of physical motion and rest, are attraction, impulse, and so forth: the causes of psychological motion and rest, are motives. Action, or (in opposition to action) rest,—action, whether positive or negative,—action without motive, without interest, is an effect without a cause.

It is not out of every sort of pleasure, out of every sort of pain, that a motive, an interest, is (at least in a sense applicable to the present purpose) capable of arising. Some pleasures, some pains, are of too ethereal and perishable a nature to excite an interest, to operate in the character of a motive.

The pleasures and pains which present themselves as capable of acting in that character, have, in another work,* been reduced to a certain number of heads.

In the estimation of vulgar prejudice, there is a natural alliance between improbity and intelligence, between probity and imbecility. In the estimate of discernment, they are differently grouped: improbity and hebetude—probity and intelligence.

Ignoramus has, for the purpose of this topic, composed his system of psychology. What is it? A counterpart to the learned Plowden’s system of mineralogical chemistry: equal as touching its simplicity—equal as touching its truth. Two parent metals, sulphur and mercury: the mother, sulphur; the father, mercury. Are they in good health? they beget the noble metals: are they in bad health? they beget the base. Fortes creantur fortibus et bonis.

With minds of every class the mind of the lawyer has to deal. Of the structure of the human mind what does the lawyer know? Exactly what the grub knows of the bud it preys upon. By tradition, by a blind and rickety kind of experience, by something resembling instinct, he knows by what sophisms the minds of jurymen are poisoned; by what jargon their understandings are bewildered; how, by a name of reproach, the man who asks for the execution of the laws, and the formation of good ones, is painted as an enemy,—the judge who by quibbles paralyzes the laws which exist, and strains every nerve to prevent their improvement, is pointed out as an idol to be stuffed with adoration and with offerings.

In the view taken of the subject by the man of law,—to judge of trustworthiness, or at least, of fitness to be heard, interest or no interest is (flagrant and stigmatized improbity apart) the only question. Men at large are not under the action of anything that can with propriety be expressed by the name of interest; therefore they are to be admitted. Is a man exposed to the action of anything that can be designated by that invidious name? So sure as he is, so sure will his testimony be false. Enough: all scrutiny is unnecessary: shut the door in his face.

Sinister interest—the term and the distinction are alike unknown to them. Sinister interest? Everything that can be called interest is to their eyes sinister.

Sinister interest, a term so well known to moralists and politicians, is altogether unknown to lawyers, who have at least equal need of it.

What, then? Is it that there are certain sorts of interests that are always sinister interests, while there are other sorts, which, if language, like heraldry, were made by analogy instead of by accident, would be called dexter interests? No, truly. No sort of interest that is not capable of being a sinister interest—no sort of interest that is not capable of being a dexter interest. Acting in a direction to draw a man’s conduct aside from the path of probity, any sort of interest may be a sinister interest: acting in a direction to confine a man’s conduct within the path of probity, every sort of interest is a dexter interest. The modification of probity here in question is veracity. Any interest acting in a direction to draw his conduct aside from the line of veracity, is a sinister interest,—say, in this case, a mendacity-prompting or instigating interest: every interest acting in a direction to confine his discourse, his conduct, his deportment, within the path of truth, of verity, of veracity, is a dexter interest,—say, in this case, a veracity-securing interest.

Man in general not interested, devoid of interest? His testimony not exposed to the action of interest? Say rather (for so you must say if you would say true,) no man, no man’s testimony, that is not exposed to the action of interest.

Well: and that interest a sinister one? Not it, indeed. So far from it, there is no man whose testimony is not exposed to the action of, is not acted upon by, at least three regular and standing, commonly four, forces of this kind—all tending to confine his conduct within the path of probity, his discourse and deportment within the path of veracity and truth.

1. Motive belonging to the physical sanction:—Aversion to labour: love of ease: trouble of inventing and uttering a false statement, which, to answer its purpose, must be so elaborated and dished up as to pass for true.

2. Motive belonging to the political sanction:—Fear of legal punishment: viz. if it be a case in which (as in general) punishment stands annexed by the legislator or the judge to false and mendacious testimony.

3. Motive belonging to the moral, or say popular, sanction:—Fear of shame, in case of detection or unremoved suspicion.

4. Motive belonging to the religious sanction:—Fear of supernatural punishment, in this world or in the world to come.

Of these four motives, the three first have more or less influence on every human mind; the last, probably, on most minds.

On most minds, did I say? On all without exception, if the English lawyer is to be believed: for, by a contrivance of his own, he has shut the door against all witnesses on whose hearts motives of this class fail of exerting their due influence.*

In the above list we may see the regular forces which are upon duty on all occasions to guard the heart and the tongue against the seductions to mendacity. But, in addition to these, there may be, by accident, any number of others, acting as auxiliaries in their support. No sort of motive (even these tutelary ones not excepted) to which it may not happen to act in the direction of a seductive one—no motive, over and above these tutelary ones, to which it may not happen to act also in the direction of a tutelary one. For what motive is there to which it has not happened, does not continually happen, to be employed in stimulating men to actions of all sorts, good and bad, in the way of reward? in restraining them from actions of all sorts, in the way of punishment?†

Between two opposite propositions, both of them absurd in theory, because both of them notoriously false in fact, the choice is not an easy one. But if a choice were unavoidable, the absurdity would be less gross to say, No man who is exposed to the action of interest will speak false,—than to say. No man who is exposed to the action of interest will speak true. Of a man’s, of every man’s, being subjected to the action of divers mendacity-restraining motives, you may be always sure; of his being subjected to the action of any mendacity-promoting motives, you cannot be always sure.

But suppose you were sure. Does it follow, because there is a motive of some sort prompting a man to lie, that for that reason he will lie? That there is danger in such a case, is not to be disputed: but does the danger approach to certainty? This will not be contended. If it did, instead of shutting the door against some witnesses, you ought not to open it to any. An interest of a certain kind acts upon a man in a direction opposite to the path of duty: but will lie obey the impulse? That will depend upon the forces tending to confine him to that path—upon the prevalence of the one set of opposite forces or the other. All bodies on or about the earth tend to the centre of the earth; yet all bodies are not there. All mountains have a tendency to fall into a level with the plains; yet, notwithstanding, there are mountains. All waters seek a level; yet, notwithstanding, there are waves.

In a machine, motion or rest will depend upon the proportion between the sum of the impelling and the sum of the restraining forces: in the human mind the result will be the same. Everything depends upon proportions; and of any proportions in the case, the man of law takes no more thought than the machine does.

Upon the proportion between the impelling and the restraining forces it depends, whether the waggon moves or no, and at what rate it moves: upon the proportion between the mendacity-promoting and the mendacity-restraining forces it depends, whether any mendacity be produced or no, and in what degree and quantity. Any interest, interest of any sort and quantity, sufficient to produce mendacity? As rational would it be to say, any horse or dog, or flea, put to a waggon, is sufficient to move it: to move it, and set it a-running at the pace of a mail-coach.

In the human mind there is a force to which there is nothing exactly correspondent in the machine—the force of sensibility: of sensibility with reference to the action of the various sorts of pains and pleasures, and their respective sources, in the character of motives.

Take what everybody understands, money: for precision’s sake take at once £10, the £10 of the day, whatever be the ratio of it to the £10 of yesterday: to the present purpose, depreciation will not affect it. This £10, will its action be the same in the bosom of Crœsus as of Crœsus in the bosom of Diogenes, as in that of Catiline? No man will fancy any such thing for a moment: no man, unless, peradventure, it have happened to him to have been stultified by legal science.

In each individual instance, whether mendacity (temptation presenting itself) shall be produced or no, will depend upon four distinguishable quantities: quantities above indicated. On the one side—1. Sum of the mendacity-promoting motives; 2. The patient’s sensibility to ditto. On the other side, 3. Sum of the mendacity-restraining motives, regularly acting and occasional; 4. Patient’s sensibility to ditto. Upon these several quantities: consequently upon the ratio or proportion of the sum of the quantities on the one side to that of the quantities on the other. Of the proportion, the exclusionist knows not anything: he knows not any of the quantities; he will not suffer himself to know anything: he regards mendacity as certain; he excludes the evidence.

Of none of these several quantities can anything be known or conjectured, without examination and sifting of the evidence. Nothing can be known without experiment: and he will not suffer experiment to be made.

It is in psychology as in ship-building and navigation. Suppose the ship’s way to depend upon the joint action of six influencing circumstances—six jointly acting, but mutually conflicting, causes: and these, each of them, say (for supposition’s sake) of equal force. If, in the investigations and reasonings on this subject, so much as one of the six be omitted, error is the inevitable consequence: the forms of mathematical language, instead of a check to the error, will operate but as a cloak to it. The vessel will be in one part of the world, while the Lagranges and the Eulers are proving it to be in another.

In this respect, what course of ratiocination has been pursued by lawyers, debating on the ground of established systems? Of the whole catalogue of motives, each capable of acting upon the will with the most efficient—all consequently with a practically equal, force, they have taken observation of perhaps one, perhaps two; while on each side, or (what is worse) on one side only, the will of the patient has been acted upon by perhaps twice or thrice the number. What, in consequence, has been the justness of the conclusion? Much about what it would be in navigation, if calculations made for a submarine vessel, or an air-balloon, were to be applied to a ship of ordinary make and size: or as if, in calculating the course of an ordinary vessel, no account were taken of the depth of water drawn by her, or of the position of her sails.

In this state of the progress made by lawyers in the theory of psychology, no wonder if we should find the theory and practice on the subject of evidence in no better plight than navigation was among the most polished nations of Europe, when the scene of it was confined to the Mediterranean, and when, dreading to lose sight of land, the navigator creat along the shore.

Between these two otherwise resembling cases, there is, however, one very material and lamentable difference. In navigation, ignorance, deficient in adequate power, erred by over-caution and timidity: in jurisprudence, ignorance, supersaturated with power, is driven aground continually by hastiness and rashness.

It would be tedious, and surely by this time superfluous, to pursue absurdity on this ground through all its mazes.

No presumption so slender, which is not, under some established system, taken for conclusive, if fact, notorious or proveable fact, run counter, it makes no difference. Mendacity is presumed from affection—from bare wishes: wishes themselves are presumed from situations, from relations. Brother will be for brother, master for servant, servant for master, and so on. What? when you see them fighting with one another every day? Is it for his excessive fondness for Abel, that Cain would have been excluded by you? No matter: it makes no difference.

Among the causes of exclusion in Scotch jurisprudence, imported or not from the continent, is this: if a man applies to either party, tendering his testimony.*

Observe, first the absurdity of this exclusion, and then the mischievousness of it.

Absurdity. What? On the north side of the Tweed, does no such affection exist in any human bosom as the love of justice? In a legal bosom, it seems, no; any more than on the south side. To the man born blind, all colours are alike unknown: but was ever blind man found absurd enough to deny, or thoughtless enough to forget, the existence of colours?

Mischievousness. Mischief the first: A man saw you robbed, beaten, left for dead: him, you, for your part, did not see; you were too much engaged. To him, you, on your part, cannot apply to testify what he saw; for you know not that he saw anything; to yourself, he, on his part, must not. Did you proffer that testimony of yours to the plaintiff? asks the advocate on the other side. Yes, I did. Oh! then, away with you; tell it anywhere else you will, you must not tell it here: so sure as you opened your mouth, so sure you would be perjured.

Mischief the second: Directions to worthless witnesses: to all who, in the school of technical jurisprudence, have learnt to hate justice: to all who are in fact (if any such there be) as worthless as the man of law supposes every man to be. If you see any man barbarously injured, and, to earn a bribe, or save the trouble of testifying, you desire he should be without remedy, go and offer him your service. If you see a man purloining public money, making laws for honour, breaking them for profit, don’t stand upon rules of evidence established for the plain purpose of giving impunity to malefactors; don’t slink under a plea that will ruin you with every man who has any regard for justice; go to the prosecutor at once, and force upon him your evidence: the more obtrusive your address, the surer you may make yourself of destroying the competency, and, if that won’t do, the credibility, of your evidence.

To this rule, such is its absurdity, it can hardly have happened to be frequently acted upon: but, like every other absurd and mischievous rule of which the system is composed, it lies in readiness, well adapted to serve a cause too desperate to be served by less vile means—perfectly adapted to afford to long-robed iniquity the necessary pretence.

In this example, we may see a specimen of the sort of evidence on the ground of which the technical lawyer builds a pretence for the exclusion of other evidence. In partial affection, say rather in preferable regard, he sees evidence, and that conclusive evidence, of perjury; as if to wish well to your friend, and to perjure yourself for him, were inseparable. In the mere act of saying, I saw so and so, and am ready to testify what I saw, they see evidence of partial affection—Scotico-jargonicè, partial counsel: as if it were impossible without injustice to wish to declare to justice what he saw.

Compare Scotch and English judicial science. In Scotland, for informing the conscience of learned judges, no spontaneous witnesses receivable. In England, for informing consciences of the same learned texture, no witnesses receivable but willing ones.† Such is the metamorphosis undergone by learned Justice in her passage from one side to the other of the Tweed. Between willing and spontaneous there is certainly some difference: the expression has carefully preserved it. Let jurisprudence make the most of it: there is not an atom to be lost.

Observe, on this ground as on so many others, the consistency of the men of law, and especially English law. Delinquency, according to them, is not ever to be presumed. Yet, as often as, on the ground of danger of deception through falsehood, they exclude evidence, what is it they do but presume delinquency? What is it, as often as on this ground they exclude testimony that would otherwise be received by them in the character of evidence,—what is it they do but presume perjury? Actual perjury, no; because their providence has prevented it: actual perjury, no more than actual murder, when, the pistol or gun having been fired, a tutelary hand has just had time to beat down the guilty hand in the act of pulling the trigger: actual perjury not committed, but the state of the mind exactly as if it had.

Perjury presumed, not indeed for the punishing of the presumed perjurer, but for the inflicting punishment, or (if that be not the word) vexation, on an innocent and injured man: vexation to an unlimited extent.

Suppose the excluded testimony necessary to save the life of a man capitally prosecuted, as for murder: here, one man being presumed an intended perjurer, another man suffers death.‡

§ 2.

Peculiar impropriety of exclusion on the ground of pecuniary interest; and absurdities of English law under this head.

If, on the ground of interest generally considered—if, on the ground of any other species of interest in particular—the unreasonableness of exclusion is demonstrable,—it is in the instance of pecuniary interest that it is most palpable. In the case of any other species of interest—the interest not having any palpable physical cause, the quantity of which might serve as an index and measure of its force,—the strength of it where it is strong, the weakness of it where it is weak, is not so universally manifest and incontestable. Suppose, for example, it be contended that enmity, known enmity, is a reasonable ground of exclusion. Enmity, like any other passion, is variable ad infinitum in degree; capable of existing in any the lowest degree, as well as in the highest. But the force of enmity, as of almost every other passion except the love of money, can no otherwise be measured than by its effects: so that if in this or that instance no visible effects have followed from it, the only proof of which the existence and action of it is susceptible is wanting to the case. In the instance of pecuniary interest, the argument stands upon a very different footing. Without reckoning the variations in degree, resulting from the variations in the degree of opulence of which the pecuniary circumstances of the party are susceptible,—the degrees of which the force of pecuniary interest is susceptible are not only prodigiously numerous, but also, in the lowest degrees, susceptible of an existence as palpable and ponderable as in the highest. As a thousand pounds, applied in the shape of reward, will be recognised as acting on the mind in the character of a lot of pecuniary interest, with a force proportioned to its amount,—so in like manner will a shilling, a penny, or a farthing. The legislator, and the administrator, the great dealers in this species of ware, can as well cut out in pennyworths’ and farthings’ worths the portion of pecuniary interest which they may be minded to create, as in hundred pounds’ worths and thousand pounds’ worths; and how questionable soever, or even hopeless, the influence of this species of interest may be, when broken down into these minute and almost impalpable lots, yet the existence of it in this case is not less manifest and indisputable than in the other.

Thus it is that, in the instance of pecuniary interest, the impropriety of the exclusion is exposed to view by a circumstance which has no place in any other. Generally speaking, no other species of interest appears so much as to exist, but in cases in which it acts, not with considerable force only, but with effect. It is not seen to exist, but where it is seen to act; nor is seen to act, but where it is seen to triumph. Far otherwise is it with pecuniary interest. The portions in which it is seen to exist are in many instances so minute, that in those instances the notion of its prevalence is too palpably absurd to be embraced, or so much as pretended to be embraced, by anybody. Who, for instance, speaking of the people of England, would take upon himself to maintain, with a grave face, that the majority of them would be ready, upon all occasions, each of them to perjure himself for the value of a farthing? Propositions, however, far beyond this in extravagance, have been implicity assumed by many a decision that, on this ground, has issued from English benches. An interest, corresponding to some minute fraction of a farthing, has in many instances been assumed as a legitimate cause for the exclusion of a witness, on the sole ground of the pecuniary interest generated by that cause.

In vain would it be to say, that this is among the cases in which we cannot draw the line; and that, therefore, in order to shut out the evidence in the cases in which the sinister influence exerted on it by this species of interest would be operative, and productive of the apprehended ill effect, we must be content to shut it out in many instances in which, manifestly enough, it cannot be operative. The very impossibility of drawing a line, a proper line, anywhere, is an argument, and that of itself a conclusive one, against the exclusionary principle. A line of this sort (it must be confessed) would, in whatsoever place drawn, be an improper one. But, by the principle of exclusion, a line of this sort is not only drawn, but drawn at the very worst place possible. There is an impropriety in drawing the line, for example, at the sum of forty shillings; and in laying down any such proposition as that which is implicitly contained in the Court of Conscience Acts, that a man is not to be trusted to give his evidence in a case where he has a sum of money to that amount at stake upon the result of it.* There is an impropriety. Why? In the first place, because (setting aside all such inscrutable circumstances as those which consist of psychological idiosynerasies, affecting the sensibility of the individual in question to the respective action of the improbity-and-mendacity-restraining motives,) there are some incomes to which four hundred pounds are not more than forty shillings to others. In the next place, because, even supposing it clear, in the instance of any particular individual, antecedently to experience, that forty shillings would constitute a temptation sufficiently strong to engage him in the path of perjury,—supposing it possible, I say, to find sufficient reason for predicating this of a sum of forty shillings,—it would not be possible to find sufficient reason for refusing to predicate it of a sum of thirty-nine shillings. But, by the line of exclusion drawn where it is drawn, this effect is predicated, not only of a sum of forty shillings or of a sum of thirty-nine shillings, but of a sum less, and much less, than the thirty-ninth or fortieth part of the smallest piece of base metal that ever came out of a mint: and this by a sweeping and unbending rule, by which people of all degrees of opulence as well as indigence, the Crœsuses as well as the Iruses, the Diveses as well as the Lazaruses, are excluded in the lump.

The force with which a motive of a pecuniary kind acts upon the mind of a given individual, will be in the ratio of the sum in question to his pecuniary circumstances. In England, two individuals may be found, one of them belonging to the most numerous class, the income of one of whom is to that of the other as 500 to 1. All other circumstances set aside, the force with which a given sum acts upon the mind of one of these individuals, will be but one five hundredth part of the force with which it acts upon the mind of the other. Yet (supposing this rule to be observed) if, on account of his being acted upon by the prospect of gaining in this way a given sum, the testimony of the poorer of the two individuals in question is to be rejected, so must that of the richer. The same effect, and that a certain one, is to be ascribed for this purpose to two forces, of which the one is in truth but the five hundredth part of the other.

In Great Britain, an estate of the value of 20,000 guineas a-year, or thereabouts, has been known to be at stake upon the event of a single cause: value, at thirty years’ purchase, 600,000 guineas. A guinea contains a little more than 1000 farthings: this same sum, then, applied to persons whose incomes stand at different points in the scale, from the highest to the lowest, is capable of acting on them respectively with 1000 different degrees of force: 600,000 being the number of guineas, multiplying the 600,000 by the 1000, here then are 600,000,000 different degrees of force with which the mind of man is capable of being acted upon by this one motive called pecuniary interest, to which by this rule one and the same degree of force (and that in every case an irresistible one) is ascribed.

Thus different are the degrees of force with which this one, among so many causes of falsehood (checked by the action of so many counter causes—of so many causes of truth,) tends to the production of its effect: degrees, which, by the identity of the denomination given to them, viz. pecuniary interest, are represented as being the same. From the mere consideration of this diversity, it must be sufficiently evident, that, in a vast number of the instances in which this cause of falsehood has place, its influence must, practically speaking, be equal to 0—not capable of surmounting the mere vis inertia of the human mind, supposing this cause of action to stand alone, unopposed by any other: whereas the whole force of the standing causes of truth is what it has to encounter in every instance, without reckoning the force of such of the causes of truth, the action of which is but occasional. Yet this is the cause, and indeed stands at the head of the list of the causes, the force of which is, by the rule which assumes it for a ground of peremptory exclusion, regarded as being in every instance infinite and irresistible: certain, at least, of preponderating over the sum of all other forces—of all causes of truth—to which it can happen to stand opposed to it.

If there were any sort of witnesses imaginable, against whom it were prudence to shut the door, the sort of witnesses against which the law is so decided to shut the door, are precisely those to whom it may be thrown open with least danger. All witnesses being exposed to seductive influence, all witnesses being dangerous, those will be least dangerous against whom men are most upon their guard: such are those, on whose foreheads the force of the seduction is written down in figures. A cloud involves the workings of friendship, a cloud involves the workings of enmity, a cloud involves the workings of love: the existence of the passion, the force of its action, everything is involved in darkness. No juryman, no stranger, scarcely even the closest intimate, can form any estimate of the degree of the enmity, the friendship, or the love: experience may have shown him no such enmity, no such friendship, no such love. But every man knows what ten shillings is, what twenty shillings is, and what is the difference: every man knows the value—every man feels the power, of money. Every man knows that allowances are to be made for it. Few men are disposed to make less allowance than truth requires, for the force of its action on other people. Few men are disposed to set the incorruptibility of other men at too high a rate, or the force of corruption at too low a one: few men there are in whom suspicious thus grounded are in any danger of not being carried up to the full limits of the truth: few in whom they are not much more apt to be carried beyond the truth than to fall short of it.

Of the force of money, on whatever occasion acting, the judge sitting on his bench is fully aware and acutely sensible. Agreed: but is there any other human being to whom that force is a secret? Sits there that old woman anywhere (not to confine ourselves to benches) who, on hearing a report made to her by another old woman, forgets to ask herself in what way and degree (if in any) the reporting old woman may have to gain or lose by the credit given or not given to her report?

What? can the man of law be sincere in thinking that no sort of men understand either the value of money, or the influence of it upon testimony, but himself?

In this case, therefore, the advantage expected from exclusion of evidence, in the character of a security against deception and consequent misdecision, is more plainly ideal than in any other: the reason in favour of the exclusion more palpably frivolous. And yet it is to this modification of interest, that exclusion on the score of interest is in a manner confined by English jurisprudence.

In the eyes of the English lawyer, one thing, and one thing only, has a value: that thing is money.

On the will of man, if you believe the English lawyer, one thing, and one thing only, has influence: that thing is money. Such is his system of psychological dynamics.

If you will believe the man of law, there is no such thing as the fear of God; no such thing as regard for reputation; no such thing as fear of legal punishment; no such thing as ambition; no such thing as the love of power; no such thing as filial, no such thing as parental, affection; no such thing as party attachment; no such thing as party enmity, no such thing as public spirit, patriotism, or general benevolence; no such thing as compassion; no such thing as gratitude; no such thing as revenge. Or (what comes to the same thing,)—weighed against the interest produced by the value of a farthing, the utmost mass of interest producible from the action of all those affections put together, vanishes in the scale.

Add self-preservation, if you please—self-preservation from whatever be the worst of evils, death not excepted,—the farthing will still be heaviest. “A pin a day is a groat a year.” Instead of the farthing, put in a pin, the result will be still the same.*

Romance! romance! True; but it is the romance of real life. The picture here drawn of the human mind is romantic enough, no doubt; but as to the account here given of that picture, nothing was ever more strictly true. Such are the decisions of the sage of law; such his every day’s practice; such his opinions, such his thoughts: unless, on learned benches, decision and practice run on without thought.

For a farthing—for the chance of gaining the incommensurable fraction of a farthing, no man upon earth, no Englishman at least, that would not perjure himself. This in Westminster Hall is science: this in Westminster Hall is law. According to the prints of the day, £180,000 was the value of the property left by the late Duke of Bridgewater. For a fraction of a farthing, Aristides, with the duke’s property in his pocket, would have perjured himself.

One decision I meet with, that would be amusing enough, if to a lover of mankind there could be anything amusing in injustice. A man is turned out of court for a liar, not for any interest that he has, but for one which he supposed himself to have, the case being otherwise. Instead of turning the man out of court, might not the judge have contented himself with setting him right? Would not the judge’s opinion have done as well as a release?† The pleasant part of the story is, that the fact on which the exclusion is grounded could not have been true. For, before the witness could be turned out of court for supposing himself to have an interest, he must have been informed of his having none: consequently, at the time when he was turned out, he must have ceased to suppose that be had any.

Another offence for which I find a man pronounced a liar, seems to make no bad match with the foregoing: it was for being a man of honour. “Oh ho! you are a man of honour, are you? Out with you, then—you have no business here.” Being asked whether he did not look upon himself as bound in honour to pay costs for the party who called him, supposing him to lose the cause, and whether such was not his intention,—his answer was in the affirmative, and he was rejected. It was taken for granted that he would be a liar. Why? Because he had shown he would not be one. If instead of saying yes, he had said no, who could have refused to believe him? and what would have become of the pretence?

By the supposition, the witness is a man of super-ordinary probity: moral obligation, naked moral obligation, has on him the force of law. What is the conclusion of the exclusionist? That this man of uncommonly nice honour will be sure to perjure himself, to save himself from incurring a loss which he cannot be compelled to take upon himself.*

To observe, in an instructive point of view, the cases where the exclusionist runs a tilt, as here, against a phantom of pecuniary interest—contrast them with the cases to be next mentioned, in which, notwithstanding its being pregnant with that same interest in its most palpable shape, he gives his permit to the evidence.

§ 3.

Exceptions to the exclusionary rule in English law—Reasons of the exceptions, subversive of the general rule.

What has happened in this instance, and what, in this as well as so many other instances, is the best thing that could happen to the laws of our jurisprudential Solons,—they are contradicted, contradicted by themselves, and at every turn. Exceptions, self-contradictions, spring up everywhere under their feet: exceptions, and, as far as they extend, all reasonable. Reasonable, and why? Because, the rule itself being fundamentally absurd, everything must be reasonable which goes to narrow its extent.

In considering the exceptions as reasonable, understand the practice, viz. the act of admission, and no more: for as to the reasons on which it has been built, they may be reasonable, or absurd in any degree; the practice is what it is.

Before I enter upon the consideration of the particular exceptive rules, each characterized and supported by its appropriate reason, it becomes necessary to explain what sort of a thing it is, which, under the name of a reason, one meets with in the books of English common law.

Common-law reasons may be distinguished, in the first place, into technical reasons and vulgar reasons. By technical reasons are meant reasons that have nothing to do with utility. Technical, as applied to reasons, is an appellative invented by English lawyers, to denote such modes of speaking as would not pass for reasons upon anybody but themselves: reasons peculiar to the art, the science, the profession. By a reason, speaking with reference to a law or rule of law, an unlearned man would be apt to understand, a consideration the tendency of which is to prove the law or rule of law to be conformable to the principle of utility: i. e. productive of more good than evil. These vulgar or popular reasons a learned man will sometimes condescend to take up when they happen to fall in his way; but the favourite, the privileged, reasons, are of course the professional, the scientific, the transcendental—in a word, the technical, reasons: as above described.

Leaving the scientific reasons to scientific men, as not being fit to be spoken of under the name of reasons by vulgar lips, I confine the application of the word reasons when employed without any such additament to such reasons of the vulgar cast, as, on the occasion in question, have been honoured by the adoption given to them by scientific pens.

A great book, according to the Greek proverb, is a great evil. A law, besides what belongs to it as a book, is at any rate an evil, great or little. To form a tolerably correct judgment concerning any law, in respect of the question whether the good or the evil tendencies of it predominate—in a word, to form his judgment on the question on which side the balance is,—every legislation and writer on legislation who understands his business, proceeds in his accounts as a perchant does in his: has a debtor side as well as a creditor, and neglects not any more to make his entries on one side than on the other.

In the books of English lawyers, the ways of speaking which one meets with under the name of reasons, are confined for the most part to one side. Such is the case in particular with the reasons corresponding to the several particular rules by which so many groups of exceptions have been attached to the general rule of exclusion on the score of pecuniary interest. To the rule itself, no reason at all appears ever to have been annexed: the utility of it has been established by assertion and assumption, without so much as an attempt to find a reason for it. To the exception has been attached a reason, such as it is; a reason, of course, in favour of the exceptive rule—a reason on that one side. The reason having been thus exhibited, its conclusiveness has been presumed as a matter of course. No marks are discoverable, on this ground at least, of any such suspicion, as that, in the account-book kept by a legislator (supposing him to keep any,) there should be two sides.

On the present occasion, in presenting a sample of learned reason on this ground, I shall confine myself to the case of an extraneous witness. The case in which the pecuniary interest at stake is that which a man possesses in the character of a party in the cause, plaintiff or defendant, is reserved for another place;* for, in this latter case, jurisprudence, and more particularly English jurisprudence, will be found variegated by inconsistencies, for which, in the situation of an extraneous witness, there is no place.

In point of propriety, the exclusion stands in both cases on nearly the same ground. If there be any difference it is this,—viz. that, sum for sum, the exclusion is more plainly useless in the case of the party than in the case of the extraneous witness. Why? Because the interest by which the will is acted upon in a sinister direction, is, in the case of a party, more conspicuously painted upon the face of the situation in which he stands. Deception is therefore so much the less probable: the mind of the judge, be he who he may, is so much the less in danger of not being sufficiently forewarned against it.

I. Exception the mist:—Interest against interest.

Unless the rule, out of which the exception is taken, he supposed to be bad in toto, the reason of the exception (if it has any) supposes all other circumstances equal, and the quantity of money creative of the interest the same on both sides. Against the truth of this supposition, there is exactly infinity to one. The number of possible ratios is infinite: of these the ratio of equality is one. Of the proportion between interest and interest, the exception takes no cognizance: no mention of it is made.†

II. Exception the second:—The interest contingent.‡

The assumptions here are two:—1. That in human affairs, at least in human affairs of this stamp, a line is already drawn between certainty and contingency; 2. That no contingent interest can be equal to any certain one. Whence came this postulate? From Euclid? from Price?—from the Stock Exchange?—from Lloyd’s Coffeehouse?

The postulate once admitted, demonstrations follow in any quantity, and to any effect.

1. That,—in the case above alluded to, of the duke with his £180,000 a-year, his title to the whole of it being contested, the duke at the point of death, his only son called on his part as a witness, the estate unsettled, son and father upon the terms that all fathers and all sons ought to be,—the son would be a good witness. Why? Because his interest is not vested; is not certain; is no better than contingent. Secus, if the estate be in settlement, sixpence a-year settled on the son, the father in full vigour, the son in a galloping consumption, father and son like Henry II. and his sons: for here le interest del fitz est certain, et nemy contingent.*

Can it be necessary to observe, that in human affairs, in matters of gain and loss especially—more particularly in matters of gain and loss that depend upon law,—the difference between contingency and certainty is but in name?—that what is called a certainty (for even death itself is contingent as to time) is but a contingency, in which the ratio expressive of the degree of probability is more or less greater than in the other case? Can it be necessary to observe, that there is not that contingent sum for which the exact equivalent, in a sum called by everybody a certain one, is not to be found? The lawyer, by whose decrees the operations of the money market are governed and perplexed—are they all a secret to him? What charity-boy, what beggar-boy, was ever at a loss to know that the toss-up of a halfpenny was worth a farthing? Alas! When will the wisdom of the sages of the law rise to a level with that of babes and sucklings?

Observe what the £180,000 a-year loses in value, by being contingent instead of certain. The proportional number of fathers by whom their only children are disinherited is—what shall we say? say one out of a thousand: say even one out of a hundred and eighty. The value of the £180,000 is reduced, by this circumstance, to what?—to £179,000.

Great debates, in the days of the schoolmen, concerning the comparative value, in point of interest, of a possible Angelship and a present Mouseship. Mr. Justice would be clearly for the mouse.

2. Keeper and concubine: keeper rich as a Jew, fond as the Jew in the Harlot’s Progress: concubine at high allowance: keeper’s whole property at stake upon the cause. Concubine a good witness.

3. Defendant a feme sole, maid or widow; her whole property at stake, as before, she the heiress of our duke; witness courting her in marriage, and the day fixed:—a better witness need not be desired. I know how worthless a thing a woman is, in the eye of a true English lawyer: how incapable of creating an interest; how incapable of exercising any influence, right or wrong, on man’s affections: it was my care, therefore, to clothe her, to invest her, with a fee-simple.

4. The duke’s daughter seduced: suppose, as Clarissa was by Lovelace: she wanting a day of being of age. Pier porte action versus seducer: case, trespass per quod servitium amisit: stockings remaining unmended, which fille should have mended while in childbed: damages laid at £10,000. Fille good witness. Why? Because no interest. What matters it to her whether she be thought to have been defiled without consent, or to have delivered herself as Potiphar’s wife would have done to Joseph?

Secus, the day past, and fille of age. Action per pier ne gist,†quia nul droit: because no right per faire fille mend stockings: issint, no damages al pier. Action per fille ne gist, quia nul seduction, fille ne esteant dans age: et uncore fille bad evidence: quia nomo debet esse testis en son cause demesne.

III. Exception the third—But here a difficulty occurs. A reason, to be susceptible of correct scrutiny—a reason, like any other proposition, should have for its vehicle some determinate and complete grammatical sentence. But among the words, or assemblages of words, which on this ground assume the guise and port of reasons, no such propositions, no such sentences, are to be found. What is found, consists of here and there a catchword or two, out of which, if others were added to them, reasons of some sort or other might peradventure be composed. Take, for example, the words necessity, course of trade. The matter of Gibbon’s book has been not unaptly stated to be not history, but allusions to history; the sort of matter here in question may, in like manner, be said to consist not of reasons, but of allusions to reasons.

1. Jeweller delivers jewels to his journeyman to deliver them over to a customer: journeyman steals them. Thief good witness to prove delivery. Why? Because, in speaking of the transaction, occasion may be taken to use the words course of trade. Trade is certainly a good thing: but quære, what can it be the better for a sort of evidence which in each instance will most probably, if not certainly, give the goods away from the right owner to a thief?

Secus, it the jeweller himself had delivered them:* for, this is not in the course of trade. No shopkeeper was ever known to serve a customer with his own hands.

Observe the difference: in case of mendacity, the jeweller has no interest to serve but that of gaining the value of the jewels; the journeyman has that same value to gain, and his life to save. But in the English lawyer’s price-book, life is worth nothing; reputation worth as little, except when money is to be got by parting with it.

2. Action for the price of goods sold by factorage: factor paid at 5 per cent. Question about the price agreed on, whether £10,000 or £11,000: if £11,000, factor gets £50, which, if £10,000, he does not get. Factor a good witness. Why? Because here too you may say course of trade. Had the factor delivered £50 worth of his own goods with his own hands, there being nobody else to prove it, he would have lost the money; for here you cannot say course of trade.

If, in the one case, the profit from perjury, supposing perjury, is no greater than in the other,—how much greater the mischief! how much greater the loss! To gain his £50, the factor must, in the first case, have inflicted on the party injured a loss of twenty times as much.

In a case of this sort (and there are plenty of them) some, instead of course of trade, say necessity. The one word is as good as the other: any other as good as either of them. Approve the exception, you must first have condemned the rule.

With reference to what event can it be necessary to admit a species of evidence which is more likely to be productive of injustice than justice? for such (as we have seen) is the fundamental proposition, which, in point of reason, forms the necessary and only basis of the rule. With reference to what desirable end? To the avoidance of injustice? To say so, would be a contradiction in terms.

In these three words, course of trade, may be seen a complete confutation of the rule; a complete disavowal of the principle of it; a complete certificate of the non-existence of that danger which constitutes the sole reason of the rule.

Course of trade!—and of what trade? Of every branch of trade, from the highest to the lowest: course of dealing—of dealings of all sorts—of every day’s dealings between man and man. The persons exposed to the action of this sinister interest—of this interest, which, sinister as it is, pecuniary as it is, as well as so much beyond pecuniary, forms no bar to their testimony,—are persons of the lowest, as well as most numerous order, servants and day-labourers: while the interest, the pecuniary interest, of itself, rises to any magnitude. And with this example not only before your eyes but in your mouths, you take upon you to deprive justice of the light of evidence, on pretence of interest!

IV. Exception the fourth:—Interest created by a wager: a wager laid by the witness on the event of the cause.

Reason for the exception: A man ought not to have it in his power to deprive another of the benefit of his testimony.†

What! not to deprive him of a sort of testimony which, in your view of the matter, is sure to be stained by perjury, and to produce misdecision and injustice? One thing on one occasion, another thing on another occasion. One individual must not have it in his power to deprive another of the benefit of his testimony. How often do they not, these lawyers, give that same power to individuals in other instances!—how often do they not execute it themselves!

Blessed law! A law authorizing parties to hire witnesses, and witnesses to be hired—a law establishing a market overt for hired witnesses—effect given to the practice, and nothing said against it!

Wagering thus employed is subornation; nor yet simple subornation, but subornation double distilled. Subornation simply distilled is £100 promised by plaintiff to witness, to be received if plaintiff gains the cause. A wager of £100 between plaintiff and witness, plaintiff laying that he loses the cause, witness that he gains it, acts with double the force.‡ In the case of the simple loser, though plaintiff should lose the cause, witness will indeed gain nothing, but neither will he lose. In the case of the wager, plaintiff losing the cause, witness will not only gain nothing, but he will forfeit as much as in the other case he would have gained.

V. Exception the fifth:—

After observing the cases in which the excluding rules have been broken through, for reasons proper in themselves, but yet no otherwise proper than on the supposition of the impropriety of the rule,—it may be curious enough to observe a case in which the rule is broken through on the ground of a circumstance out of which nothing like a reason can be made, or is so much as attempted to be made.

A time there was, when the witness was not exposed to the action of the sinister interest, to the action of which he is exposed, now that he is called upon to speak. Well, and what then? What follows? That at that time, had he been examined, the cause which exists for suspecting him would not at that time have existed: but, for not existing then, does it exist the less at present?

Question: A man who at the time of his examination has an interest in the cause,—is he an admissible witness, he having had no interest at the time of the supposed fact? Decision in the affirmative.* Because he was under no temptation when he had not to speak, therefore, when he is to speak, knowing him to be under temptation, you are to suppose him not to be so. Just as if a pilot were to say in a storm, the vessel among the breakers, Sit still; there is no danger. Why so? Because yesterday it was a dead calm.

VI. Exception the sixth: Voire dire.† Truth expected, in spite of interest.

One point of practice more may put a finish to this exclusionary rule, and the deviations from it. When a witness produced against you has an interest in the business (meaning always a pecuniary interest,) and you cannot get other evidence of it, or do not care to be at the expense, you address yourself to the witness himself, and ask him whether he has or no: if he speaks truth, he is turned out; if he perjures himself, he is heard. This operation is called examining a witness upon the voire dire. Voire dire is, in law French, to tell the truth: and the examination is called voire dire, because upon this occasion the witness is called upon, and expected, to tell the truth; no such requisition being made, nor result expected, in other cases.

The practice, and the name found for it are not ill matched. Speak the truth indeed? So, on this occasion he is to speak truth, is he! What is it, then, that he is to speak on other occasions?

On the exclusionary principle, no supposition was ever more completely felo de se. If the man has no interest, they make sure in the first place that he will not speak the truth; and, though he have an interest, still they expect him to speak the truth.

On the principle of universal admission, nothing would be more consistent, nothing more rational, than the practice. If the situation the witness stands in exposes him to the action of a mendacity-promoting interest, he will speak under a bias: the judge should know of it, that he may put himself on his guard. Mendacious it may happen to him to be respecting this collateral fact, as well as the principal one; but mendacious he cannot be in both facts, without exposing himself to double danger. Bad as a passport to (jargonicè say) competency, the examination is good as affording a clue to credibility.

In a modern book which lies before me, the practice of examination on a voire dire is spoken of as being at present out of use. How the practice itself can be out of use, I do not very well conceive. I can conceive the phrase to be out of use—and if it be, so much the better. A man might look a good while, even in the vocabulary of English law before he would find so silly a one. Come, my honest friend, I am going to put some questions to you. To the first of them, the court expects you to speak truth: to the others, as you please.‡

We have now seen that, if it were in the nature of pecuniarily-interested evidence to give birth to any such systematical plan of legal depredation as upon a partial and hasty view might seem the inevitable consequence, the cases in which (notwithstanding the influence of the principle of exclusion) this seemingly dangerous species of evidence is actually admitted, are of sufficient extent to have long ago let in the mischief in full force. At the same time, a matter of fact universally notorious is, that no symptoms of the prevalence of any such mischief have ever manifested themselves.

So far is the public from ever having been laid under contribution by a system of depredation grounded on mendacity, as in the case supposed,—so far has been the practice of laying individuals under contribution in this way, by false evidence, from being realized to such a degree as to have become a prevalent practice,—that even the rewards offered to informers—the standing invitations by which men are called upon, at all times, to lay offenders under contribution, without prejudice to truth, and to the great benefit of justice,—are not excepted to an extent sufficient to give to the laws thus endeavoured to be supported, the degree of efficacy which the interest of the public in that behalf renders so desirable.

Men are not so forward as could be wished to dig for emolument in the mine of litigation, even by the invitation, and under the full protection of the law. Can it be looked upon with reason as a mischief seriously to be apprehended, that men should be more forward than at present to embark in the same intricate adventure, with the reproach of mendacity and injustice pressing all the while upon their consciences, and with the fear of punishment and infamy before their eyes?

CHAPTER IV.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF IMPROBITY.

§ 1.

Convicted perjury an improper ground of exclusion.

Third general cause of exclusion on the score of deception,—improbity.

Interest is not in any shape a proper ground of exclusion. Improbity, in whatever shape or degree, is still farther from being a proper ground of exclusion.

Entire assurance of mendacity neither ought to be, nor is, received as a ground for the exclusion of theassuredly mendacious testimony. So far from it, that, on the contrary, that sort of evidence which is most assuredly mendacious is (when applied in the manner that all mankind are in the habit of applying it) regarded even by lawyers as the “best evidence.”

Evidence in which both causes of suspicion are united, and each in the highest degree, is received in every day’s practice, to the great advantage of, and without any prejudice, or so much as suspicion of prejudice, to justice: and this where, in case of deception, the mischief would be at its highest pitch.

These several propositions either have been, or, it is hoped, will be, established by sufficient proofs.

Let us begin with perjury. In perjury may be seen by far the strongest case: the case in which the pretence for exclusion on the score of security against deception wears the fairest outside.

Perjury is a particular modification of improbity; but a modification particularly appropriate to the present purpose. Improbity at large, according as it is more or less frequently displayed, indicates an habitual, or at least frequent, prevalence of the force of the improbity-promoting over that of the tutelary or improbity-restraining motives: a force impelling the individual into this or that line of immorality and misconduct, according to the nature of the seducing motive or motives acting in each individual case. Perjury, in addition to the prevalence of the ordinary motives on some individual occasion or occasions, indicates the particular species of delinquency into which the individual has thus been impelled; viz. mendacity: the very species by which the most plausible of all pretences for exclusion on the ground of improbity is afforded. In any other case, the argument for the exclusion is no more than this: He has violated the obligations of morality in some sorts of ways; therefore it is more or less probable that he will, upon occasion, violate them in this sort of way. In the case of mendacity it runs thus: He has violated the obligations of morality not only in other sorts of ways, but in this very sort of way, on former occasions; therefore it is more or less probable that so he will on the occasion now in hand.*

For suspicion, a most perfectly proper ground: for rejection, none whatever. Reasons: those already mentioned; to which may be added those which follow.

1. In this line of delinquency, beyond most, if not all others, the scale is lengthy, the degrees are numerous: the highest degree upon a level with murder; the lowest, that sort of conduct (shall it be called misconduct?) which is openly and habitually practised by English jurymen;—countenanced, approved, recommended by English judges.

To all these different levels the eye of judicial suspicion has the power of adjusting itself. Exclusion knows no gradations: blind and brainless, it has but one alternative;—shut or open, like a valve; up or down, like a steam-engine.

Instead of conniving at the exclusionary system, long ago would the legislator everywhere, if wisdom had been as easily displayed as power exercised, have exhibited a scale of this sort, for judicial suspicion to guide itself by. An attempt of this sort will be found in an ensuing book.

2. When the door of the witness-box is shut against a proposed witness on this score, it is generally on the ground of some single transgression of this sort. But a single transgression of this sort,—what does it prove? The violated ceremony apart (a concomitant purely accidental, having no connexion other than accidental with the nature of the mendacity, nor with its pernicious consequences,) the conviction proves no more than this,—viz. that on one assignable occasion the convict has been known to fall into that sort of transgression, which every human adult must also have fallen into, more times than one, on occasions assignable or unassignable.

“I said,” says the Psalmist—“I said in my wrath, all men are liars.” It was in his wrath that the observation came from him; but he need not have wished to retract it in his coolest moments. From a single lie told in the course of ever so long a life, a man may, without any grammatical impropriety, be denominated a liar. But, admitting that in this sense the being a liar is what, without exception, might be predicated of every human being that ever arrived at man’s estate, the truth of the proposition would not be incompatible with a probability on the side of veracity, to the amount, on each given occasion, of many millions to one. And, upon the whole, he who considers how few in comparison are the occasions in which any advantage (howsoever impure, and overbalanced by ultimate disadvantage) is to be gained by falsehood, will, I imagine, join with me in the opinion, that, from the mouth of the most egregious liar that ever existed, truth must have issued at least a hundred times, for once that falsehood, wilful falsehood, has taken its place.

Again, no man is the same as himself at all times: it has been said of wisdom—it may be said, and with equal truth, of probity; it may be said, and not altogether without truth, of veracity, that most important, because all-extensive, branch of probity. The mind, of which the force has sunk under the temptation at one time, may stand against it at another: the same mind has its stronger moments and its weaker moments; without taking into the account that sort of revolution so much oftener talked of than exemplified, a thorough change. On the part of the temptation, likewise, the strength of it is liable to variation (as hath been already noted,) upon a scale distinguishable to an infinity of degrees.

From a man’s having borne false witness in some one instance (or even, as we shall see presently, without any such warrant, and merely from his having done or thought, or having been supposed to have done or thought, something wrong, in some other way that has nothing to do with falsehood,) it is inferred, and that with the most peremptory assurance, that he will never bear true witness in the whole course of his life! An induction, and such an induction, grounded on a single instance!

To pronounce a man guilty of any other offence without the opportunity of a hearing, is allowed to be the summit of injustice. To pronounce a man in the same manner guilty of an intention to commit perjury, is given, on this occasion, as a most refined invention for the furtherance of justice!

He was heard (it may be said:) he was heard, before he was pronounced guilty of the fact on which the incapacitation was grounded.—He was heard; yes: but upon what occasion? On the occasion on which he is deemed incredible? No: but on the occasion of a transaction altogether different: which may have happened yesterday, it is true; but between which and the occasion in question, an interval of half a century may, for any provision the rule makes to the contrary, have clapsed.

The exclusionist, at any rate, is estopped from representing conviction of perjury as a mark of distinction between the unfortunate liar in question, and other men. According to him—perjured or unperjured before—every man, for the most trifling profit, is ready to commit perjury.

From all this, is any such inference to be drawn as that perjury is a light matter? that it is no stain upon a man’s character? that it affords no presumption against the truth of his testimony in succeeding instances? Far be it from me to have harboured, for a moment, any such conceit. What I am contending against (let it never be out of sight) is absolute rejection: rejection in all cases:—not suspicion and distrust. The very repugnance, with which it is but natural the reader should have received the proposition of opening the door of justice to testimony of this tainted kind, is a sort of proof and earnest of the safety of the measure. The same precipirate emotion, under the influence of which the man of experience, the man of law, has so generally shut the door against testimony thus stigmatized, may be expected to act upon the whole with equal force, and with quite as much as its due force, even upon men of his own elevated level: much more upon the unthinking multitude below. So broad, so prominent is the stigma—so conspicuous and impressive the warning which it gives,—the danger is, not that the man thus distinguished should gain too much credence, but that he should not gain enough. Fœnum habet in cornu. Suppose an inexorable door shut against him: or, although open, suppose an inexorably deaf ear turned to him; and observe the consequence:—that crimes, all imaginable crimes, may be committed with impunity, with sure impunity, on his person and in his presence.

When the perjurer is a principal in the cause—when the person on whose part false testimony is apprehended (apprehended on the ground of false testimony given in a former instance,) and the person whose purpose would be served by the false testimony (whose interest, it is apprehended, may be the efficient cause of such false testimony,) are one and the same; in this case it is only on the part of one person that the improbity is presumed: and in his instance the presumption is but too well justified by former experience. But suppose the perjurer not himself a party, but only called in by a party, in the character of a witness: how stands the presumption then? Without subornation on the one part, perjury on the other part is, in this case. I do not say an impossible crime but at any rate not a natural one. Spontaneous perjury, to serve a person who knows nothing of it, and who, therefore, does not so much as conceive himself to be obliged by it, is certainly a possible case, but it is not a natural one. But, if perjury on the part of the witness supposes on the part of the party a sort of subornation, more or less explicit,—how stands the danger, how stands the supposition, when, to produce the apprehended mischief, criminality, and in this high degree, on the part of two different persons, must have taken place? On the part of one of them, the presumption indeed has a ground to stand upon: but on the part of the other, it has no ground. Will it be said, that the invoking, in this way, the aid of a person thus exposed to suspicion, affords a suspicion but too natural of a connexion in guilt? The suspicion might have some force, if on all occasions, or on most occasions, a man had his choice of witnesses. But in general the case affords no such choice. Chance—the same chance which gives birth to the offence, or other cause of dispute (to the offence, if real, or to the event which disproves the reality of it, if the accusation be groundless,)—this same chance brings to the spot the witnesses, by whose testimony, if obtainable, the cause is to be decided. To have his witnesses to drag out of the house and the very bosom of the adversary, is no uncommon case.

Cases, however, there are, in which a man has usually his choice of witnesses—actual obserring witnesses to the transaction—eventual deposing witnesses in case of litigation. I mean the case of attesting witnesses to conveyances and other contracts. Apply the rule of exclusion for perjury to this case. Because my witness has since perjured himself, am I to be deprived of my estate?*

In considering whether improbity, and in particular whether this strongest case of it, ought, in point of policy, to be considered as a ground for the exclusion of testimony,—the consequences in point of utility to the public taken in all its parts, have, on this occasion as on every other, been taken by me for the standard of right and wrong. But the consideration of these consequences,—has it in general been the efficient cause of the decisions given on this head, in the established systems of jurisprudence? To a certain degree, yes; exclusively, certainly not. In the legislation and jurisprudence of various nations, and of England among others, the offender, not the community injured by the offence, has been the object in view—antipathy, not benevolence, the prevailing motive. Infamy, and (as a visible sign of infamy) exclusion from the sanctuary of justice, has been a lot of punishment superadded to what other lots were found at hand; a sort of makeweight punishment to fill up the measure. It is one of the instances, which, in but too great number, may be found in the English as well as other established systems, of the sort of punishment that has been called misseated punishment: punishment in alienam personam: a sort of punishment which, in this particular application of it, may be styled chance-medley punishment. The punishment does not fall upon the witness who is disqualified, but upon all persons who may have need of his evidence. A certain person has offended, and, to add a sting to his punishment, an unoffending crowd is collected below, and a pailful of punishment is thrown down upon their heads out of a window. An innocent stranger is laid hold of, and a sword run through his hody, that with the point of it a useless scratch may be given to the cartiff who has provoked all this vengeance.

§ 2.

Inconsistencies of English law under this head.

Under English jurisprudence, the testimony of a proposed witness, if previously convicted of perjury, is altogether inadmissible.* So says the general rule. Not that exceptions are altogether wanting.

1. Exception the first:—A piece of parchment called a record having been rendered necessary,—if anybody has contrived to keep it out of the way for a few minutes, the perjurer’s evidence is good evidence.† What the record (such part of it as is not itself mendacious) can exhibit of the case, is as nothing in comparison with what the judge’s notes might show, or the testimony of another person present at the trial on which the perjury was committed. But production of the lying parchment produces fees; production of the other evidence would not yield fees.

The oracular and sacred character attributed in the books to everything that bears the name of a record, is grounded on the supposition that the instrument, if not the composition of the judge, has at any rate been authenticated by his perusal. This supposition, unless by the merest accident, is never true. While all this honour is paid to the spurious document, the genuine one, which actually is the composition of the judge himself who tried the cause, passes unregarded.

Admitting the judge’s notes as the best of all evidence, when it happens to be attainable, is one species of evidence there is, which cannot but exist: a species of evidence scarcely inferior to the judge’s notes, and greatly superior (rationally speaking) to the second-hand as well as uncircumstantial evidence furnished by the copy of the record: and which is sure to be not only attainable, but actually present, and that without expense. This is no other than the evidence of the perjured witness himself, whose conviction, on the account in question, is supposed to have taken place. This, however, is too sure, and simple, and cheap a method of coming at the truth, to be allowed of.* An observation that appears to have been made on this subject is, that when a man has been convicted of a crime, it would be an unpleasant thing to him to speak of it; and thence it is that a man, whose testimony, if admitted, will be sure to be delusive (for that is the supposition,) is to be admitted to give this delusive testimony, rather than that any questions should be put to him concerning a fact on which perjury without detection would be impossible. But, if its being unpleasant to a man is a reason for not asking him a question, à fortiori it ought to be a reason for not punishing him: for how unpleasant soever it may be to a man to say, I have been whipped, pilloried, or transported, the operation of whipping, pillorying, or transporting, should, one would think, be still more so.

In no possible case can the unpleasant circumstance in question, the punishment (if it is to be called one,) be surer of not falling upon one who is innocent, than in the present; for if he to whom the question is thus put, whether he has been convicted of such or such an offence, never was convicted of it,—how it should ever happen to him to forswear himself, and answer in the affirmative, unless he takes a pleasure in forswearing himself to his own prejudice, is scarcely to be conceived. How well disposed soever a man may be to be unjust to others, there seems to be no great danger of his being disposed to do injustice to himself.

This preference of the interests of the guilty to those of the innocent, how absurd soever in all cases, will at least have the effect it aims at, in the case where, if a witness is not liable to be exposed by his own confession, he is not liable to be exposed at all; in those cases (some such there are) where no other evidence of specific criminality is permitted to be adduced. But where the difference in point of unpleasantness is no more than what there is between the confessing his own guilt, and the having it proved to his face by evidence which is deemed still more convincing, such as the production of the record of his conviction,—what possible use there is in this tenderness, even to the criminal to whom it is shown, seems not very easy to point out.

2. Exception the second—Where the stain upon the testimony has been done away by any of the approved restoratives: of which in the Chapter of Restoratives.†

3. Exception the third:—Where the testimony, being self-regarding, viz. that of a defendant, is delivered in the shape of affidavit evidence, and “in relation to the irregularity of a judgment in which such person is a party.” (This, then, must have been in a civil suit. What if in a criminal suit? Try the cause, and then you will know. Examine the authorities, and the farther you examine, the farther you will be from knowing.)

The reason is a good one: provided always that the rule be, in the first place, acknowledged to be absurd and mischievous. “It hath been ruled, that a conviction of perjury doth not disable a man from making an affidavit in relation to the irregularity of a judgment in a cause where such person is a party; for otherwise he must suffer all injustice,‡ and would have no way to help himself. But it can only be read in defence of a charge (i. e. against a charge,) and not in support of a complaint.”∥ Not that, in the sort of case thus excepted, the reason is by any means so good as in the other sort of case so carefully distinguished. All other evidence being supposed, in both cases, unattamable,—in what respect is a man less exposed to suffer all injustice by not being admitted to give his own testimony in suppost of a complaint of his own, than by not being admitted to give it for the purpose of defending himself against a charge? In other words, in what respect is he less exposed to suffer injustice, by not being permitted to give his own testimony in his own behalf when plaintiff, than when defendant? On the contrary, the danger he would be exposed to from injustice would be greater if the proposition were reversed. Debarred from being heard as a witness for himself in the character of defendant, he is exposed to no injuries but such as may be attempted to be inflicted on him by the intervention of the hand of justice, debarred from being heard as a witness for himself in the character of plaintiff, he is exposed to all injuries without exception.

