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PART VI.: OF DISGUISED EXCLUSIONS. - 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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OF DISGUISED EXCLUSIONS.
EXCLUSION OF EVIDENCE FOR WANT OF MULTIPLICITY.
Impropriety of exclusion on this ground.
On the several preceding grounds, the impropriety of the practice of excluding evidence has been rendered, I am inclined to think, sufficiently apparent: if so, on the present ground, it must be much more palpable. In those cases, a cause of suspicion, and for the most part not an ill-grounded one, exists: and the error consists in employing exclusion, where watchfulness alone would have been the proper remedy. In the present instance, not so much as the slightest cause of suspicion is so much as fancied to exist; and yet a man is excluded without mercy. Excluded; and for what reason? For this, and this alone; that another man, having it in his power to give evidence pertinent to the case, is not to be found.
When suspicion is the ground of exclusion, the assumption is, that some men (i. e. all men belonging to any of the suspected classes) are liars. Where want of multiplicity of evidence is the ground, the assumption is, that all men—all men without exception, are in this unhappy case. Take any two men, men of the most trustworthy complexion, as well in respect of individual character as in respect of station in life: take these two men; if a demand for their testimony happens to be presented by two different causes, they are both of them incorrigible liars, and neither of them ought to be heard: if, on the contrary, the like demand happens to be produced by one and the same cause, both of them ought to be heard—both these liars become good witnesses.
I have already had occasion to remark the incongruity of the law’s taking upon itself to know more, and that in all cases, of the degree of credit due to evidence, than those who have the evidence before their eyes. Here the incongruity is still greater. In the case of the inadmissibility—the incapacitation, the judge or jury have not formed any opinion; because they have not been allowed to hear the grounds on which, and on which alone, an opinion could have been formed. In the case of the requisition of two witnesses,* they have heard evidence, and such evidence as hath appeared satisfactory to their minds The jury are satisfied: the judge is satisfied; the prosecutor is satisfied; the advisers of the crown are satisfied; everybody who has had any opportunity of knowing anything of the matter is satisfied: it is in the midst of all this satisfaction, that the legislator, who knows nothing about the matter, who has no possibility of knowing anything about the matter, chooses to remain unsatisfied. He chooses rather to suppose that a witness, whom he knows nothing about, is purjured, and a jury, a judge, a set of ministers, whom he knows as little about, deceived, than than that one accused person, about whom he knows as little, and whom all these persons have concurred in believing guilty, was really so.
In speaking of the witness, I say perjured: and such accordingly is the supposition, and the only supposition, proceeded upon, in the case upon which this provision has been grounded: for, as to any particular danger which the witness may be supposed to be under, of having fallen into an involuntary mistake, there is nothing in any of the cases in which this regulation has been ever applied to warrant any such supposition, nor is the regulation ever supported on any such ground. Such then is the supposition, which the legislator chooses as the most probable; that one man, of whom he knows nothing, has made himself guilty of perjury—a man whom all who have had the opportunity of knowing anything about him, concur in believing innocent,—rather than that another man, whom all who have heard the case concur in believing guilty, was guilty, of another offence.
Thus much as to the impropriety and inconsistency of the rule. Next, as to its mischievousness: in comparison, as before, with the rules by which an exclusion is put upon witnesses of a particular sort. In the latter case, the witness or witnesses, on whose persons or in whose presence a malefactor is allowed to commit whatever crimes or other offences he pleases, must, to give the malefactor the benefit of the licence, be taken out of the suspected classes: in the present case, all individuals, without exception, are allowed to be pitched upon as victims or witnesses.
In a particular state of things, it is true, the mischief is greater in those cases than in this. In those cases, the number of witnesses in whose presence the crime or other offence is allowed to be committed, is without stint: on the present ground, the number of witnesses in whose presence it is lawful to commit the crime or other offence, extends not beyond one. But the facility given to delinquency by the removal of the restriction in respect to number in those cases, will scarcely be found to be equal to that which is afforded by the removal of all restrictions in respect of quality in the present case.
The accomplice, who is sufficient to enable a man to commit the crime, not being sufficient to produce, by the testimony of his lips, his conviction of and for such crime,—each malefactor has thus a ticket of exemption to dispose of, in favour of any associate who may be disposed to join with him in any forbidden enterprise.
Thus much as to the effect of the exclusion in causes of a penal nature. In regard to those of a non-penal complexion, the effect is still the same in kind, varying only in respect of the importance of the cause. Following the same rules, the task of giving it a separate exemplification under this separate head, may be dispensed with.
Such is the price paid for the security in question: viz. for the difference in point of danger between the case where there are two witnesses in proof of guilt, and the case in which there is but one. Such is the price paid for this security: and after all, what is it worth? In the multitude of counsellors, says the proverb, there is safety; in the multitude of witnesses there may be some sort of safety, but nothing more: it is by weight, full as much as by tale, that witnesses are to be judged. Pondere, non numero. From numbers (the particulars of the case out of the question) no just conclusion can be formed. Nothing can be weaker than the best security that can be derived from numbers. In many cases, a single witness, by the simplicity and clearness of his narrative, by the probability and consistency of the incidents he relates, by their agreement with other matters of fact too notorious to stand in need of testimony,—a single witness (especially if situation and character be taken into account) will be enough to stamp conviction on the most reluctant mind. In other instances, a cloud of witnesses, though all were to the same fact, will be found wanting in the balance. There is no man conversant with the business of the bar, whose experience has not presented him with instances of dozens of witnesses opposed to each other in the same cause, line against line, and whose testimony has been of such a nature, that (howsoever it may have been in regard to mendacity) falsehood must have been on one side or the other. Naval trials are pregnant with instances in favour of this remark. According to Hume, on the subject of an engagement between Blake and Tromp, the unanimous testimony of the English captains was contradicted by the unanimous testimony of the Dutch. Let any man read the trials of Keppel, Palliser, or Molloy, and then say whether security resides in numbers.
Let me not be mistaken. I do not mean to insinuate (it would be absurdity to insinuate) that the requisition of a second witness adds nothing to the security against perjury. No doubt but that, the greater the number of witnesses you require, the greater the security against perjury. All contend for is, that that security (be it greater or less,) is not so necessary as that you should pay so great a price for it, as you do pay, and must pay, by the licence you thereby grant to commit the crime in the presence and with the aid of any one.
“Reason,” says Montesquien,* “requires two witnesses: because a witness who affirms, and a party accused who demes, make assertion against assertion, and it requires a third to turn the scale.” This, by way of proof of the proposition immediately preceding:—“The laws which cause a man to perish upon the deposition of a single witness, are fatal to liberty.” This observation, short as it is, teems with errors.
1. The equality maintained turns upon this supposition, and no other, viz. that it is as unlikely that a person accused, being guilty, should aver himself to be innocent, as that a party accused, being innocent, an accuser should aver him to be guilty: in other words, that it is as likely a man should violate truth for the purpose of injuring an innocent person, as for the purpose of saving himself. Such is the supposition; but surely nothing can be more ill grounded. The assertion of the witness amounts to something—the denial of the accused amounts to almost nothing: for he speaks under the terror of the law, which devotes him to certain punishment in the event of his not denying.
2. Another error is, the supposing that any rational conclusion can be drawn from the mere circumstance of number, as between accusers and defendants, without taking into the account the particular circumstances of each case.†
3. A third incongruity is, the confounding the case of witnesses with that of judges: for though witnesses are the persons he speaks of, the situation he places them in is that of judges.*
4. A fourth incongruity is, the making up the proposition and the demonstration in such a manner as not to fit one another in point of extent; in consequence of which want of just coincidence, nothing can be concluded.—The case necessarily supposed, extends over no more than one of the two divisions into which the field of law is divided,—viz. the criminal: and the reason is one that applies to civil as well as to criminal, though it appears not that Montesquieu was aware of the application.
The occasion to which his view seems to have been confined, the only occasion specified, is still narrower—that subdivision of the criminal law, which concerns offences that have been punished with the punishment of death. He might have been right in saying that laws which cause a man to perish upon the evidence of a single witness, are fatal to liberry; and yet not right, if he were to extend the same observation to cases in which death was not included in the punishment.
The expression cause to perish—font périr—would of itself be sufficient to ease the case of the weight of Montesquieu’s authority, if authority were capable of weighing against reason. It alludes, to all appearance, to the practice of the Roman law (the law under which he had been used to act,) which makes conviction, and thence in capital cases death, a necessary consequence of the adverse deposition of two witnesses,—leaving no option to the judge.
Another circumstance that contributes to lighten the case of the weight of his authority, is, that the trials to which alone he had been used, and which alone he can be understood to have had in view, were trials in the judge’s closet, without a jury, and on which cross-examination on the part of the accused was but imperfectly allowed—cross-examination by his counsel not allowed.
“Fatal to liberty?” What means liberty? What can be concluded from a proposition, one of the terms of which is so vague? What my own meaning is, I know; and I hope the reader knows it too. Security is the political blessing I have in view security as against malefactors, on one hand—security as against the instruments of government, on the other. Security, in both these branches of it, is the benefit, the making due provision for which, in the case in question, is the object of these inquiries.
Where two witnesses have been required, the principle of determination is obvious enough: it has been the fear of giving birth to the conviction and punishment of innocent persons, if in each case the testimony of a single witness were held sufficient. Engrossed by the view of this danger, the attention has overlooked the so much greater danger on the other side.
For a single witness to produce by his testimony the conviction of an innocent person, it is not sufficient that false testimony on the side of conviction should have been given;—it must also have obtained credit with the judge; it must have produced in his mind a degree of persuasion, of sufficient strength for the purpose.
But, even among the vilest of malefactors, as I have already had occasion to state, nothing is more uncommon than false testimony on the inculpative side.
What the argument supposes is, that falsehood will prevail ever truth: falsehood on the inculpative side, over truth on the exculpative.
The giving security to the innocent, is the object and final cause of this ill-considered scruple. Of what description of the innocent? Of those, and those alone, to whom, by false testimony, it might happen to be subjected to prosecution in a court of justice. On the other hand, those to whom, in consequence of the licence granted by this same rule, it might happen, and (if the rule were universally known) could not but happen, to suffer the same or worse punishment at the hands of malefactors, are altogether overlooked. The innocent who scarcely present themselves by so much as scores or dozens, engross the whole attention, and pass for the whole world. The innocent who ought to have presented themselves by millions, are overlooked, and left out of the account.
It is to this ill-considered scruple, that the European nations have been indebted for the use of what is technically called torture; I mean in the most usual, and most exceptionable, application of it. The testimony of a single witness was not sufficient for the conviction of a defendant; but, in a case capitally punished, it was sufficient to warrant the applying torture to him, for the purpose of compelling a confession. Combined with this tremendous exercise of severity, what then was the effect of this false tenderness?—In some cases, to produce, by dint of terror, a not very satisfactory confession: in other cases, to add to the regular punishment this accidental and unnecessary torment: in here and there an instance, to enable a guilty man, by patience under torment, to escape death, the ultimate punishment, in cases in which he would have been subjected to it under the English mode of procedure.
Under the best system of jurisprudence, it must happen now and then, though under the worst I believe it to be extremely rare, that a man completely innocent shall suffer as for a capital crime. In these deplorable cases, under the English system, which admits the grounding conviction on a single witness, the innocent victim will suffer the instantaneous and in a manner insensible infliction, and no more. Under the general law of the continent, wherever the application above spoken of under the name of torture was in use, the unhappy innocent would suffer death in whatever was its prescribed form, but with the previous addition of a state of torment more terrible than twenty deaths; unless, to free himself from it, he could succeed in inventing a credible, though false, narrative of guilt.
In the complication and intricacy of the discussions, of which a rule requiring a multiplicity of evidence will naturally (not to say necessarily) be pregnant:—in this, though comparatively a minor inconvenience, will be found a certain degree of force. Assuming that a multiplicity of evidence is necessary, how is it that it must or may be composed? Say that there must be at least two witnesses; the difficulty is, in appearance at least, in a considerable degree obviated. Happy would it be for the interests of truth and justice, if the task of decision were attended with no other difficulty than that which attends the distinguishing of two individuals from one. But, where nature has made not an atom of difficulty, lawyers will make a mountain; where common sense would not find a speck to disturb the clearness of the case, science (I mean always jurisprudential science) will find means to raise a cloud. Two witnesses:—good: but to what fact? If one of them be to the principal fact, may not another be to an evidentiary fact,—his testimony constituting a presumption, in the language of the Romanists? Or, in fine, in consideration of the number, might not two presumptions (since there are two of them) suffice? Then comes in the question, though in language much less clear,—what, in all cases, and in the case in hand, is the principal fact? what an evidentiary fact?
Two witnesses again—good. But in what shape must, or may, their evidence be exhibited? It one be a witness, examined as such, in the regular judicial mode, may not the place of the other be supplied by a lot of written evidence? especially if it be of a nature so superiorly trustworthy as those several species of written evidence which come under the head of preappointed evidence—a deed, an entry in a register, a judicial record of any kind. Or, again,—considering how great the security for trustworthiness derivable from number,—may not one of the two pieces of evidence be of some one, or of any one, of the species of inferior evidence which have been brought together under the general denomination of makeshift evidence? Or,—if one such piece of inferior evidence, added to the regularly extracted testimony of an unexceptionable witness, be not sufficient,—may not the deficiency be supplied by two or three, or any and what greater number, of these inferior evidences, and of any and what sort or sorts? And, in short, if the number of these lighter and make-weight evidences be to a certain (and what) degree considerable, may not their abundance supersede altogether the necessity of a lot of heavier evidence?
A piece of written evidence, again—say a conveyance bipartite, to which there is a grantor and a grantee, with or without one or more attesting witnesses. The evidence presented by this instrument,—is it the evidence of one witness only, or of more? and how many more? All these difficulties, with abundance more, may be started (as some of them have been started) from the rule laying down the necessity of two witnesses: and in any, or at least in some, of these ways, may the number required have been made up, without any violence to common sense.
All these reasonable modes of splitting hairs have not yet sufficed to exercise the industry of lawyers. Not content with splitting hairs, they have proceeded to split men: out of one and the same man, they have made two witnesses.
When one man of law has laid down a foolish rule—an ill-considered and palpably pernicious rule,—his successor, not to fall into the sin of the sons of Noah, and uncover a father’s nakedness, makes his obeisance to the rule, throws a cloak over it, makes a leak in it, and, according to the measure of his dexterity, draws out the force and efficacy of it. We shall see presently, when we come to speak of the Roman law, to what a degree of refinement this policy has been pursued in the present instance.
Such, then, is the precept which excludes one witness for the want of other witnesses: impropriety, inconsistency, mischievousness, are the qualities which characterize it. Exceptions, however, in appearance at least, are not altogether wanting to the mischievousness of it.
1. One is the case where, from the nature of things, witnesses, principal witnesses, in numbers, cannot have been wanting. The scene, for example, in a spot where individuals cannot but have been collected in multitudes: a place of worship, a theatre, a market-place in market-time, a fair, a barrack, a dock-yard, a parade. In such a state of things, what harm, it may be asked, can result from the requisition of two, or even of three witnesses? I answer,—Seldom any harm; but never any advantage.
The case in which the restriction would be proposed, will naturally be rather a penal than a non-penal one: quarrel, smuggling, embezzlement, sedition, riot: the side to which the restriction is applied will as naturally be that of the plaintiff; the object, real or pretended, will be the security of innocence—the preservation of obnoxious innocence from the enterprises of oppressive power. But if, on the supposition of guiltiness, the facility of finding witnesses qualified to make proof of the affirmative is so great; on the other hand, on the supposition of non-guiltiness, the facility of finding witnesses qualified to make proof of the negative, will at least be equally so. The consequence is,—granting the exclusion to be harmless, it will still be useless.
Not that it always will be harmless; the publicity of the place does not necessarily suppose the publicity of the act. A secret blow or wound may be given—a secret word of insult or conspiracy whispered—a secret act of pilfering committed or attempted, as well in the most crowded apartment as in the wildest desert: in some instances, the closeness and bustle of the throng will even be favourable to secrecy.
Another observation. The multiplicity of percipient witnesses, how great soever, is not always sufficient to secure so much as a single deposing witness: still less any greater number. Let ten persons have seen what passed,—if they be all of them ill disposed to the plaintiff’s side, or well disposed to that of the defendant, it may happen that none shall have given spontaneous information to the plaintiff: none but such as, on being questioned, with a view to prosecution, and before the commencement of prosecution, and consequently without those securities for veracity which are afforded by examination coram judice, may have given an account purposely false; although the same persons, if examined upon oath, and under the controul of the concomitant securities, would not go the length of seeking to accomplish their wishes by perjurious evidence.
2. Another seeming exception may be composed of the cases in which it may appear that the mischief of the offence depends (if not altogether, at least in a considerable degree) on the number of the persons present at the commission of it. Such are those in which the mischief consists in the wound given to the psychological sensibilities of the persons present, by acts or discourses offensive to their affections or their taste: acts or discourses savouring of indecency: discourses expressive of contempt for any of the objects of their worship or respect,—for the established religion, for the established government, and, in particular, for the person of the chief magistrate, where there is one, especially if invested with the rank of royalty. The greater the number of the persons present on any such occasion, the greater the danger of mischief, in each of two opposite ways. If, in the company in question, there be any to whom the obnoxious exhibition, or the discourse, is offensive, the mischief of the act respects the present pain of which it is productive. If there be any by whom it is regarded with complacency, it becomes mischievous on another account: on account of the danger lest, by the spread of the same obnoxious practice or sentiment, the shock given to men’s feelings may become more and more extensive.
By requiring that, in support of a prosecution of this sort, there shall be two witnesses at least, or three witnesses at least, provision (it may appear) is made, that, for the act to be converted into a punishable offence, there shall have been present at the commission of it at least that number of persons.
That, among the effects of an arrangement of this sort, may occasionally be found that of operating as a check to over-industrious anti-pathies, and that check a salutary one, is not to be denied. But that this is the most proper mode of applying such a check, cannot be admitted. If a regard for the liberty of private intercourse forbids the treating the act on the footing of an offence, unless a certain number of persons be present at the commission of it, the direct and proper mode is to say so at once: to word the condition in such a manner as to apply it, not to the number of persons appearing in the character of deposing witnesses, but to the number of persons existing at the time, in the character of percipient witnesses.
A consideration which there has already been occasion to bring to view, is, that amidst any abundance of persons present in the character of percipient witnesses, there may be a scarcity, or even an absolute want, of deposing witnesses: the two characters are therefore, by no means, either identical or convertible. Another consideration is, that, unless the objection be obviated by a special provision, the function of a deposing witness may be performed by a person who was not a percipient witness,—who was not present at the commission of the offence; as, where the evidence stands in the relation of a discourse of the confessorial kind, held by the party accused, or where, in any other shape, it wears the character of circumstantial evidence.
From an institution improper in the main, useful results may flow by accident. That, in this way, occasional good may result from the species of exclusion here contended against, is not to be denied. In this way, the mischievousness of it may now and then receive occasional palliation. Thus much may be said, but this is all that ever can be said, in favour of it.
In this way, as in every other, the effect of an institution putting exclusion upon evidence upon the plaintiff’s side, is, to enervate the substantive law to which it applies. So far as the substantive law is bad, so far (according to an observation we found occasion to make in a former instance) any such debilitating institution, in the line of adjective law, may be of service. So far, therefore, as it may be possible to confine the drag, the adjective incumbrance, to a perniciously active law, so far that which is in general a nuisance may have a particular use. Amidst the pulling and hauling so frequently exemplified in legislative bodies, it not unfrequently happens, that a party which has not power enough to stop the wheel altogether, finds means in this way to attach a drag to it. But the very circumstance that constitutes the utility of the institution in these particular cases, is its mischievousness in all others. The proper remedy is, not the establishment of the bad adjective law, but the abolition of the bad substantive law.
In the case of capital punishment, but in that alone, the Mosaic law requires two witnesses. From that source, perhaps, was derived the European rule: I should look upon this provision as a great improvement, if introduced in England. Why? Not as deeming the requisition of two witnesses a proper one, but as deeming the punishment of death an improper punishment. To authorize such punishment, if three witnesses were made requisite, so much the better: if three dozen, better still.
But, from the necessity of two witnesses, to authorize the infliction of death in the character of a punishment, what follows? Not that, in case of one witness, and but one, acquittal should take place; but that some other punishment should take place, different from, and thereby inferior to, capital.
Aberrations of Roman and English law in this respect.
In the Roman law, two witnesses are pronounced indispensable. In the penal branch (the higher part at least,) what followed? Torture. By fewer than two witnesses, a man was not to be consigned to death; but by a single witness he might at all times be consigned to worse than death. If, then, being guilty, he had it in his power to relate and circumstantiate a guilty act, at any time, if he thought fit, he might, at the price of future suffering, release himself from present torments. But if, not being guilty, and in consequence not having it in his power to circumstantiate the guilty act, he had it not in his power to release himself at that price, he was to suffer on: perishing or not perishing, under or in consequence of the infliction, as it might happen.
Upon the face of it, and probably enough in the intention of the framers, the object of this institution was the protection of innocence: the protection of guilt, and the aggravation of the pressure upon innocence, was the real fruit of it.
