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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 III.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[* ]In case of pecuniary inability of defendant to produce his evidence, power to plaintiff to call for a decision notwithstanding, on condition of defraying the expense of defendant’s evidence. Defendant punishable, in case of malâ fide invocation. See Chap. VII. Remedies succedaueous to Exclusion.

[* ]The iniquity of this rule has forced the judges to take upon themselves the responsibility of allowing to the prosecutor a sum of money under the name of expenses:a this, however, they do or leave undone as they please: consequently the most frivolous reasons frequently suffice for leaving it undone. It is asserted in the eighty-fourth number of the Edinburgh Review, p. 403, that, in a recent case, a judge refused to allow the prosecutor his expenses, because one of the witnesses for the prosecution offended him by his demeanour.—Editor.

[† ]The following is another exception to the reimbursement of expenses:—

“When a party,” says Phillips,b “after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may proceed in the action.c The same rule prevails in the Court of Chancery: if a party applies to that court for a commission to examine witnesses, he must pay the expenses.”

[‡ ]Hullocke on Costs, pp. 35-39. Tidd, 975. 58 Geo. III. c. 30.—Ed.

[* ]A case that happened within these fifty yearsa will serve at once to show the demand for a discretionary remedial power to be exercised by the judge, and the oscitancy of English law.

Action in the King’s Bench at Westminster: two of plaintiff’s witnesses, a captain and first lieutenant of a French merchantman, brought over from France: these two witnesses, if the affidavit of the real plaintiff (a Frenchman) was to be believed, had been appointed each of them as supercargo to a French East-Indiaman, which appointment they had both foregone, and he, as he believed, would have to indemnify them for the loss. Profits a stated allowance, five per cent on the voyage outward, ditto on the homeward, besides provisions and other advantages. Value of each cargo, say £50,000: this gives loss to each above £5,000: to both £10,000.

The appointment, if real, was probably made only to give colour to the demand: for what power was there capable of stopping them? But, if the loss was not really sustained, that, or a greater, might, in that same shape, come to be sustained. The cause was an insurance cause: the value at stake might therefore have been sufficient to cover even so great a loss. But suppose the value at stake no more than a few pounds: shall it be in the power of a man, in the character of plaintiff, to subject his adversary, as it were in a parenthesis, to a loss of £10,000, in addition to (suppose)£5, the amount of the satisfaction due?

The master, the subordinate judge by whom all questions concerning costs are determined, and (as it is very fit they should be) without a jury, disallowed this claim of indemnity: but what he did allow was, the expense attached to the voyage and journey and witnesses of these two witnesses to and fro between France and England.

Reference made by the court (Lord Mansfield the chief justice) to a rule spoken of as established, viz. that contingent damages (meaning damages occasioned to a witness by the obligation of delivering his testimony) could not be allowed for: certificate from the master, that such application had frequently been made, and always without success.

The precedent, said Lord Mansfield, would be a dangerous one: since thus, with or without collusion with the witnesses, a plaintiff might, on the occasion of the most trifling claim, load his adversary with a burthen to an unlimited and intolerable amount. But even where contingent (i. e. consequential) damages are out of the question, how excessive and disproportionate may be the burthen thus imposed in the shape of ordinary charges.

What a dilemma! Injustice by denial of justice for want of evidence; or still worse injustice, by vexation and expense on the score of evidence. Is there no middle course? We shall see.

This dilemma,—is it the work of nature?—Now and then, and to a certain degree, yes: but much more frequently, and in a much greater degree, the work of learned art—one of the host of mischiefs produced by the rule by which, and especially at the outset of the cause, the parties stand excluded from the presence of the judge.

[* ]The iniquity of this rule has forced the judges to take upon themselves the responsibility of allowing to the prosecutor a sum of money under the name of expenses:a this, however, they do or leave undone as they please: consequently the most frivolous reasons frequently suffice for leaving it undone. It is asserted in the eighty-fourth number of the Edinburgh Review, p. 403, that, in a recent case, a judge refused to allow the prosecutor his expenses, because one of the witnesses for the prosecution offended him by his demeanour.—Editor.

[† ]The following is another exception to the reimbursement of expenses:—

“When a party,” says Phillips,b “after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may proceed in the action.c The same rule prevails in the Court of Chancery: if a party applies to that court for a commission to examine witnesses, he must pay the expenses.”

