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PART III.: VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF DANGER OF DECEPTION. * - 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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VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF DANGER OF DECEPTION.*
In regard to evidence, admission, non-exclusion (it has already been shown,) is the general rule. Evidence is the basis of justice: exclude evidence, you exclude justice.
The propriety of the general rule being so conspicuous—whatever be proposed in the character of an exception, the onas probendi, in respect of the propriety of it, lies upon the proposer of the exception—upon the exclusionist. In the last proceding Book, this task has been performed.
If, as above supposed, in the account stated in the proceding book, the entire list of the cases in which exclusion of evidence can be reconcilable to the ends of justice, is included; in all other cases in and for which it ever has been or can be proposed, it will be improper.
Having done with the cases in which it may be proper, the examination of the cases in which it cannot be proper will occupy the remaining part of this Book.
In technical jargon, the question as between admission, and non-admission, admission and exclusion, is clothed in different language. For admission, competency is the word—for exclusion, incompetency. Not only so, but incompetency finds another synonym, or at least a substitute, such as would not easily have been suspected; and this is credibility. An objection is made to the admission of the witness: a question is to be argued:—The question is now as between competency and credibility; whether the objection goes to the competency of the witness, or only to his credibility:—If, being considered as applying itself to his competency, the objection is deemed well-grounded, exclusion is the consequence: if, as levelled at the same mark, the objection is considered as ill-grounded, as insufficient, admission is the consequence; the witness is to be heard, as if no objection had been adduced.
Objections to the competency being objections the effect of which is to operate the exclusion of the witness altogether; and objections to his credit having no such effect; it might seem that the latter class of objections have no effect at all but that is not the case. The objection itself, being the allegation of a matter of fact, must be made good by evidence. If an objection is not good as an objection either to competency or to credibility, evidence in proof of the objection is not admitted to be produced. If it be allowed to be good as an objection to competency, the objection is allowed to he produced, and the witness not. If it be good as to credibility, but not as to competency, the witness, and the evidence of the objection to him, are allowed to be produced together.
Those who support the evidence against an objection to its competency, have seldom any unwillingness to have the same objection received in the character of an objection to credibility. Why? Because in this case the objection frequently amounts exactly to nothing at all. How so? Because it is so perfectly frivolous, that, in the scales of common sense (the false scales and weights of common law being put out of the way,) it would not weigh against the evidence to the value of a feather. The objection being good, is it good as against competency? the man is not so much as heard. Does it apply to credibility? he is not the less believed.
In effect, the difference amounts to diametrical opposition: in language, it is presented as but a sort of a hair-breadth difference; so minute, so microscopical, that by a high-seated eye it has happened to it to be over-looked. Like the difference between purport and tenor, it was that sort of difference to which a lawyer (if, with the reputation of a great orator, seated on a high and commanding station—in a word, a Mansfield) might, without shame, confess himself to have been scarcely sensible. In sound, the difference is like the famous one between tweedle-dum and tweedle-dee: nor, in effect, is there any greater difference than between justice and injustice—a difference which, to a learned eye, is too minute to have any claim to notice.
In practice, they had been confounded: so happily confounded, that, when a statute had required that a witness or witnesses should be credible, it was a matter of doubt whether credibility was or was not the same as competency. Instead of talking of credibility, speak of inadmissibility, non-admission, or exclusion; instead of competency, speak of admissibility, admission, and non-exclusion; you could then he understood without difficulty: the difficulty would then be in contriving how to misunderstand you. But, well suited as such clearness would have been to the purposes of common sense and common honesty, it would have been proportionably ill suited to the purposes of common law. The absurdity of the arrangement was in some measure hidden from view, by the cloud which hung over the language. Prevented from knowing so much as what it was that was done, non-lawyers were the more effectually prevented from seeing into the irrationality and mischievousness of what was done: and, upon this part of the ground as upon every other, the rubbish thrown up by the lawyers, while working and fighting in the dark, contributed its part to thicken the entrenchment which defends the garrison of the old castle of chicane.
Deception, and vexation, have already been mentioned as the two inconveniences, in the apprehension of which (in so far as any reason, or so much as the slightest colour of a reason, has ever been assigned or glanced at) the exclusionary system, in what cases soever it has been applied, has had its root.
Exclusions grounded on the consideration of vexation, form the matter of the next succeeding Part.
The present Part is appropriated to the consideration of those examples of exclusion, in which the fear of deception has been the ground, real or ostensible.
Incorrectness, and incompleteness. In these two expressions may be included all the properties, by means of which it can happen to the testimony of a witness to produce deception in the bosom of the judge.
If, in respect of either or both these qualities, there be any failure on the part of the witness, the root or cause of it will be to be found either in the will, or in the understanding; in the volitional, or the intellectual, branch of his mental frame. With relation to the result here in question, the state of those faculties respectively may be said to be an unfit one.
When, on the part of the testimony, incorrectness or incompleteness in any degree has its source in an unfit state of the will, interest, sinister interest is the cause of it: when in an unfit state of the understanding, imbecility.
Our business, at present, is to bring to view, not so much what ought to have been, as what has been, done and thought.
Topics different in appearance, though in effect coincident, have been, in the existing systems, substituted or added to the above. Qualities or acts considered as blemishes upon the moral character of the proposed witness, have, in a variety of instances, been considered as grounds of exclusion. For the designation of all these, one word, improbity, may on occasion serve.
But improbity, on what score does it present itself, in reality or in appearance, as constituting a proper ground of exclusion? and what relation, if any, does improbity bear to interest?
One answer will serve for both these questions:—
Interest, when acting in such a direction and with such effect as to give birth to falsehood, may be termed sinister interest. The effect of improbity is to render a man, in proportion to the degree of it, more and more apt to be led into falsehood by the force of sinister interest.
Thus it is that improbity, considered as a ground of exclusion, coincides with, and is included in, the ground expressed by the word interest. Be it lying, be it what it will, no man does anything wrong, anymore than right, without interest, without a motive. Suppose everything capable of acting in the character of a motive in a mendacity-prompting direction, out of the question, a man of the most profligate character will be no more likely to deliver false testimony, than an average man taken at large.
Under the head of improbity may be included, to the present purpose, that of religion. Improbity has been generally ascribed to a man on the supposition of his having no religion, or having a bad one. Religion has, accordingly, furnished pretences for refusing to hear evidence: with what reason, will be seen in its place. He who is considered as having no religion, no God, is termed an atbeist; he whose religion is bad, whose God is considered as a bad one, whose notions concerning God are considered as bad notions, has been termed a cacotheist. Subordinate to the head religion, atheism and cacotheism may, accordingly, constitute two distinguishable heads.
Subordinate, in like manner, to the more extensive head of imbecility, we shall find three particular heads: infancy, dotage or superannuation, and insanity (including casual mental debility.)
By reason of infancy, and to the extent of the age denoted by that word, every man is kept in a state of relative imbecility. In the course of his life, every man is subject to have his intellectual faculties more or less disturbed and weakened by mental debility (whether caused by bodily debility or not;) and, towards the close of it, by dotage.
Putting together these several articles, we have eight general heads, under which the circumstances that have been employed as grounds or pretences for putting exclusion upon evidence may be ranked: viz.—
In the former set of cases which have just been under our review, we have seen but little work, in the way of exclusion, for the providence of the legislator; and of that little, the greater part left everywhere undone. In the set of cases now coming under review, we shall see nothing at all, in point of propriety, to be done in that same way by the providence of the legislator, and at the same time in point of fact we shall see him (or rather his substitute, his essentially and everlastingly incompetent substitute, the judge) at work everywhere, in all directions, and with a sort of activity as pernicions in effect as it is rash and unwarranted in principle.
DANGER OF DECEPTION, NOT A PROPER GROUND FOR EXCLUSION OF EVIDENCE.
Exclusion of evidence, no security against misdecision.
Misdecision is the word to be used in this place, not deception. Why? Because in misdecision consists the mischief, the only mischief. Suppose deception, and yet no misdecision, there is no real mischief: suppose misdecision, yet no deception, the mischief is as great as if deception had been the cause of it.
Deception supposes conception: previous hearing, or what is equivalent. The judge who should ascend the bench with a resolution never to hear anybody, would conduct himself badly enough; but in no case could it be said of him that he had been deceived. Misdecision, as many instances of it as there were causes endeavoured to be brought before him: misdecision, in abundance; deception, none.
The first thing to be done then, is to show that, on whatever ground exclusion may be placed, it is not in the nature of it to afford any security against misdecision. This accomplished (if it be accomplished,) the remainder of the book, were all minds upon a level with the highest, would be but artum agerc. But the mind of the public is not so easily satisfied: prejudice is not eradicated upon such easy terms.
In every case, the evidence (whatever it be) which it is on any side proposed to produce, is either necessary, or less than necessary, to the decision prayed for on that side: say (to take the clearest example,) the only evidence or not the only evidence, on that side.
1. In the first place, let it be necessary.
Exclusion, if put upon necessary evidence, produces, if the evidence would have been true, a certainty of misdecision: deception, supposing it to have taken place, can do no worse. But no man surely will be found who will either think or say, that, of falsehood (supposing the evidence false,) deception will in any one instance be a certain consequence. To say this, would be as much as to say, every judge is a machine. What, then, is the effect of exclusion? To produce, for fear of an uncertain mischief—to produce to a certainty, and in the first instance, the very mischief which it professes to avert. It is as if a copyist, considering that he now and then makes mistakes, should, for greater security against incorrectness, determine never to copy any more but in the dark.
What, then, would the lawyer be with his exclusionary remedy, supposing he were sincere? He would be like the panic-struck bird, which, for fear of the serpent, flies into its mouth.
What should we say of a lottery, at £20 a ticket, so many blanks to a prize, £20 the highest prize?—£20 paid to purchase a chance of £20? Among non-lawyers, where is the man to be found that would be weak enough to make such a lottery weak enough to put into if it made? The learned judge who shuts the door against evidence, to save himself or Co. from being deceived by it, makes exactly such a lottery, and buys tickets in it. He buys tickets in it: but with whose money? Not with any of his own money, indeed: no, truly, he knows better things: but with the money of suitors.
Rapax owes you £20 that he borrowed of you: Oculatus Suspectus was present at the transaction, his evidence is the only proof you have of it. If the judge refuses to hear Oculatus Suspectus, misdecision to your prejudice is the certain consequence; your money is gone.
You borrowed £20 once of Rapax; he has abundant evidence of it: but you paid him — Oculatus Suspectus saw you pay him: of this payment his testimony is the only evidence. If the judge refuses to hear Oculatus Suspectus, misdecision to your prejudice is the certain consequence: here, too, your £20 is gone.
On the other hand, suppose, in either case, Oculatus to be a false witness: is deception on the part of the judge, is misdecision and wrongful disposal of the money, a certain consequence? Nothing like it. Every day, false testimony is delivered: every day, false testimony is detected.
2. Next and lastly, let the evidence in question be less than necessary. Being not absolutely necessary, it must be because there is other evidence on that same side. In this case, though the evidence be excluded, misdecision is not the certain consequence.
But in this case, the party who adduces the evidence having other evidence sufficient to warrant a decision in his favour, there is nothing gained by the exclusion. Excluding the evidence, you decide in favour of the party who produces it: what could you have done more, if you had admitted it?
Not that, in this case, the exclusion is merely nugatory. It imposes upon the party on whose side the evidence was produced, the additional delay, vexation, and expense, of procuring other evidence; and if these exceed his means, he loses his cause, and misdecision, or failure of justice, is the consequence.
In neither case, therefore, can the exclusionary system be conducive to the ends of justice.
Of the apprehended danger of misdecision from the receipt of evidence of a comparatively untrustworthy kind, what is the amount and value? In every case, either nothing or next to nothing. The legislator is sufficiently upon his guard against it; indeed, more than sufficiently: and so much more than sufficiently, as to prohibit the reception of it without knowing what it is. But being himself so much more than sufficiently upon his guard, what ground can he have for the apprehension that the judge, on his part, will be less than sufficiently upon his guard? The judge who, with such warning as may be given him by the legislator in the way of instruction, is not sufficiently proof against that deception against which the legislator has thus been so sufficiently upon his guard without warning, ought not to be deemed qualified for his office.
From the precautions taken by lawyers, who would not have supposed that the danger was all of it on one side?—that, while it is an event unhappily so frequent for false testimony to obtain a credit that is not its due, it was a misfortune that could never happen for true testimony to fail of obtaining the credit that is its due? Yet, in point of fact, who is it that can be assured, that in a case so open to general suspicion as most of those to which the exclusionary rules refer, it may not have happened as often to true evidence to be disbelieved, as to false evidence to be believed? Fortunately for mankind, the nature of things does not admit of any such drastic remedy against the former misfortune, as the quackery of lawyers has employed against the latter.
The witness in question, supposing him to have been admitted, would either have been disbelieved or believed. In the first case, the rule is superfluous and useless. All the use of it consists in warding off a danger, which, the event shews, would not have been realized.
Wherever the witness, if admitted, would have been believed, observe the consequence; observe the ground, in point of reason, upon which the law rests. The jury, who have seen the witness—who would have heard his whole story—who would have heard him cross-examined, and had the opportunity of cross-examining him themselves—who would have heard the other witnesses, if there were any—who would have seen who and what the defendant and the prosecutor are—and who would have observed the whole complexion of the case,—the jury, who would have had the benefit of the observations of the counsel and the judge, would have believed his relation to be true. The law, which has not seen the witness, which knows nothing of accused or prosecutor, which—in a word, knows nothing of the case, pronounces him unfit to be believed; and so unfit, and the danger of hearing him so great, that, rather than run the risk, it chooses, as the lesser evil, to license the commission of all sorts of offences in his presence. When I said the law, I might have said the judge—the single judge, to whose partial and hasty conception, hurried away and engrossed by some particular incident in the particular case before him, it first occurred to lay down such a rule.
All this while, the admission of a witness,—the disallowance of the rule which, on the ground of any supposed objection to his veracity, forbids him to be heard,—would not preclude the production of the ground of objection, whatever it may be; the record (for instance,) or other evidence, proving his having been convicted of a crime reputed infamous. Wherever the production of such ground of objection would have had the effect of preventing the jury from crediting his evidence, the rule is superfluous and useless. The only case where it has any effect is that in which, after hearing the objection against him, they were to be satisfied of its being insufficient and inconclusive, and to credit his testimony notwithstanding.
Against danger of misdecision, resulting from the admission of a lying witness, or rather of a witness disposed to lie, there are abundant remedies. There is the natural sagacity of the jury—there is the cultivated sagacity of the judge—there is the perhaps equally cultivated, and still more keenly sharpened, sagacity of the counsel for the defendant—there is, in penal cases (especially in cases of the most highly penal nature,) the candour of the counsel for the prosecution. For (though, in cases of guilt, the more flagrant the guilt, the greater the glory, and thence the greater the zeal of the defending counsel,) what counsel ever presses for a conviction, in a case any way serious, of a defendant of whose innocence he is himself assured? Besides all these securities, there is in this country, after all, the mercy (which in this case would be but the justice) of the crown.*
Where is the consistency between this utter distrust of juries, and the implicit faith bestowed, with so much affectation, on the decisions they are permitted to give on such evidence as they are permitted to receive? When a parcel of people you know nothing of, except that they are housekeeping tradesmen, or something of that sort, are got together by hap-hazard, or by what ought to be hap-hazard, to the number of twelve, and shut up together in a place from which they cannot get out till the most obstinate among them has subdued the rest; political orthodoxy commands them to be looked upon as infallible. I have no great opinion of human infallibility; and if it were necessary to believe in it, I would go to work by degrees, and begin with the Pope. All I contend for (but this I do contend for) is, that these twelve men, whoever they are, that have heard what the witness had to say—heard him examined and cross-examined, and examined him themselves as long as any of them thought proper—are more likely to judge right as to whether he has spoken truth or no, than a judge, who lived centuries ago, who never set eyes on the man, nor ever heard a syllable from or about him in his life, is likely to judge right on the question whether the man would say true or no if he were to be heard. If there be one business that belongs to a jury more particularly than another, it is, one should think, the judging of the probability of evidence: if they are not fit to be trusted with this, not even with the benefit of the judge’s assistance and advice, what is it they are fit to be trusted with? Better trust them with nothing at all, and do without them altogether.
A question continually started to the jury by the judge is,—Do you believe this evidence?—and it happens but too often that the verdict declares the negative. Indeed, little less of their attention is occupied in determining with themselves who is to be believed, than in drawing inferences from the evidence on which their belief has been bestowed. In all these instances, false evidence is poured in upon them, without the smallest mark to distinguish it from the true. In all the cases of exclusion, the witness presents himself with a mark upon his forehead, pointing out the reason there is for looking upon his evidence as likely to prove false. If he did not, there would be no ground for shutting the door upon him. Habet fænum in cornu. Are men more in danger of being deceived when they have warning given them, than when they have none?
But, when the testimony of a witness, being false, is not believed, the very falsehood itself is a source of instruction, and security against misdecision.
Misdecision, be it never out of mind, is the only real evil; falsehood, unless in so far as it produces misdecision, none at all. Yet, to no such object as misdecision is the eye ever directed by lawyers: of no such word is any trace to be found in their books. Falsehood is the great and only object of all fears. What? would you lend an ear to falsehood? Why not, if from falsehood you can obtain a clue that guides to truth? Instruction? do you think to derive instruction from a liar? Why not, as well as from any other enemy?
In what other case can you be so sure of hearing falsehood, as when you have to take the examination of a notorious and professional malefactor, on the occasion of some offence of which he stands accused? Yet, the surer you are of hearing from him all such falsehoods as promise to suit his purpose, the more instructive and satisfactory, if pertinent, are all such truths as his propensity to falsehood has not enabled him to keep back.
Be the deponent who he may, the thread of his testimony should all along be divided, by the eye of the judge’s mind—carefully separated and divided, into two parts:—that which runs in the presumable direction of his wishes; and that which runs in a direction counter to that of his wishes. In the former part, so far as depends upon bias, upon interest, may be seen a sort of evidence less trustworthy than if he were indifferent; in the other, a sort of evidence more trustworthy.
The severer the impending evil, on the score of punishment, or on any other, the stronger, of course, will be a man’s wishes to avoid saying anything that may help to subject him to it; and the more depraved the disposition of the man, the stronger his propensity, on every occasion, to pursue, in word as well as deed, the course indicated by the wishes of the moment, in spite of all suggestions of ultimate interest and moral obligation. Both these considerations laid together, hence it is, that of one part of every malefactor’s, of every liar’s, evidence (viz. the part which tells against himself,) it may be said, and with unquestionable truth, the more determined the liar, the better the evidence. As to the ratio of the trustworthy part to the untrustworthy, it will depend upon the verity-insuring force of the scrutinizing operations to which it is subjected.
Falsehood a certain cause of deception and misdecision? On the contrary, in how many cases is it a guide to truth, a security for rectitude of decision? In the very sort of case in which falsehood is most probable, deception, as a consequence of it, is least probable.
Falsehood, where wilful, forms a species, a most instructive and useful species, of evidence. It forms a particular modification of circumstantial evidence. Falsehood on any occasion is circumstantial evidence of criminality, of delinquency—of consciousness of misbehaviour, on either side of the cause, and in any shape.
When a person labouring under suspicion of a crime is in a course of examination, is it generally expected that all he says will be true? On the contrary,—the severer the punishment, and the stronger the persuasion of his guilt, the stronger is the persuasion, that, so far as what he has to say to any point will, if true, tend to his conviction (appearing to him, as it naturally will, to have that tendency,) whatever it may happen to him to say as to that part will not be true.
Accordingly, it is from that sort of source which, with the fullest and most universal assurance, is looked to as a source of false evidence, that whatever assertion operates in favour of one side of the cause (viz. to the prejudice of the interests and presumed wishes of him whose evidence it is) is regarded as the most satisfactory of all evidence: regarded, and by everybody: the very lawyers not excepted, who to guard themselves against deception, are so anxious to shut the door of judicature against any source of evidence to which it can by possibility happen to yield false evidence. But, forasmuch as the eyes of all mankind, judges themselves not excepted, are universally open to the falsity of false testimony, universally upon their guard against deception from the source that wears any appearance of yielding it,—how can it be, that, on the part of judges, deception by reason of that same evidence, deception from whatever false evidence flows from that source, should be the certain, or so much as the preponderantly probable, consequence?
Not that, even in the cases where falsehood itself is looked to as the most instructive source of information—not that, even in the case of persons thus circumstanced, of persons from whom falsehood is expected in a larger proportion than from any others,—not that, even from them, there seems reason to expect that falsehood should come in greater quantity than truth. Truth, even in these cases, will be the general rule—falsehood, but an exception. Take what false proposition you will, there will be three conditions incident to the utterance of it:—1. That it appear necessary to the accomplishment of the deponent’s wishes (viz. for acquittal, if defendant, and so in other cases;) 2. That if it be not too palpably false to exclude a prospect of gaining credence; 3. That it be not of a sort to expose him to subsequent punishment too severe to be risked.
Symptoms of terror and confusion exhibited in deportment—non-responsion—indistinct and evasive responsion,—all these indications have, on the same sort of occasion, and in the same character of circumstantial evidence, their use, their universally felt and acknowledged use: yet (such is the instruction derivable from falsehood) responsion, direct responsion, is on the same occasions still pressed for; as being (though replete with falsehood, or rather for that very reason) pregnant with a sort and degree of instruction and satisfaction, over and above any instruction and satisfaction that is to be derived from those other sources, any or all of them put together. From manifest improbability on the face of it, from self-contradiction, from counter-evidence—from any of these sources, detection may flow: and then it is that (by operating as evidence of character, evidence much more conclusive than any extraneous testimony on that head,) the falsehood, as such, and recognised as such, affords its instruction, produces its effect in the character of circumstantial evidence.
The case here spoken of, is that of a person labouring under the suspicion of criminality, and on that score stationed, by an act of the judge, in the situation of defendant: the suit having punishment for its object, real or professed. In this case, where any objection has been made to the propriety of receiving evidence drawn from such a source, from the lips or pen of an individual placed in that distressing situation, it has been rested, not on the ground of danger of deception, but on a very different ground,—certainty of vexation on the part of the defendant, the proposed witness: of which in its place.
True it is, that it is only when either recognised, or at least suspected, to be what it is, that falsehood becomes thus instructive, becomes a fence against deception, instead of a source and cause of it. Equally true it is, that it is morally impossible that, in any of the cases in which the door ever has been shut or been proposed to be shut against evidence in consideration of the danger of deception, the falsity of it (whatsoever falsity it may happen to it to contain) should fail of having been suspected.
Thus it is, that exclusion can in no case, on any assignable ground, be put upon evidence, without wearing on the face of it a proof of its own injustice—a proof of the unsolidity of the ground.
Will it be said that, though the ground of the exclusion be just, it may happen to the judge not to be apprized of the justice of it? Admitting the case to be realized, the utmost that it would prove would be, that the appropriate arrangements should in every case be taken for making sure that the judge shall be thus aware of it. What, then, on the principle of this observation, is the proper course? Not exclusion to be put upon the evidence, but instruction to be given to the judge. But this is precisely the remedy which, as a succedaneum to be in all cases substituted to exclusion, it is the object of these pages to recommend.
The judge who, so much at his ease, pronounces a fact not true, because, the witness by whom the existence of it has been testified may find himself a gainer in the event of its being credited, or on this or that particular occasion has been known to have swerved from the path of probity—would this same judge, with equal readiness, pronounce the same judgment, were a fact of the same description to call for his decision for any personal purpose of his own? Not he, indeed. Because a servant of his is believed by him to be addicted to lying, does he on that account lay down any such rule to himself, as never to put a question to that servant in relation to his own conduct, or to that of any other servant? Not he, indeed. If it be his misfortune to have a child whose character is tainted with that vice, does he lay down any such rule in his dealings towards this wayward child? Not he, indeed. The judge who, on the like hastily taken grounds, determines that the will of this or that testator shall be void, and that the augmentation or diminution intended to be made by it in regard to the share of this or that one of his children shall in consequence be without effect,—the same judge, if, with a view of making an augmentation or diminution to that same amount in regard to the share of one of his own children, he has to make inquiry into facts,—does he pay so much as the slightest regard to any of these exclusive rules? Not he, indeed.
Why this difference? Because, in regard to the conclusion he forms in his individual capacity, he is sincerely desirous that it be just and true: whereas, in regard to the conclusion he forms in his official capacity, he cares not a straw whether it be true or untrue. In this case, all his concern is that it be found justifiable; conformable to the standard, whether in the way of statute law or jurisprudential law, to which, by his superiors and the public, his decisions are expected and required to be found conformable.
Probable source of this branch of the exclusionary system—its inconsistencies.
The closer we look into the origin of this system of exclusion, the more thoroughly we may be convinced of its hollowness and injustice.
By whom have the exclusions been put? By the legislator, in the way of statute law? No; but by the judge, in the way of jurisprudential law.
If by the legislator, operating in the way of statute law, the ground for it, though still untenable, would not have been so completely hollow. To the legislator, in his situation, it might have been competent to say,—The judge, I fear, will not be sufficiently upon his guard against evidence thus circumstanced: the safe course will be to exclude it; and so, excluded it shall be—I will not trust him with it. Here, as already shown, there would have been shortsightedness, rashness, error: inconsistency, however, there would have been none.
