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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 V.

IMPROPRIETY OF EXCLUSION ON THE GROUND OF RELIGIOUS OPINIONS.

§ 1.

Atheism an improper ground of exclusion.

In the case of improbity, the seat of the disease is in the will; in the case of atheism, the seat of the disease (such let us call it) is in the understanding. Between the two branches of the mental frame, the communication is indeed most intimate: true; but they must not be confounded. Here the presumption is still more remote and slighter than before. Could the absence of all sinister interest be ascertained, improbity in the case in which the presumption it affords is the strongest,—improbity in the shape of perjury,—would not afford any the slightest presumption of mendacity in any given instance. Perjury is improbity. But atheism is not improbity: that it affords a presumption of improbity, is the utmost that can be said of it by anybody.

From the four sources above mentioned under the name of sanctions, the ideas of pain and pleasure are found operating on each man, with more or less force, in the character of standing tutelary motives: the physical sanction, the moral or popular, the political or legal, and the religious. The atheist is one on whom the religious sanction has no hold. In respect of the extent of the cases in which they respectively operate, the physical is confined within natural limits: the political, by limits more or less casual and scanty: the moral and the religious, though hitherto variable, are altogether unconfined, and capable of covering the whole field. But human conduct depends not merely on the number and nature of the moral forces to the action of which, on the occasion in question, the patient is exposed, but also on the sensibility of his mental frame with reference to each such force. To restrain this man, all four shall be unavailing: to restrain that man, a single one of them shall be sufficient.

It has been seen in Book 1, how much may be said in behalf of the opinion that, in the character of a security for good conduct in the present life, the religious sanction is incomparably less efficient than either the moral or the political. If this opinion be true, it follows, that any presumption of improbity which can be afforded by atheism is very slight.

The question, however, whether in any degree, and in what degree, the absence of religion, or this or that erroneous opinion in regard to it, affords a presumption of improbity, may happily be added to the list of the questions the investigation of which is unnecessary to the present purpose. Why so? Answer: Because the fact of a man’s entertaining any such opinion, is that sort of psychological fact, of the existence of which it is impossible for the judge to obtain sufficient evidence, on any other supposition than that of a degree of veracity, not only exclusive of the supposition of a more than ordinary propensity to mendacity, but in itself so preeminent, as to entitle the testimony of the witness to a more than ordinary share of confidence.

To cause a man for this purpose to be justly regarded as an atheist, the evidence must come either from an extraneous source, or from discourses formerly committed to writing by himself, or from his own lips.

1. Coming from an extraneous source, the persuasive force of the evidence finds two objections to encounter it. In the first place, it is at best but hearsay evidence: on such or such an occasion he declared himself an atheist. In the next place, the time of the fact, supposing it true, is a time past and gone. For aught that appears, the situation he is in in this respect may be parallel to that of a man who at one time had an interest in the cause—but an interest which, before any occasion led him to speak of the fact, was extinct. Once that error was entertained by him: admitted: but in the existence of a God is there anything so perfectly incredible, that when once a man has entertained the contrary persuasion, it is impossible for him ever to cease to entertain it?

2. Let the evidence be derived from former writings of his own. In this case, the first of the two above-mentioned causes of inconclusiveness has no existence; but the second remains; and with the same degree of force as in the former case.

3. Next, and lastly, let the evidence, whichsoever way it turns, come from his own lips. Being about to give his testimony, the first question put to him is, Are you an atheist? Answer, No, or Yes.

