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PART IV.: VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF VEXATION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF VEXATION.
VEXATION TO INDIVIDUALS ARISING SOLELY OUT OF THE EXECUTION OF THE LAWS, NOT A PROPER GROUND OF EXCLUSION.
It has already been proved—that is, observed (for surely this is one of those cases in which to observe is to prove)—that there are cases in which exclusion of the evidence, on the ground of the vexation inseparable from the delivery of it, is a proper measure;—viz. where the collateral mischief consisting of the vexation is preponderant over the direct mischief produced by the chance of misdecision or failure of justice resulting from the want of the evidence.
It was, at the same time, and in the same way, proved, that there are cases in which such exclusion, bottomed on that same ground, is not a proper measure;—viz. all cases in which the balance as between the two mischiefs is on the other side.
The several cases in which the mischief of the vexation resulting from the delivery of the evidence is capable of being preponderant over the mischief of misdecision or failure of justice for want of the evidence, have this common property,—viz. that the vexation is produced by circumstances entirely independent of the uneasiness produced by the obligation of making any disclosure, the effect of which is to subject the proposed witness, or any other person, to any punishment or other burthensome obligation, to which it is the intention of the legislator that he should be subjected. It is produced, in all these cases, by circumstances accidental and extrinsic: for example, disproportionate expense by reason of a long and expensive journey or voyage; irreparable loss of time; disclosure of collateral facts, such as a third person has no right by law to be informed of.
Besides these accidental lots of vexation, there is, however, one, which may be considered as naturally, and in the ordinary course of things, attached to the obligation of giving evidence: and that is, the thought of the unpleasant and more or less prejudicial consequences, which the evidence may have the effect of producing, to the prejudice of the proposed witness himself or some other person, by reason of the execution of a judicial decision, of which such evidence may constitute, or help to constitute, the ground. By the idea of such consequences, considered as liable to be produced by the evidence, an unwillingness to deliver it (which is as much as to say, vexation in the event of its being delivered) will, in many cases, be produced. Concerning this unwillingness, indubitable or presumable, a notion has obtained, that, in many if not in all cases in which the existence of it is regarded as certain or probable, it constitutes of itself a sufficient reason for excluding the evidence to which it is regarded as attached. And, in one of the most enlightened nations of Europe, this notion, having been adopted by judges, and, under their authority having formed itself into a rule or maxim of jurisprudential law, has constituted the basis of an arrangement exercising a most extensive and important influence over the whole fabric of the law of procedure. Regarding it as one of the most pernicious and most irrational notions that ever found its way into the human mind. I propose to allot this whole Part to the task of sifting it to the bottom, in the hope that the labour employed in a task at once so important and so new, will not be regarded as ill-bestowed.
To constitute a just ground of exclusion, the lot of vexation here in question must be a mass of that evil over and above what would have been produced by a decision to the same effect grounded on other evidence—on any evidence to which the lot of vexation in question would not have been attached. For, supposing the exclusionary notion to extend to all other evidence—to other evidence at large—to whatever vexation might come to be produced by evidence of whatever description, having the effect of subjecting some person or other to the punishment or other burthensome obligation in question,—to say that, in consideration of the vexation thus resulting, no such evidence ought to be received, would be as much as to say, there ought not to be any such thing as a punishment or other burthensome obligation ever imposed; in a word, that there ought not ever to be any such thing as a law.
But (it may be said) there are such things as bad laws: and in no country is the body of the laws altogether free from them. Now, the effect of the practice which, in opposition to the exclusionary rule in question, forces testimony from persons of all descriptions, without regard to unwillingness and consequent vexation, is, to give to whatever substantive laws it is employed in giving execution to, a degree of efficiency much beyond what they would possess in the opposite case. But, by giving this extraordinary degree of efficacy to all laws (substantive laws) without distinction, it will give the same degree of efficiency to as many bad laws as it happens to the aggregate body of the laws to include: and forasmuch as in every existing system the extent of this mass of bad laws is more or less considerable, the mischief of the practice against which the door is shut by the exclusionary rule would be proportionably great.
In the character of an argument in favour of the exclusionary rule, the defect of this argument will, I imagine, be found apparent upon the face of it. But inasmuch as, when sifted to the bottom, it will be found to lead to discussions of a very delicate and important nature, I do not propose to leave it ultimately in its present state, to stand altogether upon its own strength or weakness. For the present, however, confining the examination to the question immediately appertaining to the present Book, I shall content myself with bringing to view, by way of answer, the following observations: viz.—
1. Supposing that, for the accomplishment of the purpose stated in the argument, the exclusionary rule is, upon the whole, well adapted, it can be so in no other respect than that of its operating in the character of a debilitative upon the whole of that portion of the body of substantive laws to which it applies; weakening their efficacy,—rendering them so much the less efficacious, in respect of the purposes which they respectively have in view. But, so far as this alone is considered as the result of the rule in question, and that result a beneficial one, it is no otherwise of use than as any other institution or arrangement would be of use, that should in an equal degree contribute to weaken the efficacy of the laws.
On one only supposition would the balance of its effects be on the side of benefit; and that is, if the aggregate body of the laws were so constituted, that the mischief resulting from such as are mischievous, outweighs, upon the whole, the good resulting from such as are of a beneficial character. But, that, even under the worst government of which any accounts are extant, the supposition here in question was ever realized, seems altogether improbable: for, on this supposition, a state of anarchy would be less mischievous than—would be preferable to—such a state of government.
2. The person to whom it is proposed to form his opinion, and consequent decision, respecting the propriety of the exclusionary rule, is the legislator. In the political state in question, either that rule is not as yet established, or it is already established. If not, then, considered as addressed to the legislator, the argument stands thus:—
Monitor. In the state subject to your authority there are a multitude of bad laws: to weaken their efficacy, please to establish this exclusionary rule.
Legislator. Excuse me. Of such laws, if any, as in my judgment are bad laws, I shall not content myself with weakening the efficacy; I shall abolish them altogether. In regard to such of them as in my judgment are good laws, I should be sorry to do this, or anything else, that should in any degree weaken their efficacy.
Shift now the scene to a state in which the exclusionary rule has already been established:—
Monitor. In the state subject to your authority there are a multitude of bad laws. It has been proposed to you to abolish the exclusionary rule. Do no such thing: it is a most useful rule; it serves to weaken the efficacy, and thus to diminish the mischievousness, of your bad laws.
Legislator. Thanks for your caution. But being also fortunate enough to have a multitude of good laws, my wish is, to give to those good laws the highest degree of efficiency they are susceptible of. The effect of this exclusionary rule which you are so anxious to preserve, is (taking your own account of it) to weaken the efficacy of whatever laws, good as well as bad, it is applied to. Taken in its natural state, and unless subject to limitations to which you do not propose to subject it, it applies to all laws, and weakens the efficacy of all: it is for this reason I mean that it should no longer have any application to any of the good ones; and it is in that view that I mean to abolish it altogether. As to the bad laws. I shall not content myself with weakening their efficacy: convince me of their badness, and I shall abolish them.
Monitor. But, among those laws which in your judgment are bad ones, and which accordingly you propose to yourself to abolish, may not there be some, which, regard being had to the affections and prejudices of the people, it would appear to you not advisable to abolish?
Legislator. I should be sorry to find any such: but if such there be, there are several courses, any or all of which I should prefer to the giving up the benefit of the increase which the abolition of the rule would give to the force of such of the laws as to me seem good ones.
1. I would cause to be laid before the people the reasons by which my disapprobation of such laws as to me seem bad ones was produced. Having operated upon my mind, probably enough they may operate on other minds; especially as coming from a station from whence, if tolerably well dealt with, men are apt enough to take their opinions as well as their laws. And, moreover, should it so happen, that, by my reasons thus made known, any others should be brought forth, that in my maturer judgment should prove preponderant over mine, I propose to myself to take the opposite course; viz. to go over to the side of the people, instead of their coming over to mine.
2. In the meantime, if I despaired of being able either to bring over the people to my opinion, or to carry over mine to theirs, I could, if I thought it worth while, leave the debilitative rule to apply itself to the particular laws thus appearing to me to be bad ones. Leaving these laws in that state and degree in which I found them, the people would have no reason to complain of me; and, barring the operation of the rule in debilitation of my good laws, I should give to them all the operative force which it is desirable that good laws should possess.
In the case where the evidence in question is of the self-regarding, the self-criminating kind,—if testimony extracted from a man’s own lips were attended with any the smallest degree of probability of unjust suffering on his part, over and above that which results from testimony extracted from an extrancous and indifferent witness, there would then (on the ground of danger of deception and consequent misdecision) be, in point of reason, a ground, not for exclusion indeed, but, however, for suspicion and cantion more than ordinary on the part of the judge. But who does not see that the supposition thus brought to view for the purpose of illustration and argument, is a supposition which holds good, not in the present case, but in the case directly opposite, viz. that of self-serving testimony? with only this difference, that, whereas in that case there is only a chance of the existence of falsehood on that side, there is a certainty of the non-existence of it in the present case. It is not every man that will swerve from the truth for his own advantage: a man of entire probity will not, to the value of a hair’s-breadth. But there is not that man breathing, who, being in his right mind, and having his own interest alone at stake, ever will knowingly swerve from the line of truth to his own disadvantage.
There is but one sort of evidence which, practically speaking, is free from all danger of producing deception by mendacity; and this is the sort of evidence upon which an exclusion has been put by English lawyers.
Two men have each committed an offence, or done, each of them, an improper act of any other description—an act which in both cases is improper in the same degree and the same way. In the instance of one of them, it so happens that the act can be proved against him without resorting to his own testimony: in the other instance, so it happens that, though with the help of his own testimony it would be proved upon him, yet without that help it cannot. Is there any earthly reason why the lot of one of these men should be better than that of the other? why his suffering should be in the smallest degree less? Yet, under the exclusionary rule, one of them suffers not merely less than the other, but absolutely nothing; while his not more guilty fellow suffers the full rigour of the law.
Cross and pile (whether antecedently or subsequently to conviction) would not, by man in general, would not certainly by English lawyers, be regarded as a just and proper method of determining, amongst two or more equally guilty, which should and which should not suffer. Cross and pile, when called in by the common sense of jurymen for their relief in a situation of honest doubt, has been reprobated with indignation by their learned and official directors. But, in the case here in question, acquittal by cross and pile would be a signal improvement, if substituted to acquittal by the force and virtue of this exclusionary rule. In cross and pile, the naturally-sagacious or learnedly-instructed knave would not behold any means of safety more open to himself than to his less instructed fellows: whereas, it is the nature of the exclusionary rule to operate as a licence for delinquency to all those whose astuteness, seconded by ordinary good fortune, enables them to take advantage of it. Who shall count the multitudes that day after day have been acting under this licence? For it is among the properties of this invitation to guilt, that those who act under it with most felicity and success are those who enjoy the ulterior advantage of not being known to have acted under it.
That, under the protection of this licence, the impunity of the wicked may be as complete, and the encouragement to wickedness as inviting as possible, malefactors and lawyers have joined in another practice. Under circumstances of notorious delinquency, liberated in virtue of this or any other incident foreign to the merits, malefactors may be seen everywhere holding their heads high, and (as often as occasion presents itself) assuming the port and language of injured innocence. Accordingly, when a delinquent has been thus fortunate, to speak of him in the character of a delinquent is an offence punished, and with equal rigour, as in the object of the imputation had been a character of the purest innocence. In a place where (happily for the existence of society) the offensiveness of unwelcome truth to the feelings of evil-doers does not enable them to transfer upon their censors the punishment due to themselves, what a clamour was once raised by the appellation of acquitted felons! As if an acquitted felon was a sort of animal no more capable of finding itself in existence on English ground, than a spider was supposed be in Ireland. All this while, under the genial influence of this and so many other rules so ingeniously and successfully directed to this end, acquitted felons and acquitted malefactors of all sorts and sizes are as much at home in the British Isles, as venomous serpents in Guiana, or crocodiles in the Nile. In a relaxed constitution of the body politic, acquitted and unprosecuted malefactors of all kinds are no less congenial to that artificial body, than, in a constitution of the same character, the tænia, the lumbricus, and the ascaris, are to the natural body. In one particular, the parallel discovers an unhappy failure. In the natural body, it is not in the power, and as little (let us hope) in the wish, of the licensed practitioner, to propagate the breed of the vermin to the plague of which it is exposed: whereas, in the political body, by the instruments which there has been such frequent occasion to bring to view, we have been seeing the hand of the practitioner occupied, with unwearied perseverance, in sowing the seeds of wickedness in every imaginable shape.
ENUMERATION OF THE SORTS OF EVIDENCE IMPROPERLY EXCLUDED ON THIS GROUND BY ENGLISH LAW.
Various are the points of view in which the vexation, that in this case appears to have been taken for the ground of the exclusion, has been contemplated: various the correspondent modifications of which the evidence, regarded as the cause of such vexation, has been considered as susceptible; and the correspondent specific denominations that either have been, or (to express those several points of view, and the consequent arrangements they have given birth to) require to be, respectively affixed to those modifications. Numerous are even the sources from which those modifications have been derived:—
1. The nature of the consequences of the evidence in respect of good and evil. Hence the distinction—evidence of a nature to serve, evidence of a nature to disserve.
2. The identity or diversity, of the person yielding the evidence, and the person affected by the consequence of it. Hence the modifications expressed or expressible by the appellatives self-serving, and self-disserving, or self-prejudicing.*
3. His station in the cause: whether that of a party or an extraneous witness. No appellatives deduced from this circumstance; but, in respect of the legal arrangements, much importance given to it.
4. Nature and denomination of the suit, on the occasion of which the evidence is proposed to be delivered; viz. criminal, or non-criminal—commonly called civil.
5. Nature of the evil constituting the vexation; viz. the evil or disservice produced by the disclosure. From this source, and the second and fourth taken together, come the modifications expressible by the several appellatives self-criminative or self-inculpative, self-disgracing, self-discrediting, or simply self-onerative (as where blame is out of the question.)
6. The nature of the affection which is the seat of the vexation; viz. whether self-regarding or sympathetic.
Where one person (a trustee) stands charged with the interests of another (a fidei-committee or cestuy que trust) as in the case of guardian and ward, factor (or agent) and principal, lawyer and client (especially where the existence of the relation is voluntary on the part of the trustee,) an affection of sympathy, of which the fidei-committee is the object, may naturally enough be supposed to exist in the bosom of the trustee. This being assumed, a consequence is, that where, from the evidence delivered by the trustee, a vexation or prejudice of the self-regarding kind may be expected to befall the fidei-committee, a proportionable (howsoever short of equal) vexation of the sympathetic kind may, in like manner, be expected to find its way from the same source into the breast of the trustee. To this head may be referred the most plausible reason that has been found for the exclusion that has been put upon what, taking the only appellative in use, and which is of the dyslogistic, or vituperative cast, may be called trust-breaking or trust-betraying evidence.
Where, a number of individuals living together in the character of members of the same family (as is the case with husband and wife, parent and child,) evidence delivered by one member would be a cause of vexation to another,—vexation in a mixed mass, partly sympathetic, partly self-regarding, is liable to find its way into the bosoms of these several members from that source. In this vexation we see the most plausible reason that has been found for the exclusion that has been put upon some of the modifications, and some only, of that which may be termed family-peace-disturbing or family-disturbing evidence.
When the effect of a lot of self-criminative evidence has been to produce the conviction of him by whom it has been delivered, it is capable of receiving the appellation of self-convicting evidence. But, forasmuch as, antecedently to conviction, this effect, not having as yet taken place, can only be matter of expectation and conjecture, the appellation could not, without impropriety, be applied to self-criminative evidence at any such antecedent point of time.
Laying together the modifications deduced from the several sources above mentioned, we shall find six species, each presenting itself as entitled, on some account or another, to a separate consideration. These are—
1. Self-criminative, reaching beyond self-onerative.
2. Self-onerative, and self-criminative not reaching beyond it.
The effect of the testimony will be in some respects different, and the reasons for and against the admission of it stand upon a correspondently different footing, according as the station which the proposed deponent occupies in the cause is that of a party, or that of an extraneous witness. We will consider him successively in both these stations: as a party, in the ensuing Part; as an extraneous witness only, in the present.
IMPROPRIETY OF THE EXCLUSION PUT UPON SELF-DISSERVING EVIDENCE BY ENGLISH LAW.
Uses of self-disserving evidence, and mischiefs resulting from its exclusion.
The fundamental rule on this subject is generally given in Latin: Nemo tenctur seipsum accusare: no man is bound to accuse himself. Taken by itself, the proposition, as thus delivered, having its source rather in the affections than in the understanding, has more of rhetoric in it than of logic, and presents no clear idea until it be translated into more simple language. The part of an accuser is one part; that of a witness is another. The part of the accuser is that of the plaintiff, of which that of the prosecutor and that of the informer are modifications; these being names that are given in different cases to the plaintiff, according to the nature of the cause. By “no man shall be bound to do so and so,” is meant, no man shall be liable to be punished for not doing so and so. Of the proposition, “no man is bound to accuse himself,” the literal meaning, reduced to clear and unambiguous language, is, no man shall be liable to be punished for not instituting a penal suit against himself; for not preferring a bill of indictment against himself, or lodging an information against himself; or not bringing a penal action against himself; or preferring an appeal against himself,—as the case may be.
In plain English, the maxim is neither more nor less than so much nonsense. To find an intelligible meaning for it, we must have recourse to practice; we must shut up our law-books, and observe what passes before our eyes. We then find that the question is, not whether a man shall be bound to commence a suit against himself; nor yet whether, without being called (the suit being commenced by any other person,) he shall be bound to come and give evidence against himself: but whether, being called, and questions being put to him, he shall be bound to make answer to such questions.
The substitution is not a mere impropriety, but a sophism, a fraud. A law which should say to a man—Whenever it happens to you to commit a crime, come and accuse yourself, come and give information against yourself—would, on the face of it, be an absurd one. The object of the sophism is to cause it to be believed, that, in the liberty of propounding to a man under accusation or suspicion of a crime, questions, the object of which is to discover whether he is guilty or no, this sort of absurdity is involved. But, that no such absurdity is involved in that liberty, is what everybody will see, to whom it is not more agreeable to shut his eyes.
Observe, too, what in this case is the import attached to the terms expressive of obligation—bound, forced, compelled. Observe what is the nature of the compulsive force.
Obligation to speak is not here in question. In the case where the penal process is of the acute kind, punishment directed to this object is what has been commonly expressed in French by the word question—in English, by the word torture.
Obligation, on the part of the defendant, there is in fact in this case none. What it imports is mere permission: permission to the adverse party (the plaintiff,) and to the judge, one or both, to put questions to the defendant; for the sake of the faculty which thence results to the judge, of noting the answers or the silence (whichever is the result,) and drawing his inference from them.
From the faculty of putting these questions, what is it that the defendant has to fear? It is this: From the known principles of human nature, according to a course of observation common to all mankind—according to the result of a set of observations, which it can scarce happen to a man to have arrived at man’s estate without having had frequent occasion to make—between delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.
The delusive language in which interested artifice has dressed out the exclusionary rule being thus stript off, let us now take a more detailed observation of the mischiefs flowing from it. These mischiefs will correspond to the uses of the species of evidence thus marked out for exclusion: i. e. to the occasions on which, and purposes for which, the demand for it is liable to present itself.
1. In the first place, in so far as it is to be had, it has already been stated as being (not only upon the face of it, but by the confession of those who, notwithstanding, have been in the habit of excluding it) the very best possible sort of evidence: the evidence the most completely satisfactory: evidence, in a word, so completely, and even exclusively, satisfactory, that, according to the Roman system, after the delivery of such evidence as under English law is deemed conclusive even where the punishment is at the highest pitch, the mass of evidence is regarded as deficient without evidence of this kind; and the deficiency as being so important, that torture (howsoever ill employed) has, under the dominion of that jurisprudence, been everywhere employed for the filling it up.
First use of self-disserving evidence—augmenting the security against misdecision and failure of justice, by furnishing the most trustworthy and satisfactory ground of decision; the best security against failure of justice, or misdecision, for want of evidence,—viz. evidence of the best, most trustworthy, most satisfactory kind. Habes confitentem reum, says the Roman orator: as much as to say, Having this, what more can you desire?
2. This is not all. Under the distress produced by the exclusion put upon the best evidence, recourse has been had (through a sense of necessity, and that the wound given to justice might not be past endurance) to bad evidence of various descriptions: evidence, the inferiority of which has, on other occasions, and where (for want of better) there has been a real demand for it, been not acknowledged merely, but proclaimed. Under this description come—1. The supposed confessorial testimony of the party, delivered through the medium of hearsay evidence; and, of course (in case of misconception, designed or undesigned) without the opportunity of explanation, completion, and correction. 2. Written discourse, supposed to be in the handwriting of the party, and supposed to contain on his part a sort of confessorial testimony, delivered in the state in which it has been supposed to be found, but, at the option of the adverse possessor, complete or mutilated; and, at any rate, without adequate opportunity given of explanation.
Second use of self-disserving evidence,—adding a security against misdecision and failure of justice, by adding or substituting more trustworthy evidence to less trustworthy.*
3. The person whose bosom is the source of self-disserving evidence (the plaintiff, or more commonly the defendant, in the cause) is one person: that person is forthcoming of course. Whatever evidence is extractible from that source, is extractible on the spot, and without addition to the expense. Stop up that source, whatever evidence you can hope to get from other sources, if got at all, you must get as you can, from, perhaps, a variety of sources, from each at the end of an indefinite length of time, and under the pressure of an indefinite load of expense. Hence,
Third use of self-disserving evidence, saving of delay, vexation, and expense.
A striking illustration of this last use is afforded by the case in which, for the conviction of a defendant, it is necessary that his handwriting should be proved.