From a charge he cannot, in the way of conviction, be a sufferer, but upon the supposition of a suit of some kind or other instituted, and perjury committed, or at least misrepresentation made, in support of it, with the judge upon the watch to protect him against it. In this case, the scene of the injury lies in curiâ; and there he has the probity and compassion of the judge for his defence. In the opposite case, it has lain (jargonicè) in pays: and there, whom had he for his defender? If the adversary had ordinary prudence, seconded by ordinary good fortune, nobody. Suppose yourself for a moment, gentle reader, in this unpleasant predicament: put into it, not by any perjury of your own (you would not forgive me the supposition,) but by the united perjury of two wicked adversaries. Invited by these lawyers, your enemy, being stronger than yourself, and catching you alone, may beat you to a jelly; or (if it be more agreeable to him,) first having tied you to the bed-post, he violates your wife and your daughter, they also being perjurers or quakers,* in your presence. Of himself, the privilege thus given him could hardly have occurred to him. But he has overheard a lawyer brag of it as a good joke; or he he has found it in a book by accident.

Examine the case in another point of view, and now with the eye of an exclusionist: you may see another reason for taking the exception (if an exception there must be) elsewhere rather than here. Let it be in his own cause, and, therefore, in his own behalf: here is interest in the case, and to a certainty: whereas, if the cause be one to which he is not a party, and in which he has no natural interest, perjury on his part, if unbribed, will be without a motive; nor can he be bribed without a person able and willing and bold enough to offer him a bribe; three conditions which do not meet in one person every day.

There remains yet one part of the case, which, on different occasions, has been brought to view already. When the most suspicious of all evidence (so far as improbity is concerned) is received, in what shape is it received? In the shape of vivâ voce evidence, the deponent present in court to be examined and cross-examined by the adversary and the judge? Oh, no: this is exactly the shape in which the door was just now expressly shut against it. Oh, no: the dish must be served up in the shape of affidavit evidence, dressed at leisure, with an attorney to dish it up: a licensed accomplice to help cook the poison, and no taster to detect it.

Thus, in regard to the exclusions grounded on improbity, stands the matter upon the face of the books. But such is the infelicity of the subject, such the felicity of the profession, there is no trusting even to the freshest of their books. The apparent uncertainty of the law is such as we have already had a glimpse of, and such as we shall see in a fuller and fuller light in proportion as we advance: but the real and latent uncertainty of the law (I speak always of the common law) is still deeper and more profound. Ever unfathomable, essentially fluctuating: such is the ocean, such is the common law.

Inquiring among professional friends the degree of observance given to the rules excluding witnesses on the ground of improbity, I learn that judges may, in this point of view, be divided into three classes. Some, treating the objection as an objection to credit, not to competency, admit the witness, suffer his evidence to go to the jury, presenting the objection at the same time, warning the jury of the force of it, and when thus warned, leaving them to themselves. If, after this warning, the jury convict a man of whose guilt the judge from whom they have thus received the warning, is not satisfied,—thence follows, as a matter of course, a recommendation to mercy,—whence follows, as a matter also of course, a pardon. Another class suffer the testimony to be given, but if they do not find it corroborated by other testimony, direct the jury to acquit, paying no regard to it. A third class, again, if they understand that no other evidence is to follow, refuse, in spite of all authorities, so much as to suffer the jury to hear the evidence.†

Of what individuals these several classes are respectively composed, I do not know, and should be very sorry to be obliged to know. The object in all these cases is the preservation of the innocent. To this object there are these three roads, all equally effectual:—the first, a rational course, and conformable to law, meaning always the published, the known, the knowable dispensations of the law;—the second, arbitrary, assuming, self-willed, trespassing upon the regard due to the free agency of juries, unconformable to the spirit of the constitution, but containing nothing absolutely repugnant to any peremptory injunction of the law;—the third, equally and completely repugnant to reason and to law.

Under the jurisprudence of ancient Rome, the great and powerful judge called the prætor used, at the commencement of his prætorship, to hang up for the information of the suitors, in a conspicuous situation in some public place, a table of the rules by which he proposed to govern himself during his year.

Of the three different courses taken, as above mentioned, in relation to the same business, by so many classes of English judges, I, having no other interest in being informed than what I possess in the general capacity of an English subject, should be unwilling to know which, on any given occasion, has been or would be taken by any individual judge. But, in the capacity of a prosecutor in any of the cases in question, were it ever my misfortune to find myself standing in that capacity, it would certainly be highly material to me to procure (if it were possible) two tables: the one a standing one, containing the names of the twelve judges, each being accompanied with the designation of that one of the above three courses which it is his practice to pursue; the other an occasional one, containing the names of the judges, who, upon the trial of the cause in which I was in a way to be prosecutor, would be destined to preside. If the judge I saw reason to expect, was a judge who would suffer a jury to hear, and to act as if they heard, I would under his auspices take my chance for bringing the truth to light: but if he were either a judge who would not suffer a jury to hear, or one who would not suffer them to act as if they heard, most certainly I would have nothing to do that I could avoid doing, in the way of prosecution, under the direction of such a judge.

It would be equally incumbent on me to decline bearing a part in any such sham trial, whether I consulted the rules of personal prudence, or those of social duty—whether I regarded the effect of such a prosecution in the way of burthen on my own finances and my own ease, or, in the way of example, on the conduct of those to whom, in the capacity of persons exposed to the temptation of offending, information of the practice in this behalf might be of importance.

The example is bad, when a man supposed to be guilty is seen to remain unprosecuted. But the example is much worse, when a man supposed to be guilty is seen to be prosecuted, but prosecuted under circumstances in which it may be and is known beforehand that prosecution will be to no purpose, saving always the impoverishment and harassment of the prosecutor; impoverished and harassed already by the injury—impoverished and harassed commonly still more by the fallaciously offered and really withholden remedy. The escape for want of prosecution, is the simple escape of a guilty man from punishment: the escape taking place after prosecution, and effected by such means, is an example of the triumph of him who is guilty, and of the punishment of him who is innocent and injured.

§ 3.

Improbity in other shapes an improper ground of exclusion.

If from that modification of improbity which consists in a breach of veracity on the very sort of occasion in question (viz. judicial testimony,) no sufficient ground for exclusion can be deduced,—much less (it is evident) can it, from improbity manifesting itself in any other shape. English jurisprudence furnishes in this part of the field a rich harvest of learning, which whoever has an appetite for absurdity may go and feast upon, at the table spread for him by Hawkins, Bacon, and Comyns, with their everclashing authorities.

Looking into the offence for this purpose bring a process to which thought, howsoever misapplied, is necessary, and thought being attended with trouble, sages have substituted a more expeditions operation, which is, the looking at the punishment. Treasons, felonies (unclergyable and clergyable,* ) præmunires, misdemeanours: by these denominations are expressed all the distinctions they know of, in point of malignity (or say improbity) between one group of offences and another; and, except the obscure and mostly incongruous intimation given of the nature of the offence in the case of treason, and the undistinguishable intimation of misconduct or delinquency in general conveyed by the term misdemeanour, none of these terms afford any the slightest intimation of any intrinsic quality in the offence itself, nor of anything else belonging to it, but the accidental circumstance of the punishment that has been attached to it.†

A system of arrangement is good or bad, instructive or fallacious, according as the objects ranked under the same division possess more or fewer properties in common. In the system in question, the objects not possessing any essential properties in common,—any inference grounded on the place occupied by the object in the system, must in the case of this system as of any other, be preportionably inconclusive. To make a complete perambulation of the whole chaos, would, for this or any other purpose, require volumes upon volumes. A sample or two must serve instead of a complete list.

To judge of offences by punishments, the most detestable of mankind should be found in the class of traitors. Treason being the sort of act most offensive to those whose dependent creatures judges used to be, treason is, in the eye of jurisprudential law, the very pinnacle of improbity. In the character of a witness, a traitor, of course, supposing him to remain with his bowels in his body, never could be heard. Reason, unless the case were particularized, would never know what to think of it: of what sort of disposition (if of any) to regard it as evidentiary—whether of vice or of virtue. Enemies must be resisted—traitors must be punished: but to a traitor it may happen to be among the most profligate or the most virtuous of mankind. Occasions there are in abundance, on which traitor or no traitor depends upon bad success or good success. Take a monarchy, and suppose the title to the crown (the legitimacy, for instance, of the heir apparent of the last monarch) to be in dispute. Half the people believe the legitimacy: the other half disbelieve it. Each half are traitors, to the other half. Which are so by law? It depends upon the course taken by a few balls of different sizes. But will it be said that the course taken by the balls affords any indication of the side on which the greatest proportion of veracity is to be found? In cases like these (not to speak of concealed traitors,) every non-juror at least is at his heart a traitor. But is he the less trustworthy? On the contrary, who does not see that he is by so much the more so? His adherence to veracity, his insensibility to the force of sinister interest, is established by the most incontestable evidence—by evidence such as no adherent to the successful side has it in his power to give.

During the warfare between the two roses,—that is, from generation to generation,—the good people of England, good and bad together, were alternately loyalists and traitors : consequently, if the men of law were fit to be believed, in all that time scarce a man in the country that was fit to be believed.*

By a numerous and respectable description of men, probably by a great majority of those to whom the history of their country is an object of interest, Russel and Sydney (Russel at any rate) seem to be regarded as patterns of heroic virtue: of virtue, not simply in respect of the general tenor of their lives, but in respect of the very act which brought the life of each of them to its close. Both patterns (let us say) of heroic virtue: yet, if in the eye of the law (for that is the question) these men were not traitors, what men ever were or can be?

Next below treasons, stand unclergyable felonies. Among these, take homicide in the way of duelling.

Two men quarrel; one of them calls the other a liar. So highly does he prize the reputation of veracity, that, rather than suffer a stain to remain upon it, he determines to risk his life, challenges his adversary to fight, and kills him. Jurisprudence, in its sapience, knowing no difference between homicide by consent, by which no other human being is put in fear—and homicide in pursuit of a scheme of highway robbery, of nocturnal housebreaking, by which every man who has a life is put in fear of it,—has made the one and the other murder, and consequently felony. The man prefers death to the imputation of a lie,—and the inference of the law is, that he cannot open his mouth but lies will issue from it.

Such are the inconsistencies which are unavoidable in the application of any rule which takes improbity for a ground of exclusion. Take it for a ground of suspicion only, all these absurdities are avoided. On each occasion every man is judged of by his own works. A man is not pronounced unworthy of credit, merely because other men, who have committed other acts accidentally called by the same name as some act of his, are supposed unworthy of credit. The suspicion is founded, not on the class of the offence (which, as offences are classed, shows nothing;) nor yet on the genus of the offence, an indication still pregnant with delusion: nor, more implicitly, so much as on the species; but rather on the individual offence: and thus each shade of delinquency raises up that shade, and that shade alone, of suspicion, that belongs to it.

If the legislator had his choice of witnesses upon every occasion, and witnesses of all sorts in his pocket, he would do well not to produce any, upon any occasion, but such over whose conduct the tutelary motives exercised despotic sway: in a word, to admit no other men for witnesses than perfect men. But perfect men do not exist: and if the earth were covered with them, delinquents would not send for them to be witnesses to their delinquency. In such a state of things, then, the legislator has this option, and no other: to open the door to all witnesses, or to give licence to all crimes. For all purposes, he must take men as he finds them: and, for the purpose of testimony, he must take such men as happen to have been in the way to see, or to say they have been in the way to see, what, had it depended upon the actors, would have been seen by nobody.

A very short argument might be sufficient to satisfy us of the insufficiency of all arguments drawn from the topic of criminality in the lump. The evidence of an accomplice is admitted, whatever be the crime; at least (which is abundantly sufficient for the purpose) in crimes which are regarded, as being of the deepest dye, and, as affording the strongest ground for exclusion in the instance of a witness whose criminality, whether of the same or a different species, is of less recent date.*

Supposing criminality in general to be a just ground of incapacitation in this behalf, on the part of a witness produced in favour of a criminal prosecution,—the criminality manifested by a participation in that very crime would afford a juster ground than can be found on the part of a criminal not in the same predicament.

Superior certainty, and superior freshness, are circumstances that concur in giving to the ground of exclusion, in this case, a degree of strength which is scarcely to be found in any other.

First, in regard to certainty: certainty of past depravity. In other cases, the evidence of criminality (the only evidence admitted by the law) is the record of conviction. But the conviction may have been erroneous: the man may have been innocent, though the jury thought him guilty. Here he says himself he was guilty; and unfolds all the circumstances of his guilt: circumstances without which it would not have been in his power to display the guilt of the accomplice against whom his evidence is produced.

Next, in regard to freshness: for on freshness depends the presumption of present depravity, without which, past is nothing to the purpose: of present depravity, as rendered probable by past. In other cases, the criminality may, it is true, be recent; but what is equally true, is, that it may be any number of years anterior to the time when the testimony is given. Long before that period, the crime may have been for ever buried in oblivion, and the character regenerated. Here, the taint on the evidence is as fresh as the crime, by the prosecution of which the evidence is called forth.†

In a double view, so far as the danger of deception is concerned, this single example ought to be regarded as conclusive: in the character of a proof from experience; and in the character of an argumentum ad hominem.

In the character of an appeal to experience.

The temptation at the highest pitch: the individual exposed to it, an individual belonging to that class in whom the proneness to yield to temptation is at the highest pitch: the force of the mendacity-prompting motives at the highest pitch; the force of the mendacity-restraining motives at the lowest pitch: and yet mendacity itself unfrequent in comparison with veracity, and, at any rate (what is the only thing ultimately material) deception, and consequent misdecision, extremely rare.‡

In the character of an argumentum ad hominem, its operation seems to be still more forcible.

When, in case of deception and consequent misdecision, the mischief is so great—when, in a word, it is at the highest possible pitch, amounting, perhaps, to the murder of an innocent man,—you scruple not to give admission to the evidence. Every day you admit it—you all admit it; by none of you has so much as a suspicion been entertained, or at least been professed to be entertained, that the admission of it is, upon the whole, unfavourable to the interests of truth and justice. Yet, where the temptation amounts to nothing—where the capacity of opposing to the temptation (if there were any) that resistance which probity requires, remains unimpeached—and where the mischief, in case of deception and consequent misdecision, is next to nothing,—even there, if but the shadow of an interest flit before your eyes, you scruple not to shut an inexorable door against the evidence.

We have seen, in some measure, what is to be thought of the incapacitations grounded upon interest. We now know what to think of the incapacitations founded on criminality. Add interest and criminality together, and observe what follows. Interest incapacitates—criminality incapacitates: interest and criminality, each in the highest degree, do not incapacitate. In grammarians’ logic, two negatives make an affirmative: in lawyers’ logic, two affirmatives make a negative. In vulgar arithmetic, one and one make two: in lawyer’s arithmetic, one and one make not two, but nothing.

Oh! but lawyers’ interest is pecuniary interest: and this interest, which, being added to criminality, removes the incapacitation, is only the mere interest of self-preservation in regard to life, and nothing more. Well then, add pecuniary interest: add lawyers’ only interest to other people’s strongest interest: put three grounds of incapacitarion together: instead of two, the three put together still make nothing, as before. A pardon, together with a reward, is offered to one conspirator for the discovery of another: neither reward nor pardon given, unless the man informed against is convicted. This is every day’s practice. Such is the invitation: and the doors of justice are thrown open to the scum of the earth thus collected. After this, split hairs, and raise quibbles about a farthing’s-worth of interest in one shape, and a farthing’s-worth in another.*

§ 4.

If exclusion on the ground of convicted mendacity were justifiable. English lawyers and judges should be excluded.

First, as to the professional lawyer—the lawyer in full practice. I speak not of attorneys, who, when it happens to them to lie, lie rather in deportment than in language, in deeds rather than in words: or, if in written words, in words prepared for them by the client’s lips. The indiscriminate defence of right and wrong, by what is it kept up, but by the indiscriminate advancement of truth and falsehood?

What the perjurer has done once, and perhaps but once, the advocate is doing in every day’s practice. Occasion, motive, everything the same, except the punishment and the ceremony: the kiss given to the book in one case—not given to it in the other.

The perjurer makes a lie, the advocate circulates it: the perjurer gives words to it, the advocate effect. To what amounts the difference? To the same as between the part borne by one man and that borne by another in a plan of forgery.

The lawyer indeed has his licence to plead, his licence under the seal of the moral sanction: the perjurer has no such licence. Unquestionably the licence makes a difference: contempt and power sit not on the same head.

One difference requires to be marked. The licence granted to the advocate confines itself to the case where it is in that character that he acts: where it is to the use of others that he lies. As truly as the courtier said, non omnibus dormio, the advocate may say, non omnibus mentior: for (the fee, and the reputation of impressive and successful lying, excepted,) if he lies to his own use, he goes beyond his licence.

But when the habit, thus in ceaseless exercise, has been matured into a second nature, is it so natural that the line thus faintly marked out should never be crossed? Is it not more natural that, as public wrongs have been known to mix with private, the concerns of others should, to this purpose, now and then mix themselves with a man’s own?

Concessum est oratoribus aliquid mentiri in historiis. To the orator who laid down the rule, was it an unfrequent occurrence to see him affording the example?

To a butcher, it may happen to be a man of humanity: he has a licence for shedding blood, a licence sealed with the same seal as that under which the advocate acts in the utterance of falsehoods. The licence extends to quadrupeds of all sorts; it does not extend to bipeds, or at least to bipeds without feathers. Yet, when human life is at stake, a butcher is never put upon a jury.*

It seems scarcely in the nature of things, that, in point of testimonial trustworthiness the testimony of a professional advocate should, in any country, or under any system, be, in the eye of reason, altogether upon a level with that of a man of an equally cultivated mind in another station, taken at random. But whatever untrustworthiness may be found attached to the character on European ground, by far the greatest part of it will be found referable to the technical system; and whatever ulterior degree of untrustworthiness may be found attached to it on English ground, will be found referable to the peculiar degree of malignity to which the endemial disease of that system has risen in England.

Under the natural system (were it ever restored)—under the most perfect system imaginable,—the profession of the advocate never could cease to be necessary, how much less soever might be the demand for the exercise of it. But, under the natural system, the advocate is only the assistant, the bottle-holder, of the suitor; under the technical system, the champion, the substitute.

Under the natural system, the suitor being essentially present—present, so long and as often as any matter of fact, coming in any way under his cognizance, is in question,—there stands somebody, there stands the suitor in his proper person, responsible for the truth of everything that is said in his behalf: the person so responsible is always present in the face of the bystanders and the judge: in vain would the advocate, the echo, the hearsay witness, pretend to believe what the principal, then standing before him, dares not venture to assert, or at any rate to persist in.

When the client is out of the way, not only of punishment but of shame, the advocate (no longer the hottle-holder but the substituted soaring on his own wings, believes, and proclaims aloud, whatever is most convenient to be believed. His gospel is in his Land; in his brief he beholds his sufficient warrant: from beginning to end, the paper may be composed of lies, of lies replete with infamy, but the weight of it falls not on his shoulders.

In the writings of lawyers, a topic which, of course, cannot be an unfrequent one, is the respectability of the professional character: the transcendant excellence of the functions in the exercise of which it manifests itself: whatever in talent is most brilliant, whatever in learning is most profound, joined together and acting in the service of justice. What a maker of sticks has never yet been known to forget, is, that to every stick there are two ends: what a maker of this sort of panegyric takes care never to remember, is, that to every cause there are two sides, and that only one of these can possibly be in the right.

Another case which presents itself as a subject of examination, in regard to exclusion of testimony on the score of appropriate improbity, is that of English judgeship.

In speaking of this case of habitual mendacity, nothing farther will be requisite than the marking those circumstances which concur in distinguishing it from the last preceding case.

Meantime, lest the condition of being habitually stained with this degrading vice should be regarded as a necessary one, indelibly attached to one of the most exalted functions in government, it may be proper to premise, that England is the country on which the imputation will be found to rest, if not to the exclusion of any other, at least in a degree of most prodigious pre-eminence.

Even to that other of the three united kingdoms which is contiguous to England, the contagion has not extended itself: though, on the other hand, it has crossed the sea, and involved the other kingdom, the laws of which have been drawn from an English source.

Even in England, the number of the persons thus regularly infected is so small, that were numbers the sole object, this head of preferable exclusion might seem to have scarcely a claim to notice. But when it is considered that the station here in question, limited as is the number of the occupants, is among the chief fountains from which the public morals are derived; and that in one of them in particular, sits a reverend personage, who among his official titles numbers that of castos morum of the nation, guardian of the public morals; the paucity of the occupants will hardly be adduced as a sufficient reason why, in this point of view, any more than in any other, the station should be passed by as an object undeserving of regard.

Had Clodius in his day paid a visit to this island, for the purpose of delivering a set of lectures on the virtue of conjugal fidelity; or had Messalina come over and purchased the site of Camden House, for the purpose of erecting upon the premises a boarding-school upon an imperial scale, for the education of young ladies; the individuality of the two characters would scarcely have passed as a reason why their conduct in their respective situations should be passed by, as an object too inconsiderable for notice.

Between the mendacity of the advocate and that of the judge (the scene is now confined to England,) there is this difference. Among advocates, taking any given individual, the exemplification of the quality is rather matter of suspicion than proof. That a large portion of his time is thus employed, is clear beyond dispute; but it would not always be easy to say exactly what particular portion or portions—to fix upon the particular cause, or hour, or minute. In the instance of the judge, this difficulty has no place. In this shape, as well as in so many others, the fruits of his industry are upon record: his name is subjoined to them, and in his own hand: they are consigned to that sort of instrument which (as if to give the better effect and virtue to this its quality) is proclaimed aloud as the standard of truth, that mass of authoritative and privileged asseveration, which no other asseveration (come it from what quarter, or from whatsoever number of quarters, it may) is ever to be suffered to contradict: a mass, the matter of which, being constantly (in the greater part of it) false, is on that account to be as constantly taken for true.

To be at a loss for specimens of the exercise of this talent, would be as if an astronomer were to be at a loss to find stars in the milky way. In the selection—since for illustration’s sake a specimen must be produced—in the selection lies the only difficulty. To give them all, would be to transcribe no small part of the collection of those fruits of professional industry, which, in professional language, are known by the name of books of practice. To transcribe them, on the present occasion, would be to imitate the labour of the ingenious attorney, who, on the occasion of the entry of names and baptisms on a blank leaf, took occasion to enrich the budget of evidence with an office copy of the Bible.

In the Mariage de Figaro, the travelled valet, speaking of England, represents cursing and swearing as the matter constituting the basis of conversation. Though matter of that sort is more abundant than a lover either of good sense or piety would wish, yet, taken in the quantity there assigned, the proposition cannot but be considered as tinctured with that exaggeration, which, being natural to the occasion, shows itself for what it is.

If, instead of that vice, he had fixed upon the vice of lying; and, instead of common conversation, upon that sort of regulated discourse in the delivery of which a man might be expected to be more particularly on his guard, and had his observation been, that in England lying constitutes the basis of judicial procedure; his remark would have contained nothing beyond the simple and altogether indisputable truth.

Supported by irresistible power, effrontery has hardened itself to such a pitch, as to affect to regard mendacity under the palliative name of fiction: mendacity in the mouth of judges—mendacity, the source of fees, as conducive, as even necessary, to justice.

Such, in that exalted station, being the practice, the habitual practice,—what, in point of character and reputation, is the consequence? Just what it might naturally be expected to be: that in the scale of trustworthiness, the assertion of an English judge, writing in that character—the assertion of the guardian of English morals, stands exactly at the lowest degree conceivable. Not only is this state of things generally notorious, but it is built upon as such by the acts of the legislature, and this so truly and effectually that it is upon the known untrustworthiness—upon the infamy, of this exalted character, that the law depends for the efficacy of its arrangements.

Among the other devices employed by the authors of the jurisprudential system for the attainment of their ends, was that of wording their notices in such manner as to convey no information, the consequence of which, actual as well as intended, was, that a man was punished and pillaged as for a contempt of the orders thus carefully kept from coming to his knowledge. The people of England having been under a course of pillage in this form for some centuries, the cries of the oppressed prevailed at length with the legislature to apply what the authors of the grievance (the persons by whose counsels the legislature, on occasions of this sort, governs itself of course, for want of being able of itself so much as to understand the language,) what the authors of the grievance presented in the character of a remedy. Instead of the sham notice, which till then had been the only notice ever delivered,—instead of this sham notice by itself, the instrument was in future to contain two notices. The one was and is the old sham notice, signed by the judge—the customary heap of lies—the official discourse of the judge, whose name, in his own handwriting, conveying the assurance of its verity, was inscribed on it. The other was and is a true notice—a notice that may be at least, and (the nature of the contents considered) commonly will be, a true one, signed by some attorney. The two notices being in point-blank contradiction to one another, on what does the efficacy of the true instrument, and of the law by which it was instituted, depend?

On what but this? viz. that the word of the attorney, who, unless by accident, has the advantage of not being known, shall be taken in preference to that of the judge, whom everybody knows, and who, as such, is so much better known than trusted, that he is regarded as unworthy of all credence.

The assertion thus delivered (it may perhaps be remarked) has not received the sanction of an oath. True: unless any such duty as that of veracity should be understood as comprehended in the oath of office. But what is no less true is, that the assertion is of that class, to which the reverend authors themselves ascribe a degree of trustworthiness beyond any which they will allow to an assertion from any other quarter, though backed by the sanction of an oath. Records, instruments coming authenticated from that exalted and thus commanding station,—records, of the verity of which the above specimen furnishes a correct idea, are sure to be believed: i. e. (though known for what they are) acted upon as if true. Depositions, assertions from all other quarters, though sanctioned upon oath, may be believed or not: they must take their chance:—but records are infallible.

Is it the occasion, and thence the effect,—is it the occasion, or the ceremony, that makes the political mischief, the moral turpitude? Surely not the ceremony, but the occasion. If the ceremony, then suppose a mass of testimony received without the ceremony, and an innocent man convicted and life destroyed upon that ground. In this is there no mischief? In this is there no turpitude?

On the other side, take two pieces of gold coin, two guineas, each of full weight, and, under the eye of an approving judge, to change the prisoner’s doom from death to transportation, let the two-and-forty-shillings’-worth of gold coin be valued by twelve jurymen, speaking upon their oaths, at nine-and-thirty shillings, and no more.* Look at this, which is every day’s practice, and then say whether the distinction between the occasion and the ceremony be to the conscience of an English judge either a subject of doubt, or a matter of indifference.

Thus strong is the objection in the case of the English judge: stronger than in the case of the advocate—itself a stronger case than that of the convicted perjurer.

Mendacity, it must not be forgotten, is the only shape in which improbity is here in question: extended to other shapes, the imputation would be unfounded, and, in respect of its unquestionable groundlessness, revolting.

The Lord High Chancellor, the Lord Chief-Justice,—you might be every day in his company, for any number of years, without being under any the smallest degree of apprehension on the score of your watch. Your table might be covered with plate, and not so much as a tea-spoon would be in any the smallest danger of finding its way from his hand into his pocket. In all such particulars, your assurance of probity on the part of the arbiter of the lives of unlicensed depredators might well be as entire, as, on the part of any such unlicensed depredator, your assurance of the opposite quality would.

But in regard to that particular modification of improbity which alone is here in question, the matter may be seen to stand upon a very different footing, not to say an opposite one.

It is to his celebrity and long-continued experience in the capacity of an advocate, that the Lord Chancellor or Lord Chief-Justice is indebted for his commanding situation in the character of a judge.

In the case of the unlicensed depredator, mendacity is but a casual practice, an accidentally-necessary resource. For the purpose of getting your watch, no lies are told by the man whose dexterity finds means in the crowd to extract it out of your fob. For the purpose of getting your spoons, no lies are told by the burglar, to whose ingenuity the window-shutter of your butler’s pantry has proved an insufficient obstacle. If, for converting these treasures into others more particularly adapted to his immediate use, it be necessary for the acquirer to have recourse to an ordinary and unconfederated dealer,—true it is, that in that case a story may eventually be to be told. But if, between the man of dexterity and the man of thrift, there be a regular established connexion, cemented by the necessary confidence, invention has no need to draw upon itself: and though, in the shape of depredation, improbity thus extends and doubles itself, in the shape of mendacity it finds no place.

Far different, not to say directly opposite, is the case as between the two practitioners, on the ground of mendacity. On this ground, what, on the part of the practitioner whose strength lies in his hands, was but a casualty, is, on the part of him whose strength lies in his brains and tongue, matter of regular, of constant, of necessary practice. Set the one and the other in the witness-box, the dignified practitioner will be the most careful not to hazard any false statement that would be easily open to detection; but as often as the nature of the case holds out security against detection, a natural consequence is, that, of the two, he shall be the more ready at the utterance of falsehood, as well as more adroit and successful in the management of it.

The field of psychological facts is a field which, in its whole extent, holds out to learned mendacity this encouraging and fostering security. Under his brush, like drapery under that of the painter, intentions, motives, disposition, character—everything of that sort, takes, on each occasion, the exact shape and hue which the occasion, and the purpose that arises out of it, requires. In equity, all facts of this class are made by the learned draughtsman; at common law, by the leading counsel. Whether of his own stores, or by adoption from the attorney, from the paper of instructions in one case, from the brief in the other, is matter of accident, and not worth thinking about.

In all these particulars, misrepresentation, whether on the wrong or on the right side, is matter of course. On the wrong side it is matter of duty, a duty the more imperious the more perilous the wrong; and punishment, in the shape of professional dishonour and forfeiture of practice, would be the consequence of neglect: if on the right side, embellishment in this style is, if not a duty, at least a merit,—and reward, in the shape of honour, awaits the skilful and successful organ.

In the production of these cases, strong as they are, let not the purpose for which they are adduced—let not the proposition contended for, be for a moment out of sight. Even in these strongest of all cases, that of the advocate anywhere, and that of the judge in England, the object is not to recommend, but to reprobate, the shutting the door against the evidence. Rightly you can never act, so long as, on the ground of untrustworthiness and consequent fear of deception, you shut the door of justice against any human testimony. But if you will not act rightly, act at least consistently: and to do so, you must shut the door in the first place against yourselves. Judico me cremari, was the decision of Judge Blackstone’s righteous Pope: take that case for your precedent, and say, Judico me excludi: the sacrifice will not be quite so great, the decision not less reasonable. Having done with yourselves, proceed upon your learned brethren, and their ungraduated fellow-practisers the barristers of the present time, the apprentices of the heroic age. From them descend to solicitors, and to attorneys, if any you can find, who, flying from public odium, have not taken shelter under the former, the less hackneyed name.

When the testimony of these venders of falsehood for daily bread is shut out, it will be time enough to think about shutting the door against the ill-fated Jonas, whose misfortune it was to be detected in acting, for once in his life, without a licence, that part which he sees performed every day with such universal applause, and on the highest theatres, under the sanction of a licence.

But, above all, forget not that most deeply-learned person, whom I was in danger to have forgotten, the special pleader: who, having never opened his mouth, has never spoken a he; but who, from his first entrance into the profession, unto the present moment, whatever be the present moment, never knew what it was to set his hand to a single paper without a lie in it.

Let us not mistake. If the presumption of untrustworthiness do, upon any such grounds as above, attach itself with justice upon the English judge, it certainly is not upon the station; as little is it upon the nation. It is upon the system, the technical system, under which he acts: the system that causes him to be false—habitually and constantly false; and not only to be false, but to be the cause, and the constantly-acting cause, of falsehood in other men. The technical system is a hot-house of mendacity: the soil richer, far richer, in England, than under any other clime. The advocate, picked out in due time from the bed of special pleaders or chancery draughtsmen, is trained up in this stove the judge is the advocate run to seed.

It extends not, this disastrous presumption,—it extends not, in anything like equal force, to the judge, nor even to the advocate, of any other country: it crosses not the Tweed.* Under Roman law, if, under the name of fiction, falsehood be now and then served up to the table of the judge, it is only, as it were, by way of desert, and in the character of a casual delicacy.* It is on English benches that it is gorged and disgorged, with an appetite that will bear the epithet of canine.

If it extends not, in any comparatively considerable force, to the judge, or even the advocate, in any other country, much less does it, even in England, to the country magistrate, the justice of the peace: much less does it, in any even the slightest degree, to those unlearned judges. Never have they fed on any such fould diet: they have never shaken hands with Den or Fen, with Doe or Roe: no connexion have they with sham pledges, with sham bail, with sham anything, fees flow not into their hands from any such poluted source.

To the general conclusion: be of this set of cases the strength what it may, it can never stand against the force of the general answer. The more manifest the mendacity, the more secure it is against the danger of producing deception; that consequence, without which, mendacity, howsoever it be in intention, is altogether innocent in point of effect. By those from whom it issues, and who act upon it as if it were true, the mendacity of it is still more fully understood than it can be by anybody else.

After this conclusive answer, others that carry upon the face of them more or less truth, have, for the present purpose, little claim to notice. A distinction may require to be taken between the judge and the man; and as in the Court of Exchequer the same robes include two sorts of judges—a common-law judge, and an equity-law judge, whose vocation consists in stopping and thwarting the proceedings of each other,—so in any and every court it may happen to the same envelope to contain two sorts of human beings—a veracious individual, and a perpetually-lying judge.

The remark is certainly not without foundation in experience. Not that the observation can be altogether free from regret, that between the two opposite characters the contact should be so constant and so close; that one head should encircle two such faces. The claim to competency is beyond dispute; but when credibility comes to be considered, proverbs in abundance, regarded commonly as the emanation of wisdom, the offspring experience, obtrude themselves, and become troublesome: nor is it pleasant to consider, that the weakness of the union, in the character of an objection to what is called credibility, depends upon the truth of the proposition, that communications thus evil and thus close do not corrupt good manners.

No: it is not for the purpose of advocating, but of reprobating exclusion of testimony, that these remarkable cases are spread upon the carpet: it is not for the purpose of proving that these ought to be excluded, but that none ought to be excluded: not only not the felon or the perjurer, nor even the ever-mendacious advocate of any country, but-not even the constant arbiter, utterer, bespeaker, rewarder, and compeller of mendacity, the English judge.

No: let them not shut the door of the witness-box against any human creature: but if nothing will satisfy them but that somebody must be excluded—if the demon of exclusion must have victims,—let judges and advocates be the first.

CHAPTER V.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF RELIGIOUS OPINIONS.

§ 1.

Atheism an improper ground of exclusion.

In the case of improbity, the seat of the disease is in the will; in the case of atheism, the seat of the disease (such let us call it) is in the understanding. Between the two branches of the mental frame, the communication is indeed most intimate: true; but they must not be confounded. Here the presumption is still more remote and slighter than before. Could the absence of all sinister interest be ascertained, improbity in the case in which the presumption it affords is the strongest,—improbity in the shape of perjury,—would not afford any the slightest presumption of mendacity in any given instance. Perjury is improbity. But atheism is not improbity: that it affords a presumption of improbity, is the utmost that can be said of it by anybody.

From the four sources above mentioned under the name of sanctions, the ideas of pain and pleasure are found operating on each man, with more or less force, in the character of standing tutelary motives: the physical sanction, the moral or popular, the political or legal, and the religious. The atheist is one on whom the religious sanction has no hold. In respect of the extent of the cases in which they respectively operate, the physical is confined within natural limits: the political, by limits more or less casual and scanty: the moral and the religious, though hitherto variable, are altogether unconfined, and capable of covering the whole field. But human conduct depends not merely on the number and nature of the moral forces to the action of which, on the occasion in question, the patient is exposed, but also on the sensibility of his mental frame with reference to each such force. To restrain this man, all four shall be unavailing: to restrain that man, a single one of them shall be sufficient.

It has been seen in Book 1, how much may be said in behalf of the opinion that, in the character of a security for good conduct in the present life, the religious sanction is incomparably less efficient than either the moral or the political. If this opinion be true, it follows, that any presumption of improbity which can be afforded by atheism is very slight.

The question, however, whether in any degree, and in what degree, the absence of religion, or this or that erroneous opinion in regard to it, affords a presumption of improbity, may happily be added to the list of the questions the investigation of which is unnecessary to the present purpose. Why so? Answer: Because the fact of a man’s entertaining any such opinion, is that sort of psychological fact, of the existence of which it is impossible for the judge to obtain sufficient evidence, on any other supposition than that of a degree of veracity, not only exclusive of the supposition of a more than ordinary propensity to mendacity, but in itself so preeminent, as to entitle the testimony of the witness to a more than ordinary share of confidence.

To cause a man for this purpose to be justly regarded as an atheist, the evidence must come either from an extraneous source, or from discourses formerly committed to writing by himself, or from his own lips.

1. Coming from an extraneous source, the persuasive force of the evidence finds two objections to encounter it. In the first place, it is at best but hearsay evidence: on such or such an occasion he declared himself an atheist. In the next place, the time of the fact, supposing it true, is a time past and gone. For aught that appears, the situation he is in in this respect may be parallel to that of a man who at one time had an interest in the cause—but an interest which, before any occasion led him to speak of the fact, was extinct. Once that error was entertained by him: admitted: but in the existence of a God is there anything so perfectly incredible, that when once a man has entertained the contrary persuasion, it is impossible for him ever to cease to entertain it?

2. Let the evidence be derived from former writings of his own. In this case, the first of the two above-mentioned causes of inconclusiveness has no existence; but the second remains; and with the same degree of force as in the former case.

3. Next, and lastly, let the evidence, whichsoever way it turns, come from his own lips. Being about to give his testimony, the first question put to him is, Are you an atheist? Answer, No, or Yes.

First, let it be No. If there be no extraneous evidence to the contrary, the objection is disposed of. But suppose extraneous evidence to the contrary: viz. the hearsay evidence above spoken of. Primâ facie, and in general, hearsay evidence is superseded, and turned into superfluous, equivalent to irrevelant, by the immediate testimony of the person whose supposed extra-judicial discourse is reported by it. But, upon occasion, for infirmation, or even for confirmation, of the immediate and judicial testimony of the supposed extra-judicial discourser, it may still have its use. Comes then the extraneous witness to the proposed witness’s character, and says of him,—On such a day I heard him declare himself an atheist. But be this statement true or false, by it the declaration of the supposed atheist, the declaration whereby he says, I am not an atheist, is not contradicted. Then, when he declared himself at, atheist, he was an atheist: now that he says. I am not an atheist, he is not so. If, indeed he says,—No: on the occasion of which the witness speaks, I did not declare myself an atheist,—then, indeed, contradiction exists; then it is for the judge to make his choice, and say to himself, which of them he will believe. Not that the choice is worth making; for the fact thus to be determined, is the state of the mind of the supposed atheist at that former time: whereas, the fact on which the alleged cause of the exclusion rests, is the state of his mind at the time when called upon to give evidence. If a written document is produced, as above, the contradiction is more conclusive than in the other case; unless the meaning put upon the document, or its genuineness, or its exemption (i. e. the exemption of the act of writing it) from force or fraud, be contested and rendered dubious.

Next, let the answer be. Yes, I am an atheist,* Then, indeed, the man must be an atheist; at any rate he must be taken for an atheist. But shall this answer be regarded as a piece of evidence warranting the exclusion? No, surely; and for this reason. The answer is either false or true. If false, the supposed cause of the exclusion fails in point of fact:—he is not an atheist; he cannot, therefore, with propriety, be excluded on the ground of atheism. If the answer be true, the cause of exclusion fails on another ground: the presumption of mendacity, the presumption grounded on the atheism, is proved to be erroneous.

What is known to every man, cannot be unknown to him;—viz. in the first place, the general odium to which this declaration is likely to expose him: in the next place, to what a degree it cannot but diminish the degree of credence likely to be given to his evidence; i. e. counteract what cannot but be his own purposes, if his evidence be purposely false. On the other hand, if he says, No, I am not an atheist,—the avoidance of that infamy, the preservation of his evidence from that discredit, is certain: mendacity would find the field quite clear; disproof would be impossible. What, then, to the present purpose, is the effect of such a declaration? To show that from the three other sanctions, one or all of them, his will (such is his relative sensibility) experiences that degree of influence, which, on the minds of so large a proportion of mankind, all four together are so frequently insufficient to produce.

Compare this case with the above-mentioned vulgar notion about interest. By that prejudice, men in general are presumed ready to give mendacious testimony by the slightest particle of interest. Here is an interest,—and that an interest corresponding to the moral sanction—an interest corresponding to the fear of shame,—urging him, and with great force, to speak falsely on this occasion, by saying that he is not an atheist, when he is. Urged by a detachment of that force (viz. the force of the moral sanction) to deviate from the path of truth; yet, such is the power of that sanction over his will, there exists still in his mind the main body of that force (for by the supposition all the other three sanctions are out of the question,) acting upon him with such effect as to keep his discourse steady, and preserve him from straying into that sinister path towards which it is thus impelled.

This is no place for the discussion of opinions on the subject of religion; but one general observation belongs strictly to the present purpose. Were an atheist a worse monster than he has ever been supposed to be—bent upon doing mischief in all possible ways, on all possible occasions, and by all possible means, false testimony among the rest,—a rule excluding testimony on the score of atheism would afford no security against the mischief to be apprehended from that source: for, to get rid of the exclusion, he would have no more to do than to put himself to the expense of a falsehood, of which the detection is impossible. On the other hand, the exclusion operates, to a considerable extent, as a safeguard to all criminals, atheists or not, who, when called upon to bear testimony against one another, are willing to make profession of atheism.

Under the exclusions founded on criminality, a man has a licence to commit crimes, but he will not seek it for the purpose: it would be too expensive: he must pay for it, either with his liberty (not to speak of other punishment) or with his life. Under those founded on religion, he may seek it for the purpose: he may take out the licence, and take it out for almost nothing. A knot of any sort of criminals may conspire, and insure to one another impunity, so far as depends on the evidence of each other.

An atheist is a bad witness; but how to know him from another? It must be from his own account of himself, if from anything; for atheism is not written on a man’s forehead. Which, then, is the true atheist?—the man who says he is not an atheist, and is one? or the man who says he is an atheist, and is not so? This pretended atheist (it should seem) must be considered as the true one, for every practical purpose. Those who speak of atheists as lying under the disabilities in question, must, if they mean anything, mean such persons, and all such persons, as exhibit the only marks of atheism which the nature of the case can by any possibility afford. If this be true, here is a receipt, and that an infallible one, whereby any man that pleases may render his testimony unreceivable. The conspirators in one of the assassination plots against Henry the Fourth of France, or his predecessor (I forget which,) made use of the sacrament as an instrument for binding one another to mutual fidelity.* Had they brooded over their plots under the shadow of the English common law, they might have found in atheism, or pretended atheism, a security of rather a different nature, it must be confessed, but applicable to the same use, and of rather superior efficacy. A man might have taken ever so many sacraments, and be never the worse witness: but one good declaration of atheism, made in proper form and in proper company, will be enough to make him as bad as can be desired. When a man has been received to serve the king, if he would serve with safety, he must produce a certificate of orthodoxy, as demonstrated by taking the sacrament according to the forms of the English church.† When a man proposes to join in murdering the king, if he would do the business in safety as against his associates, he must make them furnish him with a certificate of their atheism.

Speculation, quoth somebody. No; cases of evidence excluded on account of atheism have every now and then presented themselves in practice.*

The same strain of imbecility which gave rise to the examination on the voire dire, has, after suffering the question to be put—“Are you an atheist?”—and receiving an answer regarded as amounting to an affirmative, shut the door against the witness; and, in revenge for his veracity, administered injustice instead of justice to the party unfortunate enough to stand in need of this evidence.

Besides the offence against the dictates of reason and justice, the question thus put was repugnant to the known rules of actually existing law. In virtue of a statute still in force,† a declaration to any such effect subjects the individual to penalties of high severity: and the rule, that no man shall, in return to any question, give an answer that can have the effect of subjecting him to any sort of penalty, is the firmly-established fruit of that mischievous superstition, the war upon which will form the business of the ensuing Part.

Question and answer together, the disclosure was such as could not but have given no slight wound to the feelings of a great majority, if not the whole, of the surrounding audience. But the wound had for its authors, not the honest and intrepid witness, but the crew of learned sophists: the attorney who put the insinuation into the brief—the advocate who formed a question out of it,—but, above all, the judge, who suffered such a question to be put.

§ 2.

Cacotheism, or bad religion, an improper ground of exclusion.

How impossible it is from atheism to deduce a proper ground for exclusion, we have just been seeing. From cacotheism, though no good ground, yet a less bad ground might be made, if there were any man whose God commanded him to commit perjury; meaning always by perjury (what it were so much to be wished were always meant by it,) mendacity by party or witness on a judicial occasion—oath or no oath. The gods of the Hindoos, if the translations we have of their scriptures are in this instance to be depended upon, license such mendacity in certain cases.‡

On this, as on every other part of the ground, common law is up in arms against common sense and common honesty, and, by its inconsistencies, against itself.

The God of the Jews, and, by a prodigious and modern stretch of jurisprudential liberality, the God of the Mahometans,∥ and the god of the Hindoos,§ are tolerated as not countenancing perjury.¶ The God who binds men to veracity by broken saucers,* the God of the Chinese,—if they have a god, though it has so often been said they have none,—even he is tolerated: the God of the catholics and the God of quakers is not tolerated. In intendment of law, he either commands perjury, or is, at best, indifferent about it.

No; this account is not yet a correct one: were this the law, it would be reasonable, in comparison with what, when correctly stated, it will be seen to be.

I. Catholics.

Catholics excluded! those Christians, in comparison with whom, those who are not Catholics compose a small minority, Church of England men a still smaller! Catholics, than whom, till as it were of yesterday, there were no other Christians! Evidence of catholics excluded! Are we then commanded by law to believe that there is neither society, nor laws, nor judicature, nor evidence, nor veracity, among the greater part of Christians?†

Catholics excluded! Oh no—not all catholics: no, only those who have exhibited a degree of attachment to the duties of religion; such a degree as, among protestants, would be as rare as martyrdom is rare. A catholic, as such, is not excluded; he must be a popish recusant.‡ An oath is tendered to him—an oath such that the catholic who takes it renounces his religion, denies that he is a catholic: it was devised, and avowedly, for this very purpose. Thus, then, under the spirit of this policy, a distribution is made of catholics into two classes—perjurers and non-perjurers: to all who will perjure themselves, the door of the witness-box is thrown open; against all who will not perjure themselves, it is shut.

It is with catholics, as we have seen it to be with atheists. It is not to atheists that the law is opposed: it is only to such atheists as will not perjure themselves.∥

II. Quakers.

What is known to everybody, is, that as far as anything can be true that is predicated of men in whole classes, the quakers are the most veracious of mankind. Whatever regard men at large are wont to pay to that which they say upon oath, that, and more, is paid by this knot of friends to what is said by them (on the like serious occasions at least) without oath.

By the legislature itself, to say the least, they are not regarded as mendacious. Laws have been made for the express purpose of giving indulgence to their weakness, and admitting them to give evidence without the ceremony. Laws made: yes; but here comes jurisprudence with its distinctions, its perplexities, and its inconsistencies. In with him, on civil ground: out with him, on criminal.* Occasion there has been to say, over and over again, that, as to all criminal cases, where the punishment is not beyond pecuniary, the distinction is nominal and frivolous: since, for the self-same offence or supposed offence—for the self-same cause, a man may be proceded against (at the option of whoever chooses to proceed against him) in the one way or the other. Accordingly, to the extent, at any rate, of this coincidence, the admitting law cannot do right, but it must do wrong. It cannot do right in admitting the quaker in a civil cause, without doing wrong in excluding him when the suit chosen has been one of the criminal sort.

But suppose the punishment ultra-pecuniary: suppose man’s life at stake: suppose a quaker,—that is, a man calling himself a quaker,—wicked enough to attempt murder with his tongue: has not the law suffering enough at its command to punish him with? In non-quakers, law exempts not from punishment murder committed with this instrument. The punishment which, in this case, is too much for a non-quaker,—might not some of it be reserved for the quaker, and serve as a succedaneum to the ceremony to which he is thus recalcitrant?

Conceive a class of men, amounting to many thousands, on whose persons, male or female, and in whose presence, so there be no other witnesses, all other men are left free—have a licence from the law, to commit (so they be but capital) all imaginable crimes,—rape, robbery, burglary, mayhem, incendiarism, and so forth. As to property of persons absent, destroyed or stolen in their presence, this, with so many other trifles of the like nature, is scarce worth adding. I remember the case of a man who, in pursuit of a scheme of plunder, set a house on fire, and who, because nobody had seen what he was about but a quaker, was turned loose again to burn other houses.

Here again comes the same sort of inconsistency as was observed in the case of the atheist and the catholic. Obeying the dictates of conscience, a man remains incredible: violating them, he becomes credible.

III. Persons excommunicated.

You omit paying your attorney’s bill: if the bill is a just one, and you able to pay it, this is wrong of you; but if unable, your lot (of which immediately) will be just the same. If the business done, was done in a court called a common-law court, your attorney is called an attorney, and the case belongs not to this purpose. If in a court called an ecclesiastical court, the attorney is called a proctor: you are imprisoned, and so forth;—but first you must be excommunicated. For this crime, or for any other, no sooner are you excommunicated, than a discovery is made, that, being “excluded out of the church,” you are “not under the influence of any religion:”† you are a sort of atheist. To your own weak reason it appears to you that you believe; but the law, which is the perfection of reason, knows that you do not. Being omniscient, and infallible, and so forth, she knows that, were you to be heard, it would be impossible you should speak true: therefore, you too are posted off upon the excluded list, along with atheists, catholics, and quakers.

Forbidden by his religion, a quaker will not pay tithes: sued in the spiritual court, he is excommunicated. As a witness, he is now incompetent twice over: once by being a quaker, and again by being excommunicate. Why by being excommunicate? Answer, per Mr Justice Buller: “Because he is not under the influence of any religion.”‡

Of the exclusionary system, a part of the mischief (it has been already observed) not to speak of other parts, is, that it involves in it a licence to persons unknown, in unknown numbers, to commit injustice in all imaginable shapes: to commit all imaginable crimes.

To the legislator, having always an interest more or less unmixed in the well-being of the people—being always more or less governed by that interest,—to the real and legitimate legislator, acting as such, it could hardly have happened, unless by sinister counsel, to give in to a system so obviously hostile to the well-being of the people.

By the judge, acting under the fee-collecting system, and under the sinister impulse given to him by that system,—by the judge wielding in disguise the sceptre of legislation, public interest would, at best, and where not exposed to an eye of positive hostility, be regarded, of course, with indifference. When lawyer’s profit (the only serious object of his care) had mischief (in whatever shape—expense, delay, vexation, misdecision, failure of justice) for its immediate cause, or (what comes to the same thing) its inseparable, though but collateral accompaniment,—mischief would be the fruit of his choice: and hence it was by the exclusion of the presence, and thence of the testimony, of the parties, that the foundation of the exclusionary system, that grand support of the fee-collecting system, was laid. When the above-described connexion between lawyer’s profit and non-lawyer’s misery either did not exist, or did not present itself to his view,—then it was that, every now and then, it would happen to him to produce mischief and misery, not purposely, not with malice prepense, but only, as the clown in Dryden’s legend whistled, for want of thought.

In the present case, it would appear, that so wide a deviation from the line of utility and justice was mainly occasioned by the sentiment of antipathy.

Although punishment admits of no other justificative reason, than a probable prospect of the production of greater good—of an increase in the aggregate mass of happiness, of a decrease in the aggregate mass of misery; yet such has rarely been the final cause of punishment in the mind of the legislator: especially in those times of primeval barbarism, in which all systems of legislation have had their rise. Diminution of suffering (viz. on the part of the community injured by the offence) may have been, in any given instance, the result and fruit of punishment; but, even where this is the case, not diminution, but production, of suffering—viz. on the part of the offender,—has but too often, and perhaps in the origin of society, most commonly, been at least the predominant, if not the sole, object and end in view. By the view of such or such a mode of conduct, the feeling of antipathy has been excited in the breast of the man in power: to gratify it, he sets himself to work to plague and torment the individual by whom that unpleasant sensation has been excited: by the spectacle of the suffering so produced, the appetite receives its gratification. At the same time, the same spectacle, exhibiting itself to the eyes or the imagination of those who, were it not for the punishment, might have engaged in the practice of acts of the same sort as the act thus punished, restrains them, to a certain degree, from the thus forbidden practice, and causes acts of that description to be less frequent than they would be. It the mode of conduct whereby the antipathy has been produced be of the number of those, the consequences of which have more of evil in them than of good, the restraint thus produced is beneficial to the community. It is not the less beneficial to the community, for not having been present, in idea, to the mind of the man in power: but neither, on the other hand, from its having been the eventual result of the use he has thus been making of his power, does it follow, by any means, that the idea of it was previously present to his mind. If it had been uniformly present to his mind—if the benefit to the community had been the ultimate object of his exertions—if the suffering of the obnoxious person had, instead of being the ultimate object, been no more than the means, the mediatory object,—the quantum of suffering would have been measured out according to the object—would have been suited to it in quality, would have been adjusted to it in quantity, and would not anywhere have overshot the mark: not a particle of suffering would have been produced, of which the effects had not previously been fully comprehended and accurately ascertained. Of any such accuracy, however—of any such calm and exclusively-appropriated attention to the aggregate interest of the community, and the ends of public justice, the very idea is new—even at the present advanced period in the career of perfectibility and civilization. Much more must the practice have been generally unknown, in those rude times in which the art of legislation was in its cradle—in those times of infantine ignorance, which are still suffered to rule the destiny of riper age.—In this temper of mind, among men whose minds were engrossed by these narrow views, no wonder that any vehicle or mass of mischief, which promised to add anything to the plague, should be snatched up and hurled at the head of the obnoxious offender, with little knowledge of, and as little solicitude about, the contents: laid hold of, and eagerly employed, not only without staying to investigate the consequences, present and future, near and remote, certain and contingent, with reference to the obnoxious individual,—but with as little attention to any effects of which it might be productive on the feelings of other individuals, connected by accident only with the individual by whose offence the passion had been excited—individuals whose suffering, had it been included in the prospect, was not of a nature to contribute anything to the gratification aimed at.

Antipathy, when its exertions are regulated by utility and justice, is the handmaid of justice. Antipathy towards the injurer is the natural, and in a human bosom in some degree even the inseparable consequence of sympathy for the injured.

Unhappily for mankind, the antipathy thus directed has not been most energetic or most busy when the object to which it pointed was the most noxious. They who have diminished the sum of human enjoyment—they who have augmented the sum of human suffering—these find antipathy, sooner or later, not averse to repose: they whose opinions are not our opinions—they whose pleasures are not our pleasures—they whom we oppress, they whom we exclude from their share of common benefits,—these are they who find antipathy implacable. Wherever the praise of virtue is to be earned without the expense of self-denial, the most vicious will never be found the most backward in the chase.

Against the perjurer, his kinsman the forgerer, and the motley fellowship of felons, without staying to distinguish one from another, the door was shut, as it were in a pet, and “for want of thought.” The precedent once made, the opportunity of stigmatizing and plaguing the traitor and the atheist, with his kinsmen the catholic, the quaker, and the excommunicate, was not to be lost. Always remembered, that the more unforeseen exclusions there are, and the more unforeseen exceptions to exclusions, the more arguments; and the more arguments, the more fees.

The outlandish men, the Mahometan, the Hindoo, and the Chinese, against whom the door, if ever shut, has been opened, are almost as far from us as the atheist, and much farther than the catholic or the quaker. But the distance of the outlandish man is his protection. Blind from birth to the lights by which we are illuminated, he is not a rebel to the examples or the arguments, logical or golden, by which we are governed. Nuisances, it is true, all pagans are; but happily, in their case (unless now and then by accident,) the nuisance is at a distance from the nose.*

CHAPTER VI.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF MLNTAL IMBECILITY, AND PARTICULARLY OF INFANCY AND SUPERANNUATION.

The last ground of exclusion on the score of deception, to which our consideration is called, is imbecility.

From whichever source it be derived, the propriety of regarding imbecility, upon occasion, as a cause of suspicion, is obvious and indisputable. From whichever source derived, the taking it for a cause of exclusion will be found equally indefensible.

Mental or corporeal, imbecility—a term of relation—admits of degrees ad infinitum. Imbecility, in a variety of respects, is the lot of all created beings. Supposing that, in any degree, imbecility were capable of constituting a proper ground of exclusion, by what mark could that degree be distinguished from any other? From the impossibility of finding an answer to that question, results the impropriety of taking it for a ground of exclusion in any case. In the absence of any universal mark of such a degree of imbecility, to form such opinion as the nature of the case admits of, there is but one rational course, which is, the examining of the proposed witness: which only rational course is the very course that, upon the supposition of the exclusion, is not suffered to be taken.

Infancy, superannuation, insanity: whatever be the modification—connected or unconnected with the circumstance of age—the answer will be still the same.

Between infancy and maturity, it is necessary, for some purposes, to draw a line at a venture; and that line (notwithstanding the wide difference in respect of intellectual strength between individual and individual at the same age)—that line a common one, fixed for every individual at the same place. But to the present purpose, no such line is necessary: no such line can afford any security against deception: no such line can fail of producing, if not deception itself, yet (what is worse) misdecision.

In the case of superannuation, the impracticability of drawing any line for that purpose, without the most palpable absurdity, is plainly obvious. Imbecility, and to such a degree as to make delivery of testimony not merely ineligible but impossible, is the effect of infancy at a certain age. Imbecility, to this purpose, or indeed almost any other, considered as the result of superannuation, is but an accidental concomitant, and indeed a rare one, at any period of old age.

In the case of insanity, a fixed point of time for this purpose is not incapable of being proposed, but incapable of being employed to any good effect: when (for example) a man, having by competent authority been deemed incapable of retaining in his own hands the management of his own affairs, without preponderant prejudice to himself and others, has by competent authority been declared in that state, and placed under the authority of a guardian for that purpose.

