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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 IV.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF IMPROBITY.

§ 1.

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.

§ 2.

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.

§ 3.

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.*

§ 4.

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.

[* ]Mendacity, on this occasion, is the only proper subject of regard: the ceremony, without which the most pernicious exercise of mendacity is not perjury, and by means of which the least pernicious is perjury, is not the work of the witness, but of the legislator. In considering, therefore, the pretence of exclusion on this ground, mendacity is the species of improbity to be considered, not perjury. Abolish oaths, you would abolish perjury; but would the mischief of mendacity be diminished?

The mendacity here in question is indeed the mendacity of an individual occupying the station of a judicial witness; mendacity uttered on the occasion of judicature. To this extent, considered as a sort of presumptive evidence of future contingent mendacity in danger of being committed on an occasion of this same sort, mendacity committed on a judicial occasion in a past instance will (it is true) afford a presumption stronger than any single act of mendacity taken at large. But still, it is from mendacity, not from perjury,—from mendacity, whether preconverted or not into perjury,—that the mischief has flowed: it is to that mischief that the degree of improbity is proportionate.

If the profanation of the ceremony were alone regarded, the indication afforded by it of improbity would be very slight, or even evanescent. Such at least must be the case in a country in which this profanation is not only generally, but publicly and notoriously, practised, and at the same time unattended with the sense of shame, by men in elevated stations, and in other respects of unblemished characters. But in England, it has been seen in a former book (Book II Sevurities; Chap. VI. Oath,) that examples of this profanation are thus general, even among men distinguished from the common mass by superior probity. That that ingredient in the composition of perjury should, in any considerable degree, operate as an indication of mendacity, any more than any other species of improbity, is tantamount to a contradiction in terms.

[* ]Where a witness, who at the time of the transaction was an uninterested one, has since given himself an interest in the cause,—as, for instance, by a wager,—English lawyers have decided—and with indisputable justice—that, by this act of the witness, the party shall not be deprived of the benefit of his testimony.a The damage which a man is not allowed to do by an act otherwise so innocent as that of a wager,—shall he be allowed to do it by so criminal an act as perjury?

[It is rather curious, that, while the attesting witness, if he has happened to perjure himself since he signed his name, would not. I suppose, be admitted to prove his own signature, he is admitted to disprove it: “A person who has set his name as a subscribing witness to a deed or will, is admissible to impeach the execution of the instrument:b although by so doing he confesses himself to have been guilty of a crime which differs from the worst kind of perjury only in the absence of oath—from forgery only in name.—Editor.]

[* ]Hawkins says (iv. 355)—“I do not find it clearly settled, whether the pardon of a conviction of perjury, makes the party a good witness;” and he quotes a number of cases bearing upon the point. It seems, that for perjury at common law, the party pardoned may be be a witness; but the 5 Eliz. restrained the king from granting a pardon. Gilb. 145. This statute was very seldom made use of. Indictments for perjury may now be very much simplified, in consequence of the facility afforded by the 23 Geo. II. c. 11.—Ed.

[† ]Leach’s Hawkins, § 103.—[What Hawkins says (iv. 437,) is on the authority of a case in Salk, 46, which is quoted by the Author in the next page.—Ed.]

[* ]4 Leach’s Hawkins.

[† ]Infra, Chap. VII.

[‡ ]In Salkeld, it is “injuries.”

[∥ ]Leach’s Hawkins, § 103.

[* ]As to the evidence of Quakers, see Vol. VI. p. 381, note 6.—Ed.

[† ]These remarks were written about the year 1803. The same diversity still (1839) prevails. It frequently happens, that where the principal witness has been a party concerned in the commission of a theft, or in the subsequent reception of the stolen property, and there is no corroborative testimony to the material facts of the case, the counsel for the prosecution, with the consent of the judge, withdraws the case from the consideration of the jury, after merely stating the nature of the only evidence he had to adduce in support of the charge.—Ed.

[* ]The benefit of clergy was abolished by 7 & 8 Geo. IV. c. 28.—Ed.

[† ]Of late, it seems to be established, that the question, infamy or no infamy, is to be decided by the consideration, not (as formerly) of the nature of the punishment, but of the nature of the offence: and for this decision credit seems to have been taken, as for a conspicuous stride in the career of liberality and improvement. But what becomes of it, when it is considered that the conception even of the offence has no better ground than the observation of the punishments that have been annexed to it? And admitting the distinction to have been ascertained, is there any consistency in supposing that a judge will in any instance have attached an infamous punishment to an offence not infamous?

