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CHAPTER III.: EXAMINATION OF THE COURSE PURSUED IN REGARD TO THE DEFENDANT’S TESTIMONY BY ENGLISH LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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EXAMINATION OF THE 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.*
[* ]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.
[* ]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.
[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.