Front Page Titles (by Subject) 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. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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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. - 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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IMPROPRIETY OF EXCLUDING THE TESTIMONY OF A PARTY TO THE CAUSE, FOR OR AGAINST ANOTHER PARTY ON THE SAME SIDE. EXAMINATION OF THE COURSE PURSUED IN THIS RESPECT BY ENGLISH LAW.
Absurdity of the exclusion.
In this more complicated case, as in the former more simple one, the task of determining what is right, receives not from the complication any additional difficulty. Already, over and over again, the determination has been formed for all cases: but the difficulty of examining and exposing what is wrong, receives, from the same cause, an enhancement much to be regretted.
On this part of the field, as on every other, the rule of simplicity, the purest simplicity, will be seen to be the rule of utility and reason: the system of complication, to be a system of absurdity, inconsistency, and injustice, in all its shapes.
Of this case the modifications are—
I Plaintiffs more than one. First question: Shall each he admitted, if willing, to give testimony at the instance of the other? Second question: Shall each, if unwilling, be compellable to give testimony at the instance of the other?
II. Defendants more than one. In this part of the case the questions likewise are two, and of the same import. Shall each, if willing, be admitted—shall each, if unwilling, be compellable—to give testimony at the instance of the other?
In this case, over and above all accidental anomalies and incongruities, a curious absurdity is generated by the very nature of the general rule. Parties, how numerous soever, being excluded; while, in the character of an extraneous witness, the testimony of a single deponent is sufficient to warrant, and (if clear of contradiction, as well from within as without,) in a manner to command, decision;—a single tongue obtains thus a certain victory over a thousand, that would have sounded in contradiction to it, had they been suffered to be heard. Every defendant is, par etat by his station in the cause, a liar: a man who, if suffered to speak, would be sure to speak false, and equally sure to be believed. Every defendant is a liar. But every human being may, at the pleasure of every other, be converted into a defendant. Therefore, and by that means, every human being may, at the pleasure of every other, be converted into a liar, and, in that character, his capacity of giving admissible testimony annihilated. The jus nocendi, the power of imposing unlimited burthens by calumnies not suffered to be contradicted, is thus offered constantly upon sale, to every man who will pay the price for it.
Plaintiffs more than one—Examination of this case.
Examine the subject in detail, you will find the mischief, as well as the absurdity, diversified by no small variety of modifications; none having any reference to the ends of justice, all arising out of the different modifications of the form of procedure: modifications agreeing but in two things; their subservience to the ends of actual judicature—their repugnance to the ends of justice.
In the first place, let the multiplicity be on the plaintiff’s side.
I. Plaintiff’s testimony,—is it admissible in favour of a co-plaintiff?
1. In cases called criminal (from what has been brought to view already, it may be easily inferred) the multiplicity is not productive of any additional injury to the interests of truth and justice. Where there is but one plaintiff, one prosecutor, his testimony is not excluded by the interest he has in the cause. As the testimony of one is not, so neither would that of two or twenty, if there were so many; but there are not usually more than one.*
2. Case called civil: mode of procedure, action at common law. Neither in this case, plaintiffs (i. e. persons having need to appear in that character) being plural,—neither in this case, in the hands of a well-advised attorney, need there on that side be any dearth of evidence. Two persons attacked and beaten by four: each of the two brings his action, supporting it by the testimony of the other. Two suits are thus manufactured out of one. So agreeable a circumstance may help to account for the establishment of the rule, and may be not unfriendly to the preservation of it.
But suppose a claim of the pecuniary kind, with or without injury—in short, a demand, preferred by two persons linked together by the tie of one common title: two tenants in common, two joint-tenants. Here, either both individuals are obliged to join in the suit, and thence become both of them plaintiffs; or, if one be plaintiff, and excluded on that score, the other is an interested witness, and excluded on that other score. True; but in the character of a purge to carry off the fæces of interest, the virtue of a release has been already brought to view:† to each of them let this specific be administered by turns; the peccant matter is discharged out of him, and he becomes a good witness for the other. True it is that the specific, admirable as it is, is not equally well adapted to the constitution of every case. Suppose two persons partners in trade; there might be an awkwardness in the arrangement, were each partner, as the exigency of the suit required, to give up his share of the business to the other.
To pursue the inquiry through the whole field of actions and actionable cases, would probably be thought rather a superfluous task. What, for the purpose of illustration has already been brought to view, may appear proof sufficient for the establishment of three facts: that in one set of cases, admission for the testimony of persons in the situation of plaintiffs may be gained; that in another it cannot be gained; and that in neither has the distinction anything to do with the interests of truth and justice.
A corollary is, that, in some cases, there may be a convenience in this sort of community of interests. As one good turn deserves another, each associate may thus, in his turn, discharge himself of his peccant matter, for the benefit of the other: whereas, when, in point of interest, a man has the misfortune of standing alone, it may not be altogether easy for him to discharge his bosom of peccant matter, for want of a friendly bosom to empty it into.
Could anything be done by a sale without warranty? or if with warranty, might not the interest attached to the warranty be purged off, as well as interest in other shapes, by the universal elixir? Apply this to immoveables and to moveables: to property, real, personal, and incorporeal: learning, curious learning, in any given quantity, might be spun out upon this ground.
3. Case called civil: mode of procedure, bill in equity. The mode of pursuing, or professing to pursue, truth, being altogether different, according as, in pursuing it, you pronounce the word law, or the word equity,—a different field is thus opened for the exercise of professional ingenuity. The virtue of the purge is no less acknowledged in equity than in common law; but if reciprocity be the condition, and the suits, instead of contemporary, are to be successive, the condition of those who have to wait will be still more awkward here than at common law.
Equity procedure is peculiarly adapted to the treatment of complex cases: or, to speak more properly, when a case becomes to a certain degree complex, in any mode pursued at common law it is so utterly impossible to administer anything that shall have so much as the semblance of justice, that cases of this description are shaken off, by necessity, into the lap of equity.