Here indeed would be a point of time fixed; but no line could be drawn through it, applicable with any advantage to this purpose. From any degree of comparative unfitness in respect of providence, and the various other faculties necessary to the management of the variety of affairs that occur in human life, no tolerably-assured inference can be drawn respecting the capacity or incapacity of giving a correct and intelligible statement of a single fact which came within the cognizance of a man’s senses. Before the arrangement made, a man may have been completely incapable perhaps of obtaining perception of the fact—perhaps of remembering and giving a correct and intelligible statement of such perception, though obtained:—after the arrangement, competent or incompetent to the general management of his own affairs, to the purpose of delivering testimony it may happen to him to be as completely competent as another man. These observations are brought to view for the purpose of nipping in the hud, if possible, future contingent exclusions on this ground.

Of the three sources and modifications of intellectual imbecility, infancy is the only one that has been taken for exclusion by English law. Accordingly, of the three words mentioned in this view, infancy is the only one, of which, for this purpose, any mention is to be found in the books. For the same reason, imbecility, the word here employed for the purpose of including the three cases, and bringing to view the ground they stand upon, is in these treasures of technical science equally unknown.

In a direct way, infancy cannot at present be employed as a bar to admission, howsoever immature the age. For, with the approbation of the twelve judges, in the case of an infant of no more than seven years old,* and in a case of an infant under seven years old† (how much under is not said,) this evidence was received.

Unfortunately, to the admission given in this case, two conditions precedent have been annexed.

One is, that the child shall have taken an oath; i. e. gone through the same ceremony by which testimonial relation is preceded in other instances. To this operation, had it been performed, there could have been no objection. The misfortune was, that in a certain instance it was omitted: and the consequence was, that, a rape having been committed “on the body of an infant under seven years of age,” the man by whom, if by anybody, the mischief was done, was sent out to commit other rapes.

“The prisoner” (according to the learned reporter‡ ) was convicted; but the judgment was respited, on a doubt [not having any relation to the fact, but] “created by a marginal note to a case in Dyer’s Reports; for these notes having been made by Lord Chief Justice Treby, are considered” (continues the book) “of great weight and authority: and it was submitted” (by Mr. Justice Buller, anno 1779) “to the twelve judges,” whether evidence, under any circumstances whatever, could be legally admitted in a criminal prosecution, except upon oath? Answer: No, not in any case.

2. The other condition was and is, that the “infant appear, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath”—“of the danger and unpiety of falsehood.”∥ For a more particular description of the knowledge and the danger above spoken of in general terms, the following exemplification promises to serve as well as any other that could be substituted to it, since neither the questions nor the answers are fixed by law. Extract from the newspaper called the Times, dated 17th Sept. 1803. Proceedings at the “Old Bailey, Friday, Sept. 16, 1803. Mary Ann Carney, a daughter of the prisoner, only twelve years of age, was examined relative to the idea she entertained of an oath, and the consequences that would result from telling a falsehood. The answer which she returned was exceedingly correct: viz. that if she told a falsehood when on oath, she should be put in the pillory when in this world, and go to the devil when in the next.”

To the putting of a question to the effect above described, I know of no conclusive objection; but, to the deducing, either from silence or from any answer whatsoever which may have been extracted by such a question, a decision pronouncing the exclusion of the testimony, objections occur that seem perfectly unanswerable.

It is requiring of the child, as a condition precedent to her being suffered to give a sort of relation which a child of any age that can speak may be perfectly competent to give, a sort of account which a child of that immature age (to go no farther) seems altogether incompetent to give. The testimony to the relevant point is to a fact of the most simple nature—a fact which, supposing it to have happened, must have presented itself to the senses of the patient, and made a very deep impression on them. The subject-matter of the testimony to the irrelevant point, is a fact of the most complex and abstruse nature: a fact that has been matter of dispute among the maturest, the strongest, and acutest minds.

The relevant question—the question to which (if to any) the child would have been competent to give an answer—was, what she had seen and felt? The irrelevant question prefixed, and (in one event) substituted to it, included a string of questions: what on this most abstruse subject she had been taught, what she had comprehended, and what she had retained? The evidence—the only evidence that, in answer to such an examination, could have been given by such a child, was, not the opinion of the child, but an article of hearsay evidence: the account given by the child of the instruction it had received.*

Observe the effect of the criterion so unhappily employed. The proper question, whether the child has been thus injured, is put aside; and, instead of it, another question is put in, viz. whether the child can say its catechism.

Of the substitution thus made, or preference thus given, of a question foreign to the merits—to the only question belonging to the merits, the following present themselves as the natural consequences:—

1. In some cases, excluding good and true evidence; thus excluding justice, and giving impunity to the guilty. If the child has not been tutored in the requisite manner, and that with effect on the part of the child, as well as diligence on the part of the instructors, the child may have been abused and mangled, the malefactor goes unpunished, laughing at the sages from whose zeal, so little according to knowledge, he has obtained a licence.

2. Placing the fate of the cause (in a capital cause, the life of the prisoner) in a state of complete dependence on the will and pleasure of the person or persons under whose power the child is all the time; its parents, for example. Is it their wish that the cause should be deprived of the benefit of the child’s evidence? The catechism is omitted to be administered, or a sort of anti-catechism administered in the room of it, according to the nature of the case. By a false answer, had the testimony been admitted, the child might have been subjected to punishment as for perjury, and the parents to legal punishment, or at least to disrepute, as for subornation of perjury. On the occasion of the preliminary examination, neither from silence nor from any answer whatsoever—from any such answer as in this view they may have presented, need any such consequences be apprehended. Thus it is, that in this way the full benefit of perjury, or subornation of perjury, may be obtained, without any of the risk: the full benefit of perjury, under the protection, and as a fruit of the wisdom, of English jurisprudence.

3. Holding out to false and mendacious accusation a receipt for fabricating evidence, and, by a false gloss, bestowing on it an appearance of trustworthiness. The supposition that the individual whose fate depends upon his knowledge of the law, should on any occasion be in possession of any such knowledge, may be apt to appear ridiculous; but it is what by accident does now and then happen. The mother of such a child forms a scheme for ruining a male enemy. She employs the requisite time and labour in impressing upon the mind of the child two lessons: the one, a false story of the supposed injury; the other, an appropriate catechism, such as may afford the requisite satisfaction to the pious anxiety of the judge. Delighted with the advances made by the sweet child in the science of theology, to entertain a doubt of its veracity would be impiety in the eyes of jurisprudential science.

The same artificial mark of trustworthiness, which, on the occasion just spoken of, gave such complete satisfaction in the instance of a child of twelve years old, might, in many instances, be imprinted with equal facility and success upon the testimony of a child not above half, or even a third of that age. It might even be imprinted upon the faculties, mental and vocal, of a naturally-accomplished and well-instructed parrot or magpie—with this difference, that, in the case of the unfeathered witness, the questions would require to be in that form to which an advocate is confined when examining a witness of his own side; whereas, in the case of the feathered witness, they would require to be in that more commodious form, with the use of which he is indulged in the examination of a witness on the opposite side.

4. The wording of the test being moreover unfixed, as is the case with everything that has no more determinate foundation to rest upon than that of jurisprudential law,—the testimony of the most trustworthy witness is liable to be sunk by any failure of coincidence between the persuasion of the judge and the persuasion of the child (that is, of its instructors) on a subject thus obscure and delicate. Not to mention extreme cases, such as those of atheists and other unbelievers,—Christians are not wanting, to whose conceptions the devil presents himself in the character of an allegorical and purely ideal personage. If, in the case of the child whose answers on this head gave such complete satisfaction at the Old Bailey, the expectation of an eventual visit to the president of the infernal regions was regarded as an article of faith indispensable to the present purpose,—an answer disaffirming the existence of that tremendous personage, might have been fatal to the merits of the cause. On this supposition, a boy of twelve years, whose good fortune it had been in other respects to have been under the tuition of Dr. Priestley, or any other equally zealous defender of the Christian faith, might, for want of the necessary protection depending upon his own evidence, find himself exposed to the most afflictive personal injuries—or, at the expense of real mendacity, find himself obliged to purchase the factitious reputation of the opposite virtue.

Learned judges have seldom time to introduce any very searching probe into the bowels of the evidence: give them a good round answer, satisfaction enters, and ejects diffidence. “I shall be put into the pillory in this world; I shall go to the devil in the next.”—“Exceedingly correct,” is the observation of the reporter; “exceedingly correct” (unless the reporter were incorrect,)—“exceedingly correct,” or something to that or the like purport or effect, must have been the observation of the judge.

In the individual cases in question, the parties on both sides being low people (for of the labours of counsel on their behalf nothing is said,)—the answer, being thus pointed or rounded, and adapted to the taste of learned judges, passed without further scrutiny. His reverend lordship was not less indulgent to the young theologian, than a friendly examiner at Oxford or Cambridge would have been to a candidate for a degree in divinity, or a friendly chaplain at Lambeth to a candidate for holy orders. But suppose this preliminary examination conducted by the tongue of a well-fee’d advocate: alas! what would all the science of the tender student avail against the sharpness of so penetrating a probe! Conceive a Garrow opposed to the tender novice: how little would it cost him to drag to light either some jeofail in her creed, or the confession of a fact which, in the case of her making a tolerable primâ facie answer, could never be otherwise than true; viz. that she had been tutored for the purpose.

By considerations of the above, or some other nature (that is to say, by some of them,) an impression appears to have been made on reverend minds. Mr. Justice Rooke,* in the case of an unsatisfactory response, adjourned the cause, and committed the young witness to the charge of a clergyman, for religious instruction, in the mean time. This succedaneum to exclusion obtained the approbation of the other judges.

To the impressing upon the memory the lesson to be given by the reverend divine, six months’ interval between circuit and circuit was, if diligently employed, extremely well adapted: it would have been equally well adapted to the rendering the fair and tender reporter more and more perfect in any fabricated story of an injury, supposing no injury to have been sustained. But, on the opposite supposition, for the keeping alive in the infant memory a correct recollection of the transaction in its true and proper colours, the disservice that could not but be done by this long interval presents itself as equally indisputable. In this point of view, an expedient, of the sincerity of which, in its design, it is impossible to entertain a doubt, presents itself as being, in its tendency, extremely well adapted to every purpose of falsehood and injustice, and equally ill adapted to every purpose of truth and justice.

The case is unhappily of no unfrequent recurrence. Justice is wanted for it, if for any case. It is with this as with most other points of procedure: the difficulties it is encumbered with, are chiefly, if not wholly, the work of artifice and science. In itself it presents little difficulty. If mendacity were apprehended, who would not rather have to encounter a raw and juvenile prevaricator, than a reflecting veteran, with length of experience and maturity of age?

Where evidence is concerned, the duty of learned judges (such has ever hitherto been the case) forbade them to do justice. Their duty is to preserve existing rules: and existing rules were made that justice might not be done. In a case of this sort—where evidence of this description was a chief ingredient in the composition of the mass of evidence,—if it were lawful to discover truth, truth might be discovered with at least as much facility and certainty as in the case of ordinary evidence. The fact, if there be anything serious in it, is established by real evidence—by the physical and physiological marks of violence. Here we see one of the perpetually-recurring cases, in which all doubt might so easily be removed, one way or the other, by the examination of the defendant. The examination of the child being taken out of the hearing of its parents, on the one hand, of the defendant on the other—that of the defendant out of the hearing of both,—the light of truth could scarce fail to issue from the collision of the evidence.

Where immaturity of age does not exist in any such degree as to deprive the child of the several degrees of the respective faculties concerned (perception, judgment, memory, and expression) that are respectively necessary to bestow on the testimony the indispensable degree of correctness,—the want of the faculties necessary to the execution of a successful plan of mendacity, gives to such immature testimony, in a very material respect, the advantage of the maturest evidence.

In the immature and tender mind, if the influence of the moral and religious sanctions is apt to be weak, unsteady, and precarious, the mendacity-restraining influence of the physical sanction is stronger then than afterwards. Of memory, if deeply impressed and vigorous (as, in the sort of case in question, when taken fresh, it can hardly fail to be,) the expression is delivered without effort. Invention, under the perpetual condition of not being true, and yet appearing to be true, is the work of anxious and unremitting labour: the less the mind is exercised in the habit of reflection, the more apt will it be to sink under the trial.

By the power of the political sanction, concentrated in this case in all its plenitude in the hands of the domestic ruler, the will of the patient might be acted upon (it is true) with a mendacity-promoting force superior to any that may be expected to bear upon the patient in an adult state, in a state of comparative independence. In few adult minds is any other fear so strongly impressed, as the fear of the rod is, in general, capable of being impressed on the infant mind, by a severe and steady hand. But the disadvantage to which, in this case, the interests of truth and justice are subjected by the weakness of the volitional faculty, may be expected to be at least compensated for by the weakness of the intellectual faculty. The child strives to lie as well as it is able; but under the opposing force of cross-examination, it is unable to lie with effect.*

This much in regard to the case of infancy, which is (as already observed) the only case of imbecility which has been taken for a ground of exclusion by English law.

A case, however, presented itself not many years ago, in which a witness was rejected, not indeed on account of imbecility, but on the analogous ground of a supposed deficiency of appropriate knowledge.

Indictment of a woman for bigamy. Rex v. Eleanor Whetford, Guildford Assizes, Saturday, 9th August 1806, before the Lord Chief-Baron. (Times and Morning Chronicle, 11th August, both in the same words.) The first marriage, or supposed marriage, the parties both English, at Gretna Green, in Scotland. The celebration of the ceremony, in the manner usual in Gretna Green marriages, proved by the habitual operator, the vicepriest, a tobacconist. “David Laing, the Gretna Green parson, was first called. He stated that he performed the ceremony over the prisoner and her husband, in his way; that was, he read nothing, but he said something off the tongue, and authorized them to cohabit together.”

The Lord Chief-Baron said he would not admit this as a marriage. He asked him what he was. He replied, a tobacconist. His lordship observed, that a fellow or two, like the witness, did these sort of things; but both himself and the parties were liable to punishment.

Here, then, the fact was out of dispute: the guilt, in a moral view (to say nothing of the religous,) equally out of dispute: yet the judge acquits the prisoner—acquits her for evermore. Why? Because the state of the law, in respect of the validity of the marriage, was not, according to the conception of the learned judge, proved by a proper sort of person. “He would not receive the law of Scotland from a tobacconist.” What? nor yet from anybody else? That “both the fellow and the parties were liable to punishment,” so much his lordship knew. So much he knew, but exactly at that point stopped his lordship’s knowledge: and, what is more, exactly at that point commenced his determination not to know.

By a special verdict (not to mention other means in use,) he might have been informed: and by the same regular course, information of no slight importance to the whole country might have been gained.

In the case quoted above out of Gwillem,* a step altogether out of the regular course was taken. The evidence appeared not sufficient for conviction: what was the regular consequence? That the prisoner should be acquitted. Instead of that, the trial is put off to the next assizes: the defendant, guilty or innocent, in prison all the time. The proceeding was reported to the twelve judges: it was approved by them: it was therefore legal. Of these twelve reverend and learned persons, the Lord Chief-Baron himself was one. Had he thought of this when trying Eleanor Whetford, he would have learnt that there are middle courses between instant conviction and instant acquittal, if the learned judge thinks proper to employ them.

Delay, and of the same length, in the one case created, in the other case not created. When created, to what end? That an infant, under seven years of age, might, at the option of its parents, be instructed in theology, or in mendacity, or in both; while the memory of the supposed fact had, if real, all that time to fade in. When refused to be created, what were the circumstances under which the omission took place? When the point that might have been aimed at by the delay would have been accomplished by it with the utmost certainty—accomplished to the satisfaction, not only of the public at large, but of the learned judge himself: for (says he) “if you have any advocate of character, I will receive his testimony.” Was there, in the opinion of the learned judge, any such universal perversity at the Scotch bar, as that no advocate of character would be to be found, who, in relation to this point of Scottish law, would be to be prevailed upon to give his opinion (to the present purpose called his “testimony”) for his fee?

In the former case, the defendant [witness] was “a fellow that did those sort of things:” in the Guildford case, “the defendant was a young lady of handsome person and elegant manners; and her appearance at the bar excited considerable sympathy on her behalf in the spectators in court.”

Why mention this circumstance? I mention it, in addition to what has already been said on that subject in another place, that it may be seen so much the more distinctly, how easy it is, under the existing system, for a judge, in meting out justice, to have two measures: one for “fellows,”—another for “young ladies of handsome person and elegant manners:” and with what unhappy success, power, in reality arbitrary, has been covered up from observation by technical forms.

By the description of the person of the defendant in the Guildford case, the recollection of the classical reader is naturally sent back a few thousand years, to the incident which, in all subsequent causes, involved the proceedings of the court of Areopagus in habitual darkness. Of course, “the handsome person and elegant manners” of defendant Eleanor Whetford cannot possibly have exercised on the decision at Guildford any such influence as, in the case of Rex v. Phryne, proved so salutary to the defendant Phryne, and so fatal to justice, under Athenian judicature.† Concerning living judges, where anything of moral blame would attach, fiction herself is silent: but, as over departed ones, history, so, over future contingent ones, fiction at any rate, maintains an undisputed power. Availing myself, then, on the present occasion, of the right of fiction (for, abhorring it as exercised for any purpose of judicature, I have not the least objection to it for the purpose of argument,) the use I make of it is this: viz. that, under the law of England as it now stands (viz. in virtue of the features above described in it,) an English judge is at least as much at liberty as the judge of any other country, in pronouncing his decisions, to consult (not to speak of his pocket) his party, his humour, or his taste; and that, on condition of looking grave all the time, and pronouncing certain combinations of learned words, such as never can be wanting, he will find no more difficulty in acquitting beauties than in browbeating fellows. Not but that, so far as concerns the bare possession of the jus nocendi, truth might serve a man for predicating it of all alike, the living and the dead: it is only when the faculty is to be spoken of as being in actual exercise, that truth will decline to serve you, recommending it to you to employ fiction in her stead.

CHAPTER VII.

OF THE RESTORATIVES FOR COMPETENCY, DEVISED BY ENGLISH LAWYERS.

If, directed to no other end than the avoidance of deception, exclusion of evidence is bad altogether, bad to the whole of its extent,—whatever does anything towards the narrowing that extent, is so far good. Such being the effect of the restorative processes now to be considered, the application of them is so far good.

Here, then, it might seem at first sight that they ought to be dismissed; referring to the books for an account of them, instead of seeking to augment the load of this work by superfluous matter.

In two points of view, however, it may be not altogether useless to bestow upon them a further glance.

One is, the proof they afford (if any further proof can be wanting) of the impropriety of the rule, of which, in proportion to their extent, they destroy the efficacy. For in scarce any instance can the propriety of them be defended, but by arguments which prove or assume the impropriety of the rule. The other is, the poison they keep infusing into so commanding a portion of the public mind: the imbecility, or improbity, or both, which, on the part of the class of minds by which such conceits have been hatched, they presuppose, and tend to perpetuate. The laws about witchcraft* were in their day copious and tremendous sources of injustice: the opposite conceit about exorcism might so far have its use, if, in here and there an instance, it served to snatch a victim from the other prejudice, or in any other way to narrow the channel of injustice. But, forasmuch as this quack remedy served to confirm in men’s minds the opinion of the existence of the disease, and thence to give extent and permanency to an opinion which is in itself a most cruel disease, the effect of it was, perhaps, rather pernicious than beneficial upon the whole. What exorcism has been to sorcery and witchcraft, the restorative processes here about to be brought into view still are, in relation to the practice of treating evidence as if it were betwitched, and thence unfit for use.

In a system of law, absurdity, even although no immediate practical consequences are deduced from it, is never a matter of indifference; for whatever is found so exalted is venerated, and whatever is venerated is imitated.

To keep up in the composition of the legal system as large a proportion of absurdity as the stomach of the people can be made to endure, is among the deepest and the most favourite arts of lawyercraft: the security of the impostor is in proportion to the stupidity of the dupe. What renders the device the better adapted to its purpose is, that in the situation in which the lawyer acts, the most stupid and the most acute find equal facility in the practice of it. To adorn a spot with a palace, or strengthen it with a fortress, demands the skill of the architect or the engineer; but to encumber it with rubbish, is an operation to which the rudest hands are competent, especially if stationed on the heights above.

If what follows in this chapter should appear to resemble a sick man’s dream, rather than a work of reflection—should exhibit all the wildness of the Arabian Nights, without any of the beauty,—pardon, gentle reader: such as I have it, give I it unto thee. By me, it has not, any of it been made: all that I have done by it, is to present it in its native colours, after stripping it of the mask of sapience in which lawyercraft and bigotry had dressed it up.

The theory of trustworthiness, untrustworthiness, and restoration of trustworthiness—of health, disease, and mode of cure, so far as concerns the branch of the pathologico-psychological system here in question, has revealed itself here and there, in unconnected rudiments and fragments, to the sagacity of English lawyers. But, with shame be it spoken, never yet was it formed into a complete and consistent whole; never was this interesting branch of the science of evidence placed upon its proper basis, till the genius of Dr. Gall arose, and dazzled with its effulgence the eyes of astonished Europe. By the discoveries of that great man, we are at length enabled to understand what English lawyers have been at.

The faculty of delivering true testimony, depends (like all other faculties, moral and intellectual) upon a particular organ which is the seat of it: a portion or protuberance of the human cranium, which may be called the organ of trustworthiness. Near this precious organ (alas! too near it) are stationed the organs of interest and improbity, two of the principal organs of untrustworthiness. When the appropriate exciting matter correspondent to either of these respective organs applies itself to the system, the organ of untrustworthiness dilates, extends itself, and by its overbearing influence depresses the organ of trustworthiness: on the other hand, no sooner is the appropriate and correspondent instrument of restoration taken in hand, and applied secundum artem, than the tumidity antecedently superinduced upon the organ of untrustworthiness subsides, and the organ of trustworthiness (like a giant refreshed) rises and reassumes its native strength and stature.

Antecedently to this theory, by which all difficulties are now at length cleared up, the ingenuity of English sages had discovered (though by a method not wholly clear of the imputation of empiricism) divers remedies, which, acting upon the peccant and œdematous matter of the organs of untrustworthiness, operate upon the organ of trustworthiness in the character of restoratives.

The annals of psychology afford a case of an unhappy gentlemen, a Mr. Simon Browne, whose misfortune it was one day to feel his immortal soul perish within him.* For a species of mortification so fatal in its extent, the pharmacopœia of that day at least, seems not to have furnished any remedy. Had the disease been confined to that part of the soul which is the seat of veracity, the case would not have been thus desperate. For the restitution of the organ of trustworthiness, Westminister Hall affords no fewer than five specifics. Four of these are drawn from the mechanical school, and consist in the scientific application of four several instruments,† a burning iron, a small seal, a great seal, and a sort of lever called a sceptre. Of the fifth, the appropriate instrument is a tongue.

When the peccant matter acts in the shape of interest, the small seal will suffice: when it is of the nature of improbity, nothing less than the great seal will serve. The sceptre is applied to the same purposes as the great seal; but the scale it acts upon is larger, and indeed indefinite. By the great seal, improbity is discharged in a small stream, as it were by a hand-pump, and from only one bosom at a time: by the sceptre it is discharged as from a pump worked like that at the royal dockyard at Portsmouth, by a steam-engine. The number of bosoms capable of being thus cleared by it, and by a single stroke, is absolutely without limit.

1. Burning Iron.—In the character of a restorative of competency when impaired by improbity, the use of this instrument is confined to felonies, and among those to clergyable felonies. The iron, being made red hot, is applied to the hand: there must be a hissing and an outcry; but of each, any the least degree is sufficient: the outcry must be performed either by the prisoner or a lawful deputy: the hissing may be performed by a piece of bacon. In this case, the modus operandi of the remedy is so obvious, it is almost superfluous to mention it: the virus is burnt out by the actual cautery, exactly like the virus of a mad dog: the organ of untrustworthiness collapses, and its antagonist resumes its post.

Somehow or other, this remedy has of late years grown out of fashion. Instead of undergoing the operation of the cautery, the patient is sent to breathe the air of New South Wales. Whether the competency of such of the sojourners there on whose evidence others of them have been hanged, was previously restored or no, is not as yet known, the question not having been yet laid before the twelve judges. If yes, it must have been by the air of the place, known as it is to be in other respects remarkably salubrious.

The action of this restorative depends upon a variety of circumstances, some of them not immediately obvious to any but learned eyes. The difference (for example) between a felony clergyable [Editor: illegible word] [Editor: illegible word] to unclergyable,‡ turns upon a farthing [Editor: illegible word] if the value of the article stolen, being really 40s., should be set a farthing too high, the operation would fail. This is so well known, that in that case it never has been employed. But if it were really worth eight or ten guineas, and valued at as many shillings (a case as frequent as the other is unexampled,) such undervaluation would not impair the efficacy of the remedy.

The offence may even be precisely the same,—and yet, no burning, no veracity. Theft to the value of twelvepence farthing is grand larceny, and grand larceny is burnable: theft to no greater value than twelvepence is but petty larceny, and petty larceny is not burnable. The grand theft, consequently, when properly punished—that is, properly pardoned—leaves the veracity unimpaired: the petty theft (till a late statute came in aid) destroyed the veracity beyond recovery. Whether, for example, the veracity of a Londoner who had stolen a quartern loaf was recoverable, depended upon the assize of bread in London as settled for that week: for, stealing the self-same loaf under the self-same circumstances, would be the grand or the petty offence, according to the assize.∥

Neither is it to any such cause as the consummation of the punishment, and the change of character inferred from the operation of its reforming powers, that the return of veracity is to be ascribed. Other punishments may run their course; other punishments, whatever may be their duration, may have run their course, and the incredibility remain unextinguished. It is not time, but heat, that works the cure. Neither does whipping possess any such virtue as that of a restorative to veracity: for whipping is not fire. A conviction of an offence, for which whipping is the sentence, expels the veracity; but the execution of the sentence does not in this case bring it back again. To a plain understanding, the incredibility might as well be whipped out as burnt out, or the new credibility whipped in as burnt in: but this, it seems, is not law. There is no purifier like fire.*

Doubts have arisen how an application made to the hand should ever reach the heart. There are some people that will raise doubts out of anything: some have been seen sitting upon benches for years together, without doing anything but raising doubts.

Not many years ago, an ingenious physician of the mechanical school, used to extract “mercury out of the bones.” It was discharged in an uninterrupted stream, by an hydraulic machine of his own invention: for years together, the advertisement was repeated in the London papers. Sir Kenelm Dighy’s method of curing wounds was by applying a small quantity of his sympathetic powder to a few drops of the blood: the cure was performed “without hindrance of business, or knowledge of a bedfellow:” the patient might all the while be at any number of miles distant. This with him was every day’s practice. Vide the cases, as reported by the learned knight himself. These cases are much stronger than the case in question.

2. A Great Seal.—The sort of great seal to be employed on this occasion, is that which is employed for granting pardens. Supposing (what has sometimes happened) the ground of the pardon to have been the persuasion of the convict’s innocence, the restoration of the admissibility would, under the rule of consistency, be a necessary consequence: in every other case, whatever propriety there might be, consistency is out of the question. An experiment was once made by another sort of seal, called a privy seal: the experiment failed: the seal was not found to be big enough.†

The pardon, has it been a pardon upon the merits, or not upon the merits? What sort of a thing is a pardon upon the merits? by what mark is it to be distinguished from a pardon through favouritism, corruption, or caprice? What are the proper grounds for pardon?—What lawyer ever thought it worth his while to put to himself any such question?

All these questions, together with many another that might be added to them on the ground of reason, are, fortunately for the reader, rendered superfluous by two determinations on the ground of positive law. Unless in particular circumstances, exclusion on the score of infamy is not done away by a pardon on the merits; it is done away by a pardon which cannot by any possibility have been a pardon upon the merits: I mean a pardon granted by statute, at a particular time, to all malefactors without distinction. In this case the instrument is,

3. A Sceptre.—The power of this engine, as applied to other purposes, is no secret: in the character of a restorative of trustworthiness, it has never yet received the attention it deserves. In the case of the burning iron, the principle upon which that instrument acts, has, to render it clear, been declared to be the same as in the case of the statute pardon. The sceptre may, to this purpose, be considered as composed of an infinite number of burning irons, applicable at the same time, and (like Sir Kenelm’s sympathetic powder) at a distance, to an indefinite number of hands. Inquiring into each man’s conduct and character would give infinity of trouble. By so simple a contrivance as the application of a sort of rod, called a sceptre, to a roll of parchment, all this trouble is saved.

So far, everything is as it should be. But one consideration presents itself, suggesting melancholy reflections. The power of trustworthiness and untrustworthiness is vested in the same royal and sacred hands as the power of life and death. If it depend upon the pleasure of his Majesty to extirpate the virus of mendacity from any the most corrupted hearts, and in any number, so must it à fortiori in any less tainted hearts—à multo fortiori in all untainted ones. Observe, then, the malice—the habitual and hereditary malice, of the advisers of the crown for so many successive ages: at no greater expense than that of a piece of parchment, with the momentary use of a gilt stick, the expense of which is incurred already, they might banish for ever the spirit of mendacity from the lips of men: they might make all men trustworthy,—and they will not.

It has been exactly with these advisers of the Defender of the Faith and so forth, as with those of the Pope of Rome. Possessing the key, it depended upon him (the successor of St. Peter) to throw the gates of Paradise wide open, as those of Kensington Gardens on a Sunday! Yet did he keep them shut; opening only now and then a wicket, all for the paltry profit of selling tickets one by one.

4. To conclude, and crown this list of cabalistical and preternatural restoratives of trustworthiness when expelled by improbity,—we come to one, the operation of which, though more powerful than all of these put together, is altogether natural, and in “the ordinary course of things.” This (if in this case as in the others, the instrument must be specified) consists of the tongue of an attorney-general, employed in so familiar an operation as that of telling a lie. An assemblage of words, purporting to be a history of the prosecution, with the judgment in which it terminated, is written upon a piece of parchment: this parchment is called a record. Lies there are always in it, or it would not be what it is—errors scarce ever: in the case in question, at any rate, there are none. This will not hinder the attorney-general from coming into court and saying (if he is in the mood,) “I confess errors in the record:” so sure as he does so, so sure is he to be taken at his word.*

It has been already mentioned as among the intermediate ends of lawyer-craft, to corrupt the morals of the people; and among the means to that end, the planting and cherishing in the public breast the love of lies, by causing their salvation to be conveyed to them, on every favourable occasion, through that corrupt channel. On the present occasion, that sinister policy employs itself with peculiar advantage. Pursuing this line of policy, lawyers have heaped mischief upon mischief, that lies upon lies might be employed, and popularity upon popularity gained, by curing it. They have acted as a surgeon would do, who, having a mad dog tied up, should secretly cut or slip the knot, that the animal, on gaining its liberty, might send in to its master a supply of patients. In an endless variety of shapes, they have entailed ruin upon the innocent, and against this ruin they have left no remedy but in a lie: for the guilty, yes; but for the innocent there is no mercy, no safety, but in a lie. A Pandora’s box is opened upon the people; and such is the contrivance of the machine, that in nothing but a lie shall there be power to shut it. Under such a system, where is the bosom that can defend itself against the love of lies?

American savages have been proverbial for cruelty. The savage is mild and placable, compared with the English lawyer. The savage minces or broils his enemy, and is satisfied: the lawyer, at a whisper from above, gluts on the child unborn his unprovoked and mercenary cruelty. No mischief is so unassuageable as that which employs for its instrument a mass of corrupted language. Perillus’s bull, after it had broiled its author, was soon laid upon the shelf. Corruption of blood, the invention of a corrupted understanding, at the suggestion of a corrupted heart—that most barbarous of all abuses of words,—remains, if the lawyer have his will, remains to corrupt justice as well as language, to the end of time.

By a lie from the attorney-general, lawyer-craft’s last shift (such virtue is there in a lie) even this syphilis, so dexterously inoculated and so strictly entailed, receives its cure. The lie is spoken, and the patient is made whole: and not he alone, but in and through him, an endless line of patients.

In this same ultimum remedium, the suitor, to whose indispensable witness (guilty or not guilty) it has happened to have been convicted of perjury, beholds, in one case, his only hope.

I say in one case: for here comes in quibble upon quibble. Prosecute at common law, the inadmissibility is pardonable: prosecute upon the statute (for there is a statute against perjury,) it is not pardonable. How is it then? In this case, and this alone, has the sovereign been ill enough advised to tie up his own hands? Not he, indeed: but the man of law, the corrupter of blood and language, has tied them for him: the same sophist, who, by his quirks, ousted the innocent of pardon in that former case, follows up his blow, and ousts another set of innocent persons, of whom (as in the former case) this, and this alone, is known, viz. their innocence. Such is the doctrine, as it stands in the books. Not that any judge need be bound by it, any further than it is agreeable to him to be bound by it.

Cleansing our lips of the flash language—emerging from the regious of imposture—let us speak, if possible, in plain English. The power of the privy seal to remit punishment, and therewith to restore the faculty of giving testimony, having been questioned on the behalf of the chancellor, was disallowed. But the power of the chancellor, as we have seen, has its limits. Among the officers of the crown, to the power of the attorney-general, and to that alone, these limits oppose no bar. The privy seal (it may be said) being placeable and displaceable by the king, also the chancellor, also the attorney-general,—the distinction is but nominal: in every case it is the power of the king, acting only by different hands. To a second glance, however, there will be a very substantial difference. Each functionary, so long as he retains his office, retains at least a negative upon everything that is done in it. Restrained by any considerations whatever, let the attorney-general for the time being refuse to confess errors,—unless by some strange mishap there should be errors (and then perhaps not in all cases) the testimony would be inadmissible.

Meantime, in this account is assumed a proposition which not improbably may not be true,—viz. that, in virtue of a record, in which, at the suit of the king, conviction and judgment are registered without outlawry,—in the same way as outlawry is done away, in a case where the king is nominal plaintiff, by the king’s attorney-general, by so easy a process as the telling of a lie,—so, in case of conviction and judgment, may all other penal consequences, by the same lie. Perhaps this may not be true. It would be scarce worth walking across the room to see all that has been said about it. When once we steer a hair’s-breadth out of the sphere of every day’s practice, everything is matter of cross and pile. Jurisprudence is not among the subjects of human knowledge: to predicate certainty of it, or anything approaching to certainty—certainty to a discourse which has not so much as a certain word belonging to it, is an abuse of language. Where statute law is, and judges in due subjection, there, and there alone, is certainty.

What the lion has striven in vain to do, may sometimes be done by the mouse. It has already been stated, that, if the parchment is out of the way, the competency of the perjurer sets the gainsayer at defiance. Here, then, is a power of restoration, vested in any hand which, by fair or foul means, with or without risk, can gain a momentary command over the necessary parchment. I throw out this as a hint to the ingenuity of future functionaries, wheresoever stationed and howsoever denominated, who, with or without right, possess the physical faculty of taking in hand these mysterious parchments. Which would be the more astute contrivance,—smuggling the parchment for a few minutes, or confessing errors in it when there are none, and by a man who has never looked at it?

On other occasions, availing themselves of the power they possess de facto over these precious parchments, judges have made out of them for themselves the faculty of leaving a man in possession of a remedy, or depriving him of it, at pleasure. For example, in the case of a prosecution deemed malicious, they begin with so ordering matters, that, without possessing a copy of the record (the record in which the history of the prosecution is supposed to be given,) no man thus injured shall have it in his power to seek redress: this done, they allow him this copy, or withhold it from him at pleasure.

The expedient is so perfectly in the style of jurisprudential science, that, though an innocent man were to be saved by it from punishment, or the widow or the orphan from losing their subsistence for want of evidence, I should not despair of seeing it (if occasion served) employed in practice.

Were any other instance wanting, the practice called withdrawing the record might serve to show that these mysterious tabernacles of pretended truth are never employed in a manner so congenial to their destination, as when, like cups and balls, they are in some way or other made the instruments of trick and subterfuge. By an unlearned reader, a record of the court, being a history of the proceedings of the court, would naturally be supposed to be the work of an official hand, treasured up in official custody, and as little in danger of finding itself in any other than official hands, as the regalia at the jewel-office. Alas! by the mob of gazers whose station is at a distance from the curtain, how imperfect the conceptions formed of the mysteries acted behind it! It is the destiny of these jewels of the jurisprudential treasury to find a Colonel Blood in every plaintiff whose attorney sees reason to urge him to this daring enterprise. By so simple an operation as the filching (anglico-jargonicè, withdrawing) the record,* —the plaintiff, should it be his fortune to discover in time a momentary gap in his evidence, gives himself a right to a new trial: while, under exactly the same necessity, a defendant would be left to take his chance, trying the cause a second time upon affidavit evidence, to know whether it shall be tried a third time upon proper evidence.

Necessity, the mother of invention, will sometimes give birth to expedients, which, when once brought to light, are afterwards adopted by convenience. In the theatre of the ingenious Mr. Astley, the lips of the dramatis personæ being sealed by authority, scrolls upon great occasions, perform the office of sweet sounds. From this humble station might not a hint be taken for the use of a more exalted theatre? A statue (any one of the three kings might serve) attired in the costume of the great officer of the crown, his majesty’s attorney-general: and upon the pulling of a string, a scroll, as it drops, unrolls itself, with this epigraph: “His Majesty’s Attorney-general confesses errors in the record.”

Not that it is in the nature of things, that in any rank (much less in so high a rank) an English lawyer should feel himself less at his ease when saying the thing that is not, than when saying the thing that is: far be it from this pen to dip itself in any such injustice: in that point, there could not be any the smallest difference between the living person and the statue. But a case not unfrequently realized is, that—the habitual station of that high officer being, not in that high court in which, besides the three wooden kings, the “king himself” is, in the intendment of law, always present, but on the other side of the passage—the consequence is, that as often as errors are to be confessed or any other function to be performed by the person of that high officer in that high court, the passage is to be crossed. This is the inconvenience, in tender consideration whereof, the proposal is submitted: it being considered how perfectly light in the balance any quantity of mischief of which non-lawyers are the bearers is, when set against a grain of inconvenience pressing upon any such learned, especially any such eminently learned, pair of feet or shoulders: there needs no rhetoric to impress upon learned minds a due sense of the magnitude and importance of the occasion.

What if the learned gentleman in office for the time being were to come into court once for all, and confess errors in all records present and future; taking, pro hâc vice, lies for errors? Alas! that would never do: in the first place, it would be true; it would rip open the hen whose eggs are fees.

Such are the restoratives to competency under English law.

Is there any part of this theory of restoration capable of being regarded in a serious point of view? Let us try: let us take that which presents the gravest aspect. From the burning iron, the great seal, and the sceptre (it may be said,) no great matters are to be expected. Admitted,—of all these instruments,—admitted, they leave the man as they found him. But the little seal? this is quite another affair: this does not leave a man as it found him: this actually destroys his interest. In a will, a legacy of £50 is given to a man who otherwise would have had nothing: does not that give him an interest in supporting the will by his testimony? He agrees not to accept the legacy; and, in evidence of such agreement, commits it to writing (it is then called a release,) and puts his seal to the release. His right to the £50 is now clearly gone: and is not his interest, the supposed mendacity-promoting motive, gone with it?

No, indeed is it not: still the same imposture, only a little more thickly covered.

In the first place, let it never be out of mind, that, according to the principles of the exclusionists themselves (as far as their principles can be judged of by their practice,) the nostrum never can be of any manner of use; since, be the interest which a man is under ever so great, they admit him not withstanding: they admit him, as we have seen already, when he is an extraneous witness; they admit him over and over again, as will be seen further on, when he is a party.

In the next place, if the state of the mind be at all considered, it is not in the nature of the case, that from the operation (make the most of it) the state of the witness’s mind should experience any material variation.

He releases, he gives up his interest. But whence came this sacrifice? The sacrifice may be to any the greatest amount; but to any the least amount, a sacrifice without an inducement is an effect without a cause. One cause alone constitutes any rational mode of accounting for such a sacrifice,—viz. a treaty between the proposed witness and the party to whose interest the testimony (it is understood) will be serviceable. But if any such treaty has taken place, the witness must have said over and over again, and naturally to, or in the hearing of, more persons than one, So and so is what, at such a time and such a place, I saw: so and so is the testimony I have to give. In other words, over and over again it must have happened to him to have delivered extrajudicially, in the presence of a variety of witnesses, in substance and effect (if not in tenor) the very evidence which, if admitted, he will have to deliver in judicial form and place. How then can it be said, that, when the pecuniary interest is out of him, supposing it really out of him, he is devoid of interest? If that be true which is so decidedly affirmed as well as disaffirmed by English lawyers, that reputation, reputation for truth and honesty, is of no value to a man, then indeed he is devoid of interest: but if reputation be of any the least value to him, if he would part with so much as a farthing to preserve it, then, even in that case, he has still an interest; and an interest adequate, according to them, to the production of mendacity in any case.

Here, then, is an interest, and that an adequate one—an interest not taken away by the operation, but still subsisting. Remaining in all cases, it supersedes the necessity of looking out for any of those modifications which may be produced by any difference in the nature of the interest in different cases. But, for illustration and still more complete satisfaction, let us look a little way into those differences.

In the next place, then, here is a transaction between two parties: an inducement there must have been on each side, or the transaction could not have taken place. On the one hand, unless an advantage in some shape or other accrued to him from it, the releasing witness would not have performed his part in it: and moreover, on the other part, unless some advantage accrued to the party, neither would the party have borne his part. But this advantage to the party could not, in the nature of the case, have been constituted by anything else than a tie of some sort or other, direct or indirect, engaging the witness to persevere, and deliver in court evidence to the same effect as that which had been delivered by him out of court. What particular shape it may have happened to this tie to assume in each individual case, it would in general be fruitless, and always needless, to attempt to investigate.

Take the matter in another point of view. The testimony thus vamped up,—is it true or false? If true, the vamping is of no use: if false, what then is the effect of it?

Useless, then, it is most completely, this lawyer’s pantomime. But though useless, it is far from being inoperative: it is practically mischievous. Though interest never can be a just cause of exclusion, it never can fail to be a just cause of suspicion. The object of the mummery, the effect of it, if it has any (and it is not the lawyer’s fault if it has none,) is to wipe away this suspicion from the mind of the judge; to cause a man, whose testimony is really under the action of interest, to be regarded as if it were not.*

In some obstinate cases, the virtue of the little seal has been found not altogether strong enough for the work assigned to it. An occasion is upon record, in which, maugre all the efforts made by the witness to get rid of the interest, and with it of the matter of untrustworthiness, it stuck to him like birdlime, so that the consequence was, he could not be received. Experiments are not unknown to jurisprudence, any more than to other arts. The milder, howsoever morbid and peccant, matter of interest, might it not be asorbed as it were by the more acrid matter of felonious untrustworthiness? Might not the matter of interest be considered as merged in that of felony? The doctrine of merger* has done in its day greater feats than this. If this be admitted, everything else is plain sailing. Witness, having an interest not purgeable by release, commits a felony: nothing more easy: felonies are committed every day for much worse purposes. Plaintiff prosecutes: witness pleads guilty, puts on a bacon glove, and is burnt in the hand: attorney-general confesses errors in the record; which, whether there are any or not, he is always ready to do, on proper occasions and proper considerations. If one of these operations will not be sufficient, the other will: at any rate, both together.

Thus, if you have the misfortune to tar your coat, put a little butter to the tar, the tar is merged in the butter; rub on a little oil called spirit of turpentine, tar and butter are both merged in it: altogether merge in air, thin air, and your coat is as admissible as it was before.

The pharmacopœia of technical restoratives bears no slight analogy to the impostures that at different periods have been seen acted on the spiritual and medical theatres—to exorcism, animal magnetism, and tractorism.

Of the operations of the exorcist, the success is infallible, in the expulsion of non-existent devils: of those of the magnetist and the tractorist no less so, in the expulsion of non-existent diseases. Of the operations of the lawyer, or rather the knot of lawyers (for here co-operation is necessary,) the success, in respect of the expulsion of the demon of mendacity out of the breast of the patient, is no less assured, provided he was never there: if he has not been there at the moment preceding the operation, neither is he immediately after it. But if at that antecedent instant of time the demon was in actual possession of the premises, is it in the power of the release with its talismanic seal to eject him? The prayers and mandates of the exorcist, the arm of the magnetist, or the brass of the tractorist, would be of equal efficacy.

In these several impostures, as in most others, the respective operators have this in common, that, in the instance of any given individual, it is not always altogether easy to determine to which of two congenial and co-harmonizing classes he appertains—that of the impostors or that of the dupes. As to the jurisprudentialist, his most common state is, perhaps, a sort of middle state between the two. What he knows is, that the pretence makes business and brings fees: what he cares not about is, whether it be true or false.

In one respect, the jurisprudential operators fall far beneath the medical and pneumatological. By the force of imagination, in addition to the non-existent diseases, the magnetizer and the tractorist may not improbably have now and then administered cure or relief to an existent one. By the same powerful though unsteady instrument, it may even have happened to the exorcist to have quieted or soothed real and excruciating perturbations, howsoever derived from an unreal source. But after the acts of exorcism performed by the lawyers for driving the demon of mendacity out of the bosom of the witness,—if so it was that at the time of clapping the seal to the parchment he was in possession of the premises, in any one instance could he ever have been expelled?

On the north side of the Tweed, witnesses (we have seen† ) are subject to a kind of disease called partial counsel. It seems to be a sort of contagion, the matter of which is adherent to the witness’s box. Fortunately, the Pharmacopœia Edinburgensis affords a specific for it: it is of the cathartic class, scientifically (shall we say, or vulgarly?) called a purge. A dozen or two of words are given a man to gabble secundum prœscriptionem, he having first placed himself duly in the place and posture of a man giving evidence,—and the remedy is at once administered.‡

As to the peccant matter, fortunately for the bystanders, it goes off, not by the primæ viæ, like the matter of incredulity in the bosom of Felix, when, as in Hogarth’s print, expelled by the eloquence of the Christian orator; but by a sort of insensible transpiration.

As to its efficacy, the proof of it is in every day’s practice. Not a case in which the specific has ever failed to be administered; not a case in which, after the operation, a patient was ever known to complain of any the slightest remnant of the disease.

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.

It has already been proved—that is, observed (for surely this is one of those cases in which to observe is to prove)—that there are cases in which exclusion of the evidence, on the ground of the vexation inseparable from the delivery of it, is a proper measure;—viz. where the collateral mischief consisting of the vexation is preponderant over the direct mischief produced by the chance of misdecision or failure of justice resulting from the want of the evidence.

It was, at the same time, and in the same way, proved, that there are cases in which such exclusion, bottomed on that same ground, is not a proper measure;—viz. all cases in which the balance as between the two mischiefs is on the other side.

The several cases in which the mischief of the vexation resulting from the delivery of the evidence is capable of being preponderant over the mischief of misdecision or failure of justice for want of the evidence, have this common property,—viz. that the vexation is produced by circumstances entirely independent of the uneasiness produced by the obligation of making any disclosure, the effect of which is to subject the proposed witness, or any other person, to any punishment or other burthensome obligation, to which it is the intention of the legislator that he should be subjected. It is produced, in all these cases, by circumstances accidental and extrinsic: for example, disproportionate expense by reason of a long and expensive journey or voyage; irreparable loss of time; disclosure of collateral facts, such as a third person has no right by law to be informed of.

Besides these accidental lots of vexation, there is, however, one, which may be considered as naturally, and in the ordinary course of things, attached to the obligation of giving evidence: and that is, the thought of the unpleasant and more or less prejudicial consequences, which the evidence may have the effect of producing, to the prejudice of the proposed witness himself or some other person, by reason of the execution of a judicial decision, of which such evidence may constitute, or help to constitute, the ground. By the idea of such consequences, considered as liable to be produced by the evidence, an unwillingness to deliver it (which is as much as to say, vexation in the event of its being delivered) will, in many cases, be produced. Concerning this unwillingness, indubitable or presumable, a notion has obtained, that, in many if not in all cases in which the existence of it is regarded as certain or probable, it constitutes of itself a sufficient reason for excluding the evidence to which it is regarded as attached. And, in one of the most enlightened nations of Europe, this notion, having been adopted by judges, and, under their authority having formed itself into a rule or maxim of jurisprudential law, has constituted the basis of an arrangement exercising a most extensive and important influence over the whole fabric of the law of procedure. Regarding it as one of the most pernicious and most irrational notions that ever found its way into the human mind. I propose to allot this whole Part to the task of sifting it to the bottom, in the hope that the labour employed in a task at once so important and so new, will not be regarded as ill-bestowed.

To constitute a just ground of exclusion, the lot of vexation here in question must be a mass of that evil over and above what would have been produced by a decision to the same effect grounded on other evidence—on any evidence to which the lot of vexation in question would not have been attached. For, supposing the exclusionary notion to extend to all other evidence—to other evidence at large—to whatever vexation might come to be produced by evidence of whatever description, having the effect of subjecting some person or other to the punishment or other burthensome obligation in question,—to say that, in consideration of the vexation thus resulting, no such evidence ought to be received, would be as much as to say, there ought not to be any such thing as a punishment or other burthensome obligation ever imposed; in a word, that there ought not ever to be any such thing as a law.

But (it may be said) there are such things as bad laws: and in no country is the body of the laws altogether free from them. Now, the effect of the practice which, in opposition to the exclusionary rule in question, forces testimony from persons of all descriptions, without regard to unwillingness and consequent vexation, is, to give to whatever substantive laws it is employed in giving execution to, a degree of efficiency much beyond what they would possess in the opposite case. But, by giving this extraordinary degree of efficacy to all laws (substantive laws) without distinction, it will give the same degree of efficiency to as many bad laws as it happens to the aggregate body of the laws to include: and forasmuch as in every existing system the extent of this mass of bad laws is more or less considerable, the mischief of the practice against which the door is shut by the exclusionary rule would be proportionably great.

In the character of an argument in favour of the exclusionary rule, the defect of this argument will, I imagine, be found apparent upon the face of it. But inasmuch as, when sifted to the bottom, it will be found to lead to discussions of a very delicate and important nature, I do not propose to leave it ultimately in its present state, to stand altogether upon its own strength or weakness. For the present, however, confining the examination to the question immediately appertaining to the present Book, I shall content myself with bringing to view, by way of answer, the following observations: viz.—

1. Supposing that, for the accomplishment of the purpose stated in the argument, the exclusionary rule is, upon the whole, well adapted, it can be so in no other respect than that of its operating in the character of a debilitative upon the whole of that portion of the body of substantive laws to which it applies; weakening their efficacy,—rendering them so much the less efficacious, in respect of the purposes which they respectively have in view. But, so far as this alone is considered as the result of the rule in question, and that result a beneficial one, it is no otherwise of use than as any other institution or arrangement would be of use, that should in an equal degree contribute to weaken the efficacy of the laws.

On one only supposition would the balance of its effects be on the side of benefit; and that is, if the aggregate body of the laws were so constituted, that the mischief resulting from such as are mischievous, outweighs, upon the whole, the good resulting from such as are of a beneficial character. But, that, even under the worst government of which any accounts are extant, the supposition here in question was ever realized, seems altogether improbable: for, on this supposition, a state of anarchy would be less mischievous than—would be preferable to—such a state of government.

2. The person to whom it is proposed to form his opinion, and consequent decision, respecting the propriety of the exclusionary rule, is the legislator. In the political state in question, either that rule is not as yet established, or it is already established. If not, then, considered as addressed to the legislator, the argument stands thus:—

Monitor. In the state subject to your authority there are a multitude of bad laws: to weaken their efficacy, please to establish this exclusionary rule.

Legislator. Excuse me. Of such laws, if any, as in my judgment are bad laws, I shall not content myself with weakening the efficacy; I shall abolish them altogether. In regard to such of them as in my judgment are good laws, I should be sorry to do this, or anything else, that should in any degree weaken their efficacy.

Shift now the scene to a state in which the exclusionary rule has already been established:—

Monitor. In the state subject to your authority there are a multitude of bad laws. It has been proposed to you to abolish the exclusionary rule. Do no such thing: it is a most useful rule; it serves to weaken the efficacy, and thus to diminish the mischievousness, of your bad laws.

Legislator. Thanks for your caution. But being also fortunate enough to have a multitude of good laws, my wish is, to give to those good laws the highest degree of efficiency they are susceptible of. The effect of this exclusionary rule which you are so anxious to preserve, is (taking your own account of it) to weaken the efficacy of whatever laws, good as well as bad, it is applied to. Taken in its natural state, and unless subject to limitations to which you do not propose to subject it, it applies to all laws, and weakens the efficacy of all: it is for this reason I mean that it should no longer have any application to any of the good ones; and it is in that view that I mean to abolish it altogether. As to the bad laws. I shall not content myself with weakening their efficacy: convince me of their badness, and I shall abolish them.

Monitor. But, among those laws which in your judgment are bad ones, and which accordingly you propose to yourself to abolish, may not there be some, which, regard being had to the affections and prejudices of the people, it would appear to you not advisable to abolish?

Legislator. I should be sorry to find any such: but if such there be, there are several courses, any or all of which I should prefer to the giving up the benefit of the increase which the abolition of the rule would give to the force of such of the laws as to me seem good ones.

1. I would cause to be laid before the people the reasons by which my disapprobation of such laws as to me seem bad ones was produced. Having operated upon my mind, probably enough they may operate on other minds; especially as coming from a station from whence, if tolerably well dealt with, men are apt enough to take their opinions as well as their laws. And, moreover, should it so happen, that, by my reasons thus made known, any others should be brought forth, that in my maturer judgment should prove preponderant over mine, I propose to myself to take the opposite course; viz. to go over to the side of the people, instead of their coming over to mine.

2. In the meantime, if I despaired of being able either to bring over the people to my opinion, or to carry over mine to theirs, I could, if I thought it worth while, leave the debilitative rule to apply itself to the particular laws thus appearing to me to be bad ones. Leaving these laws in that state and degree in which I found them, the people would have no reason to complain of me; and, barring the operation of the rule in debilitation of my good laws, I should give to them all the operative force which it is desirable that good laws should possess.

In the case where the evidence in question is of the self-regarding, the self-criminating kind,—if testimony extracted from a man’s own lips were attended with any the smallest degree of probability of unjust suffering on his part, over and above that which results from testimony extracted from an extrancous and indifferent witness, there would then (on the ground of danger of deception and consequent misdecision) be, in point of reason, a ground, not for exclusion indeed, but, however, for suspicion and cantion more than ordinary on the part of the judge. But who does not see that the supposition thus brought to view for the purpose of illustration and argument, is a supposition which holds good, not in the present case, but in the case directly opposite, viz. that of self-serving testimony? with only this difference, that, whereas in that case there is only a chance of the existence of falsehood on that side, there is a certainty of the non-existence of it in the present case. It is not every man that will swerve from the truth for his own advantage: a man of entire probity will not, to the value of a hair’s-breadth. But there is not that man breathing, who, being in his right mind, and having his own interest alone at stake, ever will knowingly swerve from the line of truth to his own disadvantage.

There is but one sort of evidence which, practically speaking, is free from all danger of producing deception by mendacity; and this is the sort of evidence upon which an exclusion has been put by English lawyers.

Two men have each committed an offence, or done, each of them, an improper act of any other description—an act which in both cases is improper in the same degree and the same way. In the instance of one of them, it so happens that the act can be proved against him without resorting to his own testimony: in the other instance, so it happens that, though with the help of his own testimony it would be proved upon him, yet without that help it cannot. Is there any earthly reason why the lot of one of these men should be better than that of the other? why his suffering should be in the smallest degree less? Yet, under the exclusionary rule, one of them suffers not merely less than the other, but absolutely nothing; while his not more guilty fellow suffers the full rigour of the law.

Cross and pile (whether antecedently or subsequently to conviction) would not, by man in general, would not certainly by English lawyers, be regarded as a just and proper method of determining, amongst two or more equally guilty, which should and which should not suffer. Cross and pile, when called in by the common sense of jurymen for their relief in a situation of honest doubt, has been reprobated with indignation by their learned and official directors. But, in the case here in question, acquittal by cross and pile would be a signal improvement, if substituted to acquittal by the force and virtue of this exclusionary rule. In cross and pile, the naturally-sagacious or learnedly-instructed knave would not behold any means of safety more open to himself than to his less instructed fellows: whereas, it is the nature of the exclusionary rule to operate as a licence for delinquency to all those whose astuteness, seconded by ordinary good fortune, enables them to take advantage of it. Who shall count the multitudes that day after day have been acting under this licence? For it is among the properties of this invitation to guilt, that those who act under it with most felicity and success are those who enjoy the ulterior advantage of not being known to have acted under it.