First, let it be No. If there be no extraneous evidence to the contrary, the objection is disposed of. But suppose extraneous evidence to the contrary: viz. the hearsay evidence above spoken of. Primâ facie, and in general, hearsay evidence is superseded, and turned into superfluous, equivalent to irrevelant, by the immediate testimony of the person whose supposed extra-judicial discourse is reported by it. But, upon occasion, for infirmation, or even for confirmation, of the immediate and judicial testimony of the supposed extra-judicial discourser, it may still have its use. Comes then the extraneous witness to the proposed witness’s character, and says of him,—On such a day I heard him declare himself an atheist. But be this statement true or false, by it the declaration of the supposed atheist, the declaration whereby he says, I am not an atheist, is not contradicted. Then, when he declared himself at, atheist, he was an atheist: now that he says. I am not an atheist, he is not so. If, indeed he says,—No: on the occasion of which the witness speaks, I did not declare myself an atheist,—then, indeed, contradiction exists; then it is for the judge to make his choice, and say to himself, which of them he will believe. Not that the choice is worth making; for the fact thus to be determined, is the state of the mind of the supposed atheist at that former time: whereas, the fact on which the alleged cause of the exclusion rests, is the state of his mind at the time when called upon to give evidence. If a written document is produced, as above, the contradiction is more conclusive than in the other case; unless the meaning put upon the document, or its genuineness, or its exemption (i. e. the exemption of the act of writing it) from force or fraud, be contested and rendered dubious.

Next, let the answer be. Yes, I am an atheist,* Then, indeed, the man must be an atheist; at any rate he must be taken for an atheist. But shall this answer be regarded as a piece of evidence warranting the exclusion? No, surely; and for this reason. The answer is either false or true. If false, the supposed cause of the exclusion fails in point of fact:—he is not an atheist; he cannot, therefore, with propriety, be excluded on the ground of atheism. If the answer be true, the cause of exclusion fails on another ground: the presumption of mendacity, the presumption grounded on the atheism, is proved to be erroneous.

What is known to every man, cannot be unknown to him;—viz. in the first place, the general odium to which this declaration is likely to expose him: in the next place, to what a degree it cannot but diminish the degree of credence likely to be given to his evidence; i. e. counteract what cannot but be his own purposes, if his evidence be purposely false. On the other hand, if he says, No, I am not an atheist,—the avoidance of that infamy, the preservation of his evidence from that discredit, is certain: mendacity would find the field quite clear; disproof would be impossible. What, then, to the present purpose, is the effect of such a declaration? To show that from the three other sanctions, one or all of them, his will (such is his relative sensibility) experiences that degree of influence, which, on the minds of so large a proportion of mankind, all four together are so frequently insufficient to produce.

Compare this case with the above-mentioned vulgar notion about interest. By that prejudice, men in general are presumed ready to give mendacious testimony by the slightest particle of interest. Here is an interest,—and that an interest corresponding to the moral sanction—an interest corresponding to the fear of shame,—urging him, and with great force, to speak falsely on this occasion, by saying that he is not an atheist, when he is. Urged by a detachment of that force (viz. the force of the moral sanction) to deviate from the path of truth; yet, such is the power of that sanction over his will, there exists still in his mind the main body of that force (for by the supposition all the other three sanctions are out of the question,) acting upon him with such effect as to keep his discourse steady, and preserve him from straying into that sinister path towards which it is thus impelled.

This is no place for the discussion of opinions on the subject of religion; but one general observation belongs strictly to the present purpose. Were an atheist a worse monster than he has ever been supposed to be—bent upon doing mischief in all possible ways, on all possible occasions, and by all possible means, false testimony among the rest,—a rule excluding testimony on the score of atheism would afford no security against the mischief to be apprehended from that source: for, to get rid of the exclusion, he would have no more to do than to put himself to the expense of a falsehood, of which the detection is impossible. On the other hand, the exclusion operates, to a considerable extent, as a safeguard to all criminals, atheists or not, who, when called upon to bear testimony against one another, are willing to make profession of atheism.

Under the exclusions founded on criminality, a man has a licence to commit crimes, but he will not seek it for the purpose: it would be too expensive: he must pay for it, either with his liberty (not to speak of other punishment) or with his life. Under those founded on religion, he may seek it for the purpose: he may take out the licence, and take it out for almost nothing. A knot of any sort of criminals may conspire, and insure to one another impunity, so far as depends on the evidence of each other.

