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CHAPTER V.: EXAMINATION OF THE CASES IN WHICH ENGLISH LAW EXEMPTS ONE PERSON FROM GIVING EVIDENCE AGAINST ANOTHER. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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EXAMINATION OF THE CASES IN WHICH ENGLISH LAW EXEMPTS ONE PERSON FROM GIVING EVIDENCE AGAINST ANOTHER.
The exemption improper
If the testimony of a party to his own predudice ought to be compellable, so ought that of any other person. If the vexation of which it might be productive to Rens to contribute by his even evidence to subject himself to the obligations of justice, affords no sufficient reason for the dissolving of these obligations,—still less can any good reason be drawn from the vexation resulting from that same source, for depriving justice of the benefit of any other testimony.
This sort of second-hand vexation, reflected from the former, must be of one or other of two descriptions: the seat of it, in the bosom of one or other of two persons.
Is it in consideration of the vexation that Reus himself would suffer, from the prejudice that might accrue to him from the evidence of Amicus,—is it for this reason, that justice should be deprived of the benefit of Amicus’s testimony?
But it will hardly be said, that a man’s sufferings will be greater, at seeing evidence to his prejudice extracted from another bosom, than at feeling it extracted from his own.
Is it in consideration of the vexation that Amicus would suffer, from the thought of the prejudice that might accrue from his evidence to Reus,—is it for this reason that justice should be deprived of the benefit of the testimony of Amicus?
But it will hardly be said, that a man’s sufferings will be greater at the idea of an evil considered as about to befall another person (whether from his own instrumentality, or from any other cause,) than at the idea of the same evil—of an evil the same in magnitude (probability and proximity considered,) as about to fall upon himself.
Secus, if Reus and Amicus were Nisus and Euryalus. But Reus and Amicus are not Nisus and Euryalus; they are average men. It is not to fabulous, nor yet to extraordinary characters, but to ordinary ones, that the provisions of the legislator ought to be adapted.
Suppose such a plea admitted; observe the consequence. By what criterion shall the degree of sympathetic sensibility on the part of Amicus be determined? By what sure token, open to the eyes and estimation of the judge, shall it be discovered that the fate of Reus is in any degree an exciting cause of the affection in question, in the breast of Amicus? From the ties of blood? The presumption is strong; but unhappily not so strong as to be conclusive. From any other ties? The presumption is weaker and weaker ad infinitum.
Admitted, the plea would put into the hands of the judge, at least with the concurrence of the proposed witness, the faculty of excluding or admitting any man’s testimony at pleasure. The sentimental candidate for exclusion, what in this case should he do?—should he speak, and weep, and faint for himself? or fee counsel to speak, and weep, and faint for him?
Lawyer and client.*
English judges have taken care to exempt the professional members of the partnership from so unpleasant an obligation as that of rendering service to justice. “Counsel and attorneys . . . . ought not to be” (say rather are not) “permitted to discover the secrets of then clients, though they offer themselves for that purpose.”†
On which of the two above-mentioned grounds does the exemption rest in those learned bosoms? Is it that the client would suffer so much more from being hurt by his lawyer’s testimony than by his own? or that a man is so much dearer to his advocate and his attorney, than to himself?
The oracle has given its response:—“The privilege is that of the client, not of the attorney.”‡
When, in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court, might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not? Oh, because to betray a trust is treachery; and an act of treachery is an immoral act.
An immoral sort of act, is that sort of act, the tendency of which is, in some way or other, to lessen the quantity of happiness in society. In what way does the supposed cause in question tend to the production of any such effect? The conviction and punishment of the defendant, he being guilty, is by the supposition an act the tendency of which, upon the whole, is beneficial to society. Such is the proposition which for this purpose must be assumed. Some offences (it will be admitted by everybody) are of that sort and quality, that the acts by which they are punished do possess this beneficial tendency. Let the offence in question be of the number: it is of such only as are of that number that I speak. The good, then, that results from the conviction and punishment, in the case in question, is out of dispute: where, then, is the additional evil of it when produced by the cause in question? Nowhere. The evil consists in the punishment: but the punishment a man undergoes is not greater when the evidence on which the conviction and punishment are grounded happens to come out of the mouth of a law adviser of his, than if it had happened to come out of his own mouth, or that of a third person.
But if such confidence, when reposed, is permitted to be violated, and if this be known (which, if such be the law, it will be,) the consequence will be, that no such confidence will be reposed. Not reposed?—Well: and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray: let the law adviser say everything he has heard, everything he can have heard from his client, the client cannot have anything to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be,—Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerning a false defence, as he may do at present.
Except the prevention of such pernicious confidence, of what other possible effect can the rule for the requisition of such evidence be productive? Either of none at all, or of the conviction of delinquents, in some instances in which, but for the lights thus obtained, they would not have been convicted. But in this effect, what imaginable circumstance is there that can render it in any degree pernicious and undesirable? None whatever. The conviction of delinquents is the very end of penal justice.
Observe the inconsistency between the rule in the case of the particular species of contract in question, and the rules observed in general in respect to contracts. Of contracts in general the fulfilment is beneficial to society: of contracts in general the fulfilment is accordingly enforced. But there are some contracts the fulfilment of which would be pernicious to society: every crime, every offence, supposing the prohibition put upon it by the law to be well grounded, affords an example: viz. that of a contract for the joining in the commission of such offence. The contract between a delinquent and his law adviser, is a contract which has for its object the enabling the delinquent to escape the punishment which is his due. With what consistency, to what end, would the law seek to enforce a contract to such an effect? Suppose a like contract between a delinquent and his jailer—a contract, the object of which shall be to enable the delinquent to escape. Does the law seek to enforce this sort of contract? No, not anywhere. But why not? It might, with as much reason as in the other case.
If the law adviser, of his own motion, the law neither commanding nor forbidding him, were to offer his testimony for the purpose of promoting the conviction of his client, the imputation of treachery would have, if not a good ground, at any rate a better, a more plausible ground. But the question is not, whether the lawyer shall thus offer his testimony; but whether the law shall command it, or authorize him, nay force him, to refuse it.
Compare the law in this case, with the law in the case of treason—misprision of treason. If, knowing of an act of treason committed, a man forbears to give information of it, such forbearance is punished, and certainly not without reason, as a high crime. In the case of the law adviser, the rule now under consideration would probably be deemed applicable to the crime of treason, as well as to all others. The law in this case finds a man in whom it protects that very species of conduct which it punishes in every other man: and that species of conduct a mischievous one; one of which the effects cannot but be pernicious. To what end, with what consistency, can the law find out a man to receive with safety, and even under an obligation of concealment, that confidence, that pernicious confidence, which it punishes in every other man?
Another inconsistency. To confidents taken from other professions, neither the obligation nor the permission of secrecy, as against justice, extends. A physician, a surgeon, is compelled to disclose what may operate towards the conviction of his patient.
