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CHAPTER II.: EXCLUSION BY LIMITATION PUT UPON THE NUMBER OF WITNESSES. - 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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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.†
[* ]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.