Front Page Titles (by Subject) PART V.: VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE DOUBLE ACCOUNT OF VEXATION AND DANGER OF DECEPTION. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
PART V.: VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE DOUBLE ACCOUNT OF VEXATION AND DANGER OF DECEPTION. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE DOUBLE ACCOUNT OF VEXATION AND DANGER OF DECEPTION.
IMPROPRIETY OF EXCLUDING THE TESTIMONY OF A PARTY TO THE CAUSE, FOR OR AGAINST HIMSELF.
Of the case in which the exclusion appears to have rested on a double ground—that which respects deception, and that which respects vexation—one exemplification is constituted by the case in which the testimony in question is that of a party to the cause.
Receive his testimony at his own instance, the testimony will be false, and you will be deceived by it: call for it at the instance of his adversary, it will be hardship to him to be obliged to give it. Such (it may be presumed) are the reasons, by which the exclusions put upon the evidence of a person bearing this relation to the suit, have been suggested. But, in each instance, the insufficiency of the reason has been already brought to view: nor, though they are applicable to the same person, does the force of either make any addition to that of the other; for whereever the one applies, the other does not. The consequence is, that there is not an imaginable case in which the testimony of a party, be he plaintiff or be he defendant, ought to be excluded.
At his own instance,—the reason which forbids the admission of the testimony is weaker in this case than in the case of an interested extraneous witness. The real magnitude of the interest being the same in both cases,—in the case of a party the interest is more palpable: the objection created by it is likely to act with greater force upon the judicial faculties of the magistrate: his mind is more surely open to it: the danger of deception is therefore less.*
If, in so far as it operates in his own favour, the testimony of the party is liable to be drawn aside from the line of truth by the action of this force, which is so obvious even to the most unobservant eye,—in so far as it operates in his disfavour, it possesses, in a degree superior to all other testimony, a claim to confidence. That, in this case, the error, if any there be in the testimony, is not a wilful one—is not accompanied, at the same time, with a knowledge of the falsity of the information, and of the tendency it has to operate to the deponent’s prejudice—is a proposition, the truth of which is far more certain in this instance, than it can be in any other.
Accordingly, as often as the testimony of a party is received—so sure as it enters into the mind of any one who has to judge of it—so sure is it to be analyzed, and, as it were, divided into two parts. To the part which is regarded as operating in the deponent’s own favour, the incredulous, the diffident part of the judge’s mind, applies itself of course: while the part regarded as operating in his disfavour, commands, on the part of the judge, an almost unlimited share of confidence: in a word, what portion of the mass is understood as belonging to this division, is, by the common sense and consent of mankind, universally regarded as the best evidence.
Such is the evidence, of which, on the ideal supposition of extraordinary vexation, the rashness of a certain class of jurists has not hesitated to rob the treasury of justice.†
A party is not suffered to be examined on his own behalf. Observe the consequence: he is delivered without mercy into the hands of a mendacious witness on the other side. Your adversary, to make evidence for a suit he means to bring against you, sends an emissary to you to engage you in a conversation, that, when called upon as a witness, he may impute confessions to you such as you never made. When the evidence comes to be given at the trial, the witness tells what story he pleases: as for you, you must not open your mouth to contradict him, although, were you admitted to state what passed, it might be in your power to satisfy the judge, that the account given of the conversation by the witness could not possibly have been true.
If, instead of sending his agent, the plaintiff had gone with him, his testimony, it is true, would have been excluded as well as yours. In words, here is a sort of reciprocity; but in effect, no such thing. The plaintiff has no need to tell his own story: he has his witness, by the supposition a partial, and even corrupt one, to tell it for him. The plaintiff, instead of being a sufferer by the exclusion put upon himself, is a gainer by it: understand, where his plan of defence is dishonest, as it is here supposed to be. In his spontaneous examination, he would have had the advantage, it is true, of joining his witness in the concerted lie; but in their cross-examination (being kept out of each other’s hearing for that purpose,) they might have been brought to contradict one another, and thus the lie might have been discovered.
On this occasion, as on so many others, mutato nomine the law departs from its own principles: the same evidence which it refuses to hear at one time, in a cause called by one name, it admits at another time, in a cause called by another name: but the repentance comes too late for justice. In the original cause, the corrupt witness (things being as in the case above supposed) stands up uncontradicted, and carries his point. In another cause, if the injured plaintiff has courage and money to venture upon it,—in a derivative cause, growing out of the original one,—in an indictment brought against the perjured witness for the perjury,—the mouth of the corrupt witness (now converted into a defendant) is stopped, while that of the quondum plaintiff, now called a prosecutor, and under that name a witness in his own cause without difficulty, is opened.*
Here there are two causes, one after another, in each of which the judge hears but on one side; instead of a single cause, in which he might have heard on both sides. Not even by this second cause,—supposing the truth to come out, and the judge to be satisfied about it,—is it in his power to do justice: for in this second cause nothing more can be done than the convicting the perjured witness of the perjury: to do justice to the party injured by the perjury, there must be a third cause, of the same denomination as the first. And this is what justice gets, by the care taken to defend the wisdom of the judge from deception, and the feelings of the parties from vexation, by a rampart of excluding rules. The man of law is satisfied, because suits are multiplied: but where is the satisfaction to the injured suitor and to justice?
Another circumstance concurs in rendering the remedy still more inadequate. In the prosecution for the perjury, conviction ought not to take place, and naturally, will not take place, without the degree of persuasion commencement to the punishment attached to so high a crime: whereas, in the original non-penal suit, any the slightest degree of preponderant probability would have been sufficient to turn the scale.
On this head, correspond with English law, Roman law (with all its faults) distinguishes itself to great advantage. In simplicity, though absolutely imperfect, it is relatively transcendant.
In his own favour,—that is, at his own instance,—it suffers not the testimony of any party, of any person at least whom it recognises in that character, to be received: and thus far it does wrong.
But in his own disfavour, that is, at the instance of his adversary (or of the judge, in the case of inquisitorial procedure,) the testimony of the party is in every case received, and allowed to be called for: and thus far it does right.
As to admissibility, there is no such irrelevant and indefinable distinction as that between civil and criminal. The only difference is, that in a case recognised as a criminal case, the testimony of the defendant is called for of course, and in the first instance;—whereas, in a case recognised as a civil (that is, a non-criminal) case,—though the testimony of each party may be called for by the other,—unless called for by the opposite party, it is not called for, or received, by the judge.
It is to English law that we must look for modification upon modification; and that confusion and inconsistency, with the delectable and ever-cherished intricacy which, where there is but one straight course, is the necessary consequence.
Courts upon courts; each, in this part of the field, proceeding and judging by a different set of rules: as if the suitors were human creatures in some one of them, and beings of a different composition in the other. Harmonious disagreement! all tending to one common end.
Which shall we take for the general rule? For elucidation’s sake, let it be the rule of exclusion: the rather, as being consigned to one of those Latin maxims, which, though in universal currency, express with equal infidelity, both what is the practice, and what ought to be:—Nemo debet esse testis in propriâ causâ.
Taking this for the general rule, we shall find it cut into by exceptions upon exceptions; and that in each of the two parts into which we have seen it dividing itself.
This, for the rule with regard to the admission of the party’s testimony, in his own behalf. Next, with regard to the compulsory extraction of it, in behalf and at the instance of the other party, comes another Latin maxim, the absurdity of which has already been fully exposed:—Nemo tenetur scipsum accusare.
EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE PLAINTIFF’S TESTIMONY BY ENGLISH LAW.
Plaintiff’s testimony, in what cases receivable in his own behalf. Inconsistencies of English law in this respect.
Among the inviolable rules of English jurisprudence, one of the most inviolable is this, that no man (understand, at his own instance) is to be a witness in his own cause: Like other inviolables, it is continually violated: let us observe the violations, and the contrivances by which they are reconciled to the rule.
In the first place, in all causes that are called criminal (and more especially capital ones,) the plaintiff is admitted. In cases of this class, supposing deception to take place, the mischief of it is at its maximum. The plaintiff is called prosecutor.*
By this change of name, he is divested of all bias—no less effectually than if it was by a little seal, a broad seal, or a sceptre.†
Oh! but at any rate the prosecutor has no pecuniary interest; and pecuniary interest is the only sort of interest which, in the opinion of an English lawyer, can produce any bias in the mind.
Indeed, but he has a pecuniary interest; as substantial a one in these criminal cases, as he can have in any civil (i. e. non-criminal) case.
In theft, and other cases of criminal depredation (it would be too much to say precisely which—a book might be written upon it,) the prosecutor, upon whose testimony the thief is convicted, gets back the stolen goods: and that (by an almost unexampled exertion of summary justice) without the expense of an additional suit.
In forgery, he does or does not, by the same means, make good his damage.* But here, if he does, there must be another suit for it.
† In assaults, in case of success, money may visit him in either of two shapes. Instead of being fined (the money going to the green wax,—that is, to the king’s private purse,) the defendant may be sent “to talk with the prosecutor:” or, being fined, a part of the fine (it must not exceed a third party) may be put openly into the prosecutor’s pocket.‡
Upon affidavit evidence, introduced by a motion “for an attachment,” or, by a polite circumlocution, “that the defendant may answer the matters of the affidavit,” causes of a pecuniary nature are tried every day in all the courts. No sooner is the cause intituled “The King against such a one” (but care must be taken that the title be not put upon it too soon,) than the cause becomes a criminal one: and the money, by which the plaintiff would otherwise have been turned into a liar, and the judges deceived, loses all its influence.
One thing is clear enough,—to any one at least whose eyes are not closed by science,—viz. that £50 is not made less than £50, by being given under the name of costs. Therefore,—of whatever nature may be the satisfaction, pecuniary, vindictive, or honorary,∥ the prospect of which is the motive that gave birth to the suit,—if reimbursement (partial as it is at best) under the name of costs, be among the consequences of success in the suit, the interest of it is of a kind as strictly pecuniary, as it is in the power of money to create.
In actions not comprehended under the denomination of penal ones, the exclusion put upon the evidence of the party (provided always there is but one) is no less, in effect, as well as design, inexorable, than in design it is in penal actions.
In the case we have just been viewing, the extensive case of injuries to person,—the same individual who, suing by a civil action, and called plaintiff, would not be heard, suing by an indictment or information, and calling himself prosecutor, is admitted without difficulty. But so long as the words employed are action and plaintiff, the difficulty is insurmountable, the judge inexorable.
To the admissibility of the prosecutor in the capacity of a witness, there is, however, one remarkable exception. There is a class of offences in regard to which, how noxious soever to the public (that is to say, to any or every individual,) no one individual can be found, who (unless by accident) has any interest capable of engaging him to take upon himself the expense and vexation attached to the function of prosecutor. In all these cases, either a fastitions interest must be created, or the offence go unpunished, and society fall to pieces. Accordingly, in cases of this description, as often as, by the prohibition and punishment attached to it by the legislature, an act was created into an offence, rewards were offered to the individual by whose exertions the conditions necessary to the infliction of the punishment should be fulfilled. In the whole, or in part, the punishment was put into a pecuniary shape, and termed a penalty: the penalty, in case of success (or a part of it,) constituted the remuneration of this temporary servant of the public. Costs,—that is, a reimbursement (never more than partial) of expenses of suit, under that name, were added or not added, according as the lawyer, by whom the legislator was led, happened, for this purpose, to be faithful or treacherous, awake or asleep.
What, on this occasion as on all others, was the care of the man of law, was, that rules of law should be observed: what, on this occasion as on others, was no part of his care, was, that offences should be prevented. It was decided, therefore, that the testimony of a witness of this sort—a witness who, in case of conviction, expected to receive the penalty, or any part of it—was bad, that is to say, inadmissible. Had the person to whom the reward was offered, been allowed to earn it by giving his testimony, he would have committed perjury: judge and jury would constantly have been deceived by the perjury, and so, instead of the guilty, punishment would have fallen upon the innocent. How so? For this plain reason: because the suit was called civil; and, in a suit denominated civil, the plaintiff is called plaintiff. Whatsoever else the king may get by the suit, what he does not get by it is, the title of plaintiff: which, consequently, finding no other place to rest on, rests upon the shoulders of him by whom the function is performed.
All instances of the exclusion of witnesses on prosecutions for offences created by statute, are acts of usurpation committed by the judicial authority against the legislative. But, in the case of the exclusion of informers, the usurpation is more particularly flurrant—I had almost said impudent. The legislature beckons a man into court; the judge shuts the door in his face.
All this while, unless those who know of an offence tell of it, it cannot be punished; and unless those who know of it are paid for telling of it, they will not tell of it: this the legislature is convinced of, and therefore offers money for the telling of it.
The legislature, satisfied that, without a factitious inducement, a man who has not the interest of revenge to prompt him, will not subject himself to the trouble, expense, and odium of bringing to punishment an offender, whose offence, how prejudicial soever to the public, produces no mischief that comes home in the shape of suffering to any particular individual,—orders that a reward to a certain amount shall be given by the judges to him by whom the information requisite for that purpose shall have been given. When the man comes for his reward, the judges refuse to give it him. Why? Is it that it was not the will of the legislature he should have it? No: but because the will of the legislature is contrary to their rules.
Such are the effects, political and moral, of these excluding rules: breach of faith, as towards individuals—breach of obedience, as towards the legislature.
It is among the maxims of men of law, that no man ought to be suffered to be wiser than themselves: but unless many men had been wiser, as well as more honest, than themselves, society would long ago have gone to wreck. The maintenance of society has all along depended upon the evasion of this rule of law. Society exists: therefore the rule has been evaded. The intention of the judges was to defeat the intentions of the legislature: individuals, by defeating the intention of the judges, have rendered to the public that service which it was their object to prevent, and to the legislature that obedience on which the preservation of society depends.
If the man who saw the offence committed has nothing to get by telling of it, he is an unexceptionable witness: but having nothing to get by telling of it, he has no inducement to engage him to tell it: and as telling of it in the character of a testifying witness at a distance from home, and under a certainty of being baited by lawyers, is attended with both vexation and expense, he has just so much inducement to prevent him from telling it. One of two things: either the man who on these occasions appears in the character of an uninterested witness, and, upon being interrogated, declares himself upon oath to be uninterested, is really an interested one; or, he acts without a motive—the effect is produced without a cause.
As often as the effect can be produced without a cause, they are willing (these men of science) that it shall be produced: they are willing (these upright ministers of justice and patterns of constitutional obedience) that the will of their superior, the legislator, shall be done. As often as the effect cannot be produced without a cause, their determination is, that it shall not be produced, and that the will of the legislator shall remain undone—that the law, which they are sworn to execute, shall remain unexecuted.
But they have a reason for what they do, and it is this:—to gain twenty pounds, a man will speak the truth; by coming and speaking the truth, he will lend his exertions to give execution to the laws:—therefore, for the some price, he will be ready to commit perjury. Yonder man cut the throat of a pig, the other day, for sixpence; therefore he would cut the throat of his brother for the same price. Such is the logic of these lawyers.
That by this logic and this wisdom, perjury was ever prevented in any one instance, seems not in the smallest degree probable: that by the same exertions it has in many instances been produced, seems in the highest degree probable.
By what contrivance the existence of the interest can be denied in words, in such manner as to save the witness from the danger of legal conviction,—what expedient is in these cases most usually relied on, and upon occasion employed,—I do not undertake (for it is not necessary) to know. As promising a one as any, appears to be this: in the present cause, in which I am plaintiff, you give me your testimony gratis; in the next cause you will be plaintiff, and then it will fall to my share to return the accommodation.
Another arrangement may be this:—The only man who knows of the transgression is forbid to tell of it. True: but the prohibition does not extend to those who know nothing about the matter. Well then: when a man who means to earn the reward, comes to me (A. B. an attorney) to know how he is to get it, this is the way in which we will settle it between us. Though he must not tell the judge in the first instance—though he must not put in for the reward (since if he did, the judges would not let him give the evidence which he must give to earn it,)—this will be no hindrance to me, who have no evidence to give. Let him, then, tell me the story: and I, or (what will do as well) John Doe, will put the story into grimgribber, to make it intelligible to the judge. When the trial comes on, the witness tells the story; when execution comes, I pocket the reward. The witness cannot receive a penny of it: but I am a man of honour, and too generous to suffer a good witness to be a sufferer by the time he has expended in the public service.