An atheist is a bad witness; but how to know him from another? It must be from his own account of himself, if from anything; for atheism is not written on a man’s forehead. Which, then, is the true atheist?—the man who says he is not an atheist, and is one? or the man who says he is an atheist, and is not so? This pretended atheist (it should seem) must be considered as the true one, for every practical purpose. Those who speak of atheists as lying under the disabilities in question, must, if they mean anything, mean such persons, and all such persons, as exhibit the only marks of atheism which the nature of the case can by any possibility afford. If this be true, here is a receipt, and that an infallible one, whereby any man that pleases may render his testimony unreceivable. The conspirators in one of the assassination plots against Henry the Fourth of France, or his predecessor (I forget which,) made use of the sacrament as an instrument for binding one another to mutual fidelity.* Had they brooded over their plots under the shadow of the English common law, they might have found in atheism, or pretended atheism, a security of rather a different nature, it must be confessed, but applicable to the same use, and of rather superior efficacy. A man might have taken ever so many sacraments, and be never the worse witness: but one good declaration of atheism, made in proper form and in proper company, will be enough to make him as bad as can be desired. When a man has been received to serve the king, if he would serve with safety, he must produce a certificate of orthodoxy, as demonstrated by taking the sacrament according to the forms of the English church.† When a man proposes to join in murdering the king, if he would do the business in safety as against his associates, he must make them furnish him with a certificate of their atheism.

Speculation, quoth somebody. No; cases of evidence excluded on account of atheism have every now and then presented themselves in practice.*

The same strain of imbecility which gave rise to the examination on the voire dire, has, after suffering the question to be put—“Are you an atheist?”—and receiving an answer regarded as amounting to an affirmative, shut the door against the witness; and, in revenge for his veracity, administered injustice instead of justice to the party unfortunate enough to stand in need of this evidence.

Besides the offence against the dictates of reason and justice, the question thus put was repugnant to the known rules of actually existing law. In virtue of a statute still in force,† a declaration to any such effect subjects the individual to penalties of high severity: and the rule, that no man shall, in return to any question, give an answer that can have the effect of subjecting him to any sort of penalty, is the firmly-established fruit of that mischievous superstition, the war upon which will form the business of the ensuing Part.

Question and answer together, the disclosure was such as could not but have given no slight wound to the feelings of a great majority, if not the whole, of the surrounding audience. But the wound had for its authors, not the honest and intrepid witness, but the crew of learned sophists: the attorney who put the insinuation into the brief—the advocate who formed a question out of it,—but, above all, the judge, who suffered such a question to be put.

§ 2.

Cacotheism, or bad religion, an improper ground of exclusion.

How impossible it is from atheism to deduce a proper ground for exclusion, we have just been seeing. From cacotheism, though no good ground, yet a less bad ground might be made, if there were any man whose God commanded him to commit perjury; meaning always by perjury (what it were so much to be wished were always meant by it,) mendacity by party or witness on a judicial occasion—oath or no oath. The gods of the Hindoos, if the translations we have of their scriptures are in this instance to be depended upon, license such mendacity in certain cases.‡

On this, as on every other part of the ground, common law is up in arms against common sense and common honesty, and, by its inconsistencies, against itself.

The God of the Jews, and, by a prodigious and modern stretch of jurisprudential liberality, the God of the Mahometans,∥ and the god of the Hindoos,§ are tolerated as not countenancing perjury.¶ The God who binds men to veracity by broken saucers,* the God of the Chinese,—if they have a god, though it has so often been said they have none,—even he is tolerated: the God of the catholics and the God of quakers is not tolerated. In intendment of law, he either commands perjury, or is, at best, indifferent about it.

No; this account is not yet a correct one: were this the law, it would be reasonable, in comparison with what, when correctly stated, it will be seen to be.

