§ 1.: Persons for whose use—Non-Lawyers as well as Lawyers.

The extent—the almost boundless expanse of the subject,—the variety of the matters touched upon,—the novelty of the points of view in which many—perhaps most of them—not to say all of them, will be found presented,—the unavoidably consequent novelty of not a few of the terms which it had been found necessary to employ,—all these things considered, it seemed to the author, that a general, and, how slightly soever, yet all-embracing outline, abstracted, and, like “a panorama explanation,” detached from the work at large, for the purpose of preparing the eye for the contents of the more fully-delineated scene, might not be without its use.

Should this be among the instances in which the Greek adage concerning books is destined to find its exemplification, the lighter burthen may at any rate do service, by saving the hand which takes it up, from the heavier load which is yet to come.

The field of evidence is no other than the field of knowledge. On that field, the researches, the result of which form the matter of the present work, extend not, it is true, beyond the case in which evidence is capable of being operative to a legal purpose. But forasmuch as on the whole field of human knowledge there is scarcely a conceivable spot from which evidence may not on one account or another be called for to a legal purpose*—hence it is, that, in effect, the portion cut off from the field of research by this limitation, will be found to be neither very considerable, nor altogether determinate.

Proportioned to the extent of that field will be the number of persons, to whom, in the character of readers, independently of any such misfortune as that of feeling themselves stretched on the rack in the character of litigants, it may happen to find in the work, matter on some account or other not altogether devoid of interest: and in proportion as this supposition comes to be realized, a justification will be afforded to the words, by which, in the title-page, non-lawyers are spoken of as persons to whose use, as well as that of lawyers, it may be found applicable.

§ 2.: Rationale—propriety of the appellative.

The justification of the clause, “for the use of non-lawyers,” having been thus attempted, the word rationale, in the clause “rationale of evidence,” remains to be justified.

To whomsoever, with other than a professional eye, it can have happened to take up a book on the subject of evidence, be the book what it may, it can scarcely have been long, before he saw more or less reason to suspect that in the formation of the mass of rules of which he found it composed, the share taken by that faculty, which, when applied to other subjects, goes by the name of reason, must have been small indeed. Towards any determinate end, good or bad, unless it were the increase of power and profit to the framers—scarcely any symptom of regard: arbitrary will—disguised, or not disguised, by this or that technical figure of speech, the sole, as well as the ever active efficient cause of everything that has been done:—such is the spectacle that will have presented itself to his view.

In matters of law—in matters of legislation at least—reason is an instrument by which means are employed and directed to the attainment Edition: current; Page: [6] of an end. Of legislation the proper end may, it is hoped, without much presumption, be stated as being,—not but there are those who will deny it,—in every community, the creation and preservation of the greatest happiness to the greatest number—or, in one word, happiness: a false end, the creation and preservation of the greatest quantity of happiness to a few, to the prejudice, and in diminution of the happiness of the greatest number:—to a few, and those few naturally and usually the possessors of the several powers of government, with their official subordinates, and their other associates and connexions:—and this, in proportion as the machinery of government is looked into, will almost everywhere be seen to be the end, principally at least, if not exclusively, aimed at and pursued.

As to the faculty called will, its act, volition, has on each occasion, for its causes, interests, acting in the character of motives. In what way these springs of action, with as little assistance as perhaps in any instance was ever received or looked for from the faculty of reason, give existence everywhere to the law of evidence, and more particularly to the law of English evidence, is among those questions, the answers to which will in some shape or other, it is supposed, be found as occasion serves, presenting themselves to the reader in his progress through the work.

Knowledge of the proper remedies is seldom to be obtained without knowledge of the mischief;—for the purpose of remedy, knowledge of the effect is seldom sufficient without knowledge of the cause.

To the non-lawyer, or as in lawyers’ language he is called, the unlearned reader, not only in respect of perspicuity, but in respect of that sort of satisfaction which is afforded by the observation of practical use, under each head, a delineation more or less particular, of the state of the law as it is, would naturally have been in no small degree acceptable;* but with the design of the present sketch, any such illustration would have been altogether incompatible. If the contents of two large quartos could have been compressed into three or four hundred octavo pages, doubtless so much the better; but if they could, the difference would have been so much surplusage. What has all along been within the bounds of possibility, at least whether within or not within the bounds of the author’s ability, has been to excite curiosity: what could only here and there be so much as attempted, has been in some degree to satisfy it.

Remedy supposes mischief. Rules are seldom laid down, but with a view more or less distinct to antecedent transgressions: and, not only upon the rules that will here be seen suggested, but upon the state of the law which during the framing of them was in view, the observation may, for the use of the unlearned reader, afford some light. Accordingly, as often as upon the view of this or that suggestion, the propriety of it may happen to present itself, as being so completely obvious and indisputable as to reflect upon it the imputation of nugatoriness and uselessness, the danger of error will not be great, if his conclusion be—that this dictate of the plainest common-sense stands, in a great part, if not in the whole of its extent, contravened by the practice of English judges.

Thus, if in what ought to be done, a man reads what has not been done, and in what ought not to be done, what has been done, the text itself, may, with the assistance of this short hint, perform the office of a comment.

Should any such question be asked, as how it can have happened that, in the sight of the legislator, in almost everything they did, men thus called, and thus chosen, kept doing that which was evil, the answer, true or not true, will at least be found simple and intelligible. What they did was evil, because to do otherwise than evil, both will and ability were always wanting: will was wanting, because interest was wanting: ability was wanting, because will was.

Of this opposition between what might seem duty on the one hand, and interest coupled with power on the other, the causes, as well as the existence, have been shown already in another work: and to everything that, in the course of the present pages, will be seen indicated in relation to established practice, these observations, short as they are, may afford a clue.

Thus, and thus alone, may be accounted for,—accounted for in crowds,—phenomena which otherwise would have been plainly unaccountable.

When thistles only are sown, grapes ought not to be expected.

As in every other part of the field, so in this:—of that rule of action, on the state of which, everything that is valuable to man is in so high a degree dependent, very different is the representation that would assuredly have been most agreeable to the feelings of the generality of those who live under it, and of none in a higher degree than of him, on whom the task of giving the picture, which is here given of it, has devolved. Unfortunately, by certificates of health, neither in the body natural, nor yet in the body politic, are disorders to be cured.

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By means of the relation, the all-regulating relation, constantly and comprehensively kept in view; viz. the relation of means to end, the aim has all along been to give to the branch of legislation here in question the form of an art, and in respect of comprehensiveness as well as precision, the form (but if possible without the repulsiveness) of a science.

§ 1.: Relation of Law to Happiness—of Judicature, i. e. Judicial Procedure, to Law.

The adjective branch of law, or law of procedure, and therein the law of evidence, has everywhere for its object, at least ought to have, the giving effect throughout to the several regulations and arrangements of which the substantive branch or main body of the law is composed.

As to the main or substantive branch, it has for its ultimate fruits happiness and unhappiness, in infinitely diversified and ever-changing proportions; but, in the meantime, for its immediate fruits, it has those fictitious indeed, but indispensably employed, creatures of imagination and language, viz. rights and obligations: rights its sweet fruits, pregnant with whatever is good, whether in the shape of security or pleasure: obligations its bitter fruits, evil in themselves, good in so far as they are the indispensable instruments of all created good, being necessary as well to the creation, as to the preservation, of all law-created rights.

Vain would be the attempt to impose obligations—legal obligations:—vain, therefore, the attempt to give effect to rights—to legal rights—unless, in a state of constant preparation to give execution to the will of the sovereign in this behalf, there existed a mass of physical force, superior to all resistance, which in the ordinary state of political society could be likely in any case to be opposed by private hands; and to which, accordingly, whether by reflection, or by habit and imitation, the members of the community at large were in a state of constant disposition to pay, if not an active, at least a passive and unresisting obedience.

This disposable force—the sort of person or character to whose disposition it stands committed—is that which stands expressed by one common abstract denomination, as employed in the singular number, viz. the judge: the judge, including in that one word all persons—all the individuals—to whom, on any given occasion, for the purpose in question, any portion of that force happens to be intrusted.

It is therefore by means, and in respect of the efficient service of this exalted functionary rendered immediately to the sovereign in his quality of legislator, but through him and in ultimate result to the community at large, that execution and effect—occasionally execution, and thus constantly effect—are given to those expressions—those evidences—those repositories—those vehicles—of the sovereign’s will, which are spoken of under the name of laws.

§ 2.: Relation of Evidence to Judicature.

Be the law or portion of law what it may, antecedently to execution—if not in form, at any rate in effect—if not expressed in words, declared at any rate by actions—comes decision: judicial decision,—in official language called sometimes judgment, sometimes decree, sometimes—itself or its difficultly distinguishable consequences—by various other names, such as rule, order, writ, precept, mandate, and the like.

In every instance in which, expressly or virtually, judgment is thus pronounced, two propositions are expressly or virtually delivered; viz. a proposition concerning the state of the law, and a proposition concerning the state of certain matters of fact—of matters of fact which belong to the case, and to which the law that belongs to the case is considered as applying itself. On the subject of the state of the law, the proposition has for its ground, in the case of written, i. e. statute law, the very words of the law; of that portion of the law, which on the occasion in question is in question:—in the case of unwritten law, a sort of law, of the essence of which it is, not to have any determinate set of words really belonging to it, the supposed purport of some portion of written law, which on the occasion in question is feigned or imagined for the purpose.

Thus much as to law:—in relation to matter of fact, the decision has for its ground the evidence* by which term is on every occasion understood some other matter of fact, which on that same occasion is presented to the mind or sense of the judge, for the purpose of producing in his mind a persuasion assertive of the existence or non-existence of a matter of fact first mentioned, which is always some individual matter of fact supposed to be of that sort, which on the occasion in question the legislator is supposed to have had in view.

Matters of fact being in such or such a Edition: current; Page: [8] state,—such and such (says the legislator) shall be the state of right and thence of obligation:—he who is in such or such a situation comprehended in that state, shall have a right to receive upon demand, such or such a service at the hands of the judge. Placing himself in the plaintiff’s side, “I am in such a situation,” says a man, addressing himself to the judge—“I am in such a situation—it is therefore now your duty to render me that service.”

Thus, on each occasion on which a suit is instituted—a judicial demand preferred,—a service of a nature adapted to the nature of the demand—a service always of the positive cast—is by the plaintiff called for at the hands of the judge. At the same time, if the demand be contested—the suit defended,—a service of an opposite nature—a service of the negative cast—is called for on the part of the defendant,—a service which consists in the non-imposition of those obligations—those burthensome obligations—obligations to act, to forbear, to suffer,—the imposition of which would be necessary to the rendering to the plaintiff the service, be it what it may, which is prayed for on his side.

Meantime, to constitute a foundation for this right, so far as depends upon the matter of fact, there can be nothing but the evidence:—for the reception of which, to the purpose of rendering, in conformity to the will declared as above by the legislator, either the positive service prayed on the plaintiff’s side, or the opposite and negative service prayed on the defendant’s side, according as the plaintiff is or is not in the situation in which he says he is, the judicatory cannot but lie equally open on both sides.

In this state of things, if on the ground of matter of fact it happen to the plaintiff to fail—to fail of making out his right to the service prayed for—he at the same time having that right,—it may be in one or other of three ways, and it cannot be in any ulterior way:—1. Evidence necessary and sufficient to the formation of the ground in question is not forthcoming; 2. Forthcoming and standing alone, i. e. without counter-evidence on the defendant’s side, it fails of obtaining the necessary credence; 3. On defendant’s side, counter-evidence—evidence, the belief of which is incompatible with the belief of that which is adduced on the plaintiff’s side, obtains stronger credence. But by the supposition, the plaintiff has really a right to the service which he demands:—this being the case, what follows by the same supposition is—that in the evidence adduced on the part of the defendant, there is something of incorrectness, or partially-operating incompleteness—something, at any rate, which thereby has produced a deceptious effect on the judgment of the judge.

§ 1.: True or proper ends of Judicature.

The aggregate of the objects thus meant to be designated, being the standard of reference, to which, through the whole course of this work, every other object will be referred—the test by which everything will be tried—everything that is approved of, approved;—everything that is condemned, condemned;—it seemed necessary, thus, at the very outset, to bring together, under one view, a list of those same objects, placed in such sort, that, as well each by itself, as their mutual relations and dependencies being clearly understood, may on each succeeding occasion be present, or capable of being readily presented to the mind.

Of the ends of judicature, were there none of them but what were capable of being presented in a positive or affirmative shape, the list night be very short.

I. In case of wrong supposed to have already been committed:—

1. Application of the matter of satisfaction where due,—and in the shape in which it is due.

2. Where on the score of punishment ulterior suffering† is supposed necessary, application of such suffering where due, and in the shape in which it is due.

II. In the case where no wrong is supposed to have been committed, but, at the hands of the judge, a service, consisting generally in the conferring of some new right‡ on the plaintiff or demandant, is demanded.

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3. Collation of right where due, and in the shape in which it is due.

4. Reddition of judicial service at large* where due, and in the shape in which it is due.

Thus short and simple might be the list of the ends of judicature, were there none but such as are of the positive cast, such as are the above, to call upon the legislator for his regard.

But for the accomplishment of those positive ends—for the production of good in those positive shapes—let any course be taken—even the best imaginable—evil in various shapes is still liable to be produced:—and of this evil, so many shapes as there may be any use in distinguishing, so many negative ends or objects may be assigned as possessing, on the occasion of judicature, a demand for attention and pursuit on the part of the judge:—the good, that the production of it may, as far as possible, be accomplished;—the evil, that the production of it may, as far as possible, be prevented.

Of these negative ends of judicature, the description cannot in any other way be given than by giving a list of the several evils, by the prevention or avoidance of which, in so far as possible, these several ends are proportionably accomplished. Of these evils, the list may stand as follows, viz.—

1. Referable to the penal and the non-penal† departments of the fields of law taken together, directly-resulting evils incident to judicature—i. e. evils resulting in a direct way from misapplication of the power of judicature:—

1. Non-application of the matter of satisfaction where due.

2. Application of the matter of satisfaction (though it be where due) in a shape‡ not due.

3. Application of the matter of satisfaction where not due.

4. Non-application of the matter of punishment where due.

5. Application of the matter of punishment (though it be where due) in a shape not due.

6. Application of the matter of punishment where not due.

7. Non-collation of right where due.

8. Collation of right in a shape not due.

9. Collation of right where not due.

10. Non-reddition of judicial service (at large)∥ where due.

11. Reddition of judicial service in a shape not due.

12. Reddition of judicial service where not due.

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If the error be only in respect of quality, the quantity being exactly what is due, the evil (it may occur) may be but imaginary. The answer is—if it be the evil of the first order, and nothing farther, that is looked for;—yes; viz. that which has for its seat the feelings of the parties on either side, or on both sides: notwithstanding the error, quantity—of suffering on the one side, of enjoyment on the other—being by the supposition the same as if there had been no such error. But, however it may be in the case of satisfaction, in the case of punishment, if as by the supposition there be an error in respect of quality, the effects of that error will render themselves sensible, by the production of evil of the second order, i. e. the people at large will, in some shape or other, viz. danger or alarm, or both, be sufferers from it. Of the importance of quality in punishment, and of the distinction between first and second orders as applied to evil and to good, views have been given in other places.*

Referable still to the same two departments, follow in the list of evils incident to judicature, such as may be termed collaterally resulting—evils resulting in a collateral way from the misapplication of the powers of judicature:—

1. Delay, where, and in so far as, unnecessary or preponderant.†

2. Vexation, where, and in so far as, unnecessary or preponderant.

3. Expense, where, and in so far as, unnecessary or preponderant.‡

In the word misdecision, we have a general term, under which any decision, under and by virtue of which any of the above-mentioned evils, mentioned as correspondent, and opposite to the direct negative ends of judicature, are considered as produced.*

Given the ends of justice on the occasion of judicature, given in the same degree of detail are the duties of the judge.

If, as it has been endeavoured to be made, this analysis be found all-comprehensive, every imaginable breach of duty commissible on the part of a judge, as such, will be found referable to one or more of the heads contained in it.

§ 2.: False, but actual ends of Judicature.

The objects hitherto brought to view, under the name of the ends of judicature, are those which seemed the proper, or, in one sense of the word true, the true ends of judicature.

Opposite to these ends stand those which, it should seem, may without impropriety be termed the improper ends, or, in one sense of the word false, the false:—in England, at least, these, alas! will be found to have always been—not to say to be—the actual ends.

In England, in the early ages of the constitution, reckoning from the Norman conquest, the one all-embracing false end may be stated as having for its correspondent interest, private and personal, the sinister interest of the monarch: his sinister interest, in the several shapes in which the sinister interest of a public man is capable of displaying itself, viz. those of which the objects are, respectively, money, power, reputation (reputation, Edition: current; Page: [11] when operating upon an extensive scale, called fame,) constantly ease, and occasionally vengeance.*

To the sinister interest of the monarch, the indolence and imbecility incident to that situation, joined to the necessary industry and comparative mental vigour of his instruments and substitutes, the judges, substituted by degrees, and in a principal degree, the sinister interests of these his subordinates:—the seat of the sinister interest thus gradually shifting, the shapes in which it operated still the same.

Among the false ends, the above may be termed the direct ends of judicature. Relation had to these, the name of collateral ends may be given to those which correspond with the sinister interests of those other members of the governing body who, in the character of sinecurists, or over-paid placemen, or holders of needless places or otherwise, have, for the benefit of their support, been suffered without repugnance to come in for shares in the profits of high-seated and irresistible depredation:—fruits of scientifically and diligently cultivated delay, vexation, and expense.

Among these, a place of pre-eminence is due to the man of finance, who—from taxes, whether under the name of taxes, or under the name of fees, imposed upon justice (i. e. from the sale of that commodity to all those who have wherewithal to pay for it, coupled with the denial of it to all who have not,) over and above any part of the produce which, on any such false pretence as that of official labour performed, he may have contrived to put into his own pocket, or that of this or that more or less near connexion—derives that comparative ease which, from a hundredth part of the same suffering, inflicted upon an equal number of patients, capable of making their cries heard in concert, might receive intolerable disturbance.†

In the fabrication of priest-made religion, even in its most pernicious forms, the predominance of sinister interest would scarcely he found more incontestable than it may be seen to be in judge-made law—seen even in the picture given of it by Blackstone—seen notwithstanding all his varnishes.

For the sake of emolument and advantage in other shapes extractible out of the expense, to manufacture on every occasion, in the greatest endurable quantity, the inseparably-interwoven tissue of abuses—viz. unnecessary delay, vexation, and expense—may be seen throughout to have been the only real object of solicitude. Fortunately, in pursuit of the only real object, it was not possible to proceed without the appearance, nor even altogether without the reality of justice; and to the necessity thus produced may, without much danger of error, be ascribed what little of justice may be found perceptible in the result.

Bearing in mind thus much, the reader, learned or unlearned, will find himself in a condition to account for the several phenomena of actual law, as they present themselves to view: if, on the contrary, the burthen be felt too heavy for endurance, everything he sees will be an effect without a cause.

As human nature is constituted, the preservation of the individual and of the species depending upon the ascendency universally maintained (here and there an extraordinary case excepted) by self-regarding over social interests; so in judicature, as in every other department of government, the preference has of course been all along given to the false ends, in their competition with the true: the false ends, as above described, having all along been pursued, as far as the craft or indifference of the monarch, and the blindness or patience of the people, would permit: the true pursued so far, and so far only, as reality appeared necessary to the keeping up of appearance.

Read the history of the Council of Trent, as written by Paul Sarpi. Observe by what springs of action each result was produced: believe the actors themselves, by piety—everything by pure piety: believe the historian, by everything but piety.

Such as was the share which piety had in the production of that portion of ecclesiastical law which received its establishment from the council of Trent, such, or thereabouts, may be seen to have been the share which the love of justice had in the production of that part of the rule of action which, instead of the legislator, has had judges for its authors; particularly that part which is composed of the law of procedure, and in the law of procedure, that which is composed of the law of evidence.

Of the present sketch, few, perhaps, are the pages that may not be seen to add, more or less, to the proof of that instructive truth. Edition: current; Page: [12] But in the chapter on Exclusion, the section which speaks of that operation, as performed on the ground of a supposed danger of deception, will perhaps be found to comprehend within the smallest compass, the greatest quantity of such matter as concurs in giving probability to that inference.

§ 1.: List of these Duties.

After what has been said of the relation of judicature to law, and of evidence to judicature, the duties of the legislator, in relation to evidence, will, it is supposed, be found comprisable under the six following heads—under each of which follow a few words of explanation, together with a brief intimation of the sort of regard paid to these duties in English practice. For giving expression to them, the imperative mood has been suggested by grammatical convenience:—

1. For the support of every right conferred, of every obligation imposed by you, do whatsoever is in your power towards the securing existence, and thereafter forthcomingness* to whatsoever evidence may be necessary:—saving on each individual occasion all due regard to the collateral ends of judicature,† as above indicated.

2. Avoid putting an exclusion upon evidence on every occasion on which exclusion of evidence is improper;—as it will be shown to be in every case, except those in which it is called for by a due regard‡ to the collateral ends of judicature.

3. Put an exclusion* upon evidence on every occasion on which exclusion is proper;—as it will be shown to be, on every occasion on which it is called for by a due regard to the collateral ends of judicature.

4. So order matters, as far as may be, that on each individual occasion, whatsoever evidence comes to have been received, shall not, in respect of the degree of persuasion produced by it in the mind of the judge, operate with an effect greater† than its due effect.

5. Nor less† than its due effect.

6. So order matters, that saving always the regard due to the collateral ends of justice, each article of evidence shall, to the mind of the judge, present itself in its best shape:‡— Edition: current; Page: [13] meaning, by its best shape, that in which it is least likely to be productive of deception—to operate with an effect greater, or with an effect less than what is due.

7. By arrangements of a general complexion, taken beforehand, do what the nature of the case admits of, not only towards securing in each instance, as above, the forthcomingness of such necessary evidence as may happen to have been brought by other causes into existence, but also towards securing existence to such necessary lots of evidence.

N. B. Evidence brought into existence by the operation of the sort of providence thus indicated, will herein be designated by the appellation of pre-appointed evidence.

§ 2.: Regard paid to these Duties in English Practice.

Such, in as far as the view here taken of the subject may be found correct, being the list of the duties or tasks proper to be performed by the legislator—understand always, by the sovereign in his character of legislator—in the field of evidence, a brief intimation of the sort and degree of regard, which, it is supposed, will be found to have been paid in English practice to these duties, may even, in this early stage of the inquiry, be not altogether without its use.

As to the sovereign, considered in his character of legislator, on English ground in particular, in relation to the whole extent of this part of the field of action, the most supine neglect will, on his part, be everywhere but too discernible: arrangements, on which justice is so completely dependent, left, almost without exception, to be made by sinister interest, and interest-begotten prejudice, in the person of the judge:—of the judge who, in this as in all other parts of the field of law, pretending to find already made whatsoever he makes, makes and mars exactly what he pleases. If here and there, to this or that arrangement the touch of the legislative sceptre may be seen applied, it is, in every instance, by the hand of the judge that the instrument has been guided, no symptoms of thinking being anywhere perceptible, on the part of that which should have been, and is spoken of as if it were, the all-directing mind.

1. Under the head of forthcomingness, as above explained, the system of arrangements provided have, in proportion as they have been looked into, been found in a deplorable degree scanty, inapposite, inconsistent, and inadequate. But the system of procedure—judicial procedure at large—being the system to which arrangements of this description properly belong, it can only be in an incidental way that any such deficiencies can meet the eye, in the course of the present work.

2. In regard to the system of exclusion, pursued to so prodigious an extent, and with not less prodigious inconsistency, if the observations that will be brought to view are found just, it will be seen to be groundless and pernicious, to an extent little short of that to which it has been applied.

3. In regard to the applying the exclusion, on any such ground as that of preponderant inconvenience, in the shape of delay, vexation, and expense—thereby embracing the lesser evil in preference to the greater—of any such application of human prudence, scarcely an idea will be to be found:—cases of vexation to a small extent only excepted—cases in which, to the greater part of that small extent, the supposed vexation will be found to be purely imaginary, not having any existence independent of that which is inseparably attached to such infliction, as in the name of punishment or satisfaction (obligation of rendering satisfaction,) cannot but be assumed to be due.

4 & 5. In regard to the affording assistance and guidance to the judge, in forming his estimate of the probative force of evidence, so that in each instance the effect produced by it in the way of persuasion on the mind, may be neither greater nor less than what is its due, this whole quarter of the field will be found a complete blank. Nothing was done, or so much as thought of being done, but by the operation of will:—nothing by assistance afforded to intelligence. Instead of instruction, exclusion employed as above.

6. In regard to shape, putting aside the best, which, as having been originally the only shape, is the most obvious* as well as the simplest shape,—by an abuse of the art of writing, it has been the art and care of the English judge to give (as will be seen) to evidence, in so far as hath lain in his power, the two most deceptious, and in every respect the worst shapes† that could be given to it: in doing which, his own sinister interest has (it will be seen) in various shapes been promoted, while the interests of the public, in respect of truth, morality, and justice, have thereby been sacrificed: nor in this case, on the part of the legislator, have the transgressions of the judge been merely the result of blind confidence reposed in that subordinate;—the sinister interests of the leaders in legislation having on this ground interwoven themselves with, and given effect to, the sinister interests of the judge.

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7. Under the head of pre-appointed evidence, it will be seen how badly individual prudence has, on this part of the field, been seconded and supported by legislative providence.

By general rules, which he has seen and suffered to be deduced from practice—from judicial practice—the legislator breeding and nourishing in every bosom the expectation of seeing his enforcing sanction applied to contracts of all sorts—to agreements and conveyances,—while the judge, by unpre-announced and unforseeable exceptions, without reason, and without end, has been violating the engagements taken by these same rules; the legislator looking on, and, by his perpetual connivance, making himself a perpetual accomplice in this perpetual breach of faith.*

§ 1.: Whence measured—Standard quantity.

In regard to evidence, such as hath just been seen, being the legislator’s duties, and amongst them, the doing what depends upon his power, including in this case in a more especial manner, his wisdom—towards preventing evidence from operating, in any case, either with greater or with less effect than is its due, hence it is that,—as in the instance of any one article of evidence it is an object (how difficultly-soever attainable.) highly desirable, to know what degree of probative force is the due of that one article of evidence,—so (what may be found not quite so difficult,) as between two articles of evidence, exhibired on the opposite sides of the cause, which it is that ought to be considered as possessed of the greatest degree of probative force. This being the case, a preliminary point, alike necessary to either purpose, will be seen to be the fixing upon some describable quantity of probative force capable of being referred to in the character of a standard quantity, from which, in every case, as well increase as diminution—diminution as increase, may be capable of being measured. If, in this as in so many other instances, the nature of the case admits of little precision,—if, in this as in so many other instances, ignorance and weakness are the lot of human nature,—it is not the less needful to us to make ourselves as well acquainted as possible with the nature and degree of that ignorance and weakness.

To this standard, then, will the reference be made, as often as, by the operation of this or that circumstance in the character of a cause, either superiority or inferiority, in the probative force of this or that article of evidence, is considered as being produced.

For this standard of reference, take, for example, a portion of discourse, orally delivered in the hearing of one or more persons;—a portion of discourse, by which a person, whose reputation in respect of trustworthiness, as applied to the purpose in question, is, in all points, upon the ordinary medium, or average level: or rather (what comes to the same thing, and presents a sort of condition, the fulfilment of which is much more easily ascertained,) whose character is not known: this person, let him assert or declare himself to have been, at a time and place individually described, a percipient witness of the existence of the matter of fact in question; it being such, that, of the existence and nature of it, every person of sound mind is qualified to obtain adequately strong and distinct perceptions, form an adequately correct judgment, and retain an adequately correct and complete remembrance.

In this standard lot of evidence, as thus described, two particular circumstances, in the character of potential causes of increase or diminution of probative force, will require to be noted; viz. 1. The source from which the evidence—the information—springs, and is delivered; and, 2. The shape in which it is delivered.

In relation to the source, again, two particulars may be observed; viz. 1. The nature or quality of it, as delivered in to the judge or other person for whose use it is destined; 2. The propinquity or nearness of it in relation to the seat of perception; viz. of those perceptions, the existence of which is asserted by it.

§ 2.: Sources of Increase.

As to increase and superiority, consider now by what means it is, that, to the standard degree of probative force, as thus described, any addition can be made.

1. In regard to the quality of the source, one means by which probative force is capable of being added to it is—by substituting to a declaration of this unknown person, a declaration to the same effect, made by a person selected* for this purpose, in contemplation, and under Edition: current; Page: [15] the persuasion of a superior degree of relative trustworthiness as existing in his instance. 2. Another obvious, and much less questionable mode is—by adding to the number of the persons, in whose declarations, in relation to the supposed matter of fact, an exact coincidence has manifested itself. 3. In respect of propinquity with relation to the source of perception, if the narrating witness, as above described, was himself the percipient witness, to whose senses the perceptions in question manifested themselves, probative force admits not, it is manifest, any increase.

Decrease, on the other hand, it will be found to admit of, and to any imaginable degree; viz. in the case where the matter of fact, the perception of which is thus expressed, is, by the person by whom it is expressed, stated as having been perceived—not by himself, the narrating witness, but by some other person or persons,* on whose credit the existence of the supposed matter of fact is thus averred.

Thus much concerning the source of the evidence or information.

As to the shape;—of the shape in which the standard lot of evidence, as above described, is supposed to have made its appearance, what is plain enough is, that it is not only the natural shape, but the only natural shape. But by means of a variety of additaments—instruments—operations—states of things—arrangements,—of which, under the collective name of securities for trustworthiness—securities against deceptious incorrectness and incompleteness in evidence, particular mention will be made, whatsoever probative force belongs to the information in this its natural and primitive shape will presently be seen to have received additions, the importance of which will not be found to be open to dispute.

§ 3.: Source of Diminution.

As to what concerns the source, and in particular the quality of that source, what is manifest enough is—that by any circumstance by which the trustworthiness of the person in question is diminished, the probative force of the evidence deduced from that source, or passing through that channel, will be proportionally reduced. Of the causes of trustworthiness and untrustworthiness† in testimony, a view is given under the head so denominated.

As to remoteness from the source of narration—from the supposed seat of perception—in the character of a quality, by which, in proportion to the degree of it, a correspondent defalcation cannot but be made from the probative force of the evidence so circumstanced, it has already been brought to view.

As to the shape;—of the circumstances, upon which the inferiority or superiority of an article of evidence in this particular depends, intimation has just been given. By any addition made, of any of them, to the standard species of evidence, the trustworthiness of the article has already been spoken of as receiving a correspondent addition and increase.

But, admitting such to be their virtue and effect, it will follow that, except in so far as it may happen that the application of them stands prohibited by preponderant inconvenience, in the shape of delay, vexation, and expense, the whole aggregate of these securities should, in every instance, be employed to bear upon the evidence. This being supposed, the absence or non-application of any of them may, with reference to the article of evidence in question, be considered as operative of a defalcation made from the due and proper quantity of its probative force, and thence as a cause of comparative untrustworthiness, if not on the part of the person in question, at any rate on the part of his evidence.

One cause of diminution of probative force—one cause of inferiority in point of probative force, as between evidence and evidence, remains to be noted.

As yet, for simplicity’s sake, the matter of fact deposed to, as above, has been tacitly supposed to be the very matter of fact in question, whatever it be.

But, independently of human testimony, between matters of fact themselves, such is found to be the connexion, that by the existence, no matter how established, of one or two connected facts, a persuasion, more or less strong, is produced, of the existence of the others:—the fact, of the existence of which the persuasion is thus produced, call it the principal fact; the fact by which such persuasion is produced, call it the evidentiary fact.

Considered as tending to produce a persuasion Edition: current; Page: [16] of the existence of any fact viewed in the character of a principal fact as thus explained, any other fact, thus operating in the character of an evidentiary fact, may accordingly be termed, as in common parlance, as well as technical language it actually is termed, an article of circumstantial evidence: and in contradistinction to such circumstantial evidence, whatsoever be the particular matter of fact in question, any article of evidence, considered as applying to it immediately, and not through the medium of any other matter of fact, is technically as well as familiarly, as above,* termed an article of direct evidence.

Of the measure of probative force in evidence, the description will be found to be different in the case of direct, which, in respect of the source from whence it issues, is always personal evidence, as compared with circumstantial, which, although to a certain extent, and in particular in the instance of deportment, it may, in respect of its source, be considered as personal—will, moreover, to a considerable extent, in respect of its having its source in the state of things as contradistinguished from persons, be found to belong to the category of real evidence.

In the case of direct personal evidence, supposing, on the part of the matter of fact affirmed, nothing of improbability, either on a physical or a psychological score, nor any weakness in the force of the persuasion expressed in and by his testimony, its probative force has for its measure the trustworthiness of the affirmant: in the case of circumstantial evidence, the existence of the evidentiary fact being, either by the perception obtained of it by the perceptive faculty of the judge himself, or by unquestioned extraneous testimony, placed effectually out of dispute, probative force may be said to depend altogether upon the closeness of the connexion,† between the principal matter of fact, and the matter of fact which is considered as evidentiary of it.

As in the case of direct evidence, its probative force will, as already intimated, be found to be rendered less and less, by and in proportion to the number of media through which it has passed, or is supposed to have passed, so will it be seen to be in the case of circumstantial evidence.

Between each pair of facts, the closeness of connexion being supposed in each instance the same, then, if so it be, that matter of fact A is not evidentiary of matter of fact C, but through the medium of matter of fact B (A being evidentiary of B, and B of C,) it follows, that the probative force with which A is evidentiary of C, will be but half as great as that with which A is evidentiary of B, or that with which B is evidentiary of C.

Of the above-mentioned securities for trustworthiness, a summary view will presently be given, as well as of what appears to be the mode of applying them with most advantage to this their purpose. But previously, it has been found necessary to speak of the mode of giving expression to the different degrees of which probative force is susceptible, and thereafter to present a summary view of the objects already mentioned under the denomination of causes of trustworthiness and untrustworthiness.

§ 1.: Connexion between Trustworthiness and Belief.

To form any substantially grounded estimate of the probative force of testimonial evidence, it will be necessary to take a view, on the one hand, of the causes of correctness and completeness—in other words, of trustworthiness;* on the other hand, of deceptious incorrectness Edition: current; Page: [18] and incompleteness—in other words, of untrustworthiness, in human discourse. Of these causes, the clearer our conception is, the more distinct and correct will be our estimate of that force: and to these causes, and to the conception, more or less accurate, which in each instance it happens to us to form in relation to them,—to these sources it is, that we must look for the only intelligible and practically useful account, that can be given of the foundation of affirmative and disaffirmative persuasion,—of belief and unbelief.

Of trustworthiness, and of untrustworthiness, the causes are to be looked for, partly in the state of the mental faculties, intellectual and moral, of the individual, partly in the state of the external circumstances, to the operation of which it happens to those faculties to stand exposed.

§ 2.: Intellectual Causes.

Of the intellectual faculties, in so far as they are in a state adapted to the purpose of testimonial discourse, i. e. to the giving relative correctness and completeness to the statement in the delivery of which they have borne a part, nothing in particular will be to be said. But by any of those infirmities, to which they are respectively subject, any statement which they have borne a part in the delivery of, is liable to be rendered in a greater or less degree deceptiously incorrect or incomplete: hence the necessity of observing the lines of separation by which they stand distinguished from each other, and, in the character of causes of misreport, noting the weaknesses of which they are respectively susceptible.

Simple perception, attention, judgment, memory,—by these terms may be brought to view the sources, as by expression the vehicle, of discourse at large,—and thence of testimonial discourse. As it is to these that we are to look for the intellectual causes of correctness and completeness in testimony, in so far as it is in a correct and complete state; so likewise of its incorrectness or incompleteness, in so far as it is in an incorrect or incomplete state. As to the imagination, contributing nothing to correctness, or, in so far as it is distinet from memory, to completeness, so it is that upon testimony it can scarcely operate in any other character, than that of a cause of incorrectness or incompleteness, more particularly and obviously of incorrectness. Acting under the orders of the will, and directing its exertions to a particular end, it becomes invention: taking for its end deception, and that deception being pernicious, the will its director, operating under the impulse or attraction of sinister interest—(that is, as will be seen, of any interest or motive acting in that sinister direction)—it becomes mendacity.

Perception, by its faintness, or indistinctness,—attention, by its absence, or its weakness,—judgment, by its errors, of which the faintness of the perception, and the absence or faintness of the attention, are among the causes,—memory by its absence, its faintness, or its indistinctness,—thus it is, that these faculties, these fictitious psychological entities, are liable to become each of them occasionally a cause of the undesirable effect: and, as it is by expression alone that the state of the narrator’s mind is communicated to, and impressed upon the intellectual faculties of the judge, there is scarcely a modification, or instance, of incorrectness or incompleteness, capable of being produced by an infirmity in any of those sources, that is not capable of being produced by an infirmity in this vehicle.

To develope, and exemplify the modes and causes of the mischief as above indicated, and at the same time to endeavour to bring to view such feeble, and unhappily but too precarious remedies, as the nature of the case admits of, forms in the body of the work the task of a chapter allotted to that purpose.

§ 3.: Moral Causes in general—viz. the several Sanctions.

As to moral causes,—not only incorrectness and incompleteness in testimony, but (what seems almost to have escaped notice) correctness and completeness, owe their existence to good and evil—to pleasure and pain—in experience or in prospect, existing in the mind in the shape of interests, and, in so far Edition: current; Page: [19] as yet but in prospect, operating in the shape of hope and fear, in the character of motives.*

Veracity, therefore, not less than mendacity, is the result of interest: and, in so far as depends upon the will, it depends, in each instance, upon the effect of the conflict between two opposite groupes of contending interests, which of them shall be the result.

Collectively taken and ranged into groups, and deduced each group from a particular source, and thereupon considered in the character of causes of human action in general, and of discourse, including testimonial discourse in particular, these modifications of pleasure and pain, experienced or expected, have elsewhere been brought to view under the name of sanctions.†

So far as they are considered as the result of causes purely physical, the action of other rational agents from without not having any share in the production of them, they are referable to a sanction which may be termed the physical, the purely physical, sanction:—in so far as they are expected at the hands of rational agents, they have been referred to one or other of three sanctions:—1. The popular or moral sanction; 2. The political, including the legal sanction; 3. The religious or supernatural sanction. To the popular or moral sanction it is that they may be referred, in so far as the pleasures or pains in question are considered as about to result, or liable eventually to result, from the good or ill offices, and thence from the good or ill will, thence again from the good or ill opinion, of other human beings: viz. in virtue of whatsoever portion of liberty to this effect may have been left to them, by the state and condition of the law.

To the legal, or (to take it in its full extent) the political sanction, they may be referred, in so far as they are considered as about to result, or liable to result, from the exercise of the powers of government, whether in the track of the legislative, the judicial, or the administrative department. To the religious or supernatural they may be referred, in so far as they are considered as about or liable to result from the exercise of the powers of government, by the almighty hand of a supernatural and invisible being, in the present life, or in a life to come.

§ 4.: The Physical Sanction.

I. In general, it costs less labour to report a matter of fact, with its circumstances, as presented by the memory, than, at a moment’s warning, to invent, in a train of a given length, circumstances, which, without being true, shall, to the very end, be taken for such. So far as this observation agrees with the nature of the case, so far may the physical sanction be said to operate in restraint of deceptious incorrectness and incompleteness.

At the same time, if it be in strict form and high degree that correctness and completeness are required, neither is the labour of the memory altogether free from uneasiness: a labour which is the greater, the more distant in point of time the matters of fact were, and at the time of perception the less impressive, especially if, of the first impression, the recollection have not, in the meantime, been refreshed by intervening interests: and here again we see the physical sanction operating—operating, but now in the character of a cause—not of correctness and completeness, but of incorrectness and incompleteness.

In the uncertainty on which side this purely physical sanction will operate with greatest force, and in the comparative weakness with which it operates with a preponderant force in favour of correctness and completeness, may be seen the demand which has place for the operation of the several other sanctions that have just been mentioned—sanctions to which, in contradistinction to it, may be given the common denomination of rationally-operating ones, inasmuch as in their respective operations the reason—the judicial faculty—cannot but have been made to bear a part.

§ 5.: Popular or Moral Sanction.

II. In the second place, comes under review—the popular or moral sanction.

As to the direction in which, on the field of evidence, it operates, the restraint which, generally speaking, it applies to deceptious incorrectness and incompleteness is obvious, and furnishes the matter of the general rule.

Unhappily, out of this rule, ere it can in every part have been reduced within the limits of exact truth, exceptions, and to no inconsiderable an extent, must be cut out of it. Follows a brief indication of the groups in which they will be found arranged:—

1. Cases where, by contending interests or prejudices, a sort of schism, more or less permanent, is produced, in the aggregate force of this sanction, form one class of these exceptions.

2. Another class is composed of those in which, by the misapplied influence of the political sanction,—i. e. of the constituted authorities, at whose disposal that influence is placed—instead of being applied to the restriction, the force, not only of the political, but thereby even of the popular sanction, is applied to the encouragement and increase of deceptious incorrectness and incompleteness, and that, as there will be occasion moreover to mention under the next head, in its most vicious and pernicious form—mendacity.‡

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On one and the same occasion, and even in the instance of the same individual, in case of delinquency on his part, the force of the popular sauction may be seen acting in opposite directions at once,—urging him on in or towards the path of mendacity on the one hand—pulling him back from it on the other. In this conflict, which, then, will prevail?—the mendacity-promoting, or the mendacity-restraining force? The act in question being an immoral act, and by the popular or moral sanction reprobated as such, brings shame upon him who is understood to be guilty of it: and the individual in question being by the supposition actually guilty of it, if, on being interrogated, he speak the truth, and thereby confesses himself guilty of it, he thereby subjects himself, with more or less probability, to punishment, and at the same time with certainty to shame. If, on the other hand, his answers to the interrogatories are in any respect that which, to afford him any chance of safety, they must be, materially false, no sooner does detection follow (nor can he ever see that instant, in the next to which it may not follow) than his lot becomes, in this case also, the same. To note the existence of this conflict, is all that belongs to the present purpose: as to the result of it, obviously enough it will on each individual occasion depend on the preponderance, as between the aggregate force of the motives operating on the one side, and the aggregate force of the motives operating on the other side.

Thus much as to direction. As to force, to the obvious and but too indisputable insufficiency of this sanction, in cases where mendacity-promoting interests are in a condition to act with those degrees of force which are but too commonly exemplified, is referable that demand, of which the existence is so universally acknowledged, for the more steady as well as impressive force of the political sanction: especially in that regulated and conspicuous form, in which it is made to operate in the band of the judge.

§ 6.: The Political, including the Legal Sanction.

III. In the third place, comes the political or legal sanction.

Follows a list of the topics which, in relation to this sanction, and its applicability and application in restraint of deceptious incorrectness and incompleteness, will come under review:—

1. Cases or points, in relation to which, in restraint of deceptious incorrectness and incompleteness, in judicially delivered testimony, this sanction is in its nature capable of being made to operate with a degree of efficiency superior to that of the popular or moral sanction.

2. Cases or points, in relation to which, in restraint of mendacity, the force of the popular sanction being divided against itself, as above, the force of the legal sanction is wont to be made to operate with a degree of uniformity greater than that which the force of the popular sanction operates with, in these same cases.

3. Occasions on which, it being radically inapplicable to this purpose, the legal finds itself obliged to resign its task to the force of the moral and religious sanctions.*

4. Occasions on which, under and by virtue of English law, its operation is rendered habitually adverse to truth, habitually subservient to mendacity, and upon an all-comprehensive scale, actually, and to a great extent purposely, productive of that most pernicious and all-infecting vice.

§ 7.: The Religious Sanction.

IV. In the fourth and last place, comes the religious sanction.

Under every religion, what is but natural is—that to every important purpose, whether it be from legal operation, or from any other Edition: current; Page: [21] source, that the importance of the purpose is derived, the religious sanction should, with its whole force, be made to operate in restraint of mendacity:—in restraint of deceptious incorrectness and incompleteness. The influence of a master on the minds of his disciples—the power of a leader over the conduct of his followers—depends upon the correctness and completeness of the judgment he is enabled to form, as to what their conduct on every occasion material to his purpose eventually will be: and thence, upon the correctness and completeness of such information as be can obtain, as to what their conduct and mode of being is and has been:—their mode of being, in every imaginable point, not excepting their most secret thoughts, intentions, affections, and opinions.

In the religion of Moses, and in the religion of Jesus, the energy, as well as steadiness, with which the force of the religious sanction is applied to this purpose, are observable in a pre-eminent and conspicuous degree.*

§ 1.: Qualities desirable in Evidence.

1. Qualities desirable in an article of evidence:—these, for distinction sake, may be termed the internal securities for trustworthiness in evidence.

2. Instruments—operations—states of things—arrangements, legislative and judicial, which have presented themselves as conducive to the investing of the subject in question with these desirable qualities:—these may be termed the external securities for trustworthiness in evidence.

Correctness and completeness—by these two already so often mentioned appellatives, are presented two qualities, obviously desirable, both of them, in every article of evidence—each of them for its own sake, and without need of having its utility enhanced by subserviency to any other quality;—unless, for the expression of that desirable quality, to which they are both subservient, some such term as undeceptiousness were provided and employed. Correctness and completeness—call them accordingly qualities of the first order—primary qualities—qualities intrinsically—on an intrinsic account—on their own account—desirable.

Of these important and desirable qualities, a perfectly correct conception will scarcely, however, be formed, unless their respective opposites, incorrectness and incompleteness, be taken into account, and their import limited by an adjunct bearing reference to these opposities.

This adjunct is deceptious.

In a statement or narration, delivered by any person, on any occasion, in relation to any matter of fact, particulars may have had place in any number, which, though altogether true in themselves, may be equally immaterial in relation to the question, whatever it be, which happens to be on the carpet.—So many as there are of these immaterial or irrelevant particulars, so many are there, in respect of which it may happen, that neither incompleteness, i. e. partial omission, nor incorrectness, i. e. misrepresentation, shall, with reference to the matter in question, be productive of any deceptious effects.

By correctness, therefore, must, on this occasion, be understood—not absolute, but relative correctness;—by completeness, not absolute, but relative completeness:—in other words, by correctness, that and that alone, which has for its opposite, deceptious incorrectness—by completeness, that, and that alone, which has for its opposite, deceptious incompleteness;—incompleteness, in that case, and in that case alone, where, in relation to the matter of fact in question, deception is amongst the effects which it has a tendency to produce.

Taking the above for the qualities desirable on their own account, the following are the secondary qualities, which present themselves as desirable, on account of those same primary qualities, viz. in the character of means subservient to the purpose of securing to the article of evidence in question, the possession of those same primary qualities.

To save the critic ear from excruciation, to the abstract substantive let us substitute the concrete adjective. By one or other of the following epithets may be expressed, it is supposed, all the qualities which, in the character of secondary qualities, can contribute to invest an article of evidence with either of these primary ones:—1. Veracious; 2. Particularized; 3. Distinct; 4. Interrogated, i. e. extracted, and thence completed, and if need be corrected, and explained, by interrogation; 5. Permanent, i. e. consigned to, and expressed by those permanent characters, of which written language affords the most convenient as well as familiar example; 6. Unpremeditated, in so far as a design of falsehood might receive assistance from premeditation; 7. Recollected, in so far as recollectedness may be necessary to truth, i. e. to Edition: current; Page: [22] relative correctness and completeness; 8. Not assisted by undue suggestion, i. e. by suggestion by which falsehood would be more likely to be served than truth; 9. Assisted by due suggestion, i. e. by suggestion by which truth would be more likely to be served than falsehood.

§ 2.: Instruments of Security, for securing to Evidence those Qualities.

The following are the heads, under which every instrument, capable of serving in that character with advantage, will, it is supposed, be found reducible:—

1. Punishment.

2. Shame.

3. Interrogation (including counter-interrogation.)

4. Counter-evidence—admission given to it.

5. Writing—use made of it for giving permanence, &c. to evidence.

6. Publicity—to most purposes, and on most occasions.

7. Privacy—to some purposes, and on some occasions.

Under each of these heads, follow a few words of explanation:—

§ 3.: Punishment.