[* ]A case that happened within these fifty yearsa will serve at once to show the demand for a discretionary remedial power to be exercised by the judge, and the oscitancy of English law.

Action in the King’s Bench at Westminster: two of plaintiff’s witnesses, a captain and first lieutenant of a French merchantman, brought over from France: these two witnesses, if the affidavit of the real plaintiff (a Frenchman) was to be believed, had been appointed each of them as supercargo to a French East-Indiaman, which appointment they had both foregone, and he, as he believed, would have to indemnify them for the loss. Profits a stated allowance, five per cent on the voyage outward, ditto on the homeward, besides provisions and other advantages. Value of each cargo, say £50,000: this gives loss to each above £5,000: to both £10,000.

The appointment, if real, was probably made only to give colour to the demand: for what power was there capable of stopping them? But, if the loss was not really sustained, that, or a greater, might, in that same shape, come to be sustained. The cause was an insurance cause: the value at stake might therefore have been sufficient to cover even so great a loss. But suppose the value at stake no more than a few pounds: shall it be in the power of a man, in the character of plaintiff, to subject his adversary, as it were in a parenthesis, to a loss of £10,000, in addition to (suppose)£5, the amount of the satisfaction due?

The master, the subordinate judge by whom all questions concerning costs are determined, and (as it is very fit they should be) without a jury, disallowed this claim of indemnity: but what he did allow was, the expense attached to the voyage and journey and witnesses of these two witnesses to and fro between France and England.

Reference made by the court (Lord Mansfield the chief justice) to a rule spoken of as established, viz. that contingent damages (meaning damages occasioned to a witness by the obligation of delivering his testimony) could not be allowed for: certificate from the master, that such application had frequently been made, and always without success.

The precedent, said Lord Mansfield, would be a dangerous one: since thus, with or without collusion with the witnesses, a plaintiff might, on the occasion of the most trifling claim, load his adversary with a burthen to an unlimited and intolerable amount. But even where contingent (i. e. consequential) damages are out of the question, how excessive and disproportionate may be the burthen thus imposed in the shape of ordinary charges.

What a dilemma! Injustice by denial of justice for want of evidence; or still worse injustice, by vexation and expense on the score of evidence. Is there no middle course? We shall see.

This dilemma,—is it the work of nature?—Now and then, and to a certain degree, yes: but much more frequently, and in a much greater degree, the work of learned art—one of the host of mischiefs produced by the rule by which, and especially at the outset of the cause, the parties stand excluded from the presence of the judge.

[a ]The Editor of the original edition is here mistaken. The judges never took upon themselves the responsibility of allowing any expenses. Hale (2.282) complained of the want of power in the judges to allow such expenses, as a great defect in our judicial system. The 25 Geo. II. c. 36 allowed certain expenses to the prosecutor, and the 27 Geo. II. c. 3 did the same to the witnesses for the crown; but a condition precedent was, that the prisoner should be convicted. This unjust provision was repealed by the 18 Geo. III. c. 19, which allows the expenses whether the prisoner is convicted or acquitted. The 58 Geo. III. c. 70 was also passed for the purpose of regulating the expenses of prosecutors and witnesses. But as none of these acts extended to misdemeanours, they were all repealed by the 7 Geo. IV. c. 64, which grants expenses in all cases of felony, and in certain cases of misdemeanour. The judges have undoubtedly a discretion, and very properly so; for it now and then happens, that a witness swears falsely, keeps back the truth, or wilfully prevaricates. Sometimes a witness has had some participation in the crime of the prisoner, as where he has purchased the stolen property of him under suspicious circumstances. In all such cases it is usual to disallow the expenses. It may be doubted if the case referred to in the Edinburgh Review ever happened. If a witness misconducts himself in the box,—presents himself in a state of intoxication,—makesuse of indecent expressions, or otherwise insults the court, he is punished as for contempt of court, by the disallowance of his expenses; but this would in no way affect any other witness, or the prosecutor, unless they were also guilty of similar improprieties.—Ed.

[b ]Vol. i. p. 14.

[c ]“Stephens v. Crichton, 2 East, 259. Taylor v. R. Exch. As. Col. 8 East, 393.”

[a ]Thelusson v. Staples, 20 G. 3. Dougl. 438, in Hullock, 438.