But from the judge, nothing could have been more inconsistent, nothing (on any other supposition than that of improbity) more absurd. I will not trust myself with this evidence: it will deceive me: I am not upon my guard against it. Is such folly conceivable? Had it been prevalent, the practice of taking the examination of the defendant, on a capital or other criminal charge, never could have taken place. Yet, on the continent of Europe, in the seat of Rome-bred law, from which the doctrine of exclusion was probably imported into England, such examination was and is not only customary but indispensable.
What then? Ought deafness, as well as blindness, to be among the attributes of Justice? Is the story of the Syrens not fable, but history? and is every man, every ruffian, that comes before you, a Syren? so that, wherever there is possibility of falsehood in evidence, there is no safety for you but in stopping up your ears? No, learned sir: no more than you—you who, if honest, can thus reason, are an Œdipus or an Ulysses. Such diffidence,—beyond that of the most inexperienced virgin,—is it credible, in the situation of him who never awakes in the morning but to see the fate of men lying at his feet?
Not qualified to judge of the veracity or correctness of a man speaking to a matter of fact? What is it, then, that you are qualified for? Is not this your occupation? Day by day, on one occasion or other, is not this the occupation of every man that breathes?
But no; improbity, in some shape or other, presents to the difficulty a solution much more natural than is presented by the hypothesis of any such morbid diffidence. The origin of the exclusive system lies deep in the recesses of distant time: it dates in ages of barbarism—ages, in comparison with which the present, whatever may be the dream of vulgar prejudice, is the age of virtue.
Corruption as likely a cause as any—gross and determined partiality: whatsoever bond of connexion—sympathy, common interest, or bribery—may have been the cause. In judicature, corruption, in the worst cases, must have a pretence: and how many pretences have been acted upon, still more shallow and unplausible than this? Shallow as this is, the system of nullification stands not, in any part of is, upon any equally specious grounds.
Indolence, a cause at all times adequate to the effect—a cause still adequate to the production of it, even now that, on these higher seats, within the English pale at least, corruption even in its most refined shape may be pronounced rare, confined to cases of a particular sort; and in its grosser shapes probably without example.
This man, were I to hear him, would come out with a parcel of lies. It would be a plague to hear him: I have beard enough already: shut the door in his face.
As sheep follows sheep, judge, in the technical system, follows judge. Here, quoth judge B, is a man, who, on such or such a score, lies under a temptation to speak false. In this or that shape, in the situation he is in, he has an interest in the cause. Exactly in this sort of situation was a man whom my brother A (though it is so long ago, I remember it as if it had been but yesterday would not hear. Exactly in the same situation? In respect of exposure to temptation, perhaps yes; but when brother A refused to hear the man, perhaps it was that he had already heard witnesses to the same fact till he was tired, and on the same side.
Suppose a riper age: history of judicial transactions brought to light in bits and scraps at the command of booksellers (no thanks to legislators or to lawyers.) Of the cause of suspicion, a short indication; but, as to the absence or presence of other evidence to the same or a different fact on the same side, a man might be a much better reporter than reporters commonly are (or at least used to be,) without thinking of it.*
The grounds of suspicion in evidence may be ranked under four causes:—
1. The fact spoken to—not the fact itself which is in question, but a fact supposed to be connected with it—so connected with it, that the existence of the evidentiary fact affords a reason for inferring the existence of the fact thus evidenced to. This is circumstantial evidence, considered as contradistinguished from direct.
2. The information in question not delivered immediately from the source of the information (the person, the thing, or the script, from which it is derived.) This is transmitted evidence, considered as contradistinguished from immediate: hearsay evidence, transcriptitious evidence, in their infinitely diversifiable degrees of remoteness from the source.
3. The evidence in question not collected or delivered in the best mode—not delivered under the influence of those securities for trustworthiness, which are commonly, and might be generally, employed for securing the correctness and completeness of the mass of information: sanction of an oath, examination, cross-examination, fixation by writing, and so forth. In this rank are, in their own nature, and without the default of any person, all casually-written documents, such as letters and memorandums; and, by the default of the legislator or the judge, all evidence collected in any mode inferior in efficiency, from a source from which evidence might, without preponderant collateral inconvenience in the shape of expense, vexation, and delay, be collected in the best shape. Examples:—affidavit evidence: nakedly assertive discourse (as in unsworn pleadings;) and evidence collected per judicem solum, sine partibus.
4. The person who is the source of the information, exposed to some assignable cause of suspicion, affecting the trustworthiness of his statements.
Here, then, are four causes of weakness in the evidence, of which the one here in question is but one. In the other three cases, either no exclusion at all is put upon the evidence (as in the case of circumstantial evidence in general;) or an exclusion is put in some instances, not put in others, according to a system of infinitely diversified and inconsistent rules (as in the case of the different modifications of unoriginal and casually-written evidence above mentioned;) or the weakness of the evidence in the state in which it is delivered, or offered to be delivered, is the act and deed of the exclusionist himself: he himself bespeaking it in a weak and bad shape, refusing to receive it in a better shape,—even when, in the best possible shape, it would be received with less collateral inconvenience, as above.
This same psychological epicure, the delicacy of whose palate refuses all aliment that, in its unconcocted state, presents a suspicion of any the slightest taint, will not suffer it to be served up to any table of his own, for his own use, unless, by cooks from his own kitchen, it has been brought, by a process of mortification, into a sort of carrion state.
A degree of ridicule attaches itself to the labour of him who perseveres in combating with the arm of reason a practice in the production of which improbity and imbecility took undistinguishable parts, and in which, as soon almost as the idea is started, any one, whose eyes are not determinedly closed, may see that reason had never any share.
Witnesses, each of them with a mark of suspicion stamped upon his forehead, present themselves to the English exclusionist for admittance. Blindfolded by a bandage borrowed certainly not from justice, but from knavery or prejudice, some of them he rejects, in consideration, as he says, of the mark; and in regard to those, the objection, in the jargon of English jurisprudence, goes to the competency: others of them he admits, notwithstanding the mark; and as to these, the objection goes only to the credit: in plain English, amounts to nothing—produces no effect at all.
The whole assemblage of suspicious characters being thus distinguished into two groups, whose lot is so different, the elect and the reprobate,—a requisition that would be to be made (if reason had any share in the concern,) is, that some sign should be shown, by which it might be made to appear that, in the least reprobate of the reprobate, the force of the cause of suspicion is greater than in any of the elect: or, if this be too much to require, that, at the least, in an average man of the reprobate, the force of that same cause was greater than in an average man of the elect.
Such criterion, then, is it anywhere to be found? So far from it, that, on the contrary, instances will be found, instances to an indefinite extent, in which, where the force of the cause of suspicion is at its maximum, or but a hair’s-breadth below it, the proposed witness is admitted notwithstanding,—admitted into the class of competent witnesses: where that same force is at its minimum, a quantity purely ideal, utterly incapable of ever having any the smallest effect in practice, the witness is shut out.*
The shape in which it may happen to testimony to be collected, has just been mentioned as one among the sources of the weakness to which evidence is subject. On this ground an argument may be built by the exclusionists: let us hear it.
In Rome-bred procedure, the means of detecting or preventing mendacity are so perfectly insignificant, that it would be dangerous in the highest degree to admit evidence from any but the purest and most unsuspected source. Parties not admitted: no questions asked but in a whispering room, as between confessor and penitent, by the judge: no counter-interrogation (for the cross-examination of Rome-bred law is an abuse of words, the penner of the counter-interrogations knowing nothing of the answers to the interrogations:) no counter-evidence, for we keep the evidence as close as possible, lest there should be any. Not a creature to hear the evidence, but one who cares not a straw whether it be true or false. Thus circumstanced, the evidence is true or untrue, pure or impure, according to the source from which it flows. Under such a system, ought anything under the degree of angelic purity ever to be heard?
Answer. No, most certainly. Accordingly, until the time comes when angels can be subpænâ ad under such a system there is but one proper course, which is, to exclude everybody. That done, if you think it better to receive evidence than to decide without evidence, you will admit the evidence in a shape in which it is fit to be received.
The argument, such as it is, serves, in the manner we have seen, to justify the application of the exclusionary system to the cases in which the evidence is collected in the Roman mode. It will operate still more strongly in favour of the application of it to evidence received in the English affidavit mode.
Be this as it may,—certain it is, that, under the Rome-bred system (upon the continent, understand,) the exclusionary system has been carried to still greater lengths than under the English; and accordingly, under the former, compared with the latter, if the mischief be greater, the inconsistency is less.
The rules of evidence are the same in equity as in law. So it has been said, and always without exception, any number of times over, by chancellor after chancellor. It is not true; but, so far as it is true, in point of consistency at least, so much the worse. The worse the mode of collection, the more select ought to be the evidence. There ought to be gradations upon gradations—valves behind valves. One exclusionary system, for evidence in causes tried by or before a jury; another, for causes tried in equity; another, for causes tried by learned common-law judges, upon affidavit evidence. Single-refined might do for the jury box; none but double-refined ought ever to be received into an examiner’s office; none but treble-refined ever handed up to the bench.
Thus stands it in point of consistency: how in point of fact? In the shape of affidavit evidence, everything is good, from everybody: from plaintiffs, from defendants, from felons, from perjurers. Present your evidence to a learned judge, he cares not where it comes from, so it come in a bad shape—in a shape in which it is filable and filed;—anglicè, in a shape in which fees are paid upon it.
IMPROPRIETY OF EXCLUSION ON THE GROUND OF INTEREST.
Interest in general, not a proper ground of exclusion.
Seeing that deception is so far from being a certain, so far from being even a preponderantly probable, consequence of falsity in evidence, even when the existence of the falsity is certain,—it seems almost a superfluous task to show, that to regard any of those circumstances which have been held as grounds of exclusion, as being, in any state of things whatever, to a certainty productive of falsehood in the evidence, is a presumption altogether unwarrantable.
The impropriety of it will appear in a clearer and stronger light, when we come to view, one by one, the several alleged causes of exclusion, for security against deception; the several circumstances, of which, falsity in the evidence has been regarded as the necessary, or at least preponderantly probable, result.
To begin with the article of interest. I say here, not sinister interest, but interest without addition: for such is the expression employed in the books of English jurisprudence.
On this occasion, as on every other, to understand what interest means, we must look to motives: to understand what motive means, we must look to pain and pleasure, to fear and hope; fear, the expectation of pain or of loss of pleasure—hope, the expectation of pleasure or of exemption from pain. The causes of physical motion and rest, are attraction, impulse, and so forth: the causes of psychological motion and rest, are motives. Action, or (in opposition to action) rest,—action, whether positive or negative,—action without motive, without interest, is an effect without a cause.
It is not out of every sort of pleasure, out of every sort of pain, that a motive, an interest, is (at least in a sense applicable to the present purpose) capable of arising. Some pleasures, some pains, are of too ethereal and perishable a nature to excite an interest, to operate in the character of a motive.
The pleasures and pains which present themselves as capable of acting in that character, have, in another work,* been reduced to a certain number of heads.
In the estimation of vulgar prejudice, there is a natural alliance between improbity and intelligence, between probity and imbecility. In the estimate of discernment, they are differently grouped: improbity and hebetude—probity and intelligence.
Ignoramus has, for the purpose of this topic, composed his system of psychology. What is it? A counterpart to the learned Plowden’s system of mineralogical chemistry: equal as touching its simplicity—equal as touching its truth. Two parent metals, sulphur and mercury: the mother, sulphur; the father, mercury. Are they in good health? they beget the noble metals: are they in bad health? they beget the base. Fortes creantur fortibus et bonis.
With minds of every class the mind of the lawyer has to deal. Of the structure of the human mind what does the lawyer know? Exactly what the grub knows of the bud it preys upon. By tradition, by a blind and rickety kind of experience, by something resembling instinct, he knows by what sophisms the minds of jurymen are poisoned; by what jargon their understandings are bewildered; how, by a name of reproach, the man who asks for the execution of the laws, and the formation of good ones, is painted as an enemy,—the judge who by quibbles paralyzes the laws which exist, and strains every nerve to prevent their improvement, is pointed out as an idol to be stuffed with adoration and with offerings.
In the view taken of the subject by the man of law,—to judge of trustworthiness, or at least, of fitness to be heard, interest or no interest is (flagrant and stigmatized improbity apart) the only question. Men at large are not under the action of anything that can with propriety be expressed by the name of interest; therefore they are to be admitted. Is a man exposed to the action of anything that can be designated by that invidious name? So sure as he is, so sure will his testimony be false. Enough: all scrutiny is unnecessary: shut the door in his face.
Sinister interest—the term and the distinction are alike unknown to them. Sinister interest? Everything that can be called interest is to their eyes sinister.
Sinister interest, a term so well known to moralists and politicians, is altogether unknown to lawyers, who have at least equal need of it.
What, then? Is it that there are certain sorts of interests that are always sinister interests, while there are other sorts, which, if language, like heraldry, were made by analogy instead of by accident, would be called dexter interests? No, truly. No sort of interest that is not capable of being a sinister interest—no sort of interest that is not capable of being a dexter interest. Acting in a direction to draw a man’s conduct aside from the path of probity, any sort of interest may be a sinister interest: acting in a direction to confine a man’s conduct within the path of probity, every sort of interest is a dexter interest. The modification of probity here in question is veracity. Any interest acting in a direction to draw his conduct aside from the line of veracity, is a sinister interest,—say, in this case, a mendacity-prompting or instigating interest: every interest acting in a direction to confine his discourse, his conduct, his deportment, within the path of truth, of verity, of veracity, is a dexter interest,—say, in this case, a veracity-securing interest.
Man in general not interested, devoid of interest? His testimony not exposed to the action of interest? Say rather (for so you must say if you would say true,) no man, no man’s testimony, that is not exposed to the action of interest.
Well: and that interest a sinister one? Not it, indeed. So far from it, there is no man whose testimony is not exposed to the action of, is not acted upon by, at least three regular and standing, commonly four, forces of this kind—all tending to confine his conduct within the path of probity, his discourse and deportment within the path of veracity and truth.
1. Motive belonging to the physical sanction:—Aversion to labour: love of ease: trouble of inventing and uttering a false statement, which, to answer its purpose, must be so elaborated and dished up as to pass for true.
2. Motive belonging to the political sanction:—Fear of legal punishment: viz. if it be a case in which (as in general) punishment stands annexed by the legislator or the judge to false and mendacious testimony.
3. Motive belonging to the moral, or say popular, sanction:—Fear of shame, in case of detection or unremoved suspicion.
4. Motive belonging to the religious sanction:—Fear of supernatural punishment, in this world or in the world to come.
Of these four motives, the three first have more or less influence on every human mind; the last, probably, on most minds.
On most minds, did I say? On all without exception, if the English lawyer is to be believed: for, by a contrivance of his own, he has shut the door against all witnesses on whose hearts motives of this class fail of exerting their due influence.*
In the above list we may see the regular forces which are upon duty on all occasions to guard the heart and the tongue against the seductions to mendacity. But, in addition to these, there may be, by accident, any number of others, acting as auxiliaries in their support. No sort of motive (even these tutelary ones not excepted) to which it may not happen to act in the direction of a seductive one—no motive, over and above these tutelary ones, to which it may not happen to act also in the direction of a tutelary one. For what motive is there to which it has not happened, does not continually happen, to be employed in stimulating men to actions of all sorts, good and bad, in the way of reward? in restraining them from actions of all sorts, in the way of punishment?†
Between two opposite propositions, both of them absurd in theory, because both of them notoriously false in fact, the choice is not an easy one. But if a choice were unavoidable, the absurdity would be less gross to say, No man who is exposed to the action of interest will speak false,—than to say. No man who is exposed to the action of interest will speak true. Of a man’s, of every man’s, being subjected to the action of divers mendacity-restraining motives, you may be always sure; of his being subjected to the action of any mendacity-promoting motives, you cannot be always sure.
But suppose you were sure. Does it follow, because there is a motive of some sort prompting a man to lie, that for that reason he will lie? That there is danger in such a case, is not to be disputed: but does the danger approach to certainty? This will not be contended. If it did, instead of shutting the door against some witnesses, you ought not to open it to any. An interest of a certain kind acts upon a man in a direction opposite to the path of duty: but will lie obey the impulse? That will depend upon the forces tending to confine him to that path—upon the prevalence of the one set of opposite forces or the other. All bodies on or about the earth tend to the centre of the earth; yet all bodies are not there. All mountains have a tendency to fall into a level with the plains; yet, notwithstanding, there are mountains. All waters seek a level; yet, notwithstanding, there are waves.
In a machine, motion or rest will depend upon the proportion between the sum of the impelling and the sum of the restraining forces: in the human mind the result will be the same. Everything depends upon proportions; and of any proportions in the case, the man of law takes no more thought than the machine does.
Upon the proportion between the impelling and the restraining forces it depends, whether the waggon moves or no, and at what rate it moves: upon the proportion between the mendacity-promoting and the mendacity-restraining forces it depends, whether any mendacity be produced or no, and in what degree and quantity. Any interest, interest of any sort and quantity, sufficient to produce mendacity? As rational would it be to say, any horse or dog, or flea, put to a waggon, is sufficient to move it: to move it, and set it a-running at the pace of a mail-coach.
In the human mind there is a force to which there is nothing exactly correspondent in the machine—the force of sensibility: of sensibility with reference to the action of the various sorts of pains and pleasures, and their respective sources, in the character of motives.
Take what everybody understands, money: for precision’s sake take at once £10, the £10 of the day, whatever be the ratio of it to the £10 of yesterday: to the present purpose, depreciation will not affect it. This £10, will its action be the same in the bosom of Crœsus as of Crœsus in the bosom of Diogenes, as in that of Catiline? No man will fancy any such thing for a moment: no man, unless, peradventure, it have happened to him to have been stultified by legal science.
In each individual instance, whether mendacity (temptation presenting itself) shall be produced or no, will depend upon four distinguishable quantities: quantities above indicated. On the one side—1. Sum of the mendacity-promoting motives; 2. The patient’s sensibility to ditto. On the other side, 3. Sum of the mendacity-restraining motives, regularly acting and occasional; 4. Patient’s sensibility to ditto. Upon these several quantities: consequently upon the ratio or proportion of the sum of the quantities on the one side to that of the quantities on the other. Of the proportion, the exclusionist knows not anything: he knows not any of the quantities; he will not suffer himself to know anything: he regards mendacity as certain; he excludes the evidence.
Of none of these several quantities can anything be known or conjectured, without examination and sifting of the evidence. Nothing can be known without experiment: and he will not suffer experiment to be made.
It is in psychology as in ship-building and navigation. Suppose the ship’s way to depend upon the joint action of six influencing circumstances—six jointly acting, but mutually conflicting, causes: and these, each of them, say (for supposition’s sake) of equal force. If, in the investigations and reasonings on this subject, so much as one of the six be omitted, error is the inevitable consequence: the forms of mathematical language, instead of a check to the error, will operate but as a cloak to it. The vessel will be in one part of the world, while the Lagranges and the Eulers are proving it to be in another.
In this respect, what course of ratiocination has been pursued by lawyers, debating on the ground of established systems? Of the whole catalogue of motives, each capable of acting upon the will with the most efficient—all consequently with a practically equal, force, they have taken observation of perhaps one, perhaps two; while on each side, or (what is worse) on one side only, the will of the patient has been acted upon by perhaps twice or thrice the number. What, in consequence, has been the justness of the conclusion? Much about what it would be in navigation, if calculations made for a submarine vessel, or an air-balloon, were to be applied to a ship of ordinary make and size: or as if, in calculating the course of an ordinary vessel, no account were taken of the depth of water drawn by her, or of the position of her sails.
In this state of the progress made by lawyers in the theory of psychology, no wonder if we should find the theory and practice on the subject of evidence in no better plight than navigation was among the most polished nations of Europe, when the scene of it was confined to the Mediterranean, and when, dreading to lose sight of land, the navigator creat along the shore.
Between these two otherwise resembling cases, there is, however, one very material and lamentable difference. In navigation, ignorance, deficient in adequate power, erred by over-caution and timidity: in jurisprudence, ignorance, supersaturated with power, is driven aground continually by hastiness and rashness.
It would be tedious, and surely by this time superfluous, to pursue absurdity on this ground through all its mazes.
No presumption so slender, which is not, under some established system, taken for conclusive, if fact, notorious or proveable fact, run counter, it makes no difference. Mendacity is presumed from affection—from bare wishes: wishes themselves are presumed from situations, from relations. Brother will be for brother, master for servant, servant for master, and so on. What? when you see them fighting with one another every day? Is it for his excessive fondness for Abel, that Cain would have been excluded by you? No matter: it makes no difference.
Among the causes of exclusion in Scotch jurisprudence, imported or not from the continent, is this: if a man applies to either party, tendering his testimony.*
Observe, first the absurdity of this exclusion, and then the mischievousness of it.
Absurdity. What? On the north side of the Tweed, does no such affection exist in any human bosom as the love of justice? In a legal bosom, it seems, no; any more than on the south side. To the man born blind, all colours are alike unknown: but was ever blind man found absurd enough to deny, or thoughtless enough to forget, the existence of colours?
Mischievousness. Mischief the first: A man saw you robbed, beaten, left for dead: him, you, for your part, did not see; you were too much engaged. To him, you, on your part, cannot apply to testify what he saw; for you know not that he saw anything; to yourself, he, on his part, must not. Did you proffer that testimony of yours to the plaintiff? asks the advocate on the other side. Yes, I did. Oh! then, away with you; tell it anywhere else you will, you must not tell it here: so sure as you opened your mouth, so sure you would be perjured.
Mischief the second: Directions to worthless witnesses: to all who, in the school of technical jurisprudence, have learnt to hate justice: to all who are in fact (if any such there be) as worthless as the man of law supposes every man to be. If you see any man barbarously injured, and, to earn a bribe, or save the trouble of testifying, you desire he should be without remedy, go and offer him your service. If you see a man purloining public money, making laws for honour, breaking them for profit, don’t stand upon rules of evidence established for the plain purpose of giving impunity to malefactors; don’t slink under a plea that will ruin you with every man who has any regard for justice; go to the prosecutor at once, and force upon him your evidence: the more obtrusive your address, the surer you may make yourself of destroying the competency, and, if that won’t do, the credibility, of your evidence.
To this rule, such is its absurdity, it can hardly have happened to be frequently acted upon: but, like every other absurd and mischievous rule of which the system is composed, it lies in readiness, well adapted to serve a cause too desperate to be served by less vile means—perfectly adapted to afford to long-robed iniquity the necessary pretence.
In this example, we may see a specimen of the sort of evidence on the ground of which the technical lawyer builds a pretence for the exclusion of other evidence. In partial affection, say rather in preferable regard, he sees evidence, and that conclusive evidence, of perjury; as if to wish well to your friend, and to perjure yourself for him, were inseparable. In the mere act of saying, I saw so and so, and am ready to testify what I saw, they see evidence of partial affection—Scotico-jargonicè, partial counsel: as if it were impossible without injustice to wish to declare to justice what he saw.
Compare Scotch and English judicial science. In Scotland, for informing the conscience of learned judges, no spontaneous witnesses receivable. In England, for informing consciences of the same learned texture, no witnesses receivable but willing ones.† Such is the metamorphosis undergone by learned Justice in her passage from one side to the other of the Tweed. Between willing and spontaneous there is certainly some difference: the expression has carefully preserved it. Let jurisprudence make the most of it: there is not an atom to be lost.
Observe, on this ground as on so many others, the consistency of the men of law, and especially English law. Delinquency, according to them, is not ever to be presumed. Yet, as often as, on the ground of danger of deception through falsehood, they exclude evidence, what is it they do but presume delinquency? What is it, as often as on this ground they exclude testimony that would otherwise be received by them in the character of evidence,—what is it they do but presume perjury? Actual perjury, no; because their providence has prevented it: actual perjury, no more than actual murder, when, the pistol or gun having been fired, a tutelary hand has just had time to beat down the guilty hand in the act of pulling the trigger: actual perjury not committed, but the state of the mind exactly as if it had.
Perjury presumed, not indeed for the punishing of the presumed perjurer, but for the inflicting punishment, or (if that be not the word) vexation, on an innocent and injured man: vexation to an unlimited extent.
Suppose the excluded testimony necessary to save the life of a man capitally prosecuted, as for murder: here, one man being presumed an intended perjurer, another man suffers death.‡
Peculiar impropriety of exclusion on the ground of pecuniary interest; and absurdities of English law under this head.
If, on the ground of interest generally considered—if, on the ground of any other species of interest in particular—the unreasonableness of exclusion is demonstrable,—it is in the instance of pecuniary interest that it is most palpable. In the case of any other species of interest—the interest not having any palpable physical cause, the quantity of which might serve as an index and measure of its force,—the strength of it where it is strong, the weakness of it where it is weak, is not so universally manifest and incontestable. Suppose, for example, it be contended that enmity, known enmity, is a reasonable ground of exclusion. Enmity, like any other passion, is variable ad infinitum in degree; capable of existing in any the lowest degree, as well as in the highest. But the force of enmity, as of almost every other passion except the love of money, can no otherwise be measured than by its effects: so that if in this or that instance no visible effects have followed from it, the only proof of which the existence and action of it is susceptible is wanting to the case. In the instance of pecuniary interest, the argument stands upon a very different footing. Without reckoning the variations in degree, resulting from the variations in the degree of opulence of which the pecuniary circumstances of the party are susceptible,—the degrees of which the force of pecuniary interest is susceptible are not only prodigiously numerous, but also, in the lowest degrees, susceptible of an existence as palpable and ponderable as in the highest. As a thousand pounds, applied in the shape of reward, will be recognised as acting on the mind in the character of a lot of pecuniary interest, with a force proportioned to its amount,—so in like manner will a shilling, a penny, or a farthing. The legislator, and the administrator, the great dealers in this species of ware, can as well cut out in pennyworths’ and farthings’ worths the portion of pecuniary interest which they may be minded to create, as in hundred pounds’ worths and thousand pounds’ worths; and how questionable soever, or even hopeless, the influence of this species of interest may be, when broken down into these minute and almost impalpable lots, yet the existence of it in this case is not less manifest and indisputable than in the other.