As, at a trial at common law, the party himself (the defendant) can in no case be examined in behalf of his adversary the plaintiff; the plaintiff, to prove the defendant’s handwriting, is obliged to go upon the hunt for other witnesses. In some instances, a witness for this purpose will be to be had without any additional expense. But this is altogether matter of chance; and for this single purpose it may be necessary to fetch a witness on purpose, at any degree of inconvenience to the witness, from any imaginable distance, and consequently at a proportionate expense. This expense rests ultimately on the shoulders of the party who on that side bears the burthen of costs. If the burthen of costs rested uniformly on the party who is in the wrong, even in that case this unnecessary expense would be a grievance: in case of mala fides, indeed, it may have its use in the character of a punishment: but it would be a supposition by much too favourable to the intellectual character of the law, and by much too injurious to the moral character of the people, to suppose this to be the more common case. Nor yet does the burthen of costs rest, with anything like uniformity, upon the party who is in the wrong, or even upon the party whom the decision supposes to be in the wrong. So far from it, that, to distinguish the cases in which it shall rest upon the party who is supposed to be in the wrong, from those in which it shall rest upon the party supposed to be in the right, is a discussion that occupies the contents of a reasonable octavo volume.
The expense, which consists in the pecuniary allowance to the witness, added to that of the instrument of summons, with the lawyer’s fees belonging to it, appears in pounds, shillings, and pence; but the delay and vexation (not to speak of incidental and casual expenses, which may be the necessary accompaniments of the process of investigating by reflection and hunting out by inquiry a man’s connexions, for the purpose of lighting on some person capable of proving his handwriting by the regular mode of proof,) all this put together forms a mass of inconvenience, which, though it cannot always be correctly expressed in pounds, shillings, and pence, is neither the less real nor the less heavy.
When the sort of witness in question, or one who is thought to be such, or pretends to be such, has been hunted out, the prize may but too easily turn out to be no better than a snare and a source of miscarriage. The suitor whose misfortune it is to stand in need of such testimony, is thus rendered dependent upon the probity and prudence of an individual more or less likely to be in connexion with the adversary. In case of non-appearance, the witness is, indeed, answerable in damages. Be it so: but suppose the property at stake an affair of thousands, while a few hundreds or scores would afford the witness a sufficient inducement to stand an action on that ground, or to take himself out of the reach of it? Suppose another modification of fraud, more simple and more safe. To a question put out of court, “Can you prove such or such a man’s handwriting?” the witness, who in fact cannot, answers, however, and purposely, in the affirmative. On the trial, he answers in the negative: the document, a necessary one (a note of hand, suppose,) is set aside; and the cause is lost. What punishment? what remedy? Perjury, by the supposition, there is none; and for the falsehood out of court there is no punishment.
The only sort of person to whom it is possible (speaking of suitors) to profit by the pretended tenderness of this rule, is the knavish and immoral suitor, who, being in the wrong, and knowing himself to be in the wrong, avails himself of the inability of the adversary to fulfil the conditions thus wantonly imposed upon him by the law; avails himself of this misfortune to obtain a triumph over justice. It is for the purpese of rewarding and encouraging the iniquity of one knave of this description, that the useless burthen above delineated is fastened upon the shoulders of perhaps a hundred suitors.
On the supposition of a perfect calmness as between the parties, seconded by an uncommon degree of intelligence as well as disinterestedness on the part of their agents, possible it certainly is for this source of delay, vexation, and expense, to be avoided: mutual and amicable explanations having taken place, the party whose handwriting is in question agrees to admit it at the trial. All this is a possible case: but is it the most common case? Let experience declare. Not that so much as the possibility extends beyond that class of cases which are ranked under the head of civil cases: in cases called penal, any such sacrifice to truth is altogether out of the question.
To the list of the uses rendered to justice by this best of all evidence, corresponds the list of the mischiefs produced by the exclusion of it: promoting, in two distinguishable ways, misdecision and failure of justice; making a factitious addition to the natural and necessary quantities of delay, vexation, and expense.
To these mischiefs may be added another, the opposite of which could not so conveniently have been presented under the head of uses: I speak of the poison continually infused by the exclusionary rule into the moral branch of the public mind.
Hold the virtues of veracity and sincerity in contempt or detestation: look up to mendacity and insincerity as your strongholds, the pledges of your security. Look upon the licence of exercising them as the boon for which you are indebted to the mercy and loving-kindness of the man of law. Hold nothing for base and mean, that promises to preserve you from the obligation of rendering justice,—from the anti-religious and hell-born rules, do as you would be done by, repent and suffer for your sins. Hold nothing for base and mean,—or, holding your heads high, and speaking in a tone of firmness and defiance, maintain, that to practise whatever is most base and mean, is among the Englishman’s most honourable privileges. Deny your own handwriting in so many words,—or, denying it in deportment as significative as words, refuse or forbear to recognise it: deny your written words; and when a question is put to you by words spoken, keep your lips close, lest the truth should make it escape, and justice be done.*
Such is the exhortation which the exclusionary rule never ceases to deliver to the people. Such is the lecture delivered by the judge, by every judge, as often as he marks with his approbation this flagitious rule.
A man who, uninvested with any coercive power, should, in the character of a moral instructor—of a schoolmaster, a lecturer, or a divine—stand up and say to his auditors, “If a man with whom you have a difference happens to have in his hands a letter or memorandum of yours that you apprehend would make against you, deny it,—do not own it,—put him to the proof of its being yours; and if he is not able, triumph over him as if he were in the wrong;”—if it were possible that a man without power for his protection should take upon him to preach such doctrines, he would be abhorred, and not without reason, as a corrupter of the public morals. What, then, shall be said of those by whom such baseness is not simply recommended, but efficaciously rewarded? Men sow vice, and then complain of its abundance! The same hands which are every day occupied in thus planting and propagating mendacity, are as constantly lifted up against it, and employed in punishing it.
The above is not the only mode in which this superstition is a source of corruption to public morals. It is from the wanton sacrifice thus made of the purest evidence, that the field of justice is regularly inundated by the foulest and most polluted. To save one malefactor from the vexation of returning answers to unpleasant questions, the answer of a no less guilty malefactor is purchased by impunity, crowned with rich remuneration. Among partakers of the same crime, a gang of burglars, murderers, or incendiaries, ille crucem pretium sceleris tulit, hic diadema: and the order of things which, among the corruptions of ancient Rome, is painted by the poet as the summit of injustice, is, in the eternally vaunted law of modern Britain, become the ordinary course of what goes by the name of justice.
Thus it is that, to the punishment of one confederate in a knot of malefactors, the nourishment and encouragement of another is become a condition almost inseparable.
And to this, together with certain other superstitions alike adverse to the interests of morality and justice—to this and those together, it is to be ascribed, that,—whereas in other countries the arts of depredation are carried on only by fits and starts, upon the spur of an occasional temptation, by here and there an unconnected and unsupported individual,—in England they are carried on professionally and systematically, by associations of malefactors, bound together in the ties of partnership, in bands now and then thinned, never extirpated, under the eye and with the protection and encouragement of the three constituent branches of government, the judicial, the executive, and the legislative.
Out of the same root grows that system of remuneration, which renders it an act of improvidence on the part of the subordinate ministers of justice, to remove a scholar in the school of deptedation before he has risen to the head of it—to fasten upon a pilferer, till he has ripened into a burglar—to take at £10 a prisoner, who by a little forbearance might have yielded £40: just as, among renters of fish-ponds, it would be bad husbandry to take a pike of five pound weight out of a pond, in which he might have thriven on to ten pound.
Causes of the exclusion of self-criminative evidence:—1. Interests of criminals and other evil-doers. 2. Interests of lawyers.
In seeing the mischiefs entailed by this rule upon the community at large, we see its uses to criminals, delinquents, malâ fide defendants, extortious and oppressive plaintiffs: in a word, to evil-doers of all sorts and sizes. Moreover, in seeing the persons to whom it is of use, the persons whose sinister interests are served by it, we see the hands and the hearts that stand pledged for its support.
In speaking of the taxes on justice,* it was mentioned as one of the unfortunate characteristics of this species of tax, that, though of all taxes, actual or possible, the most burthensome, and in every respect the worst, it was not in the nature of it to find opponents: because the body of litigants (if a body it could be called,) being ever fluctuating, and essentially split, was, to the purpose of mutual support, and opposition to extrinsic pressure, no better than a rope of sand: and, what is more, were the body itself ever so well knit together, it would still be but a body without a head. The tax, therefore, uniting in itself these two unhappily conjoined properties,—viz. of producing the greatest possible quantity of misery to the people, and the least possible quantity of opposition and uneasiness to the man in office, the result was but too obvious. Relief was hopeless, unless the moment (perhaps an ideal one) should ever arrive, that should produce a financier to whom the most important interests of the people should be dearer than his own momentary case.†
In the present case, the tables are unhappily reversed. Throughout the whole substance of the community extends itself, like the tænia in the natural body, a cluster of internal enemies, possessing, amidst whatever other diversity of interests, the common sinister interest urging them to behold their security in whatever arrangement contributes to weaken the efficiency of the law. The rule in question, being (as we have seen) a capital article in the list of debilitatives, will naturally be the object of a proportionate degree of attachment to the body thus composed. To the body of litigants, besides being divided against itself, there is no head. The body of delinquents (including those who, for having the law on their side, are but so much the more mischievous) find a regular and irresistible head in the man of law—in him who, during the sleep or fascination of the legislator, possesses and exercises all the authority of the legislator, though without the responsibility or the name.
With all its blemishes, the aggregate body of the laws having more in it of that matter which is beneficial to all men, than of that which is prejudicial to this or that one,—it is more (it may be said) for the advantage of the whole community taken together, that the force of the aggregate body of the laws should be at its maximum, than that it should stop short at any inferior degree. True; if the interest of all were understood by all to be exactly as it is, and felt in proportion as it is understood. But (such is man’s nature,) a slight interest coming home to his own bosom, and presenting itself in distinct colours, will act on him with greater force than a much stronger one, common to himself with others, and viewed at an indeterminate distance. Whosoever, on any special account whatsoever, regards himself as obnoxious to the adverse pressure of the laws, will behold in the weakness of the laws, and in every institution that presents itself as contributing to the weakness of the laws, the means of safety. The advantage depending on the protection afforded to him by the laws against a crowd of possible injuries not presenting themselves individually to his view, will, in comparison with this conspicuous and distinct advantage, act upon his mind with very inconsiderable force. The smuggler, the official peculator, and the political malcontent, would each of them find, in a regulation which should cure any of the weaknesses of the law, an increased security against whatever mischiefs he stands exposed to, at the hands of the common herd of malefactors, but, the more distinct and nearer the danger with which he might conceive himself threatened by the influence of the same remedy, the more apt would the new security be to present itself is far from being worth to him the price which he would have to pay for it. Profit, the difference between the old and the new security against depredation at large: loss, to the smuggler, his livelihood—to the peculator, his ill-gotten gains—to the political malcontent, the object of his plots.
The anxiety to preserve the body of the laws from being cleared of these debilitative poisons, will, according to circumstances, display itself with particular force, sometimes in the inferior, sometimes in the superior classes. When in a criminal cause, the station of defendant was occupied by John Wilkes, the vilest quibbles that ever issued from the lips of depredation under the mask of justice were revered as oracles.
In a mixed constitution like the British, by some odd turn in the wheel of fortune it will now and then happen, that, among a multitude of secret or unnoticed instances of official delinquency, some one shall be unfortunate enough to become the subject of prosecution. On such an occasion, that the defendant (how clear soever his guilt) should find one at least of two parties zealous in his support, is a matter of course. Here, then, the debilitative poisons above spoken of become the object of eulogy and attachment in the highest circles. If those that have been compounded for past exigencies present themselves as sufficient for the present turn, they are made the most of, and no others looked for: if, in the pharmacopæia politica, no remedies of this class, as yet upon the list, promise to come up to the purpose, others must be made up: inveniam aut faciam; such is the alternative.
A revolution in administration, it may be said, offers a chance for justice: since, by motives congenial to those by which one party stands engaged to undermine, an opposite party (and that, for the moment at least, the stronger) stands engaged to defend, the foundations of justice. But, unfortunately, the incentives which animate the assailants are apt to be neither so universal, nor so strong in their operation, as those which animate the defendants: for, at the bottom of this momentary interest, thus salutary to justice, there exists a common interest (and that a paramount one,) by which transgressors of all parties are linked together in an interest opposite to the interests of justice. It is to the advantage of all men who partake, or hope to partake, in the sweets of administrative power, that the laws by which they, and men in their sphere, have made a show of binding themselves, should, in everything but show, he as near as possible to a dead letter.
If, under such a constitution, it should at any time happen, that of the two contending parties each should contain a delinquent whose delinquency had been flagrant enough to attract public notice; it may be imagined how generally dear to all public men every institution would be, that was seen to act as a sedative upon the force of justice,—how strong and general an aversion would await any remedy that promised (shall we say, or threatened)) to render to the arm of justice its due tone.
Under such a constitution, a natural, not to say a necessary, consequence, is, that the course of procedure, so long as it has jurisprudential law for its guide, should swarm with rules, which, without contributing in any degree to the protection of innocence, should, by the protection they hold out, afford in a variety of ways an efficient enconragement to delinquency and injustice. Of the rules thus made, made especially on that level, to be assured of their being directed to ends other than the end of justice, a man needs no more than to observe the place in which, in conjunction with the occasion on which, they are made. The occasions on which they are made are uniformly of the number of those in which, men’s individual interests being at stake, and their affections heated, they find themselves, while in the state of parties, called upon to make laws for the guidance of their own conduct in the character of judges.
The same minds, whose partialities, excited by the incidents of the moment, render them no less unfit than the grossest corruption would do, to act with the authority of a legislator in the station of a judge,—these same minds, when free from the disturbance produced by the sinister interest of the moment, may, without any departure from the rules of moral probability, be expected to join with fidelity and concord in the pursuit of that general interest by which the line of public duty is prescribed.
Witness the Grenville Act: so fair and efficient a step in the improvement of that political constitution, the praises of whose excellence are so generally excessive, and beyond, to the most exorbitant extent, its merits; but of which this may with justice be said, and of much importance it is to be deemed that it can so with justice be said;—the British constitution forms a basis for building those improvements which would terminate in a perfect government—a basis the firmest by far that ever was presented by any government that had existence upon earth.
In seeing the uses of the exclusionary rule to malefactors and evil-doers of all descriptions, we have seen its uses to the man of law.
Whatsoever is seen to diminish the security against misdecision and failure of justice, and thence whatsoever is really productive of that effect, is subservient to the interest of the man of law. In the minds of transgressors and malâ fide suitors, it helps to fortify the opinion, that no cause whatsoever, no cause, however bad, ought to be given up as desperate. Subsequently to transgression, in the minds of those who have already transgressed, it operates as a premium for dishonest defence or dishonest demand, as the case may be: antecedently to transgression, on all minds exposed to temptation (that is, in a word, on all minds) it operates as a premium for transgression, for injustice, in every shape.
The vexation, expense, and delay, so frequently attached to the production of the inferior evidence resorted to on the exclusion of the most satisfactory species of evidence, have just been brought to view. On this occasion as on all others, lawyer’s profit being both cause and effect of that triple-headed mischief, the use which the exclusionary rule is of to the man of law is self-evident.
By the vexation, expense, and delay, it adds to the quantity of lawyer’s profit in each cause separately taken: by the chance it affords of misdecision or failure of justice for want of the excluded evidence, it adds to the encouragement given for dishonest defences and demands, and thence to the number of the individual sources from which that pernicious profit may come to be derived.
Meantime, although to lawyercraft, and the benefit derived from this rule by Judge and Co., the principal share in the establishment of it may be to be ascribed,—what cannot but be admitted, is, that, to the production of this effect, circumstances of a different and more laudable complexion would probably be found to have been not altogether without their induence, in the character of co-operating causes:—1. Tyranny of the times, anxiety, and (on the ground of public utility) real need, of saving, at any price, the precious few who were at the same time able and willing to stand in the gap. 2. Multitude and extent of bad laws, the result either of improbity or folly. 3. Savageness of the people in general, and of the fraternity of lawyers in particular; propensity on their part to fasten upon an innocent man, and (especially if, on any particular account, whether political or personal, obnoxious) to treat him as,—under the lash of cross-examination, by hireling advocates, under the eye of careless or approving and abetting judges,—men are but too frequently treated in the character of extraneous witnesses: to fasten upon him, and, by intimidation and misrepresentation, to wring out of venial infirmity the appearance of criminality, sometimes even the appearance and colour of delinquency out of the purest innocence.
Pretences for the exclusion.
1. At the head of everything which, with or without the name of a reason, has been advanced, or is capable of being advanced, in the view of securing the attachment of the people to the exclusionary rule, let us place the old sophism, the well-worn artifice, sometimes called petitio principii, and which consists in the assumption of the propriety of the rule, as a proposition too plainly true to admit of dispute.
In the minds of some men (not to say the bulk of men,) if you set about proving the truth of a proposition, you rather weaken than strengthen their persuasion of it. Assume the truth of it, and build upon it as if indisputable, you do more towards riveting them to it than you could do by direct assertion, supported by any the clearest and the strongest proofs. By assuming it as true, you hold up to their eyes the view of that universal assent, or assent equivalent to universal (dissenters being left out of the account,) which, from your assumption, they take for granted has been given to it: you represent all men, or (what comes to the same thing) all men whose opinions are worth regarding, as joining in the opinion: and by this means, besides the argument you present to the intellectual part of their frame, you present to its neighbour the volitional part another sort of argument, constituted by the fear of incurring the indignation or contempt of all reasonable men, by presuming to disbelieve or doubt what all such reasonable men are assured of.
For exemplifications of the use of this instrument of persuasion—of the application of it (I mean) to the present purpose—it is altogether useless to make reference to this or that particular book or books: you hear it in all discourses; you see it, as often as occasion serves, in all books and in all newspapers.
2. The old woman’s reason. The essence of this reason is contained in the word hard: ’tis hard upon a man to be obliged to criminate himself. Hard it is upon a man, it must be confessed, to be obliged to do anything that he does not like. That he should not much like to do what is meant by his criminating himself, is natural enough; for what it leads to, is, his being punished. What is no less hard upon him, is, that he should be punished: but did it ever yet occur to a man to propose a general abolition of all punishment, with this hardship for a reason for it? Whatever hardship there is in a man’s being punished, that, and no more, is there in his thus being made to criminate himself: with this difference, that when he is punished,—punished he is by the very supposition; whereas, when he is thus made to criminate himself, although punishment may ensue, and probably enough will ensue, yet it may also happen that it does not.
What, then, is the hardship of a man’s being thus made to criminate himself? The same as that of his being punished: the same in kind, but inferior in degree: inferior, in as far as in the chance of an evil there is less hardship than in the certainty of it. Suppose, in both cases, conviction to be the result: does it matter to a man, would he give a pin to choose, whether it is out of his own mouth that the evidence is to come, or out of another’s?
To this, to which, in compliance with inveterate and vulgar prejudice, I have given the name of the old woman’s reason, I might, with much more propriety, give the name of the lawyer’s reason. When a child has hurt itself, and a chirurgical operation is deemed necessary for its cure, it may be that here and there an old woman may be found weak enough to exclaim, Oh the poor dear child! how it will hurt the poor dear child! how hard it will be upon the poor dear child! and so on; no, it sha’n’t be doctored. It would be too much to say that such old women do not exist; but sure enough they would not, in any very considerable number, be very easy to be found.
But the lawyer, in disposing of the fate of those who, if they were in any degree dear to him, would not be dealt with by him as they are, has never—let us not say any other,—at any rate employs scarcely ever any better style of reasoning. The reasons most plenty with him, the only reasons that are not rare, are technical reasons. The reasons that with him are choice and rare, the reasons brought out only now and then, are these old women’s reasons: reasons consisting in the indicating, out of a multitude of reasons standing on each side, some one only on one side.
Nor yet is all this plea of tenderness,—this double-distilled and treble-refined sentimentality, anything better than a pretence. From his own mouth you will not receive the evidence of the culprit against him; but in his own hand, or from the mouth of another, you receive it without scruple: so that at bottom, all this sentimentality resolves itself into neither more nor less than a predilection—a confirmed and most extensive predilection, for bad evidence: for evidence, the badness of which you yourselves proclaim, and ground arguments and exclusions upon in a thousand cases.
What every man knows, and what even yourselves, in spite of all your science, cannot be ignorant of, is,—that, of all men, the man himself is the last man who would willingly speak falsely to his own prejudice; and that, therefore, against every man, his own is the safest, the most satisfactory, of all evidence: and it is of this best and most trustworthy of all possible evidence, that your pretended tenderness scrupies not to deprive the interests of truth and justice!
You know of such or such a paper;—tell us where it may be found. A request thus simple, your tenderness shudders at the thoughts of putting to a man: his answer might lead to the execution of that justice, which you are looking out for pretences to defeat. This request, you abhor the thoughts of putting to him: but what you scruple not to do (and why should you scruple to do it?) is, to dispatch your emissaries in the dead of night to his house—to that house which you call his castle, to break it open, and seize the the documents by force.
Not that, in any such act of violence, considered as a necessary means to a necessary end, there is anything to blame: it is on the score of inconsistency, and that alone, that it is here worth mentioning. Two means to the same end: the one violent—the other free from violence. The quiet one is too violent for you: you embrace the violent one; and not only in preference to the other, but to the exclusion of it: and this is your delicacy, your tenderness.
It is not, however, true, that, even as towards criminals, if taken in the aggregate, the plea of humanity can be pleaded in behalf of this rule, consistently with truth. Humanity? yes,—viz. the word: for as to the thing itself, if effects be considered (howsoever it may be with regard to motives and intentions,) in any practice grounded on any such rule, it is no more to be found than the thing called justice.
Of the man who, with the word humanity in his mouth, calls for this or that thing to be done, the expectation (if there be any determinate expectation) is this, or nothing,—viz. that, supposing the course thus recommended by him pursued, the consequence will be, that, upon the aggregate number of offenders who for the offence in question will have suffered within a given length of time, the aggregate quantity of suffering undergone will be less than it would have been had the course pursued been the opposite.
But, of any such rule as that here in question, the necessary effect (in so far as it has any) is, not to lessen that aggregate quantity of suffering, but to increase it. By whatsoever cause the ratio of the number of known, but yet unpunished, to the whole number of known, offenders, is increased,—in that same ratio, the known and apparent probability of punishment (in the eyes of a person having it in contemplation to engage in the commission of an offence of that sort) is diminished. But, on the mind of any given person, to produce, by means of punishment, an impression of any given degree of strength and efficiency, in proportion as the probability is diminished, the magnitude must be increased. In playing at cards or dice, in buying and selling a life-annuity, or a post-obit, there is not a proposition more incontestable.
