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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 VII.

OF THE RESTORATIVES FOR COMPETENCY, DEVISED BY ENGLISH LAWYERS.

If, directed to no other end than the avoidance of deception, exclusion of evidence is bad altogether, bad to the whole of its extent,—whatever does anything towards the narrowing that extent, is so far good. Such being the effect of the restorative processes now to be considered, the application of them is so far good.

Here, then, it might seem at first sight that they ought to be dismissed; referring to the books for an account of them, instead of seeking to augment the load of this work by superfluous matter.

In two points of view, however, it may be not altogether useless to bestow upon them a further glance.

One is, the proof they afford (if any further proof can be wanting) of the impropriety of the rule, of which, in proportion to their extent, they destroy the efficacy. For in scarce any instance can the propriety of them be defended, but by arguments which prove or assume the impropriety of the rule. The other is, the poison they keep infusing into so commanding a portion of the public mind: the imbecility, or improbity, or both, which, on the part of the class of minds by which such conceits have been hatched, they presuppose, and tend to perpetuate. The laws about witchcraft* were in their day copious and tremendous sources of injustice: the opposite conceit about exorcism might so far have its use, if, in here and there an instance, it served to snatch a victim from the other prejudice, or in any other way to narrow the channel of injustice. But, forasmuch as this quack remedy served to confirm in men’s minds the opinion of the existence of the disease, and thence to give extent and permanency to an opinion which is in itself a most cruel disease, the effect of it was, perhaps, rather pernicious than beneficial upon the whole. What exorcism has been to sorcery and witchcraft, the restorative processes here about to be brought into view still are, in relation to the practice of treating evidence as if it were betwitched, and thence unfit for use.

In a system of law, absurdity, even although no immediate practical consequences are deduced from it, is never a matter of indifference; for whatever is found so exalted is venerated, and whatever is venerated is imitated.

To keep up in the composition of the legal system as large a proportion of absurdity as the stomach of the people can be made to endure, is among the deepest and the most favourite arts of lawyercraft: the security of the impostor is in proportion to the stupidity of the dupe. What renders the device the better adapted to its purpose is, that in the situation in which the lawyer acts, the most stupid and the most acute find equal facility in the practice of it. To adorn a spot with a palace, or strengthen it with a fortress, demands the skill of the architect or the engineer; but to encumber it with rubbish, is an operation to which the rudest hands are competent, especially if stationed on the heights above.

If what follows in this chapter should appear to resemble a sick man’s dream, rather than a work of reflection—should exhibit all the wildness of the Arabian Nights, without any of the beauty,—pardon, gentle reader: such as I have it, give I it unto thee. By me, it has not, any of it been made: all that I have done by it, is to present it in its native colours, after stripping it of the mask of sapience in which lawyercraft and bigotry had dressed it up.

The theory of trustworthiness, untrustworthiness, and restoration of trustworthiness—of health, disease, and mode of cure, so far as concerns the branch of the pathologico-psychological system here in question, has revealed itself here and there, in unconnected rudiments and fragments, to the sagacity of English lawyers. But, with shame be it spoken, never yet was it formed into a complete and consistent whole; never was this interesting branch of the science of evidence placed upon its proper basis, till the genius of Dr. Gall arose, and dazzled with its effulgence the eyes of astonished Europe. By the discoveries of that great man, we are at length enabled to understand what English lawyers have been at.

The faculty of delivering true testimony, depends (like all other faculties, moral and intellectual) upon a particular organ which is the seat of it: a portion or protuberance of the human cranium, which may be called the organ of trustworthiness. Near this precious organ (alas! too near it) are stationed the organs of interest and improbity, two of the principal organs of untrustworthiness. When the appropriate exciting matter correspondent to either of these respective organs applies itself to the system, the organ of untrustworthiness dilates, extends itself, and by its overbearing influence depresses the organ of trustworthiness: on the other hand, no sooner is the appropriate and correspondent instrument of restoration taken in hand, and applied secundum artem, than the tumidity antecedently superinduced upon the organ of untrustworthiness subsides, and the organ of trustworthiness (like a giant refreshed) rises and reassumes its native strength and stature.

Antecedently to this theory, by which all difficulties are now at length cleared up, the ingenuity of English sages had discovered (though by a method not wholly clear of the imputation of empiricism) divers remedies, which, acting upon the peccant and œdematous matter of the organs of untrustworthiness, operate upon the organ of trustworthiness in the character of restoratives.