To the credit of the judges of latter times, this superstition appears to have been not much to their taste: by decision after decision they have pared it down and narrowed it, to a very considerable degree. From a counsel, from an attorney, evidence may be extracted of facts which came to their knowledge before they were retained:* of facts disclosed to them by the client after the suit was at an end by compromise:† of facts which, though falling under their cognizance no otherwise than in consequence of their professional intercourse with their client, were not directly communicated and confessed by him:‡ of facts which, though coming to their cognizance in consequence of such intercourse, might (it is said) have come to their cognizance without it.∥
In a word, so fine has the hair been split, that, when an attorney has been consulted with, not (it is said) as an attorney, but only as a friend, evidence of the facts that come under his cognizance has been extracted from his mouth.§ Quære, by what sign to know when it is the attorney who is present, and when it is the friend? In the case of the counsel, there might have been less difficulty: the professional robe, by being off or on, might distinguish the counsel from the friend.
Hawkins,¶ speaking to the question, “What kind of receipt of a felon will make the receiver an accessary after the fact?” says, “It seems agreed that, generally, any assistance whatever given to one known to be a felon, in order to hinder his . . . . . suffering the punishment to which he is condemned, is a sufficient receipt for this purpose.” (By the word condemned, he means no more than doomed by the general disposition of the law, not condemned in consequence of a particular prosecution instituted: for in all the examples he gives, the assistance spoken of is given before prosecution.) The lawyer who, knowing from the confession of his client that such client has committed a felony, enables him by his counsel to avoid “suffering the punishment to which he is condemned,” is, according to the above definition, an accessary to such felony; viz. an accessary after the fact. In practice he certainly would not be deemed so. What I mention the case for, is to show the inconsistency. In the case of the law adviser, the “policy,”** as it is called, of the law, is to protect that sort of man in affording to a crime that very sort of assistance, the giving of which it punishes in any other sort of man—punishes, and even to such a degree as to treat him as an accomplice. In a case like this, it would certainly be too much to punish the law adviser as an accomplice, for lending his advice (which is his mode of assistance) to a guilty client, or for not spontaneously disclosing such lights towards the ascertainment of his guilt, as it has happened to him to collect. It might deter the lawyer from lending his assistance to an innocent person when accused, by the fear of being involved in the punishment in case of his proving guilty. But to what use, or with what consistency, forbid his disclosing any such proof of guilt, even though called upon so to do?
A distinction, which seems an important one, is one of which I see no traces in the books. The confidence supposed to be reposed in the law adviser,—is it reposed after prosecution, for the purpose of the guilty party’s being enabled to escape the punishment due to his guilt? or is it reposed before prosecution—reposed (suppose) while the offence is in contemplation, and in the view of learning the means of committing it with impunity and success? In the former case, the relation of the law adviser to the offence, in case of criminal consciousness on his part, is that of an accessary after the fact; in the other, that of an accessary before or during the fact; that sort of accessary who, in the technical language of the law, is in many cases termed a principal. I say, in case of criminal consciousness: for, from the circumstance of an attorney’s having it in his power to give evidence, the effect of which, added to other evidence, may be to give birth to the conviction of his client in respect of a crime or other offence,—it does not follow by any means that there must have been any criminal consciousness on his part; that the picture of the transaction should have been present to his mind, clothed with all those circumstances the union of which is necessary to the constituting it a crime. In case of perjury (for example,) the attorney may have learnt from his client the existence of a fact incompatible with another fact, the existence of which the client has averred upon oath, but without having heard of his ever having made any such averment: or, vice versâ, he may have been privy to the making of such averment upon oath, without having ever received information, either from the client or anybody else, of the existence of the fact by which such averment is demonstrated to be perjurious.
“A counsel, solicitor, or attorney, cannot conduct the cause of his client” (it has been observed) “if he is not fully instructed in the circumstances attending it: but the client” (it is added) “could not give the instructions with safety, if the facts confided to his advocate were to be disclosed.”* Not with safety? So much the better. To what object is the whole system of penal law directed, if it be not that no man shall have it in his power to flatter himself with the hope of safety, in the event of his engaging in the commission of an act which the law, on account of its supposed mischievousness, has thought fit to prohibit? The argument employed as a reason against the compelling such disclosure, is the very argument that pleads in favour of it.
This being the professed object of the English system of law, as well as of every other system of law,—viz. the prevention of offences,—is it reconcilable to the idea of wisdom or consistency, that it should lay down a rule, the effect of which, without contributing to the protection of the innocent, or preventing vexation in any other shape, is purely and simply to counteract its own designs?
In vain would it be to impute the favouring of treachery to a regulation by which such disclosures were to be made obligatory. In saying, “a criminative fact, stated by a delinquent to his law adviser, shall, if called for, be disclosed by him in evidence,” it gives sufficient warning to offenders not to seek for safety in such means.
Thus much as to the case where the effect of the disclosure may be to subject the client to suffer as for an offence. Where the effect of it does not go beyond the subjecting him to some non-penal obligation to which he otherwise might not be subjected, or to debat him from some right of which he otherwise might have come into possession, or remained possessed,—the objection is no more reconcilable with the main object of the law than in the other case. In every such case, though by a process grievously and unnecessarily dilatory and expensive,† what the law does, or to be consistent ought to do, is to compel each party, out of his own mouth (or, to speak literally, by his own hand,) to make disclosure of such facts as, lying within his own knowledge, are of a nature to contribute towards substantiating the claim of the adversary. Can there be any reason why that information, which he is compelled to give by his own hand, should not be obtained with equal facility from another hand, from which, if there be any difference, it may be extracted with less reluctance? Disclosure of all legally-operative facts, facts investitive or divestitive of right—of all facts on which right depends,—such, without any exception, ought to be—such, with a few inconsistent exceptions, actually is, the object of the law. On the part of the individuals of all descriptions by whom information to such effect happens in each instance to be possessed, the two species of behaviour by which the fulfilment of this design may be counteracted in such instance, are falsehood and concealment. It falsehood is not favoured by the law, why should concealment? a mode of conduct which, without the guilt (at least in as far as guilt is measured by punishment,) is attended, so far as it takes place, with the same pernicious and undesirable effect.
Concealment of those facts, the knowledge of which is necessary to the fulfilment of the prodictions delivered by the substantive branch of the law, is a mode of conduct punished in some instances as an offence, and even as a crime. The least that can be required by consistency is, that the species of fraud thus punished in some cases, should not in any case be protected and encouraged.
To give encouragement to the spirit of chicane, is an imputation which, on here and there an occasion, men are bold enough to cast upon the general complexion of the law, though not in a hundredth part of the instances in which a just warrant might be found for it. An objection to a proposition in which any such term as chicane is the characteristic word, is, that it is indistinct and vague. The rules of the class of that against which I have been here contending, may serve at once to fix the import, and to exemplify the ground of it.
Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! Expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes.
Idle as a reproach,—as a memento this ought never to be out of mind. It is thus, and thus only, that it can be visible to the legislator, where to look for opposition, and where, if anywhere, for assistance.
[Farther Remarks by the Editor.—In the notice of the Traité des Preuves Judiciaires, in the Edinburgh Review,* the rule which excludes the testimony of the professional assistant, is with much earnestness defended. The grounds of the defence, in so far as they are intelligible to me, reduce themselves to those which follow:—
1. The first argument consists of two steps, whereof the former is expressed, the latter understood; and either of them, if admitted, destroys the other. The proposition which is asserted is, that the aid which is afforded to an accused person by his advocate, is of exceedingly great importance to justice. The proposition which is insinuated is, that of this aid he would be deprived, if his advocate were rendered subject to examination.—If the only purpose, for which an advocate can be of use, be to assist a criminal in the concealment of his guilt, the last proposition is true: but what becomes of the former? If, on the other hand (as is sufficiently evident) an advocate be needful on other accounts than this,—if he be of use to the innocent, as well as to the guilty—to the man who has not anything to conceal, as well as to the man who has,—what is to hinder an innocent, or even a guilty defendant, from availing himself of his advocate’s assistance for all purposes, except that of frustrating the law?
2. The second argument consists but of one proposition: it is, that Lord Russell’s attorney would have been a welcome visitor, with his notes in his pocket, to the office of the solicitor of the Treasury. To the exalted personages, whose desire it was to destroy Lord Russell, any person would, it is probable, have been a welcome visitor, who came with information in his pocket, tending to criminate the prisoner. From this, what does the reviewer infer? That no information tending to criminate the prisoner should be received?—that the truth should not, on a judicial occasion, be ascertained? Not exactly: only that one means, a most efficient means, of ascertaining if, should be rejected. Are we to suppose, then, that on every judicial occasion the thing which is desirable is, that the laws should not be executed? Then, indeed, the reviewer’s conclusion would be liable to no other objection than that of not going nearly far enough; since all other kinds of evidence might, and indeed ought, on such a supposition, to be excluded likewise.
So long as the law treats any act as a crime which is not a crime, so long it will, without doubt, be desirable that some acts which are legally crimes should escape detection: and by conducing to that end, this or any other exclusionary rule may palliate, in a slight degree, the mischiefs of a bad law. To make the conclusion hold universally, what would it be necessary to suppose? Only that the whole body of the law is a nuisance, and its frustration, not its execution, the end to be desired.
Laws are made to be executed, not to be set aside. For the sake of weakening this or that bad law, would you weaken all the laws? How monstrous must that law be, which is not better than such a remedy! Instead of making bad laws, and then, by exclusionary rules, undoing with one hand a part of the mischief which you have been doing with the other, would it not be wiser to make no laws but such as are fit to be executed, and then to take care that they be executed on all occasions?
3. The third argument is of that ingenious and sometimes very puzzling sort, called a dilemma. If the rule were abolished, two courses only, according to the reviewer, the lawyer would have: he must enter into communication with the opposite party from the beginning, to which course there would be objections; or he must wait till he had satisfied himself that his client was in the wrong, and must enter into communication with the opposite party then; to which course there would be other objections. What the force of these objections may be, it is not necessary, nor would it be pertinent, to inquire: since neither justice nor Mr. Bentham demand that he should enter into communication with the opposite party at all. What is required is only, that if, upon the day of trial, the opposite party should choose to call for his evidence, it may not be in his power, any more than in that of any other witness, to withhold it.
One would not have been surprised at these arguments, or even worse, from an indiscriminate eulogizer of “things as they are;” this, however, is by no means the character of the writer of this article: it is the more surprising, therefore, that he should have been able to satisfy himself with reasons such as the three which we have examined. Not that these are all the reasons he has to give: the following paragraph seems to be considered by him as containing additional reasons to the same effect:—
“Even in the very few instances where the accused has intrusted his defender with a full confession of his crime, we hold it to be clear that he may still be lawfully defended. The guilt of which he may be conscious, and which he may have so disclosed, he has still a right to see distinctly proved upon him by legal evidence. To suborn wretches to the commission of perjury, or procure the absence of witnesses by bribes, is to commit a separate and execrable crime; to tamper with the purity of the judges is still more odious; but there is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction. Human beings are never to be run down like beasts of prey, without respect to the laws of the chase. If society must make a sacrifice of any one of its members, let it proceed according to general rules, upon known principles, and with clear proof of necessity: ‘let us carve him as a feast fit for the gods, not hew him as a carrass for the hounds.’ Reversing the paradox above cited from Paley, we should not despair of finding strong arguments in support of another, and maintain that it is desirable that guilty men should sometimes escape, by the operation of those general rules which form the only security for innocence.”
In reading the above declamation, one is at a loss to discover what it is which the writer is aiming at. Does he really think that, all other things being the same, a system of procedure is the better, for affording to criminals a chance of escape? If this be his serious opinion, there is no more to be said; since it must be freely admitted that, reasoning upon this principle, there is no fault to be found with the rule. If it be your object not to find the prisoner guilty, there cannot be a better way than refusing to hear the person who is most likely to know of his guilt, if it exist. The rule is perfectly well adapted to its end: but is that end the true end of procedure? This question surely requires no answer.
But if the safety of the innocent, and not that of the guilty, be the object of the reviewer’s solicitude,—had he shown how an innocent man could be endangered by his lawyer’s felling all he has to tell, he would have delivered something more to the purpose than any illustration which the subject of carcasses and hounds could yield. If he can be content for one moment to view the question with other than fox-hunting eyes, even he must perceive that, to the man who, having no guilt to disclose, has disclosed none to his lawyer, nothing could be of greater advantage than that this should appear; as it naturally would if the lawyer were subjected to examination.
“There is no reason why any party should not, by fair and animated arguments, demonstrate the insufficiency of that testimony, on which alone a righteous judgment can be pronounced to his destruction.” This, if I rightly understand it, means, that incomplete evidence ought not, for want of comments, to be taken for complete, we were in no great danger of supposing that it ought. But the real question is,—should you, because your evidence is incomplete, shat out other evidence which would complete it. After the lawyer has been examined, is the evidence incomplete notwithstanding? then is the time for your “fair and animated arguments.” Is it complete? then what more could you desire?
The denunciation which follows against hunting down human beings without respect for the laws of the chase, is one of those proofs which meet us every day, how little, as yet, even instructed Englishmen are accustomed to look upon judicature as a means to an end, and that end the execution of the law. They speak and act, every now and then, as if they regarded a criminal trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play: in a word, that whether a guilty person shall be acquitted or punished, may be, as nearly as possible, an even chance.