Thus it is that, in the instance of pecuniary interest, the impropriety of the exclusion is exposed to view by a circumstance which has no place in any other. Generally speaking, no other species of interest appears so much as to exist, but in cases in which it acts, not with considerable force only, but with effect. It is not seen to exist, but where it is seen to act; nor is seen to act, but where it is seen to triumph. Far otherwise is it with pecuniary interest. The portions in which it is seen to exist are in many instances so minute, that in those instances the notion of its prevalence is too palpably absurd to be embraced, or so much as pretended to be embraced, by anybody. Who, for instance, speaking of the people of England, would take upon himself to maintain, with a grave face, that the majority of them would be ready, upon all occasions, each of them to perjure himself for the value of a farthing? Propositions, however, far beyond this in extravagance, have been implicity assumed by many a decision that, on this ground, has issued from English benches. An interest, corresponding to some minute fraction of a farthing, has in many instances been assumed as a legitimate cause for the exclusion of a witness, on the sole ground of the pecuniary interest generated by that cause.
In vain would it be to say, that this is among the cases in which we cannot draw the line; and that, therefore, in order to shut out the evidence in the cases in which the sinister influence exerted on it by this species of interest would be operative, and productive of the apprehended ill effect, we must be content to shut it out in many instances in which, manifestly enough, it cannot be operative. The very impossibility of drawing a line, a proper line, anywhere, is an argument, and that of itself a conclusive one, against the exclusionary principle. A line of this sort (it must be confessed) would, in whatsoever place drawn, be an improper one. But, by the principle of exclusion, a line of this sort is not only drawn, but drawn at the very worst place possible. There is an impropriety in drawing the line, for example, at the sum of forty shillings; and in laying down any such proposition as that which is implicitly contained in the Court of Conscience Acts, that a man is not to be trusted to give his evidence in a case where he has a sum of money to that amount at stake upon the result of it.* There is an impropriety. Why? In the first place, because (setting aside all such inscrutable circumstances as those which consist of psychological idiosynerasies, affecting the sensibility of the individual in question to the respective action of the improbity-and-mendacity-restraining motives,) there are some incomes to which four hundred pounds are not more than forty shillings to others. In the next place, because, even supposing it clear, in the instance of any particular individual, antecedently to experience, that forty shillings would constitute a temptation sufficiently strong to engage him in the path of perjury,—supposing it possible, I say, to find sufficient reason for predicating this of a sum of forty shillings,—it would not be possible to find sufficient reason for refusing to predicate it of a sum of thirty-nine shillings. But, by the line of exclusion drawn where it is drawn, this effect is predicated, not only of a sum of forty shillings or of a sum of thirty-nine shillings, but of a sum less, and much less, than the thirty-ninth or fortieth part of the smallest piece of base metal that ever came out of a mint: and this by a sweeping and unbending rule, by which people of all degrees of opulence as well as indigence, the Crœsuses as well as the Iruses, the Diveses as well as the Lazaruses, are excluded in the lump.
The force with which a motive of a pecuniary kind acts upon the mind of a given individual, will be in the ratio of the sum in question to his pecuniary circumstances. In England, two individuals may be found, one of them belonging to the most numerous class, the income of one of whom is to that of the other as 500 to 1. All other circumstances set aside, the force with which a given sum acts upon the mind of one of these individuals, will be but one five hundredth part of the force with which it acts upon the mind of the other. Yet (supposing this rule to be observed) if, on account of his being acted upon by the prospect of gaining in this way a given sum, the testimony of the poorer of the two individuals in question is to be rejected, so must that of the richer. The same effect, and that a certain one, is to be ascribed for this purpose to two forces, of which the one is in truth but the five hundredth part of the other.
In Great Britain, an estate of the value of 20,000 guineas a-year, or thereabouts, has been known to be at stake upon the event of a single cause: value, at thirty years’ purchase, 600,000 guineas. A guinea contains a little more than 1000 farthings: this same sum, then, applied to persons whose incomes stand at different points in the scale, from the highest to the lowest, is capable of acting on them respectively with 1000 different degrees of force: 600,000 being the number of guineas, multiplying the 600,000 by the 1000, here then are 600,000,000 different degrees of force with which the mind of man is capable of being acted upon by this one motive called pecuniary interest, to which by this rule one and the same degree of force (and that in every case an irresistible one) is ascribed.
Thus different are the degrees of force with which this one, among so many causes of falsehood (checked by the action of so many counter causes—of so many causes of truth,) tends to the production of its effect: degrees, which, by the identity of the denomination given to them, viz. pecuniary interest, are represented as being the same. From the mere consideration of this diversity, it must be sufficiently evident, that, in a vast number of the instances in which this cause of falsehood has place, its influence must, practically speaking, be equal to 0—not capable of surmounting the mere vis inertia of the human mind, supposing this cause of action to stand alone, unopposed by any other: whereas the whole force of the standing causes of truth is what it has to encounter in every instance, without reckoning the force of such of the causes of truth, the action of which is but occasional. Yet this is the cause, and indeed stands at the head of the list of the causes, the force of which is, by the rule which assumes it for a ground of peremptory exclusion, regarded as being in every instance infinite and irresistible: certain, at least, of preponderating over the sum of all other forces—of all causes of truth—to which it can happen to stand opposed to it.
If there were any sort of witnesses imaginable, against whom it were prudence to shut the door, the sort of witnesses against which the law is so decided to shut the door, are precisely those to whom it may be thrown open with least danger. All witnesses being exposed to seductive influence, all witnesses being dangerous, those will be least dangerous against whom men are most upon their guard: such are those, on whose foreheads the force of the seduction is written down in figures. A cloud involves the workings of friendship, a cloud involves the workings of enmity, a cloud involves the workings of love: the existence of the passion, the force of its action, everything is involved in darkness. No juryman, no stranger, scarcely even the closest intimate, can form any estimate of the degree of the enmity, the friendship, or the love: experience may have shown him no such enmity, no such friendship, no such love. But every man knows what ten shillings is, what twenty shillings is, and what is the difference: every man knows the value—every man feels the power, of money. Every man knows that allowances are to be made for it. Few men are disposed to make less allowance than truth requires, for the force of its action on other people. Few men are disposed to set the incorruptibility of other men at too high a rate, or the force of corruption at too low a one: few men there are in whom suspicious thus grounded are in any danger of not being carried up to the full limits of the truth: few in whom they are not much more apt to be carried beyond the truth than to fall short of it.
Of the force of money, on whatever occasion acting, the judge sitting on his bench is fully aware and acutely sensible. Agreed: but is there any other human being to whom that force is a secret? Sits there that old woman anywhere (not to confine ourselves to benches) who, on hearing a report made to her by another old woman, forgets to ask herself in what way and degree (if in any) the reporting old woman may have to gain or lose by the credit given or not given to her report?
What? can the man of law be sincere in thinking that no sort of men understand either the value of money, or the influence of it upon testimony, but himself?
In this case, therefore, the advantage expected from exclusion of evidence, in the character of a security against deception and consequent misdecision, is more plainly ideal than in any other: the reason in favour of the exclusion more palpably frivolous. And yet it is to this modification of interest, that exclusion on the score of interest is in a manner confined by English jurisprudence.
In the eyes of the English lawyer, one thing, and one thing only, has a value: that thing is money.
On the will of man, if you believe the English lawyer, one thing, and one thing only, has influence: that thing is money. Such is his system of psychological dynamics.
If you will believe the man of law, there is no such thing as the fear of God; no such thing as regard for reputation; no such thing as fear of legal punishment; no such thing as ambition; no such thing as the love of power; no such thing as filial, no such thing as parental, affection; no such thing as party attachment; no such thing as party enmity, no such thing as public spirit, patriotism, or general benevolence; no such thing as compassion; no such thing as gratitude; no such thing as revenge. Or (what comes to the same thing,)—weighed against the interest produced by the value of a farthing, the utmost mass of interest producible from the action of all those affections put together, vanishes in the scale.
Add self-preservation, if you please—self-preservation from whatever be the worst of evils, death not excepted,—the farthing will still be heaviest. “A pin a day is a groat a year.” Instead of the farthing, put in a pin, the result will be still the same.*
Romance! romance! True; but it is the romance of real life. The picture here drawn of the human mind is romantic enough, no doubt; but as to the account here given of that picture, nothing was ever more strictly true. Such are the decisions of the sage of law; such his every day’s practice; such his opinions, such his thoughts: unless, on learned benches, decision and practice run on without thought.
For a farthing—for the chance of gaining the incommensurable fraction of a farthing, no man upon earth, no Englishman at least, that would not perjure himself. This in Westminster Hall is science: this in Westminster Hall is law. According to the prints of the day, £180,000 was the value of the property left by the late Duke of Bridgewater. For a fraction of a farthing, Aristides, with the duke’s property in his pocket, would have perjured himself.
One decision I meet with, that would be amusing enough, if to a lover of mankind there could be anything amusing in injustice. A man is turned out of court for a liar, not for any interest that he has, but for one which he supposed himself to have, the case being otherwise. Instead of turning the man out of court, might not the judge have contented himself with setting him right? Would not the judge’s opinion have done as well as a release?† The pleasant part of the story is, that the fact on which the exclusion is grounded could not have been true. For, before the witness could be turned out of court for supposing himself to have an interest, he must have been informed of his having none: consequently, at the time when he was turned out, he must have ceased to suppose that be had any.
Another offence for which I find a man pronounced a liar, seems to make no bad match with the foregoing: it was for being a man of honour. “Oh ho! you are a man of honour, are you? Out with you, then—you have no business here.” Being asked whether he did not look upon himself as bound in honour to pay costs for the party who called him, supposing him to lose the cause, and whether such was not his intention,—his answer was in the affirmative, and he was rejected. It was taken for granted that he would be a liar. Why? Because he had shown he would not be one. If instead of saying yes, he had said no, who could have refused to believe him? and what would have become of the pretence?
By the supposition, the witness is a man of super-ordinary probity: moral obligation, naked moral obligation, has on him the force of law. What is the conclusion of the exclusionist? That this man of uncommonly nice honour will be sure to perjure himself, to save himself from incurring a loss which he cannot be compelled to take upon himself.*
To observe, in an instructive point of view, the cases where the exclusionist runs a tilt, as here, against a phantom of pecuniary interest—contrast them with the cases to be next mentioned, in which, notwithstanding its being pregnant with that same interest in its most palpable shape, he gives his permit to the evidence.
Exceptions to the exclusionary rule in English law—Reasons of the exceptions, subversive of the general rule.
What has happened in this instance, and what, in this as well as so many other instances, is the best thing that could happen to the laws of our jurisprudential Solons,—they are contradicted, contradicted by themselves, and at every turn. Exceptions, self-contradictions, spring up everywhere under their feet: exceptions, and, as far as they extend, all reasonable. Reasonable, and why? Because, the rule itself being fundamentally absurd, everything must be reasonable which goes to narrow its extent.
In considering the exceptions as reasonable, understand the practice, viz. the act of admission, and no more: for as to the reasons on which it has been built, they may be reasonable, or absurd in any degree; the practice is what it is.
Before I enter upon the consideration of the particular exceptive rules, each characterized and supported by its appropriate reason, it becomes necessary to explain what sort of a thing it is, which, under the name of a reason, one meets with in the books of English common law.
Common-law reasons may be distinguished, in the first place, into technical reasons and vulgar reasons. By technical reasons are meant reasons that have nothing to do with utility. Technical, as applied to reasons, is an appellative invented by English lawyers, to denote such modes of speaking as would not pass for reasons upon anybody but themselves: reasons peculiar to the art, the science, the profession. By a reason, speaking with reference to a law or rule of law, an unlearned man would be apt to understand, a consideration the tendency of which is to prove the law or rule of law to be conformable to the principle of utility: i. e. productive of more good than evil. These vulgar or popular reasons a learned man will sometimes condescend to take up when they happen to fall in his way; but the favourite, the privileged, reasons, are of course the professional, the scientific, the transcendental—in a word, the technical, reasons: as above described.
Leaving the scientific reasons to scientific men, as not being fit to be spoken of under the name of reasons by vulgar lips, I confine the application of the word reasons when employed without any such additament to such reasons of the vulgar cast, as, on the occasion in question, have been honoured by the adoption given to them by scientific pens.
A great book, according to the Greek proverb, is a great evil. A law, besides what belongs to it as a book, is at any rate an evil, great or little. To form a tolerably correct judgment concerning any law, in respect of the question whether the good or the evil tendencies of it predominate—in a word, to form his judgment on the question on which side the balance is,—every legislation and writer on legislation who understands his business, proceeds in his accounts as a perchant does in his: has a debtor side as well as a creditor, and neglects not any more to make his entries on one side than on the other.
In the books of English lawyers, the ways of speaking which one meets with under the name of reasons, are confined for the most part to one side. Such is the case in particular with the reasons corresponding to the several particular rules by which so many groups of exceptions have been attached to the general rule of exclusion on the score of pecuniary interest. To the rule itself, no reason at all appears ever to have been annexed: the utility of it has been established by assertion and assumption, without so much as an attempt to find a reason for it. To the exception has been attached a reason, such as it is; a reason, of course, in favour of the exceptive rule—a reason on that one side. The reason having been thus exhibited, its conclusiveness has been presumed as a matter of course. No marks are discoverable, on this ground at least, of any such suspicion, as that, in the account-book kept by a legislator (supposing him to keep any,) there should be two sides.
On the present occasion, in presenting a sample of learned reason on this ground, I shall confine myself to the case of an extraneous witness. The case in which the pecuniary interest at stake is that which a man possesses in the character of a party in the cause, plaintiff or defendant, is reserved for another place;* for, in this latter case, jurisprudence, and more particularly English jurisprudence, will be found variegated by inconsistencies, for which, in the situation of an extraneous witness, there is no place.
In point of propriety, the exclusion stands in both cases on nearly the same ground. If there be any difference it is this,—viz. that, sum for sum, the exclusion is more plainly useless in the case of the party than in the case of the extraneous witness. Why? Because the interest by which the will is acted upon in a sinister direction, is, in the case of a party, more conspicuously painted upon the face of the situation in which he stands. Deception is therefore so much the less probable: the mind of the judge, be he who he may, is so much the less in danger of not being sufficiently forewarned against it.
I. Exception the mist:—Interest against interest.
Unless the rule, out of which the exception is taken, he supposed to be bad in toto, the reason of the exception (if it has any) supposes all other circumstances equal, and the quantity of money creative of the interest the same on both sides. Against the truth of this supposition, there is exactly infinity to one. The number of possible ratios is infinite: of these the ratio of equality is one. Of the proportion between interest and interest, the exception takes no cognizance: no mention of it is made.†
II. Exception the second:—The interest contingent.‡
The assumptions here are two:—1. That in human affairs, at least in human affairs of this stamp, a line is already drawn between certainty and contingency; 2. That no contingent interest can be equal to any certain one. Whence came this postulate? From Euclid? from Price?—from the Stock Exchange?—from Lloyd’s Coffeehouse?
The postulate once admitted, demonstrations follow in any quantity, and to any effect.
1. That,—in the case above alluded to, of the duke with his £180,000 a-year, his title to the whole of it being contested, the duke at the point of death, his only son called on his part as a witness, the estate unsettled, son and father upon the terms that all fathers and all sons ought to be,—the son would be a good witness. Why? Because his interest is not vested; is not certain; is no better than contingent. Secus, if the estate be in settlement, sixpence a-year settled on the son, the father in full vigour, the son in a galloping consumption, father and son like Henry II. and his sons: for here le interest del fitz est certain, et nemy contingent.*
Can it be necessary to observe, that in human affairs, in matters of gain and loss especially—more particularly in matters of gain and loss that depend upon law,—the difference between contingency and certainty is but in name?—that what is called a certainty (for even death itself is contingent as to time) is but a contingency, in which the ratio expressive of the degree of probability is more or less greater than in the other case? Can it be necessary to observe, that there is not that contingent sum for which the exact equivalent, in a sum called by everybody a certain one, is not to be found? The lawyer, by whose decrees the operations of the money market are governed and perplexed—are they all a secret to him? What charity-boy, what beggar-boy, was ever at a loss to know that the toss-up of a halfpenny was worth a farthing? Alas! When will the wisdom of the sages of the law rise to a level with that of babes and sucklings?
Observe what the £180,000 a-year loses in value, by being contingent instead of certain. The proportional number of fathers by whom their only children are disinherited is—what shall we say? say one out of a thousand: say even one out of a hundred and eighty. The value of the £180,000 is reduced, by this circumstance, to what?—to £179,000.
Great debates, in the days of the schoolmen, concerning the comparative value, in point of interest, of a possible Angelship and a present Mouseship. Mr. Justice would be clearly for the mouse.
2. Keeper and concubine: keeper rich as a Jew, fond as the Jew in the Harlot’s Progress: concubine at high allowance: keeper’s whole property at stake upon the cause. Concubine a good witness.
3. Defendant a feme sole, maid or widow; her whole property at stake, as before, she the heiress of our duke; witness courting her in marriage, and the day fixed:—a better witness need not be desired. I know how worthless a thing a woman is, in the eye of a true English lawyer: how incapable of creating an interest; how incapable of exercising any influence, right or wrong, on man’s affections: it was my care, therefore, to clothe her, to invest her, with a fee-simple.
4. The duke’s daughter seduced: suppose, as Clarissa was by Lovelace: she wanting a day of being of age. Pier porte action versus seducer: case, trespass per quod servitium amisit: stockings remaining unmended, which fille should have mended while in childbed: damages laid at £10,000. Fille good witness. Why? Because no interest. What matters it to her whether she be thought to have been defiled without consent, or to have delivered herself as Potiphar’s wife would have done to Joseph?
Secus, the day past, and fille of age. Action per pier ne gist,†quia nul droit: because no right per faire fille mend stockings: issint, no damages al pier. Action per fille ne gist, quia nul seduction, fille ne esteant dans age: et uncore fille bad evidence: quia nomo debet esse testis en son cause demesne.
III. Exception the third—But here a difficulty occurs. A reason, to be susceptible of correct scrutiny—a reason, like any other proposition, should have for its vehicle some determinate and complete grammatical sentence. But among the words, or assemblages of words, which on this ground assume the guise and port of reasons, no such propositions, no such sentences, are to be found. What is found, consists of here and there a catchword or two, out of which, if others were added to them, reasons of some sort or other might peradventure be composed. Take, for example, the words necessity, course of trade. The matter of Gibbon’s book has been not unaptly stated to be not history, but allusions to history; the sort of matter here in question may, in like manner, be said to consist not of reasons, but of allusions to reasons.
1. Jeweller delivers jewels to his journeyman to deliver them over to a customer: journeyman steals them. Thief good witness to prove delivery. Why? Because, in speaking of the transaction, occasion may be taken to use the words course of trade. Trade is certainly a good thing: but quære, what can it be the better for a sort of evidence which in each instance will most probably, if not certainly, give the goods away from the right owner to a thief?
Secus, it the jeweller himself had delivered them:* for, this is not in the course of trade. No shopkeeper was ever known to serve a customer with his own hands.
Observe the difference: in case of mendacity, the jeweller has no interest to serve but that of gaining the value of the jewels; the journeyman has that same value to gain, and his life to save. But in the English lawyer’s price-book, life is worth nothing; reputation worth as little, except when money is to be got by parting with it.
2. Action for the price of goods sold by factorage: factor paid at 5 per cent. Question about the price agreed on, whether £10,000 or £11,000: if £11,000, factor gets £50, which, if £10,000, he does not get. Factor a good witness. Why? Because here too you may say course of trade. Had the factor delivered £50 worth of his own goods with his own hands, there being nobody else to prove it, he would have lost the money; for here you cannot say course of trade.
If, in the one case, the profit from perjury, supposing perjury, is no greater than in the other,—how much greater the mischief! how much greater the loss! To gain his £50, the factor must, in the first case, have inflicted on the party injured a loss of twenty times as much.
In a case of this sort (and there are plenty of them) some, instead of course of trade, say necessity. The one word is as good as the other: any other as good as either of them. Approve the exception, you must first have condemned the rule.
With reference to what event can it be necessary to admit a species of evidence which is more likely to be productive of injustice than justice? for such (as we have seen) is the fundamental proposition, which, in point of reason, forms the necessary and only basis of the rule. With reference to what desirable end? To the avoidance of injustice? To say so, would be a contradiction in terms.
In these three words, course of trade, may be seen a complete confutation of the rule; a complete disavowal of the principle of it; a complete certificate of the non-existence of that danger which constitutes the sole reason of the rule.
Course of trade!—and of what trade? Of every branch of trade, from the highest to the lowest: course of dealing—of dealings of all sorts—of every day’s dealings between man and man. The persons exposed to the action of this sinister interest—of this interest, which, sinister as it is, pecuniary as it is, as well as so much beyond pecuniary, forms no bar to their testimony,—are persons of the lowest, as well as most numerous order, servants and day-labourers: while the interest, the pecuniary interest, of itself, rises to any magnitude. And with this example not only before your eyes but in your mouths, you take upon you to deprive justice of the light of evidence, on pretence of interest!
IV. Exception the fourth:—Interest created by a wager: a wager laid by the witness on the event of the cause.
Reason for the exception: A man ought not to have it in his power to deprive another of the benefit of his testimony.†
What! not to deprive him of a sort of testimony which, in your view of the matter, is sure to be stained by perjury, and to produce misdecision and injustice? One thing on one occasion, another thing on another occasion. One individual must not have it in his power to deprive another of the benefit of his testimony. How often do they not, these lawyers, give that same power to individuals in other instances!—how often do they not execute it themselves!
Blessed law! A law authorizing parties to hire witnesses, and witnesses to be hired—a law establishing a market overt for hired witnesses—effect given to the practice, and nothing said against it!
Wagering thus employed is subornation; nor yet simple subornation, but subornation double distilled. Subornation simply distilled is £100 promised by plaintiff to witness, to be received if plaintiff gains the cause. A wager of £100 between plaintiff and witness, plaintiff laying that he loses the cause, witness that he gains it, acts with double the force.‡ In the case of the simple loser, though plaintiff should lose the cause, witness will indeed gain nothing, but neither will he lose. In the case of the wager, plaintiff losing the cause, witness will not only gain nothing, but he will forfeit as much as in the other case he would have gained.
V. Exception the fifth:—
After observing the cases in which the excluding rules have been broken through, for reasons proper in themselves, but yet no otherwise proper than on the supposition of the impropriety of the rule,—it may be curious enough to observe a case in which the rule is broken through on the ground of a circumstance out of which nothing like a reason can be made, or is so much as attempted to be made.
A time there was, when the witness was not exposed to the action of the sinister interest, to the action of which he is exposed, now that he is called upon to speak. Well, and what then? What follows? That at that time, had he been examined, the cause which exists for suspecting him would not at that time have existed: but, for not existing then, does it exist the less at present?
Question: A man who at the time of his examination has an interest in the cause,—is he an admissible witness, he having had no interest at the time of the supposed fact? Decision in the affirmative.* Because he was under no temptation when he had not to speak, therefore, when he is to speak, knowing him to be under temptation, you are to suppose him not to be so. Just as if a pilot were to say in a storm, the vessel among the breakers, Sit still; there is no danger. Why so? Because yesterday it was a dead calm.
VI. Exception the sixth: Voire dire.† Truth expected, in spite of interest.
One point of practice more may put a finish to this exclusionary rule, and the deviations from it. When a witness produced against you has an interest in the business (meaning always a pecuniary interest,) and you cannot get other evidence of it, or do not care to be at the expense, you address yourself to the witness himself, and ask him whether he has or no: if he speaks truth, he is turned out; if he perjures himself, he is heard. This operation is called examining a witness upon the voire dire. Voire dire is, in law French, to tell the truth: and the examination is called voire dire, because upon this occasion the witness is called upon, and expected, to tell the truth; no such requisition being made, nor result expected, in other cases.
The practice, and the name found for it are not ill matched. Speak the truth indeed? So, on this occasion he is to speak truth, is he! What is it, then, that he is to speak on other occasions?
On the exclusionary principle, no supposition was ever more completely felo de se. If the man has no interest, they make sure in the first place that he will not speak the truth; and, though he have an interest, still they expect him to speak the truth.
On the principle of universal admission, nothing would be more consistent, nothing more rational, than the practice. If the situation the witness stands in exposes him to the action of a mendacity-promoting interest, he will speak under a bias: the judge should know of it, that he may put himself on his guard. Mendacious it may happen to him to be respecting this collateral fact, as well as the principal one; but mendacious he cannot be in both facts, without exposing himself to double danger. Bad as a passport to (jargonicè say) competency, the examination is good as affording a clue to credibility.