The annals of psychology afford a case of an unhappy gentlemen, a Mr. Simon Browne, whose misfortune it was one day to feel his immortal soul perish within him.* For a species of mortification so fatal in its extent, the pharmacopœia of that day at least, seems not to have furnished any remedy. Had the disease been confined to that part of the soul which is the seat of veracity, the case would not have been thus desperate. For the restitution of the organ of trustworthiness, Westminister Hall affords no fewer than five specifics. Four of these are drawn from the mechanical school, and consist in the scientific application of four several instruments,† a burning iron, a small seal, a great seal, and a sort of lever called a sceptre. Of the fifth, the appropriate instrument is a tongue.

When the peccant matter acts in the shape of interest, the small seal will suffice: when it is of the nature of improbity, nothing less than the great seal will serve. The sceptre is applied to the same purposes as the great seal; but the scale it acts upon is larger, and indeed indefinite. By the great seal, improbity is discharged in a small stream, as it were by a hand-pump, and from only one bosom at a time: by the sceptre it is discharged as from a pump worked like that at the royal dockyard at Portsmouth, by a steam-engine. The number of bosoms capable of being thus cleared by it, and by a single stroke, is absolutely without limit.

1. Burning Iron.—In the character of a restorative of competency when impaired by improbity, the use of this instrument is confined to felonies, and among those to clergyable felonies. The iron, being made red hot, is applied to the hand: there must be a hissing and an outcry; but of each, any the least degree is sufficient: the outcry must be performed either by the prisoner or a lawful deputy: the hissing may be performed by a piece of bacon. In this case, the modus operandi of the remedy is so obvious, it is almost superfluous to mention it: the virus is burnt out by the actual cautery, exactly like the virus of a mad dog: the organ of untrustworthiness collapses, and its antagonist resumes its post.

Somehow or other, this remedy has of late years grown out of fashion. Instead of undergoing the operation of the cautery, the patient is sent to breathe the air of New South Wales. Whether the competency of such of the sojourners there on whose evidence others of them have been hanged, was previously restored or no, is not as yet known, the question not having been yet laid before the twelve judges. If yes, it must have been by the air of the place, known as it is to be in other respects remarkably salubrious.

The action of this restorative depends upon a variety of circumstances, some of them not immediately obvious to any but learned eyes. The difference (for example) between a felony clergyable [Editor: illegible word] [Editor: illegible word] to unclergyable,‡ turns upon a farthing [Editor: illegible word] if the value of the article stolen, being really 40s., should be set a farthing too high, the operation would fail. This is so well known, that in that case it never has been employed. But if it were really worth eight or ten guineas, and valued at as many shillings (a case as frequent as the other is unexampled,) such undervaluation would not impair the efficacy of the remedy.

The offence may even be precisely the same,—and yet, no burning, no veracity. Theft to the value of twelvepence farthing is grand larceny, and grand larceny is burnable: theft to no greater value than twelvepence is but petty larceny, and petty larceny is not burnable. The grand theft, consequently, when properly punished—that is, properly pardoned—leaves the veracity unimpaired: the petty theft (till a late statute came in aid) destroyed the veracity beyond recovery. Whether, for example, the veracity of a Londoner who had stolen a quartern loaf was recoverable, depended upon the assize of bread in London as settled for that week: for, stealing the self-same loaf under the self-same circumstances, would be the grand or the petty offence, according to the assize.∥

Neither is it to any such cause as the consummation of the punishment, and the change of character inferred from the operation of its reforming powers, that the return of veracity is to be ascribed. Other punishments may run their course; other punishments, whatever may be their duration, may have run their course, and the incredibility remain unextinguished. It is not time, but heat, that works the cure. Neither does whipping possess any such virtue as that of a restorative to veracity: for whipping is not fire. A conviction of an offence, for which whipping is the sentence, expels the veracity; but the execution of the sentence does not in this case bring it back again. To a plain understanding, the incredibility might as well be whipped out as burnt out, or the new credibility whipped in as burnt in: but this, it seems, is not law. There is no purifier like fire.*

Doubts have arisen how an application made to the hand should ever reach the heart. There are some people that will raise doubts out of anything: some have been seen sitting upon benches for years together, without doing anything but raising doubts.

Not many years ago, an ingenious physician of the mechanical school, used to extract “mercury out of the bones.” It was discharged in an uninterrupted stream, by an hydraulic machine of his own invention: for years together, the advertisement was repeated in the London papers. Sir Kenelm Dighy’s method of curing wounds was by applying a small quantity of his sympathetic powder to a few drops of the blood: the cure was performed “without hindrance of business, or knowledge of a bedfellow:” the patient might all the while be at any number of miles distant. This with him was every day’s practice. Vide the cases, as reported by the learned knight himself. These cases are much stronger than the case in question.