I had almost omitted the most formidable argument of all, which was brought forward by M. Dumont, not as decisive, but as deserving of consideration, and which the reviewer, who adopts it, terms “a conclusive reductio ad absurdum.” This consists in a skilful application of the words spy and informer (espion, délateur,) two words forming part of a pretty extensive assortment of vaguely vituperative expressions, which possess the privilege of serving as conclusive objections against any person or thing which it is resolved to condemn, and against which, it is supposed, no other objections can be found.
Spies and informers are bad people; a lawyer who discloses his client’s guilt is a spy and an informer; he is therefore a bad man, and such disclosure is a bad practice, and the rule by which it is prohibited is a good rule. Such, when analyzed into its steps, is the argument which we are now called upon to consider.
But to form a ground for condemning any practice, it is not enough to apply to the person who practises it an opprobrious name: it is necessary, moreover, to point out some pernicious tendency in the practice; to show that it produces more evil than good. It cannot be pretended that the act of him, who, when a crime comes to his knowledge (be it from the malefactor’s own lips, or from any other source,) being called upon judicially to declare the truth, declares it accordingly, is a pernicious act. On the contrary, it is evident that it is a highly useful act: the evil occasioned by it being, at the very worst, no more than the punishment of the guilty person—an evil which, in the opinion of the legislature, is outweighed by the consequent security to the public. Call this man, therefore, an informer or not, as you please; but if you call him an informer, remember to add, that the act which constitutes him one, is a meritorious act.
M. Dumont expresses an apprehension that no honourable man would take upon him the functions of an advocate, if compelled to put on what he is pleased to call the character of an informer. Further reflection would, I think, have convinced him that this apprehension is chimerical. There is scarcely anything in common between the two characters of an informer and of a witness. The antipathy which exists against the former extends not to the latter. A witness, as such, does not take money for giving evidence, as an informer frequently does for giving information. The act of an informer is spontaneous: he is a man who goes about of his own accord doing mischief to others: so at least it appears to the eyes of unreflecting prejudice. The evidence of the witness may be more fatal to the accused than the indications given by the informer; but it has the appearance of not being equally spontaneous: he tells what he knows, because the law compels him to say something, and because, being obliged to speak, he will speak nothing but the truth: but for anything that appears, if he had not been forced, he would have held his tongue and staid away. An honourable man, acting in the capacity of an advocate, would, by giving true evidence, incur the approbation of all lovers of justice, and would not incur the disapprobation of any one: what, therefore, is there to deter him? unless it be a hatred of justice.
The reviewer adds, that M. Dumont’s argument “might be assisted with a multiplicity of reasonings:” these, as he has not stated them, Mr. Bentham, probably, may be pardoned for being ignorant of. The reviewer is modest enough to content himself with the “single and very obvious remark, that the author evidently presumes the guilt from the accusation,” a remark which could have had its source in nothing but the thickest confusion of ideas. Had Mr. Bentham recommended condemnation without evidence, or any other practice which would be indiscriminately injurious to all accused persons, innocent or guilty,—it might then have been said of him, with some colom of justice, that he presumed the guilt from the accusation. But when, of the practice which he recommends, it is a characteristic property to be a security to the innocent, a source of danger to the guilty alone,—under what possible pretence can he be charged with presuming the existence of guilt?—though he may be charged, sure enough, with desiring that where there is guilt, it may be followed by punishment; a wish probably blameable in the eyes of the reviewer, who thinks it “desirable that guilty men should sometimes escape.”
Thus weak are all the arguments which could be produced against this practice, by men who would have been capable of finding better arguments, had any better been to be found. It may appear, and perhaps ought to appear, surprising, that men generally unprejudiced, and accustomed to think, should be misled by sophistry of so flimsy a texture as this has appeared to be. Unhappily, however, there is not any argument so palpably untenable and absurd, which is not daily received, even by instructed men, as conclusive, if it makes in favour of a doctrine which they are predetermined to uphold. In the logic of the schools, the premises prove the conclusion. In the logic of the affections, some cause, hidden or apparent, having produced a prepossession, this prepossession proves the conclusion, and the conclusion proves the premises. You may then scatter the premises to the winds of heaven, and the conclusion will not stand the less firm,—the affections being still enlisted in its favour, and the show, not the substance, of a reason being that which is sought for,—if the former premises are no longer defensible, others of similar quality are easily found. The only mode of attack which has any chance of being successful, is to look out for the cause of the prepossession, and do what may be possible to be done towards its removal: when once the feeling, the real support of the opinion, is gone, the weakness of the ostensible supports, the so-called reasons, becomes manifest, and the opinion falls to the ground.
What is plainly at the bottom of the prepossession in the present case, is a vague apprehension of danger to innocence. There is nothing which, if listened to, is so sure to mislead as vague fears. Point out any specific cause of alarm, anything upon which it is possible to lay your hand, and say, from this source, evil of this or that particular kind is liable to flow; and there may be some chance of our being able to judge whether the apprehension is or is not a reasonable one. Confine yourself to vague anticipations of undefined evils, and your fears merit not the slightest regard: if you cannot tell what it is you are afraid of, how can you expect any one to participate in your alarm? One thing is certain: that, if there be any reason for fear, that reason must be capable of being pointed out: and that a danger which does not admit of being distinctly stated, is no danger at all. Let any one, therefore, ask himself,—supposing the law good, and the accused innocent,—what possible harm can be done him by making his professional assistant tell all that he knows?
He may have told to his lawyer, and his lawyer, if examined, may disclose, circumstances which, though they afford no inference against him, it would have been more agreeable to him to conceal. True; but to guard him against any such unnecessary vexation, he will have the considerate attention of the judge: and this inconvenience, after all, is no more than what he may be subjected to by the deposition of any other witness, and particularly by that of his son, or his servant, or any other person who lives in his house, much more probably than by that of his lawyer.
Whence all this dread of the truth? Whence comes it that any one loves darkness better than light, except it be that his deeds are evil? Whence but from a confirmed habit of viewing the law as the enemy of innocence—as scattering its punishments with so ill-directed and so unsparing a hand, that the most virtuous of mankind, were all his actions known, could no more hope to escape from them, than the most abandoned of malefactors? Whether the law be really in this state, I will not take upon myself to say: sure I am, that if it be, it is high time it should be amended But if it be not, where is the cause of alarm? In men’s consciousness of their own improbity. Children and servants hate tell-tales; thieves hate informers, and peaching accomplices; and, in general, he who feels a desire to do wrong, hates all things, and rules of evidence among the rest, which may, and he fears will, lead to his detection.