If, in the field of common law, the inquiry might find matter for one volume,—on the ground of equity law it might find matter for another. Of the matter peculiar to equity, I shall content myself with giving one specimen: for illustration it will be sufficient, and more will hardly be desired.
In equity procedure, in a multitude of cases it will happen, that whether a man shall be plaintiff or defendant is matter of contingency, matter of choice, as parties happen to agree.* In regard to co-defendants, the rule in this behalf (as there will be occasion to state presently) is, that they cannot, in favour and at the instance of a plaintiff, be made to testify one against another:—but, for himself, any defendant can employ the testimony of any other co-defendant, as extracted by the interrogatories administered to him on the plaintiff’s side. Suppose, then, three persons, Primus, Secundus, and Tertius, who, in the most natural order of things, would have been co-plaintiffs; but Secundus and Tertius stand in need of each other’s testimony: instead of plaintiffs, let them be made defendants, leaving the part of plaintiff to be played by Primus alone, and the problem is solved.
II. Plaintiff’s testimony,—is it compellable at the instance of a co-plaintiff?
The modifications of this case are soon disposed of.
1. Cases called criminal. On an indictment (as already stated) it is neither natural nor usual that there should be more than one real plaintiff, more than one prosecutor. Supposing more than one (two, for example,) it is not natural that they should have become such, without such an agreement as would be incompatible with compulsion at that time. Men who agree one day, may, indeed, disagree the next; but if both are bound to prosecute, both are bound also to give evidence. But, bound or not bound to prosecute, no individual being in a criminal case recognised in the character of plaintiff, there is no individual (defendants excepted) who is not bound to give evidence.
The case is, in this respect, much the same on an information. It is different, and indeed opposite, where the prosecution is by motion for attachment. In those cases, all testimony is received in no other form than that of affidavit evidence. On trial by affidavit, everybody testifies that pleases; add—and nobody that does not please.†
Affidavit evidence is moreover (as has been already observed) the sort of evidence, the only sort, that is received on the preliminary and worse than useless inquiry, which, for the benefit and by the hypocrisy of the man of law, under the mask of tenderness, has been made to precede the trial on an information: as likewise on the supplemental inquiry, by which, in case of conviction, as well on indictments as on information, the trial is succeeded,—and on which, on the occasion of the original offence, the defendant may, without other evidence, be convicted of succeeding ones. For it is a rule—an inviolable rule, with learned judges, never to receive testimony when it is for their own use, but in the most untrustworthy of all forms. Compulsion is, therefore, out of the question in all these cases.
In the case of felonies, on the preparatory inquiry performed by a justice of the peace antecedently to the trial, the testimony of every person without distinction is compellable, at the instance, as well as by the authority, of that magistrate. Thence, supposing in the first instance two prosecutors, and reluctance to supervene on the part of either, his testimony might, at the instance of the other, be compelled notwithstanding; viz. by the authority of the magistrate.
In the same cases, the same obligation extends to the other preparatory inquiry,—viz. that before the grand jury; supposing it preceded by the inquiry before the justice of the peace.
But in such indictable offences as do not come under the denomination either of felonies or breaches of the peace, no such previous inquiry before a justice can take place: nor in felonies, though usually, does it necessarily take place: still less in breaches of the peace. In these cases, therefore, probably, as in attachments certainly, justice is, on this occasion as on so many others, left to take her chance. On the inquiry before a justice, the mode of compelling attendance, for the purpose of testification, as well before the grand jury as on the trial before the petty jury, is by an engagement called a recognizance; into which, prosecutors, as well as extraneous witnesses, are by that authority, and on that occasion, compelled to enter: one person usually (possibly, in some instances, more than one) undertaking, by one recognisance, to prosecute as well as testify; another, or others, undertaking, by another recognisance, simply to testify, nothing being said of prosecuting.
Is there any other mode of compelling the appearance of a man, in either character, before a grand jury? None that I can find in the books. I know of none.
2. Cases called civil: procedure, by action at common law.
Compulsion is here altogether out of the question, as between plaintiff and plaintiff. We have seen how, in some cases, two men, having each of them the sort of interest that a plaintiff has in the event of the cause, may each purge himself of the legal part of that interest, while the moral part keeps its hold as firmly as ever in his breast. But where the patient is a human creature, this, like other purges, supposes consent: a suitor cannot be purged with a drenching-horn, like a horse.
3. Cases called civil: procedure, by suit in equity.
In the case of a single plaintiff, we have seen, that in that character a man can never be compelled to give testimony,—and also for what reason. The same reason would, if there were a thousand of them, be equally conclusive.
Defendants more than one—their testimony in favour of one another, how far excluded by English law.
I. Can the testimony of one defendant be received in favour of another?
1. Cases called criminal; procedure, by indictment or information.
In these cases, as in all others, the station of defendant is a situation to which the plaintiff nominates: it depends not upon the nominee to resign it; if so, it would not be often filled. For the purpose of the principal inquiry, called the trial, a man cannot indeed, under this mode of procedure, be stationed in it without the fiat of a grand jury: but, unless the story appear preponderantly improbable, that fiat will naturally be (at least it ought to be) commanded by the evidence: and it is the characteristic of this species of inquiry, to hear evidence but on one side.
In this case, when the inquiry is the principal one (the trial,) can a defendant, with his own consent, at the instance of a co-defendant, give testimony in favour of such co-defendant? No, and yes. No, in words: yes, in effect. No: for in that situation, let a man say what he will, it is not evidence. No oath can be administered to him: not a question, as we have seen, can be put to him by anybody. Yes, in effect: for to the defendants, to each of them, be their number what it may, liberty is always given to say, or to read, whatever he may think proper, under the name of his defence. Being allowed to say whatever he thinks fit,—if, in what he says, there be anything capable of operating in favour of a co-defendant,—what he thus says in favour of another, will naturally operate upon the mind of the jury with no less persuasive force—will naturally, if there be any difference, operate with more persuasive force—than anything which, more particularly or exclusively, operates with the like tendency in favour of himself.