2. A Great Seal.—The sort of great seal to be employed on this occasion, is that which is employed for granting pardens. Supposing (what has sometimes happened) the ground of the pardon to have been the persuasion of the convict’s innocence, the restoration of the admissibility would, under the rule of consistency, be a necessary consequence: in every other case, whatever propriety there might be, consistency is out of the question. An experiment was once made by another sort of seal, called a privy seal: the experiment failed: the seal was not found to be big enough.†

The pardon, has it been a pardon upon the merits, or not upon the merits? What sort of a thing is a pardon upon the merits? by what mark is it to be distinguished from a pardon through favouritism, corruption, or caprice? What are the proper grounds for pardon?—What lawyer ever thought it worth his while to put to himself any such question?

All these questions, together with many another that might be added to them on the ground of reason, are, fortunately for the reader, rendered superfluous by two determinations on the ground of positive law. Unless in particular circumstances, exclusion on the score of infamy is not done away by a pardon on the merits; it is done away by a pardon which cannot by any possibility have been a pardon upon the merits: I mean a pardon granted by statute, at a particular time, to all malefactors without distinction. In this case the instrument is,

3. A Sceptre.—The power of this engine, as applied to other purposes, is no secret: in the character of a restorative of trustworthiness, it has never yet received the attention it deserves. In the case of the burning iron, the principle upon which that instrument acts, has, to render it clear, been declared to be the same as in the case of the statute pardon. The sceptre may, to this purpose, be considered as composed of an infinite number of burning irons, applicable at the same time, and (like Sir Kenelm’s sympathetic powder) at a distance, to an indefinite number of hands. Inquiring into each man’s conduct and character would give infinity of trouble. By so simple a contrivance as the application of a sort of rod, called a sceptre, to a roll of parchment, all this trouble is saved.

So far, everything is as it should be. But one consideration presents itself, suggesting melancholy reflections. The power of trustworthiness and untrustworthiness is vested in the same royal and sacred hands as the power of life and death. If it depend upon the pleasure of his Majesty to extirpate the virus of mendacity from any the most corrupted hearts, and in any number, so must it à fortiori in any less tainted hearts—à multo fortiori in all untainted ones. Observe, then, the malice—the habitual and hereditary malice, of the advisers of the crown for so many successive ages: at no greater expense than that of a piece of parchment, with the momentary use of a gilt stick, the expense of which is incurred already, they might banish for ever the spirit of mendacity from the lips of men: they might make all men trustworthy,—and they will not.

It has been exactly with these advisers of the Defender of the Faith and so forth, as with those of the Pope of Rome. Possessing the key, it depended upon him (the successor of St. Peter) to throw the gates of Paradise wide open, as those of Kensington Gardens on a Sunday! Yet did he keep them shut; opening only now and then a wicket, all for the paltry profit of selling tickets one by one.

4. To conclude, and crown this list of cabalistical and preternatural restoratives of trustworthiness when expelled by improbity,—we come to one, the operation of which, though more powerful than all of these put together, is altogether natural, and in “the ordinary course of things.” This (if in this case as in the others, the instrument must be specified) consists of the tongue of an attorney-general, employed in so familiar an operation as that of telling a lie. An assemblage of words, purporting to be a history of the prosecution, with the judgment in which it terminated, is written upon a piece of parchment: this parchment is called a record. Lies there are always in it, or it would not be what it is—errors scarce ever: in the case in question, at any rate, there are none. This will not hinder the attorney-general from coming into court and saying (if he is in the mood,) “I confess errors in the record:” so sure as he does so, so sure is he to be taken at his word.*

It has been already mentioned as among the intermediate ends of lawyer-craft, to corrupt the morals of the people; and among the means to that end, the planting and cherishing in the public breast the love of lies, by causing their salvation to be conveyed to them, on every favourable occasion, through that corrupt channel. On the present occasion, that sinister policy employs itself with peculiar advantage. Pursuing this line of policy, lawyers have heaped mischief upon mischief, that lies upon lies might be employed, and popularity upon popularity gained, by curing it. They have acted as a surgeon would do, who, having a mad dog tied up, should secretly cut or slip the knot, that the animal, on gaining its liberty, might send in to its master a supply of patients. In an endless variety of shapes, they have entailed ruin upon the innocent, and against this ruin they have left no remedy but in a lie: for the guilty, yes; but for the innocent there is no mercy, no safety, but in a lie. A Pandora’s box is opened upon the people; and such is the contrivance of the machine, that in nothing but a lie shall there be power to shut it. Under such a system, where is the bosom that can defend itself against the love of lies?