I. Catholics.

Catholics excluded! those Christians, in comparison with whom, those who are not Catholics compose a small minority, Church of England men a still smaller! Catholics, than whom, till as it were of yesterday, there were no other Christians! Evidence of catholics excluded! Are we then commanded by law to believe that there is neither society, nor laws, nor judicature, nor evidence, nor veracity, among the greater part of Christians?†

Catholics excluded! Oh no—not all catholics: no, only those who have exhibited a degree of attachment to the duties of religion; such a degree as, among protestants, would be as rare as martyrdom is rare. A catholic, as such, is not excluded; he must be a popish recusant.‡ An oath is tendered to him—an oath such that the catholic who takes it renounces his religion, denies that he is a catholic: it was devised, and avowedly, for this very purpose. Thus, then, under the spirit of this policy, a distribution is made of catholics into two classes—perjurers and non-perjurers: to all who will perjure themselves, the door of the witness-box is thrown open; against all who will not perjure themselves, it is shut.

It is with catholics, as we have seen it to be with atheists. It is not to atheists that the law is opposed: it is only to such atheists as will not perjure themselves.∥

II. Quakers.

What is known to everybody, is, that as far as anything can be true that is predicated of men in whole classes, the quakers are the most veracious of mankind. Whatever regard men at large are wont to pay to that which they say upon oath, that, and more, is paid by this knot of friends to what is said by them (on the like serious occasions at least) without oath.

By the legislature itself, to say the least, they are not regarded as mendacious. Laws have been made for the express purpose of giving indulgence to their weakness, and admitting them to give evidence without the ceremony. Laws made: yes; but here comes jurisprudence with its distinctions, its perplexities, and its inconsistencies. In with him, on civil ground: out with him, on criminal.* Occasion there has been to say, over and over again, that, as to all criminal cases, where the punishment is not beyond pecuniary, the distinction is nominal and frivolous: since, for the self-same offence or supposed offence—for the self-same cause, a man may be proceded against (at the option of whoever chooses to proceed against him) in the one way or the other. Accordingly, to the extent, at any rate, of this coincidence, the admitting law cannot do right, but it must do wrong. It cannot do right in admitting the quaker in a civil cause, without doing wrong in excluding him when the suit chosen has been one of the criminal sort.

But suppose the punishment ultra-pecuniary: suppose man’s life at stake: suppose a quaker,—that is, a man calling himself a quaker,—wicked enough to attempt murder with his tongue: has not the law suffering enough at its command to punish him with? In non-quakers, law exempts not from punishment murder committed with this instrument. The punishment which, in this case, is too much for a non-quaker,—might not some of it be reserved for the quaker, and serve as a succedaneum to the ceremony to which he is thus recalcitrant?

Conceive a class of men, amounting to many thousands, on whose persons, male or female, and in whose presence, so there be no other witnesses, all other men are left free—have a licence from the law, to commit (so they be but capital) all imaginable crimes,—rape, robbery, burglary, mayhem, incendiarism, and so forth. As to property of persons absent, destroyed or stolen in their presence, this, with so many other trifles of the like nature, is scarce worth adding. I remember the case of a man who, in pursuit of a scheme of plunder, set a house on fire, and who, because nobody had seen what he was about but a quaker, was turned loose again to burn other houses.

Here again comes the same sort of inconsistency as was observed in the case of the atheist and the catholic. Obeying the dictates of conscience, a man remains incredible: violating them, he becomes credible.

III. Persons excommunicated.

You omit paying your attorney’s bill: if the bill is a just one, and you able to pay it, this is wrong of you; but if unable, your lot (of which immediately) will be just the same. If the business done, was done in a court called a common-law court, your attorney is called an attorney, and the case belongs not to this purpose. If in a court called an ecclesiastical court, the attorney is called a proctor: you are imprisoned, and so forth;—but first you must be excommunicated. For this crime, or for any other, no sooner are you excommunicated, than a discovery is made, that, being “excluded out of the church,” you are “not under the influence of any religion:”† you are a sort of atheist. To your own weak reason it appears to you that you believe; but the law, which is the perfection of reason, knows that you do not. Being omniscient, and infallible, and so forth, she knows that, were you to be heard, it would be impossible you should speak true: therefore, you too are posted off upon the excluded list, along with atheists, catholics, and quakers.

