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

CHAPTER I.

EXCLUSION OF EVIDENCE FOR WANT OF MULTIPLICITY.

§ 1.

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.

§ 2.

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.

[* ]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.

I have made the best sense of the passage I could; but to make any, it was necessary to depart from the expression: for the expression is as confused as the opinion is ill grounded.

Voiding, emptying a division, may be good French, and I suppose is, since it is Montesquieu’s; but the image would be an incongruous and ill-constructed one in any language. The division, be it what it will, may be terminated; but how a division can be emptied, seems not very easy to conceive. The sort of division to which the phrase seems to bear allusion, is a division in the number of persons (judges, for instance) having a voice, as the phrase is (meaning a vote,) in any assembly invested with the form of a body corporate. This supposes the two assertions to stand on equal ground, like the opinions of two fellow judges; but the case, we have seen, is otherwise.

[* ]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.

The bodies of those who die a natural death are frequently laid open, to satisfy the affectionate curiosity of relatives, or the more useful curiosity of the medical attendant. The bowels of kings themselves have been taken out to be embalmed: the bowels of traitors are taken out and burnt: that is, disposed of in a manner that was preferred to embalming in the instance of Roman emperors. If drawn to execution in a carriage, the felon is drawn in a carriage with wheels, the traitor in a carriage without wheels. No one can seriously suppose, that variations so frivolous and minute can add anything to the security. No man can seriously suppose, that he who would be content to risk the punishment of a felon, would not equally risk the punishment of a traitor, as here described.

[∥ ]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.

[‡ ]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 bodies of those who die a natural death are frequently laid open, to satisfy the affectionate curiosity of relatives, or the more useful curiosity of the medical attendant. The bowels of kings themselves have been taken out to be embalmed: the bowels of traitors are taken out and burnt: that is, disposed of in a manner that was preferred to embalming in the instance of Roman emperors. If drawn to execution in a carriage, the felon is drawn in a carriage with wheels, the traitor in a carriage without wheels. No one can seriously suppose, that variations so frivolous and minute can add anything to the security. No man can seriously suppose, that he who would be content to risk the punishment of a felon, would not equally risk the punishment of a traitor, as here described.

[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.