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

CHAPTER II.

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

§ 1.

Exclusion of evidence, no security against misdecision.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[* ]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.

[* ]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.

[a ]Leach, 44.—Ed.