Of the force of the political sanction, considered as applicable in the character of a source of security against deceptious incorrectness and incompleteness in evidence, mention has been made above. Punishment is, to every eye, the most extensively applicable, and in general the most efficient, shape, in which, to this as well as other purposes, that force can be applied.

Quantity—quality—in this place, under neither of these predicaments, need anything be said: on both of them, though without any special reference to evidence, consideration has already been bestowed in other places.* Remains as the only topic, for consideration of which any special demand presents itself in this place, that of the extent proper to be given to the use of this instrument, in its application to the purpose here in view.

Mendacity being but an instrument in the hand of delinquency—an instrument applicable to the purpose of giving birth, through delinquency, to mischief in all its shapes,—co-extensive surely with the mischief producible by mendacity ought to be the application of punishment, in so far as punishment is, with preponderant advantage, applicable to the prevention of it.

In the track of judicial procedure in particular, co-extensive with the application and applicability of that instrument of mischief, ought to be the application of this remedy.

§ 4.: Judge and Co.—False Evidence rendered by them dispunishable, where profitable to themselves.—Mendacity Licence.

Thus much as to propriety:—for practice, learned ingenuity has discovered and pursued a more convenient course.

Under the English, not to speak of other systems of technical procedure, by means of the command, so easily, when indirectly, exercised by power over language, an expedient was found for rendering mendacity punishable or unpunishable at pleasure. In the person of a party litigant, or a witness, when it was to be rendered punishable, the allegation or statement was called evidence; and to mark it as such, a particular ceremony—the ceremony of an oath—was made to accompany the delivery of it. When it was to be rendered dispunishable, it was not to be called evidence:—it was to be called pleading—pleadings—anything but evidence;—and the ceremony was to be carefully kept from touching it.

At this time of day, few tasks would naturally be more difficult, than that of satisfying the English lawyer, that pleadings not upon oath—that anything, in a word, which in legal use has been carefully and customarily distinguished from evidence, can with propriety be termed evidence. But though, thanks to his ingenuity, so it is that pleadings,—all pleadings at least,—are not evidence in name, yet so it is, that everything that goes by the name of pleading is evidence in effect. All testimonial evidence is statement—narration—assertion:—everything that goes by the name of pleadings is so too. Of evidence, the use and the sole use, is to command decision:—by pleadings, decision is commanded, and in cases to a vast extent and in continual recurrence, and with a degree of certainty altogether denied to evidence.

To the purpose of imposing on the adverse party the obligation of going on with the suit, the contents of every instrument included under the name of pleadings, how replete soever with manifest falsehood, are taken for true, and as such, without the name, have the effect of evidence. The effect (it may be said) is but provisional: but definitively, to the purpose of giving to the suit a termination favourable to the party by whom the instrument is exhibited,—to the purpose of producing a decision—a decision as favourable to him as could be produced by anything to which the name of evidence has been left,—to the purpose of producing the selfsame decision, which, by evidence, supposing it believed, would be produced,—it has the effect—not simply of evidence, but of conclusive evidence:—the party who fails to meet the instrument in question, by that instrument which at the next step, on the other side, Edition: current; Page: [23] ought, in the appointed course to follow it, loses his cause.

Of this eventually conclusive evidence, the power, it may be said, cannot be great: since, by so proper and simple an operation as that of exhibiting the corresponding counter-instrument, the party to whose prejudice the conclusion would operate gets rid of it. Simple enough,—Yes: but instances are but too abundant, in which the operation, simple as it is, is impracticable—foreknown to be impracticable. To the performance of the operation, money is necessary: and on that side, money being by the other side known not to be forthcoming, what is thereby known is, that the exhibition of the counter-instrument is not practicable. It is accordingly because foreknown to be impracticable, that the operation is thus called for: for which purpose, falsehood, the most barefaced falsehood, is admitted to serve, admitted by those judges to whom its quality is no secret:—admitted with exactly the same composure as if it were known to be the strictest truth.

Thus it is, that, under favour of the mendacity thus established, every man who, being to a degree opulent, has, or desires to take, for his adversary, a man to a certain degree less opulent, has it in his power, whether on the plaintiff’s side, or on the defendant’s side, to give to his judicially delivered allegations, by what name soever denominated—pleadings or any other—the effect of evidence: the effect not only of evidence, but of conclusive evidence.

And thus it is, that by the forbearance—the astute forbearance—to give, to the security afforded by punishment, the extent necessary to justice, mendacity is generated and cherished—injustice through misdecision produced:—the evils opposite to the direct ends of justice, produced, by means of the evils opposite to the collateral ends of justice.

Among lawyers, and more especially among English lawyers, so commodiously, and thence so universally, is custom accepted as an adequate substitute for reason—so unprecedented is it for a man to trouble himself with any such thought, as in regard to any of the established torments, out of which his comforts are extracted, what in point of utility and justice may have been the ground for the establishing of them,—or so much as, whether they have, or ever had, any such ground at all,—that at the first mention, a question to any such effect will be apt to present itself to them, as no less novel, than idle and absurd. But concerning judgment by default, and everything that is equivalent to it*—be it in a House of Commons,—be it in a House of Lords,—or be it in any other place,—should any such misfortune happen to him, as to feel himself under a necessity of finding something in the character of a reason to give, in answer to the question—why it is that judgment by default is made to follow upon default,—his reason would be this or nothing, viz. that in this case, on the defaulting side, want of merits is inferred; and not only so, but that it is from the allegations contained in the instrument last delivered on the other side—it is from that, and nothing else, that the inference is deduced.

At the same time, that which, be he who he may, is well known to him—or at least, but for his own wilful default, would be known to him—that which he has always in his hands the means of knowing—means beyond comparison more ready than any which are possessed by the vast multitude, who, at the instance of his tongue, and by the power of his hand, are so incessantly and remorselessly punished—punished for not knowing that which it has so diligently and effectually been rendered impossible they should know, is—that, in the case of an average individual, the chances against the truth of the conclusion, thus built and acted upon, are many to one.

To be assured of this, all that a man has to do, is—on the one side of the account, to look at the average, or even at the minimum amount of the costs on both sides, which, on each side, a party subjects himself to the eventual burthen of,—or though it were at those on one side only:—on the other side of the account, at the annual amount of what an average individual of the labouring class (beyond all comparison the most numerous class)—or even though it were an average individual of the aggregate of all classes, the very highest not excluded—has for the whole of his possible expenditure. This comparison made, then it is that any man may see, whether, by forbearance to go on with an existing suit, at any stage, on either side, whether on the plaintiff’s side, by forbearing to commence a suit,—any preponderant probability may be afforded, of what is called a want of merits.

Of two all-pervading masses of instances, in which, throughout the whole system of technical judicature, conclusions having been built, are continually acted upon by men, to whom, one and all, the premises on which those conclusions are built, and thence the conclusions themselves, are, or without their own wilful default, would be known to be, false,—this is the first, for the mention of Edition: current; Page: [24] which the occasion has here happened to present itself.

Under the head of non-observance of formalities, a failure, considered as being, or at least, dealt with as if it were evidence—evidence conclusively probative of unfairness on the part of a contract, or spuriousness on the part of an instrument of contract—under this other head, mention of another instance will come to be made, in the chapter on Pre-appointed Evidence.

Nullification—to which belong conjugates and quasi conjugates, much too abundant to be here collected,—null, void, bad, quash, set aside, and so forth—nullification is the name given to the factitious engine of iniquity, by which the sort of effect here spoken of is, in both instances, produced. Instruments and operations of judicial procedure—contracts and instruments of contract—whatsoever has been the subject to which it has been applied, lawyer’s profit is what the machinery will be found to have had exclusively for its object—lawyer-craft for its inventor and constructor—iniquity and misery for its effects.

By encouragement as well as impunity thus given to mendacity, if it be on the plaintiff’s side, the number of suits is made to receive that addition, which is brought to it by those in which the dishonesty—the mala fides, as the phrase is—is on the plaintiff’s side: by the like boon bestowed on the defendant’s side, the like addition is made to the number of those to which continuance is given by dishonesty on the defendant’s side.

See more to this purpose under the head of Oath.

On all these occasions, partner and accomplice in the fraud on one side of the cause, in the oppression on the other, the judge, as well as his collaborators, extract emolument out of the mendacity thus produced under the name of pleadings,—the mendacious evidence thus suborned is all in writing,—and the mass of writing is a mine of fees.*

§ 5.: Shame.

By punishment, one part of the force of the political sanction is employed; by shame, viz. that which a man is exposed to by detection, or even by suspicion, the corresponding part of the force of the popular or moral sanction is employed.

In respect of the extent to which they are respectively applicable, compared with punishment, shame has the advantage. For the application of it, much less evidence being necessary, mendacity thus experiences restraint in cases in which it would otherwise experience none.† Whether it shall in a greater degree be exposed to shame than punishment, depends, however, in a more direct way upon the individual circumstances, than upon the species of the case.

Taken by itself, and without punishment, or legal power in any other shape, for its support, the insufficiency of shame, to this as well as other purposes, is, however, but too manifest.

In cases where the profit of delinquency rises to a certain height, the inadequacy of shame needs no words to prove it. Though in the case of shame less evidence be necessary than in the case of punishment, yet as neither in the case of shame, any more than in the case of punishment, can the principle of restraint operate, but in proportion to the apparent probability of the transpiration of evidence,—thus it is, that in this, as in other instances, on the will of those at whose disposal punishment—legal punishment—is placed, it depends, in a great degree, to keep delinquency out of the reach of shame, viz. by refusing, or stifling, that legal inquiry without which the evidence cannot be made to transpire.

Applying, with that exception, to all sorts of cases, shame, when alone, does not, however, apply to all sorts of persons. Of the few, a great proportion are too high to be reached by it: of the many, a great proportion are too low.

By a situation by which, in this case, a man is placed above punishment, he is thus but too effectually, as we have just been seeing, placed, moreover, above shame. Under the name of perjury, mendacity is covered, not only with punishment, but with infamy: under the names of fiction and practice, it is covered, not only with reward, but with honour. Shame touches not that mendacity, the seat of which is either at the bar or on the bench.

§ 6.: Interrogation—including Counter-Interrogation.

In this may be seen the operation which, under some circumstances, is necessary even to the existence of the evidence, and in all cases, eventually, if not absolutely necessary to its security against deceptious incorrectness, Edition: current; Page: [25] as well as against deceptious incompleteness.

Note, that a mass of testimony, spontaneously delivered, being supposed incomplete, thereupon, if, to interrogation asking whether it be complete, the answer be in the affirmative, incompleteness becomes incorrectness.

On whom—by whom—shall the operation be performable?

1. On whom?—that is, on what person?—the only proper answer seems to be, on every person, from whom, in the situation of examinee, information for any purpose of justice may with reason be expected;—let this situation, as more particularly described, be on the plaintiff’s side of the cause, on the defendant’s side of the cause, or in the witness’s box. Applied to the case of a malâ fide examinee, the utility, not to say the necessity, of the operation is manifest: applied to the case of a bonâ fide examinee, its utility will be found to stand on ground no less clear; and in practice, it has been less narrowed.

By what hand shall this instrument of elucidation be applicable? Prejudice apart—prejudice derived from primeval barbarism and unreflecting practice—the answer seems not difficult:—Subject only to the necessarily controuling hand of the judge, from every hand from which, in this shape, any useful suggestion can with reason be expected. Not to speak of the judge, whether principal and permanent,* or assistant and occasional,†—from the hand of a party by whom the evidence was called for—from the hand of another party on the same side of the cause—from the hand of the party on the opposite side, or if on that side there be divers parties, from the hand of each one of those parties—from the hand of a witness or co-witness called on the opposite side—from the professional assistants or substitutes of the parties in all these several situations—why not even from an amicus curiæ?

Interrogation undequaque is the adjunct by which interrogation may be expressed, when the light which it is so well suited to afford is let in from all quarters, from which, to the purpose here in question, light can reasonably be expected: and, due allowance made for special reasons to the contrary in special cases, interrogation undequaque may, it should seem, be stated as the mode prescribed by reason and justice.

Meantime, by whomsoever applied, cases are not altogether wanting, in which, whether physically or no, this security, important as it is, will be seen to be prudentially inapplicable: in the shape of delay, vexation, and expense, preponderant inconvenience presents a class of occasional exceptions, the propriety of which is obvious.

Meantime, as to what concerns vexation and expense, a cause of this nature may exist at one time, cease to exist at another: and the cause ceasing, so may the effect.

Cross-examination is a mode of interrogation familiar to every English ear: but under this same name, operations importantly different in nature and efficacy are confounded and disguised.

In all cases, it has for its opposite examination in chief. Interrogation performed upon an extraneous witness, at the instance of that one of the parties by whom his appearance in the character of a witness was called for—or, if his appearance was called for on both sides, at the instance of him by whom his actual deposition was first called for,—interrogation thus performed, being interrogation in chief, cross-examination is interrogation at the instance of a party whose station is on the opposite side of the cause. Cross-examination being thus described, it will immediately be seen to be but an incompletely extensive, and upon reflection, it is supposed, an inadequate application of the principle of undequaque interrogation, as above explained. In English practice, English-bred procedure has its cross-examination;—Rome-bred, to which belongs equity procedure, a cross-examination of its own, and that a very different one. Hence ambiguity and confusion, the clearing up of which must for the moment wait—wait for matter which, in the next chapter, will present itself under its proper head.

§ 7.: Counter-Evidence—Admission given to it.

In relation to any supposed matter of fact, evidence being delivered on one side of a cause, counter-evidence is any evidence delivered in relation to the same supposed matter of fact on the other side: if more parties than two with conflicting interests, on any other side.

Besides the influence exercised by counter-evidence when delivered, the expectation of it will naturally operate with more or less force, through the medium of fear of punishment and shame, as a security against temerarious as well as mendacious statement; thence against deceptions incorrectness and incompleteness on the other side.

Note, that as often as, to any article of evidence, the name and effect of conclusive—as in the phrase conclusive evidence—is given, an exclusion is thereby put, in the lump, upon all counter-evidence not already received, and upon the effect of all counter-evidence received or not received. With what propriety, will be seen in an ensuing chapter.

§ 8.: Writing.

In its application to this purpose as to other purposes, writing, like most other efficient and Edition: current; Page: [26] powerful instruments, is capable of being made productive of the most beneficial, and, at the same time, of the most pernicious effect.

To maximize use—to minimize abuse,—such here, as elsewhere, ought to be the object of the legislator.

In what way, from this instrument, evidence may be made, in the most effectual manner, to receive not only permanence, but distinctness and recollectedness, will be seen more particularly as we advance. Moreover where, by distance, the collection of evidence in the oral mode is rendered either physically or prudentially impracticable, to this instrument it is that it must be indebted, not only for perfection but for existence.

As to the evil effects of which it is liable to be made productive, one comprehensive lot of them has been already brought to view. Of the ways in which English judges have contrived to derive emolument and power from mendacity, a glimpse has just been given: in all these cases, the mendacity has had writing, not only for its vehicle, but for its actual and probably for its necessary and indispensable instrument. Vivâ voce lies could not be taxed like written ones.

In this way, the evil, of which the abuse is most directly and certainly productive, is that which stands correspondent and opposite to the collateral ends of justice, viz. the evil composed of delay, vexation, and expense.

But on either side of the cause, by stripping the party of the power, or even of the will, to maintain his right, this same instrument, through the medium of the collateral ends of justice, is continually felt striking and with fatal effects, against the direct ends.

Of writing is composed—if not the whole, a part at least of the ticket, which every man has to purchase, who puts into, or is forced into, the lottery of the law. On either side, he to whom the purchase is physically—is or is thought to be prudentially—impracticable, loses his right, and the loss has misdecision for its immediate cause.

In the following instances, the evil is that which stands immediately correspondent and opposite to the direct ends of justice:—

1. It will be seen how, by keeping the deponent out of the reach of those means of elucidation—prompt and immediate elucidation—which apply to the case of orally-delivered testimony, writing is capable of being made an instrument of indistinctness in testimony, producing that frequently deceptious effect to any amount.

2. By the time which the use of it necessarily demands, it affords room for mendacity-serving invention to do its work.

3. Keeping the deponent out of the reach of all mendacity-restraining eyes, it affords room and opportunity for the receipt of mendacity-serving suggestions from all quarters.

True it is that, in some degree, these evils receive a compensation from the room which, at the same time, is left for reflection to other persons, who, lest the mendacity, if credited, should be productive of its intended fruit, viz. misdecision, stand engaged, by interest or by duty, to apply their exertions to the exposure of it.

But, of the compensation, it will be seen that it is scarcely adequate; and, be that as it may, that it may be had without the inconvenience.

For a brief indication of the means whereby the maximization of the use may be conjoined with the minimization of the abuse, the following hints, loose as they are, must yet, for the present, serve:—

1. Writing having, for its necessary accompaniments, delay, vexation, and expense,—never employ it but for a determinate purpose.

2. Never employ it, but in so far as it promises to be preventive of preponderant evil—viz. in the shape of misdecision;—viz. either on the occasion of the suit or cause in hand, or on the occasion of future contingent suits or causes: or in the way of recordation to a statistic purpose, for legislative use.

3. For distinctness, let it be cast into articles or paragraphs, short and numbered.

4. For prevention of mendacity-promoting invention and suggestion, first receive the testimony in the orally-delivered mode; then, for recollectedness, receive it in the scriptitious mode.

5. To give permanence to orally-delivered evidence, by minutation and recordation convert it into scriptitious.

§ 9.: Publicity, to most purposes, and on most occasions.

Publicity and privacy are antagonising qualities: from privacy, in so far as it obtains, publicity receives its limits: considered as the effect of design, privacy takes the name of secresy.

As to publicity,—conceivable publicity has no other bounds than that by which the total number of human beings is circumscribed.

In regard to judicial instruments and operations in general, and in regard to evidence and the delivery of evidence in particular, both publicity and privacy, over and above those uses by which they are numbered among the securities against deceptious incorrectness and incompleteness in evidence, have other uses, which are referable to the ends of justice:—but those other uses, some of which will presently be brought to view, have no direct bearing on the present purpose.*

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§ 10.: Privacy, to some purposes, and on some occasions.

Of the circumstances by which, in regard to legal evidence, a demand for privacy—understand always relative and provisional privacy—may on one account or other be created, a general intimation may be conveyed by a few words.

I. Purposes bearing relation to evidence, and subservient to the direct ends of judicature:—

1. Prevention of mendacity-serving information:—the architectural arrangements of, as well as the course of proceeding in, the theatre of justice, so ordered, that the testimony, delivering and just delivered, by one witness, may be kept secret from another.

2. Prevention of those reticences, and consequent defalcations from the completeness of a mass of testimony, which, in some cases, are apt to be produced by extreme timidity, on the part of a deponent whose trust-worthiness stands clear of suspicion; especially prevetion Edition: current; Page: [28] of defalcation from the completeness of disclosure, where, in resentment of disclosure, special injury is apprehended from the unjust resentment of this or that particular individual.

II. Purposes bearing relation to evidence, and subservient to the collateral ends of judicature:—

3. Prevention of disclosures injurious to the pecuniary reputation of individuals, especially of suitors.

4. Prevention of disclosures injurious to the moral reputation of individuals, and the peace of families.

III. Purposes regarding the ends of judicature, but not through the particular medium of evidence:—

1. Securing the peace of the judicatory, and the person of the judge, against casual violation. Power to the judge, on any particular occasion, but for that time only, to apply, to the number of the spectators, for special cause assigned, any such limits as shall be deemed necessary to this purpose.

2. Prevention of any disclosures that threaten to be subservient to non-forthcomingness on the part of persons or things, on whose part forthcomingness is necessary to justice, whether to the purpose of justiciability, or to the purpose of evidence.*

Publicity being among the natural instruments of justice,—secresy, unless under particular limitation, one of the most mischievously efficient instruments of despotism,—hence an obvious memento, on no occasion to give to privacy any extent beyond what the particular nature of the occasion absolutely requires.†

Attached to every great theatre of justice should be a little theatre. Leaving the auditory in the great theatre undisturbed—(not driven out like cattle, as in a division in the House of Commons)—as often as any special demand for privacy happens to present itself, (for example, where, for relief to an unoffending party or witness from an impending burthen, pecuniary circumstances are to be inquired into,) let the judge, taking with him such persons, the propriety of whose presence is indicated by a compromise between the antagonizing principles, shift the scene for the occasion into the little theatre.

§ 1.: Ceremony of an Oath—a False Security for Trustworthiness.

Securities against mendacity brought to view—securities in such numbers and variety—and no mention yet of oaths—no mention of that sacred instrument, which, in the general estimation of mankind, occupies the highest place on the list of these securities, and has so frequently been employed, not only in preference to, but to the exclusion of, all those others.

That by the omission here spoken of, an emotion of surprise should be produced, cannot itself be matter of much surprise. In the character of an instrument actually and generally thus employed, the title of this ceremony to a place upon the list of these securities, admits not of dispute. But, in the character of an instrument fit to be so employed, the more closely it is looked into, the more plainly, it is supposed, will its unfitness to be so employed be recognised.

Exhibited in detail, and with a degree of particularity in any degree corresponding to the importance of the subject, the consideration by which the condemnation here in question was produced, would have given too long an interruption to the thread of the inquiry, and run into a degree of extension altogether disproportionate. Not requiring to be taken into consideration on the occasion, or for the purpose, of anything that follows, the matter belonging to that head is here omitted.‡

Meantime, of the considerations by which so important a conclusion was produced, some intimation, how slight and general soever, may in this place be not altogether without its use.

The following are the propositions by which they may stand expressed. For the present, they may be considered as so many positions set down for proof:—

1. That, in the very essence of this instrument, a rash and grossly incongruous supposition is involved; viz. that, for the purpose of eventual punishment, and thence for the purpose of dominion, applicable to any end in view at pleasure, the power of the Almighty lies at all times at the disposal—at the absolute disposal, of any the most worthless of human kind.

2. That, by the religion of Jesus, in so far as the precepts ascribed to Jesus are to be Edition: current; Page: [29] admitted as containing the expression of it, the application of any such instrument to any such purpose as the one here in question stands prohibited; prohibited in the plainest and most pointed terms:* and that for any exception which a man may feel himself disposed to cut out of that prohibition, imagination is the only warrant that can be found.

3. That, by the articles expressive of the particular tenets of that modification of the religion of Jesus which is established in England, the use of it, though declared allowable, is not on any occasion enjoined.†

4. That, to any such good purpose as that in question, its efficiency will, if attentively examined, be found to amount to nothing: inasmuch as, in every case in which this supposed security presents itself to view as if operating with effect, other instruments, of which, in the character in question, the efficiency is altogether out of dispute,—two other instruments, viz. punishment and shame, may be seen, one or both of them, operating on the occasion in question, in that same direction, and to that same end:—and that, when these instruments are both of them out of the question,—have not either of them, any place,—mendacity, any application made of this instrument, notwithstanding, is altogether without restraint:—and if called for by any exciting motive, takes place accordingly:—and to this purpose, university oaths and custom-house oaths are brought to view.

5. That, of its inutility in the character in question, a continual and unquestionable, but tacit and virtual, recognition is made, in and by the practice of both houses of parliament: inasmuch as, by the House of Commons, operations, of incomparably greater importance than any to which the sanction of an oath is ever applied, viz. measures of legislation—in a word, laws of all sorts—are continually established on the ground of evidence obtained without any assistance from this instrument.

6. That, while to good purposes it is thus inefficient, to bad purposes, vast and indefinite in extent, variety, and importance, it has been, is, and threatens to continue to be, but too efficient: for that the instrument being in its nature alike applicable on every imaginable occasion,—viz. not only on those occasions on which the oath has been distinguished by the name of an assertory oath, but on those on which it retains the name of a promissory oath,—whatsoever pernicious effects it is found pregnant with in the latter of these two characters, will be attached to it, inseparably attached to it, in whichsoever of the two it be employed.

7. That, in the character here in question, viz. that of an assertory oath, it has already been seen to be a main, an indispensable instrument, in the organization of the system of mendacity licences above mentioned.

8. That, in this same character, it has, in a variety of ways, the effect of obstructing the action and weakening the efficiency of the laws.

9. That, in a sort of ambiguous or mixed character, composed of that of the assertory, and that of the promissory oath, it has the effect of bewildering the conceptions, corrupting the morals, and enslaving the consciences of men in the situation of jurymen: contributing, in conjunction with other instruments, to the converting them into puppets in the hands of judges.

10. That, in the character of a promissory oath at large, it is employed, and but too naturally, and with but too much frequency and success, in giving union, force, and effect, to the mischievous enterprises of criminal and lawless conspirators.

11. That, in this same character of a promissory oath, in the mouth of an English monarch, it is but too well adapted to the affording pretence and encouragement to misrule by abuse of prerogative: and on this occasion, the application made of it on and by the coronation oath is brought to view.

12. That, in those seats of superior education, in which the characters of a considerable proportion of the future rulers of the community are formed, the use that has been made, and continues to be made, of this instrument, is such, as to have introduced distortion into the intellectual, as well as corruption into the moral part, of the mental frame: and on this occasion, a fundamental error in morals and legislation—an error respecting the use and application of punishment—forced by an irresistible pressure into the mind in that tender and yeilding state of its growth, is brought to view.

13. That, on any of the occasions, on which, to the purpose of judicature, it is employed in the character of an assertory oath, there exists not any real need of it:—for that its place may be supplied, and with great advantage, by other and unexceptionable arrangements: of which arrangements an indication is accordingly brought to view.

§ 2.: Exclusion of Evidence—a False Security against Deception.

In the character of a security against deception, putting exclusion upon evidence is a practice, which appears to have as yet been everywhere in use: and in the boundless field of evidence, vast in the aggregate,—prodigiously diversified in respect of the seat of the particular spots,—is the extent that would be found occupied by this mode of Edition: current; Page: [30] husbandry, even in those regions, whichsoever they may be, in which the use made of it has been least extensive.

“So universally as this sort of arrangement has been received in the character of a security against deception, is not then its title to that character,” says somebody, “a good one? If exclusion put upon false evidence be not a security against deception by false evidence, what else can be? In comparison of this, how precarious is the effect of all those other securities put together! Can a man have been deceived by evidence which has never been so much as present to his mind?”

No, certainly: and so it is, that if no evidence at all were on any occasion admitted, deception by evidence could not on any occasion be produced.

But deception may be, and is produced,—deception and thence misdecision,—not only by evidence, but for want of evidence: produced, viz. by false or otherwise fallacious evidence on the other side: or by causing not to be believed, the existence of a really existing fact, the existence of which, had the evidence been admitted, would have been believed.

Moreover, if, on the part of the judge, deception be pernicious, it is so only in so far as it is productive of misdecision: and if misdecision itself be pernicious, it is so no otherwise than in so far as it is productive of injustice: injustice, viz. of that sort which stands opposite to the direct ends of justice, as above explained.

If misdecision be one cause by which injustice is produced, non-demand is another. When a man is well assured that the evidence, without which the justice of his demand cannot be made appear, will not, if presented, be admitted,—in such case, be his demand ever so just, and the loss of the object of it ever so fatal to him, he forbears, if he be well advised, to present it.

By non-demand and misdecision taken together, that of the practice of putting exclusion upon evidence, the effect is much more frequently to produce than to prevent injustice,—so much so, that it would be a prodigious benefit to justice, if exclusion of evidence were, in so far as it takes this for its ground, itself for ever, and in every instance, excluded,—is a persuasion, entertained after little less than fifty years of consideration, on grounds of which a slight outline will be given in the present abstract, the filling it up being reserved for the body of the work.

“But trustworthiness—(it may be asked) why speak here of trustworthiness? By whom can any such conception have been entertained, as that exclusion of evidence can operate as a security for the trustworthiness of evidence? as a security for its title to credence, any more than for its actually obtaining credence?”

No, certainly: not for the trustworthiness of the particular lot of evidence to which, in the instance in question, the exclusion is applied: for, by the exclusion put upon it, its untrustworthiness is always affirmed:—not for the trustworthiness of that one lot; but however for the trustworthiness of the whole remaining mass, of which that lot, had it obtained admittance, would have made a part: if so it be, that after the exclusion of whatever articles have been excluded, there be remaining any others to which admittance has not been refused.

§ 1.: Oral Interrogation—Minutation or Notation—Recordation or Registration.

Reception and extraction—under these two words may be included all the several modes in which, and operations by which, an article of evidence can make its way, and present itself to the faculties of the judge.

It, on the delivery and reception of the article of evidence, not only the person by whom it is delivered, but the judge by whom, or under whose direction, it is received, and everybody else, is, with the exception of the acts just mentioned, purely passive,—reception presents itself as being in that case the proper term.

If, for the purpose of producing or promoting the delivery, any operation be performed, that operation will be found to be an act of interrogation; and, in so far as any evidentiary discourse, that follows in the form of a response, is considered as the fruit or result produced by the operation, the operation may be termed extraction, and the evidence thus obtained may be said to be extracted.

Of reception as applied to evidence—of an operation so eminently simple,—little, it is obvious, can naturally require to he said. On the subject of extraction—a business of no slight complexity and difficulty—no inconsiderable part of the work will unavoidably be expended.*

By interrogation in the oral form, by interrogation in the epistolary form, or by any such mixture of the two as by incidental convenience may happen to have been indicated,—by any of these three means—in any of these three modes, may evidence be extracted. In the body of the work, how to employ each to the best advantage, will be found a principal subject of inquiry, in the book of which this chapter bears the title.

Answers, impromptuary—called forth without time allowed for mendacity-assisting Edition: current; Page: [31] invention or recollection—questions put singly—questions deduced from and grounded on the answers,—from these circumstances, which attach themselves as of course to the oral mode, the efficacy of that mode of extraction, and, except in particular circumstances, its superiority over the epistolary mode, will be deduced: its superiority, viz. with reference to the direct ends of judicature, over and above its more manifest superiority with relation to the collateral ends of judicature,—viz. avoidance of delay, vexation, and expense.

Of the advantages deducible from this mode of extraction, a part, which in some cases will be in no inconsiderable degree pregnant with instruction, will in effect be lost, if the judge by whom, on the matter of fact, the decision is to be pronounced, be not present on the occasion; himself a percipient witness of the deportment of the person from whose lips the verbal information is extracted:—deportment, that mode of expression and source of instruction, by which, on the theatre of amusement, without any aid from words, whatever is meant to be communicated is not unfrequently expressed.

Notes or memorandums in writing, in any and what cases—on any and what conditions—by any and what persons—shall they be consultable, under examination? Interrogation of a suggestive nature—in any and what cases—by or from any and what persons—shall it be allowed? Discreditive interrogation—interrogation, the effect of which may be to reflect discredit on the examinee—to fix a stain, or cast a shadow of doubt upon his reputation for probity, and thereby diminish the apparent trustworthiness—the probative force—of his testimony, shall it, in any and what cases, be allowed? In the body of the work, to all these several questions, answers are endeavoured to be provided.

Be the evidence thus extracted what it may, it would lose much of its eventual use, and of any decision grounded on it, the chance of its being conformable to justice would be very precarious,—if, in the article of permanence, in the event of its being, in the opinion of a party on either side, worth the trouble and expense, it were not capable of being put upon the footing of ready-written evidence.

Hence comes the demand for registration or recordation;—the two words being considered as synonymous, and taken in the large and simple sense thus indicated,—and not perplexed and narrowed by technical restrictions.

Hence again, on the present occasion, the demand for minutation or notation,—on the present occasion, the necessarily attendant operation by which the matter for registration must be supplied.

To the judge, for the purpose of occasional recollection,—against the judge, in the case of incidental misconduct, or misdecision, if accompanied with blame,—both ways, to and for the benefit of the parties on both sides of the suit in hand, and more especially to the party on that side which is most in the right,—in some cases, to the parties eventually concerned in future contingent suits, in which it may happen to the same matter of fact to come, any part of it, into question,—to parties to whom, but for the evidence thus preserved, it might happen to find themselves under the necessity of endeavouring to establish this same matter of fact, and to that purpose to engage in a contest which by this means is prevented,—lastly, to the legislator, in respect of the grounds, on which, in case of admittance given, as hereinafter proposed, to suspicious evidence, he may, by observation taken of its nature and result, feel himself disposed and authorized to give confirmation to any rules, to which in this behalf he may have thought fit to give a provisional acceptance, or to substitute other rules in their stead;—in all these ways, the transformation of oral into written evidence will be seen to have, in cases to an indefinite extent, its use. Notation, or say minutation,—followed by recordation, or say registration,—are the operations by which this transformation is effected.

In what cases shall these operations be performed?—by what person or persons, and in what mode? Such are the questions for which, under this head, answers are, in the body of the work, endeavoured to be provided.

§ 2.: Extraction should not be severed from Decision.

Superintending, at the very time of extraction, the extraction of the evidence which is to form the ground of the decision,—and forming the decision which has that evidence for its ground,—between these two operations so intimate is the connexion, that without considerable danger of misdecision they cannot (reason may have already been seen to suspect) be severed and allotted to different minds. The one is no less essentially a judicial function than the other. By any deficiency, in respect either of skill or probity, on the part of him by whom the grounds for the decision have been formed, the most consummate measure of both these qualifications in the breast of him by whom, on these same grounds, the decision is pronounced, may have no better effect than that of rendering misdecision the more sure; and whoever is not fit to be intrusted with the definitive function, it seems not easy to conceive how he should be fit to be intrusted with that which, in the way that has just been seen, is preparatory to it.

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When the judge, by whom a decision on the evidence is pronounced, was not present at the extraction of it, the loss of the information afforded by deportment creates a deficiency, the value of which presents, as already intimated, a consideration, to the force of which, no preponderant force, it should seem, can be opposed.

When the judicatory, being a many-seated (as a mathematician would say, a poly-hedrous) judicatory, one judge, who, alone or with others, had been employed in the business of receipt and extraction, is, in conjunction with those, if any, and with others in additional numbers, employed in the forming the decision,—it may be a question whether, under this palliative, the mischief of the severance be diminished or increased. Adding to a judge, whose means of judging are superior, a number of others, with equal power, whose means are inferior, is an arrangement which, upon the face of it, presents no very great probability of superior rectitude.*

In the case of appeal, if on the question of fact appeal be allowed, this disadvantage must be submitted to: and under whatsoever forms, and by whatsoever names, an appeal on the question of fact is carried on, whatsoever advantages may be found attached to it, will have this disadvantage to contend with.

Of a severance, upon the very face of it so unnatural, the not very deep-seated causes will be pointed out: and it will be seen how far they are from coinciding or being consistent with any sincere regard for the interests of truth and justice.

In judicial procedure, everything having for its author the man of law—everything, on this as on other occasions, under favour of the darkness of the age, had everywhere, of course, for its chief, not to say its sole object, in as far as circumstances admitted, the convenience—the advantage in every shape—of the man of law.

To this cause may be referred, without difficulty, so many pernicious applications as in this field may be seen made of the principle of the division of labour;—that genial principle, the fertility of which is, in the field of political economy, so salutary.

Beneath, as well as on, the bench, in each offset, into which by division the polypus—not to say the leach—has contrived to multiply himself, behold at the same time a screen, by which the light of true information is shut out,—a discolouring medium, by which false light is let in,—and a sponge, by which the substance of the litigants is absorbed.

The judge, decomposing himself into the evidence-collecting and the deciding judge:—the agent of the party, into the attorney and the advocate:—each of these again into a cluster of sub-offsets, the more numerous, the more favourable to misrepresentation,—to its consequence, misdecision,—to the boundless increase of factitious and needless delay, vexation, and expense.

Immediately under the bench, the scribe has decomposed himself, or rather has been decomposed by his master the judge, into a similar cluster of the like offsets, that in each of them the master may find an additional sponge. By the whole tribe together, as much as possible done of that by which fees are collected; as little as possible,—and little indeed that is!—of that by which the purposes of justice—the true ends of judicature—are served.†

§ 3.: Epistolary Interrogation.

In certain cases, the employment of the written, viz. the epistolary, mode of extracting evidence becomes matter of necessity or convenience:—what (it will be asked) is the description of these cases? For furnishing an answer expressed in general terms, two classes of cases may be brought to view: 1. Where, by the nature of the case, for the formation of such answers as shall be necessary to the correctness and completeness of the mass of evidence, a greater length of time employed in recollection and consideration is necessary, than is compatible with the operation of extraction, when performed in the oral mode; 2. Where, by the remoteness of the abode of the examinee from the seat of judicial inquiry, the employment of the oral mode is Edition: current; Page: [33] rendered either physically or prudentially impracticable.

For the better securing the efficiency of the interrogative process when carried on in this mode, two arrangements, in the character of sub-securities, will be brought to view: for the sense of responsibility, responses (as under natural procedure) in the first person, not (as under technical procedure) in the third;—for distinctness and facility of reference, thence also for responsibility, paragraphs, limited in length and numbered.

Of these practical arrangements, the rationale is particularly developed in detail: and if such as is supposed be the demand for them, notwithstanding the security afforded by an instrument so powerful as the practice of interrogation is under whatsoever disadvantages applied,—much greater must it be in the case, in which the declaration is delivered without the benefit of any such security, as in the case of a bill in equity,—an answer in equity,—a paper of special pleading at common law,—or an affidavit.

§ 4.: Modes of Interrogation principally in use.

The form of the discourse, viz. oral or scriptitious,—the constitution of the judicature,—and the distinction, such as it is, between publicity and privacy:—out of these three circumstances put together, five distinguishable, and alike established modes of examination or interrogation may be seen composed:—1. The oral mode, per partes, coram judice et assessoribus publice;* 2. The epistolary mode per partes;† 3. The oral mode, in secreto per judicem delegatum;‡ 4. The oral mode, in secreto per judices utrinque electos;∥ 4. The oral mode, per judicem publice:¶—Of these several modes, the comparative subserviency to the purposes of justice is in the body of the work endeavoured to be brought to view.

Browbeating—I mean the species of professional or rather official insolence and oppression (I say official, for the advocate cannot offend unreproved, but he has the judge for his accomplice)—browbeating presents an objection, which by practitioners under the secret mode has been urged§ against the first of these modes, and with but too much justice, if, as it seems to be tacitly assumed, the abuse were an irremediable one. A remedy, if not absolutely sanative, palliative at least, will be found suggested.

§ 5.: Oral or Epistolary mode—which to employ?

By the oral mode in its best form, or by the epistolary mode in its best form,—by which, in any given case, will, upon the whole, be rendered service the most profitable to the purposes of justice? The answer has been seen already, and has an unavoidable dependence on the individualizing circumstances of each individual case. Among the cases—(extensive the collection of them will be seen to be)—in which a conflict is apt to take place between the direct and the collateral ends of judicature, this will be seen to be one. In many instances, where for rectitude of decision the oral mode might be preferable, for avoidance of delay, vexation, and expense, attached to personal attendance, the epistolary mode may be the only mode prudentially, in others the only mode physically practicable. In other cases, where, for assistance to the oral, the epistolary mode, or vice versa, might not be altogether without its use, the additional load of delay, vexation, and expense, that might be found inseparable from it, might recommend the sacrifice of it.

The proposed examine,—in what quarter is his station in the theatre of justice?—on the defendant’s side, on the plaintiff’s side, or in the witness’s box? Correspondent to these differences in position, different answers may be found best adapted, upon the whole, to the purposes of justice.

Epistolarily extracted,—shall it, in any, and what cases, be deemed sufficient, without orally-extracted evidence? In the first instance and provisionally, the answer will be seen to depend, as above, upon the particular circumstances of the individual case. But, in ultimate resort, the conflict between affirmance and disaffirmance still remaining, no decision that is to be immediately definitive, will, it is believed, be found sufficiently grounded, that has not for its warrant an examination, coram judice, et partibus, face to face.*

§ 6.: Cross-examination—Anglicé, and Romano-Anglicé.

Under the general head of interrogation, cross-examination has been mentioned as a term pregnant with confusion: for an attempt to dispel that confusion, matters are now ripe.

Cross-examination being performed, as above, in the only genuine and rational—in the English-bred mode,—the questions put on one side have in part, for their ground, the answers given to the questions put on the other:—performed in the Rome-bred mode, Edition: current; Page: [34] the questions are all framed, by a person, from whom all questions on the other side, consequently all errors of which they can be productive, are kept avowedly and anxiously concealed.

In Rome-bred procedure, the process of extraction, for how many days or weeks continued, being kept involved in impenetrable darkness, what the nature and effect of cross-examination thus performed is, may be a secret,—not only to the non-lawyer, but even among lawyers, to any except those whose particular branch of experience has initiated them into the mysteries of that antique and adscititious system of procedure.

§ 7.: Confrontation and Repetition Romanicé.

In Rome-bred procedure, two courses or stages of proceeding,—the one confrontation, the other re-examination, Romano-Gallicé recolement,—Romano-Scoticé repetition,—Romano-Anglo-Ecclesiasticé, also repetition,*—both of them, in name at least, and in the character of distinct processes, and causes of proceeding, in substance alike unknown in English-bred procedure, occupy each of them a conspicuous place.

If so it be, that on a question of fact, in all places, and at all times, not to speak of all causes, the means and modes of forming a just ground for decision cannot but be much the same,—how comes it, that two operations, to which, under the governments of civilized countries in general, modern as well as ancient, so much importance has been attached, should be in a manner unknown to English practice?

On the continent, both confrontation, and the examination called recolement and repetition, are confined to penal cases of the higher order. By confrontation, the system of dark seclusion being, for this purpose, and pro tanto, subjected to a partial and momentary relaxation, supposed co-delinquents, with or without the addition of unsuspected witnesses, are brought together, and set to ply each other with mutual interrogations:—scene, the darkness of the judicial closet,—under the inspection of the judge—with or without his scribe,—at any rate, with no other check upon him than what may be supposed to be applied by the presence of that more or less dependent subordinate. Establishing the identity of the supposed delinquent, and promoting the disclosure of all relevant matters of fact, are the objects which confrontation is stated as having in view.

Securing correctness and completeness against misrecollection on the part of the examinee,—securing his freedom against seduction, whether in the form of intimidation or enticement, considered as capable of being administered to him by the judge,—securing the authenticity of the minutes against misrepresentation at the hands of the judge,—such are the purposes, to which the system of regulations relative to these objects appears, how unsuccessfully soever, to have been directed.

Between these two operations, thus upon the face of them so dissimilar, so close however is the analogy imagined and ascribed to them, that, under the Romano-Gallic procedure, cases are laid down, in which confrontation is to find in repetition a declaredly adequate substitute.

In the case of confrontation, the scantiness of its application,—as if there were any sort of case in which light from all quarters were less conducive to rectitude of decision than another,—in the case of repetition as well as confrontation, their conjunct insufficiency to every useful purpose, in comparison of the security afforded by publicity and open doors, will be held up to view.

Under the English mode, without the name and form, jury-trial, whether preceded or not by the preliminary examinations performed by a magistrate, gives in part the effect, and by a slight extension of the right of interrogation might be made to give the whole, of the effect of confrontation. In regard to repetition, preceded by that same preliminary examination, it gives actually part of the good effect, and might easily be made to give the whole of the good effect, so vainly aimed at by repetition when performed in the close mode.†

§ 1.: Natural Procedure,—Fit Modes—Parliamentary and Jury Trial, &c.

• “Video meliora proboque, deteriora sequor.”
• The best they know and praise,
• —the worst pursue.

Never was trite adage more fully exemplified, never more completely verified—verified in those high situations in which it is least excusable.

Of the system best adapted to the collecting of evidence, though the several leading features, with their respective uses and excellences, may never yet have been distinctly and completely brought to view, of this best system,—the only one that ever could really have had for its object the discovering of truth, and administering of uncorrupt justice, there is no secret: no secret can there ever have been, to any of those by whom, to the extent of their power, the two worst modes that could be found have all along, as will be seen, been employed in preference.

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This consciousness will be placed in broad daylight, before this chapter is at its close.

On this occasion, for giving ideas of perfection carried into practice, two modes of extraction require to be presented to view on the same line; viz. the mode pursued in parliamentary committees, and the mode pursued in jury-trial:—presented, not now it is true, as standing as yet, either of them, on the very summit of the scale of perfection, or at least jury-trial,—but as capable, when put together, of enabling the mind to form an idea of it:—the parliamentary mode as being nearest to perfection,—the jury mode as being the most familiar to the public mind.

On this same occasion, be it observed, the composition of the judicatory is a subject that should be kept completely out of view. How important soever,—in itself, and with reference to the ultimate result of the inquiry,—yet, with reference to the subject here in question, viz. the mode of receipt and extraction, it is a matter comparatively foreign and irrelevant.

At the time when the system of jury-trial was first formed, not only was printing altogether unknown, but even writing, the great source of complication, was, except in the instance of here and there an instrument of primary importance, public and private together, scarcely in use. The ignorant simplicity of the age, while it insured a proportionable degree of simplicity to all subjects of discussion, insured at the same time a correspondent degree of simplicity, precipitancy, and imperfection, to the course pursued in examining into the grounds and merits of all subjects of dispute. Slight was the degree of complication, or even of estimated difficulty and importance, that sufficed to give, to a legal knot, the character of a Gordian one:—and in that case, for the cutting of it, in some instances an assertion of the party, conceived in the most general terms, with the ceremony of an oath for sanctionment, and a general attestation of character for corroboration,—in others, a mutual attempt to murder, called an appeal to hearen, was received in preference to, and to the exclusion of, all other evidence.

In jury-trial, the grand features of excellence are—interrogation by parties on both sides—examination vivâ voce—consequent exclusion, to a considerable degree, of the faculties of mendacious invention and suggestion—these, together with the publicity given to that part of the system of procedure. Of these,—in contradistinction to epistolary statement, and written depositions, consisting of statements minuted down in the shape of answers to preconcerted and written interrogatories,—vivâ voce deposition was the necessary result of the rudeness and ignorance of the age: while, in contradistinction to interrogation by the judge alone,—interrogation performed by persons interested on both sides, as well as by the judge,—this, and the publicity of the inquiry, was, with or without any adequate or clear conception of use and subserviency to truth and justice, the natural, if not the necessary, result or accompaniment of what there was of popularity in the constitution of the judicatory:—a jury being a sort of select committee, gradually and silently substituted to the whole body of the freeholders,—to the whole mass of that portion of the people whose feelings and interests were alone, in those days, considered as having any claim to notice.

In the mode of extraction then and thus pursued, the great defect was and is—the want of time for occasional recollection, and eventually necessary ulterior investigation,* and consequently the non-employment of writing, in the character of an instrument for exhibiting, correcting, completing, and preserving, the result of those instructive operations.

In the system of parliamentary procedure—parliamentary-committee-procedure—this deficiency, fatal to the purpose of inquiries, applied to such subjects, and directed to such objects, as it could not but have been,—has long since, and continues to be, effectually supplied. This modern mode of procedure, not having taken its commencement till the art of writing had come pretty generally into use,—till, in the character of instruments of investigation and dispute, the productions of that mind-exalting art had become abundant and generally diffused,—and (as will be seen a little further on) no sinister interest having place, powerful enough to overrule, in this, as in the other case it has done, the dictates of truth and justice,—the consequence has been that degree of comparative perfection, the fruits of which have been so copiously reaped, while, for want of motives and occasions for holding it up to view, the thing itself has been so little noticed.

In the mode of collecting evidence pursued in the courts of summary procedure in general, and in particular in the summarily proceeding Edition: current; Page: [36] judicatories of justices of the peace, as well as in the small-debt courts called courts of conscience, there exists nothing to hinder the combination of those several features of perfection:—nor, under favour of the suspicious absence of all technical bars, does any reason present itself for supposing, that in such desirable combinations they are not actually and generally employed. But as in these comparatively simple cases, any comparatively considerable demand for recollection, investigation and reference to, and selection from, written documents, will not frequently present itself, so, in both these instances, concerning the mode of procedure thus pursued, so little is the notice that has been generally taken, and so slender is the utmost account that is anywhere to be found of it in print,—that, on the present occasion, what mention is made of them has principally for its object the showing, that, while so richly deserving as they are, not only to be brought to view—but held up exclusively for imitation, they have not on the present occasion been overlooked.