Is interest in reality cleared away by this manœuvre? Are effects produced without causes, as the sages of the bench intended they should be produced? Is the self-purgative oath, which must be swallowed upon occasion by the witness, nothing whose than an equivocation, pure from the taint of perjury? This will depend upon the skill and attention of the preceptor, and the capabilities of the pupil.
In the first instance, the laws turned into a dead letter by the precipitancy of a judicial rule! In the next place, something (to say the least) nearly approaching to perjury, the constant result of their connivance at the evasions put upon their own rules! Which is the worst—the disorder, or the remedy?
As the rule which admits the evidence of the plaintiff when called a prosecutor, is not without exceptions, so neither is the rule which excludes the evidence of the plaintiff when called a plaintiff. One exception—a very colossus of inconsistency—stares us in the face, and figures in all the books. A statute had been made, entitling a traveller to receive compensation at the expense of the hundred, in case of his being robbed between sun and sun. A decision was pronounced, by which, in this one instance, the inviolable rule was violated, and the party (the plaintiff in an action on this ground) was admitted to support his demand upon the district by his own evidence. The word given by way of reason was necessity:—unless this evidence be admitted, the law will fail of its effect.
It is difficult to see on what ground to rest the passing of this statute. Was it to excite the hundreders to vigilance? Was it to dissipate the loss, by breaking it down into impalpable portions, upon the principle of insurances? The first conception is altogether visionary, and the second is in repugnancy to it. Be this as it may, obedience to the legislator is always laudable, and especially on the part of a judge. But, for beginning the practice of admitting the plaintiff’s evidence, it seems difficult to imagine a case in which the demand for the exertion could have been less, or the danger more formidable. Even without any view to protection, more journeys are taken in company than in solitude. In this case it would have been easier than in a thousand others that might be mentioned, for a man to provide himself with preappointed evidence. To carry a witness with him, might be attended with expense; to show to a friend the contents of his purse at starting, would involve no expense.
One circumstance fills up the measure of absurdity. Conceive the whole number of rateable inhabitants in the hundred escorting the traveller the whole time he employed in traversing it. The traveller swears he was robbed: the hundreders swear he was not, for they were with him all the time. The one really interested witness would command the verdict: the five hundred nominally interested, but really not interested witnesses, would not be suffered to open their mouths.*
Absurd as the admission is in a relative, I mean not to hold it up as such in an absolute point or view. Under favour of such encouragement, here and there a case has probably happened in which a trandulent demand has been made on this ground, not impossibly a successful one. But, from the station which such a law, supported by such a decision, still maintains in the statute book, a pregnant proof is surely afforded (were all others wanting) how little the interests of truth and justice would have to apprehend from the unreserved admission of the party’s testimony in his own favour in any imaginable case.
Equity presents a different scene: for the same mode of searching after the truth is good or bad, according as, in speaking of it, you pronounce the words common law or equity.
Ask an equity lawyer, ask any lawyer; he will tell you without difficulty, and without exception, that in equity the testimony of the plaintiff never is admitted: no, not in any case whatever. Thus much certainly is true, that it never is admitted to any good purpose: but thus much is no less time, that it is admitted to every bad purpose.
Here, on this occasion, the arrangement we set out with is unavoidably departed from. Striving, in behalf of existing establishments, to find, as far as possible, for everything an honest reason—a reason referable to the ends of justice,—I set out with taking the fear of producing deception, and the fear of producing vexation, as the causes of the existing arrangements. But here, both principles of arrangement fail us altogether. The phenomena, as we see and feel them, will be effects without a cause, if anything but the pursuit of the spurious ends of judicature, the ends really pursued in the formation of the technical system, the professional interests, had been in view and aimed at.
In the first place, to consider the testimony of the plaintiff as proffend by himself.
For the purpose of the ultimate decision—for the purpose of giving termination to the suit, it is not admitted. Why? Lest, peradventure, the suit should be brought to an untimely end. But, for the purpose of giving commencement to the suit, the testimony of this same party is admitted. And here, last groundless demands should be excluded, and malâ fide suits prevented, by the fear of punishment as for perjury, that punishment is taken off; and the mendacity-licence, which we have seen constituting the basis of the technical system of procedure in the common-law branch of it, is extended to this pretended purer branch, the equity branch.
In the instruments by which suits are commenced in the way of common law, the mendacity could be, and accordingly was, cloaked to a certain degree by the generality of the terms. To the equity branch, this cloak could not be extended: for neither the grounds of demand, nor the services demanded at the hands of the judge, having been put into any sort of method (not even that wretched method into which the matter of common law has been shaken by the fortuitous concourse of atoms,) a particular story required in every instance to be told.
A court of equity being a shop, at which, for the accommodation of those for whose purposes the delays sold by the common-law courts are not yet sufficient, ulterior delays are sold to every man who is content to pay the price; suits are every day instituted in the equity courts, by men who themselves are as perfectly conscious of being in the wrong as it is possible for man to be. A man who owes a sum of money which it is not agreeable to him to pay, fights the battle as long as he can on the ground of common law, and when he has no more ground to stand upon, he applies to a court of equity to stop the proceedings in the common-law court, and the equity court stops them of course. Among the uses, therefore, of a court of equity, one is, to prevent justice from being done by a court of common law.
There are many men who, though they have no objection to reap the profit of falsehood, would not be content to bear the shame of it, notwithstanding the suspension put upon all punishment—legal punishment, by the mendacity-licence above mentioned. The feer of shame would be apt to stare a man in the face, if, after reading a story composed more or less of facts which he knew to be false, it were necessary for him to adopt them, and make himself known for a bar by his signature. Accordingly, care has been taken that no such unpleasant obligation shall be unposed. The story is settled between two of his professional assistants, his attorney (in equity language, his solicitor,) and his counsel: as for the complinant himself (for so in equity the plaintiff is called,) the orator (for so in the same language he is made to call himself,) what is probable is, that he does not—what is certain is, that he need not—ever set eyes on the story thus told under his name.
Such as the seed is, such will the harvest be. Even when the plaintiff is in the right, his bill (such is the name given to his story) is a great part of it, to the knowledge of every body, a tissue of falsehoods. The great judge, who knows better than to administer equity unless a composition of this complexion has in regular form been delivered in at the proper office, knows it so to be. It is accordingly a settled maxim with him, that no credit is to be given to anything that is put into a bill. Falsehood, in equity as well as common law—falsehood (every equity draughtsman is ready to tell you) is necessary to justice. Accordingly, if through delicacy (which never happens,) or from some other cause (which frequently happens,) the attorney and the counsel between them fail of inserting the requisite quantum of falsehoods, no equity is to be had till the deficiency has been supplied. To assert, in positive terms, a fact concerning which a man is in a state of ignorance, is to assert a falsehood; and if there be such a thing as a lie, it is a lie. A lie of this sort a court of equity exacts from every plaintiff, as a condition precedent to his learning from the pen of the defendant what it happens to be necessary for him to know.
Thus then stands the practice, with regard to the admission of the plaintiff’s testimony, considered as delivered at his own instance. For the purpose of justice, it is not admitted: to the effect of vexation and expense, and for the purpose of the profit extracted out of the expense, it is admitted—admitted and exacted. Nor need he entertain the smallest hope for justice, unless, to swell the account of profitable expense, this testimony (such as it is) is stuffed with falsehoods.
The real purpose of equity procedure will be seen standing in a still more conspicuous point of view, when we come to consider how far, under the rules of the same courts, admission is given to the testimony of the plaintiff, when called for at the instance, and consequently with a view to the advantage, of the defendant.
Plaintiff’s testimony, in what cases compellable at the instance of the defendant Inconsistencies of English law in this respect.
The plaintiff, is he compellable to testify against himself?—to testify at the instance of the defendant?
Under this remaining head, as under the former, let us observe, in the first place, how the matter stands at common law.
In cases called criminal cases, at the trial, the plaintiff (we have seen) is, under the name of prosecutor, always a witness at his own instance, and consequently for himself; frequently the sole witness. When in this way he has been testifying for himself, the defendant, in virtue of the right of cross-examination, possesses the faculty of causing him to testify against himself. That the plaintiff should be called upon to testify by the defendant in the first instance, is what can never happen, at least never does happen. Expecting the plaintiff, the prosecutor, to come forward, and testify of course pro interresse suo,* it can scarcely occur to the defendant (that is, to the professional assistants of the defendant,) to call for his attendance in the defendant’s name.
In those criminal cases in which, as above, there is but one inquiry, and that inquiry carried on (if the contradiction may be allowed) by uninterrogated evidence, neither party saying any more than he thinks fit,—the plaintiff, in particular, is not compellable to say anything at the defendant’s instance. Here again, however, to place the case in a correct point of view, the distinction between compulsion ab extrà and compulsion ab intrà must be called in. The prosecutor is not, any more than the defendant, compellable at the instance of the adversary, by the fear of any collateral punishment, like an extraneous witness; the prosecutor, as well as the defendant, is impelled by the interest he has at stake in the cause, to say everything that he can say with safety in support of the interest he has in the cause. So far then as the defendant, in his affidavit, says anything that can operate to his own exculpation, this defence is a sort of call (though an indirect call) upon the prosecutor, to bring forward any further facts (if he has any which he can advance with safety) that promise to operate in refutation of such defence.
The facts thus brought forward in reply,—at whose instance are they brought forward? At the defendant’s, if at anybody’s. But in whose favour do they operate? As certainly, in the prosecutor’s, and his only. Are there any, that, if brought forward, would operate to the advantage of the defendant—to the disadvantage of himself? So surely as he knows of any such, so surely does he keep them all to himself. So far from being called upon for them by particular interrogation, he is not so much as called upon for them by the general terms of his oath. Before a jury, the deponent being an extraneous witness, the oath says,—“The evidence you are about to give shall be the whole truth,” as well as “nothing but the truth.” “The contents of this your affidavit are true,” says the person by whom the oath is administered to a deponent on the occasion when he is said to make affidavit. Correctness is stipulated for, how ill soever secured: completeness, absunce of partial imperfection, is not so much as stipulated for.
Such is the form, the only form, in which the judges (I speak of that class of which learning is the exclusive attribute) will suffer testimony to be delivered to them, when the decision grounded on it is to be framed by themselves.
In the case of those accessory, and most commonly redundant, inquiries, which, in indictments and informations, precede or follow that principal one which is called the trial,—the testimony, being likewise in the form of affidavit evidence, falls, in like manner, under the last preceding observations. So likewise in the case of those comparatively summary causes, in which (though ranked under the head of civil causes) the suit,—instead of commencing by a declaration delivered in at an office, and never looked at by the judge,—commences by a motion, i. e. by a speech made to the judge, in open court, by an advocate.
In the case of the examinations by which, in felonious and peace-breaking offences, the trial is preceded (inquiries performed by a justice of the peace,) the obligation of the prosecutor to testify at the instance of the defendant, and thence to the disadvantage of his own cause, stands on the same footing as at the trial, as above.
In a nearly similar, though not exactly the same, predicament, stands the ex-parte inquiry, which, in all suits prosecuted by indictment, is carried on in secret before the grand jury, antecedently to the trial. No defendant being there, nor any person on his behalf, the plaintiff cannot be compelled to testify at the defendant’s instance. But at the instance of any one of those his judges, the prosecutor—whole occupied in delivering his testimony at his own instance, and consequently to the advantage of his side of the cause,—may, and frequently does, by questions put to him by any of those judges, find himself under the obligation of disclosing what may operate to the disadvantage of it. Such counter-interrogation has the effect of cross-examination, in so far as the zeal and probity of the judge alone may be considered as an adequate succedaneum to that same zeal and probity added to the interested zeal of the party (the defendant) whose safety is at stake.
Let us next suppose the case civil; and the procedure still at common law, viz. by action.
Principal or sole inquiry,* the trial.
On this occasion, unless the plaintiff, by any of the expedients above spoken of, has contrived to deliver his own testimony in his own favour, the defendant cannot, by the single powers of common law, draw upon that same source for any testimony which he on his part may stand in need of.
But if the plaintiff has contrived, in any such way, to give himself the benefit of his own testimony, the defendant, in virtue of the right of cross-examination, may also put in for his share.
In general, therefore, at common law, the defendant has no means of obtaining the benefit of the plaintiff’s testimony: in no case without the consent of his adversary; nor then, but at the adversary’s own instance, and by the adversary’s own contrivance: that is, in no case but where, in all probability (and at any rate in the opinion of his adversary, the plaintiff,) it will be of no use to him.
I said, by the single powers of common law. The limitative clause was necessary. For in certain cases (though nobody knows exactly what cases,) by the assistance of a court of equity, the testimony of either of two persons about to appear in the characters of plaintiff and defendant at common law, may be extracted at the instance and for the benefit of the other. To the extent, therefore, of the aggregate, whatever it be, of these cases (concerning which, quære, quære, et in æternum quære,) the objection to the admission, the forced admission, of the plaintiff’s testimony, has for its psychological cause—not the fear of deception, not the fear of producing vexation (viz. excessive and preponderant vexation,) but, if vexation must be mentioned, the fear of not producing enough of it.
But, as the draft drawn upon the breast of the adversary for evidence is more apt, much more apt, to be drawn by that of one of the two parties who institutes the suit, than by the other, who is dragged into it,—the consideration of this mode of making holes in the door shut against the light of evidence will be considered to more advantage, when the defendant’s side of the cause comes under review.
Thus much for common law: we come now to equity law.
The testimony of the plaintiff, is it allowed, in these courts, to be delivered at the instance, and thence for the benefit, of the defendant? Not it indeed. But why not? Because, if it was, the man of law, in all his forms, would lose the benefit of a second cause. The delay, vexation, and expense of a suit at common law, is not enough for him: the delay, vexation, and expense of an equity suit, coming upon the back of a common-law suit, is not enough for him:—there must be a second equity suit,—or (so it will be in many instances) the facts in the case will be but half brought out—will have been brought out only on one side.
There must be what is called a cross cause, commenced by a cross bill, in which the plaintiff and defendant change sides: and the same individual, on whose testimony not a single fact was deemed fit to be believed, is now believed; and believed to such a degree, that the testimony of a disinterested witness, by whom his testimony should be contradicted, would tell as nothing: the judge would not so much as stay to inquire which of the two testimonies, the interested or the disinterested, seemed most deserving of credit, but would ground his decree upon the interested testimony, just as if the disinterested had never been received.
In this particular, so far as extortion and denial of justice are improvements, the English edition of the Roman system of procedure is no small improvement on the continental edition: to judge of it at least by the practice in French law. In French law, in the course of one and the same suit, though neither party is supposed to deliver his testimony at his own instance, each party obtains the testimony of the other.
The old French law, with all its plagues, the French modification of the technical system, inclosed no such curse as that of two sets of courts, each operating with powers kept imperfect, that assistance and obstruction may be obtained from the interposition of the other. The inquiry which in the English system occupies three suits—one common-law and two equity suits—was in the French system dispatched in one.
Even under the English edition of the Roman system—in that division which, in virtue of a connexion already become obsolete, goes still by the whimsical name of ecclesiastical law,—more honesty or more shame has been preserved, than thus to make two grievances out of one. In the courts called ecclesiastical, as in French law in all the courts, in the course of one and the same cause (I speak of causes non-penal) each party obtains the testimony of the other.
EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE DEFENDANT’S TESTIMONY BY ENGLISH LAW.
Defendant’s testimony, in what cases receivable in his own behalf. Inconsistencies of English law in this respect.
We come next to speak of the case where (the suit, as before, not affecting more than one party on each side) the party whose testimony is in question is the defendant.
Is the testimony of the defendant admitted at his own instance?
Here, as before, the answer will be different according to the species of the suit: i. e. whether it be criminal or civil: and it civil, whether the theatre be a court of common law, a court of equity, or an ecclesiastical court: and (whatever be the suit) according to the stage of the cause; i. e. which inquiry it is, of the several inquiries which the species of suit admits of, where it admits of more than one.