In a modern book which lies before me, the practice of examination on a voire dire is spoken of as being at present out of use. How the practice itself can be out of use, I do not very well conceive. I can conceive the phrase to be out of use—and if it be, so much the better. A man might look a good while, even in the vocabulary of English law before he would find so silly a one. Come, my honest friend, I am going to put some questions to you. To the first of them, the court expects you to speak truth: to the others, as you please.‡
We have now seen that, if it were in the nature of pecuniarily-interested evidence to give birth to any such systematical plan of legal depredation as upon a partial and hasty view might seem the inevitable consequence, the cases in which (notwithstanding the influence of the principle of exclusion) this seemingly dangerous species of evidence is actually admitted, are of sufficient extent to have long ago let in the mischief in full force. At the same time, a matter of fact universally notorious is, that no symptoms of the prevalence of any such mischief have ever manifested themselves.
So far is the public from ever having been laid under contribution by a system of depredation grounded on mendacity, as in the case supposed,—so far has been the practice of laying individuals under contribution in this way, by false evidence, from being realized to such a degree as to have become a prevalent practice,—that even the rewards offered to informers—the standing invitations by which men are called upon, at all times, to lay offenders under contribution, without prejudice to truth, and to the great benefit of justice,—are not excepted to an extent sufficient to give to the laws thus endeavoured to be supported, the degree of efficacy which the interest of the public in that behalf renders so desirable.
Men are not so forward as could be wished to dig for emolument in the mine of litigation, even by the invitation, and under the full protection of the law. Can it be looked upon with reason as a mischief seriously to be apprehended, that men should be more forward than at present to embark in the same intricate adventure, with the reproach of mendacity and injustice pressing all the while upon their consciences, and with the fear of punishment and infamy before their eyes?
IMPROPRIETY OF EXCLUSION ON THE GROUND OF IMPROBITY.
Convicted perjury an improper ground of exclusion.
Third general cause of exclusion on the score of deception,—improbity.
Interest is not in any shape a proper ground of exclusion. Improbity, in whatever shape or degree, is still farther from being a proper ground of exclusion.
Entire assurance of mendacity neither ought to be, nor is, received as a ground for the exclusion of theassuredly mendacious testimony. So far from it, that, on the contrary, that sort of evidence which is most assuredly mendacious is (when applied in the manner that all mankind are in the habit of applying it) regarded even by lawyers as the “best evidence.”
Evidence in which both causes of suspicion are united, and each in the highest degree, is received in every day’s practice, to the great advantage of, and without any prejudice, or so much as suspicion of prejudice, to justice: and this where, in case of deception, the mischief would be at its highest pitch.
These several propositions either have been, or, it is hoped, will be, established by sufficient proofs.
Let us begin with perjury. In perjury may be seen by far the strongest case: the case in which the pretence for exclusion on the score of security against deception wears the fairest outside.
Perjury is a particular modification of improbity; but a modification particularly appropriate to the present purpose. Improbity at large, according as it is more or less frequently displayed, indicates an habitual, or at least frequent, prevalence of the force of the improbity-promoting over that of the tutelary or improbity-restraining motives: a force impelling the individual into this or that line of immorality and misconduct, according to the nature of the seducing motive or motives acting in each individual case. Perjury, in addition to the prevalence of the ordinary motives on some individual occasion or occasions, indicates the particular species of delinquency into which the individual has thus been impelled; viz. mendacity: the very species by which the most plausible of all pretences for exclusion on the ground of improbity is afforded. In any other case, the argument for the exclusion is no more than this: He has violated the obligations of morality in some sorts of ways; therefore it is more or less probable that he will, upon occasion, violate them in this sort of way. In the case of mendacity it runs thus: He has violated the obligations of morality not only in other sorts of ways, but in this very sort of way, on former occasions; therefore it is more or less probable that so he will on the occasion now in hand.*
For suspicion, a most perfectly proper ground: for rejection, none whatever. Reasons: those already mentioned; to which may be added those which follow.
1. In this line of delinquency, beyond most, if not all others, the scale is lengthy, the degrees are numerous: the highest degree upon a level with murder; the lowest, that sort of conduct (shall it be called misconduct?) which is openly and habitually practised by English jurymen;—countenanced, approved, recommended by English judges.
To all these different levels the eye of judicial suspicion has the power of adjusting itself. Exclusion knows no gradations: blind and brainless, it has but one alternative;—shut or open, like a valve; up or down, like a steam-engine.
Instead of conniving at the exclusionary system, long ago would the legislator everywhere, if wisdom had been as easily displayed as power exercised, have exhibited a scale of this sort, for judicial suspicion to guide itself by. An attempt of this sort will be found in an ensuing book.
2. When the door of the witness-box is shut against a proposed witness on this score, it is generally on the ground of some single transgression of this sort. But a single transgression of this sort,—what does it prove? The violated ceremony apart (a concomitant purely accidental, having no connexion other than accidental with the nature of the mendacity, nor with its pernicious consequences,) the conviction proves no more than this,—viz. that on one assignable occasion the convict has been known to fall into that sort of transgression, which every human adult must also have fallen into, more times than one, on occasions assignable or unassignable.
“I said,” says the Psalmist—“I said in my wrath, all men are liars.” It was in his wrath that the observation came from him; but he need not have wished to retract it in his coolest moments. From a single lie told in the course of ever so long a life, a man may, without any grammatical impropriety, be denominated a liar. But, admitting that in this sense the being a liar is what, without exception, might be predicated of every human being that ever arrived at man’s estate, the truth of the proposition would not be incompatible with a probability on the side of veracity, to the amount, on each given occasion, of many millions to one. And, upon the whole, he who considers how few in comparison are the occasions in which any advantage (howsoever impure, and overbalanced by ultimate disadvantage) is to be gained by falsehood, will, I imagine, join with me in the opinion, that, from the mouth of the most egregious liar that ever existed, truth must have issued at least a hundred times, for once that falsehood, wilful falsehood, has taken its place.
Again, no man is the same as himself at all times: it has been said of wisdom—it may be said, and with equal truth, of probity; it may be said, and not altogether without truth, of veracity, that most important, because all-extensive, branch of probity. The mind, of which the force has sunk under the temptation at one time, may stand against it at another: the same mind has its stronger moments and its weaker moments; without taking into the account that sort of revolution so much oftener talked of than exemplified, a thorough change. On the part of the temptation, likewise, the strength of it is liable to variation (as hath been already noted,) upon a scale distinguishable to an infinity of degrees.
From a man’s having borne false witness in some one instance (or even, as we shall see presently, without any such warrant, and merely from his having done or thought, or having been supposed to have done or thought, something wrong, in some other way that has nothing to do with falsehood,) it is inferred, and that with the most peremptory assurance, that he will never bear true witness in the whole course of his life! An induction, and such an induction, grounded on a single instance!
To pronounce a man guilty of any other offence without the opportunity of a hearing, is allowed to be the summit of injustice. To pronounce a man in the same manner guilty of an intention to commit perjury, is given, on this occasion, as a most refined invention for the furtherance of justice!
He was heard (it may be said:) he was heard, before he was pronounced guilty of the fact on which the incapacitation was grounded.—He was heard; yes: but upon what occasion? On the occasion on which he is deemed incredible? No: but on the occasion of a transaction altogether different: which may have happened yesterday, it is true; but between which and the occasion in question, an interval of half a century may, for any provision the rule makes to the contrary, have clapsed.
The exclusionist, at any rate, is estopped from representing conviction of perjury as a mark of distinction between the unfortunate liar in question, and other men. According to him—perjured or unperjured before—every man, for the most trifling profit, is ready to commit perjury.
From all this, is any such inference to be drawn as that perjury is a light matter? that it is no stain upon a man’s character? that it affords no presumption against the truth of his testimony in succeeding instances? Far be it from me to have harboured, for a moment, any such conceit. What I am contending against (let it never be out of sight) is absolute rejection: rejection in all cases:—not suspicion and distrust. The very repugnance, with which it is but natural the reader should have received the proposition of opening the door of justice to testimony of this tainted kind, is a sort of proof and earnest of the safety of the measure. The same precipirate emotion, under the influence of which the man of experience, the man of law, has so generally shut the door against testimony thus stigmatized, may be expected to act upon the whole with equal force, and with quite as much as its due force, even upon men of his own elevated level: much more upon the unthinking multitude below. So broad, so prominent is the stigma—so conspicuous and impressive the warning which it gives,—the danger is, not that the man thus distinguished should gain too much credence, but that he should not gain enough. Fœnum habet in cornu. Suppose an inexorable door shut against him: or, although open, suppose an inexorably deaf ear turned to him; and observe the consequence:—that crimes, all imaginable crimes, may be committed with impunity, with sure impunity, on his person and in his presence.
When the perjurer is a principal in the cause—when the person on whose part false testimony is apprehended (apprehended on the ground of false testimony given in a former instance,) and the person whose purpose would be served by the false testimony (whose interest, it is apprehended, may be the efficient cause of such false testimony,) are one and the same; in this case it is only on the part of one person that the improbity is presumed: and in his instance the presumption is but too well justified by former experience. But suppose the perjurer not himself a party, but only called in by a party, in the character of a witness: how stands the presumption then? Without subornation on the one part, perjury on the other part is, in this case. I do not say an impossible crime but at any rate not a natural one. Spontaneous perjury, to serve a person who knows nothing of it, and who, therefore, does not so much as conceive himself to be obliged by it, is certainly a possible case, but it is not a natural one. But, if perjury on the part of the witness supposes on the part of the party a sort of subornation, more or less explicit,—how stands the danger, how stands the supposition, when, to produce the apprehended mischief, criminality, and in this high degree, on the part of two different persons, must have taken place? On the part of one of them, the presumption indeed has a ground to stand upon: but on the part of the other, it has no ground. Will it be said, that the invoking, in this way, the aid of a person thus exposed to suspicion, affords a suspicion but too natural of a connexion in guilt? The suspicion might have some force, if on all occasions, or on most occasions, a man had his choice of witnesses. But in general the case affords no such choice. Chance—the same chance which gives birth to the offence, or other cause of dispute (to the offence, if real, or to the event which disproves the reality of it, if the accusation be groundless,)—this same chance brings to the spot the witnesses, by whose testimony, if obtainable, the cause is to be decided. To have his witnesses to drag out of the house and the very bosom of the adversary, is no uncommon case.
Cases, however, there are, in which a man has usually his choice of witnesses—actual obserring witnesses to the transaction—eventual deposing witnesses in case of litigation. I mean the case of attesting witnesses to conveyances and other contracts. Apply the rule of exclusion for perjury to this case. Because my witness has since perjured himself, am I to be deprived of my estate?*
In considering whether improbity, and in particular whether this strongest case of it, ought, in point of policy, to be considered as a ground for the exclusion of testimony,—the consequences in point of utility to the public taken in all its parts, have, on this occasion as on every other, been taken by me for the standard of right and wrong. But the consideration of these consequences,—has it in general been the efficient cause of the decisions given on this head, in the established systems of jurisprudence? To a certain degree, yes; exclusively, certainly not. In the legislation and jurisprudence of various nations, and of England among others, the offender, not the community injured by the offence, has been the object in view—antipathy, not benevolence, the prevailing motive. Infamy, and (as a visible sign of infamy) exclusion from the sanctuary of justice, has been a lot of punishment superadded to what other lots were found at hand; a sort of makeweight punishment to fill up the measure. It is one of the instances, which, in but too great number, may be found in the English as well as other established systems, of the sort of punishment that has been called misseated punishment: punishment in alienam personam: a sort of punishment which, in this particular application of it, may be styled chance-medley punishment. The punishment does not fall upon the witness who is disqualified, but upon all persons who may have need of his evidence. A certain person has offended, and, to add a sting to his punishment, an unoffending crowd is collected below, and a pailful of punishment is thrown down upon their heads out of a window. An innocent stranger is laid hold of, and a sword run through his hody, that with the point of it a useless scratch may be given to the cartiff who has provoked all this vengeance.
Inconsistencies of English law under this head.
Under English jurisprudence, the testimony of a proposed witness, if previously convicted of perjury, is altogether inadmissible.* So says the general rule. Not that exceptions are altogether wanting.
1. Exception the first:—A piece of parchment called a record having been rendered necessary,—if anybody has contrived to keep it out of the way for a few minutes, the perjurer’s evidence is good evidence.† What the record (such part of it as is not itself mendacious) can exhibit of the case, is as nothing in comparison with what the judge’s notes might show, or the testimony of another person present at the trial on which the perjury was committed. But production of the lying parchment produces fees; production of the other evidence would not yield fees.
The oracular and sacred character attributed in the books to everything that bears the name of a record, is grounded on the supposition that the instrument, if not the composition of the judge, has at any rate been authenticated by his perusal. This supposition, unless by the merest accident, is never true. While all this honour is paid to the spurious document, the genuine one, which actually is the composition of the judge himself who tried the cause, passes unregarded.
Admitting the judge’s notes as the best of all evidence, when it happens to be attainable, is one species of evidence there is, which cannot but exist: a species of evidence scarcely inferior to the judge’s notes, and greatly superior (rationally speaking) to the second-hand as well as uncircumstantial evidence furnished by the copy of the record: and which is sure to be not only attainable, but actually present, and that without expense. This is no other than the evidence of the perjured witness himself, whose conviction, on the account in question, is supposed to have taken place. This, however, is too sure, and simple, and cheap a method of coming at the truth, to be allowed of.* An observation that appears to have been made on this subject is, that when a man has been convicted of a crime, it would be an unpleasant thing to him to speak of it; and thence it is that a man, whose testimony, if admitted, will be sure to be delusive (for that is the supposition,) is to be admitted to give this delusive testimony, rather than that any questions should be put to him concerning a fact on which perjury without detection would be impossible. But, if its being unpleasant to a man is a reason for not asking him a question, à fortiori it ought to be a reason for not punishing him: for how unpleasant soever it may be to a man to say, I have been whipped, pilloried, or transported, the operation of whipping, pillorying, or transporting, should, one would think, be still more so.
In no possible case can the unpleasant circumstance in question, the punishment (if it is to be called one,) be surer of not falling upon one who is innocent, than in the present; for if he to whom the question is thus put, whether he has been convicted of such or such an offence, never was convicted of it,—how it should ever happen to him to forswear himself, and answer in the affirmative, unless he takes a pleasure in forswearing himself to his own prejudice, is scarcely to be conceived. How well disposed soever a man may be to be unjust to others, there seems to be no great danger of his being disposed to do injustice to himself.
This preference of the interests of the guilty to those of the innocent, how absurd soever in all cases, will at least have the effect it aims at, in the case where, if a witness is not liable to be exposed by his own confession, he is not liable to be exposed at all; in those cases (some such there are) where no other evidence of specific criminality is permitted to be adduced. But where the difference in point of unpleasantness is no more than what there is between the confessing his own guilt, and the having it proved to his face by evidence which is deemed still more convincing, such as the production of the record of his conviction,—what possible use there is in this tenderness, even to the criminal to whom it is shown, seems not very easy to point out.
2. Exception the second—Where the stain upon the testimony has been done away by any of the approved restoratives: of which in the Chapter of Restoratives.†
3. Exception the third:—Where the testimony, being self-regarding, viz. that of a defendant, is delivered in the shape of affidavit evidence, and “in relation to the irregularity of a judgment in which such person is a party.” (This, then, must have been in a civil suit. What if in a criminal suit? Try the cause, and then you will know. Examine the authorities, and the farther you examine, the farther you will be from knowing.)
The reason is a good one: provided always that the rule be, in the first place, acknowledged to be absurd and mischievous. “It hath been ruled, that a conviction of perjury doth not disable a man from making an affidavit in relation to the irregularity of a judgment in a cause where such person is a party; for otherwise he must suffer all injustice,‡ and would have no way to help himself. But it can only be read in defence of a charge (i. e. against a charge,) and not in support of a complaint.”∥ Not that, in the sort of case thus excepted, the reason is by any means so good as in the other sort of case so carefully distinguished. All other evidence being supposed, in both cases, unattamable,—in what respect is a man less exposed to suffer all injustice by not being admitted to give his own testimony in suppost of a complaint of his own, than by not being admitted to give it for the purpose of defending himself against a charge? In other words, in what respect is he less exposed to suffer injustice, by not being permitted to give his own testimony in his own behalf when plaintiff, than when defendant? On the contrary, the danger he would be exposed to from injustice would be greater if the proposition were reversed. Debarred from being heard as a witness for himself in the character of defendant, he is exposed to no injuries but such as may be attempted to be inflicted on him by the intervention of the hand of justice, debarred from being heard as a witness for himself in the character of plaintiff, he is exposed to all injuries without exception.
From a charge he cannot, in the way of conviction, be a sufferer, but upon the supposition of a suit of some kind or other instituted, and perjury committed, or at least misrepresentation made, in support of it, with the judge upon the watch to protect him against it. In this case, the scene of the injury lies in curiâ; and there he has the probity and compassion of the judge for his defence. In the opposite case, it has lain (jargonicè) in pays: and there, whom had he for his defender? If the adversary had ordinary prudence, seconded by ordinary good fortune, nobody. Suppose yourself for a moment, gentle reader, in this unpleasant predicament: put into it, not by any perjury of your own (you would not forgive me the supposition,) but by the united perjury of two wicked adversaries. Invited by these lawyers, your enemy, being stronger than yourself, and catching you alone, may beat you to a jelly; or (if it be more agreeable to him,) first having tied you to the bed-post, he violates your wife and your daughter, they also being perjurers or quakers,* in your presence. Of himself, the privilege thus given him could hardly have occurred to him. But he has overheard a lawyer brag of it as a good joke; or he he has found it in a book by accident.
Examine the case in another point of view, and now with the eye of an exclusionist: you may see another reason for taking the exception (if an exception there must be) elsewhere rather than here. Let it be in his own cause, and, therefore, in his own behalf: here is interest in the case, and to a certainty: whereas, if the cause be one to which he is not a party, and in which he has no natural interest, perjury on his part, if unbribed, will be without a motive; nor can he be bribed without a person able and willing and bold enough to offer him a bribe; three conditions which do not meet in one person every day.
There remains yet one part of the case, which, on different occasions, has been brought to view already. When the most suspicious of all evidence (so far as improbity is concerned) is received, in what shape is it received? In the shape of vivâ voce evidence, the deponent present in court to be examined and cross-examined by the adversary and the judge? Oh, no: this is exactly the shape in which the door was just now expressly shut against it. Oh, no: the dish must be served up in the shape of affidavit evidence, dressed at leisure, with an attorney to dish it up: a licensed accomplice to help cook the poison, and no taster to detect it.
Thus, in regard to the exclusions grounded on improbity, stands the matter upon the face of the books. But such is the infelicity of the subject, such the felicity of the profession, there is no trusting even to the freshest of their books. The apparent uncertainty of the law is such as we have already had a glimpse of, and such as we shall see in a fuller and fuller light in proportion as we advance: but the real and latent uncertainty of the law (I speak always of the common law) is still deeper and more profound. Ever unfathomable, essentially fluctuating: such is the ocean, such is the common law.
Inquiring among professional friends the degree of observance given to the rules excluding witnesses on the ground of improbity, I learn that judges may, in this point of view, be divided into three classes. Some, treating the objection as an objection to credit, not to competency, admit the witness, suffer his evidence to go to the jury, presenting the objection at the same time, warning the jury of the force of it, and when thus warned, leaving them to themselves. If, after this warning, the jury convict a man of whose guilt the judge from whom they have thus received the warning, is not satisfied,—thence follows, as a matter of course, a recommendation to mercy,—whence follows, as a matter also of course, a pardon. Another class suffer the testimony to be given, but if they do not find it corroborated by other testimony, direct the jury to acquit, paying no regard to it. A third class, again, if they understand that no other evidence is to follow, refuse, in spite of all authorities, so much as to suffer the jury to hear the evidence.†
Of what individuals these several classes are respectively composed, I do not know, and should be very sorry to be obliged to know. The object in all these cases is the preservation of the innocent. To this object there are these three roads, all equally effectual:—the first, a rational course, and conformable to law, meaning always the published, the known, the knowable dispensations of the law;—the second, arbitrary, assuming, self-willed, trespassing upon the regard due to the free agency of juries, unconformable to the spirit of the constitution, but containing nothing absolutely repugnant to any peremptory injunction of the law;—the third, equally and completely repugnant to reason and to law.
Under the jurisprudence of ancient Rome, the great and powerful judge called the prætor used, at the commencement of his prætorship, to hang up for the information of the suitors, in a conspicuous situation in some public place, a table of the rules by which he proposed to govern himself during his year.
Of the three different courses taken, as above mentioned, in relation to the same business, by so many classes of English judges, I, having no other interest in being informed than what I possess in the general capacity of an English subject, should be unwilling to know which, on any given occasion, has been or would be taken by any individual judge. But, in the capacity of a prosecutor in any of the cases in question, were it ever my misfortune to find myself standing in that capacity, it would certainly be highly material to me to procure (if it were possible) two tables: the one a standing one, containing the names of the twelve judges, each being accompanied with the designation of that one of the above three courses which it is his practice to pursue; the other an occasional one, containing the names of the judges, who, upon the trial of the cause in which I was in a way to be prosecutor, would be destined to preside. If the judge I saw reason to expect, was a judge who would suffer a jury to hear, and to act as if they heard, I would under his auspices take my chance for bringing the truth to light: but if he were either a judge who would not suffer a jury to hear, or one who would not suffer them to act as if they heard, most certainly I would have nothing to do that I could avoid doing, in the way of prosecution, under the direction of such a judge.
It would be equally incumbent on me to decline bearing a part in any such sham trial, whether I consulted the rules of personal prudence, or those of social duty—whether I regarded the effect of such a prosecution in the way of burthen on my own finances and my own ease, or, in the way of example, on the conduct of those to whom, in the capacity of persons exposed to the temptation of offending, information of the practice in this behalf might be of importance.
The example is bad, when a man supposed to be guilty is seen to remain unprosecuted. But the example is much worse, when a man supposed to be guilty is seen to be prosecuted, but prosecuted under circumstances in which it may be and is known beforehand that prosecution will be to no purpose, saving always the impoverishment and harassment of the prosecutor; impoverished and harassed already by the injury—impoverished and harassed commonly still more by the fallaciously offered and really withholden remedy. The escape for want of prosecution, is the simple escape of a guilty man from punishment: the escape taking place after prosecution, and effected by such means, is an example of the triumph of him who is guilty, and of the punishment of him who is innocent and injured.
Improbity in other shapes an improper ground of exclusion.
If from that modification of improbity which consists in a breach of veracity on the very sort of occasion in question (viz. judicial testimony,) no sufficient ground for exclusion can be deduced,—much less (it is evident) can it, from improbity manifesting itself in any other shape. English jurisprudence furnishes in this part of the field a rich harvest of learning, which whoever has an appetite for absurdity may go and feast upon, at the table spread for him by Hawkins, Bacon, and Comyns, with their everclashing authorities.
Looking into the offence for this purpose bring a process to which thought, howsoever misapplied, is necessary, and thought being attended with trouble, sages have substituted a more expeditions operation, which is, the looking at the punishment. Treasons, felonies (unclergyable and clergyable,* ) præmunires, misdemeanours: by these denominations are expressed all the distinctions they know of, in point of malignity (or say improbity) between one group of offences and another; and, except the obscure and mostly incongruous intimation given of the nature of the offence in the case of treason, and the undistinguishable intimation of misconduct or delinquency in general conveyed by the term misdemeanour, none of these terms afford any the slightest intimation of any intrinsic quality in the offence itself, nor of anything else belonging to it, but the accidental circumstance of the punishment that has been attached to it.†
A system of arrangement is good or bad, instructive or fallacious, according as the objects ranked under the same division possess more or fewer properties in common. In the system in question, the objects not possessing any essential properties in common,—any inference grounded on the place occupied by the object in the system, must in the case of this system as of any other, be preportionably inconclusive. To make a complete perambulation of the whole chaos, would, for this or any other purpose, require volumes upon volumes. A sample or two must serve instead of a complete list.
To judge of offences by punishments, the most detestable of mankind should be found in the class of traitors. Treason being the sort of act most offensive to those whose dependent creatures judges used to be, treason is, in the eye of jurisprudential law, the very pinnacle of improbity. In the character of a witness, a traitor, of course, supposing him to remain with his bowels in his body, never could be heard. Reason, unless the case were particularized, would never know what to think of it: of what sort of disposition (if of any) to regard it as evidentiary—whether of vice or of virtue. Enemies must be resisted—traitors must be punished: but to a traitor it may happen to be among the most profligate or the most virtuous of mankind. Occasions there are in abundance, on which traitor or no traitor depends upon bad success or good success. Take a monarchy, and suppose the title to the crown (the legitimacy, for instance, of the heir apparent of the last monarch) to be in dispute. Half the people believe the legitimacy: the other half disbelieve it. Each half are traitors, to the other half. Which are so by law? It depends upon the course taken by a few balls of different sizes. But will it be said that the course taken by the balls affords any indication of the side on which the greatest proportion of veracity is to be found? In cases like these (not to speak of concealed traitors,) every non-juror at least is at his heart a traitor. But is he the less trustworthy? On the contrary, who does not see that he is by so much the more so? His adherence to veracity, his insensibility to the force of sinister interest, is established by the most incontestable evidence—by evidence such as no adherent to the successful side has it in his power to give.