§ 2.: Unfit employed, to the exclusion of the above fit modes.

In relation to the modes of collecting evidence, employed, to the exclusion of the jurytrial mode, by English judges, if ever the time should come, in which, to the good people of England, justice and injustice should cease to be matters of indifference, the following propositions will not perhaps be deemed altogether undeserving of their notice.

1. That the only forms in which, in so far as they have found themselves at liberty, English judges have received those communications, to which, with the effect, they have given the name of evidence, are depositions and affidavits.

Depositions, being composed of testimony collected in the Rome-bred mode, viz. in secret, under the sanction of an oath, by the nominee of a judge, or by the nominees of the parties on both sides, in answer to strings of questions, prepared on behalf of the parties, and thus reduced to a written form, to which the deponents are made respectively to annex their signatures and affidavits of ready-written statements delivered under the same sanction, but without being subjected to interrogation.

2. That these modes are both of them repugnant to every one of the true ends of judicature, conducive to deception, and thence to misdecision—conducive to needless delay, vexation, and expense.

3. That of the unfitness of these modes of proceeding, those by whom they were introduced,—those by whom they are continued,—and those by whom they have been upholden,—have all been, and without exception are, fully and undeniably conscious:—and that in the whole profession, unless among the professors of Rome-bred law any exception should be to be found, there exists not so much as the pretence of doubt.

4. That the modes of judicial proceeding thus known to be repugnant to truth and justice, have always been, and continue to be in a pre-eminent degree, subservient to the private and sinister interest of those by whom they were introduced,—of those by whom they continue to be practised,—and of those by whom they continue to be upholden.

§ 3.: Deposition, Romano-Anglicé—its Inaptitude.

In comparison of the jury-trial mode, more particularly if, when occasion requires, improved by minutation and recordation, and by opportunity of amendment,—the following may be stated as the features of inaptitude observable in the Rome-bred deposition mode.

I. Deception favoured; viz. by exclusion of portions of the testimony, extractible from one and the same examinee:—

1. The adverse party not being apprised of the answers that will be given by the examinee to the questions put to him by the party by whom his testimony is called for, nor so much as what those questions themselves will be,—no effectual counter-interrogation—no cross-examination in the ordinary sense of the word—has place: so that, from this defect, were it the only one, deceptious incompleteness and incorrectness, and consequent deception and misdecision, may be stated as the natural and ever probable result.

II. Deception favoured; viz. by weakening the restraint put upon mendacity and temerity by the sense of responsibility:—

2. If, as in the open mode, and in ordinary conversation, the deponent were, from first to last, made to speak in his own person,—if the words exhibited as his had been the very words that had been in the first instance employed by himself for giving expression to his own recollections or pretended recollections,—if, in a word, the discourse, to which he is made to annex his signature as being his, were his own,—were originally and without variation his own,—the sense of responsibility, which to the form of speech in question attaches itself in a degree so much more acute than to any other, would in some degree operate as a check upon mendacity and temerity,—as a security against deceptious incorrectness and incompleteness.

As if to deprive truth and justice of the benefit of this security, the discourse, which in answer to the questions that had been propounded, had been delivered by the deponent himself, is in this mode set aside,—another discourse, framed, not to say invented, by the examiner, is substituted,—and it is to this discourse, thus framed by another person, that Edition: current; Page: [37] the deponent is made to annex that signature, by which he certifies it to be his.*

III. Deception favoured;—viz. by exclusion put upon the entire testimony of witnesses in any number.

3. In the open mode, by the evidence produced in the first instance, and afterwards by the publicity given to the whole case, it will frequently happen—and especially in cases, in the nature of which it is to afford a copious fund of evidence, among which those of the greatest importance are apt to find themselves—that ulterior sources of evidence will be indicated, and on a subsequent occasion, the evidence from these sources obtained. Of the close mode, the exclusion of all casual and supplemental evidence not only is the natural and frequent result, but has been a professed object.†

IV. Deception favoured;—viz. by clouds of irrelevant or needless matter introduced.

4. In the open mode, viz. in the way of vivâ voce examination performed in public—performed by advocates, in the presence of managing agents on both sides, with or without that of parties,—it will frequently happen, that by a short statement made by a witness antecedently examined, ulterior evidence, which to an unlimited amount would otherwise have been adduced, being plainly rendered unnecessary, is saved. In the close mode, all such casual lights being shut out, the consequence is—that lest any possible advantage should be lost, whatsoever evidence presents a possibility of proving serviceable to the party, is by each party irrevocably and irreducibly extracted. Moreover, questions and answers being in this mode all committed to writing,—and the string of questions that shall be put to the witness pre-appointed,—hence needless delay, vexation, and expense.

V. Delay, vexation, and expense produced,—cause, lawyer’s sinister interest.

5. Of all the functionaries, public as well as private, employed in the collection of evidence in this close and written mode, there is not perhaps one who has not an interest in giving unnecessary increase to the expense of it, and consequently to the delay subservient, and the vexation concomitant, to that expense:—nor any one who does not find it more or less in his power to promote that sinister interest.

VI. Delay, &c. produced:—cause, financier’s sinister interest.

6. The man of finance, seeing a source from which money is extractible, and without that disturbance to his own case, which is the natural result, where the persons on whom the burthen rests are in a condition to combine their exertions for the purpose of opposition and remonstrance,—the man of finance, observing in that denial of justice with which the great majority of the people are thus afflicted, a sure, yet little-noticed, means of enabling the class, to which he and the circle in which he moves belong, to keep in a state of irremediable oppression the inferior classes,—makes the most of the opportunity thus afforded of distressing the distressed, and instead of affording relief against licensed oppression and depredation, which he sees exercised by others, stretches forth his hand to aggravate it.

In the open mode, sound not being taxable as writing is, the afflicted escape thus from his inexorable hand. They are saved from his inhumanity by his impotence.

§ 4.: Affidavit Evidence—its Inaptitude.

Comparison made with the open and oral interrogation mode,—comparison even made with the close interrogation mode, as above,—the following may be stated as the features of inaptitude, that have place in the uninterrogated—the affidavit mode.‡

1. Not being accompanied by any evidence extracted from the same source, either by counter-interrogation, or so much as by primary interrogation, it lies thereby under a preponderant probability of being incorrect as well as incomplete, and thereby deceptious,—even Edition: current; Page: [38] where nothing of mala fides—of intention or wish to give rise to deception—has place.

2. From the same cause, in case of mala fides, the probability of mendacity in the texture of such evidence, and of deception as the fruit of it, cannot but receive great and indisputable increase.

In this respect, bad as the close interrogation mode has been seen to be, this uninterrogated mode is seen to be still worse. In that mode, truth is deprived of the benefit of such questions as would not have been put, had it not happened to them to be suggested by answers to antecedent questions:—in this mode, not so much as one question can be put.

3. By a malâ fide deponent, time, in any quantity which depends upon his own will, is in this mode applied to the purpose of mendacious invention:—time, without any stint at all, in the case of such affidavits, as being delivered in the first instance, and having found no other affidavits to which they are called upon to make answer, may be termed initiative affidavits—time always relatively ample, for making answer, and organizing safe mendacity and evasion, in the case where, being thus preceded by affidavits on the other side, they may be termed responsive affidavits.

4. By the malâ fide deponent, the like facility is possessed, for receiving and communicating mendacity-serving information and suggestion: and that as well from professional advisers, as from such other persons, whose wishes and exertions are, by personal interest, by sympathy, or by antipathy, engaged on the same side.

5. In the case of deposition evidence, it has been seen how far the statement, to which the deponent is made to annex his signature, is from exhibiting a true and genuine impression of his mind. In the case of affidavit evidence, it is still farther from exhibiting any such desirable result.

In the case of the deposition, questions put to the deponent being the instruments constantly employed for the extraction of evidence, so it is, that (unless in the case of that sort of suggestion, the utterance of which would on the part of the examining functionary be an act of transgression and malpractice) before any words are found for the deponent, it is left to him to find words for himself: and thereupon it is, that, when the substituted words, which are presented to him for his adoption, have been committed to writing, should the deviation be such as to present to his mind the idea of a material misrepresentation, the recollection of his own words—the recollected sound of his own voice—helps to point his attention to the error, and affords an additional chance for the correction of it.

In the case of an affidavit, even this check, inadequate as it is, is wanting. The attorney gets up the story,—dresses it in such colours as appear most advantageous for his client’s interest (not forgetting his own)—represents to him what turn given to the phrase will be best suited to the purpose,—and should the complexion of it be in a greater or less degree more favourable than the correct truth would have been, it is then left to the discernment of the client—the unpractised and naturally awe-struck and bewildered client—to discover all along what necessary demand there may be for correction,—and to his probity and activity, working against the bias of his interest, to apply it.

6. In the affidavit mode, matter and expression both being, as above, altogether at the choice of the deponent, with his professional adviser and assistant, the consequence is—that in the case of mala fides, every advantage is enjoyed, which is derivable from the faculty of producing by means of vague generalities, out of the reach of being, as in the open and interrogated mode, reduced by apt interrogation to particularity,—of producing, viz. in the texture of the several declarations and allegations, whatsoever modes and degrees of indistinctness, obscurity, and ambiguity, are found most convenient:—this, in each distinguishable part taken separately:—and moreover, by studied disorder and confusion in the arrangement of the parts, every serviceable addition to indistinctness, obscurity, ambiguity, evasiveness, and deceptiousness, in the composition of the whole.*

7. In the close Rome-bred mode, the case where, as above, the questions, which the examining judge is required to put, being on each side prepared by a professional scribe, Edition: current; Page: [39] and (so it has happened) distinguished from one another by numbers, some sort and degree of separateness and distinctness has by this means been in that instance given to the responses, of which the mass of evidence extracted from each such examinee is composed:—some sort of preservative, more or less efficient, provided against confusion, designed or undesigned.

In the case of the mass of evidence, delivered in and by the affidavit of each deponent, the same principle of distinctness, or at least of distinguishableness, might be employed with equal case. But, with the exception of the bonâ fide suitor, or—where the cause happens to be such as affords them on both sides—suitors,—none of the persons, professional or official, on whom the quality of the composition depends, having anything to gain by the distinctness of it—many of them always by the indistinctness,—no wonder that this mode has obtained (the wonder would have been had it not obtained) the favour so exclusively bestowed upon it.

8. In the deposition mode (understand all along under English Rome-bred procedure,)—in the case where the individual, on whom the operation of collecting his testimony is proposed to be performed, is a party, and that a party defendant—(not where he is a party plaintiff, for in that case pretence and occasion is made for an additional suit)—a party, and not an extraneous witness,—his submission to the operation is, with perfect propriety, made, as it could not but be made, matter of obligation: and the coercive arm of the law is employed to give effect to it.

In the affidavit mode, neither is the individual, from whom testimony in this shape is derived, compelled to answer questions—(if he were, his testimony, it will be seen, would not be delivered in the shape in which by the supposition it is here delivered,)—nor is any individual, either in the character of a party, or in the character of an extraneous witness, compellable, in any case, to deliver any testimony in this shape.

The consequence is—that while, by the interest he has in the cause, a party stands on either side engaged to deliver his testimony, in so far as admission will be given to it, a witness who is not a party, stands in this respect altogether free.

Mark here the inconsistency and caprice. Where the shape in which the testimony, if delivered, must and will be delivered, is the interrogated shape, the good shape,—there the testimony of an extraneous witness is compelled, while, on the ground either of fear of deception, or fear of vexation, the testimony of a party, so far from being compelled, is excluded: at the same time, where, as here, the shape given to the testimony is the uninterrogated, the bad shape,—here, though no person’s testimony is compelled, every person’s is admitted. So the shape in which he presents his testimony be this shape, no person is excluded—every person is admitted, no questions asked. A further consequence is—that, naturally and necessarily, like an election vote, an affidavit is an object of solicitation: nor in this shape is testimony ever delivered, without bearing, on the face of it, presumption more or less strong, of partiality in favour of the party under whose banner it presents itself. And, in addition to the advantage which, as hath been seen elsewhere, is given by a mass of expense, tolerable to one alone of two litigants, here may be seen another advantage given to the overbearing depredator, or to the oppressor by irresistible power and influence. Not having for its excuse the plea of legal obligation, an affidavit, made in favour of one side, is, as towards the other, an act of hostility, and as such a cause of apprehended vengeance.

9. When it is in any less untrustworthy and deceptious shape that the evidence is received, great (great as in due time will be seen) is the anxiety manifested,—on the one hand, under the apprehension of giving birth to deception, by testimony consonant to the wishes of the examinee—on the other hand, under fear of giving birth to vexation, by testimony repugnant to his wishes.

Thus scrupulous is the anxiety displayed, where the shape, in which the testimony presents itself, is that which possesses the highest claim to confidence. On the other hand, no sooner does it change to that which, in the degree that has just been seen, is untrustworthy and favourable to the purpose of deception, than all those scruples vanish. Not by interest in any shape, not by improbity in any shape, not even by recorded perjury, is a man excluded from delivering his testimony—if this, the most deceptious of all shapes, be the shape in which it is clothed:—nor, on the other hand, when, by a hostile affidavit, called upon to defend himself against or submit to, the threatened burthen—even though it be a penal one—will the severity of any vexation, to which it may be the effect of compliance to subject him, serve as a plea to save him from it.

10. Upon evidence in a shape thus completely unfit to be admitted in any contested cause, is decision grounded, where the question is (for such are the questions entertained and decided upon) whether one and the same matter of fact shall, or shall not, be inquired into, by means of evidence delivered in its best shape—in the jury-trial shape: and again* after a decision grounded on evidence Edition: current; Page: [40] collected in that best of shapes,—even then, on the ground of evidence received in this worst of shapes, is the decision which should have been grounded on that well-shaped evidence avowedly modified,—and thereupon, frequently, on this worst of possible grounds (that of naked and unsanctioned assertion excepted)—frequently, on the score of a fresh, though no otherwise proved offence,—is delinquency pronounced, and additional punishment inflicted.

§ 5.: English Judges—conscious of the Unfitness of their own Practice.

As to the question—whether, of the only shapes in which they have suffered, or will suffer, the evidence to come before them, the unfitness, as here brought to view, can ever have been a secret to those arbiters of human destiny,—the answer might, without other documents, and without danger of error, be left to the plainest dictates of common sense.

In the situation of those judges whose seat is in the ecclesiastical and admiralty courts, it might, for anything that appears, be possible to pretend ignorance of the unfitness of the evidence, in the only form in which they receive it:—by this bye portion of the hierarchy, such ignorance might possibly be pretended, without receiving contradiction and confutation from their own lips or their own practice.

In the situation of those whose seat is in a court calling itself a court of equity, this is not possible: of this impossibility, a sufficient intimation is conveyed by the single word issue, in the phrase, to direct an issue.

The chancellor directs an issue—to be tried:—that is, directs a question of fact to be tried by evidence collected in the open mode, in the way of jury-trial: in about one cause out of fifty, this mode of collecting the evidence is employed,—employed in that one cause, and for what reason? For the same reason which, if true, passes the most just and decided condemnation on the course (what that course is, has just been seen) which is pursued—so inexorably pursued—in the other forty-nine.

Where was ever that cause, for the trying of which that Rome-bred mode was a fit mode? Not anywhere. Why then is not an issue directed in every case? The grievance—would it not at this price be removed? On the contrary, it would be aggravated. An additional load of factitious and needless delay, vexation, and expense—(for there would be no substitution—it would be all addition;) with an additional load of recorded lies to befoul the case—(stories about a pretended wager, and so forth)—to heap confusion upon confusion, and to multiply by forty-nine the insults at present offered to morality and justice.

Moreover, not only in the Lord High Chancellor’s Equity court does the chancellor, but in the Exchequer do the judges of that honourable court, when so it pleases them, direct an issue—but in this case to be tried before one of themselves: for this is an amphibious judicatory;—it has an equity side in it, and a common-law side; each judge is composed of two discordant halves; each half is persuaded—constantly persuaded, (and was ever persuasion more just?) of the unfitness of the course pursued by the other: the judgments pronounced, or about to be pronounced, by the common-law half, the equity half (pulveris non exigui jactu) is ever ready to stop or to overrule: the mode of collecting evidence employed by the equity half being, to its own perfect conviction, not calculated for the discovery of truth—calculated for nothing but the oppressing the subject with an intolerable load of factitious delay, vexation, and expense—it stops upon occasion, its own snail’s pace (moyennant finance) and for a time turns over the business to the common-law half, adding always to, instead of ever subtracting from, the load of manufactured delay, vexation, and expense.

All this while, what to a chancellor, paradoxical as it may seem, is not impossible, is—the admitting into his presence, and interrogating with his own lips, the individual—be he party, be he witness—from whom the information is required:—nor to this purpose, strange again as it may seem, is it necessary that twelve unlearned men should be sitting by, shut up in a box called a jury-box. The assertion is positive:—and for the truth of it, the appeal is made—not to common sense—not to any such pretendedly despised and secretly feared and hated arbiter—but to precedent:—to that almighty and ever adored viceroy over common sense and common honesty in a lawyer’s breast:—Yes—to precedent: for, besides that, of old time, even chancellors were neither deaf nor blind to suitors, a comparatively recent instance,—in which, seeing no other mode of settling the business, a chancellor, in a fit of delirium or self-forgetfulness, betrayed the cause of equity, and with his own noble and learned lips put a question to a party or a witness,—is actually to be met with in the books.

So much for the close and badly interrogated mode: a word or two at present as to the use of the affidavit mode,—the altogether uninterrogated mode—the use made of it, and at the sametime the opinion entertained of it.

Throughout the whole expanse of technical procedure—those spots excepted, on which, in a period of inscrutable darkness, causes at present inscrutable gave to jury-trial a hold too firm to be loosened, and those on which antique priestcraft succeeded in planting the Edition: current; Page: [41] Rome-bred mode; throughout the whole of this vast wilderness,—in the common-law courts—in the equity courts—in the ecclesiastical courts—in the admiralty courts,*—this worst of all shapes is the only shape in which, for any purpose, on any occasion, for the determination of any question of fact, testimony will be received by any English judge.

Be it in a separate cause—be it on the occasion of an incidental application made in the course of a cause which receives its main and ultimate decision on the ground of other evidence,—(what matters it?)—not to speak of causes termed criminal,—it is on the ground of evidence received in no other shape than Edition: current; Page: [42] this, that questions, and that to a value to which there are no limits, receive their decision,—questions to a number exceeding (but it belongs only to parliamentary inquiry to say in what proportion) the number of those that receive their decision on the ground of evidence collected either in the only good, or in the other bad shape.

In a bankruptcy cause—in that sort of cause, in which hundreds of thousands, not to say millions, are to receive distribution from the noble and learned hand, if the application wear the form of a petition, affidavit evidence, and no other, is the ground, on which all questions of fact belonging to it are decided. Is it that of this shape, any more than of the secretly-received deposition shape, the unfitness is a secret to the “great character” by whom it is employed? No: for here, too, where truth has been thought worth coming at, issues have been directed.*

On any of these occasions, while a well-connected string of perjuries is in reading, if so it should happen, that a person by whom it could be proved to be what it is being in court at the time, under the very eye of the judge, he were to offer himself, or be offered to be examined, would he be heard? Not he indeed:—any more than, in a libel cause, in the character of a party defendant, a man who after feeing, in the character of an advocate, a bottle companion of the judge, and finding his cause betrayed, should, instead of feeing other such defenders, in a number to which there are no limits, presume, in contempt of judge-made law, to open his own mouth in his own defence.

§ 6.: Source of the unfit Modes—Sinister Interest.

As to the interest—the private and sinister interest—by which the feet of these rulers have thus perseveringly been confined to paths so plainly opposite to those of truth and justice, the different shapes, in which in their situation it may be seen to operate, have already been sketched out:—sketched out, in the little work, to which there has been such frequent occasion to make reference.† In the whole sphere of action of an English judge, can that particle of space be found, in which his interest is not in a state of opposition to his duty?—a particle, in which that opposition may not be seen to triumph?—Emolument, power, ease:—interest of the purse, interest of the sceptre, interest of the pillow: all these together form but a part of the whole number of shapes, in which, by the sacrifice thus made of the interests of the many, in the character of suitors,—(those included, who, having need to become, are, at the same time, by the expenses debarred from the possibility of becoming suitors) are sacrificed to those of the exalted and pampered few. Of the emolument thus gained by the wilful substitution of evidence in the two worst shapes to the same evidence in the best shape, an account may be collected from the particulars brought to view by the several committees on finance: always remembering that, in point of effect, between what a man has in pocket, and what he has in patronage, there exists not any essential difference.‡

By what is received in the shape of power—power of pursuing without restraint the dictates of sympathy, antipathy, or caprice—by advantage in this shape, though not susceptible of being expressed in pounds, shillings, and pence, the impression made on the mind is not the less sensible, nor the less operative.

In the shape of ease—that negative, indeed, but not the less efficient, principle of action, so powerful, yet so little heeded—in the shape of ease, the profit gained by the substitution of deceptious to instructive evidence, Edition: current; Page: [43] is too great and too various, to admit of any tolerably adequate description, within the limits prescribed by the design of the present sketch. Strained through learned and ever obsequious lips, the information, though always more or less false and delusive, comes purified from everything that could render it offensive, perfumed at the same time by clouds of appropriate incense:—everything that is squalid, rough, and vulgar, being, at the same time, and by the same means, kept from obtruding itself upon learned and reverend eyes. Of the wretches out of whose torments the comforts of the wearer of purple and fine linen are extracted, the torments are kept from presenting themselves to his reverend eyes, the cries and just reproaches from wounding his reverend ears: in a word, everything that is at once pleasing and delusive is let in—everything that is displeasing and instructive shut out, and kept at a distance. Of the miseries of which he is the well paid author, he escapes from the reproach, because though in his situation ignorance,—non-observance,—anything short of the fullest knowledge—is impossible, yet, not being sure to see them, he stands clear from the imputation of having given birth to them—clear and spotless in the awe-struck eyes of the ever-admiring and ever-deluded multitude.

The favourite shape—the deposition shape—which, in so far as they have found themselves at liberty, English judges, borrowing it from the Roman school, have taken upon them to give to evidence—is it really in a correspondent degree favourable to the discovery and display of truth? Confine it not, then, within the narrow sphere of equity—extend the benefit of it to the whole country—apply it to inquiries carried on for a legislative purpose—introduce it into the House of Commons.

Conceive now, in that source and seat of inquisitorial scrutiny, evidence wanted for the detection of a peculating or enemy-pensioned minister:—conceive thereupon, instead of the there so happily and unavoidably established efficient mode, that mode of inquiry employed, which, as it were in derision, is called equity:—conceive, under the name of a bill, a volume of notorious lies delivered in, with three or four months time for a first answer, and, after exceptions taken of course, two or three months for a second—then amendments made to the bill, with more such delays, and more succeeding answers,—then a cross bill filed on the other side, and a second such cause thus mounted on the shoulders of the first—then volumes heaped upon volumes of depositions—then, after years thus employed, a decree obtained, by which nothing is decided—then the whole matter, and everything that has been made to grow out of it, sent to be investigated in the hermetically-sealed closet of a sort of under-judge called a Master—with days of attendance, separated from each other by days or weeks—length of attendance each day, nominally an hour, really half or a quarter of the time—a clerk furnishing examination and decision, the Master auspices—the judge paid for three attendances, and bestowing one—(for the statute which transports men for obtaining money on false pretences does not extend to judges)—the party whose interest and purpose is served by delay, attending or not attending, according as by attendance or non-attendance that interest and that purpose are best served,—then, in the course of a few more years thus employed, out of a dozen or two of parties, one carried off by death, and then another,—and upon each death another bill to be filed, and the same or a similar course of retardation to be run.

Conceive this to be the course—the only course—appointed (practised it could not be) for coming at the truth in the House of Commons:—conceive this, and let any experienced equity draughtsman say how long before the first answer had been completed, the House would have found itself made into a barrack for the troops of Bonaparte.*

All this while, the mode best suited to the coming at truth through evidence, does it really change its nature, according as the person who is, or pretends to be, in search of it sits with a gown or without a gown, in one part of Westminster Hall or in another? If so, then, but then only, so it is, that the mode by which, if pursued in a committee-room, the whole country would be involved in prompt and universal ruin,—that this one of the only two modes of inquiry employed by English judges, when they have had their choice, may really be well adapted, and by its employers may really have been thought to be well adapted, to the purposes for which it is professed to be employed—the purposes designated by the sacred names of equity and justice.†

§ 1.: Extent and Use of this Inquiry.

To present an all-comprehensive, or so much as any considerably-extensive view of circumstantial evidence, even when narrowed by the sort of limitation applied to it by the words to a legal purpose, is an undertaking which, at first view, may be apt to appear impracticable. It may, moreover, be not altogether unapt to appear useless—void of practical use.

The matter of fact which, with relation to the other matter of fact in question, considered in the character of a principal fact, is proposed by you as evidentiary of it, is it so in reality? It will present itself as such of itself,—it may be said:—your instruction is therefore of no use. Does it fail of presenting itself in that character? Neither in this case can your presenting it as such be of any considerable use.

1. As to all-comprehensiveness—as to the giving to the view in question this degree of completeness, the task, if it be within the range of human power, is not, at any rate, at present at least, within the power of the individual by whom this attempt is made: the advance capable of being made towards it may, however, upon examination, be found less inconsiderable, perhaps, than what upon a first glance might have been expected.

2. As to utility—of a review of this sort, the utility, if any it have, will show itself in the one or other of two opposite ways:—1. If the matter of fact in question be true, in causing, or contributing to cause it, to be believed; 2. If not true, in preventing, or contributing to prevent it, from being believed.

In both ways, the subject has presented itself as being open to observations, capable of being conducive to the desirable effect:—

1. In the case where the matter of fact is true, instances will be adduced of facts in the character of principal facts, to which will respectively be found applicable evidentiary facts, in classes so ample in extent, and of which the probative force seems to have been subjected to so little scrutiny, that any observations, by which any assistance may be afforded towards the making a correct estimate of it, can scarcely be ill-bestowed.

In some of these instances, circumstantial evidence of the most instructive nature has been found involved in that system of exclusion, of which the folly, and rashness, and iniquity, will be held up to view: and if, in these instances as in so many others, the exclusion should be found indefensible, the more important and instructive the lights of which justice is thus deprived are seen to be, the stronger the ground that will thus have been made for amendment in this line.

2. So, on the other hand, in the case where the matter of fact in question is untrue, instances will be adduced of classes of principal facts, to which will respectively be found applicable classes of evidentiary facts, of a disaffirmatively probative, or say disprobative tendency:—facts of such a nature, that, for want of due attention to them, supposed facts, which, as above, are untrue, are (it will be seen) liable, at any time, to be believed;—thereby gaining a credence which is not their due. If, by the indication of any such disprobative fact, so it should happen that, in any number of instances, deception and consequent misdecision should come to be prevented, the greater the number of these instances, the greater in this case will be the utility of the observations by which mischief, in this shape, will thus have been averted.

§ 2.: Facts principal, evidentiary, probative, disaffirmative, infirmative.

Considered with a view to these opposite effects, facts operating in the character of articles of circumstantial evidence, may be divided into two classes. To those, the effect or tendency of which is to gain credence for the principal fact in question, may be preserved the appellation of positive or probative evidentiary facts; or say simply, evidentiary facts as above. As to a fact of the other class, it supposes the existence of some other fact in the character of a probative evidentiary fact; and the effect or tendency of it is—to weaken the probative force, on the magnitude of which the intensity of the persuasion produced by it depends:—call it therefore, with reference to such probative force, an infirmative fact.

Between the principal fact and the assumed evidentiary fact, is the connexion an immediate one? To form it, can no other fact or facts be found, the intervention of which, as of so many links between the two extreme links of a chain, is necessary? If yes, then so many as can be distinguished of these intermediate links, so many are the probative facts, of each of which the probative force is liable to be opposed and weakened by a separate set of infirmative—of disprobative facts.

In this case, the probative force of circumstantial evidence is diminished, in the same way as that of direct testimony will presently be seen to be, by the interposition of one or more supposed intermediate reporters between the supposed quondam percipient and the now deponent witness, as in the case of hearsay evidence.

§ 3.: Principal fact, Delinquency;—evidentiary facts, inculpative and disculpative.

By one single word, viz. delinquency, is brought to view a class of facts so ample, as to cover by its extent, one of the great departments, Edition: current; Page: [45] viz. the penal, into which the whole field of law and legislation is divided.

Taking this for the principal fact, viz. delinquency in any shape—offence—transgression (viz. against the law) in any shape—we see at a glance how extensive, and, at the same time, how important, an object of research is afforded by the aggregate of any such discoverable and expressible matters of fact, as can be seen to bear to it respectively the relation of probative, and disprobative or say infirmative, facts,—or, to employ the narrower and more opposite denominations, by which in this case they may be characterized,—inculpative and disculpative;—such* as are inculpative having for their tendency, the causing the defendant to be considered as guilty, such as are disculpative, as not guilty, in relation to the same forbidden act, considered in the character of the principal fact, of whatsoever nature in other respects it may happen to it to be.

Of the chief species of facts which have been in use to be contemplated in the character of criminative facts, a list has on this occasion been collected, containing somewhat about a score:† and along with each such criminative fact, will be given a list of such other facts, as presented themselves as bearing relation to it in the character of infirmative facts.

The very idea here expressed by the term infirmative including disculpative facts, being in the character of a general idea commensurate in its extent with that of an inculpative fact, is as yet a novel one,—no wonder if, for want of sending their minds in quest of facts of this description, law-writers of the highest name should have given as conclusive of delinquency, facts which, when the infirmative facts that bear upon the case are brought to view, will be seen to be far indeed from warranting any such conclusion.

Instances will moreover be produced, in which, upon the mere ground of this or that single fact, considered in the light of an inculpative fact, the legislator, acting in such his character, has required conviction to take place, in a case, in which the existence of one or more species of facts, operating in the character of infirmative, and thence of disculpative facts, has nothing in it but what is conformable to every day’s experience.

§ 4.: Conversion of Inculpative Acts into separate Offences.

As, for the prevention of mischief, in whatever shape it is capable of assuming, the legislator, proceeding with due caution, may find sufficient warrant for putting upon the list of prohibited acts, any sort of act that presents itself as having, in a preponderant degree, that tendency,—and this absolutely, and without reference or regard to any other sort of act;—so may he for putting upon that same list any sort of act, under the notion of its being an inculpative circumstance, evidentiary of delinquency in this or that substantive and independent shape. Nor is it to be denied but that this, if any, is of the number of ways in which the field of punishment may be, and has been, made to receive so many beneficial extensions, and the progress of delinquency so many additional impediments and checks.‡

But, to preserve an arrangement of this sort from rendering itself injurious to convenience and repugnant to justice, two precautionary conditions are necessary to be fulfilled: 1. That, if not by the very nature of the case, at any rate by positive institution, in so far as depends upon the legislator, the existence of the prohibition be effectually presented to the mind of every individual on whom it is imposed; 2. That the matter of fact, on which, with reference to the individual placed in the circumstances in question, the character of a conclusively inculpative fact is thus bestowed, be not one the existence of which, by blameless ignorance, or any other cause, it may have been put out of his power to prevent. Of neither of these conditions will the fulfilment be found altogether so consistent as could be wished. Particulars will find their place in the body of the work.

§ 5.: Principal, any physical fact,—disprobative fact, physical improbability:—or improbability physical—its operation in the character of counter-evidence.

Wide as is the extent of the principal fact above mentioned, viz. delinquency—an extent which knows no other limits than those of the entire field of penal law,—still wider in extent is that principal fact, which is liable to find opposed to it, in the character of a disprobative fact, the circumstance of improbability.

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Not to speak of the whole field of legal judicature—the field which in every part of its extent lies open to the application of the disprobative fact now upon the carpet, terminates there and there only, where existence, or if absolute precision be desired, where humanly perceptible existence terminates.

When the degree of improbability is meant to be represented as a very high one, in that case, for the sake of impressiveness, to the word improbability, the word impossibility is, in a loose way of speaking, apt to be substituted: impossibility, the predication of which would, in relation to any conceivable matter, if performed seriously, and meant to be taken strictly, be found to involve, on the part of him by whom the word is thus employed, an assumption of omniscience.

When attentively examined, even the term improbability will be found not to have for its representative any real and distinct quality actually inherent in, and belonging to, the facts themselves, but a fictitious quality, attributed to them for the convenience of discourse:—a quality, having nothing of reality connected with it, but the persuasion—(the act of the judicial faculty)—the persuasion as it has place in the mind of him, by whom, for the more convenient expression of it, or for the more effectual spreading of the like persuasion, the fictitious quality in question is thus attributed to, and spoken of as if it were a quality of, the fact itself.

Of this persuasion, if the cause be looked for, it will be found to consist in neither more nor less than the opinion entertained by the individual in question—either on the ground of his own reflection, or on the ground of the opinions or the supposed opinions of others,—that the supposed fact in question would, on the supposition of its being real, be in a state of disconformity to what is looked upon as the established mode of being, and course of nature.

In the midst of this darkness, in the hope of infusing into it some faint lights, and for the purpose of affording, in the present state of comparative inexperience and correspondent ignorance (on the part of the age in general, and of the individual in particular,) what, in the language of Sir Humphry Davy, may be called a resting-place for the fancy,—an attempt is here made, to find ground of distinction, and correspondent form of expression, for three modes or gradations of this disconformity: disconformity in toto;*—disconformity in respect of degree or quality;†—and disconformity in species:‡ disconformity in toto, importing some mode of being, which, supposing it realized, would be a violation of some one or other of the laws of nature: those metaphorical and fictitious laws, of which an exposition, supposed to be in some respects new, though not in any respect in opposition to generally received conceptions and opinions, will in the body of the work be attempted.

Be the fact what it may, between its existence and non-existence (time and place given) there is no medium: and thence it is that, ascribed to facts themselves, probability and improbability, with their infinity of degrees, are mere figments of the imagination: of the imagination, not to say of the tongue. But, of persuasive force, and persuasion its effect,—negative as well as positive, disaffirmative as well as affirmative, the number of degrees is truly infinite:—the number of degrees of this cause and this effect,—and thereby of probability and its contrary,—in the only sense in which these terms are the representatives of anything that is true.

Thus it is that probability and improbability are neither of them anything more than relative: neither of them being anything but with relation to the person in whose mind they serve to represent the mode and degree of persuasion which therein has place, in relation to the fact to which they are respectively applied. Thence it is, that, though the same fact is never, at the same time and in the same place, in itself both true and false, instances are, however, in continual occurrence, in which the same fact is both probable and improbable: probable to Titius, improbable to Sempronius. Thus it is, that, even to the best informed mind, so many facts are improbable, and taken for false,—so many falsely imagined facts probable, and taken for true.

Probability is conformity, improbability disconformity, to the supposed general and ordinary course of nature:—i. e. to the conceptions entertained concerning that course by him by whom the opinion expressed by these words repectively is pronounced.

Thus it is, that, in proportion to the ignorance of the individual, or the age,—i. e. to its non-acquaintance with the general and ordinary Edition: current; Page: [47] course of nature—is the facility—in proportion to the knowledge, the difficulty,—with which facts are regarded as probable and true.

From the case in which, a matter of fact being in question, the existence of it is regarded as being, in one or other of the above ways, disconformable to the established course of nature, and on that account more or less improbable,—it may be matter of practical use and importance to distinguish the case of a self-contradictory proposition, or contradiction in terms: a case in which, though to appearance the existence alone of some matter of fact is asserted, and that matter of fact upon the face of it an improbable one, in reality no conceivable matter of fact is discoverable, of which the existence and nothing but the existence is affirmed;—but one and the same matter of fact,—perhaps improbable, perhaps so far from improbable as to be proved by continual and univeral experience, is, under favour of a diversity in the form of expression—in the assemblage of words employed in the two cases—asserted,—in the same breath asserted,—to exist and not to exist.

The verbal impossibility (for in this sense, though in this sense alone, is the assertion of impossibility compatible with a due and duly-acknowledged sense of human weakness)—the verbal impossibility of the truth of a statement of this self-contradictory complexion—neither prevents it from being said to be, nor even from really being, the subject of a sort of credence. Be it what it may, hope and fear suffice to account for its being said to be so.

§ 6.: Principal, any psychological fact;—disprobative fact,—psychological impossibility.

In the case of disconformity, the established cause in question may be—either that course of events and state of things which is purely physical, or that state of things and course of events, of which the scene lies in the human mind. Improbability is accordingly distinguishable into physical and psychological. The course of psychological existence being, in so prominent a degree, less uniform than that of purely material nature (in insanity, the uniformity being liable to vanish altogether,) hence it is, that, in the character of an article of disprobative circumstantial evidence, the force of psychological improbability—though so continually, and irreproachably, and unavoidably, in conjunction with other evidences, or even singly, taken for the ground of the most important practical conclusions,—is, generally speaking, in comparison of physical improbability, but feeble.

When the principal supposed fact consists of delinquency in any shape,—in this case, character or reputation, station in life, degree of atrocity ascribed to the supposed offence, have been commonly considered as presenting so many instances or causes of psychological improbability, and thence so many articles of circumstantial evidence, applicable in disproof of the supposed fact; viz. in so far as, on the part of the individual in question, delinquency, in the shape in question, is considered as included in it. Of these several articles of circumstantial evidence, the disprobative force is taken for the subject of examination in the body of the work.

§ 7.: In a train, principal, any prior act;—probative, any posterior.

In a series of acts, following one another in pursuit of a more or less customarily entertained and regularly pursued design,—by the undisputed existence of a consequent article, in a series of this sort, what probability is afforded of the performance of the first article of the whole series?—and so in regard to the several intermediate articles?—Priora quatenus signata posterioribus? or, Posteriora quatenus signa priorum?

In a case of this sort, the degree of probative force with which the existence of the antecedent article is probabilized by that of the consequent, will depend (it is evident) upon the regularity with which, according to the experienced and sufficiently notified course of human practice, the several articles in the series have succeeded one another; or rather, to speak more pointedly, according to the regularity with which an article, of the species or description of the individual consequent article in question, has been preceded by an article of the species of the antecedent article in question.

On this occasion, the series of actions by which the most impressive, as well as important, illustration may (it should seem) be afforded, is that of which the course of judicial procedure is composed. Let the consequent in question be the last, or among the last, of the constantly necessary articles, if such there be, in such a series,* in either of these cases, the probative force,—with which the existence of the antecedent, in the character of the principal fact, is probabilized by that of the consequent, in the character of an evidentiary fact,—will to any eye, in any the slightest degree conversant with the course of legal procedure, be apt to present itself as little less strong than that with which the existence of past infancy is probabilized by present old age.

But, as from one place to another there are frequently different roads, so also between the first and the last stage of a course of judicial Edition: current; Page: [48] procedure. And by this circumstance (it is easy to see,) that the degree of probative force with which the existence of an ordinarily antecedent fact is probabilized by the existence of an ordinarily consequent fact, will be liable to be in a greater or less degree diminished, according to the nature of the case.

§ 8.: In a train, principal, any posterior act; probative, any prior.

E conversò in a series of the same sort, or in the same individual series by the existence of an antecedent, what probability is afforded of the existence of a consequent article? In this case, the probative force and correspondent probability will present itself immediately as sunk to a much lower degree in the scale. Be the course of action what it may,—lawful or unlawful,—by consummate acts inchoate are rendered much more probable than by inchoate, consummate.

In every series of this sort, suppose the articles as they occur entered upon a register, and that register kept with the regularity of which a document of this sort is susceptible, and which the importance of it demands, the indications afforded by it to this purpose would, on being presented in numbers, afford to judicial decision a still more substantial basis, than, in the case of maritime insurance, is afforded by the list of arrivals, compared with the list of policies.

In the English law report-books, cases exemplificative of this reversed series are to be found in no inconsiderable number: but, of any instance of recourse made to any such numeral and mathematical ground of decision, no expectation would be very abundantly satisfied, nor (it should seem) very naturally entertained.

In a case of this sort, on what ground then is it that the decision has been formed?

The question is easily proposed,—the answer not altogether so easily returned.

§ 9.: Principal fact, spuriousness, or unfairness;—probative fact, non-observance of formalities.

On the part of any written instrument, purporting to be designed to give expression to a contract (taken in the largest sense of the word contract,) to an agreement, a conveyance, or a last will,—principal fact, either unauthenticity or unfairness; evidentiary fact—fact regarded as conclusively probative of unauthenticity or unfairness—non-observance of formalities. In point of reason and justice, on this ground, and no other, stand the host of nullifications, so plentifully poured down upon, and with so little or such ill-directed thought applied to those bonds of society by learned hands:—how weak that ground,—how strong the force of the considerations, which in the character of infirmative facts, rise up in opposition to the inference deduced from it,—an questions which will be brought to view under another head.*

Laying aside a species of indication thus unconclusive, on the part of a written document of any kind,—what other facts does the nature of the case afford, capable of operating in the character of evidentiary facts, disprobative of its authenticity? and in particular, in the case of an instrument purporting upon the face of it to be, or exhibited as being, of an ancient date? To afford assistance towards the finding answers in every case to these questions, is in the body of the work the business of one or two parts of a short book.†

Non-observance of formalities being thus spoken of in the character of a circumstance taken as evidentiary of unfairness on the part of a contract, or of spuriousness on the part of an instrument purporting to exhibit the expression of a contract,—continual error would be apt to be the result, if for the prevention of it, apt warning—distinct and timely warning—were not afforded.

What is here meant is—that where, on the alleged ground of non-observance of this or that formality, the instrument has been pronounced (as the language is) null and void,—the judicial service being thereupon refused, the rendering of which is, on the part of the judge, necessary to the giving to the instrument the legal effect which it is seen to aim at,—an opinion, ascribing either unfairness to the contract, or spuriousness to the instrument, was either the reason or the pretence;—was either professed and entertained accordingly, or if not actually entertained, at least, upon occasion, professed to be entertained. But that, in every instance in which such opinion has been thus professed—impliedly at least professed, it has been really entertained, is itself an opinion the assertion of which, if sincere, will not be found consistent with the plainest common sense: inasmuch as in such an opinion would in many instances be included, the belief of a self-contradictory proposition; such as, that one and the same contract was throughout fair and unfair—one and the same instrument throughout genuine and spurious.‡

In saying, that non-observance of this or that formality is, by this or that judge, regarded or treated as evidence, and that conclusive of unfairness or spuriousness on the part of the instrument in question, all therefore that is here meant to be expressed is—that, Edition: current; Page: [49] if on his refusal to give effect to it, he were to be pressed for a justification—for such an one as, with reference to the ends of justice, should be a rational, and to an unlawlearned and uncorrupted mind an intelligible one,—of this sort is the best or only justification, which he would find himself able to give: in the giving of which justification, sincerity on his part might in some instances be morally possible, but in other instances would be morally impossible.

I speak here of the judge or judges by whom, in the first instance, decisions of the nature here in question have on such grounds been pronounced. But (says a well-known French proverb) Ce n’est que le premier pas qui coute: and in no other line of action, perhaps, has the truth of the observation received such ample exemplification as in judicature. Where, under the name of deference to authority, or under any other name, the adoption of opinions, without examination and upon trust, is made matter of merit, any one opinion is just as easily adopted as any other: the highest wisdom takes a pride in sinking itself to the level of the lowest folly: and now it is that self-contradictory propositions obtain credence, and that not merely with as little difficulty, but even with less difficulty (it will be seen) than is experienced by propositions less directly and palpably repugnant to reason and common sense.

Concerning the justice of the reasoning, by which unfairness or spuriousness is inferred from non-observance of formalities, more will come to be said under the head of Pre-appointed Evidence.*

But according to the intimation, the occasion for which has been so frequent, the truth of the matter is—and by every eye that has nerves to endure the spectacle will be seen to be—that at any rate in the earlier ages of judicature, the ends above described under the appellation of the false ends, have, to English judges, been the main, not to say the sole objects of pursuit:—the true ends, at best but secondary ones:—that for their assistance in that main pursuit, instruments of iniquity, in great variety and abundance, were invented and put to use:†—and that of these instruments, the one here in question, viz. nullification, was one of the most extensively operative, as well as of the most efficient and safe.

§ 10.: In litigation, principal fact want of merits; probative fact, discontinuance of procedure—its fallaciousness.

In every ordinarily and completely constituted and furnished judicatory,‡ every suit or cause has at least two sides, viz. the plaintiff’s and the defendant’s: and if so it be that the number of sides in it is greater than two, the cause, being in this case a complex one, is capable of being resolved into a determinate number of simple causes, each having its two sides and no more.

In the language of natural procedure, on the plaintiff’s side, discontinuance is non-suit—on the defendant’s, non-defence:—in the language of English technical procedure, the place of these two terms is filled by a multifarious vocabulary not wholly different, for which whoever has patience enough may see the books.

Under the technical system, be the side which it may, discontinuance on that side is regarded, or professed to be regarded, as proof—and that conclusive—of want of merits; that is, here, as before, that course is taken which,—to render it reconcilable, if reconcilable it were with justice,—would require a conclusion to that effect to have been formed.

Of the conclusion in this case, the rashness, if it were an honest one—i. e. if such were the opinion really entertained—would be much more egregious than in the instance last mentioned; viz. in which, on the ground of failure in the observance of this or that formality, a contract is convicted of unfairness, or an instrument of contract of spuriousness. Population of England, say ten millions: number of persons capable of carrying on a suit or cause to a conclusion, in the least expensive Westminster-Hall court, on the least expensive plan, not so great as half a million. Accordingly, to the defendant, twenty to one but pecuniary power of continuance may be wanting from the very first: and, as above, frequently will it be so to the plaintiff. As he cannot be such but by his own act, it will not be so at the first: but by accident it may be rendered so at any succeeding stage.

Principal fact here, want of merits: pretended probative fact, discontinuance: infirmative Edition: current; Page: [50] fact,—by the greatly preponderant probability of which the conclusion is rendered erroneous, and the pretence false,—want of pecuniary power of continuance.

When a discontinuance, as above, takes place, would you really wish to know what it has had for its real cause?—consciousness of want of merits?—want of pecuniary power?—or what else? The mode of obtaining from the suitor this information and that, without putting your reasoning powers to rack, can no more be a secret to you, than if, instead of being your suitor, he were your servant or your son. In an ordinary case, ears and tongue alone (or rather ears alone—for of his own accord, if you would but hear him, he would be ready enough to inform you) would be needful to you: or, in an extraordinary case, for epistolary communication, eyes.

But no:—whatsoever is necessary to render it possible for you to do justice, your great object is—not to know it, but to avoid knowing it: such knowledge would be unprofitable: such ignorance has been made profitable:—darkness of course is more pleasant to you than light. See further—as you will, if you cannot avoid seeing—the chapters on the exclusions put on evidence, and in particular, that on the exclusion put in the case of imprisonment for debt.

§ 11.: Probative force of circumstantial evidence, no fit subject for general rules.

Under the English constitution, in one knows not exactly what dark age, a species of judicatory developed itself, in which, in so far as the distinction found hands capable of delineating it, the matter to be decided upon was divided into two portions, on one whereof, as often as it presented itself in a state of separation from the other portion, the persons to decide were a permanently established judge, or bench of judges: while on the other, the persons to decide were, under the name jurors, or jurymen, a number of persons, originally indeterminate, in most instances fixed at twelve, serving in the character of occasional judges, the authority of each set confined to one individual suit or cause.

To the jurisdiction of the permanent, or official judge—the only sort of judge called by that commanding name—was understood to belong, in so far as the separation happened to be made, every decision, the terms of which would be expressive of a general rule—of that sort of proposition which by logicians has been distinguished by the appellation of a general one.