1. Case, criminal: procedure at common law.
I. In this case, as in that of the plaintiff, in the first place let the cause be a criminal one; mode of procedure by indictment; inquiry, the principal one—the trial.
At the trial, is a defendant allowed to deliver his own testimony at his own instance, and consequently in his own favour, to his own advantage? No, and yes: no in words; yes, in effect.
In words, no: for in that station, let a man say what he will, it is not evidence. No oath can be administered to him; lest, if that security for veracity were applied, it might have the effect of confining his statements, his non-evidentiary statements, within the pale of truth; which “would be inconvenient.” Not so much as a question can be put to him by anybody. Not by his own advocate, if he be rich enough to have one; not by that advocate on the side of the prosecution; not even by the judge. By being circumstantiated, distinct, complete, and methodical, his statement, if true, might be seen to be so; if false, or incomplete, might be made to appear so; which again, according to established legal notions of inconvenience, would be inconvenient.
In effect yes; for so long as it is not called evidence,—nor subjected to any of those processes by which evidence is purged (or endeavoured to be purged) of its deceptitious qualities,—he may say whatever he chooses to say, under the name of his defence.
As to the judges ad hoc—the jury, with the uniform degree of suspicion naturally called forth by the view of the situation in which they see him placed, added to the variable degree of suspicion called forth by the evidence that has been delivered on the other side, they form their judgment of the trustworthiness of this non-evidentiary statement: taking into account, at the same time, its consistency or inconsistency with itself, and with such relevant faces as are of themselves sufficiently notorious without evidence. What they do think about, in judging of this statement, is, its trustworthiness or persuasive force, intrinsic and extrinsic, as above: what they do not think about, in judging of it, is, the kiss that has not been given to the book; for as to any security that may be supposed to be given by any such kiss, for the truth of the assertion, or the performance of the engagement supposed to be sanctioned by it [the absence of,] it cannot be a secret to any one of them who, to get out of the box so much the sooner, has joined in a verdict of not quilty, in favour of a defendant of whose guilt he was at that time persuaded in his own mind.
No counter-interrogation. Will the absence of this security for correctness and completeness present itself to a juryman as a reason for paying no regard to what he hears? Yes; when their learned directors cease to receive affidavit evidence—uninterrogated evidence, to the exclusion of interrogated evidence.
In offences of the rank of felony, the case is comparatively so rare, in which a man in that unhappy situation has anything plausible to say for himself (especially in the character of testimony,) that, comparatively speaking, the operation of this non-evidentiary sort of testimony seldom presents itself to view.
2. Case criminal, as before.
Is the mode of procedure by information? The chance which a defendant has of profiting in this way by his own testimony, will not be essentially different. But, his situation not being in this case so apt to attract the compassion of the public as in the other,—the quantity of suffering to which he stands exposed, not being so great as in those cases which occupy the largest space in the list of indictments, the defectiveness of his claim to have his non-evidentiary statement received on the footing of evidence, will not be so apt to pass without remark.
Moreover, among indictments, a considerable number will always be pauper causes. Nine-tenths, at least, of the cases which come on in the way of indictment, are cases of depredation; and these have, almost all of them, either by statute, or by jurisprudential law, been promoted to the rank of felomes. By pauper causes, I mean here such wherein the defendant is not rich enough to engage an advocate. Having no one to speak for him, on the part of a jury there will naturally be the more readiness to hear a poor culprit speak for himself.
Besides, in felonies, the tongue of the defendant’s advocate (when there is one) is but half let loose. Questions,—interrogations and counter-interrogations, for the extraction of testimony,—he is allowed to put. Statements, or observations on the evidence, it is not allowed to him to make.*
Indictments, especially in cases of felony (by far the most numerous class of indictable cases,) are, therefore, many of them, pauper causes. But informations are none of them pauper causes: a principal recommendation of this mode of prosecution, as compared with indictment, being the property it possesses of loading the parties with an extra mass of expense—the enormity of which has no connexion with the merits—which, being never held up to view in the sentence, is of no use in the way of example, and has no other effect than that of impoverishing the suitor, and enriching the man of law.
3. Case criminal, as before: mode of procedure, by attachment: principal or sole inquiry (if inquiry it may be called, where there are no questions,) by receipt of affidavit evidence. Here all discrimination, all subterfuge, is at an end. So long as he is not checked by any such inconvenient curb as that of counter-interrogation, and on condition of his taking the pen of an attorney to speak through, instead of his own lips (or rather on condition of his setting his hand to sign what the attorney has said of him and instead of him—for in affidavit evidence the deponent never speaks for himself,) let his designation be what it may, extraneous witness or party, plaintiff or defendant, his testimony is received with equal deference. Interested or not interested, perjured or unperjured,—thus introduced, all doors and all ears are open to the testifier.
When an exclusion is put upon testimony, the objection is, nominally and ostensibly to the station of the proposed deponent—really and at bottom to the shape in which the testimony is presented. Give but this shape to the testimony—a shape to the purposes of justice the most unsuitable, to their own purposes the most profitable,—learned gentlemen on this occasion pay no more regard to their own rules—their own most sacred and fundamental rules—than on this and all occasions they pay (unless it be for the purpose of contravention) to the ends of justice.
4. These same observations apply of course, and with equal force, to all that multitudinous and most extensive list of cases, in which, to the exclusion of all better evidence, testimony is received in this unquestioned and thence most questionable shape.† 1. In re criminali,—on indictments, on occasion of the supplemental inquiry; on informations, on the preliminary as well as on the supplemental inquiry. 2. In civili,—at common law and equity law, in all motion causes, on the sole inquiry. 3. In the sort of motion causes called petitions—causes relative to the estates of bankrupts,‡ and heard by the highest equity judge, in a mode that by its summariness forms the most striking contrast to the regular equity mode,—on the inquiry which, in that unusually important class of cases also, is the only one. 4. On the occasion of all those incidental applications, which (be the cause where it may, and what it may) are received in the course of the cause; and for which the occasion has been manufactured in such abundance, and with such successful industry.
5. Procedure, by indictment, as before: inquiry, the preliminary one, the examination, as it is called, before the sort of judge called a justice of the peace, acting singly.
On this occasion,—there being, or not being as yet, a person, established (under the name of prosecutor) in the station and function of plaintiff,—the testimony of the defendant, in relation to himself, is called for by the judge. Called for from that commanding station,—the occasion and the station of the respondent being more or less perilous,—for the most part, if he be guilty (as in most instances he is,) it comes from him with reluctance: but, while what he thus wishes to withhold is extracted from him against his wishes,—whatever his wishes prompt him to deliver at the same time, pours itself out of course at the same gate. What he thus advances on his own behalf, is it, or is it not, evidence? Once more, yes and no. Yes, to the purpose of the question, whether he shall be subjected or no to ulterior prosecution, and for that purpose consigned to imprisonment for safe custody. No, to the purpose of the question ‘guilty or not guilty;’ the question to be decided at the trial. Yes, in the first case, in effect: no, in both cases, in words.
6. Procedure, by indictment, as before: inquiry, the preliminary one, before the grand jury.
On the occasion of this partial and secret inquiry, the presence of the defendant being neither compelled nor admitted, his testimony, as well at his own instance as at the instance of his adversary or the judge, is out of the question.
II. Civil cases, at common law.
Case, a civil one; procedure, in the way of action: inquiry, the principal one, the trial: (the only one, except the sham inquiry composed of the pleadings—the inquiry carried on by lawyers on both sides, for the benefit of themselves and their superiors and protectors, by reciprocal effusions of falsehood, of vague assertion, and nonsense, poured out under the mendacity-licence, without the signature, and, as to details, without so much as the privity of the suitors who are made to pay for it.)
On the occasion of the trial, occasion has been taken to delineate the plaintiff, appearing in disguise, in causes of this class, in the character of an extraneous witness: admitted, in that character, in spite of technical rules and principles, to employ his own testimony in the support of his own claims.
In this advantage the defendant has no means of sharing. At the trial, he is not shut out, because nobody is shut out. But at the trial, speak he must not: not in his own character; nor is there a crevice through which he can creep in, to speak in any assumed one.
Speak indeed he may, if mere speaking will content him, without speaking to any purpose. For, in cases of this class, defendant and plaintiff standing on even ground, and without any nook for compassion (real or hypocritical) to plant itself upon, and cry, Hear him! hear him! whatever he may (if he have courage) insist upon saying, will be watched by men with sieves in their hands; and whatever testimony he may take upon him to throw in along with his matter of argument and observations, will be carefully separated, and forbidden to be lodged in the budget of evidence.*
One case there is, which for its oddity, as well as its inconsistency and absurdity, is worth observing.
This is the case of a mandamus.† Like an attachment, a mandamus is a writ of a special nature. Like an attachment, this writ is not to be had without asking for in open court: and it is by affidavit evidence, that, on this as on all other occasions, the application is supported and opposed. In the case of the attachment, the writ is directed to the sheriff, and commands him to seize the body of the defendant, and do with it, he knows how: in the case of the mandamus, it is addressed to the party, the defendant.
But the curious circumstance, and that which brings it under the present head, is this:—When once the writ is issued, not only the testimony of the defendant is admitted, but no other evidence is admitted: when admitted, it is admitted not only without the check of counter-interrogation, but without so much as the sanction of an oath: and in this shape, still less trustworthy than even that of affidavit evidence, it is not only admitted, but made conclusive.‡
III. Civil cases in equity law.
In equity procedure, the case of a defendant proffering his own testimony without its having been called for on the part of the plaintiff, can never happen: a suit in equity never commencing in any other way than by an instrument called a bill, in which the plaintiff calls for the defendant’s testimony.
After so much as has been said, it surely cannot require in this place any fresh argument to prove, that no real service can be done to the interests of truth and justice, by taking, or attempting to take, each man’s testimony by halves; cutting out of it whatever part of the facts happen to operate to his advantage—retaining such only as are supposed, on the other side, to operate to his disadvantage. But, for the purpose of illustration, the consequences of the attempt as conducted, may not be undeserving of notice. Though neither party is permitted, at his own instance, to bring to light, among the facts that have come to his knowledge, such as appear to him to operate in his own favour,—each party has, in a greater or less degree, the opportunity of bringing to view those same facts, in the event, and through the means, of the interrogation which may be administered to him by the other. But on what depends the defendant’s chance of bringing to light the whole or any part of such of the facts that come to his knowledge, as appear to him to operate in his own favour? Not upon the merits of his cause—not upon the truth or importance of these same facts;—but, in the first place, and in some degree, upon the dexterity of his professional assistant in coupling the facts of the one description with those of the other; in the next place, absolutely and conclusively upon the pleasure, upon the accidental circumstances and exigencies of the situation of his adversary the plaintiff, coupled with the sagacity and judgment displayed by the professional assistants on that side, in their endeavours to turn to the advantage of their client the views of the law. Of the facts brought to view by the defendant, let those which operate in his favour be ever so true and ever so important, not one of them will the judge ever hear of, if such of the facts as operate to his prejudice are testified by such other evidence as, in the judgment of the advisers of the plaintiff, are sufficiently conclusive: so that, as to all facts derivable from that source, the chance which they have of operating with such weight as is their due upon the mind of the judge, depends not either upon their truth or their importance, but upon the will and pleasure of a party, who, the juster the claim is to admission, is so much the more strongly engaged by interest to refuse it.
Defendant’s testimony, in what cases compellable at the instance of the plaintiff. Inconsistencies of English law in this respect.
The testimony of the defendant, is it compelled at the instance of the plaintiff?*
1. Case, criminal: procedure, at common law.
1 & 2. Case, criminal: procedure, by indictment or information: inquiry, the principal one, the trial.
On this occasion, no compulsion, direct or indirect: not so much as a question permitted to be asked. The defendant, as already stated, says what he pleases in his own behalf; tells consequently (as often as, being guilty, he says anything in the way of testimony,) a false and imperfect story: not a question is to be put that can tend to the correction or completion of it.
Our business here is with the fact: the actual state of the law. With reference to the ends of justice, what the consequence is, has been already brought to view: to the guilty, nothing but impunity and triumph; to the innocent, nothing but danger and inconvenience.
It is not that no testimony is to be received from this same source; on the contrary, any testimony is received, that either has come from it, or (though untruly) has been said to come from it. Any testimony, so the purport or pretended purport of it be but delivered through the medium of another pair of lips—delivered in the shape of hearsay evidence,—is received: unsworn, uninterrogated: if inaccurate, uncorrected; if imperfect, uncompleted.
Here, then, comes the often-presented question, followed by the as often-returned answer. The testimony of the defendant, at a criminal trial, is it compellable? No, and yes, no, in the most trustworthy shape; yes, in an egregiously untrustworthy one. Blessed tenderness! Encouragement to the guilty, injury to the innocent, resolving itself into a predilection for bad evidence!
3. Inquiries of all sorts (sole, principal, supplemental, preliminary, in criminali, in civili, on the principal point, on incidental points) performed by the receipt of affidavit evidence.
In regard to admissibility, at the will of the defendant, and consequently in his favour, how the matter stands has been seen already. But,—when coupled with the consequences that have been made to follow upon silence,—admission, permission, is compulsion. Every assertion contained in the affidavit of the plaintiff, or of any extraneous witness testifying in this way in his behalf,—every such assertion, so it be not irrelevant, is in effect a question, though a leading, a suggestive one. Deny the fact, or you will be considered as affirming it, as confessing it.
But the mass of assertions contained in the plaintiff’s affidavit, though a sort of succedaneum to a string of interrogatories, is a constantly imperfect and inadequate one: the interrogatories, if such they may be termed, delivered uno flatu, not arising out of the answers: the silent virtual confession returned to some of the questions, smothered by the responses (satisfactory or evasive, distinct or indistinct) given to others.
To display in detail the imperfections inherent in the nature of affidavit evidence, belongs not to this place: it has been done in a former Book.*
Thus much may suffice to warrant the introduction of the already presented question, followed by the ambiguous answer which there is such frequent occasion to subjoin to it.
On the inquiries (criminal and civil) in which the evidence is cast into the shape of affidavit evidence, is the testimony of the defendant compellable? Yes, and no: not compelled in any good shape; compelled in this egregiously bad one. Tenderness or no tenderness, at any rate a predilection for, a preference (and that an exclusive one) to, bad evidence.
4. Procedure, by indictment: inquiry, the preliminary one, the examination before a justice of the peace, as above.
On this occasion, too, the defendant, in respect of the delivery of his testimony, lies under a sort of compulsion: and that more efficient than we have seen it in the case of ready-written testimony. To produce the compulsion, no extraneous force is indeed employed; but the other sort of compulsion just described, compulsion ab intrà, in this as in those other cases. On this occasion it will seldom happen that the testimony of the defendant is called for, that he is put to the bar to be examined, till some other evidence, some extraneous testimony bearing against him, has been previously delivered. The question here is, whether he shall be prosecuted and committed, or liberated? From silence, as well as from evasive responsion, or false responsion, proved to be so by contradiction ab extrà, or self-contradiction, the magistrate will draw his inference. To whatever evidence (direct or circumstantial) may have been brought out from other lips, the circumstantial evidence consisting of this silence, will constitute an addition of no unpersuasive kind.
In a word, the mode of collecting the testimony differs in this case from the best mode, by nothing but the want of the presence of the adverse party, with the faculty of pushing the inquiry to the utmost, as on the trial in civil cases: and to say the best mode, is as much as to say the most compulsive.
Perhaps the subordinate and unlearned judge ad hoc, imitating the tenderness of his learned superiors, will aid and abet the defendant with a piece of advice, which, on any other supposition than that of his being guilty, will be of no use to him. “Here is the question; but unless you have some falsehood ready, which you think may help to screen you, do not answer it.”
Happily, the obligation attached to the situation cannot be altogether destroyed by this pious endeavour to destroy it. If the advice is taken, and silence preserved, the judge, with all his high-born learning, can scarcely keep himself from drawing that inference which common sense, unpoisoned by learning, cannot avoid drawing from such data. Though the answer should be a confession, he cannot convict; and though, instead of an answer, the silence he bespeaks be presented to him, he can scarcely avoid committing, and taking order for prosecution; and it, instead of silence, confession had come, he could have done no more.