American savages have been proverbial for cruelty. The savage is mild and placable, compared with the English lawyer. The savage minces or broils his enemy, and is satisfied: the lawyer, at a whisper from above, gluts on the child unborn his unprovoked and mercenary cruelty. No mischief is so unassuageable as that which employs for its instrument a mass of corrupted language. Perillus’s bull, after it had broiled its author, was soon laid upon the shelf. Corruption of blood, the invention of a corrupted understanding, at the suggestion of a corrupted heart—that most barbarous of all abuses of words,—remains, if the lawyer have his will, remains to corrupt justice as well as language, to the end of time.

By a lie from the attorney-general, lawyer-craft’s last shift (such virtue is there in a lie) even this syphilis, so dexterously inoculated and so strictly entailed, receives its cure. The lie is spoken, and the patient is made whole: and not he alone, but in and through him, an endless line of patients.

In this same ultimum remedium, the suitor, to whose indispensable witness (guilty or not guilty) it has happened to have been convicted of perjury, beholds, in one case, his only hope.

I say in one case: for here comes in quibble upon quibble. Prosecute at common law, the inadmissibility is pardonable: prosecute upon the statute (for there is a statute against perjury,) it is not pardonable. How is it then? In this case, and this alone, has the sovereign been ill enough advised to tie up his own hands? Not he, indeed: but the man of law, the corrupter of blood and language, has tied them for him: the same sophist, who, by his quirks, ousted the innocent of pardon in that former case, follows up his blow, and ousts another set of innocent persons, of whom (as in the former case) this, and this alone, is known, viz. their innocence. Such is the doctrine, as it stands in the books. Not that any judge need be bound by it, any further than it is agreeable to him to be bound by it.

Cleansing our lips of the flash language—emerging from the regious of imposture—let us speak, if possible, in plain English. The power of the privy seal to remit punishment, and therewith to restore the faculty of giving testimony, having been questioned on the behalf of the chancellor, was disallowed. But the power of the chancellor, as we have seen, has its limits. Among the officers of the crown, to the power of the attorney-general, and to that alone, these limits oppose no bar. The privy seal (it may be said) being placeable and displaceable by the king, also the chancellor, also the attorney-general,—the distinction is but nominal: in every case it is the power of the king, acting only by different hands. To a second glance, however, there will be a very substantial difference. Each functionary, so long as he retains his office, retains at least a negative upon everything that is done in it. Restrained by any considerations whatever, let the attorney-general for the time being refuse to confess errors,—unless by some strange mishap there should be errors (and then perhaps not in all cases) the testimony would be inadmissible.

Meantime, in this account is assumed a proposition which not improbably may not be true,—viz. that, in virtue of a record, in which, at the suit of the king, conviction and judgment are registered without outlawry,—in the same way as outlawry is done away, in a case where the king is nominal plaintiff, by the king’s attorney-general, by so easy a process as the telling of a lie,—so, in case of conviction and judgment, may all other penal consequences, by the same lie. Perhaps this may not be true. It would be scarce worth walking across the room to see all that has been said about it. When once we steer a hair’s-breadth out of the sphere of every day’s practice, everything is matter of cross and pile. Jurisprudence is not among the subjects of human knowledge: to predicate certainty of it, or anything approaching to certainty—certainty to a discourse which has not so much as a certain word belonging to it, is an abuse of language. Where statute law is, and judges in due subjection, there, and there alone, is certainty.

What the lion has striven in vain to do, may sometimes be done by the mouse. It has already been stated, that, if the parchment is out of the way, the competency of the perjurer sets the gainsayer at defiance. Here, then, is a power of restoration, vested in any hand which, by fair or foul means, with or without risk, can gain a momentary command over the necessary parchment. I throw out this as a hint to the ingenuity of future functionaries, wheresoever stationed and howsoever denominated, who, with or without right, possess the physical faculty of taking in hand these mysterious parchments. Which would be the more astute contrivance,—smuggling the parchment for a few minutes, or confessing errors in it when there are none, and by a man who has never looked at it?

On other occasions, availing themselves of the power they possess de facto over these precious parchments, judges have made out of them for themselves the faculty of leaving a man in possession of a remedy, or depriving him of it, at pleasure. For example, in the case of a prosecution deemed malicious, they begin with so ordering matters, that, without possessing a copy of the record (the record in which the history of the prosecution is supposed to be given,) no man thus injured shall have it in his power to seek redress: this done, they allow him this copy, or withhold it from him at pleasure.