Be the offence, be the punishment, what it may,—in proportion as you exclude this or that quibble, this or that device of technical procedure, by which a certain proportion of the whole number of delinquents are saved, and the probability of punishment in case of delinquency thereby diminished, you would put it in your power to make a correspondent and proportionable reduction in the magnitude of your punishment.
What is the same thing in other words,—it is because your law is so full of quibbles, exclusionary rules, and other points of practice, by which impunity is given, and seen to be given, to known delinquents, that (the probability of punishment being subjected to constant diminution) delinquency receives proportionable increase: and, for combating it, the only other resource remaining, and the only resource that a quibble-loving lawyer will endure to hear of, is an increase of the magnitude of the punishment. To make sure, and do at once all that can be done, the punishment which on every such occasion he runs to in preference, is the punishment of death: death, simple death, as being, though not the highest and most impressive which human nature is capable of being subjected to (since afflictive death—death accompanied by torture, might, to an indefinite degree, be made higher,) the highest, however, which, in this age and country, men in general would endure the mention of.
Under the influence of such humanity, this, then, is the sort of repetend that takes place. By the generation and application of penal law quibbles, and of impunity-giving rules, a demand (real or supposed) is produced for addition to the magnitude of the punishment: an addition, and in each case (sooner or later) such an addition, as consists in substituting to the last antecedently-established punishment (be it what it may,) the punishment of death. But, by the increase given to the application of the punishment of death, increase is at the same time given to the propensity and the pretence for the application of other quibbles, and other impunity-giving rules.
Under this system, that which consistency would require (not that, with such humanity, any sort or degree of consistency is compatible,) is, that for offences of all sorts there should never be any other than one sort of punishment, and that one sort death: for, so long as quibbles are in honour, and applied to delinquency in every shape,—delinquency, till the punishment be raised to this its maximum, will go on increasing. Thereupon comes the argument—“Against the act in question there exists a law, by which it is converted into an offence: to this offence a punishment stands annexed, and, this punishment notwithstanding, it was but the other day that an offence of this sort was committed. This punishment is not so great as the punishment of death: substitute to it the punishment of death: and thereupon, if the repetition of the offence be not less frequent than of late years it has been, at any rate the utmost will have been done that can be done towards rendering it so.” This is exactly what, sooner or later, may be said of every offence that ever has been, or can ever be capable of being, committed: and as often as the punishment of death has been proposed to be substituted to the previously-established punishment, more than this never has been said—more than this has never been regarded as necessary to be said—more than this, in substance, has never been capable of being said.
Thus it is, that to one and the same individual, to one and the same weak-minded and narrow-minded, the same half-bigot half-hypocrite lawyer, it belongs to be fond of quibbles, and at the same time to be fond of death: in regard to death, understand, of course, to be fond, not of suffering it, but of causing it to be suffered: to be suffered, or, if not suffered, threatened; and that under such management, as, by causing it not to be expected, causes the threat not to be productive of the effect pretended to be aimed at.
Such is the genesis of lawyercraft: death begets quibbles,* and quibbles beget death: inflicted or not inflicted, when death is threatened, the quiver of lawyercraft is exhausted: perfection, all that is practicable in perfection, is supposed to have been attained.
Under such treatment, the disease either receives positive increase, or at least does not receive anything like that relief which, under a more rational treatment, might have been afforded. In either case, the mode of treatment fails; but the failure is of course ascribed, not to the unskilfulness of the physician, but to the perversity of human nature.
What cannot but be admitted is, that, by the effect of this impunity-giving rule, undue suffering has probably in some instances been prevented. Prevented? but to what extent? To the extent of that part of the field of penal law which is occupied by bad laws: by laws which prohibit that which ought not to have been prohibited, or command that which ought not to have been commanded.
But, in the character of a remedy against the mischief of which such bad laws are productive, observe the nature and effect of this rule. Applying with equal force and efficiency to all penal laws without distinction—to the worst as well as to the best, it at the same time diminishes the efficiency of such as are good: while it is only by accident, and to an amount altogether precarious and unascertainable, that it does away the mischief with which such as are bad are pregnant.
Bring up a good field-piece, or, if that be not sufficient, a four-and-twenty pounder; load it with grape-shot; station it at either end of any one of the bridges; and at any convenient hour about the middle of the day, but without letting it be known what hour, fire it off as many times as may be deemed necessary and sufficient. Doing this, you will do, in furtherance of justice, exactly what, in manifestation of humanity and mercy, is done by nullification in penali, by exclusion of what is called self-accusing evidence, and by whatever other rules and principles there may be, which present the like title to the appellation of impunity-giving institutions.
Not that, if that sort of humanity were in question, which consists in the preservation of the innocent, the service done by these institutions to humanity would be anything like so great as the service which, by the field-piece or the four-and-twenty pounder, if well served (as above,) would be done to penal justice. By the piece of ordnance, the number of killed and wounded must be small indeed, if among them were not found, in some proportion or other, individuals whom, in some instance or other, the penal system had had cause to place upon the list of its transgressors. By the principle of nullification, or the rule which excludes self-criminative evidence, not only are the guilty served, but it is they alone that are served: they alone, and without any mixture of the innocent. For when, though unfortunate enough to have become the object of suspicion, a man is really innocent, does he fly to any of these subterfuges? Not he, indeed, if character be of any value in his eyes: for, by recourse to any of them, what is no secret to anybody is, that so sure as punishment is escaped, character is sacrificed.
3. The fox-hunter’s reason. This consists in introducing upon the carpet of legal procedure the idea of fairness, in the sense in which the word is used by sportsmen. The fox is to have a fair chance for his life: he must have (so close is the analogy) what is called law,—leave to run a certain length of way for the express purpose of giving him a chance for escape. While under pursuit, he must not be shot: it would be as unfair as convicting him of burglary on a hen-roost, in five minutes’ time, in a court of conscience.
In the sporting code, these laws are rational, being obviously conducive to the professed end. Amusement is that end: a certain quantity of delay is essential to it: dispatch, a degree of dispatch reducing the quantity of delay below the allowed minimum, would be fatal to it.
In the case of the fox, there is frequently an additional reason for fair play. By foul play, the source of the amusement might be exhausted: the breed of that useful animal might be destroyed, or reduced too low: the outlawry, so long ago fatal to wolves, might extend itself to foxes.
In the mouth of the lawyer, this reason, were the nature of it seen to be what it is, would be consistent and in character. Every villain let loose one term, that he may bring custom the next, is a sort of a bag-fox, nursed by the common hunt at Westminster. The policy so dear to sportsmen, so dear to rat-catchers, cannot be supposed entirely unknown to lawyers. To different persons, both a fox and a criminal have their use: the use of a fox is to be hunted; the use of a criminal is to be tried.
But inasmuch as, in the mouth of the lawyer, it would be telling tales out of school,—from such lips this reason must not be let out without disguise. If let out at all, it must be let drop in the form of a loose hint, so rough and obscure, that some country gentleman or other, who has a sympathy for foxes, may catch it up, and, taking it for his own, fight it up with that zeal with which genius naturally bestirs itself in support of its own inventions.
4. Confounding interrogation with torture; with the application of physical suffering, till some act is done; in the present instance, till testimony is given to a particular effect required.
On this occasion it is necessary to observe, that the act of putting a question to a person whose station is that of defendant in a cause, is no more an act of torture than the putting the same question to him would be, if, instead of being a defendant, he were an extraneous witness. Whatever he chooses to say, he is at full liberty to say; only under this condition, properly but not essentially subjoined, viz. (as in the case of an extraneous witness) that, if anything he says should be mendacious, he is liable to be punished for it, as an extraneous witness would be punished. This condition, essential in the case of an extraneous witness, is not equally so in the case of a party in the cause; since a party, by being such, stands exposed to a sort of punishment intrinsic to the cause,—viz. the loss of the cause: as where a defendant, in consideration of false responsion, evasive responsion, or obstinate silence, is concluded to be guilty: a punishment, of which an extraneous witness, not having any interest at stake in the cause, is not, on that occasion at least, susceptible.
The curious part of the story is, that the same sort of persons by whom the identity of a question and a thumbscrew is thus dreamt of, or affected to be dreamt of, are commonly the same persons who, when torture is actually applied, and applied to the worst of purposes, that of foreing juries to commit a useless perjury, are delighted with the operation, and proclaim aloud that everything is better than well.
5. Reference to unpopular institutions.
Whatever Titius did was wrong: but this is among the things that Titius did; therefore this is wrong: such is the logic from which this sophism is deduced.
In the apartment in which the court called the Court of Star-chamber sat, the roof had stars in it for ornaments; or else certain deeds to which Jews were parties, and by them called shetars or shtars, used to be kept there; or, possibly, there being no natural incompatibility, both these facts were true. Whether it was owing to the gilt stars, or to the Jew parchments, the judges of this court conducted themselves very badly: therefore judges should not sit in a room that has had stars in the roof, or in a room in which Jew parchments have been kept. Had the conclusion been in this strain, the logic would not have been very convincing, but neither would the mischief have been very great.
In the High Commission Court, the judges sat and tried causes in virtue of a commission: and they too conducted themselves very badly: therefore judges ought not to be appointed by a commision. The logic, though not less rational than in the preceding case, begins to be rather mischievous. Not to be appointed by a commission? How, then, should they have been appointed? But perhaps the commission was too high a one. When a judge conducts himself as he ought to do, the parchment of the commission he acts under is not above three feet high, when unrolled and set up on end: but here it was four feet. The logic wants nothing of being upon a level with what one usually sees in law-books; but still, something is yet wanting to enable it to impress conviction on a fastidious mind.
The Inquisition (meaning the true inquisition, of the Spanish sort,) that used to work with such success in the extirpation or conversion of heretics, was a court in which it was the way of the judge to inquire into the business that came before him: to put questions to such persons as, in his conception, were likely to be more or less acquainted with the matter: and this, whether extraneous witnesses or parties. Now this it is, that was and is a most wicked and popish practice. Judges ought not to put questions: be the business what it may that comes before them, it ought to be the care of judges never so much as to attempt to see to the bottom of it. Here, then, we see the true source of all the odium; viz. not merely of that which has attached itself to this abominable court, but of that which attached itself to those other abominable courts. It was not by sitting in a room with stars or parchments in it; it was not by acting under a commission too high in itself, or that lay on too high a shelf; it was not by either of these causes that the two English courts, held in such just abborrence by all true Englishmen, were rendered so bad as they were,—but by their abominable practice of asking questions, by the abominable attempt to penetrate to the bottom of a cause.
Non-Lawyer. But we in England,—have not we had formerly without complaint, and might we not have still, our inquests of office? Have we not still our grand inquests, and our coroner’s inquests, and our courts of inquiry, and our committees of inquiry, and our commissions of inquiry, and our commissioners of inquiry? and are not they, some of them at least, very good things?
Lawyer. O yes: but then, if they inquire, they do it in the way of inquest or inquiry only, not in any inquisitorial way: that is (observe of course,) not to put troublesome, vexatious questions, such as would make a man accuse himself: in short, whatever the business be, not to get to the bottom of it. This, at least, is among those things which they ought not to do: for no sooner do they make any such attempt, than they become inquisitors; popish, Spanish inquisitors, or worse: and those who, had the truth come out against them by other means, would have been convicts, become innocent and persecuted men; victims, or intended victims, of persecution, tyranny, and so forth.
Of the Court of Star-chamber and the High Commission Court taken together (for to the present purpose they are not worth distinguishing,) the characteristic feature is, that, by taking upon them to execute the will of the king alone, as made known by proclamations, or not as yet known so much as by proclamations, they went to supersede the use of parliaments, substituting an absolute monarchy to a limited one. In the case of the High Commission Court, the mischief was aggravated by the use made of this arbitrary power in forcing men’s consciences on the subject of religion. In the common-law courts, these enormities could not be committed, because (except in a few extraordinary cases) convictions having never, in the practice of these courts, been made to take place without the intervention of a jury, and the bulk of the people being understood to be adverse to these innovations, the attempt to get the official judges to carry prosecutions of the description in question into effect, presented itself as hopeless.
In a state of things like this, what could be more natural than that, by a people infants as yet in reason, giants in passion, every distinguishable feature of a system of procedure directed to such ends should be condemned in the lump, should be involved in one undistinguishing mass of edium and abhorrence; more especially any particular instrument or feature, from which the system was seen to operate with a particular degree of efficiency towards such abominable ends? If, then, in the ordinary courts of law, the practice with respect to the admission of this source of information was wavering, or the opinion of the profession hesitating, nothing could be more natural than that the observation of the enormous mass of mischief and oppression to which it was continually made subservient, should turn the scale. Of this instrument in the hand of justice, or of persons in the place of justice, what was the characteristic property? Its sharpness. But at that particular conjuncture, employed as it was employed, its usefulness, great and pure as it would have been in other times, was converted entirely into mischief: its virtue was spent in the giving energy and efficiency to a system of operations bostile to the security and happiness of the body of the people. In those days, the supreme power of the state was de facto in the hands of the king alone: for as to that of parliament, it had never been anything better than a contingency; and in those days it was a contingency which it was intended, by those on whom it seemed to depend, should never happen: the improbability of its happening, must in those days, in the view of everybody, have been extreme. The king’s power, then, was de facto absolute: being employed and directed against property, liberty, conscience, every blessing on which human nature sets a value,—every chance of safety depended upon the enfeeblement of it; every instrument on which the strength of that government in those days depended—every instrument which in happier times would to the people be a bond of safety, was an instrument of mischief, an object of terror and odium, which, could it have confined itself to the particular application then made of the instrument, and not have extended to the instrument itself, would have been no other than just, and reasonable, and well grounded.
As to the ecclesiastical tribunal called the Inquisition, a circumstance that seems not generally understood, is, that the procedure was little or nothing more than the ordinary procedure employed in the same countries in the higher classes of criminal cases.* Bad as the practice was, what there was peculiar to it belonged, therefore, not to the adjective system, but only to the substantive laws (the laws against heresy) to the exccution of which it was applied. Besides the close imprisonment and the practice of torture, which was common to both, there was indeed, in the forms employed by the ecclesiastical tribunal, a sort of theatrical exhibition, a sort of preaching to the imagination through the medium of the eye, beyond anything that in that way has ever been applied to non-ecclesiastical offences. But this, instead of reproach and odium, would, if viewed in the character of a means to an end (abstraction made of the end,) be considered as an exertion of ingenuity worthy of praise.
Are not Romish inquisitors men?—do not they eat and drink? Is that a reason why Protestants should do neither? In all courts, well or ill organized, in which justice, or what passes for it, is well or ill administered, must not there be a multitude of features in common? The business is, to distinguish the good ones from the bad: and where, upon the whole, the result appears vicious, to observe in what part of the legal system the defect lies, the substantive, or the adjective: whether the means employed are in themselves bad, or bad only in respect of the badness of the end.
If the ends pursued are mischievous, the means employed in the pursuit of them cannot, in so far as they are fit for the purpose, but be likewise mischievous. But upon which of the two objects, in this case, is the mischief to be charged? Not upon the means, surely, but upon the ends. Of the means, nothing more can rationally be required, than that they shall be such as shall not be productive of any mischief, other than that which results from their subserviency to the ends. If you are determined upon war, take care that it be not without good cause: but think not,—no man that ever acted in the character of a statesman ever yet thought, was ever weak enough to imagine, so much as in a dream,—that the strength of his army could ever take anything from the goodness of his cause.
The perfection of a sword is in its sharpness: the sharper it is, if employed against friends, the more mischief it would do, would this be a reason for discarding the use of sharp swords, and using none but what had been blunted? No! the dictate of reason is,—let your sword be sharp, the sharper the better; but take care not to wound a friend with it.
In the hands of an assassin, as in the hands of a constable, an oaken staff will give a harder blow than a deal one; but on that account would it be reasonable to say that, bulk for bulk, and shape for shape, an oaken staff was a worse weapon than a deal one?
What cannot be denied, is, that if it were possible to keep all oaken staves out of the hands of malefactors of every description, putting deal ones in their room, and giving to constables the exclusive use of oaken staves, the effect would be a desirable one. Pursuing the allusion,—to give the benefit of the admission of self-convicting evidence to him whose aim it is to give execution to bad laws, would be, it may be said, to take the deal staff out of the hand of the malefactor, and add to his power of doing mischief by the substitution of the oaken one. But there would be the greatest possible incongruity in saying, such and such laws shall not have the benefit of self-convicting evidence, such and such others shall. The laws to which this benefit is denied, are they good laws? then why put it out of your power to execute them? Are they bad laws? then why are they suffered to subsist?
Seeing the two descriptions of persons whose interest is served by the exclusion put upon this species of evidence, viz. evil-doers of all sorts, and, under the technical system, lawyers of all sorts, in the character of their natural accomplices, partners, and abettors,—we see the two descriptions of persons in whom the exclusionary rule beholds its natural and indefatigable adherents, advocates, and supporters. But in the fraternity of lawyers, we behold the only persons who are in the habit of speaking—the only persons who, if their words are to be taken for it, ever are or can be sufficiently well qualified to speak, in the character of censors, in the way of approbation or disapprobation of any existing rule of law: the persons of whom, speaking of the matter of fact, it must be confessed (how much reason soever there is for wishing that it were otherwise,) that it is of their voices that on this subject the public voice is composed.
Here then, considering the propriety of the rule as a question to be tried at the bar of the public, here is a question to be tried, and to be tried and decided upon scientific evidence: and the persons of whose testimony this body of evidence is composed, are all of them persons who, considered in the character of witnesses, speak under the bias of a sinister interest.
These self-hired witnesses, speaking thus by thousands, all of them in the same strain—and amongst them so many, each of whom is in possession (and in the continual exercise) of the faculty of giving that sort of official judicial testimony which has been rendered absolutely conclusive, no testimony on the other side being suffered to be delivered,—can it be matter of wonder, if the judgment of the unblassed part of the public should by such a torrent be overborne and misled?
Again,—can it be matter of wonder if a non-lawyer, making, in the character of an occasional speculator, an accidental excursion upon this ground—upon ground lying thus within the acknowledged demesne of lawyers—should join without reflection in the cry, recognising (as is so natural) in the unanimous suffrage of such a multitude of counsellors, the voice of truth, as well as the means of safety? And thus it is that in this, as well as so many other parts of the filed of jurisprudence, the public voice is composed: the principal parts by a set of hired performers; the chorus by a band of dupes in the character of amateurs.
History of the rule excluding self-criminative evidence.
The authorities on this subject present, as usual, darkness visible: but, where the subject presents nothing better, even to see that everything is dark, is more satisfactory than not to see.
The earliest dicta which the industry of Viner could discover, are of no earlier a date than the thirty-second of Elizabeth. Here we behold, and for the first time, the maxim which, with its variantes, has since become so famous: Nemo tenetur scipsum prodere; in later times, accusare.
It presents itself in two almost contiguous cases: the first, according to the date given to it, is in the thirty-second year of Elizabeth, in the Common Pleas; the report by Leonard: the other, in the thirty-second and thirty-third year of the same reign, in Michaelmas term, in the King’s Bench; two reporters here, Cooke, afterwards judge, and Serjeant Moore.
In both cases, it was an impertinence: in both cases, the assertion conveyed by it was a notorious falsity. In the only case in which a decision appears to have been given (for in the earliest, the Common Pleas’ case, time was taken for decision, and none reported,) the decision could not have turned upon the rule.
In both cases, the shape in which the cause came before the court was that of a motion for a writ of prohibition to be directed to the ecclesiastical court, on the ground of prætergression of jurisdiction: in both cases, the alleged prætergression consisted in sustaining a suit for incontinence, proceeding therein by an endeavour to examine the defendant upon his oath: in the court in which a decision was pronounced, the prohibition was granted.
But in that case the decision had no need of any such, or any other, general maxim, true or false. In any other sorts of causes than the two particularly specified (viz. matrimonial and testamentary,) administering an oath to the defendant was a practice expressly interdicted to that court, by two writs that are still to be found in the Registrum Brevium; the book of the highest authority of any that compose the library of jurisprudential law.
Yet, in neither case is any intimation given of any reference, made by either court or counsel, to this most irrecusable of all authorities: neither in the case in which it was conformed to, and the prohibition issued accordingly, nor in the prior case in which nothing was done. In this prior case, the reporter (Leonard) gives indeed a reference, but apparently as from himself: and then not to that authoritative repository of judicial documents, but to Fitzherbert’s Commentary on it.
Being probably as yet without a precedent, the application that had been made to the inferior court, the court of Common Pleas, in the case above referred to, had produced nothing but doubts. The application thus made to the superior court, the court graced in intendment of law by the presence of the king himself,—its subordinate having no presence higher than that of the king, without any such adjunct, to boast of,—had a more successful issue. Heartened up by the authority and the Latin of her Majesty’s attorney-general, the great Sir Edward Coke, they pronounced boldly that no such proditio should take place.
Leaving out of the question technical and supernatural causes, and looking out for natural psychological ones, two present themselves as competent, one or both of them, to the production of this effect. One was, jealousy of the power of these spiritual rivals;—another, a sort of personal and prudential apprehension of the lengths to which such impertinent curiosity, if unchecked, might extend itself, on ground of such pecular delicacy.
I. In their anxiety to obtain custom, and to make the most of it when obtained, the courts of common law had concurred, in the manner above explained, in giving encouragement to mendacity, by exempting from the obligation of an oath, and thence from the punishments (religious, moral, and at length political* ) attached to the breach of it, the testimony of parties for or against themselves. Equity, spying in this deficiency an inlet opened to successful rivality, had taken upon herself to withdraw this licence from the defendant’s side of the cause, thereby giving to the plaintiff the till then unexperienced advantage of the defendant’s self-disserving testimony. The jurisdiction of equity had not, however, ventured to extend itself beyond the civil class of causes, nor in that to the whole extent of the field of jurisdiction.
