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PART I.: ON THE EXCLUSIONARY SYSTEM IN GENERAL. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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ON THE EXCLUSIONARY SYSTEM IN GENERAL.
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.
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.
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.
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.
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.
[* ]Exclusion put, in a case of rape, upon the testimony of quakers, includes a licence to the whole army to storm every quakers’ meeting-house, and violate the persons of all the female part of the congregation, in the presence of fathers, husbands, and brothers.
[* ]Reader.—Public?—beneficial to the public? technical rules beneficial to the public? Somehow or other, is there not something of an erratum here?