That, under the protection of this licence, the impunity of the wicked may be as complete, and the encouragement to wickedness as inviting as possible, malefactors and lawyers have joined in another practice. Under circumstances of notorious delinquency, liberated in virtue of this or any other incident foreign to the merits, malefactors may be seen everywhere holding their heads high, and (as often as occasion presents itself) assuming the port and language of injured innocence. Accordingly, when a delinquent has been thus fortunate, to speak of him in the character of a delinquent is an offence punished, and with equal rigour, as in the object of the imputation had been a character of the purest innocence. In a place where (happily for the existence of society) the offensiveness of unwelcome truth to the feelings of evil-doers does not enable them to transfer upon their censors the punishment due to themselves, what a clamour was once raised by the appellation of acquitted felons! As if an acquitted felon was a sort of animal no more capable of finding itself in existence on English ground, than a spider was supposed be in Ireland. All this while, under the genial influence of this and so many other rules so ingeniously and successfully directed to this end, acquitted felons and acquitted malefactors of all sorts and sizes are as much at home in the British Isles, as venomous serpents in Guiana, or crocodiles in the Nile. In a relaxed constitution of the body politic, acquitted and unprosecuted malefactors of all kinds are no less congenial to that artificial body, than, in a constitution of the same character, the tænia, the lumbricus, and the ascaris, are to the natural body. In one particular, the parallel discovers an unhappy failure. In the natural body, it is not in the power, and as little (let us hope) in the wish, of the licensed practitioner, to propagate the breed of the vermin to the plague of which it is exposed: whereas, in the political body, by the instruments which there has been such frequent occasion to bring to view, we have been seeing the hand of the practitioner occupied, with unwearied perseverance, in sowing the seeds of wickedness in every imaginable shape.

CHAPTER II.

ENUMERATION OF THE SORTS OF EVIDENCE IMPROPERLY EXCLUDED ON THIS GROUND BY ENGLISH LAW.

Various are the points of view in which the vexation, that in this case appears to have been taken for the ground of the exclusion, has been contemplated: various the correspondent modifications of which the evidence, regarded as the cause of such vexation, has been considered as susceptible; and the correspondent specific denominations that either have been, or (to express those several points of view, and the consequent arrangements they have given birth to) require to be, respectively affixed to those modifications. Numerous are even the sources from which those modifications have been derived:—

1. The nature of the consequences of the evidence in respect of good and evil. Hence the distinction—evidence of a nature to serve, evidence of a nature to disserve.

2. The identity or diversity, of the person yielding the evidence, and the person affected by the consequence of it. Hence the modifications expressed or expressible by the appellatives self-serving, and self-disserving, or self-prejudicing.*

3. His station in the cause: whether that of a party or an extraneous witness. No appellatives deduced from this circumstance; but, in respect of the legal arrangements, much importance given to it.

4. Nature and denomination of the suit, on the occasion of which the evidence is proposed to be delivered; viz. criminal, or non-criminal—commonly called civil.

5. Nature of the evil constituting the vexation; viz. the evil or disservice produced by the disclosure. From this source, and the second and fourth taken together, come the modifications expressible by the several appellatives self-criminative or self-inculpative, self-disgracing, self-discrediting, or simply self-onerative (as where blame is out of the question.)

6. The nature of the affection which is the seat of the vexation; viz. whether self-regarding or sympathetic.

Where one person (a trustee) stands charged with the interests of another (a fidei-committee or cestuy que trust) as in the case of guardian and ward, factor (or agent) and principal, lawyer and client (especially where the existence of the relation is voluntary on the part of the trustee,) an affection of sympathy, of which the fidei-committee is the object, may naturally enough be supposed to exist in the bosom of the trustee. This being assumed, a consequence is, that where, from the evidence delivered by the trustee, a vexation or prejudice of the self-regarding kind may be expected to befall the fidei-committee, a proportionable (howsoever short of equal) vexation of the sympathetic kind may, in like manner, be expected to find its way from the same source into the breast of the trustee. To this head may be referred the most plausible reason that has been found for the exclusion that has been put upon what, taking the only appellative in use, and which is of the dyslogistic, or vituperative cast, may be called trust-breaking or trust-betraying evidence.

Where, a number of individuals living together in the character of members of the same family (as is the case with husband and wife, parent and child,) evidence delivered by one member would be a cause of vexation to another,—vexation in a mixed mass, partly sympathetic, partly self-regarding, is liable to find its way into the bosoms of these several members from that source. In this vexation we see the most plausible reason that has been found for the exclusion that has been put upon some of the modifications, and some only, of that which may be termed family-peace-disturbing or family-disturbing evidence.

When the effect of a lot of self-criminative evidence has been to produce the conviction of him by whom it has been delivered, it is capable of receiving the appellation of self-convicting evidence. But, forasmuch as, antecedently to conviction, this effect, not having as yet taken place, can only be matter of expectation and conjecture, the appellation could not, without impropriety, be applied to self-criminative evidence at any such antecedent point of time.

Laying together the modifications deduced from the several sources above mentioned, we shall find six species, each presenting itself as entitled, on some account or another, to a separate consideration. These are—

1. Self-criminative, reaching beyond self-onerative.

2. Self-onerative, and self-criminative not reaching beyond it.

3. Self-disgracing.

4. Self-discrediting.

5. Trust-prejudicing.

6. Family-peace-disturbing.

The effect of the testimony will be in some respects different, and the reasons for and against the admission of it stand upon a correspondently different footing, according as the station which the proposed deponent occupies in the cause is that of a party, or that of an extraneous witness. We will consider him successively in both these stations: as a party, in the ensuing Part; as an extraneous witness only, in the present.

CHAPTER III.

IMPROPRIETY OF THE EXCLUSION PUT UPON SELF-DISSERVING EVIDENCE BY ENGLISH LAW.

§ 1.

Uses of self-disserving evidence, and mischiefs resulting from its exclusion.

The fundamental rule on this subject is generally given in Latin: Nemo tenctur seipsum accusare: no man is bound to accuse himself. Taken by itself, the proposition, as thus delivered, having its source rather in the affections than in the understanding, has more of rhetoric in it than of logic, and presents no clear idea until it be translated into more simple language. The part of an accuser is one part; that of a witness is another. The part of the accuser is that of the plaintiff, of which that of the prosecutor and that of the informer are modifications; these being names that are given in different cases to the plaintiff, according to the nature of the cause. By “no man shall be bound to do so and so,” is meant, no man shall be liable to be punished for not doing so and so. Of the proposition, “no man is bound to accuse himself,” the literal meaning, reduced to clear and unambiguous language, is, no man shall be liable to be punished for not instituting a penal suit against himself; for not preferring a bill of indictment against himself, or lodging an information against himself; or not bringing a penal action against himself; or preferring an appeal against himself,—as the case may be.

In plain English, the maxim is neither more nor less than so much nonsense. To find an intelligible meaning for it, we must have recourse to practice; we must shut up our law-books, and observe what passes before our eyes. We then find that the question is, not whether a man shall be bound to commence a suit against himself; nor yet whether, without being called (the suit being commenced by any other person,) he shall be bound to come and give evidence against himself: but whether, being called, and questions being put to him, he shall be bound to make answer to such questions.

The substitution is not a mere impropriety, but a sophism, a fraud. A law which should say to a man—Whenever it happens to you to commit a crime, come and accuse yourself, come and give information against yourself—would, on the face of it, be an absurd one. The object of the sophism is to cause it to be believed, that, in the liberty of propounding to a man under accusation or suspicion of a crime, questions, the object of which is to discover whether he is guilty or no, this sort of absurdity is involved. But, that no such absurdity is involved in that liberty, is what everybody will see, to whom it is not more agreeable to shut his eyes.

Observe, too, what in this case is the import attached to the terms expressive of obligation—bound, forced, compelled. Observe what is the nature of the compulsive force.

Obligation to speak is not here in question. In the case where the penal process is of the acute kind, punishment directed to this object is what has been commonly expressed in French by the word question—in English, by the word torture.

Obligation, on the part of the defendant, there is in fact in this case none. What it imports is mere permission: permission to the adverse party (the plaintiff,) and to the judge, one or both, to put questions to the defendant; for the sake of the faculty which thence results to the judge, of noting the answers or the silence (whichever is the result,) and drawing his inference from them.

From the faculty of putting these questions, what is it that the defendant has to fear? It is this: From the known principles of human nature, according to a course of observation common to all mankind—according to the result of a set of observations, which it can scarce happen to a man to have arrived at man’s estate without having had frequent occasion to make—between delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.

The delusive language in which interested artifice has dressed out the exclusionary rule being thus stript off, let us now take a more detailed observation of the mischiefs flowing from it. These mischiefs will correspond to the uses of the species of evidence thus marked out for exclusion: i. e. to the occasions on which, and purposes for which, the demand for it is liable to present itself.

1. In the first place, in so far as it is to be had, it has already been stated as being (not only upon the face of it, but by the confession of those who, notwithstanding, have been in the habit of excluding it) the very best possible sort of evidence: the evidence the most completely satisfactory: evidence, in a word, so completely, and even exclusively, satisfactory, that, according to the Roman system, after the delivery of such evidence as under English law is deemed conclusive even where the punishment is at the highest pitch, the mass of evidence is regarded as deficient without evidence of this kind; and the deficiency as being so important, that torture (howsoever ill employed) has, under the dominion of that jurisprudence, been everywhere employed for the filling it up.

First use of self-disserving evidence—augmenting the security against misdecision and failure of justice, by furnishing the most trustworthy and satisfactory ground of decision; the best security against failure of justice, or misdecision, for want of evidence,—viz. evidence of the best, most trustworthy, most satisfactory kind. Habes confitentem reum, says the Roman orator: as much as to say, Having this, what more can you desire?

2. This is not all. Under the distress produced by the exclusion put upon the best evidence, recourse has been had (through a sense of necessity, and that the wound given to justice might not be past endurance) to bad evidence of various descriptions: evidence, the inferiority of which has, on other occasions, and where (for want of better) there has been a real demand for it, been not acknowledged merely, but proclaimed. Under this description come—1. The supposed confessorial testimony of the party, delivered through the medium of hearsay evidence; and, of course (in case of misconception, designed or undesigned) without the opportunity of explanation, completion, and correction. 2. Written discourse, supposed to be in the handwriting of the party, and supposed to contain on his part a sort of confessorial testimony, delivered in the state in which it has been supposed to be found, but, at the option of the adverse possessor, complete or mutilated; and, at any rate, without adequate opportunity given of explanation.

Second use of self-disserving evidence,—adding a security against misdecision and failure of justice, by adding or substituting more trustworthy evidence to less trustworthy.*

3. The person whose bosom is the source of self-disserving evidence (the plaintiff, or more commonly the defendant, in the cause) is one person: that person is forthcoming of course. Whatever evidence is extractible from that source, is extractible on the spot, and without addition to the expense. Stop up that source, whatever evidence you can hope to get from other sources, if got at all, you must get as you can, from, perhaps, a variety of sources, from each at the end of an indefinite length of time, and under the pressure of an indefinite load of expense. Hence,

Third use of self-disserving evidence, saving of delay, vexation, and expense.

A striking illustration of this last use is afforded by the case in which, for the conviction of a defendant, it is necessary that his handwriting should be proved.

As, at a trial at common law, the party himself (the defendant) can in no case be examined in behalf of his adversary the plaintiff; the plaintiff, to prove the defendant’s handwriting, is obliged to go upon the hunt for other witnesses. In some instances, a witness for this purpose will be to be had without any additional expense. But this is altogether matter of chance; and for this single purpose it may be necessary to fetch a witness on purpose, at any degree of inconvenience to the witness, from any imaginable distance, and consequently at a proportionate expense. This expense rests ultimately on the shoulders of the party who on that side bears the burthen of costs. If the burthen of costs rested uniformly on the party who is in the wrong, even in that case this unnecessary expense would be a grievance: in case of mala fides, indeed, it may have its use in the character of a punishment: but it would be a supposition by much too favourable to the intellectual character of the law, and by much too injurious to the moral character of the people, to suppose this to be the more common case. Nor yet does the burthen of costs rest, with anything like uniformity, upon the party who is in the wrong, or even upon the party whom the decision supposes to be in the wrong. So far from it, that, to distinguish the cases in which it shall rest upon the party who is supposed to be in the wrong, from those in which it shall rest upon the party supposed to be in the right, is a discussion that occupies the contents of a reasonable octavo volume.

The expense, which consists in the pecuniary allowance to the witness, added to that of the instrument of summons, with the lawyer’s fees belonging to it, appears in pounds, shillings, and pence; but the delay and vexation (not to speak of incidental and casual expenses, which may be the necessary accompaniments of the process of investigating by reflection and hunting out by inquiry a man’s connexions, for the purpose of lighting on some person capable of proving his handwriting by the regular mode of proof,) all this put together forms a mass of inconvenience, which, though it cannot always be correctly expressed in pounds, shillings, and pence, is neither the less real nor the less heavy.

When the sort of witness in question, or one who is thought to be such, or pretends to be such, has been hunted out, the prize may but too easily turn out to be no better than a snare and a source of miscarriage. The suitor whose misfortune it is to stand in need of such testimony, is thus rendered dependent upon the probity and prudence of an individual more or less likely to be in connexion with the adversary. In case of non-appearance, the witness is, indeed, answerable in damages. Be it so: but suppose the property at stake an affair of thousands, while a few hundreds or scores would afford the witness a sufficient inducement to stand an action on that ground, or to take himself out of the reach of it? Suppose another modification of fraud, more simple and more safe. To a question put out of court, “Can you prove such or such a man’s handwriting?” the witness, who in fact cannot, answers, however, and purposely, in the affirmative. On the trial, he answers in the negative: the document, a necessary one (a note of hand, suppose,) is set aside; and the cause is lost. What punishment? what remedy? Perjury, by the supposition, there is none; and for the falsehood out of court there is no punishment.

The only sort of person to whom it is possible (speaking of suitors) to profit by the pretended tenderness of this rule, is the knavish and immoral suitor, who, being in the wrong, and knowing himself to be in the wrong, avails himself of the inability of the adversary to fulfil the conditions thus wantonly imposed upon him by the law; avails himself of this misfortune to obtain a triumph over justice. It is for the purpese of rewarding and encouraging the iniquity of one knave of this description, that the useless burthen above delineated is fastened upon the shoulders of perhaps a hundred suitors.

On the supposition of a perfect calmness as between the parties, seconded by an uncommon degree of intelligence as well as disinterestedness on the part of their agents, possible it certainly is for this source of delay, vexation, and expense, to be avoided: mutual and amicable explanations having taken place, the party whose handwriting is in question agrees to admit it at the trial. All this is a possible case: but is it the most common case? Let experience declare. Not that so much as the possibility extends beyond that class of cases which are ranked under the head of civil cases: in cases called penal, any such sacrifice to truth is altogether out of the question.

To the list of the uses rendered to justice by this best of all evidence, corresponds the list of the mischiefs produced by the exclusion of it: promoting, in two distinguishable ways, misdecision and failure of justice; making a factitious addition to the natural and necessary quantities of delay, vexation, and expense.

To these mischiefs may be added another, the opposite of which could not so conveniently have been presented under the head of uses: I speak of the poison continually infused by the exclusionary rule into the moral branch of the public mind.

Hold the virtues of veracity and sincerity in contempt or detestation: look up to mendacity and insincerity as your strongholds, the pledges of your security. Look upon the licence of exercising them as the boon for which you are indebted to the mercy and loving-kindness of the man of law. Hold nothing for base and mean, that promises to preserve you from the obligation of rendering justice,—from the anti-religious and hell-born rules, do as you would be done by, repent and suffer for your sins. Hold nothing for base and mean,—or, holding your heads high, and speaking in a tone of firmness and defiance, maintain, that to practise whatever is most base and mean, is among the Englishman’s most honourable privileges. Deny your own handwriting in so many words,—or, denying it in deportment as significative as words, refuse or forbear to recognise it: deny your written words; and when a question is put to you by words spoken, keep your lips close, lest the truth should make it escape, and justice be done.*

Such is the exhortation which the exclusionary rule never ceases to deliver to the people. Such is the lecture delivered by the judge, by every judge, as often as he marks with his approbation this flagitious rule.

A man who, uninvested with any coercive power, should, in the character of a moral instructor—of a schoolmaster, a lecturer, or a divine—stand up and say to his auditors, “If a man with whom you have a difference happens to have in his hands a letter or memorandum of yours that you apprehend would make against you, deny it,—do not own it,—put him to the proof of its being yours; and if he is not able, triumph over him as if he were in the wrong;”—if it were possible that a man without power for his protection should take upon him to preach such doctrines, he would be abhorred, and not without reason, as a corrupter of the public morals. What, then, shall be said of those by whom such baseness is not simply recommended, but efficaciously rewarded? Men sow vice, and then complain of its abundance! The same hands which are every day occupied in thus planting and propagating mendacity, are as constantly lifted up against it, and employed in punishing it.

The above is not the only mode in which this superstition is a source of corruption to public morals. It is from the wanton sacrifice thus made of the purest evidence, that the field of justice is regularly inundated by the foulest and most polluted. To save one malefactor from the vexation of returning answers to unpleasant questions, the answer of a no less guilty malefactor is purchased by impunity, crowned with rich remuneration. Among partakers of the same crime, a gang of burglars, murderers, or incendiaries, ille crucem pretium sceleris tulit, hic diadema: and the order of things which, among the corruptions of ancient Rome, is painted by the poet as the summit of injustice, is, in the eternally vaunted law of modern Britain, become the ordinary course of what goes by the name of justice.

Thus it is that, to the punishment of one confederate in a knot of malefactors, the nourishment and encouragement of another is become a condition almost inseparable.

And to this, together with certain other superstitions alike adverse to the interests of morality and justice—to this and those together, it is to be ascribed, that,—whereas in other countries the arts of depredation are carried on only by fits and starts, upon the spur of an occasional temptation, by here and there an unconnected and unsupported individual,—in England they are carried on professionally and systematically, by associations of malefactors, bound together in the ties of partnership, in bands now and then thinned, never extirpated, under the eye and with the protection and encouragement of the three constituent branches of government, the judicial, the executive, and the legislative.

Out of the same root grows that system of remuneration, which renders it an act of improvidence on the part of the subordinate ministers of justice, to remove a scholar in the school of deptedation before he has risen to the head of it—to fasten upon a pilferer, till he has ripened into a burglar—to take at £10 a prisoner, who by a little forbearance might have yielded £40: just as, among renters of fish-ponds, it would be bad husbandry to take a pike of five pound weight out of a pond, in which he might have thriven on to ten pound.

§ 2.

Causes of the exclusion of self-criminative evidence:—1. Interests of criminals and other evil-doers. 2. Interests of lawyers.

In seeing the mischiefs entailed by this rule upon the community at large, we see its uses to criminals, delinquents, malâ fide defendants, extortious and oppressive plaintiffs: in a word, to evil-doers of all sorts and sizes. Moreover, in seeing the persons to whom it is of use, the persons whose sinister interests are served by it, we see the hands and the hearts that stand pledged for its support.

In speaking of the taxes on justice,* it was mentioned as one of the unfortunate characteristics of this species of tax, that, though of all taxes, actual or possible, the most burthensome, and in every respect the worst, it was not in the nature of it to find opponents: because the body of litigants (if a body it could be called,) being ever fluctuating, and essentially split, was, to the purpose of mutual support, and opposition to extrinsic pressure, no better than a rope of sand: and, what is more, were the body itself ever so well knit together, it would still be but a body without a head. The tax, therefore, uniting in itself these two unhappily conjoined properties,—viz. of producing the greatest possible quantity of misery to the people, and the least possible quantity of opposition and uneasiness to the man in office, the result was but too obvious. Relief was hopeless, unless the moment (perhaps an ideal one) should ever arrive, that should produce a financier to whom the most important interests of the people should be dearer than his own momentary case.†

In the present case, the tables are unhappily reversed. Throughout the whole substance of the community extends itself, like the tænia in the natural body, a cluster of internal enemies, possessing, amidst whatever other diversity of interests, the common sinister interest urging them to behold their security in whatever arrangement contributes to weaken the efficiency of the law. The rule in question, being (as we have seen) a capital article in the list of debilitatives, will naturally be the object of a proportionate degree of attachment to the body thus composed. To the body of litigants, besides being divided against itself, there is no head. The body of delinquents (including those who, for having the law on their side, are but so much the more mischievous) find a regular and irresistible head in the man of law—in him who, during the sleep or fascination of the legislator, possesses and exercises all the authority of the legislator, though without the responsibility or the name.

With all its blemishes, the aggregate body of the laws having more in it of that matter which is beneficial to all men, than of that which is prejudicial to this or that one,—it is more (it may be said) for the advantage of the whole community taken together, that the force of the aggregate body of the laws should be at its maximum, than that it should stop short at any inferior degree. True; if the interest of all were understood by all to be exactly as it is, and felt in proportion as it is understood. But (such is man’s nature,) a slight interest coming home to his own bosom, and presenting itself in distinct colours, will act on him with greater force than a much stronger one, common to himself with others, and viewed at an indeterminate distance. Whosoever, on any special account whatsoever, regards himself as obnoxious to the adverse pressure of the laws, will behold in the weakness of the laws, and in every institution that presents itself as contributing to the weakness of the laws, the means of safety. The advantage depending on the protection afforded to him by the laws against a crowd of possible injuries not presenting themselves individually to his view, will, in comparison with this conspicuous and distinct advantage, act upon his mind with very inconsiderable force. The smuggler, the official peculator, and the political malcontent, would each of them find, in a regulation which should cure any of the weaknesses of the law, an increased security against whatever mischiefs he stands exposed to, at the hands of the common herd of malefactors, but, the more distinct and nearer the danger with which he might conceive himself threatened by the influence of the same remedy, the more apt would the new security be to present itself is far from being worth to him the price which he would have to pay for it. Profit, the difference between the old and the new security against depredation at large: loss, to the smuggler, his livelihood—to the peculator, his ill-gotten gains—to the political malcontent, the object of his plots.

The anxiety to preserve the body of the laws from being cleared of these debilitative poisons, will, according to circumstances, display itself with particular force, sometimes in the inferior, sometimes in the superior classes. When in a criminal cause, the station of defendant was occupied by John Wilkes, the vilest quibbles that ever issued from the lips of depredation under the mask of justice were revered as oracles.

In a mixed constitution like the British, by some odd turn in the wheel of fortune it will now and then happen, that, among a multitude of secret or unnoticed instances of official delinquency, some one shall be unfortunate enough to become the subject of prosecution. On such an occasion, that the defendant (how clear soever his guilt) should find one at least of two parties zealous in his support, is a matter of course. Here, then, the debilitative poisons above spoken of become the object of eulogy and attachment in the highest circles. If those that have been compounded for past exigencies present themselves as sufficient for the present turn, they are made the most of, and no others looked for: if, in the pharmacopæia politica, no remedies of this class, as yet upon the list, promise to come up to the purpose, others must be made up: inveniam aut faciam; such is the alternative.

A revolution in administration, it may be said, offers a chance for justice: since, by motives congenial to those by which one party stands engaged to undermine, an opposite party (and that, for the moment at least, the stronger) stands engaged to defend, the foundations of justice. But, unfortunately, the incentives which animate the assailants are apt to be neither so universal, nor so strong in their operation, as those which animate the defendants: for, at the bottom of this momentary interest, thus salutary to justice, there exists a common interest (and that a paramount one,) by which transgressors of all parties are linked together in an interest opposite to the interests of justice. It is to the advantage of all men who partake, or hope to partake, in the sweets of administrative power, that the laws by which they, and men in their sphere, have made a show of binding themselves, should, in everything but show, he as near as possible to a dead letter.

If, under such a constitution, it should at any time happen, that of the two contending parties each should contain a delinquent whose delinquency had been flagrant enough to attract public notice; it may be imagined how generally dear to all public men every institution would be, that was seen to act as a sedative upon the force of justice,—how strong and general an aversion would await any remedy that promised (shall we say, or threatened)) to render to the arm of justice its due tone.

Under such a constitution, a natural, not to say a necessary, consequence, is, that the course of procedure, so long as it has jurisprudential law for its guide, should swarm with rules, which, without contributing in any degree to the protection of innocence, should, by the protection they hold out, afford in a variety of ways an efficient enconragement to delinquency and injustice. Of the rules thus made, made especially on that level, to be assured of their being directed to ends other than the end of justice, a man needs no more than to observe the place in which, in conjunction with the occasion on which, they are made. The occasions on which they are made are uniformly of the number of those in which, men’s individual interests being at stake, and their affections heated, they find themselves, while in the state of parties, called upon to make laws for the guidance of their own conduct in the character of judges.

The same minds, whose partialities, excited by the incidents of the moment, render them no less unfit than the grossest corruption would do, to act with the authority of a legislator in the station of a judge,—these same minds, when free from the disturbance produced by the sinister interest of the moment, may, without any departure from the rules of moral probability, be expected to join with fidelity and concord in the pursuit of that general interest by which the line of public duty is prescribed.

Witness the Grenville Act: so fair and efficient a step in the improvement of that political constitution, the praises of whose excellence are so generally excessive, and beyond, to the most exorbitant extent, its merits; but of which this may with justice be said, and of much importance it is to be deemed that it can so with justice be said;—the British constitution forms a basis for building those improvements which would terminate in a perfect government—a basis the firmest by far that ever was presented by any government that had existence upon earth.

In seeing the uses of the exclusionary rule to malefactors and evil-doers of all descriptions, we have seen its uses to the man of law.

Whatsoever is seen to diminish the security against misdecision and failure of justice, and thence whatsoever is really productive of that effect, is subservient to the interest of the man of law. In the minds of transgressors and malâ fide suitors, it helps to fortify the opinion, that no cause whatsoever, no cause, however bad, ought to be given up as desperate. Subsequently to transgression, in the minds of those who have already transgressed, it operates as a premium for dishonest defence or dishonest demand, as the case may be: antecedently to transgression, on all minds exposed to temptation (that is, in a word, on all minds) it operates as a premium for transgression, for injustice, in every shape.

The vexation, expense, and delay, so frequently attached to the production of the inferior evidence resorted to on the exclusion of the most satisfactory species of evidence, have just been brought to view. On this occasion as on all others, lawyer’s profit being both cause and effect of that triple-headed mischief, the use which the exclusionary rule is of to the man of law is self-evident.

By the vexation, expense, and delay, it adds to the quantity of lawyer’s profit in each cause separately taken: by the chance it affords of misdecision or failure of justice for want of the excluded evidence, it adds to the encouragement given for dishonest defences and demands, and thence to the number of the individual sources from which that pernicious profit may come to be derived.

Meantime, although to lawyercraft, and the benefit derived from this rule by Judge and Co., the principal share in the establishment of it may be to be ascribed,—what cannot but be admitted, is, that, to the production of this effect, circumstances of a different and more laudable complexion would probably be found to have been not altogether without their induence, in the character of co-operating causes:—1. Tyranny of the times, anxiety, and (on the ground of public utility) real need, of saving, at any price, the precious few who were at the same time able and willing to stand in the gap. 2. Multitude and extent of bad laws, the result either of improbity or folly. 3. Savageness of the people in general, and of the fraternity of lawyers in particular; propensity on their part to fasten upon an innocent man, and (especially if, on any particular account, whether political or personal, obnoxious) to treat him as,—under the lash of cross-examination, by hireling advocates, under the eye of careless or approving and abetting judges,—men are but too frequently treated in the character of extraneous witnesses: to fasten upon him, and, by intimidation and misrepresentation, to wring out of venial infirmity the appearance of criminality, sometimes even the appearance and colour of delinquency out of the purest innocence.

§ 3.

Pretences for the exclusion.

1. At the head of everything which, with or without the name of a reason, has been advanced, or is capable of being advanced, in the view of securing the attachment of the people to the exclusionary rule, let us place the old sophism, the well-worn artifice, sometimes called petitio principii, and which consists in the assumption of the propriety of the rule, as a proposition too plainly true to admit of dispute.

In the minds of some men (not to say the bulk of men,) if you set about proving the truth of a proposition, you rather weaken than strengthen their persuasion of it. Assume the truth of it, and build upon it as if indisputable, you do more towards riveting them to it than you could do by direct assertion, supported by any the clearest and the strongest proofs. By assuming it as true, you hold up to their eyes the view of that universal assent, or assent equivalent to universal (dissenters being left out of the account,) which, from your assumption, they take for granted has been given to it: you represent all men, or (what comes to the same thing) all men whose opinions are worth regarding, as joining in the opinion: and by this means, besides the argument you present to the intellectual part of their frame, you present to its neighbour the volitional part another sort of argument, constituted by the fear of incurring the indignation or contempt of all reasonable men, by presuming to disbelieve or doubt what all such reasonable men are assured of.

For exemplifications of the use of this instrument of persuasion—of the application of it (I mean) to the present purpose—it is altogether useless to make reference to this or that particular book or books: you hear it in all discourses; you see it, as often as occasion serves, in all books and in all newspapers.

2. The old woman’s reason. The essence of this reason is contained in the word hard: ’tis hard upon a man to be obliged to criminate himself. Hard it is upon a man, it must be confessed, to be obliged to do anything that he does not like. That he should not much like to do what is meant by his criminating himself, is natural enough; for what it leads to, is, his being punished. What is no less hard upon him, is, that he should be punished: but did it ever yet occur to a man to propose a general abolition of all punishment, with this hardship for a reason for it? Whatever hardship there is in a man’s being punished, that, and no more, is there in his thus being made to criminate himself: with this difference, that when he is punished,—punished he is by the very supposition; whereas, when he is thus made to criminate himself, although punishment may ensue, and probably enough will ensue, yet it may also happen that it does not.

What, then, is the hardship of a man’s being thus made to criminate himself? The same as that of his being punished: the same in kind, but inferior in degree: inferior, in as far as in the chance of an evil there is less hardship than in the certainty of it. Suppose, in both cases, conviction to be the result: does it matter to a man, would he give a pin to choose, whether it is out of his own mouth that the evidence is to come, or out of another’s?

To this, to which, in compliance with inveterate and vulgar prejudice, I have given the name of the old woman’s reason, I might, with much more propriety, give the name of the lawyer’s reason. When a child has hurt itself, and a chirurgical operation is deemed necessary for its cure, it may be that here and there an old woman may be found weak enough to exclaim, Oh the poor dear child! how it will hurt the poor dear child! how hard it will be upon the poor dear child! and so on; no, it sha’n’t be doctored. It would be too much to say that such old women do not exist; but sure enough they would not, in any very considerable number, be very easy to be found.

But the lawyer, in disposing of the fate of those who, if they were in any degree dear to him, would not be dealt with by him as they are, has never—let us not say any other,—at any rate employs scarcely ever any better style of reasoning. The reasons most plenty with him, the only reasons that are not rare, are technical reasons. The reasons that with him are choice and rare, the reasons brought out only now and then, are these old women’s reasons: reasons consisting in the indicating, out of a multitude of reasons standing on each side, some one only on one side.

Nor yet is all this plea of tenderness,—this double-distilled and treble-refined sentimentality, anything better than a pretence. From his own mouth you will not receive the evidence of the culprit against him; but in his own hand, or from the mouth of another, you receive it without scruple: so that at bottom, all this sentimentality resolves itself into neither more nor less than a predilection—a confirmed and most extensive predilection, for bad evidence: for evidence, the badness of which you yourselves proclaim, and ground arguments and exclusions upon in a thousand cases.

What every man knows, and what even yourselves, in spite of all your science, cannot be ignorant of, is,—that, of all men, the man himself is the last man who would willingly speak falsely to his own prejudice; and that, therefore, against every man, his own is the safest, the most satisfactory, of all evidence: and it is of this best and most trustworthy of all possible evidence, that your pretended tenderness scrupies not to deprive the interests of truth and justice!

You know of such or such a paper;—tell us where it may be found. A request thus simple, your tenderness shudders at the thoughts of putting to a man: his answer might lead to the execution of that justice, which you are looking out for pretences to defeat. This request, you abhor the thoughts of putting to him: but what you scruple not to do (and why should you scruple to do it?) is, to dispatch your emissaries in the dead of night to his house—to that house which you call his castle, to break it open, and seize the the documents by force.

Not that, in any such act of violence, considered as a necessary means to a necessary end, there is anything to blame: it is on the score of inconsistency, and that alone, that it is here worth mentioning. Two means to the same end: the one violent—the other free from violence. The quiet one is too violent for you: you embrace the violent one; and not only in preference to the other, but to the exclusion of it: and this is your delicacy, your tenderness.

It is not, however, true, that, even as towards criminals, if taken in the aggregate, the plea of humanity can be pleaded in behalf of this rule, consistently with truth. Humanity? yes,—viz. the word: for as to the thing itself, if effects be considered (howsoever it may be with regard to motives and intentions,) in any practice grounded on any such rule, it is no more to be found than the thing called justice.

Of the man who, with the word humanity in his mouth, calls for this or that thing to be done, the expectation (if there be any determinate expectation) is this, or nothing,—viz. that, supposing the course thus recommended by him pursued, the consequence will be, that, upon the aggregate number of offenders who for the offence in question will have suffered within a given length of time, the aggregate quantity of suffering undergone will be less than it would have been had the course pursued been the opposite.

But, of any such rule as that here in question, the necessary effect (in so far as it has any) is, not to lessen that aggregate quantity of suffering, but to increase it. By whatsoever cause the ratio of the number of known, but yet unpunished, to the whole number of known, offenders, is increased,—in that same ratio, the known and apparent probability of punishment (in the eyes of a person having it in contemplation to engage in the commission of an offence of that sort) is diminished. But, on the mind of any given person, to produce, by means of punishment, an impression of any given degree of strength and efficiency, in proportion as the probability is diminished, the magnitude must be increased. In playing at cards or dice, in buying and selling a life-annuity, or a post-obit, there is not a proposition more incontestable.

Be the offence, be the punishment, what it may,—in proportion as you exclude this or that quibble, this or that device of technical procedure, by which a certain proportion of the whole number of delinquents are saved, and the probability of punishment in case of delinquency thereby diminished, you would put it in your power to make a correspondent and proportionable reduction in the magnitude of your punishment.

What is the same thing in other words,—it is because your law is so full of quibbles, exclusionary rules, and other points of practice, by which impunity is given, and seen to be given, to known delinquents, that (the probability of punishment being subjected to constant diminution) delinquency receives proportionable increase: and, for combating it, the only other resource remaining, and the only resource that a quibble-loving lawyer will endure to hear of, is an increase of the magnitude of the punishment. To make sure, and do at once all that can be done, the punishment which on every such occasion he runs to in preference, is the punishment of death: death, simple death, as being, though not the highest and most impressive which human nature is capable of being subjected to (since afflictive death—death accompanied by torture, might, to an indefinite degree, be made higher,) the highest, however, which, in this age and country, men in general would endure the mention of.

Under the influence of such humanity, this, then, is the sort of repetend that takes place. By the generation and application of penal law quibbles, and of impunity-giving rules, a demand (real or supposed) is produced for addition to the magnitude of the punishment: an addition, and in each case (sooner or later) such an addition, as consists in substituting to the last antecedently-established punishment (be it what it may,) the punishment of death. But, by the increase given to the application of the punishment of death, increase is at the same time given to the propensity and the pretence for the application of other quibbles, and other impunity-giving rules.

Under this system, that which consistency would require (not that, with such humanity, any sort or degree of consistency is compatible,) is, that for offences of all sorts there should never be any other than one sort of punishment, and that one sort death: for, so long as quibbles are in honour, and applied to delinquency in every shape,—delinquency, till the punishment be raised to this its maximum, will go on increasing. Thereupon comes the argument—“Against the act in question there exists a law, by which it is converted into an offence: to this offence a punishment stands annexed, and, this punishment notwithstanding, it was but the other day that an offence of this sort was committed. This punishment is not so great as the punishment of death: substitute to it the punishment of death: and thereupon, if the repetition of the offence be not less frequent than of late years it has been, at any rate the utmost will have been done that can be done towards rendering it so.” This is exactly what, sooner or later, may be said of every offence that ever has been, or can ever be capable of being, committed: and as often as the punishment of death has been proposed to be substituted to the previously-established punishment, more than this never has been said—more than this has never been regarded as necessary to be said—more than this, in substance, has never been capable of being said.

Thus it is, that to one and the same individual, to one and the same weak-minded and narrow-minded, the same half-bigot half-hypocrite lawyer, it belongs to be fond of quibbles, and at the same time to be fond of death: in regard to death, understand, of course, to be fond, not of suffering it, but of causing it to be suffered: to be suffered, or, if not suffered, threatened; and that under such management, as, by causing it not to be expected, causes the threat not to be productive of the effect pretended to be aimed at.

Such is the genesis of lawyercraft: death begets quibbles,* and quibbles beget death: inflicted or not inflicted, when death is threatened, the quiver of lawyercraft is exhausted: perfection, all that is practicable in perfection, is supposed to have been attained.

Under such treatment, the disease either receives positive increase, or at least does not receive anything like that relief which, under a more rational treatment, might have been afforded. In either case, the mode of treatment fails; but the failure is of course ascribed, not to the unskilfulness of the physician, but to the perversity of human nature.

What cannot but be admitted is, that, by the effect of this impunity-giving rule, undue suffering has probably in some instances been prevented. Prevented? but to what extent? To the extent of that part of the field of penal law which is occupied by bad laws: by laws which prohibit that which ought not to have been prohibited, or command that which ought not to have been commanded.

But, in the character of a remedy against the mischief of which such bad laws are productive, observe the nature and effect of this rule. Applying with equal force and efficiency to all penal laws without distinction—to the worst as well as to the best, it at the same time diminishes the efficiency of such as are good: while it is only by accident, and to an amount altogether precarious and unascertainable, that it does away the mischief with which such as are bad are pregnant.

Bring up a good field-piece, or, if that be not sufficient, a four-and-twenty pounder; load it with grape-shot; station it at either end of any one of the bridges; and at any convenient hour about the middle of the day, but without letting it be known what hour, fire it off as many times as may be deemed necessary and sufficient. Doing this, you will do, in furtherance of justice, exactly what, in manifestation of humanity and mercy, is done by nullification in penali, by exclusion of what is called self-accusing evidence, and by whatever other rules and principles there may be, which present the like title to the appellation of impunity-giving institutions.

Not that, if that sort of humanity were in question, which consists in the preservation of the innocent, the service done by these institutions to humanity would be anything like so great as the service which, by the field-piece or the four-and-twenty pounder, if well served (as above,) would be done to penal justice. By the piece of ordnance, the number of killed and wounded must be small indeed, if among them were not found, in some proportion or other, individuals whom, in some instance or other, the penal system had had cause to place upon the list of its transgressors. By the principle of nullification, or the rule which excludes self-criminative evidence, not only are the guilty served, but it is they alone that are served: they alone, and without any mixture of the innocent. For when, though unfortunate enough to have become the object of suspicion, a man is really innocent, does he fly to any of these subterfuges? Not he, indeed, if character be of any value in his eyes: for, by recourse to any of them, what is no secret to anybody is, that so sure as punishment is escaped, character is sacrificed.

3. The fox-hunter’s reason. This consists in introducing upon the carpet of legal procedure the idea of fairness, in the sense in which the word is used by sportsmen. The fox is to have a fair chance for his life: he must have (so close is the analogy) what is called law,—leave to run a certain length of way for the express purpose of giving him a chance for escape. While under pursuit, he must not be shot: it would be as unfair as convicting him of burglary on a hen-roost, in five minutes’ time, in a court of conscience.

In the sporting code, these laws are rational, being obviously conducive to the professed end. Amusement is that end: a certain quantity of delay is essential to it: dispatch, a degree of dispatch reducing the quantity of delay below the allowed minimum, would be fatal to it.

In the case of the fox, there is frequently an additional reason for fair play. By foul play, the source of the amusement might be exhausted: the breed of that useful animal might be destroyed, or reduced too low: the outlawry, so long ago fatal to wolves, might extend itself to foxes.

In the mouth of the lawyer, this reason, were the nature of it seen to be what it is, would be consistent and in character. Every villain let loose one term, that he may bring custom the next, is a sort of a bag-fox, nursed by the common hunt at Westminster. The policy so dear to sportsmen, so dear to rat-catchers, cannot be supposed entirely unknown to lawyers. To different persons, both a fox and a criminal have their use: the use of a fox is to be hunted; the use of a criminal is to be tried.

But inasmuch as, in the mouth of the lawyer, it would be telling tales out of school,—from such lips this reason must not be let out without disguise. If let out at all, it must be let drop in the form of a loose hint, so rough and obscure, that some country gentleman or other, who has a sympathy for foxes, may catch it up, and, taking it for his own, fight it up with that zeal with which genius naturally bestirs itself in support of its own inventions.

4. Confounding interrogation with torture; with the application of physical suffering, till some act is done; in the present instance, till testimony is given to a particular effect required.

On this occasion it is necessary to observe, that the act of putting a question to a person whose station is that of defendant in a cause, is no more an act of torture than the putting the same question to him would be, if, instead of being a defendant, he were an extraneous witness. Whatever he chooses to say, he is at full liberty to say; only under this condition, properly but not essentially subjoined, viz. (as in the case of an extraneous witness) that, if anything he says should be mendacious, he is liable to be punished for it, as an extraneous witness would be punished. This condition, essential in the case of an extraneous witness, is not equally so in the case of a party in the cause; since a party, by being such, stands exposed to a sort of punishment intrinsic to the cause,—viz. the loss of the cause: as where a defendant, in consideration of false responsion, evasive responsion, or obstinate silence, is concluded to be guilty: a punishment, of which an extraneous witness, not having any interest at stake in the cause, is not, on that occasion at least, susceptible.

The curious part of the story is, that the same sort of persons by whom the identity of a question and a thumbscrew is thus dreamt of, or affected to be dreamt of, are commonly the same persons who, when torture is actually applied, and applied to the worst of purposes, that of foreing juries to commit a useless perjury, are delighted with the operation, and proclaim aloud that everything is better than well.

5. Reference to unpopular institutions.

Whatever Titius did was wrong: but this is among the things that Titius did; therefore this is wrong: such is the logic from which this sophism is deduced.

In the apartment in which the court called the Court of Star-chamber sat, the roof had stars in it for ornaments; or else certain deeds to which Jews were parties, and by them called shetars or shtars, used to be kept there; or, possibly, there being no natural incompatibility, both these facts were true. Whether it was owing to the gilt stars, or to the Jew parchments, the judges of this court conducted themselves very badly: therefore judges should not sit in a room that has had stars in the roof, or in a room in which Jew parchments have been kept. Had the conclusion been in this strain, the logic would not have been very convincing, but neither would the mischief have been very great.

In the High Commission Court, the judges sat and tried causes in virtue of a commission: and they too conducted themselves very badly: therefore judges ought not to be appointed by a commision. The logic, though not less rational than in the preceding case, begins to be rather mischievous. Not to be appointed by a commission? How, then, should they have been appointed? But perhaps the commission was too high a one. When a judge conducts himself as he ought to do, the parchment of the commission he acts under is not above three feet high, when unrolled and set up on end: but here it was four feet. The logic wants nothing of being upon a level with what one usually sees in law-books; but still, something is yet wanting to enable it to impress conviction on a fastidious mind.

The Inquisition (meaning the true inquisition, of the Spanish sort,) that used to work with such success in the extirpation or conversion of heretics, was a court in which it was the way of the judge to inquire into the business that came before him: to put questions to such persons as, in his conception, were likely to be more or less acquainted with the matter: and this, whether extraneous witnesses or parties. Now this it is, that was and is a most wicked and popish practice. Judges ought not to put questions: be the business what it may that comes before them, it ought to be the care of judges never so much as to attempt to see to the bottom of it. Here, then, we see the true source of all the odium; viz. not merely of that which has attached itself to this abominable court, but of that which attached itself to those other abominable courts. It was not by sitting in a room with stars or parchments in it; it was not by acting under a commission too high in itself, or that lay on too high a shelf; it was not by either of these causes that the two English courts, held in such just abborrence by all true Englishmen, were rendered so bad as they were,—but by their abominable practice of asking questions, by the abominable attempt to penetrate to the bottom of a cause.

Non-Lawyer. But we in England,—have not we had formerly without complaint, and might we not have still, our inquests of office? Have we not still our grand inquests, and our coroner’s inquests, and our courts of inquiry, and our committees of inquiry, and our commissions of inquiry, and our commissioners of inquiry? and are not they, some of them at least, very good things?

Lawyer. O yes: but then, if they inquire, they do it in the way of inquest or inquiry only, not in any inquisitorial way: that is (observe of course,) not to put troublesome, vexatious questions, such as would make a man accuse himself: in short, whatever the business be, not to get to the bottom of it. This, at least, is among those things which they ought not to do: for no sooner do they make any such attempt, than they become inquisitors; popish, Spanish inquisitors, or worse: and those who, had the truth come out against them by other means, would have been convicts, become innocent and persecuted men; victims, or intended victims, of persecution, tyranny, and so forth.

Of the Court of Star-chamber and the High Commission Court taken together (for to the present purpose they are not worth distinguishing,) the characteristic feature is, that, by taking upon them to execute the will of the king alone, as made known by proclamations, or not as yet known so much as by proclamations, they went to supersede the use of parliaments, substituting an absolute monarchy to a limited one. In the case of the High Commission Court, the mischief was aggravated by the use made of this arbitrary power in forcing men’s consciences on the subject of religion. In the common-law courts, these enormities could not be committed, because (except in a few extraordinary cases) convictions having never, in the practice of these courts, been made to take place without the intervention of a jury, and the bulk of the people being understood to be adverse to these innovations, the attempt to get the official judges to carry prosecutions of the description in question into effect, presented itself as hopeless.

In a state of things like this, what could be more natural than that, by a people infants as yet in reason, giants in passion, every distinguishable feature of a system of procedure directed to such ends should be condemned in the lump, should be involved in one undistinguishing mass of edium and abhorrence; more especially any particular instrument or feature, from which the system was seen to operate with a particular degree of efficiency towards such abominable ends? If, then, in the ordinary courts of law, the practice with respect to the admission of this source of information was wavering, or the opinion of the profession hesitating, nothing could be more natural than that the observation of the enormous mass of mischief and oppression to which it was continually made subservient, should turn the scale. Of this instrument in the hand of justice, or of persons in the place of justice, what was the characteristic property? Its sharpness. But at that particular conjuncture, employed as it was employed, its usefulness, great and pure as it would have been in other times, was converted entirely into mischief: its virtue was spent in the giving energy and efficiency to a system of operations bostile to the security and happiness of the body of the people. In those days, the supreme power of the state was de facto in the hands of the king alone: for as to that of parliament, it had never been anything better than a contingency; and in those days it was a contingency which it was intended, by those on whom it seemed to depend, should never happen: the improbability of its happening, must in those days, in the view of everybody, have been extreme. The king’s power, then, was de facto absolute: being employed and directed against property, liberty, conscience, every blessing on which human nature sets a value,—every chance of safety depended upon the enfeeblement of it; every instrument on which the strength of that government in those days depended—every instrument which in happier times would to the people be a bond of safety, was an instrument of mischief, an object of terror and odium, which, could it have confined itself to the particular application then made of the instrument, and not have extended to the instrument itself, would have been no other than just, and reasonable, and well grounded.

As to the ecclesiastical tribunal called the Inquisition, a circumstance that seems not generally understood, is, that the procedure was little or nothing more than the ordinary procedure employed in the same countries in the higher classes of criminal cases.* Bad as the practice was, what there was peculiar to it belonged, therefore, not to the adjective system, but only to the substantive laws (the laws against heresy) to the exccution of which it was applied. Besides the close imprisonment and the practice of torture, which was common to both, there was indeed, in the forms employed by the ecclesiastical tribunal, a sort of theatrical exhibition, a sort of preaching to the imagination through the medium of the eye, beyond anything that in that way has ever been applied to non-ecclesiastical offences. But this, instead of reproach and odium, would, if viewed in the character of a means to an end (abstraction made of the end,) be considered as an exertion of ingenuity worthy of praise.

Are not Romish inquisitors men?—do not they eat and drink? Is that a reason why Protestants should do neither? In all courts, well or ill organized, in which justice, or what passes for it, is well or ill administered, must not there be a multitude of features in common? The business is, to distinguish the good ones from the bad: and where, upon the whole, the result appears vicious, to observe in what part of the legal system the defect lies, the substantive, or the adjective: whether the means employed are in themselves bad, or bad only in respect of the badness of the end.

If the ends pursued are mischievous, the means employed in the pursuit of them cannot, in so far as they are fit for the purpose, but be likewise mischievous. But upon which of the two objects, in this case, is the mischief to be charged? Not upon the means, surely, but upon the ends. Of the means, nothing more can rationally be required, than that they shall be such as shall not be productive of any mischief, other than that which results from their subserviency to the ends. If you are determined upon war, take care that it be not without good cause: but think not,—no man that ever acted in the character of a statesman ever yet thought, was ever weak enough to imagine, so much as in a dream,—that the strength of his army could ever take anything from the goodness of his cause.

The perfection of a sword is in its sharpness: the sharper it is, if employed against friends, the more mischief it would do, would this be a reason for discarding the use of sharp swords, and using none but what had been blunted? No! the dictate of reason is,—let your sword be sharp, the sharper the better; but take care not to wound a friend with it.

In the hands of an assassin, as in the hands of a constable, an oaken staff will give a harder blow than a deal one; but on that account would it be reasonable to say that, bulk for bulk, and shape for shape, an oaken staff was a worse weapon than a deal one?

What cannot be denied, is, that if it were possible to keep all oaken staves out of the hands of malefactors of every description, putting deal ones in their room, and giving to constables the exclusive use of oaken staves, the effect would be a desirable one. Pursuing the allusion,—to give the benefit of the admission of self-convicting evidence to him whose aim it is to give execution to bad laws, would be, it may be said, to take the deal staff out of the hand of the malefactor, and add to his power of doing mischief by the substitution of the oaken one. But there would be the greatest possible incongruity in saying, such and such laws shall not have the benefit of self-convicting evidence, such and such others shall. The laws to which this benefit is denied, are they good laws? then why put it out of your power to execute them? Are they bad laws? then why are they suffered to subsist?

Seeing the two descriptions of persons whose interest is served by the exclusion put upon this species of evidence, viz. evil-doers of all sorts, and, under the technical system, lawyers of all sorts, in the character of their natural accomplices, partners, and abettors,—we see the two descriptions of persons in whom the exclusionary rule beholds its natural and indefatigable adherents, advocates, and supporters. But in the fraternity of lawyers, we behold the only persons who are in the habit of speaking—the only persons who, if their words are to be taken for it, ever are or can be sufficiently well qualified to speak, in the character of censors, in the way of approbation or disapprobation of any existing rule of law: the persons of whom, speaking of the matter of fact, it must be confessed (how much reason soever there is for wishing that it were otherwise,) that it is of their voices that on this subject the public voice is composed.

Here then, considering the propriety of the rule as a question to be tried at the bar of the public, here is a question to be tried, and to be tried and decided upon scientific evidence: and the persons of whose testimony this body of evidence is composed, are all of them persons who, considered in the character of witnesses, speak under the bias of a sinister interest.

These self-hired witnesses, speaking thus by thousands, all of them in the same strain—and amongst them so many, each of whom is in possession (and in the continual exercise) of the faculty of giving that sort of official judicial testimony which has been rendered absolutely conclusive, no testimony on the other side being suffered to be delivered,—can it be matter of wonder, if the judgment of the unblassed part of the public should by such a torrent be overborne and misled?

Again,—can it be matter of wonder if a non-lawyer, making, in the character of an occasional speculator, an accidental excursion upon this ground—upon ground lying thus within the acknowledged demesne of lawyers—should join without reflection in the cry, recognising (as is so natural) in the unanimous suffrage of such a multitude of counsellors, the voice of truth, as well as the means of safety? And thus it is that in this, as well as so many other parts of the filed of jurisprudence, the public voice is composed: the principal parts by a set of hired performers; the chorus by a band of dupes in the character of amateurs.

§ 4.

History of the rule excluding self-criminative evidence.

The authorities on this subject present, as usual, darkness visible: but, where the subject presents nothing better, even to see that everything is dark, is more satisfactory than not to see.

The earliest dicta which the industry of Viner could discover, are of no earlier a date than the thirty-second of Elizabeth. Here we behold, and for the first time, the maxim which, with its variantes, has since become so famous: Nemo tenetur scipsum prodere; in later times, accusare.

It presents itself in two almost contiguous cases: the first, according to the date given to it, is in the thirty-second year of Elizabeth, in the Common Pleas; the report by Leonard: the other, in the thirty-second and thirty-third year of the same reign, in Michaelmas term, in the King’s Bench; two reporters here, Cooke, afterwards judge, and Serjeant Moore.

In both cases, it was an impertinence: in both cases, the assertion conveyed by it was a notorious falsity. In the only case in which a decision appears to have been given (for in the earliest, the Common Pleas’ case, time was taken for decision, and none reported,) the decision could not have turned upon the rule.

In both cases, the shape in which the cause came before the court was that of a motion for a writ of prohibition to be directed to the ecclesiastical court, on the ground of prætergression of jurisdiction: in both cases, the alleged prætergression consisted in sustaining a suit for incontinence, proceeding therein by an endeavour to examine the defendant upon his oath: in the court in which a decision was pronounced, the prohibition was granted.

But in that case the decision had no need of any such, or any other, general maxim, true or false. In any other sorts of causes than the two particularly specified (viz. matrimonial and testamentary,) administering an oath to the defendant was a practice expressly interdicted to that court, by two writs that are still to be found in the Registrum Brevium; the book of the highest authority of any that compose the library of jurisprudential law.

Yet, in neither case is any intimation given of any reference, made by either court or counsel, to this most irrecusable of all authorities: neither in the case in which it was conformed to, and the prohibition issued accordingly, nor in the prior case in which nothing was done. In this prior case, the reporter (Leonard) gives indeed a reference, but apparently as from himself: and then not to that authoritative repository of judicial documents, but to Fitzherbert’s Commentary on it.

Being probably as yet without a precedent, the application that had been made to the inferior court, the court of Common Pleas, in the case above referred to, had produced nothing but doubts. The application thus made to the superior court, the court graced in intendment of law by the presence of the king himself,—its subordinate having no presence higher than that of the king, without any such adjunct, to boast of,—had a more successful issue. Heartened up by the authority and the Latin of her Majesty’s attorney-general, the great Sir Edward Coke, they pronounced boldly that no such proditio should take place.

Leaving out of the question technical and supernatural causes, and looking out for natural psychological ones, two present themselves as competent, one or both of them, to the production of this effect. One was, jealousy of the power of these spiritual rivals;—another, a sort of personal and prudential apprehension of the lengths to which such impertinent curiosity, if unchecked, might extend itself, on ground of such pecular delicacy.

I. In their anxiety to obtain custom, and to make the most of it when obtained, the courts of common law had concurred, in the manner above explained, in giving encouragement to mendacity, by exempting from the obligation of an oath, and thence from the punishments (religious, moral, and at length political* ) attached to the breach of it, the testimony of parties for or against themselves. Equity, spying in this deficiency an inlet opened to successful rivality, had taken upon herself to withdraw this licence from the defendant’s side of the cause, thereby giving to the plaintiff the till then unexperienced advantage of the defendant’s self-disserving testimony. The jurisdiction of equity had not, however, ventured to extend itself beyond the civil class of causes, nor in that to the whole extent of the field of jurisdiction.

The advantage thus possessed by equity, one of the branches of English Rome-bred judicature, had all along been possessed by another branch, the ecclesiastical. But from some uncertain, though at any rate early period, a resolution had been taken by the common-law courts, that the jurisdiction of the ecclesiastical courts, so far at least as it was to be enforced by the examination of parties upon oath, should not extend to any other causes than such as came under the denomination of testamentary and matrimonial causes. In the Registrum Brevium, a writ, accordingly, is to be found, in which the limitation thus put to the jurisdiction of these courts is assumed.* Moreover, Fitzherbert, in his Commentary on the Registrum Brevium, takes notice of this same limitation and these same terms.† Not that the limitation has been adhered to in practice: for to this hour, the jurisdiction of those courts, together with the power included in it of taking such examinations as above, has a much wider range.

Ever since an early period of the reign of Henry VII., a court had existed, long known by the name of the Court of Star-chamber (a court of criminal jurisdiction, and that to a vast extent,) in which the power of examining the defendant upon oath had all along been exercised.‡

During the whole of the reign towards the close of which the oracle was delivered, this court had been a busy one. In every one of the several reports, it is delivered in the form of a general or universal proposition; no exception, or intimation of any exception, being annexed to it. Taking it thus as it stands, it was, in respect of verity, exactly upon the footing of a proposition denying that the sun ever shone at noon-day.

At that time of day, the Court of Star-chamber, though since abolished, rested upon as firm a foundation as any other of the courts: the decisions pronounced were as uncontested law, as those of any other court: in that character they are reported by all the reporters, indiscriminately with those of the several other courts. Being, under the tyrannical and extortions reign of Henry VII., instituted to serve as a new and more powerful instrument of the crown, unclogged by juries, it was all along an especial favourite.

Against the power of such a court, a power the exercise of which was every day’s practice, it may be imagined of what use or avail could be this or any other proposition, though couched in ever such good Latin, denying the existence of it.