Thus much in vindication of the proposed rule. As for its advantages, they are to be sought for not so much in its direct, as in its indirect, operation. The party himself having been, as he ought to be, previously subjected to interrogation,—his lawyer’s evidence, which, though good of its kind, is no better than hearsay evidence, would not often add any new facts to those which had already been extracted from the lips of the client. The benefit which would arise from the abolition of the exclusionary rule, would consist rather in the higher tone of morality which would be introduced into the profession itself. A rule of law which, in the case of the lawyer, gives an express heence to that wilful concealment of the criminal’s guilt, which would have constituted any other person an accessary in the crime, plainly declares that the practice of knowingly engaging one’s self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of the law-makers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument. We should not then hear an advocate boasting of the artifices by which he had trepanned a deluded jury into a verdict in direct opposition to the strongest evidence; or of the effrontery with which he had, by repeated insults, thrown the faculties of a bonâ fide witness into a state of confusion, which had caused him to be taken for a perjurer, and as such disbelieved. Nor would an Old Bailey counsel any longer plume himself upon the number of pickpockets whom, in the course of a long career, he had succeeded in rescuing from the arm of the law. The professional lawyer would be a minister of justice, not an abettor of crime—a guardian of truth, not a suborner of mendacity and not at his hands only, in another sphere, whether as a private man or as a legislator, somewhat more regard for truth and justice might be expected than now, when resistance to both is his daily business, and, if successful, his greatest glory; but, through his medium, the same salutary influence would speedily extend itself to the people at large. Can the paramount obligation of these cardinal virtues ever be felt by them as it ought, while they imagine that, on such easy terms as those of putting on a wig and gown, a man obtains, and on the most important of all occasions, an exemption from both?—Conclusion of Remarks by the Editor.]
Trustee and cestuy que trust.
On the subject of trust-prejudicing evidence, the decision, if not quite so simple as in the preceding cases, will be grounded on considerations not less conclusive.
The testimony being that of the trustee; whose are the feelings, in consideration of which the testimony in this case can be proposed to be excluded? The feelings of the cestuy que trust, the fidei-committee, to whose prejudice it redounds? But if the testimony thus proposed to be called for, were his own, no vexation of which the obligation could be productive, could form any sufficient ground for the exclusion of it. Will it be said, that the vexation produced in his breast by perceiving the evil in question brought on him by the testimony of another person, his trustee, will be greater than what would be produced by seeing the same evil brought on him by his own testimony? The answer will hardly be in the affirmative: but—be it on the one side or the other—in regard to the question of exclusion, it is not in the nature of things that it should make any material difference.
Is it in tenderness to the feelings of the trustee, that the proposed wound should be inflicted on the vitals of justice? But the vexation attendant on the delivery of the testimony could never rise to such a pitch as to constitute a sufficient ground for the exclusion of it, although it were on the desponent’s own head that the evil were to fall, much less where the head of another person is the head to bear it. Will the prospect of the suffering of the cestuy que trust be more insupportable to the trustee than if it were his own? Good, as between Nisus and Euryalus, Nisus being trustee. But our trustee is no hero; neither of an epic poem, nor a romance, nor even of real life. He is an average man: an exact likeness may be seen of him in the Propositus of Blackstone and Lord Coke.
Putting together the self-regarding feelings of the suffering cestuy que trust, and the sympathetic feelings of the trustee, will they by their joint force constitute a sufficient ground for the exclusion? That nothing may be overlooked, even this case shall undergo examination. Be it ever so strong, it will never be strong enough to support the exclusive rule. That practical point settled, the speculative question, whether the effect of the decomposition will be on the side of diminution or increase, may be left to take its chance.
The case of trusteeship, at least in the common as well as technical import of the word, will not rise above the level of that sort of evidence which, were it self-regarding, would fall under the denomination of self-onerative evidence: it will not rise to the level of self-criminating. It has never been proposed that, on the ground of his being trustee for a thief or murderer, a man should be exempt from the obligation of delivering testimony tending to convict such thief or murderer of his crime. In this more afflictive case, however, the ground for exclusion is, in proportion to the difference in point of afflictiveness, stronger than in the less afflictive case, where the loss of money or money’s worth would constitute the worst evil that could be made to fall on the cestuy que trust by the testimony of the trustee.
Husband and Wife.
The question, of which, the species of evidence, for the designation of which the epithet family-peace-disturbing has been appointed, is the subject, is a question in no small degree complicated. The necessity of grappling with it, owes its birth to the arrangements made on this subject by English jurisprudence.
Whatsoever be the relations (natural or factitious, temporary or perpetual) subsisting between a number of persons living together in the compass of the same family,—relations between husband and wife, parents and children, masters or mistresses and servants, housekeepers and inmates,—any event by which the emotion of ill-will is produced in any one of them towards any other, may pro tanto, be said to operate to the disturbance of the family peace: and ill-will being a bad thing, and peace a good thing, the more effectually any disturbance can by any arrangement of law be prevented from being given to it, so much the better. Disturbance of the peace of a family is vexation; and of vexation, if not necessary to the averting of a preponderant vexation, the production ought always to be avoided.
That,—testimony being delivered by a person standing in any one of these relations, such as to operate to the prejudice of the person standing in the opposite and corresponding relation,—vexation will be likely enough to be produced in the breasts of both, is manifest enough. But in any of these instances, ought such vexation to be considered as forming a sufficient ground for the exclusion of the testimony? Over and over again, the answer has been already made.
The case of husband and wife is the only sample which will here be taken, being the only one which is taken in English law for the ground of an exclusionary rule.
To present a distinct conception, the evil of the vexation capable of flowing from this source must, in the first place, be decomposed.
Evil flowing from sympathy, evil flowing from antipathy or ill-will:—to one or other of these two elements, the whole evil of the mixed mass may be referred.
1. As to the evil from sympathy, it has already been put into the balance, under the head of trust-prejudicing evidence. In the case of husband and wife, whether considered on the part of the male or on the part of the female, the affection or sympathy may naturally be considered as operating with greater, much greater, force, than in the case of an average trustee. On the other hand, a point not to be overlooked, is, that the opposite affection (and that acting with a force proportioned to the mutual vicinity of the two parties, and to the inflexibility of the ties of various kinds by which they are connected) is no less capable of finding a place. Yet, after all allowances made, it will not be less true that, as between an average husband and an average wife—as between Baron and Feme in the character of Propositos and Proposita—an affection of the sympathetic kind cannot in reason but but be considered as subsisting on either side, as between an average trustee and his average cestuy que trust.
Justice thus done to all parties,—the propriety of admission in this case, and the impropriety of the exclusionary rule, considered as placed on the ground of sympathy, will not be the less unquestionable.
With all possible disposition to do justice to the maintained affection maintained on the one hand in the breast of Propositus by the amiable qualities of Proposita—on the other hand, in the bosom of Propositus by the estimable qualities of Propositus,—it seems difficult to avoid admitting, that the affection of Propositus towards Proposita will not be altogether upon a level with the affection of the same Propositus for his earlier and still more intimate acquaintance, himself: and no less so as between the affection of Proposita towards Propositus on the one hand, and the affection of the same Proposita towards the amiable partner of Propositus on the other. For, let it not be forgotten, that the bosoms to which the thermometer is for this purpose to be applied, are the bosoms of Propositus and Proposita, not of Poetus and Arria, any more than of Nisus and Euryalus in the other case.