During the warfare between the two roses,—that is, from generation to generation,—the good people of England, good and bad together, were alternately loyalists and traitors : consequently, if the men of law were fit to be believed, in all that time scarce a man in the country that was fit to be believed.*
By a numerous and respectable description of men, probably by a great majority of those to whom the history of their country is an object of interest, Russel and Sydney (Russel at any rate) seem to be regarded as patterns of heroic virtue: of virtue, not simply in respect of the general tenor of their lives, but in respect of the very act which brought the life of each of them to its close. Both patterns (let us say) of heroic virtue: yet, if in the eye of the law (for that is the question) these men were not traitors, what men ever were or can be?
Next below treasons, stand unclergyable felonies. Among these, take homicide in the way of duelling.
Two men quarrel; one of them calls the other a liar. So highly does he prize the reputation of veracity, that, rather than suffer a stain to remain upon it, he determines to risk his life, challenges his adversary to fight, and kills him. Jurisprudence, in its sapience, knowing no difference between homicide by consent, by which no other human being is put in fear—and homicide in pursuit of a scheme of highway robbery, of nocturnal housebreaking, by which every man who has a life is put in fear of it,—has made the one and the other murder, and consequently felony. The man prefers death to the imputation of a lie,—and the inference of the law is, that he cannot open his mouth but lies will issue from it.
Such are the inconsistencies which are unavoidable in the application of any rule which takes improbity for a ground of exclusion. Take it for a ground of suspicion only, all these absurdities are avoided. On each occasion every man is judged of by his own works. A man is not pronounced unworthy of credit, merely because other men, who have committed other acts accidentally called by the same name as some act of his, are supposed unworthy of credit. The suspicion is founded, not on the class of the offence (which, as offences are classed, shows nothing;) nor yet on the genus of the offence, an indication still pregnant with delusion: nor, more implicitly, so much as on the species; but rather on the individual offence: and thus each shade of delinquency raises up that shade, and that shade alone, of suspicion, that belongs to it.
If the legislator had his choice of witnesses upon every occasion, and witnesses of all sorts in his pocket, he would do well not to produce any, upon any occasion, but such over whose conduct the tutelary motives exercised despotic sway: in a word, to admit no other men for witnesses than perfect men. But perfect men do not exist: and if the earth were covered with them, delinquents would not send for them to be witnesses to their delinquency. In such a state of things, then, the legislator has this option, and no other: to open the door to all witnesses, or to give licence to all crimes. For all purposes, he must take men as he finds them: and, for the purpose of testimony, he must take such men as happen to have been in the way to see, or to say they have been in the way to see, what, had it depended upon the actors, would have been seen by nobody.
A very short argument might be sufficient to satisfy us of the insufficiency of all arguments drawn from the topic of criminality in the lump. The evidence of an accomplice is admitted, whatever be the crime; at least (which is abundantly sufficient for the purpose) in crimes which are regarded, as being of the deepest dye, and, as affording the strongest ground for exclusion in the instance of a witness whose criminality, whether of the same or a different species, is of less recent date.*
Supposing criminality in general to be a just ground of incapacitation in this behalf, on the part of a witness produced in favour of a criminal prosecution,—the criminality manifested by a participation in that very crime would afford a juster ground than can be found on the part of a criminal not in the same predicament.
Superior certainty, and superior freshness, are circumstances that concur in giving to the ground of exclusion, in this case, a degree of strength which is scarcely to be found in any other.
First, in regard to certainty: certainty of past depravity. In other cases, the evidence of criminality (the only evidence admitted by the law) is the record of conviction. But the conviction may have been erroneous: the man may have been innocent, though the jury thought him guilty. Here he says himself he was guilty; and unfolds all the circumstances of his guilt: circumstances without which it would not have been in his power to display the guilt of the accomplice against whom his evidence is produced.
Next, in regard to freshness: for on freshness depends the presumption of present depravity, without which, past is nothing to the purpose: of present depravity, as rendered probable by past. In other cases, the criminality may, it is true, be recent; but what is equally true, is, that it may be any number of years anterior to the time when the testimony is given. Long before that period, the crime may have been for ever buried in oblivion, and the character regenerated. Here, the taint on the evidence is as fresh as the crime, by the prosecution of which the evidence is called forth.†
In a double view, so far as the danger of deception is concerned, this single example ought to be regarded as conclusive: in the character of a proof from experience; and in the character of an argumentum ad hominem.
In the character of an appeal to experience.
The temptation at the highest pitch: the individual exposed to it, an individual belonging to that class in whom the proneness to yield to temptation is at the highest pitch: the force of the mendacity-prompting motives at the highest pitch; the force of the mendacity-restraining motives at the lowest pitch: and yet mendacity itself unfrequent in comparison with veracity, and, at any rate (what is the only thing ultimately material) deception, and consequent misdecision, extremely rare.‡
In the character of an argumentum ad hominem, its operation seems to be still more forcible.
When, in case of deception and consequent misdecision, the mischief is so great—when, in a word, it is at the highest possible pitch, amounting, perhaps, to the murder of an innocent man,—you scruple not to give admission to the evidence. Every day you admit it—you all admit it; by none of you has so much as a suspicion been entertained, or at least been professed to be entertained, that the admission of it is, upon the whole, unfavourable to the interests of truth and justice. Yet, where the temptation amounts to nothing—where the capacity of opposing to the temptation (if there were any) that resistance which probity requires, remains unimpeached—and where the mischief, in case of deception and consequent misdecision, is next to nothing,—even there, if but the shadow of an interest flit before your eyes, you scruple not to shut an inexorable door against the evidence.
We have seen, in some measure, what is to be thought of the incapacitations grounded upon interest. We now know what to think of the incapacitations founded on criminality. Add interest and criminality together, and observe what follows. Interest incapacitates—criminality incapacitates: interest and criminality, each in the highest degree, do not incapacitate. In grammarians’ logic, two negatives make an affirmative: in lawyers’ logic, two affirmatives make a negative. In vulgar arithmetic, one and one make two: in lawyer’s arithmetic, one and one make not two, but nothing.
Oh! but lawyers’ interest is pecuniary interest: and this interest, which, being added to criminality, removes the incapacitation, is only the mere interest of self-preservation in regard to life, and nothing more. Well then, add pecuniary interest: add lawyers’ only interest to other people’s strongest interest: put three grounds of incapacitarion together: instead of two, the three put together still make nothing, as before. A pardon, together with a reward, is offered to one conspirator for the discovery of another: neither reward nor pardon given, unless the man informed against is convicted. This is every day’s practice. Such is the invitation: and the doors of justice are thrown open to the scum of the earth thus collected. After this, split hairs, and raise quibbles about a farthing’s-worth of interest in one shape, and a farthing’s-worth in another.*
If exclusion on the ground of convicted mendacity were justifiable. English lawyers and judges should be excluded.
First, as to the professional lawyer—the lawyer in full practice. I speak not of attorneys, who, when it happens to them to lie, lie rather in deportment than in language, in deeds rather than in words: or, if in written words, in words prepared for them by the client’s lips. The indiscriminate defence of right and wrong, by what is it kept up, but by the indiscriminate advancement of truth and falsehood?
What the perjurer has done once, and perhaps but once, the advocate is doing in every day’s practice. Occasion, motive, everything the same, except the punishment and the ceremony: the kiss given to the book in one case—not given to it in the other.
The perjurer makes a lie, the advocate circulates it: the perjurer gives words to it, the advocate effect. To what amounts the difference? To the same as between the part borne by one man and that borne by another in a plan of forgery.
The lawyer indeed has his licence to plead, his licence under the seal of the moral sanction: the perjurer has no such licence. Unquestionably the licence makes a difference: contempt and power sit not on the same head.
One difference requires to be marked. The licence granted to the advocate confines itself to the case where it is in that character that he acts: where it is to the use of others that he lies. As truly as the courtier said, non omnibus dormio, the advocate may say, non omnibus mentior: for (the fee, and the reputation of impressive and successful lying, excepted,) if he lies to his own use, he goes beyond his licence.
But when the habit, thus in ceaseless exercise, has been matured into a second nature, is it so natural that the line thus faintly marked out should never be crossed? Is it not more natural that, as public wrongs have been known to mix with private, the concerns of others should, to this purpose, now and then mix themselves with a man’s own?
Concessum est oratoribus aliquid mentiri in historiis. To the orator who laid down the rule, was it an unfrequent occurrence to see him affording the example?
To a butcher, it may happen to be a man of humanity: he has a licence for shedding blood, a licence sealed with the same seal as that under which the advocate acts in the utterance of falsehoods. The licence extends to quadrupeds of all sorts; it does not extend to bipeds, or at least to bipeds without feathers. Yet, when human life is at stake, a butcher is never put upon a jury.*
It seems scarcely in the nature of things, that, in point of testimonial trustworthiness the testimony of a professional advocate should, in any country, or under any system, be, in the eye of reason, altogether upon a level with that of a man of an equally cultivated mind in another station, taken at random. But whatever untrustworthiness may be found attached to the character on European ground, by far the greatest part of it will be found referable to the technical system; and whatever ulterior degree of untrustworthiness may be found attached to it on English ground, will be found referable to the peculiar degree of malignity to which the endemial disease of that system has risen in England.
Under the natural system (were it ever restored)—under the most perfect system imaginable,—the profession of the advocate never could cease to be necessary, how much less soever might be the demand for the exercise of it. But, under the natural system, the advocate is only the assistant, the bottle-holder, of the suitor; under the technical system, the champion, the substitute.
Under the natural system, the suitor being essentially present—present, so long and as often as any matter of fact, coming in any way under his cognizance, is in question,—there stands somebody, there stands the suitor in his proper person, responsible for the truth of everything that is said in his behalf: the person so responsible is always present in the face of the bystanders and the judge: in vain would the advocate, the echo, the hearsay witness, pretend to believe what the principal, then standing before him, dares not venture to assert, or at any rate to persist in.
When the client is out of the way, not only of punishment but of shame, the advocate (no longer the hottle-holder but the substituted soaring on his own wings, believes, and proclaims aloud, whatever is most convenient to be believed. His gospel is in his Land; in his brief he beholds his sufficient warrant: from beginning to end, the paper may be composed of lies, of lies replete with infamy, but the weight of it falls not on his shoulders.
In the writings of lawyers, a topic which, of course, cannot be an unfrequent one, is the respectability of the professional character: the transcendant excellence of the functions in the exercise of which it manifests itself: whatever in talent is most brilliant, whatever in learning is most profound, joined together and acting in the service of justice. What a maker of sticks has never yet been known to forget, is, that to every stick there are two ends: what a maker of this sort of panegyric takes care never to remember, is, that to every cause there are two sides, and that only one of these can possibly be in the right.
Another case which presents itself as a subject of examination, in regard to exclusion of testimony on the score of appropriate improbity, is that of English judgeship.
In speaking of this case of habitual mendacity, nothing farther will be requisite than the marking those circumstances which concur in distinguishing it from the last preceding case.
Meantime, lest the condition of being habitually stained with this degrading vice should be regarded as a necessary one, indelibly attached to one of the most exalted functions in government, it may be proper to premise, that England is the country on which the imputation will be found to rest, if not to the exclusion of any other, at least in a degree of most prodigious pre-eminence.
Even to that other of the three united kingdoms which is contiguous to England, the contagion has not extended itself: though, on the other hand, it has crossed the sea, and involved the other kingdom, the laws of which have been drawn from an English source.
Even in England, the number of the persons thus regularly infected is so small, that were numbers the sole object, this head of preferable exclusion might seem to have scarcely a claim to notice. But when it is considered that the station here in question, limited as is the number of the occupants, is among the chief fountains from which the public morals are derived; and that in one of them in particular, sits a reverend personage, who among his official titles numbers that of castos morum of the nation, guardian of the public morals; the paucity of the occupants will hardly be adduced as a sufficient reason why, in this point of view, any more than in any other, the station should be passed by as an object undeserving of regard.
Had Clodius in his day paid a visit to this island, for the purpose of delivering a set of lectures on the virtue of conjugal fidelity; or had Messalina come over and purchased the site of Camden House, for the purpose of erecting upon the premises a boarding-school upon an imperial scale, for the education of young ladies; the individuality of the two characters would scarcely have passed as a reason why their conduct in their respective situations should be passed by, as an object too inconsiderable for notice.
Between the mendacity of the advocate and that of the judge (the scene is now confined to England,) there is this difference. Among advocates, taking any given individual, the exemplification of the quality is rather matter of suspicion than proof. That a large portion of his time is thus employed, is clear beyond dispute; but it would not always be easy to say exactly what particular portion or portions—to fix upon the particular cause, or hour, or minute. In the instance of the judge, this difficulty has no place. In this shape, as well as in so many others, the fruits of his industry are upon record: his name is subjoined to them, and in his own hand: they are consigned to that sort of instrument which (as if to give the better effect and virtue to this its quality) is proclaimed aloud as the standard of truth, that mass of authoritative and privileged asseveration, which no other asseveration (come it from what quarter, or from whatsoever number of quarters, it may) is ever to be suffered to contradict: a mass, the matter of which, being constantly (in the greater part of it) false, is on that account to be as constantly taken for true.
To be at a loss for specimens of the exercise of this talent, would be as if an astronomer were to be at a loss to find stars in the milky way. In the selection—since for illustration’s sake a specimen must be produced—in the selection lies the only difficulty. To give them all, would be to transcribe no small part of the collection of those fruits of professional industry, which, in professional language, are known by the name of books of practice. To transcribe them, on the present occasion, would be to imitate the labour of the ingenious attorney, who, on the occasion of the entry of names and baptisms on a blank leaf, took occasion to enrich the budget of evidence with an office copy of the Bible.
In the Mariage de Figaro, the travelled valet, speaking of England, represents cursing and swearing as the matter constituting the basis of conversation. Though matter of that sort is more abundant than a lover either of good sense or piety would wish, yet, taken in the quantity there assigned, the proposition cannot but be considered as tinctured with that exaggeration, which, being natural to the occasion, shows itself for what it is.
If, instead of that vice, he had fixed upon the vice of lying; and, instead of common conversation, upon that sort of regulated discourse in the delivery of which a man might be expected to be more particularly on his guard, and had his observation been, that in England lying constitutes the basis of judicial procedure; his remark would have contained nothing beyond the simple and altogether indisputable truth.
Supported by irresistible power, effrontery has hardened itself to such a pitch, as to affect to regard mendacity under the palliative name of fiction: mendacity in the mouth of judges—mendacity, the source of fees, as conducive, as even necessary, to justice.
Such, in that exalted station, being the practice, the habitual practice,—what, in point of character and reputation, is the consequence? Just what it might naturally be expected to be: that in the scale of trustworthiness, the assertion of an English judge, writing in that character—the assertion of the guardian of English morals, stands exactly at the lowest degree conceivable. Not only is this state of things generally notorious, but it is built upon as such by the acts of the legislature, and this so truly and effectually that it is upon the known untrustworthiness—upon the infamy, of this exalted character, that the law depends for the efficacy of its arrangements.
Among the other devices employed by the authors of the jurisprudential system for the attainment of their ends, was that of wording their notices in such manner as to convey no information, the consequence of which, actual as well as intended, was, that a man was punished and pillaged as for a contempt of the orders thus carefully kept from coming to his knowledge. The people of England having been under a course of pillage in this form for some centuries, the cries of the oppressed prevailed at length with the legislature to apply what the authors of the grievance (the persons by whose counsels the legislature, on occasions of this sort, governs itself of course, for want of being able of itself so much as to understand the language,) what the authors of the grievance presented in the character of a remedy. Instead of the sham notice, which till then had been the only notice ever delivered,—instead of this sham notice by itself, the instrument was in future to contain two notices. The one was and is the old sham notice, signed by the judge—the customary heap of lies—the official discourse of the judge, whose name, in his own handwriting, conveying the assurance of its verity, was inscribed on it. The other was and is a true notice—a notice that may be at least, and (the nature of the contents considered) commonly will be, a true one, signed by some attorney. The two notices being in point-blank contradiction to one another, on what does the efficacy of the true instrument, and of the law by which it was instituted, depend?
On what but this? viz. that the word of the attorney, who, unless by accident, has the advantage of not being known, shall be taken in preference to that of the judge, whom everybody knows, and who, as such, is so much better known than trusted, that he is regarded as unworthy of all credence.
The assertion thus delivered (it may perhaps be remarked) has not received the sanction of an oath. True: unless any such duty as that of veracity should be understood as comprehended in the oath of office. But what is no less true is, that the assertion is of that class, to which the reverend authors themselves ascribe a degree of trustworthiness beyond any which they will allow to an assertion from any other quarter, though backed by the sanction of an oath. Records, instruments coming authenticated from that exalted and thus commanding station,—records, of the verity of which the above specimen furnishes a correct idea, are sure to be believed: i. e. (though known for what they are) acted upon as if true. Depositions, assertions from all other quarters, though sanctioned upon oath, may be believed or not: they must take their chance:—but records are infallible.
Is it the occasion, and thence the effect,—is it the occasion, or the ceremony, that makes the political mischief, the moral turpitude? Surely not the ceremony, but the occasion. If the ceremony, then suppose a mass of testimony received without the ceremony, and an innocent man convicted and life destroyed upon that ground. In this is there no mischief? In this is there no turpitude?
On the other side, take two pieces of gold coin, two guineas, each of full weight, and, under the eye of an approving judge, to change the prisoner’s doom from death to transportation, let the two-and-forty-shillings’-worth of gold coin be valued by twelve jurymen, speaking upon their oaths, at nine-and-thirty shillings, and no more.* Look at this, which is every day’s practice, and then say whether the distinction between the occasion and the ceremony be to the conscience of an English judge either a subject of doubt, or a matter of indifference.
Thus strong is the objection in the case of the English judge: stronger than in the case of the advocate—itself a stronger case than that of the convicted perjurer.
Mendacity, it must not be forgotten, is the only shape in which improbity is here in question: extended to other shapes, the imputation would be unfounded, and, in respect of its unquestionable groundlessness, revolting.
The Lord High Chancellor, the Lord Chief-Justice,—you might be every day in his company, for any number of years, without being under any the smallest degree of apprehension on the score of your watch. Your table might be covered with plate, and not so much as a tea-spoon would be in any the smallest danger of finding its way from his hand into his pocket. In all such particulars, your assurance of probity on the part of the arbiter of the lives of unlicensed depredators might well be as entire, as, on the part of any such unlicensed depredator, your assurance of the opposite quality would.
But in regard to that particular modification of improbity which alone is here in question, the matter may be seen to stand upon a very different footing, not to say an opposite one.
It is to his celebrity and long-continued experience in the capacity of an advocate, that the Lord Chancellor or Lord Chief-Justice is indebted for his commanding situation in the character of a judge.
In the case of the unlicensed depredator, mendacity is but a casual practice, an accidentally-necessary resource. For the purpose of getting your watch, no lies are told by the man whose dexterity finds means in the crowd to extract it out of your fob. For the purpose of getting your spoons, no lies are told by the burglar, to whose ingenuity the window-shutter of your butler’s pantry has proved an insufficient obstacle. If, for converting these treasures into others more particularly adapted to his immediate use, it be necessary for the acquirer to have recourse to an ordinary and unconfederated dealer,—true it is, that in that case a story may eventually be to be told. But if, between the man of dexterity and the man of thrift, there be a regular established connexion, cemented by the necessary confidence, invention has no need to draw upon itself: and though, in the shape of depredation, improbity thus extends and doubles itself, in the shape of mendacity it finds no place.
Far different, not to say directly opposite, is the case as between the two practitioners, on the ground of mendacity. On this ground, what, on the part of the practitioner whose strength lies in his hands, was but a casualty, is, on the part of him whose strength lies in his brains and tongue, matter of regular, of constant, of necessary practice. Set the one and the other in the witness-box, the dignified practitioner will be the most careful not to hazard any false statement that would be easily open to detection; but as often as the nature of the case holds out security against detection, a natural consequence is, that, of the two, he shall be the more ready at the utterance of falsehood, as well as more adroit and successful in the management of it.
The field of psychological facts is a field which, in its whole extent, holds out to learned mendacity this encouraging and fostering security. Under his brush, like drapery under that of the painter, intentions, motives, disposition, character—everything of that sort, takes, on each occasion, the exact shape and hue which the occasion, and the purpose that arises out of it, requires. In equity, all facts of this class are made by the learned draughtsman; at common law, by the leading counsel. Whether of his own stores, or by adoption from the attorney, from the paper of instructions in one case, from the brief in the other, is matter of accident, and not worth thinking about.
In all these particulars, misrepresentation, whether on the wrong or on the right side, is matter of course. On the wrong side it is matter of duty, a duty the more imperious the more perilous the wrong; and punishment, in the shape of professional dishonour and forfeiture of practice, would be the consequence of neglect: if on the right side, embellishment in this style is, if not a duty, at least a merit,—and reward, in the shape of honour, awaits the skilful and successful organ.
In the production of these cases, strong as they are, let not the purpose for which they are adduced—let not the proposition contended for, be for a moment out of sight. Even in these strongest of all cases, that of the advocate anywhere, and that of the judge in England, the object is not to recommend, but to reprobate, the shutting the door against the evidence. Rightly you can never act, so long as, on the ground of untrustworthiness and consequent fear of deception, you shut the door of justice against any human testimony. But if you will not act rightly, act at least consistently: and to do so, you must shut the door in the first place against yourselves. Judico me cremari, was the decision of Judge Blackstone’s righteous Pope: take that case for your precedent, and say, Judico me excludi: the sacrifice will not be quite so great, the decision not less reasonable. Having done with yourselves, proceed upon your learned brethren, and their ungraduated fellow-practisers the barristers of the present time, the apprentices of the heroic age. From them descend to solicitors, and to attorneys, if any you can find, who, flying from public odium, have not taken shelter under the former, the less hackneyed name.
When the testimony of these venders of falsehood for daily bread is shut out, it will be time enough to think about shutting the door against the ill-fated Jonas, whose misfortune it was to be detected in acting, for once in his life, without a licence, that part which he sees performed every day with such universal applause, and on the highest theatres, under the sanction of a licence.
But, above all, forget not that most deeply-learned person, whom I was in danger to have forgotten, the special pleader: who, having never opened his mouth, has never spoken a he; but who, from his first entrance into the profession, unto the present moment, whatever be the present moment, never knew what it was to set his hand to a single paper without a lie in it.
Let us not mistake. If the presumption of untrustworthiness do, upon any such grounds as above, attach itself with justice upon the English judge, it certainly is not upon the station; as little is it upon the nation. It is upon the system, the technical system, under which he acts: the system that causes him to be false—habitually and constantly false; and not only to be false, but to be the cause, and the constantly-acting cause, of falsehood in other men. The technical system is a hot-house of mendacity: the soil richer, far richer, in England, than under any other clime. The advocate, picked out in due time from the bed of special pleaders or chancery draughtsmen, is trained up in this stove the judge is the advocate run to seed.
It extends not, this disastrous presumption,—it extends not, in anything like equal force, to the judge, nor even to the advocate, of any other country: it crosses not the Tweed.* Under Roman law, if, under the name of fiction, falsehood be now and then served up to the table of the judge, it is only, as it were, by way of desert, and in the character of a casual delicacy.* It is on English benches that it is gorged and disgorged, with an appetite that will bear the epithet of canine.
If it extends not, in any comparatively considerable force, to the judge, or even the advocate, in any other country, much less does it, even in England, to the country magistrate, the justice of the peace: much less does it, in any even the slightest degree, to those unlearned judges. Never have they fed on any such fould diet: they have never shaken hands with Den or Fen, with Doe or Roe: no connexion have they with sham pledges, with sham bail, with sham anything, fees flow not into their hands from any such poluted source.
To the general conclusion: be of this set of cases the strength what it may, it can never stand against the force of the general answer. The more manifest the mendacity, the more secure it is against the danger of producing deception; that consequence, without which, mendacity, howsoever it be in intention, is altogether innocent in point of effect. By those from whom it issues, and who act upon it as if it were true, the mendacity of it is still more fully understood than it can be by anybody else.
After this conclusive answer, others that carry upon the face of them more or less truth, have, for the present purpose, little claim to notice. A distinction may require to be taken between the judge and the man; and as in the Court of Exchequer the same robes include two sorts of judges—a common-law judge, and an equity-law judge, whose vocation consists in stopping and thwarting the proceedings of each other,—so in any and every court it may happen to the same envelope to contain two sorts of human beings—a veracious individual, and a perpetually-lying judge.
The remark is certainly not without foundation in experience. Not that the observation can be altogether free from regret, that between the two opposite characters the contact should be so constant and so close; that one head should encircle two such faces. The claim to competency is beyond dispute; but when credibility comes to be considered, proverbs in abundance, regarded commonly as the emanation of wisdom, the offspring experience, obtrude themselves, and become troublesome: nor is it pleasant to consider, that the weakness of the union, in the character of an objection to what is called credibility, depends upon the truth of the proposition, that communications thus evil and thus close do not corrupt good manners.
No: it is not for the purpose of advocating, but of reprobating exclusion of testimony, that these remarkable cases are spread upon the carpet: it is not for the purpose of proving that these ought to be excluded, but that none ought to be excluded: not only not the felon or the perjurer, nor even the ever-mendacious advocate of any country, but-not even the constant arbiter, utterer, bespeaker, rewarder, and compeller of mendacity, the English judge.
No: let them not shut the door of the witness-box against any human creature: but if nothing will satisfy them but that somebody must be excluded—if the demon of exclusion must have victims,—let judges and advocates be the first.
IMPROPRIETY OF EXCLUSION ON THE GROUND OF RELIGIOUS OPINIONS.
Atheism an improper ground of exclusion.