Forbidden by his religion, a quaker will not pay tithes: sued in the spiritual court, he is excommunicated. As a witness, he is now incompetent twice over: once by being a quaker, and again by being excommunicate. Why by being excommunicate? Answer, per Mr Justice Buller: “Because he is not under the influence of any religion.”‡

Of the exclusionary system, a part of the mischief (it has been already observed) not to speak of other parts, is, that it involves in it a licence to persons unknown, in unknown numbers, to commit injustice in all imaginable shapes: to commit all imaginable crimes.

To the legislator, having always an interest more or less unmixed in the well-being of the people—being always more or less governed by that interest,—to the real and legitimate legislator, acting as such, it could hardly have happened, unless by sinister counsel, to give in to a system so obviously hostile to the well-being of the people.

By the judge, acting under the fee-collecting system, and under the sinister impulse given to him by that system,—by the judge wielding in disguise the sceptre of legislation, public interest would, at best, and where not exposed to an eye of positive hostility, be regarded, of course, with indifference. When lawyer’s profit (the only serious object of his care) had mischief (in whatever shape—expense, delay, vexation, misdecision, failure of justice) for its immediate cause, or (what comes to the same thing) its inseparable, though but collateral accompaniment,—mischief would be the fruit of his choice: and hence it was by the exclusion of the presence, and thence of the testimony, of the parties, that the foundation of the exclusionary system, that grand support of the fee-collecting system, was laid. When the above-described connexion between lawyer’s profit and non-lawyer’s misery either did not exist, or did not present itself to his view,—then it was that, every now and then, it would happen to him to produce mischief and misery, not purposely, not with malice prepense, but only, as the clown in Dryden’s legend whistled, for want of thought.

In the present case, it would appear, that so wide a deviation from the line of utility and justice was mainly occasioned by the sentiment of antipathy.

Although punishment admits of no other justificative reason, than a probable prospect of the production of greater good—of an increase in the aggregate mass of happiness, of a decrease in the aggregate mass of misery; yet such has rarely been the final cause of punishment in the mind of the legislator: especially in those times of primeval barbarism, in which all systems of legislation have had their rise. Diminution of suffering (viz. on the part of the community injured by the offence) may have been, in any given instance, the result and fruit of punishment; but, even where this is the case, not diminution, but production, of suffering—viz. on the part of the offender,—has but too often, and perhaps in the origin of society, most commonly, been at least the predominant, if not the sole, object and end in view. By the view of such or such a mode of conduct, the feeling of antipathy has been excited in the breast of the man in power: to gratify it, he sets himself to work to plague and torment the individual by whom that unpleasant sensation has been excited: by the spectacle of the suffering so produced, the appetite receives its gratification. At the same time, the same spectacle, exhibiting itself to the eyes or the imagination of those who, were it not for the punishment, might have engaged in the practice of acts of the same sort as the act thus punished, restrains them, to a certain degree, from the thus forbidden practice, and causes acts of that description to be less frequent than they would be. It the mode of conduct whereby the antipathy has been produced be of the number of those, the consequences of which have more of evil in them than of good, the restraint thus produced is beneficial to the community. It is not the less beneficial to the community, for not having been present, in idea, to the mind of the man in power: but neither, on the other hand, from its having been the eventual result of the use he has thus been making of his power, does it follow, by any means, that the idea of it was previously present to his mind. If it had been uniformly present to his mind—if the benefit to the community had been the ultimate object of his exertions—if the suffering of the obnoxious person had, instead of being the ultimate object, been no more than the means, the mediatory object,—the quantum of suffering would have been measured out according to the object—would have been suited to it in quality, would have been adjusted to it in quantity, and would not anywhere have overshot the mark: not a particle of suffering would have been produced, of which the effects had not previously been fully comprehended and accurately ascertained. Of any such accuracy, however—of any such calm and exclusively-appropriated attention to the aggregate interest of the community, and the ends of public justice, the very idea is new—even at the present advanced period in the career of perfectibility and civilization. Much more must the practice have been generally unknown, in those rude times in which the art of legislation was in its cradle—in those times of infantine ignorance, which are still suffered to rule the destiny of riper age.—In this temper of mind, among men whose minds were engrossed by these narrow views, no wonder that any vehicle or mass of mischief, which promised to add anything to the plague, should be snatched up and hurled at the head of the obnoxious offender, with little knowledge of, and as little solicitude about, the contents: laid hold of, and eagerly employed, not only without staying to investigate the consequences, present and future, near and remote, certain and contingent, with reference to the obnoxious individual,—but with as little attention to any effects of which it might be productive on the feelings of other individuals, connected by accident only with the individual by whose offence the passion had been excited—individuals whose suffering, had it been included in the prospect, was not of a nature to contribute anything to the gratification aimed at.