Thus much seemed necessary, yet not more than necessary, to give the corrective requisite for reducing to the standard of plain and ordinary nature the heroic dimensions given to the conjugal flame by the sentimentality of English lawyers.
As, therefore, vexation on a self-regarding account has been shown not to be a sufficient ground for exclusion, neither can the image of the same vexation, presented by sympathy.
Turn next to the evil from antipathy.
The law will not suffer the wife to be a witness for or against her husband: this is a proposition put by a reporter into the mouth of the first Earl of Hardwicke. “The reason is . . . . to preserve the peace of families: and therefore I shall never encourage such a consent.”* Here, by good fortune, we have a distinct proposition, with an assignable author, and be of the first degree of professional respectability.
When, on failure of the beaten track of analogy, we find among the opinions of professional lawyers an argument that wears upon the face of it any connexion with the principle of utility, it consists commonly in a reference to some one head of inconvenience or advantage, no account being taken of any other. But it is of the essence of law to be a choice of evils : including under the notion of evil, the absence or negation of this or that lot of positive good. It will happen, in many cases, that not only there shall be an advantage on one side to set against an inconvenience on the other, but in the one scale there shall be a number of perfectly distinct advantages, weighing against a number of equally distinct inconveniences in the other. A narrow and imperfect lot of reason, is better than a mere caprice, having no relation to good or evil, to pain or pleasure, on either side: but from an imperfect lot of reason, no better than imperfect conclusions can reasonably be expected.
In legislative argumentation it is not uncommon to have a number of reasons, such as they are, all grounded on the principle of utiliy, adduced on both sides: but in judicial argument, if you get a single article in the shape of an original reason, an indication of convenience or inconvenience, it is a sort of a prize. Cases against cases, i. e. decisions against decisions, you will have in plenty; but if you have anything in the shape of a rational reason—of a reason referable to the principle of utility,—you will find it stand alone; and a mere allusion, as vague and incompletely expressed as it is possible to conceive, is the shape in which it comes. Hard—hardship—policy—peace of families—absolute necessity:—some such words as these are the vehicles, by which the exhibits spark of reason that exhibits itself is conveyed. These are the leading terms, and these are all you are furnished with; and out of these you are to make an applicable, a distinct and intelligible proposition, as you can.
Hawkins, one of the best and most comprehensive heads the profession of the law ever possessed, had already taken up the same argument, and added to it another. “Regularly, the one shall not be admitted to give evidence against the other” (husband and wife,) “nor the examination of the one he made use of against the other, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardship of the case.”*
Implacable dissension is one argument: the same in substance as that which occurred to and weighed with Lord Hardwicke.
Great danger of perjury is another, not stated as having been noticed by Lord Hardwicke.
Of the words “extreme hardship of the case,” I cannot make out any argument distinct from the two preceding ones.
These are the reasons for which, not only the wife is not allowed to be called as a witness against her husband, but even her extrajudicial declarations are not admitted in evidence against him, though his own extrajudicial declarations are.
The argument from the danger of perjury arises out of the supposed sympathy, and therefore need scarcely receive any farther notice.
Suffice it to say, that if the danger of perjury be an objection against the calling in the sanction of an oath in this case, it is an objection against it in all other cases, and an objection that applies to the sanction with the greater force, the greater the need there is of it. If applied to the testimony considered in respect of the danger of falsehood, apart from the consideration of the sanction, it is an objection to all testimony:—if it applies to the case of the wife, considered with respect to her presumable unwillingness to do an act whereby her husband may sustain a prejudice, it applies with still greater force against all the instances in which a man’s own testimony is permitted to be called for against himself: it applies to one of the characteristic features of the practice of the courts styled courts of equity.
As to dissension,—which, to give force to the argument, is presumed, without the smallest alleged reason, to be implacable,—
The rule, if carried as far as it would go, being altogether destructive of the peace of families—of that peace which it is its professed object to protect,—in comes, in consequence, one class of exceptions, and that a very large one.† In case of an offence involving a personal injury committed by the husband against the wife, the testimony of the wife against the husband is admissible, and admitted in ordinary practice.*
When a man has inflicted severe bodily suffering on his wife—has been in the habit of thus filling her life with misery,—here is a cause of dissension, which, powerful as it is, experience proves to be by no means unplacable. Injuries of the like kind, it will sometimes happen (though, by reason of the usual superiority of force on the male side, not so frequently,) shall be inflicted—habitually inflicted, on the husband by the wife. A man forgives the wife who has put him to bedily forture; but it is not in the nature of a man ever to forgive the wife, who, being called upon in a court of justice for the purposes of justice, shall have dared to speak the truth! Where there is injury, and the highest degree of injury, forgiveness is expected, being in every day’s experience; where there is no injury—where the supposed cause of offence is a compliance with the injunctions of duty, forgiveness is regarded as altogether hopeless!
To be consistent with itself, the law should strew danger before every step which it could occur to a man to take in the path of criminality. Instead of that, it is the care of the law itself to remove the principal source of danger out of his way. To be consistent with itself, it should remove out of his way every possible assistance that can contribute to engage him in any course of conduct which it reprobutes and endeavours to prevent. Instead of that, it secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime.
If the dissension were, in the nature of the case, so implacable as the argument supposes, it should, consistently speaking, operate as a motive with the law to prescribe, rather than exclude, this source of information. If I attempt this crime, it may happen to my wife, from whom I cannot hope to conceal it, to be called upon to bear witness against me: and then,—even if I should escape from the punishment of the law,—the pain of seeing, in the partner of my bed, the once probable instrument of my destruction, will never leave me.
In the days when the exclusive rule in question took its rise, the reason in favour of it operated with a degree of force considerably beyond that with which it acts in these our days. The power of the husband over the wife was much stronger and more absolute. A time there appears to have been, when the exceptions, by which a wife is permitted to seek protection in a court of justice against ill-usage by the husband, were nor yet established. Morality was at the same time more loose—manners more harsh and savage; resentment, on so unbecoming a ground as that of a submission to the laws of truth and justice, was more likely to be conceived and harboured, more easy to be gratified with impunity, and more apt to be implacable.
A law which should exclude the testimony of the wife in the case of a prosecution against the husband for ill-usage done to the wife, would be tantamount to authorizing the husband to inflict on the wife all imaginable cruelties, so long as nobody else was present: a condition which, having by law the command in and over his own house, it would in general be in his power to fulfil.
A law which excludes the testimony of the wife, in the case of a prosecution against the husband for mischief done to any other individual, or to the state, is, in like manner, in other words, a law authorizing him to do, in the presence and with the assistance of the wife, every kind of mischief, that excepted by which she herself would be a sufferer. The law, which in the former case affords its protection to the wife,—with what consistency can it, in the latter case, refuse its protection to every human creature besides?