In the non-penal branch, the experienced mischievousness of the rule forced men upon another shift, of which, if the mischievousness be not so serious, the absurdity is more glaring. I mean the contrivance already hinted at,—the operation of splitting one man into two witnesses. Proposing to himself to make a customer, or non-customer, pay for what he has had, or not had,—a shopkeeper makes, in his own books, an entry of the delivery of the goods accordingly, and by this entry he makes himself one witness. A suit is then instituted by himself, against the supposed customer, for the value of the goods: he now takes an oath in a prescribed form, swearing to the justness of the supposed debt, and by this oath he coins himself into a second witness—the second witness which the law requires. By the same rule, if three had been the requisite complement of witnesses, two such oaths might have completed it; if four witnesses, three oaths; and so on. With a splitting mill of such power at his command, a man need never be at a loss for witnesses.
In every cause, the plaintiff, to gain it, must make full proof (probatio plena.) The tradesman’s books make half a full proof (probatio semiplena:) his oath, as above (his suppletory oath, it is called,) makes the other half.* Sixteen paragraphs before, in the book of authority, from which, for reference sake, the instance has been taken, the reader has been assured (and that without exception, and in the most pointed terms,) that a half-full proof, though composed of the testimony, regularly extracted, of a disinterested witness, of the most illustrious and consequently trustworthy class, goes absolutely for nothing.†
From this inexhaustible source of inconsistency and injustice, the English law (the jurisprudential branch of it at least) is free. I say the jurisprudential part: for, on this and that occasion, the legislator has interposed, and required two witnesses.
From the first of Edward VI. to the thirty-first of the late reign inclusive, seventy-four exemplifications of this unwarranted and perfectly inconsistent scrupulosity may be counted.
If anything like principle or reason for the distinction were looked for in this catalogue, the search would be in vain. If, in this or that instance, a seeming reason, of the nature of those above displayed and refuted, glimmers through the cloud, at the next step the light deserts us altogether. In several instances, cases naturally more sparing of evidence than any others present themselves as having been selected for the requisition of this superfluity of evidence; as if for the express purpose of exposing the substantive law to derision. Poaching, smuggling, gaming, nocturnal destruction, forgery, bribery, and extortion, are of the number.* Bribery has, in this way, received the protection of the law on three several occasions: and on these occasions so effectually has the cankerworm eaten out the substance of the law, that it is difficult to say by what means the corrupter or the corrupted, the giver or taker of the bribe, can possibly be convicted, unless they were to join in laying in a stock of evidence for the purpose, ambitious of martyrdom in so honourable a cause.
Consistency, or any steadier principle than the passion of the individual and the moment, not being to be found in any part of the existing chaos—it were in vain to look for any such treasures amidst the scraps of legislation tacked together by so casual a tie. The sphinx would have broken her neck a hundred times over, before she had discovered why, for convicting a man of abusing, insulting, or obstructing a set of half-yearly officers, composing what is called a jury of annoyance,† it should require double the quantity of evidence in Westminster, to what it would require on the inside of Temple Bar, or on the other side of the Thames. This for one: but the same narrowness and the same shallowness may be seen in all the other seventy-three instances.
By the single testimony of a self-acknowledged malefactor—of a character stained with the blackest infamy, swearing to save his life, and put money into his pocket, any man, without exception, may be consigned to capital punishment. And with this case every day repeating itself before his eyes, shall a legislator, when a fresh patch comes to be put upon the motley tissue, stand up in his place and say, Nay, but upon this occasion justice and humanity call upon us to require two witnesses?
Among the cases in which, under English law, two witnesses are required to support a conviction, is that of high treason.
If, in some ancient book of travels in some such country as Monomotapa, or among the Amazons or Topinambous, we were to read of a people who were governed by a king, but among whom it was lawful for any man at any time to kill the king, provided no more than one person were privy to the fact, or in the company of any number of persons, being persons of certain descriptions,—we should be apt to reject it at once as fabulous, and fabulous to a degree of extravagance. Were a poet to come out with a play, in which the plot turned upon the supposition of such a law, we should turn aside from it, as grounded on an improbability too glaring even for fable. We should rank it with the story of that monarchy which held out the highest of rewards for the successive assassination of every monarch that sat upon the throne, by bestowing the throne itself upon the assassin for his reward. Human blindness has not yet, since the Saxon times, gone so far as to offer a secure reward, together with impunity, for the assassination of the sovereign, in this enlightened country. It goes no further than to offer impunity—impunity indeed only in certain cases, but those such as are constantly liable to occur.
It might be worth the consideration of the gentlemen of the long robe (and no incompetent subject for the exercise of their ingenuity,) whether the king be a man; and whether George Gwelph, commonly called George the Fourth, may not have as good a claim to the protection of the law against assassination, as John Brown or Thomas Smith: and whether, accordingly, if any partaker or abettor of any pop-gun plot, past or future, successful or unsuccessful, were to be arraigned for shooting, or shooting at, the said George Gwelph, the court would be obliged to take notice that the said George Gwelph happens to be king of Great Britain, for the purpose of affording impunity to his murderers, or intended murderers.
It seems, for this purpose, high time to know whether the king be a man or not: and were it to be determined, by the twelve judges for example, in the negative, it might then be not amiss to inquire, whether it might not be advisable to strip him of a part of his royalty—of so much of his royalty as excludes him from the protection given to all other men, for the purpose of declaring, that neither shooting him, not shooting at him, should be punishable.
Picking a pocket of a handkerchief, value one shilling, is capital felony;* its being the king’s pocket does not make it treason: for picking the king’s pocket of his handkerchief a man might be hanged on the testimony of a single witness: shooting the king being treason, a man may shoot the king in the presence of anybody he pleases, and not a hair of the murderer’s head can be touched for it. Blessed laws! under which it is as safe again, to shoot the king as to pick his pocket!†
So long as this regulation subsists, a law which, taking up any of those offences against personal security, which in the case of an individual are capital felonies, should, in the case of its being levelled against the person of the sovereign, declare it to be high treason, would, instead of adding anything to the personal security of the sovereign, diminish it by at least one half—leave it, in respect of such offences, but half as great as it was before.‡ This consequence will not be intelligible to a legal understanding. To such an understanding it will be impossible ever to comprehend how so high-sounding a word as treason, especially with the word high before it, should fail of giving a better security than any that can be given by so ordinary a word as felony. I would never allow myself to entertain a hope of rendering the proposition intelligible to a lord chief-justice or an attorney-general; but I should have no doubt of its being understood, at the first word, by the man who blacks their shoes.
But this provision forms part of a statute of King William;∥ and that statute is an excellent statute: it forms a link, and a most valuable one, of the chain of securities framed for the subject in the course of that illustrious reign. This is the grand argument; and here stands the stronghold of prejudice, declamation, and common-place. Were I to be forced to say whether jet and snow are black, and yes or no were the only answer that would be admitted, I should find myself a little puzzled. Were I asked, in like manner, whether this be a good statute or no, I should be puzzled in the same way: if I were obliged to give an answer, I suppose it would be in the affirmative: but were the benefit of a distinction to be allowed me, I would most certainly pick this clause out of the statute: and an answer in favour of the remainder would not he heavy upon my conscience. This clause, whatever may be thought of it by itself (if ever it has been thought of by itself,) it is natural should derive no small degree of favour from the good company in which it has been always found. How far it is entitled to any such favour by its own merits, has been pretty fully seen.
The statute is indeed a statute of King William: it was passed by King William: but as to this clause, at least with equal truth may it be said to have been passed against as by that useful and meritorious, but ungracious and ill-beloved king. It was forced upon him by the party who, at that very time, were plotting, all of them his expulsion, and many of them his death. It was accordingly so constructed, with the benefit of this clause, that, besides the protection it afforded to the innocent, it afforded most ample protection to whoever might have numbered themselves, or might be disposed to number themselves, among the guilty. Looking at this clause of it, before I had adverted to the history of the time, I wanted no farther proof to say to myself, the design of it seems to be “to make men as safe in all treasonable conspiracies and practices as possible.” Turning afterwards, for curiosity’s sake, to Bishop Burnet’s History of his own Time, I found the same thing said already in the same words. So said Bishop Burnet: but little did the good bishop know, though we know now, half the ground there was for saying so. No wonder the parliament should have been overpowered by disaffection, when the cabinet was governed by, if not exclusively composed of, traitors. No wonder that the necessity of two witnesses to conviction was contended for with so much anxiety—was put at the head of this protecting statute: a minister might thus correspond (as so many ministers were then actually corresponding) with the exiled king by single emissaries, and be safe. Turn to the papers which Macpherson has brought to light; read over the names of the Marlboroughs, the Russels, the Newcastles, the Leeds’s, the Normanbys, the Shrewsburys, the Godolphins, the Sunderlands, the Abingdons, and I know not whom besides: we shall see how far this licence was from lying unemployed. As to the other provisions, then, all of them have their merit: some of them were no more than the removal of barefaced injustice; but as to this, it was specially levelled, not against false accusations, but against true ones.
The consequences are instructive: nowhere can reasonings receive a stronger confirmation from events. Scarce had the legislature passed the act, when the incongruity of this part of it stared them in the face. A conspiracy broke out—a conspiracy, of the reality of which no one ever entertained a doubt—a conspiracy confessed afterwards by the conspirators: and for the proof of this conspiracy, at the trial, no more than one witness could be found. I speak of Sir John Fenwick’s case. Two witnesses the case had happened to afford; but one of them (Goodman,) between the finding of the bill and what would have been the period of the trial, the friends of the defendant got hold of, bought off, and sent out of the way. What was to be done? The case was flagrant: the nation called for justice. An act of attainder was passed, grounded on that same insufficient evidence. Proscription was resorted to, because justice had been made impracticable. The flaw that had been made, was to be covered; but the covering was a cobweb of the moment, which left the flaw just as it was, for the benefit of future traitors.
The mischief was permanent,—we are saddled with it to this day; the remedy was momentary: nor, at the moment for which it served, was there an argument for it that did not prove the incongruity of the law which had created the demand for it.
Under rules of law, which, had they been calculated for the express purpose of the destruction of society, could scarce have been better adapted to it than they are, how is it that society is kept together? The question presents itself at every page, and the answer is still the same:—By the unintelligibility and inaccessibility of those rules,—by the darkness of the chaos of which they form a part. It is on the being known, that what there is good in the system of law depends for its effect: it is by the being unknown, that the mischief of what there is bad in that system is diminished.
One abuse finds its corrective, its palliative at least, in another; each particular abuse in one enormous universal one: each weakness, not in a corroborative application, but in another weakness; each particular negligence, not in particular vigilance, but in general negligence.
If society hangs together in the manner which we see, it is not so much by what the law does, as by the expectation of what it will do, grounded on the conception of what it ought to do. Fascinated by a variety of prejudices, pernicious in one point of view, salutary in another,—a man, from conceiving that the law ought to do so and so, concludes that so in each individual case it will do. The affirmative conclusion is most favourable to the tranquillity of society; the negative would probably be found in most cases the one must conformable to the truth.
In the case of the particular exclusion now under consideration, I will venture to suggest a few possible modes of remedying the mischief. If these remedies should appear to have little to recommend them in the eye of reason and common sense, it will be only because they are cut as closely as possible to the rich pattern of the common law.
One expedient might be, the having in every court of penal jurisdiction a wooden evidence, or man of straw, under some such name as that of the common witness, or common vouchee, whose office it should be to vouch for the truth of every deposition given by a single witness, in the event of his not having the support of a special evidence of his own kind. If, as in the case of a common recovery, indemnification may be given where there is no property, why may not evidence as well be given where there is no knowledge? The testimony of a dumb witness is as good as that of a speaking one; and there needs not the skill of a Kempel, a Droz, or a Merlin, to make a wooden or a straw witness capable of kissing the book, and giving the requisite tokens of affirmation. If extraordinary powers of digestion should be thought requisite for the oath, Merlin has an anthropomorphic stone-eater ready made.
If the expense of the attesting puppet should be grudged, the part of the puppet might be enacted by a living person, such as the crier of the court: the same respectable person who for so many centuries has supported the character of the common vouchee or indemniticator general, in the Common Pleas, so much to the satisfaction of the best judges.
It might be objected to this expedient on a hasty view, that this, on the part of a living witness, would be perjury: and that it would be an indecent mockery, a gross profanation, and a practice subversive of the foundations of justice, were a judge thus openly to lend his countenance to perjury. But it seems difficult to say how, if it be proper for a judge to countenance perjury in a juror, it should be otherwise than proper to encourage it in a witness; or how the perjury should have less of piety in it in the one case than in the other. If in the instance of the juror it is in favorem vitæ, in the instance of the witness it is in favorem justitiæ, which is worth many lives.
Another mode might be, the passing a statute for the purpose of declaring that in all cases where two witnesses are or shall have been required by law, one witness shall be deemed, adjudged, construed, and taken to be two witnesses. This mode would be perfectly of a piece with the established practice, the object of which is to add knot after knot to the entanglement, avoiding with religious care the solution or removal of any part of the existing mass.
Another mode might be, to produce the same effect by practice or rule of court, as often as occasion called for it: which would save the three or four hundred pounds which it costs the country every time to make a statute. This, it might be said (since there are those who will say anything,) would be a barefaced usurpation—a direct attack by the judicial power on the legislative,—an act tending to the subversion of private and public security, by planting uncertainty in the very fountain of legal certainty, and destroying all confidence on the part of the subject in the dispensations and threatenings of the law. If this were to be allowed, judges (it might be said,) whose special duty and cardinal virtue is obedience, would thus be suffered to erect themselves, not into a fourth estate, but into a separate estate, independent of, and paramount to the three others. I answer, that this has been done in effect, as often as, by exclusion of witnesses, or ex post facto invalidation of legal acts, conditions have been annexed to conviction, which have nothing to do with innocence, and which have not been annexed by the legislature.
Thus much in a general point of view. But the practice of the King’s Bench, the first criminal court of ordinary jurisdiction in this part of the United Kingdom, affords (as has been already seen) a special precedent, which, if not exactly in point, seems as near to the being so as can easily be conceived. Divers statutes give in divers cases treble costs. These treble costs, the court of King’s Bench in all these cases refuses to give: giving, in the room of them, rather more than half what the legislature has ordered to be given.* There would be no greater stretch of authority in requiring but half the number of witnesses that the legislature orders to be required, than in giving but half the money under the name of costs that the legislature orders to be given. Nothing of misconstruction here—nothing of misapprehension: that which is done here, cannot have been done with other than open eyes. Legal learning, how consummate soever, can never have fairly unlearned a man the difference between three and one and a half—between two and one. He who continues to know the difference between his right hand and his left, must continue to know that right and left together are more than either right or left alone.
In the common-law branch of jurisprudential law, we have seen the arrangements on this head conformable to reason and utility: what defalcations have been made from the general rule, we have seen made by the legislature, in consequence of those conflicts and compromises to which a mixed sovereignty is more particularly exposed.
In the equity branch of jurisprudential law, the principle of Roman law, which requires two witnesses—which excludes every witness without distinction, who comes not with another witness in his hand—predominates.
The defendant, a party in the cause, is but one witness, just as much so as an extraneous witness. At the same time, though the common law in its wisdom refuses to hear this evidence,—in equity law, adopting in this instance the decision of common sense, in probative force it is looked upon as superior to that of a host of extraneous witnesses. To the general rule which requires two witnesses, the admission thus established will be an exception or not, according to the interpretation put upon the word witness. If (being co-extensive in its import with the words to depose, deposition, to examine, examination, and so many others) it be understood to include the party when performing the function of a witness, the admission operates then as an exception to the rule: if the word witness is understood to be confined in its application to the designation of extraneous witnesses, the admission given to the testimony of a party has nothing to do with the rule. For simplicity’s sake, let us conceive the rule as having no application to parties—as having no testimony in view but that of extraneous witnesses.
Taking the rule, then, in this sense, equity law does not adopt it in all its rigour. The defendant’s testimony (such as it is) the plaintiff never can be without: for the suit can no otherwise be instituted than by the instrument called a bill, of which the interrogatory matter by which the defendant’s testimony is called for, and to which he is bound to make answer, forms an indispensable part. But in regard to this or that fact (facts as material as any to the cause,) what may easily happen, and what continually does happen, is, that the defendant knows nothing about the matter. If, then, knowing nothing about the matter, he declares as much, the testimony of a single extraneous witness speaking to that fact, is, with regard to that fact, sufficient evidence.
But if, among the facts inquired of by the plaintiff, there be any one, the establishment of which is necessary to form a ground for a decree operating in any respect in the plaintiff’s favour,—and if, in relation to this fact, the defendant delivers his testimony, denying the fact,—an extraneous witness, and but one, affirming it; here, the law requiring two witnesses has always been conformed to: and in this case, as in the other cases where two witnesses are required, the testimony of a single witness goes for nothing.
English equity law having been, in its first concoction, Roman law imported from the continent,—the first equity judge to whom it was proposed to ground a decree in favour of the plaintiff upon the testimony of a single extraneous witness, contradicted by that of the defendant, would (how thoroughly soever persuaded of the truth of the witness’s testimony—of the falsehood of that of the defendant) have acted, according to Roman law, illegally, had he made a decree on the ground of the true evidence. If a single testimony, though uncontradicted, is insufficient, still more must it be so if contradicted.
So far as precedents, judicial precedents, being contrary to truth and justice, are not contradicted by other precedents, it is not lawful (at any rate it is not necessary) for a judge to decree according to truth and justice: it is incumbent on, or at any rate it is lawful for, him to decree according to precedents. The equity judge who, at this time of day, refuses to pay any regard to the testimony of an extraneous witness whom he believes to be trustworthy, because contradicted by that of a defendant whom he believes to be perjured,—this Anglo-Roman judge probably thinks nothing at all about the original Roman law: all he has to do, is to think of the English precedents that have been grounded on it.
If, thinking nothing of the precedents in his own law, or of the foreign law on which they were founded, he were to consider himself as an English judge; in putting any such exclusion upon the testimony of the extraneous witness, his decision would be as inconsistent with the decisions of his predecessors, as well as with the interests of truth and justice, as any of their decisions have been, when compared with that same standard.
Here are two conflicting testimonies (one might say to him:) the one liable to no objection,—the other, that against which, in order the more effectually to come at the truth, your predecessors, in quality of English judges, have thought it incumbent to shut their ears. To the testimony clear of all objection, you pay no regard. The sort of testimony which (according to the rule you are bound to pursue) is unworthy of all regard,—it is by that you govern yourself.
On the present head (not to speak of others,) the practice of English equity is reconcilable neither to Roman law, nor to English law, nor to common sense. Not to Roman law; since, where the defendant is silent, it decrees in favour of the plaintiff, upon the testimony of a single witness.* Not to English law; since, where the defendant contradicts the witness, it counts testimonies without weighing them. Not to common sense; for the same reason, and because it gives the turn of the scale to that one of the two sorts of testimony, which, according to the principles of human nature, has least weight in it.
The ground on which this arrangement is placed by the account given of it in the books, is curious enough: here is oath against oath; therefore nothing is to be done.† The judge who should allege this contrariety as a reason for doing nothing, would recognise himself unfit for his office.
Injured suitor. To weigh testimony against testimony in a jury-box, is the business, the every day’s business, of the same sort of man whose business it is, when behind a counter, to weigh lead or brass against bread or candles. What then? Is the task too hard for you? do you sink under it? such imbecility, is it the fruit of all your science? Sue, then, for a place in the jury-box: and learn your business from bakers and tallow-chandlers.
The task the juryman has to perform, every day to perform, is the deciding between the testimonies of two witnesses, both of them equally unobjectionable. What are the two between which you profess yourself unable to decide? One of them worth as much as anybody’s; another (at least if your rules are good for anything) worth nothing.
Lord Chancellor. It is not but that, if I were at liberty, I could weigh testimony against testimony as well as any tallow-chandler: but the mode of inquiry which I am bound and content to conform to, does not allow me to weigh evidence. Where truth is at all doubtful, equity is altogether unfit for the discovery of it. This we are all sensible of: accordingly, as often as evidence is worth weighing, we send it to the tallow-chandlers: they have a method of their own, which it does not suit the purpose of equity to follow. They are allowed to hear witnesses examined and cross-examined, in that natural mode which every man who is really desirous of coming at the truth, and has power to inquire into it, pursues of course, whether in a court or in a closet. Equity receives evidence in a scientific way—a way which was designed, not for the discovery of truth, but for better purposes. I am a learned English judge: it is a rule with all learned English judges to receive evidence in any shape, except the only proper one: they leave that to the tallow-chandlers.
EXCLUSION BY LIMITATION PUT UPON THE NUMBER OF WITNESSES.
Excess of evidence an evil—Peremptory limitation not a proper remedy.
There are some topics on which, on a superficial glance (especially it directed by the contemplation of established practice,) a fatal dilemma presents itself as hanging over the footsteps of the legislator; and, on one side or other, the very nature of things seems to have imposed on him the necessity of injustice. On a closer view, to him whose eve has strength to penetrate this mist, the difficulty may be seen to be in a great measure factitious; and to arise out of some irrational practice, into which, under the pupilage put upon him by the man of law, the imbecility of the legislator has been misled by the imbecility or improbity of his guide.
Of the above described state of things, an exemplification may be found in the arrangement which forms the subject of the present chapter.
What number of witnesses shall a party be allowed to produce? Put a limitation anywhere upon the number, you lay the party under the necessity of leaving the mass of evidence on his side incomplete: you pave the way to deception, and consequent misdecision. Put no limitation anywhere upon the number, you put it in the power of a malâ fide suitor (if superior to a certain degree in respect of opulence) to overwhelm his adversary with an indefinite load of testimony, and the expense, vexation, and delay, attached to it.