The oracle is of the rhetorical cast, which is as much as to say, in the natural style of oracles: and having, as it was probably designed to have, any one of half a dozen meanings, whichever happens to be most convement to the purpose, it is in proportion guarded against the misfortune of seeing its truth disproved. But if the import of it be, that no question shall be put to a man, the answer of which, if true, may tend to his conviction, the truth of it stands further disproved by the then and still existing every day’s practice of another sort of court. I speak of the court established by the statute of Philip and Mary,∥ the court consisting of a single justice or any number of justices of the peace, for the purpose of taking the preparatory examination of the defendant and others, antecedently to the trial by jury, in the case of felonies. At the institution of this preparatory judicature, the Star-chamber, with its practice of examining the defendant, being in full vigour, and no restrictive direction given, what could be the intention of the legislature but that the mode of examination pursued every day in the Star-chamber (not to speak of the nursery-chamber, and every other room in which common sense was listened to) should be pursued? The examination of the supposed felon was to be taken: but to what end take his examination, or the examination of any other person, but to find out the truth—meaning, of course, the whole truth? “The evidence you shall give, shall be the truth, the whole truth, and nothing but the truth:” such is the direction given, probably at that time, certainly at the present time, to every sort of person when examined in the character of a witness. What reason for supposing it so much as possible, that, in the reign of Philip and Mary, when (in imitation of the course which the retainers of the Spanish monarch had seen pursued all over Europe) direction was given for extracting the testimony of the defendant, any wish so silly should have been entertained as that so much of the truth as should tend to his conviction—that is, to the only direct end and object of the suit—should be left out of it?

Oh! but (says somebody) the practice actually is, under this act, to be cautions of extracting from the defendant any testimony the tendency of which may be to his prejudice; and even, lest any such testimony should escape him unawares, to give him warning to keep his lips well closed. I can very easily believe it: viz. so often as, and no oftener than, in the eyes of the examining justice, the general praise of humanity, and the popularity to be gained by it, is of more value to him than the advantage, public and personal, attending the discovery of the truth in that individual instance. But the question at present is, not what is the practice of modern times, but what was the practice of those early times; viz. in the reign in which this effusion of learned rhetoric is first known to have made its appearance? To understand this, if it be worth understanding, turn to the State Trials; turn to the case of Udall, the puritan minister,* prosecuted and teased to death, in the style of the Spanish Inquisition, in those days of supposed English liberty. Observe there eight personages, and among them two peers and great officers of state, a bishop, a chief justice of the King’s Bench or Common Pleas, the chief justice taking the lead (between three and four month-before the emanation of this writ,) all pressing him, urging him by threats and promises to take an oath, for the purpose of having his testimony extracted from him: he saying that he had already been punished upon such testimony, and (that he might not fall into the same scrape again) deciming to take the oath.

The guilt imputed consisted in the writing and publishing of a book, in which the truth of his religious persuasion was maintained. Assuming this to be guilt, his guiltiness is out of all dispute: in the relation we have of the proceedings (for it is his relation) he avows it. What evidence more satisfactory could have been given of it, than his inability to deny it with any prospect of success? Here, then, was no injustice: of what injustice there was (and sure enough there was no want of injustice,) the seat was in the substantive branch of the law; it consisted in the converting into a capital crime the act of him who makes known, to use the words of Scripture, “the reason of the faith that is in him.”

Thus, then, is it with this famous aphorism: at the time when first delivered, it was sent out in diametrical opposition to notorious truth. But having once found its way into the books, there it lay in petto, in a dormant state, ready, under a favourable set of existing circumstances, like a fly bottled up in spirits, to be revived at any time. When first brought out to view, we have seen it in the condition of “the stone which the builders rejected:” we see it now triumphant, in the state of “the headstone of the corner.”

At the time when brought out, to what purpose was it brought out? To the purpose of displaying the rhetoric and the latinity of the phœnix of the law. To the purpose of the cause, it was altogether useless: the object of the application was, to quash the proceedings of the ecclesiastical court, on the ground of excess of jurisdiction: to prove the excess, nothing more was necessary than a reference to the lawyer’s gospel, the register of writs. What could have occasioned the time taken for advisation, is beyond conjecture.

But though, in the unlimited latitude given to it, the maxim was widely and notoriously untrue,—yet, from that bad authority, and the good but unnoticed authority (the writs in the register,) taken together, there seems reason enough to conclude, that at common law, on all trials in which juries bore a share, the practice of administering an oath to the defendant, and therefore putting questions to him (and particularly in criminal causes,) had never been in use. For in both the writs, the stress of the censure is laid on the administration of the oath; and in the latter it is expressly stated as being contrary to the custom of the nation.

If, then, the application of it had been confined to that part of the law designated on some occasions by the name of the common law,—viz. the practice of the common-law courts,—the truth of the maxim appears indubitable; at least so far as concerns the non-administration of an oath to the defendant, in cases deemed to belong to the class of criminal cases, and subjected to the cognizance of a jury.

But in the maxim, nothing is said about the oath: it goes further, and, in as far as any determinate signification can be put upon it, it puts an equally decided negative upon the practice of putting particular questions to the defendant, with or without the oath. But on this head we are left altogether to seek for evidence. Because no oath was administered to the defendant, it follows not by any means that no particular questions were put to the defendant. In capital cases, to the witnesses called by the defendant no oath was administered till more than a century after;† yet witnesses for the defendant, and those, too, speaking in answer to particular questions, could not but have been heard.

In those dark times, in which moral conduct was so much worse, and terror derived from supernatural sources so much stronger and more prevalent, than at present, the ceremony of an oath appears to have been a tremendous bugbear; so tremendous, that, by this consideration concurring with others, a doubt presents itself whether originally an oath used to be administered at all to witnesses in any causes, civil or criminal, on the plaintiff’s any more than on the defendant’s side.

In the treatise penned by Chief Justice Britton, under Edward I., and, upon the face of it, purporting to constitute a code of law sanctioned by that king’s authority, much is said of perjury. But the crime there spoken of is, throughout, the crime of the judge, or other official person; nowhere the crime of the witness.

Subsequently to the statute of the fifth of Elizabeth (the first statute by which punishment was annexed to testimonial perjury,) cases relative to perjury occur in plenty in the books: antecedently to that point of time I cannot find one.

Investigating a point of this sort is groping in thick darkness. Books of reports, confined in their subject-matter to transactions at trials before a jury, are but of yesterday: in no instance, in any of the report books, containing the accounts of legal transactions of a date prior to the above, is any account of any such trial to be found: add, nor (in relation to any of the points here in question) of any transaction carried on in the course of any such trial.

Of an account of the proceedings in any trial before a jury, of a date prior to that here in question, the only example extant is of the date of 1554; about nine years prior to the date of this statute. It is the trial of Sir Nicholas Throckmorton for treason, in the first year of Queen Mary: for treason supposed to be committed by participation in the insurrection for which Sir Thomas Wyat had suffered death. It is reported from Hollinshed’s Chronicle; and the discourses (as reported) wearing the same dramatic form as on a modern trial, the words appear upon the face of them to have been taken down, as if in short hand, from the mouths of the interlocutors.

Besides a variety of interesting particulars, having no immediate relation to the present subject, it affords very material information in relation to two points that have here been brought to view.

1. In the first place, not only is the defendant heard in his own defence, at his own instance, but questions upon questions are put to him without reserve, in the same manner as if to any extraneous witness: questions, having as plainly for their object the extracting answers of a nature to criminate him, and lead to his conviction, as any questions which a man, aiming professedly at that object, could devise.

Answer given directly and in detail: not a question objected to: no complaint of the illegality, or so much as the hardship of the practice.

2. In the next place (what bears directly upon the point here in question,) it affords no slight reason for suspecting, that at this time (in capital cases at least) the practice of administering an oath to a witness for the prosecution, was either a novel proceeding, or a ceremony the performance of which was optional on the part of the judge.

A written confession made by Cuthbert Vaughan—a man already convicted of the same treasonable conspiracy as that of which the defendant Throckmorton stood indicted (Vaughan still living and producible,)—had been read in the first instance; a proceeding alike repugnant to the manifest principles of reason and justice, and to the present practice. Then ensues the following dialogue.*

“Attorney-General. Why, will you deny this matter? . . . . You shall have Vaughan to justifie this here before you all, and confirm it with a booke oth.

“Throckmorton. He that hath said and lyed, will not, being in this case, stick to sweare and lye.

“Then was Cuthbert Vaughan brought into the open court.

“Sandal or Sandell [Clerk of the Crown.] How say you, Cuthbert Vaughan, is this your own confession, and will you abide by all that is here written?

“Vaughan. Let me see it and I will tell you.

“Then his confession was showed him.

“Attorney. Bycause you of the jury the better may credite him, I pray you, my lords, let Vaughan be sworne.

“Then was Vaughan sworne on a booke to say nothing but the truth.”†

Written confessions and hearsay evidence produced of the supposed testimony of other persons, producible and yet not produced. Exclusion put, and without the shadow of a pretence, upon the testimony of a person then present, and whose testimony had been called for by the defendant. Acquitting him, the jury were prosecuted for it in the Chamber, and punished by ruinous fines.

Execrably flagitious in these and other respects, the proceedings were not the less legal. If the station of judge does not give legality to the proceedings of him who acts in it, how can any proceedings be legal?—Here we have the chief justice of the King’s Bench, another judge of the same court, a judge of the Common Pleas, a master of the Rolls, and a master of the court of Wards and Liveries, all learned, in the law sense; besides a couple of peers, and as many privy counsellors, the lord mayor of London, and a knight; all sitting at Guildhall as commissioners.

Illegal? Oh yes, if irreconcilable to an antecedent series of uninterrupted practice: but in this instance there is not a single case to which it can be opposed. It is the only one we have.*

No practice could come in worse company, than the practice of putting adverse questions to a party, to a defendant,—and in a criminal, a capital case, did in that instance. If, however, the practice be itself subservient to the ends of justice, the having been resorted to in company with others of an opposite tendency, is a circumstance which, how natural a cause soever for reprobation, can never be a just one.

Where no oath has been taken, false and mendacious testimony there may be in any quantity, but perjury there cannot be. The causes have been seen, by which a suspicion at least is induced, that the practice of administering oaths to witnesses, and consequently the possibility of committing testimonial perjury, was, at the time of passing the earliest of the statutes relative to this offence, of no very ancient date. If so, it could not be true, that “perjury” in a witness was “punishable” (to use the words of Lord Coke) “by the common law.”†

True it is, that in that same passage he gives us the history of a case (a Star-chamber case,) tenth of James I., ad 1612, in which it was resolved that perjury in a witness was punishable at common-law. But the very fact, that a resolution to that effect was at that time necessary to be passed, serves, I must confess, to strengthen the suspicion suggested by the former considerations, that it was not true. If, antecedently to the statute, the punishment of perjury had (elsewhere at least than in the Star-chamber) ever been exemplified, the occasions would have been too frequent to leave the matter involved in any such doubt as it could require an express resolution to remove.

To what purpose, then, be at the pains of resolving that perjury was punishable at common law, fifty years after the passing of the statute that had been made to punish it?—The answer is,—because (as we learn from Lord Coke in the same place) upon taking measure of the statute about fourteen years before, it had been found too narrow.‡

Among the various devices in use with English judges for stealing legislative power, this may be mentioned as one: when a statute, which as far as it goes is to their liking, is found not large enough, or has been unmade by the authority that made it, they fill up the deficiency with an imaginary mass of common-law. Common-law, a creation of then own imagination, forms thus a sort of plenum, upon which, as often as a vacuity is to be filled up, they draw at pleasure.

§ 5.

Of self-onerative, self-disgracing, and self-discrediting evidence.

I. Self-onerative evidence.

The distinction between self-criminative testimony and self-onerative is here employed for the purpose of its corresponding to a distinction to which, in the technical system of procedure, so many important consequences have been attached: I mean, the distinction between criminal cases and civil cases.

It is on this occasion that self-criminative evidence calls for a distinction of no small practical importance:—1. Testimony self-criminative to the effect of ultra-pecuniary punishment; and 2. Testimony self-criminative to the effect of punishment not more than equivalent to pecuniary:—a distinction which seems sufficiently explained by the terms in which it is here expressed.

Unless it be where, and in so far as, the testimony comes under the appellation of self-disgracing or self-discrediting,—self-criminative evidence, when in its penal effects limited to punishment not ultra-pecuniary, will (it is evident) to that or any other purpose, stand on no other footing than testimony simply self-onerative. To the extent, therefore, of that part of the scale, the two species, self-criminative and self-onerative, coincide.

If, on the score of any injury, or other transgression, the delinquent is adjudged to pay in each of two cases a determinate sum (say £10,) his unwillingness to subject himself to that obligation will not be less, in the case where the money, when taken out of his pocket, is put into the pocket of his personal adversary, the party injured, than in the case where it is put into the pocket of another party, with whom he has no quarrel; as, for example, the sovereign, whether for his own benefit, or for the benefit of the community at large. On the contrary, if there be a difference, it is in the case where the amount of the quantity of the matter of wealth lost to himself is so disposed of as to add to the enjoyment of his adversary,—it is in that case, that his unwillingness to deliver the testimony which is to be productive of this effect, will naturally rise to the highest pitch.

If,—in the case where the effect of the conviction, if brought upon himself by his testimony, would be to subject him to the payment of the £10 to the use of a person unobnoxious to him,—his testimony, even on the score of the unwillingness and vexation supposed to be attached to the delivery of it, were to stand excluded; while, in the case where the effect of it would be to subject him to the payment of an equal sum to the use of a person more or less odious to him, his testimony (notwithstanding the at least equal unwillingness and vexation that might well be supposed to be attached to the delivery of it) were not to stand excluded; flagrant surely would be the inconsistency with which, in the judgment of every mind not prepossessed and perverted by technical ideas, an arrangement to such an effect would appear chargeable. Give now to the first of the two cases the appellation of a criminal case—to the other, the appellation of a civil case: will the real inconsistency thus seen to exist between the two arrangements of law, be at all diminished by these two words?

Among the different modifications of self-prejudicing evidence above distinguished, the case in which the pretence for the exclusionary rule is most plausible, is evidently the case where the testimony is self-criminative, to the effect of ultra-pecuniary punishment,—where the punishment, to which by the testimony in question a man exposes himself, rises to a degree of afflictiveness above the utmost to which pecuniary punishment, in the highest degree in which a man can be made susceptible of it, is regarded as equivalent.

But even in this case it has been shown, that, by the vexation (be it what it may) attacked to the production of the effect by means of evidence of this particular description, in contradistinction to other evidence at large (i. e. to extraneous evidence,) no sufficient or proper ground for the exclusion of the evidence can ever in any instance be constituted. A fortiori, then, neither can it, in the case where, in respect of the prejudicial effect of it to the deponent, the evidence is simply self-onerative, or no more than equivalent to self-onerative.

2. Self-disgracing evidence.

On the subject of self-disgracing evidence, a distinction must again be noted. If, in the case where the evidence is self-criminative, exposing the deponent to punishment (i. e. to suffering, on account of some transgression of the law of the state, or of the received rules of morality,) the effect of the punishment (whether in respect of the transgression to which it is attached, or in itself) is to subject a man to disgrace;—a question may be started, whether the effect of such disgrace be, or be not, to raise the punishment above the level of the most onerous pecuniary obligation. But, for the practical purpose of determining whether the evidence in question ought or ought not on this account to be excluded, the inquiry would be purely speculative and useless; it being already understood, that by no degree of magnitude on the part of the punishment can a sufficient ground be formed for the exclusion of self-criminative evidence, howsoever modified.

A use that has been made of the appellative self-disgracing is this: where the offence to which the punishment is attached is of a disgraceful nature,—by whatever testimony a man exposes himself to suffer as for that offence, he exposes himself of course to the disgrace attached to it.*

Thus far, then, self-disgracing testimony coincides with, and is included under, self-criminative. But suppose the punishment already inflicted. Here we see a case in which, in the course of a man’s testimony, the fact of his having suffered this punishment, and thence of his having committed this transgression, may be brought to view. Here, then, his testimony, though it cannot (to the effect of its being considered as exposing him to suffer punishment of a disgraceful or any other nature) be ranked with propriety under the head of self-criminative testimony, may, with not the less propriety, be termed self-disgracing. To distinguish it from the case where, by the same means to which a man’s testimony exposes him to disgrace, it exposes him to punishment in other shapes,—it may be termed, simply self-disgracing.

If, by testimony which, besides being self-disgracing, is self-criminative, no proper ground for exclusion can be constituted,—much less can any such ground be constituted by testimony which is self-disgracing simply; self-disgracing without being self-criminative. Not so, however, says English law.†

A man is produced as a witness on either side: on a former occasion he had been convicted of an offence, of which, if ascertained, the effect would be to diminish his credibility—to weaken the force of the persuasion of which his testimony might otherwise be productive. Shall the question be put to him, whether it be true that, on the occasion mentioned, the conviction in question took place? No; says a rule of English law. No? Why not? Because this is making a man disgrace himself—making a man expose himself to shame. And why not make him expose himself to shame, if he has done what by the supposition he has done—that to which the opinion of mankind, following in this respect the finger of the law, has annexed disgrace—properly and deservedly annexed it? Oh! (says the prejudice) because a self-disgracing, or call it a self-degrading answer, is a sort of self-accusing, self-convicting answer: if it be not exactly the same thing, it is analogous to it—it is like it, which is enough for us.

Still the same delusion, still the same shortsightedness, still the same inconsistency and self-contradiction. The witness has been convicted, say of perjury: if his disgrace be offered to be proved by other evidence—by such evidence as the law chooses to receive (say, by the record of his conviction,)—if this be the case, it is all well: the evidence cannot be disallowed. It is not to the act of disgracing him that the prejudice opposes itself; it is only to the channel through which the disgrace is conveyed. Disgraced he may be: disgrace him you may, and welcome:—only he must not be disgraced out of his own mouth.

In this case (as in the case of self-convicting evidence), if so it happens that he has disgraced himself in this same way at some other time,—if any other person affirms that in his hearing he has acknowledged the having undergone any such conviction, or the penal consequences of it,—evidence of this loose extrajudicial confession may be produced and exhibited to his face. It is not that the fact is not to be proved; but it is not to be proved any otherwise than in a bad way: it is not to be proved by immediate evidence—it is only to be proved by unoriginal, by hearsay evidence: it is not to be proved by testimony the whole of which is covered by the sanction of an oath—it is only to be proved by evidence of which the half only is covered by the sanction of an oath.

To what end seek to exempt a man from this accidental shame? It is a suffering that arises out of his delinquency,—and in the nature of the case will bear a proportion (as exact a one as can usually be obtained) to the degree of his delinquency: by the example it affords, it will render itself subservient to the main end and purpose of punishment—the deterring others. In trials in general, publicity is a circumstance not deprecated, but aimed at, and generally approved. Beneficial as it is recognised to be on all other occasions, what should render it otherwise than beneficial on this? The evil, then, is no other than a part, though an accidental part, of the evil of punishment,—that evil which, by the supposition necessarily involved in the institution of the penal law, is outweighed by a greater good. The publicity of punishment is one of the constant and applauded aims of the law upon all occasions, it is only by that part of it which is public and known, that the punishment does any good: so much of it as is unknown, is so much pure evil, so much misery in waste. The publicity of its punishments is one of the constant aims of the law on all occasions, on the particular occasion in question it is attended with a particular use, over and above every use with which in general it is attended: to what end, with what sort of consistency, seek on this occasion to cover that shame, which on all other occasions it is the object of the law to uncover? To what end seek to cover it now,—now when the uncovering of it is demanded for a particular useful purpose?

The inconvenience of the rejection is this: either you cannot prove the fact at all—or if you do prove it, you prove it by evidence the production of which is attended with an additional and useless expense.

The witness in question is, by the supposition, on the spot: get the evidence from him, you get it without any additional expense or vexation in any other shape. If it is not from him that you get it, and yet you get it notwithstanding, the evidence you get of it is a record: a great mass of parchment, which, or a copy of it, is to be lugged into court, at I know not what expense. To avoid loading this guilty person with an ideal suffering, you impose a real suffering upon some innocent one Better for the party perhaps, to let the suspected evidence go for unsuspected, than to purchase the faculty of throwing the suspicion on it at so heavy an expense.

This is not all. Perhaps the record is not producible: there is no time for it. The stain upon the character of the witness does not come to the knowledge of the party till a few days before the day appointed for the trial: the trial cannot be put off for this purpose, or not without a disproportionate expense: and the interval between the day of the discovery, and the day appointed for the trial, affords not time sufficient for the production of the necessary parchment.

Two errors are here combined—two opposite excesses. When the fact of the conviction is suffered to appear, the witness is rejected absolutely: when the truth is thus prevented from coming to light, the tainted testimony is palmed upon the jury for sound. What says reason all this while? That in this case, as in all others, the testimony should be suffered to make its way to the ears of those to whom it belongs to judge, but not without the cause of suspicion stamped upon it, that they should be free to hear it, and free when they have heard it, to bestow upon it such credence as shall appear to them to be due to it.

But cases are not without example, in which, although no punishment at all be attached to the act, or none the application of which could with propriety be trusted to a promiscuous hand, disgrace is nevertheless attached to it. Take for example fornication, especially on the part of a female never married, and of character otherwise unspotted: take, again, adultery, especially on the part of the wife, whose infidelity, but for the testimony in question, might have remained unsuspected, and the peace of the husband undisturbed.

In a case of this sort, no good being attached to the disclosure, but so much pure evil,—the vexation (abstraction made of the demand produced for the testimony, by the cause for the purpose of which it is proposed to be called for) would be not barely preponderant, but pure, without anything in the opposite scale to weigh against it.

Shall it, then, be exacted, or excluded? The answer depends upon the principle already laid down in a former place. Exacted, if the mischief from misdecision for want of the evidence would be preponderant over the mischief consisting of the vexation produced by the disclosure: excluded, if the preponderance be on the other side. Exact it, if (for example) but for the benefit of this evidence, the defendant (the prosecution being capital, and he innocent) will, over and above the disgrace attendant on conviction, be unjustly put to death: exclude it, if the question be no more than whether the defendant be liable to pay a penalty, or an alleged debt, to the amount of a few shillings.

In the two opposite cases here exemplified, the propriety of admission in the one case, of exclusion in the other, will scarcely raise a doubt. Between these two extremes to draw a line of demarcation, will be (as already observed) a task, to a certain degree for the legislator, and, where his means of discrimination terminate, for the judge.

3. Self-discrediting evidence.

The range of self-discrediting testimony is yet more narrow. The term may serve to signify self-disgracing testimony of any kind, so far as it is considered as productive of this particular effect.

Far from constituting of itself a proper ground of exclusion on the score of vexation, it is not in the nature of it to contribute anything to the formation of any such ground on that score. Vexation—all the vexation which it is in the nature of such testimony to be productive of in the breast of the deponent, consists in the disgrace. As to his testimony’s being believed or not believed (it being by himself that whatever evil consequences may result from it are to be borne;) if it were not, in any part of it, to be believed—if, in respect of its effect, it were in so complete a degree self-discrediting,—his vexation would be but so much the less. But such (as every one sees, and as we have seen already) is not the effect of acknowledged untrustworthiness on the part of the deponent, where it is on his own shoulders that the burthen of the decision falls. On the contrary, the more untrustworthy he appears as to other points, the surer everybody is, that whatever part of his evidence is understood by him to operate to his own prejudice, is true.

§ 6.

Case of evidence self-disserving aliâ in causâ, considered.

It may happen that the cause, by means of which the deponent exposes himself to the mischief attached to the self-prejudicing evidence, is not the cause in hand, but another cause, viz. a cause already in prospect, or a cause liable to be produced by the disclosure made by the evidence.

In respect of the quantum of vexation, the variation here in question will make no difference.

But, compared with the opposite case (with the case in which the mischief consists in an unfavourable termination of the suit actually in hand,) the reasons in favour of admission, the reasons against the exclusionary rule, operate in this case with redoubled force.

Against the evil of the self-regarding vexation produced by the self-disserving testimony of a party, there is no other good to be set than the advantage attendant on a right decision, instead of misdecision or failure of justice, in that one cause. But in the case where the proposed deponent is an extraneous witness,—in addition to that same lot of advantage (in so far as the testimony is in this respect efficacious) there comes the advantage attendant on a right decision, instead of misdecision or failure of justice, in another cause: to wit, the additional cause to which it is the tendency of such disclosure to give birth.

Prosecution for robbery: John Stiles examined in relation to it, in the character of an extraneous witness. A question is put, the effect of which, were he to answer it, might be to subject him to conviction in respect of another robbery, attended with murder, in which he bore a share. On the ground of public utility and common sense, is there any reason why the collateral advantage thus proffered by fortune to justice should be foregone? Refusing to compass the execution of justice by this means, by what fairer or better means can you ever hope to compass it?

The punishment he will incur, if any, will be a distinct punishment, for a distinct offence; an offence which, at the institution of the suit, was perhaps never thought of.

Be it so: and should this happen, where will be the mischief? wherein consists the grievance? That a crime, which, but for the accident, might perhaps have remained unpunished, comes, by means of this accident, to be punished. Of the penal law in question, nothing being known but that it is a penal law, is it thereby known to be a bad one? and to such a degree a bad one, that the execution of it is a grievance? Is the state of the law then such, that a law taken at random is more likely to be a bad one than a good one? a nuisance than a security? Or is a law the less likely to be good, the more likely to be bad, because it is by this accident, rather than any other, that the transgression of it happens to be brought to light?

This increase of reason, this reduplication of advantage, extends itself (it is evident) with proportionable force from the top to the bottom of the scale of good on one hand, of evil on the other, attached to self-prejudicing, to self-disserving, evidence: to all degrees of self-criminative—to all degrees of self-onerative, to all suits called criminal—to all suits called civil.

But what shall we say, if, by a summons to appear as a witness in a cause (penal or non-penal) between other persons, an individual is purposely entrapped; and, being (in obedience to that summons) actually in court, is interrogated concerning a distinct offence supposed to have been committed by himself, and, in consequence of his answers, stopped and consigned to durance. What? Why,—that, so a delinquent be but brought into the hands of justice, just as well may it be by this means as by any other. Truth is not violated—fiction is not employed: no false tale is told—no falsehood here defiles the lips of justice.

Nor, though possible, is the case likely to be frequent. The question must be relevant, pertinent to the cause actually in hand, or an answer will not be (for it ought not to be) allowed to be given.

The suit not as yet in hand, may possibly have been the principal object in view in the summons. But what if it be? If, instead of being, in this way, stopped when appearing to give evidence in another suit, the witness had been arrested in consequence of a direct charge made upon him on the ground of such his offence,—in what respect would his guilt have been increased, or his suffering, in respect of it, diminished?

Even now, it occasionally happens that a person summoned to appear as a witness in a cause to which he is not a party, appears accordingly, and, being deemed guilty of perjury, is committed.

But even under the supposition that the admission of indirectly elicited self-convicting evidence were, as such, improper; still, if the admission of directly elicited self-convicting evidence be proper, no distinct mischief can be chargeable to the account of self-convicting evidence when indirectly elicited. Why? Because, admitting the propriety and consequent existence of the practice of admitting self-convicting evidence, a regulation excluding the faculty of extracting self-convicting evidence incidentally, would not operate as a bar to the supposed mischief: since the evidence in question, if not extracted out of the cause in which it happens incidentally to present itself, might always be obtained; viz. by a distinct suit instituted on purpose: and with the same mischief and suffering to the party prejudiced,—viz. the delinquent; though not with the same convenience in respect of dispatch, and in respect of the throwing those fuller and ulterior lights that might thus be thrown upon the offence first pursued, by other offences that happen to be connected with it. In a word, supposing direct evidence of this kind to be admitted,—then, if you exclude incidental, whatever effects may be apprehended from it, of a kind which are (with or without reason) regarded as inconvenient, will still be produced, but with additional inconvenience.

An effect (for example) which certainly might, by design and contrivance, be brought into existence by incidental self-convicting evidence, is, that of instituting a sort of feigned suit, penal or non-penal, for the purpose of bringing to light, not the facts belonging properly and directly to the avowed cause of action, but others, of a complexion differing to any degree of remoteness. Suppose, for example, a project formed for bringing down disgrace and punishment on the head of an individual, by means of questions to be put to him, in the character either of a defendant or a witness, in a cause to be instituted on purpose; drawing thus out of his mouth the confession of some crime, or disgraceful act, for which he has not been prosecuted. May not this be done? Yes: but not with any advantage to the party whose invention is supposed to be thus employed, nor with any disadvantage to the party against whom it is supposed to be employed. Why? Because in this there is nothing more than what might be done in a direct and ordinary way, by a suit instituted on purpose.

In every point of view, then, in which it can be considered, the practice in question appears to stand clear of objection. In the first place, because the result supposed to be produced, cannot, with any propriety or consistency, be reckoned in the number of undesirable results: in the next place, because, though it were, no ulterior facility is afforded for the production of this supposed undesirable result: no new or ulterior facility is afforded, beyond what would exist without it.

Under the systems of procedure derived from the Roman law, and in particular under that formerly pursued in France, self-convicting evidence being allowed to be extracted in the direct way, so is it in the incidental and occasional way above described. The result is in the highest degree favourable to the interests of justice. At a very early period of my studies, accident having conducted me to the collection of remarkable trials known by the name of the Causes Célèbres, comparing what I there observed with such observations as it had fallen in my way to make in relation to trials (and especially in criminal causes) conducted in the English mode, one very striking point of diversity caught my eye. In the English mode, when any plan of deep and extensive artifice and villainy presented itself, it was only into here and there a corner of it that the light of discovery appeared to have been thrown: a multitude of circumstances remained still involved in darkness: a multitude of particulars still remained, in respect of which, the mind of the inquirer remained unsatisfied: he who should propose to himself to draw up a complete history of the criminal transaction, would find materials continually wanting—would, in a word, find the task impracticable. Why? Because, out of a multitude of delinquencies committed, the inquiry was, by the narrowness of the path chalked out for the course of procedure, confined to one: because, by this or that arbitrary and irrational rule, a seal was put upon the lips of those who knew most about the matter.

In the French mode, on the other hand, every transaction appeared to be sifted to the bottom; no doubt remained: all the actors—all the sufferers—were brought upon the stage; proximate causes, remote causes, concomitant circumstances and consequences, all stood before the reader at a view.

In the same proportion in which the faculty and practice of reaping the collateral advantage now and then presented by the self-disserving testimony of an extraneous witness, is beneficial to the interests of society, it is prejudicial to the opposite and adverse interest,—the interest of the professional lawyer, under every system—the interest of the official as well as of the professional lawyer, under the fee-gathering system.

It defrauds him (that is, if admitted, which he has taken care it shall not be—it would defraud him,) and in a double way, of his due. In the suit already in hand, it defrauds him of the several advantages already enumerated under the head of the uses of the exclusionary rule to the man of law. By means of the effect with which it may be, and (when the testimony thus obtained is sufficient to warrant the decision it points to) ought to be, attended, it defrauds him of the whole of the profit that might have been extracted from the additional suit, had it commenced and been continued in the regular and ordinary course: it produces to the community at large the benefit of two suits, with the delay, vexation, and expense, and consequently with the lawyer’s profit, of no more than one.

This being the case, it may without difficulty be imagined how sincere an abhorrence the idea of a practice thus informal and irregular excites in their inflexible and learned breasts: with what heroic firmness they adhere, on this doubly important ground, to the exclusionary rule: with how tender a sympathy they contemplate, as if it were their own, the peril of the malefactor, or other evil-doer—in whatever degree, and on whichever side of the cause, their customer, their partner, their best friend.

CHAPTER IV.

INCONSISTENCIES OF ENGLISH LAW IN REGARD TO SELF-DISSERVING EVIDENCE.

This rule, this exclusionary rule, which grounds itself on the evil of vexation, would not be a rule of jurisprudential law (more particularly of English jurisprudential law,) if it had not its exceptions: and these exceptions (no intimation being given of them in the rule) forming so many contradictions; and the reasons of them (not being good but on the supposition that there are no reasons, or none but bad ones, for the rule) forming so many inconsistencies.

In a former place there was occasion to mention, in the character of so many uses to justice attending the admission of self-prejudicing testimony (that is, of questions leading to the extraction of it,) that thereby the receipt of two other species of evidence from the same source—evidences equal at least in vexation, inferior in instructiveness, safety, and trustworthiness—would in general be saved. These were—1. Papers (such as letters or memorandums) containing a discourse supposed to be that of the party; and 2. The supposed extrajudicial conversation supposed to be held by the party, on any occasion not being a judicial one, and reported by another person in the character of a judicial witness.*

Useful, in case of necessity, for the purpose of strengthening or weakening the opinion of the trustworthiness of the immediate evidence from the same source,—useful, though less safe, in the character of succedanea to it when it is not to be had,—who does not see how bad a substitute these unsanctioned and uncross-examinable evidences make, for the mass of immediate testimony from the same source? when it is to be had, and under the same securities for its correctness and completeness (viz. oath or what is equivalent, and counter-interrogation) as in the case of an extraneous witness.

These secondary and inferior species of evidence are accordingly admitted: but upon what terms? Upon the terms of their not receiving the confirmation, infirmation, explanation, or completion, that could have been applied to them by the immediate evidence from the same original source. Upon condition of their being freed from that check—of the judge’s refusing to himself the benefit of that security against deception and misdecision; and no otherwise.

1. First contradiction to the exclusionary rule:—admission of the supposed casually and extrajudicially written discourse of the person excluded; to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.

2. Second contradiction to the exclusionary rule:—admission of hearsay evidence, purporting to contain the casually and extrajudicially spoken discourse of the person to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.

Of the vexation, for the avoidance of which such sacrifices have been made.—sacrifices not to, but of, the interests of truth and justice,—an estimate may now be made. It is the difference between that which a man feels when the testimony, in consequence of which he sees himself exposed to suffer, whatever it be, issues on the occasion in hand immediately out of his own lips or from his own pen,—and that which he feels, when—testimony to the same effect, exposing him to the same suffering, neither more nor less, having happened on some preceding occasion to escape from his own lips or his own pen,—he hears or sees it brought out against him on the occasion in hand, from the lips or the pen of some other person;—the difference between what he feels at hearing brought out against him information which dropped from him at a time when he was off his guard, and knew not the use that would be made of it,—and that which he feels at the yielding the same information at a time when he is completely upon his guard. Now then, what is the real value of the mischief, in contemplation of which an amendment has been made on the maxim, fiat justitia, ruat calum—justitia being erased, and injustitia substituted?

But it is a weight added to a man’s affliction (it may be said) to have the proof that is to subject him to punishment drawn out of his own mouth. A weight? No, not of a feather. What is this burthen, compared with the burthen imposed without remorse upon individuals completely innocent—upon the individuals convened as witnesses? The suffering—the real suffering—is that which is inflicted by the punishment itself: a suffering, the infliction of which is by the supposition (speaking with reference to the aggregate interests of the community) a desirable event. In that, and that alone, consists the real affliction. As to the supposed addition—a mere metaphorical quantity—except in the mind of the rhetorician it has no existence.

You are sure of being convicted: by what sort of evidence would you choose rather to be convicted? By the evidence of other people without any of your own, or by evidence of other people’s and your own together?—Were a question of this sort put to a malefactor, would it not be matter of perplexity to him to choose? Would not a pot of beer or a glass of gin, on whichever side placed, be sufficient to turn the scale?

But allowing, for the sake of argument, that there is a difference between the pain in the one case and the pain in the other—for my own part, I can see none—but if there be, can it be assumed as a competent and sufficiently broad and solid ground for the establishment of a rule of law? Is there anything here capable of being set against the mischiefs of impunity? the mischiefs of the offence (be it what it may) which the law in question—the law which the rule of exclusion in question seeks to debilitate—is employed to combat?

Justice out of the question (which certainly has nothing to do in it,) refer the matter to mercy—whatever he meant by mercy—and ask, whether a malefactor be the less deserving of mercy, because it so happens, that, without putting any questions to himself, evidence sufficient for conviction happens to come in from other sources?

In England, society exists; therefore English law must have given admission, either to the makeshift or to the regular evidence from that same source. It excludes the regular—it admits the makeshift. Observe, then, the result of this prodigious scrupulosity, of this sentimental tenderness:—a preference, and that an exclusive one, given to inferior evidence.

Lawyer. Inferior? Ay, in your estimation.

Non-Lawyer. Yes: But I speak not of my own estimation only, nor of the estimation of men in general only, but of your own. Suppose it the case of an extraneous witness—a person whose testimony it is proposed to call in, he having no share or interest in the cause. Do you in that case accept of a letter or memorandum of his, or a supposed extrajudicial discourse of his, in lieu of the judicially delivered testimony of his own hand, or the immediate evidence of his own lips? Do you in this instance exclude the regular, open the door to the makeshift evidence, from the same source? Not you, indeed, far from excluding the regular evidence, you do not admit the makeshift: far from giving an exclusive admission to the makeshift, you do not (unless incidentally, for infirmation or confirmation) give it any admission at all.

3. In the short and disastrous reign of Philip and Mary, came out the statute* so often mentioned, in virtue of which, in cases treated as criminal, and where the punishment rises to that of felony, justices of the peace, acting singly, are empowered to resort to the mouth of the defendant (the supposed transgressor) for information on the subject of the offence.

Not a syllable can he utter that may not have—that was not designed at least to have in case of his having been guilty—the effect of self-criminative evidence. Not a minute after any such question put to him can he remain silent, but his silence (at least if the use were made of it that might, and ought, and was intended to be made of it) would, in like manner, have the effect of self-criminating evidence.

Contradictory, however, as this statute is, when compared with the jurisprudential rule, the charge of inconsistency (it must be confessed) extends not to this case. The rule was the work of the man of law seeking his own ends: the exception—a sprig of common sense, imported from the continent of Europe, and planted in a bed of nonsense and hypocrisy, by which it has been nearly choked—was the work of the sovereign, seeking the welfare of his people through the ends of justice. Happy the nation, had no worse importation taken place under the auspices of Spanish influence!

Third contradiction to the exclusionary rule:—preparatory examination of suspected felons, under the statute of Philip and Mary.

Thus far we have seen the contradictions given to the rule, when the punishment, to which the man exposes himself by his self-criminative evidence, is ultra-pecuniary; rising, in its lowest degree, above the highest level to which pecuniary punishment is capable of extending itself.

Observe, now, the contradictions which it has received in the case where the punishment is not ultra-pecuniary,—does not, in its highest degree, rise, in point of afflictiveness, above the level of pecuniary punishment.

But in the case where, in how heavy a degree soever onerous, the heaviest obligation to which the party stands exposed does not wear the name of punishment,—self-onerative, self-onerative simply, is the name that has been given to the evidence. The cases embraced by self-criminative evidence exposing the party to punishment not beyond pecuniary, and the cases embraced by evidence simply self-onerative, are therefore, to this purpose at least, the same cases: the rules and practices, therefore, that operate in contradiction to the rule excluding self-onerative evidence, are so many contradictions to the rule by which self-criminative evidence, to the effect of punishment not ultra-pecuniary, stands excluded.

4. A motion for an information (a criminal information) is a suit instituted to know whether a suit shall be instituted: a suit carried on upon the worst evidence that can be found, to know whether a suit for the same cause shall be carried on upon good, or less bad, evidence: a suit carried on upon premeditated, preconcerted, uncross-examinable evidence, to know whether the same suit shall be carried on upon unpremeditable, unconcertable, cross-examined evidence.

When the prosecution is in this mode (and there are few crimes short of capital, the prosecution for which may not be carried on in this mode,) the principal piece is never suffered to be performed before a single judge, for the benefit of justice, till in this style a prelude to it has been rehearsed at his majesty’s theatre in Westminster Hall, for the benefit of the lawyers.

Lawyer. Nay, but what is this to the purpose? Here no questions are asked: the defendant says what he pleases.

Non-Lawyer. True, sir; no questions are put in the form of questions: but allegations have been made—allegations, which, to the purpose here in hand, howsoever imperfectly calculated for the complete and correct discovery of truth, have the effect of questions. By the affidavits of those willing witnesses whom he has procured to join with him, the prosecutor has made his charge. The defendant delivers in his affidavit or not, as he thinks fit: but (the rule having been made upon him to show cause) so sure as he omits to deliver in an affidavit, so surely, in this preliminary suit, is he cast. If he pleases, he may be silent, taking the consequences; and so he may be, though the exclusionary rule were abolished.

Of a complete abolition of the exclusionary rule, what (at least in the case of a party) would be the effect? Not compulsion, the exaction of an answer; but simple permission—permission to put questions: he to whom the question is put, answering or not answering, at pleasure.

Are you an equity draughtsman? You are not to learn, then, that in equity, an allegation, a charge, is everything—a question, nothing. Is the fact made up into a charge? Question or no question, interrogatory or no interrogatory, an answer is compelled, and compelled by means far more rigorously coercive. Is an interrogatory put without a charge for its support? It is as if nothing had been said.

Lawyer. But can you say the obligation upon him to answer is equally coercive in this case, as before a jury at the assizes, the Old Bailey, or Guildhall?

Non-Lawyer. Oh yes; that I can. The obligation to speak true, no: on the contrary, if he be guilty, he has every encouragement that can be given to him to engage him to speak false, and upon his oath—to engage him to commit perjury: 1. Time for premeditation: 2. Attorneys and counsel to instruct and assist him in the arts of evasion; 3. Time for concerting a story with co-affidavit men and co-perjurers, if he can get any; 4. No questions asked; 5. The assurance that if he swears hard enough, his own testimony, though with the testimony of the prosecutor in the teeth of it, will be conclusive, and save him from all further trouble. Truth, therefore, if guilty, he has every encouragement not to speak: but something he is bound to say, or condemnation ensues. If the charge be strong enough, to one or other obligation he stands bound continually—either to criminate himself, or to perjure himself.

Lawyer. Condemnation! why talk of condemnation? Is not the trial, the inquiry by the result of which he may be either convicted or acquitted, yet to come?

Non-Lawyer. Yes; in the case of an information. But be pleased to go on to the next article.

5. There are a class of suits which, though not much less frequent than the denominated ones, have never yet received a name; let us call them Motion Causes. The demand,—instead of being stated by the pen of one sort of lawyer, in the form of a written instrument, an indictment, an information, a declaration lodged in an office,—is stated by the tongue of another sort of lawyer, in a harangue made in open court, called a motion. Instead of being tried on vivâ voce evidence, the question in this case is tried solely upon affidavit evidence.

On an information, after having had the advantage of being condemned once on bad evidence, a man may have the privilege of being condemned again upon better evidence. But in a motion cause, condemned once, he is condemned for good and all: if condemned at all, he is condemned upon the bad evidence.

Of these motion causes, some are considered as criminal causes, some as civil causes. Criminal causes: for example, motions for attachment; motions that the defendant may answer the matters of the affidavit. Civil causes: for example, motion to set aside proceedings for irregularity; motion to set aside an award that has been made a rule of court.

Under the head of motion causes may be ranked (to this purpose at least) petition causes: the causes by which masses of property are disposed of to any amount, in the case where the possessor has been aggregated to that class of insolvent debtors who have been styled bankrupts. In these cases, whatever motion the ears of the judge are entertained with, is preceded by a written instrument called a petition, which gives him little trouble. In these cases, the evidence by which the cause is decided being purely affidavit evidence, they present, in this respect, no difference to distinguish them from the aggregate mass of motion causes.

6. Another occasion on which self-disserving evidence, and that self-criminating, is not only allowed to be called for, but compelled, is that on which the evidence is extracted from a defendant by the subordinate judge called the master, by means of ready written questions, called on this occasion interrogatories.

So seldom does the occasion for this operation present itself, that it would not have been worth mentioning, except that it may be seen that it has not been overlooked.

In the case of an information, the second inquiry before a jury comes on of course, if,—on motion for leave to file the information, and the first inquiry—affidavit inquiry (if an inquiry it can be called, on which no questions are asked) in consequence,—the rule to show cause is followed by an absolute rule, leave granted, and information filed. If the second inquiry comes of course, the cause cannot, to the disadvantage of the defendant’s side, be determined without it.

In the case of an attachment, unless it be in one out of several hundred (not to say thousand) causes, the first inquiry is the only one; the fate of the defendant is determined by it.

But in a case that has been known now and then to happen, after the fate of the defendant has been determined on the ground of the affidavit evidence, with or without extraneous witnesses on both sides, the defendant alone is subjected to a second inquiry, performed by the ready written questions as above mentioned.

On an occasion of this sort, no more reserve is used than would have been used had the rule nemo tenetur seipsum prodere never been heard of. If time is given him to study his answer, and a copy of the interrogatories given him for that purpose, he is thereby examined in the way a defendant is examined in the civil suits called equity suits. If answers are required of him on the spot, he is thereby examined as extraneous witnesses are examined, on the occasion of these same equity suits.

7. Must it be mentioned? Yes, it must; how frequent soever may be the need of mentioning it on other occasions:—or the catalogue of the inconsistent infringements of this rule will not yet be complete. In cases of indictment and information, if the defendant has been convicted by his own default, or by a jury upon the good evidence, the appetite of the partnership is not yet satisfied: the chain of inquiries is not yet regarded as complete, without a third inquiry, in which the cause is tried over again upon the bad, the affidavit, evidence. I speak of the supplemental inquiry, carried on antecedently to, or upon, his being brought up for judgment.

By the same evidence by which the same cause is thus tried over again for the third time, another cause (it frequently happens) is tried for the first and last time,—another cause, of which no jury has had cognizance. I speak of the charges so frequently brought against the same defendant, for misbehaviour alleged to have taken place at a time subsequent to that of his conviction by the jury for the former cause.

Such is the respect really paid to that most useful of all stalking-horses, an English jury: the gorgeous idol, under whose convenient mantle so many abuses lodge themselves. Such is the respect really paid, even in criminal causes, to the accommodating maxim—to the flexible, the truly Lesbian rule, nemo tenetur scipsum prodere.

On every man, obligation to betray himself: to every man, encouragement at the same time to perjure himself. Such is the state of things, as often as, in regard to a disputed question, affidavit evidence is received.

8. Coeval, or not much short of coeval, with the practice on jury trials which admits not of the putting a question to either party in the cause, is the practice of the equity courts, by which, to so great an extent, the proceedings in the causes in which juries are employed are obstructed or overruled:—not to speak of the wide-extending class of demands of which equity alone takes cognizance, the all-sufficient power of common law not affording to these rights so much as the semblance of a remedy.

But in no one instance whatever was any cause heard in equity, but—in and by the very instrument (the bill) in and by which the demands of the plaintiff are signified—the defendant is called upon to betray himself, as truly as it is possible for a man to be called upon to betray himself. The questions being put in writing, time is indeed given him to meditate and concert safe perjury, as in the case of affidavit evidence. Answer he must, or, when he has been plagued and squeezed sufficiently in other ways, his silence is taken for an answer in the affirmative; the bill is taken pro confesso; and that which to his prejudice the plaintiff prays may be done, is done.

Lawyer. But equity causes are but civil causes. Admitting this to be the practice in equity, it is not, for this instance at least, the less true, that no man is bound to criminate himself.

Non-Lawyer. True, equity causes are but civil causes: so that, by the effect of the question put to him, a man is not exposed to lose more than his whole estate. But of that estate the value may amount to any number of hundreds of thousands of pounds, seens which now-a-days are running on to millions. In a cause denominated a criminal cause, did you ever, in the whole course of your practice, know an instance of a man’s suffering a loss to the amount of two thousand pounds? Were the option your own, to which of two losses would you give the preference: to a loss of £2,000, to be taken from you in a cause called a criminal cause, or to a loss of £200,000, to be taken from you in a cause called a civil cause?

Contradictions in substance are not to be reconciled by words. The jurisdiction of the courts of equity is civil merely: be it so; for civil is but a word. But if vexation or no vexation is the issue—if feelings themselves, not the words employed in speaking of them, are to be regarded,—the quantity of vexation to which a man may thus be made to subject himself by his testimony, when extracted from him by this court of purely civil jurisdiction, surpasses by a great deal the utmost quantity of vexation of the same kind, to which he could be subjected were his testimony extracted from him with a view to punishment, to be inflicted upon him under the name of punishment, in a court of criminal jurisdiction, where either attachment or information, and in perhaps the greater part of the cases in which indictment, is the name given to the suit.

Taking the ends of justice for the standard, here we see a tissue of inconsistencies. Viewing as the sole ends in pursuit the established ends of judicature, all inconsistency vanishes.

The parties examining one another vivâ voce, and at the outset, in the presence of the judge, as in a court of conscience,—so far, no pretence for fees, no more than in a court of conscience, no delay, no pretence for delay, no motives for producing delay, no more than in a court of conscience. Set them to fight with affidavits manufactured by attorneys, fees spring up in plenty. Affidavits the seed, perjuries and fees, like ryegrass and clover, spring up together.

Set them to examine one another in the epistolary style, as in and by a bill in equity (that is to say, a pair of bills, a bill and a cross bill,) the examination takes up twice or three times as many months, as in a court of conscience it would have taken minutes. The prolific examination, crawling on for ten, fifteen, or twenty months, fees pullulating from it all the time. A suit in equity, perhaps, to do nothing but get the evidence: and then a suit at common law, six, twelve, or eighteen months, to give employment to the evidence.

CHAPTER V.

EXAMINATION OF THE CASES IN WHICH ENGLISH LAW EXEMPTS ONE PERSON FROM GIVING EVIDENCE AGAINST ANOTHER.

§ 1.

The exemption improper

If the testimony of a party to his own predudice ought to be compellable, so ought that of any other person. If the vexation of which it might be productive to Rens to contribute by his even evidence to subject himself to the obligations of justice, affords no sufficient reason for the dissolving of these obligations,—still less can any good reason be drawn from the vexation resulting from that same source, for depriving justice of the benefit of any other testimony.

This sort of second-hand vexation, reflected from the former, must be of one or other of two descriptions: the seat of it, in the bosom of one or other of two persons.

Is it in consideration of the vexation that Reus himself would suffer, from the prejudice that might accrue to him from the evidence of Amicus,—is it for this reason, that justice should be deprived of the benefit of Amicus’s testimony?

But it will hardly be said, that a man’s sufferings will be greater, at seeing evidence to his prejudice extracted from another bosom, than at feeling it extracted from his own.

Is it in consideration of the vexation that Amicus would suffer, from the thought of the prejudice that might accrue from his evidence to Reus,—is it for this reason that justice should be deprived of the benefit of the testimony of Amicus?

But it will hardly be said, that a man’s sufferings will be greater at the idea of an evil considered as about to befall another person (whether from his own instrumentality, or from any other cause,) than at the idea of the same evil—of an evil the same in magnitude (probability and proximity considered,) as about to fall upon himself.

Secus, if Reus and Amicus were Nisus and Euryalus. But Reus and Amicus are not Nisus and Euryalus; they are average men. It is not to fabulous, nor yet to extraordinary characters, but to ordinary ones, that the provisions of the legislator ought to be adapted.

Suppose such a plea admitted; observe the consequence. By what criterion shall the degree of sympathetic sensibility on the part of Amicus be determined? By what sure token, open to the eyes and estimation of the judge, shall it be discovered that the fate of Reus is in any degree an exciting cause of the affection in question, in the breast of Amicus? From the ties of blood? The presumption is strong; but unhappily not so strong as to be conclusive. From any other ties? The presumption is weaker and weaker ad infinitum.

Admitted, the plea would put into the hands of the judge, at least with the concurrence of the proposed witness, the faculty of excluding or admitting any man’s testimony at pleasure. The sentimental candidate for exclusion, what in this case should he do?—should he speak, and weep, and faint for himself? or fee counsel to speak, and weep, and faint for him?

§ 2.

Lawyer and client.*

English judges have taken care to exempt the professional members of the partnership from so unpleasant an obligation as that of rendering service to justice. “Counsel and attorneys . . . . ought not to be” (say rather are not) “permitted to discover the secrets of then clients, though they offer themselves for that purpose.”†

On which of the two above-mentioned grounds does the exemption rest in those learned bosoms? Is it that the client would suffer so much more from being hurt by his lawyer’s testimony than by his own? or that a man is so much dearer to his advocate and his attorney, than to himself?

The oracle has given its response:—“The privilege is that of the client, not of the attorney.”‡

When, in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court, might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not? Oh, because to betray a trust is treachery; and an act of treachery is an immoral act.

An immoral sort of act, is that sort of act, the tendency of which is, in some way or other, to lessen the quantity of happiness in society. In what way does the supposed cause in question tend to the production of any such effect? The conviction and punishment of the defendant, he being guilty, is by the supposition an act the tendency of which, upon the whole, is beneficial to society. Such is the proposition which for this purpose must be assumed. Some offences (it will be admitted by everybody) are of that sort and quality, that the acts by which they are punished do possess this beneficial tendency. Let the offence in question be of the number: it is of such only as are of that number that I speak. The good, then, that results from the conviction and punishment, in the case in question, is out of dispute: where, then, is the additional evil of it when produced by the cause in question? Nowhere. The evil consists in the punishment: but the punishment a man undergoes is not greater when the evidence on which the conviction and punishment are grounded happens to come out of the mouth of a law adviser of his, than if it had happened to come out of his own mouth, or that of a third person.

But if such confidence, when reposed, is permitted to be violated, and if this be known (which, if such be the law, it will be,) the consequence will be, that no such confidence will be reposed. Not reposed?—Well: and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray: let the law adviser say everything he has heard, everything he can have heard from his client, the client cannot have anything to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be,—Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerning a false defence, as he may do at present.

Except the prevention of such pernicious confidence, of what other possible effect can the rule for the requisition of such evidence be productive? Either of none at all, or of the conviction of delinquents, in some instances in which, but for the lights thus obtained, they would not have been convicted. But in this effect, what imaginable circumstance is there that can render it in any degree pernicious and undesirable? None whatever. The conviction of delinquents is the very end of penal justice.

Observe the inconsistency between the rule in the case of the particular species of contract in question, and the rules observed in general in respect to contracts. Of contracts in general the fulfilment is beneficial to society: of contracts in general the fulfilment is accordingly enforced. But there are some contracts the fulfilment of which would be pernicious to society: every crime, every offence, supposing the prohibition put upon it by the law to be well grounded, affords an example: viz. that of a contract for the joining in the commission of such offence. The contract between a delinquent and his law adviser, is a contract which has for its object the enabling the delinquent to escape the punishment which is his due. With what consistency, to what end, would the law seek to enforce a contract to such an effect? Suppose a like contract between a delinquent and his jailer—a contract, the object of which shall be to enable the delinquent to escape. Does the law seek to enforce this sort of contract? No, not anywhere. But why not? It might, with as much reason as in the other case.

If the law adviser, of his own motion, the law neither commanding nor forbidding him, were to offer his testimony for the purpose of promoting the conviction of his client, the imputation of treachery would have, if not a good ground, at any rate a better, a more plausible ground. But the question is not, whether the lawyer shall thus offer his testimony; but whether the law shall command it, or authorize him, nay force him, to refuse it.

Compare the law in this case, with the law in the case of treason—misprision of treason. If, knowing of an act of treason committed, a man forbears to give information of it, such forbearance is punished, and certainly not without reason, as a high crime. In the case of the law adviser, the rule now under consideration would probably be deemed applicable to the crime of treason, as well as to all others. The law in this case finds a man in whom it protects that very species of conduct which it punishes in every other man: and that species of conduct a mischievous one; one of which the effects cannot but be pernicious. To what end, with what consistency, can the law find out a man to receive with safety, and even under an obligation of concealment, that confidence, that pernicious confidence, which it punishes in every other man?

Another inconsistency. To confidents taken from other professions, neither the obligation nor the permission of secrecy, as against justice, extends. A physician, a surgeon, is compelled to disclose what may operate towards the conviction of his patient.

To the credit of the judges of latter times, this superstition appears to have been not much to their taste: by decision after decision they have pared it down and narrowed it, to a very considerable degree. From a counsel, from an attorney, evidence may be extracted of facts which came to their knowledge before they were retained:* of facts disclosed to them by the client after the suit was at an end by compromise:† of facts which, though falling under their cognizance no otherwise than in consequence of their professional intercourse with their client, were not directly communicated and confessed by him:‡ of facts which, though coming to their cognizance in consequence of such intercourse, might (it is said) have come to their cognizance without it.∥

In a word, so fine has the hair been split, that, when an attorney has been consulted with, not (it is said) as an attorney, but only as a friend, evidence of the facts that come under his cognizance has been extracted from his mouth.§ Quære, by what sign to know when it is the attorney who is present, and when it is the friend? In the case of the counsel, there might have been less difficulty: the professional robe, by being off or on, might distinguish the counsel from the friend.

Hawkins,¶ speaking to the question, “What kind of receipt of a felon will make the receiver an accessary after the fact?” says, “It seems agreed that, generally, any assistance whatever given to one known to be a felon, in order to hinder his . . . . . suffering the punishment to which he is condemned, is a sufficient receipt for this purpose.” (By the word condemned, he means no more than doomed by the general disposition of the law, not condemned in consequence of a particular prosecution instituted: for in all the examples he gives, the assistance spoken of is given before prosecution.) The lawyer who, knowing from the confession of his client that such client has committed a felony, enables him by his counsel to avoid “suffering the punishment to which he is condemned,” is, according to the above definition, an accessary to such felony; viz. an accessary after the fact. In practice he certainly would not be deemed so. What I mention the case for, is to show the inconsistency. In the case of the law adviser, the “policy,”** as it is called, of the law, is to protect that sort of man in affording to a crime that very sort of assistance, the giving of which it punishes in any other sort of man—punishes, and even to such a degree as to treat him as an accomplice. In a case like this, it would certainly be too much to punish the law adviser as an accomplice, for lending his advice (which is his mode of assistance) to a guilty client, or for not spontaneously disclosing such lights towards the ascertainment of his guilt, as it has happened to him to collect. It might deter the lawyer from lending his assistance to an innocent person when accused, by the fear of being involved in the punishment in case of his proving guilty. But to what use, or with what consistency, forbid his disclosing any such proof of guilt, even though called upon so to do?