The advantage thus possessed by equity, one of the branches of English Rome-bred judicature, had all along been possessed by another branch, the ecclesiastical. But from some uncertain, though at any rate early period, a resolution had been taken by the common-law courts, that the jurisdiction of the ecclesiastical courts, so far at least as it was to be enforced by the examination of parties upon oath, should not extend to any other causes than such as came under the denomination of testamentary and matrimonial causes. In the Registrum Brevium, a writ, accordingly, is to be found, in which the limitation thus put to the jurisdiction of these courts is assumed.* Moreover, Fitzherbert, in his Commentary on the Registrum Brevium, takes notice of this same limitation and these same terms.† Not that the limitation has been adhered to in practice: for to this hour, the jurisdiction of those courts, together with the power included in it of taking such examinations as above, has a much wider range.
Ever since an early period of the reign of Henry VII., a court had existed, long known by the name of the Court of Star-chamber (a court of criminal jurisdiction, and that to a vast extent,) in which the power of examining the defendant upon oath had all along been exercised.‡
During the whole of the reign towards the close of which the oracle was delivered, this court had been a busy one. In every one of the several reports, it is delivered in the form of a general or universal proposition; no exception, or intimation of any exception, being annexed to it. Taking it thus as it stands, it was, in respect of verity, exactly upon the footing of a proposition denying that the sun ever shone at noon-day.
At that time of day, the Court of Star-chamber, though since abolished, rested upon as firm a foundation as any other of the courts: the decisions pronounced were as uncontested law, as those of any other court: in that character they are reported by all the reporters, indiscriminately with those of the several other courts. Being, under the tyrannical and extortions reign of Henry VII., instituted to serve as a new and more powerful instrument of the crown, unclogged by juries, it was all along an especial favourite.
Against the power of such a court, a power the exercise of which was every day’s practice, it may be imagined of what use or avail could be this or any other proposition, though couched in ever such good Latin, denying the existence of it.
The oracle is of the rhetorical cast, which is as much as to say, in the natural style of oracles: and having, as it was probably designed to have, any one of half a dozen meanings, whichever happens to be most convement to the purpose, it is in proportion guarded against the misfortune of seeing its truth disproved. But if the import of it be, that no question shall be put to a man, the answer of which, if true, may tend to his conviction, the truth of it stands further disproved by the then and still existing every day’s practice of another sort of court. I speak of the court established by the statute of Philip and Mary,∥ the court consisting of a single justice or any number of justices of the peace, for the purpose of taking the preparatory examination of the defendant and others, antecedently to the trial by jury, in the case of felonies. At the institution of this preparatory judicature, the Star-chamber, with its practice of examining the defendant, being in full vigour, and no restrictive direction given, what could be the intention of the legislature but that the mode of examination pursued every day in the Star-chamber (not to speak of the nursery-chamber, and every other room in which common sense was listened to) should be pursued? The examination of the supposed felon was to be taken: but to what end take his examination, or the examination of any other person, but to find out the truth—meaning, of course, the whole truth? “The evidence you shall give, shall be the truth, the whole truth, and nothing but the truth:” such is the direction given, probably at that time, certainly at the present time, to every sort of person when examined in the character of a witness. What reason for supposing it so much as possible, that, in the reign of Philip and Mary, when (in imitation of the course which the retainers of the Spanish monarch had seen pursued all over Europe) direction was given for extracting the testimony of the defendant, any wish so silly should have been entertained as that so much of the truth as should tend to his conviction—that is, to the only direct end and object of the suit—should be left out of it?
Oh! but (says somebody) the practice actually is, under this act, to be cautions of extracting from the defendant any testimony the tendency of which may be to his prejudice; and even, lest any such testimony should escape him unawares, to give him warning to keep his lips well closed. I can very easily believe it: viz. so often as, and no oftener than, in the eyes of the examining justice, the general praise of humanity, and the popularity to be gained by it, is of more value to him than the advantage, public and personal, attending the discovery of the truth in that individual instance. But the question at present is, not what is the practice of modern times, but what was the practice of those early times; viz. in the reign in which this effusion of learned rhetoric is first known to have made its appearance? To understand this, if it be worth understanding, turn to the State Trials; turn to the case of Udall, the puritan minister,* prosecuted and teased to death, in the style of the Spanish Inquisition, in those days of supposed English liberty. Observe there eight personages, and among them two peers and great officers of state, a bishop, a chief justice of the King’s Bench or Common Pleas, the chief justice taking the lead (between three and four month-before the emanation of this writ,) all pressing him, urging him by threats and promises to take an oath, for the purpose of having his testimony extracted from him: he saying that he had already been punished upon such testimony, and (that he might not fall into the same scrape again) deciming to take the oath.
The guilt imputed consisted in the writing and publishing of a book, in which the truth of his religious persuasion was maintained. Assuming this to be guilt, his guiltiness is out of all dispute: in the relation we have of the proceedings (for it is his relation) he avows it. What evidence more satisfactory could have been given of it, than his inability to deny it with any prospect of success? Here, then, was no injustice: of what injustice there was (and sure enough there was no want of injustice,) the seat was in the substantive branch of the law; it consisted in the converting into a capital crime the act of him who makes known, to use the words of Scripture, “the reason of the faith that is in him.”
Thus, then, is it with this famous aphorism: at the time when first delivered, it was sent out in diametrical opposition to notorious truth. But having once found its way into the books, there it lay in petto, in a dormant state, ready, under a favourable set of existing circumstances, like a fly bottled up in spirits, to be revived at any time. When first brought out to view, we have seen it in the condition of “the stone which the builders rejected:” we see it now triumphant, in the state of “the headstone of the corner.”
At the time when brought out, to what purpose was it brought out? To the purpose of displaying the rhetoric and the latinity of the phœnix of the law. To the purpose of the cause, it was altogether useless: the object of the application was, to quash the proceedings of the ecclesiastical court, on the ground of excess of jurisdiction: to prove the excess, nothing more was necessary than a reference to the lawyer’s gospel, the register of writs. What could have occasioned the time taken for advisation, is beyond conjecture.
But though, in the unlimited latitude given to it, the maxim was widely and notoriously untrue,—yet, from that bad authority, and the good but unnoticed authority (the writs in the register,) taken together, there seems reason enough to conclude, that at common law, on all trials in which juries bore a share, the practice of administering an oath to the defendant, and therefore putting questions to him (and particularly in criminal causes,) had never been in use. For in both the writs, the stress of the censure is laid on the administration of the oath; and in the latter it is expressly stated as being contrary to the custom of the nation.
If, then, the application of it had been confined to that part of the law designated on some occasions by the name of the common law,—viz. the practice of the common-law courts,—the truth of the maxim appears indubitable; at least so far as concerns the non-administration of an oath to the defendant, in cases deemed to belong to the class of criminal cases, and subjected to the cognizance of a jury.
But in the maxim, nothing is said about the oath: it goes further, and, in as far as any determinate signification can be put upon it, it puts an equally decided negative upon the practice of putting particular questions to the defendant, with or without the oath. But on this head we are left altogether to seek for evidence. Because no oath was administered to the defendant, it follows not by any means that no particular questions were put to the defendant. In capital cases, to the witnesses called by the defendant no oath was administered till more than a century after;† yet witnesses for the defendant, and those, too, speaking in answer to particular questions, could not but have been heard.
In those dark times, in which moral conduct was so much worse, and terror derived from supernatural sources so much stronger and more prevalent, than at present, the ceremony of an oath appears to have been a tremendous bugbear; so tremendous, that, by this consideration concurring with others, a doubt presents itself whether originally an oath used to be administered at all to witnesses in any causes, civil or criminal, on the plaintiff’s any more than on the defendant’s side.
In the treatise penned by Chief Justice Britton, under Edward I., and, upon the face of it, purporting to constitute a code of law sanctioned by that king’s authority, much is said of perjury. But the crime there spoken of is, throughout, the crime of the judge, or other official person; nowhere the crime of the witness.
Subsequently to the statute of the fifth of Elizabeth (the first statute by which punishment was annexed to testimonial perjury,) cases relative to perjury occur in plenty in the books: antecedently to that point of time I cannot find one.
Investigating a point of this sort is groping in thick darkness. Books of reports, confined in their subject-matter to transactions at trials before a jury, are but of yesterday: in no instance, in any of the report books, containing the accounts of legal transactions of a date prior to the above, is any account of any such trial to be found: add, nor (in relation to any of the points here in question) of any transaction carried on in the course of any such trial.
Of an account of the proceedings in any trial before a jury, of a date prior to that here in question, the only example extant is of the date of 1554; about nine years prior to the date of this statute. It is the trial of Sir Nicholas Throckmorton for treason, in the first year of Queen Mary: for treason supposed to be committed by participation in the insurrection for which Sir Thomas Wyat had suffered death. It is reported from Hollinshed’s Chronicle; and the discourses (as reported) wearing the same dramatic form as on a modern trial, the words appear upon the face of them to have been taken down, as if in short hand, from the mouths of the interlocutors.
Besides a variety of interesting particulars, having no immediate relation to the present subject, it affords very material information in relation to two points that have here been brought to view.
1. In the first place, not only is the defendant heard in his own defence, at his own instance, but questions upon questions are put to him without reserve, in the same manner as if to any extraneous witness: questions, having as plainly for their object the extracting answers of a nature to criminate him, and lead to his conviction, as any questions which a man, aiming professedly at that object, could devise.
Answer given directly and in detail: not a question objected to: no complaint of the illegality, or so much as the hardship of the practice.
2. In the next place (what bears directly upon the point here in question,) it affords no slight reason for suspecting, that at this time (in capital cases at least) the practice of administering an oath to a witness for the prosecution, was either a novel proceeding, or a ceremony the performance of which was optional on the part of the judge.
A written confession made by Cuthbert Vaughan—a man already convicted of the same treasonable conspiracy as that of which the defendant Throckmorton stood indicted (Vaughan still living and producible,)—had been read in the first instance; a proceeding alike repugnant to the manifest principles of reason and justice, and to the present practice. Then ensues the following dialogue.*
“Attorney-General. Why, will you deny this matter? . . . . You shall have Vaughan to justifie this here before you all, and confirm it with a booke oth.
“Throckmorton. He that hath said and lyed, will not, being in this case, stick to sweare and lye.
“Then was Cuthbert Vaughan brought into the open court.
“Sandal or Sandell [Clerk of the Crown.] How say you, Cuthbert Vaughan, is this your own confession, and will you abide by all that is here written?
“Vaughan. Let me see it and I will tell you.
“Then his confession was showed him.
“Attorney. Bycause you of the jury the better may credite him, I pray you, my lords, let Vaughan be sworne.
“Then was Vaughan sworne on a booke to say nothing but the truth.”†
Written confessions and hearsay evidence produced of the supposed testimony of other persons, producible and yet not produced. Exclusion put, and without the shadow of a pretence, upon the testimony of a person then present, and whose testimony had been called for by the defendant. Acquitting him, the jury were prosecuted for it in the Chamber, and punished by ruinous fines.
Execrably flagitious in these and other respects, the proceedings were not the less legal. If the station of judge does not give legality to the proceedings of him who acts in it, how can any proceedings be legal?—Here we have the chief justice of the King’s Bench, another judge of the same court, a judge of the Common Pleas, a master of the Rolls, and a master of the court of Wards and Liveries, all learned, in the law sense; besides a couple of peers, and as many privy counsellors, the lord mayor of London, and a knight; all sitting at Guildhall as commissioners.
Illegal? Oh yes, if irreconcilable to an antecedent series of uninterrupted practice: but in this instance there is not a single case to which it can be opposed. It is the only one we have.*
No practice could come in worse company, than the practice of putting adverse questions to a party, to a defendant,—and in a criminal, a capital case, did in that instance. If, however, the practice be itself subservient to the ends of justice, the having been resorted to in company with others of an opposite tendency, is a circumstance which, how natural a cause soever for reprobation, can never be a just one.
Where no oath has been taken, false and mendacious testimony there may be in any quantity, but perjury there cannot be. The causes have been seen, by which a suspicion at least is induced, that the practice of administering oaths to witnesses, and consequently the possibility of committing testimonial perjury, was, at the time of passing the earliest of the statutes relative to this offence, of no very ancient date. If so, it could not be true, that “perjury” in a witness was “punishable” (to use the words of Lord Coke) “by the common law.”†
True it is, that in that same passage he gives us the history of a case (a Star-chamber case,) tenth of James I., ad 1612, in which it was resolved that perjury in a witness was punishable at common-law. But the very fact, that a resolution to that effect was at that time necessary to be passed, serves, I must confess, to strengthen the suspicion suggested by the former considerations, that it was not true. If, antecedently to the statute, the punishment of perjury had (elsewhere at least than in the Star-chamber) ever been exemplified, the occasions would have been too frequent to leave the matter involved in any such doubt as it could require an express resolution to remove.
To what purpose, then, be at the pains of resolving that perjury was punishable at common law, fifty years after the passing of the statute that had been made to punish it?—The answer is,—because (as we learn from Lord Coke in the same place) upon taking measure of the statute about fourteen years before, it had been found too narrow.‡
Among the various devices in use with English judges for stealing legislative power, this may be mentioned as one: when a statute, which as far as it goes is to their liking, is found not large enough, or has been unmade by the authority that made it, they fill up the deficiency with an imaginary mass of common-law. Common-law, a creation of then own imagination, forms thus a sort of plenum, upon which, as often as a vacuity is to be filled up, they draw at pleasure.
Of self-onerative, self-disgracing, and self-discrediting evidence.
I. Self-onerative evidence.
The distinction between self-criminative testimony and self-onerative is here employed for the purpose of its corresponding to a distinction to which, in the technical system of procedure, so many important consequences have been attached: I mean, the distinction between criminal cases and civil cases.
It is on this occasion that self-criminative evidence calls for a distinction of no small practical importance:—1. Testimony self-criminative to the effect of ultra-pecuniary punishment; and 2. Testimony self-criminative to the effect of punishment not more than equivalent to pecuniary:—a distinction which seems sufficiently explained by the terms in which it is here expressed.
Unless it be where, and in so far as, the testimony comes under the appellation of self-disgracing or self-discrediting,—self-criminative evidence, when in its penal effects limited to punishment not ultra-pecuniary, will (it is evident) to that or any other purpose, stand on no other footing than testimony simply self-onerative. To the extent, therefore, of that part of the scale, the two species, self-criminative and self-onerative, coincide.
If, on the score of any injury, or other transgression, the delinquent is adjudged to pay in each of two cases a determinate sum (say £10,) his unwillingness to subject himself to that obligation will not be less, in the case where the money, when taken out of his pocket, is put into the pocket of his personal adversary, the party injured, than in the case where it is put into the pocket of another party, with whom he has no quarrel; as, for example, the sovereign, whether for his own benefit, or for the benefit of the community at large. On the contrary, if there be a difference, it is in the case where the amount of the quantity of the matter of wealth lost to himself is so disposed of as to add to the enjoyment of his adversary,—it is in that case, that his unwillingness to deliver the testimony which is to be productive of this effect, will naturally rise to the highest pitch.
If,—in the case where the effect of the conviction, if brought upon himself by his testimony, would be to subject him to the payment of the £10 to the use of a person unobnoxious to him,—his testimony, even on the score of the unwillingness and vexation supposed to be attached to the delivery of it, were to stand excluded; while, in the case where the effect of it would be to subject him to the payment of an equal sum to the use of a person more or less odious to him, his testimony (notwithstanding the at least equal unwillingness and vexation that might well be supposed to be attached to the delivery of it) were not to stand excluded; flagrant surely would be the inconsistency with which, in the judgment of every mind not prepossessed and perverted by technical ideas, an arrangement to such an effect would appear chargeable. Give now to the first of the two cases the appellation of a criminal case—to the other, the appellation of a civil case: will the real inconsistency thus seen to exist between the two arrangements of law, be at all diminished by these two words?
Among the different modifications of self-prejudicing evidence above distinguished, the case in which the pretence for the exclusionary rule is most plausible, is evidently the case where the testimony is self-criminative, to the effect of ultra-pecuniary punishment,—where the punishment, to which by the testimony in question a man exposes himself, rises to a degree of afflictiveness above the utmost to which pecuniary punishment, in the highest degree in which a man can be made susceptible of it, is regarded as equivalent.
But even in this case it has been shown, that, by the vexation (be it what it may) attacked to the production of the effect by means of evidence of this particular description, in contradistinction to other evidence at large (i. e. to extraneous evidence,) no sufficient or proper ground for the exclusion of the evidence can ever in any instance be constituted. A fortiori, then, neither can it, in the case where, in respect of the prejudicial effect of it to the deponent, the evidence is simply self-onerative, or no more than equivalent to self-onerative.
2. Self-disgracing evidence.
On the subject of self-disgracing evidence, a distinction must again be noted. If, in the case where the evidence is self-criminative, exposing the deponent to punishment (i. e. to suffering, on account of some transgression of the law of the state, or of the received rules of morality,) the effect of the punishment (whether in respect of the transgression to which it is attached, or in itself) is to subject a man to disgrace;—a question may be started, whether the effect of such disgrace be, or be not, to raise the punishment above the level of the most onerous pecuniary obligation. But, for the practical purpose of determining whether the evidence in question ought or ought not on this account to be excluded, the inquiry would be purely speculative and useless; it being already understood, that by no degree of magnitude on the part of the punishment can a sufficient ground be formed for the exclusion of self-criminative evidence, howsoever modified.
A use that has been made of the appellative self-disgracing is this: where the offence to which the punishment is attached is of a disgraceful nature,—by whatever testimony a man exposes himself to suffer as for that offence, he exposes himself of course to the disgrace attached to it.*
Thus far, then, self-disgracing testimony coincides with, and is included under, self-criminative. But suppose the punishment already inflicted. Here we see a case in which, in the course of a man’s testimony, the fact of his having suffered this punishment, and thence of his having committed this transgression, may be brought to view. Here, then, his testimony, though it cannot (to the effect of its being considered as exposing him to suffer punishment of a disgraceful or any other nature) be ranked with propriety under the head of self-criminative testimony, may, with not the less propriety, be termed self-disgracing. To distinguish it from the case where, by the same means to which a man’s testimony exposes him to disgrace, it exposes him to punishment in other shapes,—it may be termed, simply self-disgracing.
If, by testimony which, besides being self-disgracing, is self-criminative, no proper ground for exclusion can be constituted,—much less can any such ground be constituted by testimony which is self-disgracing simply; self-disgracing without being self-criminative. Not so, however, says English law.†
A man is produced as a witness on either side: on a former occasion he had been convicted of an offence, of which, if ascertained, the effect would be to diminish his credibility—to weaken the force of the persuasion of which his testimony might otherwise be productive. Shall the question be put to him, whether it be true that, on the occasion mentioned, the conviction in question took place? No; says a rule of English law. No? Why not? Because this is making a man disgrace himself—making a man expose himself to shame. And why not make him expose himself to shame, if he has done what by the supposition he has done—that to which the opinion of mankind, following in this respect the finger of the law, has annexed disgrace—properly and deservedly annexed it? Oh! (says the prejudice) because a self-disgracing, or call it a self-degrading answer, is a sort of self-accusing, self-convicting answer: if it be not exactly the same thing, it is analogous to it—it is like it, which is enough for us.
Still the same delusion, still the same shortsightedness, still the same inconsistency and self-contradiction. The witness has been convicted, say of perjury: if his disgrace be offered to be proved by other evidence—by such evidence as the law chooses to receive (say, by the record of his conviction,)—if this be the case, it is all well: the evidence cannot be disallowed. It is not to the act of disgracing him that the prejudice opposes itself; it is only to the channel through which the disgrace is conveyed. Disgraced he may be: disgrace him you may, and welcome:—only he must not be disgraced out of his own mouth.
In this case (as in the case of self-convicting evidence), if so it happens that he has disgraced himself in this same way at some other time,—if any other person affirms that in his hearing he has acknowledged the having undergone any such conviction, or the penal consequences of it,—evidence of this loose extrajudicial confession may be produced and exhibited to his face. It is not that the fact is not to be proved; but it is not to be proved any otherwise than in a bad way: it is not to be proved by immediate evidence—it is only to be proved by unoriginal, by hearsay evidence: it is not to be proved by testimony the whole of which is covered by the sanction of an oath—it is only to be proved by evidence of which the half only is covered by the sanction of an oath.
To what end seek to exempt a man from this accidental shame? It is a suffering that arises out of his delinquency,—and in the nature of the case will bear a proportion (as exact a one as can usually be obtained) to the degree of his delinquency: by the example it affords, it will render itself subservient to the main end and purpose of punishment—the deterring others. In trials in general, publicity is a circumstance not deprecated, but aimed at, and generally approved. Beneficial as it is recognised to be on all other occasions, what should render it otherwise than beneficial on this? The evil, then, is no other than a part, though an accidental part, of the evil of punishment,—that evil which, by the supposition necessarily involved in the institution of the penal law, is outweighed by a greater good. The publicity of punishment is one of the constant and applauded aims of the law upon all occasions, it is only by that part of it which is public and known, that the punishment does any good: so much of it as is unknown, is so much pure evil, so much misery in waste. The publicity of its punishments is one of the constant aims of the law on all occasions, on the particular occasion in question it is attended with a particular use, over and above every use with which in general it is attended: to what end, with what sort of consistency, seek on this occasion to cover that shame, which on all other occasions it is the object of the law to uncover? To what end seek to cover it now,—now when the uncovering of it is demanded for a particular useful purpose?
The inconvenience of the rejection is this: either you cannot prove the fact at all—or if you do prove it, you prove it by evidence the production of which is attended with an additional and useless expense.
The witness in question is, by the supposition, on the spot: get the evidence from him, you get it without any additional expense or vexation in any other shape. If it is not from him that you get it, and yet you get it notwithstanding, the evidence you get of it is a record: a great mass of parchment, which, or a copy of it, is to be lugged into court, at I know not what expense. To avoid loading this guilty person with an ideal suffering, you impose a real suffering upon some innocent one Better for the party perhaps, to let the suspected evidence go for unsuspected, than to purchase the faculty of throwing the suspicion on it at so heavy an expense.
This is not all. Perhaps the record is not producible: there is no time for it. The stain upon the character of the witness does not come to the knowledge of the party till a few days before the day appointed for the trial: the trial cannot be put off for this purpose, or not without a disproportionate expense: and the interval between the day of the discovery, and the day appointed for the trial, affords not time sufficient for the production of the necessary parchment.