To the authority of the above-mentioned occasional or ephemeral body of judges called jurors, was understood to belong the decision on whatsoever matter came to be subjected to their cognizance, by and under the authority of their learned and authoritative directors—the judges that stood distinguished by the name of judges.

Having constructed this palladium—as it has been so often called—of the constitution, viz. the jury-box,—the same combination of undiscernible causes left, above and in contact with this palladium, a set of men, whose obvious interest, and consequently whose endeavour it has been, to weaken and undermine it.

From the very first—and, as will be seen, not altogether without just cause,—they took upon themselves—these experienced and learned judges—to determine what evidence should, and what should not, be presented to the cognizance of these their unexperienced and unlearned assessors:—but the evidence once presented to them, by these unexperienced and unlearned assessors it was, that the judgment on it was to be formed and pronounced.

Once presented to them? Good. But this or that lot of evidence, suppose it not presented to them by these their directors—what then became of it? Answer—It was decided—and with it commonly the fate of the whole cause determined—by these their directors themselves: with what consistency, as well as with what fruit, will be seen as we advance.

All evidence is either direct or circumstantial evidence. From any evidence that comes under the denomination of direct, it appears not that, on any occasion, they have as yet taken upon themselves to deduce the inference. On the contrary,—so abundant are the instances in which, speaking of evidence in general, the acknowledgment has been made to juries, that to them, and them alone, it belongs to say what credit is due to the evidence, whatsoever it has been, that they have been permitted to hear, and thereupon to deduce the inference from it,—that the reproach of usurpation is universally beholden ready to fall, in the character of an inevitable punishment, on the head of every judge, who should take upon him to attempt the depriving them of this function—this inestimable right—without which their office would be no better than a pernicious sinecure. In regard to circumstantial evidence, the question has never yet been stated—nor, if it were, does it seem possible to find any rational answers to it—why, in this instance any more than in that other, any attempt should be made to take the decision out of these popular hands, by which, in the sort of compound judicatory in question, without a shadow of objection, and amidst universal plaudits, every question, in so far as it turns upon direct evidence, is determined.

Out of these same hands, then, has any attempt been ever made to take the charge of drawing the inference from circumstantial evidence?—avowedly, Edition: current; Page: [51] in the lump, that is, in all cases, and under that name: No: on the contrary, there being few causes in which the nature of the case does not present the two species of evidence in a state of the most intimate union, so it is, that the circumstantial evidence is judged of by them, as of course, along with the direct;—nor, for any such purpose as that of dividing the cognizance between the jury-box and the bench, is any distinction made.

At the same time, so it is, that as often as evidence of the circumstantial kind has presented itself, the business of drawing the inference from it has, as often as such has been his pleasure, been, by the judge, taken out of the hands of the jury, and under the name of matter of law, taken into his own hands; and this with such effect, as, in and by so doing, to determine the fate of the suit or cause.

Between the cases in which the drawing the inference from circumstantial evidence is proper to be left to the jury, and the cases in which it is proper for it, thus to be taken out of their hands by the judge,—has any line been ever attempted to be drawn? Not any. Propriety out of the question, could any line be drawn, distinguishing with any tolerable clearness the cases in which the one course has been taken, from the cases in which the other course has been taken, in actual practice? Impossible. What then is the result? That in this, as in so many other cases, arbitrary will—to say no worse—has been the only guide.

By this sort of assumption, what have been the effects produced on the administration of justice?

1. In each cause taken by itself, has the probability of right decision received any increase?—does any sufficient reason appear for concluding that the inference thus drawn by the judge, was more rational than that which, in that same case, would have been drawn by the jury? On the contrary when the inferences thus drawn come to be looked at, so flagrant will their absurdity and folly be frequently—not to say, most frequently—seen to be, as to preclude the idea that any inference so absurd and foolish could have been drawn by any understanding, not corrupted by that species of half-absurdity, half-nonsense, which among lawyers has received the name of science: and it is under the assurance, that under the guidance of common sense no such inference would be drawn by the twelve unlearned men whom he has to deal with, that the judge has thus taken the business upon himself. Under that assurance? Yes:—and for that very reason: for on the supposition of an expectation on his part, that the inference, and from the inference the decision formed by them, would have been the same as that which it was his desire to see formed: use there would be none, even with reference to his own purposes, in thus taking it out of their hands.—Mischief the first—Producing misdecision in each particular cause, on the occasion of which the assumption in question has been made—the incongruous power exercised.

2. As often as they have been uttered, these assumptions, along with the other acts and discourses emaning from the same learned sources, have been liable to be recorded:* and recorded they have been, in but too many instances: and in this shape, not inconsiderable has been the addition made to the chaos of jurisprudential science.

Ill-grounded with reference to the particular individual case which respectively gave birth to them, these assumptions have, if possible, been still worse grounded with reference to those other suits or causes, to the decision of which, when thus recorded, they have been applied without reserve. With neither of the two facts of which the circumstantial evidence in question is composed, could they ever have had any sort of connexion: they have thus been converted, each of them, into a mine of false inferences, and erroneous decisions.—Mischief the second—Contributing to the composition of an aggregate mass of delusive and pernicious error, under the name of science.

3. By the whole amount of it, the power thus exercised has been a usurpation upon the acknowledged right of juries. By the whole amount of it, it has operated in diminution of that security which is sought for at the hands of juries. By the whole amount of it, it is a violation of that principal support of the constitution so universally acknowledged to be a fundamental one.—Mischief the third—Mischief done to the constitution by violation of the acknowledged rights of juries.

Of the circumstances capable of operating in proof of delinquency, any of them taken singly may be far from being of itself sufficient to warrant a conclusion in affirmance of any inculpative suspicion. At the same time, put but a number of them together, the proof shall be so satisfactory as not to leave room for doubt as to any practical purpose. Instances might perhaps even be found, in which, for the production of sufficient assurance to a duly cautious mind, so small a number as two would appear sufficient. In the several instances in which conviction has taken place on the sole ground of circumstantial, without any assistance from direct evidence, a number considerably greater than two would, it is supposed, be found upon examination to have concurred.

In the cases in which English judges have Edition: current; Page: [52] taken upon them to form conclusions respecting matters of fact, on the ground of circumstantial evidence, it will be found that in every instance it has been on the ground of some one single fact considered in the character of an evidentiary fact;—upon no more than one article of circumstantial evidence that the conclusion has been formed.

It is possible, that in the instance of the individual suit or cause, on the occasion of which, on the single ground in question, a decision has been pronounced, such decision was not chargeable with injustice. Why? Because, though in the formation of that decision, the one circumstance in question was the only circumstance expressly brought to view and mention,—yet it may have happened that the case afforded other evidences, by each of which a part more or less considerable was borne in the formation of the decision so pronounced.

So much for what is possible;—what is certain is, that in every rule by which expression is given in general terms to a conclusion thus formed, all these corroborating circumstances, if any such there were, will be excluded. What is the consequence? That though, on the occasion on which the rule was formed, misdecision did not take place, yet the rule once formed remains and continues operating in the character of a perennial source of deceptious inferences;—in a word, of error and injustice.

Of the conclusion drawn from a fact considered in the character of an article of circumstantial evidence, the effect, if it be by a jury that the conclusion is drawn, never goes beyond the individual suit or cause which has given birth to it. All the other evidence which the suit or cause happens to afford, coming along with it, under their observation, and contributing to the formation of the conclusion, nothing hinders but that, applied as it is to the individual principal fact which alone is in question, the conclusion thus formed may, in each such suit, be right and well grounded.

Drawn by a judge, it most frequently happens that a conclusion conceived in the same terms will be productive of error and false judgment. Why? Because when drawn by a hand so situated, it swells itself out, and constitutes itself into a general rule—and will be thereafter applied to cases in indefinite numbers, and rendered productive of the sort of results just mentioned.

When the conclusion has been drawn by the jury, of the infirmative facts, by which, supposing them to have had place, its probative force would have been weakened or destroyed, none, it may be presumed, have been proved, none so much as probabilized.

In the several cases in which the general rule, containing the expression of the conclusion so drawn as above, will come to be applied by successive judges; whatsoever infirmative facts the case admits of, may have had place in any number: yet of none of them can the existence be brought to view; for the inference, as drawn, is regularly all-comprehensive; nor can any hand but that of a judge presume to narrow it.

Of the conclusion drawn by a jury, the mischief, if it be erroneous, and thence mischievous, goes not beyond that individual case:—Of the same conclusion drawn by a judge, the mischievousness, except in so far as it may happen to it to receive correction from an exceptive rule, operating in contradiction to the former conclusion, comprises a course of error and mischief to the very end of the system.

When fact A is considered as circumstantial evidence of fact B, the inference being made by a judge or bench of judges, and an account of it finds its way into a published law-book, general words being employed in the account given of it; the character in which it is presented, is of course that of a general rule laid down for the avowed purpose of its serving for determination of the decisions to be pronounced in all subsequent similar cases; that is, in each individual case in which for the description of the individual principal fact, and the individual evidentiary fact, which in such individual case, are respectively in question, the same general terms are respectively capable of being employed.

Applied to any such subsequent individual fact, the inference thus made, as described by the general rule formed as above, may have been represented either as absolutely conclusive, or as only primâ facie conclusive, or in other words, conclusive nisi:—as primâ facie conclusive, and no otherwise, if in the enunciation of it, an indication is made of this or that species of fact, as being, in the character of an infirmative fact, capable of annulling the inference, and thus preventing the principal fact in question, if not from obtaining credence from the sole probative force of that evidentiary fact.

In a theoretical view, and for the purpose of affording the clearer conception of the sort of matter of which jurisprudential law is made, this distinction may have its use. But in practice it can scarcely be said to be exemplified, and has little or no influence. For among the prerogatives of an English judge, is that of taking a distinction whenever he pleases—taking a distinction, and thereby applying a limitation, or, what is the same thing, an exception to the general rule whereby to the purpose of the individual case in question, and so to the purpose of each succeeding individual case as it presents itself, the substance of the rule is picked out of it, Edition: current; Page: [53] and the rule left in the state of an empty husk.

If, then, the general rule happen to be to the taste of him to whom in that character it is presented, he simply pronounces it conclusive, and thereupon conforms to it; if not, he pronounces it conclusive primâ facie only, and taking his distinction, leaves the rule inoperative, and for that time sets it aside.

If the effect of the rule be to establish a fact in the character of circumstantial or presumptive evidence of a principal fact, the distinction will be taken by setting up, in the character of an infirmative fact, destructive of the probative force of the evidentiary fact, another individual fact presented at that same time, whether to his senses by testimony, or to his mind by imagination:—Yes, by imagination, for to warrant a man in dissenting from the conclusion indicated by an article of circumstantial evidence, it is not necessary that the possible fact by which the probative or disprobative force of the evidentiary fact is considered as destroyed, should have been proved.

Whether, therefore, the evidence be simply termed conclusive, or said to be conclusive nisi (or in whatever other words the distinction may stand expressed,) it comes in a manner of course to the same thing. By the reporter of the anterior case, let it have been simply styled conclusive—the judge, if it be not his pleasure to conform to the rule, will set up against it some fact, actual or hypothetical, in the character of an infirmative fact: let it have been reported as conclusive primâ facie only, or conclusive nisi, if, in the individual case before him, it be his pleasure to consider it as simply conclusive, he will say as much, refusing to receive, on the individual occasion in question, in the character of an infirmative fact, any individual fact which happens to have been proved, or brought to view as capable of having taken place.

Such is the state of things—such the despotism produced by taking out of the hands of jurors the function of deciding on the question of fact, in so far as the allegation concerning it is considered as proved, disproved, or not proved, by circumstantial evidence. And in this sample may be seen the whole substance of that false science of which the chaos called jurisprudential law is composed.

Along with direct, had the function of deciding upon circumstantial evidence been left to jurors inviolate, there would, so far as concerns the question of fact, have been no such sham learning—no such despotism;—no such distinction, as that between evidence simply and absolutely conclusive and evidence conclusive nisi or primâ facie, would have had place. On each occasion, after hearing whatsoever evidence, direct or circumstantial, could be produced, in the character of evidence probative or disprobative of the fact in question, in the character of the principal fact, the existence of such principal fact would—viz. by the jury—have been affirmed or disaffirmed. In a word, no instance would have had existence, of that sort of general rule, by which, as above, it has been rendered it is hoped pretty apparent, that much mischief has been done, and that no good ever has been, or ever could be done.

§ 12.: Inferences of Judge-made Law.

Sample 1. Legitimacy from Husband’s Non-Expatriation.

Two rules not altogether unconnected with each other;—the one imagined for the purpose of comparison—the other actually expressed in English judge-made law, may here serve for illustration:—

1. Principal fact, sexual intercourse; evidentiary fact, parturition;—the inference deemed absolutely conclusive.

This may be set down as one of the few imaginable instances in which a general rule pronouncing one species of fact conclusive with regard to the existence or non-existence of another species of fact, is not in danger of doing mischief; viz. by leading judges into decision manifestly ill grounded. But of what possible use can such a rule be? Where is the judge, where is the jury, who, but for the instruction afforded by this rule, would be in danger of mistake?

Of this kind is every judge-made rule of circumstantial evidence which is not in its tendency in a preponderant degree deceptious and pernicious.

2. Principal fact, the husband is the father of the child of a married woman: evidentiary fact, abode of the husband and wife, during some part of the period of gestation, in some part of the island of Great Britain. Inference deemed absolutely conclusive:—so conclusive that no evidence tending to the contrary persuasion shall be received.*

Here we have an example of a rule of circumstantial evidence, which at one time at least was received as an established rule of English law. True it is, that after having continued in force many hundred years, this rule was reversed.† But by the same authority by which the good old rule was reversed, the reversal itself may be reversed at any time. At any rate, as an example, it is as good as ever it was.

The absurdity of the rule is almost too palpable to admit of illustration. During the whole length of time in question, the husband may have been bed-ridden in the last stage of caducity at the northern extremity of Scotland; Edition: current; Page: [54] the wife living in adultery at the southern extremity of Cornwall. Yet the husband was the father of the child of the wife, said the wisdom of these sages.

This law—for such it was in effect—this law, it is almost superfluous to say, is upon the face of it an insult to common honesty, as well as common sense. The object of it, if it had any, could not have been any other than the encouragement of adultery, by casting upon the injured husband the burthen of maintaining the spurious issue. On this supposition, it was a law made by the common-lawyers, to make business for themselves and another set of lawyers—the civilians, the practisers in the spiritual courts.

But in its origin, suppose it to have had any the least show of reason, it must have been in some such way as follows:—On the occasion or cause which gave birth to this general rule, so it was, that though, during the time in question, the ordinary abodes of the husband and the wife were at a considerable distance from each other, yet, for anything that appeared to the contrary, access and intercourse might have taken place.

For justifying the decision which, on the occasion of the individual suit or cause in question, it was determined to pronounce, a general rule was, as usual, deemed necessary to be stated as already in existence—in reality, to be made.

Coupled with the reasoning on which it may thus have been grounded, it may have been expressed in words to some such effect as follows:—“When, in the case of husband and wife, access has not been impossible, it is better to presume it to have had place, than by means of any direct testimony to attempt to scrutinize into the question, since, if the parties have lived in a certain space, within a certain distance of each other, no man can say that no intercourse can by possibility have taken place. But where shall the limits of this space be found? The island, within which the jurdisdiction of Westminster Hall has its geographical field, is surrounded by the sea: let this island be the space; the sea will then be the limits drawn by nature: suppose the sea divided into four portions, and speak of the four seas, season the rule with Latin, say quatuor maria, and who is there that shall gainsay it.”

Here, then, we have the general rule, and now for the application:—

In cause A, as above, reason more or less there may have been for supposing it possible that between the parties in question, intercourse did take place. Comes now cause B, on the occasion of which it becomes manifest, that within the time in question no such intercourse did actually take place: none perhaps could by any possibility have taken place. No matter: a rule has been made—a rule of law concerning evidence, by which this question has been determined. “We are ready to prove,” say the counsel for the husband, “that the husband was never, during any time at which the child could have been begotten, within fifty miles of the wife.”—“Nay,” say the counsel on the other side, “this is what you cannot be permitted to prove, for the law in its wisdom has decided the matter against you; you and we were within quatuor maria all the time, and therefore you are the father of the child.”

Between the individual principal fact in question in cause B, and the individual fact or mass of facts taken from cause A and applied to cause B to be employed in it, in the character of an evidentiary fact probative of the said principal fact there is not by the supposition any sort of connexion whatsoever.

Evidentiary fact A took place at the beginning of sixteenth century—principal fact B not till the eighteenth century. No matter: borrowed from cause A, fact A is taken, and in the character of an evidentiary fact applied to the fact in question, in the character of a principal fact, on the occasion of cause B; and of this evidentiary fact, the probative force is deemed conclusive. In the cause which was decided, anno 1510, it was not proved that John Stiles could not have had access to his wife. Mary Stiles, so as to be the father of her son William: therefore, in the cause that now comes to be decided, anno 1790, it ought to be considered as proved that Nicholas Nokes is the father of Nathaniel, the son of his wife Elizabeth Nokes. Such is the logic, as often as, for determining a question of fact on the ground of circumstantial evidence, recourse is had to a general rule.

Had admission been given to the evidence belonging to the cause, the impossibility of any such genesis would have been proved by circumstances in abundance; but to save the trouble of hearing evidence, or for some other purpose, the law has laid down a rule, in virtue of which, as often as it is applied for determining whether, in the case in question, the fact which is in question did or did not take place, the evidence to be admitted and considered is not any evidence which this individual cause actually affords; but the imagined evidence which is supposed to have been afforded in and by this or that other cause which had nothing to do with it.

Upon the ground of some imagined evidence, supposed to have been delivered, relative to some one fact, in a case which has nothing to do with it, is the case in question determined, to the exclusion of all such evidence as properly belongs to it. Such has been the wisdom of those sages, as often as, for fear of that deception to which simple men in the situation of jurors are exposed, it has pleased them to take the business of Edition: current; Page: [55] determining a question of fact out of those inexperienced hands:—“Judging from evidence, simple men as you are, you would be misled by it;—to save you from error, we,” say these sages, “will take the question into our own hands, and decide it for you without evidence.”*

Sample 2. Malice from Homicide—Murder from Malice.

To any man, without any such wish, has it been your misfortune to have been the cause of death? To save to the jury the trouble of inquiring under what circumstances, and the danger of being deceived by evidence, the judge, if such be his pleasure, will find you guilty of murder, and so order matters that you shall be hanged for it. If on your part there has been malice, your doom is predetermined: murder has been your crime—death will be your punishment. Would the jury, had the inference been left to them, have found in your bosom any such thing as malice? This is of the number of those things which they are not to be trusted with.—This or that judge, who has been dead these two or three hundred years, knows more of the matter than they;—and by implying malice in your bosom, he who knows nothing about you or your case, he it is who has saved them the trouble of thinking whether any such thing as malice, whatever be meant by the word, had in your case any existence.

But what is meant by it? The same thing that is meant by so many other words, such as felony, felonious intent, and so forth: on the part of those sages, a disposition, they cannot tell, or care not to tell why, to cause you to be hanged:—to be hanged as well as all such other persons to whom it shall happen to be in your case;—in plain English, in whose instance, it may happen to any successor of these sages to be disposed to have them hanged. Such is the safety of the subject, under the dominion of what, in contradistinction to statute, is called common law.

And thus most conveniently open to despotism is the field, where, in the text of the law, real or supposed, there is an expression which should have been indicative of the matter of fact, or of a portion of the matter of fact, of such a texture as to indicate, so extreme is its generality, nobody can exactly say what. Such is the case with the word malice in the essential phrase, of malice aforethought:—in the original Latin ex malitii præcognitâ:—in the tenor of the established instrument of accusation, the indictment, as it is called.

In every mouth but a lawyer’s, malice means neither more nor less than a particular modification of ill-will; in a lawyer’s, on the present occasion and for the present purpose, for no better reason than because malice is, by substitution of an English to a Latin termination, derived from malitia, and malitia is derived from malus—by which in Latin is denoted everything that is thought or pretended to be thought bad—it is made to denote anything, for which, in the character of a bad thing, he feels himself disposed to put a man to death.

Of malice, according to the indictment, the supposed existence was necessary. But in proof of this essential matter of fact, according to the doctrine of some reverend and learned person who wanted to destroy a man, of whom, in the eyes of a jury, it would, it was feared, not appear fit that he should be destroyed, it was not necessary that any prohability should be presented by evidence. Presuming is shorter than proving:—power more pleasant than impotence: and so, because it had not been proved to the jury, it was presumed by the judge.

“Killing (in the words of Gilbert) is so bad a thing,—so ill-natured and bloody an action,† that it is to be presumed to be malicious;” that is, all killing is to be presumed to be murder, and punished, on the supposition of its being murder,—punished as murder. In this case, the physical matter of fact is by the supposition out of the question, as well as the share which the defendant had in the production of it: in this same case, who does not see that of the existence of the psychological matter of fact, the state of the mind, the supposition is not less uniform? But to save trouble, and to save the risk of an unacceptable verdict, especially when innocence happens to be manifest, this, instead of being proved to, and found by, the jury, is, on the mere ground of the physical fact, to be presumed by the judge.

All this while, in a case in which it is his pleasure to reduce the punishment, and for that purpose call the offence manslaughter, the physical fact has been exactly the same—the share which by his physical organs the defendant has had in the production of it exactly the same—and yet the psychological fact is not thus presumed from it.

Thus, then, stands the matter:—When it is his pleasure the defendant should be destroyed, the judge draws the inference, and calls the offence murder: when it is his pleasure the man should not be destroyed, he leaves the inference undrawn, and calls the Edition: current; Page: [56] offence manslaughter. But in his zeal to destroy somebody, who, though the jury would have thought otherwise, it must be presumed deserved to be destroyed, Gilbert, who on this occasion is the representative and mouthpiece of the learned tribe, forgets that there was any such distinct thing as manslaughter, and that, according to the account thus given of the matter by himself, murder and manslaughter are exactly the same thing.

Note here, that as above, when malice means anything in particular, i. e. in the sense in which it is used in every other mouth than a lawyer’s, it means ill-will—ill-will towards him who is the intended object of it, and is intended to be made the sufferer by it. Note at the same time, that in a case which is but too frequently exemplified, as towards the person who has been not only the eventual, but the intended sufferer, there has not existed in the breast of the author of the death any such emotion or affection as that of ill-will. This is where the object which the crime has for its purpose to procure is the gratification looked for in any shape or from any other source than the contemplation of the suffering produced in the breast of the party injured. Such is the case where death is produced by assault, made in prosecution of a plan of forcible depredation; for example, in a house* or on the highway.

Such is, in even a more particular degree, the case, where the murder has had for its object the acquisition of the matter of wealth in any shape—in the way of succession, as in the instance of the parricide committed at Reading in 1752, on the person of her father, by Mary Blandy. In the breast of that not altogether ill-educated female, the unvaried tenderness of her father had not failed altogether to keep alive, even to the last, some sparks, however faint, of a correspondent affection; but by the violence of her passion for her lover, by whose instigation she committed the crime, the gentler affection had been subdued. In neither of these cases was the crime-producing interest, the interest of the gall-bladder in one of them, it was the interest of the purse; in the other, the interest of the sexual appetite.

Now these cases in which, law jargon apart, there existed not the least spark of any such affection as malice, are precisely the cases in which the mischief of murder rises to the highest point of the scale. Why? Because these are both of them of the number of the cases in which, in respect of probability, the danger of becoming sufferers by the sinister operation of the interest in question in the character of a motive, is in the apprehension of persons in general apt to rise to the highest pitch. In both cases, of the aggregate mischief of the offence, that part which has been distinguished under the name of the mischief of the second order,—i. e. the general part of the mischief, and which, in respect of extent, measured by the number of the persons exposed to it, is to that of the mischief of the first order, i. e. the particular part of the mischief, comparatively speaking, as infinity to one;—is far greater in those cases where, ordinarily, and properly speaking, there is no malice, than when, in the same sense, in the breast of the offender, the offence has had malice for its sole cause.

Putting together these two cases, viz. this relative to murder and malice, the other relative to legitimacy on the part of the child of a married woman—the one belonging to the penal, the other to the non-penal division of the field of law—each of them in its department a case of considerable importance; some conception may be formed of the process by which the rule of action is formed, when the hands by which it is formed are those of a judge, or bench of judges, acting as such; and of the shape in which it is produced, in so far as a nonentity is susceptible of shape.

In neither case any such conception manifested, as that law is or ought to be an instrument employed towards a determinate end—or at least, that if it be, the greatest happiness of the greatest number is that end. If it had any such end, then and then alone would come the inquiry, what were the operations employed in the character of means with reference to that end, and in what respects, they were respectively conducive or non-conducive to it. But in the present instance, no such end being perceptible, all inquiries in relation to means are manifestly inapplicable.

Such as are these two samples, together with the others which occur here and there in the course of this work, such it may, without danger of the imputation of injustice, be said is judge-made law throughout. In each case, by some view suggested by that particular case (never by any such general view as that of picking out grosser from less gross specimens of absurdity) has the selection been made. In addition to its absurdity, it would be found throughout (not from beginning to end, for it has neither) a tissue of inconsistencies; and in this respect, as Ovid would have said, it is consistent.

Such is the nature, such the result of law, i. e. the imaginary thing to which is given the force of law, penal or non-penal, when tumbled out by judicature, substituting itself to legislation, or overruling legislation: the mode employed, that mode in which the unalterable nature of things places the work, in whatsoever hands, under the impossibility of being done well. Matter of law made after Edition: current; Page: [57] the fact, after the fashion of ex-post facto law,—made under the quibbling pretence of being declared. Matter of fact decided upon by abuse of words;—decided upon without evidence, or by this or that scrap of evidence caught up blindfold from some anterior case, known or unknown, and applied to facts of which those, whose testimony it was, could have had no knowledge. Legislator’s power exercised without authority;—judicial power exercised in the teeth of principle;—the sceptre filched from the king in parliament, and the balance wrested from the hands of juries.

Thus much as to substance: as to language, in jurisprudence and legislation, things are no more capable of being by anybody shown to be what they are in and by that part of the English language which has been poisoned by the mouths or the pens of English lawyers, than in chemistry they could ever be by Sir Humphrey Davy, if he were confined to the language employed by those who in former times occupied the place of chemists, the united brotherhood of impostors and dupes called alchemists.

§ 1.: Unoriginal Make-shift Evidence.

Of the several modifications of evidence which are here brought to view in conjunction, under the common appellation of make-shift evidence, the common characteristic is—the circumstance of their being in a greater or less degree untried by those tests which have already been brought to view under the name of securities,—securities against deceptious incorrectness and incompleteness:—untried by those securities in general;—but, in particular, by interrogation, considered as combined with those co-securities, and furnished with those sub-securities on which, in a greater or less degree, its efficiency may have been already seen to depend.

In some cases, the person by whose lips or whose hand the discourse assertive of the matters of fact in question is presented to the ear or to the eye of the judge, is not the individual to whose perceptive faculty these supposed matters of fact are so much as supposed to have presented themselves.

In these cases, by the very nature of the case, so long as the evidence continues in this case, the grand security afforded by interrogation is incapable of being applied to it.

Of this class of cases, hearsay evidence presents the only primeval, and at the same time the most simple and familiar example; especially when, as in the most simple and obvious cases which that appellation is qualified to express, oral is as well the form actually assumed by the actual discourse of the deposing witness, as the form supposed to have been assumed by the supposed discourse of the supposed percipient witness.

A modification, in modern times, not much less familiar, and perhaps still more simple, is that which may be presented to view by the appellation transcriptious evidence. But though in this case, as well as in the other there are at least two sources of information which, by and in proportion to their number (each being exposed to its own causes of deceptious incorrectness and incompleteness, and neither affording, by any additional information, any increase to the probative force of the other,) render the probability of deceptious incorrectness and incompleteness at least twice as great as if there were but one. At the same time, what is little less obvious is, that in the case of transcriptious evidence, the increase given to the probability of incorrectness and incompleteness, is in general beyond comparison less than in the case of hearsay evidence.

In the case of hearsay evidence, the information, supposing it orally delivered by a percipient witness, finds an additional intellect, which has to occupy itself, not only about the tenor, but about the purport of it, and in which it has, as it were, to be remoulded and recast:—and in which, as well as in that of the supposed percipient witness, it finds itself exposed to all those causes of deceptious incorrectness and incompleteness, which, under the appellation of intellectual causes, have already been brought to view.

To the case of transcriptious evidence, scarcely in any degree have these causes any application:—with the tenor alone, as exhibited by the visible signs, has the copyist, unless by accident, any concern;—with the purport, except in case of doubt, for the purpose of determining his conception in relation to the tenor—he has none.

In the case of hearsay evidence, commonly the individuality of the supposed percipient witness, and at any rate the form in which the discourse expressive of his supposed perceptions is supposed to have been conceived, are given and determinate; since if it were not, no regard would be bestowed upon it: in the case of transcriptious evidence, considered simply as such, these particulars may be still to seek. A consequence is—that any of those circumstances by which, in respect of trustworthiness and probative force, evidence is raised above, as well as any of those by which it is sunk below, the ordinary level, may indifferently be found in it.

§ 2.: Extrajudicially written, Make-shift Evidence.

In the class of cases here in question, there exists not, in the nature of the case, anything Edition: current; Page: [58] by which the discourse which presents itself to the judges, or, to speak more precisely, the person whose discourse it is, is rendered incapable of being subjected to the action of those purifying tests; but only, it has happened that he has not been subjected to any of those tests:—the case being, that at the time of the formation, i. e. the writing of this discourse (it being by the supposition a portion of written discourse,) there existed not any external hand in a situation to subject him in respect of it to the action of those tests.

The signs in which the information in question stands expressed, were formed (such at least is the supposition) not for the purpose of being employed to the judicial purpose to which it happens to them to be employed,—or at any rate, not to the purpose of the particular suit, but to some other purpose: in whatsoever state, with a view to that other purpose, they were brought into existence, in that same state having been found, and having, on the occasion in question, been deemed applicable in the character of evidence to the service of justice, in that same state they are pressed, as it were, into that service.

The following are the modifications of extra-judicially written evidence:—

1. Casually-written scripts (including memorandums and miscellaneous letters.)

2. Evidence preappointed ex parte (including mercantile account books and letters.)

3. These, together with evidence which, having been regularly received or extracted aliâ in causâ on the occasion and for the purpose of another cause or suit,—may be termed adscititious, or borrowed evidence.

First modification of extra-judicially written evidence—casually written evidence.

Without much violence, either under the head of a memorandum or that of a letter, may everything that is written be comprised.

Designed for the use of the writer and no other person, it is a memorandum: communicated to any other person, or designed to be read by any other person, it becomes in effect a letter or epistle: published or designed for general publication, a literary work, which is in effect a letter addressed to the world at large.

It may happen, that the operation of the head has been the work of one person, the operation of the hand that of another; as in the case of dictation to a scribe. Anomalies of this kind will come under notice in another place.

Second modification of extra-judicially written evidence—ex parte preappointed evidence.

To the head of make-shift evidence, preappointed ex parte, may be referred any such statement as, though in the nature of it it can scarcely but have been intended to have eventually, in the character of evidence, at least as between some parties, a legal operation, yet, in respect of the sinister interest, under the influence of which it is brought into existence, joined to the circumstance of its not being subjected to the tutelary action of the securities for correctness and completeness, wears upon the face of it a suspicious aspect, and cannot without manifest impropriety be considered as standing, in point of probative force, on a level with ordinary judicial evidence. Of this species of evidence, the sub-modification most in use is composed of mercantile books of account, together with such letters as belong to mercantile correspondence.

Agreeing in respect of design and preparation—agreeing therefore in their nature (were it not for the circumstance expressed by the adjunct ex parte)—with the extensive and highly diversified class of evidence, which under the denomination of preappointed evidence will come next to be considered, they will be seen rather to contrast than assimilate with it, when compared with it, in respect of probative force: in the scale of probative force, the station of preappointed evidence at large being above, that of evidence preappointed ex parte, below the level of ordinary evidence. Why? Because, in the case of preappointed evidence at large, the statement stands clear of the sinister action of self-regarding interest, or if exposed to the action of that powerful cause of deceptions incorrectness and incompleteness has for its security against these imperfections the eventually controuling action of the several antagonizing interests on which the evidence is in a way to operate.

Third and last modification of extra-judicially written evidence—adscititious evidence. Judicial with reference to the cases from which it is borrowed, evidence of this description, is extra-judicial with reference only to the cases in and for which, on the occasion in question, it is borrowed. Parties the same or different;—judicatory the same or of a different country:—if it be of a different country, of a country dependent or independent of our own—amicable with relation to it, or hostile. In the judicatory, if different, the mode of receiving or extracting the evidence the same, or different—by any of these varieties may the nature and probative force of adscititious evidence be diversified.

In point of trustworthiness and probative force, the case in which adscititious evidence comes nearest to evidence received and extracted in the very cause in question, is—where not only the judicatory but the parties were the same. But even here, though the diversity be least, the coincidence is not complete. Opportunity of interrogation—say even undequaque interrogation—the same; parties to Edition: current; Page: [59] avail themselves of it, even these the same: still, if the purpose were in any respect different, the course taken in and by the interrogation may nevertheless be, in a more or less material degree, different from what it is necessary it should be, ere it can exhibit such a picture of the transaction in question as, with reference to the purpose now in hand, shall be a correct and complete one: by this difference, slight as it may be, supposing fresh interrogation neither physically nor prudentially impracticable, a demand, and that a sufficient one, for that operation, may accordingly be produced.

How should it not? If, even in the very cause in hand, after the interrogations which have been propounded, and the answers which have been extracted in consequence, there be reason to think, that by fresh interrogation a matter of fact, capable of demonstrating the propriety of reversing or modifying the existing decision, may be brought to light, it can scarcely be said that such interrogation ought not to be admitted:—and if in that case justice may require the admission of it, à fortiori may it in any case of adscititious evidence.

The more trustworthy the shape is in which the adscititious evidence has been received or extracted,—the less; the less trustworthy the shape,—the greater will be any abatement that may be to be considered as being made, in the trustworthiness and probative force of this relatively extra-judicial, when compared with ordinary judicial evidence.

From the number of the changes capable of being rung upon the several sources of diversification above mentioned, an idea may be formed of the amplitude of the scale that would be necessary to comprehend all the several gradations of which, in the several different cases, its trustworthiness and probative force might be found susceptible.

§ 3.: Modifications of unoriginal Evidence.

In the case of unoriginal evidence, when the imperfection of the evidence has for its cause the want of originality, or (say) unimmediateness,—setting aside the case of characteristic fraud (of which presently,) inwhich the whole body of it together is substituted, by or under the direction, or for the sake, or in favour of the party by whom it is produced and exhibited to the judge,—media of transmission may, in any number, have intervened between the original statement made by the percipient (for in this case, by the supposition, the case really presents a percipient) and deposing witness. So many as there have been of these media, so many different sources (it is obvious) there have been of actual, and—blameable or no—at any rate of more or less probably deceptious incorrectness and incompleteness.

Intervening media, say in any number more than one: in that case by supposing, in the instance of one or more of these intermediate channels, the discourse to have been expressed in the oral form, and again, in one or more, in the already written form,—sub-modifications, in an indefinite multitude, none of them incapable of being realized, may be conceived and denominated. To give descriptions of, and denomination for them, in so far as such an operation presented a prospect of being of use with a view to practice—either to judicial or to legislative practice—is of the number of the tasks, the performance of which will in the body of the work be found attempted.*

§ 4.: Points of Infirmity common to Make-shift Evidence.

Agreeing in this characteristic property, viz. that of their being all of them destitute of the benefit of the salutary scrutiny so often mentioned, the species of evidence included under these two general heads will moreover be seen to agree in two other properties, which find in that infirmity their common cause; with peculiar degree of facility they give admission to two distinguishable causes of deceptious incorrectness and incompleteness, viz. unintentional error, and fraudulent contrivance.

As to this contrivance, the capacity of being taken for the instrument of it being inherent in the very essence of unscrutinizable evidence, it may, with relation to all evidence, for the designation of which the term make-shift evidence has herein been employed,—unoriginal evidence, and extrajudicially written evidence included,—be termed the characteristic fraud.

In all these several cases, the characteristic fraud will be found comprisable under one and the same description: for some sinister purpose, whether immediately his own or that of another person, confiding in the nature of the species of evidence by which the information in question, to how great a degree soever deceptiously incorrect and incomplete, will, by the non-application of the requisite judicial securities, stand exempted from the actions of those tests of truth, a man frames on that ground a body or article of deceptious information, adapted to the nature of the occasion, as well as to that of the dishonest purpose.

§ 5.: Facienda by the Legislator in regard to Make-shift Evidence.

In relation to all these modifications of defectively-constituted evidence, of the course that has presented itself as proper to be taken by the legislator, intimation has in general Edition: current; Page: [60] terms been already given:—so far as prudentially as well as physically practicable to add or substitute to the defectively-framed evidence, evidence drawn from the same original source or supposed source, but, by the application of the requisite securities, so moulded as no longer to labour under the same defects.

So far as practicability in either of these its modes is wanting,—insomuch that, from the original source in question, evidence in any less defective state is not to be obtained,—to do the next best thing in his power—leaving the judge in possession of the evidence, such as it is,—let the legislator do what depends upon his own exertions towards guarding the judge from that deception the danger of which is let in by it:—laying aside for a moment his power, let him employ his wisdom, whatsoever it be, in the endeavour to hold up to view, in the form of instructions, a light to lighten the understanding, and at the same time to serve as a safeguard to the probity of the judge.

As on the several other occasions, so on this, a set of Instructions adapted to this purpose will be found in their appropriate place in the body of the work.*

Of the cause of such unblameable, or at any rate non-fraudulent incorrectness and incompleteness, of which the defectively-constituted evidence is in these its several shapes respectively susceptible,—to give the requisite intimation, as well as to bring to view and lay open the characteristic fraud in the several shapes which, in the case of these several modifications of make-shift evidence, it will have to assume, will be sure to form a principal part of the business of these instructions.

§ 6.: English Practice in regard to Make-shift Evidence.

As on the several other occasions, so on this, to confront with, and throw light upon the picture thus given, of what presents itself as the proper practice, adapted to the nature of the case, sketches will here and there be given, of what, under English law more particularly, appears to have been, in relation to this head, the actual practice.

From one and the same original source, evidence admitted in less trustworthy shapes not admitted in the most trustworthy shapes;—admission given to broken hints, refused to explanations;—ignes-fatui let in, while sunbeams are excluded;—gnats strained at, while camels are swallowed:—such, under this head, is the scene—such is the system of practice which there will be occasion to bring to view.

Of the exclusions put as above, the impropriety must wait for its exposure till the time comes for the chapter allowed to that subject. Against the instances of admission considered by themselves, nothing might perhaps here be to be said; but when these admissions are coupled and confronted with the exclusions put upon evidence in its best shape from the same source, the inconsistency and impropriety of the practice may perhaps be thought already proved, if it should be found to agree with the description given of it.

§ 1.: Its Nature and Origin.

By the term preappointed evidence, may be understood any evidence whatsoever, considered in so far as provision is made for the creation or preservation of it, antecedently to the existence of any right or obligation for the support of which it may happen to serve, or to the manifestation of any individual occasion for the production of it.

Recordation or registration are names by which may be designated, any act which has for its object the creation or preservation of preappointed evidence.

Rights being beneficial things—sources of good to those whose rights they are—sources of every benefit which it is in the power of man to grant or to secure,—thence it is, that of such evidence on which, as on their indispensable foundation, all rights rest, the creation and preservation are operations in every instance prescribed by the same imperious considerations as those by which men’s attention is directed to the obtainment and preservation of those rights themselves.

In so far as the subject-matter of the right, or rather of the aggregate cluster of rights, by which the property of a thing is composed, is of a moveable nature, especially if it be of the number of those things which are not put to use but in proportion as they are destroyed,* the collection of circumstances of which that most variably and mysteriously constituted, howsoever familiar relation called possession, is composed, presents in itself, generally speaking, evidence sufficient for the preservation as well as establishment of these rights.

Differently circumstanced the case in this respect is, where the right has, for its subject-matter, either an immoveable portion of the planetary mass, on some part or other of which all human beings find their place—or this or that particular kind of service which, in virtue of some particular relation, one human being finds himself under the obligation of rendering to another:—in both these cases, Edition: current; Page: [61] to ascertain, and upon all occasions to make known, the existence of the right in question, requires the aid of some permanent sign, or assemblage of signs, in the shape and character of evidence.

When as yet the art of writing was unknown, or not sufficiently in use to be generally applicable to this purpose, feeble and inadequate were the contrivances,—the instruments, or operations,—devised and employed for this purpose: but when this invaluable art was once invented, serving in the character of preappointed evidence, as it was among the most important uses in which it could be employed, so it was among the first in which it actually was employed.

A person, and at first view, even the only person, on whom the care of providing and preserving the evidence necessary to the support of a right naturally devolves, is of course the person to whom the right belongs;—but by the concurrent operation of a variety of circumstances, other persons, it will be seen, are brought upon the stage in great variety, by whom the task of making this provision is necessarily either shared with the person so situated, or even taken altogether out of his hands: to him, if considered by himself, the operation being rendered either physically or (what comes in effect to the same thing) prudentially impracticable:—1. By immaturity of age he may be rendered as yet incapable of any such charge; 2. At the time when the provision requires to be made, he may even be not as yet in existence;* 3. In the right in question, persons, in any number, may have a joint and equally valuable interest, the value of which would, however, in the instance of any one of them, be outweighed and destroyed by the burthen of the task, were he the only person charged with it.†

Another circumstance there is, which would of itself be sufficient to prevent the charge of providing evidence of a right, from resting exclusively on the possessor of that same right, whosoever he may be. The person on whom rests principally the charge, as of giving effect to the right itself, so accordingly of giving correspondent effect to whatsoever evidence may happen to be provided for the support of that same right, is—not the possessor of the right—not any such feeble operator, but the sovereign himself—the person or persons by whose hands, to this and the several other public purposes, the whole power of the state is exercised—the sovereign by authority of the whole community—and by authority from him, though in all ordinary cases without need of recurrence to any special decision on his part, his subordinate the judge.

But on these two persons, in due subordination the one to the other, it depends—not only to what rights, but, for the support of those rights, to what evidence they will lend this sanction—and, as well on the occasion of these rights, as on the occasion of that evidence, on what conditions it shall be lent.

§ 2.: Uses of Preappointed Evidence, anti-litigious, and statistic.

Of the uses to which, in the form and character of preappointed evidence, evidence may be put—of the services which, in that form and character, it may be made to render,—it may not be amiss to present in this place a comprehensive view.

Uses and corresponding services of the first order;—Uses and services of the second order. To effects, good and bad, resulting from human agency, clothed or unclothed with authority, the principle of division thus brought to view has been employed elsewhere,‡ nor, if useful there, will it be less so here.

Uses and services of the first order,—those by which the parties—the known and assignable parties—to the individual transaction in question, or other individual transactions specially connected with it, are served.

Uses of the second order,—those by means of which, on future contingent occasions, in respect of future contingent transactions, following one another in a series without end, it may happen to the at present unknown and unassignable parties to these same future transactions respectively, to be served and benefited.

Uses and services of the first order may again be distinguished into litigious and anti-litigious: litigious, rendered on the occasion of an existing suit or cause; viz. by contributing to give effect to the rights and obligations which come in question in and on the occasion of that cause:—anti-litigious,—services which, though unseen, and even in a certain sense unfelt, are but the more useful, rendered as they are, by nipping in the bud the suits, which, but for the evidence thus expressed and perpetuated, might have sprung up: giving, without ulterior expense, full effect to those rights and obligations to which, in case of actual litigation, effect can neither be given nor sought for, but out of the fire of that furnace.

Uses and services of the second order,—to this head may be referred those which may be termed statistic: services performed by furnishing to the legislator whatsoever information he may stand in need of, for the purpose of judging, from time to time, whether, on those parts of the field of legislation to which the information in question is applicable, anything yet remains to be done of those things, which for the improvement of man’s condition Edition: current; Page: [62] in the community in question, the nature of things admits of.

In other words, it is by helping to form, on the ground of experience, a basis for legislative arrangements, including as well those which at the time in question happen to be actually in force, as any which may happen hereafter to be established.

Such are the parties concerned, and such the distinctions respecting them, in so far as the faculty considered is the sensitive faculty—the faculty in and by means of which man enjoys and suffers.

If the sorts of persons to whom, in respect of the active part of their frame, the information applies, be considered, and the persons in consequence of whose agency, positive or negative, the enjoyment or suffering in question, as above mentioned, may take place,—they will be found to be two sorts of official persons, viz. judges and legislators: the judge as being he by whom, in case of litigation, effect will be given or refused to the rights and obligations of which the evidence in question constitutes, or has been alleged to constitute, the basis:—he to whom, on the other hand, should the anti-litigious tendency of this mass of information ripen into effect, the labour of hearing and determining will be saved:—the legislator, as being the official person, to whose intellectual faculties such services will be rendered, as the body of evidence of which the article in question forms part and parcel, is qualified for rendering, in virtue of its above-mentioned statistic uses; and to whose active faculties the community will be indebted for whatever benefit it may happen, in virtue of its sensitive faculties, to receive from such arrangements, present and future, of which the evidence in question may contribute to form the basis as above.

§ 3.: Legislator’s Duties in relation to it.

Be the evidence in question—the preappointed evidence—what it may, to provide for the existence of it,—to provide for its subserviency in the highest practicable degree, to the purpose with reference to which it may be of use, under one or other of these two heads the whole duty of the legislator may, it is supposed, be ranged.

Under the last-mentioned of these heads may be considered as included, the obviously proper and unexceptionable condition, that in each instance, the advantage derivable from the evidence shall be such as to afford a reasonable promise of being found preponderant over the expense and vexation attendant on the creation and preservation of it.

Subject to this condition, what may be considered, perhaps, as forming the subject of a separate head of duty, is, the looking out for all occasions on which the creation and preservation of preappointed evidence promises to be in this sense productive of a net balance on the side of advantage:—

1. Subject-matters of preappointed evidence.

2. In relation to each such subject-matter, means applicable to the purpose of rendering the evidence subservient to the several uses to which it is applicable. To one or other of these two heads may be found referable whatsoever ulterior indications will here be to be given of the matters of detail, which in the body of the work will be found under this same head of preappointed evidence.

§ 4.: Subject-matters of preappointed Evidence.

1. Legally operative facts; 2. Contracts;* Edition: current; Page: [63] 3. Transactions of offices belonging to the judicial department; 4. Transactions of offices belonging to the administrative department; 5. Laws and transactions of offices belonging to the legislative department; 6. Registration applied to transcripts; 7. Registration applied to evidence of authorship. To one or other of these subordinate heads may be referred whatsoever observations there may be occasion to bring forward in relation to the subject-matters of preappointed evidence.

In the description of the operations to be performed, viz. by the creation and preservation of preappointed evidence—there will be found a material difference, according as the subject-matter of it is evanescent or permanent:—evanescent, in which case are all human actions, as well as all other events; permanent, in which case are all written instruments—all instruments to which any portions of written discourse, or any other visible marks employed for the communication of ideas, are consigned.

In the case of events, or other evanescent modes of being, all that the nature of the case allows to be done in the way of preappointed evidence, is—to create and preserve the indications of their existence, including their material circumstances: in the case of a permanent instrument as above, there exists, in the character of a subject-matter capable of recordation, in the first place, the fact of its being brought into existence: in the next place, the tenor or purport of its contents.

Correspondent to this difference in the nature of the subject-matter will be seen to be the differences observable in the operations that will require to be performed on, or in relation to it.

§ 5.: Legally operative Facts, considered as subject-matters of preappointed Evidence.

1. Legally operative—to which may be added, or statistically useful—facts. To one or other of two heads—viz. genealogical facts and miscellaneous facts, be their diversity what it may, they will all of them be found referable.

To the head of genealogical facts may be referred, deaths, births, and marriages.

