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

CHAPTER 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.

[* ]Dumont’s “Traités de Legislation,”—“Introduction to Morals and Legislation,” (Vol. I. p. 99.)

[† ]If a witness is asked a question, the answer to which would disclose anything which might prove detrimental to the public service, the judge will interpose to prevent the answer from being given.—Ed.

[‡ ]Dumont, ut supra—“Introduction,” &c. (Vol. I. pp. 101, 141.)

[* ]Vexation in respect of condition in life.

The history of the illustrious and most extraordinary lady who for the greater part of her life appeared in a male character, and was known by the name of the Chevalier d’Eon, affords a real example to this purpose. In the city of London, different sets of persons laid wagers on the subject of her sex: one of these wagers came to a trial in the Court of King’s Bench; and on the occasion of that trial the lady herself was summoned to give her evidence. In this scandalous attempt, the vice of gaming was added to the private offence attempted, and, by the very attempt, committed in some sort, by this indecent and barbarous impertinence. Had she appeared, the injury would have been a modification of the offence termed in the English law false imprisonment. Whether she appeared or no, it would, in a comprehensive system of penal law, embracing the whole catalogue of injurious acts, have come at any rate under the denomination of a simple personal injury.—See Dumont ut supra—“Introduction to Morals and Legislation,” (Vol. I. pp. 99, 139.)

[† ]Vexation in respect of reputation.

[‡ ]Vexation in respect of property.

[∥ ]Vexation to government, and the public at large: vexation having the effect of treason, to the destruction of the state.

[* ]By the 11 & 12 Will. III. c. 4, the punishment was commuted to perpetual imprisonment. This act was repealed, and the exercise of the Roman Catholic religion tolerated by the 18 Geo. III. c. 60, and the 31 Geo. III. c. 32.—Ed.

[† ]Quære, on this and every such occasion—How much more mischievous has the offence been, in the case where, after the commission of it, the proof of it is brought out in that indirect and casual way, than if brought out in any of the more common modes? What alteration is made in the past mischief of an offence, by the subsequent incident (whatever it be) by which the commission of that same offence is brought to light? If none at all, then why is it, to what good end is it, that an offence shall, if brought to light by one incident, be punished with death,—if by another incident, go unpunished altogether?

[* ]The judge being considered as the sort of person on whose shoulders the labour and other vexation attendant on the delivery of evidence rests, the situation he may be in admits of an ulterior distinction of great practical importance.

Distinct from the vexation, the unbalanced mental suffering, which in each individual instance may or may not be the consequence of the labour thus bestowed, there is one accompaniment which is altogether inseparable from it—viz. the consumption of time—the quantity of time occupied in the bestowing of such labour.

There are classes of judges, to the aggregate quantity of whose time, applicable to this purpose, there is no natural and absolute limit. In this case are all judges but those who judge en dernier resort. In this way, as in all others, whatever quantity of natural business there may be to be done, judges in sufficient number may naturally be found for doing it. If, at the same time that there are not fit persons enough ready to take upon themselves the duty without pecuniary retribution, pecuniary retribution cannot be found in sufficient quantity to afford to the number needed an adequate inducement,—in such case there exists a limit to the quantity of time applicable to the purpose in question,on the part of these subordinate classes of judges.

There is one class of judges, to the aggregate quantity of whose time there is a certain limit. In this case are, in every country, the judge, or bench of judges, to whom it belongs to judge en dernier resort. Of the four-and-twenty hours in each day, there is a certain proportion which (bating accidents) it may be, physically speaking, in the power of the judge to bestow upon this or any other species of labour: beyond this, the application of any additional quantity of time is not merely inconvenient, but physically impossible.

In either of two ways, the quantity of time applicable on the part of this court of dernier resort, is, physically speaking, susceptible of extension: one is, if two or more such supreme courts be instituted, each competent to all cases; the other is, if two or more such supreme courts be instituted, one competent to judge en dernier resort in one sort of case, another in another sort of case, as in the courts subordinate to them. But the first sort of arrangement leads directly to contradiction, to dissension, to civil war, to the dissolution of the government: the other keeps perpetually alive, at least, an imminent danger of those same calamities. Geographical lines of jurisdiction are drawn with ease and precision enough: metaphysical, logical, not without the greatest difficulty. As between subordinate and subordinate, where there is one superior to decide, the difficulty is not felt. But as between two co-equal courts, as above supposed, if a difference of opinion or will obtains, and neither will yield, this case resolves itself into the foregoing one—into the case just described, with its ruinous results.

In the constitutions of most States, there is, to this purpose, no difficulty. In whatever hands the supreme authority resides, the judicial authority en dernier resort is lodged, in effect: along with (to take the current division) the supreme executive, and the supreme legislative. In the constitutions of most states, this supreme authority rests in the hands of a single person, a monarch: and whatsoever may in other respects be the disadvantage attendant on that species of constitution, as to the point here in question there is at any rate no difficulty, no danger. For this, as for all other purposes, he has time sufficient at his command. The quantity of his own personal time is limited, like that of every other man: but the quantity of other persons’ time, capable, upon occasion, of being applied by him to the termination of these or any other disputes, is without stint.

Under a mixed constitution, the difficulty may be altogether a distressing one. Delay increasing ad infinitum: injustice triumphing, impunity certain: law trodden under foot: power intended to be subordinate, converted into despotic and supreme. But the solution belongs not to this place—it belongs to the head of constitutional law; and, till the constitution of the government be given, every attempt would be premature.

[* ]Douglas Cause.

[† ]Hastings Cause.

[‡ ]1. Election Committees. 2. Wellesley’s case.

[* ]Infrà, Chap. VII. Remedies succedaneous to Exclusion.

[* ]But see 45 Geo. III. c. 92, § 3.—Ed.

[† ]See Hawkins, iv. 448.

[‡ ]As to the courts of judicature, should it happen to any one of them ever to be called upon to speak upon that ground, it would pretend, as usual, to declare the law; it would in fact have law to make. On this occasion, as on every other, with a leaf taken out of Lord Mansfield’s book, it need never be at a loss.

Whatever it would be contrary to “sound policy” to do, ought not to be done. Such was the law which, on one occasion the learned lord, with the mute concurrence of his three colleagues, took upon him to make. But can there be anything so contrary to sound policy, as that, by such authority, laws of such latitude, laws involving an uncontrouled dispensing power exercisable over all other laws, should be suffered to be made? In one scale weigh the benefit—in the other weigh the price. More law, law covering a greater extent in the field of legislation, is thus made by a single judge, in a quarter of a minute, and at the expense of a couple of words, than the legislature would make in a century, by statutes upon statutes, after committees upon committees.

[Mr. Bentham seems to have overlooked one remarkable case, in which a witness was forbidden to disclose something which the judge thought proper to consider, or to pretend to consider, as a state secret. I allude to the case of Plunkett v. Cobbett, in which Lord Ellenborough refused to suffer a witness, who was a member of parliament, to be examined concerning words spoken in parliament: and this by reason of his duty, and in particular of his oath, by which he was bound not to reveal the counsels of the nation.—Phillips on Evidence (edit. 1820,) 185.

To support this inference, the two following falsehoods must have been taken for true:—1. That words spoken in parliament were state secrets; 2. That in no case ought state secrets to be revealed.—Editor.]