In the case which came under review in the last chapter, the ground of the exclusion (so far as, in respect of reason and utility, it had any ground) appears to have been the fear of deception. In the case now before us, the consideration of vexation appears to have been the ground.
The vexation liable to be produced by multitude of witnesses, or (to speak more extensively) by the quantity of evidence, has two branches; which, being in themselves perfectly distinct, require to be kept so in the mind of the legislator. Why? Because, according as it is in the one shape or the other that the inconvenience presents itself, so, in so far as the inconvenience admits of remedy, will the remedy.
There are two stations in the cause to which the vexation, considered in its first stage, is apt to apply itself: that of the parties, and that of the judge.
To the station of the parties, considered in the aggregate, it is pregnant with delay and with expense. Consider them separately, the expense attached to the production of each witness falls, in the first instance at any rate, upon the party by whom, or at whose instance, he is produced: ultimately, either upon that party or another, according to the arrangements made by the judge in respect to this part of the costs.
Upon the judge, this inconvenience will not naturally fall in any other shape than that of vexation, properly so called: expense, out of his pocket is not destined to come; by delay he will not, in the manner that a party would, be affected. It is in the shape of labour only, that the vexation falls upon the judge: perplexity, followed by the labour consisting in the exertions made to remove it.
The judge being a member of the community, as truly as the sovereign by whose authority he has been appointed, or the servant by whom his shoes have been cleaned,—any pain that, on this as on any other occasion, falls upon him, constitutes as large a part of the pain of the community, as an equal pain falling upon either of the other two. But on the present occasion, be it what it may, it can never enter into competition with the mischief that would ensue from the removal of the dolorific cause, viz. the labour of weighing the mass of evidence: that mass, by the supposition, being in every part necessary to be weighed,—in every part such, that the exclusion of it would be productive of a correspondent chance in favour of injustice.
The burthen, thus, on the particular occasion in question, sustained by the judge, is a part of that aggregate burthen, the pain of which cannot but be regarded as balanced, and more than balanced, by the remuneration, in whatever shape (dignity at any rate,) attached to his office: and even setting aside such recompense, it can hardly be supposed that the mischief of the utmost vexation liable to fall upon that single individual, can come into competition with the mischief falling, in the other case, upon the community,—the notorious, and consequently extensive, mischief attached to the corresponding chance in favour of injustice.
In respect of serious importance, the sort of vexation which in this case is borne by the judge, is, therefore, as nothing, in comparison with the mischief which, in consequence, is liable to fall upon the parties; that is to say, upon that one of them who has the direct justice of the cause on his side. The greater the mass of evidence in the cause, the heavier the burthen imposed by it on the mental faculties of the judge: the heavier the burthen on the judge’s mind, the greater the probability that his force of mind will not be adequate to the sustaining of it—to the acting under it in such manner as to extract the truth from the mass of matter through which it is diffused, to frame to himself a right judgment respecting the principal facts in dispute, and to decide in consequence.
In the shape of danger, the mischief will in this case be considerable, even supposing the clearest impartiality and most consummate probity on the part of the judge. These qualities being supposed, the state of the law being supposed clear, and, in respect of the question of fact, the cause being supposed not to be attended with any extraordinary degree of intricacy or difficulty,—the probability in favour of a right decision will be very great: say, for example, 100 to 1. But suppose the faculties of the judge in a state of complete confusion, and the force of his mind altogether unequal to the task of framing a right decision under the pressure of the burthen thrown upon it by the aggregate mass of evidence,—this chance of 100 to 1 will be reduced to an even chance, or chance of 1 to 1: at which point, the party who is in the right will have no greater chance of prevailing, than the adversary who is in the wrong. At this point, the advantage possessed by him who is in the right is equal to 0: and to this point, every additional quantity added to the load of evidentiary matter, tends, in proportion to its pressure, to reduce the cause.
Such is the case, even where the probity of the judge is at its highest point, and the state of his affections entirely neutral. But, let either self-conscious partiality or bias be supposed on the part of the judge, the danger is much increased. Every addition seen to be made to the pressure of the burthen of evidence on the mind of the judge himself, contending against it with the peculiar advantages attached to his station and appropriate habits of exercise, will naturally press with still greater force upon every other mind not bound to the task by duty, and less qualified for it by exercise. The greater, therefore, the pressure is by the public eye seen to be, the more difficult will it be for the public judgment to detect any aberration on his part from the line of rectitude: and, moreover, even to any man to whom his decision may present itself as taxable with error, the greater will be the probability that the error will present itself as standing clear, if not of intellectual, at any rate of moral, blame.
In a word, the greater the burthen of the evidence, the greater, in appearance as well as reality, the difficulty in judging of it: and the greater that difficulty in reality, the more natural will erroneous judgment be: and the greater the difficulty in appearance, the more venial in appearance will the error be—the less apt to expose him, whose error it is, to public censure.
The evils, therefore, which arise from excess of evidence, are very great: and that they form a proper subject for the legislator’s consideration, is out of the reach of dispute. But, that the propriety of allowing them to be productive of actual exclusion—of giving them in practice the effect of a conclusive reason, depends upon proportions (viz. upon the preponderance of the collateral inconvenience in the shape of vexation, expense, and delay, as compared with the probability of direct mischief resulting from deception and consequent misdecision for want of the evidence proposed to be excluded,) is a point upon which a decision has already been pronounced, on grounds which the reader has had under his view.
Proceeding on this ground, the necessary conclusion is, that everything that on this field has been done, in any of the established systems, is wrong. For whatever has been done, has been done by limiting the number of witnesses receivable, without regard to the demand.
Regard being paid to proportions, one most obvious consideration is, that, in respect of number, the demand for witnesses will depend upon the subject-matter of the suit.
1. Even where the claim which is the foundation of the suit is itself simple, it may happen that the number of witnesses which it may be requisite to hear has no certain limits: take, for example, a claim of a right of way: a claim of a right of common; a suit, the object of which is to determine the bounds between portions of land, the property of different owners.
2. The nature of things affords several sorts of suits, in which, in respect of the subject-matter, the demand itself is complex; and complex to a degree altogether without limit. In this case, the suit, though in name and to some purposes but one suit, is in fact a cluster of suits. Thus, in case of an account, the complex suit includes as many simple suits as there are items on both sides. Not one of them but is capable of being taken for the ground of a separate suit: in which suit, the number of witnesses to whose testimony it may be necessary to have recourse, has no certain limits.
As it is with a physical burthen, so is it with a psychological one: undivided, the patient sinks under it; divide it, he performs the task without difficulty.
You have a burthen, which you wish to have carried, within a certain time, to a certain place. Having called a porter, you propose the job to him: he declines it—he pronounces it impracticable. Your job, must it for that reason remain undone? By no means. Common sense indicates a variety of expedients, all of them practicable, one or other preferable, according to the circumstances of the case. The burthen may be divided, and distributed between two porters: being divided, it may be carried by the same porter at two turns: perhaps even it may be taken by him at one turn, if he be allowed a little more time.
The burthen being thus of the physical kind, the remedies thus applicable to any extraordinary weight that may belong to it will never fail to be applied: common sense will dictate the expedients;—self-regarding interest will secure the application of them. Understand, if the burthen be mine, and if it be for a purpose of my own that I wish it carried, and if it be by myself that the charge of getting it conveyed is undertaken: for if, instead of being managed by myself, the business be committed by me to a servant, who is lazy, or careless, or ill-affected to me, or who has anything to gain by having the burthen miscarry or arrive too late, it may make a difference.
Where the burthen is of the psychological kind, the remedies will be no less obvious: unfortunately, the application of them will be far from being alike secure. In this case, as in the other, the advice of common sense, if consulted, would be equally sure: but, unfortunately, the hands on whom the business rests are such whose purpose is not answered by the taking any such advice.
Had the ends of justice been the ends of actual judicature, this, like so many other mischiefs with which the technical system swarms, or rather of which it is composed, never could have taken place. Had the foundation of every cause been laid in the simultaneous appearance of the parties coram judice, no such danger as that of an inordinate influx could have existed. So much as the cause really required, and by its importance was capable of paying for, just so much would be delivered, and no more. When in this way anything of excess takes place, it is only for want of those explanations which, in case of the sort of meeting above described, cannot fail of taking place, but which can scarce ever take place with effect on any other terms. This, accordingly, has already been stated as one of the uses, though but one, and (from the rarity of its occurrence) one of the least considerable of the uses, of that meeting; without which, judicature is no better than a game, in which justice, in spite of design, turns up now and then by accident.
Of the established system of procedure, it is a fundamental principle not to hear the parties, not to suffer either of them so much as to come into the presence of the judge, till the very conclusion of the cause. Not hear the parties? Whom, then, would you hear? Not till the end of the cause? What, then, is the sort of work that is to be going forward in the mean time?
Under a system set up in opposition to the ends of justice, the idea of the ridiculous hangs over every step of an inquiry that has for its object the pursuit of any of those ends: it is as if a plan for the more effectual propagation of Protestantism were to be presented to the Pope.
To find the average quantity of time really in demand for a cause, turn to any of those courts in which the path of judicature leads to the ends of justice,—turn, for example, to the courts of conscience,—you will find it only a few minutes. But as the nature of that jurisdiction admits not of any very complex causes, and as here and there a cause will present itself which may require as many months; putting all causes together in hotchpot, the average upon the sum-total may thus come to be doubled or trebled.
In a vast majority of the individual cases that turn up, not the faintest glimpse of any such difficulty will present itself: such is the simplicity of the vast majority of cases that call for the exercise of judicial powers. But, when a cause is to a certain degree complex, then comes the necessary task of sketching out a plan of the mass of evidence. What is your demand, what your title, and what your evidence? Three questions these, to which a plaintiff, if he knows what he is about, will always be more or less prepared to give an answer: and which a judge, if he knows what he is about, will of course put to the plaintiff, wherever the plaintiff, for want of distinct conceptions, has not put them to himself.
What, then, is this plan or table of evidence? In every cause in which a question of fact is involved, the nature of it may be seen at the conclusion of any one of those instruments which among English lawyers are called briefs: facts which, in the character of principal facts, are to be proved; persons or scripts, by which each such fact is expected to be proved. To the plaintiff’s table of evidence add that of the defendant, you have the sum-total of that mass of proposed evidence, concerning every article of which, the judge will have to consider whether at all, and if yes, then in what event, and at what time, it shall be delivered.
1. Where the demand itself is of a complex nature (i. e. where the cause, though in form and denomination but one cause, is in reality an aggregate of a number of causes,) analyze this artificial whole: resolve it into its elementary parts. Suppose an account-current, with a hundred items on each side—a hundred items, to any one or every one of which it may happen to be contested. How absurd in this case to think, by means direct or indirect, to limit the multitude of witnesses! But there being in fact two hundred causes to try under the name of one, there is not one of them that may not, without prejudice to the interests of truth, be tried at a different time, at a different place, by a different judge or set of judges. In a cause of this composite order, two witnesses may be one too many; two thousand may be not sufficient. Behold now the legislator, with shut eyes, and Procrustes for his guide, by arrangements direct or indirect, fixing the number of witnesses which, in a cause of this denomination, a plaintiff or a defendant shall be permitted to produce.
No grievance, no remedy. Here is in truth no grievance: but if in this way a remedy be attempted to be applied (that is, anything under the name or notion of a remedy,) then indeed there is a grievance; for the pretended remedy is a real grievance.
At his own pleasure, and by and with the advice of his attorney (who in the temple of equity puts on the more respectable and profitable title of solicitor,) a man who has a business of this sort to settle with an unwilling adversary, addresses himself to common law or to equity. If to common law,—after six months or twelve months spent in doing worse than nothing—spent in affording the occasions for learned pillage, the two hundred causes, if tried at all, must be tried in a day, or in the remnant of a day. If to equity,—after the number of months, not to say years, employed in doing worse than nothing, as above,—when the matter in dispute comes to be tried in good earnest, the cause is wire, drawn through a hole in the judge’s closet, and instead of the one day, as above, is drawn out perhaps to a thousand: the judge (called in this case a Master,) under the eye of a conniving Chancellor, taking care to be paid for three attendances for every one he bestows, and cutting out each day into hours, that each hour may have its fee.
On either side of the passage, what in all this can there be that could be better than it is? On the one side, is not work made for a jury? On the other side, is not everything done by equity? by equity, the bona dea of English lawyers, made by their own hands for their own use, unknown to all the world beside?
2. In a cause in which the matter in dispute is a man’s right to a station filled by election, there may be as many causes as electors, including persons assuming to be electors; the right of each elector depending upon an indefinite quantity of evidence, generally very small, but susceptible of extension, without any certain limit. Squeeze now a complex cause of this sort into the compass of a day, and observe the consequence. Before the Grenville Act, causes of that sort were compressed each into the compass of a day; and the consequences were such as at length gave birth to that not inconsiderable effort of innovating and meliorating wisdom. The condensing engine being broken, the quantity of matter which by fiction had been compressed into the compass of a day, has now been found to fill in reality the compass of sometimes not so few as a hundred days, and a hundred days fully employed. But as a cause of this sort consists, in truth, of so many dozen, or score, or hundred of causes,—if constitutional prejudices and misgivings would but permit, what a prodigious load of vexation and expense might not every now and then be saved, if in these causes the witnesses could be heard within a reasonable distance of their own doors, instead of being imported from the Orkneys, or the Land’s End, to be fed for an indefinite time at London prices.
3. Suppose a cause in which the matter in dispute is the supposed disturbance or abuse of the rights annexed to some station or condition in life, domestic or political. The disturbance or abuse constitutes one group of facts—the entrance into the station another. Entrance and disturbance,—marriage and adultery: entrance and abuse,—appointment to an office, and abuse of the powers of it. The scene of the entrance lies at any number of miles distance from that of the disturbance or the abuse. Two groups of facts thus distinct and unconnected, what need, or even what use, that the proof of both should be crowded together into the same portion of time—into the same portion of space, only that they may come under the eyes of the same judge or judges? In London, cohabitation between man and wife on the one hand—adultery of the wife on the other: actual marriage, in the East Indies. The cohabitation public and notorious, the adultery susceptible of proof,—why must redress be made to wait, not only for the definitive result, but even for the preliminary steps, till proof, in form, of what no one doubts of, shall have been sent for and fetched from the East Indies?
The mass of evidence thus decomposed in idea, and resolved into its ultimate elements,—frequently it will happen, not only that by an apt distribution of it among different portions of time and space, the quantity of vexation, expense, and delay, attached to the delivery of the evidence, may be reduced, but that the quantum of the evidence necessary to be delivered, may itself be reduced. It is in this way, and this alone, that, by any management, a retrenchment may be made on the mass of evidence (understand relevant evidence,) and without prejudice to the direct ends of justice. A second mass of evidence, No. 2, may be relevant—may be indispensable; but it is only on the supposition that the mass of evidence No. 1 has already been delivered (or not delivered.) Take away the one, you take away the demand for another. Keep back the testimony of Titius, the proof that would have been offered of his bad character, or of his having been elsewhere at the time, is no longer relevant.
Expedients upon expedients, on a review of the circumstances of the individual cause, might be employed for reducing the amount of the evidence, and of the vexation, expense, and delay, attached to the delivery of it, within the narrowest limits compatible with the due regard to the direct ends of justice. 1. What is it that each man is expected to prove? 2. By what circumstances is he enabled to prove it? 3. From which of the witnesses on both sides is the most decided and satisfactory evidence to be expected? 4. Which are those between whom an irreconcilable contradiction may be expected; and in whose instance it is most particularly requisite that they be brought face to face? 5. Are there any masses of evidence, by the use of which, if the decision be in a certain way, the demand for the other may be superseded?
Where no such preparatory explanation takes place (that is, under all technical systems,) superfluous evidence is poured in in abundance: not only all that will be wanted, but all that by possibility may (it is supposed) be wanted, is provided. In continental Roman procedure, and in English equity, the shelves are thus loaded with depositions, which, when they come to be looked at, are found not to be necessary, and which accordingly are not employed in argument. At common law, before a jury, crowds of witnesses are in attendance, who, when the trial comes on, remain unexamined, either because there is really no need of their evidence, or because there is no time for hearing it.
At the same time that the number of the witnesses, and in general the quantity of the evidence of all sorts, that may or may not be necessary, is thus brought forward on all sides,—all circumstances which, in the case of this or that witness or other article of evidence in particular, may operate in enhancement of the vexation, expense, or delay, attendant on the production of that witness or other article of evidence, in like manner should be brought under review. And thus, and thus only, it is, that the judge finds it in his power to do what justice requires him to do in respect of collateral inconvenience: in the first place, to take the arrangements necessary for reducing it to its least dimensions; in the next place, to determine whether (a case which, though rarely, may sometimes happen) the injustice that would result from the production of the proposed evidence, would not preponderate over that branch of injustice which stands opposed to the direct ends of justice, viz. the frustration of a just demand: or, on the other hand (not to make an unnecessary sacrifice of the principal to the collateral ends,) whether, provisionally at least, inferior evidence may not be employed, instead of superior from the same source: makeshift, instead of regular: transcriptural, for instance, instead of original.*
In causes that are fortunate enough to find themselves removed out of the hands of the regular courts into those of special arbitrators, mutual and preparatory explanations take place of course: at any rate, there is nothing to prevent them from taking place, but those accidental deficiencies in point of probity or intelligence, to which all tribunals, and all human affairs, are exposed. In these tribunals, it is to the judge that any failure in this respect ought to be imputed: for if, on a requisition made by the judge, any backwardness in regard to compliance be manifested on either side, such reluctance will but afford an addiditional reason for insisting upon compliance.
These observations, if well grounded, will be worth the attention of those public tribunals, whose hands are not tied up by any of those manacles which have laid the regular courts under the not altogether unwelcome impossibility of obeying the voice of justice. I speak of parliamentary election courts, courts martial, and courts of inquiry, military and naval: for as to the courts held by justices of the peace out of sessions (I speak of the case in which their jurisdiction is definitive,) it is seldom indeed that a cause coming before any such tribunal will be complex enough to afford the matter for any such arrangement: and the same observation may be applied à fortiori to the courts of conscience.
In these, and all other courts in which the ends of justice are the objects of judicature, inasmuch as the preparatory explanation in question always may be called for, so (proportioned to its obvious utility to all persons concerned, and more especially to the judges) is the expectation one should naturally form of seeing it called for in each individual instance. But against this expectation there are two circumstances which operate on the other side: 1. The propensity which all tribunals of inferior account have to imitate the practice of their superiors; and 2. The propensity which all tribunals have to shackle themselves by general rules; extending an arrangement from the one case—the one individual case in which it was found conformable—to an unknown succession of other cases in which it would not be conformable, to the ends of justice.
What? Shall my client then be compelled to disclose the plan of his defence? As well might you call upon him to criminate himself, or upon me to betray the trust he has reposed in me. Such is the objection which, on an occasion of this sort, the consciousness of a bad cause will put of course into the mouth of the experienced advocate: such the sort of argument which finds all ears open to it, under that system of which the spiritus rector is the spirit of insincerity. For, under the technical system, such is the state of things towards which everything gravitates—such the notions attached to the word equity: viz. that on every occasion, justice and injustice, fraud and sincerity, shall have an equal chance.
With reference to this topic, causes, whether criminal or non-criminal, may be distinguished into three classes:—
1. The sort of cause in which, on the first meeting, the whole stock of evidence which the cause affords is visible at once: as, where the cause turns on the testimony of one or both parties, with or without an adducible script or two, or an adducible witness or two, on one or on each side. Under this description will be included the vast majority of causes. In this case, the cause is already ripe for decision.
2. The sort of cause in which,—though the whole stock of evidence be not adducible on both sides,—yet, on each side, every article of evidence proposed to be adduced, is capable of being indicated. In this case comes the demand for the mutual explanations above indicated, and the operation of marshalling the witnesses and documents, in consequence. Ripe for decision the cause may in this case be, perhaps the next day, perhaps not for any number of years afterwards. For who shall say, in every case, at the end of how many months a witness shall be forthcoming, in a country in which voyages to the antipodes are in every day’s practice?
3. The sort of cause in which a man believes or suspects a fact (a principal fact) to have taken place; but, even supposing it to have taken place, knows not as yet by what evidence it may be proved: e. g. that an act of murder has been committed, the author suspected or not suspected: that an instrument produced in the character of a deed or will, is spurious or falsified: that the parentage attributed to a child is false: that a deed or will, though genuine, was obtained by fraud or force. In this case, the cause is neither ripe for decision, nor ripe for any such exhibition or analysis of the mass of evidence, as above.
To this sort of cause applies the demand for investigatorial procedure; that sort of procedure which Roman law has confined to criminal cases—English law (to the extent of the regular system) has denied to all cases, feloniously criminal cases alone excepted,* in which, through the medium of the preliminary examinations prescribed by statute, it has been blown in, as it were, by a side wind.
To pursue, through any further exemplifications, the decomposition of the aggregate mass of evidence, would be beyond the design of the present Book: what is above, will, it is hoped, be found sufficient at once to indicate the nature of the operation, and the use.
Aberrations of established systems in this respect.
In the next chapter we shall have occasion to examine the indirect modes in which all evidence, over and above a certain quantity, has, under established systems, been excluded. In some cases, however, the indirect and disguised exclusion not being strong enough, and the only rational remedy, the preparatory explanation and arrangement, being unendurable, exclusion was to be applied without disguise, and in direct terms. Such, accordingly, upon the continent, has been the resource: take French and Spanish law for examples.