Antipathy, when its exertions are regulated by utility and justice, is the handmaid of justice. Antipathy towards the injurer is the natural, and in a human bosom in some degree even the inseparable consequence of sympathy for the injured.

Unhappily for mankind, the antipathy thus directed has not been most energetic or most busy when the object to which it pointed was the most noxious. They who have diminished the sum of human enjoyment—they who have augmented the sum of human suffering—these find antipathy, sooner or later, not averse to repose: they whose opinions are not our opinions—they whose pleasures are not our pleasures—they whom we oppress, they whom we exclude from their share of common benefits,—these are they who find antipathy implacable. Wherever the praise of virtue is to be earned without the expense of self-denial, the most vicious will never be found the most backward in the chase.

Against the perjurer, his kinsman the forgerer, and the motley fellowship of felons, without staying to distinguish one from another, the door was shut, as it were in a pet, and “for want of thought.” The precedent once made, the opportunity of stigmatizing and plaguing the traitor and the atheist, with his kinsmen the catholic, the quaker, and the excommunicate, was not to be lost. Always remembered, that the more unforeseen exclusions there are, and the more unforeseen exceptions to exclusions, the more arguments; and the more arguments, the more fees.

The outlandish men, the Mahometan, the Hindoo, and the Chinese, against whom the door, if ever shut, has been opened, are almost as far from us as the atheist, and much farther than the catholic or the quaker. But the distance of the outlandish man is his protection. Blind from birth to the lights by which we are illuminated, he is not a rebel to the examples or the arguments, logical or golden, by which we are governed. Nuisances, it is true, all pagans are; but happily, in their case (unless now and then by accident,) the nuisance is at a distance from the nose.*

[* ]Those who do not believe in the existence of a God, or in a future state of rewards and punishments, cannot be admitted as witnesses in England. Omychund v. Barker, 1 Atkyns, 45; Rex v. White, Leach, 430. Gilb. L. E. 145. 2 Hawk. P. C. 434.—Ed.

[* ]Thuani Historia.

[† ]The 9 Geo. IV. c. 17, repeals so much of the Corporation and Test Acts as requires the sacrament to be taken.—Ed.

[* ]The books exhibit several cases of this sort; and from private information it has happened to me to hear of several not mentioned in any book.

[Such a case occurred only a few months ago. One of Carlile’s shopmen had been robbed. His evidence was refused, and justice denied to him, on the ground of what lawyers affectedly called defect of religious principle.—Editor.]

[† ]Since this was written (July 1806) the statute against blasphemy has been repealed;a but the Lord Chancellor (by virtue of that power of superseding the will of the legislature, which judges never hesitate to assume to themselves whenever they need it,) has taken upon himself to declare, that to deny the Trinity is still an offence at common law.—Editor.

[‡ ]Vide supra, Vol. VI. p. 272.

[∥ ]Buller, 292.

[§ ]Ibid.