[* ]Look back, as above, to a few hundred years’ distance in the track of time, you see a whole nation composed of traitors. Look on to a few hundred degrees’ distance in the track of space, you may see a whole colony composed of felons: and felons not in posse merely, like the traitors, but in esse, duly converted into that state in due form of law. Upon the evidence of this or that one of those felons, this or that other of them has from time to time suffered death: murdered, thereby, or not murdered, is a question I leave undiscussed for the amusement of those who sent them there.

Question for a law debating club: Where are we to look for the worst murderers; to the Court of Common Pleas hanging a man upon good evidence?a or to a New South Wales Criminal Court hanging a man upon such bad evidence, that is, upon no evidence?

[* ]Most commonly, evidence of this description has other evidence of some sort or other, though frequently but circumstantial, to support it; indeed, it is seldom that circumstantial evidence can be altogether wanting. But instances have happened in which the decision (the verdict of a jury under the direction of a professional judge) has been grounded on this without any other evidence: such is the credit that has been given to it, and may still be given to it at any time.—[It has never been done in modern times. Rex v. Durham; Smith and Davis’s case, 1 Leach, 478. The judges now require corroborative testimony, not only as to the thing done, but also as to the identity of the person, charged with having done it: in default of which, they always recommend the jury to acquit.—Ed.]

[† ]The reason, in point of common sense, for the exclusion, in the case of a particeps criminis, is thus strong. But the technical reason—the reason to which so much importance is attached on other occasions—failing the reason founded on the probability of mendacity, is thrown aside. In law, it is not criminality that incapacitates, but infamy. Now infamy, like most other words which have been borrowed from the language of ordinary life by the language of law, has two meanings: one meaning when uttered by unlearned—another meaning when by learned lips. When a person who is not a lawyer hears of infamy of character, he usually supposes that it is the same thing as criminality; or, at least, that, when there is no doubt of a man’s having committed a crime, it does not need the assistance of any such thing as a speech, from any such functionary as a judge, to render him infamous. Lawyers, however, have determined that infamy is the consequence, not of the crime, nor even of the conviction, but of the judgment. Now, as the accomplice, who turns what is called king’s evidence, usually has not been tried, he cannot have been convicted, nor consequently can judgment have passed against him. There is no infamy, therefore; and consequently no untrustworthiness.a Let him even have been convicted, and on the clearest evidence, so judgment have not passed, he will speak the truth: but so soon as it has passed, he is unfit to be believed; from that moment he is a liar. It might appear, nevertheless, to common sense, that, other things being the same, it can make very little difference in the probability of a man’s telling the truth, whether or no certain words have been uttered by a judge.—Editor.

[‡ ]The absence of complaint on this ground is the more remarkable, and adds the greater force to the argument, inasmuch as on other grounds the effect of the permanent offers of reward held out by statute has been matter of frequent and just complaint. Rewards to different amounts being held out for crimes regarded as rising one above another in malignity, professional men forbear to inform against a man till his guilt has risen to such a pitch as to entitle the informer to the highest (the £40) reward. It is, or at least is supposed to be, a point of policy not to gather the fruit till it is ripe. The whole system of rewards offered to accomplices in first-rate crimes (a system unknown upon the Continent) has grown out of the exclusion put by English law upon self-criminating testimony: of which in its place.

[* ]One species of evidence, evidence of the most useful kind, is by this exclusionary rule inexorably shut out. The evidence admitted is that of a partaker of the crime, who, in recompense for such evidence, obtains the equivalent of a pardon: indeed, more than the equivalent of what is granted under that name. This man, then, upon requisition, gives information of as many crimes as he has been witness of; or at least of as many as, being known to be acquainted with, he is required to give evidence of. But the persons convicted with or without such bought evidence, have, many of them (perhaps most of them,) their catalogue of crimes of others to which they have been privy, and which, if required and admitted, they might be instrumental in bringing to justice. Such evidence would not always be given: the quality or quantity of inducement necessary to the extraction of it would not always be found. It would, however, sometimes, perhaps not unfrequently, be found: conscience, which so often produces from a man the confession of his own crimes, would naturally have less difficulty in producing the relation of those of other men. Whenever it happened to be produced, a more unsuspicious species of evidence could hardly be found anywhere: were it obtained by hopes of pardon, it would indeed in that case be upon a footing, but no more than upon a footing, with the evidence obtained by the virtual sort of pardon above mentioned: when afforded without hopes of pardon, it would naturally and almost certainly be the pure result of conscience. In capital cases more particularly, corruption would be, practically speaking, out of the question, since, by the supposition, the man would almost immediately be out of the reach of all earthly reward as well as punishment. It is just possible, but not at all probable, that for the sake of eating and drinking a little better during the short interval before death, he should designedly produce the destruction of a fellow-creature.