II. Civil cases at common law.
1. Procedure by action: preliminary sham inquiry, the pleadings. Here, as in the case of procedure by affidavit evidence, the compulsion, though indirect, is still compulsion, and the admission, as it were, merged in it. The principle of compulsion is not deduced ab extrà, but innate as it were, arising out of the cause, and proportioned in force to the value at stake upon the cause. A mass of jargon, in the accustomed form, has been poured orth by your adversary’s lawyers: employ your’s to reply to it by a correspondent mass or you lose your cause.
Had the object of the framers of this system been the attainment of the truth,—as in felonies it was the object of the legislature, in ordaining the preliminary examinations,—they would here have taken the same course: but (as anybody may see that chooses it) their real and sole object was, to produce, for the sake of the profit extractible out of the expense, that system of delay, vexation and expense, which has been produced accordingly.
Compulsion (indirect as it is) there is no want of. Compulsion; but to do what? Not to deliver anything that can serve for evidence—not to speak a syllable of truth, or of anything that can serve to bring out the truth,—but to pay lawyers for writing lies and nonsense.
2. Principal inquiry, sole real inquiry, the trial. Here no compulsion, any more than in a trial on an indictment or information. No compulsion; and (saving whatever difference there may be in respect of the value and importance of the matter at stake,) the consequences—the mischievous consequences, the ambiguities, the inconsistencies—the same here as there.
III. Civil cases: equity law.
In all those civil cases to which the jurisdiction of a court of equity extends, by one means or other the testimony of a defendant is compelled without reserve or disguise.
The question having been propounded,—silence, silence as to the whole together, is taken for confession; an inference that would not be unreasonable, if the defendant were on the spot to answer for himself,—or if, instead of one man out of twenty, every man were rich enough to be able to speak in the only way in which a hearing is to be obtained.
But, where appearance is in question, command does not include permission, either in law or equity. In both places, men know their own business better than to suffer a cause to be begun in a mode which, in nine cases out of ten, brings it (as where conscience presides it is actually brought, brought in the self-same hour) to an untimely and unprofitable end.
Propose, then, the constant question:—no other than the constant answer can be returned to it.
In equity law, the testimony of the defendant, is it compellable? Yes, and no. No, in the best, most natural, most efficacious, most prompt, least vexatious, least expensive mode. Yes, in an inferior, makeshift, accidentally (though but occasionally) necessary mode—drawn aside from the ends of justice by factitious delay, vexation, and expense.
Such, then, are the shifts to which a man is reduced, when straining to find a legitimate reason, or so much as the shadow of one, for any part of the mountain of abuse of which the technical system of procedure is composed. Vexation, fear of producing unnecessary vexation, is that the reason why the testimony of a party is not compelled, in the same mode in which it would be compelled were he an extraneous witness? To save the vexation of an hour, months or years filled with more corroding vexation, aggravated by a load of expense which to nineteen persons out of twenty is altogether insupportable? Here, as elsewhere, thus it is with those tender mercies, in the vaunting of which, neither the tongue nor the pen of the lawyer ever tires: begun in selfishness, continued in hypocrisy, it is in cruelty that they end.
After having been examined in his own station in this mode, the defendant is liable to be examined, with or against his consent, in the station of a witness, in a quite different, and (as far as concerns the extraction of the truth in plenitude and purity) much superior mode. But this case will come more fully and advantageously into view, when we come to speak of the case which presents divers persons on the defendant’s side.
IV. Case civil: procedure by common law and equity together.
In speaking of the plaintiff’s side of the cause, we had occasion just to note the fact, that in some cases, by the assistance of a court of equity, either party may obtain the testimony of the other, to be employed on the occasion of the trial, at common law. Either party, consequently the defendant:—but the plaintiff (i. e. he who means to become such) in the court of common law, is the party with whom the application to the court of equity, for that purpose, will most naturally and frequently originate.
In this most natural of the two cases, the person who proposes to himself to become plaintiff by action at common law, begin with occupying the same station in a court of equity. A bill having this for its object, is distinguished by a particular name: a bill of discovery.
Had the bosom from which it was to be drawn been that of an extraneous witness, the self-same testimony would have been compelled by an instrument called a subpœna, and delivered, in the best shape possible, that of vivâ voce, subject to counter-interrogation and counter-evidence on the spot—delivered in the compass, perhaps, of a couple of minutes. By the assistance of a court of equity, it is obtained, in an inferior shape, without the security afforded for correctness and completeness by the scrutiny of vivâ voce counter-interrogation; obtained at the end of as many years, perhaps, as it would have occupied minutes if delivered in the most trustworthy shape. I speak of minutes: for even though the article of testimony thus required be ever so simple (authentication of a deed, for example, or communication of the contents,) a quantity of time more than sufficient for the circumnavigation of the globe, may be to be consumed in seeking for it.
As to the rational, the justifying cause—the ground, in point of justice and utility, on which, to the extent of this class of cases, the direct exclusion, coupled with the indirect and circuitous admission, rests,—what it is not, and what it is, are points equally out of the reach of dispute. It is not the fear of deception; for the same testimony which is excluded in the more trustworthy, is admitted in the less trustworthy, shape. Still less is it the fear of producing vexation, i. e. vexation beyond necessity, and in excess. What fear then is it? It is the fear of not producing vexation enough; viz. that vexation of which there never can be enough, the vexation with which delay and expense, and the profit (official and professional) extractible out of that expense, keeps pace.
By a recent decision, if the mischief is in one part limited and kept from spreading, its inconsistency is increased.
In the station of an extraneous witness, in a dispute with which he has no concern, a man may, in the direct mode (under the subpœna without a bill) be compelled to deliver his testimony, how heavy soever the but then to which he thereby subjects himself; so it be that in speaking of it, the word criminal be not employed. A forfeiture to the amount of the whole of his estate may thus be imposed upon him, so it be that the forfeiture be not called a forfeiture.
If, for the extraction of testimony from unwilling bosoms, a bill be so much better an instrument than a subpœna, why not extend the application of it to extraneous witnesses? Unfortunately, the times admit not of any such improvement; it is now too late. In law, no abuse too flagrant to be cherished; but even in law, no new ones must now be made.*
V. Examination of bail.
By the two words opposing bail, a sort of examination is denoted, which, anomalous as it is, has, and under the present head, a claim to notice. Two persons, whose relation to the cause is designated by that appellation—a sort of parties added to the cause—present themselves in court, and are subjected to an examination analogous to that which is called cross-examination in the case of an extraneous witness. A species of examination this, which may be seen going forward any day, in any of the superior courts of Westminster Hall, the Court of Chancery excepted.
An action is brought; and (such is the established order of things) the defendant having, with or without necessity or use, been apprehended as a malefactor might be,—instead of being brought before a judge, for examination in the first instance, as a felon is, to be committed, or not committed, according as the necessity for that species of vexation has or has not existence—is committed to prison in the first instance—to a prison, with or without necessity, or (as a matter of favour) to a spunging-house:—that the money which might have gone to his creditors, may be shared among the lawyers, who have given themselves a better title to it. To liberate him from this vexation, two friends of his come forward, and engage themselves, in the event of the defendant’s losing his cause, to do one of two things: to pay the money that he should have paid, or to give back his body to the harpies of the law. Out of court exists, having existed time out of mind, a sort of officer called the sheriff, a common subordinate to all the four courts, something between a constable and a judge: to purposes of vexation, a judge—to purposes of relief, anything but a judge. As to the use of him in the present state of things (I mean to the purposes of justice,—for to the purposes of established judicature he is of admirable use;) conceive this personage, with his subordinates, interposed, in a cause before a court of conscience, between the court and their beadle; in a cause before a justice of the peace, between the magistrate and his constable. This interposition supposed, conceive the improvement it would make in those instances, and you will have a tolerably distinct view of the necessity and use it is of, in the several instances in which it continues to have place.
The bail are now in court: for at that august seat of judicature the presence of those incidental parties, at that early stage of the cause, is as necessary as, at every other stage but the last, the presence of the principal parties is (for so it has been made) impossible.* The bail are in court: a cause, a sort of incidental cause, is to be tried, viz. whether, to the purpose of affording to the plaintiff an adequate security for the performance of their engagement to him, they are in a state of solvency. It unopposed, the fact is sufficiently proved by their own statement, made in general terms, but upon oath: if opposed, the opposition is made by employing an advocate to counter-interrogate them: to put questions to them, in such detail as the patience of the court admits of, concerning the particulars of their property.
Without any such scrutiny, because without any power of administering an oath, this same pair of guarantees, or another pair (for, of the chaos of complication in which the business is involved, this diversification forms one of the ten thousand elements,) the same pair of sureties, or another pair, have already been received by the sheriff in another place: so that these sureties, whose sufficiency is to become matter of dispute—these same suspected persons have, if the suspicion be well grounded, had time to convey themselves out of the reach of justice.
Ask a lawyer, whether, in a civil case, and at common law, a party is ever examined—examined in the way in which at the trial a witness is? Answer: No, never. Ask him whether such a thing, if done, might not be an improvement? Answer: Neminem oportet esse saptentiorem legibus. Ask him whether it could be done? Answer: Impossible, without throwing everything into confusion, and overturning the very foundation of Blackstone’s venerable castle, the sole defence of English liberties.
Ask him whether he has ever heard of a sort of person called a bail; whether a bail is not, to the purpose of eventual responsibility, a party, and whether he never heard a bail examined—examined just as he might have been, had the court at the time had a jury in it, and he been a witness on that same side? Ask him once more, whether he has not heard of a sort of a thing called an estoppel:† —and whether there be not that in it that shall be a bar to his plea of the impossibility of examining a party at common law, without blowing up the old castle? Either you will find him standing mute like a prevaricating witness, struck by a flash of self-contradiction; or, if he says anything, it will be to some such effect as this:—A bail, party or not party in effect, is not a party in name: we never look beyond names.
Would it be less conducive to the ends of justice, to examine in this same mode, and for this same purpose, one principal party at the outset of the cause, than two subsidiary, and perhaps unnecessarily subsidiary ones, in the course of it? Would not the solvency of the debtor himself be rather better worth knowing in the first instance than that of two strangers? Might it not be better to know from himself whether he be solvent or no, than to begin with sending him to a jail or a spunging-house, and perhaps make him insolvent, for fear of his being so? Answer: May be so; but why talk to us about the ends of justice? What have we to do with them? What business is it of ours to look at the subject in any such point of view? What should lead us to it? Who would pay us for it? Who would so much as thank us for it?
What is that sort of information which is got from a man, under the name of bail, at common law, in the course of a few minutes? Exactly the same sort of information which, under the name of a defendant, would be got from the same man in equity, with less security for correctness and plenitude, at the end of as many months, if, for example, be were an executor or administrator, having possession of a mass of property, out of which the plaintiff, a legatee or creditor, called for his share.
In the examination of bail, if the account obtained by the inquiry be sufficiently detailed and satisfactory to prove a mass of property adequate to the sum for which he binds himself, there the inquiry stops, as in this case it is fit it should. In the case of the executor, it may be necessary it should go further: it may be necessary it should go to the utmost. Extending over the whole mass, and (to show that nothing is omitted) exhibiting a separate view of every elementary part of which that aggregate is composed,—it would be inadequate to the purpose, if a statement framed with that deliberation of which written discourse alone is susceptible, did not accompany, or rather precede, the elucidations extracted by vivâ voce interrogation. In the case of the executor,—to the vivâ voce responses, a document of this permanent nature (in equity practice in fact a succedaneum) should in propriety be a supplement, a concomitant, or a preliminary. In the case of the bail, it would not so constantly be necessary to justice. But even in that case, instances in which it would be necessary, present themselves in every day’s practice. Before the income tax, unless where extracted by a bill in equity, an occurrence of this sort was without example; therefore it was impossible. Now, it has existed, and existed in every house; therefore it is not impossible. Good logic in a court of common sense, if not in a court of common law.
VI. Case criminal: procedure summary.
The guards to Blackstone’s castle (the castle of lawyercraft) are numerous and vigilant. But the fortifications they have to defend are extensive: the assailants, though scattered and undisciplined, not a few. Here and there, in some neglected quarter, reason will steal in and take post: one precedent lets in another.
Jurisprudential law is law made by lawyers, never but for the benefit of lawyers: statute law is law made by the self-styled guardians and representatives of the people, sometimes for the benefit of the people. Procedure called regular, is the work of jurisprudential law: procedure called summary, of statute law. Jurisprudential law is the miserable makeshift of inexperienced ages: statute law, the regular work of power and experience, operating upon the raw materials shot down here and there by jurisprudential law. As the sun rises, fogs disperse; as statute law advances, jurisprudential vanishes.
The legislator, who, in the reign of Philip and Mary, introduced the preliminary examination of defendants, in cases of felonious offences, by single justices of the peace, ventured not to intrust those magistrates with the power of deciding upon the evidence so collected: that power was reserved for a jury. Saving here and there an exception too intricate and absurd to be here particularized, a felonious offence was in those days a capital offence: felony meaning then (what unclergyable felony* means still) an inexplicable cluster of punishments, of which the only efficient and comprehensible one is that most absurd, and to English minds most favourite, of all punishments, into which all others are gradually ripening, death:† felony, the punishment; and (by a figure of speech congenial to jurisprudential rhetoric,) the name of the punishment become the name of an offence. But the power of life and death was too much to be intrusted to a single magistrate; and as to the applying, to any offence that had ever been punished with death, any inferior punishment, it was a sort of anticlimax not at all to the taste of that age, nor much, as yet, to the taste of any age.
Depredations, of which this and that particular sort of article were the subject, having excited the passion of revenge in the bosom of the owners of the individual articles; and these individuals happening to possess the requisite share of influence with the legislative body,—a fresh exertion of legislative authority came (as usual) to be made. Though the rules of jurisprudential law are all of them ex post facto laws, having all the bad properties of that sort of law, with that of uncertainty to boot,—the iniquity of the practice, when applied to statute law, seldom fails to be recognised. Feigning notice where there is none, lawyers, who, at so easy a price as the saying the thing that is not, have established themselves in the habit of dealing with men as they please, punish for disobedience, where obedience is impossible: legislators, acting in their own characters, shrink with just horror from such injustice. But though the individual offence escapes unpunished, it is still the individual offender that is in view. Rarely do the optics of the legislator carry him beyond individual objects;—to stretch further, were it possible, might scarce be prudent: it would be abstraction, speculation, theory: sounds employed by politicians who have not the gift of thought, for pointing the current of jealousy against those who have: means employed by him who has power without understanding, for keeping him who has understanding without power from giving the public the benefit of it. Here it was the bird came and perched: in hopes of catching that same bird, the net (a spick and span new one made for the purpose) is spread exactly in the same place. Such is the logic of your practical statesmen.
Finance excepted (an important branch of legislation, but not the only one,) the care of the laws is not the charge, nor therefore the care, of any man. Method, consistency, are never thought of: what does not exist, cannot be disturbed. Lawyers love confusion: lawyers fatten on it: non-lawyers, born and bred with the yoke of the lawyer about their necks, if haply they have the wish, have not the wit, to remedy it.
A quantity of lead and iron had been stolen: passions kindled, resolution taken to catch the thief if possible. Lead and in on have been stolen, and the thieves not punished: ergo, the laws against stealing lead and iron are insufficient. The laws against stealing lead and iron are insufficient: ergo, fresh ones must be made. The thieves unpunished: but how happened it? Because the fact could not be proved upon them: and how happened it that it could not be proved upon them? Because, when questioned about it, they knew better than to answer. Was it there the shoe pinched? this shows us how to frame the remedy. When a man is taken up for stealing lead or iron, provide that, if be won’t answer, and answer to satisfaction, it shall be concluded that he stole it, and he shall be dealt with accordingly. Ay, but this is making him criminate himself: that is against the rule which forbids the putting it to a man to accuse himself: a mode of procedure which lawyers abhor, except where they find their account in practising it, and which non-lawyers, taking the interested clamour of lawyers for the voice of reason, abhor without reason.