In the case of improbity, the seat of the disease is in the will; in the case of atheism, the seat of the disease (such let us call it) is in the understanding. Between the two branches of the mental frame, the communication is indeed most intimate: true; but they must not be confounded. Here the presumption is still more remote and slighter than before. Could the absence of all sinister interest be ascertained, improbity in the case in which the presumption it affords is the strongest,—improbity in the shape of perjury,—would not afford any the slightest presumption of mendacity in any given instance. Perjury is improbity. But atheism is not improbity: that it affords a presumption of improbity, is the utmost that can be said of it by anybody.
From the four sources above mentioned under the name of sanctions, the ideas of pain and pleasure are found operating on each man, with more or less force, in the character of standing tutelary motives: the physical sanction, the moral or popular, the political or legal, and the religious. The atheist is one on whom the religious sanction has no hold. In respect of the extent of the cases in which they respectively operate, the physical is confined within natural limits: the political, by limits more or less casual and scanty: the moral and the religious, though hitherto variable, are altogether unconfined, and capable of covering the whole field. But human conduct depends not merely on the number and nature of the moral forces to the action of which, on the occasion in question, the patient is exposed, but also on the sensibility of his mental frame with reference to each such force. To restrain this man, all four shall be unavailing: to restrain that man, a single one of them shall be sufficient.
It has been seen in Book 1, how much may be said in behalf of the opinion that, in the character of a security for good conduct in the present life, the religious sanction is incomparably less efficient than either the moral or the political. If this opinion be true, it follows, that any presumption of improbity which can be afforded by atheism is very slight.
The question, however, whether in any degree, and in what degree, the absence of religion, or this or that erroneous opinion in regard to it, affords a presumption of improbity, may happily be added to the list of the questions the investigation of which is unnecessary to the present purpose. Why so? Answer: Because the fact of a man’s entertaining any such opinion, is that sort of psychological fact, of the existence of which it is impossible for the judge to obtain sufficient evidence, on any other supposition than that of a degree of veracity, not only exclusive of the supposition of a more than ordinary propensity to mendacity, but in itself so preeminent, as to entitle the testimony of the witness to a more than ordinary share of confidence.
To cause a man for this purpose to be justly regarded as an atheist, the evidence must come either from an extraneous source, or from discourses formerly committed to writing by himself, or from his own lips.
1. Coming from an extraneous source, the persuasive force of the evidence finds two objections to encounter it. In the first place, it is at best but hearsay evidence: on such or such an occasion he declared himself an atheist. In the next place, the time of the fact, supposing it true, is a time past and gone. For aught that appears, the situation he is in in this respect may be parallel to that of a man who at one time had an interest in the cause—but an interest which, before any occasion led him to speak of the fact, was extinct. Once that error was entertained by him: admitted: but in the existence of a God is there anything so perfectly incredible, that when once a man has entertained the contrary persuasion, it is impossible for him ever to cease to entertain it?
2. Let the evidence be derived from former writings of his own. In this case, the first of the two above-mentioned causes of inconclusiveness has no existence; but the second remains; and with the same degree of force as in the former case.
3. Next, and lastly, let the evidence, whichsoever way it turns, come from his own lips. Being about to give his testimony, the first question put to him is, Are you an atheist? Answer, No, or Yes.
First, let it be No. If there be no extraneous evidence to the contrary, the objection is disposed of. But suppose extraneous evidence to the contrary: viz. the hearsay evidence above spoken of. Primâ facie, and in general, hearsay evidence is superseded, and turned into superfluous, equivalent to irrevelant, by the immediate testimony of the person whose supposed extra-judicial discourse is reported by it. But, upon occasion, for infirmation, or even for confirmation, of the immediate and judicial testimony of the supposed extra-judicial discourser, it may still have its use. Comes then the extraneous witness to the proposed witness’s character, and says of him,—On such a day I heard him declare himself an atheist. But be this statement true or false, by it the declaration of the supposed atheist, the declaration whereby he says, I am not an atheist, is not contradicted. Then, when he declared himself at, atheist, he was an atheist: now that he says. I am not an atheist, he is not so. If, indeed he says,—No: on the occasion of which the witness speaks, I did not declare myself an atheist,—then, indeed, contradiction exists; then it is for the judge to make his choice, and say to himself, which of them he will believe. Not that the choice is worth making; for the fact thus to be determined, is the state of the mind of the supposed atheist at that former time: whereas, the fact on which the alleged cause of the exclusion rests, is the state of his mind at the time when called upon to give evidence. If a written document is produced, as above, the contradiction is more conclusive than in the other case; unless the meaning put upon the document, or its genuineness, or its exemption (i. e. the exemption of the act of writing it) from force or fraud, be contested and rendered dubious.
Next, let the answer be. Yes, I am an atheist,* Then, indeed, the man must be an atheist; at any rate he must be taken for an atheist. But shall this answer be regarded as a piece of evidence warranting the exclusion? No, surely; and for this reason. The answer is either false or true. If false, the supposed cause of the exclusion fails in point of fact:—he is not an atheist; he cannot, therefore, with propriety, be excluded on the ground of atheism. If the answer be true, the cause of exclusion fails on another ground: the presumption of mendacity, the presumption grounded on the atheism, is proved to be erroneous.
What is known to every man, cannot be unknown to him;—viz. in the first place, the general odium to which this declaration is likely to expose him: in the next place, to what a degree it cannot but diminish the degree of credence likely to be given to his evidence; i. e. counteract what cannot but be his own purposes, if his evidence be purposely false. On the other hand, if he says, No, I am not an atheist,—the avoidance of that infamy, the preservation of his evidence from that discredit, is certain: mendacity would find the field quite clear; disproof would be impossible. What, then, to the present purpose, is the effect of such a declaration? To show that from the three other sanctions, one or all of them, his will (such is his relative sensibility) experiences that degree of influence, which, on the minds of so large a proportion of mankind, all four together are so frequently insufficient to produce.
Compare this case with the above-mentioned vulgar notion about interest. By that prejudice, men in general are presumed ready to give mendacious testimony by the slightest particle of interest. Here is an interest,—and that an interest corresponding to the moral sanction—an interest corresponding to the fear of shame,—urging him, and with great force, to speak falsely on this occasion, by saying that he is not an atheist, when he is. Urged by a detachment of that force (viz. the force of the moral sanction) to deviate from the path of truth; yet, such is the power of that sanction over his will, there exists still in his mind the main body of that force (for by the supposition all the other three sanctions are out of the question,) acting upon him with such effect as to keep his discourse steady, and preserve him from straying into that sinister path towards which it is thus impelled.
This is no place for the discussion of opinions on the subject of religion; but one general observation belongs strictly to the present purpose. Were an atheist a worse monster than he has ever been supposed to be—bent upon doing mischief in all possible ways, on all possible occasions, and by all possible means, false testimony among the rest,—a rule excluding testimony on the score of atheism would afford no security against the mischief to be apprehended from that source: for, to get rid of the exclusion, he would have no more to do than to put himself to the expense of a falsehood, of which the detection is impossible. On the other hand, the exclusion operates, to a considerable extent, as a safeguard to all criminals, atheists or not, who, when called upon to bear testimony against one another, are willing to make profession of atheism.
Under the exclusions founded on criminality, a man has a licence to commit crimes, but he will not seek it for the purpose: it would be too expensive: he must pay for it, either with his liberty (not to speak of other punishment) or with his life. Under those founded on religion, he may seek it for the purpose: he may take out the licence, and take it out for almost nothing. A knot of any sort of criminals may conspire, and insure to one another impunity, so far as depends on the evidence of each other.
An atheist is a bad witness; but how to know him from another? It must be from his own account of himself, if from anything; for atheism is not written on a man’s forehead. Which, then, is the true atheist?—the man who says he is not an atheist, and is one? or the man who says he is an atheist, and is not so? This pretended atheist (it should seem) must be considered as the true one, for every practical purpose. Those who speak of atheists as lying under the disabilities in question, must, if they mean anything, mean such persons, and all such persons, as exhibit the only marks of atheism which the nature of the case can by any possibility afford. If this be true, here is a receipt, and that an infallible one, whereby any man that pleases may render his testimony unreceivable. The conspirators in one of the assassination plots against Henry the Fourth of France, or his predecessor (I forget which,) made use of the sacrament as an instrument for binding one another to mutual fidelity.* Had they brooded over their plots under the shadow of the English common law, they might have found in atheism, or pretended atheism, a security of rather a different nature, it must be confessed, but applicable to the same use, and of rather superior efficacy. A man might have taken ever so many sacraments, and be never the worse witness: but one good declaration of atheism, made in proper form and in proper company, will be enough to make him as bad as can be desired. When a man has been received to serve the king, if he would serve with safety, he must produce a certificate of orthodoxy, as demonstrated by taking the sacrament according to the forms of the English church.† When a man proposes to join in murdering the king, if he would do the business in safety as against his associates, he must make them furnish him with a certificate of their atheism.
Speculation, quoth somebody. No; cases of evidence excluded on account of atheism have every now and then presented themselves in practice.*
The same strain of imbecility which gave rise to the examination on the voire dire, has, after suffering the question to be put—“Are you an atheist?”—and receiving an answer regarded as amounting to an affirmative, shut the door against the witness; and, in revenge for his veracity, administered injustice instead of justice to the party unfortunate enough to stand in need of this evidence.
Besides the offence against the dictates of reason and justice, the question thus put was repugnant to the known rules of actually existing law. In virtue of a statute still in force,† a declaration to any such effect subjects the individual to penalties of high severity: and the rule, that no man shall, in return to any question, give an answer that can have the effect of subjecting him to any sort of penalty, is the firmly-established fruit of that mischievous superstition, the war upon which will form the business of the ensuing Part.
Question and answer together, the disclosure was such as could not but have given no slight wound to the feelings of a great majority, if not the whole, of the surrounding audience. But the wound had for its authors, not the honest and intrepid witness, but the crew of learned sophists: the attorney who put the insinuation into the brief—the advocate who formed a question out of it,—but, above all, the judge, who suffered such a question to be put.
Cacotheism, or bad religion, an improper ground of exclusion.
How impossible it is from atheism to deduce a proper ground for exclusion, we have just been seeing. From cacotheism, though no good ground, yet a less bad ground might be made, if there were any man whose God commanded him to commit perjury; meaning always by perjury (what it were so much to be wished were always meant by it,) mendacity by party or witness on a judicial occasion—oath or no oath. The gods of the Hindoos, if the translations we have of their scriptures are in this instance to be depended upon, license such mendacity in certain cases.‡
On this, as on every other part of the ground, common law is up in arms against common sense and common honesty, and, by its inconsistencies, against itself.
The God of the Jews, and, by a prodigious and modern stretch of jurisprudential liberality, the God of the Mahometans,∥ and the god of the Hindoos,§ are tolerated as not countenancing perjury.¶ The God who binds men to veracity by broken saucers,* the God of the Chinese,—if they have a god, though it has so often been said they have none,—even he is tolerated: the God of the catholics and the God of quakers is not tolerated. In intendment of law, he either commands perjury, or is, at best, indifferent about it.
No; this account is not yet a correct one: were this the law, it would be reasonable, in comparison with what, when correctly stated, it will be seen to be.
Catholics excluded! those Christians, in comparison with whom, those who are not Catholics compose a small minority, Church of England men a still smaller! Catholics, than whom, till as it were of yesterday, there were no other Christians! Evidence of catholics excluded! Are we then commanded by law to believe that there is neither society, nor laws, nor judicature, nor evidence, nor veracity, among the greater part of Christians?†
Catholics excluded! Oh no—not all catholics: no, only those who have exhibited a degree of attachment to the duties of religion; such a degree as, among protestants, would be as rare as martyrdom is rare. A catholic, as such, is not excluded; he must be a popish recusant.‡ An oath is tendered to him—an oath such that the catholic who takes it renounces his religion, denies that he is a catholic: it was devised, and avowedly, for this very purpose. Thus, then, under the spirit of this policy, a distribution is made of catholics into two classes—perjurers and non-perjurers: to all who will perjure themselves, the door of the witness-box is thrown open; against all who will not perjure themselves, it is shut.
It is with catholics, as we have seen it to be with atheists. It is not to atheists that the law is opposed: it is only to such atheists as will not perjure themselves.∥
What is known to everybody, is, that as far as anything can be true that is predicated of men in whole classes, the quakers are the most veracious of mankind. Whatever regard men at large are wont to pay to that which they say upon oath, that, and more, is paid by this knot of friends to what is said by them (on the like serious occasions at least) without oath.
By the legislature itself, to say the least, they are not regarded as mendacious. Laws have been made for the express purpose of giving indulgence to their weakness, and admitting them to give evidence without the ceremony. Laws made: yes; but here comes jurisprudence with its distinctions, its perplexities, and its inconsistencies. In with him, on civil ground: out with him, on criminal.* Occasion there has been to say, over and over again, that, as to all criminal cases, where the punishment is not beyond pecuniary, the distinction is nominal and frivolous: since, for the self-same offence or supposed offence—for the self-same cause, a man may be proceded against (at the option of whoever chooses to proceed against him) in the one way or the other. Accordingly, to the extent, at any rate, of this coincidence, the admitting law cannot do right, but it must do wrong. It cannot do right in admitting the quaker in a civil cause, without doing wrong in excluding him when the suit chosen has been one of the criminal sort.
But suppose the punishment ultra-pecuniary: suppose man’s life at stake: suppose a quaker,—that is, a man calling himself a quaker,—wicked enough to attempt murder with his tongue: has not the law suffering enough at its command to punish him with? In non-quakers, law exempts not from punishment murder committed with this instrument. The punishment which, in this case, is too much for a non-quaker,—might not some of it be reserved for the quaker, and serve as a succedaneum to the ceremony to which he is thus recalcitrant?
Conceive a class of men, amounting to many thousands, on whose persons, male or female, and in whose presence, so there be no other witnesses, all other men are left free—have a licence from the law, to commit (so they be but capital) all imaginable crimes,—rape, robbery, burglary, mayhem, incendiarism, and so forth. As to property of persons absent, destroyed or stolen in their presence, this, with so many other trifles of the like nature, is scarce worth adding. I remember the case of a man who, in pursuit of a scheme of plunder, set a house on fire, and who, because nobody had seen what he was about but a quaker, was turned loose again to burn other houses.
Here again comes the same sort of inconsistency as was observed in the case of the atheist and the catholic. Obeying the dictates of conscience, a man remains incredible: violating them, he becomes credible.
III. Persons excommunicated.
You omit paying your attorney’s bill: if the bill is a just one, and you able to pay it, this is wrong of you; but if unable, your lot (of which immediately) will be just the same. If the business done, was done in a court called a common-law court, your attorney is called an attorney, and the case belongs not to this purpose. If in a court called an ecclesiastical court, the attorney is called a proctor: you are imprisoned, and so forth;—but first you must be excommunicated. For this crime, or for any other, no sooner are you excommunicated, than a discovery is made, that, being “excluded out of the church,” you are “not under the influence of any religion:”† you are a sort of atheist. To your own weak reason it appears to you that you believe; but the law, which is the perfection of reason, knows that you do not. Being omniscient, and infallible, and so forth, she knows that, were you to be heard, it would be impossible you should speak true: therefore, you too are posted off upon the excluded list, along with atheists, catholics, and quakers.
Forbidden by his religion, a quaker will not pay tithes: sued in the spiritual court, he is excommunicated. As a witness, he is now incompetent twice over: once by being a quaker, and again by being excommunicate. Why by being excommunicate? Answer, per Mr Justice Buller: “Because he is not under the influence of any religion.”‡
Of the exclusionary system, a part of the mischief (it has been already observed) not to speak of other parts, is, that it involves in it a licence to persons unknown, in unknown numbers, to commit injustice in all imaginable shapes: to commit all imaginable crimes.
To the legislator, having always an interest more or less unmixed in the well-being of the people—being always more or less governed by that interest,—to the real and legitimate legislator, acting as such, it could hardly have happened, unless by sinister counsel, to give in to a system so obviously hostile to the well-being of the people.
By the judge, acting under the fee-collecting system, and under the sinister impulse given to him by that system,—by the judge wielding in disguise the sceptre of legislation, public interest would, at best, and where not exposed to an eye of positive hostility, be regarded, of course, with indifference. When lawyer’s profit (the only serious object of his care) had mischief (in whatever shape—expense, delay, vexation, misdecision, failure of justice) for its immediate cause, or (what comes to the same thing) its inseparable, though but collateral accompaniment,—mischief would be the fruit of his choice: and hence it was by the exclusion of the presence, and thence of the testimony, of the parties, that the foundation of the exclusionary system, that grand support of the fee-collecting system, was laid. When the above-described connexion between lawyer’s profit and non-lawyer’s misery either did not exist, or did not present itself to his view,—then it was that, every now and then, it would happen to him to produce mischief and misery, not purposely, not with malice prepense, but only, as the clown in Dryden’s legend whistled, for want of thought.
In the present case, it would appear, that so wide a deviation from the line of utility and justice was mainly occasioned by the sentiment of antipathy.
Although punishment admits of no other justificative reason, than a probable prospect of the production of greater good—of an increase in the aggregate mass of happiness, of a decrease in the aggregate mass of misery; yet such has rarely been the final cause of punishment in the mind of the legislator: especially in those times of primeval barbarism, in which all systems of legislation have had their rise. Diminution of suffering (viz. on the part of the community injured by the offence) may have been, in any given instance, the result and fruit of punishment; but, even where this is the case, not diminution, but production, of suffering—viz. on the part of the offender,—has but too often, and perhaps in the origin of society, most commonly, been at least the predominant, if not the sole, object and end in view. By the view of such or such a mode of conduct, the feeling of antipathy has been excited in the breast of the man in power: to gratify it, he sets himself to work to plague and torment the individual by whom that unpleasant sensation has been excited: by the spectacle of the suffering so produced, the appetite receives its gratification. At the same time, the same spectacle, exhibiting itself to the eyes or the imagination of those who, were it not for the punishment, might have engaged in the practice of acts of the same sort as the act thus punished, restrains them, to a certain degree, from the thus forbidden practice, and causes acts of that description to be less frequent than they would be. It the mode of conduct whereby the antipathy has been produced be of the number of those, the consequences of which have more of evil in them than of good, the restraint thus produced is beneficial to the community. It is not the less beneficial to the community, for not having been present, in idea, to the mind of the man in power: but neither, on the other hand, from its having been the eventual result of the use he has thus been making of his power, does it follow, by any means, that the idea of it was previously present to his mind. If it had been uniformly present to his mind—if the benefit to the community had been the ultimate object of his exertions—if the suffering of the obnoxious person had, instead of being the ultimate object, been no more than the means, the mediatory object,—the quantum of suffering would have been measured out according to the object—would have been suited to it in quality, would have been adjusted to it in quantity, and would not anywhere have overshot the mark: not a particle of suffering would have been produced, of which the effects had not previously been fully comprehended and accurately ascertained. Of any such accuracy, however—of any such calm and exclusively-appropriated attention to the aggregate interest of the community, and the ends of public justice, the very idea is new—even at the present advanced period in the career of perfectibility and civilization. Much more must the practice have been generally unknown, in those rude times in which the art of legislation was in its cradle—in those times of infantine ignorance, which are still suffered to rule the destiny of riper age.—In this temper of mind, among men whose minds were engrossed by these narrow views, no wonder that any vehicle or mass of mischief, which promised to add anything to the plague, should be snatched up and hurled at the head of the obnoxious offender, with little knowledge of, and as little solicitude about, the contents: laid hold of, and eagerly employed, not only without staying to investigate the consequences, present and future, near and remote, certain and contingent, with reference to the obnoxious individual,—but with as little attention to any effects of which it might be productive on the feelings of other individuals, connected by accident only with the individual by whose offence the passion had been excited—individuals whose suffering, had it been included in the prospect, was not of a nature to contribute anything to the gratification aimed at.
Antipathy, when its exertions are regulated by utility and justice, is the handmaid of justice. Antipathy towards the injurer is the natural, and in a human bosom in some degree even the inseparable consequence of sympathy for the injured.
Unhappily for mankind, the antipathy thus directed has not been most energetic or most busy when the object to which it pointed was the most noxious. They who have diminished the sum of human enjoyment—they who have augmented the sum of human suffering—these find antipathy, sooner or later, not averse to repose: they whose opinions are not our opinions—they whose pleasures are not our pleasures—they whom we oppress, they whom we exclude from their share of common benefits,—these are they who find antipathy implacable. Wherever the praise of virtue is to be earned without the expense of self-denial, the most vicious will never be found the most backward in the chase.
Against the perjurer, his kinsman the forgerer, and the motley fellowship of felons, without staying to distinguish one from another, the door was shut, as it were in a pet, and “for want of thought.” The precedent once made, the opportunity of stigmatizing and plaguing the traitor and the atheist, with his kinsmen the catholic, the quaker, and the excommunicate, was not to be lost. Always remembered, that the more unforeseen exclusions there are, and the more unforeseen exceptions to exclusions, the more arguments; and the more arguments, the more fees.
The outlandish men, the Mahometan, the Hindoo, and the Chinese, against whom the door, if ever shut, has been opened, are almost as far from us as the atheist, and much farther than the catholic or the quaker. But the distance of the outlandish man is his protection. Blind from birth to the lights by which we are illuminated, he is not a rebel to the examples or the arguments, logical or golden, by which we are governed. Nuisances, it is true, all pagans are; but happily, in their case (unless now and then by accident,) the nuisance is at a distance from the nose.*
IMPROPRIETY OF EXCLUSION ON THE GROUND OF MLNTAL IMBECILITY, AND PARTICULARLY OF INFANCY AND SUPERANNUATION.
The last ground of exclusion on the score of deception, to which our consideration is called, is imbecility.
From whichever source it be derived, the propriety of regarding imbecility, upon occasion, as a cause of suspicion, is obvious and indisputable. From whichever source derived, the taking it for a cause of exclusion will be found equally indefensible.
Mental or corporeal, imbecility—a term of relation—admits of degrees ad infinitum. Imbecility, in a variety of respects, is the lot of all created beings. Supposing that, in any degree, imbecility were capable of constituting a proper ground of exclusion, by what mark could that degree be distinguished from any other? From the impossibility of finding an answer to that question, results the impropriety of taking it for a ground of exclusion in any case. In the absence of any universal mark of such a degree of imbecility, to form such opinion as the nature of the case admits of, there is but one rational course, which is, the examining of the proposed witness: which only rational course is the very course that, upon the supposition of the exclusion, is not suffered to be taken.
Infancy, superannuation, insanity: whatever be the modification—connected or unconnected with the circumstance of age—the answer will be still the same.
Between infancy and maturity, it is necessary, for some purposes, to draw a line at a venture; and that line (notwithstanding the wide difference in respect of intellectual strength between individual and individual at the same age)—that line a common one, fixed for every individual at the same place. But to the present purpose, no such line is necessary: no such line can afford any security against deception: no such line can fail of producing, if not deception itself, yet (what is worse) misdecision.
In the case of superannuation, the impracticability of drawing any line for that purpose, without the most palpable absurdity, is plainly obvious. Imbecility, and to such a degree as to make delivery of testimony not merely ineligible but impossible, is the effect of infancy at a certain age. Imbecility, to this purpose, or indeed almost any other, considered as the result of superannuation, is but an accidental concomitant, and indeed a rare one, at any period of old age.
In the case of insanity, a fixed point of time for this purpose is not incapable of being proposed, but incapable of being employed to any good effect: when (for example) a man, having by competent authority been deemed incapable of retaining in his own hands the management of his own affairs, without preponderant prejudice to himself and others, has by competent authority been declared in that state, and placed under the authority of a guardian for that purpose.
Here indeed would be a point of time fixed; but no line could be drawn through it, applicable with any advantage to this purpose. From any degree of comparative unfitness in respect of providence, and the various other faculties necessary to the management of the variety of affairs that occur in human life, no tolerably-assured inference can be drawn respecting the capacity or incapacity of giving a correct and intelligible statement of a single fact which came within the cognizance of a man’s senses. Before the arrangement made, a man may have been completely incapable perhaps of obtaining perception of the fact—perhaps of remembering and giving a correct and intelligible statement of such perception, though obtained:—after the arrangement, competent or incompetent to the general management of his own affairs, to the purpose of delivering testimony it may happen to him to be as completely competent as another man. These observations are brought to view for the purpose of nipping in the hud, if possible, future contingent exclusions on this ground.
Of the three sources and modifications of intellectual imbecility, infancy is the only one that has been taken for exclusion by English law. Accordingly, of the three words mentioned in this view, infancy is the only one, of which, for this purpose, any mention is to be found in the books. For the same reason, imbecility, the word here employed for the purpose of including the three cases, and bringing to view the ground they stand upon, is in these treasures of technical science equally unknown.
In a direct way, infancy cannot at present be employed as a bar to admission, howsoever immature the age. For, with the approbation of the twelve judges, in the case of an infant of no more than seven years old,* and in a case of an infant under seven years old† (how much under is not said,) this evidence was received.
Unfortunately, to the admission given in this case, two conditions precedent have been annexed.
One is, that the child shall have taken an oath; i. e. gone through the same ceremony by which testimonial relation is preceded in other instances. To this operation, had it been performed, there could have been no objection. The misfortune was, that in a certain instance it was omitted: and the consequence was, that, a rape having been committed “on the body of an infant under seven years of age,” the man by whom, if by anybody, the mischief was done, was sent out to commit other rapes.