As to affidavit evidence, and as many inquiries (whether principal, preliminary, supplemental, or sole) as are carried on in this uninquisitive mode, and as many sorts of demands (penal or non-penal) as are judged of by the light of this most commodious sort of evidence,—we shall find, in the case of co-defendants, admission standing upon the same easy footing as we have seen it stand on in the case of co-plaintiffs. With the pen of an attorney to speak through, let a man present himself in the garb of a witness,—be he who he may, party or not party, interested or not interested, perjured or not perjured,—be the occasion what it may,—thus introduced, all doors and all ears are open to him.
2. Cases called civil: procedure, by action at common law.
In the case of plaintiff and co-plaintiff, the efficacy of mutual good offices and of purgative releases has already been brought to view. But, even in that more manageable case, we have seen it limited; and, as between defendant and co-defendant,—if the action be of the number of those in which conduct of an injurious nature is imputed,—the specific is, of course, in this difficult case, no more applicable than in that more easy one.
In a case of this sort, as it is not necessary for the defendant or defendants to be present during the trial, so neither is it altogether natural or usual: whatever a man, guilty or not guilty, can find to say in his defence, he in general regards it as more eligible to trust to the learning and eloquence of his advocate, than to any chance he may have of gaining credit for anything he might wish to say, either in his own favour, or in favour of a fellow-defendant, in the character of testimony, though not allowed to be delivered under the technical name of evidence. The sort of presumption here supposed, is of very rare occurrence. Certain it is, that it will not experience either much inward satisfaction, or much outward encouragement, from the learned and eloquent gentleman, to the remuneration of whose learning and eloquence his money (if he has any) has been applied. If he is guilty, their opinion will be (and in this case it will probably be a just one,) that the duty of demonstrating his innocence cannot, with equal probability of success, be either trusted exclusively to any but themselves, or so much as divided with themselves. If he is not guilty, any endeavour which he may be inclined to use to make known his innocence, will naturally be regarded as a sort of invasion of their rights. Success depends not upon truth and justice, but upon that sort of learning which has been created for the purpose of being made the subject of a monopoly: of that monopoly, of which, at the expense of so much money as well as so much labour, they have obtained their share.
Where punishment of so high a nature as that which is attached to offences of the rank of felony, is at stake, the judge is naturally averse to the task of suggesting any observation, the tendency of which may be, unjustly, or even justly, to diminish the chance which the defendant may have of making his escape from the severity of the law. To the case between individual and individual, in which one cannot lose but the other must gain, this sort of tenderness does not (for the demand created for it by popular prejudice does not) extend. In summing up the evidence on the trial of an action, the judge would say to the jury without scruple, “Gentlemen, the defendant Nokes has said so and so in behalf of defendant Stiles; but the law requires you to lay all this out of the case; for it is not evidence.”
In all purely pecuniary cases, to which the virtue of the mendacity-fuge diaphoretic does not extend,—the natural effect which, in the case of a plurality of defendants, results from the exclusion put upon the testimony of individuals in this situation, has already been brought to view. In English jurisprudence, in the class of cases here in question, this mischief operates with undiminished strength. To rid himself of a troublesome witness, an unscrupulous plaintiff has no more to do than to put him upon the list of defendants.* Seeing a man upon that list, a learned judge wants nothing more to satisfy him, that the testimony of that man (be he who he may) is unworthy of all regard; and to engage him, of course, to give his assurance to the jury to the same effect.
If, indeed, to the same purpose, on the same occasion, the testimony of the same individual had been presented in the form of an affidavit, unchecked by cross-examination, the case would have been very different: it would then have been good evidence: and, like the testimony of any extraneous witness, have passed with him for what it was worth.
Nay, but the plaintiff has no such power: we are aware of the mischief, and have provided against it: he may put a witness, if he pleases, upon the list of defendants; but if no evidence is given that affects such defendant, his testimony is received notwithstanding.
Yes, verily: provision you have made; and against this abuse with about as much felicity and about as much zeal, as against the rest of that mountain of abuse which is the source and measure of your profit. Every man who has a farthing to gain by lying, will always be sure to he: this is your theory: this is what you are bound by: you are estopped from questioning it. If he be not, on what pretence do you exclude a defendant from delivering his testimony at the instance of a co-defendant? If, in a case affording, in point of moral interest, two plaintiffs, one of them has been cleared of legal interest, by the name of prosecutor, or by the relaxatory purge,—and the purge, though it has given him competency, has not given him veracity along with it,—to strike the defendant witnesses dumb, if there be a dozen of them, what has he to do, but to say a word or two against each?
Nay, but the case you are thus bringing out against us is an extraordinary case.—Not so very extraordinary: but, however, take this, which is but too ordinary a one. Plaintiff, there is but one: witness, an extraneous witness: witness, but that one, which is sufficient. But this one witness is a liar: bound to the plaintiff’s side, either secretly by the only interest that you acknowledge to have any influence, or by any or all of the other kinds of interest put together: is it more unreasonable to suppose one liar on this side, than a dozen on the other? For if you are not sure of their being liars, or even if you are, what should hinder you from suffering them to be heard?
But it is vain to argue without data. The matter in dispute being given (and now let the case be a purely civil one,—nothing of injury supposed,) the question is, whether the testimony of the defendant, called for by a co-defendant, will or will not be trustworthy. His trustworthiness depends,—not upon the cause, or the relation the man bears to the cause,—but upon the station, the judicial station, which, at the instant of pronouncing the decision, you, his judge, happen to occupy. On this, as on so many other subjects, tell me your station, I will tell you your opinions: unless your station be ascertained, you know no more what your opinions are on the bench, than you knew what they were while at the bar, till you knew whether it was for the plaintiff or the defendant you were retained.