A distinction, which seems an important one, is one of which I see no traces in the books. The confidence supposed to be reposed in the law adviser,—is it reposed after prosecution, for the purpose of the guilty party’s being enabled to escape the punishment due to his guilt? or is it reposed before prosecution—reposed (suppose) while the offence is in contemplation, and in the view of learning the means of committing it with impunity and success? In the former case, the relation of the law adviser to the offence, in case of criminal consciousness on his part, is that of an accessary after the fact; in the other, that of an accessary before or during the fact; that sort of accessary who, in the technical language of the law, is in many cases termed a principal. I say, in case of criminal consciousness: for, from the circumstance of an attorney’s having it in his power to give evidence, the effect of which, added to other evidence, may be to give birth to the conviction of his client in respect of a crime or other offence,—it does not follow by any means that there must have been any criminal consciousness on his part; that the picture of the transaction should have been present to his mind, clothed with all those circumstances the union of which is necessary to the constituting it a crime. In case of perjury (for example,) the attorney may have learnt from his client the existence of a fact incompatible with another fact, the existence of which the client has averred upon oath, but without having heard of his ever having made any such averment: or, vice versâ, he may have been privy to the making of such averment upon oath, without having ever received information, either from the client or anybody else, of the existence of the fact by which such averment is demonstrated to be perjurious.

“A counsel, solicitor, or attorney, cannot conduct the cause of his client” (it has been observed) “if he is not fully instructed in the circumstances attending it: but the client” (it is added) “could not give the instructions with safety, if the facts confided to his advocate were to be disclosed.”* Not with safety? So much the better. To what object is the whole system of penal law directed, if it be not that no man shall have it in his power to flatter himself with the hope of safety, in the event of his engaging in the commission of an act which the law, on account of its supposed mischievousness, has thought fit to prohibit? The argument employed as a reason against the compelling such disclosure, is the very argument that pleads in favour of it.

This being the professed object of the English system of law, as well as of every other system of law,—viz. the prevention of offences,—is it reconcilable to the idea of wisdom or consistency, that it should lay down a rule, the effect of which, without contributing to the protection of the innocent, or preventing vexation in any other shape, is purely and simply to counteract its own designs?

In vain would it be to impute the favouring of treachery to a regulation by which such disclosures were to be made obligatory. In saying, “a criminative fact, stated by a delinquent to his law adviser, shall, if called for, be disclosed by him in evidence,” it gives sufficient warning to offenders not to seek for safety in such means.

Thus much as to the case where the effect of the disclosure may be to subject the client to suffer as for an offence. Where the effect of it does not go beyond the subjecting him to some non-penal obligation to which he otherwise might not be subjected, or to debat him from some right of which he otherwise might have come into possession, or remained possessed,—the objection is no more reconcilable with the main object of the law than in the other case. In every such case, though by a process grievously and unnecessarily dilatory and expensive,† what the law does, or to be consistent ought to do, is to compel each party, out of his own mouth (or, to speak literally, by his own hand,) to make disclosure of such facts as, lying within his own knowledge, are of a nature to contribute towards substantiating the claim of the adversary. Can there be any reason why that information, which he is compelled to give by his own hand, should not be obtained with equal facility from another hand, from which, if there be any difference, it may be extracted with less reluctance? Disclosure of all legally-operative facts, facts investitive or divestitive of right—of all facts on which right depends,—such, without any exception, ought to be—such, with a few inconsistent exceptions, actually is, the object of the law. On the part of the individuals of all descriptions by whom information to such effect happens in each instance to be possessed, the two species of behaviour by which the fulfilment of this design may be counteracted in such instance, are falsehood and concealment. It falsehood is not favoured by the law, why should concealment? a mode of conduct which, without the guilt (at least in as far as guilt is measured by punishment,) is attended, so far as it takes place, with the same pernicious and undesirable effect.

Concealment of those facts, the knowledge of which is necessary to the fulfilment of the prodictions delivered by the substantive branch of the law, is a mode of conduct punished in some instances as an offence, and even as a crime. The least that can be required by consistency is, that the species of fraud thus punished in some cases, should not in any case be protected and encouraged.

To give encouragement to the spirit of chicane, is an imputation which, on here and there an occasion, men are bold enough to cast upon the general complexion of the law, though not in a hundredth part of the instances in which a just warrant might be found for it. An objection to a proposition in which any such term as chicane is the characteristic word, is, that it is indistinct and vague. The rules of the class of that against which I have been here contending, may serve at once to fix the import, and to exemplify the ground of it.

Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! Expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes.

Idle as a reproach,—as a memento this ought never to be out of mind. It is thus, and thus only, that it can be visible to the legislator, where to look for opposition, and where, if anywhere, for assistance.

[Farther Remarks by the Editor.—In the notice of the Traité des Preuves Judiciaires, in the Edinburgh Review,* the rule which excludes the testimony of the professional assistant, is with much earnestness defended. The grounds of the defence, in so far as they are intelligible to me, reduce themselves to those which follow:—

1. The first argument consists of two steps, whereof the former is expressed, the latter understood; and either of them, if admitted, destroys the other. The proposition which is asserted is, that the aid which is afforded to an accused person by his advocate, is of exceedingly great importance to justice. The proposition which is insinuated is, that of this aid he would be deprived, if his advocate were rendered subject to examination.—If the only purpose, for which an advocate can be of use, be to assist a criminal in the concealment of his guilt, the last proposition is true: but what becomes of the former? If, on the other hand (as is sufficiently evident) an advocate be needful on other accounts than this,—if he be of use to the innocent, as well as to the guilty—to the man who has not anything to conceal, as well as to the man who has,—what is to hinder an innocent, or even a guilty defendant, from availing himself of his advocate’s assistance for all purposes, except that of frustrating the law?

2. The second argument consists but of one proposition: it is, that Lord Russell’s attorney would have been a welcome visitor, with his notes in his pocket, to the office of the solicitor of the Treasury. To the exalted personages, whose desire it was to destroy Lord Russell, any person would, it is probable, have been a welcome visitor, who came with information in his pocket, tending to criminate the prisoner. From this, what does the reviewer infer? That no information tending to criminate the prisoner should be received?—that the truth should not, on a judicial occasion, be ascertained? Not exactly: only that one means, a most efficient means, of ascertaining if, should be rejected. Are we to suppose, then, that on every judicial occasion the thing which is desirable is, that the laws should not be executed? Then, indeed, the reviewer’s conclusion would be liable to no other objection than that of not going nearly far enough; since all other kinds of evidence might, and indeed ought, on such a supposition, to be excluded likewise.

So long as the law treats any act as a crime which is not a crime, so long it will, without doubt, be desirable that some acts which are legally crimes should escape detection: and by conducing to that end, this or any other exclusionary rule may palliate, in a slight degree, the mischiefs of a bad law. To make the conclusion hold universally, what would it be necessary to suppose? Only that the whole body of the law is a nuisance, and its frustration, not its execution, the end to be desired.

Laws are made to be executed, not to be set aside. For the sake of weakening this or that bad law, would you weaken all the laws? How monstrous must that law be, which is not better than such a remedy! Instead of making bad laws, and then, by exclusionary rules, undoing with one hand a part of the mischief which you have been doing with the other, would it not be wiser to make no laws but such as are fit to be executed, and then to take care that they be executed on all occasions?

3. The third argument is of that ingenious and sometimes very puzzling sort, called a dilemma. If the rule were abolished, two courses only, according to the reviewer, the lawyer would have: he must enter into communication with the opposite party from the beginning, to which course there would be objections; or he must wait till he had satisfied himself that his client was in the wrong, and must enter into communication with the opposite party then; to which course there would be other objections. What the force of these objections may be, it is not necessary, nor would it be pertinent, to inquire: since neither justice nor Mr. Bentham demand that he should enter into communication with the opposite party at all. What is required is only, that if, upon the day of trial, the opposite party should choose to call for his evidence, it may not be in his power, any more than in that of any other witness, to withhold it.

One would not have been surprised at these arguments, or even worse, from an indiscriminate eulogizer of “things as they are;” this, however, is by no means the character of the writer of this article: it is the more surprising, therefore, that he should have been able to satisfy himself with reasons such as the three which we have examined. Not that these are all the reasons he has to give: the following paragraph seems to be considered by him as containing additional reasons to the same effect:—

“Even in the very few instances where the accused has intrusted his defender with a full confession of his crime, we hold it to be clear that he may still be lawfully defended. The guilt of which he may be conscious, and which he may have so disclosed, he has still a right to see distinctly proved upon him by legal evidence. To suborn wretches to the commission of perjury, or procure the absence of witnesses by bribes, is to commit a separate and execrable crime; to tamper with the purity of the judges is still more odious; but there is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction. Human beings are never to be run down like beasts of prey, without respect to the laws of the chase. If society must make a sacrifice of any one of its members, let it proceed according to general rules, upon known principles, and with clear proof of necessity: ‘let us carve him as a feast fit for the gods, not hew him as a carrass for the hounds.’ Reversing the paradox above cited from Paley, we should not despair of finding strong arguments in support of another, and maintain that it is desirable that guilty men should sometimes escape, by the operation of those general rules which form the only security for innocence.”

In reading the above declamation, one is at a loss to discover what it is which the writer is aiming at. Does he really think that, all other things being the same, a system of procedure is the better, for affording to criminals a chance of escape? If this be his serious opinion, there is no more to be said; since it must be freely admitted that, reasoning upon this principle, there is no fault to be found with the rule. If it be your object not to find the prisoner guilty, there cannot be a better way than refusing to hear the person who is most likely to know of his guilt, if it exist. The rule is perfectly well adapted to its end: but is that end the true end of procedure? This question surely requires no answer.

But if the safety of the innocent, and not that of the guilty, be the object of the reviewer’s solicitude,—had he shown how an innocent man could be endangered by his lawyer’s felling all he has to tell, he would have delivered something more to the purpose than any illustration which the subject of carcasses and hounds could yield. If he can be content for one moment to view the question with other than fox-hunting eyes, even he must perceive that, to the man who, having no guilt to disclose, has disclosed none to his lawyer, nothing could be of greater advantage than that this should appear; as it naturally would if the lawyer were subjected to examination.

“There is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction.” This, if I rightly understand it, means, that incomplete evidence ought not, for want of comments, to be taken for complete, we were in no great danger of supposing that it ought. But the real question is,—should you, because your evidence is incomplete, shat out other evidence which would complete it. After the lawyer has been examined, is the evidence incomplete notwithstanding? then is the time for your “fair and animated arguments.” Is it complete? then what more could you desire?

The denunciation which follows against hunting down human beings without respect for the laws of the chase, is one of those proofs which meet us every day, how little, as yet, even instructed Englishmen are accustomed to look upon judicature as a means to an end, and that end the execution of the law. They speak and act, every now and then, as if they regarded a criminal trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play: in a word, that whether a guilty person shall be acquitted or punished, may be, as nearly as possible, an even chance.

I had almost omitted the most formidable argument of all, which was brought forward by M. Dumont, not as decisive, but as deserving of consideration, and which the reviewer, who adopts it, terms “a conclusive reductio ad absurdum.” This consists in a skilful application of the words spy and informer (espion, délateur,) two words forming part of a pretty extensive assortment of vaguely vituperative expressions, which possess the privilege of serving as conclusive objections against any person or thing which it is resolved to condemn, and against which, it is supposed, no other objections can be found.

Spies and informers are bad people; a lawyer who discloses his client’s guilt is a spy and an informer; he is therefore a bad man, and such disclosure is a bad practice, and the rule by which it is prohibited is a good rule. Such, when analyzed into its steps, is the argument which we are now called upon to consider.

But to form a ground for condemning any practice, it is not enough to apply to the person who practises it an opprobrious name: it is necessary, moreover, to point out some pernicious tendency in the practice; to show that it produces more evil than good. It cannot be pretended that the act of him, who, when a crime comes to his knowledge (be it from the malefactor’s own lips, or from any other source,) being called upon judicially to declare the truth, declares it accordingly, is a pernicious act. On the contrary, it is evident that it is a highly useful act: the evil occasioned by it being, at the very worst, no more than the punishment of the guilty person—an evil which, in the opinion of the legislature, is outweighed by the consequent security to the public. Call this man, therefore, an informer or not, as you please; but if you call him an informer, remember to add, that the act which constitutes him one, is a meritorious act.

M. Dumont expresses an apprehension that no honourable man would take upon him the functions of an advocate, if compelled to put on what he is pleased to call the character of an informer. Further reflection would, I think, have convinced him that this apprehension is chimerical. There is scarcely anything in common between the two characters of an informer and of a witness. The antipathy which exists against the former extends not to the latter. A witness, as such, does not take money for giving evidence, as an informer frequently does for giving information. The act of an informer is spontaneous: he is a man who goes about of his own accord doing mischief to others: so at least it appears to the eyes of unreflecting prejudice. The evidence of the witness may be more fatal to the accused than the indications given by the informer; but it has the appearance of not being equally spontaneous: he tells what he knows, because the law compels him to say something, and because, being obliged to speak, he will speak nothing but the truth: but for anything that appears, if he had not been forced, he would have held his tongue and staid away. An honourable man, acting in the capacity of an advocate, would, by giving true evidence, incur the approbation of all lovers of justice, and would not incur the disapprobation of any one: what, therefore, is there to deter him? unless it be a hatred of justice.

The reviewer adds, that M. Dumont’s argument “might be assisted with a multiplicity of reasonings:” these, as he has not stated them, Mr. Bentham, probably, may be pardoned for being ignorant of. The reviewer is modest enough to content himself with the “single and very obvious remark, that the author evidently presumes the guilt from the accusation,” a remark which could have had its source in nothing but the thickest confusion of ideas. Had Mr. Bentham recommended condemnation without evidence, or any other practice which would be indiscriminately injurious to all accused persons, innocent or guilty,—it might then have been said of him, with some colom of justice, that he presumed the guilt from the accusation. But when, of the practice which he recommends, it is a characteristic property to be a security to the innocent, a source of danger to the guilty alone,—under what possible pretence can he be charged with presuming the existence of guilt?—though he may be charged, sure enough, with desiring that where there is guilt, it may be followed by punishment; a wish probably blameable in the eyes of the reviewer, who thinks it “desirable that guilty men should sometimes escape.”

Thus weak are all the arguments which could be produced against this practice, by men who would have been capable of finding better arguments, had any better been to be found. It may appear, and perhaps ought to appear, surprising, that men generally unprejudiced, and accustomed to think, should be misled by sophistry of so flimsy a texture as this has appeared to be. Unhappily, however, there is not any argument so palpably untenable and absurd, which is not daily received, even by instructed men, as conclusive, if it makes in favour of a doctrine which they are predetermined to uphold. In the logic of the schools, the premises prove the conclusion. In the logic of the affections, some cause, hidden or apparent, having produced a prepossession, this prepossession proves the conclusion, and the conclusion proves the premises. You may then scatter the premises to the winds of heaven, and the conclusion will not stand the less firm,—the affections being still enlisted in its favour, and the show, not the substance, of a reason being that which is sought for,—if the former premises are no longer defensible, others of similar quality are easily found. The only mode of attack which has any chance of being successful, is to look out for the cause of the prepossession, and do what may be possible to be done towards its removal: when once the feeling, the real support of the opinion, is gone, the weakness of the ostensible supports, the so-called reasons, becomes manifest, and the opinion falls to the ground.

What is plainly at the bottom of the prepossession in the present case, is a vague apprehension of danger to innocence. There is nothing which, if listened to, is so sure to mislead as vague fears. Point out any specific cause of alarm, anything upon which it is possible to lay your hand, and say, from this source, evil of this or that particular kind is liable to flow; and there may be some chance of our being able to judge whether the apprehension is or is not a reasonable one. Confine yourself to vague anticipations of undefined evils, and your fears merit not the slightest regard: if you cannot tell what it is you are afraid of, how can you expect any one to participate in your alarm? One thing is certain: that, if there be any reason for fear, that reason must be capable of being pointed out: and that a danger which does not admit of being distinctly stated, is no danger at all. Let any one, therefore, ask himself,—supposing the law good, and the accused innocent,—what possible harm can be done him by making his professional assistant tell all that he knows?

He may have told to his lawyer, and his lawyer, if examined, may disclose, circumstances which, though they afford no inference against him, it would have been more agreeable to him to conceal. True; but to guard him against any such unnecessary vexation, he will have the considerate attention of the judge: and this inconvenience, after all, is no more than what he may be subjected to by the deposition of any other witness, and particularly by that of his son, or his servant, or any other person who lives in his house, much more probably than by that of his lawyer.

Whence all this dread of the truth? Whence comes it that any one loves darkness better than light, except it be that his deeds are evil? Whence but from a confirmed habit of viewing the law as the enemy of innocence—as scattering its punishments with so ill-directed and so unsparing a hand, that the most virtuous of mankind, were all his actions known, could no more hope to escape from them, than the most abandoned of malefactors? Whether the law be really in this state, I will not take upon myself to say: sure I am, that if it be, it is high time it should be amended But if it be not, where is the cause of alarm? In men’s consciousness of their own improbity. Children and servants hate tell-tales; thieves hate informers, and peaching accomplices; and, in general, he who feels a desire to do wrong, hates all things, and rules of evidence among the rest, which may, and he fears will, lead to his detection.

Thus much in vindication of the proposed rule. As for its advantages, they are to be sought for not so much in its direct, as in its indirect, operation. The party himself having been, as he ought to be, previously subjected to interrogation,—his lawyer’s evidence, which, though good of its kind, is no better than hearsay evidence, would not often add any new facts to those which had already been extracted from the lips of the client. The benefit which would arise from the abolition of the exclusionary rule, would consist rather in the higher tone of morality which would be introduced into the profession itself. A rule of law which, in the case of the lawyer, gives an express heence to that wilful concealment of the criminal’s guilt, which would have constituted any other person an accessary in the crime, plainly declares that the practice of knowingly engaging one’s self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of the law-makers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument. We should not then hear an advocate boasting of the artifices by which he had trepanned a deluded jury into a verdict in direct opposition to the strongest evidence; or of the effrontery with which he had, by repeated insults, thrown the faculties of a bonâ fide witness into a state of confusion, which had caused him to be taken for a perjurer, and as such disbelieved. Nor would an Old Bailey counsel any longer plume himself upon the number of pickpockets whom, in the course of a long career, he had succeeded in rescuing from the arm of the law. The professional lawyer would be a minister of justice, not an abettor of crime—a guardian of truth, not a suborner of mendacity and not at his hands only, in another sphere, whether as a private man or as a legislator, somewhat more regard for truth and justice might be expected than now, when resistance to both is his daily business, and, if successful, his greatest glory; but, through his medium, the same salutary influence would speedily extend itself to the people at large. Can the paramount obligation of these cardinal virtues ever be felt by them as it ought, while they imagine that, on such easy terms as those of putting on a wig and gown, a man obtains, and on the most important of all occasions, an exemption from both?—Conclusion of Remarks by the Editor.]

§ 3.

Trustee and cestuy que trust.

On the subject of trust-prejudicing evidence, the decision, if not quite so simple as in the preceding cases, will be grounded on considerations not less conclusive.

The testimony being that of the trustee; whose are the feelings, in consideration of which the testimony in this case can be proposed to be excluded? The feelings of the cestuy que trust, the fidei-committee, to whose prejudice it redounds? But if the testimony thus proposed to be called for, were his own, no vexation of which the obligation could be productive, could form any sufficient ground for the exclusion of it. Will it be said, that the vexation produced in his breast by perceiving the evil in question brought on him by the testimony of another person, his trustee, will be greater than what would be produced by seeing the same evil brought on him by his own testimony? The answer will hardly be in the affirmative: but—be it on the one side or the other—in regard to the question of exclusion, it is not in the nature of things that it should make any material difference.

Is it in tenderness to the feelings of the trustee, that the proposed wound should be inflicted on the vitals of justice? But the vexation attendant on the delivery of the testimony could never rise to such a pitch as to constitute a sufficient ground for the exclusion of it, although it were on the desponent’s own head that the evil were to fall, much less where the head of another person is the head to bear it. Will the prospect of the suffering of the cestuy que trust be more insupportable to the trustee than if it were his own? Good, as between Nisus and Euryalus, Nisus being trustee. But our trustee is no hero; neither of an epic poem, nor a romance, nor even of real life. He is an average man: an exact likeness may be seen of him in the Propositus of Blackstone and Lord Coke.

Putting together the self-regarding feelings of the suffering cestuy que trust, and the sympathetic feelings of the trustee, will they by their joint force constitute a sufficient ground for the exclusion? That nothing may be overlooked, even this case shall undergo examination. Be it ever so strong, it will never be strong enough to support the exclusive rule. That practical point settled, the speculative question, whether the effect of the decomposition will be on the side of diminution or increase, may be left to take its chance.

The case of trusteeship, at least in the common as well as technical import of the word, will not rise above the level of that sort of evidence which, were it self-regarding, would fall under the denomination of self-onerative evidence: it will not rise to the level of self-criminating. It has never been proposed that, on the ground of his being trustee for a thief or murderer, a man should be exempt from the obligation of delivering testimony tending to convict such thief or murderer of his crime. In this more afflictive case, however, the ground for exclusion is, in proportion to the difference in point of afflictiveness, stronger than in the less afflictive case, where the loss of money or money’s worth would constitute the worst evil that could be made to fall on the cestuy que trust by the testimony of the trustee.

§ 4.

Husband and Wife.

The question, of which, the species of evidence, for the designation of which the epithet family-peace-disturbing has been appointed, is the subject, is a question in no small degree complicated. The necessity of grappling with it, owes its birth to the arrangements made on this subject by English jurisprudence.

Whatsoever be the relations (natural or factitious, temporary or perpetual) subsisting between a number of persons living together in the compass of the same family,—relations between husband and wife, parents and children, masters or mistresses and servants, housekeepers and inmates,—any event by which the emotion of ill-will is produced in any one of them towards any other, may pro tanto, be said to operate to the disturbance of the family peace: and ill-will being a bad thing, and peace a good thing, the more effectually any disturbance can by any arrangement of law be prevented from being given to it, so much the better. Disturbance of the peace of a family is vexation; and of vexation, if not necessary to the averting of a preponderant vexation, the production ought always to be avoided.

That,—testimony being delivered by a person standing in any one of these relations, such as to operate to the prejudice of the person standing in the opposite and corresponding relation,—vexation will be likely enough to be produced in the breasts of both, is manifest enough. But in any of these instances, ought such vexation to be considered as forming a sufficient ground for the exclusion of the testimony? Over and over again, the answer has been already made.

The case of husband and wife is the only sample which will here be taken, being the only one which is taken in English law for the ground of an exclusionary rule.

To present a distinct conception, the evil of the vexation capable of flowing from this source must, in the first place, be decomposed.

Evil flowing from sympathy, evil flowing from antipathy or ill-will:—to one or other of these two elements, the whole evil of the mixed mass may be referred.

1. As to the evil from sympathy, it has already been put into the balance, under the head of trust-prejudicing evidence. In the case of husband and wife, whether considered on the part of the male or on the part of the female, the affection or sympathy may naturally be considered as operating with greater, much greater, force, than in the case of an average trustee. On the other hand, a point not to be overlooked, is, that the opposite affection (and that acting with a force proportioned to the mutual vicinity of the two parties, and to the inflexibility of the ties of various kinds by which they are connected) is no less capable of finding a place. Yet, after all allowances made, it will not be less true that, as between an average husband and an average wife—as between Baron and Feme in the character of Propositos and Proposita—an affection of the sympathetic kind cannot in reason but but be considered as subsisting on either side, as between an average trustee and his average cestuy que trust.

Justice thus done to all parties,—the propriety of admission in this case, and the impropriety of the exclusionary rule, considered as placed on the ground of sympathy, will not be the less unquestionable.

With all possible disposition to do justice to the maintained affection maintained on the one hand in the breast of Propositus by the amiable qualities of Proposita—on the other hand, in the bosom of Propositus by the estimable qualities of Propositus,—it seems difficult to avoid admitting, that the affection of Propositus towards Proposita will not be altogether upon a level with the affection of the same Propositus for his earlier and still more intimate acquaintance, himself: and no less so as between the affection of Proposita towards Propositus on the one hand, and the affection of the same Proposita towards the amiable partner of Propositus on the other. For, let it not be forgotten, that the bosoms to which the thermometer is for this purpose to be applied, are the bosoms of Propositus and Proposita, not of Poetus and Arria, any more than of Nisus and Euryalus in the other case.

Thus much seemed necessary, yet not more than necessary, to give the corrective requisite for reducing to the standard of plain and ordinary nature the heroic dimensions given to the conjugal flame by the sentimentality of English lawyers.

As, therefore, vexation on a self-regarding account has been shown not to be a sufficient ground for exclusion, neither can the image of the same vexation, presented by sympathy.

Turn next to the evil from antipathy.

The law will not suffer the wife to be a witness for or against her husband: this is a proposition put by a reporter into the mouth of the first Earl of Hardwicke. “The reason is . . . . to preserve the peace of families: and therefore I shall never encourage such a consent.”* Here, by good fortune, we have a distinct proposition, with an assignable author, and be of the first degree of professional respectability.

When, on failure of the beaten track of analogy, we find among the opinions of professional lawyers an argument that wears upon the face of it any connexion with the principle of utility, it consists commonly in a reference to some one head of inconvenience or advantage, no account being taken of any other. But it is of the essence of law to be a choice of evils : including under the notion of evil, the absence or negation of this or that lot of positive good. It will happen, in many cases, that not only there shall be an advantage on one side to set against an inconvenience on the other, but in the one scale there shall be a number of perfectly distinct advantages, weighing against a number of equally distinct inconveniences in the other. A narrow and imperfect lot of reason, is better than a mere caprice, having no relation to good or evil, to pain or pleasure, on either side: but from an imperfect lot of reason, no better than imperfect conclusions can reasonably be expected.

In legislative argumentation it is not uncommon to have a number of reasons, such as they are, all grounded on the principle of utiliy, adduced on both sides: but in judicial argument, if you get a single article in the shape of an original reason, an indication of convenience or inconvenience, it is a sort of a prize. Cases against cases, i. e. decisions against decisions, you will have in plenty; but if you have anything in the shape of a rational reason—of a reason referable to the principle of utility,—you will find it stand alone; and a mere allusion, as vague and incompletely expressed as it is possible to conceive, is the shape in which it comes. Hard—hardship—policy—peace of families—absolute necessity:—some such words as these are the vehicles, by which the exhibits spark of reason that exhibits itself is conveyed. These are the leading terms, and these are all you are furnished with; and out of these you are to make an applicable, a distinct and intelligible proposition, as you can.

Hawkins, one of the best and most comprehensive heads the profession of the law ever possessed, had already taken up the same argument, and added to it another. “Regularly, the one shall not be admitted to give evidence against the other” (husband and wife,) “nor the examination of the one he made use of against the other, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardship of the case.”*

Implacable dissension is one argument: the same in substance as that which occurred to and weighed with Lord Hardwicke.

Great danger of perjury is another, not stated as having been noticed by Lord Hardwicke.

Of the words “extreme hardship of the case,” I cannot make out any argument distinct from the two preceding ones.

These are the reasons for which, not only the wife is not allowed to be called as a witness against her husband, but even her extrajudicial declarations are not admitted in evidence against him, though his own extrajudicial declarations are.

The argument from the danger of perjury arises out of the supposed sympathy, and therefore need scarcely receive any farther notice.

Suffice it to say, that if the danger of perjury be an objection against the calling in the sanction of an oath in this case, it is an objection against it in all other cases, and an objection that applies to the sanction with the greater force, the greater the need there is of it. If applied to the testimony considered in respect of the danger of falsehood, apart from the consideration of the sanction, it is an objection to all testimony:—if it applies to the case of the wife, considered with respect to her presumable unwillingness to do an act whereby her husband may sustain a prejudice, it applies with still greater force against all the instances in which a man’s own testimony is permitted to be called for against himself: it applies to one of the characteristic features of the practice of the courts styled courts of equity.

As to dissension,—which, to give force to the argument, is presumed, without the smallest alleged reason, to be implacable,—

The rule, if carried as far as it would go, being altogether destructive of the peace of families—of that peace which it is its professed object to protect,—in comes, in consequence, one class of exceptions, and that a very large one.† In case of an offence involving a personal injury committed by the husband against the wife, the testimony of the wife against the husband is admissible, and admitted in ordinary practice.*

When a man has inflicted severe bodily suffering on his wife—has been in the habit of thus filling her life with misery,—here is a cause of dissension, which, powerful as it is, experience proves to be by no means unplacable. Injuries of the like kind, it will sometimes happen (though, by reason of the usual superiority of force on the male side, not so frequently,) shall be inflicted—habitually inflicted, on the husband by the wife. A man forgives the wife who has put him to bedily forture; but it is not in the nature of a man ever to forgive the wife, who, being called upon in a court of justice for the purposes of justice, shall have dared to speak the truth! Where there is injury, and the highest degree of injury, forgiveness is expected, being in every day’s experience; where there is no injury—where the supposed cause of offence is a compliance with the injunctions of duty, forgiveness is regarded as altogether hopeless!

To be consistent with itself, the law should strew danger before every step which it could occur to a man to take in the path of criminality. Instead of that, it is the care of the law itself to remove the principal source of danger out of his way. To be consistent with itself, it should remove out of his way every possible assistance that can contribute to engage him in any course of conduct which it reprobutes and endeavours to prevent. Instead of that, it secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime.

If the dissension were, in the nature of the case, so implacable as the argument supposes, it should, consistently speaking, operate as a motive with the law to prescribe, rather than exclude, this source of information. If I attempt this crime, it may happen to my wife, from whom I cannot hope to conceal it, to be called upon to bear witness against me: and then,—even if I should escape from the punishment of the law,—the pain of seeing, in the partner of my bed, the once probable instrument of my destruction, will never leave me.

In the days when the exclusive rule in question took its rise, the reason in favour of it operated with a degree of force considerably beyond that with which it acts in these our days. The power of the husband over the wife was much stronger and more absolute. A time there appears to have been, when the exceptions, by which a wife is permitted to seek protection in a court of justice against ill-usage by the husband, were nor yet established. Morality was at the same time more loose—manners more harsh and savage; resentment, on so unbecoming a ground as that of a submission to the laws of truth and justice, was more likely to be conceived and harboured, more easy to be gratified with impunity, and more apt to be implacable.

A law which should exclude the testimony of the wife in the case of a prosecution against the husband for ill-usage done to the wife, would be tantamount to authorizing the husband to inflict on the wife all imaginable cruelties, so long as nobody else was present: a condition which, having by law the command in and over his own house, it would in general be in his power to fulfil.

A law which excludes the testimony of the wife, in the case of a prosecution against the husband for mischief done to any other individual, or to the state, is, in like manner, in other words, a law authorizing him to do, in the presence and with the assistance of the wife, every kind of mischief, that excepted by which she herself would be a sufferer. The law, which in the former case affords its protection to the wife,—with what consistency can it, in the latter case, refuse its protection to every human creature besides?

So often as the mask has been stripped off, can it be necessary to lay bare the real policy that lies at the bottom of this business?

A cause between Doe and Ux admits as many fees as a cause between Doe and Roe. In a case where there is nobody to swear for Ux, if Ux were not admitted, there would be no cause, no fees. Rule:—admit her evidence.

Very different is the case, where the cause is between one of the married pair, viz. the husband (by whom the cause, in a dispute with a stranger, is in general conducted,) and a stranger.

If a man could not carry on schemes of injustice, without being in danger, every moment, of being disturbed in them,—and (if that were not enough) betrayed and exposed to punishment,—by his wife; injustice in all its shapes, and with it the suits and the fees of which it is prolific, would, in comparison with what it is at present, be rare. Let us, therefore, grant to every man a licence to commit all sorts of wickedness, in the presence and with the assistance of his wife: let us secure to every man in the bosom of his family, and in his own bosom, a safe accomplice let us make every man’s house his castle; and, as far as depends upon us, let us convert that castle into a den of thieves.*

Two men, both married, are guilty of errors of exactly the same sort, punishable with exactly the same punishment. In one of the two instances (so it happens,) evidence sufficient for conviction is obtainable, without having recourse to the testimony of the wife: in the other instance, not without having recourse to the testimony of the wife. While the one suffers,—capitally, if such be the punishment,—to what use, with what consistency, is the other to be permitted to triumph in impunity?

The film of prejudice once removed, a very loose system of morality, or rather (to speak plainly) a system of gross immorality, will be seen to be at the bottom of these exemptive rules. The very crime which it punishes in one man—punishes even with death—it affords its protection to in another, it converts, or seeks to convert, the house of every man, into a nursery of unpunishable crimes. The same age of barbarism and superstition, the same age of relaxed morality, which gave birth to the institution of asylums, gave birth (there seems reason to think) to this privilege, which gives to each man a safe accomplice in his bosom. The mischievousness of the domestic asylum goes, however, far beyond that of the asylum commonly so called. The church, churchvard, or monastery, whatever it was, did not afford to the criminal anything like a complete exemption from all punishment: it was itself a punishment: it was banishment from his family: it included imprisonment, or a degree of confinement so close as to be scarce distinguishable from it: it placed him in a state of penury, humiliation, and dependence.

A rule like this, protects, encourages, inculcates fraud. For falsehood, positive falsehood, is but one modification of fraud: concealment, a sort of negative falsehood, is another: I mean, concealment of any facts, of which, for the protection of their rights, individuals of the public have a right to be informed. The concealment which is authorized by the law, it may be said, ceases to be fraud. No; that it does not: I mean, in this case. A concealment which is authorized by the substantive branch of the law, cannot be fraudulent: the authorization does away the fraud: what is authorized is legalized, criminality, and legality, are repugnant and incompatible. But the law cannot, without authorizing fraud, authorize by its adjective branch, the doing of that which, by its substantive branch, it has constituted a crime. By the punishment annexed to the act by the substantive branch of the law, the law has acknowledged and proclaimed its mischievousness; if the act be not mischievous, the legislator has no warrant for marking it out for punishment. But if the act be mischievous, on what ground, with what consistency, does it in any instance seek to exempt it from punishment, as if it were innocent?—exempt it in consideration of a fact purely irrelevant—a fact by which the mischievousness of it is not so much as pretended to be diminished? An article of adjective law which is at variance with the substantive law, is itself a fraud. The substantive branch of the law declares, undertakes, engages, for the benefit of all parties interested, that all persons offending so and so shall be punished so and so. The judicial authority, which, by a law of the adjective kind, of its own making, takes upon itself to exempt a man from such punishment, on a ground by which his case is not varied in point of guilt, violates that engagement. Fraudulent in itself,—so far as it encourages others to pursue that plan of concealment by which the engagement is violated, it is the cause of fraud in others. By aggregating the act to the class of crimes, and rendering it punishable as such, it declares it to be a mischievous act, and to such a degree so, as to be a crime. By authorizing an individual to conceal it, in a case in which it is not so much as pretended that its mischievousness is in the smallest degree less than in other cases, it at once protects and encourages two different acts, of the mischievousness and criminality of which it shows itself sufficiently sensible on other occasions;—the principal crime, and that concealment of it, which, when the act so concealed is criminal, is itself a crime.

It debases and degrades the matrimonial union; converting into a sink of corruption, what ought to be a source of purity. It defiles the marriage-contract itself, by tacking to it in secret a licence to commit crimes.

I say in secret; for the probability is, that an institution so repugnant to moral sentiments is not generally known, and, on that account, is not productive of all the mischief, of which, if known universally, it would be productive. No care being taken to enable men to possess themselves of that knowledge, on which their security, in every branch of it, is in a state of continual dependence,—the degree of information which they actually have of it, depends upon its natural aptitude for being guessed at. To the knowledge of what, on each head, is law, they have no other clue than such conception as they are led to form to themselves of what it ought to be.

Oh! but think what must be the suffering of my wife if compelled by her testimony to bring destruction on my head, by disclosing my crimes!—Think? answers the legislator: yes, indeed, I think of it; and, in thinking of it, what I think of besides, is, what you ought to think of it. Think of it as part of the punishment which awaits you, in case of your plunging into the paths of guilt. The more forcible the impression it makes upon you, the more effectually it answers its intended purpose. Would you wish to save yourself from it? it depends altogether upon yourself: preserve your innocence.

To the legislators of antiquity, the married state was an object of favour: they regarded it as a security for good behaviour: a wife and children were considered as being (what doubtless they are in their own nature) so many pledges. Such was the policy of the higher antiquity. The policy of feudal barbarism, of the ages which gave birth to this immoral rule, is to convert that sacred condition into a nursery of crime.

The reason now given was not, I suspect, the original one. Drawn from the principle of utility, though from the principle of utility imperfectly applied, it savours of a late and polished age. The reason that presents itself as more likely to have been the original one, is the grimgribber, nonsensical reason,—that of the identity of the two persons thus connected. Baron and Feme are one person in law. On questions relative to the two matrimonial conditions, this quibble is the fountain of all reasoning.

Among lawyers, among divines, among all candidates setting up for power in a rude age, working by fraud opposed to force, scrambling for whatever could be picked up of the veneration and submission of the herd of mankind,—there has been a sort of instinctive predilection for absurdity in its absurdest shape. Paradox, as far as it could be forced down, has always been preferred by them to simple truth. He who is astonished, is half subdued. Each absurdity you get people to swallow, prepares them for a greater. And another advantage is, the same figure of rhetoric which commands the admiration and obedience of the subject class, helps the memory of the domineering class: it is a sort of memoria technica.

All these parodoxes, all these dull witticisms, have this in common,—that, on taking them to pieces, you find wrapped up, in a covering of ingenuity, some foolish or knavish, and in either case pernicious, lie. It is by them that men are trained up in the degrading habit of taking absurdity for reason, nonsense for sense. It is by the swallowing of such potions, that the mind of man is rendered feeble and rickety in the morning of its days. To burn them all, without exception, in one common bonfire, would be a triumph to reason, and a blessing to mankind.

[Further remarks by the Editor.—The exclusion of the testimony of husband and wife, for or against each other, is in the number of the exclusions which, in an article already alluded to, are defended by the Edinburgh Review: “yet not entirely,” says the reviewer, “on account of that dread entertained by the English law, of conjugal feuds, though these are frequently of the most deadly character. But the reason just given, in the case of the priest, applies” (this refers to the opinion of Mr. Bentham, that the disclosure, by a catholic priest, of the secrets confided to him by a confessing penitent, should not be required or permitted:) “for the confidence between married persons makes their whole conversation an unreserved confession; and they also could never be contradicted but by the accused: while external circumstances might be fabricated with the utmost facility, to give apparent confirmation to false charges. But our stronger reason is, that the passions must be too much alive, where the husband and wife contend in a court of justice, to give any chance of fair play to the truth. It must be expected, as an unavoidable consequence of the connexion by which they are bound, that their feelings, either of affection or hatred, must be strong enough to bear down the abstract regard for veracity, even in judicial depositions.”

Want of space might form some excuse to this writer for not having said more; but it is no apology for the vagueness and inconclusiveness of what he has said.

The confidence, say you, between married persons makes their whole conversation an unreserved confession? So much the better: their testimony will be the more valuable. It is a strange reason for rejecting an article of evidence, that it is distinguished from other articles by its fulness and explicitness.

The reviewer must have read Mr. Bentham very carelessly, to suppose that his reason for excluding the testimony of the priest is, because the discourse of the penitent is an “unreserved confession:” this would be a reason for admitting, not for rejecting, the evidence. The true reason for the exclusion in the case of the confessor, is, that punishment attaching itself upon the discharge of a religous duty, would in effect be punishment for religious opinions. Add to which, that the confidence reposed by the criminal in his confessor has not for its object the furtherance, nor the impunity, of offences; but for its effect, as far as it goes, the prevention of them. To seal the lips of the wife, gives a facility to crime: to seal those of the confessor, gives none; but, on the contrary, induces a criminal to confide the secret of his guilt to one whose only aim will in general be to awaken him to a sense of it. Lastly, it is to be remembered that, by compelling the disclosure in the case of the confessor, no information would ultimately be gained: the only effect being, that, on the part of the criminal, no such revelations would be made. Not so in the case of the wife, who may have come to a knowledge of the crime independently of any voluntary confession by her criminal husband.

That the testimony of the wife could not be contradicted but by the accused person, her husband, and vice versâ,—which, if true, would be a good reason for distrusting, but no reason for rejecting their evidence,—is, in the majority of cases, not true. What the husband and wife have told one another in secret, no one but they two can know; and, consequently, what either of them says on the subject of it, nobody but the other has it in his power to contradict. But is not this likewise the case between the criminal and his accomplice, or between the criminal and any other person, with respect to any fact which occurred when they two were the only persons present? while, with respect to all other facts, the testimony of husband or wife would, if false, be just as capable of being refuted by counter-evidence as the testimony of any other witness.

The aphorism on which the reviewer founds what he calls his “stronger reason,” one would not have wondered at meeting with in a German tragedy, but it is certainly what one would never have looked for in a discourse upon the law of evidence. Strange as it may sound in sentimental ears, I am firmly persuaded that many, nay most, married persons pass through life without either loving or hating one another to any such uncontroulable excess. Suppose them however to do so, and their “feelings,” whether of affection or of hatred, to be “strong enough to bear down the abstract regard for veracity,” will they, in addition to this “abstract regard,”—a curious sort of a regard,—be strong enough to bear down the fear of punishment and of shame? Will they render the witness proof against the vigilance and acuteness of a sagacious and experienced cross-examiner? Or rather, are not the witnesses who are under the influence of a strong passion, precisely those who, when skilfully dealt with, are least capable of maintaining the appearance of credibility, even when speaking the truth; and, à fortiori, least likely to obtain credit for a lie?

But I waste time, and fill up valuable space, in arguing seriously against such solemn trifling—Conclusion of remarks by the Editor.]

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.

Of the case in which the exclusion appears to have rested on a double ground—that which respects deception, and that which respects vexation—one exemplification is constituted by the case in which the testimony in question is that of a party to the cause.

Receive his testimony at his own instance, the testimony will be false, and you will be deceived by it: call for it at the instance of his adversary, it will be hardship to him to be obliged to give it. Such (it may be presumed) are the reasons, by which the exclusions put upon the evidence of a person bearing this relation to the suit, have been suggested. But, in each instance, the insufficiency of the reason has been already brought to view: nor, though they are applicable to the same person, does the force of either make any addition to that of the other; for whereever the one applies, the other does not. The consequence is, that there is not an imaginable case in which the testimony of a party, be he plaintiff or be he defendant, ought to be excluded.

At his own instance,—the reason which forbids the admission of the testimony is weaker in this case than in the case of an interested extraneous witness. The real magnitude of the interest being the same in both cases,—in the case of a party the interest is more palpable: the objection created by it is likely to act with greater force upon the judicial faculties of the magistrate: his mind is more surely open to it: the danger of deception is therefore less.*

If, in so far as it operates in his own favour, the testimony of the party is liable to be drawn aside from the line of truth by the action of this force, which is so obvious even to the most unobservant eye,—in so far as it operates in his disfavour, it possesses, in a degree superior to all other testimony, a claim to confidence. That, in this case, the error, if any there be in the testimony, is not a wilful one—is not accompanied, at the same time, with a knowledge of the falsity of the information, and of the tendency it has to operate to the deponent’s prejudice—is a proposition, the truth of which is far more certain in this instance, than it can be in any other.

Accordingly, as often as the testimony of a party is received—so sure as it enters into the mind of any one who has to judge of it—so sure is it to be analyzed, and, as it were, divided into two parts. To the part which is regarded as operating in the deponent’s own favour, the incredulous, the diffident part of the judge’s mind, applies itself of course: while the part regarded as operating in his disfavour, commands, on the part of the judge, an almost unlimited share of confidence: in a word, what portion of the mass is understood as belonging to this division, is, by the common sense and consent of mankind, universally regarded as the best evidence.

Such is the evidence, of which, on the ideal supposition of extraordinary vexation, the rashness of a certain class of jurists has not hesitated to rob the treasury of justice.†

A party is not suffered to be examined on his own behalf. Observe the consequence: he is delivered without mercy into the hands of a mendacious witness on the other side. Your adversary, to make evidence for a suit he means to bring against you, sends an emissary to you to engage you in a conversation, that, when called upon as a witness, he may impute confessions to you such as you never made. When the evidence comes to be given at the trial, the witness tells what story he pleases: as for you, you must not open your mouth to contradict him, although, were you admitted to state what passed, it might be in your power to satisfy the judge, that the account given of the conversation by the witness could not possibly have been true.

If, instead of sending his agent, the plaintiff had gone with him, his testimony, it is true, would have been excluded as well as yours. In words, here is a sort of reciprocity; but in effect, no such thing. The plaintiff has no need to tell his own story: he has his witness, by the supposition a partial, and even corrupt one, to tell it for him. The plaintiff, instead of being a sufferer by the exclusion put upon himself, is a gainer by it: understand, where his plan of defence is dishonest, as it is here supposed to be. In his spontaneous examination, he would have had the advantage, it is true, of joining his witness in the concerted lie; but in their cross-examination (being kept out of each other’s hearing for that purpose,) they might have been brought to contradict one another, and thus the lie might have been discovered.

On this occasion, as on so many others, mutato nomine the law departs from its own principles: the same evidence which it refuses to hear at one time, in a cause called by one name, it admits at another time, in a cause called by another name: but the repentance comes too late for justice. In the original cause, the corrupt witness (things being as in the case above supposed) stands up uncontradicted, and carries his point. In another cause, if the injured plaintiff has courage and money to venture upon it,—in a derivative cause, growing out of the original one,—in an indictment brought against the perjured witness for the perjury,—the mouth of the corrupt witness (now converted into a defendant) is stopped, while that of the quondum plaintiff, now called a prosecutor, and under that name a witness in his own cause without difficulty, is opened.*

Here there are two causes, one after another, in each of which the judge hears but on one side; instead of a single cause, in which he might have heard on both sides. Not even by this second cause,—supposing the truth to come out, and the judge to be satisfied about it,—is it in his power to do justice: for in this second cause nothing more can be done than the convicting the perjured witness of the perjury: to do justice to the party injured by the perjury, there must be a third cause, of the same denomination as the first. And this is what justice gets, by the care taken to defend the wisdom of the judge from deception, and the feelings of the parties from vexation, by a rampart of excluding rules. The man of law is satisfied, because suits are multiplied: but where is the satisfaction to the injured suitor and to justice?

Another circumstance concurs in rendering the remedy still more inadequate. In the prosecution for the perjury, conviction ought not to take place, and naturally, will not take place, without the degree of persuasion commencement to the punishment attached to so high a crime: whereas, in the original non-penal suit, any the slightest degree of preponderant probability would have been sufficient to turn the scale.

On this head, correspond with English law, Roman law (with all its faults) distinguishes itself to great advantage. In simplicity, though absolutely imperfect, it is relatively transcendant.

In his own favour,—that is, at his own instance,—it suffers not the testimony of any party, of any person at least whom it recognises in that character, to be received: and thus far it does wrong.

But in his own disfavour, that is, at the instance of his adversary (or of the judge, in the case of inquisitorial procedure,) the testimony of the party is in every case received, and allowed to be called for: and thus far it does right.

As to admissibility, there is no such irrelevant and indefinable distinction as that between civil and criminal. The only difference is, that in a case recognised as a criminal case, the testimony of the defendant is called for of course, and in the first instance;—whereas, in a case recognised as a civil (that is, a non-criminal) case,—though the testimony of each party may be called for by the other,—unless called for by the opposite party, it is not called for, or received, by the judge.

It is to English law that we must look for modification upon modification; and that confusion and inconsistency, with the delectable and ever-cherished intricacy which, where there is but one straight course, is the necessary consequence.

Courts upon courts; each, in this part of the field, proceeding and judging by a different set of rules: as if the suitors were human creatures in some one of them, and beings of a different composition in the other. Harmonious disagreement! all tending to one common end.

Which shall we take for the general rule? For elucidation’s sake, let it be the rule of exclusion: the rather, as being consigned to one of those Latin maxims, which, though in universal currency, express with equal infidelity, both what is the practice, and what ought to be:—Nemo debet esse testis in propriâ causâ.

Taking this for the general rule, we shall find it cut into by exceptions upon exceptions; and that in each of the two parts into which we have seen it dividing itself.

This, for the rule with regard to the admission of the party’s testimony, in his own behalf. Next, with regard to the compulsory extraction of it, in behalf and at the instance of the other party, comes another Latin maxim, the absurdity of which has already been fully exposed:—Nemo tenetur scipsum accusare.

CHAPTER II.

EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE PLAINTIFF’S TESTIMONY BY ENGLISH LAW.

§ 1.

Plaintiff’s testimony, in what cases receivable in his own behalf. Inconsistencies of English law in this respect.

Among the inviolable rules of English jurisprudence, one of the most inviolable is this, that no man (understand, at his own instance) is to be a witness in his own cause: Like other inviolables, it is continually violated: let us observe the violations, and the contrivances by which they are reconciled to the rule.

In the first place, in all causes that are called criminal (and more especially capital ones,) the plaintiff is admitted. In cases of this class, supposing deception to take place, the mischief of it is at its maximum. The plaintiff is called prosecutor.*

By this change of name, he is divested of all bias—no less effectually than if it was by a little seal, a broad seal, or a sceptre.†

Oh! but at any rate the prosecutor has no pecuniary interest; and pecuniary interest is the only sort of interest which, in the opinion of an English lawyer, can produce any bias in the mind.

Indeed, but he has a pecuniary interest; as substantial a one in these criminal cases, as he can have in any civil (i. e. non-criminal) case.

In theft, and other cases of criminal depredation (it would be too much to say precisely which—a book might be written upon it,) the prosecutor, upon whose testimony the thief is convicted, gets back the stolen goods: and that (by an almost unexampled exertion of summary justice) without the expense of an additional suit.

In forgery, he does or does not, by the same means, make good his damage.* But here, if he does, there must be another suit for it.

† In assaults, in case of success, money may visit him in either of two shapes. Instead of being fined (the money going to the green wax,—that is, to the king’s private purse,) the defendant may be sent “to talk with the prosecutor:” or, being fined, a part of the fine (it must not exceed a third party) may be put openly into the prosecutor’s pocket.‡

Upon affidavit evidence, introduced by a motion “for an attachment,” or, by a polite circumlocution, “that the defendant may answer the matters of the affidavit,” causes of a pecuniary nature are tried every day in all the courts. No sooner is the cause intituled “The King against such a one” (but care must be taken that the title be not put upon it too soon,) than the cause becomes a criminal one: and the money, by which the plaintiff would otherwise have been turned into a liar, and the judges deceived, loses all its influence.

One thing is clear enough,—to any one at least whose eyes are not closed by science,—viz. that £50 is not made less than £50, by being given under the name of costs. Therefore,—of whatever nature may be the satisfaction, pecuniary, vindictive, or honorary,∥ the prospect of which is the motive that gave birth to the suit,—if reimbursement (partial as it is at best) under the name of costs, be among the consequences of success in the suit, the interest of it is of a kind as strictly pecuniary, as it is in the power of money to create.

In actions not comprehended under the denomination of penal ones, the exclusion put upon the evidence of the party (provided always there is but one) is no less, in effect, as well as design, inexorable, than in design it is in penal actions.

In the case we have just been viewing, the extensive case of injuries to person,—the same individual who, suing by a civil action, and called plaintiff, would not be heard, suing by an indictment or information, and calling himself prosecutor, is admitted without difficulty. But so long as the words employed are action and plaintiff, the difficulty is insurmountable, the judge inexorable.

To the admissibility of the prosecutor in the capacity of a witness, there is, however, one remarkable exception. There is a class of offences in regard to which, how noxious soever to the public (that is to say, to any or every individual,) no one individual can be found, who (unless by accident) has any interest capable of engaging him to take upon himself the expense and vexation attached to the function of prosecutor. In all these cases, either a fastitions interest must be created, or the offence go unpunished, and society fall to pieces. Accordingly, in cases of this description, as often as, by the prohibition and punishment attached to it by the legislature, an act was created into an offence, rewards were offered to the individual by whose exertions the conditions necessary to the infliction of the punishment should be fulfilled. In the whole, or in part, the punishment was put into a pecuniary shape, and termed a penalty: the penalty, in case of success (or a part of it,) constituted the remuneration of this temporary servant of the public. Costs,—that is, a reimbursement (never more than partial) of expenses of suit, under that name, were added or not added, according as the lawyer, by whom the legislator was led, happened, for this purpose, to be faithful or treacherous, awake or asleep.

What, on this occasion as on all others, was the care of the man of law, was, that rules of law should be observed: what, on this occasion as on others, was no part of his care, was, that offences should be prevented. It was decided, therefore, that the testimony of a witness of this sort—a witness who, in case of conviction, expected to receive the penalty, or any part of it—was bad, that is to say, inadmissible. Had the person to whom the reward was offered, been allowed to earn it by giving his testimony, he would have committed perjury: judge and jury would constantly have been deceived by the perjury, and so, instead of the guilty, punishment would have fallen upon the innocent. How so? For this plain reason: because the suit was called civil; and, in a suit denominated civil, the plaintiff is called plaintiff. Whatsoever else the king may get by the suit, what he does not get by it is, the title of plaintiff: which, consequently, finding no other place to rest on, rests upon the shoulders of him by whom the function is performed.

All instances of the exclusion of witnesses on prosecutions for offences created by statute, are acts of usurpation committed by the judicial authority against the legislative. But, in the case of the exclusion of informers, the usurpation is more particularly flurrant—I had almost said impudent. The legislature beckons a man into court; the judge shuts the door in his face.

All this while, unless those who know of an offence tell of it, it cannot be punished; and unless those who know of it are paid for telling of it, they will not tell of it: this the legislature is convinced of, and therefore offers money for the telling of it.

The legislature, satisfied that, without a factitious inducement, a man who has not the interest of revenge to prompt him, will not subject himself to the trouble, expense, and odium of bringing to punishment an offender, whose offence, how prejudicial soever to the public, produces no mischief that comes home in the shape of suffering to any particular individual,—orders that a reward to a certain amount shall be given by the judges to him by whom the information requisite for that purpose shall have been given. When the man comes for his reward, the judges refuse to give it him. Why? Is it that it was not the will of the legislature he should have it? No: but because the will of the legislature is contrary to their rules.

Such are the effects, political and moral, of these excluding rules: breach of faith, as towards individuals—breach of obedience, as towards the legislature.

It is among the maxims of men of law, that no man ought to be suffered to be wiser than themselves: but unless many men had been wiser, as well as more honest, than themselves, society would long ago have gone to wreck. The maintenance of society has all along depended upon the evasion of this rule of law. Society exists: therefore the rule has been evaded. The intention of the judges was to defeat the intentions of the legislature: individuals, by defeating the intention of the judges, have rendered to the public that service which it was their object to prevent, and to the legislature that obedience on which the preservation of society depends.

If the man who saw the offence committed has nothing to get by telling of it, he is an unexceptionable witness: but having nothing to get by telling of it, he has no inducement to engage him to tell it: and as telling of it in the character of a testifying witness at a distance from home, and under a certainty of being baited by lawyers, is attended with both vexation and expense, he has just so much inducement to prevent him from telling it. One of two things: either the man who on these occasions appears in the character of an uninterested witness, and, upon being interrogated, declares himself upon oath to be uninterested, is really an interested one; or, he acts without a motive—the effect is produced without a cause.

As often as the effect can be produced without a cause, they are willing (these men of science) that it shall be produced: they are willing (these upright ministers of justice and patterns of constitutional obedience) that the will of their superior, the legislator, shall be done. As often as the effect cannot be produced without a cause, their determination is, that it shall not be produced, and that the will of the legislator shall remain undone—that the law, which they are sworn to execute, shall remain unexecuted.

But they have a reason for what they do, and it is this:—to gain twenty pounds, a man will speak the truth; by coming and speaking the truth, he will lend his exertions to give execution to the laws:—therefore, for the some price, he will be ready to commit perjury. Yonder man cut the throat of a pig, the other day, for sixpence; therefore he would cut the throat of his brother for the same price. Such is the logic of these lawyers.

That by this logic and this wisdom, perjury was ever prevented in any one instance, seems not in the smallest degree probable: that by the same exertions it has in many instances been produced, seems in the highest degree probable.

By what contrivance the existence of the interest can be denied in words, in such manner as to save the witness from the danger of legal conviction,—what expedient is in these cases most usually relied on, and upon occasion employed,—I do not undertake (for it is not necessary) to know. As promising a one as any, appears to be this: in the present cause, in which I am plaintiff, you give me your testimony gratis; in the next cause you will be plaintiff, and then it will fall to my share to return the accommodation.