“The prisoner” (according to the learned reporter‡ ) was convicted; but the judgment was respited, on a doubt [not having any relation to the fact, but] “created by a marginal note to a case in Dyer’s Reports; for these notes having been made by Lord Chief Justice Treby, are considered” (continues the book) “of great weight and authority: and it was submitted” (by Mr. Justice Buller, anno 1779) “to the twelve judges,” whether evidence, under any circumstances whatever, could be legally admitted in a criminal prosecution, except upon oath? Answer: No, not in any case.
2. The other condition was and is, that the “infant appear, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath”—“of the danger and unpiety of falsehood.”∥ For a more particular description of the knowledge and the danger above spoken of in general terms, the following exemplification promises to serve as well as any other that could be substituted to it, since neither the questions nor the answers are fixed by law. Extract from the newspaper called the Times, dated 17th Sept. 1803. Proceedings at the “Old Bailey, Friday, Sept. 16, 1803. Mary Ann Carney, a daughter of the prisoner, only twelve years of age, was examined relative to the idea she entertained of an oath, and the consequences that would result from telling a falsehood. The answer which she returned was exceedingly correct: viz. that if she told a falsehood when on oath, she should be put in the pillory when in this world, and go to the devil when in the next.”
To the putting of a question to the effect above described, I know of no conclusive objection; but, to the deducing, either from silence or from any answer whatsoever which may have been extracted by such a question, a decision pronouncing the exclusion of the testimony, objections occur that seem perfectly unanswerable.
It is requiring of the child, as a condition precedent to her being suffered to give a sort of relation which a child of any age that can speak may be perfectly competent to give, a sort of account which a child of that immature age (to go no farther) seems altogether incompetent to give. The testimony to the relevant point is to a fact of the most simple nature—a fact which, supposing it to have happened, must have presented itself to the senses of the patient, and made a very deep impression on them. The subject-matter of the testimony to the irrelevant point, is a fact of the most complex and abstruse nature: a fact that has been matter of dispute among the maturest, the strongest, and acutest minds.
The relevant question—the question to which (if to any) the child would have been competent to give an answer—was, what she had seen and felt? The irrelevant question prefixed, and (in one event) substituted to it, included a string of questions: what on this most abstruse subject she had been taught, what she had comprehended, and what she had retained? The evidence—the only evidence that, in answer to such an examination, could have been given by such a child, was, not the opinion of the child, but an article of hearsay evidence: the account given by the child of the instruction it had received.*
Observe the effect of the criterion so unhappily employed. The proper question, whether the child has been thus injured, is put aside; and, instead of it, another question is put in, viz. whether the child can say its catechism.
Of the substitution thus made, or preference thus given, of a question foreign to the merits—to the only question belonging to the merits, the following present themselves as the natural consequences:—
1. In some cases, excluding good and true evidence; thus excluding justice, and giving impunity to the guilty. If the child has not been tutored in the requisite manner, and that with effect on the part of the child, as well as diligence on the part of the instructors, the child may have been abused and mangled, the malefactor goes unpunished, laughing at the sages from whose zeal, so little according to knowledge, he has obtained a licence.
2. Placing the fate of the cause (in a capital cause, the life of the prisoner) in a state of complete dependence on the will and pleasure of the person or persons under whose power the child is all the time; its parents, for example. Is it their wish that the cause should be deprived of the benefit of the child’s evidence? The catechism is omitted to be administered, or a sort of anti-catechism administered in the room of it, according to the nature of the case. By a false answer, had the testimony been admitted, the child might have been subjected to punishment as for perjury, and the parents to legal punishment, or at least to disrepute, as for subornation of perjury. On the occasion of the preliminary examination, neither from silence nor from any answer whatsoever—from any such answer as in this view they may have presented, need any such consequences be apprehended. Thus it is, that in this way the full benefit of perjury, or subornation of perjury, may be obtained, without any of the risk: the full benefit of perjury, under the protection, and as a fruit of the wisdom, of English jurisprudence.
3. Holding out to false and mendacious accusation a receipt for fabricating evidence, and, by a false gloss, bestowing on it an appearance of trustworthiness. The supposition that the individual whose fate depends upon his knowledge of the law, should on any occasion be in possession of any such knowledge, may be apt to appear ridiculous; but it is what by accident does now and then happen. The mother of such a child forms a scheme for ruining a male enemy. She employs the requisite time and labour in impressing upon the mind of the child two lessons: the one, a false story of the supposed injury; the other, an appropriate catechism, such as may afford the requisite satisfaction to the pious anxiety of the judge. Delighted with the advances made by the sweet child in the science of theology, to entertain a doubt of its veracity would be impiety in the eyes of jurisprudential science.
The same artificial mark of trustworthiness, which, on the occasion just spoken of, gave such complete satisfaction in the instance of a child of twelve years old, might, in many instances, be imprinted with equal facility and success upon the testimony of a child not above half, or even a third of that age. It might even be imprinted upon the faculties, mental and vocal, of a naturally-accomplished and well-instructed parrot or magpie—with this difference, that, in the case of the unfeathered witness, the questions would require to be in that form to which an advocate is confined when examining a witness of his own side; whereas, in the case of the feathered witness, they would require to be in that more commodious form, with the use of which he is indulged in the examination of a witness on the opposite side.
4. The wording of the test being moreover unfixed, as is the case with everything that has no more determinate foundation to rest upon than that of jurisprudential law,—the testimony of the most trustworthy witness is liable to be sunk by any failure of coincidence between the persuasion of the judge and the persuasion of the child (that is, of its instructors) on a subject thus obscure and delicate. Not to mention extreme cases, such as those of atheists and other unbelievers,—Christians are not wanting, to whose conceptions the devil presents himself in the character of an allegorical and purely ideal personage. If, in the case of the child whose answers on this head gave such complete satisfaction at the Old Bailey, the expectation of an eventual visit to the president of the infernal regions was regarded as an article of faith indispensable to the present purpose,—an answer disaffirming the existence of that tremendous personage, might have been fatal to the merits of the cause. On this supposition, a boy of twelve years, whose good fortune it had been in other respects to have been under the tuition of Dr. Priestley, or any other equally zealous defender of the Christian faith, might, for want of the necessary protection depending upon his own evidence, find himself exposed to the most afflictive personal injuries—or, at the expense of real mendacity, find himself obliged to purchase the factitious reputation of the opposite virtue.
Learned judges have seldom time to introduce any very searching probe into the bowels of the evidence: give them a good round answer, satisfaction enters, and ejects diffidence. “I shall be put into the pillory in this world; I shall go to the devil in the next.”—“Exceedingly correct,” is the observation of the reporter; “exceedingly correct” (unless the reporter were incorrect,)—“exceedingly correct,” or something to that or the like purport or effect, must have been the observation of the judge.
In the individual cases in question, the parties on both sides being low people (for of the labours of counsel on their behalf nothing is said,)—the answer, being thus pointed or rounded, and adapted to the taste of learned judges, passed without further scrutiny. His reverend lordship was not less indulgent to the young theologian, than a friendly examiner at Oxford or Cambridge would have been to a candidate for a degree in divinity, or a friendly chaplain at Lambeth to a candidate for holy orders. But suppose this preliminary examination conducted by the tongue of a well-fee’d advocate: alas! what would all the science of the tender student avail against the sharpness of so penetrating a probe! Conceive a Garrow opposed to the tender novice: how little would it cost him to drag to light either some jeofail in her creed, or the confession of a fact which, in the case of her making a tolerable primâ facie answer, could never be otherwise than true; viz. that she had been tutored for the purpose.
By considerations of the above, or some other nature (that is to say, by some of them,) an impression appears to have been made on reverend minds. Mr. Justice Rooke,* in the case of an unsatisfactory response, adjourned the cause, and committed the young witness to the charge of a clergyman, for religious instruction, in the mean time. This succedaneum to exclusion obtained the approbation of the other judges.
To the impressing upon the memory the lesson to be given by the reverend divine, six months’ interval between circuit and circuit was, if diligently employed, extremely well adapted: it would have been equally well adapted to the rendering the fair and tender reporter more and more perfect in any fabricated story of an injury, supposing no injury to have been sustained. But, on the opposite supposition, for the keeping alive in the infant memory a correct recollection of the transaction in its true and proper colours, the disservice that could not but be done by this long interval presents itself as equally indisputable. In this point of view, an expedient, of the sincerity of which, in its design, it is impossible to entertain a doubt, presents itself as being, in its tendency, extremely well adapted to every purpose of falsehood and injustice, and equally ill adapted to every purpose of truth and justice.
The case is unhappily of no unfrequent recurrence. Justice is wanted for it, if for any case. It is with this as with most other points of procedure: the difficulties it is encumbered with, are chiefly, if not wholly, the work of artifice and science. In itself it presents little difficulty. If mendacity were apprehended, who would not rather have to encounter a raw and juvenile prevaricator, than a reflecting veteran, with length of experience and maturity of age?
Where evidence is concerned, the duty of learned judges (such has ever hitherto been the case) forbade them to do justice. Their duty is to preserve existing rules: and existing rules were made that justice might not be done. In a case of this sort—where evidence of this description was a chief ingredient in the composition of the mass of evidence,—if it were lawful to discover truth, truth might be discovered with at least as much facility and certainty as in the case of ordinary evidence. The fact, if there be anything serious in it, is established by real evidence—by the physical and physiological marks of violence. Here we see one of the perpetually-recurring cases, in which all doubt might so easily be removed, one way or the other, by the examination of the defendant. The examination of the child being taken out of the hearing of its parents, on the one hand, of the defendant on the other—that of the defendant out of the hearing of both,—the light of truth could scarce fail to issue from the collision of the evidence.
Where immaturity of age does not exist in any such degree as to deprive the child of the several degrees of the respective faculties concerned (perception, judgment, memory, and expression) that are respectively necessary to bestow on the testimony the indispensable degree of correctness,—the want of the faculties necessary to the execution of a successful plan of mendacity, gives to such immature testimony, in a very material respect, the advantage of the maturest evidence.
In the immature and tender mind, if the influence of the moral and religious sanctions is apt to be weak, unsteady, and precarious, the mendacity-restraining influence of the physical sanction is stronger then than afterwards. Of memory, if deeply impressed and vigorous (as, in the sort of case in question, when taken fresh, it can hardly fail to be,) the expression is delivered without effort. Invention, under the perpetual condition of not being true, and yet appearing to be true, is the work of anxious and unremitting labour: the less the mind is exercised in the habit of reflection, the more apt will it be to sink under the trial.
By the power of the political sanction, concentrated in this case in all its plenitude in the hands of the domestic ruler, the will of the patient might be acted upon (it is true) with a mendacity-promoting force superior to any that may be expected to bear upon the patient in an adult state, in a state of comparative independence. In few adult minds is any other fear so strongly impressed, as the fear of the rod is, in general, capable of being impressed on the infant mind, by a severe and steady hand. But the disadvantage to which, in this case, the interests of truth and justice are subjected by the weakness of the volitional faculty, may be expected to be at least compensated for by the weakness of the intellectual faculty. The child strives to lie as well as it is able; but under the opposing force of cross-examination, it is unable to lie with effect.*
This much in regard to the case of infancy, which is (as already observed) the only case of imbecility which has been taken for a ground of exclusion by English law.
A case, however, presented itself not many years ago, in which a witness was rejected, not indeed on account of imbecility, but on the analogous ground of a supposed deficiency of appropriate knowledge.
Indictment of a woman for bigamy. Rex v. Eleanor Whetford, Guildford Assizes, Saturday, 9th August 1806, before the Lord Chief-Baron. (Times and Morning Chronicle, 11th August, both in the same words.) The first marriage, or supposed marriage, the parties both English, at Gretna Green, in Scotland. The celebration of the ceremony, in the manner usual in Gretna Green marriages, proved by the habitual operator, the vicepriest, a tobacconist. “David Laing, the Gretna Green parson, was first called. He stated that he performed the ceremony over the prisoner and her husband, in his way; that was, he read nothing, but he said something off the tongue, and authorized them to cohabit together.”
The Lord Chief-Baron said he would not admit this as a marriage. He asked him what he was. He replied, a tobacconist. His lordship observed, that a fellow or two, like the witness, did these sort of things; but both himself and the parties were liable to punishment.
Here, then, the fact was out of dispute: the guilt, in a moral view (to say nothing of the religous,) equally out of dispute: yet the judge acquits the prisoner—acquits her for evermore. Why? Because the state of the law, in respect of the validity of the marriage, was not, according to the conception of the learned judge, proved by a proper sort of person. “He would not receive the law of Scotland from a tobacconist.” What? nor yet from anybody else? That “both the fellow and the parties were liable to punishment,” so much his lordship knew. So much he knew, but exactly at that point stopped his lordship’s knowledge: and, what is more, exactly at that point commenced his determination not to know.
By a special verdict (not to mention other means in use,) he might have been informed: and by the same regular course, information of no slight importance to the whole country might have been gained.
In the case quoted above out of Gwillem,* a step altogether out of the regular course was taken. The evidence appeared not sufficient for conviction: what was the regular consequence? That the prisoner should be acquitted. Instead of that, the trial is put off to the next assizes: the defendant, guilty or innocent, in prison all the time. The proceeding was reported to the twelve judges: it was approved by them: it was therefore legal. Of these twelve reverend and learned persons, the Lord Chief-Baron himself was one. Had he thought of this when trying Eleanor Whetford, he would have learnt that there are middle courses between instant conviction and instant acquittal, if the learned judge thinks proper to employ them.
Delay, and of the same length, in the one case created, in the other case not created. When created, to what end? That an infant, under seven years of age, might, at the option of its parents, be instructed in theology, or in mendacity, or in both; while the memory of the supposed fact had, if real, all that time to fade in. When refused to be created, what were the circumstances under which the omission took place? When the point that might have been aimed at by the delay would have been accomplished by it with the utmost certainty—accomplished to the satisfaction, not only of the public at large, but of the learned judge himself: for (says he) “if you have any advocate of character, I will receive his testimony.” Was there, in the opinion of the learned judge, any such universal perversity at the Scotch bar, as that no advocate of character would be to be found, who, in relation to this point of Scottish law, would be to be prevailed upon to give his opinion (to the present purpose called his “testimony”) for his fee?
In the former case, the defendant [witness] was “a fellow that did those sort of things:” in the Guildford case, “the defendant was a young lady of handsome person and elegant manners; and her appearance at the bar excited considerable sympathy on her behalf in the spectators in court.”
Why mention this circumstance? I mention it, in addition to what has already been said on that subject in another place, that it may be seen so much the more distinctly, how easy it is, under the existing system, for a judge, in meting out justice, to have two measures: one for “fellows,”—another for “young ladies of handsome person and elegant manners:” and with what unhappy success, power, in reality arbitrary, has been covered up from observation by technical forms.
By the description of the person of the defendant in the Guildford case, the recollection of the classical reader is naturally sent back a few thousand years, to the incident which, in all subsequent causes, involved the proceedings of the court of Areopagus in habitual darkness. Of course, “the handsome person and elegant manners” of defendant Eleanor Whetford cannot possibly have exercised on the decision at Guildford any such influence as, in the case of Rex v. Phryne, proved so salutary to the defendant Phryne, and so fatal to justice, under Athenian judicature.† Concerning living judges, where anything of moral blame would attach, fiction herself is silent: but, as over departed ones, history, so, over future contingent ones, fiction at any rate, maintains an undisputed power. Availing myself, then, on the present occasion, of the right of fiction (for, abhorring it as exercised for any purpose of judicature, I have not the least objection to it for the purpose of argument,) the use I make of it is this: viz. that, under the law of England as it now stands (viz. in virtue of the features above described in it,) an English judge is at least as much at liberty as the judge of any other country, in pronouncing his decisions, to consult (not to speak of his pocket) his party, his humour, or his taste; and that, on condition of looking grave all the time, and pronouncing certain combinations of learned words, such as never can be wanting, he will find no more difficulty in acquitting beauties than in browbeating fellows. Not but that, so far as concerns the bare possession of the jus nocendi, truth might serve a man for predicating it of all alike, the living and the dead: it is only when the faculty is to be spoken of as being in actual exercise, that truth will decline to serve you, recommending it to you to employ fiction in her stead.
OF THE RESTORATIVES FOR COMPETENCY, DEVISED BY ENGLISH LAWYERS.
If, directed to no other end than the avoidance of deception, exclusion of evidence is bad altogether, bad to the whole of its extent,—whatever does anything towards the narrowing that extent, is so far good. Such being the effect of the restorative processes now to be considered, the application of them is so far good.
Here, then, it might seem at first sight that they ought to be dismissed; referring to the books for an account of them, instead of seeking to augment the load of this work by superfluous matter.
In two points of view, however, it may be not altogether useless to bestow upon them a further glance.
One is, the proof they afford (if any further proof can be wanting) of the impropriety of the rule, of which, in proportion to their extent, they destroy the efficacy. For in scarce any instance can the propriety of them be defended, but by arguments which prove or assume the impropriety of the rule. The other is, the poison they keep infusing into so commanding a portion of the public mind: the imbecility, or improbity, or both, which, on the part of the class of minds by which such conceits have been hatched, they presuppose, and tend to perpetuate. The laws about witchcraft* were in their day copious and tremendous sources of injustice: the opposite conceit about exorcism might so far have its use, if, in here and there an instance, it served to snatch a victim from the other prejudice, or in any other way to narrow the channel of injustice. But, forasmuch as this quack remedy served to confirm in men’s minds the opinion of the existence of the disease, and thence to give extent and permanency to an opinion which is in itself a most cruel disease, the effect of it was, perhaps, rather pernicious than beneficial upon the whole. What exorcism has been to sorcery and witchcraft, the restorative processes here about to be brought into view still are, in relation to the practice of treating evidence as if it were betwitched, and thence unfit for use.
In a system of law, absurdity, even although no immediate practical consequences are deduced from it, is never a matter of indifference; for whatever is found so exalted is venerated, and whatever is venerated is imitated.
To keep up in the composition of the legal system as large a proportion of absurdity as the stomach of the people can be made to endure, is among the deepest and the most favourite arts of lawyercraft: the security of the impostor is in proportion to the stupidity of the dupe. What renders the device the better adapted to its purpose is, that in the situation in which the lawyer acts, the most stupid and the most acute find equal facility in the practice of it. To adorn a spot with a palace, or strengthen it with a fortress, demands the skill of the architect or the engineer; but to encumber it with rubbish, is an operation to which the rudest hands are competent, especially if stationed on the heights above.
If what follows in this chapter should appear to resemble a sick man’s dream, rather than a work of reflection—should exhibit all the wildness of the Arabian Nights, without any of the beauty,—pardon, gentle reader: such as I have it, give I it unto thee. By me, it has not, any of it been made: all that I have done by it, is to present it in its native colours, after stripping it of the mask of sapience in which lawyercraft and bigotry had dressed it up.
The theory of trustworthiness, untrustworthiness, and restoration of trustworthiness—of health, disease, and mode of cure, so far as concerns the branch of the pathologico-psychological system here in question, has revealed itself here and there, in unconnected rudiments and fragments, to the sagacity of English lawyers. But, with shame be it spoken, never yet was it formed into a complete and consistent whole; never was this interesting branch of the science of evidence placed upon its proper basis, till the genius of Dr. Gall arose, and dazzled with its effulgence the eyes of astonished Europe. By the discoveries of that great man, we are at length enabled to understand what English lawyers have been at.
The faculty of delivering true testimony, depends (like all other faculties, moral and intellectual) upon a particular organ which is the seat of it: a portion or protuberance of the human cranium, which may be called the organ of trustworthiness. Near this precious organ (alas! too near it) are stationed the organs of interest and improbity, two of the principal organs of untrustworthiness. When the appropriate exciting matter correspondent to either of these respective organs applies itself to the system, the organ of untrustworthiness dilates, extends itself, and by its overbearing influence depresses the organ of trustworthiness: on the other hand, no sooner is the appropriate and correspondent instrument of restoration taken in hand, and applied secundum artem, than the tumidity antecedently superinduced upon the organ of untrustworthiness subsides, and the organ of trustworthiness (like a giant refreshed) rises and reassumes its native strength and stature.
Antecedently to this theory, by which all difficulties are now at length cleared up, the ingenuity of English sages had discovered (though by a method not wholly clear of the imputation of empiricism) divers remedies, which, acting upon the peccant and œdematous matter of the organs of untrustworthiness, operate upon the organ of trustworthiness in the character of restoratives.
The annals of psychology afford a case of an unhappy gentlemen, a Mr. Simon Browne, whose misfortune it was one day to feel his immortal soul perish within him.* For a species of mortification so fatal in its extent, the pharmacopœia of that day at least, seems not to have furnished any remedy. Had the disease been confined to that part of the soul which is the seat of veracity, the case would not have been thus desperate. For the restitution of the organ of trustworthiness, Westminister Hall affords no fewer than five specifics. Four of these are drawn from the mechanical school, and consist in the scientific application of four several instruments,† a burning iron, a small seal, a great seal, and a sort of lever called a sceptre. Of the fifth, the appropriate instrument is a tongue.
When the peccant matter acts in the shape of interest, the small seal will suffice: when it is of the nature of improbity, nothing less than the great seal will serve. The sceptre is applied to the same purposes as the great seal; but the scale it acts upon is larger, and indeed indefinite. By the great seal, improbity is discharged in a small stream, as it were by a hand-pump, and from only one bosom at a time: by the sceptre it is discharged as from a pump worked like that at the royal dockyard at Portsmouth, by a steam-engine. The number of bosoms capable of being thus cleared by it, and by a single stroke, is absolutely without limit.
1. Burning Iron.—In the character of a restorative of competency when impaired by improbity, the use of this instrument is confined to felonies, and among those to clergyable felonies. The iron, being made red hot, is applied to the hand: there must be a hissing and an outcry; but of each, any the least degree is sufficient: the outcry must be performed either by the prisoner or a lawful deputy: the hissing may be performed by a piece of bacon. In this case, the modus operandi of the remedy is so obvious, it is almost superfluous to mention it: the virus is burnt out by the actual cautery, exactly like the virus of a mad dog: the organ of untrustworthiness collapses, and its antagonist resumes its post.
Somehow or other, this remedy has of late years grown out of fashion. Instead of undergoing the operation of the cautery, the patient is sent to breathe the air of New South Wales. Whether the competency of such of the sojourners there on whose evidence others of them have been hanged, was previously restored or no, is not as yet known, the question not having been yet laid before the twelve judges. If yes, it must have been by the air of the place, known as it is to be in other respects remarkably salubrious.
The action of this restorative depends upon a variety of circumstances, some of them not immediately obvious to any but learned eyes. The difference (for example) between a felony clergyable [Editor: illegible word] [Editor: illegible word] to unclergyable,‡ turns upon a farthing [Editor: illegible word] if the value of the article stolen, being really 40s., should be set a farthing too high, the operation would fail. This is so well known, that in that case it never has been employed. But if it were really worth eight or ten guineas, and valued at as many shillings (a case as frequent as the other is unexampled,) such undervaluation would not impair the efficacy of the remedy.
The offence may even be precisely the same,—and yet, no burning, no veracity. Theft to the value of twelvepence farthing is grand larceny, and grand larceny is burnable: theft to no greater value than twelvepence is but petty larceny, and petty larceny is not burnable. The grand theft, consequently, when properly punished—that is, properly pardoned—leaves the veracity unimpaired: the petty theft (till a late statute came in aid) destroyed the veracity beyond recovery. Whether, for example, the veracity of a Londoner who had stolen a quartern loaf was recoverable, depended upon the assize of bread in London as settled for that week: for, stealing the self-same loaf under the self-same circumstances, would be the grand or the petty offence, according to the assize.∥
Neither is it to any such cause as the consummation of the punishment, and the change of character inferred from the operation of its reforming powers, that the return of veracity is to be ascribed. Other punishments may run their course; other punishments, whatever may be their duration, may have run their course, and the incredibility remain unextinguished. It is not time, but heat, that works the cure. Neither does whipping possess any such virtue as that of a restorative to veracity: for whipping is not fire. A conviction of an offence, for which whipping is the sentence, expels the veracity; but the execution of the sentence does not in this case bring it back again. To a plain understanding, the incredibility might as well be whipped out as burnt out, or the new credibility whipped in as burnt in: but this, it seems, is not law. There is no purifier like fire.*
Doubts have arisen how an application made to the hand should ever reach the heart. There are some people that will raise doubts out of anything: some have been seen sitting upon benches for years together, without doing anything but raising doubts.
Not many years ago, an ingenious physician of the mechanical school, used to extract “mercury out of the bones.” It was discharged in an uninterrupted stream, by an hydraulic machine of his own invention: for years together, the advertisement was repeated in the London papers. Sir Kenelm Dighy’s method of curing wounds was by applying a small quantity of his sympathetic powder to a few drops of the blood: the cure was performed “without hindrance of business, or knowledge of a bedfellow:” the patient might all the while be at any number of miles distant. This with him was every day’s practice. Vide the cases, as reported by the learned knight himself. These cases are much stronger than the case in question.
2. A Great Seal.—The sort of great seal to be employed on this occasion, is that which is employed for granting pardens. Supposing (what has sometimes happened) the ground of the pardon to have been the persuasion of the convict’s innocence, the restoration of the admissibility would, under the rule of consistency, be a necessary consequence: in every other case, whatever propriety there might be, consistency is out of the question. An experiment was once made by another sort of seal, called a privy seal: the experiment failed: the seal was not found to be big enough.†
The pardon, has it been a pardon upon the merits, or not upon the merits? What sort of a thing is a pardon upon the merits? by what mark is it to be distinguished from a pardon through favouritism, corruption, or caprice? What are the proper grounds for pardon?—What lawyer ever thought it worth his while to put to himself any such question?