True; and therefore we must not think of hanging, or so much as transporting upon such evidence. But a penalty really inflicted, such a penalty, be it ever so trifling, is better than a penalty, be it ever so severe, which is not inflicted: a substance, be it ever so small, has more stuff in it than the largest shadow. To make sure, say forty shillings and no more. To a member of parliament, forty shillings is as nothing: confine the penalty to forty shillings, what the evidence is, will be an object not worthy inquiring about.
So much for the penalty: then as to the jurisdiction: for that too must be changed. Before a jury? No; it cannot be: before them, putting questions to the defendant would never do: they are not used to it: they would not come into it: besides that, before the matter could come to them, the thief would be prepared and over-prepared. With this description tacked to it, the offence, if it come anywhere, must come before a justice. Singly or in pairs, when acting in this mode, people (it is true) are not used to see justices trying theft, and trying it without a jury. But penalties of forty shillings, and ten times forty shillings, are levied in this manner every day: therefore, confine the penalty to forty shillings: say nothing about theft, nor anything about questions, interrogations, or examination; mask the questioning by words which imply questioning without expressing it; lawyers will not see what you are about, or other people will not mind them: and thus, with friends and fortune on your side, your bill will pass.
Thus spake the bold, and fortune favoured them. Like the Lesbian rule of old, the rule bent, the bar opened, and let in protection for the two favoured metals.
Forty shillings’ worth of lead or iron being worth forty shillings, how much less is the worth of forty shillings’ worth of any other thing? Such is the question which common sense might have put, had she dared to raise her voice. But either she was not there, or she did not dare: had she spoken thus loud, lawyers would have taken the alarm, and protection, instead of being extended to other things, would have been lost to the favoured metals.
The direct course would have been free from danger: the indirect, the evasive course, teems with it. I speak of the danger which threatens innocence.
Pressed by pursuers, were a thief in a crowd to slip a purse into your pocket without your perceiving it, or to let drop a quantity of lead or iron into the area before your house, while you and your family were asleep; were any such chance to happen to you, to the satisfaction of what justice could you show how you came by it? The eye that reads this, sees, probably, no such danger in its own case: opulence and character afford you protections of stronger texture than are to be found in the tenor of this law: but, turning your thoughts for the moment, if your mind be strong enough, put yourself into the rags or the cellar that shelter the honest shoe-black who waits for custom near your door.
Metals, “lead, iron, copper, brass, bell-metal, or solder:”* cause to suspect that any such article, having been stolen, is concealed in such or such a place: complaint, on oath, to a justice of the peace, of the existence of such cause: warrant from such justice to search accordingly, in the day-time; finding therein accordingly: warrant thereupon, by such single justice, to cause the same, and the person in whose house, or other place, the same were found, to be brought before two or more such justices. These preliminaries adjusted, then comes the clause authorizing the extraction of self-criminating evidence. If such person shall not give an account, to the satisfaction of such justices, how he came by the same, or shall not, in some convenient time, to be set by the said justices, produce the party of whom he bought or received the same, he shall be adjudged guilty of a misdemeanor. Penalty for the first offence, 40s; for the second, £4; for every subsequent offence, £6: so that, if there were not other laws, by which, in case of other sufficient evidence, these same thefts are punishable under the name of theft, and with a degree of severity which certainly cannot be charged with insufficiency, this law, instead of being a prohibition, would operate as a licence.
Give an account, to the satisfaction of such justices, how you came by the same?—or, in some convenient time, to be set by them, produce the party of whom you bought or received the same? If, as before supposed, you know nothing either of the thief, or of the stolen goods,—the same, after having been stolen out of some other place, having been stolen into yours, without your knowledge,—how should you? The probability is, that, notwithstanding your giving no such account as is required, and on failure of which the justices are required to convict you,—the probability is, that, you being innocent, they would not convict you. Be it so: but if so it be, then the case comes to this: that the magistrates, instead of pursuing the law of the land, pursue the law of reason; and that, instead of extracting, or rather receiving, testimony from you (the defendant,) in an imperfect mass, according to the terms of the statute, they extract it from you in a complete state—in that state in which (you being, by the supposition, willing) they would have extracted it from you, had they dealt with you, the defendant, as they would have done with any extraneous witness; or if, dealing with you as a defendant, they had examined you as persons apprehended for felony are examined, under the statute of Philip and Mary,—for the purpose of being committed, or not committed, for trial,—and as defendants charged with any sort of crime are examined under Roman law, for the purpose of being convicted or not convicted.*
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.
Absurdity of the exclusion.
In this more complicated case, as in the former more simple one, the task of determining what is right, receives not from the complication any additional difficulty. Already, over and over again, the determination has been formed for all cases: but the difficulty of examining and exposing what is wrong, receives, from the same cause, an enhancement much to be regretted.
On this part of the field, as on every other, the rule of simplicity, the purest simplicity, will be seen to be the rule of utility and reason: the system of complication, to be a system of absurdity, inconsistency, and injustice, in all its shapes.
Of this case the modifications are—
I Plaintiffs more than one. First question: Shall each he admitted, if willing, to give testimony at the instance of the other? Second question: Shall each, if unwilling, be compellable to give testimony at the instance of the other?
II. Defendants more than one. In this part of the case the questions likewise are two, and of the same import. Shall each, if willing, be admitted—shall each, if unwilling, be compellable—to give testimony at the instance of the other?
In this case, over and above all accidental anomalies and incongruities, a curious absurdity is generated by the very nature of the general rule. Parties, how numerous soever, being excluded; while, in the character of an extraneous witness, the testimony of a single deponent is sufficient to warrant, and (if clear of contradiction, as well from within as without,) in a manner to command, decision;—a single tongue obtains thus a certain victory over a thousand, that would have sounded in contradiction to it, had they been suffered to be heard. Every defendant is, par etat by his station in the cause, a liar: a man who, if suffered to speak, would be sure to speak false, and equally sure to be believed. Every defendant is a liar. But every human being may, at the pleasure of every other, be converted into a defendant. Therefore, and by that means, every human being may, at the pleasure of every other, be converted into a liar, and, in that character, his capacity of giving admissible testimony annihilated. The jus nocendi, the power of imposing unlimited burthens by calumnies not suffered to be contradicted, is thus offered constantly upon sale, to every man who will pay the price for it.
Plaintiffs more than one—Examination of this case.
Examine the subject in detail, you will find the mischief, as well as the absurdity, diversified by no small variety of modifications; none having any reference to the ends of justice, all arising out of the different modifications of the form of procedure: modifications agreeing but in two things; their subservience to the ends of actual judicature—their repugnance to the ends of justice.
In the first place, let the multiplicity be on the plaintiff’s side.
I. Plaintiff’s testimony,—is it admissible in favour of a co-plaintiff?
1. In cases called criminal (from what has been brought to view already, it may be easily inferred) the multiplicity is not productive of any additional injury to the interests of truth and justice. Where there is but one plaintiff, one prosecutor, his testimony is not excluded by the interest he has in the cause. As the testimony of one is not, so neither would that of two or twenty, if there were so many; but there are not usually more than one.*
2. Case called civil: mode of procedure, action at common law. Neither in this case, plaintiffs (i. e. persons having need to appear in that character) being plural,—neither in this case, in the hands of a well-advised attorney, need there on that side be any dearth of evidence. Two persons attacked and beaten by four: each of the two brings his action, supporting it by the testimony of the other. Two suits are thus manufactured out of one. So agreeable a circumstance may help to account for the establishment of the rule, and may be not unfriendly to the preservation of it.
But suppose a claim of the pecuniary kind, with or without injury—in short, a demand, preferred by two persons linked together by the tie of one common title: two tenants in common, two joint-tenants. Here, either both individuals are obliged to join in the suit, and thence become both of them plaintiffs; or, if one be plaintiff, and excluded on that score, the other is an interested witness, and excluded on that other score. True; but in the character of a purge to carry off the fæces of interest, the virtue of a release has been already brought to view:† to each of them let this specific be administered by turns; the peccant matter is discharged out of him, and he becomes a good witness for the other. True it is that the specific, admirable as it is, is not equally well adapted to the constitution of every case. Suppose two persons partners in trade; there might be an awkwardness in the arrangement, were each partner, as the exigency of the suit required, to give up his share of the business to the other.
To pursue the inquiry through the whole field of actions and actionable cases, would probably be thought rather a superfluous task. What, for the purpose of illustration has already been brought to view, may appear proof sufficient for the establishment of three facts: that in one set of cases, admission for the testimony of persons in the situation of plaintiffs may be gained; that in another it cannot be gained; and that in neither has the distinction anything to do with the interests of truth and justice.
A corollary is, that, in some cases, there may be a convenience in this sort of community of interests. As one good turn deserves another, each associate may thus, in his turn, discharge himself of his peccant matter, for the benefit of the other: whereas, when, in point of interest, a man has the misfortune of standing alone, it may not be altogether easy for him to discharge his bosom of peccant matter, for want of a friendly bosom to empty it into.
Could anything be done by a sale without warranty? or if with warranty, might not the interest attached to the warranty be purged off, as well as interest in other shapes, by the universal elixir? Apply this to immoveables and to moveables: to property, real, personal, and incorporeal: learning, curious learning, in any given quantity, might be spun out upon this ground.
3. Case called civil: mode of procedure, bill in equity. The mode of pursuing, or professing to pursue, truth, being altogether different, according as, in pursuing it, you pronounce the word law, or the word equity,—a different field is thus opened for the exercise of professional ingenuity. The virtue of the purge is no less acknowledged in equity than in common law; but if reciprocity be the condition, and the suits, instead of contemporary, are to be successive, the condition of those who have to wait will be still more awkward here than at common law.
Equity procedure is peculiarly adapted to the treatment of complex cases: or, to speak more properly, when a case becomes to a certain degree complex, in any mode pursued at common law it is so utterly impossible to administer anything that shall have so much as the semblance of justice, that cases of this description are shaken off, by necessity, into the lap of equity.
If, in the field of common law, the inquiry might find matter for one volume,—on the ground of equity law it might find matter for another. Of the matter peculiar to equity, I shall content myself with giving one specimen: for illustration it will be sufficient, and more will hardly be desired.
In equity procedure, in a multitude of cases it will happen, that whether a man shall be plaintiff or defendant is matter of contingency, matter of choice, as parties happen to agree.* In regard to co-defendants, the rule in this behalf (as there will be occasion to state presently) is, that they cannot, in favour and at the instance of a plaintiff, be made to testify one against another:—but, for himself, any defendant can employ the testimony of any other co-defendant, as extracted by the interrogatories administered to him on the plaintiff’s side. Suppose, then, three persons, Primus, Secundus, and Tertius, who, in the most natural order of things, would have been co-plaintiffs; but Secundus and Tertius stand in need of each other’s testimony: instead of plaintiffs, let them be made defendants, leaving the part of plaintiff to be played by Primus alone, and the problem is solved.
II. Plaintiff’s testimony,—is it compellable at the instance of a co-plaintiff?
The modifications of this case are soon disposed of.
1. Cases called criminal. On an indictment (as already stated) it is neither natural nor usual that there should be more than one real plaintiff, more than one prosecutor. Supposing more than one (two, for example,) it is not natural that they should have become such, without such an agreement as would be incompatible with compulsion at that time. Men who agree one day, may, indeed, disagree the next; but if both are bound to prosecute, both are bound also to give evidence. But, bound or not bound to prosecute, no individual being in a criminal case recognised in the character of plaintiff, there is no individual (defendants excepted) who is not bound to give evidence.
The case is, in this respect, much the same on an information. It is different, and indeed opposite, where the prosecution is by motion for attachment. In those cases, all testimony is received in no other form than that of affidavit evidence. On trial by affidavit, everybody testifies that pleases; add—and nobody that does not please.†
Affidavit evidence is moreover (as has been already observed) the sort of evidence, the only sort, that is received on the preliminary and worse than useless inquiry, which, for the benefit and by the hypocrisy of the man of law, under the mask of tenderness, has been made to precede the trial on an information: as likewise on the supplemental inquiry, by which, in case of conviction, as well on indictments as on information, the trial is succeeded,—and on which, on the occasion of the original offence, the defendant may, without other evidence, be convicted of succeeding ones. For it is a rule—an inviolable rule, with learned judges, never to receive testimony when it is for their own use, but in the most untrustworthy of all forms. Compulsion is, therefore, out of the question in all these cases.
In the case of felonies, on the preparatory inquiry performed by a justice of the peace antecedently to the trial, the testimony of every person without distinction is compellable, at the instance, as well as by the authority, of that magistrate. Thence, supposing in the first instance two prosecutors, and reluctance to supervene on the part of either, his testimony might, at the instance of the other, be compelled notwithstanding; viz. by the authority of the magistrate.
In the same cases, the same obligation extends to the other preparatory inquiry,—viz. that before the grand jury; supposing it preceded by the inquiry before the justice of the peace.
But in such indictable offences as do not come under the denomination either of felonies or breaches of the peace, no such previous inquiry before a justice can take place: nor in felonies, though usually, does it necessarily take place: still less in breaches of the peace. In these cases, therefore, probably, as in attachments certainly, justice is, on this occasion as on so many others, left to take her chance. On the inquiry before a justice, the mode of compelling attendance, for the purpose of testification, as well before the grand jury as on the trial before the petty jury, is by an engagement called a recognizance; into which, prosecutors, as well as extraneous witnesses, are by that authority, and on that occasion, compelled to enter: one person usually (possibly, in some instances, more than one) undertaking, by one recognisance, to prosecute as well as testify; another, or others, undertaking, by another recognisance, simply to testify, nothing being said of prosecuting.
Is there any other mode of compelling the appearance of a man, in either character, before a grand jury? None that I can find in the books. I know of none.
2. Cases called civil: procedure, by action at common law.
Compulsion is here altogether out of the question, as between plaintiff and plaintiff. We have seen how, in some cases, two men, having each of them the sort of interest that a plaintiff has in the event of the cause, may each purge himself of the legal part of that interest, while the moral part keeps its hold as firmly as ever in his breast. But where the patient is a human creature, this, like other purges, supposes consent: a suitor cannot be purged with a drenching-horn, like a horse.
3. Cases called civil: procedure, by suit in equity.
In the case of a single plaintiff, we have seen, that in that character a man can never be compelled to give testimony,—and also for what reason. The same reason would, if there were a thousand of them, be equally conclusive.
Defendants more than one—their testimony in favour of one another, how far excluded by English law.
I. Can the testimony of one defendant be received in favour of another?
1. Cases called criminal; procedure, by indictment or information.
In these cases, as in all others, the station of defendant is a situation to which the plaintiff nominates: it depends not upon the nominee to resign it; if so, it would not be often filled. For the purpose of the principal inquiry, called the trial, a man cannot indeed, under this mode of procedure, be stationed in it without the fiat of a grand jury: but, unless the story appear preponderantly improbable, that fiat will naturally be (at least it ought to be) commanded by the evidence: and it is the characteristic of this species of inquiry, to hear evidence but on one side.
In this case, when the inquiry is the principal one (the trial,) can a defendant, with his own consent, at the instance of a co-defendant, give testimony in favour of such co-defendant? No, and yes. No, in words: yes, in effect. No: for in that situation, let a man say what he will, it is not evidence. No oath can be administered to him: not a question, as we have seen, can be put to him by anybody. Yes, in effect: for to the defendants, to each of them, be their number what it may, liberty is always given to say, or to read, whatever he may think proper, under the name of his defence. Being allowed to say whatever he thinks fit,—if, in what he says, there be anything capable of operating in favour of a co-defendant,—what he thus says in favour of another, will naturally operate upon the mind of the jury with no less persuasive force—will naturally, if there be any difference, operate with more persuasive force—than anything which, more particularly or exclusively, operates with the like tendency in favour of himself.
As to affidavit evidence, and as many inquiries (whether principal, preliminary, supplemental, or sole) as are carried on in this uninquisitive mode, and as many sorts of demands (penal or non-penal) as are judged of by the light of this most commodious sort of evidence,—we shall find, in the case of co-defendants, admission standing upon the same easy footing as we have seen it stand on in the case of co-plaintiffs. With the pen of an attorney to speak through, let a man present himself in the garb of a witness,—be he who he may, party or not party, interested or not interested, perjured or not perjured,—be the occasion what it may,—thus introduced, all doors and all ears are open to him.