As to marriage, besides its being, in so far as by the act of celebration it is placed, like death and birth, upon a footing with genealogical facts,—by this act a species of contract is entered into—and that the most important of all contracts: considered in this point of view, it will find its place under the head of contracts, as below.

Of legally operative or statistically useful facts of a miscellaneous nature, a sample of considerable amplitude and variety will be found in the note.*

Edition: current; Page: [64]

Births, marriages, and deaths, such (need it be said,) had the interest of justice been the objects, would have been the facts consigned to remembrance: unhappily, instead of these, the sinister interests of a church party militant and triumphant, having been the objects, the consequence has been, that to births, marriages, and deaths, have been substituted church-of-England baptism, church-of-England marriages, church-of-England burials. Of the great national family, members in countless numbers excluded from the benefit of such remembrance, as if those and those alone, whose lot had subjected them to the prejudices of a prevailing domineering party, were fit to be born, to marry, or to die.*

§ 6.: Contracts, and Instruments of Contract—Formalities, their use.

Institution of apposite formalities;—provision made for the observance of these formalities: to one or other of these two heads will (it is supposed) be found referable whatsoever expedients may have been employed, or may be found capable of being employed with advantage, to the purpose of rendering preappointed evidence, in its application to contracts, subservient in the utmost possible degree to its appropriate uses.

It may here be asked, what are the objects to which the observances thus exacted require to be directed?

To this it may be answered—1. Securing the intended effect to such contracts as are not unfair: and thence to such instruments of contract as (the contracts themselves not being unfair) are genuine: genuine, that is, neither in the whole nor in any part spurious. 2. Preventing the formation or the effect of—at any rate, the intended effect of—such contracts as are unfair. Preventing the formation, or at any rate the intended undue effect of such instruments of contract as are in the whole or in any part spurious.

Meantime, how far, and for what reason is it desirable, that the formation or intended effect of an unfair contract,—that the formation or intended effect of a spurious instrument of contract—should be prevented? Answer—according to the principle of utility, so far and so far only as the giving to it such its intended effect would to a preponderant amount be productive of mischievous consequences—for this reason, and for this reason only, that to such preponderant amount it would be productive of such consequences.

Under all systems of law, in so far as the principle of utility has been taken for the guide, unfairness on the part of the contract itself—spuriousness on the part of an alleged instrument of contract—have been regarded as conclusive evidence of such preponderant mischievousness. Regarded, and assuredly by no means without reason: always understood, that if, in any case, and in any particular, either in the instance of an unfair contract, or in the instance of a spurious instrument of contract, in the event of its being carried into effect, the balance would, upon the whole—the aggregate interest of the whole community being taken into the account—be on the side—not of mischief, but of advantage; this being supposed, no sufficient reason for refusing to give effect to it would have place: on the contrary, the reason for giving effect to it would, by the supposition, predominate or stand alone.

As to mischievousness, it is, however, only in so far as unfairness and spuriousness are considered as sufficient evidences of it, that, in the case of a contract, the consideration of it belongs to the present purpose. Formalities in some shape or other being scarcely so much as in idea altogether separable from the idea of a contract, hence it is, that the consideration of contracts, considered as subject-matters of recordation, involves in it of necessity the consideration of formalities: and it is only to the prevention of unfairness and spuriousness, and thence, and thus far only, to the prevention of mischievous effects, considered as liable to take their rise in contracts, that formalities, in so far as in the institution of them the principle of utility has been taken for the guide, have been directed.

A contract may be termed unfair, in so far at it is the result of force or fraud: to the head of force may be referred not only physical force, but mental or (say) psychological force, viz. intimidation: to the head of frauds, not only fraudulent discourse or deportment, but fraudulent reticence.

To point out by what obstacles, in use or not yet in use, unfairness and spuriousness may with least inconvenience and greatest promise of success be opposed, is of the number of the tasks, the execution of which will be found attempted in the body of the work.

§ 7.: Contracts continued—Formalities, Means of enforcing Observance.

Formalities of any given description being appointed, for securing observance to them, two appropriate species of instruments, natural and technical, present themselves. The instrument which in this case may be characterized by the epithet natural, is suspicion: that suspicion of unfairness or spuriousness which the non-observance of any such formalities, the observance of which presented itself as prescribed, or, though it were but recommended by the sanction of public authority, would supposing them adequately notified, so naturally, not to say so necessarily, excite.

For designating the natural instrument for securing observance to the formalities attached Edition: current; Page: [65] to contracts, we have the word suspicion: for the technical instrument, one other word suffices, viz. nullification.

As to nullification, if it were possible seriously to consider the use made of this device as having ever had justice for its object, it would be on the ground already indicated, viz. that of a persuasion inferring unfairness, or spuriousness, from the non-observance of this or that one of a set of formalities that had been imposed. But, as to any such persuasion, be it or be it not entertained by men at large, it is certain that cases are not wanting in which it cannot have been entertained by those men of law, by whose power or influence on the alleged ground of the non-observance of this or that formality the contract in question has been rescinded. Why? Because, for the non-observance of that formality (in regard to which, effectual care had been taken to keep it from the knowledge perhaps of all mankind—at any rate, of the vast majority of those who were doomed to sufferance in the event of their not knowing it,) the self-same instrument, the same last will, must, upon this supposition, be deemed to have been either unfair or spurious, and at the same time neither unfair nor spurious:—neither unfair nor spurious as to the bequest of a horse; unfair or spurious as to a bequest of the field in which it feeds.

All this while, in this same case of a last will, under the notion of favour, the observance of these formalities has, in the instances where the testator is a person of this or that description, been dispensed with: as if it were a favour done to a man to enable an impostor to dispose of his property in his name!—as if the exception could be beneficial, unless the rule were mischievous!*

Useless or unjust in every case—either the one or the other—such is the only alternative useless, when there exists adequate reason for imputing unfairness or spuriousness; repugnant to justice, where no such reason is to be found.

In every such act of nullification, an act of perfidy and treachery is involved. That which men in general are suffered to understand,—that which no man can avoid understanding, viz. that in virtue of a general rule or habit, a contract, on the supposition of its not containing matter particularly objectionable, will eventually, at the hands of the judge, receive the force of law,—that which is kept all along hidden in the breast of the judge, is—that on this or that one of a string of pretences of which there is no end, and of which the party cannot by any possibility have any knowledge, until, to his dismay and destruction, it is brought forth out of that its hiding-place, by a decree framed for the purpose, by and for the profit of the judge, the faith thus plighted by the sovereign will be broken at pleasure.

To make men suffer for not knowing, and to keep them from the possibility of knowing, are operations that have all along gone hand in hand—that have all along been pursued with equal solicitude and success—by the manufacturers of unwritten, alias judge-made law. Of whatsoever goes by the name of unwritten law, it is the essence to be uncognoscible.

In a sort of paper, of which, under the general name of promulgation-paper, mention has been made in another work, instruments of contract would find, each of them, in a margin of letter-press, either in terminis or in the way of reference—either at length, or in abridgment, as circumstances might admit and require—a designation of every portion of the matter of law that would be found to bear upon a contract of the sort of those, to the reception of which the sort of paper in question stood allotted.

Thus much for notification. Unfortunately, as it is with everything else, so it is with a law:—before it can be made known, it must have been brought into existence.†

§ 8.: Of Wills.

Wills, in the largest sense of the word contract—a particular species of contract—require, in several respects, a particular consideration.

That, of the allowance so generally, though not universally, given to dispositions of this description,* the effects are upon the whole beneficial to society, is a position which, however true and important, belongs not properly to the subject of this work.

That, in regard to this species of disposition, the powers of creation and alteration should, at least as to a considerable portion of his property, be not only imparted to the proprietor, but continued to him to the last moment of his life, is at the same time a position not altogether foreign to the subject of this work. Why? Because, according as it is or is not thus continued, difference in respect of the formalities will necessarily have place.

By the law of Scotland, what are there called death-bed wills (of which sort are the English wills) are not allowed.† A will is thereby put upon the footing of an ordinary deed—of what, in the language of English law, would be called a deed—a revocable deed of settlement.

Deprived of the power of making a deathbed will, a man is left exposed to ill-usage—unpunishable ill-usage—at the hands of those in whose favour a registered deed of settlement has been made;—he is at the same time deprived of the benefit of employing this power in the purchase of human service in a variety of shapes, on any of which the preservation of life may depend.

From these, with or without the addition of other considerations, a conclusion is drawn in favour of the allowance given to death-bed wills.

On an occasion on which a man may by infirmity be placed in a state of such absolute dependence on those by whom the access to his person may, at their pleasure, be unavoidably engrossed, the importance, and at the same time difficulty, of preserving freedom to the exercise of this power, is not unobvious. Subservient to this object will be found (it is supposed) the following rule:—Whatsoever formalities are appointed for deeds,—for instruments of contract at large,—let the departure from them be as undiscernible as possible in the case of wills: to the end that when a man is executing a will, it may not be known but that it is some deed or other which, were he to survive, would still be necessary to the ordering of his affairs.

Accordingly—for example, in respect of the number of attesting witnesses required for an instrument executed in regular form—let the number be the same in one case as the other.

On this momentous occasion, amidst a confederacy of interested witnesses, circumstances may throw in a man’s way an opportunity for obtaining one faithful assistant, without more, or by stealth two assistants, one after another, though not at the same time. For this reason, on the part of attesting witnesses, let conjunct presence be recommended, rather than required.‡

To the case of wills, applies, in a more especial manner, the above-mentioned principle, which recommends the giving to the non-observance of formalities the effect of a ground of suspicion only, and not of peremptory nullification.

On this principle is grounded the distinction between what may be termed a regular will, and what may be termed a will of necessity.

A regular will will be that, in the framing and execution of which, all the desirable, and thence authentically recommended formalities, have been observed. A will in which any of those formalities has failed of being observed, will, if deemed fair and genuine, be deemed such in the character of a will of necessity; non-observance, in so far as it has Edition: current; Page: [67] place, being considered as having had for its cause, either want of power to comply with the formalities, or want of knowledge of the existence of the provision of law, by which the observance stands recommended.

Should the day ever arrive, in which the peace, security, and comfort of individuals and families, will have been taken for the objects to which, in this part of the field of law, the labours of the legislator have been directed—should he ever desire that law may be employed in any better character than that of a snare, in which the prey may be caught by and for the benefit of the fowler, then, for the first time, it will have occurred to that trustee of the people, that to call in wisdom to the aid of power, is neither beneath his dignity, nor foreign to his duty.

In addition to the display of the imperative dispositions of the law, the margin or back of the promulgation-paper designed for wills will in that case contain a set of mementos and instructions from the legislator to testators.

For conveying a general conception of the nature of the contents, the following examples may serve:—

1. A view of the different exigences, by which a demand for the exercise of this power will be apt to be created. These exigences will have their rise, partly in the nature and situation of a man’s property; partly in the situation and condition of life of those who, on the occasion in question, may in general custom, or particular circumstances, find a more or less natural and reasonable ground, for the expectation of being admitted to share in it. This for the guidance of a first will.

2. A view of the alterations, the propriety of which may come to be indicated by the changes liable to take place in the condition of individuals and families. In the testator’s own instance,—marriage, for example, or widowhood: in the instance of the natural objects of his care, birth, marriage, or death: in regard to the general mass of his property, considerable increase or diminution in the qualities or the subject-matters of it—change, for example, from moveable to immoveable, or vice versa.

3. In respect of formalities, indicative of those which, in the character of safeguards against unfairness and spuriousness, have been thought fit to be recommended: warning that, from the omission, or material misapplication of them in any instance, suspicion will be apt to arise.

4. For the more effectual security in respect of apt and adequate expression, recommendation to call in some fit person in the character of a notary: if pecuniary circumstances admit, a professional assistant: if not, under the denomination of an honorary notary, a neighbouring magistrate, clergyman, or schoolmaster.

5. Indication, of the natural security for, and pledge of fairness as well as genuineness afforded by autography.* Recommendation to employ it, unless prevented by want of skill, power, or opportunity. Instructions how to perform it in such manner as to maximize the difficulty of successful falsification, and afford reason for concluding that it has not been attempted.

6. To the designation of the time recommendation to add that of the place at which the instrument is attested, or the places, if more than one, at which so many successive acts of writing have been performed: the place, viz. the very house, according to a mode of designation exhibited for the purpose. By the designation of the place, a security is afforded not only against unfairness and spuriousness, but, in the case of a fair and genuine will, a clew for the eventual tracing out of attesting witnesses.

7. Suggestions respecting the choice of attesting witnesses. Instructions respecting the mode to be employed for the designation of each person, with a view to the facility of his eventual forthcomingness while living, and when dead, the facility of establishing the fact of his death.

8. Instructions for questions to be put, and other suggestions to be made, by the notary, professional or honorary, with a view to prudential and provident disposition, as well as fairness and genuineness.

9. Obligation on the notary, professional or honorary, to annex his name, in such his character, adding to it an adequate designation of his condition in life, and abode. By this, salutary responsibility would be fixed; which at present, unless by accident, has no place. N. B. The use of this formality is not confined to wills: it has place alike, it will be seen, in the case of deeds.

For any provision respecting orally-delivered wills,—as the art of writing spreads, there will be less and less use: but that they will ever be altogether out of use, is more than the legislator could at present, if ever, with propriety, take upon himself to conclude.†

§ 1.: The Difference developed.

In the case of preappointed evidence,—as also with a view to preappointed evidence in the case of evidence not preappointed but judicially delivered,—language has obtained, which having been produced by indistinct or erroneous conception, has in its turn, as will always be the case, served as an instrument for the preservation of the confusion or error in which it took its rise.

In the endeavour to substitute, on this part of the field of law, distinct expression and conception to indistinct—correct to incorrect, a few lines, or even a few pages, may not, it is hoped, be altogether misemployed.

Since writing has come into general use, all evidence to which the epithet preappointed is applicable is scriptitious:*—but it is not all scriptitious evidence that comes under the denomination of preappointed.

The use of preappointed scriptitious evidence is, to be in readiness to be eventually applied to a judicial purpose: and thereby (in case of a suit or cause with relation to which the matter of it may be capable of being employed in the character of evidence) to be employed accordingly on the occasion of such suit or cause:—this is its judicial use; or, what is much better, by presenting beforehand, to the view of all parties concerned, what, in the event of the institution of any such suit or cause, will be the result of it,—to prevent the commencement of a series of operations both vexatious and undesirable.

In every case in which, on the occasion of a suit at law, in the character of judicially delivered evidence, destined to serve, or help to serve, as a ground for the judgment or decision expected to be pronounced, any article of preappointed evidence is employed: the moment at which this instrument is brought for the first time into existence, is of course, and of necessity, anterior to the moment at which it is thus delivered and exhibited.

Of evidence constructed in this shape, the use, or at least one great use, depends upon this anteriority in point of time; that is, to speak more precisely, the utility of it, is, cæteris paribus, inversely as the distance between the point of time at which the perception in question took place, and the point of time at which it happens to it to be thus recorded: cæteris paribus, the possibility of incorrectness and incompleteness on the part of the picture presented of any perception or set of perceptions by the memory, being directly as the length of time between the instant of perception, and the instant of the formation of such picture.

On whatsoever occasion, therefore, an article of preappointed evidence is exhibited in the character of an article of judicially-delivered and received evidence, so it is that, as to what concerns those perceptions which it is employed to commemorate, the distance between the instant of perception and the instant of scription will be less than the distance between the instant of perception and the instant of exhibition, as above.

This being the case, generally speaking, the time or date of preappointed evidence will be anterior to the time or date of judicially-delivered evidence; that is, in the instance of every article of preappointed evidence exhibited in the character of judicially-delivered evidence, its formation will be earlier than its exhibition in that same character.

But if the date of the instant of judicial delivery of an article of evidence, in one suit or cause, be compared with the date of the instant of scription in the case of an article of preappointed evidence in another cause—and Edition: current; Page: [69] in both instances the instant of perception be taken for the point up to which you measure,—what may very well happen is—that, in the case of the judicially-delivered evidence, the interval shall be shorter than in the case of the pre-appointed evidence;—in the case of the preappointed evidence, the interval shall be longer than in the case of the judicially-delivered evidence.

In regard to scripts, there are some cases in which the length of time between the moment of perception and the moment of scription, may be considered as equal to 0: there are others in which it is capable of running out to an indefinite magnitude.

Cases in which it is equal to 0, in which the moment of perception and the moment of scription, or commemorative recordation, coincide, are the following:—

1. Among instruments of contract, all diversilateral ones. For, considering that the transaction is not regarded as perfected till the moment of the act of recognition, in the inexpressive language of English law, delivery, this is the moment at which not merely the expression thus given to the concurrent and united will of the several parties, but even the ultimate formation of the perception or psychological act so denominated, may be considered as having place.

2. Among instruments of contract, the particular species of instrument called a last will or testament.

In so far as the hand by which it was written happens to have been a hand other than that of the disposing party, the testator—the time of recognition presents a point of time no less determinate than in the last-mentioned case. In so far as it is the hand of the testator himself, supposing it known at what precise point of time the part in question was written, the time of recognition would in this case be as determinate as in the other case. But when, the instrument being as above autographous throughout, bearing no date, or being written different parts of it at different times, bearing dates in numbers smaller than the number of those times,—thus far, to the length of the interval in question there are no determinate limits.

In this respect, the sort of evidence for the designation of which the term ex parte preappointed evidence has above been employed, stands next to preappointed in respect of exactness and constancy of coincidence. Between these two, the line of separation is not indeed in every part a very clear one: in particular, in the case of that branch of ex parte preappointed evidence which consists of mercantile correspondence. To a bill of exchange or a promissory-note of hand, though both but unilateral, the appellation of an article of preappointed evidence can no more be refused than to a common bond for the payment of money, which itself is but unilateral: and between an order for the payment of money, such as is a bill of exchange or a draft upon a banker, and an order for the delivery of goods addressed and sent in the form of a letter by one mercantile man to another, the difference is not always a very explicit one. The person to whom it is addressed,—does he or does he not stand bound to compliance? On this point it is that the question seems to turn: and this is a matter concerning which it will not, in every case, be found easy to speak with any well-grounded assurance.

In the case of preappointed evidence, and that of an obligatory nature, whether mutually appointed or but ex parte, it is to the obligatory matter that the observation respecting the exact coincidence between the moment of perception or conception, and the moment of expression (in the case of expression in the scriptitious mode, the moment of scription,) is to be confined. In various sorts of instruments of contract—in various sorts of deeds, are commonly contained matters of recital—recitals, as the term is, viz. statements made of facts of various kinds, the recollection and consideration of which contributed, in the character of matter of inducement, towards giving birth to the will or act of power which, by the expression given to it in and by the discourse composing the matter of the instrument, is put in exercise. Every one of those facts must, to some person or persons,—parties to the instrument, strangers to the instrument, or of both descriptions—at one time or other have been the subject of perception—of perception entertained at a determinate moment: but, between that anterior moment and the moment of expression, the moment of scription, or more correctly, the moment of recognition, the moment in which the act of recognition was performed, the distance may have been of any length not greater than that of the field of history.

As to scripts at large, generally speaking, they will not afford any such exact coincidence: whether they do or not, will, at any rate, be matter of accident.

In the article of trustworthiness, or probative force, with relation to the matters of fact which they are respectively employed to commemorate, we see at present the superiority possessed by pre-appointed scriptitious evidence when judicially delivered in the character of judicial evidence, over judicially-delivered scriptitious evidence of every other description, for the fixation and conservation of which no such salutary instrument has been employed.

In the case of a diversilateral contract, and instrument of contract, there is, in the first place, the mutuality of declaration, the concurrence Edition: current; Page: [70] of persons acting under the influence of opposite interests in the expression given to, and the averment made of the same matter of fact, present in the most intimate manner to the perceptive faculties of each. In the next place, the coincidence (in point of time) between the moment of perception and the moment of enunciation, the discourse enunciated being at the same time committed to writing—this moment is that at which that operation is performed, by which the perception is placed, perhaps for ever, out of the reach of oblivion and misrepresentation. In the case of the unilateral contract and instrument, the source of superiority is confined to this last-mentioned circumstance.

§ 2.: Inconsistency and Confusion: Anglicé for want of a right conception of it.

In the language in use among English lawyers, no such distinction is made as that between preappointed and other scriptitious evidence;—a mass of information brought into existence without a suit, without a view to any determinate suit—a mass of information brought into existence by a suit, and for the mere purpose of that suit;—both are spoken of without distinction, both are confounded under the common appellation of written evidence.

An instrument of contract, a deed, is written evidence: a mass of writing, in and by which expression is given to statements made by a man on a judicial occasion, in the character of a deposing witness, is written evidence.

Not that, in this last case, it is, in every one of the shapes in which it is capable of being presented, and is wont to be presented, denominated written evidence.

1. Delivered ex interrogatu, uno flatu;—in the epistolary form, at a distance from the interrogator, in the form of an uninterrupted string of statements, made in reply to an uninterrupted string of interrogations scriptitiously expressed and sent off in a mass;—delivered, in a word, in the form of the instrument called an answer to a bill in equity, it is written evidence.

2. Delivered in like manner uno flatu, but absque interrogatu;—delivered, in a word, in the affidavit shape, it is still written evidence.

3. Delivered in the shape of a succession of answers orally delivered in reply to a succession of interrogations administered in like manner by a present interrogator in the character of an evidence-collecting judge, these interrogations having been, at some indefinitely much anterior point of time, by the hand of a professional penman, scriptitiously expressed and formed into one unbroken mass, and by the hand, or under the eye of the evidence-collecting judge, the several responses committed to writing, and ranged each of them under the head of the interrogatory by which it was called forth;—delivered, in a word, in the shape of a mass of depositions exhibited on the occasion of, and in the course of a suit in equity, it is again, it is still, written evidence.

4. Delivered in the shape of a succession of answers orally delivered, in reply to a succession of interrogations administered in like manner, by this or that present interrogator in any one of a variety of characters, to which this power is imparted,—party, or advocate on one side:—party or advocate on the other side;—permanent judge, styled judge;—this or that one of a body of ephemeral judges styled jurymen;—the interrogatories extemporaneously uttered;—the responses uttered in like manner;—collected, and in a much more perfect state of correctness and completeness than in the last-mentioned case;—committed to writing by some note-taker or note-takers, employing or not employing the means of promptness of fixation, and thence of correctness and completeness afforded by the art of short-hand; it is not in this case, if the name of it be taken from these lawyers, written evidence; it is, in contradistinction to written, styled by them parole evidence, which is as much as to say, orally delivered evidence.

In cases to a vast extent, if in the form of what is called written evidence, expression has been given to an instrument of contract,—what is called parole evidence is not admitted in alteration, or so much as in explanation of it.

In cases to another great extent, a contract by howsoever great a number of witnesses proveable, is not so much as allowed to be valid, except in so far as, for the expression of it, a written instrument is employed constituting an article of evidence of that sort which is ranked under the head of written evidence.

At the same time, in this same scientific language, not only an answer to a bill in equity, but a mass of equity depositions, and even a mass of evidence in the affidavit shape, are so many articles of written evidence. According to the arrangement indicated by this nomenclature,—at least where the existence and particulars of a contract are the matter of fact in question,—the probative force of parole evidence, i. e. for example, testimony extemporaneously extracted, in an open judicatory, by the contending parties on both sides, or their advocates, by means of interrogation and counter-interrogation, should be inferior, not only to an answer in equity, and a mass of equity depositions, but even to a mass of evidence in the affidavit shape, and that to such a degree, as that, where it is supposed that evidence in either or any one Edition: current; Page: [71] of those three shapes is to be had, it is not on any terms fit to be admitted.

In comparison of, or in company with, what in these three forms is called written evidence, what is called parole evidence is so untrustworthy, that in lieu of, or in company with, these species of evidence respectively, it ought not (where these several evidences have for their subject-matter respectively, the sort of subject-matter here in question, viz. the existence or contents of a contract) to be so much as admitted: while, on almost every other occasion, by the universal acknowledgment of all lawyers, unless the ecclesiastical school afford an exception, those three species of what is called written evidence are, in point of probative force, decidedly inferior to the species of evidence called parole evidence.

By Gilbert, some time Lord Chief-baron, in his work on evidence, all evidence being divided into written and unwritten, an order of precedency in the line of trustworthiness is established; and to all that is written, above all that is unwritten, the upper hand is assigned. According to this order of things, such is its clearness and consistency, to the testimony of a given person, received in any of the three comparatively untrustworthy modes and shapes above mentioned, viz. answer, deposition, and even affidavit, the precedence, and along with it the preference, is given, over the testimony of the same person, extracted in the most trustworthy of all modes and shapes, interrogation checked by counter-interrogation, both administered vivâ voce, and employed in the extraction of impromptuary answers. These responses—does it happen to them to be committed to writing, and set down word for word as they came forth? No matter: written they may be in an unlearned sense—written they are not in a learned and legal sense: they belong not to the class of evidence to the designation of which the appellation of written has been consecrated and confined by learned and reverend hands.

Dissatisfied with answers—sensible of the comparative unfitness of evidence in this shape, to the purpose of depicturing the transaction in question by any representation to which, with any tolerably well-grounded confidence, the associated attributes of correctness and completeness can be applied—the learned manufacturer of equity, sitting in the character of Lord High Chancellor, directs an issue.

Dissatisfied with depositions—and with at least equal reason—sitting as the same High Chancellor, he again directs an issue. Dissatisfied with affidavit evidence—and with so much greater reason—sitting in his character of judge in matters of bankruptcy, and in that character receiving petitions and deciding upon them on no other ground than that of evidence delivered in this most untrustworthy, this most palpaply unfit shape, on every disputed occasion, he once more directs an issue; i. e. directs that the question of fact shall, under the direction of a judge, be decided upon by a jury, in the course of a fresh suit, a suit at common-law, which, conscious of his inability of coming at that truth on which the justice of all his acts and doings so indispensably depends, he forces those whose misfortune it is to be forced to come to him for what he calls relief, to commence and drag one another through the delays and justice-killing forms of.

Feeling every day the inferiority and unfitness of that which, from the grand masters of this branch of science, he has learnt to call the superior evidence;—dissatisfied on this and that particular, as if there existed an occasion on which he ought to be satisfied with this essentially unsatisfactory evidence, at an expense to the parties, at the thoughts of which he himself is continually acknowledging himself to be terrified, he calls for that which, in spite of learned theory, he has found by constant experience to be in practice and reality the superior evidence.

In the case of contracts in general, whether diversilateral or unilateral, the promptitude or freshness of the act of commemoration—of the act by which the existence and particulars of the contract are placed out of the reach of oblivion and misrepresentation; and in the case of diversilateral contracts, the mutuality of the recognition—the ground afforded for the persuasion that the correctness and completeness of the picture given of the transaction by each, has been acknowledged by the others—these are the circumstances by which the preference given by these lawyers to what they have called written evidence (viz. in the case when so it is that they have bestowed upon it this preference) can alone, in so far as it has been given by them, be justified: these are the grounds on which, in so far as reason has had any share in the production of it, it appears really to have been built by them.

Of what has here been distinguished by the name of preappointed evidence, these are the characteristic properties; but of the various species of which is composed the heterogeneous mass of evidence which by them has been lumped together and confounded under the common appellation of written evidence, these are not the common properties: expressed at some undistinguished point of time or other, by the characters of which a mass of writing is composed,—this is the only property appertaining in common to their written evidence: and this is a property by which no species of evidence whatever is capable of being distinguished, since there exists not any individual article of evidence whatsoever, in which it may not happen to it to be found.

§ 1.: Transactions of offices at large, considered as subjects of Preappointed Evidence.

Every office, in which written documents of any kind are kept, is a repository, and with few or no exceptions, more or less a source of preappointed evidence. In that character, service in some shape or other was in such situations rendered to the ends of government, while the art of applying permanent signs to the giving expression to ideas was most rare; and since the art of multiplying those signs in so indefinite a degree by the operations of the press has come into use, the field of preappointed evidence has thus received a degree of expansibility to which there are no bounds.

In this way, whatsoever is produced, is always so much better than nothing. But in the doing of it,—for the doing of it as correctly, completely, and usefully as possible, four points require to be attended to:—

1. What the uses are to which such evidence as may be found derivable from these sources may be capable of being rendered subservient; 2. On what principles a just estimate may be formed of its trustworthiness and probative force; 3. By what means its trustworthiness may be most effectually perfected and secured; 4. By what means, in so far as it is useful, and its uses not outweighed by preponderant inconvenience, the quantity of it may be most extensively increased.

1. Uses of official evidence. Direct and collateral;—under one or other of these two heads, may be placed, it is supposed whatever uses such evidence can be made subservient to.

To the head of its direct uses, may be referred all such as either the chief manager or managers in the office itself that is in question, or any persons that have dealings with it, whether in the character of private individuals, or in the character of public functionaries belonging to any other offices, standing whether in a superordinate, co-ordinate, or subordinate capacity, in relation to it, may in the course of those dealings be enabled to derive from it.

To the head of collateral uses, may be referred, in the first place, the judicial uses, viz. any which, on the occasion of a cause or suit, it may be found applicable to in the hands of a judge, acting as such. In the next place, the statistic uses,—such uses as it may be found applicable to in the hands of the legislator, acting as such; and which, under this same name, have been already mentioned.

To the head of its judicial uses, besides such as are casual and miscellaneous, may be referred, that of affording eventual documents for the eventual indication, demonstration, and thence, in a more or less considerable degree, the actual prevention of any such transgressions, of which the office itself is, by the nature of the business carried on in it, rendered liable to become the source, or at least the scene.

2. Trustworthiness of official evidence, how to estimate. For the purpose of forming, on any occasion, an estimate of the trustworthiness of official evidence, the following considerations may perhaps be found not altogether without use:—

Pre-eminent responsibility—viz. in what may be termed the beneficial* sense of the word responsibility—pre-eminent responsibility and presumable impartiality, i. e. exemption from the action of sinister interest:—these, with or without the addition of presumable superordinary moral and intellectual culture, may be mentioned as being, in a situation of the sort in question, the principal efficient causes of pre-eminent testimonial trustworthiness.

Such being, in the sort of situation in question, the causes from the operation of which testimonial trustworthiness may naturally be expected to receive increase, neither should those circumstances, if any such there be, which present themselves as operating in ralation to that quality, in the character of drawbacks, be overlooked.

Whilst, in the beneficial sense of the word, responsibility, as above, in the sort of elevated situation in question, is naturally raised more or less above the ordinary pitch, in the burthensome sense by which alone it operates as a security for such trustworthiness, it is apt to be depressed below the ordinary pitch. Though in the situation in question a man has more to lose, he is less in danger of being made to lose: magnitude of eventual suffering is increased, probability is diminished.

By the extensiveness, by the intricacy, by the scientific nature of the business—by all or any of these causes, if there be delinquency to any extent, detection, to any such effect as that of producing general notoriety and consequent disrepute and exposure, may to any degree be rendered difficult and improbable, Edition: current; Page: [73] while in that same situation, if it be in a certain mode and degree elevated, exposure may take place, and still neither punishment, nor so much as disrepute, follow.

Junction of the official person in question with a set of colleagues, in the form of a bench, a board, an assembly, a body corporate. In this case, the above three drawbacks operating in the same or different degrees of force, may all of them be found combined. By the consolidated power and influence of the whole body, each member is secured from punishment;—by multiplicity and privacy, each is even screened from shame—shame not seeing which to fix upon.

By the irresponsibility of the superior officers on the bench, or at the board, joined to the abstruseness of the matter and the non-publicity of the facts, in like manner in the situation of individual and subordinate officers under the bench or the board, falsity being screened from detection, thence from punishment and from disrepute, the untrustworthiness incident to the superordinate situation may thus extend itself to the subordinate functionary, who, being supposed to be sufficiently well looked after by his superiors, is the less looked after by the public eye.

Of the pitch to which, by the operation of the above-mentioned causes, testimonial untrustworthiness, in the case of an official body, is capable of being screwed up, the evidentiary instruments of which, under the technical system of procedure, the great judicatures are the sources, afford an example no less melancholy than instructive.

In no instance, perhaps, in the compass of the same quantity of testimonial discourse, is mendacity found in so large a proportion as in that sort of composition, which, under the name of a record, on the occasion of every suit at common law, is, or at least ought to be made up, and that under the direction of English judges. Undistinguishable from the flood of mendacity and nonsense in which it is drowned, what little of truth there is in it, serves rather to increase than diminish the deceptious quality of the whole mass. Whilst sinister interest has made up the false tale, and irresistible power has pronounced it superior to contradiction,* effrontery has not scrupled to ascribe to it a degree of infallibility* vying with that which, under the gloom of more mysterious terms, has been claimed by falsehood and nonsense on other ground, and in other shapes.

In few, assuredly, if in any instances, can mendacity have been employed to more pernicious purposes,—if so it be, that to depredation, to denial of justice, to oppression, to confederacy with dishonesty on both sides of the cause—confederacy not the less efficient for being so successfully disguised—all practised by dint of irresistible judicial power—the epithet pernicious may without impropriety be applied.

By the indignation of that public at whose expense it has been practised, immorality in so galling a shape should naturally, it may have been expected, have been long ago driven off the stage. But, the only situation from which any peep behind the curtain is obtainable, having naturally and constantly been filled up by interested supporters, and the unlearned spectators having been to such a degree deluded as to have been made to look upon the vice as being subservient or even necessary to justice,—hence it is, that instead of reproach, the immorality has ever hitherto been, and need little fear the not continuing to be, covered with applause.

If in no other sort of official situation the same causes of irresponsibility, as opposed to responsibility in the burthensome sense, and thence of testimonial untrustworthiness, are to be seen combined and operating with such mighty force; yet in many another official situation, howsoever in degree the effect may be inferior, in specie it can scarcely fail to be the same.

Sinister interest absent—thence impartiality perfect,—intellectual qualification competent—the information drawn immediately from the source, i. e. from the very seat of perception, and by the united power of the several securities for correctness and completeness extracted in the best shape,—these are so many requisites, the concurrence of which is necessary to the composition of a certain degree of testimonial trustworthiness out of office, it will scarcely be less necessary in office.

In the case of official evidence, so far as concerns that occasional use (which has above been distinguished by the name of the judicial,) not merely an ordinary, but rather a superordinary degree of testimonial trustworthiness, is, it must be acknowledged, the natural state of things. But, though most frequently, it cannot with any reason be expected to have place in every instance: and the error would be a mischievous one, if because, in ninety-nine instances, the application of those securities be not necessary to justice, in the hundredth, in which it is necessary, it were to stand prohibited.

The official recordator or deponent, has he anything to gain by misrepresentation? If yes, then so it is, that for the reason above brought to view, his statement is less trustworthy than that of an individual not in office, whose character is unknown.

So far as concerns official transgression in every shape, on the part of any official person belonging to the office,—so far, in the character of evidence, whether for the use of Edition: current; Page: [74] the administration-in-chief, or for the use of the judge, an official instrument or entry seems less likely to be impartial, and in so far less trustworthy, than a statement made by a person at large.

3. Trustworthiness in official evidence—how to secure it.—Included in the faculty of making the most effectual provision, in the best manner, for securing, in an official as in any other situation, the quality of trustworthiness to evidence, is that of forming a just estimate of the degree of trustworthiness actually appertaining to any given lot or article of such evidence.

In the following practical rules, an attempt is made to compass both those objects—the one of them through the other:—

Rule 1. In official as in other evidence, look out for the causes of inferiority or infirmity that apply, as above, to evidence at large;—viz. 1. Whether the matter of fact attested be not the principal matter of fact itself, but another considered as evidentiary of it;—in other words, the evidence not direct but circumstantial; 2. If the information there given be not original, note in this case, as well the nature and position as the number of the media interposed; 3. If original, note if not scrutinized or not interrogated; 4. Observe the trustworthiness of the witness or witnesses in question, viz. whether supposed percipient, directly reporting, or intermediately reporting, also if such trustworthiness be diminished, viz. by sinister interest, or by intellectual inaptitude absolute or relative.

Rule 2. If among the facts spoken to by the document, there be any, by the belief or disbelief of which, the interest of him under whose direction it is written may in any way be affected,—in this case, so far as depends upon impartiality, superiority of trustworthiness has no place,—inferiority rather.

Rule 3. On a judicial occasion, for avoidance of delay, vexation, and expense, official ready-written evidence may, though unsanctioned and uninterrogated,—or even a sufficiently authenticated transcript of it,—be in general received in that state: which is as much as to say, it may be considered as possessing the sort and degree of provisional trustworthiness sufficient for that purpose.

Rule 4. But if, on any of the grounds above mentioned, reason appear for suspecting it of deceptions incorrectness or incompleteness, the corresponding securities employed in other cases for perfecting and securing testimonial trustworthiness, ought not to be withholden in this case.

Rule 5. On the part of any party interested, the declaration of a desire to cause application to be made of those securities to the article of official evidence in question, ought to be considered as sufficient proof of the justness as well as of the existence of such suspicion; nor, except on the distinctly alleged ground of preponderant delay, vexation, and expense, ought it to be in the power of the judge to refuse it.

Rule 6. Although the trustworthiness of the individual in question be at the highest pitch, yet, for the purpose of relative completeness as well as correctness, interrogation may be not the less necessary.

Rule 7. Though in the case of this or that sort of official document, the information furnished by it be in a greater or less proportion constantly false, yet by such falsity, the utility of it in the character of evidence will not be destroyed, if by application of the appropriate instruments of extraction, true information be obtainable by means of it:—just as, from the mouth of a necessarily mendaciously disposed examinee,—for example, in a criminal cause, a guilty defendant,—false information assists often in leading to the discovery of true.

Rule 8. For the use of the administrator-in-chief and the legislator, for securing the correctness and completeness of the statements relative to matters of fact, look out on each occasion for percipient witnesses in competent and convenient number, and by them or one of them let their names in that character be written upon the face of the document: if in the character of supervisors the names of any other persons, not being percipient witnesses, be inscribed, let them in like manner be inscribed by the parties themselves, distinguishing the character in which such their attestation is subjoined.

Rule 9. In the case of a transcript, in a determinate place at the bottom of each page, let the scribe write his name, with the year, month, and day, and the word scripsit, or some word of the like import, at the end of it; and so if to the same page there be more dates or more scribes than one.

By this means, each scribe will be rendered responsible for the correctness of his script, and the quantity of service rendered by each will, upon occasion, be exactly visible.

Rule 10. In cases where, on a particular occasion, order for the writing of a script is given by this or that official person in particular; for fixing the responsibility upon that person, it may be of use that a designation of the person by whose order it was written should moreover be subjoined.

Rule 11. When, in case of error, correction is applied, let it be performed in such manner that the state of the script antecedently to the correction may still appear:—viz. in the case of omission, insert the omitted word in a place over the line, with a mark underneath: in case of redundancy, mark the redundancy by cancelling the word, but so as not to obliterate it: and in like manner, let Edition: current; Page: [75] substitution be performed by the cancelling of the one word, and the insertion of the other, as above.

In this way, without a direct and discoverable forgery, no alteration will be capable of being made to an unknown effect on an unknown occasion, by an unknown hand.

If the securing to evidence in general, in the most effectual manner, and in the highest practicable degree, the desirable properties of correctness and completeness, be a fit object of the legislator’s care,—so in particular will it be in the case of official evidence—in the case of all such evidence of which in any line of public office official situation is either the repository or the source.

For securing correctness and completeness, or in one word, trustworthiness, to evidence in this instance, what then shall be the means employed in this case? The same as are employed in the instance of other evidence.

But official evidence, being the evidence of official men, has, in official men, found the persons by whom the task of adjusting the course to be taken in relation to it has been executed: and with them the main object has naturally been rather to cause it to be regarded as invested in the highest degree with the respectable qualities in question, than to cause it to be really possessed of them.

Accordingly, though in the character of original information, in addition to what has been said, and what remains to be said under this head in relation to evidence at large, anything that could be said in relation to official evidence in particular, might, not without reason, be regarded as repetition and superfluity; yet in the way of memento, at any rate, if such as has just been intimated be the natural propensity to turn aside from it, it may not be altogether without its use.

Between evidence at large, and official evidence, one material distinction requires in this place to be held up to notice. In the case of evidence at large, the public functionary for whose use—and, in this case, for whose use alone—it requires to be collected, is the judge; the use made of it by the judge is not merely the principal use, but the only use to which, except in the collateral way above spoken of, it is applicable.

In the case of official evidence, on the contrary, whatever use may come to be made of it by the judge is but occasional, accidental, collateral. The person, from its reference to whose service it derives its most direct, most important, and only constant use, is the chief ruler of the department or combination of offices in question.

In this case, and in this situation, the mass of evidence habitually furnished by any such office is neither more nor less than the produce of the system of book-keeping pursued in that same office.

This being the case, what are the ends to which a system of that sort, considered in the most general point of view, and with reference to offices in general, ought to be directed?

Upon a second glance, this question will be seen naturally to divide itself into two branches:—

1. What is the general description of the operations themselves, that in the situation in question are habitually carried on?

2. What are the means proper to be employed for furnishing at all times a correct and complete conception of what has been the nature and character of those operations?

1. Answer—to the first of these two questions. In each department, and each office of that department, the system of operations carried on ought to be such as promises to be conducive in the highest degree to the end or purpose for which the department or office was instituted, and from which is derived the warrant for the expense charged on the public by and for its maintenance and support.

2. Answer—to the second of these two questions. In each department, and in each office, the mode of book-keeping pursued should be such as is in the highest degree subservient to the following ends or purposes, viz.—

1. To afford, by permanent documents, for the use of all persons having need to be made acquainted with the business carried on in the office, as clear a conception as possible of the several operations actually performed in that same office.

2. To present to view, in as clear and instructive a manner as possible, the relation which, in the way of subserviency, each such operation bears to the common end or purpose of the office, including, on the one hand, the nature and value of the service rendered by it; on the other hand, the labour and expense by which that service is purchased.

3. As to what concerns the persons whose labour is employed in the performance of the several operations,—to present to view, in like manner, a conception of the manner and proportion in which their respective labours, supposing them applied in the manner and quantity expected and required by the rules and constitution of the office, contribute to the rendering of that aggregate mass of service; also, a conception of the degree of punctuality with which such their respective duties are fulfilled;—or, to speak more precisely, of the quantity by which their respective labours respectively fall short of the quantity so expected and required.

In a word:—1. The merit and demerit of the system; 2. The merit and demerit of the several persons employed in the execution of Edition: current; Page: [76] it. Such, considered in the most general point of view, are the objects, to the display of which the system of book-keeping pursued in each department or office ought to be directed.

Considered upon the general principles of reason, so plainly obvious may these suggestions be apt to appear, that the number of them may be esteemed superfluous. Yes,—if they were as generally conformed to, as when considered in this point of view they appear obvious.

Unfortunately, their obviousness is not more conspicuous than, upon an inquiry into the actual state of things, the neglect of them will be found.

On every such occasion, custom, not reason, is the standard referred to; by conformity or disconformity to which, the propriety of every act and operation is judged of and measured.

Why? Because by every deviation from custom—by every deviation by which the improvement of the business, and the more perfect fulfilment of the public end and purpose of the office is aimed at, the private and personal interest of a proportion, more or less considerable, of the persons belonging to the office, is injured: for even if, by the improvement or supposed improvement, no emolument lawful or unlawful, avowed or unavowed, would be taken from them or any of them, additional labour in some shape or other cannot fail to be imposed.

§ 2.: Transactions of Judicial Offices.

Beside that which offices in general afford, judicial offices afford evidence of a sort peculiar to themselves.

That which, in a judicial office, is viewed ab extra under the name of evidence, is ordinary, not preappointed evidence. Of that which in this place calls for consideration under the name of judicial official evidence, or more shortly judicial evidence, that alone is preappointed, of which the office is not only the repository, but the source.

Instruments and entries: to one or other of these two heads will (it is supposed) be found referable the several constituent parts of the aggregate mass of this species of official evidence:—written instruments delivered in, and minutes or entries made of the several operations performed:—performed by the several actors in the judicial drama.

That which an instrument necessarily records and shows, is its own tenor, the date of it included:—those things which it does not of itself record,—are, the fact of its being delivered in, the date of the delivery, together with such other operations as may happen to be performed in relation to it.

From one and the same article of judicial official evidence may result, to so many different descriptions of persons, so many different uses:—I. To parties and their representatives, in respect of the suit on hand: of this sort are the uses which, in the present instance, fall under the denomination of the direct uses:—II. To persons at large, in respect of any future contingent suits, to the purpose of which, the same facts, or any of them, may require to be established: these may be considered as forming one branch of the collateral uses:—III. To the legislator, in the character of an eventual component part of that fund of information, the use of which is to serve as a basis for any such ulterior regulations, as from time to time may in his view promise to be conducive to the ends of justice:—and here may be seen another of the collateral uses of this species of evidence, viz. statistic uses.

I.—1. To form the ground for ulterior operations on the same or the opposite side;—2. To show whether the instrument or operation itself were proper or no, i. e. has been conformable to such rules as have been laid down for the composition or performance of it; 3. In case of impropriety, to afford a ground for the application of the matter of satisfaction or of punishment, or of both, according to the exigency of the case. Under this head seem cognizable the purposes to which, in the suit in question, the recordation of the instrument or operation promises to be necessary or subservient.

II. With regard to the future contingent suits of future contingent litigants, the best effect plainly is the prevention of their existence; the next best, the prevention as well of misdecision on the occasion of them, as of this or that avoidable portion of delay and vexation or expense to which they might otherwise have given rise.

Under the natural, under the tutelary system of procedure, the radical operation which at or near the outset, except in any such particular circumstances as may have rendered it physically or prudentially impracticable, will fall to be recorded, will of course be the appearance of both or all the parties, face to face, in the presence of the judge: thereupon the decision itself, viz. the final decision, or the circumstances which, creating a demand for delay, prevented for that time such decision from being pronounced.

Under the technical, under the predatory system—under the system which has had for its object and effect a too successfully disguised despotism, and under favour of it that aggregate of overpaid places and sinecures—that excessive and misapplied mass of emolument, of which the particulars, the services and the shapes, have elsewhere been displayed under this system of regulated pillage,* the Edition: current; Page: [77] performance of that essential operation having, in pursuit of those sinister objects, been universally eluded, the ulterior operations to be recorded have been all such as, for the profit extracted from and by reasons of the delay, vexation, and expense, pretences have been found for necessitating—a series to the intricacy and perplexity of which there is no end.

III. Statistic uses—Uses to the legislator.—Neither have these been altogether overlooked. A synoptic sketch of them has been prepared. But of any suggestions to the legislator, the practical use depends upon the existence of a legislator—a legislator disposed to put them to use. And while by the blindness or patience of the uncorrupted portion of the people, the legislator is suffered to continue to take for the sole object of his labours on this part of the field of law, the preservation of those abuses, in the profit of which he has secured to himself so large a share, the indication of these uses may with little practical loss wait for a period much more remote than the completion of any such work as the present.

Meantime, in a succeeding chapter of this Introduction, a slight exemplification of them may be found.*

§ 3.: Of Laws considered as constituting the matter of Preappointed Evidence.

Of laws, under any such heads as registration formalities, genuineness, fairness,—so far as by fairness is meant freedom from external violence,—nothing need here be said;—nothing that could be said would here be in its place: but under the head designated by the words existence, knowledge of the inducements to observance, knowledge of the particulars to be observed, thence, in a word, possibility of observance, analogy and consistency concur in forbidding, even in this abridgment, an altogether unbroken silence.

When, in token of adoption, and for the purpose of his being subjected to the obligations created by it, an instrument of contract is made to receive the signature of a party to it, unfairness, and not without reason, is apt to be imputed to the transaction, if adequate means of making himself at all times acquainted with the particulars of the obligations thus imposed upon him, had not been put into his hands. But if, in this case, by means of an act of adoption thus signified by the respective parties, the particular rules contained in and expressed by the individual instrument in question, acquire on this occasion, and now for the first time with reference to these particular parties and their legally connected representatives and other relatives, the force of law;—at that same time the general rules of law, under and by virtue of which, in consequence of the particular engagement thus entered into, the fate of the parties will be disposed of, and on which the whole of that engagement will have to depend,—must already be in possession of that same eventually binding force.