To any given fact or question (fait [fact.] French—pregunta [question,] Spanish) thirty witnesses were and are allowed by Spanish law; ten only are, or at least were, allowed in French law. Are both right? One French witness, then, is equal to three Spanish ones.
Of these limitations, what upon earth could be the design? To make work for advocates?—to give the judge a facility for favouring whom he pleased? If so, it was well aimed: to any good purpose, completely useless.—On the nature of the cause, no distinction grounded: under this direct exclusion, as under the indirect one, the same allowance for all causes.
Fact—question:—of the unity of the fact or question, who shall give the criterion? Nobody: criterion there is none. You are a French judge: a man who has produced ten witnesses wishes to produce more. Would you have him lose? Stick to the unity of the fact, and you stand firm upon the law. Would you have him gain? Split the fact into two, you may then allow him as many as twenty witnesses. Are twenty not enough? Take up the metaphysical wedge, and drive it in once more. We have seen, that to split one man into two witnesses is every day’s practice.* That was a clumsy trick: men, like oaks, are “gnarled and unwedgeable;” facts, like deals, are fisstle.†
EXCLUSION PUT BY BLIND ARRANGEMENTS OF PROCEDURE UPON INDETERMINATE PORTIONS OF THE MASS OF EVIDENCE.
A proposition that seems neither to require, nor (any more than a postulate in geometry) admit of proof, is, that every arrangement of procedure, the effect of which is to exclude an indeterminate portion of evidence—of that stock of evidence, which the cause, in the individual instance in question, happens to afford,—and that, too, without the plea of preponderant inconvenience in the shape of vexation, expense, and delay,—is irreconcilably repugnant to the ends of justice. In every cause to which the operation of the principle of blind defalcation happens to extend, the effect of it is, to reduce to an equal chance whatever preponderant probability of success a good cause may, under the system of procedure in question, give a man as against a bad one.
Such is the result, and such the mischief, supposing the composition of the defalcated mass to depend altogether upon blind chance. Suppose, on the other hand, that it is capable of being influenced by arrangement—by arrangement on the part of either of the parties,—the probability of success, instead of being equal, will be preponderant in favour of injustice. He who, being in the right, is persuaded of his being so, will not naturally have recourse to this or any other sinister artifice: at least he will not be urged so to do by so strong an impulse as that by which the opposite party, supposing him to be in the wrong, and conscious of being so, will be urged.
Had the ends of justice been, in every country, the ends to which the system of procedure had, in the course of its formation, been directed, no arrangement pregnant with any such effect would perhaps any where have been established. But in no country has the predominant part of that system been really directed to those ends: accordingly, arrangements pregnant with that absurd and pernicious effect are to be found established in both of the two systems of technical procedure, between which the more enlightened part of the population of the globe has, in such unequal proportions, been divided.
In the Roman system may be seen one example of an arrangement, by which an indeterminate portion of the obtainable mass of evidence is shut out.
In the English system may be seen an example of another arrangement, which, discordant as it is with the Roman in other points of view, agrees with it in this.
The Roman arrangement here in view, is that by which, whatsoever part of the evidence can by posibility be kept secret from the parties respectively (viz. every part of it but that which has been extracted from a party himself,) is, with the most anxious care, kept from the knowledge of both, until the time when the process of collection is closed.
From this arrangement is apt to result the exclusion of an indeterminate and indefinable mass of counter-evidence. The portion thus excluded is divisible into two distinguishable branches:—1. The additional mass, which, had the already extracted portion been known to them in time, might and would have been extracted by the parties respectively, whether from the witnesses on their own side respectively, or from those on the other:—2. Any such further portion as, in explanation, confirmation, or contradiction of the testimony actually delivered (as above,) might have been extracted from the bosoms of other witnesses.
Such, then, in a few words, is the effect: exclusion of ulterior evidence obtainable by counter-interrogation of the same witnesses; exclusion of counter-evidence extractible by interrogation and counter-interrogation from ulterior witnesses.
The English practice is that which, in civil cases, limits the mass of evidence to the quantity the delivery of which can be squeezed into the compass of a single sitting:* deducting the quantity occupied by the introductory statements made by the advocates on both sides, and the recapitulation made by the directing judge.
Of the nature of the mass of evidence thus shut out, it is not easy to give any the loosest estimate: not so much as the sort of estimate, than which nothing can easily be more loose, given of that which is shut out by Roman practice.
To assist conception, cross over from time to space. Suppose a court (and you need not look further than Westminster Hall to find four such) which, in the case of a cause of a nature to excite that sort of interest, on which the purity of judicial conduct so essentially depends, shall be capable of affording hearing and seeing room to no more than a tenth or a twentieth part of the numbers that would be there if they could. Nine persons out of every ten are thus excluded from the exercise of the functions of a member of the open committee of the public, charged with the inquiry into the conduct of the courts of justice. Who, in each individual instance, are the persons on whom the lot of exclusion falls? When for this question a precise answer has been found, on the back of it will be found an account of the articles of evidence excluded by that law of the judicial drama, which (substituting the dramatic unities for the ends of justice) requires the business to be compressed within the space of time during which a mixed multitude of persons are capable of continuing together in the compass of the same close room, without prejudice to the free exercise of their intellectual faculties.
Incompatible as this system of condensation is to the ends of justice, it wants nothing of that which is necessary to adapt it to the ends of established judicature. Sufficient or insufficient to the purpose or doing right to the parties, the time is never less than sufficient to the gathering in of fees.
The door,—does it happen to have been shut against this or that article of necessary evidence? So much the better. Then come other exigencies, far better adapted than any evidence to the use of lawyers. At law, necessity for new trials, and motions for new trials: in equity, necessity for bills of review, or bills partaking of, or in some convenient shape or other approaching to, the nature of bills of review. An entire cause, with all its evidence, does it happen to be shut out in the lump, because there was not time so much as for the opening of it? Causes are not like strawberries or mackerel: at the end of six months, or of twelve months, they are as fresh as ever; and then they come garnished with fresh fees.
It is only in causes of a complex nature, that the operation of this principle of exclusion can attach: causes which, whether in any other respect or no, are complex at any rate in respect of the number of witnesses from whom relevant evidence might have been extracted. Call twenty-four hours the utmost extent of a single judicial sitting. There are some causes (and of this description are the major part of the causes instituted,) for which a quarter of the number of minutes would be more than enough: there are others for which three or four times as many days might be a scanty allowance.
Where the allowance of time presents itself as insufficient, the quantity of evidence discarded by each party (at least if acting bonâ fide,) will naturally be that which in the judgment of the party can best be spared.
Of either party, if in malâ fide, one resource will be, the crowding in evidence in such quantity as to generate confusion; and, by blinding the eyes of those to whom it belongs to judge, to raise in this way the unfavourable prospect to the level of an even chance.
In any case, the undue advantage from the compression gravitates towards the plaintiff’s side. His evidence being the first heard, the more he introduces of his own, the less he leaves it possible for the defendant to introduce. Out of the supposed maximum of four and twenty, the greater the number of hours occupied by the one, the less the number left to be occupied by the other. The advantage of this policy will, however, be clearer, if the plaintiff who avails himself of it be in malâ, than if in bonâ fide: for, in the latter case, what he gains by the exclusion of his antagonist’s evidence, may be lost in some measure by the confusion produced by the multiplicity of his own.
In the midst of all this darkness, a difference may, however, be observed between the effects of the Roman, and those of the English practice. Of the disguised exclusions, wrapped up in the system of concealment, the influence extends, without distinction, to the most simple, as well as to the most complex causes: for upon the Roman plan of inquiry, there is never any want of time for the extraction of evidence, if the demand presented for ulterior evidence, by the evidence already extracted, were but known in time.
In the English mode, the genius of exclusion confines his operations (as hath been seen) to complex causes. The mischief produced by the English is, therefore, not nearly so extensive as that produced by the Roman mode.
The systems here distinguished by the names of Roman and English, are both of them (it must not be forgotten) alike in use in England. But on the continent of Europe, the Roman practice extends to all courts, at least to all regular courts: in England it is confined to the courts called equity courts and ecclesiastical and admiralty courts.
The compression (that is to say, the defalcation) produced by the rule which confines all causes to the short allowance of time above mentioned, is not, however, by any means the only defalcation to which, under the English system, the pabulum of justice is condemned. Those common-law causes alone excepted, which are furnished by the neighbourhood of the metropolis,—in the whole stock of causes, the mass of evidence is subjected to an ulterior compression and defalcation, to an amount equally indeterminable. A certain portion of time, two days or thereabouts, is allotted with the utmost regularity to whatever number of suits it may happen to a whole county, to a thirtieth part of England, to have supplied in the compass of half the year. Six hours, for example, may by this means be the whole allowance made to a cause, which, had the scene of it lain within the privileged spot, might have had the benefit of the full allowance, sufficient or insufficient, as above described.
In both cases, how fares it with the aggregate mass of causes, in number and bulk unlimited, shut up within a limited compass of time? As it fares with a multitude of men or other animals shut up within the walls of a town or any other boundaries, with a limited and insufficient quantity of food: their fate is disposed of by the three co-regent powers, force, fraud, and fortune: some batten, some are pinched, and some are starved.
Ever and anon, the fruits of necessity in this line are brought to light, as it were by chance. The nature of the cause opened, or begun to be opened,—Stop (cries the judge:) what sort of a cause is this to try! I can’t try it—not I; I won’t so much as attempt it: it is not to be done. Necessity, by which every thing is justified—necessity, thus invoked, comes in and justifies denial of justice. From a tribunal which does not afford itself so much as a possibility of doing justice, the cause is then shuffled off to another, which, having time for collecting evidence, wants nothing but the means: the cause is referred to unlearned judges, under the name of arbitrators: pressed by the tide of authority, though without direct and adequate coercive power, the parties (whether in bonâ or in malâ fide) are wrought upon, in some way or other, to consent to this arrangement: arbitrators chosen, one on each side: the foreman, or some other distinguished member of the jury: some advocate, mutually agreed on, as not being engaged on either side: nothing deficient but the power of compelling the production, and providing for the trustworthiness of evidence.* The instruments they possess for bringing the truth to light, are good against everybody but those who are dishonest enough to wish and endeavour to suppress it.
As often as this necessity betrays itself, just so often does it appear, that in cases of this description, trial by jury, conducted as it is conducted, is incompatible with justice. What matters it, in the view of lawyers and their dupes? What in their creed is this sacred institution? Not a means to an end, but itself an end. The use of judicature is—what? Not to render justice, but to make work for juries.† And why make work for juries?—Why but because trial by jury is trial with lawyers, with forms upon forms, heaped together for the use of lawyers?
The mutilation of the body of necessary evidence, or, in other words, the exclusion of an indeterminate part of it, has thus far been brought to view as an effect produced in every technical course of procedure. Two arrangements, one of the Roman, the other of the English system, have at the same time been brought to view in the character of so many efficient causes, by which that effect has actually been produced.
That, under the English system, the production of any such effect was, so much as in the anticipation of the authors, among the final causes of the arrangements themselves, is what there seems little reason to suppose.
But in speaking of the Roman system, the design of producing this very effect (pernicious as we have seen it to be) has been expressly stated as a final cause, or rather as the final cause, of the arrangement, the systematic concealment, by which the effect is produced. Concealment, a practice so natural to iniquity—a practice, unless under special circumstances and as against special mischiefs, so unnatural to justice, so abhorrent to the general complexion of English judicature,—required (it seems to have been thought) a reason to justify it in the sight of English lawyers, when the Roman system came to be planted in English soil.
Problem:—In all cases (except, in criminal cases the preliminary ex parte inquiry,) the receipt of evidence being public at common law; required, to find a reason for its being kept as secret as possible in equity. Such being, on one hand, the problem,—such was, on the other hand, the solution—the only solution that could be found for it.
First, let us observe the practice; then, Gilbert’s reasons for it.
State of the practice.
1. In the oath taken by the persons who to this purpose act as judges ad hoc (viz. in the district of the metropolis, the examining clerk—out of the district of the metropolis, the commissioners nominated by the parties) are these words:—“And you shall not publish or show the same depositions to any person or persons before publication in the court, without consent of the same court.”*
2. “Neither the examinations or depositions, which are taken by commission, can be published, in any case whatsoever, till publication is duly passed by rule in the office, or by motion or petition, for it may be done either way.”†
3. “And in this case” (viz. where the party applies to have the time for publication put off) “the plaintiff or defendant (as the case falls out) must make oath, and so must his clerk in court, or solicitor, ‘that they have neither seen, heard, read, or been informed of, any of the contents of the depositions taken in that cause; nor will they see, hear, read, or be informed of, the same, till publication is duly passed in the cause.’ ”*
Then comes a story of a solicitor, who, to prevent the solicitor on the other side from gaining the further time necessary to the examination of his witnesses, read over to him the depositions already taken on his (the reader’s) side.
Such being the practice, behold now the learned lord chief baron’s reasons for it:—
1. “If the commissioners on both sides attend the execution of the commission, and the one side examines, and the other neither examines nor puts in any interrogatories, he shall never afterwards examine, unless upon special order of the court, upon good cause shown; because he must not form his interrogatories upon the discovery made to his commissioners, of what the other side examined to.”†
2. “The fair examination by commissioners is not to adjourn without necessity; . . . . but if it be necessary, they may adjourn, not only in time, but place. And this affair must be performed, as far as possible, uno actu, that there be as little opportunity as possible to divulge the depositions, that neither side may better their proof.”‡
3. “If it shall appear to the court . . . . that the defendant’s commissioners attended during the whole time of the execution of the commission, and never exhibited any interrogatories, in this case the court will never grant the defendant another commission, and he must take it for his pains; since he lay upon the watch and catch, only to see what the plaintiff proved, and then, at another commission, to exhibit interrogatories adapted to such matters and questions as might tend to overthrow all that had been done; and he shall never be admitted to have this unfair advantage over his adversary: for if he is admitted, after having knowledge of all that his adversary hath proved, to exhibit interrogatories, he may easily conceive what interrogatories to exhibit, and how to hit the bird in the eye.”∥
Then, immediately after, follows a passage, to state, that, if a new commission is granted, no addition ought to be made to the interrogatories framed for the former one, “without special leave of the court; and [then] they are to be settled by a master, and are never done [i. e. this is never done] but in extraordinary cases.”
4. “Afterwards (after publication of the depositions already taken) there could be no examination of witnesses, unless by the special direction of the judge, upon good cause shown, and an affidavit of the party, that he, or those employed by him, had not, nor would, see the depositions of the witnesses which were published; by reason of the manifest danger of perjury and subornation of witnesses, in case examination should be allowed after publication.”*
5. One reason comes in the form of a parenthesis, and that parenthesis an assumption; the truth of the observation being supposed too self-evident to be disputed: “Since the very life and vitals of almost every cause, and of every man’s property, lies in keeping close, and secreting his evidence till after the depositions are published, because after that, there is an end of examining . . . .”†
The view taken by the learned jurist is altogether curious. That either of the parties should possess the possibility of “bettering his proof,”‡ he considers as a result fatal to justice: a result to be prevented at any price. For, of such melioration, what might be the consequence? “It might tend to overthrow all that had been done:” “the bird” (according to his ingenious metaphor) might be “hit in the eye.”∥
At the time of his writing this, or before, the learned author was head shopkeeper of that great double shop, in which common law or equity is served out, according as the one or the other happens to be bespoke by the plaintiff customer: for the clause in Magna Charta which precludes the sale of justice, precludes not the sale of common law, or of equity. On the common-law side, whatever truth is to be served out is warranted entire: the truth, and the whole truth, as well as nothing but the truth, are the words of the oath, expressive of what each witness undertakes for the delivery of. But to what purpose is it, that, from each witness, the whole of such part of the facts belonging to the case as happen to have come to his knowledge are required? To this purpose, surely,—viz. that, from all the evidence together, including the depositions of all the witnesses, the whole assemblage of facts which the case furnishes may be collected. What, then, on this occasion at least, is the aim of common law? To come at the truth entire. What, on the other hand, is the aim of equity? To get it mutilated; to get it in a state in which it shall, at any rate, be to some degree or other imperfect, and no one can say in how great a degree. Right and wrong shift their places or their natures, according as the judge sits as a common-law judge or as an equity judge: according as the article is served from the one counter or the other.
On the Tuesday, the learned judge, sitting at common law, grants a new trial. There his birds are set up by him, all in a row, though there be a thousand of them—set up like cocks on a Shrove Tuesday, ready to be “hit in the eye” by anybody who has a stone to throw at them. The next day the same reverend person sits in the character of an equity judge—and now secrecy is the order of the day; and now “the very life and vitals of the cause lies in secreting the evidence.”
But it such counter-interrogatories, or counter-evidence from counter-witnesses, were admitted, the danger of “subornation” of perjury, and of “perjury,” he says, “is manifest.”*
Yes, indeed—but too manifest. Open the door to evidence (meaning sworn evidence,) you open the door to perjury. Would you shut the door, shut it effectually, against perjury? Two ways are open to you, and both sure ones: shut the door against all sworn evidence, or shut it against all evidence.
But, when the mass of evidence thus to be shut out is anything short of the whole, observe the consequence. True it is, that in such evidence as is not produced, no perjury will be contained. But how is it in regard to the evidence which, being allowed to be produced, has been produced accordingly. Assurance against being cross-examined, against being opposed by counter-evidence; assurance against being exposed to contradiction, from themselves or others; security against ulterior contradiction from any quarter:—such is the security proposed as proper to be applied—such is the security actually applied, against mendacity and temerity on the part of witnesses.
That the arrangement proposed by the learned judge, in the character of a security, and that a necessary one, against the mischief of perjury, is naturally (not to say necessarily) productive of that very mischief, is not only manifest enough to everybody, but to nobody more so than to the learned judge himself. For by what is it, that, when one party only (say the plaintiff) has examined his witnesses, the commissioners of the other party (the defendant) having been present at such examination, the defendant is enabled “to hit the bird in the eye?” His commissioners, in violation of the letter of their oaths, communicate to him (the party) the depositions extracted by the commissioners on the other side: for, unless this were the case, whatever were the demand for such suppletory and complementory counter-evidence and counter-interrogation, the party could not have any knowledge of it. So that, in the perjury with which the arrangement is seen to be pregnant, consists the reason, and the only reason, given in justification of that very practice.
This precaution is exactly of a piece with the policy which, in some ages and countries, has, under the auspices of Roman law, governed the arrangements in criminal cases. The prosecutor, on his part, producing his evidence, the defendant, on his part, was not to be allowed to produce any. Why? Because, at this rate, the charge might come to be contradicted; a licence which was not to be suffered.
Being relevant, the ulterior evidence thus excluded, would it have been true or false? If true, no great harm, one should have thought, would have been done by it. If false,—but what is there that should make it false, this subsequent, rather than any antecedent, mass of evidence?
Evidence (the testimony of an extraneous witness) delivered in a preceding cause between other parties, is not received in a succeeding one. Why not? Because, in the preceding cause, the party against whom it operates in the succeeding cause had no opportunity of endeavouring at the correction or completion of it, by counter-interrogation or counter-evidence. In this case, the propriety of the exclusion is not in question here. What is to the purpose, is, that such is the established rule—established, not at common law only, but in equity.
The depositions having been published (i. e. communicated to the parties,) evidence respecting the character of each witness may be poured in without stint:* evidence on the one side attacking his character—evidence on the other side supporting it. Evidence of this sort, “generally speaking,” says the learned judge, “ends in nothing more than putting the party to an expense to no purpose.” Here, then, if superfluity of evidence were the mischief to be cut off,—here would be a species of evidence for the knife to operate upon. No such thing. Where the evidence is known, and known to be of that sort which is extendible ad infinitum, and after all of little or no use, no such idea is started as that of excluding it. Where the importance of the mass of evidence in question is beyond all estimate, then it is that it is to be barred out; and secrecy is the bar set up against it.
Those who introduced this arrangement into the system of procedure, gave no reasons for it: they did wisely;—they had none to give. On this, as on some other occasions, Gilbert has taken it into his head to give reasons:† here, as elsewhere, being given, they are worse than none. Under the technical system, the safe course, and the only safe one, to be taken with judges’ reasons, is the course taken with them in the House of Lords: to enter them as given, and to give none,—none at least which the subject, whose conduct is to be governed by them, and whose fate depends upon them, has a possibility of being aprised of.
EXCLUSION BY RENDERING A PARTICULAR SPECIES OF EVIDENCE CONCLUSIVE.
Impropriety of the exclusion.
Admission of counter-evidence is one of those securities, of the necessity of which, much (it may be thought) would not require to be said.
Exclude out of the budget any article of evidence, whether on one side or another: in proportion to the probative force with which such excluded lot would, had it been admitted, have acted upon the mind of the judge, in that same proportion is the aggregate mass of evidence incomplete.
Exclude, on either side, the whole of the mass of evidence that would or might have been delivered on that side, leaving the door open to whatever evidence is ready to be delivered on the other: misdecision in disfavour of the side on which the evidence is excluded, is not, indeed, by so doing, rendered the certain result (since there remains the possibility that the unexcluded evidence may not gain credit;) but, at any rate, the tendency of such arrangement to give birth to misdecision, seems too palpable to be matter of doubt to any one: so palpable, as to produce, as it were, a mechanical and instinctive idea of one of the most revolting modifications of injustice.