Two errors are here combined—two opposite excesses. When the fact of the conviction is suffered to appear, the witness is rejected absolutely: when the truth is thus prevented from coming to light, the tainted testimony is palmed upon the jury for sound. What says reason all this while? That in this case, as in all others, the testimony should be suffered to make its way to the ears of those to whom it belongs to judge, but not without the cause of suspicion stamped upon it, that they should be free to hear it, and free when they have heard it, to bestow upon it such credence as shall appear to them to be due to it.
But cases are not without example, in which, although no punishment at all be attached to the act, or none the application of which could with propriety be trusted to a promiscuous hand, disgrace is nevertheless attached to it. Take for example fornication, especially on the part of a female never married, and of character otherwise unspotted: take, again, adultery, especially on the part of the wife, whose infidelity, but for the testimony in question, might have remained unsuspected, and the peace of the husband undisturbed.
In a case of this sort, no good being attached to the disclosure, but so much pure evil,—the vexation (abstraction made of the demand produced for the testimony, by the cause for the purpose of which it is proposed to be called for) would be not barely preponderant, but pure, without anything in the opposite scale to weigh against it.
Shall it, then, be exacted, or excluded? The answer depends upon the principle already laid down in a former place. Exacted, if the mischief from misdecision for want of the evidence would be preponderant over the mischief consisting of the vexation produced by the disclosure: excluded, if the preponderance be on the other side. Exact it, if (for example) but for the benefit of this evidence, the defendant (the prosecution being capital, and he innocent) will, over and above the disgrace attendant on conviction, be unjustly put to death: exclude it, if the question be no more than whether the defendant be liable to pay a penalty, or an alleged debt, to the amount of a few shillings.
In the two opposite cases here exemplified, the propriety of admission in the one case, of exclusion in the other, will scarcely raise a doubt. Between these two extremes to draw a line of demarcation, will be (as already observed) a task, to a certain degree for the legislator, and, where his means of discrimination terminate, for the judge.
3. Self-discrediting evidence.
The range of self-discrediting testimony is yet more narrow. The term may serve to signify self-disgracing testimony of any kind, so far as it is considered as productive of this particular effect.
Far from constituting of itself a proper ground of exclusion on the score of vexation, it is not in the nature of it to contribute anything to the formation of any such ground on that score. Vexation—all the vexation which it is in the nature of such testimony to be productive of in the breast of the deponent, consists in the disgrace. As to his testimony’s being believed or not believed (it being by himself that whatever evil consequences may result from it are to be borne;) if it were not, in any part of it, to be believed—if, in respect of its effect, it were in so complete a degree self-discrediting,—his vexation would be but so much the less. But such (as every one sees, and as we have seen already) is not the effect of acknowledged untrustworthiness on the part of the deponent, where it is on his own shoulders that the burthen of the decision falls. On the contrary, the more untrustworthy he appears as to other points, the surer everybody is, that whatever part of his evidence is understood by him to operate to his own prejudice, is true.
Case of evidence self-disserving aliâ in causâ, considered.
It may happen that the cause, by means of which the deponent exposes himself to the mischief attached to the self-prejudicing evidence, is not the cause in hand, but another cause, viz. a cause already in prospect, or a cause liable to be produced by the disclosure made by the evidence.
In respect of the quantum of vexation, the variation here in question will make no difference.
But, compared with the opposite case (with the case in which the mischief consists in an unfavourable termination of the suit actually in hand,) the reasons in favour of admission, the reasons against the exclusionary rule, operate in this case with redoubled force.
Against the evil of the self-regarding vexation produced by the self-disserving testimony of a party, there is no other good to be set than the advantage attendant on a right decision, instead of misdecision or failure of justice, in that one cause. But in the case where the proposed deponent is an extraneous witness,—in addition to that same lot of advantage (in so far as the testimony is in this respect efficacious) there comes the advantage attendant on a right decision, instead of misdecision or failure of justice, in another cause: to wit, the additional cause to which it is the tendency of such disclosure to give birth.
Prosecution for robbery: John Stiles examined in relation to it, in the character of an extraneous witness. A question is put, the effect of which, were he to answer it, might be to subject him to conviction in respect of another robbery, attended with murder, in which he bore a share. On the ground of public utility and common sense, is there any reason why the collateral advantage thus proffered by fortune to justice should be foregone? Refusing to compass the execution of justice by this means, by what fairer or better means can you ever hope to compass it?
The punishment he will incur, if any, will be a distinct punishment, for a distinct offence; an offence which, at the institution of the suit, was perhaps never thought of.
Be it so: and should this happen, where will be the mischief? wherein consists the grievance? That a crime, which, but for the accident, might perhaps have remained unpunished, comes, by means of this accident, to be punished. Of the penal law in question, nothing being known but that it is a penal law, is it thereby known to be a bad one? and to such a degree a bad one, that the execution of it is a grievance? Is the state of the law then such, that a law taken at random is more likely to be a bad one than a good one? a nuisance than a security? Or is a law the less likely to be good, the more likely to be bad, because it is by this accident, rather than any other, that the transgression of it happens to be brought to light?
This increase of reason, this reduplication of advantage, extends itself (it is evident) with proportionable force from the top to the bottom of the scale of good on one hand, of evil on the other, attached to self-prejudicing, to self-disserving, evidence: to all degrees of self-criminative—to all degrees of self-onerative, to all suits called criminal—to all suits called civil.
But what shall we say, if, by a summons to appear as a witness in a cause (penal or non-penal) between other persons, an individual is purposely entrapped; and, being (in obedience to that summons) actually in court, is interrogated concerning a distinct offence supposed to have been committed by himself, and, in consequence of his answers, stopped and consigned to durance. What? Why,—that, so a delinquent be but brought into the hands of justice, just as well may it be by this means as by any other. Truth is not violated—fiction is not employed: no false tale is told—no falsehood here defiles the lips of justice.
Nor, though possible, is the case likely to be frequent. The question must be relevant, pertinent to the cause actually in hand, or an answer will not be (for it ought not to be) allowed to be given.
The suit not as yet in hand, may possibly have been the principal object in view in the summons. But what if it be? If, instead of being, in this way, stopped when appearing to give evidence in another suit, the witness had been arrested in consequence of a direct charge made upon him on the ground of such his offence,—in what respect would his guilt have been increased, or his suffering, in respect of it, diminished?
Even now, it occasionally happens that a person summoned to appear as a witness in a cause to which he is not a party, appears accordingly, and, being deemed guilty of perjury, is committed.
But even under the supposition that the admission of indirectly elicited self-convicting evidence were, as such, improper; still, if the admission of directly elicited self-convicting evidence be proper, no distinct mischief can be chargeable to the account of self-convicting evidence when indirectly elicited. Why? Because, admitting the propriety and consequent existence of the practice of admitting self-convicting evidence, a regulation excluding the faculty of extracting self-convicting evidence incidentally, would not operate as a bar to the supposed mischief: since the evidence in question, if not extracted out of the cause in which it happens incidentally to present itself, might always be obtained; viz. by a distinct suit instituted on purpose: and with the same mischief and suffering to the party prejudiced,—viz. the delinquent; though not with the same convenience in respect of dispatch, and in respect of the throwing those fuller and ulterior lights that might thus be thrown upon the offence first pursued, by other offences that happen to be connected with it. In a word, supposing direct evidence of this kind to be admitted,—then, if you exclude incidental, whatever effects may be apprehended from it, of a kind which are (with or without reason) regarded as inconvenient, will still be produced, but with additional inconvenience.
An effect (for example) which certainly might, by design and contrivance, be brought into existence by incidental self-convicting evidence, is, that of instituting a sort of feigned suit, penal or non-penal, for the purpose of bringing to light, not the facts belonging properly and directly to the avowed cause of action, but others, of a complexion differing to any degree of remoteness. Suppose, for example, a project formed for bringing down disgrace and punishment on the head of an individual, by means of questions to be put to him, in the character either of a defendant or a witness, in a cause to be instituted on purpose; drawing thus out of his mouth the confession of some crime, or disgraceful act, for which he has not been prosecuted. May not this be done? Yes: but not with any advantage to the party whose invention is supposed to be thus employed, nor with any disadvantage to the party against whom it is supposed to be employed. Why? Because in this there is nothing more than what might be done in a direct and ordinary way, by a suit instituted on purpose.
In every point of view, then, in which it can be considered, the practice in question appears to stand clear of objection. In the first place, because the result supposed to be produced, cannot, with any propriety or consistency, be reckoned in the number of undesirable results: in the next place, because, though it were, no ulterior facility is afforded for the production of this supposed undesirable result: no new or ulterior facility is afforded, beyond what would exist without it.
Under the systems of procedure derived from the Roman law, and in particular under that formerly pursued in France, self-convicting evidence being allowed to be extracted in the direct way, so is it in the incidental and occasional way above described. The result is in the highest degree favourable to the interests of justice. At a very early period of my studies, accident having conducted me to the collection of remarkable trials known by the name of the Causes Célèbres, comparing what I there observed with such observations as it had fallen in my way to make in relation to trials (and especially in criminal causes) conducted in the English mode, one very striking point of diversity caught my eye. In the English mode, when any plan of deep and extensive artifice and villainy presented itself, it was only into here and there a corner of it that the light of discovery appeared to have been thrown: a multitude of circumstances remained still involved in darkness: a multitude of particulars still remained, in respect of which, the mind of the inquirer remained unsatisfied: he who should propose to himself to draw up a complete history of the criminal transaction, would find materials continually wanting—would, in a word, find the task impracticable. Why? Because, out of a multitude of delinquencies committed, the inquiry was, by the narrowness of the path chalked out for the course of procedure, confined to one: because, by this or that arbitrary and irrational rule, a seal was put upon the lips of those who knew most about the matter.
In the French mode, on the other hand, every transaction appeared to be sifted to the bottom; no doubt remained: all the actors—all the sufferers—were brought upon the stage; proximate causes, remote causes, concomitant circumstances and consequences, all stood before the reader at a view.
In the same proportion in which the faculty and practice of reaping the collateral advantage now and then presented by the self-disserving testimony of an extraneous witness, is beneficial to the interests of society, it is prejudicial to the opposite and adverse interest,—the interest of the professional lawyer, under every system—the interest of the official as well as of the professional lawyer, under the fee-gathering system.
It defrauds him (that is, if admitted, which he has taken care it shall not be—it would defraud him,) and in a double way, of his due. In the suit already in hand, it defrauds him of the several advantages already enumerated under the head of the uses of the exclusionary rule to the man of law. By means of the effect with which it may be, and (when the testimony thus obtained is sufficient to warrant the decision it points to) ought to be, attended, it defrauds him of the whole of the profit that might have been extracted from the additional suit, had it commenced and been continued in the regular and ordinary course: it produces to the community at large the benefit of two suits, with the delay, vexation, and expense, and consequently with the lawyer’s profit, of no more than one.
This being the case, it may without difficulty be imagined how sincere an abhorrence the idea of a practice thus informal and irregular excites in their inflexible and learned breasts: with what heroic firmness they adhere, on this doubly important ground, to the exclusionary rule: with how tender a sympathy they contemplate, as if it were their own, the peril of the malefactor, or other evil-doer—in whatever degree, and on whichever side of the cause, their customer, their partner, their best friend.
INCONSISTENCIES OF ENGLISH LAW IN REGARD TO SELF-DISSERVING EVIDENCE.
This rule, this exclusionary rule, which grounds itself on the evil of vexation, would not be a rule of jurisprudential law (more particularly of English jurisprudential law,) if it had not its exceptions: and these exceptions (no intimation being given of them in the rule) forming so many contradictions; and the reasons of them (not being good but on the supposition that there are no reasons, or none but bad ones, for the rule) forming so many inconsistencies.
In a former place there was occasion to mention, in the character of so many uses to justice attending the admission of self-prejudicing testimony (that is, of questions leading to the extraction of it,) that thereby the receipt of two other species of evidence from the same source—evidences equal at least in vexation, inferior in instructiveness, safety, and trustworthiness—would in general be saved. These were—1. Papers (such as letters or memorandums) containing a discourse supposed to be that of the party; and 2. The supposed extrajudicial conversation supposed to be held by the party, on any occasion not being a judicial one, and reported by another person in the character of a judicial witness.*
Useful, in case of necessity, for the purpose of strengthening or weakening the opinion of the trustworthiness of the immediate evidence from the same source,—useful, though less safe, in the character of succedanea to it when it is not to be had,—who does not see how bad a substitute these unsanctioned and uncross-examinable evidences make, for the mass of immediate testimony from the same source? when it is to be had, and under the same securities for its correctness and completeness (viz. oath or what is equivalent, and counter-interrogation) as in the case of an extraneous witness.
These secondary and inferior species of evidence are accordingly admitted: but upon what terms? Upon the terms of their not receiving the confirmation, infirmation, explanation, or completion, that could have been applied to them by the immediate evidence from the same original source. Upon condition of their being freed from that check—of the judge’s refusing to himself the benefit of that security against deception and misdecision; and no otherwise.
1. First contradiction to the exclusionary rule:—admission of the supposed casually and extrajudicially written discourse of the person excluded; to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.
2. Second contradiction to the exclusionary rule:—admission of hearsay evidence, purporting to contain the casually and extrajudicially spoken discourse of the person to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.
Of the vexation, for the avoidance of which such sacrifices have been made.—sacrifices not to, but of, the interests of truth and justice,—an estimate may now be made. It is the difference between that which a man feels when the testimony, in consequence of which he sees himself exposed to suffer, whatever it be, issues on the occasion in hand immediately out of his own lips or from his own pen,—and that which he feels, when—testimony to the same effect, exposing him to the same suffering, neither more nor less, having happened on some preceding occasion to escape from his own lips or his own pen,—he hears or sees it brought out against him on the occasion in hand, from the lips or the pen of some other person;—the difference between what he feels at hearing brought out against him information which dropped from him at a time when he was off his guard, and knew not the use that would be made of it,—and that which he feels at the yielding the same information at a time when he is completely upon his guard. Now then, what is the real value of the mischief, in contemplation of which an amendment has been made on the maxim, fiat justitia, ruat calum—justitia being erased, and injustitia substituted?
But it is a weight added to a man’s affliction (it may be said) to have the proof that is to subject him to punishment drawn out of his own mouth. A weight? No, not of a feather. What is this burthen, compared with the burthen imposed without remorse upon individuals completely innocent—upon the individuals convened as witnesses? The suffering—the real suffering—is that which is inflicted by the punishment itself: a suffering, the infliction of which is by the supposition (speaking with reference to the aggregate interests of the community) a desirable event. In that, and that alone, consists the real affliction. As to the supposed addition—a mere metaphorical quantity—except in the mind of the rhetorician it has no existence.
You are sure of being convicted: by what sort of evidence would you choose rather to be convicted? By the evidence of other people without any of your own, or by evidence of other people’s and your own together?—Were a question of this sort put to a malefactor, would it not be matter of perplexity to him to choose? Would not a pot of beer or a glass of gin, on whichever side placed, be sufficient to turn the scale?
But allowing, for the sake of argument, that there is a difference between the pain in the one case and the pain in the other—for my own part, I can see none—but if there be, can it be assumed as a competent and sufficiently broad and solid ground for the establishment of a rule of law? Is there anything here capable of being set against the mischiefs of impunity? the mischiefs of the offence (be it what it may) which the law in question—the law which the rule of exclusion in question seeks to debilitate—is employed to combat?
Justice out of the question (which certainly has nothing to do in it,) refer the matter to mercy—whatever he meant by mercy—and ask, whether a malefactor be the less deserving of mercy, because it so happens, that, without putting any questions to himself, evidence sufficient for conviction happens to come in from other sources?
In England, society exists; therefore English law must have given admission, either to the makeshift or to the regular evidence from that same source. It excludes the regular—it admits the makeshift. Observe, then, the result of this prodigious scrupulosity, of this sentimental tenderness:—a preference, and that an exclusive one, given to inferior evidence.
Lawyer. Inferior? Ay, in your estimation.
Non-Lawyer. Yes: But I speak not of my own estimation only, nor of the estimation of men in general only, but of your own. Suppose it the case of an extraneous witness—a person whose testimony it is proposed to call in, he having no share or interest in the cause. Do you in that case accept of a letter or memorandum of his, or a supposed extrajudicial discourse of his, in lieu of the judicially delivered testimony of his own hand, or the immediate evidence of his own lips? Do you in this instance exclude the regular, open the door to the makeshift evidence, from the same source? Not you, indeed, far from excluding the regular evidence, you do not admit the makeshift: far from giving an exclusive admission to the makeshift, you do not (unless incidentally, for infirmation or confirmation) give it any admission at all.
3. In the short and disastrous reign of Philip and Mary, came out the statute* so often mentioned, in virtue of which, in cases treated as criminal, and where the punishment rises to that of felony, justices of the peace, acting singly, are empowered to resort to the mouth of the defendant (the supposed transgressor) for information on the subject of the offence.
Not a syllable can he utter that may not have—that was not designed at least to have in case of his having been guilty—the effect of self-criminative evidence. Not a minute after any such question put to him can he remain silent, but his silence (at least if the use were made of it that might, and ought, and was intended to be made of it) would, in like manner, have the effect of self-criminating evidence.
Contradictory, however, as this statute is, when compared with the jurisprudential rule, the charge of inconsistency (it must be confessed) extends not to this case. The rule was the work of the man of law seeking his own ends: the exception—a sprig of common sense, imported from the continent of Europe, and planted in a bed of nonsense and hypocrisy, by which it has been nearly choked—was the work of the sovereign, seeking the welfare of his people through the ends of justice. Happy the nation, had no worse importation taken place under the auspices of Spanish influence!
Third contradiction to the exclusionary rule:—preparatory examination of suspected felons, under the statute of Philip and Mary.
Thus far we have seen the contradictions given to the rule, when the punishment, to which the man exposes himself by his self-criminative evidence, is ultra-pecuniary; rising, in its lowest degree, above the highest level to which pecuniary punishment is capable of extending itself.
Observe, now, the contradictions which it has received in the case where the punishment is not ultra-pecuniary,—does not, in its highest degree, rise, in point of afflictiveness, above the level of pecuniary punishment.
But in the case where, in how heavy a degree soever onerous, the heaviest obligation to which the party stands exposed does not wear the name of punishment,—self-onerative, self-onerative simply, is the name that has been given to the evidence. The cases embraced by self-criminative evidence exposing the party to punishment not beyond pecuniary, and the cases embraced by evidence simply self-onerative, are therefore, to this purpose at least, the same cases: the rules and practices, therefore, that operate in contradiction to the rule excluding self-onerative evidence, are so many contradictions to the rule by which self-criminative evidence, to the effect of punishment not ultra-pecuniary, stands excluded.
4. A motion for an information (a criminal information) is a suit instituted to know whether a suit shall be instituted: a suit carried on upon the worst evidence that can be found, to know whether a suit for the same cause shall be carried on upon good, or less bad, evidence: a suit carried on upon premeditated, preconcerted, uncross-examinable evidence, to know whether the same suit shall be carried on upon unpremeditable, unconcertable, cross-examined evidence.
When the prosecution is in this mode (and there are few crimes short of capital, the prosecution for which may not be carried on in this mode,) the principal piece is never suffered to be performed before a single judge, for the benefit of justice, till in this style a prelude to it has been rehearsed at his majesty’s theatre in Westminster Hall, for the benefit of the lawyers.
Lawyer. Nay, but what is this to the purpose? Here no questions are asked: the defendant says what he pleases.
Non-Lawyer. True, sir; no questions are put in the form of questions: but allegations have been made—allegations, which, to the purpose here in hand, howsoever imperfectly calculated for the complete and correct discovery of truth, have the effect of questions. By the affidavits of those willing witnesses whom he has procured to join with him, the prosecutor has made his charge. The defendant delivers in his affidavit or not, as he thinks fit: but (the rule having been made upon him to show cause) so sure as he omits to deliver in an affidavit, so surely, in this preliminary suit, is he cast. If he pleases, he may be silent, taking the consequences; and so he may be, though the exclusionary rule were abolished.
Of a complete abolition of the exclusionary rule, what (at least in the case of a party) would be the effect? Not compulsion, the exaction of an answer; but simple permission—permission to put questions: he to whom the question is put, answering or not answering, at pleasure.
Are you an equity draughtsman? You are not to learn, then, that in equity, an allegation, a charge, is everything—a question, nothing. Is the fact made up into a charge? Question or no question, interrogatory or no interrogatory, an answer is compelled, and compelled by means far more rigorously coercive. Is an interrogatory put without a charge for its support? It is as if nothing had been said.
Lawyer. But can you say the obligation upon him to answer is equally coercive in this case, as before a jury at the assizes, the Old Bailey, or Guildhall?
Non-Lawyer. Oh yes; that I can. The obligation to speak true, no: on the contrary, if he be guilty, he has every encouragement that can be given to him to engage him to speak false, and upon his oath—to engage him to commit perjury: 1. Time for premeditation: 2. Attorneys and counsel to instruct and assist him in the arts of evasion; 3. Time for concerting a story with co-affidavit men and co-perjurers, if he can get any; 4. No questions asked; 5. The assurance that if he swears hard enough, his own testimony, though with the testimony of the prosecutor in the teeth of it, will be conclusive, and save him from all further trouble. Truth, therefore, if guilty, he has every encouragement not to speak: but something he is bound to say, or condemnation ensues. If the charge be strong enough, to one or other obligation he stands bound continually—either to criminate himself, or to perjure himself.
Lawyer. Condemnation! why talk of condemnation? Is not the trial, the inquiry by the result of which he may be either convicted or acquitted, yet to come?
Non-Lawyer. Yes; in the case of an information. But be pleased to go on to the next article.
5. There are a class of suits which, though not much less frequent than the denominated ones, have never yet received a name; let us call them Motion Causes. The demand,—instead of being stated by the pen of one sort of lawyer, in the form of a written instrument, an indictment, an information, a declaration lodged in an office,—is stated by the tongue of another sort of lawyer, in a harangue made in open court, called a motion. Instead of being tried on vivâ voce evidence, the question in this case is tried solely upon affidavit evidence.