[¶ ]Moreover, by a still more recent effort of liberality, a Scottish schismatic, under the name of a Covenanter, has also been admitted to give evidence; although instead of kissing the book, as a man of perfect trustworthiness would have done, he contented himself with looking at it, lifting up his right hand at the same time.—[In Mildrone’s case, Leach, 412, “Mr. Justice Gould said, that on the trial of the rebels at Carlisle, in the year 1745, finding it to be the ceremony of a particular sect, he admitted the witness to swear by the form of holding up his hand, without touching the book, or kissing it; and that he afterwards referred the case to the opinion of the twelve judges, who determined that the witness was legally sworn.” On this authority Mildrone was exempted from kissing the book, and was sworn in the following form:—“You swear, according to the custom of your own country, and the religion you profess, that the evidence you shall give between our sovereign lord the king, and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth. So help you God.” If the English judges had thought the matter worth inquiring into, they would have found, that kissing the book is a practice quite unknown in Scotland, unless in deference to the peculiar religious scruples of a witness. The Scottish form does not appear to have any connexion with religious views; and it is probable, that the Scotchmen who objected to the kissing the book, were merely obstinate individuals, annoyed by finding a deviation from the practice to which they had been accustomed. The form of the oath in Scotland is—“I swear by Almighty God, and as I shall answer to God at the great day of judgment, that I will tell the truth, the whole truth, and nothing but the truth, in so far as I know, or shall be asked, on this occasion.” In the revenue department of the Exchequer Court of Scotland, the practice of England was introduced at the Union. In Clerk and Scrope’s History of the Exchequer in Scotland (p. 32,) there is this curious remark—“When witnesses appear in court, those for the plaintiff are first examined on oath, to be taken either conform to the English or Scottish form. The last is sometimes required, as what some people fancy more solemn; and especially, if the first be profanely considered by the witness, only as a custom-house oath, as is but too frequently the case.”—Ed.

[* ]In the pamphlet intituled, “Trial at large of Acon, a Chinese Tartar Sailor, for Murder. Tried at the Admiralty Sessions, holden at the Sessions’ House, in the Old Bailey, on Friday, July 4, 1806, before Sir William Holt, knight, judge of the High Court of Admiralty, and Sir Simon Le Blanc, knight, one of the judges of the Court of King’s Bench. London: Printed for, and sold by, R. Butters, 22 Fetter Lane, Fleet Street.” Page 4, “The oath being repeated in the Chinese language, on the conclusion, a China saucer is presented to the person, which he holds in his right hand, and then dashes to pieces; the signification of which is, that if he does not speak the truth, may his body be dashed to pieces in the same manner as the saucer.”

[† ]Somehow or other, it happens, that for two centuries there is not a case of state perjury on the black side, but religion, and in particular the Church of England religion, is at the bottom of it. The popish plot is a striking example. I am not so shallow or so violent as to conclude from this circumstance, that a man who has a religion is less trustworthy than one who has none, or that the Church of England religion is a worse religion than the Catholic. But one use I cannot refrain from making of these occurrences, against the incapacitation grounded on catholicism. On the Church of England side, I find in history symptoms of perjury of the worst sort: and on the Catholic side none. I am not so mad as to say, that whoever is a Church of England man is on that account unfit to be believed; but thus much I cannot but say, that as far as the indications afforded by the history of England extend, there is more ground for excluding a Church of England man than for excluding a Catholic, or a man of any other sect.

[‡ ]A popish recusant (it may be said) is now become no more than an empty name. To be a popish recusant, a man must be a papist; and there are now no papists: new oaths having been devised, new oaths, which catholics, it is supposed, have no objection to take.a Be it so: but then the class remains open to receive as many as may choose to enter into it. That some would remain attached to it, at least in their hearts, was the very supposition upon which the new laws were grounded. Else, what use for any new laws? else, what is there done by the new laws, that would not have been done much better by a sponge? Why leave the statute-book still incumbered with the engines (rusty as they are) of persecution and intolerance? But antipathy, blind antipathy, must have its pastime saved for it: deprived of flesh and blood, it must still have a mannikin to pummel and vent itself upon. Hogarth has painted cruelty on its progress: this is cruelty on its return. Be this as it may; on this head, so far as exclusion is concerned, whatever thanks may be due to statute law, none are due to jurisprudence.