Audi alteram partem, says the common adage: before you give judgment, hear whatever there may be to be said on the other side. As a memento, good: for information, for guidance, not sufficient. To be said?—In what way? In the way of evidence? in the way of observation upon evidence? There are few cases in which observation on evidence may not be of some use; there are none at all in which evidence itself is not absolutely necessary.
To exclude evidence indiscriminately on both sides, is turning fortune loose to do the work of justice: to exclude evidence from one side only, leaving the door open to it on the other side, is a sort of arrangement which, to judge of it in the abstract, could have been dictated, one should have thought, by no other principle than that of determination to do injustice.
Under the technical system, however, not only has evidence been excluded in detail—evidence of such and such a particular nature, in consideration of its nature; but evidence has even been excluded in the lump, without any consideration of its nature: the whole mass of evidence: whatever evidence might, had it not been for the exclusion, have been delivered on this or on that side.
If it really be not conducive to the ends of justice to shut the door on either side against evidence—against all evidence in the lump, without knowing what it is—to show, in any instance, that by this or that arrangement in any established system, a door has thus been shut in this way against evidence, is to show that the arrangement in question is repugnant to the ends of justice. Thus to class it, is to condemn it: to condemn it, and on the surest grounds.
In one of two senses given to it, the word conclusive, as applied to evidence, seems in a manner peculiar to English law: the reason will appear presently.
In one sense, it puts no exclusion upon evidence of any sort. Evidence thus spoken of as conclusive, may be said to be spoken of as conditionally conclusive: conclusive primâ facie—conclusive nisi.
In another sense, it puts an exclusion upon evidence—upon all evidence on the other side. Not to speak of real evidence—not to speak of other circumstantial evidence,—it pronounces all witnesses on the other side liars: all witnesses, be they who they may, and in whatsoever number. In this sense, the absurdity of the propositions of which it makes the leading term, the rashness, the inutility, the mischievousness, of all decisions grounded on them, is, when once stated, too evident to be proved. It pronounces some fact or other impossible. Is it then really impossible? What probability, then, is there, that it will be not only asserted by a witness, but also credited by the judge? Is it not impossible? Then why will you pronounce it so?
Evidence spoken of as conclusive in this sense, may be said to be spoken of as absolutely conclusive. Evidence absolutely conclusive is that to which the effect is given of putting an exclusion upon all counter-evidence.
The question concerning conclusive evidence—whether this or that lot of evidence shall be treated as conclusive, regards species of evidence: it regards the propriety of laying down a generic, or (as on this occasion we may term it) a specific rule, pronouncing that the truth of the sort of fact shall be inferred by the judge, as often as any evidence of the sort in question is produced. It regards, I say, the genus of the lot of evidence: for as to the individual lots, no decision is, or ever can be, grounded on any lot or body of evidence, but that lot or body of evidence is treated as conclusive with relation to the individual suit in hand.
But in so far as the lot under consideration is no more than the individual lot, the question whether it shall be conclusive or no, has no place in any book of jurisprudence—in any book in which, from the decisions pronounced in individual cases, the author takes upon himself, in the way of abstraction, to deduce general rules.
1. If the mass of evidence be made conclusive absolutely, observe the consequence. The nature of this will vary, according as the suit is of a penal nature or of a non-penal nature; and in each case, according as the side, in favour of which the evidence is thus made conclusive, is that of the plaintiff, or that of the defendant.
Let the mass of evidence thus rendered conclusive, be composed (suppose) of the concordant testimony of two persons—two witnesses exhibited on the same side.
In the penal branch,—to render the testimony of any two witnesses in this way conclusive absolutely against the defendant—to force the judge to convict a defendant upon the testimony of two witnesses, whether it does or does not produce in his mind a persuasion of the fact of their delinquency—whether the testimony thus exhibited appears to him correct or not, veracious or not,—is as much as to give to any two ruffians a power to ruin any individual whatever, or any number of individuals, at their choice, in point of property, person, reputation, or life, as the case may be.
In the penal branch, again,—to render the testimony of any two witnesses conclusive in this same way in favour of the defendant—to force the judge to acquit him, in consequence of the want of such evidence to convict him (believing him at the same time, as above, to be guilty,)—is as much as to confer on any two hireling perjurers a power to give a virtual pardon—to give, even beforehand, a certainty of impunity to any malefactor at their choice—to any number of malefactors at their choice, whatever be their crimes.
In the non-penal branch,—to render the testimony of any two witnesses conclusive in this same way in favour of the plaintiff—to force the judge, on the ground of such testimony, to confer on him the right he sues for (the judge at the same time not believing him possessed of any good title to such right,)—is as much as to confer on any two, and every two, hireling perjurers, a power of conferring a proprietary right of any kind upon any individual at their choice, or any number of proprietary rights of all kinds, and with reference to all subject-matters, upon any number of individuals at their choice: and thereby to impose upon any individual the obligation correspondent to such right: to impose, therefore, upon any number of individuals, the obligations respectively correspondent to all manner of proprietary rights with reference to all manner of subject-matters.
In the non-penal branch, again,—to render the testimony of any two witnesses conclusive in this way in favour of the defendant—to force the judge, on the ground of such testimony, to refuse to the plaintiff the right he sues for (the judge at the same time believing him possessed of a good title to such right,)—is as much as to give to any and every two hireling perjurers, a power of debarring any individual, or any number of individuals, at their choice, from the acquisition of all such rights, however necessary to their existence, for the acquisition of which the law has made it necessary for them to obtain the decision of a judge: to exempt, accordingly, any individual, any number of individuals, at their choice, from the obligations respectively correspondent to those rights; i. e. by the imposition of which, and not otherwise, those rights would be conferred.
Away with all exaggeration!—begone all false conceptions, on a ground on which so much depends on truth and accuracy! A power is one thing—a licence is another. Of a power, the virtue is, to enable a man to produce the effect in respect of which he is empowered: of a licence, the virtue is, to exempt him from punishment, in the event of his producing such effect. To give to the two confederates in question the power of producing all these pernicious effects, would be the result of any such rules as these respectively contended against: to enable them to produce those same effects with certainty of impunity to themselves, is not among the results of any of those respective rules. For, by the supposition, perjury is necessary, in each case, to the production of the corresponding mischievous effect: and from the punishment (whatever it be) that happens to be attached to perjury, no exemption is given by any of these rules.
Of the sort of licence in question, in addition to the power, what would be the consequence? The utter destruction and subversion of political society in any community in which it should be established: the ruin of all innocent persons; the impunity and triumph of all malefactors: the ruin of all persons having a title, in each case, to the rights sued for; the exaltation of persons having no such title.
2. Where the effect of the rule is not to render the mass of evidence in question conclusive absolutely, but only conclusive nisi, the mischief is not so great; yet still the effect, if any, is mischievous, and it has no sort of advantage, in any shape, to help to balance it. It is only in default of evidence on the other side, that the certainty of prevailing is bestowed upon it. But in the case where this certainty takes place, what is it that truth and justice get by it? Here are two pieces of evidence, each of them susceptible of an infinity of degrees of persuasive force—each of them susceptible of the lowest degree. Both together, the degree of persuasion they would be productive of, in the conception of the judge, is not beyond the second degree in the scale of probative force:* —comes the rule, and forces him to act as if the degree of his persuasion were at least somewhere above the middle of the scale. The evidence appears false to him: and he is obliged to act as if it appeared to him to be true.
One class of cases there is, and that a most extensive and important one, in which it may appear that evidence, circumstantial evidence, of this or that description, is built upon as conclusive, and even absolutely conclusive: and that with perfect propriety and good effect. This is the case of those acts which, in consideration of their connexion with some principal act, obnoxious on its own account, and on that account put upon the list of crimes, are, therefore (though in themselves, and were it not for that connexion, not obnoxious,) also put upon that list: as in the case of those clusters of offences (each composed of a principal offence and an accompaniment of accessory offences) which come respectively under the titles of forgery, coming, smuggling, and the like.
But, in these cases, the truth (as upon a closer inspection will appear) is, that no such conclusion is really formed: or at any rate, that, to warrant the course taken by the legislator, it is not necessary that any such conclusion should have been formed. Of him, by whom an act of the description of the accessory act in question is performed, it has been deemed probable by the legislator, that an act of the nature of the principal act has been, or was to have been, performed, or that he has been, or was to have been, in some way or other, assistant to the enterprise of him by whom such principal act has been committed. But the propriety of the treatment, in the extent thus given to it—in the extent by which it embraces the cluster of accessory acts in question—depends not altogether upon the rectitude of the inference. Whatever be men’s views, in the performance of the accessory acts thus converted into offences, the legislator is warranted in converting each of the acts in question into offences, if so it be, that the prejudice (if any) that results to the agents in question, and others, from their non-performance, is not equal to the advantage gained by the check thus applied to the principal offence.
Hence it is, that, in point of propriety, any conclusion thus formed rests on very different grounds, according as it is formed in the station of the legislator, or in that of the judge. Formed by the legislator, it is not necessary that it should be true in every individual instance: it may not be necessary that it should be true in so much as a majority of individual instances. Formed by the judge,—formed, that is to say, with such effect as to have served for the foundation of a general rule of jurisprudential law,—it is productive of mischief, if there be but a single instance in which it is not true: it is productive of mischief, at any rate, in that one instance. Why? Because the individual in question had no warning to abstain from the act:—like most other rules of jurisprudential law, it falls upon the victim with the weight, and is attended with the barbarity and iniquity, of an ex post facto law.
If the evidence, which, in the cause in hand, it is proposed to consider as conclusive, is evidence that has been exhibited, not in that same cause, but in another cause that has no relation to it,—the impropriety of the regulation is still more enorinous. Of the inference drawn from a lot or mass of evidence in any preceding cause, no use, no mention ought to be made in any succeeding cause. Here, not only is mention made of it, but the judgment then passed upon it is made to command the decision, in such manner as to prevent the subject from being so much as viewed at all in its own proper lights. In the one case, extrancous matter is mixed with the proper matter, the proper matter not being excluded: in the other case, not only is the extraneous matter admitted, but, in consequence of that improper admission, the proper matter is excluded.
The case of conclusive cridence must be distinguished from the case of conclusive decision. The case in which the decision in question is considered as being commanded by the evidence already adduced, must be distinguished from the case where the decision is considered as being commanded, not immediately by any document of the nature of evidence, but by a document of the nature of a decision—a decision already pronounced: pronounced, whether in the same court or in any other court: if in any other court, whether in a court acting under the dominion of the same sovereign, or in a court acting under the dominion of a foreign sovereign.
Such is the distinction which has been rendered requisite by the inaccurate genius of technical nomenclature. For the purpose here in question, decisions, decisions of other courts, are spoken of under the name of evidence.
Supposing the decision of the other court in question to have been grounded on evidence received on both sides; it follows, that, from the admission of such decision as conclusive, in regard to the facts on which it was grounded, no such absurdity, no such mischief, follows, as from the giving to evidence itself, on one side, a conclusive, and thence an exclusive, effect.
On what occasions, and on what grounds, may it be proper for one court to allow (viz. with regard to the question of fact) this authority to the decision of another? A question alike curious and important; which belongs not, however, to the present head, but to that of makeshift evidence.*
There is one case in which, in the absolute sense, the term conclusive may be employed with propriety, and yet the evidence upon which the exclusion is put by such conclusive evidence, cannot with propriety be ranked under the denomination of counter-evidence. This is, where, on the ground of evidence in its own nature insufficient and inconclusive, appearing on one side, a sort of practical conclusion is built in favour of that same side, to the exclusion of all such evidence as might have been adduced on that same side. In the sort of case here in view, no exclusion is put upon any evidence on the other side: no exclusion is put on any evidence characterizable by the appellation of counter-evidence. Why? Because the circumstances in which the practical conclusion in question is drawn are such, that a conclusion of that sort must be made at a time when it is impossible as yet to know whether that side of the cause does or does not afford any counter-evidence.
The case in question is this: for the sake of simplification, take (as being the more common case) the case where it is on the plaintiff’s side that the insufficient evidence is thus conclusive. The plaintiff, using the forms prescribed by the technical system, gives commencement to a cause—say a criminal one. On the defendant’s side, the time being come in which, in the track marked out for defence, something should have been done by him, nothing in fact is done. In the state of things thus described, judgment of conviction is pronounced, or some grievous load of vexation imposed, on the defendant; the plaintiff, although able, neither being required nor admitted to establish the fact of delinquency by any better evidence.
In this case, the evidence (such as it is,) on the ground of which the burthen in question is imposed upon the defendant, belongs to the head of circumstantial evidence. It consists of two distinguishable lots, or evidentiary facts:—first evidentiary fact, the step taken, or progress made, by the plaintiff in his suit: second evidentiary fact, the negation of the step in question (the step made necessary to defence) on the part of the defendant. To these two evidentiary facts, corresponds, in the character of the fact evidenced, the delinquency of the defendant in respect of the offence charged.
This kind of circumstantial evidence never is—in point of reason never can be, of itself sufficient to support any such practical inference. Why? Because, if the defendant be really guilty, it is impossible but that some better, some more apposite and direct evidence, at any rate some ulterior evidence, must be to be had.
But the authors of the technical system have found their convenience in putting it into the power of any man in the character of a plaintiff, to put any other into a state of conviction, or into a state tantamount to conviction, on the ground of this flagrantly insufficient evidence: having their reasons for not requiring, nor so much as admitting, better or ulterior evidence, even when direct evidence of the most completely satisfactory description is to be had.
This abomination, the result of the most barbarous iniquity, or the grossest stupidity, has been adopted by every existing modification of the technical system: and, in every country, it covers a prodigious (though everywhere a variable) extent in the field of judicature.
But, in the exclusion thus put upon evidence, nothing, we see, that can with propriety be spoken of under the appellation of counter-evidence, is comprised. Suppose all that evidence, that direct and satisfactory evidence, which is thus excluded—suppose it all delivered; there could not perhaps (or at least would not,) in that stage of the cause, be delivered any counter-evidence, any evidence on the defendant’s side: on the part of the plaintiff, whether the defendant knows as yet what has been done against him,—what he knows, where he is, or whether he even exists, is not as yet known.
The fact inferred in these cases is, non-existence of evidence on the defendant’s side, and thence non-existence of right.
The inference, considered as being (what it is) a sweeping and all-comprehensive one, is big with injustice.
Everywhere there are two states of things, the existence of which, in the character of the efficient causes of the failure, is at least not less probable than the non-existence of evidence: indigence, want of the means of self-defence in the judicial field; want of notice, viz. want of knowledge of the obligation by which the party is urged to bring those means into action.
Want of notice is the but too natural and looked-for result of the contrivance employed by the genius of chicane, for preventing the means employed, under the notion of conveying notice, from being productive of that effect.*
In regard to indigence,—to estimate the comparative probability, as between this state of things, and the consciousness of the non-existence of evidence, and thence of title,—in the character of causes of failure in respect of the taking on the defendant’s side the steps requisite for the continuance of the cause, say thus:—Of the whole number of inhabitants in the country in question (England,)—as the number of those who are not able respectively to command, in addition to the sum requisite for their subsistence for and during the continuance of the cause (say a twelvemonth,) the least sum sufficient for the carrying it on on that one side (say £30,) is to the remaining number,—so is the probability that the failure is the effect of indigence, to the probability of its being the effect of the non-existence of evidence, and consequently of right, on that same side.†
The mischief being thus brought to view—the nakedness of iniquity, official and professional, being uncovered,—the remedy is almost too obvious to admit mentioning. Render not to the plaintiff in any case the demanded service, till after he has, on his part, produced appropriate evidence, of some sort or other, in support of it. Is it out of the mouth of his antagonist, the defendant, that the evidence, or an essential part of it, must come? Though in this case it is out of his power to produce that evidence, at the worst he may produce (though it he out of his own lips alone) evidence that shall be sufficient to satisfy the conscience of the judge, in such manner as to warrant him in subjecting the defendant to whatever vexation may be necessary for extracting from his lips (or, in case of necessity, from his pen) the evidence alleged to be necessary for the final substantiation of the demand.
Obvious and effectual as is the remedy, the bar opposed to it is no less so. It supposes one party at least to be heard, and heard at the outset of the cause. But that neither party shall be heard (especially at that stage,) is of all established principles the most inviolable: a principle, the violation of which would reduce Westminster Hall to a heap of ruins. It would leave prisons empty: it would lead captivity captive: it would render offices neither worth selling nor worth giving: it would bring the greater number of suits to an untimely end, and leave the remainder not worth the continuance.
Confined to the viles animæ—to the souls too wretched to yield fees—the creatures to whom it would be beneath the dignity of law or equity to do justice,—the experiment was endured, the father as it could not be prevented. Extended to those for whom alone that justice was made that is worth rendering, it would be subversive of the very ends of judicature.
It was observed above, that, in one sense, no exclusion could be said to be put by this arrangement: no exclusion put upon evidence on one side, as where an article of evidence produced on the other is made conclusive.
On one side alone, true it is that by this arrangement no exclusion is put upon evidence. Why? Because the exclusion that is put involves the evidence on both sides; in a word, all evidence. On the defendant’s, because either he has had no notice, or it is out of his power to profit by it: on the plaintiff’s, because, having done the needful, having run the gantelope through the offices, he is excused from giving evidence, lest he should have none to give.
Why should evidence be received? What is there to be got by receiving evidence? If anything, what is scarce worth stooping for. What is there to be got by receiving that which is not evidence? Look to those arcana imperit that have been divulged by the treachery of false brethren: look to the lists of fees.
An article of evidence may with propriety be made conclusive for the purpose of an incidental decision.
A distinction requires to be made in regard to the stage of the cause, the stage to which the evidence in question applies.
The case in which this disguised exclusion is absurd and mischievous, is the case where,—the fact to which the evidence is applied is the principal fact (or among the principal facts) on which the demand or the defence is grounded,—the matter of fact upon which the ultimate decision has to be pronounced,—and the decision to be grounded on that fact is also an ultimate decision, as above.
Very different may be the case, where the decision to be pronounced is no more than an incidental decision; and the conclusion to be drawn, a conclusion by which such incidental decision shall be warranted. In this case, and for the purpose of grounding such incidental decision, frequently indeed does it happen, that this or that article of evidence may be treated as conclusive; this or that fact may, in the quality of an evidentary fact, with relation to this or that other in the character of a principal fact, be treated as conclusive.
Such is the case, wherever, upon the application of one party, a decision is pronounced, a judicial act done as of course, upon an ex parte representation, no opportunity of contesting the truth of it having been given to the other: as where, upon a representation made by a person saying that goods of his have been stolen, and (as, from such and such circumstances, he suspects) by Titius, a warrant is issued for the arrestation and provisional confinement of the supposed thief.
For the purpose of an ultimate decision, pronouncing Titius guilty of the theft, this evidence is not deemed conclusive: for the purpose of the incidental decision, pronouncing the guilt of Titius to a certain degree probable (to such a degree as to warrant his arrestation and confinement, for the purpose of judicial inquiry,) this same evidence is deemed conclusive: and it is even made absolutely conclusive; for, by the nature of the measure taken, all faculty of combating the proposed decision by counter-evidence exhibited antecedently to the delivery of it, is taken away.
To the purpose of an incidental decision of any sort, evidence of any description may be treated on the footing of conclusive, absolutely conclusive, evidence exclusive of all counter-evidence,—where the utmost mischief producible by the exclusion is outweighed by the advantage produced by the decision in relation to the several ends of justice.
Thus, in the case just mentioned, the price paid for the advantage consists in the vexation (and that commonly attended with expense) produced by the restraint thus put upon locomotive liberty: the advantage itself consists in the security afforded for the forthcomingness, and thence for the justiciability, of the supposed thief. Give him the opportunity of contesting the necessity, and thence the propriety, of his confinement (the provisional and temporary confinement,)—if he is innocent, he will come in and contest it; but if, being guilty, he apprehends the proof will be strong enough for his conviction, he will make use of the summons as a warning not to comply with the requisitions of justice, but to elude them, and make his escape.
To a certain degree, every step on one side, which, on pain of greater inconvenience, calls for any step to be taken on the other side, is productive of vexation: for in judicial procedure every step that is taken is attended with vexation. In every instance, therefore, the evidence to which this effect is given, is, to a certain degree, productive of that sort of ill consequence which is attached to the giving it the effect of conclusive, and thereby of exclusive, evidence. If, instead of a warrant for arrestation directed to a minister of justice, a simple summons addressed to the suspected thief, and requiring his attendance, had been employed, the vexation would have been lessened indeed, but it would not have been done away: and, so far as this minor vexation is concerned, the giving this effect to the evidence would have been productive of that sort of ill effect which is produced by the employing any lot of evidence in the character of conclusive, and thence of exclusive, evidence. But be the vexation what it may,—if it be productive of preponderant benefit, and if, at the same time, the quantity of it be the least that it can be made, consistently with the production of that benefit,—it will always be warrantable.
By this observation we are led to the practical caution, never to give to any lot of evidence the quality and effect of conclusive evidence, till, in respect of persuasive force, it has been rendered as strong as it can be rendered without the production of preponderant vexation, or other inconvenience, viz. to the person from whom the evidence is required: which is as much as to say, not to impose upon either party (in particular upon the defendant) the necessity of taking any step, or ulterior step, in the cause, without the other party’s (the plaintiff’s) having antecedently been made to produce whatever evidence he is able to afford without preponderant inconvenience.