The expedient is so perfectly in the style of jurisprudential science, that, though an innocent man were to be saved by it from punishment, or the widow or the orphan from losing their subsistence for want of evidence, I should not despair of seeing it (if occasion served) employed in practice.

Were any other instance wanting, the practice called withdrawing the record might serve to show that these mysterious tabernacles of pretended truth are never employed in a manner so congenial to their destination, as when, like cups and balls, they are in some way or other made the instruments of trick and subterfuge. By an unlearned reader, a record of the court, being a history of the proceedings of the court, would naturally be supposed to be the work of an official hand, treasured up in official custody, and as little in danger of finding itself in any other than official hands, as the regalia at the jewel-office. Alas! by the mob of gazers whose station is at a distance from the curtain, how imperfect the conceptions formed of the mysteries acted behind it! It is the destiny of these jewels of the jurisprudential treasury to find a Colonel Blood in every plaintiff whose attorney sees reason to urge him to this daring enterprise. By so simple an operation as the filching (anglico-jargonicè, withdrawing) the record,* —the plaintiff, should it be his fortune to discover in time a momentary gap in his evidence, gives himself a right to a new trial: while, under exactly the same necessity, a defendant would be left to take his chance, trying the cause a second time upon affidavit evidence, to know whether it shall be tried a third time upon proper evidence.

Necessity, the mother of invention, will sometimes give birth to expedients, which, when once brought to light, are afterwards adopted by convenience. In the theatre of the ingenious Mr. Astley, the lips of the dramatis personæ being sealed by authority, scrolls upon great occasions, perform the office of sweet sounds. From this humble station might not a hint be taken for the use of a more exalted theatre? A statue (any one of the three kings might serve) attired in the costume of the great officer of the crown, his majesty’s attorney-general: and upon the pulling of a string, a scroll, as it drops, unrolls itself, with this epigraph: “His Majesty’s Attorney-general confesses errors in the record.”

Not that it is in the nature of things, that in any rank (much less in so high a rank) an English lawyer should feel himself less at his ease when saying the thing that is not, than when saying the thing that is: far be it from this pen to dip itself in any such injustice: in that point, there could not be any the smallest difference between the living person and the statue. But a case not unfrequently realized is, that—the habitual station of that high officer being, not in that high court in which, besides the three wooden kings, the “king himself” is, in the intendment of law, always present, but on the other side of the passage—the consequence is, that as often as errors are to be confessed or any other function to be performed by the person of that high officer in that high court, the passage is to be crossed. This is the inconvenience, in tender consideration whereof, the proposal is submitted: it being considered how perfectly light in the balance any quantity of mischief of which non-lawyers are the bearers is, when set against a grain of inconvenience pressing upon any such learned, especially any such eminently learned, pair of feet or shoulders: there needs no rhetoric to impress upon learned minds a due sense of the magnitude and importance of the occasion.

What if the learned gentleman in office for the time being were to come into court once for all, and confess errors in all records present and future; taking, pro hâc vice, lies for errors? Alas! that would never do: in the first place, it would be true; it would rip open the hen whose eggs are fees.

Such are the restoratives to competency under English law.

Is there any part of this theory of restoration capable of being regarded in a serious point of view? Let us try: let us take that which presents the gravest aspect. From the burning iron, the great seal, and the sceptre (it may be said,) no great matters are to be expected. Admitted,—of all these instruments,—admitted, they leave the man as they found him. But the little seal? this is quite another affair: this does not leave a man as it found him: this actually destroys his interest. In a will, a legacy of £50 is given to a man who otherwise would have had nothing: does not that give him an interest in supporting the will by his testimony? He agrees not to accept the legacy; and, in evidence of such agreement, commits it to writing (it is then called a release,) and puts his seal to the release. His right to the £50 is now clearly gone: and is not his interest, the supposed mendacity-promoting motive, gone with it?

No, indeed is it not: still the same imposture, only a little more thickly covered.

In the first place, let it never be out of mind, that, according to the principles of the exclusionists themselves (as far as their principles can be judged of by their practice,) the nostrum never can be of any manner of use; since, be the interest which a man is under ever so great, they admit him not withstanding: they admit him, as we have seen already, when he is an extraneous witness; they admit him over and over again, as will be seen further on, when he is a party.

