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

CHAPTER III.

IMPROPRIETY OF THE EXCLUSION PUT UPON SELF-DISSERVING EVIDENCE BY ENGLISH LAW.

§ 1.

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.

§ 2.

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.

§ 3.

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.

§ 4.

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.

§ 5.

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.

§ 6.

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.

[* ]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.

In one instance, for want of that best sort of evidence which lawyers have taken care to exclude, lawyer-led legislators have been forced to content themselves with, and to set down as conclusive, the very worst sort of evidence, viz. common report.

By one statute, reputed thieves,a haunting the avenues of playhouses, and so forth, are made punishable so and so.

If a man can be proved a thief, what matters it where he is found? If he cannot be proved a thief by other means, how is it that his being found in the avenue of a playhouse is to prove him so, or so much as contribute anything to the proving him so? Not to speak of passengers,—among all the persons who, from the building of a playhouse to the burning of it, ever entered into a playhouse, has there ever been a single person who was not found in one of the avenues to the playhouse?

A reputed thief? reputed such by whom? By the thief-takers. A reputed thief is a man who is believed to be such, by some person who is, or professes to be, acquainted with his habits of life. Who is that person? An accomplice? No; for in this case he would be able to speak to some individual transaction, in the course of which the reputed thief acted as one. In a word, and in experience, it is never other than a thief-taker.

But the thief-taker,—by what means is it that he has come to form, concerning the man in question, an opinion pronouncing him a thief? By the word thief (though not in all cases and necessarily, yet obviously in the present case,) a habitual thief, a man who is so by habit, is implied. To constitute a habit requires a multitude of acts. By any one single act is he capable of being proved to have been a thief in so much as a single instance? If so, there is no need of any such law.

What? Cannot you prove so much as a single act? Then how is it you can prove the habit? Cannot you prove so much as an act? Then how is it you can prove so many as (though it were no more than) two such acts?

Curious enough must be the sort of testimony on which a man is convicted under this law. Into the composition of it, no individual act can enter: opinion, the opinion of the thief-taker, is everything there can be of it. I know him to be such: I know him to be generally looked upon as such: of this sort is all there can be of it. Against erroneous or mendacious testimony, the grand security is cross-examination: cross-examination, by which, if the individual facts charged are false, true ones (by their inconsistency with which, they are disproved) may be brought out against them. In no other criminal case would the depriving the defendant of the faculty of cross-examination be deemed endurable. In this case, by the very nature of the evidence (that is, of the only fact deposed to,) the faculty of cross-examination stands excluded. When, in a case of this sort, a man says. I believe this man to be a thief; should the case be, that he entertains no such belief, by what evidence can his falsehood be made appear?—Do you know of any one instance in which the man acted as a thief? This is the only sort of question, which, in the view of discrediting the declaration of opinion, could be asked; and this, by the supposition, is one that cannot be asked.

Not that to the account of the exclusionary system alone is to be placed the offence committed against justice by the law that has last been brought to view. It is the effort of necessity, struggling under the load of debilitatives, by which, under judge-made law, to that deplorable degree of which the printed accounts are witnesses, the arm of penal justice is enfeebled. Capital punishment (by which humane men are deterred from testifying against crimes, more than dishonest men from committing them,)—this, together with the principle of nullification (by which, on the ground of pretended errors discovered by fee-fed brethren, the power of pardon is given by judges to lawyers and their clerks,)—these, together with other causes of debility, the enumeration of which belongs not to this purpose, cannot but be admitted for their share.

But, independently of these concurrent causes, the single virtue of the exclusion put upon self-inculpative evidence suffices to account for a large proportion of that mass of unpunished delinquency, by the contemplation of which the legislature was drawn into a measure so outrageously repugnant to justice as that which has just been brought to view.

[* ]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, the examination, instead of being performed in the epistolary mode, was sometimes performed vivâ voce, as at present in the preparatory examinations before justices of the peace: but as this unexpensive and more searching mode, how well soever it answered the purposes of the lawyers whom he found it convenient to employ as instruments, it was in comparison but little in use. (Powel’s Attorney’s Practice.) To the king’s purpose, the procedure the best adapted would have been the natural and expeditious and searching procedure of the courts of conscience: to the purposes of his longrobed intruments, this unexpensive, and therefore to them unprofitable, mode, would have been altogether inapplicable; another mode there was, that suited their purpose exactly, and that was the dilatory, scriblatory, and profitably-expensive mode of the courts of equity. By the adoption of this amendment, the two objects were consolidated: the royal falconer, after a prolongation of the sport, got his prey; the hawks were rewarded with their portion of the entrails.

[* ]In the Star-chamber, from the time of Hen. VII.

[* ]Registrum Brevium, fol. 36. 6 tit. Prohibitiones.

Rex vicecomiti salutem. Præcipimus tibi quod non permittas quod aliqui laici ad citationem talis episcopi, aliquo loco conveniant de cetero, ad aliquas recognitiones faciendum vel sacramentum præstandum, nisi in casibus matrimonialibus et testamentariis. T. &c.

Rex vicecomiti salutem. Pone per vadium, &c. talem episcopum, quod sit coram justiciariis nostris, &c. ostensurus quare fecit summoneri, et per censuras ecclesiaticas distringi laicas personas, vel laicos homines et feminas, ad comparendum coram eo, ad præstandum juramentum pro voluntate suâ, ipsis invitis, in grave præjudicium coronæ et dignitatis nostræ regiæ, necnon contra consuetudinem regni nostri. Et habeas ibi, &c.

[† ]Fitzh. Nat. Brev. p. 91. [41]

[‡ ]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.