Another arrangement may be this:—The only man who knows of the transgression is forbid to tell of it. True: but the prohibition does not extend to those who know nothing about the matter. Well then: when a man who means to earn the reward, comes to me (A. B. an attorney) to know how he is to get it, this is the way in which we will settle it between us. Though he must not tell the judge in the first instance—though he must not put in for the reward (since if he did, the judges would not let him give the evidence which he must give to earn it,)—this will be no hindrance to me, who have no evidence to give. Let him, then, tell me the story: and I, or (what will do as well) John Doe, will put the story into grimgribber, to make it intelligible to the judge. When the trial comes on, the witness tells the story; when execution comes, I pocket the reward. The witness cannot receive a penny of it: but I am a man of honour, and too generous to suffer a good witness to be a sufferer by the time he has expended in the public service.

Is interest in reality cleared away by this manœuvre? Are effects produced without causes, as the sages of the bench intended they should be produced? Is the self-purgative oath, which must be swallowed upon occasion by the witness, nothing whose than an equivocation, pure from the taint of perjury? This will depend upon the skill and attention of the preceptor, and the capabilities of the pupil.

In the first instance, the laws turned into a dead letter by the precipitancy of a judicial rule! In the next place, something (to say the least) nearly approaching to perjury, the constant result of their connivance at the evasions put upon their own rules! Which is the worst—the disorder, or the remedy?

As the rule which admits the evidence of the plaintiff when called a prosecutor, is not without exceptions, so neither is the rule which excludes the evidence of the plaintiff when called a plaintiff. One exception—a very colossus of inconsistency—stares us in the face, and figures in all the books. A statute had been made, entitling a traveller to receive compensation at the expense of the hundred, in case of his being robbed between sun and sun. A decision was pronounced, by which, in this one instance, the inviolable rule was violated, and the party (the plaintiff in an action on this ground) was admitted to support his demand upon the district by his own evidence. The word given by way of reason was necessity:—unless this evidence be admitted, the law will fail of its effect.

It is difficult to see on what ground to rest the passing of this statute. Was it to excite the hundreders to vigilance? Was it to dissipate the loss, by breaking it down into impalpable portions, upon the principle of insurances? The first conception is altogether visionary, and the second is in repugnancy to it. Be this as it may, obedience to the legislator is always laudable, and especially on the part of a judge. But, for beginning the practice of admitting the plaintiff’s evidence, it seems difficult to imagine a case in which the demand for the exertion could have been less, or the danger more formidable. Even without any view to protection, more journeys are taken in company than in solitude. In this case it would have been easier than in a thousand others that might be mentioned, for a man to provide himself with preappointed evidence. To carry a witness with him, might be attended with expense; to show to a friend the contents of his purse at starting, would involve no expense.

One circumstance fills up the measure of absurdity. Conceive the whole number of rateable inhabitants in the hundred escorting the traveller the whole time he employed in traversing it. The traveller swears he was robbed: the hundreders swear he was not, for they were with him all the time. The one really interested witness would command the verdict: the five hundred nominally interested, but really not interested witnesses, would not be suffered to open their mouths.*

Absurd as the admission is in a relative, I mean not to hold it up as such in an absolute point or view. Under favour of such encouragement, here and there a case has probably happened in which a trandulent demand has been made on this ground, not impossibly a successful one. But, from the station which such a law, supported by such a decision, still maintains in the statute book, a pregnant proof is surely afforded (were all others wanting) how little the interests of truth and justice would have to apprehend from the unreserved admission of the party’s testimony in his own favour in any imaginable case.

Equity presents a different scene: for the same mode of searching after the truth is good or bad, according as, in speaking of it, you pronounce the words common law or equity.

Ask an equity lawyer, ask any lawyer; he will tell you without difficulty, and without exception, that in equity the testimony of the plaintiff never is admitted: no, not in any case whatever. Thus much certainly is true, that it never is admitted to any good purpose: but thus much is no less time, that it is admitted to every bad purpose.

Here, on this occasion, the arrangement we set out with is unavoidably departed from. Striving, in behalf of existing establishments, to find, as far as possible, for everything an honest reason—a reason referable to the ends of justice,—I set out with taking the fear of producing deception, and the fear of producing vexation, as the causes of the existing arrangements. But here, both principles of arrangement fail us altogether. The phenomena, as we see and feel them, will be effects without a cause, if anything but the pursuit of the spurious ends of judicature, the ends really pursued in the formation of the technical system, the professional interests, had been in view and aimed at.

In the first place, to consider the testimony of the plaintiff as proffend by himself.

For the purpose of the ultimate decision—for the purpose of giving termination to the suit, it is not admitted. Why? Lest, peradventure, the suit should be brought to an untimely end. But, for the purpose of giving commencement to the suit, the testimony of this same party is admitted. And here, last groundless demands should be excluded, and malâ fide suits prevented, by the fear of punishment as for perjury, that punishment is taken off; and the mendacity-licence, which we have seen constituting the basis of the technical system of procedure in the common-law branch of it, is extended to this pretended purer branch, the equity branch.

In the instruments by which suits are commenced in the way of common law, the mendacity could be, and accordingly was, cloaked to a certain degree by the generality of the terms. To the equity branch, this cloak could not be extended: for neither the grounds of demand, nor the services demanded at the hands of the judge, having been put into any sort of method (not even that wretched method into which the matter of common law has been shaken by the fortuitous concourse of atoms,) a particular story required in every instance to be told.

A court of equity being a shop, at which, for the accommodation of those for whose purposes the delays sold by the common-law courts are not yet sufficient, ulterior delays are sold to every man who is content to pay the price; suits are every day instituted in the equity courts, by men who themselves are as perfectly conscious of being in the wrong as it is possible for man to be. A man who owes a sum of money which it is not agreeable to him to pay, fights the battle as long as he can on the ground of common law, and when he has no more ground to stand upon, he applies to a court of equity to stop the proceedings in the common-law court, and the equity court stops them of course. Among the uses, therefore, of a court of equity, one is, to prevent justice from being done by a court of common law.

There are many men who, though they have no objection to reap the profit of falsehood, would not be content to bear the shame of it, notwithstanding the suspension put upon all punishment—legal punishment, by the mendacity-licence above mentioned. The feer of shame would be apt to stare a man in the face, if, after reading a story composed more or less of facts which he knew to be false, it were necessary for him to adopt them, and make himself known for a bar by his signature. Accordingly, care has been taken that no such unpleasant obligation shall be unposed. The story is settled between two of his professional assistants, his attorney (in equity language, his solicitor,) and his counsel: as for the complinant himself (for so in equity the plaintiff is called,) the orator (for so in the same language he is made to call himself,) what is probable is, that he does not—what is certain is, that he need not—ever set eyes on the story thus told under his name.

Such as the seed is, such will the harvest be. Even when the plaintiff is in the right, his bill (such is the name given to his story) is a great part of it, to the knowledge of every body, a tissue of falsehoods. The great judge, who knows better than to administer equity unless a composition of this complexion has in regular form been delivered in at the proper office, knows it so to be. It is accordingly a settled maxim with him, that no credit is to be given to anything that is put into a bill. Falsehood, in equity as well as common law—falsehood (every equity draughtsman is ready to tell you) is necessary to justice. Accordingly, if through delicacy (which never happens,) or from some other cause (which frequently happens,) the attorney and the counsel between them fail of inserting the requisite quantum of falsehoods, no equity is to be had till the deficiency has been supplied. To assert, in positive terms, a fact concerning which a man is in a state of ignorance, is to assert a falsehood; and if there be such a thing as a lie, it is a lie. A lie of this sort a court of equity exacts from every plaintiff, as a condition precedent to his learning from the pen of the defendant what it happens to be necessary for him to know.

Thus then stands the practice, with regard to the admission of the plaintiff’s testimony, considered as delivered at his own instance. For the purpose of justice, it is not admitted: to the effect of vexation and expense, and for the purpose of the profit extracted out of the expense, it is admitted—admitted and exacted. Nor need he entertain the smallest hope for justice, unless, to swell the account of profitable expense, this testimony (such as it is) is stuffed with falsehoods.

The real purpose of equity procedure will be seen standing in a still more conspicuous point of view, when we come to consider how far, under the rules of the same courts, admission is given to the testimony of the plaintiff, when called for at the instance, and consequently with a view to the advantage, of the defendant.

§ 2.

Plaintiff’s testimony, in what cases compellable at the instance of the defendant Inconsistencies of English law in this respect.

The plaintiff, is he compellable to testify against himself?—to testify at the instance of the defendant?

Under this remaining head, as under the former, let us observe, in the first place, how the matter stands at common law.

In cases called criminal cases, at the trial, the plaintiff (we have seen) is, under the name of prosecutor, always a witness at his own instance, and consequently for himself; frequently the sole witness. When in this way he has been testifying for himself, the defendant, in virtue of the right of cross-examination, possesses the faculty of causing him to testify against himself. That the plaintiff should be called upon to testify by the defendant in the first instance, is what can never happen, at least never does happen. Expecting the plaintiff, the prosecutor, to come forward, and testify of course pro interresse suo,* it can scarcely occur to the defendant (that is, to the professional assistants of the defendant,) to call for his attendance in the defendant’s name.

In those criminal cases in which, as above, there is but one inquiry, and that inquiry carried on (if the contradiction may be allowed) by uninterrogated evidence, neither party saying any more than he thinks fit,—the plaintiff, in particular, is not compellable to say anything at the defendant’s instance. Here again, however, to place the case in a correct point of view, the distinction between compulsion ab extrà and compulsion ab intrà must be called in. The prosecutor is not, any more than the defendant, compellable at the instance of the adversary, by the fear of any collateral punishment, like an extraneous witness; the prosecutor, as well as the defendant, is impelled by the interest he has at stake in the cause, to say everything that he can say with safety in support of the interest he has in the cause. So far then as the defendant, in his affidavit, says anything that can operate to his own exculpation, this defence is a sort of call (though an indirect call) upon the prosecutor, to bring forward any further facts (if he has any which he can advance with safety) that promise to operate in refutation of such defence.

The facts thus brought forward in reply,—at whose instance are they brought forward? At the defendant’s, if at anybody’s. But in whose favour do they operate? As certainly, in the prosecutor’s, and his only. Are there any, that, if brought forward, would operate to the advantage of the defendant—to the disadvantage of himself? So surely as he knows of any such, so surely does he keep them all to himself. So far from being called upon for them by particular interrogation, he is not so much as called upon for them by the general terms of his oath. Before a jury, the deponent being an extraneous witness, the oath says,—“The evidence you are about to give shall be the whole truth,” as well as “nothing but the truth.” “The contents of this your affidavit are true,” says the person by whom the oath is administered to a deponent on the occasion when he is said to make affidavit. Correctness is stipulated for, how ill soever secured: completeness, absunce of partial imperfection, is not so much as stipulated for.

Such is the form, the only form, in which the judges (I speak of that class of which learning is the exclusive attribute) will suffer testimony to be delivered to them, when the decision grounded on it is to be framed by themselves.

In the case of those accessory, and most commonly redundant, inquiries, which, in indictments and informations, precede or follow that principal one which is called the trial,—the testimony, being likewise in the form of affidavit evidence, falls, in like manner, under the last preceding observations. So likewise in the case of those comparatively summary causes, in which (though ranked under the head of civil causes) the suit,—instead of commencing by a declaration delivered in at an office, and never looked at by the judge,—commences by a motion, i. e. by a speech made to the judge, in open court, by an advocate.

In the case of the examinations by which, in felonious and peace-breaking offences, the trial is preceded (inquiries performed by a justice of the peace,) the obligation of the prosecutor to testify at the instance of the defendant, and thence to the disadvantage of his own cause, stands on the same footing as at the trial, as above.

In a nearly similar, though not exactly the same, predicament, stands the ex-parte inquiry, which, in all suits prosecuted by indictment, is carried on in secret before the grand jury, antecedently to the trial. No defendant being there, nor any person on his behalf, the plaintiff cannot be compelled to testify at the defendant’s instance. But at the instance of any one of those his judges, the prosecutor—whole occupied in delivering his testimony at his own instance, and consequently to the advantage of his side of the cause,—may, and frequently does, by questions put to him by any of those judges, find himself under the obligation of disclosing what may operate to the disadvantage of it. Such counter-interrogation has the effect of cross-examination, in so far as the zeal and probity of the judge alone may be considered as an adequate succedaneum to that same zeal and probity added to the interested zeal of the party (the defendant) whose safety is at stake.

Let us next suppose the case civil; and the procedure still at common law, viz. by action.

Principal or sole inquiry,* the trial.

On this occasion, unless the plaintiff, by any of the expedients above spoken of, has contrived to deliver his own testimony in his own favour, the defendant cannot, by the single powers of common law, draw upon that same source for any testimony which he on his part may stand in need of.

But if the plaintiff has contrived, in any such way, to give himself the benefit of his own testimony, the defendant, in virtue of the right of cross-examination, may also put in for his share.

In general, therefore, at common law, the defendant has no means of obtaining the benefit of the plaintiff’s testimony: in no case without the consent of his adversary; nor then, but at the adversary’s own instance, and by the adversary’s own contrivance: that is, in no case but where, in all probability (and at any rate in the opinion of his adversary, the plaintiff,) it will be of no use to him.

I said, by the single powers of common law. The limitative clause was necessary. For in certain cases (though nobody knows exactly what cases,) by the assistance of a court of equity, the testimony of either of two persons about to appear in the characters of plaintiff and defendant at common law, may be extracted at the instance and for the benefit of the other. To the extent, therefore, of the aggregate, whatever it be, of these cases (concerning which, quære, quære, et in æternum quære,) the objection to the admission, the forced admission, of the plaintiff’s testimony, has for its psychological cause—not the fear of deception, not the fear of producing vexation (viz. excessive and preponderant vexation,) but, if vexation must be mentioned, the fear of not producing enough of it.

But, as the draft drawn upon the breast of the adversary for evidence is more apt, much more apt, to be drawn by that of one of the two parties who institutes the suit, than by the other, who is dragged into it,—the consideration of this mode of making holes in the door shut against the light of evidence will be considered to more advantage, when the defendant’s side of the cause comes under review.

Thus much for common law: we come now to equity law.

The testimony of the plaintiff, is it allowed, in these courts, to be delivered at the instance, and thence for the benefit, of the defendant? Not it indeed. But why not? Because, if it was, the man of law, in all his forms, would lose the benefit of a second cause. The delay, vexation, and expense of a suit at common law, is not enough for him: the delay, vexation, and expense of an equity suit, coming upon the back of a common-law suit, is not enough for him:—there must be a second equity suit,—or (so it will be in many instances) the facts in the case will be but half brought out—will have been brought out only on one side.

There must be what is called a cross cause, commenced by a cross bill, in which the plaintiff and defendant change sides: and the same individual, on whose testimony not a single fact was deemed fit to be believed, is now believed; and believed to such a degree, that the testimony of a disinterested witness, by whom his testimony should be contradicted, would tell as nothing: the judge would not so much as stay to inquire which of the two testimonies, the interested or the disinterested, seemed most deserving of credit, but would ground his decree upon the interested testimony, just as if the disinterested had never been received.

In this particular, so far as extortion and denial of justice are improvements, the English edition of the Roman system of procedure is no small improvement on the continental edition: to judge of it at least by the practice in French law. In French law, in the course of one and the same suit, though neither party is supposed to deliver his testimony at his own instance, each party obtains the testimony of the other.

The old French law, with all its plagues, the French modification of the technical system, inclosed no such curse as that of two sets of courts, each operating with powers kept imperfect, that assistance and obstruction may be obtained from the interposition of the other. The inquiry which in the English system occupies three suits—one common-law and two equity suits—was in the French system dispatched in one.

Even under the English edition of the Roman system—in that division which, in virtue of a connexion already become obsolete, goes still by the whimsical name of ecclesiastical law,—more honesty or more shame has been preserved, than thus to make two grievances out of one. In the courts called ecclesiastical, as in French law in all the courts, in the course of one and the same cause (I speak of causes non-penal) each party obtains the testimony of the other.

CHAPTER III.

EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE DEFENDANT’S TESTIMONY BY ENGLISH LAW.

§ 1.

Defendant’s testimony, in what cases receivable in his own behalf. Inconsistencies of English law in this respect.

We come next to speak of the case where (the suit, as before, not affecting more than one party on each side) the party whose testimony is in question is the defendant.

Is the testimony of the defendant admitted at his own instance?

Here, as before, the answer will be different according to the species of the suit: i. e. whether it be criminal or civil: and it civil, whether the theatre be a court of common law, a court of equity, or an ecclesiastical court: and (whatever be the suit) according to the stage of the cause; i. e. which inquiry it is, of the several inquiries which the species of suit admits of, where it admits of more than one.

1. Case, criminal: procedure at common law.

I. In this case, as in that of the plaintiff, in the first place let the cause be a criminal one; mode of procedure by indictment; inquiry, the principal one—the trial.

At the trial, is a defendant allowed to deliver his own testimony at his own instance, and consequently in his own favour, to his own advantage? No, and yes: no in words; yes, in effect.

In words, no: for in that station, let a man say what he will, it is not evidence. No oath can be administered to him; lest, if that security for veracity were applied, it might have the effect of confining his statements, his non-evidentiary statements, within the pale of truth; which “would be inconvenient.” Not so much as a question can be put to him by anybody. Not by his own advocate, if he be rich enough to have one; not by that advocate on the side of the prosecution; not even by the judge. By being circumstantiated, distinct, complete, and methodical, his statement, if true, might be seen to be so; if false, or incomplete, might be made to appear so; which again, according to established legal notions of inconvenience, would be inconvenient.

In effect yes; for so long as it is not called evidence,—nor subjected to any of those processes by which evidence is purged (or endeavoured to be purged) of its deceptitious qualities,—he may say whatever he chooses to say, under the name of his defence.

As to the judges ad hoc—the jury, with the uniform degree of suspicion naturally called forth by the view of the situation in which they see him placed, added to the variable degree of suspicion called forth by the evidence that has been delivered on the other side, they form their judgment of the trustworthiness of this non-evidentiary statement: taking into account, at the same time, its consistency or inconsistency with itself, and with such relevant faces as are of themselves sufficiently notorious without evidence. What they do think about, in judging of this statement, is, its trustworthiness or persuasive force, intrinsic and extrinsic, as above: what they do not think about, in judging of it, is, the kiss that has not been given to the book; for as to any security that may be supposed to be given by any such kiss, for the truth of the assertion, or the performance of the engagement supposed to be sanctioned by it [the absence of,] it cannot be a secret to any one of them who, to get out of the box so much the sooner, has joined in a verdict of not quilty, in favour of a defendant of whose guilt he was at that time persuaded in his own mind.

No counter-interrogation. Will the absence of this security for correctness and completeness present itself to a juryman as a reason for paying no regard to what he hears? Yes; when their learned directors cease to receive affidavit evidence—uninterrogated evidence, to the exclusion of interrogated evidence.

In offences of the rank of felony, the case is comparatively so rare, in which a man in that unhappy situation has anything plausible to say for himself (especially in the character of testimony,) that, comparatively speaking, the operation of this non-evidentiary sort of testimony seldom presents itself to view.

2. Case criminal, as before.

Is the mode of procedure by information? The chance which a defendant has of profiting in this way by his own testimony, will not be essentially different. But, his situation not being in this case so apt to attract the compassion of the public as in the other,—the quantity of suffering to which he stands exposed, not being so great as in those cases which occupy the largest space in the list of indictments, the defectiveness of his claim to have his non-evidentiary statement received on the footing of evidence, will not be so apt to pass without remark.

Moreover, among indictments, a considerable number will always be pauper causes. Nine-tenths, at least, of the cases which come on in the way of indictment, are cases of depredation; and these have, almost all of them, either by statute, or by jurisprudential law, been promoted to the rank of felomes. By pauper causes, I mean here such wherein the defendant is not rich enough to engage an advocate. Having no one to speak for him, on the part of a jury there will naturally be the more readiness to hear a poor culprit speak for himself.

Besides, in felonies, the tongue of the defendant’s advocate (when there is one) is but half let loose. Questions,—interrogations and counter-interrogations, for the extraction of testimony,—he is allowed to put. Statements, or observations on the evidence, it is not allowed to him to make.*

Indictments, especially in cases of felony (by far the most numerous class of indictable cases,) are, therefore, many of them, pauper causes. But informations are none of them pauper causes: a principal recommendation of this mode of prosecution, as compared with indictment, being the property it possesses of loading the parties with an extra mass of expense—the enormity of which has no connexion with the merits—which, being never held up to view in the sentence, is of no use in the way of example, and has no other effect than that of impoverishing the suitor, and enriching the man of law.

3. Case criminal, as before: mode of procedure, by attachment: principal or sole inquiry (if inquiry it may be called, where there are no questions,) by receipt of affidavit evidence. Here all discrimination, all subterfuge, is at an end. So long as he is not checked by any such inconvenient curb as that of counter-interrogation, and on condition of his taking the pen of an attorney to speak through, instead of his own lips (or rather on condition of his setting his hand to sign what the attorney has said of him and instead of him—for in affidavit evidence the deponent never speaks for himself,) let his designation be what it may, extraneous witness or party, plaintiff or defendant, his testimony is received with equal deference. Interested or not interested, perjured or unperjured,—thus introduced, all doors and all ears are open to the testifier.

When an exclusion is put upon testimony, the objection is, nominally and ostensibly to the station of the proposed deponent—really and at bottom to the shape in which the testimony is presented. Give but this shape to the testimony—a shape to the purposes of justice the most unsuitable, to their own purposes the most profitable,—learned gentlemen on this occasion pay no more regard to their own rules—their own most sacred and fundamental rules—than on this and all occasions they pay (unless it be for the purpose of contravention) to the ends of justice.

4. These same observations apply of course, and with equal force, to all that multitudinous and most extensive list of cases, in which, to the exclusion of all better evidence, testimony is received in this unquestioned and thence most questionable shape.† 1. In re criminali,—on indictments, on occasion of the supplemental inquiry; on informations, on the preliminary as well as on the supplemental inquiry. 2. In civili,—at common law and equity law, in all motion causes, on the sole inquiry. 3. In the sort of motion causes called petitions—causes relative to the estates of bankrupts,‡ and heard by the highest equity judge, in a mode that by its summariness forms the most striking contrast to the regular equity mode,—on the inquiry which, in that unusually important class of cases also, is the only one. 4. On the occasion of all those incidental applications, which (be the cause where it may, and what it may) are received in the course of the cause; and for which the occasion has been manufactured in such abundance, and with such successful industry.

5. Procedure, by indictment, as before: inquiry, the preliminary one, the examination, as it is called, before the sort of judge called a justice of the peace, acting singly.

On this occasion,—there being, or not being as yet, a person, established (under the name of prosecutor) in the station and function of plaintiff,—the testimony of the defendant, in relation to himself, is called for by the judge. Called for from that commanding station,—the occasion and the station of the respondent being more or less perilous,—for the most part, if he be guilty (as in most instances he is,) it comes from him with reluctance: but, while what he thus wishes to withhold is extracted from him against his wishes,—whatever his wishes prompt him to deliver at the same time, pours itself out of course at the same gate. What he thus advances on his own behalf, is it, or is it not, evidence? Once more, yes and no. Yes, to the purpose of the question, whether he shall be subjected or no to ulterior prosecution, and for that purpose consigned to imprisonment for safe custody. No, to the purpose of the question ‘guilty or not guilty;’ the question to be decided at the trial. Yes, in the first case, in effect: no, in both cases, in words.

6. Procedure, by indictment, as before: inquiry, the preliminary one, before the grand jury.

On the occasion of this partial and secret inquiry, the presence of the defendant being neither compelled nor admitted, his testimony, as well at his own instance as at the instance of his adversary or the judge, is out of the question.

II. Civil cases, at common law.

Case, a civil one; procedure, in the way of action: inquiry, the principal one, the trial: (the only one, except the sham inquiry composed of the pleadings—the inquiry carried on by lawyers on both sides, for the benefit of themselves and their superiors and protectors, by reciprocal effusions of falsehood, of vague assertion, and nonsense, poured out under the mendacity-licence, without the signature, and, as to details, without so much as the privity of the suitors who are made to pay for it.)

On the occasion of the trial, occasion has been taken to delineate the plaintiff, appearing in disguise, in causes of this class, in the character of an extraneous witness: admitted, in that character, in spite of technical rules and principles, to employ his own testimony in the support of his own claims.

In this advantage the defendant has no means of sharing. At the trial, he is not shut out, because nobody is shut out. But at the trial, speak he must not: not in his own character; nor is there a crevice through which he can creep in, to speak in any assumed one.

Speak indeed he may, if mere speaking will content him, without speaking to any purpose. For, in cases of this class, defendant and plaintiff standing on even ground, and without any nook for compassion (real or hypocritical) to plant itself upon, and cry, Hear him! hear him! whatever he may (if he have courage) insist upon saying, will be watched by men with sieves in their hands; and whatever testimony he may take upon him to throw in along with his matter of argument and observations, will be carefully separated, and forbidden to be lodged in the budget of evidence.*

One case there is, which for its oddity, as well as its inconsistency and absurdity, is worth observing.

This is the case of a mandamus.† Like an attachment, a mandamus is a writ of a special nature. Like an attachment, this writ is not to be had without asking for in open court: and it is by affidavit evidence, that, on this as on all other occasions, the application is supported and opposed. In the case of the attachment, the writ is directed to the sheriff, and commands him to seize the body of the defendant, and do with it, he knows how: in the case of the mandamus, it is addressed to the party, the defendant.

But the curious circumstance, and that which brings it under the present head, is this:—When once the writ is issued, not only the testimony of the defendant is admitted, but no other evidence is admitted: when admitted, it is admitted not only without the check of counter-interrogation, but without so much as the sanction of an oath: and in this shape, still less trustworthy than even that of affidavit evidence, it is not only admitted, but made conclusive.‡

III. Civil cases in equity law.

In equity procedure, the case of a defendant proffering his own testimony without its having been called for on the part of the plaintiff, can never happen: a suit in equity never commencing in any other way than by an instrument called a bill, in which the plaintiff calls for the defendant’s testimony.

After so much as has been said, it surely cannot require in this place any fresh argument to prove, that no real service can be done to the interests of truth and justice, by taking, or attempting to take, each man’s testimony by halves; cutting out of it whatever part of the facts happen to operate to his advantage—retaining such only as are supposed, on the other side, to operate to his disadvantage. But, for the purpose of illustration, the consequences of the attempt as conducted, may not be undeserving of notice. Though neither party is permitted, at his own instance, to bring to light, among the facts that have come to his knowledge, such as appear to him to operate in his own favour,—each party has, in a greater or less degree, the opportunity of bringing to view those same facts, in the event, and through the means, of the interrogation which may be administered to him by the other. But on what depends the defendant’s chance of bringing to light the whole or any part of such of the facts that come to his knowledge, as appear to him to operate in his own favour? Not upon the merits of his cause—not upon the truth or importance of these same facts;—but, in the first place, and in some degree, upon the dexterity of his professional assistant in coupling the facts of the one description with those of the other; in the next place, absolutely and conclusively upon the pleasure, upon the accidental circumstances and exigencies of the situation of his adversary the plaintiff, coupled with the sagacity and judgment displayed by the professional assistants on that side, in their endeavours to turn to the advantage of their client the views of the law. Of the facts brought to view by the defendant, let those which operate in his favour be ever so true and ever so important, not one of them will the judge ever hear of, if such of the facts as operate to his prejudice are testified by such other evidence as, in the judgment of the advisers of the plaintiff, are sufficiently conclusive: so that, as to all facts derivable from that source, the chance which they have of operating with such weight as is their due upon the mind of the judge, depends not either upon their truth or their importance, but upon the will and pleasure of a party, who, the juster the claim is to admission, is so much the more strongly engaged by interest to refuse it.

§ 2.

Defendant’s testimony, in what cases compellable at the instance of the plaintiff. Inconsistencies of English law in this respect.

The testimony of the defendant, is it compelled at the instance of the plaintiff?*

1. Case, criminal: procedure, at common law.

1 & 2. Case, criminal: procedure, by indictment or information: inquiry, the principal one, the trial.

On this occasion, no compulsion, direct or indirect: not so much as a question permitted to be asked. The defendant, as already stated, says what he pleases in his own behalf; tells consequently (as often as, being guilty, he says anything in the way of testimony,) a false and imperfect story: not a question is to be put that can tend to the correction or completion of it.

Our business here is with the fact: the actual state of the law. With reference to the ends of justice, what the consequence is, has been already brought to view: to the guilty, nothing but impunity and triumph; to the innocent, nothing but danger and inconvenience.

It is not that no testimony is to be received from this same source; on the contrary, any testimony is received, that either has come from it, or (though untruly) has been said to come from it. Any testimony, so the purport or pretended purport of it be but delivered through the medium of another pair of lips—delivered in the shape of hearsay evidence,—is received: unsworn, uninterrogated: if inaccurate, uncorrected; if imperfect, uncompleted.

Here, then, comes the often-presented question, followed by the as often-returned answer. The testimony of the defendant, at a criminal trial, is it compellable? No, and yes, no, in the most trustworthy shape; yes, in an egregiously untrustworthy one. Blessed tenderness! Encouragement to the guilty, injury to the innocent, resolving itself into a predilection for bad evidence!

3. Inquiries of all sorts (sole, principal, supplemental, preliminary, in criminali, in civili, on the principal point, on incidental points) performed by the receipt of affidavit evidence.

In regard to admissibility, at the will of the defendant, and consequently in his favour, how the matter stands has been seen already. But,—when coupled with the consequences that have been made to follow upon silence,—admission, permission, is compulsion. Every assertion contained in the affidavit of the plaintiff, or of any extraneous witness testifying in this way in his behalf,—every such assertion, so it be not irrelevant, is in effect a question, though a leading, a suggestive one. Deny the fact, or you will be considered as affirming it, as confessing it.

But the mass of assertions contained in the plaintiff’s affidavit, though a sort of succedaneum to a string of interrogatories, is a constantly imperfect and inadequate one: the interrogatories, if such they may be termed, delivered uno flatu, not arising out of the answers: the silent virtual confession returned to some of the questions, smothered by the responses (satisfactory or evasive, distinct or indistinct) given to others.

To display in detail the imperfections inherent in the nature of affidavit evidence, belongs not to this place: it has been done in a former Book.*

Thus much may suffice to warrant the introduction of the already presented question, followed by the ambiguous answer which there is such frequent occasion to subjoin to it.

On the inquiries (criminal and civil) in which the evidence is cast into the shape of affidavit evidence, is the testimony of the defendant compellable? Yes, and no: not compelled in any good shape; compelled in this egregiously bad one. Tenderness or no tenderness, at any rate a predilection for, a preference (and that an exclusive one) to, bad evidence.

4. Procedure, by indictment: inquiry, the preliminary one, the examination before a justice of the peace, as above.

On this occasion, too, the defendant, in respect of the delivery of his testimony, lies under a sort of compulsion: and that more efficient than we have seen it in the case of ready-written testimony. To produce the compulsion, no extraneous force is indeed employed; but the other sort of compulsion just described, compulsion ab intrà, in this as in those other cases. On this occasion it will seldom happen that the testimony of the defendant is called for, that he is put to the bar to be examined, till some other evidence, some extraneous testimony bearing against him, has been previously delivered. The question here is, whether he shall be prosecuted and committed, or liberated? From silence, as well as from evasive responsion, or false responsion, proved to be so by contradiction ab extrà, or self-contradiction, the magistrate will draw his inference. To whatever evidence (direct or circumstantial) may have been brought out from other lips, the circumstantial evidence consisting of this silence, will constitute an addition of no unpersuasive kind.

In a word, the mode of collecting the testimony differs in this case from the best mode, by nothing but the want of the presence of the adverse party, with the faculty of pushing the inquiry to the utmost, as on the trial in civil cases: and to say the best mode, is as much as to say the most compulsive.

Perhaps the subordinate and unlearned judge ad hoc, imitating the tenderness of his learned superiors, will aid and abet the defendant with a piece of advice, which, on any other supposition than that of his being guilty, will be of no use to him. “Here is the question; but unless you have some falsehood ready, which you think may help to screen you, do not answer it.”

Happily, the obligation attached to the situation cannot be altogether destroyed by this pious endeavour to destroy it. If the advice is taken, and silence preserved, the judge, with all his high-born learning, can scarcely keep himself from drawing that inference which common sense, unpoisoned by learning, cannot avoid drawing from such data. Though the answer should be a confession, he cannot convict; and though, instead of an answer, the silence he bespeaks be presented to him, he can scarcely avoid committing, and taking order for prosecution; and it, instead of silence, confession had come, he could have done no more.

II. Civil cases at common law.

1. Procedure by action: preliminary sham inquiry, the pleadings. Here, as in the case of procedure by affidavit evidence, the compulsion, though indirect, is still compulsion, and the admission, as it were, merged in it. The principle of compulsion is not deduced ab extrà, but innate as it were, arising out of the cause, and proportioned in force to the value at stake upon the cause. A mass of jargon, in the accustomed form, has been poured orth by your adversary’s lawyers: employ your’s to reply to it by a correspondent mass or you lose your cause.

Had the object of the framers of this system been the attainment of the truth,—as in felonies it was the object of the legislature, in ordaining the preliminary examinations,—they would here have taken the same course: but (as anybody may see that chooses it) their real and sole object was, to produce, for the sake of the profit extractible out of the expense, that system of delay, vexation and expense, which has been produced accordingly.

Compulsion (indirect as it is) there is no want of. Compulsion; but to do what? Not to deliver anything that can serve for evidence—not to speak a syllable of truth, or of anything that can serve to bring out the truth,—but to pay lawyers for writing lies and nonsense.

2. Principal inquiry, sole real inquiry, the trial. Here no compulsion, any more than in a trial on an indictment or information. No compulsion; and (saving whatever difference there may be in respect of the value and importance of the matter at stake,) the consequences—the mischievous consequences, the ambiguities, the inconsistencies—the same here as there.

III. Civil cases: equity law.

In all those civil cases to which the jurisdiction of a court of equity extends, by one means or other the testimony of a defendant is compelled without reserve or disguise.

The question having been propounded,—silence, silence as to the whole together, is taken for confession; an inference that would not be unreasonable, if the defendant were on the spot to answer for himself,—or if, instead of one man out of twenty, every man were rich enough to be able to speak in the only way in which a hearing is to be obtained.

But, where appearance is in question, command does not include permission, either in law or equity. In both places, men know their own business better than to suffer a cause to be begun in a mode which, in nine cases out of ten, brings it (as where conscience presides it is actually brought, brought in the self-same hour) to an untimely and unprofitable end.

Propose, then, the constant question:—no other than the constant answer can be returned to it.

In equity law, the testimony of the defendant, is it compellable? Yes, and no. No, in the best, most natural, most efficacious, most prompt, least vexatious, least expensive mode. Yes, in an inferior, makeshift, accidentally (though but occasionally) necessary mode—drawn aside from the ends of justice by factitious delay, vexation, and expense.

Such, then, are the shifts to which a man is reduced, when straining to find a legitimate reason, or so much as the shadow of one, for any part of the mountain of abuse of which the technical system of procedure is composed. Vexation, fear of producing unnecessary vexation, is that the reason why the testimony of a party is not compelled, in the same mode in which it would be compelled were he an extraneous witness? To save the vexation of an hour, months or years filled with more corroding vexation, aggravated by a load of expense which to nineteen persons out of twenty is altogether insupportable? Here, as elsewhere, thus it is with those tender mercies, in the vaunting of which, neither the tongue nor the pen of the lawyer ever tires: begun in selfishness, continued in hypocrisy, it is in cruelty that they end.

After having been examined in his own station in this mode, the defendant is liable to be examined, with or against his consent, in the station of a witness, in a quite different, and (as far as concerns the extraction of the truth in plenitude and purity) much superior mode. But this case will come more fully and advantageously into view, when we come to speak of the case which presents divers persons on the defendant’s side.

IV. Case civil: procedure by common law and equity together.

In speaking of the plaintiff’s side of the cause, we had occasion just to note the fact, that in some cases, by the assistance of a court of equity, either party may obtain the testimony of the other, to be employed on the occasion of the trial, at common law. Either party, consequently the defendant:—but the plaintiff (i. e. he who means to become such) in the court of common law, is the party with whom the application to the court of equity, for that purpose, will most naturally and frequently originate.

In this most natural of the two cases, the person who proposes to himself to become plaintiff by action at common law, begin with occupying the same station in a court of equity. A bill having this for its object, is distinguished by a particular name: a bill of discovery.

Had the bosom from which it was to be drawn been that of an extraneous witness, the self-same testimony would have been compelled by an instrument called a subpœna, and delivered, in the best shape possible, that of vivâ voce, subject to counter-interrogation and counter-evidence on the spot—delivered in the compass, perhaps, of a couple of minutes. By the assistance of a court of equity, it is obtained, in an inferior shape, without the security afforded for correctness and completeness by the scrutiny of vivâ voce counter-interrogation; obtained at the end of as many years, perhaps, as it would have occupied minutes if delivered in the most trustworthy shape. I speak of minutes: for even though the article of testimony thus required be ever so simple (authentication of a deed, for example, or communication of the contents,) a quantity of time more than sufficient for the circumnavigation of the globe, may be to be consumed in seeking for it.

As to the rational, the justifying cause—the ground, in point of justice and utility, on which, to the extent of this class of cases, the direct exclusion, coupled with the indirect and circuitous admission, rests,—what it is not, and what it is, are points equally out of the reach of dispute. It is not the fear of deception; for the same testimony which is excluded in the more trustworthy, is admitted in the less trustworthy, shape. Still less is it the fear of producing vexation, i. e. vexation beyond necessity, and in excess. What fear then is it? It is the fear of not producing vexation enough; viz. that vexation of which there never can be enough, the vexation with which delay and expense, and the profit (official and professional) extractible out of that expense, keeps pace.

By a recent decision, if the mischief is in one part limited and kept from spreading, its inconsistency is increased.

In the station of an extraneous witness, in a dispute with which he has no concern, a man may, in the direct mode (under the subpœna without a bill) be compelled to deliver his testimony, how heavy soever the but then to which he thereby subjects himself; so it be that in speaking of it, the word criminal be not employed. A forfeiture to the amount of the whole of his estate may thus be imposed upon him, so it be that the forfeiture be not called a forfeiture.

If, for the extraction of testimony from unwilling bosoms, a bill be so much better an instrument than a subpœna, why not extend the application of it to extraneous witnesses? Unfortunately, the times admit not of any such improvement; it is now too late. In law, no abuse too flagrant to be cherished; but even in law, no new ones must now be made.*

V. Examination of bail.

By the two words opposing bail, a sort of examination is denoted, which, anomalous as it is, has, and under the present head, a claim to notice. Two persons, whose relation to the cause is designated by that appellation—a sort of parties added to the cause—present themselves in court, and are subjected to an examination analogous to that which is called cross-examination in the case of an extraneous witness. A species of examination this, which may be seen going forward any day, in any of the superior courts of Westminster Hall, the Court of Chancery excepted.

An action is brought; and (such is the established order of things) the defendant having, with or without necessity or use, been apprehended as a malefactor might be,—instead of being brought before a judge, for examination in the first instance, as a felon is, to be committed, or not committed, according as the necessity for that species of vexation has or has not existence—is committed to prison in the first instance—to a prison, with or without necessity, or (as a matter of favour) to a spunging-house:—that the money which might have gone to his creditors, may be shared among the lawyers, who have given themselves a better title to it. To liberate him from this vexation, two friends of his come forward, and engage themselves, in the event of the defendant’s losing his cause, to do one of two things: to pay the money that he should have paid, or to give back his body to the harpies of the law. Out of court exists, having existed time out of mind, a sort of officer called the sheriff, a common subordinate to all the four courts, something between a constable and a judge: to purposes of vexation, a judge—to purposes of relief, anything but a judge. As to the use of him in the present state of things (I mean to the purposes of justice,—for to the purposes of established judicature he is of admirable use;) conceive this personage, with his subordinates, interposed, in a cause before a court of conscience, between the court and their beadle; in a cause before a justice of the peace, between the magistrate and his constable. This interposition supposed, conceive the improvement it would make in those instances, and you will have a tolerably distinct view of the necessity and use it is of, in the several instances in which it continues to have place.

The bail are now in court: for at that august seat of judicature the presence of those incidental parties, at that early stage of the cause, is as necessary as, at every other stage but the last, the presence of the principal parties is (for so it has been made) impossible.* The bail are in court: a cause, a sort of incidental cause, is to be tried, viz. whether, to the purpose of affording to the plaintiff an adequate security for the performance of their engagement to him, they are in a state of solvency. It unopposed, the fact is sufficiently proved by their own statement, made in general terms, but upon oath: if opposed, the opposition is made by employing an advocate to counter-interrogate them: to put questions to them, in such detail as the patience of the court admits of, concerning the particulars of their property.

Without any such scrutiny, because without any power of administering an oath, this same pair of guarantees, or another pair (for, of the chaos of complication in which the business is involved, this diversification forms one of the ten thousand elements,) the same pair of sureties, or another pair, have already been received by the sheriff in another place: so that these sureties, whose sufficiency is to become matter of dispute—these same suspected persons have, if the suspicion be well grounded, had time to convey themselves out of the reach of justice.

Ask a lawyer, whether, in a civil case, and at common law, a party is ever examined—examined in the way in which at the trial a witness is? Answer: No, never. Ask him whether such a thing, if done, might not be an improvement? Answer: Neminem oportet esse saptentiorem legibus. Ask him whether it could be done? Answer: Impossible, without throwing everything into confusion, and overturning the very foundation of Blackstone’s venerable castle, the sole defence of English liberties.

Ask him whether he has ever heard of a sort of person called a bail; whether a bail is not, to the purpose of eventual responsibility, a party, and whether he never heard a bail examined—examined just as he might have been, had the court at the time had a jury in it, and he been a witness on that same side? Ask him once more, whether he has not heard of a sort of a thing called an estoppel:† —and whether there be not that in it that shall be a bar to his plea of the impossibility of examining a party at common law, without blowing up the old castle? Either you will find him standing mute like a prevaricating witness, struck by a flash of self-contradiction; or, if he says anything, it will be to some such effect as this:—A bail, party or not party in effect, is not a party in name: we never look beyond names.

Would it be less conducive to the ends of justice, to examine in this same mode, and for this same purpose, one principal party at the outset of the cause, than two subsidiary, and perhaps unnecessarily subsidiary ones, in the course of it? Would not the solvency of the debtor himself be rather better worth knowing in the first instance than that of two strangers? Might it not be better to know from himself whether he be solvent or no, than to begin with sending him to a jail or a spunging-house, and perhaps make him insolvent, for fear of his being so? Answer: May be so; but why talk to us about the ends of justice? What have we to do with them? What business is it of ours to look at the subject in any such point of view? What should lead us to it? Who would pay us for it? Who would so much as thank us for it?

What is that sort of information which is got from a man, under the name of bail, at common law, in the course of a few minutes? Exactly the same sort of information which, under the name of a defendant, would be got from the same man in equity, with less security for correctness and plenitude, at the end of as many months, if, for example, be were an executor or administrator, having possession of a mass of property, out of which the plaintiff, a legatee or creditor, called for his share.

In the examination of bail, if the account obtained by the inquiry be sufficiently detailed and satisfactory to prove a mass of property adequate to the sum for which he binds himself, there the inquiry stops, as in this case it is fit it should. In the case of the executor, it may be necessary it should go further: it may be necessary it should go to the utmost. Extending over the whole mass, and (to show that nothing is omitted) exhibiting a separate view of every elementary part of which that aggregate is composed,—it would be inadequate to the purpose, if a statement framed with that deliberation of which written discourse alone is susceptible, did not accompany, or rather precede, the elucidations extracted by vivâ voce interrogation. In the case of the executor,—to the vivâ voce responses, a document of this permanent nature (in equity practice in fact a succedaneum) should in propriety be a supplement, a concomitant, or a preliminary. In the case of the bail, it would not so constantly be necessary to justice. But even in that case, instances in which it would be necessary, present themselves in every day’s practice. Before the income tax, unless where extracted by a bill in equity, an occurrence of this sort was without example; therefore it was impossible. Now, it has existed, and existed in every house; therefore it is not impossible. Good logic in a court of common sense, if not in a court of common law.

VI. Case criminal: procedure summary.

The guards to Blackstone’s castle (the castle of lawyercraft) are numerous and vigilant. But the fortifications they have to defend are extensive: the assailants, though scattered and undisciplined, not a few. Here and there, in some neglected quarter, reason will steal in and take post: one precedent lets in another.

Jurisprudential law is law made by lawyers, never but for the benefit of lawyers: statute law is law made by the self-styled guardians and representatives of the people, sometimes for the benefit of the people. Procedure called regular, is the work of jurisprudential law: procedure called summary, of statute law. Jurisprudential law is the miserable makeshift of inexperienced ages: statute law, the regular work of power and experience, operating upon the raw materials shot down here and there by jurisprudential law. As the sun rises, fogs disperse; as statute law advances, jurisprudential vanishes.

The legislator, who, in the reign of Philip and Mary, introduced the preliminary examination of defendants, in cases of felonious offences, by single justices of the peace, ventured not to intrust those magistrates with the power of deciding upon the evidence so collected: that power was reserved for a jury. Saving here and there an exception too intricate and absurd to be here particularized, a felonious offence was in those days a capital offence: felony meaning then (what unclergyable felony* means still) an inexplicable cluster of punishments, of which the only efficient and comprehensible one is that most absurd, and to English minds most favourite, of all punishments, into which all others are gradually ripening, death:† felony, the punishment; and (by a figure of speech congenial to jurisprudential rhetoric,) the name of the punishment become the name of an offence. But the power of life and death was too much to be intrusted to a single magistrate; and as to the applying, to any offence that had ever been punished with death, any inferior punishment, it was a sort of anticlimax not at all to the taste of that age, nor much, as yet, to the taste of any age.

Depredations, of which this and that particular sort of article were the subject, having excited the passion of revenge in the bosom of the owners of the individual articles; and these individuals happening to possess the requisite share of influence with the legislative body,—a fresh exertion of legislative authority came (as usual) to be made. Though the rules of jurisprudential law are all of them ex post facto laws, having all the bad properties of that sort of law, with that of uncertainty to boot,—the iniquity of the practice, when applied to statute law, seldom fails to be recognised. Feigning notice where there is none, lawyers, who, at so easy a price as the saying the thing that is not, have established themselves in the habit of dealing with men as they please, punish for disobedience, where obedience is impossible: legislators, acting in their own characters, shrink with just horror from such injustice. But though the individual offence escapes unpunished, it is still the individual offender that is in view. Rarely do the optics of the legislator carry him beyond individual objects;—to stretch further, were it possible, might scarce be prudent: it would be abstraction, speculation, theory: sounds employed by politicians who have not the gift of thought, for pointing the current of jealousy against those who have: means employed by him who has power without understanding, for keeping him who has understanding without power from giving the public the benefit of it. Here it was the bird came and perched: in hopes of catching that same bird, the net (a spick and span new one made for the purpose) is spread exactly in the same place. Such is the logic of your practical statesmen.

Finance excepted (an important branch of legislation, but not the only one,) the care of the laws is not the charge, nor therefore the care, of any man. Method, consistency, are never thought of: what does not exist, cannot be disturbed. Lawyers love confusion: lawyers fatten on it: non-lawyers, born and bred with the yoke of the lawyer about their necks, if haply they have the wish, have not the wit, to remedy it.

A quantity of lead and iron had been stolen: passions kindled, resolution taken to catch the thief if possible. Lead and in on have been stolen, and the thieves not punished: ergo, the laws against stealing lead and iron are insufficient. The laws against stealing lead and iron are insufficient: ergo, fresh ones must be made. The thieves unpunished: but how happened it? Because the fact could not be proved upon them: and how happened it that it could not be proved upon them? Because, when questioned about it, they knew better than to answer. Was it there the shoe pinched? this shows us how to frame the remedy. When a man is taken up for stealing lead or iron, provide that, if be won’t answer, and answer to satisfaction, it shall be concluded that he stole it, and he shall be dealt with accordingly. Ay, but this is making him criminate himself: that is against the rule which forbids the putting it to a man to accuse himself: a mode of procedure which lawyers abhor, except where they find their account in practising it, and which non-lawyers, taking the interested clamour of lawyers for the voice of reason, abhor without reason.

True; and therefore we must not think of hanging, or so much as transporting upon such evidence. But a penalty really inflicted, such a penalty, be it ever so trifling, is better than a penalty, be it ever so severe, which is not inflicted: a substance, be it ever so small, has more stuff in it than the largest shadow. To make sure, say forty shillings and no more. To a member of parliament, forty shillings is as nothing: confine the penalty to forty shillings, what the evidence is, will be an object not worthy inquiring about.

So much for the penalty: then as to the jurisdiction: for that too must be changed. Before a jury? No; it cannot be: before them, putting questions to the defendant would never do: they are not used to it: they would not come into it: besides that, before the matter could come to them, the thief would be prepared and over-prepared. With this description tacked to it, the offence, if it come anywhere, must come before a justice. Singly or in pairs, when acting in this mode, people (it is true) are not used to see justices trying theft, and trying it without a jury. But penalties of forty shillings, and ten times forty shillings, are levied in this manner every day: therefore, confine the penalty to forty shillings: say nothing about theft, nor anything about questions, interrogations, or examination; mask the questioning by words which imply questioning without expressing it; lawyers will not see what you are about, or other people will not mind them: and thus, with friends and fortune on your side, your bill will pass.

Thus spake the bold, and fortune favoured them. Like the Lesbian rule of old, the rule bent, the bar opened, and let in protection for the two favoured metals.

Forty shillings’ worth of lead or iron being worth forty shillings, how much less is the worth of forty shillings’ worth of any other thing? Such is the question which common sense might have put, had she dared to raise her voice. But either she was not there, or she did not dare: had she spoken thus loud, lawyers would have taken the alarm, and protection, instead of being extended to other things, would have been lost to the favoured metals.

The direct course would have been free from danger: the indirect, the evasive course, teems with it. I speak of the danger which threatens innocence.

Pressed by pursuers, were a thief in a crowd to slip a purse into your pocket without your perceiving it, or to let drop a quantity of lead or iron into the area before your house, while you and your family were asleep; were any such chance to happen to you, to the satisfaction of what justice could you show how you came by it? The eye that reads this, sees, probably, no such danger in its own case: opulence and character afford you protections of stronger texture than are to be found in the tenor of this law: but, turning your thoughts for the moment, if your mind be strong enough, put yourself into the rags or the cellar that shelter the honest shoe-black who waits for custom near your door.

Metals, “lead, iron, copper, brass, bell-metal, or solder:”* cause to suspect that any such article, having been stolen, is concealed in such or such a place: complaint, on oath, to a justice of the peace, of the existence of such cause: warrant from such justice to search accordingly, in the day-time; finding therein accordingly: warrant thereupon, by such single justice, to cause the same, and the person in whose house, or other place, the same were found, to be brought before two or more such justices. These preliminaries adjusted, then comes the clause authorizing the extraction of self-criminating evidence. If such person shall not give an account, to the satisfaction of such justices, how he came by the same, or shall not, in some convenient time, to be set by the said justices, produce the party of whom he bought or received the same, he shall be adjudged guilty of a misdemeanor. Penalty for the first offence, 40s; for the second, £4; for every subsequent offence, £6: so that, if there were not other laws, by which, in case of other sufficient evidence, these same thefts are punishable under the name of theft, and with a degree of severity which certainly cannot be charged with insufficiency, this law, instead of being a prohibition, would operate as a licence.

Give an account, to the satisfaction of such justices, how you came by the same?—or, in some convenient time, to be set by them, produce the party of whom you bought or received the same? If, as before supposed, you know nothing either of the thief, or of the stolen goods,—the same, after having been stolen out of some other place, having been stolen into yours, without your knowledge,—how should you? The probability is, that, notwithstanding your giving no such account as is required, and on failure of which the justices are required to convict you,—the probability is, that, you being innocent, they would not convict you. Be it so: but if so it be, then the case comes to this: that the magistrates, instead of pursuing the law of the land, pursue the law of reason; and that, instead of extracting, or rather receiving, testimony from you (the defendant,) in an imperfect mass, according to the terms of the statute, they extract it from you in a complete state—in that state in which (you being, by the supposition, willing) they would have extracted it from you, had they dealt with you, the defendant, as they would have done with any extraneous witness; or if, dealing with you as a defendant, they had examined you as persons apprehended for felony are examined, under the statute of Philip and Mary,—for the purpose of being committed, or not committed, for trial,—and as defendants charged with any sort of crime are examined under Roman law, for the purpose of being convicted or not convicted.*

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.

§ 1.

Absurdity of the exclusion.

In this more complicated case, as in the former more simple one, the task of determining what is right, receives not from the complication any additional difficulty. Already, over and over again, the determination has been formed for all cases: but the difficulty of examining and exposing what is wrong, receives, from the same cause, an enhancement much to be regretted.

On this part of the field, as on every other, the rule of simplicity, the purest simplicity, will be seen to be the rule of utility and reason: the system of complication, to be a system of absurdity, inconsistency, and injustice, in all its shapes.

Of this case the modifications are—

I Plaintiffs more than one. First question: Shall each he admitted, if willing, to give testimony at the instance of the other? Second question: Shall each, if unwilling, be compellable to give testimony at the instance of the other?

II. Defendants more than one. In this part of the case the questions likewise are two, and of the same import. Shall each, if willing, be admitted—shall each, if unwilling, be compellable—to give testimony at the instance of the other?

In this case, over and above all accidental anomalies and incongruities, a curious absurdity is generated by the very nature of the general rule. Parties, how numerous soever, being excluded; while, in the character of an extraneous witness, the testimony of a single deponent is sufficient to warrant, and (if clear of contradiction, as well from within as without,) in a manner to command, decision;—a single tongue obtains thus a certain victory over a thousand, that would have sounded in contradiction to it, had they been suffered to be heard. Every defendant is, par etat by his station in the cause, a liar: a man who, if suffered to speak, would be sure to speak false, and equally sure to be believed. Every defendant is a liar. But every human being may, at the pleasure of every other, be converted into a defendant. Therefore, and by that means, every human being may, at the pleasure of every other, be converted into a liar, and, in that character, his capacity of giving admissible testimony annihilated. The jus nocendi, the power of imposing unlimited burthens by calumnies not suffered to be contradicted, is thus offered constantly upon sale, to every man who will pay the price for it.

§ 2.

Plaintiffs more than one—Examination of this case.

Examine the subject in detail, you will find the mischief, as well as the absurdity, diversified by no small variety of modifications; none having any reference to the ends of justice, all arising out of the different modifications of the form of procedure: modifications agreeing but in two things; their subservience to the ends of actual judicature—their repugnance to the ends of justice.

In the first place, let the multiplicity be on the plaintiff’s side.

I. Plaintiff’s testimony,—is it admissible in favour of a co-plaintiff?

1. In cases called criminal (from what has been brought to view already, it may be easily inferred) the multiplicity is not productive of any additional injury to the interests of truth and justice. Where there is but one plaintiff, one prosecutor, his testimony is not excluded by the interest he has in the cause. As the testimony of one is not, so neither would that of two or twenty, if there were so many; but there are not usually more than one.*

2. Case called civil: mode of procedure, action at common law. Neither in this case, plaintiffs (i. e. persons having need to appear in that character) being plural,—neither in this case, in the hands of a well-advised attorney, need there on that side be any dearth of evidence. Two persons attacked and beaten by four: each of the two brings his action, supporting it by the testimony of the other. Two suits are thus manufactured out of one. So agreeable a circumstance may help to account for the establishment of the rule, and may be not unfriendly to the preservation of it.

But suppose a claim of the pecuniary kind, with or without injury—in short, a demand, preferred by two persons linked together by the tie of one common title: two tenants in common, two joint-tenants. Here, either both individuals are obliged to join in the suit, and thence become both of them plaintiffs; or, if one be plaintiff, and excluded on that score, the other is an interested witness, and excluded on that other score. True; but in the character of a purge to carry off the fæces of interest, the virtue of a release has been already brought to view:† to each of them let this specific be administered by turns; the peccant matter is discharged out of him, and he becomes a good witness for the other. True it is that the specific, admirable as it is, is not equally well adapted to the constitution of every case. Suppose two persons partners in trade; there might be an awkwardness in the arrangement, were each partner, as the exigency of the suit required, to give up his share of the business to the other.

To pursue the inquiry through the whole field of actions and actionable cases, would probably be thought rather a superfluous task. What, for the purpose of illustration has already been brought to view, may appear proof sufficient for the establishment of three facts: that in one set of cases, admission for the testimony of persons in the situation of plaintiffs may be gained; that in another it cannot be gained; and that in neither has the distinction anything to do with the interests of truth and justice.

A corollary is, that, in some cases, there may be a convenience in this sort of community of interests. As one good turn deserves another, each associate may thus, in his turn, discharge himself of his peccant matter, for the benefit of the other: whereas, when, in point of interest, a man has the misfortune of standing alone, it may not be altogether easy for him to discharge his bosom of peccant matter, for want of a friendly bosom to empty it into.