Be it an expression of private will, be it an expression of sovereign will, be it a discourse of any other kind,—for making himself more or less acquainted with their contents, a man has but two ways—to read them with his own eyes, to hear them with his own ears.

For reading or hearing read the particular rules just mentioned, possibility is not wanting: words have been found for the expression of them; these words exist, and existing, want nothing but to be read. For reading or being read those general rules, on which the effect of those particular rules so completely depends, possibility is wanting: words for the expression of them do not exist: words for the expression of them have been, and will continue to be, anxiously kept from existing: and words that exist not cannot be read.

In any domestic or private situation, in any other situation how public soever, of command, to the man who should expect to see his will conformed to,—to any such man, were he backward in giving expression to it, much more if, leaving it purposely unexpressed, he were to make effective provision for securing the infliction of suffering, under or without the name of punishment,—on every occasion on which such industriously concealed will failed of being conformed to, to any such man, not merely would wisdom be thought wanting, but sanity itself would be a questionable possession.

To the extent of a vast and indefinite portion of the field of law, so far from giving expression to his will in England, not to speak of other countries, the sovereign has not so much as set himself to form a will. But, instead of forming a will, and giving expression to it, what has he done? He has abandoned this part of his duty to a set of men, to whom, in the character and under the name of judges, his negligence, or his craft has left the power of doing what little is in such hands possible to be done towards supplying this deficiency—towards making amends for this failure. To these substitutes for executing this task with any tolerable degree of beneficial effect every requisite is, and ever must be, wanting—adequate knowledge, adequate motives, adequate power,—everything. The power, whatsoever it be, which by them is exercised, is power exercised, not as power exercised by the legislator is, over men and things in classes, but over individuals: over individuals, and in that form of tyranny which, with the character of tyranny stamped on the face of Edition: current; Page: [78] it, has become proverbial under the name of ex post facto law. Those general rules, from which alone it would have been in men’s power to receive notice and to take warning, it being out of the power of these pseudo legislators to give birth to; every step taken by them in this course is marked by unlooked for suffering—suffering in some shape or other inflicted upon individuals to whom the means of escape have been denied:—every step they take is followed, if not by the exclamations, by the pangs of the afflicted, whose peace and comfort are thus offered up in sacrifice to highseated and hard-hearted indolence.

In comparison of what it would be, if this first duty of the sovereign were not, by this grossest and most wide-stretching of all neglects, kept in a state of constant violation, the condition in which society is thus left, is as yet but a state of anarchy.

Till the collections of published histories of decisions, and thence of cases liable to call for decision, had attained a certain degree of copiousness and extent, the legislator (true it is) was not as yet furnished with the stock of materials necessary for such his work,—matters, in a word, were not ripe for it. But so long as this symptom of immaturity shall continue, government itself cannot as yet, with propriety, be said to be of full age:—the period of complete civilization cannot be said to be as yet arrived.

In the histories of future ages, that period will be dated—from what event? From the extirpation of the last remnant of that most voluminous and proportionably mischievous nonentity, which, with such perfect propriety in one sense, with such flagrant impropriety in another sense, calls itself unwritten law.

§ 4.: Of Debates in Legislative and other Political Assemblies in which Law is made.

Of the subjects which present a demand for contemporaneous recordation, and which as yet have not received it at all, or if at all, no otherwise than from precariously existing instruments, and in a more or less imperfect state, it would be too much on the present occasion to attempt giving anything like a complete list.

By the all-comprehensiveness of their extent, two sets of legally operative facts, however, seem on the present occasion to present a claim for consideration, such as, even in a work having for its subject evidence considered in its most general point of view, cannot consistently remain altogether unsatisfied. These are—

1. Transactions of those assemblies, of the manifestation of whose will, law in the state of statute law is composed.

2. Transactions of those persons and assemblies, of the manifestation or supposed manifestation of whose will, the ideally existing, but too really governing, nonentity called common law is composed.

In regard to both these important collections of legally operative facts, three observations present themselves:—

1. That, of these several collections of facts, as correct and complete a representation as the nature of the case admits, ought regularly to be framed and published.

2. That no such representation is actually made.

3. That representations, more or less incorrect and incomplete, are habitually suffered to be framed and published, and are habitually, i. e. frequently, though not regularly, framed and published accordingly.

Such being the matter of fact, thereupon come two altogether natural, and in no small degree interesting questions:—

1. How happens it, that no system of correct and complete, and thence undeceptive, representation has hitherto been established?

2. How happens it, that the system or practice of incorrect and incomplete, and thence deceptive, representation has now for a considerable length of time had place?

For these two questions, separate as they are in themselves, one and the same answer may serve: that answer being applicable with little variation to both cases.

Under all governments, the external operations of the governors have been carried on under, have been determined by, the internal and conjoint operation of two antagonizing interests:—a public interest coincident with the interest of the governed, and a separate and comparatively private interest of their own, acting in opposition to that public one.

The conduct of each member of the governing body will, on each occasion, be determined by that one of the two, on which the circumstances of the time and the idiosyncrasy of the individual, taken together, have concurred in bestowing the greatest degree of operative force.

In general, in the state of things in England in respect of government, while the private and personal interest of the members is still far from being brought so near to a conincidence with their public interest, that is, with their duty, as it might be,—in case of conflict, real or apparent, between the two, except in so far as an exception is made by a time of great public danger, the private and separate interest is that which, in the bosom of each individual, will find itself in greatest force, and it is by this that his public conduct will be determined.*

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Under a despotic government, this ascendency of separate over common, of private over public interest, finds nothing to counteract it: under a mixed government it finds a controverting power, an antagonizing and controuling principle, in the spirit of the people, operating with a force depending jointly on the share possessed by them in the government, and the degree of cultivation acquired by the public maid.

Under the English constitution, in so far as legislation and the exercise of supreme power is concerned, the governing body has two branches.

In each of them, except in so far as by correct and complete representation, reputation, and through reputation power, appears likely to be preserved or gained, it is the interest of each member that from correct and complete representation his speech and his vote should (as often, and in so far as it is likely to present itself to the public eye, as having been dictated by sinister interest as above described) stand as effectually protected and screened as possible.

In this view, the most favourable of all possible arrangements is that in which, being buried in utter and impenetrable darkness, as under the constitution of Venice, no representation at all is ever given of his discourse. From that point of perfection, the arrangement in relation to this head degenerates and falls off by numerous but difficulty distinguishable degrees, till it has sunk to that state of things in which, everything being represented exactly as it happened, every man (for in a political and deliberating assembly the only works are words) every man is by every other man judged of by his works.

At present, though in point of right, in so far as right is capable of being created by usage acting in opposition to manifest general interest, under the semblance and cloak of a representative body, of the members of which all are pretended to be, and some are really, deputed by the people they are said to represent, the country is governed by an oligarchy, in a proportion sufficient, could they agree among themselves, to substitute for the present constitution of England, the quondam constitution of Venice;—yet, on the other hand, in point of prudence, things are come to that pass, that so to order matters, as that, of the discourses there held, no representation at all shall transpire is, generally speaking, reputed either physically, or if not physically, prudentially at least, impracticable.

This point being given up, what remains is, so to order matters as that such representations as transpire should be, if not as far from being actually correct and complete, yet as far from being capable of being fixed upon and referred to as being correct and complete, as possible.

To the members individually, from this state of things results this manifest and great advantage of the discourses respectively delivered by them: whatsoever parts are found or expected by them to be productive of general disapprobation, may be, howsoever falsely (falsehood being by this means protected from complete disproof,) denied and disowned; while, on the other hand, whatsoever is found or expected to be productive of a contrary effect, is capable of being pourtrayed, not simply in its own proper colours, but in others as highly flattering as ingenuity can produce.

§ 1.: Demand for Recordation thus applied.

Oblivion and misrepresentation are the disorders to which the matter of discourse stands exposed; against which the art of writing, and that alone, is capable of applying a specific remedy.

Take any fact whatsoever,—suppose it to be of the number of those to which the law (which, for the purpose of the argument, must itself be supposed to be of the number of those, of the knowledge of which the tendency is, upon the whole, of the beneficial cast) has given a capacity of legal operation, as above described,—misrepresentation and oblivion are accidents against which, by the supposition, it is desirable that the fact should be secured, viz. for and during the length of time, whatsoever it be, during which it is desirable that such capacity of legal operation should continue: since it is only in so far as these accidents are arrested, that the intended Edition: current; Page: [80] operation of the fact can continue to have place.

In so far as (in the nature of it) to the several parties, or to any of the parties whose interests are in any way liable to be affected, and by them known to be liable to be affected by its legal operation, the fact is, in the nature of it, an object of previous expectation, a natural as well as possible attendant circumstance is—that by the joint care of the whole number of persons, or at any rate of a part of that number, the arrangements, whatsoever they may be, which, in the state of society in question, are in use to be taken for the prevention of those accidents, will be made.

Thus it is, accordingly, in that case which, among those which present a demand for preappointed evidence, has already been mentioned as the case of principal importance, viz. the case where the matter of fact thus requiring to be observed is the existence of a legal contract, of a certain purport and tenor, made on a certain occasion, in virtue and execution of a legal power possessed by a person or persons certain to that effect. Whatsoever, on an occasion of that sort, is about to pass, being, if not by all parties eventually about to possess, by all parties actually possessing, in conjunction with apposite power, an immediate and determinate interest in the result intended, and in consequence foreseen and looked for,—what is natural and usual is, that the customary and appropriate arrangements adapted to the purpose of fixation and conservation as above, should accordingly with joint concurrence be made.

But among the facts which eventually become possessed of a legally operative virtue, there exist many in number, and in the aggregate stretching to an unlimited extent, in respect of which any such regular and universally agreed sort of provision as is here in question, is either in the nature of the case impracticable, or in point of fact has never hitherto been made. Here, then, in the field of duty, may be seen another path presenting itself to the view of a provident and diligent legislator.

Upon the degree of success with which the application of the instrument of fixation in question has (in the case of a legally operative fact of any kind) been attended, the result of the operation of that fact is not less completely, and still more immediately dependent, than upon the nature of the fact itself. In so far as the state of the case is such, that in the provision made for this most important collateral operation, so it is, that among the persons jointly but oppositely interested in the seeing it made, it happens to any one or more not to have actually taken a part in the making of those arrangements, in the instance of every such person in whose instance such circumstance has failed to have place, a possible cause of partiality, and thence of deceptious and injurious incorrectness and incompleteness in regard to the representation given of the matter of fact in question, cannot, it must be acknowledged, but have place.

Here, then, is one cause of misrepresentation and consequent deception, to the operation of which every system of arrangements that can be devised for extemporaneous recordation, cannot but remain exposed.

But if, for the securing of so important a result, no means at all be employed, the consequence is, that the fact will remain exposed to every possible cause of misrepresentation, including the particular cause just mentioned, viz. not only oblivion, but misrepresentation, in so far as it is to so high a degree apt to have place, in cases where design has had no part in the production of it.

The consequence being, that for the extemporaneous recordation of miscellaneous and casual legally operative facts, any system of recordation is better than no system at all: and thereupon what remains for consideration is—by what sort of shape a system of arrangements, having this object in view, may be most effectually adapted to its proper ends.

Even under the existing system of exclusion, the particular cases of exclusion contained in it excepted, no man, how great soever may be in reality his trustworthiness, is either excluded or exempted from officiating, when the time comes, in the character of a deposing witness. There is no man, therefore, in whose instance, at the very moment, or as near as possible to the very moment of perception, it is not manifestly of use, that in so far as prudentially as well as physically it may happen to be practicable, it will not be, for the purposes of truth and justice, desirable that this specific against misrepresentation as well as oblivion shall be employed.

Suppose the security in question not applied, the testimony of the individual in whose person, in the character of a percipient witness, the capacity has place, of furnishing direct evidence of the fact, in the character of deposing witness, continues, down to the very instant of deposition, exposed, and without any more safeguard at one time than another, to the influence of whatsoever causes of seduction, and consequent deceptious incorrectness and incompleteness, the situation and interior character of the witness stands exposed. Suppose this security applied, and the representation thus given of the fact exempt in any given degree from deceptious incorrectness and incompleteness, then, and in this case, from the moment the memorandum in question has been placed out of his power, any sinister interest by which he might be prompted to give any such subsequent representation of the matter as should in any Edition: current; Page: [81] degree be, in point of correctness and completeness, inferior to such antecedent representation, would find in it a manifestly formidable and probably victorious body of counter-evidence.

§ 2.: Principle on which a supply for this demand may be grounded.

Happily, on this occasion, the legislator, if prepossession and bad habit will suffer him to avail himself of the means which offer themselves to his hands, will find his endeavours not ill seconded by the nature of the case.

Of every man by whom, with a view to any judicial purpose whatever, a mass of evidence is prepared, it is, or at least is thought by him to be, for his interest that such evidence should obtain credence: for without such persuasion the act thus performed by him would be without a motive—an effect without a cause.

The probability which the mass of evidence in question has of obtaining credence will be as the apparent and supposed trustworthiness of the person of whose testimony it is composed. Whosoever, therefore, is the sort of person who, by the person by or on whose account the evidence in question is in contemplation to be exhibited, is considered as likely to possess, in the scale of imputed trustworthiness, the highest place in the opinion of the judge,—he is the official person who, by the intended witness in question, supposing him to be known for such, is most likely to be employed.

These observations premised, taking therefore under review a number of official persons of different descriptions, such as in the existing state of society in question it happens to the official establishment to afford, let the legislator, in the instrument designed for the notification of his will in relation to this subject, set them down in an order declared by him to be the order of preference. This done, whosoever, without more vexation and expense, has it in his power to obtain this service of the official person whose name stands highest upon the list, will not, without some special reason or motive to the contrary, address himself to any person whose name stands lower upon that same list.

For the function of casual recorder (for by that name, it should seem, it may not unaptly be designated,) a justice of the peace, a member of the governing body in any corporate town, a minister of the established church—a minister of any dissenting congregation—a member of the financial establishment,—in a word, any person holding an office of any kind under the crown—a person exercising any branch of the medical profession—a person belonging to the profession of the law, in the character of either barrister, attorney, or student:—these may serve as examples of classes of persons, who, in respect of probable trustworthiness, intellectual aptitude, and aptitude on a moral account, consideration of pecuniary responsibility included, might in the list of the law be proposed for choice.

On this, as on all other occasions, substituting to the principle of nullitication the principle of declaration of suspicion, the legislator may declare, that if of two persons, both open to a party’s choice, the one who is manifestly the most fit be set aside, the one least fit employed in his stead, in the undue preference thus given, a natural and justifiable cause of suspicion will be observable: whilst in the mind of him, whosoever he may be, to whom, on the occasion in which the preappointed evidence thus recorded is produced, it happens to officiate in the character of judge, its probative force will naturally and properly undergo a proportionable diminution.

By persons in any number, none of whom have been the objects of such choice, should the same functions be undertaken and performed, no inconvenience, no confusion, no difficulty, will ensue. Under the principle of nullification, yes;—difficulties innumerable, infinite, and each of them insuperable: of all these extemporaneous registers, all but one would be to be pronounced void; one, and one alone, good: which shall it be?

By the law as it stands at present, of these persons, they being by the supposition all of them percipient witnesses—there is not one, how little soever trustworthy, who would not, in the event of litigation, be liable to be called upon to testify in the character of a deposing witness: but with this check upon intentional, as well as support against unintentional incorrectness and deceptious incompleteness (or in a word against misrepresentation,) be his trustworthiness ever so low in the scale, there is not one of them whose trustworthiness would not by this security be raised to a higher level than what it would otherwise occupy.

No doubt but that, under this arrangement, and notwithstanding this arrangement—say even in consequence of this arrangement—so it might be, that on this or that occasion, for this or that purpose, in the shape in question, the sort of preappointed evidence in question might be fabricated. But what if it were? Being by the supposition false, and in point of intention of a deceptious tendency, the being an object of suspicion is a lot from which it would never find so much as a possibility of escape. Any plan of intended deceit,—where, then, is the advantage which, from the proposed arrangement in question, it would be possible for it to receive? Suppose no such means of fixation in existence; without it, the length of time during which a plan of fabrication may carry on its operation free from suspicion, is the whole time that intervenes Edition: current; Page: [82] between the moment at which the matter of fact has place, and the moment at which, if at all, it is taken for the subject-matter of judicial deposition: suppose the plan in question established, no sooner is the simple fact, viz. that by the person or persons in question, in relation to the transaction in question, at the place and time in question,—a minute has been made, than in the breast of all persons, to whom it happens to possess or take any interest in the affair, suspicion springs up, and all scrutiny that could be wished for, with all its force.

At the same time it may be observed, that if any such article of fabricated pre-appointed evidence were not communicated to the parties interested in it, at or near to the time at which the event to which it purported to relate took place, it would scarcely have the least chance of being received as evidence.

§ 3.: Precedents from English and French Law.

In the English code, by several statutes of old date, in some cases of delinquency, the disorder being of the chronical cast,* power is given to a justice of the peace to repair to the spot, and taking his observation of what passes, to commit to writing the discourse expressive of such observations; and to this written expression so given to such discourse, the statute gives the name and effect of a record.

Of the principle here in question, a sort of exemplification, such as it is, may be seen in those antique, but not altogether ill-imagined laws. But of the boundless ocean of possible legally operative facts, the provision thus made amounts not, in comparison with the whole of that boundless ocean, to more than one drop.

Under French law, before the revolution, this same practice, or, as it might be said, this same principle, had received a very wide extension.† Wheresoever, in the case of any species of transaction, lawful or unlawful, a judicatory could be assigned, under the cognizance of which, the nature of the fact considered, it might be reasonably expected to come, in general a judge belonging to that same judicatory—in particular cases an official person of a different description—had by some statute or other been designated, whose duty it had been made to repair to the scene of action, and there upon the very spot to make a sort of statement, or record or report, of whatsoever material facts presented themselves to his senses in the character of a percipient witness.

A record of this kind was termed a procès-verbal,—verbaliser was the verb by which the act of making it was designated. In the character, as was sufficiently manifest, of a security against misrepresentation, as well intended and studied, as casual and unintended, such was the importance attached to the circumstance of promptitude, that by a general rule it was provided that every such statement should, from beginning to end, be committed to writing upon the spot.

Such was the rule; though for enforcing it the punishment employed was, as usual in such cases of official delinquency, of the misseated kind. The sort of punishment distinguished by the term nullification: the official person the offender, the person punished, not he but this or that individual by whom the offence could neither be committed, nor could have been prevented.

In all these instances, as, time and place being considered, might well be expected, power has gone much beyond the mark, at least beyond the mark which, in the above suggestion, has been stated as the proper one.

In the oldest of the two English instances, a single justice of the peace, to the function of witness percipient, and thence deposing witness as therein appointed, is made to add that of judge, sole judge; and from the judgment so passed by him, no appeal is allowed.

In the next, still the same accomplished despotism: only, instead of its being given in an entire state to one, it is divided among three.‡

Under French law, in several of the instances, those of tax-gatherers in the number, the sort of preappointed evidence thus framed was required to be received in the character of conclusive evidence. In this way, saving possible contestation between A and B, which of them should be considered the one true man, the power of the judge was, though in a disguised state, and under another name,—and but the more effectually for being disguised,—bestowed upon the witness himself.

By application to a court of equity, you in certain cases have an examination of witnesses in perpetuam rei memoriam.

By this instrument, in so far as the use of it extends (for the not giving to it a wider field of action has been an oversight,) the purposes of the inventors are served with the usual fidelity: those of justice, and whoever has need of justice, with the usual faithlessness. Edition: current; Page: [83] In regard to the field of action, its limits are the same as those of a court of equity. Whatsoever may be the limits of a court of equity? No; not exactly so, not quite so extensive:—file your bill, and one of these days, and in your own particular case, some day or other, you will know, or you will not know, what they are. Delinquency, at any rate, delinquency is not included in them in any: say rather—for this is always safest—is included in them, if at all, scarcely in any of its shapes.

Be the purpose what it may, to this purpose, says the Practical Register in Chancery, a book in its day of high authority, no witnesses shall be examined but the aged or impotent. By this time, very likely it may be in some cases* otherwise; but in so far as it is so still, note the result. A remedy allowed, and the application of it confined to a state of things in which, upon the face of it, the probability is, that the purpose will not be answered by it.

If he be not impotent (whatever may be here meant by impotence,) the person must be aged:—would you know whether your wished-for witness be sufficiently aged? If you have a few hundred pounds more than you know what to do with, file your bill: and if you should happen to outlive the suit, you may perhaps know. Would you wish to know before your money is spent? Apply to the nearest astrologer: for five shillings he will give you as well-grounded an assurance as it is possible for any learned adviser to give you, for as many guineas.

Wheresoever quantity is concerned, it is among the properties of judge-made law—equity shape, as well as common-law shape—to be incapable of drawing lines; i. e. in other words, of serving in any person’s case in the character of a guide—of guide to that action of which it calls itself the rule. This happy incapacity is interwoven in its very essence: and in this, which is but one out of several circumstances, any one of which would suffice for rendering it radically incapable of answering its intended purpose, may be seen one of the attributes by which it is rendered so lovely in the eyes of its professors, and so oppressive to all those upon whom application is made of it.

§ 1.: Derivative Recordation or Registration, its uses.

A contract (suppose) is entered into,—an agreement—a conveyance—a last will made,—the dispositions of which it is to consist settled,—the words expressive of those dispositions committed to writing:—the operation of writing finished, the paper, parchment, or other substratum, on which the written characters stand expressed, becomes thereby an instrument of contract. This done, by this same operation, a sort of recordation, which may be termed original recordation, is performed. Grounded on this, deduced from this, any act of recordation or registration (for the terms are synonymous, or nearly so) may, with reference to it, be termed derivative;—and, in so far as the words of the original are copied without variation, transcriptious: as to the uses of this operation, considered in a general point of view, it will be seen that they bear a necessary reference to the different descriptions of persons, in favour of whom, or at the charge of whom, the operation, and its product, may be attended with effect.

1. To parties and their representatives, it may be of use, for security against any of those accidents to which, in private hands, it is the destiny of such originals to be exposed.

2. To third persons, the principal use is as against parties and their representatives; the third persons in question standing, or having it in contemplation to stand, in the relation of creditors or purchasers to one or more of the parties.

To an extent more or less considerable, the ground of pecuniary credit being necessarily composed of the style and mode of living, and apparent habitual expenditure of the party to whom credit is given, the use here is—to preserve creditors from those frauds and disappointments which have place when the property to which they trusted is clandestinely dissipated, or without equivalent transferred to other hands.

Not to speak of those financial uses, which, in so copious a stream, have under all governments been derived from this source,—in the character of collateral uses, those above mentioned, under the appellation of statistic, are too obvious to require in this place any further notice.

§ 2.: To what Instruments applicable.

To what instruments is this process applicable? Understand always with preponderant advantage. Answer: To all in general, saving exceptions grounded on special reasons.

And those reasons,—what are they?—Answer: Delay, vexation, and expense. On this, as on so many other occasions, by these instructive words the instrument is presented, by which, and by which alone, the line can ever with propriety be drawn between what is useful, considered with reference to a particular purpose, and what is useful upon the whole.

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On the one hand, the services capable of being rendered to justice by this operation being understood;—on the other hand, the mass of collateral inconvenience, of which delay, vexation, and expense, are the component elements, being also understood:—which of the two quantities is to be deemed preponderant? Under the head of delay may be considered, either the mere consumption and loss of time (which, however, in the case of a person depending, as do the bulk of mankind, for subsistence on some profit-seeking occupation, is equivalent to expense,) or inconvenience in the same shape, with the addition of any such losses and disadvantageous incidents (including loss of opportunities of positive gain,) as may be liable to take place within the compass of that same portion of time.

To the head of vexation, inconvenience in those same shapes may, with still more direct and obvious propriety, be referred, if the effect alone being considered, the circumstance of time, considered in the character of the cause, be laid out of the account. So far as it comes under this description, the vexation liable to be found included among the results of the operation in question, may be termed vexation at large.

Vexation, in a shape in which it may be distinguished by the appellation of special vexation, is that which, in the sort of case in question, is liable to be produced by disclosure: disclosure of the pecuniary and other domestic and private concerns of the parties interested.

As affording an instance, in which, partly in respect of delay, partly in respect of vexation at large, the inconvenience resulting from the operation in question seems to be in a pre-eminent degree likely to be found preponderant, three species of contracts may here be brought to view:—draughts on bankers, bills of exchange, and circulating promissory-notes.

As affording an instance in which, in the shape of special vexation, the sort of disclosure inseparable from the operation is liable to be productive of inconvenience, and that inconvenience to be, or at least to be thought to be, preponderant, the case of last wills may, in like manner, be brought to view.

§ 3.: The obligation of Registering, how enforceable?

Where the performance of this operation is thought fit to be rendered obligatory—as, saving exceptions such as the above, in all cases where, for want of it, creditors or purchasers are liable to be defrauded, it surely ought to be;—by what means shall the fulfilment of the obligation be provided for?—and, in particular, shall nullification be of the number of these means?

Here, as elsewhere, the answer will depend partly upon the facility given to the operation, partly upon the certainty of the obligation being present to the mind—to the minds of those on whom, in case of non-fulfilment, the burthen of the suffering which results or is made to result as a consequence from such failure, comes to be imposed.

Sometimes improbity, more frequently indolence, perhaps indolence or negligence, are the obstacles which the obligation will have to contend with.

Employing punishment to surmount the obstacle, common honesty, under the guidance of common sense, naturally would apply the remedy to the person of that individual, and that individual alone, in whose transgression the mischief found its cause. Different, far different, has been the course taken by English lawyers. The transgression (it is manifest) is the transgression of the professional agent, manager, and adviser, leaving him untouched, nullification, instead of that, casts the punishment in every case upon some individual or other in the character of a client—upon him in whose instance ignorance and guiltlessness are always natural, ignorance, generally invincible and unavoidable—upon him, or his still more helpless representatives.

Not that even upon the transgressing law-adviser the punishment would be just, unless the directions were so clear, that without improbity or culpable negligence on his part, transgression could not have place. But, if the directions be not intelligible, or not so much as communicated to the professedly learned few, how should they be known to the ignorant and helpless multitude?

§ 4.: The Function, by whom performable.

If in England, as before the revolution in France, the professional agent, manager, and adviser, were, under the name of the notary, considered upon the footing of a public officer, his office might of itself with great facility be rendered, to the purpose of all instruments in which he was concerned, a sort of register-office;—in that case, and for that purpose, appropriate forms of book-keeping might by law be prescribed to him, with apt penalties in case of non-observance. Transmitted from these dispersed and occasionally ambulatory offices, to a fixed central one, duplicates would at the same time serve to secure compliance to the regulations, and minister to the general statistic purposes.

In proportion as the law of contracts was rendered determinate, intelligible, and clear, parties would be enabled, and naturally disposed to exempt themselves from the expenses of calling in, as at present, the assistance of a professional notary, or the humiliation of begging that of an honorary one. But if among the instructions contained in the printed border Edition: current; Page: [85] of the promulgation-paper, on which the contract is here supposed to be written, the non-appearance of the name of a notary on the face of an instrument were set down as a cause of suspicion, the custom of taking the benefit of such assistance would scarcely, in that case, be expected to lose anything of that constancy which belongs to it at present.

And surely, if by fixation and simplification of the service, as above proposed, the quantum of the remuneration were confined within the bounds of that moderation, of which, in the nature of the case, it is not unsusceptible, the expense, considering the degree of security that might be attached to it, is such as need not be grudged.

§ 5.: Quantity of Matter to be entered in the Registry.

Of the matter of each such instrument, what portion shall be subjected to this process? Here again, for the answer, recourse must be had to the so often mentioned triad. But for that cluster of opposing considerations,—the whole;—these considerations taken into the account, such parts as are called for with a predominant energy by the respective uses above indicated.

Meantime, in and by this answer, on the part of an instrument of the kind in question, the supposition of the existence of distinguishable parts is involved. Unfortunately, any more than a mathematical point, a chaos has no parts. To be in respect of, and to the extent of, such and such of its parts, subjected to registration, an instrument must in its form be composed of parts capable of being distinguished, denominated, and numbered: but, in the compound of mendacity, surplusage, and misrepresented truths, in which, in an instrument of contract in the English style, the small proportion of efficient matter, to keep it from being intelligible to those whose everything depends upon its being understood, is dissolved and drowned, effectual care has been taken that there shall be no parts.

§ 6.: Means of securing Transcripts against Error.

To possess so much as a single transcript exempt from the possibility of error, is a blessing which not many centuries ago would have been pronounced fabulous. Means of realizing this prodigy to any extent have now, for some years, been in familiar use. In three perfectly distinct modes has modern ingenuity furnished the means of producing this desirable effect.*

If in the article of dispatch the advantage should in the instance of these ingenious inventions, any or all of them, be found to fall short in any degree of what at first view might have been expected, the advantage in respect of authenticity and security surely is of that sort from which no defalcation can be to be apprehended from any the severest scrutiny.

This is not the place for any such thing as an exposition in detail of the facilities that might thus be afforded to the business of derivative registration;—moderate is the share of reflection that would suffice, it is supposed, to render it superfluous.

§ 7.: Registrar’s duty in respect of Registration.

In so far as the interest of creditors is concerned, the extent given to the application of this instrument of security will depend upon, and be in proportion to, the degree of probity that has place in that governing body, on which the condition of the aggregate mass of the community, on this and so many other particulars, depends.

Unfortunately, in this country it has been found composed in no small proportion—and that (strange to think) upon trial actually a preponderant one—of men in whose eyes the faculty at least, if not the art, of carrying on the operation of swindling with effect and impunity, upon a large scale, was too valuable to be parted with.

Under the English law of property, for the joint convenience of the members of the predatory profession, and of the fraudulently disposed individuals of the higher orders, so happily are matters disposed, that, on condition of giving to his property a certain shape,—on condition of laying out the profits of dishonesty in the purchase, for example, of land,† or even keeping his property in that shape,—a man finds himself, to an unlimited amount, empowered by law to cheat his creditors:—By rich men calling themselves Christians, with the countenance and protection of men of law calling themselves Christians, jewels of gold and silver are borrowed, and Christians are legally and regularly spoiled without redress.

Not many years ago, the question was fairly put. Noble lords and honourable gentlemen—shall they, as well as trading men, continue in possession of the means of cheating their creditors? The answer was: Trading men, no:—but in the hands of noble lords and honourable gentlemen, the power of cheating—the jus fraudandi—was a privilege too valuable to be parted with.†

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By any system of registration, in proportion to the extent given to it, the swindling licence thus established and confirmed would, it is manifest, be proportionally trenched upon and infringed. Under the principles, the triumph of which was on that occasion displayed, it may be imagined what sort of reception a plan of general registration would have met with.

§ 1.: Modes of Exclusion, positive and negative.

Shall it be admitted?—shall it be excluded? Be the supposed article of evidence what it may, these more especially under the practice at present established, will naturally be the first questions that will present themselves in relation to it.

If admitted, then come those other questions which have formed the subjects of consideration in the preceding parts of this work.

If excluded, then come two other questions—two all-comprehensive questions—viz. In what cases?—and, in the several cases, for what causes?

Modes of exclusion—what are the different modes or means, in or by which the effect thus denominated is capable of being produced? Answer: Two: and, from each other they may stand distinguished by the adjuncts, positive and negative:—

1. In the positive mode, the exclusion may be said to be produced when, though it were proffered, the evidence would not be suffered to be delivered.

2. In the negative mode, the effect of exclusion may be said to be produced, in so far as the means necessary to the obtainment of it are, either purposely or by negligence, omitted to be employed.

As to the cases in which, whether by or without design, the negative mode of exclusion has place, these may, if not all of them, at any rate the most prominent among them, be comprehended under the term non-compulsion.

The case being such, that in the character of a deposing witness, the services of the individual in question, if rendered, would or might have been conducive to the proof or disproof of some matter of fact which is in question, and thereby to the forming, in relation to such matter of fact, a right persuasion and consequent decision on the part of the judge, and that, in and by the application of compulsory means, those services would or might have been rendered, but for want of them have not been rendered,—the employment of such means has by the judge been, or if applied for would have been purposely forborne.

Of this description is that which forms at least the most prominent case of negative exclusion; and which, at any rate, under the head of exclusion, there will in the course of this work be the most frequent occasion to bring to view.

§ 2.: Mischiefs liable to result from Exclusion put on Evidence.

In every case that can be imagined—on every supposition that can be framed, whether the exclusion be or be not upon the whole conducive to the ends of justice, a distinct view of the mischiefs of which it is liable to be productive, cannot be without its use.

That by exclusion put upon evidence, mischief is not incapable of being produced, will not to any person be matter of doubt: the exclusion of all evidence would be the exclusion of all justice.

An article of evidence being given, the nature of the mischief resulting from the exclusion of it will be found to depend upon and be varied by the following circumstances:—

1. In relation to the matter of fact in question, the cause or suit, does it or does it not furnish other evidence of a nature to operate in favour of the same side?

2. The side from which the support, that would have been given to it by the evidence thus taken away—is it the plaintiff’s side of the cause, or the defendant’s?

3. The cause, is it of a penal or a non-penal nature?

By the changes of which these three causes of variation are susceptible, the variations of which the nature of the mischief is susceptible will stand expressed in the eight following cases:—

Case first:—1. The excluded evidence the only evidence on that side.

2. Side deprived of the support, the plaintiff’s or prosecutor’s.

3. Nature of the suit penal. Mischievous result, a virtual licence to commit crimes and transgressions of all sorts, in the presence, as well as upon the persons, of all such individuals to whom the cause of exclusion applies.*

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Case second:—1. Excluded evidence, as before, the only evidence on that side.

2. Side deprived of the support, the plaintiff’s as before. Nature of the suit, now non-penal. Mischievous result, a virtual licence to every man to frustrate every other of all rights, for the giving effect to which the aid of the judge is necessary:—a licence granted in violation of the general engagement taken by the sovereign, in virtue and by means of the several articles or rules of substantive law, by which those rights were respectively created and conferred.

Case third:—1. Excluded evidence, as before, the only evidence on that side.

2. Side deprived of the support, now the defendant’s.

3. Nature of the suit, now again penal. Mischievous result, a power,—though, when exercised, not quite so sure in its operation as in the two former cases,—a power to every one who, to the purpose in question, is disposed to act, or willing and able to engage any other person to act for him in the character of a mendacious and falsely criminative or inculpative witness, to cause innocent persons in any number to be convicted of, and be punished as for crimes or other transgressions, of any sort and in any number, at his pleasure.

The mischievous power not quite so sure in its operation in this case as in the two former. Why? Because, whereas in those cases, for the production of the mischievous effect, a mere negative state of things suffices, viz. the non-appearance of a witness; in this case a positive cause, viz. the operation of some person in the character of a witness is necessary;—in which case, by means of counter interrogation, with the benefit of such other of the securities against deceptious incorrectness and incompleteness as operate in conjunction with it, detection will always be more or less liable to be produced, and thus the intended mischievous effect of the mendacity, and of the exclusion put upon the evidence that would have been opposed to it, destroyed.

Case fourth:—1. Excluded evidence, as before, the only evidence on that side.

2. Side deprived of the support, now again the defendant’s.

3. Nature of the suit, now non-penal. Mischievous result, a power, though under the same limitation as in the former case, to subject persons in any number to be unexpectedly loaded with undue and burthensome, so they be not penal obligations, to any amount and extent, including, in the case of each such person, the loss of everything he has; and this, so far as concerns such things as are in their nature transferable, to the profit pro tanto of any person by whom this mischievous power is exercised.

Cases 5, 6, 7, and 8:—The same as cases 1, 2, 3, and 4 respectively, except that the excluded evidence is not the only evidence on that side.

In all these several cases, the probability of the mischief which the exclusion tends to produce is of course less than in the corresponding former cases, diminishing in proportion to the number of witnesses whose testimony, not being comprehended in any principle of exclusion, is accordingly admitted.

On the other hand, in all these several cases, in whatever proportion the probability and danger of mischief, in any of those its forms, is diminished, in that same proportion, on the supposition that, from the admission of the excluded evidence, preponderant danger of deception, and thence of misdecision, would have been produced, is the amount of such danger, and thence the utility of any such exclusion, diminished likewise.

Upon the whole, the result is—that the effect, or tendency at least, of exclusion put upon evidence, is—to give encouragement and increased probability to criminality, and delinquency, and transgression, and wrong, in every imaginable shape: and thereby, except in so far as any specific and adequate countervailing benefit can be seen to be produced by it, to give increase as well as birth to human suffering, in almost every imaginable shape.

On this subject, that which, in the course of the succeeding pages, will, it is supposed, be made sufficiently apparent, is—1. That, in the shape of delay, vexation, and expense, cases may have place, in which, by means of exclusion of evidence, mischief to a greater amount than what is produced by exclusion put upon that same evidence, may be saved.

2. But that, in the shape of mischief producible by misdecision through the medium of deceptious evidence, no saving in the way of mischief can in any case be reasonably expected to be made by exclusion put upon evidence: for that, in every case by exclusion, misdecision for want of evidence is more likely to be produced, than by admission, misdecision through deception and by means of evidence.*

§ 3.: Principles respecting the Exclusion of Evidence.

The mischiefs liable to be produced by the exclusion of evidence have been brought to view. These notwithstanding, cases will be brought to view, for which exclusion, it is believed, will in some instances be found to be proper; viz. as being subservient, upon the whole, to the proper ends of justice, on the occasion of judicature. But if in these cases proper it be, it is because the exclusion, it will be found, is a necessary result of certain measures which will be seen to be indispensably prescribed by a regard for certain of those ends, viz. those collateral ends, which are so unfortunately liable to be found acting in the character of antagonists to the direct ends.

Not that in these, any more than in any other cases,—taken by itself, the exclusion of material evidence is a desirable result,—a result in itself subservient to any of the ends of justice; but that, in the cases here in question, it is an effect of which, though in itself evil, the production is necessary to the exclusion of some evil of still superior magnitude.

In itself, and abstraction made of its consequences, exclusion of evidence is as far from being proper as infliction of punishment is: but forasmuch as for the exclusion of still greater evil, evils under the name of punishment, to so unhappily ample an extent, not only may be, but must be produced, so for the like cause, though to a much narrower extent, evil by exclusion of evidence not only may be, but in some cases ought to be.

On the occasion of the receipt of evidence, as on any other occasion, the following rules will, it is hoped, be found neither altogether devoid of practical use, nor in any respect open to dispute:—

1. Produce not a greater evil in pursuit of the means of excluding a lesser evil.

2. Exclude not a greater good in pursuit of the means of obtaining a lesser good.

3. Produce not any preponderant evil in pursuit of the means of obtaining any good.

4. Exclude not a preponderant good in pursuit of the means of excluding any evil.

These rules being taken for a standard and a guide—for a standard of reference, and for a guide to practice—are any cases to be found (it may be asked,) in which exclusion put upon this or that article of evidence would be conducive upon the whole to the ends of justice? Answer: Yes; beyond doubt there are. Question: What are these cases? Answer: All such cases in which, in a quantity preponderant over that which would be produced by such exclusion, a mass of evil, composed of any of the evils in the avoidance of which the ends of justice respectively consist, would be produced by admission given to that same article of evidence.

Of which soever of these evils, viz. misdecision on the one hand,—delay, vexation, and expense on the other—in the whole, or in part,—the apprehended disease consists;—in either case, in so far as admission given to evidence is the cause of the disease, exclusion put upon that same evidence operates, of course, in the character of a remedy; and in so far as delay, vexation, and expense, is the disease, it is the only remedy.

But in relation to those two different species of disease, its efficacy exhibits a difference, which in respect of its practical importance will be seen to have the highest claim to notice.

Misdecision is an evil, for the prevention of which, in favour of either side of the cause, by the application of the exclusion in question in the character of a remedy, no chance (it will be seen) can ever be obtained without producing in all cases a greater chance, in some cases a certainty, of producing that same disease, to the prejudice of the opposite side of that same case.

On the other hand, against delay, vexation, and expense, in so far as produced by the exhibition of evidence, exclusion put upon that same evidence is a complete and sovereign remedy. Against misdecision to the prejudice of one side, exclusion of evidence cannot be employed without producing a greater probability of it to the prejudice of the other side:—against delay, vexation, and expense, to the prejudice of either side, it may be employed—not indeed always without producing a greater or less probability of misdecision, but always, unless by some extraordinary accident, without producing any chance at all of preponderant, or so much as any additional evil in the shape of delay, vexation, and expense, to the prejudice of either side.

To the distinction that is thus pointed out, the circumstance that gives importance is this. In the pharmacy of the man of law, especially under English law, it is in the character of a remedy against misdecision that this species of purge has been almost exclusively employed;—and in this character prodigious is the extent in which it will be seen to Edition: current; Page: [89] have been employed:—against delay, vexation, and expense—diseases to which, in so much superior, not to say in an exclusive degree, it will be seen to be applicable with advantage—in this character, scarcely any application, it will be seen, has been made of it.

§ 4.: Causes for which Exclusion is always proper.

This being premised, for the purpose of the question,—in what cases and for what causes is or may the exclusion of evidence be proper—in what cases and for what causes improper,—a primary distinction that will require to be made, is—that between such evidence as is either irrelevant or superfluous on the one hand, and such as is neither irrelevant nor superfluous on the other.

As to irrelevancy:—Of a portion of discourse tendered in the character of evidence, to say that it is irrelevant, is as much as to say that, with relation to the fact in question, it is not evidence;—it does not possess the character and qualities of evidence. But inasmuch as it not only is, by the party who tenders it, brought forward in that character (for this it is by the supposition,) but until it have been more or less examined into, may, upon the face of it, be not altogether unapt to wear in appearance that same character,—an appellation of some sort or other will still be necessary to distinguish it from any such matter as has no pretension at all to the character of evidence: and to this purpose, the word evidence itself is rendered competent, when the adjunct irrelevant is added to it.

As to superfluity:—Of a portion of discourse tendered in the character of evidence, to say that it is superfluous, is as much as to say (supposing it admitted,) not indeed that it is not evidence, but (what comes to the same thing) that, if added to that mass of other evidence with relation to which it is considered as superfluous, so it is that, under the existing circumstances, it would not be itself capable of producing, or contributing anything to the production of, the effect of evidence. Thus, though evidence may be superfluous without being irrelevant, it cannot be irrelevant without being superfluous: and thus, under the more extensive denomination of superfluous, irrelevant evidence may occasionally be included.

In respect of the nature of the mischief to which it is their tendency to give birth, the two qualities, irrelevancy and superfluity, stand in some respects upon the same—in other respects, upon a somewhat different, footing. Of the several evils correspondent and opposite to the several ends of justice, there is not one to which irrelevancy is not capable of giving existence. On the mind of the judge, in the first place, perplexity and hesitation: thence, to the parties, but more particularly to the party in the right, delay, vexation, and expense:—delay, vexation, and expense, after the production of the superfluous evidence, viz. while the time of the judge is occupied by the consideration of it.

Of this mass of evil, though the maximum may be very considerable, the minimum may be next to nothing:—but a mass, the quantity of which will be always more or less considerable, is that which has been generated by and during the production of the irrelevant evidence. Thus much as to delay, vexation, and expense. But in the mind of the judge, by irrelevancy in the evidence, not only perplexity and hesitation, but deception, and thence misdecision, are capable of being produced.

When, without being irrelevant, the evidence is but superfluous, in this case, so far as concerns the delay, vexation, and expense, incident to the task of production, quantity for quantity, it stands upon the same footing as so much irrelevant evidence: and so, perhaps, as to what concerns vexation on the part of the judge. But as to delay resulting from perplexity, and danger of misdecision through deception,—of the evils liable to be produced by irrelevant, these seem scarcely liable to be produced by merely superfluous evidence.

By accident there is scarcely any sort of evidence to which it may not happen to be superfluous: but a species of evidence, of which, except in particular circumstances, it is of the essence so to be, is that particular modification of unoriginal make-shift evidence which has above been brought to view under the name of hearsay evidence.

The following are the particular circumstances just spoken of, by which that species of information, which, generally speaking, will be superfluous and useless, is capable of being rendered serviceable. One is—the non-existence, or non-obtainability, physical or prudential, of all evidence of a more trustworthy complexion from the same source: viz. in case of hearsay evidence in general, the non-existence of that original evidence in which it had its source:—in the case of hearsay evidence of a more distant remove from the original, the non-existence of non-original evidence of a less distant remove.

The other accidental circumstance by which hearsay evidence is capable of being taken out of that state of superfluousness and uselessness which is most natural to it, is where evidence supposed to be derived from the same original source, and from a station nearer to that source, having been delivered, the supposed derivative evidence is called forth, and made to serve in the character of a test of correctness and completeness, and thereby as a security against deceptions incorrectness Edition: current; Page: [90] and incompleteness, on the part of that same anterior, or supposed anterior, evidence.

The account given of the transaction in question, by him who now in relation to it appears in the character of a deposing witness, and who, in relation to this same transaction, was at the time, if this his account be true, a percipient witness,—is it consistent with all such other accounts as it has happened to him to give of that same transaction at any other times? On the one hand, the pertinency of this sort of question—on the other hand, the needfulness of hearsay evidence, as presenting the only sort of information by which an answer can be given to it,—are points not only manifest to reason, but recognised in judicial practice.

The other distinct modification of unoriginal or derivative evidence, is transcriptious evidence. Exists there a case in which, to the purpose of a question concerning the genuineness of a supposed original written instrument, it is in the nature of a supposed or acknowledged transcript to be capable of being rendered serviceable? Answer: Yes;—for example, where, in relation to the supposed original, a suspicion has place, that, subsequently to the making of the transcript, it has been falsified. But, in comparison of the number of instances in which the demand for hearsay evidence on this ground is wont to present itself, that of the instances in which the demand for transcriptious evidence on this same ground can be expected to present itself, will of course be extremely rare.

Note, that in the case of hearsay evidence, the supposition of two different narrators, two different memories,—two distinct but sinister sources of deceptious incorrectness and incompleteness,—is necessarily involved:—not so in the case of transcriptious evidence.

§ 1.: Avoidance of Delay.

For the purpose of making it the more distinctly apparent, in what manner exclusion of evidence may be rendered conducive to the ends of justice upon the whole, by and in respect of its subserviency to the collateral ends of justice,—viz. avoidance of preponderantly mischievous delay, vexation, or expense,—and this even in the case where the excluded evidence is neither irrevelant nor superfluous, it may be of use to bring to view, under one or more of these heads, a case or two in which this conduciveness and subserviency will be manifest.

Case I. Where exclusion of evidence may be rendered conducive upon the whole to the ends of justice, by the subserviency of such exclusion to the avoidance of preponderantly mischievous delay.

In a country in which, in such abundance, the legal ties that connect man with man are spread over the whole surface of the polished portion of the globe, no determinate limits can be set to the length of time that may have elapsed, before this or that article of evidence which, in the suit in question, may be necessary to right decision, can be obtained:—no determinate limits, not even on the supposition, that for receiving and extracting evidence from parts of the earth not subject to the authority of the judicatory in question, those operations, which the nature of the case requires as well as indicates, but which are as yet so new, or at best so imperfectly known to English practice, were set on foot, and, upon an all-comprehensive scale, regularly employed.

But in this, as in every case, if the length of delay necessary for the production of the evidence in question be not allowed,—to refuse such allowance is in effect to put an exclusion—a negative exclusion at least—upon the evidence.

Such exclusion—is there a case in which, in this state of things, it could be proper? Answer: Yes;—for, on the other hand, in the same individual case, what may also happen is—that, while an article of evidence necessary to justice on one side of the cause is waited for, another article, not less necessary to justice on the other side, may perish, and cease for ever to be obtainable.

Not that, if evidence B be in the meantime obtainable, it ought to be suffered to remain unobtained, for no other reason than that evidence A cannot as yet be obtained.