In the next place, if the state of the mind be at all considered, it is not in the nature of the case, that from the operation (make the most of it) the state of the witness’s mind should experience any material variation.

He releases, he gives up his interest. But whence came this sacrifice? The sacrifice may be to any the greatest amount; but to any the least amount, a sacrifice without an inducement is an effect without a cause. One cause alone constitutes any rational mode of accounting for such a sacrifice,—viz. a treaty between the proposed witness and the party to whose interest the testimony (it is understood) will be serviceable. But if any such treaty has taken place, the witness must have said over and over again, and naturally to, or in the hearing of, more persons than one, So and so is what, at such a time and such a place, I saw: so and so is the testimony I have to give. In other words, over and over again it must have happened to him to have delivered extrajudicially, in the presence of a variety of witnesses, in substance and effect (if not in tenor) the very evidence which, if admitted, he will have to deliver in judicial form and place. How then can it be said, that, when the pecuniary interest is out of him, supposing it really out of him, he is devoid of interest? If that be true which is so decidedly affirmed as well as disaffirmed by English lawyers, that reputation, reputation for truth and honesty, is of no value to a man, then indeed he is devoid of interest: but if reputation be of any the least value to him, if he would part with so much as a farthing to preserve it, then, even in that case, he has still an interest; and an interest adequate, according to them, to the production of mendacity in any case.

Here, then, is an interest, and that an adequate one—an interest not taken away by the operation, but still subsisting. Remaining in all cases, it supersedes the necessity of looking out for any of those modifications which may be produced by any difference in the nature of the interest in different cases. But, for illustration and still more complete satisfaction, let us look a little way into those differences.

In the next place, then, here is a transaction between two parties: an inducement there must have been on each side, or the transaction could not have taken place. On the one hand, unless an advantage in some shape or other accrued to him from it, the releasing witness would not have performed his part in it: and moreover, on the other part, unless some advantage accrued to the party, neither would the party have borne his part. But this advantage to the party could not, in the nature of the case, have been constituted by anything else than a tie of some sort or other, direct or indirect, engaging the witness to persevere, and deliver in court evidence to the same effect as that which had been delivered by him out of court. What particular shape it may have happened to this tie to assume in each individual case, it would in general be fruitless, and always needless, to attempt to investigate.

Take the matter in another point of view. The testimony thus vamped up,—is it true or false? If true, the vamping is of no use: if false, what then is the effect of it?

Useless, then, it is most completely, this lawyer’s pantomime. But though useless, it is far from being inoperative: it is practically mischievous. Though interest never can be a just cause of exclusion, it never can fail to be a just cause of suspicion. The object of the mummery, the effect of it, if it has any (and it is not the lawyer’s fault if it has none,) is to wipe away this suspicion from the mind of the judge; to cause a man, whose testimony is really under the action of interest, to be regarded as if it were not.*

In some obstinate cases, the virtue of the little seal has been found not altogether strong enough for the work assigned to it. An occasion is upon record, in which, maugre all the efforts made by the witness to get rid of the interest, and with it of the matter of untrustworthiness, it stuck to him like birdlime, so that the consequence was, he could not be received. Experiments are not unknown to jurisprudence, any more than to other arts. The milder, howsoever morbid and peccant, matter of interest, might it not be asorbed as it were by the more acrid matter of felonious untrustworthiness? Might not the matter of interest be considered as merged in that of felony? The doctrine of merger* has done in its day greater feats than this. If this be admitted, everything else is plain sailing. Witness, having an interest not purgeable by release, commits a felony: nothing more easy: felonies are committed every day for much worse purposes. Plaintiff prosecutes: witness pleads guilty, puts on a bacon glove, and is burnt in the hand: attorney-general confesses errors in the record; which, whether there are any or not, he is always ready to do, on proper occasions and proper considerations. If one of these operations will not be sufficient, the other will: at any rate, both together.

Thus, if you have the misfortune to tar your coat, put a little butter to the tar, the tar is merged in the butter; rub on a little oil called spirit of turpentine, tar and butter are both merged in it: altogether merge in air, thin air, and your coat is as admissible as it was before.

The pharmacopœia of technical restoratives bears no slight analogy to the impostures that at different periods have been seen acted on the spiritual and medical theatres—to exorcism, animal magnetism, and tractorism.