So often as the mask has been stripped off, can it be necessary to lay bare the real policy that lies at the bottom of this business?
A cause between Doe and Ux admits as many fees as a cause between Doe and Roe. In a case where there is nobody to swear for Ux, if Ux were not admitted, there would be no cause, no fees. Rule:—admit her evidence.
Very different is the case, where the cause is between one of the married pair, viz. the husband (by whom the cause, in a dispute with a stranger, is in general conducted,) and a stranger.
If a man could not carry on schemes of injustice, without being in danger, every moment, of being disturbed in them,—and (if that were not enough) betrayed and exposed to punishment,—by his wife; injustice in all its shapes, and with it the suits and the fees of which it is prolific, would, in comparison with what it is at present, be rare. Let us, therefore, grant to every man a licence to commit all sorts of wickedness, in the presence and with the assistance of his wife: let us secure to every man in the bosom of his family, and in his own bosom, a safe accomplice let us make every man’s house his castle; and, as far as depends upon us, let us convert that castle into a den of thieves.*
Two men, both married, are guilty of errors of exactly the same sort, punishable with exactly the same punishment. In one of the two instances (so it happens,) evidence sufficient for conviction is obtainable, without having recourse to the testimony of the wife: in the other instance, not without having recourse to the testimony of the wife. While the one suffers,—capitally, if such be the punishment,—to what use, with what consistency, is the other to be permitted to triumph in impunity?
The film of prejudice once removed, a very loose system of morality, or rather (to speak plainly) a system of gross immorality, will be seen to be at the bottom of these exemptive rules. The very crime which it punishes in one man—punishes even with death—it affords its protection to in another, it converts, or seeks to convert, the house of every man, into a nursery of unpunishable crimes. The same age of barbarism and superstition, the same age of relaxed morality, which gave birth to the institution of asylums, gave birth (there seems reason to think) to this privilege, which gives to each man a safe accomplice in his bosom. The mischievousness of the domestic asylum goes, however, far beyond that of the asylum commonly so called. The church, churchvard, or monastery, whatever it was, did not afford to the criminal anything like a complete exemption from all punishment: it was itself a punishment: it was banishment from his family: it included imprisonment, or a degree of confinement so close as to be scarce distinguishable from it: it placed him in a state of penury, humiliation, and dependence.
A rule like this, protects, encourages, inculcates fraud. For falsehood, positive falsehood, is but one modification of fraud: concealment, a sort of negative falsehood, is another: I mean, concealment of any facts, of which, for the protection of their rights, individuals of the public have a right to be informed. The concealment which is authorized by the law, it may be said, ceases to be fraud. No; that it does not: I mean, in this case. A concealment which is authorized by the substantive branch of the law, cannot be fraudulent: the authorization does away the fraud: what is authorized is legalized, criminality, and legality, are repugnant and incompatible. But the law cannot, without authorizing fraud, authorize by its adjective branch, the doing of that which, by its substantive branch, it has constituted a crime. By the punishment annexed to the act by the substantive branch of the law, the law has acknowledged and proclaimed its mischievousness; if the act be not mischievous, the legislator has no warrant for marking it out for punishment. But if the act be mischievous, on what ground, with what consistency, does it in any instance seek to exempt it from punishment, as if it were innocent?—exempt it in consideration of a fact purely irrelevant—a fact by which the mischievousness of it is not so much as pretended to be diminished? An article of adjective law which is at variance with the substantive law, is itself a fraud. The substantive branch of the law declares, undertakes, engages, for the benefit of all parties interested, that all persons offending so and so shall be punished so and so. The judicial authority, which, by a law of the adjective kind, of its own making, takes upon itself to exempt a man from such punishment, on a ground by which his case is not varied in point of guilt, violates that engagement. Fraudulent in itself,—so far as it encourages others to pursue that plan of concealment by which the engagement is violated, it is the cause of fraud in others. By aggregating the act to the class of crimes, and rendering it punishable as such, it declares it to be a mischievous act, and to such a degree so, as to be a crime. By authorizing an individual to conceal it, in a case in which it is not so much as pretended that its mischievousness is in the smallest degree less than in other cases, it at once protects and encourages two different acts, of the mischievousness and criminality of which it shows itself sufficiently sensible on other occasions;—the principal crime, and that concealment of it, which, when the act so concealed is criminal, is itself a crime.
It debases and degrades the matrimonial union; converting into a sink of corruption, what ought to be a source of purity. It defiles the marriage-contract itself, by tacking to it in secret a licence to commit crimes.
I say in secret; for the probability is, that an institution so repugnant to moral sentiments is not generally known, and, on that account, is not productive of all the mischief, of which, if known universally, it would be productive. No care being taken to enable men to possess themselves of that knowledge, on which their security, in every branch of it, is in a state of continual dependence,—the degree of information which they actually have of it, depends upon its natural aptitude for being guessed at. To the knowledge of what, on each head, is law, they have no other clue than such conception as they are led to form to themselves of what it ought to be.
Oh! but think what must be the suffering of my wife if compelled by her testimony to bring destruction on my head, by disclosing my crimes!—Think? answers the legislator: yes, indeed, I think of it; and, in thinking of it, what I think of besides, is, what you ought to think of it. Think of it as part of the punishment which awaits you, in case of your plunging into the paths of guilt. The more forcible the impression it makes upon you, the more effectually it answers its intended purpose. Would you wish to save yourself from it? it depends altogether upon yourself: preserve your innocence.
To the legislators of antiquity, the married state was an object of favour: they regarded it as a security for good behaviour: a wife and children were considered as being (what doubtless they are in their own nature) so many pledges. Such was the policy of the higher antiquity. The policy of feudal barbarism, of the ages which gave birth to this immoral rule, is to convert that sacred condition into a nursery of crime.
The reason now given was not, I suspect, the original one. Drawn from the principle of utility, though from the principle of utility imperfectly applied, it savours of a late and polished age. The reason that presents itself as more likely to have been the original one, is the grimgribber, nonsensical reason,—that of the identity of the two persons thus connected. Baron and Feme are one person in law. On questions relative to the two matrimonial conditions, this quibble is the fountain of all reasoning.
Among lawyers, among divines, among all candidates setting up for power in a rude age, working by fraud opposed to force, scrambling for whatever could be picked up of the veneration and submission of the herd of mankind,—there has been a sort of instinctive predilection for absurdity in its absurdest shape. Paradox, as far as it could be forced down, has always been preferred by them to simple truth. He who is astonished, is half subdued. Each absurdity you get people to swallow, prepares them for a greater. And another advantage is, the same figure of rhetoric which commands the admiration and obedience of the subject class, helps the memory of the domineering class: it is a sort of memoria technica.
