The Online Library of Liberty

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

CHAPTER II.

EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE PLAINTIFF’S TESTIMONY BY ENGLISH LAW.

§ 1.

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.

§ 2.

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.

[* ]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.

Anno 1713. In the King’s Bench. Parker, chief-justice. “No one living in a hundred shall be allowed to give evidence for any matter in favour of that hundred, though so poor as upon that account to be excused from the payment of taxes: because, though poor at present, he may become rich.”—(The Queen against the Inhabitants of Hornsey, 10 Mod. 150.) This judge, whose sensibility to the idea of pecuniary interest was thus exquisite, was afterwards chancellor, with the title of Earl of Macclesfield.

On this footing continued the law till the year 1735 (8 Geo. II. c. 16, sect. 15. See also 22 Geo. II. c. 24; and 22 Geo. II. c. 46;) when a statute was made to alter it. Recognising for law the admission given to the testimony of the plaintiff supposed to have been robbed (though doctrines much better supported were then, and are still overruled every day,) it gives admission to the testimony of hundreders, but confines it to this single case. On all other occasions, hundreders, that is, all the good people of England, without exception, continue as certainly liars and deceivers as before.

[* ]A phrase employed on a particular occasion in equity law.

[* ]Sole inquiry, if the pleadings are not reckoned: principal inquiry, if they are.