Of the operations of the exorcist, the success is infallible, in the expulsion of non-existent devils: of those of the magnetist and the tractorist no less so, in the expulsion of non-existent diseases. Of the operations of the lawyer, or rather the knot of lawyers (for here co-operation is necessary,) the success, in respect of the expulsion of the demon of mendacity out of the breast of the patient, is no less assured, provided he was never there: if he has not been there at the moment preceding the operation, neither is he immediately after it. But if at that antecedent instant of time the demon was in actual possession of the premises, is it in the power of the release with its talismanic seal to eject him? The prayers and mandates of the exorcist, the arm of the magnetist, or the brass of the tractorist, would be of equal efficacy.

In these several impostures, as in most others, the respective operators have this in common, that, in the instance of any given individual, it is not always altogether easy to determine to which of two congenial and co-harmonizing classes he appertains—that of the impostors or that of the dupes. As to the jurisprudentialist, his most common state is, perhaps, a sort of middle state between the two. What he knows is, that the pretence makes business and brings fees: what he cares not about is, whether it be true or false.

In one respect, the jurisprudential operators fall far beneath the medical and pneumatological. By the force of imagination, in addition to the non-existent diseases, the magnetizer and the tractorist may not improbably have now and then administered cure or relief to an existent one. By the same powerful though unsteady instrument, it may even have happened to the exorcist to have quieted or soothed real and excruciating perturbations, howsoever derived from an unreal source. But after the acts of exorcism performed by the lawyers for driving the demon of mendacity out of the bosom of the witness,—if so it was that at the time of clapping the seal to the parchment he was in possession of the premises, in any one instance could he ever have been expelled?

On the north side of the Tweed, witnesses (we have seen† ) are subject to a kind of disease called partial counsel. It seems to be a sort of contagion, the matter of which is adherent to the witness’s box. Fortunately, the Pharmacopœia Edinburgensis affords a specific for it: it is of the cathartic class, scientifically (shall we say, or vulgarly?) called a purge. A dozen or two of words are given a man to gabble secundum prœscriptionem, he having first placed himself duly in the place and posture of a man giving evidence,—and the remedy is at once administered.‡

As to the peccant matter, fortunately for the bystanders, it goes off, not by the primæ viæ, like the matter of incredulity in the bosom of Felix, when, as in Hogarth’s print, expelled by the eloquence of the Christian orator; but by a sort of insensible transpiration.

As to its efficacy, the proof of it is in every day’s practice. Not a case in which the specific has ever failed to be administered; not a case in which, after the operation, a patient was ever known to complain of any the slightest remnant of the disease.

PART IV.

VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF VEXATION.

[* ]Vide supra, p. 101, note *.

[* ]Hawkesworth’s Adventurer.

[† ]At an early period, purgation before the ordinary, by those who were entitled to the benefit of clergy, acted as a restoration; but this was abolished by 18 Eliz. c. 7. On this subject, see 1 Phil. 31.—Ed.

[‡ ]This distinction was abolished by 7 & 8 Geo. IV. c. 28.—Ed.

[∥ ]It may be argued on the other side, that though the material subject of the larceny, the loaf, is the same, and everything else the same, the value, and thence the offence, is not the same, since there is the farthings’-worth of difference. This may be very true; and yet the facility of revival on the part of the veracity is not as the magnitude of the offence. It is, on the contrary, in the inverse ratio of that magnitude: for the sole difference in the two instances is confined to the value, and it is in the greater offence that the veracity revives,—it is in the lesser that it is unrevivable. When I say unrevivable, I mean by common law. But no difficulties are too arduous for legislative wisdom. Parliament has spoken; and the farthing’s-worth of difference has been done away. Since the 31st of the late king,a petty larceny no longer incapacitates. Before many centuries are at an end, who knows but that, by farthings’-worths at a time, the whole mass of incredibility may have been removed?

[* ]There are cases, indeed, in which whipping, or fine, or transportation, or any other kinds of punishment, have all the virtue of burning: but this is only when they have been substituted for it by act of parliament: in all other cases, nothing but burning will serve. The benefit of clergy has of itself no virtue: burning, or a statutory substitute, is indispensable. “In Lord Warwick’s case,” says Phillipps (i. 32,) “one who had been convicted of manslaughter, and allowed his clergy, but not burnt in the hand, was called as a witness for the prisoner; and on an objection to his competency, the lords referred it to the judges present, who thought he was not a competent witness, as the statute had made the burning in the hand a condition precedent to the discharge.”—Editor.

[† ]The English of this is, that it belongs to the Chancellor, not to the Lord Privy Seal (or at least not to the Lord Privy Seal alone,) to grant pardons. Understand, in a direct way: for in an indirect way, as above shown,a it belongs to anybody.