On an information, after having had the advantage of being condemned once on bad evidence, a man may have the privilege of being condemned again upon better evidence. But in a motion cause, condemned once, he is condemned for good and all: if condemned at all, he is condemned upon the bad evidence.
Of these motion causes, some are considered as criminal causes, some as civil causes. Criminal causes: for example, motions for attachment; motions that the defendant may answer the matters of the affidavit. Civil causes: for example, motion to set aside proceedings for irregularity; motion to set aside an award that has been made a rule of court.
Under the head of motion causes may be ranked (to this purpose at least) petition causes: the causes by which masses of property are disposed of to any amount, in the case where the possessor has been aggregated to that class of insolvent debtors who have been styled bankrupts. In these cases, whatever motion the ears of the judge are entertained with, is preceded by a written instrument called a petition, which gives him little trouble. In these cases, the evidence by which the cause is decided being purely affidavit evidence, they present, in this respect, no difference to distinguish them from the aggregate mass of motion causes.
6. Another occasion on which self-disserving evidence, and that self-criminating, is not only allowed to be called for, but compelled, is that on which the evidence is extracted from a defendant by the subordinate judge called the master, by means of ready written questions, called on this occasion interrogatories.
So seldom does the occasion for this operation present itself, that it would not have been worth mentioning, except that it may be seen that it has not been overlooked.
In the case of an information, the second inquiry before a jury comes on of course, if,—on motion for leave to file the information, and the first inquiry—affidavit inquiry (if an inquiry it can be called, on which no questions are asked) in consequence,—the rule to show cause is followed by an absolute rule, leave granted, and information filed. If the second inquiry comes of course, the cause cannot, to the disadvantage of the defendant’s side, be determined without it.
In the case of an attachment, unless it be in one out of several hundred (not to say thousand) causes, the first inquiry is the only one; the fate of the defendant is determined by it.
But in a case that has been known now and then to happen, after the fate of the defendant has been determined on the ground of the affidavit evidence, with or without extraneous witnesses on both sides, the defendant alone is subjected to a second inquiry, performed by the ready written questions as above mentioned.
On an occasion of this sort, no more reserve is used than would have been used had the rule nemo tenetur seipsum prodere never been heard of. If time is given him to study his answer, and a copy of the interrogatories given him for that purpose, he is thereby examined in the way a defendant is examined in the civil suits called equity suits. If answers are required of him on the spot, he is thereby examined as extraneous witnesses are examined, on the occasion of these same equity suits.
7. Must it be mentioned? Yes, it must; how frequent soever may be the need of mentioning it on other occasions:—or the catalogue of the inconsistent infringements of this rule will not yet be complete. In cases of indictment and information, if the defendant has been convicted by his own default, or by a jury upon the good evidence, the appetite of the partnership is not yet satisfied: the chain of inquiries is not yet regarded as complete, without a third inquiry, in which the cause is tried over again upon the bad, the affidavit, evidence. I speak of the supplemental inquiry, carried on antecedently to, or upon, his being brought up for judgment.
By the same evidence by which the same cause is thus tried over again for the third time, another cause (it frequently happens) is tried for the first and last time,—another cause, of which no jury has had cognizance. I speak of the charges so frequently brought against the same defendant, for misbehaviour alleged to have taken place at a time subsequent to that of his conviction by the jury for the former cause.
Such is the respect really paid to that most useful of all stalking-horses, an English jury: the gorgeous idol, under whose convenient mantle so many abuses lodge themselves. Such is the respect really paid, even in criminal causes, to the accommodating maxim—to the flexible, the truly Lesbian rule, nemo tenetur scipsum prodere.
On every man, obligation to betray himself: to every man, encouragement at the same time to perjure himself. Such is the state of things, as often as, in regard to a disputed question, affidavit evidence is received.
8. Coeval, or not much short of coeval, with the practice on jury trials which admits not of the putting a question to either party in the cause, is the practice of the equity courts, by which, to so great an extent, the proceedings in the causes in which juries are employed are obstructed or overruled:—not to speak of the wide-extending class of demands of which equity alone takes cognizance, the all-sufficient power of common law not affording to these rights so much as the semblance of a remedy.
But in no one instance whatever was any cause heard in equity, but—in and by the very instrument (the bill) in and by which the demands of the plaintiff are signified—the defendant is called upon to betray himself, as truly as it is possible for a man to be called upon to betray himself. The questions being put in writing, time is indeed given him to meditate and concert safe perjury, as in the case of affidavit evidence. Answer he must, or, when he has been plagued and squeezed sufficiently in other ways, his silence is taken for an answer in the affirmative; the bill is taken pro confesso; and that which to his prejudice the plaintiff prays may be done, is done.
Lawyer. But equity causes are but civil causes. Admitting this to be the practice in equity, it is not, for this instance at least, the less true, that no man is bound to criminate himself.
Non-Lawyer. True, equity causes are but civil causes: so that, by the effect of the question put to him, a man is not exposed to lose more than his whole estate. But of that estate the value may amount to any number of hundreds of thousands of pounds, seens which now-a-days are running on to millions. In a cause denominated a criminal cause, did you ever, in the whole course of your practice, know an instance of a man’s suffering a loss to the amount of two thousand pounds? Were the option your own, to which of two losses would you give the preference: to a loss of £2,000, to be taken from you in a cause called a criminal cause, or to a loss of £200,000, to be taken from you in a cause called a civil cause?
Contradictions in substance are not to be reconciled by words. The jurisdiction of the courts of equity is civil merely: be it so; for civil is but a word. But if vexation or no vexation is the issue—if feelings themselves, not the words employed in speaking of them, are to be regarded,—the quantity of vexation to which a man may thus be made to subject himself by his testimony, when extracted from him by this court of purely civil jurisdiction, surpasses by a great deal the utmost quantity of vexation of the same kind, to which he could be subjected were his testimony extracted from him with a view to punishment, to be inflicted upon him under the name of punishment, in a court of criminal jurisdiction, where either attachment or information, and in perhaps the greater part of the cases in which indictment, is the name given to the suit.
Taking the ends of justice for the standard, here we see a tissue of inconsistencies. Viewing as the sole ends in pursuit the established ends of judicature, all inconsistency vanishes.
The parties examining one another vivâ voce, and at the outset, in the presence of the judge, as in a court of conscience,—so far, no pretence for fees, no more than in a court of conscience, no delay, no pretence for delay, no motives for producing delay, no more than in a court of conscience. Set them to fight with affidavits manufactured by attorneys, fees spring up in plenty. Affidavits the seed, perjuries and fees, like ryegrass and clover, spring up together.
Set them to examine one another in the epistolary style, as in and by a bill in equity (that is to say, a pair of bills, a bill and a cross bill,) the examination takes up twice or three times as many months, as in a court of conscience it would have taken minutes. The prolific examination, crawling on for ten, fifteen, or twenty months, fees pullulating from it all the time. A suit in equity, perhaps, to do nothing but get the evidence: and then a suit at common law, six, twelve, or eighteen months, to give employment to the evidence.
EXAMINATION OF THE CASES IN WHICH ENGLISH LAW EXEMPTS ONE PERSON FROM GIVING EVIDENCE AGAINST ANOTHER.
The exemption improper
If the testimony of a party to his own predudice ought to be compellable, so ought that of any other person. If the vexation of which it might be productive to Rens to contribute by his even evidence to subject himself to the obligations of justice, affords no sufficient reason for the dissolving of these obligations,—still less can any good reason be drawn from the vexation resulting from that same source, for depriving justice of the benefit of any other testimony.
This sort of second-hand vexation, reflected from the former, must be of one or other of two descriptions: the seat of it, in the bosom of one or other of two persons.
Is it in consideration of the vexation that Reus himself would suffer, from the prejudice that might accrue to him from the evidence of Amicus,—is it for this reason, that justice should be deprived of the benefit of Amicus’s testimony?
But it will hardly be said, that a man’s sufferings will be greater, at seeing evidence to his prejudice extracted from another bosom, than at feeling it extracted from his own.
Is it in consideration of the vexation that Amicus would suffer, from the thought of the prejudice that might accrue from his evidence to Reus,—is it for this reason that justice should be deprived of the benefit of the testimony of Amicus?
But it will hardly be said, that a man’s sufferings will be greater at the idea of an evil considered as about to befall another person (whether from his own instrumentality, or from any other cause,) than at the idea of the same evil—of an evil the same in magnitude (probability and proximity considered,) as about to fall upon himself.
Secus, if Reus and Amicus were Nisus and Euryalus. But Reus and Amicus are not Nisus and Euryalus; they are average men. It is not to fabulous, nor yet to extraordinary characters, but to ordinary ones, that the provisions of the legislator ought to be adapted.
Suppose such a plea admitted; observe the consequence. By what criterion shall the degree of sympathetic sensibility on the part of Amicus be determined? By what sure token, open to the eyes and estimation of the judge, shall it be discovered that the fate of Reus is in any degree an exciting cause of the affection in question, in the breast of Amicus? From the ties of blood? The presumption is strong; but unhappily not so strong as to be conclusive. From any other ties? The presumption is weaker and weaker ad infinitum.
Admitted, the plea would put into the hands of the judge, at least with the concurrence of the proposed witness, the faculty of excluding or admitting any man’s testimony at pleasure. The sentimental candidate for exclusion, what in this case should he do?—should he speak, and weep, and faint for himself? or fee counsel to speak, and weep, and faint for him?
Lawyer and client.*
English judges have taken care to exempt the professional members of the partnership from so unpleasant an obligation as that of rendering service to justice. “Counsel and attorneys . . . . ought not to be” (say rather are not) “permitted to discover the secrets of then clients, though they offer themselves for that purpose.”†
On which of the two above-mentioned grounds does the exemption rest in those learned bosoms? Is it that the client would suffer so much more from being hurt by his lawyer’s testimony than by his own? or that a man is so much dearer to his advocate and his attorney, than to himself?
The oracle has given its response:—“The privilege is that of the client, not of the attorney.”‡
When, in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court, might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not? Oh, because to betray a trust is treachery; and an act of treachery is an immoral act.
An immoral sort of act, is that sort of act, the tendency of which is, in some way or other, to lessen the quantity of happiness in society. In what way does the supposed cause in question tend to the production of any such effect? The conviction and punishment of the defendant, he being guilty, is by the supposition an act the tendency of which, upon the whole, is beneficial to society. Such is the proposition which for this purpose must be assumed. Some offences (it will be admitted by everybody) are of that sort and quality, that the acts by which they are punished do possess this beneficial tendency. Let the offence in question be of the number: it is of such only as are of that number that I speak. The good, then, that results from the conviction and punishment, in the case in question, is out of dispute: where, then, is the additional evil of it when produced by the cause in question? Nowhere. The evil consists in the punishment: but the punishment a man undergoes is not greater when the evidence on which the conviction and punishment are grounded happens to come out of the mouth of a law adviser of his, than if it had happened to come out of his own mouth, or that of a third person.
But if such confidence, when reposed, is permitted to be violated, and if this be known (which, if such be the law, it will be,) the consequence will be, that no such confidence will be reposed. Not reposed?—Well: and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray: let the law adviser say everything he has heard, everything he can have heard from his client, the client cannot have anything to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be,—Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerning a false defence, as he may do at present.
Except the prevention of such pernicious confidence, of what other possible effect can the rule for the requisition of such evidence be productive? Either of none at all, or of the conviction of delinquents, in some instances in which, but for the lights thus obtained, they would not have been convicted. But in this effect, what imaginable circumstance is there that can render it in any degree pernicious and undesirable? None whatever. The conviction of delinquents is the very end of penal justice.
Observe the inconsistency between the rule in the case of the particular species of contract in question, and the rules observed in general in respect to contracts. Of contracts in general the fulfilment is beneficial to society: of contracts in general the fulfilment is accordingly enforced. But there are some contracts the fulfilment of which would be pernicious to society: every crime, every offence, supposing the prohibition put upon it by the law to be well grounded, affords an example: viz. that of a contract for the joining in the commission of such offence. The contract between a delinquent and his law adviser, is a contract which has for its object the enabling the delinquent to escape the punishment which is his due. With what consistency, to what end, would the law seek to enforce a contract to such an effect? Suppose a like contract between a delinquent and his jailer—a contract, the object of which shall be to enable the delinquent to escape. Does the law seek to enforce this sort of contract? No, not anywhere. But why not? It might, with as much reason as in the other case.
If the law adviser, of his own motion, the law neither commanding nor forbidding him, were to offer his testimony for the purpose of promoting the conviction of his client, the imputation of treachery would have, if not a good ground, at any rate a better, a more plausible ground. But the question is not, whether the lawyer shall thus offer his testimony; but whether the law shall command it, or authorize him, nay force him, to refuse it.
Compare the law in this case, with the law in the case of treason—misprision of treason. If, knowing of an act of treason committed, a man forbears to give information of it, such forbearance is punished, and certainly not without reason, as a high crime. In the case of the law adviser, the rule now under consideration would probably be deemed applicable to the crime of treason, as well as to all others. The law in this case finds a man in whom it protects that very species of conduct which it punishes in every other man: and that species of conduct a mischievous one; one of which the effects cannot but be pernicious. To what end, with what consistency, can the law find out a man to receive with safety, and even under an obligation of concealment, that confidence, that pernicious confidence, which it punishes in every other man?
Another inconsistency. To confidents taken from other professions, neither the obligation nor the permission of secrecy, as against justice, extends. A physician, a surgeon, is compelled to disclose what may operate towards the conviction of his patient.
To the credit of the judges of latter times, this superstition appears to have been not much to their taste: by decision after decision they have pared it down and narrowed it, to a very considerable degree. From a counsel, from an attorney, evidence may be extracted of facts which came to their knowledge before they were retained:* of facts disclosed to them by the client after the suit was at an end by compromise:† of facts which, though falling under their cognizance no otherwise than in consequence of their professional intercourse with their client, were not directly communicated and confessed by him:‡ of facts which, though coming to their cognizance in consequence of such intercourse, might (it is said) have come to their cognizance without it.∥
In a word, so fine has the hair been split, that, when an attorney has been consulted with, not (it is said) as an attorney, but only as a friend, evidence of the facts that come under his cognizance has been extracted from his mouth.§ Quære, by what sign to know when it is the attorney who is present, and when it is the friend? In the case of the counsel, there might have been less difficulty: the professional robe, by being off or on, might distinguish the counsel from the friend.
Hawkins,¶ speaking to the question, “What kind of receipt of a felon will make the receiver an accessary after the fact?” says, “It seems agreed that, generally, any assistance whatever given to one known to be a felon, in order to hinder his . . . . . suffering the punishment to which he is condemned, is a sufficient receipt for this purpose.” (By the word condemned, he means no more than doomed by the general disposition of the law, not condemned in consequence of a particular prosecution instituted: for in all the examples he gives, the assistance spoken of is given before prosecution.) The lawyer who, knowing from the confession of his client that such client has committed a felony, enables him by his counsel to avoid “suffering the punishment to which he is condemned,” is, according to the above definition, an accessary to such felony; viz. an accessary after the fact. In practice he certainly would not be deemed so. What I mention the case for, is to show the inconsistency. In the case of the law adviser, the “policy,”** as it is called, of the law, is to protect that sort of man in affording to a crime that very sort of assistance, the giving of which it punishes in any other sort of man—punishes, and even to such a degree as to treat him as an accomplice. In a case like this, it would certainly be too much to punish the law adviser as an accomplice, for lending his advice (which is his mode of assistance) to a guilty client, or for not spontaneously disclosing such lights towards the ascertainment of his guilt, as it has happened to him to collect. It might deter the lawyer from lending his assistance to an innocent person when accused, by the fear of being involved in the punishment in case of his proving guilty. But to what use, or with what consistency, forbid his disclosing any such proof of guilt, even though called upon so to do?
A distinction, which seems an important one, is one of which I see no traces in the books. The confidence supposed to be reposed in the law adviser,—is it reposed after prosecution, for the purpose of the guilty party’s being enabled to escape the punishment due to his guilt? or is it reposed before prosecution—reposed (suppose) while the offence is in contemplation, and in the view of learning the means of committing it with impunity and success? In the former case, the relation of the law adviser to the offence, in case of criminal consciousness on his part, is that of an accessary after the fact; in the other, that of an accessary before or during the fact; that sort of accessary who, in the technical language of the law, is in many cases termed a principal. I say, in case of criminal consciousness: for, from the circumstance of an attorney’s having it in his power to give evidence, the effect of which, added to other evidence, may be to give birth to the conviction of his client in respect of a crime or other offence,—it does not follow by any means that there must have been any criminal consciousness on his part; that the picture of the transaction should have been present to his mind, clothed with all those circumstances the union of which is necessary to the constituting it a crime. In case of perjury (for example,) the attorney may have learnt from his client the existence of a fact incompatible with another fact, the existence of which the client has averred upon oath, but without having heard of his ever having made any such averment: or, vice versâ, he may have been privy to the making of such averment upon oath, without having ever received information, either from the client or anybody else, of the existence of the fact by which such averment is demonstrated to be perjurious.
“A counsel, solicitor, or attorney, cannot conduct the cause of his client” (it has been observed) “if he is not fully instructed in the circumstances attending it: but the client” (it is added) “could not give the instructions with safety, if the facts confided to his advocate were to be disclosed.”* Not with safety? So much the better. To what object is the whole system of penal law directed, if it be not that no man shall have it in his power to flatter himself with the hope of safety, in the event of his engaging in the commission of an act which the law, on account of its supposed mischievousness, has thought fit to prohibit? The argument employed as a reason against the compelling such disclosure, is the very argument that pleads in favour of it.
This being the professed object of the English system of law, as well as of every other system of law,—viz. the prevention of offences,—is it reconcilable to the idea of wisdom or consistency, that it should lay down a rule, the effect of which, without contributing to the protection of the innocent, or preventing vexation in any other shape, is purely and simply to counteract its own designs?
In vain would it be to impute the favouring of treachery to a regulation by which such disclosures were to be made obligatory. In saying, “a criminative fact, stated by a delinquent to his law adviser, shall, if called for, be disclosed by him in evidence,” it gives sufficient warning to offenders not to seek for safety in such means.
Thus much as to the case where the effect of the disclosure may be to subject the client to suffer as for an offence. Where the effect of it does not go beyond the subjecting him to some non-penal obligation to which he otherwise might not be subjected, or to debat him from some right of which he otherwise might have come into possession, or remained possessed,—the objection is no more reconcilable with the main object of the law than in the other case. In every such case, though by a process grievously and unnecessarily dilatory and expensive,† what the law does, or to be consistent ought to do, is to compel each party, out of his own mouth (or, to speak literally, by his own hand,) to make disclosure of such facts as, lying within his own knowledge, are of a nature to contribute towards substantiating the claim of the adversary. Can there be any reason why that information, which he is compelled to give by his own hand, should not be obtained with equal facility from another hand, from which, if there be any difference, it may be extracted with less reluctance? Disclosure of all legally-operative facts, facts investitive or divestitive of right—of all facts on which right depends,—such, without any exception, ought to be—such, with a few inconsistent exceptions, actually is, the object of the law. On the part of the individuals of all descriptions by whom information to such effect happens in each instance to be possessed, the two species of behaviour by which the fulfilment of this design may be counteracted in such instance, are falsehood and concealment. It falsehood is not favoured by the law, why should concealment? a mode of conduct which, without the guilt (at least in as far as guilt is measured by punishment,) is attended, so far as it takes place, with the same pernicious and undesirable effect.
Concealment of those facts, the knowledge of which is necessary to the fulfilment of the prodictions delivered by the substantive branch of the law, is a mode of conduct punished in some instances as an offence, and even as a crime. The least that can be required by consistency is, that the species of fraud thus punished in some cases, should not in any case be protected and encouraged.
To give encouragement to the spirit of chicane, is an imputation which, on here and there an occasion, men are bold enough to cast upon the general complexion of the law, though not in a hundredth part of the instances in which a just warrant might be found for it. An objection to a proposition in which any such term as chicane is the characteristic word, is, that it is indistinct and vague. The rules of the class of that against which I have been here contending, may serve at once to fix the import, and to exemplify the ground of it.
Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! Expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes.
Idle as a reproach,—as a memento this ought never to be out of mind. It is thus, and thus only, that it can be visible to the legislator, where to look for opposition, and where, if anywhere, for assistance.
[Farther Remarks by the Editor.—In the notice of the Traité des Preuves Judiciaires, in the Edinburgh Review,* the rule which excludes the testimony of the professional assistant, is with much earnestness defended. The grounds of the defence, in so far as they are intelligible to me, reduce themselves to those which follow:—
1. The first argument consists of two steps, whereof the former is expressed, the latter understood; and either of them, if admitted, destroys the other. The proposition which is asserted is, that the aid which is afforded to an accused person by his advocate, is of exceedingly great importance to justice. The proposition which is insinuated is, that of this aid he would be deprived, if his advocate were rendered subject to examination.—If the only purpose, for which an advocate can be of use, be to assist a criminal in the concealment of his guilt, the last proposition is true: but what becomes of the former? If, on the other hand (as is sufficiently evident) an advocate be needful on other accounts than this,—if he be of use to the innocent, as well as to the guilty—to the man who has not anything to conceal, as well as to the man who has,—what is to hinder an innocent, or even a guilty defendant, from availing himself of his advocate’s assistance for all purposes, except that of frustrating the law?
2. The second argument consists but of one proposition: it is, that Lord Russell’s attorney would have been a welcome visitor, with his notes in his pocket, to the office of the solicitor of the Treasury. To the exalted personages, whose desire it was to destroy Lord Russell, any person would, it is probable, have been a welcome visitor, who came with information in his pocket, tending to criminate the prisoner. From this, what does the reviewer infer? That no information tending to criminate the prisoner should be received?—that the truth should not, on a judicial occasion, be ascertained? Not exactly: only that one means, a most efficient means, of ascertaining if, should be rejected. Are we to suppose, then, that on every judicial occasion the thing which is desirable is, that the laws should not be executed? Then, indeed, the reviewer’s conclusion would be liable to no other objection than that of not going nearly far enough; since all other kinds of evidence might, and indeed ought, on such a supposition, to be excluded likewise.