2. Cases called civil: procedure, by action at common law.
In the case of plaintiff and co-plaintiff, the efficacy of mutual good offices and of purgative releases has already been brought to view. But, even in that more manageable case, we have seen it limited; and, as between defendant and co-defendant,—if the action be of the number of those in which conduct of an injurious nature is imputed,—the specific is, of course, in this difficult case, no more applicable than in that more easy one.
In a case of this sort, as it is not necessary for the defendant or defendants to be present during the trial, so neither is it altogether natural or usual: whatever a man, guilty or not guilty, can find to say in his defence, he in general regards it as more eligible to trust to the learning and eloquence of his advocate, than to any chance he may have of gaining credit for anything he might wish to say, either in his own favour, or in favour of a fellow-defendant, in the character of testimony, though not allowed to be delivered under the technical name of evidence. The sort of presumption here supposed, is of very rare occurrence. Certain it is, that it will not experience either much inward satisfaction, or much outward encouragement, from the learned and eloquent gentleman, to the remuneration of whose learning and eloquence his money (if he has any) has been applied. If he is guilty, their opinion will be (and in this case it will probably be a just one,) that the duty of demonstrating his innocence cannot, with equal probability of success, be either trusted exclusively to any but themselves, or so much as divided with themselves. If he is not guilty, any endeavour which he may be inclined to use to make known his innocence, will naturally be regarded as a sort of invasion of their rights. Success depends not upon truth and justice, but upon that sort of learning which has been created for the purpose of being made the subject of a monopoly: of that monopoly, of which, at the expense of so much money as well as so much labour, they have obtained their share.
Where punishment of so high a nature as that which is attached to offences of the rank of felony, is at stake, the judge is naturally averse to the task of suggesting any observation, the tendency of which may be, unjustly, or even justly, to diminish the chance which the defendant may have of making his escape from the severity of the law. To the case between individual and individual, in which one cannot lose but the other must gain, this sort of tenderness does not (for the demand created for it by popular prejudice does not) extend. In summing up the evidence on the trial of an action, the judge would say to the jury without scruple, “Gentlemen, the defendant Nokes has said so and so in behalf of defendant Stiles; but the law requires you to lay all this out of the case; for it is not evidence.”
In all purely pecuniary cases, to which the virtue of the mendacity-fuge diaphoretic does not extend,—the natural effect which, in the case of a plurality of defendants, results from the exclusion put upon the testimony of individuals in this situation, has already been brought to view. In English jurisprudence, in the class of cases here in question, this mischief operates with undiminished strength. To rid himself of a troublesome witness, an unscrupulous plaintiff has no more to do than to put him upon the list of defendants.* Seeing a man upon that list, a learned judge wants nothing more to satisfy him, that the testimony of that man (be he who he may) is unworthy of all regard; and to engage him, of course, to give his assurance to the jury to the same effect.
If, indeed, to the same purpose, on the same occasion, the testimony of the same individual had been presented in the form of an affidavit, unchecked by cross-examination, the case would have been very different: it would then have been good evidence: and, like the testimony of any extraneous witness, have passed with him for what it was worth.
Nay, but the plaintiff has no such power: we are aware of the mischief, and have provided against it: he may put a witness, if he pleases, upon the list of defendants; but if no evidence is given that affects such defendant, his testimony is received notwithstanding.
Yes, verily: provision you have made; and against this abuse with about as much felicity and about as much zeal, as against the rest of that mountain of abuse which is the source and measure of your profit. Every man who has a farthing to gain by lying, will always be sure to he: this is your theory: this is what you are bound by: you are estopped from questioning it. If he be not, on what pretence do you exclude a defendant from delivering his testimony at the instance of a co-defendant? If, in a case affording, in point of moral interest, two plaintiffs, one of them has been cleared of legal interest, by the name of prosecutor, or by the relaxatory purge,—and the purge, though it has given him competency, has not given him veracity along with it,—to strike the defendant witnesses dumb, if there be a dozen of them, what has he to do, but to say a word or two against each?
Nay, but the case you are thus bringing out against us is an extraordinary case.—Not so very extraordinary: but, however, take this, which is but too ordinary a one. Plaintiff, there is but one: witness, an extraneous witness: witness, but that one, which is sufficient. But this one witness is a liar: bound to the plaintiff’s side, either secretly by the only interest that you acknowledge to have any influence, or by any or all of the other kinds of interest put together: is it more unreasonable to suppose one liar on this side, than a dozen on the other? For if you are not sure of their being liars, or even if you are, what should hinder you from suffering them to be heard?
But it is vain to argue without data. The matter in dispute being given (and now let the case be a purely civil one,—nothing of injury supposed,) the question is, whether the testimony of the defendant, called for by a co-defendant, will or will not be trustworthy. His trustworthiness depends,—not upon the cause, or the relation the man bears to the cause,—but upon the station, the judicial station, which, at the instant of pronouncing the decision, you, his judge, happen to occupy. On this, as on so many other subjects, tell me your station, I will tell you your opinions: unless your station be ascertained, you know no more what your opinions are on the bench, than you knew what they were while at the bar, till you knew whether it was for the plaintiff or the defendant you were retained.
Are you a Chancellor, or a Master of the Rolls? The man is a true man. Are you a judge of the King’s Bench? He is a liar, and one that would deceive your jurymen, as sure as you suffered them to hear him. Being a judge of the King’s Bench, are you, moreover, a commissioner of the great seal? The man is trustworthy or untrustworthy, according as you sit on the one side or the other of a narrow passage. Are you a baron of the Exchequer? His character changes backwards and forwards, without your being at any such trouble as that of crossing the passage:—from the same bench, and without stirring, you serve out law or equity, whichever happens to be called for: if it be law, the man is a liar; if it be equity, he speaks true.
Tell us, then, what is law—tell us what is equity: these are both of your own making: each, whatever you are in the mood to make it.
The tissue of inconsistencies and absurdities is not yet at an end. In what court is it that the testimony of a defendant, called for by a co-defendant, is not receivable? In the court where, in case of mendacity, the most effectual means of exposing it are in use. In what court is it that the testimony from that same source is receivable? In the sort of court where no such means are suffered to be employed. In a common-law court, there is cross-examination. True; that is to say, provided a jury be there to hear it,—not otherwise. In a common-law court, there is cross-examination: in an equity court, there is cross-examination: in both, the cross-examination is the same sort of thing, in the eyes of those to whom the most different things become the same thing when called by the same name. Common-law cross-examination,—questions put in public, by the advocate of the party, to the deponent (were he to depose,) after the questions put on the other side, with the answers to them, have been heard. Equity cross-examination,—questions put in private, by a clerk, who, unless bribed, cares not a straw for either party, nor for anything but the getting through his task with the least possible trouble: questions framed for him by a person to whom it was not possible to know a syllable of what the deponent would say, in answer to questions put on the other side.
Tell me then, once more, on what bench and under what name you sit, and I will tell you what you will think; or at any rate (if the term thinking be improper) what you will do. Is it your business to cancel papers,* or keep rolls?† The sham cross-examination is the only one that you will suffer to be made: and it is upon the strength of this mock security, that you will give your confidence to the defendant’s evidence. Is it your business to hear pleas before the king himself, when he is not there?‡ Nothing less than the true cross-examination will serve you; and with this best security at your command, forasmuch as you can get nothing better,—in this case, to make sure of hearing the truth, and the whole truth, you shut your ears against the evidence. Are you that double sort of man called a lord commissioner of the Great Seal; or that other double sort sort of man called a baron of the Exchequer? The true and the sham cross-examination are the same thing to you: but, at any rate, with the good security in your hand, your ears are shut against the evidence: with the the bad security, they are open to it.
Be this as it may,—whether you are the single sort of man, or the double sort of man, you are at any rate that other sort of man, in whose judgment (where it is by himself that the decision is to be formed,) no examination at all, is a better way of coming at the truth, and the whole truth, than either the good mode of examination or the bad one. Should the man be sitting or standing opposite you, you know better than to put a single question to him, or to suffer one to be put to him by anybody else. It must be through the pen of an attorney, if you hear him; and through that medium you hear anybody.
Instead of missing, would you wish to find, the truth? Instead of common law and equity, would you wish to administer justice? Instead of learning and science, would you wish to judge according to common law and common honesty? Go to any court of conscience,—go to the study of any country justice: learn there to forget your learning; in that oblivion you will find the beginning of wisdom. Among the shopkeepers, more surely; for before their court hangs a curtain, behind which (happily for the great body of the people) eyes such as yours have not been allowed to penetrate. In the study of the unlearned magistrate, more sparingly: you must there content yourself with such remains of wisdom as your vigilance has not yet succeeded in rooting out of it.
II. Can the testimony of one defendant be compelled at the instance of another?
1. Common law. Case, criminal: procedure, by indictment or information: occasion, the principal inquiry, the trial. The answer, in this case, is clearly in the negative. In the very nature of the case, obligation to testify supposes interrogation. But on the trial, no question can be put to a defendant by anybody: therefore, not by a co-defendant.
2. Law, common or equity: case, criminal or civil: procedure, by indictment or information: inquiry, sole, principal, preliminary, or supplemental: form of testification, affidavit evidence. Whenever the evidence is delivered in this form, the answer must still be in the negative. No interrogation, no compulsion, and affidavit evidence is, being interpreted, uninterrogated evidence.
3. Common law: case, civil: or (if in some respects considered as criminal, and spoken of under the name of penal,)—procedure, still by action. Answer still in the negative! No interrogation, no compulsion: no question can be put to a defendant by anybody; therefore, not by a co-defendant.
Defendants more than one—their testimony against one another, how far excluded by English law.
Can the testimony of one defendant be compelled, to the disadvantage of another?
1. Criminal cases.
Procedure, by indictment: occasion, the principal inquiry, the trial.
To an individual in this situation, no question, as already observed, can be put by anybody: therefore no evidence, to the prejudice of one defendant, can be thus extracted from any other. In regard to any statement that may happen to flow spontaneously from the lips of a defendant, speaking in his own defence (as above,) the same observations as above are applicable: with only this difference, that, when anything that falls from a person in this suspected situation presents itself to the judge as operating to the disadvantage of another individual in the same predicament,—the nullity of it, in the character of evidence, will, by an English judge, be much more apt to be noticed and held up to view, than in the opposite case.
Where the procedure is by information there is no other difference in this respect than what may be supposed to be produced by the inferiority of the maximum of punishment in this case, in comparison with the maximum of punishment applicable in cases prosecutable in the way of indictment. Seldom indeed, if ever, in the case of an information, will the occasion for any such remark on the part of the judge present itself.
Procedure, by attachment: evidence, affidavit evidence. Here, the evidence being all read of course, the judge makes whatever application of it he thinks fit. In the cases which we shall come to presently, in which the testimony is also presented to the judge in the form of ready-written evidence, it is not heard by the judge, except in so far as, for that purpose it is especially called for: and the question, for or against whom it shall be employed, resolves itself into the question, at whose instance it shall be read. The evidence being, according to his own theory, of the deceptitious kind, he is, according to that same theory, constantly deceived by it.
So much for persons actually in the situation of defendants. But, of two persons having borne in the same criminal transaction exactly the same part, it may happen that one shall be put into that perilous situation, the other not. This accordingly is the case, as often as, by a reward, of which impunity forms the whole or a part, one of two delinquents is engaged to come forward against another, in the character of an extraneous witness.
Of this ground of suspicion and untrustworthiness, and of the use which English law scruples not to make of this most suspicious of all imaginable evidence, to this most dangerous of all imaginable purposes, notice was taken at the outset of this research.
But what is done in this way in the strongest of all cases, is done in the same way in all other cases of inferior strength and the like complexion. To dwell upon any of these inferior cases, would be an anticlimax. Such admissions are most perfectly consistent with that gigantic exception: all of them as completely repugnant to the general rule.
2. Civil cases; procedure, in the way of action at common law.
In this case, also, no question can be put to a defendant in behalf of anybody; therefore not in behalf of a co-defendant.
3. Case, civil: law, equity law: procedure, by bill in equity.
On this ground, confusion is in all its glory: the powers of darkness have mustered all their force.
At common law, though testimony, in wholesale quantities, is pronounced deceptitious without knowing what it is,—still, take any given lot, it is either capable, or incapable of being true: it is not capable and incapable at the same time.
The absurdities and injustice of common law were not enough for equity: she has made improvements: and in equity, the self-same statement concerning a matter of fact—the self-same proposition, is true and false at the same time: for or against A, it is true; for or against B or C, it is false. You who read this, were you sitting this day twelvemonth, at one o’clock p. m., in your study? and in your answer, or your depositions, do you declare as much? It is true, as against yourself: it is false—false beyond all possibility of being true—as against me, a defendant along with you in the same cause.
Look to the origin of this difference, you will find it in the joint influence of several concurring causes:—in the practice of pursuing, on the occasion of such cause, two modes of collecting evidence, by answer and by depositions, agreeing in nothing but their unfitness for the purposes of truth and justice: in the confusion pervading the whole texture of the answer—claims and concessions confounded with affirmations and denials,—what a man says in the character of a party, with what he says in the character of a witness,—propositions concerning the question of right, with propositions concerning the question of fact.
Wherever the object has been to relieve, and not to plunder the afflicted, to mitigate, and not to aggravate their sufferings—where the object has been to bring to light the truth, and the whole of the truth, for the purposes of justice,—where such have been the objects, and the obtaining the simultaneous presence of all parties in court has been neither physically nor prudentially impracticable, the mode of collecting the evidence everywhere has been alike simple and effectual. Each party has been admitted to declare so much of what he knows, as promises to operate in favour of his own interest; each party, at the instance, at the interrogation, and thereby to the advantage, of every other:—the testimony of each party in his own behalf, allowed to be delivered, and received for what it is worth; the testimony of each party, when so delivered, allowed to be controverted by every other party, scrutinized by counter-interrogation, opposed by counter-evidence.
Such, accordingly, is the practice in the courts of conscience: such is the practice of the unlearned judges called justices of the peace, except in so far as, by exclusions forced upon them by their learned superiors, they have found themselves compelled to swerve from it. Such is even the practice on trials before juries; deduction made of the still more extensive exclusions, by which the budget of evidence is regularly defrauded of those parts of its contents which are likely to be most valuable; viz. the testimony of those individuals, to whose perceptive faculties the facts belonging to the cause were most likely to have presented themselves.
In equity (as already observed,) in one and the same cause, testimony is delivered in masses of two shapes, each different from the other, as well as from the only good one. One mass, in the form of what is called an answer, containing the ready written testimony extracted from a defendant by the ready written questions contained in the bill—an instrument drawn up by the plaintiff’s law assistants, and without his perusal (or at least without his signature) exhibited in his own name; and in which those questions, the answers to which are expected to be true, are preceded by charges—a sort of testimony, which (as already observed) is allowed to be true or false at pleasure. In this shape, testimony is not called for at the hands of any persons that are not parties, nor, among parties, at the hands of any persons that are not defendants in the cause.
At common law, though the best evidence is so carefully weeded out, yet when once a lot of evidence has been permitted to come into existence, every use that is capable of being made, is permitted to be made of it. Capable of being true with relation to any one person, it is allowed to be equally capable of being true with relation to everybody else. Far otherwise is it with the sort of evidence extracted under the name of answer, by the process employed (as above) by the practitioner in a court of equity. The answer (the part of it in question) is good as against me, the defendant whose answer it is. But is it good, ought it to be acted upon as good, as against you, another defendant along with me in the same cause? To both questions the response must now be in the negative. Of what nature is the clause in question? An acknowledgment, having respect to the question of right? or an assertion, a deposition, having respect merely to the question of fact? If it be an acknowledgment of right, my right to give up a claim of my own is indubitable: but that I ought not to have any such right as to give up any claim of yours, is equally indisputable.