Such is the construction that a reader of modern times, whose surmises and expectations are influenced by the invariable tenor or modern usage, would naturally be led to adopt in preference.

On the other hand, the passages which appear to lend more or less countenance to the opposite interpretation, are not altogether without their weight.

“You shall have Vaughan to justifie this . . . and confirm it by a booke oth.” Here we see the proffered justification, i. e. vivâ voce testification, mentioned in the first place, and of the oath a distinct mention made, as if it were a security that might have been superadded or not to the security afforded by the confrontation and the examination; just as the act of producing the man for these purposes might itself have been performed or declined at pleasure.

So much for the proffer made of the ceremony: observe now the account given of the performance of it. “Then was Vaughan sworne on a booke to say nothing but the truth.” Upon the face of this account, has not the ceremony somewhat of the air of a novel practice? not the book, but a book. By the article the, an implied reference would have been to usage—to usage as established; but whether invariably adhered to or not, would still have been another question. But the article is not the, but a: as if the sort of book, not being fixed by usage, was scarcely known. In a modern trial, now that the previous administration of an oath is a practice so completely in course, is any such language ever made use of for the expression of the fact?

[* ]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.

Saturated as he was, and super-saturated, with law learning, was it natural that a case of such importance, a case in point, in the history of his own time, should have been a secret to him? But Coke, as inaccurate as he was garrulous, was ready at any time to entertain the public with the first runnings of his thoughts.

[† ]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.

[* ]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.

In one instance, for want of that best sort of evidence which lawyers have taken care to exclude, lawyer-led legislators have been forced to content themselves with, and to set down as conclusive, the very worst sort of evidence, viz. common report.

By one statute, reputed thieves,a haunting the avenues of playhouses, and so forth, are made punishable so and so.

If a man can be proved a thief, what matters it where he is found? If he cannot be proved a thief by other means, how is it that his being found in the avenue of a playhouse is to prove him so, or so much as contribute anything to the proving him so? Not to speak of passengers,—among all the persons who, from the building of a playhouse to the burning of it, ever entered into a playhouse, has there ever been a single person who was not found in one of the avenues to the playhouse?

A reputed thief? reputed such by whom? By the thief-takers. A reputed thief is a man who is believed to be such, by some person who is, or professes to be, acquainted with his habits of life. Who is that person? An accomplice? No; for in this case he would be able to speak to some individual transaction, in the course of which the reputed thief acted as one. In a word, and in experience, it is never other than a thief-taker.

But the thief-taker,—by what means is it that he has come to form, concerning the man in question, an opinion pronouncing him a thief? By the word thief (though not in all cases and necessarily, yet obviously in the present case,) a habitual thief, a man who is so by habit, is implied. To constitute a habit requires a multitude of acts. By any one single act is he capable of being proved to have been a thief in so much as a single instance? If so, there is no need of any such law.

What? Cannot you prove so much as a single act? Then how is it you can prove the habit? Cannot you prove so much as an act? Then how is it you can prove so many as (though it were no more than) two such acts?

Curious enough must be the sort of testimony on which a man is convicted under this law. Into the composition of it, no individual act can enter: opinion, the opinion of the thief-taker, is everything there can be of it. I know him to be such: I know him to be generally looked upon as such: of this sort is all there can be of it. Against erroneous or mendacious testimony, the grand security is cross-examination: cross-examination, by which, if the individual facts charged are false, true ones (by their inconsistency with which, they are disproved) may be brought out against them. In no other criminal case would the depriving the defendant of the faculty of cross-examination be deemed endurable. In this case, by the very nature of the evidence (that is, of the only fact deposed to,) the faculty of cross-examination stands excluded. When, in a case of this sort, a man says. I believe this man to be a thief; should the case be, that he entertains no such belief, by what evidence can his falsehood be made appear?—Do you know of any one instance in which the man acted as a thief? This is the only sort of question, which, in the view of discrediting the declaration of opinion, could be asked; and this, by the supposition, is one that cannot be asked.

Not that to the account of the exclusionary system alone is to be placed the offence committed against justice by the law that has last been brought to view. It is the effort of necessity, struggling under the load of debilitatives, by which, under judge-made law, to that deplorable degree of which the printed accounts are witnesses, the arm of penal justice is enfeebled. Capital punishment (by which humane men are deterred from testifying against crimes, more than dishonest men from committing them,)—this, together with the principle of nullification (by which, on the ground of pretended errors discovered by fee-fed brethren, the power of pardon is given by judges to lawyers and their clerks,)—these, together with other causes of debility, the enumeration of which belongs not to this purpose, cannot but be admitted for their share.

But, independently of these concurrent causes, the single virtue of the exclusion put upon self-inculpative evidence suffices to account for a large proportion of that mass of unpunished delinquency, by the contemplation of which the legislature was drawn into a measure so outrageously repugnant to justice as that which has just been brought to view.

[* ]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.

Rex vicecomiti salutem. Præcipimus tibi quod non permittas quod aliqui laici ad citationem talis episcopi, aliquo loco conveniant de cetero, ad aliquas recognitiones faciendum vel sacramentum præstandum, nisi in casibus matrimonialibus et testamentariis. T. &c.

Rex vicecomiti salutem. Pone per vadium, &c. talem episcopum, quod sit coram justiciariis nostris, &c. ostensurus quare fecit summoneri, et per censuras ecclesiaticas distringi laicas personas, vel laicos homines et feminas, ad comparendum coram eo, ad præstandum juramentum pro voluntate suâ, ipsis invitis, in grave præjudicium coronæ et dignitatis nostræ regiæ, necnon contra consuetudinem regni nostri. Et habeas ibi, &c.

[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.