Are you a Chancellor, or a Master of the Rolls? The man is a true man. Are you a judge of the King’s Bench? He is a liar, and one that would deceive your jurymen, as sure as you suffered them to hear him. Being a judge of the King’s Bench, are you, moreover, a commissioner of the great seal? The man is trustworthy or untrustworthy, according as you sit on the one side or the other of a narrow passage. Are you a baron of the Exchequer? His character changes backwards and forwards, without your being at any such trouble as that of crossing the passage:—from the same bench, and without stirring, you serve out law or equity, whichever happens to be called for: if it be law, the man is a liar; if it be equity, he speaks true.
Tell us, then, what is law—tell us what is equity: these are both of your own making: each, whatever you are in the mood to make it.
The tissue of inconsistencies and absurdities is not yet at an end. In what court is it that the testimony of a defendant, called for by a co-defendant, is not receivable? In the court where, in case of mendacity, the most effectual means of exposing it are in use. In what court is it that the testimony from that same source is receivable? In the sort of court where no such means are suffered to be employed. In a common-law court, there is cross-examination. True; that is to say, provided a jury be there to hear it,—not otherwise. In a common-law court, there is cross-examination: in an equity court, there is cross-examination: in both, the cross-examination is the same sort of thing, in the eyes of those to whom the most different things become the same thing when called by the same name. Common-law cross-examination,—questions put in public, by the advocate of the party, to the deponent (were he to depose,) after the questions put on the other side, with the answers to them, have been heard. Equity cross-examination,—questions put in private, by a clerk, who, unless bribed, cares not a straw for either party, nor for anything but the getting through his task with the least possible trouble: questions framed for him by a person to whom it was not possible to know a syllable of what the deponent would say, in answer to questions put on the other side.
Tell me then, once more, on what bench and under what name you sit, and I will tell you what you will think; or at any rate (if the term thinking be improper) what you will do. Is it your business to cancel papers,* or keep rolls?† The sham cross-examination is the only one that you will suffer to be made: and it is upon the strength of this mock security, that you will give your confidence to the defendant’s evidence. Is it your business to hear pleas before the king himself, when he is not there?‡ Nothing less than the true cross-examination will serve you; and with this best security at your command, forasmuch as you can get nothing better,—in this case, to make sure of hearing the truth, and the whole truth, you shut your ears against the evidence. Are you that double sort of man called a lord commissioner of the Great Seal; or that other double sort sort of man called a baron of the Exchequer? The true and the sham cross-examination are the same thing to you: but, at any rate, with the good security in your hand, your ears are shut against the evidence: with the the bad security, they are open to it.
Be this as it may,—whether you are the single sort of man, or the double sort of man, you are at any rate that other sort of man, in whose judgment (where it is by himself that the decision is to be formed,) no examination at all, is a better way of coming at the truth, and the whole truth, than either the good mode of examination or the bad one. Should the man be sitting or standing opposite you, you know better than to put a single question to him, or to suffer one to be put to him by anybody else. It must be through the pen of an attorney, if you hear him; and through that medium you hear anybody.
Instead of missing, would you wish to find, the truth? Instead of common law and equity, would you wish to administer justice? Instead of learning and science, would you wish to judge according to common law and common honesty? Go to any court of conscience,—go to the study of any country justice: learn there to forget your learning; in that oblivion you will find the beginning of wisdom. Among the shopkeepers, more surely; for before their court hangs a curtain, behind which (happily for the great body of the people) eyes such as yours have not been allowed to penetrate. In the study of the unlearned magistrate, more sparingly: you must there content yourself with such remains of wisdom as your vigilance has not yet succeeded in rooting out of it.
II. Can the testimony of one defendant be compelled at the instance of another?
1. Common law. Case, criminal: procedure, by indictment or information: occasion, the principal inquiry, the trial. The answer, in this case, is clearly in the negative. In the very nature of the case, obligation to testify supposes interrogation. But on the trial, no question can be put to a defendant by anybody: therefore, not by a co-defendant.
2. Law, common or equity: case, criminal or civil: procedure, by indictment or information: inquiry, sole, principal, preliminary, or supplemental: form of testification, affidavit evidence. Whenever the evidence is delivered in this form, the answer must still be in the negative. No interrogation, no compulsion, and affidavit evidence is, being interpreted, uninterrogated evidence.
3. Common law: case, civil: or (if in some respects considered as criminal, and spoken of under the name of penal,)—procedure, still by action. Answer still in the negative! No interrogation, no compulsion: no question can be put to a defendant by anybody; therefore, not by a co-defendant.
Defendants more than one—their testimony against one another, how far excluded by English law.
Can the testimony of one defendant be compelled, to the disadvantage of another?
1. Criminal cases.
Procedure, by indictment: occasion, the principal inquiry, the trial.
To an individual in this situation, no question, as already observed, can be put by anybody: therefore no evidence, to the prejudice of one defendant, can be thus extracted from any other. In regard to any statement that may happen to flow spontaneously from the lips of a defendant, speaking in his own defence (as above,) the same observations as above are applicable: with only this difference, that, when anything that falls from a person in this suspected situation presents itself to the judge as operating to the disadvantage of another individual in the same predicament,—the nullity of it, in the character of evidence, will, by an English judge, be much more apt to be noticed and held up to view, than in the opposite case.
Where the procedure is by information there is no other difference in this respect than what may be supposed to be produced by the inferiority of the maximum of punishment in this case, in comparison with the maximum of punishment applicable in cases prosecutable in the way of indictment. Seldom indeed, if ever, in the case of an information, will the occasion for any such remark on the part of the judge present itself.