All these parodoxes, all these dull witticisms, have this in common,—that, on taking them to pieces, you find wrapped up, in a covering of ingenuity, some foolish or knavish, and in either case pernicious, lie. It is by them that men are trained up in the degrading habit of taking absurdity for reason, nonsense for sense. It is by the swallowing of such potions, that the mind of man is rendered feeble and rickety in the morning of its days. To burn them all, without exception, in one common bonfire, would be a triumph to reason, and a blessing to mankind.
[Further remarks by the Editor.—The exclusion of the testimony of husband and wife, for or against each other, is in the number of the exclusions which, in an article already alluded to, are defended by the Edinburgh Review: “yet not entirely,” says the reviewer, “on account of that dread entertained by the English law, of conjugal feuds, though these are frequently of the most deadly character. But the reason just given, in the case of the priest, applies” (this refers to the opinion of Mr. Bentham, that the disclosure, by a catholic priest, of the secrets confided to him by a confessing penitent, should not be required or permitted:) “for the confidence between married persons makes their whole conversation an unreserved confession; and they also could never be contradicted but by the accused: while external circumstances might be fabricated with the utmost facility, to give apparent confirmation to false charges. But our stronger reason is, that the passions must be too much alive, where the husband and wife contend in a court of justice, to give any chance of fair play to the truth. It must be expected, as an unavoidable consequence of the connexion by which they are bound, that their feelings, either of affection or hatred, must be strong enough to bear down the abstract regard for veracity, even in judicial depositions.”
Want of space might form some excuse to this writer for not having said more; but it is no apology for the vagueness and inconclusiveness of what he has said.
The confidence, say you, between married persons makes their whole conversation an unreserved confession? So much the better: their testimony will be the more valuable. It is a strange reason for rejecting an article of evidence, that it is distinguished from other articles by its fulness and explicitness.
The reviewer must have read Mr. Bentham very carelessly, to suppose that his reason for excluding the testimony of the priest is, because the discourse of the penitent is an “unreserved confession:” this would be a reason for admitting, not for rejecting, the evidence. The true reason for the exclusion in the case of the confessor, is, that punishment attaching itself upon the discharge of a religous duty, would in effect be punishment for religious opinions. Add to which, that the confidence reposed by the criminal in his confessor has not for its object the furtherance, nor the impunity, of offences; but for its effect, as far as it goes, the prevention of them. To seal the lips of the wife, gives a facility to crime: to seal those of the confessor, gives none; but, on the contrary, induces a criminal to confide the secret of his guilt to one whose only aim will in general be to awaken him to a sense of it. Lastly, it is to be remembered that, by compelling the disclosure in the case of the confessor, no information would ultimately be gained: the only effect being, that, on the part of the criminal, no such revelations would be made. Not so in the case of the wife, who may have come to a knowledge of the crime independently of any voluntary confession by her criminal husband.
That the testimony of the wife could not be contradicted but by the accused person, her husband, and vice versâ,—which, if true, would be a good reason for distrusting, but no reason for rejecting their evidence,—is, in the majority of cases, not true. What the husband and wife have told one another in secret, no one but they two can know; and, consequently, what either of them says on the subject of it, nobody but the other has it in his power to contradict. But is not this likewise the case between the criminal and his accomplice, or between the criminal and any other person, with respect to any fact which occurred when they two were the only persons present? while, with respect to all other facts, the testimony of husband or wife would, if false, be just as capable of being refuted by counter-evidence as the testimony of any other witness.
The aphorism on which the reviewer founds what he calls his “stronger reason,” one would not have wondered at meeting with in a German tragedy, but it is certainly what one would never have looked for in a discourse upon the law of evidence. Strange as it may sound in sentimental ears, I am firmly persuaded that many, nay most, married persons pass through life without either loving or hating one another to any such uncontroulable excess. Suppose them however to do so, and their “feelings,” whether of affection or of hatred, to be “strong enough to bear down the abstract regard for veracity,” will they, in addition to this “abstract regard,”—a curious sort of a regard,—be strong enough to bear down the fear of punishment and of shame? Will they render the witness proof against the vigilance and acuteness of a sagacious and experienced cross-examiner? Or rather, are not the witnesses who are under the influence of a strong passion, precisely those who, when skilfully dealt with, are least capable of maintaining the appearance of credibility, even when speaking the truth; and, à fortiori, least likely to obtain credit for a lie?
But I waste time, and fill up valuable space, in arguing seriously against such solemn trifling—Conclusion of remarks by the Editor.]
VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE DOUBLE ACCOUNT OF VEXATION AND DANGER OF DECEPTION.
[* ]See farther, Vol. VI. p. 99.
[† ]Bull. N. P. 284. from Str. 140. Lindsay v. Talbot.
[* ]Hawkins, § 84.
[† ]Ibid. § 90.
[‡ ]Viz. that a deed erased had been in a different plight. Ibid. § 86.
[∥ ]To prove that the client was the same person who took an oath, for which he is under an indictment for perjury: so also to prove the handwriting of the client to a note or other instrument.
[§ ]Hawkins, § 91.
[¶ ]Cap. 29, § 26, vol. iv. p. 209.
[** ]Leach’s Hawkins, iv. 434: b. iv. c. 46, § 84.
[* ]Peake on Evidence (edit. 1801,) p. 126.
[† ]A bill in equity.
[* ]No. 79. March 1824.
[* ]Peake (edit. 1801,) 123. Barker v. Sir Woolston Dixie. Cases temp. Hardwicke, 264.
[* ]Lord Coke (C. Litt. 6.) adds a technical reason, truly worthy of the purpose for which it is adduced:—
[† ]Turn back to the dictum of Lord Kenyon, in a former note. In this you have a specimen, and that a fail one, of the degree of certainty, reasonableness, and consistency, that pervade the whole of the system of jurisprudential law: of the degree of dependency fit to be placed on the opinions, the dicta, the statements, delivered by the most eminent among the official professors of it; of the regard due to those panegyries which its professors of all ranks and classes never cease to anoint it with, and from which the opinions entertained of it by students, and even lawyers, are imbibed.
[* ]In the case, however, of one of the most cruel of all injuries, a wife is deprived of this remedy.
[* ]Advice to judges:—When you have a reason to give for a rule or supposed rule of jurisprudential law, copy Mr. Justice Buller; let policy be your word; keep to generals; keep to the generalissima among generals. Behold the consequence, the fatal consequence, of descending into particulars; of talking of “implacable dissension between man and wife;” you commit yourselves; you give a handle to non-lawyers. They are thus enabled to look into your reasons, and to see whether there be any truth in them. No; never more suffer yourselves to fall into any such snare. Keep to policy, and such other arguments as, in the region of the clouds, are of equal altitude, or, if that be difficult, of nearly equal altitude, with it. Keep to policy, you are omnipotent. With the word policy in your mouths, the law is, what you please to make it: anything to-day—the same, or any different thing, to-morrow.