[A statute of the last session but one (6 Geo. IV. c. 25,) enacts, that a pardon under the signmanual, and countersigned by a Secretary of State, shall have the same effect as a pardon under the great seal.—Editor.]

[* ]Smith, if that be the man’s name, spelt with a y instead of an i, or with a superfluous e at the end of it. For finding errors, of a sort fit to be confessed, a sure way is to make them; but should there happen to be none, it comes to the same thing.

N.B.—Should these errors, or any other errors, have been made by the attorney’s clerk by whom the indictment was drawn up,—left or made in it, whether to save the trouble of reading over, or to oblige a friend,—they are as good errors as if they had been made by the attorney-general himself.

[* ]See 3 Bl. Com. 357.

[* ]In a case decided in the last reign, decided in the time of Lord Mansfield, a doctrine is laid down, by which, if acted upon, all objection to the competency of a witness on the score of interest is virtually done away. (Peake, 106.) A witness having a natural interest in the event of a cause—having a bequest to gain by the establishment of the validity of a contested will (the bequest of the reversion of a copyhold estate,) offered to give up his interest by giving up his claim to the bequest. The party to the cause—the party principally interested in the establishment of the validity of the will, declined acceptance of the offer. The testimony was admitted as competent, though the offer was not accepted, and the interest remained. From this time, the decision having remained unquestioned, nothing but a mere pantomine can be necessary to the removal of the bar to the competency of a witness on the score of interest. The witness makes his bow to the attorney for the party, and tenders a piece of parchment called a surrender or release: the attorney makes his bow to the witness, and puts by the parchment.

In that instance, perhaps, to obviate the imputation of collusion, the party to whom the surrender was tendered was the heir-at-law, the party prejudiced by the establishment of the will. This party, thinking probably that the effect of his refusal would be to knock up the will, refused to accept the proffered benefit: he would have got this part of the succession, but, by the consequent establishment of the whole will, he would have lost every other part.

Would the decision have been the same, had the surrender tendered been a surrender made for the use of the residuary devisee or legatee? It might have been, with nearly as little danger to truth, and with more benefit to substantial justice. In this case, the party to whom the offer was made, and the party by whom it was made, having each of them a perfect and undefalcated interest in the establishment of the will, the maker of the offer might have been assured beforehand of the non-acceptance of it; which he could not be, in an equal degree, in the other case: since the heir-at-law, rather than have nothing, might in that case have accepted the offer, and in a future similar case certainly would accept it: the devisee had everything to gain by agreeing to refuse the offer, and everything to lose by not agreeing to refuse it; since, if he did not undertake to refuse it, the witness, having no motive for making it, would not make it, and so his testimony could not be received.

[* ]2 Bl. Com. 176.

[† ]Vide supra, p. 396.

[‡ ]This is in allusion to the practice in Scotland of putting two questions to a witness after he is sworn, to the following effect:—“Have you any ill will against the prisoner at the bar?” “Has any one given or promised you anything for what you are going to say on this occasion?”—The second question only is put to witnesses for the defence.—Ed.

[∥ ]It may be argued on the other side, that though the material subject of the larceny, the loaf, is the same, and everything else the same, the value, and thence the offence, is not the same, since there is the farthings’-worth of difference. This may be very true; and yet the facility of revival on the part of the veracity is not as the magnitude of the offence. It is, on the contrary, in the inverse ratio of that magnitude: for the sole difference in the two instances is confined to the value, and it is in the greater offence that the veracity revives,—it is in the lesser that it is unrevivable. When I say unrevivable, I mean by common law. But no difficulties are too arduous for legislative wisdom. Parliament has spoken; and the farthing’s-worth of difference has been done away. Since the 31st of the late king,a petty larceny no longer incapacitates. Before many centuries are at an end, who knows but that, by farthings’-worths at a time, the whole mass of incredibility may have been removed?

[† ]The English of this is, that it belongs to the Chancellor, not to the Lord Privy Seal (or at least not to the Lord Privy Seal alone,) to grant pardons. Understand, in a direct way: for in an indirect way, as above shown,a it belongs to anybody.

[A statute of the last session but one (6 Geo. IV. c. 25,) enacts, that a pardon under the signmanual, and countersigned by a Secretary of State, shall have the same effect as a pardon under the great seal.—Editor.]

[a ]The 31 Geo. III. c. 35, enacts that no person shall be an incompetent witness by reason of a conviction of petty larceny: and the 7 and 8 Geo. IV. c. 29, abolishes this distinction between fraud and petty larceny.—Ed.

[a ]See Book VIII. Technical Procedure; Chap. XIV. Nullification.