All these questions, together with many another that might be added to them on the ground of reason, are, fortunately for the reader, rendered superfluous by two determinations on the ground of positive law. Unless in particular circumstances, exclusion on the score of infamy is not done away by a pardon on the merits; it is done away by a pardon which cannot by any possibility have been a pardon upon the merits: I mean a pardon granted by statute, at a particular time, to all malefactors without distinction. In this case the instrument is,
3. A Sceptre.—The power of this engine, as applied to other purposes, is no secret: in the character of a restorative of trustworthiness, it has never yet received the attention it deserves. In the case of the burning iron, the principle upon which that instrument acts, has, to render it clear, been declared to be the same as in the case of the statute pardon. The sceptre may, to this purpose, be considered as composed of an infinite number of burning irons, applicable at the same time, and (like Sir Kenelm’s sympathetic powder) at a distance, to an indefinite number of hands. Inquiring into each man’s conduct and character would give infinity of trouble. By so simple a contrivance as the application of a sort of rod, called a sceptre, to a roll of parchment, all this trouble is saved.
So far, everything is as it should be. But one consideration presents itself, suggesting melancholy reflections. The power of trustworthiness and untrustworthiness is vested in the same royal and sacred hands as the power of life and death. If it depend upon the pleasure of his Majesty to extirpate the virus of mendacity from any the most corrupted hearts, and in any number, so must it à fortiori in any less tainted hearts—à multo fortiori in all untainted ones. Observe, then, the malice—the habitual and hereditary malice, of the advisers of the crown for so many successive ages: at no greater expense than that of a piece of parchment, with the momentary use of a gilt stick, the expense of which is incurred already, they might banish for ever the spirit of mendacity from the lips of men: they might make all men trustworthy,—and they will not.
It has been exactly with these advisers of the Defender of the Faith and so forth, as with those of the Pope of Rome. Possessing the key, it depended upon him (the successor of St. Peter) to throw the gates of Paradise wide open, as those of Kensington Gardens on a Sunday! Yet did he keep them shut; opening only now and then a wicket, all for the paltry profit of selling tickets one by one.
4. To conclude, and crown this list of cabalistical and preternatural restoratives of trustworthiness when expelled by improbity,—we come to one, the operation of which, though more powerful than all of these put together, is altogether natural, and in “the ordinary course of things.” This (if in this case as in the others, the instrument must be specified) consists of the tongue of an attorney-general, employed in so familiar an operation as that of telling a lie. An assemblage of words, purporting to be a history of the prosecution, with the judgment in which it terminated, is written upon a piece of parchment: this parchment is called a record. Lies there are always in it, or it would not be what it is—errors scarce ever: in the case in question, at any rate, there are none. This will not hinder the attorney-general from coming into court and saying (if he is in the mood,) “I confess errors in the record:” so sure as he does so, so sure is he to be taken at his word.*
It has been already mentioned as among the intermediate ends of lawyer-craft, to corrupt the morals of the people; and among the means to that end, the planting and cherishing in the public breast the love of lies, by causing their salvation to be conveyed to them, on every favourable occasion, through that corrupt channel. On the present occasion, that sinister policy employs itself with peculiar advantage. Pursuing this line of policy, lawyers have heaped mischief upon mischief, that lies upon lies might be employed, and popularity upon popularity gained, by curing it. They have acted as a surgeon would do, who, having a mad dog tied up, should secretly cut or slip the knot, that the animal, on gaining its liberty, might send in to its master a supply of patients. In an endless variety of shapes, they have entailed ruin upon the innocent, and against this ruin they have left no remedy but in a lie: for the guilty, yes; but for the innocent there is no mercy, no safety, but in a lie. A Pandora’s box is opened upon the people; and such is the contrivance of the machine, that in nothing but a lie shall there be power to shut it. Under such a system, where is the bosom that can defend itself against the love of lies?
American savages have been proverbial for cruelty. The savage is mild and placable, compared with the English lawyer. The savage minces or broils his enemy, and is satisfied: the lawyer, at a whisper from above, gluts on the child unborn his unprovoked and mercenary cruelty. No mischief is so unassuageable as that which employs for its instrument a mass of corrupted language. Perillus’s bull, after it had broiled its author, was soon laid upon the shelf. Corruption of blood, the invention of a corrupted understanding, at the suggestion of a corrupted heart—that most barbarous of all abuses of words,—remains, if the lawyer have his will, remains to corrupt justice as well as language, to the end of time.
By a lie from the attorney-general, lawyer-craft’s last shift (such virtue is there in a lie) even this syphilis, so dexterously inoculated and so strictly entailed, receives its cure. The lie is spoken, and the patient is made whole: and not he alone, but in and through him, an endless line of patients.
In this same ultimum remedium, the suitor, to whose indispensable witness (guilty or not guilty) it has happened to have been convicted of perjury, beholds, in one case, his only hope.
I say in one case: for here comes in quibble upon quibble. Prosecute at common law, the inadmissibility is pardonable: prosecute upon the statute (for there is a statute against perjury,) it is not pardonable. How is it then? In this case, and this alone, has the sovereign been ill enough advised to tie up his own hands? Not he, indeed: but the man of law, the corrupter of blood and language, has tied them for him: the same sophist, who, by his quirks, ousted the innocent of pardon in that former case, follows up his blow, and ousts another set of innocent persons, of whom (as in the former case) this, and this alone, is known, viz. their innocence. Such is the doctrine, as it stands in the books. Not that any judge need be bound by it, any further than it is agreeable to him to be bound by it.
Cleansing our lips of the flash language—emerging from the regious of imposture—let us speak, if possible, in plain English. The power of the privy seal to remit punishment, and therewith to restore the faculty of giving testimony, having been questioned on the behalf of the chancellor, was disallowed. But the power of the chancellor, as we have seen, has its limits. Among the officers of the crown, to the power of the attorney-general, and to that alone, these limits oppose no bar. The privy seal (it may be said) being placeable and displaceable by the king, also the chancellor, also the attorney-general,—the distinction is but nominal: in every case it is the power of the king, acting only by different hands. To a second glance, however, there will be a very substantial difference. Each functionary, so long as he retains his office, retains at least a negative upon everything that is done in it. Restrained by any considerations whatever, let the attorney-general for the time being refuse to confess errors,—unless by some strange mishap there should be errors (and then perhaps not in all cases) the testimony would be inadmissible.
Meantime, in this account is assumed a proposition which not improbably may not be true,—viz. that, in virtue of a record, in which, at the suit of the king, conviction and judgment are registered without outlawry,—in the same way as outlawry is done away, in a case where the king is nominal plaintiff, by the king’s attorney-general, by so easy a process as the telling of a lie,—so, in case of conviction and judgment, may all other penal consequences, by the same lie. Perhaps this may not be true. It would be scarce worth walking across the room to see all that has been said about it. When once we steer a hair’s-breadth out of the sphere of every day’s practice, everything is matter of cross and pile. Jurisprudence is not among the subjects of human knowledge: to predicate certainty of it, or anything approaching to certainty—certainty to a discourse which has not so much as a certain word belonging to it, is an abuse of language. Where statute law is, and judges in due subjection, there, and there alone, is certainty.
What the lion has striven in vain to do, may sometimes be done by the mouse. It has already been stated, that, if the parchment is out of the way, the competency of the perjurer sets the gainsayer at defiance. Here, then, is a power of restoration, vested in any hand which, by fair or foul means, with or without risk, can gain a momentary command over the necessary parchment. I throw out this as a hint to the ingenuity of future functionaries, wheresoever stationed and howsoever denominated, who, with or without right, possess the physical faculty of taking in hand these mysterious parchments. Which would be the more astute contrivance,—smuggling the parchment for a few minutes, or confessing errors in it when there are none, and by a man who has never looked at it?
On other occasions, availing themselves of the power they possess de facto over these precious parchments, judges have made out of them for themselves the faculty of leaving a man in possession of a remedy, or depriving him of it, at pleasure. For example, in the case of a prosecution deemed malicious, they begin with so ordering matters, that, without possessing a copy of the record (the record in which the history of the prosecution is supposed to be given,) no man thus injured shall have it in his power to seek redress: this done, they allow him this copy, or withhold it from him at pleasure.
The expedient is so perfectly in the style of jurisprudential science, that, though an innocent man were to be saved by it from punishment, or the widow or the orphan from losing their subsistence for want of evidence, I should not despair of seeing it (if occasion served) employed in practice.
Were any other instance wanting, the practice called withdrawing the record might serve to show that these mysterious tabernacles of pretended truth are never employed in a manner so congenial to their destination, as when, like cups and balls, they are in some way or other made the instruments of trick and subterfuge. By an unlearned reader, a record of the court, being a history of the proceedings of the court, would naturally be supposed to be the work of an official hand, treasured up in official custody, and as little in danger of finding itself in any other than official hands, as the regalia at the jewel-office. Alas! by the mob of gazers whose station is at a distance from the curtain, how imperfect the conceptions formed of the mysteries acted behind it! It is the destiny of these jewels of the jurisprudential treasury to find a Colonel Blood in every plaintiff whose attorney sees reason to urge him to this daring enterprise. By so simple an operation as the filching (anglico-jargonicè, withdrawing) the record,* —the plaintiff, should it be his fortune to discover in time a momentary gap in his evidence, gives himself a right to a new trial: while, under exactly the same necessity, a defendant would be left to take his chance, trying the cause a second time upon affidavit evidence, to know whether it shall be tried a third time upon proper evidence.
Necessity, the mother of invention, will sometimes give birth to expedients, which, when once brought to light, are afterwards adopted by convenience. In the theatre of the ingenious Mr. Astley, the lips of the dramatis personæ being sealed by authority, scrolls upon great occasions, perform the office of sweet sounds. From this humble station might not a hint be taken for the use of a more exalted theatre? A statue (any one of the three kings might serve) attired in the costume of the great officer of the crown, his majesty’s attorney-general: and upon the pulling of a string, a scroll, as it drops, unrolls itself, with this epigraph: “His Majesty’s Attorney-general confesses errors in the record.”
Not that it is in the nature of things, that in any rank (much less in so high a rank) an English lawyer should feel himself less at his ease when saying the thing that is not, than when saying the thing that is: far be it from this pen to dip itself in any such injustice: in that point, there could not be any the smallest difference between the living person and the statue. But a case not unfrequently realized is, that—the habitual station of that high officer being, not in that high court in which, besides the three wooden kings, the “king himself” is, in the intendment of law, always present, but on the other side of the passage—the consequence is, that as often as errors are to be confessed or any other function to be performed by the person of that high officer in that high court, the passage is to be crossed. This is the inconvenience, in tender consideration whereof, the proposal is submitted: it being considered how perfectly light in the balance any quantity of mischief of which non-lawyers are the bearers is, when set against a grain of inconvenience pressing upon any such learned, especially any such eminently learned, pair of feet or shoulders: there needs no rhetoric to impress upon learned minds a due sense of the magnitude and importance of the occasion.
What if the learned gentleman in office for the time being were to come into court once for all, and confess errors in all records present and future; taking, pro hâc vice, lies for errors? Alas! that would never do: in the first place, it would be true; it would rip open the hen whose eggs are fees.
Such are the restoratives to competency under English law.
Is there any part of this theory of restoration capable of being regarded in a serious point of view? Let us try: let us take that which presents the gravest aspect. From the burning iron, the great seal, and the sceptre (it may be said,) no great matters are to be expected. Admitted,—of all these instruments,—admitted, they leave the man as they found him. But the little seal? this is quite another affair: this does not leave a man as it found him: this actually destroys his interest. In a will, a legacy of £50 is given to a man who otherwise would have had nothing: does not that give him an interest in supporting the will by his testimony? He agrees not to accept the legacy; and, in evidence of such agreement, commits it to writing (it is then called a release,) and puts his seal to the release. His right to the £50 is now clearly gone: and is not his interest, the supposed mendacity-promoting motive, gone with it?
No, indeed is it not: still the same imposture, only a little more thickly covered.
In the first place, let it never be out of mind, that, according to the principles of the exclusionists themselves (as far as their principles can be judged of by their practice,) the nostrum never can be of any manner of use; since, be the interest which a man is under ever so great, they admit him not withstanding: they admit him, as we have seen already, when he is an extraneous witness; they admit him over and over again, as will be seen further on, when he is a party.
In the next place, if the state of the mind be at all considered, it is not in the nature of the case, that from the operation (make the most of it) the state of the witness’s mind should experience any material variation.
He releases, he gives up his interest. But whence came this sacrifice? The sacrifice may be to any the greatest amount; but to any the least amount, a sacrifice without an inducement is an effect without a cause. One cause alone constitutes any rational mode of accounting for such a sacrifice,—viz. a treaty between the proposed witness and the party to whose interest the testimony (it is understood) will be serviceable. But if any such treaty has taken place, the witness must have said over and over again, and naturally to, or in the hearing of, more persons than one, So and so is what, at such a time and such a place, I saw: so and so is the testimony I have to give. In other words, over and over again it must have happened to him to have delivered extrajudicially, in the presence of a variety of witnesses, in substance and effect (if not in tenor) the very evidence which, if admitted, he will have to deliver in judicial form and place. How then can it be said, that, when the pecuniary interest is out of him, supposing it really out of him, he is devoid of interest? If that be true which is so decidedly affirmed as well as disaffirmed by English lawyers, that reputation, reputation for truth and honesty, is of no value to a man, then indeed he is devoid of interest: but if reputation be of any the least value to him, if he would part with so much as a farthing to preserve it, then, even in that case, he has still an interest; and an interest adequate, according to them, to the production of mendacity in any case.
Here, then, is an interest, and that an adequate one—an interest not taken away by the operation, but still subsisting. Remaining in all cases, it supersedes the necessity of looking out for any of those modifications which may be produced by any difference in the nature of the interest in different cases. But, for illustration and still more complete satisfaction, let us look a little way into those differences.
In the next place, then, here is a transaction between two parties: an inducement there must have been on each side, or the transaction could not have taken place. On the one hand, unless an advantage in some shape or other accrued to him from it, the releasing witness would not have performed his part in it: and moreover, on the other part, unless some advantage accrued to the party, neither would the party have borne his part. But this advantage to the party could not, in the nature of the case, have been constituted by anything else than a tie of some sort or other, direct or indirect, engaging the witness to persevere, and deliver in court evidence to the same effect as that which had been delivered by him out of court. What particular shape it may have happened to this tie to assume in each individual case, it would in general be fruitless, and always needless, to attempt to investigate.
Take the matter in another point of view. The testimony thus vamped up,—is it true or false? If true, the vamping is of no use: if false, what then is the effect of it?
Useless, then, it is most completely, this lawyer’s pantomime. But though useless, it is far from being inoperative: it is practically mischievous. Though interest never can be a just cause of exclusion, it never can fail to be a just cause of suspicion. The object of the mummery, the effect of it, if it has any (and it is not the lawyer’s fault if it has none,) is to wipe away this suspicion from the mind of the judge; to cause a man, whose testimony is really under the action of interest, to be regarded as if it were not.*
In some obstinate cases, the virtue of the little seal has been found not altogether strong enough for the work assigned to it. An occasion is upon record, in which, maugre all the efforts made by the witness to get rid of the interest, and with it of the matter of untrustworthiness, it stuck to him like birdlime, so that the consequence was, he could not be received. Experiments are not unknown to jurisprudence, any more than to other arts. The milder, howsoever morbid and peccant, matter of interest, might it not be asorbed as it were by the more acrid matter of felonious untrustworthiness? Might not the matter of interest be considered as merged in that of felony? The doctrine of merger* has done in its day greater feats than this. If this be admitted, everything else is plain sailing. Witness, having an interest not purgeable by release, commits a felony: nothing more easy: felonies are committed every day for much worse purposes. Plaintiff prosecutes: witness pleads guilty, puts on a bacon glove, and is burnt in the hand: attorney-general confesses errors in the record; which, whether there are any or not, he is always ready to do, on proper occasions and proper considerations. If one of these operations will not be sufficient, the other will: at any rate, both together.
Thus, if you have the misfortune to tar your coat, put a little butter to the tar, the tar is merged in the butter; rub on a little oil called spirit of turpentine, tar and butter are both merged in it: altogether merge in air, thin air, and your coat is as admissible as it was before.
The pharmacopœia of technical restoratives bears no slight analogy to the impostures that at different periods have been seen acted on the spiritual and medical theatres—to exorcism, animal magnetism, and tractorism.
Of the operations of the exorcist, the success is infallible, in the expulsion of non-existent devils: of those of the magnetist and the tractorist no less so, in the expulsion of non-existent diseases. Of the operations of the lawyer, or rather the knot of lawyers (for here co-operation is necessary,) the success, in respect of the expulsion of the demon of mendacity out of the breast of the patient, is no less assured, provided he was never there: if he has not been there at the moment preceding the operation, neither is he immediately after it. But if at that antecedent instant of time the demon was in actual possession of the premises, is it in the power of the release with its talismanic seal to eject him? The prayers and mandates of the exorcist, the arm of the magnetist, or the brass of the tractorist, would be of equal efficacy.
In these several impostures, as in most others, the respective operators have this in common, that, in the instance of any given individual, it is not always altogether easy to determine to which of two congenial and co-harmonizing classes he appertains—that of the impostors or that of the dupes. As to the jurisprudentialist, his most common state is, perhaps, a sort of middle state between the two. What he knows is, that the pretence makes business and brings fees: what he cares not about is, whether it be true or false.
In one respect, the jurisprudential operators fall far beneath the medical and pneumatological. By the force of imagination, in addition to the non-existent diseases, the magnetizer and the tractorist may not improbably have now and then administered cure or relief to an existent one. By the same powerful though unsteady instrument, it may even have happened to the exorcist to have quieted or soothed real and excruciating perturbations, howsoever derived from an unreal source. But after the acts of exorcism performed by the lawyers for driving the demon of mendacity out of the bosom of the witness,—if so it was that at the time of clapping the seal to the parchment he was in possession of the premises, in any one instance could he ever have been expelled?
On the north side of the Tweed, witnesses (we have seen† ) are subject to a kind of disease called partial counsel. It seems to be a sort of contagion, the matter of which is adherent to the witness’s box. Fortunately, the Pharmacopœia Edinburgensis affords a specific for it: it is of the cathartic class, scientifically (shall we say, or vulgarly?) called a purge. A dozen or two of words are given a man to gabble secundum prœscriptionem, he having first placed himself duly in the place and posture of a man giving evidence,—and the remedy is at once administered.‡
As to the peccant matter, fortunately for the bystanders, it goes off, not by the primæ viæ, like the matter of incredulity in the bosom of Felix, when, as in Hogarth’s print, expelled by the eloquence of the Christian orator; but by a sort of insensible transpiration.
As to its efficacy, the proof of it is in every day’s practice. Not a case in which the specific has ever failed to be administered; not a case in which, after the operation, a patient was ever known to complain of any the slightest remnant of the disease.
[* ]For the Author’s further remarks on this subject, see Vol. VI. p. 105, et seq.
[* ]The case of MacDaniela and Egan, the treacherous thief-takers, or blood-conspirators, will strikingly illustrate the difficulty of obtaining credence in a court of justice for a false story. The blood of the innocent was, in the estimation of these monsters in iniquity, a price not too great to be paid for the illicit gain. The reward was to be obtained at any price: but how was it to be obtained? Not even here by perjury; but by a course still more oblique, and which recommended itself to those veteran practitioners in criminal law as more feasible and more safe. The crime was first to be produced, in order to be related. An imaginary crime would not have served their purpose. The difficulty of framing a tale of this kind, which, though false, should stand the action of counter-interrogation and the other tests, and obtain credit as if it were true, was too formidable to be encountered. Their plan was, first to engage a man really to commit a crime, of the circumstances of which they were apprized: for the convenience of having memory to draw upon, and not mere imagination, in the picture which the prosecution of their scheme called upon them to give of it at the trial, in the character of witnesses. Those who were not to be withholden by any other consideration, were thus withholden from the engaging in a system of perjurious depredation by the thoroughly understood and continually contemplated difficulty and danger of the attempt.
[* ]It seems much more probable, that the exclusion of evidence originated in the ignorance of an uncivilized age, than in the sinister interest of the judge. In a rude state of society, where the art of extracting truth from the lips of a witness is not understood, and where testimonies are counted, not weighed, it seems to have been the universal practice to strike out of the account the testimony of all witnesses who were considered to be under the influence of any mendacity-promoting cause. Exclusionary rules of evidence have nowhere been carried so far as under the systems of procedure which have been the least fettered with technicalities. Take, for instance the Hindoo law of evidence. See Mill’s History of British India, book ii. chap. iv.—Editor.
[* ]See the following Chapters.
[* ]Springs of Action Table. (Vol. I. p. 195.)
[* ]Vide infrà, Chap. V.
[† ]See Book I. Theoretic Grounds; Chap. XI. Moral Causes of Correctness and Completeness in Testimony. (Vol. VI. p. 256.)
[* ]Erskine. Macdowal, vol. ii.—[Two institutional writers of the middle of the eighteenth century. If the doctrine was ever fully admitted, it has for sometime past been in desuetude.—Ed.]
[† ]For their own use, English judges, learned ones at least (as has been so often mentioned,) receive no testimony but in the affidavit shape. But no man can be compelled to give his testimony in this shape. The appropriate summons, the subpænâ ad testificandum, applies not to this shape.
[‡ ]A man who had an estate pur auter vie, the auter vie being the life of one on trial for a capital crime,—would his testimony, in English law, be admitted at the instance of the prisoner?a I leave the question, a maiden one, for the solace of future contingent quibblers. But this I know, that if I were a judge, and it were a way with me upon the bench to do a kindness to a friend’s friend, the man should be hanged or not, as I pleased. Hang or not hang, I should be sure, not only of my job, but of my praise. Loading the gallows, I should have praise for my justice; exonerating it, for my humanity: the job should determine which.
[* ]Many of these local acts now give jurisdiction to the extent of £5.—Ed.
[* ]Under jurisprudential law, in cases in which a penalty is given to the poor of the parish, and thence in exoneration of the rateable inhabitants, the evidence of a parishioner could not be heard to convict a man of an offence subjecting him to a penalty of five shillings thus applicable. Instead of five shillings, say one shilling: examples might be found:—poor’s share, sixpence. Take a parishioner of Marylebone, and compute how much more or less than that of a pin the value of his share of the one shilling or the five shillings would be.
[† ]Peake, 128. Vide infrà, Chap. VII. Restoratives to Competency.
[* ]Both these extravagancies have been set aside by later decisions. A witness cannot now, according to Phillipps, be excluded on account of his believing himself to be interested, nor on account of his considering himself bound in honour to pay the costs. See Phillipps (edit. 1822,) i. 50, 51. The former point, however, seems to be still doubtful. See Phillipps, note (1) to p. 52.
[* ]Part V. Double Account.
[† ]It must be acknowledged, that, in many of the cases in which this exception has been allowed, it has been, from the nature of the case, unquestionably certain that the interest, at least the pecuniary interest, was equal on both sides; thus, the accepter of a bill of exchange is an admissible witness in an action by indorser against drawer, to prove that he had no effects of the drawer’s in his hands; because, whichever way the suit may be decided, he is equally liable. On the other hand, there are many cases in which the interest is not really, but only nominally, the same on both sides. Thus, a pauper is a good witness for either parish, in a settlement case: why? because (we are told) it is the same thing to him whether he has a settlement in one parish or in another: true, it may be the same thing; but it may also be a very different thing, since different parishes give very different allowances to their poor.—Editor.
[‡ ]Lord Chief-Justice Parker rejected the evidence in favour of a hundred, of a hundredor who was so poor as not to be called upon to pay taxes, on the ground of the possibility of his one day becoming rich. 10 Mod. 150.—Ed.
[* ]1 Salk. 283.—Ed.
[† ]This action, however, can be maintained, whether the daughter is of full age or not. In the case of Bennett v. Allcot, Mr. Justice Buller said—“Here instances of actual service are proved, and therefore it is immaterial whether she were of age or not.” 2 T. R. 166.—Ed.
[* ]1 Phil. 64.—Ed.
[† ]The principle laid down in Barlow v. Vowell, Skin. 386, and the celebrated case of Bent v. Baker, 3 T. R. 27, was, that where a person makes himself a party in interest after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the parties of the benefit of his evidence.—Ed.
[‡ ]If the remark were worth insisting on, it acts with more than double the force; the suffering from a given sum lost being so much greater than the enjoyment from the same sum gained. What if the £100 lost were the witness’s all: he could lose no more; his suffering from loss could not be increased. Supposing it so much gained, the gain would be capable of being doubled and doubled, and so on ad infinitum; and still the enjoyment limited enough, as, by universal confession, all human enjoyments are. Laws are in force reprobating simple gaming, and empowering the loser to recover back money thus lost. How innocent is simple gaming, in comparison with such wagering!
[* ]Modern Equity Digest, tit. Evidence, from 2 Vesey jun. 634.
[† ]1 Phil. 23, 123, 254.—Ed.
[‡ ]The above-enumerated exceptions are but specimens.
4. The same person, when he has got a release from him to whom the bond purports to be payable.