Is it a statement concerning a matter of fact? Even here, its title to be admitted, as against you, in the character of evidence, will appear to be bad, or at least questionable. Let the fact be even of the number of those, in relation to which, at the time at which it happened, I myself was, if I speak true, a principal witness—a fact which, if I am to be believed, I saw with my own eyes. That against myself, in relation to any claim that I have made, it may, and without any danger of injustice to my prejudice, he taken for true, is manifest enough: but as against you, and to the defeating of any claim of your’s, has it an equal title to be taken for true? If any, certainly not an equal one; for there is this difference: you, in your situation, possess not that faculty of counter-interrogation, which, for defence against injustice, is in your situation necessary, but in mine not. By misconception, I may have been confessing that to be true, which in fact was not so. In the view of favouring the plaintiff at your expense, and at the expense of truth and justice, with or without his privity, I may have been confessing that to be true which you knew at the time to be false. It ought not, therefore, to be taken for true as against you, without your having the faculty to controvert it, in the event of your regarding it as false: to controvert it, viz. by questions put to me in the way of counter-interrogation—of cross-examination. But questions in this way, the forms of the court do not, on the occasion in question, allow you to put to me. What they do allow and require is, that each of two defendants shall, in an instrument called his answer, make response to all such proper questions as the plaintiff in his bill shall have propounded to him: what they do not allow is, that either of two defendants shall, in this stage of the cause at least, put any question to the other.
In the first of these two cases, the exclusion is just in itself, would be just on every occasion, and in every court. But what is it that is here excluded? Not testimony, but unjust power: a power on my part to give away your rights.
In the other case, the exclusion may also be just: but if it be, it is so in no other than a hypothetical and relative sense, relation being had to the forms of the court—the forms actually in use. Setting aside that casual and adventitious and deplorable circumstance, the proper course is, not to exclude the one of two sets of evidence, but to admit the other: not to prevent my deposition from being taken into consideration as against you, but to allow you to put counter-questions to me, as you might do if I were not a party in the cause—if the interrogations put to me, were put to me in the character of an extraneous witness.
The judge would not then be reduced, as now, to the necessity of denying, explicitly or implicitly, a proposition which the weaker powers of Locke bowed down to as impregnable—it is impossible for the same thing to be and not to be. He would not have been reduced (as now he is every day) to declare, in deeds if not in words, that the same evidence is certainly true and certainly false. To the philosopher, by whom nothing was to be got by it, the task was an impossible one: but to the lawyer, into whose lap every day’s profit is poured by every day’s nonsense, neither this nor a greater absurdity (if the nature of things affords one) ever presents the smallest difficulty.
The other shape, in which, in the same courts, testimony is delivered, is that of a mass of depositions; a name extending elsewhere to all testimony, but confined, in English law jargon, to the designation of such testimony as is delivered in that particular shape. Answer is the name appropriated to the testimony delivered by a defendant, in reply to the questions propounded to him on the part of the plaintiff in the initiative instrument called the bill. Depositions is the name appropriated to the testimony delivered by a witness, in reply to the questions put to him vivâ voce in a closet, by a sort of judge or set of judges, whose authority is confined to the collection of testimony, without power to make use of it.
This mode is a mode appropriated to the collection of the testimony of persons spoken of under the name of witnesses. But in this same way a defendant, every defendant, may be examined as a witness:—after a course of examination, the duration of which is always counted by months, not unfrequently by years,—re-examined in another and much worse mode, under this other name.
Examined: but now, at whose instance, and for what purpose? By the bill, at the instance of the plaintiff only; against him the defendant only; his testimony not being at that time obtainable at the instance of anybody else, nor employable as against anybody else, that is, as against any other defendant,—as we have been seeing, and for the relatively good reasons that we have seen. By the interrogatories (the name given to the questions now put to him by the examining judge or judges,) he may be re-examined at the instance of the plaintiff or plaintiffs, as against any other defendant or defendants; he may be examined, now for the first time, at the instance of any other defendant or defendants, as against the plaintiff or plaintiffs, or as against any third defendant or defendants.
Collected in this mode, his testimony may now be employed against others beside himself: employed, and with propriety; but if with propriety, for what reasons, and thence on what conditions? On condition that every person against whom it is employed, shall have the faculty of employing his exertions for the correction, completion, and (upon occasion) contradiction of it, by counter-interrogation and counter-evidence. In this mode,—is it at the instance of the plaintiff that he is examined? This faculty the plaintiff possesses of course: for—with relation to the self-serving testimony, which the defendant, as far as conscience and prudence will give him leave, will not fail to bring forward—the interrogatories formed by the plaintiff’s agents, and from them received and employed by the examining judge or judges, will have an effect analogous to that of the counter-interrogatories propounded to, and in the case of, an extraneous witness.
On this footing stands, it should seem, the law of reason; and on this same footing, for aught I know, may stand the actually established law.
But, to the faculty of administering to a defendant interrogatories from all those various quarters to all those various purposes, actual law adds a limitation, a saving clause: saving all just exceptions. These exceptions, self-styled just,—what are they? Exceptions on the score of interest. Of what interest? This is more than I can undertake to answer, at least with any full assurance. A defendant without interest in the cause? How can that be? It he is without interest, this very exemption from interest is recognised as a circumstance, the effect of which is to preclude the plaintiff from dealing with him in the character of a defendant.
On the score of interest, a defendant not to be re-examined against himself, at the instance of the plaintiff? Why not? Good or bad, the interest did not exclude him from being examined against himself at the instance of the same person the first time; why should it a second?
On the score of interest, a defendant Primus not to be examined against himself, at the instance of defendant Secundus? Why not?
Applied to the present case, the import of the word interest is indistinct and obscure. Speaking of a defendant as having an interest in some cases (viz. in the cases in which, on the score of that interest, his testimony is excluded,) implies that there are other cases in which he has no interest, viz. those cases (for such there are) in which his testimony is admitted. But a defendant—a party in the cause—and yet without interest in the cause? How can that be?
But it may happen (it may be said,) and every now and then does happen, that a person is actually made defendant in a cause in which, whether he be thought or no to have an interest, he really has none; for in every cause it rests with the plaintiff to put upon the list of defendants any person and every person he thinks fit. True; but when cases of this description are laid out of the question, the difficulty remains notwithstanding. In this case (supposing the existence of it ascertained,) the name of the defendant, the name which ought not to have been put upon the list, may be struck out of it. Those cases in which the defendant has clearly no interest to any sort of purpose, being set aside, there remain cases in which he has not, and at the same time has, an interest,—has an interest, to the purpose of the continuance of his name on the list of defendants,—has not an interest, to the purpose of his testimony’s being regarded as inadmissible.
1. First, let it be proposed that he be examined at the instance of the plaintiff. It must then be either as against himself, or as against another defendant or defendants: for though two or more persons happen to find themselves together on that side of the cause, it may happen to them to have interests as opposite to each other, as that of any one of them to that of the plaintiff: inasmuch as it rests with the plaintiff to put upon the list of defendants whatever persons he pleases.
Moreover, what may also happen is, that on the plaintiff’s side of the cause there may be more persons than one; say two: that, as between those two plaintiffs, there may be, to some purpose or other, an opposition of interests, as between two defendants; for though no person can be upon the list of plaintiffs without his choice, yet so it may happen, that in consideration of a community of interests in some respects, two natural adversaries may enter into this sort of alliance.*
On this occasion, as against the defendant himself, it is a conceivable case that the plaintiff may wish to examine the defendant, though a case not likely to be frequently exemplified. A defendant cannot come to be examined on behalf of the plaintiff, under the name of examination (viz. by interrogatories put to him by a clerk in the examiner’s office, or a master in chancery, or a set of commissioners appointed for the purpose,) without having already been examined by the plaintiff himself, that is, by the law-assistants of the plaintiff himself, without the name of examination,—viz. in and by the instrument called the bill.
But, in general, the interrogation by bill—the examination that extracts the testimony in the shape of an instrument called an answer,—that examination, notwithstanding the time and opportunity it affords for concerting with an attorney the means of evasion and safe perjury, will be much more efficient than the examination performed through the medium of the judge or judges ad hoc (the examining clerk, the master, or the commissioners;) viz. the examination by which the testimony is produced in the shape of an instrument composed of depositions. More efficient? Why? 1. Because, by bill, the plaintiff, that is, his law-assistants, with the help of exceptions to the answer, and amendments to the bill, keep on examining the defendant till the plaintiff and his law-assistants are satisfied with the completeness at least (if not with the correctness) of the answer; or at any rate till, in case of contestation, they are informed by the judge ad hoc, that they have reason to be satisfied. 2. Because it is probable that, at least in the judgment of the plaintiff and his law-assistants, better care will in this respect be taken of his interests by those assistants, than by the examining judge or judges; even where half of the number are (under the name of a commissioner or commissioners) nominated by these assistants themselves: and certain, that, in the judgment not only of those assistants, but of every impartial person to whose consideration the case presents itself, better care will be taken by those same assistants, than (speaking of situations and not individuals) is likely to be taken by the judge ad hoc, if he be an examining clerk, or a master sitting in his closet;—that is, in both cases, by a person who, in the nature of things, cannot have any other wish or object, than either to get the business out of his hands as soon as possible, for the sake of his case, or to keep it in them as long as possible, for the sake of the fees.
After having then, and on every point of the cause, carried the examination of his adversary, the defendant, to its utmost length, in the more efficient mode (that is, in the mode which, in general, bids fairer for being efficient,)—is there any incident or consideration that naturally and reasonably may engage him to add to it by another examination in the less efficient mode? Such incidents or considerations may not in every case be wanting. Despairing of being able to extract the truth, where the defendant, with an attorney at his elbow, has month after month for concerting the means of successful evasion and safe perjury (the cause being, in point of locality, of that sort which, under the name of a country cause, affords examining judges, under the name of commissioners, that may be awake, instead of one that will be asleep;) it may happen, that, in the person of a particular lawyer, in the character of commissioner, nominated by himself, the plaintiff may see an examiner, who (with the advantage of vivâ voce interrogation—examination in a form which, calling for responses on the spot, cuts off the opportunity of mendacity-serving suggestion and premeditation) promises to his expectation a better chance for the effectual extraction of the desired truth, than could have been obtained in the mode of examination by bill, under the disadvantages above mentioned.
Another case that may happen is, that the defendant, after having given his answer, may go into some foreign territory; and a pair or a set of commissioners being to be sent into or found in, that foreign territory, for the purpose of taking, at the instance of the defendant, the depositions of extraneous witnesses,—it may be deemed more convenient to take the benefit of that opportunity, and extract the ulterior testimony of the defendant through the same channel, than, after adding amendments to the bill, to aim at the extraction of the ulterior testimony in the shape of a further answer to the bill.
2. At any rate, the case just mentioned will be comparatively an uncommon case. But what cannot be an uncommon case is, that, as against one defendant, the plaintiff shall have need of the testimony of another defendant.
But has he not, in the way of bill, been examining them both, and examining them to the utmost? Yes; but (not to revert to the rare incidents and considerations above mentioned) against the making use of the testimony of one defendant against another, there is this objection. As against himself, defendant Primus has been sufficiently examined: for, to extract from him such facts and circumstances as make for his own advantage, no counter-interrogation can be necessary. But as against defendant Secundus, defendant Primas has not been sufficiently examined: for, in order to extract from defendant Primus the whole of the facts and circumstances within his knowledge that make for the advantage of defendant Secundus, counter-interrogation may be necessary; and such counter-interrogation defendant Secundus has had no opportunity of administering.
But if, in behalf of the plaintiff, and as against defendant Secundus, defendant Primus has been examined in the character of a witness—if, pro tanto, his testimony has been extracted from him in the shape of depositions, as above explained;—he having been examined (as against defendant Secundus) in the character of a witness, defendant Secundus has had, or at least might have had, and ought to have had, the faculty of counter-interrogating him: of performing upon him that operation which, by an abuse of words, is called, in equity language, cross-examination (just as if it were the same operation that in common-law procedure goes by that name;) upon exactly the same plan, how imperfect soever, in which the operation so denominated is performed upon an extraneous witness.
Suppose two plaintiffs, and suppose either defendant (say, as before, defendant Primus) to be examined at the instance of plaintiff Primus as against plaintiff Secundus; the case may be much the same as the last. By the interrogatories put in the bill, and therefore put by both, as much of the facts and circumstances as make in favour of the one will have been extracted, as of those which make in favour of the other. True; if he to whom the truth, taken in its totality, is believed by him to be adverse, will consent to the interrogations necessary to the complete extraction of it: but such candour is too much to be in every case expected. Suppose, then, a failure of union in this respect,—the resource will be, on the one hand, an examination performed on defendant Primus, on the footing of a witness, at the instance of plaintiff Primus, as against plaintiff Secundus; on the other hand, cross-examination of the same defendant-witness by plaintiff Secundus.
Now, then, in regard to interest. Some interest, opposite to that of the plaintiff, defendant Primus must have, or be liable to have; else, even though the cause were what in equity law is called an amicable one, there could be no cause.* But it may be, that—though the two defendants have each of them an interest opposite to that of the plaintiff—defendant Primus, as to some point in dispute between the plaintiff and defendant Secundus, has an interest of his own, opposite to that of defendant Secundus.
In this case, supposing the interest to be of that sort which in equity law ranks under that name—and supposing the interest to be of that nature, that, by defendant Primus’s deposing to the prejudice of the interest of defendant Secundus, the interest of defendant Primus would be served,—the allowance of an objection to the admission of the testimony of defendant Primus, would, if made on the part of defendant Secundus, be consistent enough with the general principle.
But now, let it be at the instance of defendant Secundus, that the testimony of defendant Primus is called for: and let the interest of defendant Primus be such, that, by delivering the testimony so called for, his own interest would be disserved. Would an objection, on the score of interest, lie, in the mouth of defendant Primus, whose testimony is thus called for, to his own prejudice and against his own will?
With the general principle which gives to every man in the character of plaintiff the remedy by bill against every other man in the character of plaintiff, such objection would certainly not harmonize. For, among the distinguishing features of equity law, one of the most characteristic is, the affording to the plaintiff that power which the gentle hand of common law will not trust him with—the power of extracting testimony in his favour from the bosom of his adversary.
But,—on the ground of another principle, acted upon at least, if not openly recognised, in equity law,—testimony adverse to the interest of a defendant ought not to be extracted at the instance of any co-defendant—at the instance of any person but a plaintiff. From a plaintiff, testimony is not allowed by equity law to be extracted in any shape, by or at the instance of a defendant: why should that of a defendant be allowed to be thus extracted, by or at the instance of another defendant? Not from a plaintiff; because, were that allowed, the lawyers would be defrauded of the benefit of another cause, under the name of a cross cause. How should it, therefore, from a co-defendant? Would not a loss of the same nature be incurred? It would not be called a cross cause, indeed; but so long as it had the beneficial properties, names would not be worth thinking about.
The man of law is not consistent in anything—not even in rapacity. Where, at the instance of a defendant, the plaintiff is to be examined, they will not suffer it to be done without a cause on purpose: where, at the instance of a defendant, another defendant is to be examined, it may, perhaps, not have occurred to them to discover the same impediments.
PROBABLE ORIGIN OF THE ABOVE EXCLUSIONARY RULES.
We may now take our leave of the two Latin maxims, under which, when laid together, little less than the whole subject of the present Book may be comprehended:—
1. Nemo debet esse testis in propriâ causâ.
2. Nemo tenetur scipsum prodere.
Of each of them we see that—
1. In the character of a general declarative proposition, undertaking to represent the actual state of the established law, it is notoriously false; it swerves most widely and notoriously from the truth.
2. That, when compared with the ends of justice, and the dictates of utility in that behalf, it is, in so far as the fact declared by it is true, deplorably pernicious.
3. That, in delivering these rules (each of them) as true without exception, as Blackstone (for example) and so many others have done, they have uttered so many most palpable and notorious untruths; trusting—for the reception of the propositions in the character of true propositions, and for their own escape from the disgrace generally and worthily attached to improbity in that disgraceful shape—to the confusion in which the subject has been involved by their arts: and to that general and indefatigably cultivated ignorance, by which all who do not stand engaged by sinister interest to defend and propagate the misrepresentation, are debarred and disqualified from detecting it.*
4. That, in favour of the rule pretending to oppose an effectual bar to self-disserving, under the name of self-betraying, testimony, the plea of humanity and tenderness is a mere pretence.