[∥ ]It is thus with oaths, on every occasion on which they are employed as tests. A line drawn with great ceremony: the population of the country divided by it into two classes. On one side of the line, all those whom the proffered seduction is unable to draw aside from the path marked out by conscience; on the other, all those in whose eyes the most solemn and deliberate assertion is an empty ceremony. On the one side, all those of whom, by the experiment, you are made sure that they will not be perjurers; on the other side, all those, of each of whom, the best that can be said is, that it cannot be known whether he be or be not a perjurer. A line drawn; and to what purpose? That every man of whom it is clear that he will not perjure himself, may be subjected to some disability, some insecurity, some dishonour: that every man, of whom it is matter of doubt whether he is or is not perjured, may be gratified with a share in some monopoly, with the possession of some privilege. In the case of such a law, who will, and who will not, be perjurers, cannot be seen till it is passed and executed; but what may be seen, and that as soon as it has been put to the vote, is, that,—in intention at any rate, and so far as depends upon themselves,—all who vote for it are suborners. Thus it is, that, with religion on their lips, men wage war against morality and human happiness. When will such warfare cease?

[* ]See Vol. VI. p. 381, Note 6.—Ed.

[† ]Buller, 292.

[‡ ]Since these two paragraphs were written (July 1806,) the incompetency of excommunicated persons to give evidence has been removed by the statute 53 Geo. III. c. 127 (Phillipps, i. 26.)—Editor.

[* ]As to the Chinese, they have so evil a reputation, and look so much like athiests, that, had the sine quâ non of solemn justice not been wanting, the breaking of the saucer might have been followed by an examination on the voire dire (supra, p. 404;) and the religion or irreligion of China might have been settled, in some way or other, to the satisfaction of English sages. But Acon was poor, and Acon had no advocate. On this occasion, as on others, homicide being proved, murder was presumed.

[† ]Since this was written (July 1806) the statute against blasphemy has been repealed;a but the Lord Chancellor (by virtue of that power of superseding the will of the legislature, which judges never hesitate to assume to themselves whenever they need it,) has taken upon himself to declare, that to deny the Trinity is still an offence at common law.—Editor.

[‡ ]A popish recusant (it may be said) is now become no more than an empty name. To be a popish recusant, a man must be a papist; and there are now no papists: new oaths having been devised, new oaths, which catholics, it is supposed, have no objection to take.a Be it so: but then the class remains open to receive as many as may choose to enter into it. That some would remain attached to it, at least in their hearts, was the very supposition upon which the new laws were grounded. Else, what use for any new laws? else, what is there done by the new laws, that would not have been done much better by a sponge? Why leave the statute-book still incumbered with the engines (rusty as they are) of persecution and intolerance? But antipathy, blind antipathy, must have its pastime saved for it: deprived of flesh and blood, it must still have a mannikin to pummel and vent itself upon. Hogarth has painted cruelty on its progress: this is cruelty on its return. Be this as it may; on this head, so far as exclusion is concerned, whatever thanks may be due to statute law, none are due to jurisprudence.

[a ]Independent of the statute 9 & 10 Will. III. c. 32, a blasphemous libel was still indictable at common law. Rex v. Carlysle. 3 B. & A. 161. The statute was repealed, so far as regards the denying any one of the persons of the Holy Trinity to be God, by the 53 Geo. III. c. 160. The 3 Jac. I. c. 21, enacts, that if in any play or exhibition of that kind, the name of the Trinity, or of any of the persons of the Trinity, be made use of, in a profane and jesting manner, the offender shall forfeit £10.—Ed.

[a ]See 18 Geo. III. c 60; 31 Geo. III. c. 32; 43 Geo. III. c. 30; and finally, the Act known by the name of the Catholic Emancipation Act, 10 Geo. IV. c. 7.—Ed.