Procedure, by attachment: evidence, affidavit evidence. Here, the evidence being all read of course, the judge makes whatever application of it he thinks fit. In the cases which we shall come to presently, in which the testimony is also presented to the judge in the form of ready-written evidence, it is not heard by the judge, except in so far as, for that purpose it is especially called for: and the question, for or against whom it shall be employed, resolves itself into the question, at whose instance it shall be read. The evidence being, according to his own theory, of the deceptitious kind, he is, according to that same theory, constantly deceived by it.
So much for persons actually in the situation of defendants. But, of two persons having borne in the same criminal transaction exactly the same part, it may happen that one shall be put into that perilous situation, the other not. This accordingly is the case, as often as, by a reward, of which impunity forms the whole or a part, one of two delinquents is engaged to come forward against another, in the character of an extraneous witness.
Of this ground of suspicion and untrustworthiness, and of the use which English law scruples not to make of this most suspicious of all imaginable evidence, to this most dangerous of all imaginable purposes, notice was taken at the outset of this research.
But what is done in this way in the strongest of all cases, is done in the same way in all other cases of inferior strength and the like complexion. To dwell upon any of these inferior cases, would be an anticlimax. Such admissions are most perfectly consistent with that gigantic exception: all of them as completely repugnant to the general rule.
2. Civil cases; procedure, in the way of action at common law.
In this case, also, no question can be put to a defendant in behalf of anybody; therefore not in behalf of a co-defendant.
3. Case, civil: law, equity law: procedure, by bill in equity.
On this ground, confusion is in all its glory: the powers of darkness have mustered all their force.
At common law, though testimony, in wholesale quantities, is pronounced deceptitious without knowing what it is,—still, take any given lot, it is either capable, or incapable of being true: it is not capable and incapable at the same time.
The absurdities and injustice of common law were not enough for equity: she has made improvements: and in equity, the self-same statement concerning a matter of fact—the self-same proposition, is true and false at the same time: for or against A, it is true; for or against B or C, it is false. You who read this, were you sitting this day twelvemonth, at one o’clock p. m., in your study? and in your answer, or your depositions, do you declare as much? It is true, as against yourself: it is false—false beyond all possibility of being true—as against me, a defendant along with you in the same cause.
Look to the origin of this difference, you will find it in the joint influence of several concurring causes:—in the practice of pursuing, on the occasion of such cause, two modes of collecting evidence, by answer and by depositions, agreeing in nothing but their unfitness for the purposes of truth and justice: in the confusion pervading the whole texture of the answer—claims and concessions confounded with affirmations and denials,—what a man says in the character of a party, with what he says in the character of a witness,—propositions concerning the question of right, with propositions concerning the question of fact.
Wherever the object has been to relieve, and not to plunder the afflicted, to mitigate, and not to aggravate their sufferings—where the object has been to bring to light the truth, and the whole of the truth, for the purposes of justice,—where such have been the objects, and the obtaining the simultaneous presence of all parties in court has been neither physically nor prudentially impracticable, the mode of collecting the evidence everywhere has been alike simple and effectual. Each party has been admitted to declare so much of what he knows, as promises to operate in favour of his own interest; each party, at the instance, at the interrogation, and thereby to the advantage, of every other:—the testimony of each party in his own behalf, allowed to be delivered, and received for what it is worth; the testimony of each party, when so delivered, allowed to be controverted by every other party, scrutinized by counter-interrogation, opposed by counter-evidence.
Such, accordingly, is the practice in the courts of conscience: such is the practice of the unlearned judges called justices of the peace, except in so far as, by exclusions forced upon them by their learned superiors, they have found themselves compelled to swerve from it. Such is even the practice on trials before juries; deduction made of the still more extensive exclusions, by which the budget of evidence is regularly defrauded of those parts of its contents which are likely to be most valuable; viz. the testimony of those individuals, to whose perceptive faculties the facts belonging to the cause were most likely to have presented themselves.
In equity (as already observed,) in one and the same cause, testimony is delivered in masses of two shapes, each different from the other, as well as from the only good one. One mass, in the form of what is called an answer, containing the ready written testimony extracted from a defendant by the ready written questions contained in the bill—an instrument drawn up by the plaintiff’s law assistants, and without his perusal (or at least without his signature) exhibited in his own name; and in which those questions, the answers to which are expected to be true, are preceded by charges—a sort of testimony, which (as already observed) is allowed to be true or false at pleasure. In this shape, testimony is not called for at the hands of any persons that are not parties, nor, among parties, at the hands of any persons that are not defendants in the cause.
At common law, though the best evidence is so carefully weeded out, yet when once a lot of evidence has been permitted to come into existence, every use that is capable of being made, is permitted to be made of it. Capable of being true with relation to any one person, it is allowed to be equally capable of being true with relation to everybody else. Far otherwise is it with the sort of evidence extracted under the name of answer, by the process employed (as above) by the practitioner in a court of equity. The answer (the part of it in question) is good as against me, the defendant whose answer it is. But is it good, ought it to be acted upon as good, as against you, another defendant along with me in the same cause? To both questions the response must now be in the negative. Of what nature is the clause in question? An acknowledgment, having respect to the question of right? or an assertion, a deposition, having respect merely to the question of fact? If it be an acknowledgment of right, my right to give up a claim of my own is indubitable: but that I ought not to have any such right as to give up any claim of yours, is equally indisputable.