5. That, by the unhappy success with which this pretence has been played off, a most pernicious and widely spread correspondent superstition has been propagated and rooted in the public mind: insomuch that the people, having been generally duped by this imposture, have been to such a degree deceived, as to regard with emotions of respect and gratitude the treachery by which their dearest interests have thus been sacrificed.
The truth of the above propositions is, it is presumed, tolerably well established. But, being thus mischievous, how came it to be established? By what considerations did it recommend itself to the minds of those by whom it has been established?
Interest, sinister interest, though in every country it will account so satisfactorily for the jurisprudential system, will not afford a separate account for every particular arrangement. In some instances, interest would really be neuter: in others, its indications might fail of being perceived: and wherever there is nothing to be got by thwarting public opinion, there is everything to be saved by conforming to it.
The maxims, or general propositions, to which the most extensively applicable notions of jurisprudential law have been consigned, have owed their origin (when not to official and sinister interest) to some play of the affections or the imagination—to some antipathy, sympathy, or caprice—now and then to some view of utility, though almost always either too scanty or too wide. For the times when these maxims have been formed have been times of inexperience—times in which, for want of the requisite mass of experience, something was omitted, that required to be either added to the extent of the proposition or subtracted from it, ere it could be rendered commensurate to the exigency of the public interest on that ground.
Suppose the maxim to have had its root in general utility. By the inordinate extent assumed by it, it would spread far beyond the root; including particular propositions in abundance, for which no root could be found either on the ground of utility or any other.
From the observation of the prevalence of self-regarding interest in every human bosom (a principle upon which the individual and the species depend for their preservation,) and of the undesirable influence which this principle was so apt to exercise upon human testimony,—judges—men delegated by the sovereign to dispose of the fate of others for whom they had no regard, sometimes by punishing their offences, sometimes by terminating their disputes—formed to themselves, at an early period, this general proposition or maxim,—No man ought to be a witness in his own cause. It is susceptible of more senses than one: but in no sense would it ever have gained footing, had it not been for the indifference of those by whom it was applied, to its effect upon the feelings and interests of those to whose concerns it was applied. At bottom, in the breast of the judge by whom it was first broached, it could have had no more warrantable origin (whether he were or were not aware of it) than that of a desire to save his own time and trouble: for, be he who he may,—let his existence have occupied this or that portion of space and time,—what he could not but be conscious of, is, that in those instances in which, having a real interest in forming a right decision, he has felt a real anxiety to render it conformable to the truth of the case,—in a word, as often as, in the character of the father or master of a family, he has been really solicitous to come at the truth, and the whole truth,—his conduct has never been such as this maxim prescribes. Pursue its application to the daily concerns of a family, and extend it to every family, you will find it incompatible with the existence of the species for any considerable length of time.
Whatever was the real reason,—the ostensible reason, the reason assigned to the public, is evident enough: the danger of deception—the danger lest the judgment of the judge should be misled, by testimony issuing from a source from which it was so liable to receive a direction deviating from the path of truth, the only path that leads to justice.
In this way the system of exclusion first introduced itself: attaching upon both parties in a cause, defendant as well as plaintiff; but in the first instance, and with greatest effect, upon the plaintiff, with whom every suit originates: upon the testimony of the plaintiff, considered as proffered by himself.
By favour of the weakness of the human mind, and the indistinctness and variability of language,—under the influence of supervening circumstances,—maxims (more especially maxims of jurisprudence) have received an extension, sometimes for the better, sometimes for the worse. By the maxim of English constitutional law, “the king can do no wrong,” nothing more was probably meant by the first framer of it, than to express the inviolability of that functionary: under favour of the ambiguity of the sense attached to the word can, some opposition lawyer of the day took occasion, by a happy exertion of professional art, to graft upon that manifestation of power a declaration of impotence. Had lawyercraft never exerted itself to any worse purpose, the demand for these pages would never have existed.
From the observation of the perturbation that would naturally manifest itself in the countenance of a malefactor, when questioned on the subject of his misdeeds, some judge (actuated by misapplied compassion, or possibly by corrupt partiality, or society in guilt) took occasion to desist from the inquiry, grounding the dereliction, perhaps, on a new and strained interpretation of the maxim, No man ought to be a witness in his own cause. If the practice originally rested on that ground, it did not long remain there; since a fresh ground was made for it in the narrower and more apposite maxim, No man is bound to criminate—or (in language more rhetorical, more delusive, and therefore better adapted to the purpose) to accuse—himself.
Be this as it may; the system of exclusions came in this way to be extended to the testimony of a defendant, considered as called for, against his will, by his adversary the plaintiff, or by the judge.
The case thus far under consideration is a simple case: parties, at most but two; one on a side. In a suit of the criminal kind, instituted and carried on by the judge alone, without the intervention of any individual in the character of plaintiff, the number of the parties is even reduced to one.
In a case thus simple—so far as exclusion takes place—there can be no room for doubt (as far as utility, or the semblance of it, is concerned) in which quarter (that is, in which of the two maxims above mentioned) the prohibition originates. Is it by the party himself that the judge is called upon to receive his testimony? Fear of deception is the reason or the pretence, and the maxim is, No man ought to be a witness in his own cause. Is it by the adverse party that the judge is called upon to receive, and (as it is not in the nature of the case that it should be delivered willingly) to compel, the testimony? Fear of vexation is the reason or the pretence, and the maxim is, No man is bound—or, No man ought to be bound—to criminate, accuse, or (to slide it on to non-criminal cases) hurt, harm, injure, prejudice, himself.
But, for this long time, causes have from time to time appeared, of a more complicated texture: causes presenting, either on one side (and on either side,) or even on both sides, parties in greater number: two, or a number indefinitely greater; but on this occasion, for exemplification, two will serve as well as twenty.
Suppose two on each side: what is to be done here? Apply the true reason, fear of deception, fear of vexation; you will now find cases in which they will not hold. No matter: the maxim is framed; it has attained its full growth: it has taken root of itself: it has become familiar to many a tongue, the head containing which saw no reason for it, nor ever thought it worth while to look for one.
If this be so, on this ground then we must look for the origin of the practice in one or other of the two maxims; giving up the idea of looking for a reason, in the conduct of men to whom it never occurred to look for a reason—to look for anything beyond the rule.
[* ]On the other hand, what must not pass unnoticed is, that, supposing the probability of mischief from this quarter were really preponderant, the mischief would in this case be more frequently realized than in the other. Why? Because to gain an undue advantage by the party’s single testimony, requires no more than the operation of that one person: whereas, to gain the same advantage by the false testimony of an extraneous witness, requires the co-operation of two persons—the party, and the extraneous witness his accomplice: each of them conscious of guilt—each of them liable to be betrayed by the unfaithfulness or imprudence of the other.
[† ]The Edinburgh Review, in an article which has been several times referred to, makes a long attack upon “the French method of interrogating persons under a charge,” with a view to the extraction of their self-criminative testimony.—It is not necessary to enter particularly into the objections advanced by the reviewer against this practice. They may all be summed up in two propositions, neither of which seems very likely to be disputed:—1. That an innocent man may very possibly be unable to furnish, all at once, those explanations which are necessary to make his innocence appear; and, 2. That, such inability on the part of a prisoner not being conclusive evidence of his guilt, it would be very wrong to treat it as if it were so.
[* ]In the supposition of a prosecution grounded on such evidence, there is nothing at all unnatural. On your single testimony, the jury (suppose) would not convict: but, though nobody but yourself and the perjurer was present, it may happen to your testimony to receive support from circumstantial evidence; or from extrajudicial confessorial evidence of the perjurer’s, coming from another witness in the shape of hearsay evidence.
[* ]That you may be sure he is not a plaintiff, that title is made over to the king; who has been rendered the fitter for the station, by his being already in possession of that of judge.
[† ]Vide Part III. Deception; Chap. VII. Restoratives to Competency. Supra, p. 433.
[* ]Since the 9 Geo. IV. c. 32, a man may prove a document to have been forged, notwithstanding any pecuniary interest he may have in so doing. If his signature, or any part of the body of a check on his banker, has been forged, upon which money has been paid, the banker sustains the loss; but if the witness has signed a blank check, which the prisoner has filled up without his authority, then he himself must sustain the loss, and not the banker.—Ed.
[† ]The practice in such cases is to fine the defendant so much, with leave to speak to the prosecutor: which means, that if the defendant will pay one half of the sum mentioned, to the prosecutor, no fine is imposed; but if the defendant is too angry to consent to this, the whole of the fine is imposed upon him.—Ed.
[‡ ]Had the suit been of that sort which is called an action (a civil action,) his testimony would not have been receivable. For in a suit of that sort, the plaintiff is called plaintiff, without ceremony.
[∥ ]See Dumont, Traités de Législation, and supra, Vol. I. p. 371, et seq.
[* ]In speaking of hundreders, dreading inaccuracy. I took care to limit the import of the term by the adjunct rateable. The caution was superfluous.
[* ]A phrase employed on a particular occasion in equity law.
[* ]Sole inquiry, if the pleadings are not reckoned: principal inquiry, if they are.
[* ]The advocate is now permitted to address the jury, by 6 & 7 Will. IV. c. 114.
—a parody such as Hamlet could little have expected from the bench of justice.
[‡ ]The chancellor is relieved from most of bankruptcy business, by the statutes for establishing and regulating the proceedings of the Court of Bankruptcy. See 1 & 2 Will. IV. c. 56, amended by 2 & 3 Will. IV. c. 114; see also 3 & 4 Will. IV. c. 47, and 5 & 6 Will. IV. c. 29.—Ed.
[* ]There is one case, according to Phillipps, in which the evidence of the defendant is allowed to be given in his own behalf, on the occasion of an action in the common-law courts. The case I allude to, is that of an action for a malicious prosecution, “where it seems,” says Phillipps, “to have been understood, that the evidence which the defendant himself gave on the trial of the indictment, may, under certain circumstances, be received in his favour on the trial of the action.” Phillipps, i. 66.
[† ]Is this a regular cause? an action? or is it not rather a sort of motion cause? By lawyers it is confounded with actions. But in the track of procedure, its march is that of a motion cause.
[‡ ]In one case, one sort of case,—viz. that where the object of the mandamus is to procure the filling up of a vacant office in a “borough or corporation,” or the due filling of it up where unduly filled,—provision has been made by a statute of Queen Anne (9 Anne, c. 20,) for putting this sort of procedure upon a footing analogous to that of an ordinary action. But in all the other sorts of cases, the remedy remains still in the state in which that statute found it.
[* ]Those criminal cases included, in which the judge unites to his own office that of plaintiff, i. e. prosecutor.
[* ]Book III. Extraction; Chap. XIII. Uninterrogated Testimony. (Vol. VI. p. 458.)
[* ]I have spoken of the case where, in connexion with oral testimony, written evidence is required, required at the hands of a person prompted by interest to suppress or withhold it. But to this purpose, neither common law nor equity, nor both together, are adequate: if a man who has money and resolution to stand out, when proceeded against in the regular course of civil procedure, ever produces a deed, or anything else that he would wish not to produce, it is his attorney’s fault. Powers such as unlearned magistrates exercise every day in cases of felony, with so much promptitude and success—powers for tracing effects from hand to hand—are altogether unknown to learned ones. Such promptitude accords not with the ends of judicature.
[* ]Amongst other purposes, it serves that of saving the lawyers in both stations the pain of an interview with the parties whose fate they are disposing of. The presence of an exasperated creditor is not more intolerable to an insolvent debtor, than that of either of them, but more especially of both together, is to learned benches. In the greater number of instances it would render a regular cause as prompt and unproductive, though the value in dispute were above £40,000, as now in a court of conscience where it is under 40s.
[† ]A man’s own deed, for example, will serve as an estoppel to his averring or proving anything in contradiction to it. Co. Litt. 171.—Ed.
[* ]This distinction has been abolished by 7 & 8 Geo. IV. c. 28.—Ed.
[† ]The frequency of this punishment has happily been much diminished by the 3 & 4 Will. IV. c. 44, the 7 Will. IV., & 1 Vict. c. 84, and other statutes. See Vol. VI. p. 382, note 13.
[* ]29 Geo. II. c. 30.
[* ]One law for one sort of metal; another for another: one law for lead, with its etcæteras, as aforesaid; another law for pewter. (21 Geo. III. c. 69.) Fancy not, that though pewter should have been stolen ever so much so the “satisfaction” of such two justices, it would be in their power to punish for the theft upon such evidence, or upon any evidence.
[* ]In the case of an indictment, where the offence comes under the denomination either of a felony, or of a breach of the peace, there is usually some person (and but one) who, before the justice of the peace by whom the preliminary examination has been performed, has, by an engagement called a recognisance, been bound to prosecute.a By this engagement the personality of the prosecutor is fixed.
[† ]Suprà, p. 436.
[* ]All the interests to be disposed of by the court, must be before the court, must have the opportunity of defending themselves. Will you join with me in my bill? No. Then I must put you upon the list of defendants.
[† ]No man is compellable either to make, or to join in, an affidavit. Parties are virtually compellable, by the interest they respectively have in the cause: the prosecutor, lest he should fail in obtaining the service demanded; the defendant, lest he should be bound to render that burthensome service. Extraneous witnesses are at perfect liberty; they take part with one side or another, as interest (self-regarding interest or sympathetic) prompts them: so that here you have no witnesses but partial ones, and these free from the check of cross-examination: their testimony delivered in the least trustworthy form that can be found for it.
[* ]If, after the evidence has been heard on the part of the prosecution, no case, has been made out against some one or more of the defendants, it is usual to allow him or them to be acquitted at once, so that they may be able to give evidence on behalf of the remaining defendant or defendants, if required.—Ed.
[† ]Master of the Rolls.
[‡ ]Court of King’s Bench.
[* ]Four co-claimants on an insufficient fund: two put themselves together on the list of plaintiffs: the two others are put by them upon the list of defendants: between plaintiff and plaintiff there is here the same opposition of interest as between defendant and defendant, or between either defendant and either plaintiff.
[* ]In equity, about half the number of causes that come before the court (at least in by far the busiest of the two great equity courts, the Court of Chancery) are amicable causes. At common law, there is scarce such a thing as an amicable cause. In equity, what is there that should be so much more prolific of amity than in common law? To friends, as well as foes, the younger sister is a still more merciless vampire than the elder. To the uninitiated, the problem will have all the air of an enigma. The solution will be to be found in the complicated nature of the greater part of the causes that come before a court of equity (the original courts not having powers adequate to the treatment of complicated cases;) so complicated, that, to save themselves from an infinite swarm of contingent suits, parties submit, by general consent, to the pressure of one actual one.
[* ]Blackstone scruples not to assert, in express terms, that “the law of England . . . . to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propriâ causâ.”—Comm. iii. c. 23 (p. 371.)
[* ]One law for one sort of metal; another for another: one law for lead, with its etcæteras, as aforesaid; another law for pewter. (21 Geo. III. c. 69.) Fancy not, that though pewter should have been stolen ever so much so the “satisfaction” of such two justices, it would be in their power to punish for the theft upon such evidence, or upon any evidence.
[* ]In the case of an indictment, where the offence comes under the denomination either of a felony, or of a breach of the peace, there is usually some person (and but one) who, before the justice of the peace by whom the preliminary examination has been performed, has, by an engagement called a recognisance, been bound to prosecute.a By this engagement the personality of the prosecutor is fixed.
[a ]2 Geo. III. c. 28, commonly called the Bumboat Act. confined to the Thames:—forty shillings’ worth of goods stolen on or near the Medway or Severn, being worth more or less than forty shillings’ worth of goods stolen on or near the Thames.See also the Thames Police Act. Also, 43 Eliz. c. 7, and 15 Car. II. c. 2, relative to wood-stealers.
[a ]Besides the prosecutor, the witnesses are bound in a recognisance of £40 by the justice, to appear at the trial and give evidence.—Ed.