So long as the law treats any act as a crime which is not a crime, so long it will, without doubt, be desirable that some acts which are legally crimes should escape detection: and by conducing to that end, this or any other exclusionary rule may palliate, in a slight degree, the mischiefs of a bad law. To make the conclusion hold universally, what would it be necessary to suppose? Only that the whole body of the law is a nuisance, and its frustration, not its execution, the end to be desired.
Laws are made to be executed, not to be set aside. For the sake of weakening this or that bad law, would you weaken all the laws? How monstrous must that law be, which is not better than such a remedy! Instead of making bad laws, and then, by exclusionary rules, undoing with one hand a part of the mischief which you have been doing with the other, would it not be wiser to make no laws but such as are fit to be executed, and then to take care that they be executed on all occasions?
3. The third argument is of that ingenious and sometimes very puzzling sort, called a dilemma. If the rule were abolished, two courses only, according to the reviewer, the lawyer would have: he must enter into communication with the opposite party from the beginning, to which course there would be objections; or he must wait till he had satisfied himself that his client was in the wrong, and must enter into communication with the opposite party then; to which course there would be other objections. What the force of these objections may be, it is not necessary, nor would it be pertinent, to inquire: since neither justice nor Mr. Bentham demand that he should enter into communication with the opposite party at all. What is required is only, that if, upon the day of trial, the opposite party should choose to call for his evidence, it may not be in his power, any more than in that of any other witness, to withhold it.
One would not have been surprised at these arguments, or even worse, from an indiscriminate eulogizer of “things as they are;” this, however, is by no means the character of the writer of this article: it is the more surprising, therefore, that he should have been able to satisfy himself with reasons such as the three which we have examined. Not that these are all the reasons he has to give: the following paragraph seems to be considered by him as containing additional reasons to the same effect:—
“Even in the very few instances where the accused has intrusted his defender with a full confession of his crime, we hold it to be clear that he may still be lawfully defended. The guilt of which he may be conscious, and which he may have so disclosed, he has still a right to see distinctly proved upon him by legal evidence. To suborn wretches to the commission of perjury, or procure the absence of witnesses by bribes, is to commit a separate and execrable crime; to tamper with the purity of the judges is still more odious; but there is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction. Human beings are never to be run down like beasts of prey, without respect to the laws of the chase. If society must make a sacrifice of any one of its members, let it proceed according to general rules, upon known principles, and with clear proof of necessity: ‘let us carve him as a feast fit for the gods, not hew him as a carrass for the hounds.’ Reversing the paradox above cited from Paley, we should not despair of finding strong arguments in support of another, and maintain that it is desirable that guilty men should sometimes escape, by the operation of those general rules which form the only security for innocence.”
In reading the above declamation, one is at a loss to discover what it is which the writer is aiming at. Does he really think that, all other things being the same, a system of procedure is the better, for affording to criminals a chance of escape? If this be his serious opinion, there is no more to be said; since it must be freely admitted that, reasoning upon this principle, there is no fault to be found with the rule. If it be your object not to find the prisoner guilty, there cannot be a better way than refusing to hear the person who is most likely to know of his guilt, if it exist. The rule is perfectly well adapted to its end: but is that end the true end of procedure? This question surely requires no answer.
But if the safety of the innocent, and not that of the guilty, be the object of the reviewer’s solicitude,—had he shown how an innocent man could be endangered by his lawyer’s felling all he has to tell, he would have delivered something more to the purpose than any illustration which the subject of carcasses and hounds could yield. If he can be content for one moment to view the question with other than fox-hunting eyes, even he must perceive that, to the man who, having no guilt to disclose, has disclosed none to his lawyer, nothing could be of greater advantage than that this should appear; as it naturally would if the lawyer were subjected to examination.
“There is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction.” This, if I rightly understand it, means, that incomplete evidence ought not, for want of comments, to be taken for complete, we were in no great danger of supposing that it ought. But the real question is,—should you, because your evidence is incomplete, shat out other evidence which would complete it. After the lawyer has been examined, is the evidence incomplete notwithstanding? then is the time for your “fair and animated arguments.” Is it complete? then what more could you desire?
The denunciation which follows against hunting down human beings without respect for the laws of the chase, is one of those proofs which meet us every day, how little, as yet, even instructed Englishmen are accustomed to look upon judicature as a means to an end, and that end the execution of the law. They speak and act, every now and then, as if they regarded a criminal trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play: in a word, that whether a guilty person shall be acquitted or punished, may be, as nearly as possible, an even chance.
I had almost omitted the most formidable argument of all, which was brought forward by M. Dumont, not as decisive, but as deserving of consideration, and which the reviewer, who adopts it, terms “a conclusive reductio ad absurdum.” This consists in a skilful application of the words spy and informer (espion, délateur,) two words forming part of a pretty extensive assortment of vaguely vituperative expressions, which possess the privilege of serving as conclusive objections against any person or thing which it is resolved to condemn, and against which, it is supposed, no other objections can be found.
Spies and informers are bad people; a lawyer who discloses his client’s guilt is a spy and an informer; he is therefore a bad man, and such disclosure is a bad practice, and the rule by which it is prohibited is a good rule. Such, when analyzed into its steps, is the argument which we are now called upon to consider.
But to form a ground for condemning any practice, it is not enough to apply to the person who practises it an opprobrious name: it is necessary, moreover, to point out some pernicious tendency in the practice; to show that it produces more evil than good. It cannot be pretended that the act of him, who, when a crime comes to his knowledge (be it from the malefactor’s own lips, or from any other source,) being called upon judicially to declare the truth, declares it accordingly, is a pernicious act. On the contrary, it is evident that it is a highly useful act: the evil occasioned by it being, at the very worst, no more than the punishment of the guilty person—an evil which, in the opinion of the legislature, is outweighed by the consequent security to the public. Call this man, therefore, an informer or not, as you please; but if you call him an informer, remember to add, that the act which constitutes him one, is a meritorious act.
M. Dumont expresses an apprehension that no honourable man would take upon him the functions of an advocate, if compelled to put on what he is pleased to call the character of an informer. Further reflection would, I think, have convinced him that this apprehension is chimerical. There is scarcely anything in common between the two characters of an informer and of a witness. The antipathy which exists against the former extends not to the latter. A witness, as such, does not take money for giving evidence, as an informer frequently does for giving information. The act of an informer is spontaneous: he is a man who goes about of his own accord doing mischief to others: so at least it appears to the eyes of unreflecting prejudice. The evidence of the witness may be more fatal to the accused than the indications given by the informer; but it has the appearance of not being equally spontaneous: he tells what he knows, because the law compels him to say something, and because, being obliged to speak, he will speak nothing but the truth: but for anything that appears, if he had not been forced, he would have held his tongue and staid away. An honourable man, acting in the capacity of an advocate, would, by giving true evidence, incur the approbation of all lovers of justice, and would not incur the disapprobation of any one: what, therefore, is there to deter him? unless it be a hatred of justice.
The reviewer adds, that M. Dumont’s argument “might be assisted with a multiplicity of reasonings:” these, as he has not stated them, Mr. Bentham, probably, may be pardoned for being ignorant of. The reviewer is modest enough to content himself with the “single and very obvious remark, that the author evidently presumes the guilt from the accusation,” a remark which could have had its source in nothing but the thickest confusion of ideas. Had Mr. Bentham recommended condemnation without evidence, or any other practice which would be indiscriminately injurious to all accused persons, innocent or guilty,—it might then have been said of him, with some colom of justice, that he presumed the guilt from the accusation. But when, of the practice which he recommends, it is a characteristic property to be a security to the innocent, a source of danger to the guilty alone,—under what possible pretence can he be charged with presuming the existence of guilt?—though he may be charged, sure enough, with desiring that where there is guilt, it may be followed by punishment; a wish probably blameable in the eyes of the reviewer, who thinks it “desirable that guilty men should sometimes escape.”
Thus weak are all the arguments which could be produced against this practice, by men who would have been capable of finding better arguments, had any better been to be found. It may appear, and perhaps ought to appear, surprising, that men generally unprejudiced, and accustomed to think, should be misled by sophistry of so flimsy a texture as this has appeared to be. Unhappily, however, there is not any argument so palpably untenable and absurd, which is not daily received, even by instructed men, as conclusive, if it makes in favour of a doctrine which they are predetermined to uphold. In the logic of the schools, the premises prove the conclusion. In the logic of the affections, some cause, hidden or apparent, having produced a prepossession, this prepossession proves the conclusion, and the conclusion proves the premises. You may then scatter the premises to the winds of heaven, and the conclusion will not stand the less firm,—the affections being still enlisted in its favour, and the show, not the substance, of a reason being that which is sought for,—if the former premises are no longer defensible, others of similar quality are easily found. The only mode of attack which has any chance of being successful, is to look out for the cause of the prepossession, and do what may be possible to be done towards its removal: when once the feeling, the real support of the opinion, is gone, the weakness of the ostensible supports, the so-called reasons, becomes manifest, and the opinion falls to the ground.
What is plainly at the bottom of the prepossession in the present case, is a vague apprehension of danger to innocence. There is nothing which, if listened to, is so sure to mislead as vague fears. Point out any specific cause of alarm, anything upon which it is possible to lay your hand, and say, from this source, evil of this or that particular kind is liable to flow; and there may be some chance of our being able to judge whether the apprehension is or is not a reasonable one. Confine yourself to vague anticipations of undefined evils, and your fears merit not the slightest regard: if you cannot tell what it is you are afraid of, how can you expect any one to participate in your alarm? One thing is certain: that, if there be any reason for fear, that reason must be capable of being pointed out: and that a danger which does not admit of being distinctly stated, is no danger at all. Let any one, therefore, ask himself,—supposing the law good, and the accused innocent,—what possible harm can be done him by making his professional assistant tell all that he knows?
He may have told to his lawyer, and his lawyer, if examined, may disclose, circumstances which, though they afford no inference against him, it would have been more agreeable to him to conceal. True; but to guard him against any such unnecessary vexation, he will have the considerate attention of the judge: and this inconvenience, after all, is no more than what he may be subjected to by the deposition of any other witness, and particularly by that of his son, or his servant, or any other person who lives in his house, much more probably than by that of his lawyer.
Whence all this dread of the truth? Whence comes it that any one loves darkness better than light, except it be that his deeds are evil? Whence but from a confirmed habit of viewing the law as the enemy of innocence—as scattering its punishments with so ill-directed and so unsparing a hand, that the most virtuous of mankind, were all his actions known, could no more hope to escape from them, than the most abandoned of malefactors? Whether the law be really in this state, I will not take upon myself to say: sure I am, that if it be, it is high time it should be amended But if it be not, where is the cause of alarm? In men’s consciousness of their own improbity. Children and servants hate tell-tales; thieves hate informers, and peaching accomplices; and, in general, he who feels a desire to do wrong, hates all things, and rules of evidence among the rest, which may, and he fears will, lead to his detection.
Thus much in vindication of the proposed rule. As for its advantages, they are to be sought for not so much in its direct, as in its indirect, operation. The party himself having been, as he ought to be, previously subjected to interrogation,—his lawyer’s evidence, which, though good of its kind, is no better than hearsay evidence, would not often add any new facts to those which had already been extracted from the lips of the client. The benefit which would arise from the abolition of the exclusionary rule, would consist rather in the higher tone of morality which would be introduced into the profession itself. A rule of law which, in the case of the lawyer, gives an express heence to that wilful concealment of the criminal’s guilt, which would have constituted any other person an accessary in the crime, plainly declares that the practice of knowingly engaging one’s self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of the law-makers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument. We should not then hear an advocate boasting of the artifices by which he had trepanned a deluded jury into a verdict in direct opposition to the strongest evidence; or of the effrontery with which he had, by repeated insults, thrown the faculties of a bonâ fide witness into a state of confusion, which had caused him to be taken for a perjurer, and as such disbelieved. Nor would an Old Bailey counsel any longer plume himself upon the number of pickpockets whom, in the course of a long career, he had succeeded in rescuing from the arm of the law. The professional lawyer would be a minister of justice, not an abettor of crime—a guardian of truth, not a suborner of mendacity and not at his hands only, in another sphere, whether as a private man or as a legislator, somewhat more regard for truth and justice might be expected than now, when resistance to both is his daily business, and, if successful, his greatest glory; but, through his medium, the same salutary influence would speedily extend itself to the people at large. Can the paramount obligation of these cardinal virtues ever be felt by them as it ought, while they imagine that, on such easy terms as those of putting on a wig and gown, a man obtains, and on the most important of all occasions, an exemption from both?—Conclusion of Remarks by the Editor.]
Trustee and cestuy que trust.
On the subject of trust-prejudicing evidence, the decision, if not quite so simple as in the preceding cases, will be grounded on considerations not less conclusive.
The testimony being that of the trustee; whose are the feelings, in consideration of which the testimony in this case can be proposed to be excluded? The feelings of the cestuy que trust, the fidei-committee, to whose prejudice it redounds? But if the testimony thus proposed to be called for, were his own, no vexation of which the obligation could be productive, could form any sufficient ground for the exclusion of it. Will it be said, that the vexation produced in his breast by perceiving the evil in question brought on him by the testimony of another person, his trustee, will be greater than what would be produced by seeing the same evil brought on him by his own testimony? The answer will hardly be in the affirmative: but—be it on the one side or the other—in regard to the question of exclusion, it is not in the nature of things that it should make any material difference.
Is it in tenderness to the feelings of the trustee, that the proposed wound should be inflicted on the vitals of justice? But the vexation attendant on the delivery of the testimony could never rise to such a pitch as to constitute a sufficient ground for the exclusion of it, although it were on the desponent’s own head that the evil were to fall, much less where the head of another person is the head to bear it. Will the prospect of the suffering of the cestuy que trust be more insupportable to the trustee than if it were his own? Good, as between Nisus and Euryalus, Nisus being trustee. But our trustee is no hero; neither of an epic poem, nor a romance, nor even of real life. He is an average man: an exact likeness may be seen of him in the Propositus of Blackstone and Lord Coke.
Putting together the self-regarding feelings of the suffering cestuy que trust, and the sympathetic feelings of the trustee, will they by their joint force constitute a sufficient ground for the exclusion? That nothing may be overlooked, even this case shall undergo examination. Be it ever so strong, it will never be strong enough to support the exclusive rule. That practical point settled, the speculative question, whether the effect of the decomposition will be on the side of diminution or increase, may be left to take its chance.
The case of trusteeship, at least in the common as well as technical import of the word, will not rise above the level of that sort of evidence which, were it self-regarding, would fall under the denomination of self-onerative evidence: it will not rise to the level of self-criminating. It has never been proposed that, on the ground of his being trustee for a thief or murderer, a man should be exempt from the obligation of delivering testimony tending to convict such thief or murderer of his crime. In this more afflictive case, however, the ground for exclusion is, in proportion to the difference in point of afflictiveness, stronger than in the less afflictive case, where the loss of money or money’s worth would constitute the worst evil that could be made to fall on the cestuy que trust by the testimony of the trustee.
Husband and Wife.
The question, of which, the species of evidence, for the designation of which the epithet family-peace-disturbing has been appointed, is the subject, is a question in no small degree complicated. The necessity of grappling with it, owes its birth to the arrangements made on this subject by English jurisprudence.
Whatsoever be the relations (natural or factitious, temporary or perpetual) subsisting between a number of persons living together in the compass of the same family,—relations between husband and wife, parents and children, masters or mistresses and servants, housekeepers and inmates,—any event by which the emotion of ill-will is produced in any one of them towards any other, may pro tanto, be said to operate to the disturbance of the family peace: and ill-will being a bad thing, and peace a good thing, the more effectually any disturbance can by any arrangement of law be prevented from being given to it, so much the better. Disturbance of the peace of a family is vexation; and of vexation, if not necessary to the averting of a preponderant vexation, the production ought always to be avoided.
That,—testimony being delivered by a person standing in any one of these relations, such as to operate to the prejudice of the person standing in the opposite and corresponding relation,—vexation will be likely enough to be produced in the breasts of both, is manifest enough. But in any of these instances, ought such vexation to be considered as forming a sufficient ground for the exclusion of the testimony? Over and over again, the answer has been already made.
The case of husband and wife is the only sample which will here be taken, being the only one which is taken in English law for the ground of an exclusionary rule.
To present a distinct conception, the evil of the vexation capable of flowing from this source must, in the first place, be decomposed.
Evil flowing from sympathy, evil flowing from antipathy or ill-will:—to one or other of these two elements, the whole evil of the mixed mass may be referred.
1. As to the evil from sympathy, it has already been put into the balance, under the head of trust-prejudicing evidence. In the case of husband and wife, whether considered on the part of the male or on the part of the female, the affection or sympathy may naturally be considered as operating with greater, much greater, force, than in the case of an average trustee. On the other hand, a point not to be overlooked, is, that the opposite affection (and that acting with a force proportioned to the mutual vicinity of the two parties, and to the inflexibility of the ties of various kinds by which they are connected) is no less capable of finding a place. Yet, after all allowances made, it will not be less true that, as between an average husband and an average wife—as between Baron and Feme in the character of Propositos and Proposita—an affection of the sympathetic kind cannot in reason but but be considered as subsisting on either side, as between an average trustee and his average cestuy que trust.
Justice thus done to all parties,—the propriety of admission in this case, and the impropriety of the exclusionary rule, considered as placed on the ground of sympathy, will not be the less unquestionable.
With all possible disposition to do justice to the maintained affection maintained on the one hand in the breast of Propositus by the amiable qualities of Proposita—on the other hand, in the bosom of Propositus by the estimable qualities of Propositus,—it seems difficult to avoid admitting, that the affection of Propositus towards Proposita will not be altogether upon a level with the affection of the same Propositus for his earlier and still more intimate acquaintance, himself: and no less so as between the affection of Proposita towards Propositus on the one hand, and the affection of the same Proposita towards the amiable partner of Propositus on the other. For, let it not be forgotten, that the bosoms to which the thermometer is for this purpose to be applied, are the bosoms of Propositus and Proposita, not of Poetus and Arria, any more than of Nisus and Euryalus in the other case.
Thus much seemed necessary, yet not more than necessary, to give the corrective requisite for reducing to the standard of plain and ordinary nature the heroic dimensions given to the conjugal flame by the sentimentality of English lawyers.
As, therefore, vexation on a self-regarding account has been shown not to be a sufficient ground for exclusion, neither can the image of the same vexation, presented by sympathy.
Turn next to the evil from antipathy.
The law will not suffer the wife to be a witness for or against her husband: this is a proposition put by a reporter into the mouth of the first Earl of Hardwicke. “The reason is . . . . to preserve the peace of families: and therefore I shall never encourage such a consent.”* Here, by good fortune, we have a distinct proposition, with an assignable author, and be of the first degree of professional respectability.
When, on failure of the beaten track of analogy, we find among the opinions of professional lawyers an argument that wears upon the face of it any connexion with the principle of utility, it consists commonly in a reference to some one head of inconvenience or advantage, no account being taken of any other. But it is of the essence of law to be a choice of evils : including under the notion of evil, the absence or negation of this or that lot of positive good. It will happen, in many cases, that not only there shall be an advantage on one side to set against an inconvenience on the other, but in the one scale there shall be a number of perfectly distinct advantages, weighing against a number of equally distinct inconveniences in the other. A narrow and imperfect lot of reason, is better than a mere caprice, having no relation to good or evil, to pain or pleasure, on either side: but from an imperfect lot of reason, no better than imperfect conclusions can reasonably be expected.
In legislative argumentation it is not uncommon to have a number of reasons, such as they are, all grounded on the principle of utiliy, adduced on both sides: but in judicial argument, if you get a single article in the shape of an original reason, an indication of convenience or inconvenience, it is a sort of a prize. Cases against cases, i. e. decisions against decisions, you will have in plenty; but if you have anything in the shape of a rational reason—of a reason referable to the principle of utility,—you will find it stand alone; and a mere allusion, as vague and incompletely expressed as it is possible to conceive, is the shape in which it comes. Hard—hardship—policy—peace of families—absolute necessity:—some such words as these are the vehicles, by which the exhibits spark of reason that exhibits itself is conveyed. These are the leading terms, and these are all you are furnished with; and out of these you are to make an applicable, a distinct and intelligible proposition, as you can.
Hawkins, one of the best and most comprehensive heads the profession of the law ever possessed, had already taken up the same argument, and added to it another. “Regularly, the one shall not be admitted to give evidence against the other” (husband and wife,) “nor the examination of the one he made use of against the other, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardship of the case.”*
Implacable dissension is one argument: the same in substance as that which occurred to and weighed with Lord Hardwicke.
Great danger of perjury is another, not stated as having been noticed by Lord Hardwicke.
Of the words “extreme hardship of the case,” I cannot make out any argument distinct from the two preceding ones.
These are the reasons for which, not only the wife is not allowed to be called as a witness against her husband, but even her extrajudicial declarations are not admitted in evidence against him, though his own extrajudicial declarations are.
The argument from the danger of perjury arises out of the supposed sympathy, and therefore need scarcely receive any farther notice.
Suffice it to say, that if the danger of perjury be an objection against the calling in the sanction of an oath in this case, it is an objection against it in all other cases, and an objection that applies to the sanction with the greater force, the greater the need there is of it. If applied to the testimony considered in respect of the danger of falsehood, apart from the consideration of the sanction, it is an objection to all testimony:—if it applies to the case of the wife, considered with respect to her presumable unwillingness to do an act whereby her husband may sustain a prejudice, it applies with still greater force against all the instances in which a man’s own testimony is permitted to be called for against himself: it applies to one of the characteristic features of the practice of the courts styled courts of equity.
As to dissension,—which, to give force to the argument, is presumed, without the smallest alleged reason, to be implacable,—
The rule, if carried as far as it would go, being altogether destructive of the peace of families—of that peace which it is its professed object to protect,—in comes, in consequence, one class of exceptions, and that a very large one.† In case of an offence involving a personal injury committed by the husband against the wife, the testimony of the wife against the husband is admissible, and admitted in ordinary practice.*
When a man has inflicted severe bodily suffering on his wife—has been in the habit of thus filling her life with misery,—here is a cause of dissension, which, powerful as it is, experience proves to be by no means unplacable. Injuries of the like kind, it will sometimes happen (though, by reason of the usual superiority of force on the male side, not so frequently,) shall be inflicted—habitually inflicted, on the husband by the wife. A man forgives the wife who has put him to bedily forture; but it is not in the nature of a man ever to forgive the wife, who, being called upon in a court of justice for the purposes of justice, shall have dared to speak the truth! Where there is injury, and the highest degree of injury, forgiveness is expected, being in every day’s experience; where there is no injury—where the supposed cause of offence is a compliance with the injunctions of duty, forgiveness is regarded as altogether hopeless!