For the purpose of commanding an interlocutory decision, in what cases shall any (and what) lot of evidence be regarded as conclusive? Answer: In such cases in which the certain mischief,—in the shape of collateral inconvenience by vexation, expense, and delay, attached to the receipt of counter-evidence with the consequent discussions,—would be greater than the contingent mischief, in the chance of direct injustice, incurred by the chance of untrustworthiness (understand proveable untrustworthiness) produced by the absence of the light that might have been thrown upon the subject by the excluded counter-evidence.
Such is the general description of the cases in which the exclusion of counter-evidence, in opposition to evidence for grounding an interlocutory decision, may be proper. To the propriety of the principle, no objection seems likely to be made. How, in each instance, to determine whether this or that particular case comes within this general description, is a problem, the solution of which threatens to be attended with considerable difficulties.
But though it is not possible to lay down any general rule, indicative of the cases in which a certain portion of evidence may, for the purpose of an interlocutory decision, be treated as conclusive, and counter-evidence excluded,—it is not difficult to point out two cases at least, in which it cannot, without impropriety, be so treated: viz. 1. If the interlocutory decision is liable to be productive of irreparable damage; 2. If the decision, apparently on an interlocutory point, have the effect of a decision on the main point.
Aberrations of Roman and English law in this respect.
In the Roman law I do not observe any traces of evidence regarded as conclusive in the improper sense.
To a hasty glance, the suppletory oath and the expurgatory oath wear somewhat of the appearance of it. Examined more closely, they seem not, either of them, to be productive of any such effect. The suppletory oath is admitted in default of other sufficient evidence on that side: and does not command the decision—does not put an exclusion upon any evidence on the opposite side. The expurgatory oath (on the defendant’s side) is not called for or admitted, till after the plaintiff has had full liberty to adduce whatever admissible evidence he can obtain on his side.
In all these cases, the testimony in question is admitted in default of more satisfactory evidence, and is not understood to put an exclusion upon any other evidence.
In all these cases the arrangement is abundantly improper. But the cause of the impropriety has already been indicated in another place: it consists in the want of scrutiny: it belongs not to the present head.
In English jurisprudence there is one remarkable case, in which the effect of conclusiveness has been given to a mass of evidence: this is the case of wager of law.* The conclusive operation is confined to the non-penal branch of the law: it operates on the side of the defendant, and of the defendant only. On the other hand, the conclusiveness of it is absolute: and after all these reductions, the effect of it in practice is as pernicious, as it is absurd in principle: and from the degree of mischief of which it has been productive on this narrow ground, a sort of anticipation may be formed (how inadequate soever) of the mischief of which it would be productive, were the ground it covered more extensive.
In former days, when the practice called wager of law, that of a man’s waging his law, was in use, the manner of it was this:† —The demand on the part of the plaintiff having been exhibited in the accustomed form, the defendant, if he thought proper, was at liberty to exhibit himself in open court, to go through the ceremony of an oath, and, under favour of that sanction, to deny the justice of the claim, in terms altogether general, prescribed by a formulary of the same tenor in all cases. No details called for or permitted; no other witnesses called for or permitted on that side; no faculty of cross-examination allowed to the adverse party, the plaintiff. A certain number of fellow-swearers were, indeed, not only admitted, but called for on his part. Swearers, but to what point? Not to any particular fact belonging to the case, but merely to the general and irrelevant fact, the opinion (a favourable opinion) respectively entertained by them in regard to the veracity of the party by whom they were thus produced. To whatsoever evidence of the direct kind the cause might happen to afford,—circumstantial evidence, and that of the most vague and inconclusive kind, evidence of character, was substituted.
So much for the absurdity: now comes the mischief.
Two sorts of claims were originally infected by this debilitating plague: 1. The sort of claim made by what is called an action of debt, a demand of a sum of money, a demand of the non-penal kind, by which the plaintiff, in making his application to the judge, called upon him to impose upon the defendant the obligation of conferring on the plaintiff the property of a sum of money liquidated in amount, payable of course in coin, of which the individual pieces were determinable by the defendant’s, the intended collector’s, choice; 2. The sort of claim called an action of detinue. In debt, the thing claimed was a mass of money: liquidated in value,—not liquidated—but (as in such case is necessary) left to the option of the debtor—in respect of the individual pieces of which the sum of money was to be composed. In detinue, the thing claimed was an individual article, of the moveable class: a horse, a piece of furniture, a picture, a trinket, and so forth.
By a conceit, of the number of those which, in the manufactory of legal decisions, occupy the place of reason, the effect of the wager of law on actions of debt, has, in one way or other, been got rid of. In some cases it was put aside; and in other cases, to which the pretence for putting it aside did not apply, another sort of action, an action with another name, was fabricated—an action to which, at the same time, and in this view, the wager of law was pronounced inapplicable. I mean the action of indebitatus assumpsit; which is the same thing as the action of debt, in other words. A promise, indeed, to comply with the obligation, is alleged: but the promise is presumed; that is, where there is none, feigned: averred by an assertion wilfully false.
The consequence is, that the demand of a sum of money is tolerably well cleared of this ground of defence by perjury and injustice. Relief is given, justice is administered, in a manner little, if at all, different from that in which it would be administered if the conclusive species of evidence in question, the waging of a man’s law, were not applied to this case. The action, called an action of debt, is thus far spoilt; but in so far as it is spoilt, another action is given which answers the same purpose.
Far from being alike innocent is this remnant of ancient barbarism, in the case where the subject of the demand is a specific material object. In this case, the remedy originally provided is the species of action called the action of detinue. By the same baleful influence by which the action of debt is spoilt, as above, this action is spoilt also. In the case of the action of debt, for the part thus spoilt, a succedaneum (as we see) has been provided: in the case of the action of detinue, no such succedaneum has been provided; and the damage has continued for so many centuries unrepaired. Upon the principle of analogy, nothing was more obvious, nothing would have been more easy, than the repair. For the purpose of compelling the delivery of money where due,—to the fact of the obligation, you added, in the way of fiction, another fact, a promise to fulfil it: why not for the purpose of compelling the delivery or re-delivery of a specific article? Yes: analogy is the grand source and instrument of invention, in this as well as every other line: but to apply it usefully,—to apply it steadily, comprehensively, and consistently, belongs to none but an inventive mind.
The action of detinue is spoilt: another action, called an action of trover, is given in the room. But by this new device, unfortunately, the purpose is not answered: a blunder is made, and, instead of the specific thing which is a man’s due, damages are given: that is, a sum of money, according to the value, which, on the ground of the imperfect data that are commonly exhibited to them, the judges of fact think fit to put upon it: the remedy, instead of that which belongs to the action of detinue, is the remedy that belongs to the action of debt.
Whence came the blunder? Not from a regard—a more scrupulous than consistent regard, to truth. A falsehood is called in—a proposition is assumed, and a proposition more uniformly false in this case, than in the case of the indebitatus assumpsit. The story is, that the article claimed by the plaintiff has been found by the defendant: found by him, and by him converted to his own use. Thereupon comes the action, calling upon the judge to cause to be delivered to the plaintiff not the thing that belongs to him, but a sum of money in lieu of it. The defendant takes note of the price thus put upon it: if it is more than he chooses to give for it, he restores it: if less (that is, if it be any advantage to him to keep it,) he keeps it. The plaintiff pockets the money and the injury: the defendant triumphs in improbity, under the protection of the law. There are things, the value of which to a feeling heart is beyond all price: these are precisely the things which the law abandons to the wrong-doer, and to all wrong-doers.
There is a remedy in kind, indeed, to be had in some cases, in that sort of a court which is called a court of equity. But the optics of a court of equity are too high-seated to spy little things: and a mass of value equal to the expense of more than a year’s subsistence to an individual of the most numerous class, is set down by every court of equity to the account of little things.* So much for the remedy itself, and the cases in which it is to be had at any price: and as to the price that is to be paid for it (that is, for the chance of it) in time and money,—where law reckons by months, equity reckons by years: where law reckons by crowns, equity reckons by pounds.
So delectable is this institution (the wager of law) in the eyes of Lord Coke, that he seems to pride himself in his country’s exclusive possession of it.† Its merit consists in what? In this, that it does (he says) no harm. Why? Because, for the same demand, though there be one sort of action (an action of debt) which is clogged with this appendage, there is another (an action on the case) which stands clear of it. Wherever it has no effect at all, there, and there only, it has no bad effect. Unhappily, the reason given for the supposed harmlessness of an institution confessedly useless, is not true in fact. For, notwithstanding the silence of this arch-lawyer on the subject, another sort of demand there is, as we have seen, to which that clog does apply; and which being spoilt by it, and having no succedaneum, leaves the subject without a remedy.
In regard to this institution, of which the highest supposed merit is that of doing no harm, while its real character is that of operating as a denial of justice,—the matter of triumph to Lord Coke, that no other country has the like, Blackstone‡ shows to be very far from well grounded.
An institution that is peculiar to England, or nearly so, is cross-examination in non-penal causes. By neither of these professed panegyrists has this truly honourable peculiarity been noticed: by neither of them has it been observed, that it is by the exclusion this unnatural institution puts upon cross-examination, that the poisonous quality of it operates.
To have been consistent (if consistency had been a quality capable of adhering to English law, especially at the rude period here in question,) the privilege should have been extended, not to the defendant only, but to the plaintiff; and then the effects of the institution, as applied to the two sides of the cause, being equal and contrary, would have destroyed one another. To the plaintiff (I say) as well as to the defendant: or, if to one alone, rather to the former than to the latter. Why? Because, if for a man to swear falsely to save himself from a loss, is wicked, and in proportion to its wickedness improbable:—to swear falsely, for no more excusable purpose than the obtaining an undue profit for himself, at the expense of subjecting another man to an undue loss, is still more wicked, and in that respect still more improbable.
This chapter having been left unfinished by the Author, what follows has been added to it by the Editor. A few paragraphs, which for distinction have been put in inverted commas, consist of fragments, written at different times by Mr. Bentham: for the remainder the Editor is alone responsible.
[This is not the only sort of case in which the sworn, but uncross-examined and self-serving testimony of a party to the suit, is received as conclusive, that is, to the exclusion of counter-evidence. “The practice in chancery,” we are informed by Phillipps,* “invariably is, that a party is entitled only to extracts of letters, if the other party will swear that the passages extracted are the only parts relating to the subject-matter.”
There is another rule, by which a man’s own testimony is rendered conclusive evidence in his favour, and that too on such a subject as that of his own character. The witness indeed in this case is not a party in the suit; but for anything that appears, he may be the vilest of malefactors; and he is, at any rate, under the influence of an interest, which is one of the strongest of all interests in the bulk of mankind, while even in the vilest it cannot be a weak one. A witness, as we have seen,† is not compellable to answer any question, the answer to which, it true, might tend to degrade his character: if, however, he chooses to answer, the party who asks the question is bound by his answer, and is not allowed to falsify it by counter-evidence.‡
The above seem to be the only instances worth mentioning, in which an article of orally delivered testimonial evidence has in English law been made conclusive. The instances in which similar effect has been given to an article of circumstantial evidence are innumerable; and many of them have been already brought to view.
1. As often as a decision has been given against either of the parties in a suit, on no other ground than that of his having failed, at a particular stage of the suit, to perform any operation which has been rendered necessary at that stage by technical rules, to the obtainment of justice; so often has the non-performance of that operation been taken as evidence, and conclusive evidence, of what is called in the language of lawyers, want of merits, that is, of the badness of his cause.
“Of the justice of the demand, whatsoever it be that happens to be made upon the defendant, provided the suit does not happen to be called a criminal one, non-resistance on his part is regarded and acted upon as sufficient evidence; and to the plaintiff possession is given of the object of his demand, just as if the justness of it had been proved. Even a lawyer will not pretend that on any ground of reason the inference is a conclusive one. Pecuniary inability, especially under the load of factitious expense imposed everywhere by the technical system, is another cause equally adequate to the production of the effect. In every part of the empire of the technical system, and more particularly in England, this inability will have place in the case of a vast majority of the body of the people.
“If a presumption thus slight were not received in proof of the justice of the plaintiff’s claim, and in the character of conclusive evidence—if such direct proof of it as were to be had, were in every instance to be required,—a number of malâ fide suits, with the produce of which the coffers of the man of law are at present swelled, would have no existence.
“Thus it is, that under the technical system, every court calling itself a court of justice is in effect an open shop, in which, for the benefit of the shopkeeper and his associates, licences are sold at a fixed, or at least at a limited, price,—empowering the purchaser to oppress and ruin at his choice any and every individual, obnoxious to him or not, on whom indigence or terror impose the inability of opposing effectual resistance.
“The real condition in which the great majority of the people, in the capacity of suitors, have been placed by the factitious expenses manufactured by the man of law, is an object too reproachful to him to be suffered to remain undisguised. In this, as in every other part of the system, extortion and oppression find in mendacity an ever-ready instrument. The real condition in which the suitor has been involved, the misfortune of defencelessness through indigence, is put out of sight: a crime is imputed to him in its stead: and for that crime, not only without proof, but under the universally notorious consciousness of his innocence, he is punished. Contempt is the word constantly employed to designate this imaginary crime. The real, the universally notorious, causes of his inaction, are fear and impotence. But a man cannot be punished avowedly for fear: he cannot be punished for impotence: mankind would not submit themselves to tyranny so completely without a mask. Adding calumny to mendacity, they pretend to regard his inaction as originating in contempt; and it is on this mendacious accusation of their own forging, that they ground the ruin they inflict on him under the name of punishment.”
In equity, the defendant, who, from his own poverty or ignorance, or the carelessness of his lawyer, is so unfortunate as not to put in an answer to the plaintiff’s bill, stands a great chance (if a poor man) of being a prisoner for life. He is committed to gaol for the contempt: and as he is not released without payment of fees,—unless he has money to pay these fees, or can find some one else who will pay them for him, he must remain there all his life. Instances of this sort have not unfrequently, through the medium of the newspapers, been presented to the public eye.
2. As often as a contract, or any other legally operative instrument, is pronounced null and void, on account of the non-observance of any formality,—so often, the sort of exclusion of which we are here treating, has place. A man claims a landed estate, under the will of the last proprietor. The will is produced in court: it is found to have the signatures of two witnesses only, instead of three;* or one of the three is proved to have put his name to the will in the absence of the testator: the will is rejected, and the party loses his estate. The rejection of the will may, perhaps, be considered as a penalty, for non-compliance with that injunction of the law which requires that certain formalities should be observed. Considered in this point of view, it has been shown in a previous Book† to be unnecessary and objectionable. But it may also be regarded as grounded on the presumption that the will was spurious, or unfairly obtained. Here, then, is this one circumstance, viz. non-observance of legally prescribed formalities, received as conclusive evidence of spuriousness or unfairness. The fallacy of this supposition has also been made sufficiently manifest in the Book already referred to. This article of circumstantial evidence, which is conclusive in law, is so far from being conclusive in reason, that it scarcely amounts even to the slightest presumption, until two things be ascertained: first, that the party knew that these formalities were prescribed; and secondly, that compliance with them was in his power. That spurious or unfair instruments have not frequently been prevented by the peremptory requisition of these formalities, is more than I would undertake to say: but an assertion which one may venture upon without much danger of mistake, is, that there is scarcely an instance of any instrument’s having been actually set aside for the want of them, in which there was not a considerable, if not a preponderant probability of its being genuine.
3. Almost all estoppels are exclusions of the sort now under consideration. You are estopped, say the lawyers, from proving so and so: the meaning of which is, that they will not permit you to prove it. For this they have sometimes one pretext, sometimes another: something which you yourself have said or done; or something which has been said or done by somebody else.
There is a great variety of instances in which they tell you that you are estopped by a previous decision, either of the same court, or of some other court of justice: these have been already noticed under the head of adscititious evidence.‡ At other times you are estopped by what they term an admission. You are said to make an admission, if you say or do anything, or if any other person says or does anything for you, which a judge construes as an acknowledgment on your part, that a certain event has happened; that is, anything from which he chooses to infer its happening: after which, though everybody perhaps who knows anything about the matter, knows that it has not happened, and would say so if asked, the judge, to save the trouble of asking, chooses to act exactly as if it had.
Admissions are of two kinds—express or presumed; and the former are either admissions upon record, or admissions not upon record. It is a rule with lawyers, that no evidence can be received to dispute admissions upon record,* that is, admissions in the pleadings. If this rule went no farther than to confine the evidence to such points as are actually in dispute between the parties, it would be a good rule. In a law-book, a man may reckon himself fortunate if he hits upon a rule which has a reason: if he expect, that where the reason stops, the rule will stop too, it is very rarely that he will not be disappointed. One example will serve as well as a thousand. When a man, against whom an action is brought for a sum of money, denies that the plaintiff is entitled to the whole sum which he claims, but admits that he has a just claim upon him for a smaller sum,—the practice is, for the defendant to pay into court the amount of the sum which he acknowledges to be due, that it may remain in deposit until the cause is decided. This payment, lawyers choose to call an “acknowledgment upon record;” and now mark the consequence: “the party cannot recover it back, although he has paid it wrongfully, or by mistake.”†
As for extrajudicial admissions, it is not always that they are even receivable: when they are, they are generally taken for conclusive: for it may be observed, in regard to this part of the law of evidence, as in regard to so many other parts of it, that neither the lawyers by whom it was made, nor the lawyers by whom it has been expounded, ever seem to know that there is any middle course between taking an article of evidence for conclusive, and rejecting it altogether. Accordingly, in reading the dicta of judges, or the compilations of institutional writers from those dicta, one is continually at a loss to know what they mean. In speaking of this or that evidentiary circumstance, what they tell you concerning it is, that it is evidence: now and then superadding, as it were for the sake of variety, the epithet good to the general appellative evidence. Would you know whether they mean that it is conclusive, or only that it is admissible? Observe their actions; see whether they send it to a jury: for anything that you can collect from their words, they are as likely to mean the one as the other.
The following will serve as an example, as well of the ambiguity of which I have been speaking, as of the sort of logic which passes for irrefragable, under the dominion of technical rules. When a party interested in the cause, makes an admission against his interest,—if he has not made it by mistake, it is nearly the best evidence against him that you can have: ergo, it ought to be taken for conclusive against him, when he has made it by mistake; ergo, the admission of a person who is merely a nominal plaintiff, and who is not interested in the cause, ought to be conclusive against the person who is. So, at least, it was decided in the case of Bauerman v. Radenius,* in which the admission of the plaintiffs on the record, though not the parties really interested, was received as conclusive, and the plaintiffs were nonsuited. I say, received as conclusive; because, when a plaintiff is nonsuited,—that is to say, when his claim is dismissed by the judge without going to a jury,—it is because, if he had gone to a jury, the jury must have found a verdict against him; which would have been a bar to any future prosecution of the same claim: whereas a nonsuit leaves it still in his power to bring a fresh action, after remedying the defect which would have compelled the jury to find against him. The Court of King’s Bench afterwards affirmed, that is, confirmed, the nonsuit: on which occasion Mr. Justice Lawrence said, “The present plaintiffs either have or have not an interest: but it must be considered that they have an interest, in order to support the action; and if they have, an admission made by them that they have no cause of action, is admissible evidence.” This judge here, with much naïveté, displays the manner in which, under the influence of technical rules, what is known to be false is taken for true, in order that what is evidently unjust may be done. He knew as well as the nominal plaintiffs knew, that they had not an interest in the cause: but what of that? The law knew that they had.
There is an overflow of legal learning, on the question, what effect to your prejudice shall be given to the admission of your agent: and here again recurs the usual alternative: it is either not received, or it is received as conclusive: it either excludes all other evidence, or it is itself excluded. Thus, in one case,† “a letter from the defendant’s clerk, informing the plaintiff that a policy had been effected, was held to be good evidence [meaning here conclusive evidence] of the existence of the policy; and the defendant was not allowed to prove that the letter had been written by mistake, and that the policy had not been made:” while in another case,‡ “where the fact sought to be established, was, that a bond had been executed by the defendant to the plaintiff, which the defendant had got possession of, the Master of the Rolls refused to admit, as evidence of this fact, the declaration of the defendant’s agent, who had been employed to keep the bond for the plaintiff’s benefit, and who, on its being demanded by the plaintiff, informed him that it had been delivered to the defendant.” It might seem to a cursory reader, on comparing these two decisions, either that the predilection of judges for bad evidence was such, that, rejecting an admission in other cases, they were willing to receive it upon the single condition of its being made by mistake; or that, in laying down rules of evidence, blind caprice was the only guide. In this apparent inconsistency, however, there is a principle, though no one would have thought it; it is this: that the admissions of an agent are not to be received, unless “made by him, either at the time of his making an agreement about which he is employed, or in acting within the scope of his authority.” It is not, that what he says on these occasions is more likely to be true than what he says on other occasions: it is, that “it is impossible to say a man is precluded from questioning or contradicting anything that any person may have asserted, as to his conduct or agreement, merely because that person has been an agent:” and as it would be unjust to preclude him from contradicting it, it is not permitted so much as to be heard.
Besides these express admissions, there is an extensive assortment of presumed ones; when a man “precludes himself from disputing a fact, by the tenor of his conduct and demeanour:”* the meaning of which is, that the court will presume an admission from anything that a man does, which they think he would not have done if the fact had not been true. This is the principle: but as to the extent of its application, there is no criterion of it except the Index to the Reports. It has usually been applied only to cases in which the presumption afforded by the act is really strong, and might reasonably be held conclusive in the absence of counter-evidence, though certainly not to the exclusion of counter-evidence, since there is not so much as one of the cases in which the presumption is not liable to fail. Without touching upon the grounds of failure which are peculiar to this or that case, there is one obvious ground which is common to them all. A man’s actions can never prove the truth of a fact, except in so far as his belief of it is evidence of its truth: and to hinder a man from proving that a thing did not happen, because at some former period he believed that it did, even if you were sure that he believed it (which in general you are not, it being only inferred from his actions,) would be unjust in any case, but is more especially absurd, when the fact in question is one of those complicated, and frequently recondite, facts, which are constitutive of title.