But still, in the same individual case, another circumstance, not incapable of having place, is—that while the decision is thus delayed for want of an article of evidence, which a defendant, truly or falsely—and if falsely,—blameably or unblameably—has alleged himself able to procure,—that in this same case, the plaintiff, if found to be fully entitled to the object of his demand, will be found to have suffered, for want of it, and thereby for want of the decision which should have put him in possession of it, such damage as will be irreparable.

In this case, as in so many others, the only choice open to the legislator and the judge, is a choice of evils:—all that is left to them is to reduce to its least dimensions that mass of evil which it is not in their power wholly to exclude.

In this view, the temperament indicated by the nature of the case seems to be to this effect:—In the first instance, let the judge have power to pronounce, in favour of the Edition: current; Page: [91] plaintiff, a decision without waiting for the distant evidence:—but this decision, let it be, not ultimate and immutable, but reversible or modifiable, in the event of the production of the evidence in question, within a time, in the first instance limited, and thereafter enlargeable, or not enlargeable:—the plaintiff, before he is put in possession, finding adequate security for eventual restitution.

By a decision pronounced under these circumstances, without waiting for an article of evidence, by which, had it been forthcoming, a sufficient demand for a different, or even opposite decision, might have been produced, a negative indeed, but not the less effective exclusion, we see, is put upon the distant, and for the present unobtainable, evidence: an exclusion, viz. to the purpose of the decision in question:—but because, for the avoidance of the evil of which the delay necessary to the production of it would have been productive, it is excluded to the purpose of that decision,—it follows not but, that whensoever it is really forthcoming, it may thereupon be admitted, and such fresh decision pronounced as may be required by the aggregate body of evidence, composed of the original mass with the addition of this supplemental article.

On the same principles, though with differences in the mode of application corresponding to the change of situation, a temperament directed to the same ends might be applied to the case, where the side, on which the demand exists for the distant evidence, is the plaintiff’s side.

In what multitude and variety might not facilities be afforded to justice—facilities not less obvious than hitherto unexampled—should the proper ever take place of the actual ends of judicature.

All this while, what is not to be denied is, that if the word evidence be taken in its largest sense, no service can ever be rendered to justice by deciding without evidence. In respect of the question of fact, for anything that he does, or can propose to himself to do, no reason can the judge ever find, other than what is composed of evidence. On this occasion, as on every other, if so it be that what he does is right, inasmuch as while for avoidance of delay he decides against the side from which, at the end of the delay, evidence might be expected, he renders this decision ultimately defeasible,—defeasible on the actual exhibition of the so-expected evidence,—if in so doing, what he does is right, it can only be, because for the so doing he finds even then a sufficient ground and warrant in evidence.

But the case is—that here the evidence is evidence of a particular sort of fact, and in that sense so far is evidence of a peculiar sort. The fact here, is not the fact actually and immediately in question in the cause, but another fact, which howsoever connected with it, is perfectly distinct from it, viz. the existence of evidence—of evidence to the effect in question, relative to that same fact. The evidence on which is grounded the decision pronounced for want of the expected evidence, is simply evidence: the evidence on the ground of which, by another though simultaneous decision, that first decision is rendered defeasible on production of the expected evidence, may be termed evidence of the second order, or evidence of evidence.

In English practice, an application for putting off a cause on the allegation of the absence of a material witness,—which ought to be, and probably always is, coupled with that of his expected forthcomingness within a length of time, more or less precisely indicated,—is a frequently exemplified instance of that incidental and interlocutory sort of cause which is made to spring up within the principal and parent cause:—and, as already noted, it is by affidavit evidence—by evidence delivered in a shape in which it is not fit to form a ground for decision in any the slightest contested question,—that this incidental cause, on which the fate of the principal cause so frequently depends, and with it the question between opulence and want, between life perhaps and death, is decided.

And the delay which in these cases, and for these reasons, is either denied or granted, what is it? Of what length is it? Not the length which justice requires, viz. the shortest time within which, without preponderant inconvenience, the forthcomingness of the evidence can be obtained, but one or other only of those outrageous lengths, in which alone, according to circumstances which have nothing to do with justice, that commodity is cut out in the great shops which sell it; viz. not in lengths of so many days, or of so many hours, but in lengths of a quarter of a year, of half a year, or of a year,—never less than a quarter of a year, according to the distance of the place in which the question is to be tried, from the chief seat of the system of misrule called government.*

§ 2.: Avoidance of Vexation at large—Vexation, its modifications.

To the purpose here in question, vexation, considered as liable to be produced by the exhibition of evidence, may be distinguished into vexation at large, and vexation by disclosure:—and under the former of these two heads may be included every species of vexation that is not comprehended under the other. Follows in the present section what concerns vexation at large.

1. Judges; 2. Subordinate judicial officers; 3. Jurymen, viz. on the occasions in which these temporary assessors to the professional and permanent species of judges are admitted; 4. Agents of the parties, such as counsel and attorneys of all classes and denominations; 5. Parties to the cause; 6. Witnesses, viz. extraneous witnesses, including all such examinees as are not parties; 7. Persons at large. Under one or other of these denominations may be comprised the various descriptions of persons, in whose breasts the search for vexation at large, considered as liable to be produced by the receipt or extraction of evidence, and thence capable of being pro tanto saved and avoided by the exclusion of such evidence, requires to be made.

1. In the situation of the judge, vexation from the source in question may be considered in the first place in itself, i. e. in so far as the seat of it is confined to the bosom of the judge: in the next place, in its consequences, viz. in so far as it is liable to be followed by consequences prejudicial to other persons, such as the parties in the cause in question, or persons at large in the character of litigants, actual or eventual, in other suits or causes.

In the breast of the judge—in proportion to the quantity of the evidence, even when relevant,—but in a greater proportion where irrelevant perplexity is liable to be produced:—by perplexity, hesitation and danger of misconception;—by hesitation, delay, viz. of decision;—by danger of misconception, danger of misdecision. Of vexation derived from this source, and having its seat in the breast of a person in this situation, such are the derivative or consequential mischiefs.

By delay of decision, evil, in a mass proportioned to the length of the delay, is produced:—in the first place, to the prejudice of the parties on one or both sides of the suit or cause in question; in the next place, to the prejudice of such individuals as are, or are about to be, parties in other suits or causes: in each of which the decision experiences a fresh retardation from every retardation that comes to have been experienced by this or any other antecedent suit or cause.

When the evidence is either irrelevant or superfluous, this vexation and this delay, and this danger of misdecision, are so much uncompensated evil:—when the evidence is neither irrelevant nor superfluous, but material and necessary, this vexation and this delay are still each of them, by the whole amount of it, so much evil: which evil has, by the supposition, its compensation; but that compensation may be adequate, i. e. preponderant, or not adequate.*

2. In the case of a subordinate officer of justice, the consequential mischief is in its nature and extent the same as in the case of the judge: between the one situation and the other, the principal as well as most prominent difference being—that what is done by the subordinate, is liable to be reversed or modified by his superordinate.

3. The case of the juryman may be apt to present itself as being in this respect not naturally different from that of the judge: the functions, exercised by the particular species of judge thus denominated, being, to the extent of his authority, the same as those of the judge at large, to whom, in customary language, the appellation is exclusively appropriated.

But the difference is this—and it is of no slight moment. In regard to delay by means of that part of the mechanism of the jury-box, by which the utmost quantity of evidence, that any suit or cause is capable of affording, is compressed within a limited space of time, the maximum of which is the same, whether the time necessary to the delivery of it be one hour or one hundred,—that part of the consequential mischief which consists of mere delay is thus reduced to an amount comparatively inconsiderable.

On the other hand, in regard to misdecision—an evil of which, in that particular situation, a mass of evidence, when disproportionately large, is, through the medium of perplexity, in a particular degree liable to be productive,—the mischief here in question, viz. the consequential mischief of the vexation liable to be produced by the exhibition of evidence—is here at its maximum:—the capacity of forming a right decision, thence the quantity of knowledge derived from experience Edition: current; Page: [93] and degree of skill derived from habit, thence again, in so far as depends on the state of the intellectual faculties, probability of rectitude of decision,—being, in the case of these unexperienced or little-experienced functionaries, less than in that of the more experienced one, while the time allowed for the operation is, in the case of the less experienced operator, compressed and limited as above, instead of being left in that unlimited state, in which, for his own accommodation, the more experienced and skilful operator has taken care to keep it.

4. In the situation of a professional agent of one of the parties, vexation considered as liable to be attendant on the exhibition of evidence is still susceptible of the same distinctions and the same consequences:—the chief difference being that which regards the description of the sort of person on whom the mischief falls.

In the situation of the judge, in so far as, through the medium of perplexity, vexation derived from such a source is liable to be productive of misdecision, the party who is in the right, and he alone, is the party liable, or, when the question concerns degree, the party in the highest degree liable to receive prejudice from it: whereas, in the situation of the professional agent of the party, that party whose agent the professional man in question is, is the party who, if not as at first sight it might seem exclusively, is at any rate, in by far the highest degree, liable, and apt to be the sufferer, by such mischief, of which it happens to it to be productive.

5. By every article of evidence exhibited, be it personal oral, be it personal written, be it real, favourable to the party exhibiting it or unfavourable, vexation more or less considerable to the party by whom it is sought out, procured, and exhibited, is of course produced:—vexation, viz. in so far as the labour thus employed is his own. But, in so far as that labour is turned over to a professional agent, such agent receiving as usual, at the charge of the principal, remuneration for it, and that in a pecuniary shape, the evil becomes in the person of the principal commuted, being transformed into expense.

Be it vexation, be it expense, evil thus producible by the exhibition of an article of evidence can never, in so far as it is confined to the breast of the party who tenders it, form a just ground for the exclusion of it: the evil being, in the estimation of the sole, or at least the most competent judge, preponderantly compensated, viz. by the advantage expected by him to be derived from it.

6. To an individual in the situation of a witness, from the exhibition of his testimony, a mass of attendant vexation is inseparable, and that vexation susceptible of almost boundless variety and magnitude, not to speak of expense, an evil which belongs to another head, and is of a nature to be susceptible of a compensation, which, being in the same shape as the damage, is capable of being rendered completely adequate to it: consumption of time is an evil, to the magnitude of which, regard being had to the infinite variety of which its casual consequences are susceptible, there are no determinate limits; and the nature of which, it not being like pecuniary damage susceptible of compensation in its own shape, puts an absolute negative upon all assurance of adequateness on the part of whatsoever compensation may come to be applied to it,—whether in the pecuniary or in any other shape.

Journeys to and from the theatre of justice—attendance thereat, and demurrage;—such are the standing items of vexation, which in the case of a witness delivering his testimony in the judicatory in question in the oral mode, may be considered as included in, or superadded to that which stands expressed by the words consumption of time.

These,—though, especially where the geographical field of jurisdiction is of small extent, they may frequently, all of them put together be of small importance,—form so many constant items: and in England, where so it happens, that during the length of time in question, the residence of the individual in question is not within the limits of the kingdom, they constitute all together in practice as in justice a ground sometimes for delay, sometimes for definitive exclusion, according to the circumstances of the case. And to these standing causes or elements of vexation are liable to be added casual ones, resulting from the particular situation of the individual witness, altogether indefinite in number and importance.

In regard to parties, in so far as, at his own instance, or at the instance of an adverse party, the testimony of a party comes to be received or extracted, he is, by such receipt or extraction, placed in the predicament of a witness.

But, by the union of the two characters in his one person, instead of being increased, the vexation of which the delivery of his evidence is the cause, is diminished: his labour in hunting himself out, and corresponding with himself, cannot be great; and in respect of journeys and so forth, as above, the two masses of vexation are consolidated.

7. As to persons at large, if to any person, by the receipt or extraction of evidence, how material soever to the suit or cause, vexation in any shape should be liable to be produced, quantity for quantity, evil in this shape, and threatening to fall upon this extraneous quarter, has, in proportion to its quantity, as just a claim to be taken into account, as if it fell in any of the shapes, or in any of the quarters, Edition: current; Page: [94] above mentioned. But, except in the shape of vexation, by disclosure—of which presently under a separate head,—it appears not how, in any such extraneous quarter, unless in this or that state of things too accidental to admit of any common description, any such vexation should have place.

§ 3.: Vexation—in what cases a proper cause of Exclusion.

On these, as on all other occasions, vexation, being so much evil, ought of course to be avoided and excluded, except in so far as, if admitted, it will find a preponderant compensation, in the shape of some greater evil excluded, or some more than equivalent good produced. If, by the exclusion of the article of evidence in question, so it be that the vexation in question will be prevented, the evil produced by such exclusion being not only less than the evil of the vexation, but less than any other evil by the production of which the vexation would be prevented,—on this supposition the exclusion of the evidence is proper; otherwise, not.

When the evidence is either irrelevant or superfluous, then, forasmuch as by the supposition whatsoever evil would be attendant on the exhibition of the evidence, would bring with it no good capable of operating as a compensation for it, the propriety of putting an exclusion upon the evidence stands above dispute.

When the evidence is neither irrelevant nor superfluous, but material and necessary, in these cases—an exclusion cannot be put upon it, but that by such exclusion evil is introduced; viz. a certainty, or a prohability more or less considerable, of injustice by misdecision, to the prejudice of that side of the cause, in favour of which the evidence, had it been admitted, would have operated.

1. In the situation of judge, so far as the evil of vexation is, on this occasion, confined to that which has its seat in the feelings of that one individual, no case can present itself, in which, by any vexation capable of being inflicted on him by the exhibition of material evidence, any sufficient ground can be found for the putting an exclusion upon that same evidence.

If it be with his own consent that he was placed in that commanding situation, whatsoever be the advantages, natural and factitious, by which that consent was determined and produced, in these advantages, all such vexation has found its compensation,* and that by the supposition a preponderant one.

But in England, the too narrow circle excepted, within which the only system of procedure compatible with justice—viz. the natural system,—has been suffered to continue unexcluded, the system actually established having had the judges for its authors, has, on every occasion, and in every shape, had the accommodation of those its authors for its main object, thence it is that evidence in its best shape, being at the same time productive of less profit and more vexation to the judge than in the unfit shapes in which alone it is received, stands excluded in the manner shown on a former occasion,† in so far as it has been in their power to exclude it, in the lump.

2. The same considerations, in so far as concerns the impropriety of putting an exclusion upon material evidence, on no other ground than that of the vexation or trouble liable to be produced by it to the functionary whose duty it is to extract or receive it, apply alike, it will be seen, to the case of the subordinate minister of justice.

3. Under English and English-bred law, the juryman being, as above, a species of judge, the same considerations should naturally be found applicable to his case. But by the tissue of incongruities and inconsistencies in which, by primeval barbarism, this species of judicature is enveloped, every application of human reason to the subject is in a manner‡ repelled and put aside.

4. In the case of the professional agent of the party, the nature of the relation between him and his employer, i. e. the compensation which, for whatever vexation the agent as Edition: current; Page: [95] such is subjected to, he receives of course, excludes all demand for exclusion of evidence on this score.

5. In the case of the witness, the magnitude of the vexation, combined with the impracticability of making amends for it by an adequate compensation, has very frequently, as above mentioned, the effect of putting not only a temporary, but a definitive exclusion, upon the evidence which it would have been in his power to afford. This exclusion is of the negative cast above mentioned: having for its cause the non-performance of the operations necessary to the extraction of the evidence.

This omission is referable in part to the imperfections of the system; and in so far, the exclusion cannot but be pronounced improper: on the other part, to the obstacles opposed by the nature of the case; and in so far as on that account, proper: those obstacles being either physically or prudentially insurmountable: prudentially, when, if they were surmounted, the mass of vexation thereby produced would be so heavy, that the suffering to the proposed witness, by means of his attendance, would be greater than the suffering to the party, by reason of the non-attendance of such witness, although the loss of a just demand, or the failure of a just defence, were to be the certain consequence.

As to the imperfections of the system, howsoever on this as on other occasions they may be found to have had, for their principal cause, the operation of an active sinister interest, they would be found at the same time owing in no inconsiderable degree to the absence of that active zeal for the service of justice which a system directed to the ends of justice would have inspired:—to carelessness—to indifference—in a word, to the love of ease. Observe now the fruit of sinister interest in this shape.

It is only in so far as the attendance of the proposed witness at the judicatory in question has place, the spot which at the time in question would otherwise have been the chosen place of his residence, being more or less remote from it, that the vexation produced by journeys to and fro, attendance and demurrage, has place. In the character of a ground of exclusion, this vexation would be removable by either of two expedients:—viz. 1. Examination in the oral mode by a judicatory ad hoc; viz. whether of the number of the permanent judicatories already established on the spot, or by a special commission issued from the judicatory in question for this individual purpose:—2. Examination in the epistolary mode;—or if confined to that class of cases in which the security afforded for correctness and completeness by counter-interrogation is not necessary, the uninterrogated or spontaneous deposition mode, as exemplified in the case of affidavit evidence, might in that state of things be employed.

Of all these three modes, there is not one (it has been seen) but what is perfectly familiar to English practice, though, by that practice, with but few exceptions,—excluded from this state of things in which they would have necessity for their sanction,—confined to a state of things in which that sanction does not apply to it.

From a common-law court, a special commission for taking the examination of a witness at any part of the globe, is not without example. But on what condition? That the party, to whose disservice the testimony is to operate, consent to it. Thence comes one or other of two evils: either the remedy is left unapplied, in the case where the party against whom the evidence is wanted is a malâ fide litigant, conscious of being in the wrong, and accordingly determined to take advantage of every incident foreign to the merits, which can contribute to his success,—that is, in the case in which the demand for it is most urgent and most frequent;—or the judge employs some indirect expedient for extorting a forced consent, thereby obtaining a plea, and making a precedent, for the extension of that arbitrary power, the perpetual increase of which is among the sure effects, as it has been among the constant objects, of judge-made law.

An acknowledgment that must here be made is—that, on the part of the judge, the existence of effectual jurisdiction, in relation to the individual and the purpose in question, is not so certain when applied to a man in the situation of an extraneous witness, as when applied to a man in the situation of party litigant in the suit or cause. In the case of a party litigant, the interest, whatever it may be, that he has in the suit or cause, suffices, to a certainty, to give to the hand of justice a hold, the strength of which is proportioned to the value of that interest: while, in the case of an extraneous witness, there being no such interest,—in this case, whether to the purpose in question the hand of justice have or have not any such hold upon him, is matter of accident. But in this, as in every other case, the existence of this or that state of things in which the remedy is not applicable, affords not any reason why, in any instance in which it is applicable, it should not be applied.

§ 4.: Avoidance of Vexation by Disclosure.

In regard to vexation by disclosure, one very simple consideration will suffice to show how necessary it is that it be admitted, in the character of a ground capable of being found sufficient to warrant the putting an exclusion upon an article of evidence.

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But for this, it would be in the power of any two persons at any rate—for example, by means of a wager—not to say in the power of any one person, to force disclosures, pregnant with mischief in any degree to the public or to individuals:—disclosures of which the subject might be a fact of any sort at their pleasure:—with the most disastrous effect—investigations which public peace, not less than private delicacy, would forbid, would continually be made by the most indelicate hands.

So far as concerns the public, scarcely a day passes, but, in one or other of the two legislative assemblies, information called for on one side of the House is on this ground refused on the other, and by the majority of the House the refusal sanctioned. That, in out too many of the instances in which refusal takes place, no preponderant mischief would by concession have been produced, the refusal having self-conscious misconduct for its cause, cannot, so long as the conduct of public men remains short of perfection, admit of doubt; since wheresoever misconduct has any shape and place, all evidence, by which such misconduct might be brought to light, will of course, in so far as the power of refusal is in the hands of any person who, in the character of party to such misconduct, or that of third person acting under the influence of undue sympathy towards any such party, be refused:—but what will always be above doubt is, that there will have been other instances in which the mischief from disclosure would have been preponderant, and accordingly by official duty the refusal not only permitted, but commanded.

Parties litigant—extraneous witnesses—individuals at large—and the public at large;—such are the different descriptions of persons on this occasion it may be of use to keep in view.

Vexation by disclosure,—in what cases shall it, in what shall it not, be considered as forming an adequate ground for putting an exclusion upon evidence? Towards furnishing an answer to this question, the following rules, as far as they go, may perhaps be found to be not altogether without their use:—

1. Except as hereinafter excepted (viz. by Rule 6th,) so long as, with relation to the transgression which is directly in question, the article of evidence called for is not either irrelevant or superfluous in such case, although among the consequences or tendencies of the evidence or disclosure thus called for should be that of subjecting or exposing, either the examinee himself or any other person, to legal punishment, whether on the score of the transgression in question, or on the score of any other transgression which is not the direct subject of the inquiry, be that punishment what it may, the vexation produced by it ought not to be considered as constituting a sufficient, or in any degree proper ground, for putting an exclusion upon such evidence.

Reason. For, in the necessarily implied opinion of the sovereign, by whom the penal law creative of the transgression in question is upholden, whatsoever vexation is liable to result from the application of the punishment in question, in execution of the law in question, will receive its compensation:—its compensation, and that a prependerant one; viz. in respect of the evil which it is the object of the law thus to produce. Party litigant—extraneous witness—and individual at large;—to all these several situations, this rule seems to apply with equal justice.

2. Vexation, composed merely of the burthen of satisfaction as for wrong, ought not to be considered as constituting any sufficient ground for the exclusion of the evidence by which an individual would be subjected or exposed to it.

Reason. The same, mutatis mutandis, as in the preceding case.

3. Vexation, consisting merely of the loss and sensation of regret incident to the legal obligation of surrendering or failing to obtain a valuable object, which belongs of right to another party,—or of rendering a burthensome service, which in any other shape is by law due to such other party, ought not to be considered as constituting a sufficient ground for exclusion, as above.

Reason. The same, mutatis mutandis, as above.

4. Whatsoever disclosure, in consideration of the vexation which might result from it to an individual in the situation of principal, i. e. person interested on his own account, ought not to be extracted from the breast of the individual himself, ought not to be extracted from the breast of any person to whom it has happened to receive information of it by means of any situation of trust possessed by him in the character of trustee in relation to such principal.*

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Reason. For, the disclosure being the same, the vexation produced by it will not be materially different, whatsoever be the source from which the disclosure may happen to have been extracted.

5. But where the principal himself ought not to stand exempted from the obligation of making the disclosure, neither should any trustee of his be, on his behalf, so exempted.*

Reason. For, to the principal, the vexation will not be greater if the breast from which the disclosure is extracted be that of another person, than if it were his own: and if no adequate ground for the exclusion can be formed by the vexation produced by the disclosure in the breast of the individual whose interest in the matter is of the self-regarding kind, still less can it be formed by that sympathetic species of vexation which on such an account is unfit to be considered as forming a separate item, as being liable to be produced, as it were by contagion, in the breasts of a number of persons, and thence, in a quantity altogether indefinite, in the case of each individual Edition: current; Page: [98] in whose breast is produced any particle of vexation of the self-regarding kind.

6. On the ground of apprehended mischief to the public, the judges ought to be not only authorized, but required, to apply to the demanded disclosure, absolutely or provisionally, exclusion or modification, according to the exigency of the case: declaring at the same time, in what particular shape it is that the mischief is apprehended; and if it be to the prejudice of the business of any particular official department, making communication of the matter to the chief of such department, giving at the same time notice to the parties of the communication so made, and appointing a day on which, on failure of sufficient cause shown for non-disclosure, disclosure shall be exigible.

7. There are certain transgressions, the nature of which is such, that the evil which they are liable to produce is produced wholly or principally by disclosure. If on either side, on the occasion of a suit or cause, penal or non-penal, having a different object, evidence be called for, of which, if delivered, the effect may be to expose any person, party or not party to the suit or cause, to the suspicion of having been concerned in a transgression of this description, it ought to be in the option of the judge to exact the delivery of such evidence, to permit it simply without exacting it, or to prohibit and prevent the delivery of it; pursuing that one of those courses which in his judgment promises upon the whole to be productive of the least balance on the side of evil, or the greatest on the side of good.

On any such occasion, for striking a balance such as above mentioned, the following are the items that seem most material to be kept in view in the taking of the account:—

Item 1. The nature and magnitude of the evil, for the avoidance of which—or (what is the same thing in other words) of the good, for the production of which the evidence in question is demanded: the evil, for example, subjection to undue punishment—subjection to an undue burthensome obligation, on the score of satisfaction as for wrong;—subjection to an undue burthensome obligation on any other score;—undue loss of any valuable possession, or of any valuable service due at the charge of this or that individual:—the good—viz. by the application of punishment where due—by the administration of satisfaction as for wrong, at the charge of the wrong-doer—and so forth, as above.

Item 2. The probability of the evil apprehended, in the event of an exclusion put upon the proposed article of evidence. The greater the probability, that without the proposed article of evidence, the effect proposed from it will be produced by other means—i. e. the less the need there is of it, to the purpose of producing that effect,—the less the advantage is, which, in case of its being delivered, there will be to set against the evil attached to the disclosure.

Item 3. The magnitude of the evil producible by the disclosure.

Item 4. The probability or improbability, that if not by the proposed evidence, the disclosure will be brought about by some other means.

To probability substitute certainty, the evil chargeable on the delivery of the evidence in question vanishes.

8. On the score of an offence of a purely public nature, unaccompanied with suffering inflicted on any assignable individual, punishment may with less inconvenience be, in any given individual instance, remitted, than satisfaction as for wrong done to an assignable individual refused.

Reason. For if the offence be but rarely repeated—the more rarely, the less is the need of punishment for the prevention of it: on the other hand, if frequently—the more frequently repeated, the more frequently will the opportunity occur of inflicting punishment in respect of it, without need of producing, in addition to such punishment, the casual and extraordinary evil here in question—viz. the vexation producible by disclosure.

§ 5.: Evidence that ought not to be admitted—Disclosure of Catholic Confession.

Question. On the occasion, or for the purpose of a suit or cause, penal or non-penal, ought a priest to be compellable or receivable to reveal any communication made to him as such in the way of confession, according to the rites of the Catholic or any other church or religious persuasion?

Answer. Neither compellable nor receivable.

Reasons.—1. In any law or mode of procedure, rendering such information compellable or receivable, would be included the effect of a penal law, prohibiting, in relation to the most important cases in general, and all criminal cases in particular, the exercise of the religious function in question:—a penal law, having for its penalty the punishment or burthensome obligation, whatsoever it might be, to which, by the testimony of the priest, the individual confessing, or any other individual, would be liable to be subjected.

In whatsoever suit or cause, penal or non-penal, it were proposed to make a religionist of the persuasion in question defendant, it would become a matter of course for the plaintiff or prosecutor, under the direction or by the instrumentality of his law adviser, to look out for the priest to whom the proposed defendant was in the habit of resorting for this purpose, and to summon him to appear as a witness.

A regulation to any such effect would therefore Edition: current; Page: [99] be a virtual proscription of the exercise of the Catholic religion.

2. In compensation for the evil of this tyranny, no good would in any shape be produced.

To the public at large, in respect of the interest it has in giving execution and effect to the aggregate body of the laws—in a word, to the ends of justice, so far from being conducive, an obligation to this effect would be purely adverse. In relation to the most mischievous crimes, for example, the effect of the institution in question, in so far as it has any, is much the more sincerely and uniformly, not only preventive, but compensative, than the effect aimed at by the laws for the sake of which, if at all, the proscription of it would be called for.

1. It is in regard to the contingent future preventive, in so far as, by means of the intercourse in question, any such impression as repentance and reformation is produced.

2. It may, even in a more determinate way, have, and doubtless ever and anon has had, the happy effect of exercising a preventive influence. Suppose that, by this means, on the part of a penitent of his, the existence of this or that particular mischievous habit or propensity has come to the knowledge of the spiritual guide, various are the ways in which, without exposing the penitent to discovery, measures may be employed for the prevention of the impending mischief.

3. Of this spiritual guide and comforter, the influence will naturally, be it what it may, in proportion as circumstances indicate a probability of success, be applied, not only to the prevention of future transgressions, but the disposing of the penitent to make reparation for mischief done by misdeeds already perpetrated.*

Crimes of sectarian fanaticism apart, by this time nearly, if not altogether, out of date, in no respect or degree can this sort of power be conducive to the taking anything away from the usefully-preventive, or in any other way remedial operation of the political or legal sanction. But if by means of the power of absolution, which is considered as attached to the exercise of this religious function, the usefully-preventive influence of the religious sanction be, in that class of religionists, upon the whole rendered less than 0—a proposition the truth of which will, by the consideration just brought to view, be at least rendered dubious—then the diminution is an inconvenience inseparable from the Catholic religion, and not removable but by the extirpation of it.

§ 6.: Evidence that ought to be exacted,—Clients’ Communication.

Question. A lawyer—ought he to be compellable or receivable to disclose a matter of fact, the disclosure of which would be disserviceable to a client of his, in respect of a suit or cause, non-penal or penal, in which such client is party, plaintiff, or defendant?

Answer. Yes: compellable at any rate; if not when uncalled for receivable. For what reason ought he to be exempted?—from an obligation to that effect, what is the real evil capable of taking place? None whatever: unless, in a penal case, the subjecting a man to punishment where due,—in a non-penal case, the subjecting a man to the obligation of rendering the service demanded where due, or compensation, or both, be to be placed to the account of evil:—placed on this occasion, while they are not on any others.

The considerations which forbid the compelling or admitting the Catholic confessor to disclose misdeeds revealed to him in confession, have just been brought to view:—neither these nor any other considerations of a like tendency, will be found to have any application to the lawyer’s case.

To the non-transgressor—to the innocent and honest client—no such exemption can be of any the smallest use. By the supposition, not having done anything wrong, nothing wrong will he have to confess.

The criminal,—the wrong-doer,—to these and these alone, the man of law himself excepted, can an exemption of this sort be of any use.

To the Catholic priest and confessor, it Edition: current; Page: [100] is matter of universally understood and acknowledged duty to do what depends upon him, as above mentioned, towards the lessening the number of mischievous acts in general, and lessening the amount of the mischief produced by such as have been committed; and that towards so salutary an end, more or less, how much soever less than could be wished, is constantly done, can scarcely be doubted.

By the lawyer, in his character of counsel or attorney for the criminal or self-conscious wrong-doer, so far from being ever exercised, no such salutary influence is ever so much as pretended to be exercised, or anything done towards the exercise of it.

On the contrary, in relation to a transgression of any description—say for example a felony—the part taken by a lawyer in the character of counsel for the defendant, is exactly the part which is taken by an accessary after the fact to that same felony, with no other difference than that between ignorance and danger on the one part, and knowledge, skill, and security, on the other.

In the situation of judge, the man of law (I speak more especially of English practice) manufactures flaws and loop-holes for malefactors and wrong-doers to creep out at:*—in the situation of counsel for the criminal or wrong-doing defendant, (not to speak of wrong-doing and unjustly demanding plaintiff,) he lets out to the malefactor and wrong-doer his best endeavours, to the purpose of enabling him to make his advantage of the assistance and encouragement thus provided and held out to him by his confederate on the bench.

It is a maxim among the brotherhood—a maxim not only acted upon but avowed, as often as under favour of opportunity, acquiescence can be hoped for—that right and wrong are creatures of their creation, and of which the existence is at all times dependent upon their pleasure; that, in so far as practised or encouraged by a judge, vice becomes virtue—in so far as punished or vituperated by him, virtue becomes vice.

It is in virtue and under favour of this maxim, that, under the name of fictions, falsehoods, in comparison of which the worst of those which in vulgar language receive the name of lies, are current: liberty-oppressing and money-catching falsehoods—falsehoods by these same arbiters of human destiny themselves committed, rewarded, and more than encouraged,—compelled; were, as Blackstone himself found himself everywhere obliged to confess, employed throughout as materials in the foundation of the system of procedure in particular, and in general in the whole fabric of judge-made law, alias common, alias unwritten law.

It is in virtue and under favour of this same maxim, that, for the benefit of Self and Co. they have licensed Co. to render to malefactors that sort of support and encouragement for the rendering of which, those to whom they have not communicated the licence are, under the name of accessaries after the fact, dealt with by them as felons.†

§ 7.: Avoidance of Expense.

Cases where exclusion of evidence may be required, by the subserviency of such exclusion to the avoidance of preponderantly mischievous expense.

Of this class of cases, an exemplification, though under another head, has been already given. In case of compensation, vexation to A becomes expense to B, at whose charge the compensation is afforded. But in this case, the effect of the compensation is—to take away the need, and thence the propriety, of putting an exclusion upon the evidence, even supposing that, but for the compensation, the propriety of such exclusion would have been ever so clear and incontestable.

But, by whatsoever cause produced (compensation for vexation, or any other,) in what cases, if in any, shall expense attached to the exhibition of evidence—expense in its own shape—be considered as constituting a proper ground for the exclusion of it?

Of the general principle from which, in every case, an answer to this question may be deduced, sufficient explanation, it is supposed, has been given above.

For conveying a conception, however slight of the difficulties with which this spot in the field of procedure is incumbered, a reference, however short, to existing practice, seems scarcely to be dispensed with.

Under English judge-made law, for getting through these, as well as so many other difficulties, a very simple rule suffices:—right to justice depends upon opulence. The law is a lottery: have you money enough for a ticket? Down with your money and take your chance. Does money run short with you? Lie still and be ruined. It was not for you that justice, or, what is the same thing, that judge-made law was made.

On the mere tender of a sum of money adequate (i. e. that shall eventually be deemed adequate) to the expected expense, be his testimony relevant to the matter in issue or not, every man is bound to attendance: without such adequate tender, no man is bound to attendance.

Where needless and uncompensated, the vexation imposed—where necessary to justice, and thereby the vexation compensated, the service not exacted—such, on this part of the field, are the evils produced by judge-made law.

From the further end of the kingdom a man may be called away from his business, and kept from it days or weeks: for his expense, he receives a compensation, adequate or inadequate: for his loss of time—a loss in which pecuniary loss, the equivalent of expense to an indefinite amount, may have been involved—no compensation does he receive whatever.

Watching his opportunity, it is in the power of any man buying at the justice-shop an instrument called a subpœna, and paying moreover to the proposed witness any sum of money of the sufficiency of which he is assured, to inflict injury to an unlimited amount on any other man in whose suffering he beholds a source of sinister enjoyment.

Such is the mischief to which the hand of venal justice lends itself, by exacting labour in this shape, where it ought not to be exacted.

On the other hand, let the need of it be ever so urgent—let the consequences of its being withholden be ever so ruinous—let the vexation attached to the rendering of it be to the proposed witness ever so slight and inconsiderable,—no money, no evidence.

Money at stake upon the cause, say £4000; Edition: current; Page: [102] advance necessary to defray the proposed witness’s expense, say £5;—rather than the rich man should suffer a loss of £5, upon the poor man a loss is imposed of £4000.

Of the mass of mischief capable of issuing from this source, under the complication of uncertainties under which business of this sort labours, a portion more or less considerable must, it cannot but be acknowledged, remain always unavoidable.

But in comparison of that, the source of which may be seen in the imperfections of the system, the part which has its source in the inexorable and incorrigible nature of things will be found inconsiderable.

By those timely explanations, the need of which there has been such perpetual occasion to bring to view,—difficulty in this, as in so many other shapes, would, by far the largest portion of it be cleared up—evil in these, as in so many other shapes, by far the largest portion of it dispelled. No such explanations have place—no such explanations ever can take place. Effectual care has been taken that no such explanations ever shall take place:—and why? Lest in these same shapes, evil to suitors, and thence good in the shape of profit, power, and ease to Judge and Co., should be dispelled.*

8.: How to minimize Evil in all these cases.

Of the course necessary to be taken for this purpose, an indication has, in general terms, been already given—(see § 3.) The first thing to be done, is to reduce to its minimum the whole mass of the delay, vexation, and expense necessary to the production of each such portion of the proffered or supposed obtainable evidence, as shall be pronounced neither irrelevant nor superfluous. This done, as to any portion the exhibition of which appears to be unavoidably attended with a mass of evil in the shape of delay, vexation, and expense, such as threatens to outweigh any evil of which, in respect of danger of misdecision, for example, the exclusion of that same portion of evidence would be productive, then it is that, as to any such portion, a determination is to be taken, whether, upon the whole, it is by admission or by exclusion that the most effectual provision would be made for the fulfilment of the ends of justice.

But as to both these points, what, upon the hare mention of it, can scarcely fail to render itself manifest to an unprejudiced mind is—that, to the purpose of any individual cause, no well grounded or rational determination can ever be taken but upon a distinct and comhensive view of the particular circumstances of the individual case. What are the indivividual facts that require proof?—in relation to each such fact, what are the articles of evidence that are expected?—and in relation to each such article of expected evidence, what are the source or sources from whence it is expected?

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What, at the same time, will be no less manifest is—that by no other means can these individual circumstances be ascertained, either with anything near the security against deceptious incorrectness and incompleteness, or with nearly so little delay, vexation, and expense,* as by means of those mutual explanations which take place with such perfect facility and effect, wheresoever at the outset of the cause, the parties are brought together face to face in the presence of the judge: in which confrontation is included and implied, not only spontaneous deposition on both sides, but interrogation ex adverso, and, upon occasion, even interrogations undequâque, as in a former chapter explained.

In a subsequent chapter, on the occasion of a particular species of fact, viz. the genuineness or spuriousness of a proffered legal instrument, an exemplification will be given of the service which, by such timely opportunities of mutual explanation, would, throughout the whole field of judicature, be rendered to the ends and interests of justice.

Relevant, or irrelevant?—not superfluous, or superfluous? On questions such as these, the power of deciding may to some eyes present itself as exposed in no inconsiderable degree to abuse. It will, however, he found not to be so in a greater degree than many others of the powers inseparably involved in the general power of judicature; and in particular that of determining, in each individual instance, whether, as just mentioned, the degree of collateral inconvenience—of delay, vexation, and expense incident to admission, shall or shall not be regarded as sufficient to render exclusion preferable.

As to these powers, particularly in the case of irrelevancy or superfluousness, were they in ever so much greater a degree exposed to abuse, they would not be the less necessary: since, but for the safeguard they afford, cases would not be wanting in which, by the force of overbearing opulence, the merits of the cause, as well as the substance of the less opulent party, might be overwhelmed and drowned—drowned in an ocean of delay, vexation, and expense.†

By the timely explanations just spoken of, all unnecessary evil incident to the production of evidence would be prevented; as in every corner of the field of judicature, fortunate enough not be polluted by the claw of the technical harpy, it is prevented of course.

Articles of evidence, of which, upon explanation, it were seen and acknowledged that they would be either irrelevant or superfluous, would be discarded,—discarded before an atom of that delay, that vexation, or that expense, which would have attended the production of them, had been produced.

When, of two objectionable articles of evidence appertaining to the same fact—the one requiring but a small mass of delay, vexation, and expense—the other, a mass of those same evils in any amount larger, expectation is entertained that the least burthensome may suffice to command the decision, this least burthensome will be the mass to be produced in the first instance; eventual liberty being reserved for the production of the more burthensome mass, should the other be found insufficient.

§ 9.: English Practice in relation to the above Evils.

By the explanations just spoken of, the above several evils would for the greatest part be excluded. But out of these same evils, and in a mass proportioned to the aggregate mass of those same evils, does the profit of Judge and Co. increase. It is therefore the interest of Judge and Co., that—not the evils themselves, but the explanations by which they would be excluded, should be excluded:—and excluded they are accordingly: and of such exclusion a cornucopiæ of those same evils is the result: for the box of Pandora is the cornucopiæ of the man of law.

Under the impossibility of determining beforehand, in relation to this or that article from which advantage is looked for, whether it will be deemed relevant and admitted, or irrelevant and excluded,—in relation to this or that article, whether after the production of what other article there may be of the same tendency, a demand for it will be found existing, or whether it will not be found superfluous,—every particle of information that presents any the smallest chance of proving serviceable and admissible is anxiously looked Edition: current; Page: [104] out for, hunted out, and, at an expense to which there are no limits but those of the pecuniary faculties of the party and the estimated importance of the cause, dragged to the scene of action: and thus the pecuniary faculties of the parties at least, if not the theatre of justice, are oppressed by a load composed of irrelevant or superfluous, or irrelevant and superfluous evidence.

Of this aggregate mass of evidence—this or that item—necessary and proper, irrelevant or superfluous,—cannot (suppose it found or apprehended) be obtained within the regularly allotted time;—thus comes more delay, and by need of application for this extra time—and application made accordingly—and opposed or not opposed,—more expense.

“How many witnesses have you to examine?” So many. “How many hours, think you, may the examination of them, with your speech upon it, take up?” So many. “Oh, then; trying the cause now will be impossible.” Thence comes one or other of two jobs—a remanet, or a reference:—a remanet, with fresh fees for the counsel already employed:—or a reference, with fees de die in diem as above, for others of the same robe, one or more, in the character of judges.

Thus in one cause:—while, in another cause, by economy or by pecuniary inability, this or that article of evidence, which on the trial is discovered and pronounced to be indispensable, is kept back: consequence, if it be on the plaintiff’s side that the deficiency has place, a nonsuit.

If on the defendant’s side, so much the better: because, in that case, under the name of motion for a new trial, comes a second for trying whether there shall be a third;—and thereupon, by the blessing of God, that third:—whereas, in the case of the non-suit, two is the number of blessings to the enjoyment of which, in the first instance at least, the piety of the long robe is limited.

Till a quarter of a year, or half a year, or a whole year, after the discovery has been made, no misconception shall be set right, no error corrected, no omission supplied, no obscurity or ambiguity cleared up—till a quarter, or half a year, or a whole year, according to the distance from the seat of government—behold in this state of things one of the laws virtually included in the institution of terms and circuits: and this too under a system, under which, in virtue of the principle of nullification, errors are imputed to a man ad libitum—errors for which, if not finally debarred of his right, he is thus, in his painful pilgrimage for the attainment of it, thrown back, for having omitted to interpret, or failed in his interpretation of, this or that dream that never had been communicated, if as yet it had been so much as dreamt.

And merely because they are told so—told so by a set of men whose profession it is to deceive everybody, and whose interest it is to deceive them,—still, and in this nineteenth century, the good people of England are weak enough to conceive it possible, that a system, with two such features in it as the above causeless delay established by law, and nullification for causes foreign to the merits—(two such features out of twenty such that have elsewhere* been brought to view)—could have really bad for its object the furtherance of the ends of justice.

Of these two features, one alone, viz. that of religiously-established delay, suffices of itself, in the eye of an English lawyer, to render the very idea of employing exclusion of evidence provisionally, in the character of a remedy against delay, not merely odious, but ridiculous, and scarcely intelligible. That the quantity of delay established should be reducible to anything less than at least ninety times as great as it need be, and elsewhere is,—is a state of things, to the conception of which, even in the way of fiction, familiar as fiction is to him, his mind knows not how to fashion itself.

Under the common-law, the jury-trial system, all these gordian-knots are cut through at a stroke. A mass of evidence, to the quantity of which, and consequently to the length of time necessary to the exhibition of which, there are no determinable limits, is undertaken to be forced into the compass of a single sitting. The consequence is,—that, in no small proportion of the whole number, causes are, of necessity, badly tried, and, in another not inconsiderable proportion, they are not tried at all. In these last cases, the cause is sent off, as above, to reference: and thus it is that, at common law, the trial of matters of fact makes a job for the benefit of barristers, fee’d in the character of judges, quoad hoc in the character of referees, or arbitrators;—as in equity, for the benefit of the sort of subordinate judges called masters: both receiving payment, in such a mode as puts their interest in a state of the most point-blank opposition to their duty:—payment, viz. in proportion to the quantity of delay, vexation, and expense, to which they have given existence—both operating in that secresy by which every desirable facility is afforded to the sacrifice to which the interests of justice have been doomed.

By way of prelude to this scene of pillage, the parties, without any of the benefit of jury-trial, have had the whole of the expense: and thus it is, that the more completely incompetent it is to its professed and pretended objects, the more indefatigable are the eulogies of which this mode of judicature may for ever Edition: current; Page: [105] be assured, at the hands of the only class of persons who can so much as pretend to have anything like a distinct and adequate comprehension of it.

In relation to this subject, anything in the way of detail would here be not only misplaced, but needless: in another work,* indication, and in considerable detail, has been given, not only of the mischief, but of the remedy—the only sort of remedy which the nature of the case admits of.

§ 1.: Avoidance of Deception: viz. I. through Imbecility.

A class of cases in which (as there has already been more than one occasion incidentally to observe,) exclusion of evidence cannot (it will be seen) be in any instance proper, that is, subservient to the ends of justice upon the whole, is that in which it has for its sole ground or cause, a regard for the direct ends of justice, viz. the desire of preventing misdecision, in respect of the question of fact—and thence of preventing deception, deception by the operation of the evidence, against which, in the character of a safeguard, the exclusion of it is proposed. Say for shortness, exclusion on the score or ground of deception;—or, exclusion for fear of deception.

Imbecility, interest, improbity, viz. on the part of the individual whose testimony is in question: to one or other of these heads will, it is supposed, be found reducible every plea for exclusion, in the case where it has danger of deception for its ground.

As for imbecility—intellectual infirmity—were it not for the purpose of showing that it has not been overlooked, it would, in so abridged a sketch as the present, be scarcely worth mentioning. In the body of the work, it will be brought upon the carpet, and with it the imbecility displayed upon the subject by English judges, who are not the less good witnesses.

Mental derangement, non-age, superannuation: these three words may suffice to bring to view its modes,—its modes as deduced from its causes. As to trustworthiness, it depends in this case altogether upon degree: depending upon degree, it depends upon idiosyncrasy: and of idiosyncrasy, examination, which cannot be without admission, presents the only test.

§ 2.: Through Interest; viz. Sinister Interest.

1. Of interest, it may perhaps by this time be suspected at least, that no proper cause of exclusion will be found capable of being deduced from it.

If by interest, a proper ground for exclusion were afforded, all evidence that has the human breast for its source, would be to be excluded: all personal evidence; and along with it, all justice.

2. Of interest it has been shown (Ch. VII.) that but for its influence, no evidence at all would ever be produced: that if it be by interest that all mendacious incorrectness and incompleteness is produced, so it is by interest that all security against deceptious,—against mendacious, as well as against temerarious incorrectness and incompleteness,—is produced.

3. From interest, it is only through the medium of incorrectness or incompleteness that deception can be produced. From interest, the worst that is apprehended as the immediate effect of it—the effect of it on the testimony of the witness, is falsehood; i. e. material incorrectness or incompleteness. Now from such falsehood, no evil effect—to the purpose of the individual occasion at least, is produced, but in so far as deception is produced. But of falsehood, even of meditated falsehood, deception is no necessary or constant consequence; and in so far as antecedently to decision it is detected, instruction,—and in so far, not misdecision, but right decision, is the natural fruit of it.

4. In the case of mendacity-prompting interest,—in proportion as its mendacity-prompting influence is obvious,—obvious to all mankind, exactly in that same proportion is it unlikely to prove deceptious.

5. A pecuniary shape, is that shape in which its mendacity, and temerity-promoting influence is most plainly and most universally obvious. It is in this shape, and scarcely, if at all, in any other, that interest has been taken for a ground of exclusion by the founders of the English law of evidence. Love of power,—regard for reputation,—sensual appetite,—sympathy,—antipathy,—in none of all these shapes, single or in combination—no, not though all were combined together,—is any influence, worth the employing of this their universal remedy for guarding against it, attributed to interest, by these sages. Such is the truth, such the depth, of their system of psychological dynamics;—love of money is the only love which in their theory has any force.

6. In the ordinary concerns of life, business in general is undertaken and carried on, in part or even wholly, on the ground of information from persons, in whose breasts, not only interest, but interest in a pecuniary shape, is acting, and that with no less force than what it would, on a judicial occasion, be acting with within the breast of a witness or party, and without that restraint which, in Edition: current; Page: [106] the case of judicial testimony, is applied by the fear of punishment and public shame. Under these circumstances, deception is, it is true, but too common; yet, in comparison of undeceived judgment, rightly deduced from statements true or false, or partly in the one case, and partly in the other, the case of deception is still comparatively but a rare one. Deception as often as it occurs—deception, as being a case comparatively extraordinary, is sure to attract notice:—right judgment, being the ordinary case, passes unobserved, and no account is taken of it.