Is it a statement concerning a matter of fact? Even here, its title to be admitted, as against you, in the character of evidence, will appear to be bad, or at least questionable. Let the fact be even of the number of those, in relation to which, at the time at which it happened, I myself was, if I speak true, a principal witness—a fact which, if I am to be believed, I saw with my own eyes. That against myself, in relation to any claim that I have made, it may, and without any danger of injustice to my prejudice, he taken for true, is manifest enough: but as against you, and to the defeating of any claim of your’s, has it an equal title to be taken for true? If any, certainly not an equal one; for there is this difference: you, in your situation, possess not that faculty of counter-interrogation, which, for defence against injustice, is in your situation necessary, but in mine not. By misconception, I may have been confessing that to be true, which in fact was not so. In the view of favouring the plaintiff at your expense, and at the expense of truth and justice, with or without his privity, I may have been confessing that to be true which you knew at the time to be false. It ought not, therefore, to be taken for true as against you, without your having the faculty to controvert it, in the event of your regarding it as false: to controvert it, viz. by questions put to me in the way of counter-interrogation—of cross-examination. But questions in this way, the forms of the court do not, on the occasion in question, allow you to put to me. What they do allow and require is, that each of two defendants shall, in an instrument called his answer, make response to all such proper questions as the plaintiff in his bill shall have propounded to him: what they do not allow is, that either of two defendants shall, in this stage of the cause at least, put any question to the other.
In the first of these two cases, the exclusion is just in itself, would be just on every occasion, and in every court. But what is it that is here excluded? Not testimony, but unjust power: a power on my part to give away your rights.
In the other case, the exclusion may also be just: but if it be, it is so in no other than a hypothetical and relative sense, relation being had to the forms of the court—the forms actually in use. Setting aside that casual and adventitious and deplorable circumstance, the proper course is, not to exclude the one of two sets of evidence, but to admit the other: not to prevent my deposition from being taken into consideration as against you, but to allow you to put counter-questions to me, as you might do if I were not a party in the cause—if the interrogations put to me, were put to me in the character of an extraneous witness.
The judge would not then be reduced, as now, to the necessity of denying, explicitly or implicitly, a proposition which the weaker powers of Locke bowed down to as impregnable—it is impossible for the same thing to be and not to be. He would not have been reduced (as now he is every day) to declare, in deeds if not in words, that the same evidence is certainly true and certainly false. To the philosopher, by whom nothing was to be got by it, the task was an impossible one: but to the lawyer, into whose lap every day’s profit is poured by every day’s nonsense, neither this nor a greater absurdity (if the nature of things affords one) ever presents the smallest difficulty.
The other shape, in which, in the same courts, testimony is delivered, is that of a mass of depositions; a name extending elsewhere to all testimony, but confined, in English law jargon, to the designation of such testimony as is delivered in that particular shape. Answer is the name appropriated to the testimony delivered by a defendant, in reply to the questions propounded to him on the part of the plaintiff in the initiative instrument called the bill. Depositions is the name appropriated to the testimony delivered by a witness, in reply to the questions put to him vivâ voce in a closet, by a sort of judge or set of judges, whose authority is confined to the collection of testimony, without power to make use of it.
This mode is a mode appropriated to the collection of the testimony of persons spoken of under the name of witnesses. But in this same way a defendant, every defendant, may be examined as a witness:—after a course of examination, the duration of which is always counted by months, not unfrequently by years,—re-examined in another and much worse mode, under this other name.
Examined: but now, at whose instance, and for what purpose? By the bill, at the instance of the plaintiff only; against him the defendant only; his testimony not being at that time obtainable at the instance of anybody else, nor employable as against anybody else, that is, as against any other defendant,—as we have been seeing, and for the relatively good reasons that we have seen. By the interrogatories (the name given to the questions now put to him by the examining judge or judges,) he may be re-examined at the instance of the plaintiff or plaintiffs, as against any other defendant or defendants; he may be examined, now for the first time, at the instance of any other defendant or defendants, as against the plaintiff or plaintiffs, or as against any third defendant or defendants.
Collected in this mode, his testimony may now be employed against others beside himself: employed, and with propriety; but if with propriety, for what reasons, and thence on what conditions? On condition that every person against whom it is employed, shall have the faculty of employing his exertions for the correction, completion, and (upon occasion) contradiction of it, by counter-interrogation and counter-evidence. In this mode,—is it at the instance of the plaintiff that he is examined? This faculty the plaintiff possesses of course: for—with relation to the self-serving testimony, which the defendant, as far as conscience and prudence will give him leave, will not fail to bring forward—the interrogatories formed by the plaintiff’s agents, and from them received and employed by the examining judge or judges, will have an effect analogous to that of the counter-interrogatories propounded to, and in the case of, an extraneous witness.
On this footing stands, it should seem, the law of reason; and on this same footing, for aught I know, may stand the actually established law.
But, to the faculty of administering to a defendant interrogatories from all those various quarters to all those various purposes, actual law adds a limitation, a saving clause: saving all just exceptions. These exceptions, self-styled just,—what are they? Exceptions on the score of interest. Of what interest? This is more than I can undertake to answer, at least with any full assurance. A defendant without interest in the cause? How can that be? It he is without interest, this very exemption from interest is recognised as a circumstance, the effect of which is to preclude the plaintiff from dealing with him in the character of a defendant.
On the score of interest, a defendant not to be re-examined against himself, at the instance of the plaintiff? Why not? Good or bad, the interest did not exclude him from being examined against himself at the instance of the same person the first time; why should it a second?
On the score of interest, a defendant Primus not to be examined against himself, at the instance of defendant Secundus? Why not?
Applied to the present case, the import of the word interest is indistinct and obscure. Speaking of a defendant as having an interest in some cases (viz. in the cases in which, on the score of that interest, his testimony is excluded,) implies that there are other cases in which he has no interest, viz. those cases (for such there are) in which his testimony is admitted. But a defendant—a party in the cause—and yet without interest in the cause? How can that be?
But it may happen (it may be said,) and every now and then does happen, that a person is actually made defendant in a cause in which, whether he be thought or no to have an interest, he really has none; for in every cause it rests with the plaintiff to put upon the list of defendants any person and every person he thinks fit. True; but when cases of this description are laid out of the question, the difficulty remains notwithstanding. In this case (supposing the existence of it ascertained,) the name of the defendant, the name which ought not to have been put upon the list, may be struck out of it. Those cases in which the defendant has clearly no interest to any sort of purpose, being set aside, there remain cases in which he has not, and at the same time has, an interest,—has an interest, to the purpose of the continuance of his name on the list of defendants,—has not an interest, to the purpose of his testimony’s being regarded as inadmissible.