To be consistent with itself, the law should strew danger before every step which it could occur to a man to take in the path of criminality. Instead of that, it is the care of the law itself to remove the principal source of danger out of his way. To be consistent with itself, it should remove out of his way every possible assistance that can contribute to engage him in any course of conduct which it reprobutes and endeavours to prevent. Instead of that, it secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime.
If the dissension were, in the nature of the case, so implacable as the argument supposes, it should, consistently speaking, operate as a motive with the law to prescribe, rather than exclude, this source of information. If I attempt this crime, it may happen to my wife, from whom I cannot hope to conceal it, to be called upon to bear witness against me: and then,—even if I should escape from the punishment of the law,—the pain of seeing, in the partner of my bed, the once probable instrument of my destruction, will never leave me.
In the days when the exclusive rule in question took its rise, the reason in favour of it operated with a degree of force considerably beyond that with which it acts in these our days. The power of the husband over the wife was much stronger and more absolute. A time there appears to have been, when the exceptions, by which a wife is permitted to seek protection in a court of justice against ill-usage by the husband, were nor yet established. Morality was at the same time more loose—manners more harsh and savage; resentment, on so unbecoming a ground as that of a submission to the laws of truth and justice, was more likely to be conceived and harboured, more easy to be gratified with impunity, and more apt to be implacable.
A law which should exclude the testimony of the wife in the case of a prosecution against the husband for ill-usage done to the wife, would be tantamount to authorizing the husband to inflict on the wife all imaginable cruelties, so long as nobody else was present: a condition which, having by law the command in and over his own house, it would in general be in his power to fulfil.
A law which excludes the testimony of the wife, in the case of a prosecution against the husband for mischief done to any other individual, or to the state, is, in like manner, in other words, a law authorizing him to do, in the presence and with the assistance of the wife, every kind of mischief, that excepted by which she herself would be a sufferer. The law, which in the former case affords its protection to the wife,—with what consistency can it, in the latter case, refuse its protection to every human creature besides?
So often as the mask has been stripped off, can it be necessary to lay bare the real policy that lies at the bottom of this business?
A cause between Doe and Ux admits as many fees as a cause between Doe and Roe. In a case where there is nobody to swear for Ux, if Ux were not admitted, there would be no cause, no fees. Rule:—admit her evidence.
Very different is the case, where the cause is between one of the married pair, viz. the husband (by whom the cause, in a dispute with a stranger, is in general conducted,) and a stranger.
If a man could not carry on schemes of injustice, without being in danger, every moment, of being disturbed in them,—and (if that were not enough) betrayed and exposed to punishment,—by his wife; injustice in all its shapes, and with it the suits and the fees of which it is prolific, would, in comparison with what it is at present, be rare. Let us, therefore, grant to every man a licence to commit all sorts of wickedness, in the presence and with the assistance of his wife: let us secure to every man in the bosom of his family, and in his own bosom, a safe accomplice let us make every man’s house his castle; and, as far as depends upon us, let us convert that castle into a den of thieves.*
Two men, both married, are guilty of errors of exactly the same sort, punishable with exactly the same punishment. In one of the two instances (so it happens,) evidence sufficient for conviction is obtainable, without having recourse to the testimony of the wife: in the other instance, not without having recourse to the testimony of the wife. While the one suffers,—capitally, if such be the punishment,—to what use, with what consistency, is the other to be permitted to triumph in impunity?
The film of prejudice once removed, a very loose system of morality, or rather (to speak plainly) a system of gross immorality, will be seen to be at the bottom of these exemptive rules. The very crime which it punishes in one man—punishes even with death—it affords its protection to in another, it converts, or seeks to convert, the house of every man, into a nursery of unpunishable crimes. The same age of barbarism and superstition, the same age of relaxed morality, which gave birth to the institution of asylums, gave birth (there seems reason to think) to this privilege, which gives to each man a safe accomplice in his bosom. The mischievousness of the domestic asylum goes, however, far beyond that of the asylum commonly so called. The church, churchvard, or monastery, whatever it was, did not afford to the criminal anything like a complete exemption from all punishment: it was itself a punishment: it was banishment from his family: it included imprisonment, or a degree of confinement so close as to be scarce distinguishable from it: it placed him in a state of penury, humiliation, and dependence.
A rule like this, protects, encourages, inculcates fraud. For falsehood, positive falsehood, is but one modification of fraud: concealment, a sort of negative falsehood, is another: I mean, concealment of any facts, of which, for the protection of their rights, individuals of the public have a right to be informed. The concealment which is authorized by the law, it may be said, ceases to be fraud. No; that it does not: I mean, in this case. A concealment which is authorized by the substantive branch of the law, cannot be fraudulent: the authorization does away the fraud: what is authorized is legalized, criminality, and legality, are repugnant and incompatible. But the law cannot, without authorizing fraud, authorize by its adjective branch, the doing of that which, by its substantive branch, it has constituted a crime. By the punishment annexed to the act by the substantive branch of the law, the law has acknowledged and proclaimed its mischievousness; if the act be not mischievous, the legislator has no warrant for marking it out for punishment. But if the act be mischievous, on what ground, with what consistency, does it in any instance seek to exempt it from punishment, as if it were innocent?—exempt it in consideration of a fact purely irrelevant—a fact by which the mischievousness of it is not so much as pretended to be diminished? An article of adjective law which is at variance with the substantive law, is itself a fraud. The substantive branch of the law declares, undertakes, engages, for the benefit of all parties interested, that all persons offending so and so shall be punished so and so. The judicial authority, which, by a law of the adjective kind, of its own making, takes upon itself to exempt a man from such punishment, on a ground by which his case is not varied in point of guilt, violates that engagement. Fraudulent in itself,—so far as it encourages others to pursue that plan of concealment by which the engagement is violated, it is the cause of fraud in others. By aggregating the act to the class of crimes, and rendering it punishable as such, it declares it to be a mischievous act, and to such a degree so, as to be a crime. By authorizing an individual to conceal it, in a case in which it is not so much as pretended that its mischievousness is in the smallest degree less than in other cases, it at once protects and encourages two different acts, of the mischievousness and criminality of which it shows itself sufficiently sensible on other occasions;—the principal crime, and that concealment of it, which, when the act so concealed is criminal, is itself a crime.
It debases and degrades the matrimonial union; converting into a sink of corruption, what ought to be a source of purity. It defiles the marriage-contract itself, by tacking to it in secret a licence to commit crimes.
I say in secret; for the probability is, that an institution so repugnant to moral sentiments is not generally known, and, on that account, is not productive of all the mischief, of which, if known universally, it would be productive. No care being taken to enable men to possess themselves of that knowledge, on which their security, in every branch of it, is in a state of continual dependence,—the degree of information which they actually have of it, depends upon its natural aptitude for being guessed at. To the knowledge of what, on each head, is law, they have no other clue than such conception as they are led to form to themselves of what it ought to be.
Oh! but think what must be the suffering of my wife if compelled by her testimony to bring destruction on my head, by disclosing my crimes!—Think? answers the legislator: yes, indeed, I think of it; and, in thinking of it, what I think of besides, is, what you ought to think of it. Think of it as part of the punishment which awaits you, in case of your plunging into the paths of guilt. The more forcible the impression it makes upon you, the more effectually it answers its intended purpose. Would you wish to save yourself from it? it depends altogether upon yourself: preserve your innocence.
To the legislators of antiquity, the married state was an object of favour: they regarded it as a security for good behaviour: a wife and children were considered as being (what doubtless they are in their own nature) so many pledges. Such was the policy of the higher antiquity. The policy of feudal barbarism, of the ages which gave birth to this immoral rule, is to convert that sacred condition into a nursery of crime.
The reason now given was not, I suspect, the original one. Drawn from the principle of utility, though from the principle of utility imperfectly applied, it savours of a late and polished age. The reason that presents itself as more likely to have been the original one, is the grimgribber, nonsensical reason,—that of the identity of the two persons thus connected. Baron and Feme are one person in law. On questions relative to the two matrimonial conditions, this quibble is the fountain of all reasoning.
Among lawyers, among divines, among all candidates setting up for power in a rude age, working by fraud opposed to force, scrambling for whatever could be picked up of the veneration and submission of the herd of mankind,—there has been a sort of instinctive predilection for absurdity in its absurdest shape. Paradox, as far as it could be forced down, has always been preferred by them to simple truth. He who is astonished, is half subdued. Each absurdity you get people to swallow, prepares them for a greater. And another advantage is, the same figure of rhetoric which commands the admiration and obedience of the subject class, helps the memory of the domineering class: it is a sort of memoria technica.
All these parodoxes, all these dull witticisms, have this in common,—that, on taking them to pieces, you find wrapped up, in a covering of ingenuity, some foolish or knavish, and in either case pernicious, lie. It is by them that men are trained up in the degrading habit of taking absurdity for reason, nonsense for sense. It is by the swallowing of such potions, that the mind of man is rendered feeble and rickety in the morning of its days. To burn them all, without exception, in one common bonfire, would be a triumph to reason, and a blessing to mankind.
[Further remarks by the Editor.—The exclusion of the testimony of husband and wife, for or against each other, is in the number of the exclusions which, in an article already alluded to, are defended by the Edinburgh Review: “yet not entirely,” says the reviewer, “on account of that dread entertained by the English law, of conjugal feuds, though these are frequently of the most deadly character. But the reason just given, in the case of the priest, applies” (this refers to the opinion of Mr. Bentham, that the disclosure, by a catholic priest, of the secrets confided to him by a confessing penitent, should not be required or permitted:) “for the confidence between married persons makes their whole conversation an unreserved confession; and they also could never be contradicted but by the accused: while external circumstances might be fabricated with the utmost facility, to give apparent confirmation to false charges. But our stronger reason is, that the passions must be too much alive, where the husband and wife contend in a court of justice, to give any chance of fair play to the truth. It must be expected, as an unavoidable consequence of the connexion by which they are bound, that their feelings, either of affection or hatred, must be strong enough to bear down the abstract regard for veracity, even in judicial depositions.”
Want of space might form some excuse to this writer for not having said more; but it is no apology for the vagueness and inconclusiveness of what he has said.
The confidence, say you, between married persons makes their whole conversation an unreserved confession? So much the better: their testimony will be the more valuable. It is a strange reason for rejecting an article of evidence, that it is distinguished from other articles by its fulness and explicitness.
The reviewer must have read Mr. Bentham very carelessly, to suppose that his reason for excluding the testimony of the priest is, because the discourse of the penitent is an “unreserved confession:” this would be a reason for admitting, not for rejecting, the evidence. The true reason for the exclusion in the case of the confessor, is, that punishment attaching itself upon the discharge of a religous duty, would in effect be punishment for religious opinions. Add to which, that the confidence reposed by the criminal in his confessor has not for its object the furtherance, nor the impunity, of offences; but for its effect, as far as it goes, the prevention of them. To seal the lips of the wife, gives a facility to crime: to seal those of the confessor, gives none; but, on the contrary, induces a criminal to confide the secret of his guilt to one whose only aim will in general be to awaken him to a sense of it. Lastly, it is to be remembered that, by compelling the disclosure in the case of the confessor, no information would ultimately be gained: the only effect being, that, on the part of the criminal, no such revelations would be made. Not so in the case of the wife, who may have come to a knowledge of the crime independently of any voluntary confession by her criminal husband.
That the testimony of the wife could not be contradicted but by the accused person, her husband, and vice versâ,—which, if true, would be a good reason for distrusting, but no reason for rejecting their evidence,—is, in the majority of cases, not true. What the husband and wife have told one another in secret, no one but they two can know; and, consequently, what either of them says on the subject of it, nobody but the other has it in his power to contradict. But is not this likewise the case between the criminal and his accomplice, or between the criminal and any other person, with respect to any fact which occurred when they two were the only persons present? while, with respect to all other facts, the testimony of husband or wife would, if false, be just as capable of being refuted by counter-evidence as the testimony of any other witness.
The aphorism on which the reviewer founds what he calls his “stronger reason,” one would not have wondered at meeting with in a German tragedy, but it is certainly what one would never have looked for in a discourse upon the law of evidence. Strange as it may sound in sentimental ears, I am firmly persuaded that many, nay most, married persons pass through life without either loving or hating one another to any such uncontroulable excess. Suppose them however to do so, and their “feelings,” whether of affection or of hatred, to be “strong enough to bear down the abstract regard for veracity,” will they, in addition to this “abstract regard,”—a curious sort of a regard,—be strong enough to bear down the fear of punishment and of shame? Will they render the witness proof against the vigilance and acuteness of a sagacious and experienced cross-examiner? Or rather, are not the witnesses who are under the influence of a strong passion, precisely those who, when skilfully dealt with, are least capable of maintaining the appearance of credibility, even when speaking the truth; and, à fortiori, least likely to obtain credit for a lie?
But I waste time, and fill up valuable space, in arguing seriously against such solemn trifling—Conclusion of remarks by the Editor.]
[* ]Under the mutual appellative self-regarding, both self-serving and self-disserving are comprised. Self-serving evidence belongs not to the present purpose.—(See the next Chapter.)
[* ]It is curious to observe the desperate shifts to which legislators are put, in order to counteract the pernicious effect of the debilitatives which they have suffered to be introduced into the system of judicial procedure.
[* ]Two young lawyers.a members of a volunteer corps, have incurred penalties: their names stand upon the muster-roll. Convened before a magistrate, the delinquency is proved upon them: they are acquitted notwithstanding. Why? Because their signatures cannot at that moment of time be proved. All this while, they are upon the spot, capable of being interrogated, had law permitted: but it is the boast of English lawyers, and of men duped and corrupted by English lawyers, to turn aside from truth thus discovered, with a degree of abhorrence such as no falsehood could provoke. So universal is the corruption, that this subterfuge, this negative act of meanness, was thought worth committing by these young lawyers to save 17s. 6d., but it is spoken of by the newspaper reporters without the least symptom of disapprobation. Here we have the corrupted: but where are we to look for the corrupters? Among the judges, whoever they were, to whom the demon of chicane is indebted for the establishment of this rule.
[* ]Protest against! Law Taxes, Vol. II. p. 573.—[These Taxes, in as far as regards the stamps on law papers, were abolished by 5 Geo. IV. c. 41. See Vol. II. p. 582, Note.—Ed.]
[† ]That time is happily come.—Editor. [Vide supra, p. 377.]
[* ]Although the punishment of death has lately been abolished in so many cases (see Vol. VI. p. 382, Note 13,) the “quibbles” remain undiminished.—Ed.
[* ]As to the English Star-chamber and High Commission, considered as an instrument for the discovery of truth, the mode of inquiry (had the substantive laws for the execution of which it was employed been legitimate) was no other than that which in many cases (as hath already been observed) is essentially necessary to that purpose; I speak of the epistolary mode applied to defendants in the equity courts: and even where unnecessary and inferior to the ordinary vivâ voce mode, would in all cases be a very advantageous substitute to that of which so great a use is still made in all the Westminster-Hall coarts, viz. the affidavit mode.
[* ]In the Star-chamber, from the time of Hen. VII.
[* ]Registrum Brevium, fol. 36. 6 tit. Prohibitiones.
[† ]Fitzh. Nat. Brev. p. 91. 
[‡ ]Ann. Dyer, 288: Easter, 12 Eliz.
[∥ ]The 1 & 2 Ph. & M. c. 13, authorized and required justices of the peace to take down in writing the examination of any prisoner charged with manslaughter or felony, as well as of the witnesses in support of the charge. But as this only applied to cases where the justice had authority to admit the prisoner to bail, the 2 & 3 Ph. & M. c. 10, was passed to enable the justice to do the same thing, whether the prisoner was admitted to bail or not.—Ed.
[* ]State Trials (Hargrave’s,) vol. i. pp. 167—188; 32 Eliz. July 24, 1590.
[† ]The 4 Jac. I. c. 1, allowed the prisoner’s witnesses to be examined on oath, in those cases where felonies had been committed by Englishmen in Scotland; but it would appear, that this innovation was carried by the Commons in spite of the efforts of the Crown and the House of Lords. Com. Jour. 4 Jan. 1607; 30 Jan. 1607. It was not until the 7 Will. III. c. 3, that this privilege was granted to prisoners, in cases of treason within the act. Finally it was extended, by the 1 Ann. st. 2. c. 9, to all cases of treason and felony. In misdemeanours, defendants always had this privilege. 2 Hawk. c. 46. §§ 170-172.—Ed.
[* ]State Trials (Hargrave’s,) i. 67.
[† ]I mention the above but as a suspicion, and no more. What is beyond dispute is, that the ceremony of putting the convict witness to his oath was considered as optional. But it might be that it was not considered as optional, any otherwise than as attached to the act of producing the man to be examined in the character of a witness; and that, supposing him produced and about to be examined in that character, the performance of the ceremony was indispensable.
[* ]Sir Edward Coke, eminent already, though not yet in office, was the counsel by whom, in one at least (viz. the latter) of the occasions above mentioned, the impressive maxim, nemo tenetur seipsum prodere, was displayed. He was already in existence, though not more than five years old, when this trial (we have seen how remarkable a one) took place.
[† ]3 Inst. 164.
[‡ ]Coke’s Rep. v. 99. Flower’s case.
[* ]So, likewise, even where, although in itself the offence imports no disgrace, yet, in consequence of the power of association over the imaginations and affections of mankind, the punishment attached to the offence is of itself productive of that effect.
[† ]If a man has already been tried for any offence, he must answer the question. But if the answer to any question may subject the witness to future punishment, he may answer the question or not, as he pleases; and he generally receives a caution from the judge. In the case of Cant, tried for a capital offence, at the last October Sessions of the Central Criminal Court, a witness was called for the defence, for the purpose of proving that he himself was the person who had committed the crime in question. After receiving an admonition from the judge, he did answer the question, and admitted that he had done the act, although, according to his account, under circumstances that took away the criminality of it. The jury, however, disbelieved the witness, and convicted the prisoner.—Ed.
[* ]Vide supra, p. 447.
[* ]2 & 3 Philip and Mary, c. 10.
[* ]See farther, Vol. VI. p. 99.
[† ]Bull. N. P. 284. from Str. 140. Lindsay v. Talbot.
[* ]Hawkins, § 84.
[† ]Ibid. § 90.
[‡ ]Viz. that a deed erased had been in a different plight. Ibid. § 86.
[∥ ]To prove that the client was the same person who took an oath, for which he is under an indictment for perjury: so also to prove the handwriting of the client to a note or other instrument.
[§ ]Hawkins, § 91.
[¶ ]Cap. 29, § 26, vol. iv. p. 209.
[** ]Leach’s Hawkins, iv. 434: b. iv. c. 46, § 84.
[* ]Peake on Evidence (edit. 1801,) p. 126.
[† ]A bill in equity.
[* ]No. 79. March 1824.
[* ]Peake (edit. 1801,) 123. Barker v. Sir Woolston Dixie. Cases temp. Hardwicke, 264.
[* ]Lord Coke (C. Litt. 6.) adds a technical reason, truly worthy of the purpose for which it is adduced:—
[† ]Turn back to the dictum of Lord Kenyon, in a former note. In this you have a specimen, and that a fail one, of the degree of certainty, reasonableness, and consistency, that pervade the whole of the system of jurisprudential law: of the degree of dependency fit to be placed on the opinions, the dicta, the statements, delivered by the most eminent among the official professors of it; of the regard due to those panegyries which its professors of all ranks and classes never cease to anoint it with, and from which the opinions entertained of it by students, and even lawyers, are imbibed.
[* ]In the case, however, of one of the most cruel of all injuries, a wife is deprived of this remedy.
[* ]Advice to judges:—When you have a reason to give for a rule or supposed rule of jurisprudential law, copy Mr. Justice Buller; let policy be your word; keep to generals; keep to the generalissima among generals. Behold the consequence, the fatal consequence, of descending into particulars; of talking of “implacable dissension between man and wife;” you commit yourselves; you give a handle to non-lawyers. They are thus enabled to look into your reasons, and to see whether there be any truth in them. No; never more suffer yourselves to fall into any such snare. Keep to policy, and such other arguments as, in the region of the clouds, are of equal altitude, or, if that be difficult, of nearly equal altitude, with it. Keep to policy, you are omnipotent. With the word policy in your mouths, the law is, what you please to make it: anything to-day—the same, or any different thing, to-morrow.
[* ]It is curious to observe the desperate shifts to which legislators are put, in order to counteract the pernicious effect of the debilitatives which they have suffered to be introduced into the system of judicial procedure.
[* ]Two young lawyers.a members of a volunteer corps, have incurred penalties: their names stand upon the muster-roll. Convened before a magistrate, the delinquency is proved upon them: they are acquitted notwithstanding. Why? Because their signatures cannot at that moment of time be proved. All this while, they are upon the spot, capable of being interrogated, had law permitted: but it is the boast of English lawyers, and of men duped and corrupted by English lawyers, to turn aside from truth thus discovered, with a degree of abhorrence such as no falsehood could provoke. So universal is the corruption, that this subterfuge, this negative act of meanness, was thought worth committing by these young lawyers to save 17s. 6d., but it is spoken of by the newspaper reporters without the least symptom of disapprobation. Here we have the corrupted: but where are we to look for the corrupters? Among the judges, whoever they were, to whom the demon of chicane is indebted for the establishment of this rule.
[* ]Registrum Brevium, fol. 36. 6 tit. Prohibitiones.
[a ]Under the 5 Geo. IV. c. 83, which repealed all former statutes against rogues, vagabonds, &c., persons may be punished for being “reputed thieves,” and persons are so punished every day at the police-courts.—Ed.
[a ]Morning Post and Morning Chronicle of Nov. 18, 1803.