Could anything be done by a sale without warranty? or if with warranty, might not the interest attached to the warranty be purged off, as well as interest in other shapes, by the universal elixir? Apply this to immoveables and to moveables: to property, real, personal, and incorporeal: learning, curious learning, in any given quantity, might be spun out upon this ground.

3. Case called civil: mode of procedure, bill in equity. The mode of pursuing, or professing to pursue, truth, being altogether different, according as, in pursuing it, you pronounce the word law, or the word equity,—a different field is thus opened for the exercise of professional ingenuity. The virtue of the purge is no less acknowledged in equity than in common law; but if reciprocity be the condition, and the suits, instead of contemporary, are to be successive, the condition of those who have to wait will be still more awkward here than at common law.

Equity procedure is peculiarly adapted to the treatment of complex cases: or, to speak more properly, when a case becomes to a certain degree complex, in any mode pursued at common law it is so utterly impossible to administer anything that shall have so much as the semblance of justice, that cases of this description are shaken off, by necessity, into the lap of equity.

If, in the field of common law, the inquiry might find matter for one volume,—on the ground of equity law it might find matter for another. Of the matter peculiar to equity, I shall content myself with giving one specimen: for illustration it will be sufficient, and more will hardly be desired.

In equity procedure, in a multitude of cases it will happen, that whether a man shall be plaintiff or defendant is matter of contingency, matter of choice, as parties happen to agree.* In regard to co-defendants, the rule in this behalf (as there will be occasion to state presently) is, that they cannot, in favour and at the instance of a plaintiff, be made to testify one against another:—but, for himself, any defendant can employ the testimony of any other co-defendant, as extracted by the interrogatories administered to him on the plaintiff’s side. Suppose, then, three persons, Primus, Secundus, and Tertius, who, in the most natural order of things, would have been co-plaintiffs; but Secundus and Tertius stand in need of each other’s testimony: instead of plaintiffs, let them be made defendants, leaving the part of plaintiff to be played by Primus alone, and the problem is solved.

II. Plaintiff’s testimony,—is it compellable at the instance of a co-plaintiff?

The modifications of this case are soon disposed of.

1. Cases called criminal. On an indictment (as already stated) it is neither natural nor usual that there should be more than one real plaintiff, more than one prosecutor. Supposing more than one (two, for example,) it is not natural that they should have become such, without such an agreement as would be incompatible with compulsion at that time. Men who agree one day, may, indeed, disagree the next; but if both are bound to prosecute, both are bound also to give evidence. But, bound or not bound to prosecute, no individual being in a criminal case recognised in the character of plaintiff, there is no individual (defendants excepted) who is not bound to give evidence.

The case is, in this respect, much the same on an information. It is different, and indeed opposite, where the prosecution is by motion for attachment. In those cases, all testimony is received in no other form than that of affidavit evidence. On trial by affidavit, everybody testifies that pleases; add—and nobody that does not please.†

Affidavit evidence is moreover (as has been already observed) the sort of evidence, the only sort, that is received on the preliminary and worse than useless inquiry, which, for the benefit and by the hypocrisy of the man of law, under the mask of tenderness, has been made to precede the trial on an information: as likewise on the supplemental inquiry, by which, in case of conviction, as well on indictments as on information, the trial is succeeded,—and on which, on the occasion of the original offence, the defendant may, without other evidence, be convicted of succeeding ones. For it is a rule—an inviolable rule, with learned judges, never to receive testimony when it is for their own use, but in the most untrustworthy of all forms. Compulsion is, therefore, out of the question in all these cases.

In the case of felonies, on the preparatory inquiry performed by a justice of the peace antecedently to the trial, the testimony of every person without distinction is compellable, at the instance, as well as by the authority, of that magistrate. Thence, supposing in the first instance two prosecutors, and reluctance to supervene on the part of either, his testimony might, at the instance of the other, be compelled notwithstanding; viz. by the authority of the magistrate.

In the same cases, the same obligation extends to the other preparatory inquiry,—viz. that before the grand jury; supposing it preceded by the inquiry before the justice of the peace.

But in such indictable offences as do not come under the denomination either of felonies or breaches of the peace, no such previous inquiry before a justice can take place: nor in felonies, though usually, does it necessarily take place: still less in breaches of the peace. In these cases, therefore, probably, as in attachments certainly, justice is, on this occasion as on so many others, left to take her chance. On the inquiry before a justice, the mode of compelling attendance, for the purpose of testification, as well before the grand jury as on the trial before the petty jury, is by an engagement called a recognizance; into which, prosecutors, as well as extraneous witnesses, are by that authority, and on that occasion, compelled to enter: one person usually (possibly, in some instances, more than one) undertaking, by one recognisance, to prosecute as well as testify; another, or others, undertaking, by another recognisance, simply to testify, nothing being said of prosecuting.

Is there any other mode of compelling the appearance of a man, in either character, before a grand jury? None that I can find in the books. I know of none.

2. Cases called civil: procedure, by action at common law.

Compulsion is here altogether out of the question, as between plaintiff and plaintiff. We have seen how, in some cases, two men, having each of them the sort of interest that a plaintiff has in the event of the cause, may each purge himself of the legal part of that interest, while the moral part keeps its hold as firmly as ever in his breast. But where the patient is a human creature, this, like other purges, supposes consent: a suitor cannot be purged with a drenching-horn, like a horse.

3. Cases called civil: procedure, by suit in equity.

In the case of a single plaintiff, we have seen, that in that character a man can never be compelled to give testimony,—and also for what reason. The same reason would, if there were a thousand of them, be equally conclusive.

§ 3.

Defendants more than one—their testimony in favour of one another, how far excluded by English law.

I. Can the testimony of one defendant be received in favour of another?

1. Cases called criminal; procedure, by indictment or information.

In these cases, as in all others, the station of defendant is a situation to which the plaintiff nominates: it depends not upon the nominee to resign it; if so, it would not be often filled. For the purpose of the principal inquiry, called the trial, a man cannot indeed, under this mode of procedure, be stationed in it without the fiat of a grand jury: but, unless the story appear preponderantly improbable, that fiat will naturally be (at least it ought to be) commanded by the evidence: and it is the characteristic of this species of inquiry, to hear evidence but on one side.

In this case, when the inquiry is the principal one (the trial,) can a defendant, with his own consent, at the instance of a co-defendant, give testimony in favour of such co-defendant? No, and yes. No, in words: yes, in effect. No: for in that situation, let a man say what he will, it is not evidence. No oath can be administered to him: not a question, as we have seen, can be put to him by anybody. Yes, in effect: for to the defendants, to each of them, be their number what it may, liberty is always given to say, or to read, whatever he may think proper, under the name of his defence. Being allowed to say whatever he thinks fit,—if, in what he says, there be anything capable of operating in favour of a co-defendant,—what he thus says in favour of another, will naturally operate upon the mind of the jury with no less persuasive force—will naturally, if there be any difference, operate with more persuasive force—than anything which, more particularly or exclusively, operates with the like tendency in favour of himself.

As to affidavit evidence, and as many inquiries (whether principal, preliminary, supplemental, or sole) as are carried on in this uninquisitive mode, and as many sorts of demands (penal or non-penal) as are judged of by the light of this most commodious sort of evidence,—we shall find, in the case of co-defendants, admission standing upon the same easy footing as we have seen it stand on in the case of co-plaintiffs. With the pen of an attorney to speak through, let a man present himself in the garb of a witness,—be he who he may, party or not party, interested or not interested, perjured or not perjured,—be the occasion what it may,—thus introduced, all doors and all ears are open to him.

2. Cases called civil: procedure, by action at common law.

In the case of plaintiff and co-plaintiff, the efficacy of mutual good offices and of purgative releases has already been brought to view. But, even in that more manageable case, we have seen it limited; and, as between defendant and co-defendant,—if the action be of the number of those in which conduct of an injurious nature is imputed,—the specific is, of course, in this difficult case, no more applicable than in that more easy one.

In a case of this sort, as it is not necessary for the defendant or defendants to be present during the trial, so neither is it altogether natural or usual: whatever a man, guilty or not guilty, can find to say in his defence, he in general regards it as more eligible to trust to the learning and eloquence of his advocate, than to any chance he may have of gaining credit for anything he might wish to say, either in his own favour, or in favour of a fellow-defendant, in the character of testimony, though not allowed to be delivered under the technical name of evidence. The sort of presumption here supposed, is of very rare occurrence. Certain it is, that it will not experience either much inward satisfaction, or much outward encouragement, from the learned and eloquent gentleman, to the remuneration of whose learning and eloquence his money (if he has any) has been applied. If he is guilty, their opinion will be (and in this case it will probably be a just one,) that the duty of demonstrating his innocence cannot, with equal probability of success, be either trusted exclusively to any but themselves, or so much as divided with themselves. If he is not guilty, any endeavour which he may be inclined to use to make known his innocence, will naturally be regarded as a sort of invasion of their rights. Success depends not upon truth and justice, but upon that sort of learning which has been created for the purpose of being made the subject of a monopoly: of that monopoly, of which, at the expense of so much money as well as so much labour, they have obtained their share.

Where punishment of so high a nature as that which is attached to offences of the rank of felony, is at stake, the judge is naturally averse to the task of suggesting any observation, the tendency of which may be, unjustly, or even justly, to diminish the chance which the defendant may have of making his escape from the severity of the law. To the case between individual and individual, in which one cannot lose but the other must gain, this sort of tenderness does not (for the demand created for it by popular prejudice does not) extend. In summing up the evidence on the trial of an action, the judge would say to the jury without scruple, “Gentlemen, the defendant Nokes has said so and so in behalf of defendant Stiles; but the law requires you to lay all this out of the case; for it is not evidence.”

In all purely pecuniary cases, to which the virtue of the mendacity-fuge diaphoretic does not extend,—the natural effect which, in the case of a plurality of defendants, results from the exclusion put upon the testimony of individuals in this situation, has already been brought to view. In English jurisprudence, in the class of cases here in question, this mischief operates with undiminished strength. To rid himself of a troublesome witness, an unscrupulous plaintiff has no more to do than to put him upon the list of defendants.* Seeing a man upon that list, a learned judge wants nothing more to satisfy him, that the testimony of that man (be he who he may) is unworthy of all regard; and to engage him, of course, to give his assurance to the jury to the same effect.

If, indeed, to the same purpose, on the same occasion, the testimony of the same individual had been presented in the form of an affidavit, unchecked by cross-examination, the case would have been very different: it would then have been good evidence: and, like the testimony of any extraneous witness, have passed with him for what it was worth.

Nay, but the plaintiff has no such power: we are aware of the mischief, and have provided against it: he may put a witness, if he pleases, upon the list of defendants; but if no evidence is given that affects such defendant, his testimony is received notwithstanding.

Yes, verily: provision you have made; and against this abuse with about as much felicity and about as much zeal, as against the rest of that mountain of abuse which is the source and measure of your profit. Every man who has a farthing to gain by lying, will always be sure to he: this is your theory: this is what you are bound by: you are estopped from questioning it. If he be not, on what pretence do you exclude a defendant from delivering his testimony at the instance of a co-defendant? If, in a case affording, in point of moral interest, two plaintiffs, one of them has been cleared of legal interest, by the name of prosecutor, or by the relaxatory purge,—and the purge, though it has given him competency, has not given him veracity along with it,—to strike the defendant witnesses dumb, if there be a dozen of them, what has he to do, but to say a word or two against each?

Nay, but the case you are thus bringing out against us is an extraordinary case.—Not so very extraordinary: but, however, take this, which is but too ordinary a one. Plaintiff, there is but one: witness, an extraneous witness: witness, but that one, which is sufficient. But this one witness is a liar: bound to the plaintiff’s side, either secretly by the only interest that you acknowledge to have any influence, or by any or all of the other kinds of interest put together: is it more unreasonable to suppose one liar on this side, than a dozen on the other? For if you are not sure of their being liars, or even if you are, what should hinder you from suffering them to be heard?

But it is vain to argue without data. The matter in dispute being given (and now let the case be a purely civil one,—nothing of injury supposed,) the question is, whether the testimony of the defendant, called for by a co-defendant, will or will not be trustworthy. His trustworthiness depends,—not upon the cause, or the relation the man bears to the cause,—but upon the station, the judicial station, which, at the instant of pronouncing the decision, you, his judge, happen to occupy. On this, as on so many other subjects, tell me your station, I will tell you your opinions: unless your station be ascertained, you know no more what your opinions are on the bench, than you knew what they were while at the bar, till you knew whether it was for the plaintiff or the defendant you were retained.

Are you a Chancellor, or a Master of the Rolls? The man is a true man. Are you a judge of the King’s Bench? He is a liar, and one that would deceive your jurymen, as sure as you suffered them to hear him. Being a judge of the King’s Bench, are you, moreover, a commissioner of the great seal? The man is trustworthy or untrustworthy, according as you sit on the one side or the other of a narrow passage. Are you a baron of the Exchequer? His character changes backwards and forwards, without your being at any such trouble as that of crossing the passage:—from the same bench, and without stirring, you serve out law or equity, whichever happens to be called for: if it be law, the man is a liar; if it be equity, he speaks true.

Tell us, then, what is law—tell us what is equity: these are both of your own making: each, whatever you are in the mood to make it.

The tissue of inconsistencies and absurdities is not yet at an end. In what court is it that the testimony of a defendant, called for by a co-defendant, is not receivable? In the court where, in case of mendacity, the most effectual means of exposing it are in use. In what court is it that the testimony from that same source is receivable? In the sort of court where no such means are suffered to be employed. In a common-law court, there is cross-examination. True; that is to say, provided a jury be there to hear it,—not otherwise. In a common-law court, there is cross-examination: in an equity court, there is cross-examination: in both, the cross-examination is the same sort of thing, in the eyes of those to whom the most different things become the same thing when called by the same name. Common-law cross-examination,—questions put in public, by the advocate of the party, to the deponent (were he to depose,) after the questions put on the other side, with the answers to them, have been heard. Equity cross-examination,—questions put in private, by a clerk, who, unless bribed, cares not a straw for either party, nor for anything but the getting through his task with the least possible trouble: questions framed for him by a person to whom it was not possible to know a syllable of what the deponent would say, in answer to questions put on the other side.

Tell me then, once more, on what bench and under what name you sit, and I will tell you what you will think; or at any rate (if the term thinking be improper) what you will do. Is it your business to cancel papers,* or keep rolls?† The sham cross-examination is the only one that you will suffer to be made: and it is upon the strength of this mock security, that you will give your confidence to the defendant’s evidence. Is it your business to hear pleas before the king himself, when he is not there?‡ Nothing less than the true cross-examination will serve you; and with this best security at your command, forasmuch as you can get nothing better,—in this case, to make sure of hearing the truth, and the whole truth, you shut your ears against the evidence. Are you that double sort of man called a lord commissioner of the Great Seal; or that other double sort sort of man called a baron of the Exchequer? The true and the sham cross-examination are the same thing to you: but, at any rate, with the good security in your hand, your ears are shut against the evidence: with the the bad security, they are open to it.

Be this as it may,—whether you are the single sort of man, or the double sort of man, you are at any rate that other sort of man, in whose judgment (where it is by himself that the decision is to be formed,) no examination at all, is a better way of coming at the truth, and the whole truth, than either the good mode of examination or the bad one. Should the man be sitting or standing opposite you, you know better than to put a single question to him, or to suffer one to be put to him by anybody else. It must be through the pen of an attorney, if you hear him; and through that medium you hear anybody.

Instead of missing, would you wish to find, the truth? Instead of common law and equity, would you wish to administer justice? Instead of learning and science, would you wish to judge according to common law and common honesty? Go to any court of conscience,—go to the study of any country justice: learn there to forget your learning; in that oblivion you will find the beginning of wisdom. Among the shopkeepers, more surely; for before their court hangs a curtain, behind which (happily for the great body of the people) eyes such as yours have not been allowed to penetrate. In the study of the unlearned magistrate, more sparingly: you must there content yourself with such remains of wisdom as your vigilance has not yet succeeded in rooting out of it.

II. Can the testimony of one defendant be compelled at the instance of another?

1. Common law. Case, criminal: procedure, by indictment or information: occasion, the principal inquiry, the trial. The answer, in this case, is clearly in the negative. In the very nature of the case, obligation to testify supposes interrogation. But on the trial, no question can be put to a defendant by anybody: therefore, not by a co-defendant.

2. Law, common or equity: case, criminal or civil: procedure, by indictment or information: inquiry, sole, principal, preliminary, or supplemental: form of testification, affidavit evidence. Whenever the evidence is delivered in this form, the answer must still be in the negative. No interrogation, no compulsion, and affidavit evidence is, being interpreted, uninterrogated evidence.

3. Common law: case, civil: or (if in some respects considered as criminal, and spoken of under the name of penal,)—procedure, still by action. Answer still in the negative! No interrogation, no compulsion: no question can be put to a defendant by anybody; therefore, not by a co-defendant.

§ 4

Defendants more than one—their testimony against one another, how far excluded by English law.

Can the testimony of one defendant be compelled, to the disadvantage of another?

1. Criminal cases.

Procedure, by indictment: occasion, the principal inquiry, the trial.

To an individual in this situation, no question, as already observed, can be put by anybody: therefore no evidence, to the prejudice of one defendant, can be thus extracted from any other. In regard to any statement that may happen to flow spontaneously from the lips of a defendant, speaking in his own defence (as above,) the same observations as above are applicable: with only this difference, that, when anything that falls from a person in this suspected situation presents itself to the judge as operating to the disadvantage of another individual in the same predicament,—the nullity of it, in the character of evidence, will, by an English judge, be much more apt to be noticed and held up to view, than in the opposite case.

Where the procedure is by information there is no other difference in this respect than what may be supposed to be produced by the inferiority of the maximum of punishment in this case, in comparison with the maximum of punishment applicable in cases prosecutable in the way of indictment. Seldom indeed, if ever, in the case of an information, will the occasion for any such remark on the part of the judge present itself.

Procedure, by attachment: evidence, affidavit evidence. Here, the evidence being all read of course, the judge makes whatever application of it he thinks fit. In the cases which we shall come to presently, in which the testimony is also presented to the judge in the form of ready-written evidence, it is not heard by the judge, except in so far as, for that purpose it is especially called for: and the question, for or against whom it shall be employed, resolves itself into the question, at whose instance it shall be read. The evidence being, according to his own theory, of the deceptitious kind, he is, according to that same theory, constantly deceived by it.

So much for persons actually in the situation of defendants. But, of two persons having borne in the same criminal transaction exactly the same part, it may happen that one shall be put into that perilous situation, the other not. This accordingly is the case, as often as, by a reward, of which impunity forms the whole or a part, one of two delinquents is engaged to come forward against another, in the character of an extraneous witness.

Of this ground of suspicion and untrustworthiness, and of the use which English law scruples not to make of this most suspicious of all imaginable evidence, to this most dangerous of all imaginable purposes, notice was taken at the outset of this research.

But what is done in this way in the strongest of all cases, is done in the same way in all other cases of inferior strength and the like complexion. To dwell upon any of these inferior cases, would be an anticlimax. Such admissions are most perfectly consistent with that gigantic exception: all of them as completely repugnant to the general rule.

2. Civil cases; procedure, in the way of action at common law.

In this case, also, no question can be put to a defendant in behalf of anybody; therefore not in behalf of a co-defendant.

3. Case, civil: law, equity law: procedure, by bill in equity.

On this ground, confusion is in all its glory: the powers of darkness have mustered all their force.

At common law, though testimony, in wholesale quantities, is pronounced deceptitious without knowing what it is,—still, take any given lot, it is either capable, or incapable of being true: it is not capable and incapable at the same time.

The absurdities and injustice of common law were not enough for equity: she has made improvements: and in equity, the self-same statement concerning a matter of fact—the self-same proposition, is true and false at the same time: for or against A, it is true; for or against B or C, it is false. You who read this, were you sitting this day twelvemonth, at one o’clock p. m., in your study? and in your answer, or your depositions, do you declare as much? It is true, as against yourself: it is false—false beyond all possibility of being true—as against me, a defendant along with you in the same cause.

Look to the origin of this difference, you will find it in the joint influence of several concurring causes:—in the practice of pursuing, on the occasion of such cause, two modes of collecting evidence, by answer and by depositions, agreeing in nothing but their unfitness for the purposes of truth and justice: in the confusion pervading the whole texture of the answer—claims and concessions confounded with affirmations and denials,—what a man says in the character of a party, with what he says in the character of a witness,—propositions concerning the question of right, with propositions concerning the question of fact.

Wherever the object has been to relieve, and not to plunder the afflicted, to mitigate, and not to aggravate their sufferings—where the object has been to bring to light the truth, and the whole of the truth, for the purposes of justice,—where such have been the objects, and the obtaining the simultaneous presence of all parties in court has been neither physically nor prudentially impracticable, the mode of collecting the evidence everywhere has been alike simple and effectual. Each party has been admitted to declare so much of what he knows, as promises to operate in favour of his own interest; each party, at the instance, at the interrogation, and thereby to the advantage, of every other:—the testimony of each party in his own behalf, allowed to be delivered, and received for what it is worth; the testimony of each party, when so delivered, allowed to be controverted by every other party, scrutinized by counter-interrogation, opposed by counter-evidence.

Such, accordingly, is the practice in the courts of conscience: such is the practice of the unlearned judges called justices of the peace, except in so far as, by exclusions forced upon them by their learned superiors, they have found themselves compelled to swerve from it. Such is even the practice on trials before juries; deduction made of the still more extensive exclusions, by which the budget of evidence is regularly defrauded of those parts of its contents which are likely to be most valuable; viz. the testimony of those individuals, to whose perceptive faculties the facts belonging to the cause were most likely to have presented themselves.

In equity (as already observed,) in one and the same cause, testimony is delivered in masses of two shapes, each different from the other, as well as from the only good one. One mass, in the form of what is called an answer, containing the ready written testimony extracted from a defendant by the ready written questions contained in the bill—an instrument drawn up by the plaintiff’s law assistants, and without his perusal (or at least without his signature) exhibited in his own name; and in which those questions, the answers to which are expected to be true, are preceded by charges—a sort of testimony, which (as already observed) is allowed to be true or false at pleasure. In this shape, testimony is not called for at the hands of any persons that are not parties, nor, among parties, at the hands of any persons that are not defendants in the cause.

At common law, though the best evidence is so carefully weeded out, yet when once a lot of evidence has been permitted to come into existence, every use that is capable of being made, is permitted to be made of it. Capable of being true with relation to any one person, it is allowed to be equally capable of being true with relation to everybody else. Far otherwise is it with the sort of evidence extracted under the name of answer, by the process employed (as above) by the practitioner in a court of equity. The answer (the part of it in question) is good as against me, the defendant whose answer it is. But is it good, ought it to be acted upon as good, as against you, another defendant along with me in the same cause? To both questions the response must now be in the negative. Of what nature is the clause in question? An acknowledgment, having respect to the question of right? or an assertion, a deposition, having respect merely to the question of fact? If it be an acknowledgment of right, my right to give up a claim of my own is indubitable: but that I ought not to have any such right as to give up any claim of yours, is equally indisputable.

Is it a statement concerning a matter of fact? Even here, its title to be admitted, as against you, in the character of evidence, will appear to be bad, or at least questionable. Let the fact be even of the number of those, in relation to which, at the time at which it happened, I myself was, if I speak true, a principal witness—a fact which, if I am to be believed, I saw with my own eyes. That against myself, in relation to any claim that I have made, it may, and without any danger of injustice to my prejudice, he taken for true, is manifest enough: but as against you, and to the defeating of any claim of your’s, has it an equal title to be taken for true? If any, certainly not an equal one; for there is this difference: you, in your situation, possess not that faculty of counter-interrogation, which, for defence against injustice, is in your situation necessary, but in mine not. By misconception, I may have been confessing that to be true, which in fact was not so. In the view of favouring the plaintiff at your expense, and at the expense of truth and justice, with or without his privity, I may have been confessing that to be true which you knew at the time to be false. It ought not, therefore, to be taken for true as against you, without your having the faculty to controvert it, in the event of your regarding it as false: to controvert it, viz. by questions put to me in the way of counter-interrogation—of cross-examination. But questions in this way, the forms of the court do not, on the occasion in question, allow you to put to me. What they do allow and require is, that each of two defendants shall, in an instrument called his answer, make response to all such proper questions as the plaintiff in his bill shall have propounded to him: what they do not allow is, that either of two defendants shall, in this stage of the cause at least, put any question to the other.

In the first of these two cases, the exclusion is just in itself, would be just on every occasion, and in every court. But what is it that is here excluded? Not testimony, but unjust power: a power on my part to give away your rights.

In the other case, the exclusion may also be just: but if it be, it is so in no other than a hypothetical and relative sense, relation being had to the forms of the court—the forms actually in use. Setting aside that casual and adventitious and deplorable circumstance, the proper course is, not to exclude the one of two sets of evidence, but to admit the other: not to prevent my deposition from being taken into consideration as against you, but to allow you to put counter-questions to me, as you might do if I were not a party in the cause—if the interrogations put to me, were put to me in the character of an extraneous witness.

The judge would not then be reduced, as now, to the necessity of denying, explicitly or implicitly, a proposition which the weaker powers of Locke bowed down to as impregnable—it is impossible for the same thing to be and not to be. He would not have been reduced (as now he is every day) to declare, in deeds if not in words, that the same evidence is certainly true and certainly false. To the philosopher, by whom nothing was to be got by it, the task was an impossible one: but to the lawyer, into whose lap every day’s profit is poured by every day’s nonsense, neither this nor a greater absurdity (if the nature of things affords one) ever presents the smallest difficulty.

The other shape, in which, in the same courts, testimony is delivered, is that of a mass of depositions; a name extending elsewhere to all testimony, but confined, in English law jargon, to the designation of such testimony as is delivered in that particular shape. Answer is the name appropriated to the testimony delivered by a defendant, in reply to the questions propounded to him on the part of the plaintiff in the initiative instrument called the bill. Depositions is the name appropriated to the testimony delivered by a witness, in reply to the questions put to him vivâ voce in a closet, by a sort of judge or set of judges, whose authority is confined to the collection of testimony, without power to make use of it.

This mode is a mode appropriated to the collection of the testimony of persons spoken of under the name of witnesses. But in this same way a defendant, every defendant, may be examined as a witness:—after a course of examination, the duration of which is always counted by months, not unfrequently by years,—re-examined in another and much worse mode, under this other name.

Examined: but now, at whose instance, and for what purpose? By the bill, at the instance of the plaintiff only; against him the defendant only; his testimony not being at that time obtainable at the instance of anybody else, nor employable as against anybody else, that is, as against any other defendant,—as we have been seeing, and for the relatively good reasons that we have seen. By the interrogatories (the name given to the questions now put to him by the examining judge or judges,) he may be re-examined at the instance of the plaintiff or plaintiffs, as against any other defendant or defendants; he may be examined, now for the first time, at the instance of any other defendant or defendants, as against the plaintiff or plaintiffs, or as against any third defendant or defendants.

Collected in this mode, his testimony may now be employed against others beside himself: employed, and with propriety; but if with propriety, for what reasons, and thence on what conditions? On condition that every person against whom it is employed, shall have the faculty of employing his exertions for the correction, completion, and (upon occasion) contradiction of it, by counter-interrogation and counter-evidence. In this mode,—is it at the instance of the plaintiff that he is examined? This faculty the plaintiff possesses of course: for—with relation to the self-serving testimony, which the defendant, as far as conscience and prudence will give him leave, will not fail to bring forward—the interrogatories formed by the plaintiff’s agents, and from them received and employed by the examining judge or judges, will have an effect analogous to that of the counter-interrogatories propounded to, and in the case of, an extraneous witness.

On this footing stands, it should seem, the law of reason; and on this same footing, for aught I know, may stand the actually established law.

But, to the faculty of administering to a defendant interrogatories from all those various quarters to all those various purposes, actual law adds a limitation, a saving clause: saving all just exceptions. These exceptions, self-styled just,—what are they? Exceptions on the score of interest. Of what interest? This is more than I can undertake to answer, at least with any full assurance. A defendant without interest in the cause? How can that be? It he is without interest, this very exemption from interest is recognised as a circumstance, the effect of which is to preclude the plaintiff from dealing with him in the character of a defendant.

On the score of interest, a defendant not to be re-examined against himself, at the instance of the plaintiff? Why not? Good or bad, the interest did not exclude him from being examined against himself at the instance of the same person the first time; why should it a second?

On the score of interest, a defendant Primus not to be examined against himself, at the instance of defendant Secundus? Why not?

Applied to the present case, the import of the word interest is indistinct and obscure. Speaking of a defendant as having an interest in some cases (viz. in the cases in which, on the score of that interest, his testimony is excluded,) implies that there are other cases in which he has no interest, viz. those cases (for such there are) in which his testimony is admitted. But a defendant—a party in the cause—and yet without interest in the cause? How can that be?

But it may happen (it may be said,) and every now and then does happen, that a person is actually made defendant in a cause in which, whether he be thought or no to have an interest, he really has none; for in every cause it rests with the plaintiff to put upon the list of defendants any person and every person he thinks fit. True; but when cases of this description are laid out of the question, the difficulty remains notwithstanding. In this case (supposing the existence of it ascertained,) the name of the defendant, the name which ought not to have been put upon the list, may be struck out of it. Those cases in which the defendant has clearly no interest to any sort of purpose, being set aside, there remain cases in which he has not, and at the same time has, an interest,—has an interest, to the purpose of the continuance of his name on the list of defendants,—has not an interest, to the purpose of his testimony’s being regarded as inadmissible.

1. First, let it be proposed that he be examined at the instance of the plaintiff. It must then be either as against himself, or as against another defendant or defendants: for though two or more persons happen to find themselves together on that side of the cause, it may happen to them to have interests as opposite to each other, as that of any one of them to that of the plaintiff: inasmuch as it rests with the plaintiff to put upon the list of defendants whatever persons he pleases.

Moreover, what may also happen is, that on the plaintiff’s side of the cause there may be more persons than one; say two: that, as between those two plaintiffs, there may be, to some purpose or other, an opposition of interests, as between two defendants; for though no person can be upon the list of plaintiffs without his choice, yet so it may happen, that in consideration of a community of interests in some respects, two natural adversaries may enter into this sort of alliance.*

On this occasion, as against the defendant himself, it is a conceivable case that the plaintiff may wish to examine the defendant, though a case not likely to be frequently exemplified. A defendant cannot come to be examined on behalf of the plaintiff, under the name of examination (viz. by interrogatories put to him by a clerk in the examiner’s office, or a master in chancery, or a set of commissioners appointed for the purpose,) without having already been examined by the plaintiff himself, that is, by the law-assistants of the plaintiff himself, without the name of examination,—viz. in and by the instrument called the bill.

But, in general, the interrogation by bill—the examination that extracts the testimony in the shape of an instrument called an answer,—that examination, notwithstanding the time and opportunity it affords for concerting with an attorney the means of evasion and safe perjury, will be much more efficient than the examination performed through the medium of the judge or judges ad hoc (the examining clerk, the master, or the commissioners;) viz. the examination by which the testimony is produced in the shape of an instrument composed of depositions. More efficient? Why? 1. Because, by bill, the plaintiff, that is, his law-assistants, with the help of exceptions to the answer, and amendments to the bill, keep on examining the defendant till the plaintiff and his law-assistants are satisfied with the completeness at least (if not with the correctness) of the answer; or at any rate till, in case of contestation, they are informed by the judge ad hoc, that they have reason to be satisfied. 2. Because it is probable that, at least in the judgment of the plaintiff and his law-assistants, better care will in this respect be taken of his interests by those assistants, than by the examining judge or judges; even where half of the number are (under the name of a commissioner or commissioners) nominated by these assistants themselves: and certain, that, in the judgment not only of those assistants, but of every impartial person to whose consideration the case presents itself, better care will be taken by those same assistants, than (speaking of situations and not individuals) is likely to be taken by the judge ad hoc, if he be an examining clerk, or a master sitting in his closet;—that is, in both cases, by a person who, in the nature of things, cannot have any other wish or object, than either to get the business out of his hands as soon as possible, for the sake of his case, or to keep it in them as long as possible, for the sake of the fees.

After having then, and on every point of the cause, carried the examination of his adversary, the defendant, to its utmost length, in the more efficient mode (that is, in the mode which, in general, bids fairer for being efficient,)—is there any incident or consideration that naturally and reasonably may engage him to add to it by another examination in the less efficient mode? Such incidents or considerations may not in every case be wanting. Despairing of being able to extract the truth, where the defendant, with an attorney at his elbow, has month after month for concerting the means of successful evasion and safe perjury (the cause being, in point of locality, of that sort which, under the name of a country cause, affords examining judges, under the name of commissioners, that may be awake, instead of one that will be asleep;) it may happen, that, in the person of a particular lawyer, in the character of commissioner, nominated by himself, the plaintiff may see an examiner, who (with the advantage of vivâ voce interrogation—examination in a form which, calling for responses on the spot, cuts off the opportunity of mendacity-serving suggestion and premeditation) promises to his expectation a better chance for the effectual extraction of the desired truth, than could have been obtained in the mode of examination by bill, under the disadvantages above mentioned.

Another case that may happen is, that the defendant, after having given his answer, may go into some foreign territory; and a pair or a set of commissioners being to be sent into or found in, that foreign territory, for the purpose of taking, at the instance of the defendant, the depositions of extraneous witnesses,—it may be deemed more convenient to take the benefit of that opportunity, and extract the ulterior testimony of the defendant through the same channel, than, after adding amendments to the bill, to aim at the extraction of the ulterior testimony in the shape of a further answer to the bill.

2. At any rate, the case just mentioned will be comparatively an uncommon case. But what cannot be an uncommon case is, that, as against one defendant, the plaintiff shall have need of the testimony of another defendant.

But has he not, in the way of bill, been examining them both, and examining them to the utmost? Yes; but (not to revert to the rare incidents and considerations above mentioned) against the making use of the testimony of one defendant against another, there is this objection. As against himself, defendant Primus has been sufficiently examined: for, to extract from him such facts and circumstances as make for his own advantage, no counter-interrogation can be necessary. But as against defendant Secundus, defendant Primas has not been sufficiently examined: for, in order to extract from defendant Primus the whole of the facts and circumstances within his knowledge that make for the advantage of defendant Secundus, counter-interrogation may be necessary; and such counter-interrogation defendant Secundus has had no opportunity of administering.

But if, in behalf of the plaintiff, and as against defendant Secundus, defendant Primus has been examined in the character of a witness—if, pro tanto, his testimony has been extracted from him in the shape of depositions, as above explained;—he having been examined (as against defendant Secundus) in the character of a witness, defendant Secundus has had, or at least might have had, and ought to have had, the faculty of counter-interrogating him: of performing upon him that operation which, by an abuse of words, is called, in equity language, cross-examination (just as if it were the same operation that in common-law procedure goes by that name;) upon exactly the same plan, how imperfect soever, in which the operation so denominated is performed upon an extraneous witness.

Suppose two plaintiffs, and suppose either defendant (say, as before, defendant Primus) to be examined at the instance of plaintiff Primus as against plaintiff Secundus; the case may be much the same as the last. By the interrogatories put in the bill, and therefore put by both, as much of the facts and circumstances as make in favour of the one will have been extracted, as of those which make in favour of the other. True; if he to whom the truth, taken in its totality, is believed by him to be adverse, will consent to the interrogations necessary to the complete extraction of it: but such candour is too much to be in every case expected. Suppose, then, a failure of union in this respect,—the resource will be, on the one hand, an examination performed on defendant Primus, on the footing of a witness, at the instance of plaintiff Primus, as against plaintiff Secundus; on the other hand, cross-examination of the same defendant-witness by plaintiff Secundus.

Now, then, in regard to interest. Some interest, opposite to that of the plaintiff, defendant Primus must have, or be liable to have; else, even though the cause were what in equity law is called an amicable one, there could be no cause.* But it may be, that—though the two defendants have each of them an interest opposite to that of the plaintiff—defendant Primus, as to some point in dispute between the plaintiff and defendant Secundus, has an interest of his own, opposite to that of defendant Secundus.

In this case, supposing the interest to be of that sort which in equity law ranks under that name—and supposing the interest to be of that nature, that, by defendant Primus’s deposing to the prejudice of the interest of defendant Secundus, the interest of defendant Primus would be served,—the allowance of an objection to the admission of the testimony of defendant Primus, would, if made on the part of defendant Secundus, be consistent enough with the general principle.

But now, let it be at the instance of defendant Secundus, that the testimony of defendant Primus is called for: and let the interest of defendant Primus be such, that, by delivering the testimony so called for, his own interest would be disserved. Would an objection, on the score of interest, lie, in the mouth of defendant Primus, whose testimony is thus called for, to his own prejudice and against his own will?

With the general principle which gives to every man in the character of plaintiff the remedy by bill against every other man in the character of plaintiff, such objection would certainly not harmonize. For, among the distinguishing features of equity law, one of the most characteristic is, the affording to the plaintiff that power which the gentle hand of common law will not trust him with—the power of extracting testimony in his favour from the bosom of his adversary.

But,—on the ground of another principle, acted upon at least, if not openly recognised, in equity law,—testimony adverse to the interest of a defendant ought not to be extracted at the instance of any co-defendant—at the instance of any person but a plaintiff. From a plaintiff, testimony is not allowed by equity law to be extracted in any shape, by or at the instance of a defendant: why should that of a defendant be allowed to be thus extracted, by or at the instance of another defendant? Not from a plaintiff; because, were that allowed, the lawyers would be defrauded of the benefit of another cause, under the name of a cross cause. How should it, therefore, from a co-defendant? Would not a loss of the same nature be incurred? It would not be called a cross cause, indeed; but so long as it had the beneficial properties, names would not be worth thinking about.

The man of law is not consistent in anything—not even in rapacity. Where, at the instance of a defendant, the plaintiff is to be examined, they will not suffer it to be done without a cause on purpose: where, at the instance of a defendant, another defendant is to be examined, it may, perhaps, not have occurred to them to discover the same impediments.

CHAPTER V.

PROBABLE ORIGIN OF THE ABOVE EXCLUSIONARY RULES.

We may now take our leave of the two Latin maxims, under which, when laid together, little less than the whole subject of the present Book may be comprehended:—

1. Nemo debet esse testis in propriâ causâ.

2. Nemo tenetur scipsum prodere.

Of each of them we see that—

1. In the character of a general declarative proposition, undertaking to represent the actual state of the established law, it is notoriously false; it swerves most widely and notoriously from the truth.

2. That, when compared with the ends of justice, and the dictates of utility in that behalf, it is, in so far as the fact declared by it is true, deplorably pernicious.

3. That, in delivering these rules (each of them) as true without exception, as Blackstone (for example) and so many others have done, they have uttered so many most palpable and notorious untruths; trusting—for the reception of the propositions in the character of true propositions, and for their own escape from the disgrace generally and worthily attached to improbity in that disgraceful shape—to the confusion in which the subject has been involved by their arts: and to that general and indefatigably cultivated ignorance, by which all who do not stand engaged by sinister interest to defend and propagate the misrepresentation, are debarred and disqualified from detecting it.*

4. That, in favour of the rule pretending to oppose an effectual bar to self-disserving, under the name of self-betraying, testimony, the plea of humanity and tenderness is a mere pretence.

5. That, by the unhappy success with which this pretence has been played off, a most pernicious and widely spread correspondent superstition has been propagated and rooted in the public mind: insomuch that the people, having been generally duped by this imposture, have been to such a degree deceived, as to regard with emotions of respect and gratitude the treachery by which their dearest interests have thus been sacrificed.

The truth of the above propositions is, it is presumed, tolerably well established. But, being thus mischievous, how came it to be established? By what considerations did it recommend itself to the minds of those by whom it has been established?

Interest, sinister interest, though in every country it will account so satisfactorily for the jurisprudential system, will not afford a separate account for every particular arrangement. In some instances, interest would really be neuter: in others, its indications might fail of being perceived: and wherever there is nothing to be got by thwarting public opinion, there is everything to be saved by conforming to it.

The maxims, or general propositions, to which the most extensively applicable notions of jurisprudential law have been consigned, have owed their origin (when not to official and sinister interest) to some play of the affections or the imagination—to some antipathy, sympathy, or caprice—now and then to some view of utility, though almost always either too scanty or too wide. For the times when these maxims have been formed have been times of inexperience—times in which, for want of the requisite mass of experience, something was omitted, that required to be either added to the extent of the proposition or subtracted from it, ere it could be rendered commensurate to the exigency of the public interest on that ground.

Suppose the maxim to have had its root in general utility. By the inordinate extent assumed by it, it would spread far beyond the root; including particular propositions in abundance, for which no root could be found either on the ground of utility or any other.

From the observation of the prevalence of self-regarding interest in every human bosom (a principle upon which the individual and the species depend for their preservation,) and of the undesirable influence which this principle was so apt to exercise upon human testimony,—judges—men delegated by the sovereign to dispose of the fate of others for whom they had no regard, sometimes by punishing their offences, sometimes by terminating their disputes—formed to themselves, at an early period, this general proposition or maxim,—No man ought to be a witness in his own cause. It is susceptible of more senses than one: but in no sense would it ever have gained footing, had it not been for the indifference of those by whom it was applied, to its effect upon the feelings and interests of those to whose concerns it was applied. At bottom, in the breast of the judge by whom it was first broached, it could have had no more warrantable origin (whether he were or were not aware of it) than that of a desire to save his own time and trouble: for, be he who he may,—let his existence have occupied this or that portion of space and time,—what he could not but be conscious of, is, that in those instances in which, having a real interest in forming a right decision, he has felt a real anxiety to render it conformable to the truth of the case,—in a word, as often as, in the character of the father or master of a family, he has been really solicitous to come at the truth, and the whole truth,—his conduct has never been such as this maxim prescribes. Pursue its application to the daily concerns of a family, and extend it to every family, you will find it incompatible with the existence of the species for any considerable length of time.

Whatever was the real reason,—the ostensible reason, the reason assigned to the public, is evident enough: the danger of deception—the danger lest the judgment of the judge should be misled, by testimony issuing from a source from which it was so liable to receive a direction deviating from the path of truth, the only path that leads to justice.

In this way the system of exclusion first introduced itself: attaching upon both parties in a cause, defendant as well as plaintiff; but in the first instance, and with greatest effect, upon the plaintiff, with whom every suit originates: upon the testimony of the plaintiff, considered as proffered by himself.

By favour of the weakness of the human mind, and the indistinctness and variability of language,—under the influence of supervening circumstances,—maxims (more especially maxims of jurisprudence) have received an extension, sometimes for the better, sometimes for the worse. By the maxim of English constitutional law, “the king can do no wrong,” nothing more was probably meant by the first framer of it, than to express the inviolability of that functionary: under favour of the ambiguity of the sense attached to the word can, some opposition lawyer of the day took occasion, by a happy exertion of professional art, to graft upon that manifestation of power a declaration of impotence. Had lawyercraft never exerted itself to any worse purpose, the demand for these pages would never have existed.

From the observation of the perturbation that would naturally manifest itself in the countenance of a malefactor, when questioned on the subject of his misdeeds, some judge (actuated by misapplied compassion, or possibly by corrupt partiality, or society in guilt) took occasion to desist from the inquiry, grounding the dereliction, perhaps, on a new and strained interpretation of the maxim, No man ought to be a witness in his own cause. If the practice originally rested on that ground, it did not long remain there; since a fresh ground was made for it in the narrower and more apposite maxim, No man is bound to criminate—or (in language more rhetorical, more delusive, and therefore better adapted to the purpose) to accuse—himself.

Be this as it may; the system of exclusions came in this way to be extended to the testimony of a defendant, considered as called for, against his will, by his adversary the plaintiff, or by the judge.

The case thus far under consideration is a simple case: parties, at most but two; one on a side. In a suit of the criminal kind, instituted and carried on by the judge alone, without the intervention of any individual in the character of plaintiff, the number of the parties is even reduced to one.

In a case thus simple—so far as exclusion takes place—there can be no room for doubt (as far as utility, or the semblance of it, is concerned) in which quarter (that is, in which of the two maxims above mentioned) the prohibition originates. Is it by the party himself that the judge is called upon to receive his testimony? Fear of deception is the reason or the pretence, and the maxim is, No man ought to be a witness in his own cause. Is it by the adverse party that the judge is called upon to receive, and (as it is not in the nature of the case that it should be delivered willingly) to compel, the testimony? Fear of vexation is the reason or the pretence, and the maxim is, No man is bound—or, No man ought to be bound—to criminate, accuse, or (to slide it on to non-criminal cases) hurt, harm, injure, prejudice, himself.

But, for this long time, causes have from time to time appeared, of a more complicated texture: causes presenting, either on one side (and on either side,) or even on both sides, parties in greater number: two, or a number indefinitely greater; but on this occasion, for exemplification, two will serve as well as twenty.

Suppose two on each side: what is to be done here? Apply the true reason, fear of deception, fear of vexation; you will now find cases in which they will not hold. No matter: the maxim is framed; it has attained its full growth: it has taken root of itself: it has become familiar to many a tongue, the head containing which saw no reason for it, nor ever thought it worth while to look for one.

If this be so, on this ground then we must look for the origin of the practice in one or other of the two maxims; giving up the idea of looking for a reason, in the conduct of men to whom it never occurred to look for a reason—to look for anything beyond the rule.

PART VI.

OF DISGUISED EXCLUSIONS.

CHAPTER I.

EXCLUSION OF EVIDENCE FOR WANT OF MULTIPLICITY.

§ 1.

Impropriety of exclusion on this ground.

On the several preceding grounds, the impropriety of the practice of excluding evidence has been rendered, I am inclined to think, sufficiently apparent: if so, on the present ground, it must be much more palpable. In those cases, a cause of suspicion, and for the most part not an ill-grounded one, exists: and the error consists in employing exclusion, where watchfulness alone would have been the proper remedy. In the present instance, not so much as the slightest cause of suspicion is so much as fancied to exist; and yet a man is excluded without mercy. Excluded; and for what reason? For this, and this alone; that another man, having it in his power to give evidence pertinent to the case, is not to be found.

When suspicion is the ground of exclusion, the assumption is, that some men (i. e. all men belonging to any of the suspected classes) are liars. Where want of multiplicity of evidence is the ground, the assumption is, that all men—all men without exception, are in this unhappy case. Take any two men, men of the most trustworthy complexion, as well in respect of individual character as in respect of station in life: take these two men; if a demand for their testimony happens to be presented by two different causes, they are both of them incorrigible liars, and neither of them ought to be heard: if, on the contrary, the like demand happens to be produced by one and the same cause, both of them ought to be heard—both these liars become good witnesses.

I have already had occasion to remark the incongruity of the law’s taking upon itself to know more, and that in all cases, of the degree of credit due to evidence, than those who have the evidence before their eyes. Here the incongruity is still greater. In the case of the inadmissibility—the incapacitation, the judge or jury have not formed any opinion; because they have not been allowed to hear the grounds on which, and on which alone, an opinion could have been formed. In the case of the requisition of two witnesses,* they have heard evidence, and such evidence as hath appeared satisfactory to their minds The jury are satisfied: the judge is satisfied; the prosecutor is satisfied; the advisers of the crown are satisfied; everybody who has had any opportunity of knowing anything of the matter is satisfied: it is in the midst of all this satisfaction, that the legislator, who knows nothing about the matter, who has no possibility of knowing anything about the matter, chooses to remain unsatisfied. He chooses rather to suppose that a witness, whom he knows nothing about, is purjured, and a jury, a judge, a set of ministers, whom he knows as little about, deceived, than than that one accused person, about whom he knows as little, and whom all these persons have concurred in believing guilty, was really so.

In speaking of the witness, I say perjured: and such accordingly is the supposition, and the only supposition, proceeded upon, in the case upon which this provision has been grounded: for, as to any particular danger which the witness may be supposed to be under, of having fallen into an involuntary mistake, there is nothing in any of the cases in which this regulation has been ever applied to warrant any such supposition, nor is the regulation ever supported on any such ground. Such then is the supposition, which the legislator chooses as the most probable; that one man, of whom he knows nothing, has made himself guilty of perjury—a man whom all who have had the opportunity of knowing anything about him, concur in believing innocent,—rather than that another man, whom all who have heard the case concur in believing guilty, was guilty, of another offence.

Thus much as to the impropriety and inconsistency of the rule. Next, as to its mischievousness: in comparison, as before, with the rules by which an exclusion is put upon witnesses of a particular sort. In the latter case, the witness or witnesses, on whose persons or in whose presence a malefactor is allowed to commit whatever crimes or other offences he pleases, must, to give the malefactor the benefit of the licence, be taken out of the suspected classes: in the present case, all individuals, without exception, are allowed to be pitched upon as victims or witnesses.

In a particular state of things, it is true, the mischief is greater in those cases than in this. In those cases, the number of witnesses in whose presence the crime or other offence is allowed to be committed, is without stint: on the present ground, the number of witnesses in whose presence it is lawful to commit the crime or other offence, extends not beyond one. But the facility given to delinquency by the removal of the restriction in respect to number in those cases, will scarcely be found to be equal to that which is afforded by the removal of all restrictions in respect of quality in the present case.

The accomplice, who is sufficient to enable a man to commit the crime, not being sufficient to produce, by the testimony of his lips, his conviction of and for such crime,—each malefactor has thus a ticket of exemption to dispose of, in favour of any associate who may be disposed to join with him in any forbidden enterprise.

Thus much as to the effect of the exclusion in causes of a penal nature. In regard to those of a non-penal complexion, the effect is still the same in kind, varying only in respect of the importance of the cause. Following the same rules, the task of giving it a separate exemplification under this separate head, may be dispensed with.

Such is the price paid for the security in question: viz. for the difference in point of danger between the case where there are two witnesses in proof of guilt, and the case in which there is but one. Such is the price paid for this security: and after all, what is it worth? In the multitude of counsellors, says the proverb, there is safety; in the multitude of witnesses there may be some sort of safety, but nothing more: it is by weight, full as much as by tale, that witnesses are to be judged. Pondere, non numero. From numbers (the particulars of the case out of the question) no just conclusion can be formed. Nothing can be weaker than the best security that can be derived from numbers. In many cases, a single witness, by the simplicity and clearness of his narrative, by the probability and consistency of the incidents he relates, by their agreement with other matters of fact too notorious to stand in need of testimony,—a single witness (especially if situation and character be taken into account) will be enough to stamp conviction on the most reluctant mind. In other instances, a cloud of witnesses, though all were to the same fact, will be found wanting in the balance. There is no man conversant with the business of the bar, whose experience has not presented him with instances of dozens of witnesses opposed to each other in the same cause, line against line, and whose testimony has been of such a nature, that (howsoever it may have been in regard to mendacity) falsehood must have been on one side or the other. Naval trials are pregnant with instances in favour of this remark. According to Hume, on the subject of an engagement between Blake and Tromp, the unanimous testimony of the English captains was contradicted by the unanimous testimony of the Dutch. Let any man read the trials of Keppel, Palliser, or Molloy, and then say whether security resides in numbers.

Let me not be mistaken. I do not mean to insinuate (it would be absurdity to insinuate) that the requisition of a second witness adds nothing to the security against perjury. No doubt but that, the greater the number of witnesses you require, the greater the security against perjury. All contend for is, that that security (be it greater or less,) is not so necessary as that you should pay so great a price for it, as you do pay, and must pay, by the licence you thereby grant to commit the crime in the presence and with the aid of any one.

“Reason,” says Montesquien,* “requires two witnesses: because a witness who affirms, and a party accused who demes, make assertion against assertion, and it requires a third to turn the scale.” This, by way of proof of the proposition immediately preceding:—“The laws which cause a man to perish upon the deposition of a single witness, are fatal to liberty.” This observation, short as it is, teems with errors.

1. The equality maintained turns upon this supposition, and no other, viz. that it is as unlikely that a person accused, being guilty, should aver himself to be innocent, as that a party accused, being innocent, an accuser should aver him to be guilty: in other words, that it is as likely a man should violate truth for the purpose of injuring an innocent person, as for the purpose of saving himself. Such is the supposition; but surely nothing can be more ill grounded. The assertion of the witness amounts to something—the denial of the accused amounts to almost nothing: for he speaks under the terror of the law, which devotes him to certain punishment in the event of his not denying.

2. Another error is, the supposing that any rational conclusion can be drawn from the mere circumstance of number, as between accusers and defendants, without taking into the account the particular circumstances of each case.†

3. A third incongruity is, the confounding the case of witnesses with that of judges: for though witnesses are the persons he speaks of, the situation he places them in is that of judges.*

4. A fourth incongruity is, the making up the proposition and the demonstration in such a manner as not to fit one another in point of extent; in consequence of which want of just coincidence, nothing can be concluded.—The case necessarily supposed, extends over no more than one of the two divisions into which the field of law is divided,—viz. the criminal: and the reason is one that applies to civil as well as to criminal, though it appears not that Montesquieu was aware of the application.

The occasion to which his view seems to have been confined, the only occasion specified, is still narrower—that subdivision of the criminal law, which concerns offences that have been punished with the punishment of death. He might have been right in saying that laws which cause a man to perish upon the evidence of a single witness, are fatal to liberry; and yet not right, if he were to extend the same observation to cases in which death was not included in the punishment.

The expression cause to perish—font périr—would of itself be sufficient to ease the case of the weight of Montesquieu’s authority, if authority were capable of weighing against reason. It alludes, to all appearance, to the practice of the Roman law (the law under which he had been used to act,) which makes conviction, and thence in capital cases death, a necessary consequence of the adverse deposition of two witnesses,—leaving no option to the judge.

Another circumstance that contributes to lighten the case of the weight of his authority, is, that the trials to which alone he had been used, and which alone he can be understood to have had in view, were trials in the judge’s closet, without a jury, and on which cross-examination on the part of the accused was but imperfectly allowed—cross-examination by his counsel not allowed.

“Fatal to liberty?” What means liberty? What can be concluded from a proposition, one of the terms of which is so vague? What my own meaning is, I know; and I hope the reader knows it too. Security is the political blessing I have in view security as against malefactors, on one hand—security as against the instruments of government, on the other. Security, in both these branches of it, is the benefit, the making due provision for which, in the case in question, is the object of these inquiries.

Where two witnesses have been required, the principle of determination is obvious enough: it has been the fear of giving birth to the conviction and punishment of innocent persons, if in each case the testimony of a single witness were held sufficient. Engrossed by the view of this danger, the attention has overlooked the so much greater danger on the other side.

For a single witness to produce by his testimony the conviction of an innocent person, it is not sufficient that false testimony on the side of conviction should have been given;—it must also have obtained credit with the judge; it must have produced in his mind a degree of persuasion, of sufficient strength for the purpose.

But, even among the vilest of malefactors, as I have already had occasion to state, nothing is more uncommon than false testimony on the inculpative side.

What the argument supposes is, that falsehood will prevail ever truth: falsehood on the inculpative side, over truth on the exculpative.

The giving security to the innocent, is the object and final cause of this ill-considered scruple. Of what description of the innocent? Of those, and those alone, to whom, by false testimony, it might happen to be subjected to prosecution in a court of justice. On the other hand, those to whom, in consequence of the licence granted by this same rule, it might happen, and (if the rule were universally known) could not but happen, to suffer the same or worse punishment at the hands of malefactors, are altogether overlooked. The innocent who scarcely present themselves by so much as scores or dozens, engross the whole attention, and pass for the whole world. The innocent who ought to have presented themselves by millions, are overlooked, and left out of the account.

It is to this ill-considered scruple, that the European nations have been indebted for the use of what is technically called torture; I mean in the most usual, and most exceptionable, application of it. The testimony of a single witness was not sufficient for the conviction of a defendant; but, in a case capitally punished, it was sufficient to warrant the applying torture to him, for the purpose of compelling a confession. Combined with this tremendous exercise of severity, what then was the effect of this false tenderness?—In some cases, to produce, by dint of terror, a not very satisfactory confession: in other cases, to add to the regular punishment this accidental and unnecessary torment: in here and there an instance, to enable a guilty man, by patience under torment, to escape death, the ultimate punishment, in cases in which he would have been subjected to it under the English mode of procedure.

Under the best system of jurisprudence, it must happen now and then, though under the worst I believe it to be extremely rare, that a man completely innocent shall suffer as for a capital crime. In these deplorable cases, under the English system, which admits the grounding conviction on a single witness, the innocent victim will suffer the instantaneous and in a manner insensible infliction, and no more. Under the general law of the continent, wherever the application above spoken of under the name of torture was in use, the unhappy innocent would suffer death in whatever was its prescribed form, but with the previous addition of a state of torment more terrible than twenty deaths; unless, to free himself from it, he could succeed in inventing a credible, though false, narrative of guilt.

In the complication and intricacy of the discussions, of which a rule requiring a multiplicity of evidence will naturally (not to say necessarily) be pregnant:—in this, though comparatively a minor inconvenience, will be found a certain degree of force. Assuming that a multiplicity of evidence is necessary, how is it that it must or may be composed? Say that there must be at least two witnesses; the difficulty is, in appearance at least, in a considerable degree obviated. Happy would it be for the interests of truth and justice, if the task of decision were attended with no other difficulty than that which attends the distinguishing of two individuals from one. But, where nature