1. First, let it be proposed that he be examined at the instance of the plaintiff. It must then be either as against himself, or as against another defendant or defendants: for though two or more persons happen to find themselves together on that side of the cause, it may happen to them to have interests as opposite to each other, as that of any one of them to that of the plaintiff: inasmuch as it rests with the plaintiff to put upon the list of defendants whatever persons he pleases.
Moreover, what may also happen is, that on the plaintiff’s side of the cause there may be more persons than one; say two: that, as between those two plaintiffs, there may be, to some purpose or other, an opposition of interests, as between two defendants; for though no person can be upon the list of plaintiffs without his choice, yet so it may happen, that in consideration of a community of interests in some respects, two natural adversaries may enter into this sort of alliance.*
On this occasion, as against the defendant himself, it is a conceivable case that the plaintiff may wish to examine the defendant, though a case not likely to be frequently exemplified. A defendant cannot come to be examined on behalf of the plaintiff, under the name of examination (viz. by interrogatories put to him by a clerk in the examiner’s office, or a master in chancery, or a set of commissioners appointed for the purpose,) without having already been examined by the plaintiff himself, that is, by the law-assistants of the plaintiff himself, without the name of examination,—viz. in and by the instrument called the bill.
But, in general, the interrogation by bill—the examination that extracts the testimony in the shape of an instrument called an answer,—that examination, notwithstanding the time and opportunity it affords for concerting with an attorney the means of evasion and safe perjury, will be much more efficient than the examination performed through the medium of the judge or judges ad hoc (the examining clerk, the master, or the commissioners;) viz. the examination by which the testimony is produced in the shape of an instrument composed of depositions. More efficient? Why? 1. Because, by bill, the plaintiff, that is, his law-assistants, with the help of exceptions to the answer, and amendments to the bill, keep on examining the defendant till the plaintiff and his law-assistants are satisfied with the completeness at least (if not with the correctness) of the answer; or at any rate till, in case of contestation, they are informed by the judge ad hoc, that they have reason to be satisfied. 2. Because it is probable that, at least in the judgment of the plaintiff and his law-assistants, better care will in this respect be taken of his interests by those assistants, than by the examining judge or judges; even where half of the number are (under the name of a commissioner or commissioners) nominated by these assistants themselves: and certain, that, in the judgment not only of those assistants, but of every impartial person to whose consideration the case presents itself, better care will be taken by those same assistants, than (speaking of situations and not individuals) is likely to be taken by the judge ad hoc, if he be an examining clerk, or a master sitting in his closet;—that is, in both cases, by a person who, in the nature of things, cannot have any other wish or object, than either to get the business out of his hands as soon as possible, for the sake of his case, or to keep it in them as long as possible, for the sake of the fees.
After having then, and on every point of the cause, carried the examination of his adversary, the defendant, to its utmost length, in the more efficient mode (that is, in the mode which, in general, bids fairer for being efficient,)—is there any incident or consideration that naturally and reasonably may engage him to add to it by another examination in the less efficient mode? Such incidents or considerations may not in every case be wanting. Despairing of being able to extract the truth, where the defendant, with an attorney at his elbow, has month after month for concerting the means of successful evasion and safe perjury (the cause being, in point of locality, of that sort which, under the name of a country cause, affords examining judges, under the name of commissioners, that may be awake, instead of one that will be asleep;) it may happen, that, in the person of a particular lawyer, in the character of commissioner, nominated by himself, the plaintiff may see an examiner, who (with the advantage of vivâ voce interrogation—examination in a form which, calling for responses on the spot, cuts off the opportunity of mendacity-serving suggestion and premeditation) promises to his expectation a better chance for the effectual extraction of the desired truth, than could have been obtained in the mode of examination by bill, under the disadvantages above mentioned.
Another case that may happen is, that the defendant, after having given his answer, may go into some foreign territory; and a pair or a set of commissioners being to be sent into or found in, that foreign territory, for the purpose of taking, at the instance of the defendant, the depositions of extraneous witnesses,—it may be deemed more convenient to take the benefit of that opportunity, and extract the ulterior testimony of the defendant through the same channel, than, after adding amendments to the bill, to aim at the extraction of the ulterior testimony in the shape of a further answer to the bill.
2. At any rate, the case just mentioned will be comparatively an uncommon case. But what cannot be an uncommon case is, that, as against one defendant, the plaintiff shall have need of the testimony of another defendant.
But has he not, in the way of bill, been examining them both, and examining them to the utmost? Yes; but (not to revert to the rare incidents and considerations above mentioned) against the making use of the testimony of one defendant against another, there is this objection. As against himself, defendant Primus has been sufficiently examined: for, to extract from him such facts and circumstances as make for his own advantage, no counter-interrogation can be necessary. But as against defendant Secundus, defendant Primas has not been sufficiently examined: for, in order to extract from defendant Primus the whole of the facts and circumstances within his knowledge that make for the advantage of defendant Secundus, counter-interrogation may be necessary; and such counter-interrogation defendant Secundus has had no opportunity of administering.
But if, in behalf of the plaintiff, and as against defendant Secundus, defendant Primus has been examined in the character of a witness—if, pro tanto, his testimony has been extracted from him in the shape of depositions, as above explained;—he having been examined (as against defendant Secundus) in the character of a witness, defendant Secundus has had, or at least might have had, and ought to have had, the faculty of counter-interrogating him: of performing upon him that operation which, by an abuse of words, is called, in equity language, cross-examination (just as if it were the same operation that in common-law procedure goes by that name;) upon exactly the same plan, how imperfect soever, in which the operation so denominated is performed upon an extraneous witness.