[* ]As to this fallacy, vide supra, p. 61, subnotea.

[* ]For the alteration of the law in this respect. see Vol. VI. p. 381, Note 2.—Ed.

[* ]In the law of Scotland, there are very few, if there be any, fictiones juris; but their absence may be attributed to the extensive powers of the judges, in earlier times, which rendered any such indirect means of modelling the law to suit their views unnecessary.—Ed.

[* ]E. g. the fiction by which, under the ante-Justinian law, a citizen, whom it was illegal to put to death, was, on his conviction of a capital crime, presumed to be a slave, and so executed;—that by which an invalid testament was litigated, on the assertion that the granter must have been insane;—the jus postliminii, by which citizens taken captive by an enemy were supposed to be still residing in Rome. For notices of some fictions in the civil law, vide Noodt. Probabil. Juris, lib. iii. cap. xii. Huberi Prælectiones Index Fictio.—Ed.

[* ]Where a witness, who at the time of the transaction was an uninterested one, has since given himself an interest in the cause,—as, for instance, by a wager,—English lawyers have decided—and with indisputable justice—that, by this act of the witness, the party shall not be deprived of the benefit of his testimony.a The damage which a man is not allowed to do by an act otherwise so innocent as that of a wager,—shall he be allowed to do it by so criminal an act as perjury?

[It is rather curious, that, while the attesting witness, if he has happened to perjure himself since he signed his name, would not. I suppose, be admitted to prove his own signature, he is admitted to disprove it: “A person who has set his name as a subscribing witness to a deed or will, is admissible to impeach the execution of the instrument:b although by so doing he confesses himself to have been guilty of a crime which differs from the worst kind of perjury only in the absence of oath—from forgery only in name.—Editor.]

[* ]Look back, as above, to a few hundred years’ distance in the track of time, you see a whole nation composed of traitors. Look on to a few hundred degrees’ distance in the track of space, you may see a whole colony composed of felons: and felons not in posse merely, like the traitors, but in esse, duly converted into that state in due form of law. Upon the evidence of this or that one of those felons, this or that other of them has from time to time suffered death: murdered, thereby, or not murdered, is a question I leave undiscussed for the amusement of those who sent them there.

Question for a law debating club: Where are we to look for the worst murderers; to the Court of Common Pleas hanging a man upon good evidence?a or to a New South Wales Criminal Court hanging a man upon such bad evidence, that is, upon no evidence?

[† ]The reason, in point of common sense, for the exclusion, in the case of a particeps criminis, is thus strong. But the technical reason—the reason to which so much importance is attached on other occasions—failing the reason founded on the probability of mendacity, is thrown aside. In law, it is not criminality that incapacitates, but infamy. Now infamy, like most other words which have been borrowed from the language of ordinary life by the language of law, has two meanings: one meaning when uttered by unlearned—another meaning when by learned lips. When a person who is not a lawyer hears of infamy of character, he usually supposes that it is the same thing as criminality; or, at least, that, when there is no doubt of a man’s having committed a crime, it does not need the assistance of any such thing as a speech, from any such functionary as a judge, to render him infamous. Lawyers, however, have determined that infamy is the consequence, not of the crime, nor even of the conviction, but of the judgment. Now, as the accomplice, who turns what is called king’s evidence, usually has not been tried, he cannot have been convicted, nor consequently can judgment have passed against him. There is no infamy, therefore; and consequently no untrustworthiness.a Let him even have been convicted, and on the clearest evidence, so judgment have not passed, he will speak the truth: but so soon as it has passed, he is unfit to be believed; from that moment he is a liar. It might appear, nevertheless, to common sense, that, other things being the same, it can make very little difference in the probability of a man’s telling the truth, whether or no certain words have been uttered by a judge.—Editor.

[a ]Vide supra, p. 403, note †.—Ed.

[b ]Phillipps on Evidence (edit. 1822) i. 41, and the cases there referred to.

[a ]Said to be murder. (Hawkins.)

[a ]This is an exaggeration: the untrustworthiness of the evidence of the accomplice who secures his own pardon, by endeavouring to convict his associates, is pointed out in the books, and acted upon by the judges, as has been seen in the note to the preceding page.—Ed. of this Edition.