Take a few instances.
“By accounting with a person as farmer of the tolls of a turnpike, a party is estopped from disputing the validity of his title, when sued by account stated for those tolls.
“By paying tithes to the plaintiff on former occasions, a defendant admits the right of the plaintiff to an action for not setting out tithes.
“Where a party rented glebe lands of a rector, and had paid him rent, he was not permitted, in an action for use and occupation, to dispute his lessor’s title, by proving that his presentation was simoniacal.
“In actions of use and occupation, when the tenant has occupied by the permission of the plaintiff, he cannot dispute the plaintiff’s title, although he may show that it is at an end.
“In an action of ejectment, by a landlord against his tenant, the tenant cannot question the title of his landlord, although he is at liberty to show that it has expired.”†
In all these instances, the presumption upon which, if upon anything, the decision must have been grounded, is, that if the plaintiff had not really had a good title, the defendant would not have paid rent, tithe, &c. to him, as the case may be. To justify the rendering this presumption conclusive, it would be necessary, among a crowd of other suppositions, to suppose that a tenant never paid rent to the de facto landlord, without first demanding his title-deeds, and going over them with a lawyer, for the purpose of assuring himself that they did not contain any flaw.
4. A whole host of exclusions lurk in the admired rule, that the best evidence which the nature of the case admits of, is to be required: a rule which seems to please everybody, and with the more reason, as, having no distinct meaning of its own, it is capable of receiving any which any one thinks proper to attach to it. There is a charm, too, in the sound of the words best evidence, which no lawyer, and scarcely any non-lawyer, is able to resist. The following seems to be nearly the train of thought (in so far as anything like thought can be said to have place) which passes through the mind of the submissive and admiring student, when he hears this maxim delivered ex cathedrâ, as something which, like Holy Writ, is to be believed and adored. Good evidence, it naturally occurs to him, is a good thing: à fortiori, therefore (it is unnecessary to say,) the best evidence cannot but be a good thing what, however, can be more proper, than always to require, and insist upon having, the best of everything? How admirable, therefore, the rule which requires the best evidence (whether it is to be had or no,) and how admirable the system of law, which is in a great measure made up of such rules!
As a preliminary to praising this rule, a desirable thing would be, to understand it: for this, however, you have no chance but by looking at the practice: the attempt to find a meaning for the words would be lost labour. The meaning attached to it by lawyers has been different, according to the different purposes which they have had to serve by it. One use which they have made of it, is, to serve as a reason for excluding an inferior and less trustworthy sort of evidence, when a more trustworthy sort, from the same source, is to be had: as, for example, a transcript, when the original is in existence and forthcoming. Applied to this purpose, the rule, if it were not so vague, would be justly entitled to the appellation of a good rule: the purpose, at any rare (with the limitations which have been seen in the Book on Makeshift Evidence,) must be allowed to be a good purpose. Another use which has been made by lawyers, at times, of this rule, is, to enable a judge, at no greater expense than that of calling a particular sort of evidence the best evidence, to treat it as conclusive in favour of the party who produces it; or the non-production of it as conclusive against the party who, it is supposed, ought to have produced it; in both cases putting an exclusion upon all other evidence: and it is in this application of the rule, that it presents a demand for consideration in this place.
“Take a sample of their best evidence,—of that best evidence which, by such its bestness, puts an exclusion upon all other evidence.
“Speculative Position or Antecedent;—Written evidence is better than parol evidence. Practical Inference or Conclusion;—Therefore, in case of a contract, when there exists written evidence of it, with certain formalities for its accompaniments, oral evidence is, or is not, to be admitted, in relation to the purport of such contract. Is, or is not; whichever is most agreeable and convement to the judge. Such is the plain and true account of the matter: for distinctions are spun out of distinctions; and, the light of reason, by which they would be all consumed, being effectually shut out, on and on the thread might continue to be spun without end.
“Observe the inconsistency.
“In English law, circumstantial evidence of the weakest kind, comparison of hands, by persons acquainted, or not acquainted, with the hand of the person in question,—or even the bare tenor of the instrument, i. e. the circumstance of its purporting upon the face of it to have been executed (i. e. recognised) by the person or persons therein mentioned,—this circumstance, if coupled with the evidentiary circumstance ex custodiâ, is (if the assumed date of the instrument be as much as thirty years anterior to the day of production) held sufficient, and, in default of counter-evidence, conclusive.
“A dozen or a score of alleged percipient witnesses, all ready to concur in deposing that, to the provisions in the instrument mentioned, this or that other had been agreed to be added or substituted,—shall they be received, and heard to say as much? Oh no; that must not be; it is against our rule about best evidence.”
The general rule on this subject is, that oral evidence is not admissible “to contradict, or vary, or add to, the terms of a written agreement.”* Cut down as this rule is, by almost innumerable exceptions, there is still enough of it left to do much mischief. The exceptions, if their practical effect be looked to, are reasonable, as narrowing pro tanto the extent of a bad rule: in principle, however, there is scarce one of them which is tenable, unless it be first granted that the rule is absurd. It would be difficult, for example, to discover how, in respect of the propriety of admitting oral evidence to show the abandonment of a written agreement, it should make any difference whether the agreement was or was not under seal; or why, in equity, on a bill for the specific performance of a written agreement, evidence to prove that, by reason of accident or mistake, the written instrument does not correctly express the agreement, should, if tendered by the defendant, be in certain cases admitted; if tendered by the plaintiff, refused. The origin of the exceptions to this rule, as well as to so many other technical rules, is visible enough. They were established by the same sort of authority which established the rules, viz. that of judges deciding pro hâc vice, under the guidance of no principle, but in accordance with the interest or whim of the moment, or frequently with the laudable view of doing justice, not withstanding technical rules. A judge sees plainly, that, in this or that particular case, if he adhere to the rule, he will do injustice: and without daring to set it aside, or even allowing himself to suppose that a rule which had descended from wise ancestors could be other than a good one, he has honesty enough to wish to do justice to the cause in hand, and accordingly cuts into the rule with a new exception for every new instance which presents itself to him of its mischievous operation, taking care never to carry the exception one jot farther than is strictly necessary for his immediate purpose: another judge follows, and takes another nibble at the rule, always upon the same diminutive scale; and so on. Hence it comes, that, at length, after the lapse of a few centuries, the body of the law, considered as a whole, has become a little more just, and a great deal more unintelligible: while the law books have degenerated from the primitive simplicity of the old text-books, where everything was comprehended under a few simple principles (in which, whatever trespasses you might find against justice or common sense, you will find none against consistency,—and which would be perfect, if conduciveness to human happiness were a quality that could without inconvenience be dispensed with in law;) and have swelled into an incoherent mass of mutually conflicting decisions, none of them covering more than a minute spot in the field of law, and which the most practised memory would vainly strive to retain, or the most consummate logic to reduce to a common principle.
Oral evidence, it seems, is receivable to explain, in many cases in which it would not be receivable to vary, the terms of an agreement. The general rule is, that, in case of a latent ambiguity,—that is to say, an ambiguity which does not appear on the face of the instrument, but is raised by extrinsic evidence,—extrinsic evidence will be received to explain it: thus, if a testator bequeaths to John Stiles his estate of Blackacre, and it appears that he has two estates known by that name, oral evidence will be received to show which of the two he meant. Provided always, that there be no possibility of giving effect to the instrument in terminis, without the aid of other evidence,* for if it have a definite meaning, though a different one from that of the testator, it does not signify. When they cannot by any means contrive to give execution to the ipsissima verba of the will, then, it seems, they will condescend to inquire what the testator intended.
Not so when the ambiguity is patent, that is, apparent on the face of the instrument. In this case, the door is inexorably shut upon all extrinsic evidence; and if the intention of the party cannot be inferred from the context, “the clause will be void, on account of its uncertainty.” You are unskilled in composition: after making mention in your will of two persons, your brother and your younger son, you bequeath to him an estate: in this case it may possibly admit of dispute, to which of the two you meant to bequeath it; what, however, can admit of no dispute, is, that you meant to bequeath it to one or other of them: as, therefore, it is doubtful whether you intended that A should have it, or B, the judge will not give it to either of them, but gives it to C, the heir-at-law, whom it is certain you intended not to have it. Or, if he gives it to either of the two persons who, and who alone, can possibly have been meant, he gives it upon the slightest imaginable presumption from the context. There were twenty persons standing by when you executed the will, all of whom knew perfectly well, from your declarations at the time, which of the two parties in question you meant, but none of whom he will suffer to be heard. And this is what lawyers call requiring the best evidence.
For this rule two reasons have been given: one a technical, that is, avowedly an irrational one; the other, one which pretends to be rational. The technical reason is the production of Lord Bacon: it is this: “the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law.” For those to whose conceptions the incongruity of so irregular a mixture might fail to present itself in colours sufficiently glaring, a subsequent lord chancellor brought forth the following less recondite reason: that the admission of oral evidence in explanation of patent ambiguities, “would tend to put it in the power of witnesses to make wills for testators:” an objection which would be very strong against any one mode of proof, if it did not unhappily apply to every other.
All hearing of evidence lets in some danger of falsehood. What, however, was probably meant, is, that the admissibility of oral evidence to explain a will, would frustrate the intention of the law in requiring preappointed evidence, a better sort of evidence than oral, and less likely to be false. If this be the meaning, it is enunciated far too generally. It is true that preappointed evidence, consisidered as a genus, is better than oral. But it is not true that every particular article of the former is better than the best conceivable article of the latter. It is not true that the signature of three witnesses is better, cæteris paribus, than the oral depositions of twenty. Yet this rule excludes the latter evidence, on the plea of its inferiority to the former.†
Another consequence of the technical maxim, that written evidence is better than parol (a maxim which, like almost all other general maxims of technical law, is not true in more than half the cases which it extends to,) is the exclusion, in a great number of cases, of oral evidence to prove that there exists a written document evidentiary of a particular fact. The judges, on the occasion of a reference made to them in the course of the late Queen’s trial, declared that “the contents of every written paper are, according to the ordinary and well-established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence.”* Good: provided always it be a necessary consequence, that a paper is forthcoming, because it is in existence. Upon the strength of this rule, the judges decided, that the supposed writer of a letter could not be questioned concerning the contents of the letter, unless the letter itself were first produced, and the witness asked whether he wrote it. Thus, the only evidence, perhaps, which you have got, and that too of so good a kind as the testimony of a writer concerning what he himself has written, is excluded, because another sort of evidence is not produced, which would be better if you could get it, but which, in all probability, you cannot get. The superior evidence, though not forthcoming to any practical purpose, cannot be shown not to exist; and it is therefore said to be forthcoming, to the purpose of excluding all inferior evidence.
A volume might be filled with specimens of the injustice and absurdity which are the fruit of the rule requiring the best evidence. Take this example among others:—A written instrument, with certain formalities, being the best evidence; if, in the written instrument, any one of these formalities be omitted, neither the agreement, nor any other evidence of the transaction, will be received. Thus, “a written instrument which requires a stamp, cannot be admitted in evidence, unless it be duly stamped; and no parole evidence will be received of its contents. If, therefore, the instrument produced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all; as, in an action for use and occupation, if it appear that the defendant held under a written agreement, which for want of a stamp cannot be received, the plaintiff will not be allowed to go into general evidence; for the agreement is the best evidence of the nature of the occupation.”†
An agreement on unstamped paper not being itself receivable, it follows naturally enough, that if it be lost, parol evidence will not be received of its contents; nor even if it be wrongfully destroyed by the other party: notwithstanding another technical rule, that no one is allowed to take advantage of his own wrong. But you can never guess, from the terms of a rule, to what cases it will be applied.
Take the following still more barefaced piece of absurdity, as a final specimen of the operation of this vaunted rule:—
“The acts of state of a foreign government can only be proved by copies of such acts, properly authenticated. Thus, in the case of Richardson v. Anderson, where the counsel on the part of the defendant proposed to give in evidence a book purporting to be a collection of treaties concluded by America, and to be published by the authority of the American government, and it was proposed, further, to prove, by the American minister resident at this court, that the book produced was the rule of his conduct; this evidence was offered as equivalent to a regular copy of the archives in Washington: but Lord Ellenborough rejected the evidence, and held, that it was necessary to have a copy examined with the archives.”‡
We may expect in time to see a judge arise, who, more tenacious of consistency than his predecessors, will refuse to take notice of the existence of the city of London, unless an examined copy of the charter of the corporation be given in evidence to prove it.
Can any exposure make this piece of technicality more ridiculous than it is made by merely stating it?
5. I shall notice only one more instance of the species of disguised exclusion which forms the subject of the present chapter. The sort of evidence which, in this instance, is taken for conclusive, is the species of official document called a record. “Records,” says Phillipps,* “are the memorials of the proceedings of the legislature, and of the king’s courts of justice, preserved in rolls of parchment; and they are considered of such authority, that no evidence is allowed to contradict them. Thus, if a verdict, finding several issues, were to be produced in evidence, the opposite party would not be allowed to show, that no evidence was offered on one of the issues, and that the finding of the jury was indorsed on the postea by mistake.” On this piece of absurdity, after what has already been said, it can scarcely be necessary to enlarge. Somehow or other, however, lawyers seem to have found out, that, like everything else which is human, so even a record,—however high its “authority,” and however indisputable its title to the appellation bestowed upon it by Lord Chief-Baron Gilbert, “a diagram” (whatever be meant by a diagram) “for the demonstration of right” (whatever be meant by the demonstration of right,)—is still, notwithstanding it be written upon parchment, liable to error: for they have found it necessary to determine that a record shall be conclusive proof only “that the decision or judgment of the court was as is there stated,” and not “as to the truth of allegations which were not material nor traversable.” This is fortunate: the fact of the judgment being one of the very few matters, contained in what is called a record, which, unless by mistake, are generally true. But, however fallible in respect of other facts, in respect of this one fact they hold it to be infallible; and its infallibility, itself needing no proof, supersedes all proof of the contrary; which, therefore, as it cannot prove anything, it would be loss of time to hear: accordingly it is not heard, but inexorably excluded.†
OF THE RULE, THAT EVIDENCE IS TO BE CONFINED TO THE POINTS IN ISSUE.‡
This rule, though good in principle, is frequently, as it is administered, an instrument of mischief, partly from being combined with a bad system of pleading, partly from the perverse application which has been made of it to purposes for which it was never intended. Being an exclusionary rule, it demands consideration in this place: and the occasion seems a suitable one for taking notice, not of the bad effects in the way of exclusion only, but of the bad effects of other descriptions, which are the fruit of it.
Nothing can be more proper than to exclude all evidence irrelevant to the points in dispute: and if the points in issue on the pleadings were always the points, and all the points, in dispute, nothing could be more proper than to exclude all evidence irrelevant to the points in issue. Unhappily, however, to determine what are the points in dispute, though the professed object of all systems of pleading, is very imperfectly attained even under the best; and the points really at issue are often very different from the points in issue, as they appear on the pleadings.
In so far as the representation given in the pleadings of the state of the question between the parties, fails to accord with the real state,—in so far, at least, as any point (that is, of course, any material point) which is really in dispute, is omitted or misstated in the pleadings; in so far, the rule, which requires that the evidence be confined to the points in issue, those points not being the points in dispute, operates to the exclusion of all evidence which bears only upon the real points in dispute. This includes all cases of quashing, grounded on what is called a flaw in the pleadings: as, for instance, the case of a misnomer. If you indict a man under the name of John Josiah Smith, and it turns out that his real name is John Joseph Smith, though nobody has the least doubt of his being the person meant, and though he himself would not have the effrontery to declare upon oath a belief that he was not, it is no matter—the indictment is quashed,* because, the only question at issue, as indicated by the indictment, relating to the supposed guilt of Josiah, proof, however convincing, of the criminality of Joseph, is foreign to the issue. On the same ground, in an action for non-residence, the designation of the parish by the name of St. Ethelburgh, instead of Saint Ethelburgha, was held to be (as lawyers term it) a fatal variance. On another occasion, the ground of the quashing was, that a party to a bill of exchange had been called Couch, instead of Crouch: on another, that the prisoner was charged with having personated M‘Cann, while the evidence went to show, that the man whom he had personated was M‘Carn. It was not that, in any of these instances, any real doubt existed as to the purport of the charge; nor was it that, in the guilt of defrauding two persons with names so different as M‘Cann and M‘Carn are, there was deemed to be any such difference in point of enormity as could justify so great a diversity of treatment: it was, that the unbending spirit of technical rules requires that you should prove, verbatim et literatim, the very thing which you have asserted, and, whatever may be the real issue, ties you down to the nominal one. That the substitution of an r for an n could in any other way be effected than by dropping the proceeding and beginning de novo, is what you will never get any Common Lawyer to understand.
It is the same when any other circumstance, legally material, is misdescribed in the pleadings; as when the declaration stated an absolute promise, and a conditional one was proved; and when a declaration for assaulting a constable in the execution of his office, alleged that he was constable of a particular parish, and the proof was that he was sworn in for a liberty, of which the parish was part: a notable reason for depriving the plaintiff of justice, or putting him to the expense of another suit to obtain it!†
The root of the evil here lies in the system of pleading. To eradicate it entirely, that whole system must be abolished: the mode in which what is called pleading is now conducted, namely, by a sort of written correspondence between two attorneys, must give place to oral pleading, by the parties themselves, in the presence of the judge; when either no such mistakes as the above would be made, or, if made, they would be instantly rectified. Even under the present vicious system, however, the quashing of the suit might be avoided much oftener than it is. There are mistakes that are of consequence—there are others which are of none: there are mistakes by which the opposite party may have been misled—there are others by which he cannot. It is just, certainly, that after a party has intimated to his adversary his intention of proving a certain case, he should be allowed to prove that case, and no other; since, if there were no such rule, the other party might be taken by surprise: he might come prepared with evidence to rebut what be imagined was the claim against him, and might find, on going to trial, that the one really brought was quite different. This being the reason, what, then, is the practical rule? Let the remedy be confined to the single case, in which alone there is any evil to be remedied. It the opposite party has really been misled, or put to any inconvenience by the error, he cannot, one would think, have any reasonable objection to saying so: nor to delivering the assertion under all those securities which are taken for the truth of testimony in any other case. Unless, therefore, he is willing, under these securities, to declare that, in consequence of the error, he has been either prevented from bringing the necessary evidence, or induced to bring evidence which was not necessary, let the error he rectified, and the cause go on as it would have done if there had been no error. If he be willing to make such a declaration, and if his adversary admit, or fail to disprove its truth, let the necessary delay (when any delay is necessary) be granted: and let the party by whose fault the error was occasioned, be subjected to the obligation of indemnifying the other for all bonâ fide expenses which he can prove to have been occasioned him by it.
If the rule, in the cases above examined, is attended with bad effects, it is not that it is a bad rule, but (as has been already intimated) that it is accompanied by a bad system of pleading. There is, however, another set of cases, in which the rule is applied in a sense in which it is altogether absurd: facts being shut out, under pretence of their not being the facts at issue, which, though unquestionably not the facts at issue, are of the highest importance as evidentiary of those which are.
Thus, the custom of one manor is not to be given in evidence to explain the custom of another manor; unless it be first proved, that both manors were formerly one, or were held under one lord; or unless the custom is laid as a general custom of the country, or of that particular district. Why? Because customs are “different in different manors, and in their nature distinct.” But although the customs of different manors are different, they may nevertheless be analogous; and though the custom of one manor cannot of itself prove that of another, it may assist in clearing up apparent inconsistencies in it, or in obviating an argument grounded on its supposed improbability. There is also another reason, of still greater weight, which we owe to the ingenuity of Lord Chief Justice Raymond: “for,” says he, “if this kind of evidence were to be allowed, the consequence seems to be, that it would let in the custom of one manor into another, and in time bring the customs of all manors to be the same.”* In the contemplation of so overwhelming a calamity, it is no wonder that Lord Raymond should have lost sight of whatever inconvenience might happen to be sustained by the party in the right, from losing his cause for want of such explanations as a reference to the custom of a neighbouring manor might have afforded; especially if advertence be had to the appalling fact, that the customs of all manors would come to be the same, if suffered to be shown for what they are. The reader will not, of course, indulge in any such vain fancy, as that the custom which is good for one manor, can be good, or even endurable, for the manor adjoining; or that the inhabitants of one village could even exist, under rules and regulations which bind the inhabitants of another village as well as themselves.
Again: “in a question between landlord and tenant, whether rent was payable quarterly or half-yearly, evidence of the mode in which other tenants of the same landlord paid their rent is not admissible.”† Yet what can be more strictly relevant? the determining motive in such cases usually being the landlord’s convenience, which may reasonably be presumed to be the same in the case of one farmer as of another.
Mr. Harrison gives an abstract of eight cases decided under the rule that evidence is to be confined to the points in issue; seven of which include this same sort of absurdity.