Suppose two plaintiffs, and suppose either defendant (say, as before, defendant Primus) to be examined at the instance of plaintiff Primus as against plaintiff Secundus; the case may be much the same as the last. By the interrogatories put in the bill, and therefore put by both, as much of the facts and circumstances as make in favour of the one will have been extracted, as of those which make in favour of the other. True; if he to whom the truth, taken in its totality, is believed by him to be adverse, will consent to the interrogations necessary to the complete extraction of it: but such candour is too much to be in every case expected. Suppose, then, a failure of union in this respect,—the resource will be, on the one hand, an examination performed on defendant Primus, on the footing of a witness, at the instance of plaintiff Primus, as against plaintiff Secundus; on the other hand, cross-examination of the same defendant-witness by plaintiff Secundus.
Now, then, in regard to interest. Some interest, opposite to that of the plaintiff, defendant Primus must have, or be liable to have; else, even though the cause were what in equity law is called an amicable one, there could be no cause.* But it may be, that—though the two defendants have each of them an interest opposite to that of the plaintiff—defendant Primus, as to some point in dispute between the plaintiff and defendant Secundus, has an interest of his own, opposite to that of defendant Secundus.
In this case, supposing the interest to be of that sort which in equity law ranks under that name—and supposing the interest to be of that nature, that, by defendant Primus’s deposing to the prejudice of the interest of defendant Secundus, the interest of defendant Primus would be served,—the allowance of an objection to the admission of the testimony of defendant Primus, would, if made on the part of defendant Secundus, be consistent enough with the general principle.
But now, let it be at the instance of defendant Secundus, that the testimony of defendant Primus is called for: and let the interest of defendant Primus be such, that, by delivering the testimony so called for, his own interest would be disserved. Would an objection, on the score of interest, lie, in the mouth of defendant Primus, whose testimony is thus called for, to his own prejudice and against his own will?
With the general principle which gives to every man in the character of plaintiff the remedy by bill against every other man in the character of plaintiff, such objection would certainly not harmonize. For, among the distinguishing features of equity law, one of the most characteristic is, the affording to the plaintiff that power which the gentle hand of common law will not trust him with—the power of extracting testimony in his favour from the bosom of his adversary.
But,—on the ground of another principle, acted upon at least, if not openly recognised, in equity law,—testimony adverse to the interest of a defendant ought not to be extracted at the instance of any co-defendant—at the instance of any person but a plaintiff. From a plaintiff, testimony is not allowed by equity law to be extracted in any shape, by or at the instance of a defendant: why should that of a defendant be allowed to be thus extracted, by or at the instance of another defendant? Not from a plaintiff; because, were that allowed, the lawyers would be defrauded of the benefit of another cause, under the name of a cross cause. How should it, therefore, from a co-defendant? Would not a loss of the same nature be incurred? It would not be called a cross cause, indeed; but so long as it had the beneficial properties, names would not be worth thinking about.
The man of law is not consistent in anything—not even in rapacity. Where, at the instance of a defendant, the plaintiff is to be examined, they will not suffer it to be done without a cause on purpose: where, at the instance of a defendant, another defendant is to be examined, it may, perhaps, not have occurred to them to discover the same impediments.
[* ]In the case of an indictment, where the offence comes under the denomination either of a felony, or of a breach of the peace, there is usually some person (and but one) who, before the justice of the peace by whom the preliminary examination has been performed, has, by an engagement called a recognisance, been bound to prosecute.a By this engagement the personality of the prosecutor is fixed.
[† ]Suprà, p. 436.
[* ]All the interests to be disposed of by the court, must be before the court, must have the opportunity of defending themselves. Will you join with me in my bill? No. Then I must put you upon the list of defendants.
[† ]No man is compellable either to make, or to join in, an affidavit. Parties are virtually compellable, by the interest they respectively have in the cause: the prosecutor, lest he should fail in obtaining the service demanded; the defendant, lest he should be bound to render that burthensome service. Extraneous witnesses are at perfect liberty; they take part with one side or another, as interest (self-regarding interest or sympathetic) prompts them: so that here you have no witnesses but partial ones, and these free from the check of cross-examination: their testimony delivered in the least trustworthy form that can be found for it.
[* ]If, after the evidence has been heard on the part of the prosecution, no case, has been made out against some one or more of the defendants, it is usual to allow him or them to be acquitted at once, so that they may be able to give evidence on behalf of the remaining defendant or defendants, if required.—Ed.
[† ]Master of the Rolls.
[‡ ]Court of King’s Bench.
[* ]Four co-claimants on an insufficient fund: two put themselves together on the list of plaintiffs: the two others are put by them upon the list of defendants: between plaintiff and plaintiff there is here the same opposition of interest as between defendant and defendant, or between either defendant and either plaintiff.
[* ]In equity, about half the number of causes that come before the court (at least in by far the busiest of the two great equity courts, the Court of Chancery) are amicable causes. At common law, there is scarce such a thing as an amicable cause. In equity, what is there that should be so much more prolific of amity than in common law? To friends, as well as foes, the younger sister is a still more merciless vampire than the elder. To the uninitiated, the problem will have all the air of an enigma. The solution will be to be found in the complicated nature of the greater part of the causes that come before a court of equity (the original courts not having powers adequate to the treatment of complicated cases;) so complicated, that, to save themselves from an infinite swarm of contingent suits, parties submit, by general consent, to the pressure of one actual one.
[* ]In the case of an indictment, where the offence comes under the denomination either of a felony, or of a breach of the peace, there is usually some person (and but one) who, before the justice of the peace by whom the preliminary examination has been performed, has, by an engagement called a recognisance, been bound to prosecute.a By this engagement the personality of the prosecutor is fixed.
[a ]Besides the prosecutor, the witnesses are bound in a recognisance of £40 by the justice, to appear at the trial and give evidence.—Ed.