It cannot be pretended, that the evidence thus shut out is irrelevant: and to maintain, as a general maxim, that evidence of relevant facts is to be excluded, because those facts are not expressly averred in the pleadings, would be too great a stretch of technicality, even for a lawyer. For the above decisions, however, no better reason can be given;—unless that of Lord Chief Justice Raymond, which Mr. Phillipps styles an “argument of inconvenience,” be so considered.
With as good reason might any other article of circumstantial evidence be excluded. A murder, suppose, has been committed: the prisoner was near the spot; he was known to be a personal enemy of the deceased, and at a former interview he had threatened to kill him: stains of blood were found upon his linen when he was apprehended, and he had a bloody knife in his pocket. What then? None of these facts are in issue: it is not said in the indictment, that he was an enemy of the deceased, nor yet that he had used threatening language towards him; he is not charged with soiling his linen; and though, indeed, it is alleged in the indictment, that he killed and slew the deceased with a knife, value sixpence, it is nowhere imputed to him that he stained the knife. At this rate, the plaintiff would need to include in the declaration every fact which, in the character of an evidentiary fact, he might have occasion to bring to the notice of the judge.
We have now considered the rule in both its applications: its abusive application, which can never be other than mischievous; and its legitimate application, which, to be purely beneficial, wants only to be combined with a rational mode of pleading. Suppose the system of pleading reformed; this rule, to be a good one, would only need to be always employed in its legitimate, and never in its abusive, sense. When thus restricted, however, what does it really mean? Only, that evidence is not to be admitted of any facts, except either those on which the decision immediately turns, or other facts which are evidentiary of them.
General as this rule is, greater particularity will not, in this instance, be found to be attainable; since the question, on what facts the decision turns, is a question, not of evidence, but of the substantive branch of the law: it respects the probandum, not the probans: it does not belong to the inquiry, by what sort of evidence the facts of the case may be proved; it belongs to the inquiry, what are the facts of which the law has determined that proof shall be required, in order to establish the plaintiff’s claim.
This circumstance, obvious as it is, might easily be overlooked by one who had studied the subject only in the compilations of the English institutional writers; who, not content with directing that the evidence be confined to the points in issue, have farther proceeded, under the guise of laying down rules of evidence, to declare, on each occacion, what the points in issue are.
One whole volume out of two which compose Mr. Phillipps’s treatise on the Law of Evidence,—with a corresponding portion of the other treatises extant concerning that branch of the law,—is occupied in laying down rules concerning the sort of evidence which should be required in different sorts of actions or suits at law. But why should different forms of action require different sorts of evidence? The securities by which the trustworthiness of evidence is provided for, and the rules by which its probative force is estimated, if for every sort of cause they are what they ought to be, must be the same for one sort of cause as for another. The difference is not in the nature of the proof; it is in the nature of the facts required to be proved. There is no difference as between different forms of action, in reason, or even in English law, in respect of the rules relating to the competency of witnesses; nor, in general, to the admissibility or the proof of written documents; nor in respect of any other of the general rules of evidence. What Mr. Phillipps (I mention him only as a representative of the rest) professes, under each of the different forms of action, to tell you, is, what facts, in order to support an action in that form, it is necessary that you should prove.
Now, what are these facts? In every cause, either some right is claimed, or redress demanded for some wrong. By a wrong, is of course meant a violation of a right. Some one or more of those facts, therefore, by which rights are conferred, or taken away, or violated, must at any rate be proved: and if proof of any other fact be necessary, it can only be as evidentiary of these. If, therefore, a man professes to tell you all the facts, some one or more or all of which you must prove, in order to get a decision in your favour,—he must furnish you, among other things, with a complete list of all the facts which confer or take away—and all the acts which violate, all the rights, which have been constituted and sanctioned by law. This, accordingly, is what Mr. Phillipps and others of his brethren attempt to do. But, to enumerate the facts which confer or take away rights, is the main business of what is called the civil branch of the law: to enumerate the acts by which rights are violated—in other words, to define offences—is the main business of the penal branch. What, therefore, the lawyers give us, under the appellation law of evidence, is really, in a great part of it, civil and penal law.
Another part of it consists of rules, which are called rules of evidence, but which are really rules of pleading. These are laid down under the guise of instructions for adapting the evidence to the pleadings. It is not often, however, that a man has it in his power to mould the evidence as he pleases: but he always has the power,—that is to say, his lawyers have it for him,—of moulding the pleadings (those on his own side at least) as he pleases. These rules, therefore, for adapting the evidence to the pleadings, are, in fact, rules for adapting the pleadings to the evidence.
Two examples will illustrate the intermixture of the substantive law with the law of evidence; and one of them will also afford a specimen of the intermixture of rules of evidence with rules of pleading.
Under the title Burglary, Mr. Starkie begins by saying, that on an indictment for burglary, it is essential to prove—1st, A felonious breaking and entering; 2dly, of the dwelling-house; 3dly, in the night time; 4thly, with intent to commit a felony. He then proceeds to inform us, that there must be evidence of an actual or constructive breaking: for if the entry was obtained through an open door or window, it is no burglary. That the lifting up a latch, taking out a pane of glass, lifting up folding-doors, breaking a wall or gates which protect the house, the descent down a chimney, the turning a key where the door is locked on the inside,—constitute a sufficient breaking. That where the glass of the window was broken, but the shutter within was not broken, it was doubted whether the breaking was sufficient, and no judgment was given; and so on in the same strain. Who does not see that all this is an attempt—a lame one, it must be confessed (which is not the fault of the compiler,) but still an attempt—to supply that definition of the offence of burglary, which the substantive law has failed to afford?
The title “burglary” consists of twelve octavo pages, not one line of which is law of evidence. It is all, like the part above extracted, penal law; except three pages, which are occupied in stating how the ownership of the dwelling-house, in which the offence was committed, must be laid in the indictment; and which therefore belong to pleading.
To take our next example from the non-penal branch of the law: when Mr. Phillipps, in treating of the sort of evidence required to support an action of trover, informs us, that the plaintiff in this action must prove that he had either the absolute property in the goods, or at least a special property, such as a carrier has, or a consignee or factor, who are responsible over to their principal; and further, that he must show either his actual possession of the goods, or his right to immediate possession; and that he must prove a wrongful conversion of the goods by the defendant, and that the denial of goods to him who has a right to demand them, is a wrongful conversion; and that the defendant may show that the property belonged to him, or to another person under whom he claims, or that the plaintiff had before recovered damages against a third person for a conversion of the same goods, or that he was joint tenant of the property with the plaintiff, or tenant in common, or parcener, or had a lien on the goods, or a hundred other things which it would be of no use to enumerate;—what can be more plain, than that he is here telling us, not by what evidence an action of trover is to be sustained, but in what cases such an action will lie: that he is telling us, in fact, what we are to prove, not by what evidence we are to prove it; that he is enumerating the investitive facts, which will give to the plaintiff a right to the service which he claims to be rendered to him at the charge of the defendant; and the divestitive facts, by which that right will be taken away from him.
Yet, of this sort of matter the whole of the chapter, a few sentences excepted, is composed; and this it is that composes the greatest part of almost all the other chapters in the volume; which yet does not include any sorts of causes except those which, in form at least, are non-penal.
I do not mention this as matter of blame to the institutional writers from whose compilations the above examples are drawn.—There are some things really belonging to the subject of evidence, which it is necessary to state in treating separately of each particular kind of action; viz. the nature of the corresponding preappointed evidence (if the law has rendered any such evidence necessary to support the claim that is the subject of the action;) and also the nature and amount of the evidence which the law renders sufficient to establish a primâ facie case, and throw the onus probandi upon the other side. With this matter really belonging to Evidence, it may be convenient to mix up such matters belonging to civil and penal law, as ought to be adverted to by the professional agent of the party who brings the action. The arrangement which is best for the practitioner, or the student of the law, differs as much from that which is best for the philosopher, as the alphabetical arrangement of words in a dictionary differs from the methodical classification of them in a philosophical grammar.
OF NEGATIVE EXCLUSIONS.
Whatever be the matter of fact in dispute, of (considering rights and obligations antecedently to all dispute) whatever be the matter of fact on which the existence of the right or obligation in question depends; taking things as they exist at any given point of time, let us conceive, as existing at that point of time, a certain quantity of evidence, operating in affirmance or disaffirmance, or part in affirmance, part in disaffirmance, of such right or obligation.
Setting aside the case of preponderant inconvenience in the shape of vexation, expense, and delay,—the established system of procedure, if perfect in this respect, but no more perfect than it might be and ought to be, must have secured the existence of two results:—1. That the whole stock of evidence so existing, shall, in case of the existence of a demand for it for a judicial purpose, be actually presented to the cognizance of the judge; 2. That the evidence so presented, be presented in the most trustworthy shape of which (regard being had to the particular nature of it, whether testimonial, real, or written) it is susceptible.
Arrangements directed to the former of these ends have for their object the forthcomingness,—those directed to the latter end, the trustworthiness,—of the stock of evidence.
Regard being had to collateral inconvenience, as above mentioned,—to make the most effectual provision which the nature of things admits of, for securing the forthcomingness of the existing stock of evidence as above described, is among the incontestable duties of the legislator. This being admitted,—if, in this or that particular, a provision directed to that object has altogether been omitted to be made,—or, having been made, has failed of being effectual in the degree in which it might and ought to be effectual,—the consequence is, that, to the extent of such deficiency, an exclusion may be said to have been put in a sort of negative way—a negative sort of exclusion may be said to have been put, upon the correspondent lot or article of evidence.
If, in any instance, in consequence of any such exclusion, a particle of any such obtainable evidence fail of being presented to the cognizance of the judge—and the consequence of such failure be misdecision or failure of justice, whereby the benefit of the right in question is lost,—injustice, proportioned to the value of such benefit, is the result.
Non-compulsion is negative exclusion. To refuse to take, at the instance of the party having need of the evidence, the steps necessary to cause its being forthcoming, is to exclude it. Various are the shapes in which denial of justice manifests itself: various are the shapes; and this is one of them.
If, in this point of view, we cast an eye over the collection of established systems, we shall find the deficiencies under this head deplorably abundant—the mass of these exclusions and these injustices proportionably ample.
It is only however pro memoriâ, that the subject is in this place brought to view. To give a view of the system of arrangements by which, on the head of forthcomingness, the demands of justice promise to be satisfied, and the existing deficiencies (as above) supplied, belongs to the subject of procedure at large.
To the head of negative exclusion belongs (as we have seen) a large division of the cases of direct exclusion which have formed the subject-matter of this Book. But in those cases the exclusion was in every instance the result of express determination, called forth by actual views taken of the subject by the ruling powers: in the present case, it may, in many instances, have been the result of mere oversight, and want of reflection; and in every instance, this purely negative cause would have been adequate to the production of it.
INSTRUCTIONS TO BE DELIVERED FROM THE LEGISLATOR TO THE JUDGE, FOR THE ESTIMATION OF THE PROBATIVE FORCE OF EVIDENCE.
[* ]As in cases of treason and perjury.—Ed.
[* ]Esprit des Loix, liv. xii. c. 3.
[† ]It is on the same ridiculous plea, that the testimony of a single witness has been determined in English law to be insufficient to ground a conviction for perjury: “because,” we are told, “there would only be one oath against another.” Irrefragable logic this, if all oaths be exactly of equal value, no matter what may be the character of the swearer, and to the action of what interests he may be exposed. It is on the same ground, that no decree can be made, in equity, on the oath of one witness, against the defendant’s answer on oath. (See the following section.)—Editor.
[* ]“Les loix qui font perir un hemme sur la déposition d’un seul temoin, sont fatales à la liberté. La raison en exige deux, parce qu’un témoin qui affirme et un accusé qui nie, font un partage, et il faut un tiers pour le vuider.”—Esp. des Loix. liv. xii. chap. 3.
[* ]Heinecc. (ad Pandect,) iv. 134.
[† ]“Juris interpretes probationem in plenam et minus plenam, et hanc iterum in semiplenâ majorem semiplenam et semiplenâ minorem, dispescunt. Quanivis ver us sit ex juris Romani principiis, unius testimonium plane non admittendum esse, licet præclaro curiæ honore præfulgeat: adeoque non meliorem esse conditionem ejus qui semiplenè, quam ejus qui nihil, probavit.”—Heinecc. iv. 118.
[* ]This anomaly no longer exists. The statutes now in force relating to these subjects are 1 & 2 Will. IV. c. 32; 3 & 4 Will. IV. c. 53; 4 & 5 Will. IV. c. 13; 7 & 8 Geo. IV. c. 28; 2 & 3 Will. IV. c. 123; 49 Geo. III. c. 118.—Ed.
[† ]29 Geo. II. c. 25, §§ 10, 12.
[* ]Picking pockets is now a simple larceny by the 7 & 8 Geo. IV. c. 29.—Ed.
[† ]This singular rule of evidence is now no longer in force as regards any direct attempt against the person of the king, but it still subsists as regards any other kind of treason.—Editor.
[‡ ]In the description of the mode of execution there is indeed some difference, but only a nominal one. In felony, the convict, after being hanged till he is dead, is buried in that state: in treason, after being hanged till he is insensible, his bowels may be taken out, and his body divided into quarters, and then either buried or not buried.a What would otherwise be done completely by the worms, or by the worms and a surgeon together, is done partially by the executioner. The words of the judgment are, that he be cut down while he is yet alive, and his bowels taken out, and burnt before his face. But when a man neither feels nor sees anything, what becomes of his bowels, and whether, if burnt, they are burnt behind his back or before his race, is not that sort of difference by which human conduct can be governed. That a man about whose neck the fatal rope has been tied, ceases to feel as soon as the weight of his body has been applied to the tightening of the rope, has been ascertained over and over again by the report of those, who, after a suspension, voluntary on their part, or involuntary, have, in a great multitude of instances, been recovered into life.
[∥ ]7 Will. III. c. 3.—Ed.
[* ]See Book VIII. Technical System; Chap. XXV. Contempt manifested to the authority of the Legislature (supra, p. 311.)
[* ]3 Atkyns, 649.
[† ]3 Atkyns, 649, and abundance of authorities there cited.—Lord Hardwicke several times.
[* ]A curious enough and instructive comparison might, on any sitting of Nisi Prius, or still better on any circuit, be afforded by two lists:—1. List of the persons summoned to attend as witnesses; 2. List of the number of persons actually examined at that same place, or succession of places. Of the first of these lists the materials are at any time to be found.
[* ]Depositions are taken by the justices in misdemeanors of a grave character, as well as in felonies.—Ed.
[* ]Supra, p. 525.
[† ]Instituciones del Dericho Civil de Castilla. Madrid, 1791. 4to. p. ccci. Titulo vii. de las Pruebas, cap. iv. de la Prueba de Testigos, p. ccci. “Se segue 1. Que solamente hagan fé en juccio dos testigos: . . . . no pudiendo exceder el numero de treinta para cada pregunta (question) diversa.” From Recompilacion, i. 577. Lib. iv. tit. 6, sec. vii.
[* ]Civil, as well as criminal cases, sometimes occupy several days. One of the trials at Lancaster, in the case of Tatham v. Wright, occupied nearly a fortnight.—Ed.
[* ]This defect is remedied by the 3 & 4 Will. IV. c. 42.—Ed.
[† ]Always understood, that in the progress of the cause no such word as the word equity be pronounceable. For, equity being still more propitious than law to lawyers, speak but the word equity, and the use of juries vanishes.
[* ]Gilb. p. 142.
[† ]Ibid. 144.
[* ]Gilb. 146.
[† ]Ibid. 131.
[‡ ]Ibid. 127.
[∥ ]Ibid. 137, 138.
[* ]Gilb. 120.
[† ]Ibid. 141.
[‡ ]Ibid. 127.
[∥ ]Ibid. 137, 138.
[* ]Gilb. 120.
[* ]Gilb. 147.
[† ]Ibid. 148.
[* ]See Book I. Theoretic Grounds; Chap. VI Degrees of Probative Force.
[* ]Vide Book VI. Makeshift, Chap. II. § 3.
[* ]See Book VIII. Technical System: Chap. XIII. Chicaneries about Notice.
[† ]A judge by whom a cause is decided without his knowing anything about the matter,—what need, it may well be asked, has such a judge to hear evidence? But that is the very way in which causes in general, causes between man and man, are, the greater number of them, decided by learned judges. A piece of paper or parchment is provided; the hand of the judge is applied to it; the mind of the judge is not applied to it. So strictly true is this, that by an intoxicated judge, if he had but sense enough left to write his name, the business might be done exactly as well as by a sober one: by an automaton judge, a judge made of brass and iron, as well as by either. Exaggeration? Not it, indeed: nothing but the very simple truth. Stript of the tinsel with which it has been bedizened all around by interested idolatry, by unblushing hypocrisy, and prostrate admiration, the technical system presents in all its parts enough to stagger belief, and make a man doubt the reality of the objects spread out before his eyes.
[* ]Abolished by 3 & 4 Will. IV. c. 42.—Ed.
[† ]Blackst. Com. B. III. Ch. xxii. pp. 341-348.
[* ]£10. Call the yearly expense of a family £50, and give five to a family; this gives, for the expenditure of an individual, £10.
[† ]“This, for aught I could ever read, is peculiar to the law of England, and no mischief ensueth hereupon.”—2 Inst. 45.
[‡ ]Com. III. 341.
[* ]Vol. I. (6th edit.) p. 421.
[† ]Book III. Extraction; Chap. IV. Discreditive Interrogation.
[‡ ]In the disapprobation bestowed upon this rule, it is of course implied, that the case is one of those in which the production of evidence to discredit the character of the witness, is in itself proper; for which cases, see Book V. Circumstantial; Chap. XIII. Of Motives, Means, &c.; §§ 3 & 4. Character Evidence. If not, it is proper to exclude any such evidence, after he has answered, only because it is proper to exclude it, whether be answers or no. But if the case be one in which it would have been proper to adduce evidence against his character without putting any questions to himself, it is difficult to see what impropriety there can be in doing exactly the same thing after you have interrogated him and got his answer, if you do not believe his answer to be true.
[* ]Two attesting witnesses now suffice in all cases, under 7 Will. IV. and 1 Vict. c. 26. See Vol. VI. p. 533.—Ed.
[† ]See Book IV. Preappointed.
[‡ ]See Book VI. Makeshift.
[* ]Phillipps, i. 159.
[† ]Ibid. 175.
[* ]Phillips, i. 84.
[† ]Harding v. Carter, apud Phillipps, i. 97.
[‡ ]Fairlie v. Hastings, ibid. 95.
[* ]See an abstract or disgest of the Law of Evidence, recently published by Mr. Harrison, on the plan of Crofton Uniacke, Esq. (p. 8.)
[† ]Harrison, ut suprâ, pp. 9, 10.
[* ]Phillipps, i. 530.
[* ]“The question on the admissibility of parol evidence, in such cases, will depend principally upon this,—namely, whether the evidence is necessary to give an effective operation to the devise, or whether, without that evidence, there appears to be sufficient to satisfy the terms of the devise and the intention of the testator, as expressed on the face of the will.”—Phillipps, i. 515.
[† ]“The refusal to put upon the words used by a man in penning a deed or a will, the meaning which it is all the while acknowledged he put upon them himself, is an enormity, an act of barefaced injustice, unknown everywhere but in English jurisprudence. It is, in fact, making for a man a will that he never made; a practice exactly upon a par (impunity excepted) with forgery.
[* ]Phillipps, i. 281.
[† ]Phillipps, i. 486.
[‡ ]Ibid. 382, 383.
[* ]Vol. I. p. 299.
[† ]“We have seen in how many cases the words conclusive evidence cover a real exclusion: it remains to bring to notice one case in which they do not. This is when an act, designated by a distinct expression, is termed evidence of the same act designated by an indistinct one.
[‡ ]This Chapter has been added by the Editor.
[* ]The court may order the misnomer to be amended under the 7 Geo. IV. c. 64, § 19, without quashing the indictment.—Ed.
[† ]See the title Variance, in Starkie’s Law of Evidence.
[* ]Phillipps, i. 162.
[† ]Harrison, ut suprà, p. 132.
[‡ ]In the description of the mode of execution there is indeed some difference, but only a nominal one. In felony, the convict, after being hanged till he is dead, is buried in that state: in treason, after being hanged till he is insensible, his bowels may be taken out, and his body divided into quarters, and then either buried or not buried.a What would otherwise be done completely by the worms, or by the worms and a surgeon together, is done partially by the executioner. The words of the judgment are, that he be cut down while he is yet alive, and his bowels taken out, and burnt before his face. But when a man neither feels nor sees anything, what becomes of his bowels, and whether, if burnt, they are burnt behind his back or before his race, is not that sort of difference by which human conduct can be governed. That a man about whose neck the fatal rope has been tied, ceases to feel as soon as the weight of his body has been applied to the tightening of the rope, has been ascertained over and over again by the report of those, who, after a suspension, voluntary on their part, or involuntary, have, in a great multitude of instances, been recovered into life.
[† ]“The refusal to put upon the words used by a man in penning a deed or a will, the meaning which it is all the while acknowledged he put upon them himself, is an enormity, an act of barefaced injustice, unknown everywhere but in English jurisprudence. It is, in fact, making for a man a will that he never made; a practice exactly upon a par (impunity excepted) with forgery.
[a ]By the 54 Geo. III. c. 146, in cases of high treason, the sentence to be awarded is drawing on a hurdle, hanging by the neck, and beheading and quartering. But the king may, after judgment, direct that the traitor shall be simply beheaded.—Ed.
[a ]See the Chapter so intitled, suprà, p. 308.