The giving admission to what is called interested evidence (as if there were any evidence that were not in some way or other under the influence of interest,) is therefore not a rash projected experiment that remains to be tried:—it is a course of experience that has been carrying on, and with success, as long, and to as great an extent, as human life itself.

§ 3.: Through Improbity—including Religious Persuasion.

In the order of consideration after interest comes improbity. Why? Because it is only through the medium of interest, that, in the case of improbity, danger of deceptious incorrectness or incompleteness can be produced. Exposed to shame at any rate, and to punishment, unless in this respect, in manner before mentioned (Chap. IX. Oath,) the legislator has been unobservant of his duty, the testimony of the most profligate man will not be any more likely to turn aside into the path of mendacity,—no, nor even into the less crooked path of temerity—than that of the most virtuous, unless led into it by the promoting influence of interest—of interest in some sinistrously-directed shape.

To the head of exclusion on the score of improbity, belongs exclusion on the score of religious persuasion—persuasion on the subject of religion. Not that to persuasion, howsoever erroneous, nor even how mischievous soever the error resulting from it,—not that even to such persuasion, supposing it sincere, any such imputation could consistently with justice be attached, but that such is the imputation which in fact men are but too generally found in such cases to attach to it.

Concerning atheism, it can scarcely fail of being acknowledged as soon as mentioned, that the mode of persuasion indicated by it is of that sort which cannot ever be proved upon a man but by means of veracity on his part—and that to a degree of which, even among Christians, the extreme rarity is proved by experience, unhappily but too incontestibly:—veracity in circumstances in which, in case of mendacity, detection is impossible. For in such security rests every false declaration of internal persuasion, of the falsity of which no special indication can be given by any special external sign or act.

As to cacotheism, it is an appellative, which by any person to whom the grammatical import of it is known, cannot be refused to any religious persuasion, in so far as to the Almighty are ascribed by it any such qualities as those of malevolence and maleficence. But such unhappily are his attributes in the eyes of religionists in general: malevolent in description, he is benevolent only in name. But surely, consistently either with moral justice or grammatical propriety, not even on the ground of any such persuasion, how pernicious soever in its effects, can any such imputation as that of improbity be attached—that imputation, which, on the ground of simple non-belief as above, as if in revenge for contradiction, men in general are so forward to attach.

§ 4.: Avoidance of Vexation by Self-Inculpation.*

In the last preceding chapter, in the case of a conflict betwixt any one and any other of the ends of justice—say the direct and collateral—the comparative magnitude of the good and evil in question were held up to view, as constituting the proper criterion by which, in every such case, the choice should be determined. The principle itself will scarcely be regarded as subject to error: in the application of it, should any error ever be suspected, it is in the mode of application, if anywhere, never in the principle itself, that the cause of the error will be found:—on one side or other, for example, some item left out of the account: on one side or the other, to this or that item, such a quantity ascribed, as turns out to be more or less above, or more or less below, the truth.

In the case of a penal law, for example, the vexation which, in a given individual instance, would, by the execution of it, be unavoidably produced in the breast of an unoffending third person,—would the evil of it be greater than that which, in the same individual instance, would result from impunity Edition: current; Page: [107] on the part of an offender? If yes—then, rather than the vexation should be produced, the impunity ought to be suffered to take place. By impunity given to an offender, the ends of justice contravened are indeed the direct ends; by vexation, inflicted on that same occasion, the ends of justice contravened are but the collateral ends. True: but the question of real importance, the question on which depends the propriety or impropriety of the choice is—not that of which words, but that of which sensations, are the subject; viz. as between two lots of good or evil, which is the greatest, which the least.

Laying out of the case all danger to innocent third persons, confine now the evil to the offending breast. No evil here of that sort which stands opposed to the direct ends of justice: as little—for let that too be part of the supposition—any evil of that sort which stands opposed to the collateral ends of justice: no evil but that of the punishment, and, by the supposition, that punishment not falling but where it is due. But in this case, though of punishment there be not any but what is due, of vexation there is not less in this case than in the other. Punishment itself is in itself neither more nor less than vexation—vexation inflicted on purpose, and for a particular purpose. But because there exists not that punishment, to which, as often as it is inflicted, the name of vexation may not also, and without impropriety, be applied, does it follow that punishment ought not in any case to be inflicted? Extravagance such as this has never yet been exemplified.

Not only is punishment vexation—vexation at the time of its being inflicted, but to the individual on whom, in the event of its being inflicted, it will be applied, all inquiry tending to such infliction is already productive of vexation. But, from this, does it follow that no such inquiry ought in any case to be made? In the scale of extravagance, let the supposed notion just mentioned stand ever so high, this can scarcely be placed below it.

Among the singularities of English law, and (note well) of judge-made law—for under legislators’ law, it will be seen, the case is different—may, however, be seen a rule, composed of this very extravagance. To a defendant in a penal cause, not to speak at present of non-penal ones, be the cause what it may, no question, from the answer to which, supposing him guilty, the discovery of his guilt may be facilitated, ought judicially to be put:—if put, he is not bound to answer:—nor, from his silence, should any such inference as it is impossible for common sense to avoid deducing, be deduced by law. And thus it is, that an exclusion is put upon one of the most instructive species of circumstantial evidence.

But it is in the practice under this rule that anything like consistency is no more to be found, than in the practice under any other rule belonging to the law of evidence—not to speak of any other part of the mass of judge-made law. But whatsoever be the deduction that may here be found to have been made by inconsistency, what remains will present but too much matter for regret to every eye, to which, by sinister interest, the spectacle of human suffering has not been rendered an object of satisfaction or indifference.

In proportion as absurdity is gross and palpable, the imputation of trifling is a reproach to which it exposes every observation that can be employed in the manifestation of it.

In the course of those which follow, not a step can be taken but this imputation must be encountered. But so replete with mischief, and at the same time so deplorably strong and inveterate, is the prejudice in which this rule is grounded—so completely under the direction of interested lawyer-craft have barbarity and absurdity succeeded in passing themselves upon the public mind for humanity and wisdom—that few occasions, it is supposed, would be to be found, in which any such peril could be encountered for a worthier cause.

1. Be the defendant ever so guilty, the only ultimate evil that can befal him, whatsoever be the evidence by which his guilt is manifested, is that of the suffering, to which, on the score of punishment, it may happen to the question so addressed to him, to be contributory. But if, for forbidding such questions, so it be, that the danger of this evil constitutes a sufficient reason, where the individual to whom the questions are addressed is the defendant himself, so must it in the instance of every other individual that can be mentioned: an equally sufficient reason must it afford for prohibiting all questions of that tendency, to whatever other individual it may happen to them to be addressed:—in other words, for offering impunity to every delinquent whatsoever.

2. Different, in this respect, might be the case, if, in the first place, so it were that, on the part of men in general, when under prosecution with a view to punishment, there existed any such propensity as that of subjecting themselves to the punishment, when, in truth, they are innocent; if, moreover, in the next place, such were the strength of that propensity, as to render the danger of a man’s being made to suffer such undue punishment by means of testimony given by him against himself, greater than by testimony given against him by other persons at large: all such included, as by injury supposed to have been received from him, or on any other score have been placed in the number of his particular enemies. But if in human nature there be really any such self-hostile propensity, Edition: current; Page: [108] no traces of it seem as yet to have come to light.

3. In the character of a separate suffering, resulting from the particular mode in which, in this case, the evidence is obtained,—vexation, hardship, suffering—everything of this sort is altogether imaginary. The suffering consists in the punishment. The punishment being given, is it in the nature of man, that to him who is to suffer it, whether the evidence, by means of which the suffering is produced, be obtained from this source, or any other source, in this shape or in any other shape, it should make any the smallest sensible difference? Before the affirmative be asserted, first let some one man be found who, having his choice, rather than be made to pay £5 by means of this sort of evidence, the fact of the delinquency being in both cases rendered equally manifest, and equally notorious, would put his hand into his pocket, and pay down £6.

4. Those who are free from guilt,—is it possible that these should have been the persons for whose protection the rule was intended? They are exactly the very persons, and the only persons, to whom it cannot ever be of any use. Take any such person, for example: by the supposition he is free from guilt: but by the same supposition he is suspected. This being the case, the suspicion of which he is the object, it is surely his interest—if he be of sound mind, it is no less surely his wish—to remove: it is accordingly as well his wish as his interest that all such explanations as can contribute to that removal, and such, in particular, as afford the best chance for it, should be afforded. But from what other quarter can any explanations be expected, of which there can be so good a chance—if chance be here the proper term—of their being directed to that end?

5. All other evidence—all evidence except the testimony of the defendant himself—that would have been the evidence, to which to have applied the exclusion, supposing the eyes on which it depended open to this one object, shut against every other. But by such a substitution, supposing it practicable, neither the interests, nor consequently the purposes, of the contrivers of this rule, would (as will be seen presently) have been served.

6. If the saving a guilty defendant from the hardship of observing that the evidence by which his delinquency is exposed and his punishment produced, had been extracted from his own bosom,—if this be the object, in pursuit of which the exclusion was established, this object is after all not compassed. For not only is any letter or memorandum, which to the effect in question he has been deemed to have written, read against him, but any oral discourse, which to that same effect he is reported to have uttered, is delivered in evidence against him, delivered in his hearing, and without scruple or reserve. In its purest and most perfect state, in its acknowledged best state,—it is only in that state that evidence from this source finds the technical door so inexorably shut against it. Yet open this shut door is to evidence from this very source, when once it has been strained through other lips, and by that means reduced to the universally acknowledged inferior shape and condition of hearsay evidence.

7. Of the exclusion in the one instance, coupled with the admission in the other instance, what is the effect of the rule, as towards the only person for whose sake, if for anybody’s, it professes to have been established?

For want of such explanations, as very frequently are neither obtained nor obtainable from any other mouth—explanations of which, if true, the effect might have been to substitute exculpation to conviction,—a lighter at least, to a deeper shade of delinquency,—conclusions to any degree dangerous to him are liable to be drawn from such casually written or hearsay evidence: and explanations to any such effect are not received from him in the character of evidence.

8. Of the exclusion thus put upon first-hand evidence, while admission is given to second-hand evidence, behold in one view the consequences:—

1. Whatsoever be the purpose in question, to that same purpose the information thus received is almost sure to be incomplete—deceptiously incomplete: for in relation to the matter of fact in question, whatsoever, if anything, it be, that on the extrajudicial occasion was said by the party in question, it is only so much as the deposing witness is at the same time able and willing to recollect, that is thus brought forth in evidence.

2. Of the remainder, which is not altogether suppressed, the account thus given may, by want of recollection, by negligence, or by improbity, have been rendered in any degree incorrect.

3. By the party himself, the incompleteness might be completed—the incorrectness corrected. No such completion—no such correction, is permitted.

4. From the substitution of such almost necessarily incomplete to less incomplete, of such naturally incorrect to less incorrect evidence, the only means of completing the incompleteness and correcting the incorrectness being at the same time excluded, the innocent are injured, as well as the guilty served.

9. In those situations, and on those occasions, in which the existence of real tenderness for the feelings of the individual concerned, as well as of the desire of coming at the truth, Edition: current; Page: [109] are most indubitable, no such determination against drawing information from the most instructive source—no such predilection for second-hand, to the exclusion of first-hand evidence, is ever to be found.

In the case of a servant, or a child, if any instance of supposed misbehaviour is to be inquired into, where is the master of the family, where is the schoolmaster, where is the father, where is the mistress, where is the mother, weak enough to take for the model of his or her conduct, in this particular, the practice of English judges?

10. In the case of those higher classes of offences which have received the name of felonies, this rule of spurious law has for centuries been acting in the teeth of the only genuine law.

By two successive statutes of Philip and Mary (1 & 2, c. 13; 2 & 3, c. 10,) in case of suspicion of felony, the justice or justices of the peace before whom the suspected person is brought, are required “to take the examination of such persons,” as well as “the information of those who bring him.” Examination?—concerning what? “Concerning the fact and circumstances thereof,” says the statute,—viz. of the supposed felony. To what end? To the end that, in case of delinquency, such answers as shall have been then extracted may, along with the other evidence, contribute to his conviction, says the statute;—for this it is, “or as much thereof as shall be material to prove the felony,” that is required to be “put in writing,” and “certified,” and so forth.

It is in virtue of these two statutes, that those examinations are taken, which are so constantly taken in every case of felony: and, if not for the purpose of eventually contributing to conviction, for what other useful purpose could any such inquiry be made, or have been ordained to be made?

Unfortunately for justice and good government, to offences below the rank of felony this did not extend, nor has the principle of it been extended. True it is, that in so far as in point of mischievousness those offences which in point of punishment fall short of being equal to felonies, the demand for such evidence falls short of being so imperious as it is in the case of felonies: but in the same proportion does the objection,—which on whatever score, and under whatever name—hardship, severity, vexation, injustice, danger, or nuisance, or whatever else the word may be, capable of being urged against the inquiry so directed,—fall short, in point of strength, of being equal to what it is in the case to which, by and under the only genuine sort of law, this most unobjectionable course for coming at the truth is ordained and pursued—pursued, viz. either in reality or in appearance, as is most agreeable to the worthy gentlemen, on whom in each individual instance it depends.

11. Yes: as is most agreeable. For in the class of cases in question, in which are comprised the most highly penal, capital cases included, by the exclusion put by judge-made law upon such evidence, coupled with the admission given to it as above by legislators law, a disguised and despotic power of pardon has been virtually placed in the hands of those magistrates. Wishing to do justice, the magistrate conducts the examination according to the intention of the legislature:—wishing to show undue favour, and at the same time make a display of elemency and legal science, he takes his stand on judge-made law, and warns the criminal against suffering the language of self-accusation to issue from his lips.

12. In the case where the punishment would be no other than pecuniary, the inconsistency of the practice with itself affords the most conclusive proof of absurdity, that it is in the power of absurdity to receive. If the case be called penal, under the name of punishment, five shillings cannot be taken out of a man’s pocket by evidence extracted immediately out of his breast, through the medium either of his lips or his hand. If the case be called civil, money to any amount—money, or money’s worth, to the amount of his whole property, be that property ever so vast, may be taken out of his pocket, by evidence extracted—not indeed through the medium of his lips, but—what in respect of the enormity of the expense is to him far worse—through the medium of his hand;—and this is among the cases in which, to perform the extraction, judge-made law takes the name of equity.

13. The class of malefactors, to which this article of judge-made law is, perhaps, most continually favourable, are those whose situation in respect of power and opulence exempts them, in the pursuit of sinister interest, from the necessity of engaging in any of those dangerous paths by which men are exposed to the hazard of being subjected to such preliminary examinations: those whose crimes, being committed on a large scale, and consisting in peculation or in abuse of public power, in some well disguised and protected shape, receive at the hands of kindred iniquity every practicable facility and indulgence: and in this effect and tendency, coupled with the contribution made by it towards the aggregate mass of disguised despotism vested in judicial hands, may be seen at least probable cause, if not of the creation, of the ever tender care bestowed upon the preservation of it.

§ 1.: Undisguised Exclusions.

Of the two most permanent and most comprehensive grounds and cases of exclusion, a view, howsoever abridged, has been already given a detailed view will be seen to occupy the extent of not less than a volume in the body of the work.* But even in this place, to leave in the state of a mere blank space, so important a compartment in the field of actual jurisprudence, was not to be endured:—an analytic sketch, howsoever meagre and compressed, seemed preferable to total silence.

Undisguised and disguised: by these two words, expression may be given to the first and most comprehensive distinction that requires to be brought to view.

Undisguised the exclusion may be termed, when, and in so far as, both the fact of the exclusion—the fact that upon a species of evidence of such or such a description an exclusion has been put, and the consideration on which, in the character of grounds or reasons, that exclusion has been, or upon occasion would be justified, seem out of doubt:—disguised it may be termed, when, and in so far as, either that fact or those reasons appear more or less unobvious and difficult to be discerned or ascertained.

Indirect—undiscriminating—limping—undiscernible—blind—wanton: by these several adjuncts—sometimes one, sometimes two or more of them together, the exclusion will, it is supposed, be found not unjustly characterizable, in most, if not all of the cases, in which it will appear susceptible of the more comprehensive appellation of disguised.

When the exclusion presents itself as having been the result of a view taken of some one or more apprehended inconveniences, considered in the character of grounds or justificative causes, serving as warrants for the exercise of such an act of power, the act of exclusion, as well as the consideration or considerations on which it was grounded, will concur in entitling it to the appellation of undisguised:—and here, although the ground itself should in the balance of reason be found deficient, still it is to thought itself, not to the mere absence of it, that the exclusion will appear referable.

On a simple ground, or on a complex ground: by these two words, viz. simple and complex, may be characterized the distinction which takes for its subject the cases in which the exclusion is undisguised:—simple, when one circumstance and no more presents itself as the ground on which the exclusion was built:—complex, where several such grounds present themselves.

Take, in the first place, the case where the ground of exclusion is simple. In this as in other cases, the ends of justice which, if any, have been had in view, will have been either the direct ends, or the collateral ends:—the direct ends, viz. prevention of misdecision, in the several forms of which it is susceptible:—the collateral ends, i. e. prevention of unnecessary delay, vexation, and expense.

Misdecision, in so far as produced by evidence, is produced through the medium of deception: deception, i. e. erroneous judgment, produced by it in the mind of the judge.

On the part of an article of evidence, whatsoever circumstance tends to diminish its justly probative force—this same circumstance, in proportion as the judge fails of being adequately apprized of such its tendency, tends to produce deception in the mind of the judge. On this consideration, every such circumstance has been already stated as constituting a proper ground for suspicion, though, for the reasons that have been given, not a proper ground for exclusion.

In English practice, any such cause of inferiority, how minute soever, is to a large extent considered and employed as a proper ground for exclusion: but with a degree of inconsistency, of which intimation has been already given:—such being the effect, which, in cases where the force of the cause is at its minimum, has been deduced from it, while in cases in which that force is at its maximum, this same effect has not been deduced.

Such, so far as concerns exclusion of evidence, is the complexion exhibited by English practice, when viewed in a mass, and when, and as the cases successively present themselves, groupe after groupe. In particular groupes, this complexion will not be seen to exhibit any considerable change.

In regard to collateral inconvenience, in all its three several forms as above, it has been stated as capable of constituting a proper ground of exclusion: the propriety depending, on each individual occasion, upon the proportion between the two evils—viz. the evil to be apprehended in case of exclusion, and the evil to be apprehended in case of admission. At the same time, temperaments have been brought to view, having for their object the exclusion of evil from both those sources, the complete exclusion of it, or, at any rate, the reduction of it to the least dimensions of which it is susceptible.

In English practice, in the shape of delay or expense, such collateral inconvenience appears scarcely to have been taken into account. In the shape of vexation it has been employed in the character of a ground of exclusion, Edition: current; Page: [111] but with a degree of inconsistency, of which intimation has also been given above.

Let us consider, in the first place, the distinctions which present themselves in the case where the evil, by the apprehension of which the exclusion was produced, has been misdecision, viz. through deception.

The fact, to which the article of evidence in question immediately applies, may be either the fact itself which is in question,—say as before, the principal fact,—or some other matter of fact, which, in relation to it, is considered as evidentiary,—say as before, the evidentiary fact,—viz. either probative or disprobative. In the former case, the evidence is said to be direct: in the latter case is all circumstantial evidence, as above.

In its very nature, circumstantial evidence, viz. any single article taken by itself, has already been stated as being generally inferior in probative force to direct, (though not so in disprobative,) and in so far, as being comparatively speaking a proper object of suspicion, but in no instance as involving in its nature a proper ground for exclusion.

In English practice, circumstantial evidence, as such, is not in general considered as doomed to exclusion: but, in cases to a considerable extent, it will be found to be so; as will be seen more particularly in the body of the work.

Take now the case in which the evidence is direct. Source and shape: in these two, may be seen the characteristic terms by which the two branches produced by the next division, will stand expressed.

If, in respect of probative force, weakness be on any specific ground imputed to the evidence, the object pointed to as the seat of the weakness will either be in the source from whence—i. e. the person from whom—the evidence is immediately derived, or the shape in which it is received or extracted from him.

If, as above, it be in the person—i. e. of the proposed deposing witness—it will be either in his relative position, relation being had to the means of information afforded by it, or in the personal character and qualities attributed to him.

As to his means of information, it will have been presented to him either ab intra, by internal cognizance,—or ab extra, by external report: in the former case, it is afforded to him by the perceptions presented to him by his own senses or intellectual faculties; in the other case, by the supposed perceptions of some other person or persons as reported to him by such other person or persons. In so far as the former is the case, it is only to his own personal character and qualities as above, that any such imputation as above can point itself: in the other case, whatsoever be the personal character and qualities ascribed to such his informant or informants, the testimony delivered by him will, by at least one degree of distance, be removed from the seat or supposed seat of perception: and by such remoteness, how entire soever be the trustworthiness of the several supposed informants,—by such remoteness, in proportion to the number of degrees by which as above it is increased, will in every case be presented an incontestable cause of weakness, or diminution of justly probative force.

In so far as the alleged cause of weakness lies in the supposed character and qualities either of the deposing witness, the supposed percipient witness, or of any supposed intermediate reporting witness or witnesses—the alleged seat of such weakness lies in the supposed nature of the source from which, or of this or that one or more of the channels through which it is supposed to have passed. In the other case, it lies in the remoteness of the information from its supposed source.

State of the intellectual department—state of the moral department, of the man’s mind: such are the terms by which the two branches produced by the next division may stand expressed.

Imbecility independently of age, imbecility by reason of age—such is the distinction that has place when the disorder in question, viz. apprehended untrustworthiness, has for its seat the intellectual department as above.

Having its source in the circumstance of age, imbecility will have for its efficient cause either deficiency or excess:—deficiency, viz. in the case of non-age;—excess as in the case of caducity, or say more expressively, antiquation.

If the disorder have the moral deportment for its seat, it can have no other than sinister interest for its efficient cause—sinister interest, i. e. as above, interest in any shape acting in the sinister direction here in question; viz. a direction in which its tendency is to produce deceptious incorrectness or incompleteness in the evidence.

Actual exposure to the operation of sinister interest in this or that particular shape—more than ordinary sensibility to the action of that stimulant: to one or other of these circumstances will the disorder in question be referable, in so far as, having its seat in the moral department of the human frame, it has for its efficient cause, sinister interest, as above.

Actual exposure to the action of sinister interest in the case of him who, with reference to the matter in question, is, in the language of English law, said simply to have an interest, or to be, if a witness, an interested witness.

To the purpose here in question, more than ordinary sensibility to the action of sinister Edition: current; Page: [112] interest is expressible in and by one word—improbity.

If the positions hereinabove endeavoured to be established be conformable to reason, suspicion, and no more than suspicion, is the proper practical inference deducible from any such disorder, actual or presumable, in the frame of mind of the proposed witness, and that whether the intellectual or the moral department be the seat of it.

Not only in England, but in other countries, and probably without exception in all other countries, either by statute or by judge-made law, have causes of exclusion been deduced from all these several sources: but with a degree of inconsistency, the complete development of which would require volumes.

Period of supposed perception, and period of deposition: by the state of things that has had place in one or other or both of these two periods, it is, that the shape in which the evidence presents itself is determined; and to one or other of which any intrinsic weakness that can be found imputable to it will be to be referred.

In so far as the period of perception is the time to which the weakness is referred, the imputation will have for its ground the absence of some one or more of those accompaniments which, in the case of preappointed evidence, have already been brought to view under the appellation of formalities:—in so far as the period of deposition is the time to which the untrustworthiness imputed to it is referred, the imputation will have for its ground the absence of some one or more of those accompaniments which have already been brought to view under the appellation of securities—securities for trustworthiness, securities against deceptious incompleteness and incorrectness.

As to formalities, the state of things which admits them is confined to that which admits of preappointed evidence: a case in which, the fact in question being foreseen, provision is made beforehand for the preservation of the means of proving it.

Of the accompaniments which, in the character of formalities, presented themselves as promising to be in the most advantageous way conducive to that proposed end, a general idea has hereinabove been given:—suspicion, not exclusion, has on that same occasion been mentioned as the practical inference, and the only practical inference proper to be deduced from any incorrectness or incompleteness, with which the best of such of them, as on any given occasion happens to have been employed, may be found chargeable.

In the state and condition of English law, statute and common law together, notice of the tissue of inconsistencies observable under this head has been already given. In the way of real law,—in the way of prospective law,—no tolerably complete system of formalities ever appointed:—in the way of judge-made law,—in the way of ex-post-facto law,—here and there, this or that formality set up in the character of one that ought to be observed:—from the non-observance of this never-notified formality, exclusion sometimes deduced, sometimes not:—practical inference, always exclusion, if anything; simple suspicion, never.

Prescribed or not prescribed by the law, the securities termed formalities—the securities for the eventual forthcomingness of adequate evidence—are capable—such is their nature—of existing and being employed, without having been called into existence by the law. The securities termed as above securities—the securities against deceptious incorrectness and incompleteness in the evidence when produced—are, almost without exception, creatures of law, depending upon the law for their existence.

As to these last-mentioned securities, if the positions herein endeavoured to be established be conformable to reason, in so far as practicable,—prudential as well as physical practicability taken into the account,—to a proposed article of evidence not yet brought into existence, they ought, all of them, to be applied: as also, upon occasion, to an article of evidence already in existence, such, if any, as have not as yet been applied to it; and from the absence, coupled with the inapplicability of all or any of them, suspicion, but not exclusion, ought to be, and that uniformly, the principal inference.

In the course taken under this head by English law—understand judge-made law—for in this part, as almost in every other part of the field of evidence, it is to the judicial authority that the framing the rule of action has been almost entirely abandoned by the legislative—the features of inconsistency have already been shown to be still broader, perhaps, than in any other. The accompaniments best adapted to this purpose have been fully understood; and on these occasions—i. e. on the occasion of those modes of trial in which the mode of procedure has not been capable of being shaped altogether according to the interest and pleasure of the judges—the absence of any of them has been laid hold of as a ground of exclusion; and exclusion—inexorable exclusion—in some instances has been put upon the evidence accordingly; while, on other occasions, viz. on the occasions of those modes of trial, the framing of which has been the work of the uncontrouled authority of the judges—on those occasions, all these securities have been excluded,—that inadequate portion of them excepted, which has been wrapped up in, and disguised and enfeebled by the ceremony of an oath:—and thus, as far as circumstances permitted, the door has been shut against evidence in its Edition: current; Page: [113] most trustworthy shape, opened to it in no shape but the most deceptious that could be given to it.

Remains the class of cases, in which, for the designation of the ground on which the exclusion appears to have been built, the term complex was employed. Fear of the evils opposed to the direct ends of judicature, fear of the evils opposed to the collateral ends of judicature, or one of them; in other words, desire, real or pretended, of avoiding to produce misdecision through the medium of deception—desire, real or pretended, of avoiding to produce, in this or that particular shape, vexation: such were the two grounds, with a view to which the word complex was employed.

The individual in question, a party to the suit or cause—a party, whether plaintiff or defendant;—the individual in question, connected by the matrimonial tie, with a party in the cause, bearing towards him or her, the relation of wife or husband:—

By these two more particular cases, the class of cases here in question are, if not absolutely exhausted, at any rate extensively exemplified.

From neither of these grounds, saving the comparatively narrow exceptions already indicated, if the positions hereinabove endeavoured to be established be conformable to reason, on neither of them, nor, for the same reasons, from both of them put together, can any proper cause of exclusion be deduced.

Under English practice, inconsistency may be seen triumphant here as elsewhere: exclusion abundant, but far from constant:—where it has place,—what the ground of it has been,—what the mischief meant to be avoided—whether one alone of the two mischiefs in question, or both, is not always clearly discernible:—to an ample, though not everywhere easily definable extent, the front-door has been shut against the evidence, but a side-door opened to it:—fact in question the same,—state of interests the same—the same in quantity, in quality, or in both—no matter, so the name given to the species of suit or cause be different:—since thus, besides the general benefit of uncertainty, and thence of obscurity and confusion,—two or more suits or causes have not unfrequently been manufactured out of one.

In the case where the term negative applies to it, the exclusion has for its efficient cause the non-application of some legal instrument necessary to the obtainment of the evidence.

On the part of a proposed witness, antecedent and introductory to the act of deposition, may be seen a multifarious and complex train of acts—all of them, for the purpose in question, sufficiently brought together by one word, forthcomingness.

Correspondent to these two modes of being on the part of the proposed witness, are so many modes of negative exclusion on the part of the law: non-provision of the powers, and other means necessary to the production of deposition, on the part of the proposed witness, supposing him in a state of forthcomingness;—non-provision of the powers and means, one or more or all of them, necessary to insure his being found in that state.

When, and in so far as it is left to a man’s option, whether, on the occasion in question, he will or will not appear and act in the character of a witness,—in this case, in the positive sense, exclusion is not put, but in the negative sense, exclusion is put, upon evidence.

In the present work, what in relation to this head is contended for is, that,—due provision, excepted in this as in all other instances, for the case of preponderant inconvenience in the shape of delay, vexation, and expense, more particularly in the shape of vexation,—to render or not to render to justice, service in this shape ought not to be left to the option of the individual:—in other words, that negative exclusion is not proper, but where positive exclusion is so too:—for that of such option the tendency is to stock the judicatory with partial, and in that respect less trustworthy witnesses: and more particularly to render testimony, and thence decision dependent upon money or power—upon overbearing and oppressively aristocratical influence.

As to actual law: under this head, as under so many other heads, judge-made law may be seen exhibiting its usual inconsistencies as well as its usual imperfection and deficiency: in regard to forthcomingness, to no small extent the necessary means not applicable, because not created:—in other instances, though created, not suffered to be applied.

In particular, as to optionality, when the only shape in which evidence is admitted is that favourite shape which is the worst of all shapes in which the information admitted receives the name of evidence—viz. affidavit evidence,—deposition or non-deposition left completely at the option of the proposed witness:—thereby the probability of misdecision, viz. through the medium of deceptiously incorrect and incomplete evidence, screwed up to its maximum—say, in one word, maximized.

§ 2.: Disguised Exclusions.

So much for the cases where the fact of the exclusion, the evidence it applies to, and the ground which, in point of utility, real, or supposed, it proceeds upon, all lie open to view. Come now the cases in which, wrapt in some disguise, these same objects Edition: current; Page: [114] shrink from observation. Thick is now the darkness that covers the face of the jurisprudential deep.

Analysis is here at a stand. Directed by her best guide, pursuing here and there such faint lights as offer themselves, enumeration enters upon her task, without any assurance of its completion.

1. Cases where the exclusion is effected by limits set to the quantity of evidence that shall be allowed to be extracted or received: for example, to the number of the witnesses who, in the case in question, or in relation to the fact in question, shall be heard: much as if a similar limitation were set to the number of sheets of paper on which the depositions shall have been entered, or to the bulk or length of the aggregate mass. Spanish, not English, is the system of law from which the idea of this species of exclusion has been derived. Vexation on the part of the judge, thence perplexity, thence misdecision—or delay, vexation, and expense—or both, appear to have been the evils the avoidance of which was contemplated here.

In this case, the object hid from sight is—not the fact of the exclusion, but the particular nature of the evidence to which it applies.

2. Cases where the exclusion is effected by limits set to the length of time during which evidence shall be received: thence excluding in the lump whatsoever is over and above the quantity that can be received within the length of time thus limited.

To this head belongs the exclusion put, under English law in jury-trial, by the practice which confines the quantity to that which can be received on the compass of a single sitting: in particular, when justice travels post, as on the circuits. Of the evidence thus excluded, the nature is wrapt in impenetrable darkness. Even the fact of the exclusion seems to have been a secret to the people at large. In the instance last mentioned, the exclusion will be readily enough acknowledged to be absurd, being outlandish, and having nothing to do with jury-trial:—in this latter instance, it is as it should be, being English, and connected with jury-trial, and thereby with liberty.

Such is the justification which the man of law has in store for it, should eyes ever be opened, and complaint made of it—made by any of the thousands who, under and by virtue of it, are wronged and plundered.

Want of reflection seems to have here been the cause—if not of the mischievous arrangement itself, at any rate of the patience of the people under it—if not of the creation of the abuse, at any rate of the preservation of it. On these occasions, and in this manner, evidence continues to be excluded from the judicatory, because reason continues to be excluded from the throne, custom and prejudice having usurped its place.

3. Cases where, before the body of evidence which the fact happens to have afforded has been collected, or otherwise disposed of, such evidence as has been already collected is kept concealed. Of such concealment, one effect, and that a declaredly intended effect, is—to put an exclusion upon all such other evidence, in regard to which, but for such concealment, either the need of it, or the means of procuring it, would or might have been indicated.

In this instance, the exclusion is a natural, and seems to have been a constant accompaniment of the Rome-bred mode of collecting evidence,—viz. extraction per judicem ad hoc, in secreto judicis, partibus non præsentibus—and from the Roman school, adopted and employed in the English edition of Rome-bred procedure, as employed in the equity, the ecclesiastical, and the admiralty judicatories.

In this class of cases, the disguise is still thicker than in the class last mentioned: the mode of exclusion still more indirect.

The evil, the contemplation of which appears to have furnished, in this instance, not only a pretence, but in some measure a reason, is—the immensity of the mass of collateral inconvenience—of delay, vexation, and expense—to which the evidence thus excluded might perhaps have given birth: but to whatsoever evidence may come thus to be excluded, the reason cannot apply without having in the first place, and with equal justice, been applied to whatsoever has been, and is predestined to be, admitted.

Here, as elsewhere, the mischief has for its cause—the exclusion put by technical procedure upon those timely explanations between the parties in the presence of the judge, to which there has been such frequent occasion to make reference, and which, under the natural system of procedure, take place of course.

4. Cases where, to this or that species of evidence, are given, if by any general rule, the denomination and effect of conclusive evidence. The effect is to exclude in the lump all evidence whatsoever, that could have been brought on the other side.

This conclusive and exclusive evidence,—is it of the nature of direct evidence? Infallibility and impeccability are the attributes ascribed to the witness. Is it of the nature of circumstantial evidence? Between the principal and the evidentiary fact in question, a connexion is supposed, so close and intimate, that, in the whole storehouse of nature, no species of fact has place, by which, in the character of an infirmative fact, a severance between them is capable of being made. Cases of this sort are at any rate extremely rare: and if so it be, that of any such infirmative fact no instance exists, the advantage reaped Edition: current; Page: [115] from the exclusion of such non-existent evidence cannot be very considerable.

Either inoperative or deceptious,—in the first case useless, in the latter case pernicious,—such is the character of any such general rule.*

5. Cases where, for the proof of this or that particular species of fact, this or that particular instrument, document, or other species or article of evidence, is pronounced indispensably requisite. The effect is—to put an exclusion upon all other evidence, in relation to the fact in question, on the same side.

In the last preceding case, the evidence excluded was—all evidence on the opposite side. Counterparts, or companions, as it were, to each other—and not ill-matched—are these two cases.

Of this species of exclusion, the most important exemplification is that which is afforded by the rules that have taken place, respecting the evidence required in proof of the genuineness of an instrument of contract—say a deed or a will. To the examination of this particular sort of case, the next succeeding chapter has been appropriated.

6. Cases in which, to one and the same fact, witnesses, in a number greater than one, are pronounced indispensably requisite. The effect is—in relation to the fact in question, to exclude the testimony of every witness who does not bring another in his hand, giving the same account of the matter that he does.

7. Cases in which, antecedently to a man’s being admitted to deliver his testimony, it is made necessary that he should join in the performance of this or that formality, expressive of this or that particular persuasion on the subject of religion: such as the ceremony of an oath. The effect is—to put an exclusion upon the testimony of every person who will not join in such formality.

The ground of exclusion is, in this case, the man’s repugnance to mendacity: for, if he have no such repugnance, there is nothing to hinder his saying what is thus endeavoured to be put into his mouth to say. The man thus excluded is a man who, in demonstration of his repugnance to mendacity, has given a proof, beyond what any man whose testimony is admitted, can ever give.

If, for such refusal, no mode of penal compulsion be appointed, the consequence is—that, to avoid delivering any article of evidence, which it is not agreeable to him to deliver, a man has no more to do than to aggregate himself to any such oath-refusing sect.

If, for such refusal, a mode of penal compulsion be appointed and applied, here is persecution on a religious ground, and the severer the punishment which the man endures, the stronger is that repugnancy to mendacity, of which the endurance is conclusive evidence.

8. Cases where the exclusion has for its efficient cause, the rule of which the leading terms are, the words best evidence: for example, the law requires the best evidence which is to be had.

In this case, the ground or pretence of exclusion is obvious enough: fear of misdecision through deception. Not equally so the fact of the exclusion, or the nature of the evidence to which it is applied or applicable.

Question 1: What is the best evidence?—True answer: Whatever evidence we have thought fit, on the occasion in question, to admit, in preference to,—meaning thereby, when such is our phrase, to the exclusion of,—every other.

Question 2: The evidence which you thus prefer, why do you thus prefer it? Answer: Because it is the best evidence.

Even where the evidence in question may with propriety be termed the best evidence, i. e. where it is of that sort, supposing the sort determined, of which, source, shape, and everything else that is material, taken together—the probative force is greater than of any other,—from no such relative and Edition: current; Page: [116] comparative goodness can any rational cause be deduced for putting an exclusion upon any other evidence. This best evidence, suppose it encountered and shaken, or in danger of being encountered or shaken by counter evidence, or counter interrogation on the other side,—the support, whatever it may be, if any, that might be afforded by other evidence on the same side, ought it to be refused?

§ 3.: Table of grounds of Exclusion, extracted from various Codes.

Whether compared with one another, or with the ends of justice, the various circumstances which, by or under the laws of different nations, have been taken for grounds of exclusion, present a curious, nor altogether uninstructive spectacle. A dozen or so is the number of the bodies of law, from which matter of this sort having been collected, in the body of the work will be seen condensed into a synoptic table.*

Two contrasted subjects of observation will naturally be presented by it to view:—on the one hand, the universality of the practice, and, so far, of the adoption and application made of the principle; together with the amplitude of the extent to which, in the code of each nation, it has been carried:—on the other hand, the extreme diversity of the mode as expressed in the list of particular circumstances, to which in one code this effect has been given, compared with the list of them to which it has been given in the several other codes;—to which, had the sources been accessible, might have been added, in so far as the matter stood on the ground of statute law, at different periods, the diversity of the enactments; in so far as it stood upon the ground of judge-made or bookmaker-made law, the inconsistency of the authorities:—not to speak of the uncertainty, in many cases, whether it was in the character of a cause of exclusion, or only in that of a ground of suspicion, that the circumstance was considered.

As to the extent, if the several grounds of exclusion exhibited by the several codes, were put together, and made into one mass, the proscription would be found to have spread itself over the whole species, and thus not to have left so much as a single witness for the service of justice.

In some of these pictures,—for example, that which takes for its scene quondam France, and that which takes for its scene quondam Scotland,—one half of the species—the whole of the female sex, may be seen cast out at one stroke.†

From the universal reception and employment given to the exclusionary principle, an argument, not altogether destitute of plausibility, will be liable to be deduced: but to this argument in the character of sources of counter-argument, two circumstances may already have presented themselves. In the first place, the extreme diversity of the modes in which the application has been made of the principle,—the diversity real, the identity but nominal:—in the next place, the sinister interest, in which, it being in some instances best served by exclusion, in other instances by admission, the two modes of dealing, how opposite soever in themselves, would so easily find their common root.

§ 1.: Demand presented for such Safeguards, by the fear of change in case of the abolition of Exclusions.

Throughout the whole texture of this work one practical conclusion is continually presenting itself: for fear of deception exclude not any evidence.

How incontestable soever may be the propriety, such at the same time is the novelty of this recommendation, that, for obviating the reluctance which, in spite of reason, habit and imagination are on every such occasion so sure to produce, no safeguards which the Edition: current; Page: [117] nature of the case presents as capable of being opposed to apprehended mischief, seem much in danger of being regarded as superfluous.

In this character, three proposed arrangements will here be brought to view:—

I. Declaration of credence on the part of the exhibitant.

II. Code of instructions, as from the legislator to the judge, concerning the weighing of evidence.

III. Appropriate recordation;—viz. recordation of the cases in which suspicious evidence—evidence characterized by any cause of infirmity—has been exhibited—with the result, i. e. the decision that has ensued, and thence the credence or discredence which was produced by it: viz. in so far as, from the nature of the aggregate body, of which the particular article of evidence in question, in a case where it is not the only evidence, forms a part, any decided and well-grounded inference can be deduced.

§ 2.: First Safeguard—Declaration of Credence from the Exhibitant.

Of the sort of safeguard here in question, one exemplification or application has already been brought to view, viz. the declaration of credence proposed to be made by the party exhibitant, in the case of exhibition, made of a script in the character of an article of written evidence.

Of a declaration to this effect, the subject-matter there in question extended not beyond the genuineness of the script; but the principle there brought to view will be found susceptible of an application somewhat more extensive.

Among the objects and effects of the technical system, has been seen to be the giving to improbity, and thence to its principal instrument, fraud, every possible advantage: and, in particular, the providing for it a lurking place, where it may do its work in safety, secure not only against punishment so called, but against detection, and thereby against shame: to fraud in a negative shape thus securing, and without danger, that benefit which, at the hazard of so much danger, is sought for by fraud in its positive shape:—to fraudulent reticience, the benefit which, on other occasions, cannot be put in for, but under the perils which attach upon fraudulent mendacity.

Of the natural system the object is, and in proportion as it prevails, the effect will ever be, to divest improbity and fraud of this, as well as so many other subterfuges: to force improbity either to give up its purpose altogether, or to give to its instruments its more odious as well as only punishable shape: to compel fraud to divest itself of the veil of reticience, and to stand forth in the stark nakedness of positive mendacity.

For effecting this exposure, nature has offered to justice the efficient instrument so often brought to view, viz. interrogation: especially extemporaneous vivâ voce interrogation.

At every meeting of the parties coram judice, this instrument, in the instances that have been already brought to view, has been seen applying itself as of course: no mind so rude and uncultivated as not to be able, with more or less facility, to apply it: none so inexperienced and helpless as not to be disposed and ready to apply it.

But in that most efficient of its forms which has just been brought to view, the application of this instrument supposes mutual presence: existence of at least three persons in the presence of each other, viz. the two parties and the judge.

At the same time, as there has been such frequent occasion to observe, cases are not wanting, in which, either physically or prudentially speaking, such tripartite presence is impracticable: and from the existence of this state of things, results the need of a succedaneum to such vivâ voce interrogation, viz. interrogation in the epistolary form:—or what may perhaps in some instances be made to perform the like office, and at any rate with less delay, vexation, and expense, uninterrogated declaration in the terms of a preappointed formulary.

If it be fixed by a preappointed formulary, a declaration of this sort is not, however, by any means exempt from danger. The danger is—lest, by inappropriate penmanship, a man whose mind it finds in a state of probity and sincerity should be forced by it, not merely into insincerity, but into mendacity, as it were in his own defence: thus becoming productive of the very evil against which it is employed in the character of a remedy.*

To testimony of the ordinary stamp, about to be delivered by a person in the character of a witness, it will scarcely be found applicable. Generally speaking, except in the case of preappointed evidence, the persons to Edition: current; Page: [118] whose service, in the character of witnesses, a man finds himself obliged to have recourse, are not of his choice:—1. The character and disposition of the witness may be dishonest and mendacious, and the party know nothing about the matter;—2. It may be not only mendacious, but even known by himself to be hostile to himself, and he not the less obliged to have recourse to it;—3. Mendacious to any degree, it may still throw upon the subject such instructive lights as could not be had from any other source; for when recognised for what it is, falsehood itself becomes a guide to truth; and the grounds on which the probity and veracity of a proposed witness are suspected, may be sufficient to warrant the suspicion while retained by the party in his own breast, without being sufficient to warrant the divulgation of them, and thereby the imprinting on the character of the witness the stain of infamy, which, at the same time may be altogether undeserved.

On the technical theory, according to which, as above, the person of whose testimony a party happens to stand in need is to be considered as his own creature—the work of his own hand—it belongs not to you “to discredit your own witness;” that is, when you find him mendacious, to use any endeavours to cause him to be regarded as such—any more than it belongs to a workman to discredit his own work.

If to the lot of the inventor of that maxim it had fallen to pen a declaration of credence to be made by a party exhibitant, and to be applied to the testimony of the witness produced by him,—what would have been the effect of it on the shape that would have been given to it by the learned pen? In the instance of every witness, except the comparatively few of whose probity the party happened to stand well assured, he would have found himself compelled to deprive himself of the benefit of their testimony, or else to purchase it by a lie.

So much for orally and other judicially delivered evidence. In the case of written, viz. already written evidence, in addition to the genuineness of the script exhibited by him, if there be any other matter of fact to which a declaration of credence, to be delivered by the party exhibitant, according to a preappointed formulary, be safely applicable, it will be, in the case of an instrument of contract, the fairness of the contract.

Perhaps also, in some cases, where in and by the script in question, this or that matter of fact is averred or assumed by a statement of which, by the exhibition of the script in the character of evidence, he seeks to avail himself, an additional subject of his declaration of credence may be the verity of the whole, or of this or that part of the contents of the so-exhibited script.

With these observations, the applicability of a declaration of credence—understand always according to a preappointed formulary—may be left, till the time shall come for putting the instrument to the test by the application of it to this or that particular case.

But let it not be forgotten, that the declaration of credence to which the above-mentioned objections apply, is only of that sort which would be consigned to a preappointed formulary. Extracted by interrogation, the declaration is not the less a declaration of credence: and in this shape it may be rendered obtainable, without any of that danger to which, as above, it would, in the case of a preappointed formulary, stand exposed.

Correspondent in some sort to the declaration of credence as above described, on the part of a party exhibitant, is, on the other part, the declaration of discredence which, by the relation it bears in the way of opposition to the other, seems sufficiently explained: it is a sort of counter security, that presents itself as requisite to be given, in return for and in consideration of the other.

The object of the one is to prevent dishonest and insincere exhibition: of the other, to prevent dishonest and insincere contestation;—that sort of contestation, by which, under the encouragement given by the technical system, a party in whose mind no doubt respecting the verity, or as the case may be, the genuineness of this or that article of evidence which is ready to be exhibited on the other side,—or in case of an instrument of contract, the fairness of the contract,—requires the proof of it, partly for the purpose of oppression, viz. by means of the delay, vexation, and expense, partly for the chance of succeeding by misdecision; by misdecision, the looked-for result of accident, by which the forthcomingness, or the authentication of the articles of evidence in question, may be prevented: and the perpetually recurring result of that system under which, from the non-observance of some unpreappointed and ex post facto established condition, on grounds frequently not so much as pretended to have any relation to the merits of the cause, a pretence for refusing to the plaintiff the promised service, is, at the suggestion of a dishonest defendant’s law-assistants, extracted by the judge at pleasure.

§ 3.: Second Safeguard—Code of instructions concerning the weighing of Evidence.

By the article thus denominated, is meant to be presented to view, a body of instructions sanctioned by the legislator, and by him addressed to the judge, to serve him for his guidance.

In the character of a preservative against deception, in place of exclusion, suspicion has, Edition: current; Page: [119] in the course of this work, been all along brought to view.

In the several instances in which, under the present system, on the ground of untrustworthiness, and for fear of deception, exclusion is, with any appearance of reasonable cause, howsoever inadequate, put upon this or that article of evidence, the main object and use of such a code will be to direct the eye of suspicion upon the evidence, by indication of the circumstances by which, in the character of causes of comparative untrustworthiness, the demand for suspicion, and thence for circumspection and scrutiny, is produced.

Of the system of instructions in question, this, however, though the main object, and the only object which on the present occasion and to the present purpose comes directly in view, will not by any means be the only object, the only business, or the only use. Taken all together, the object of such a system will be, to present to, and keep under the eye of the judge, under the head of each species of evidence, a sort of table of the circumstances by which the probative force of it seems liable to be influenced.

For the construction of such an instrument of security, fortunately the hand of power—of public power—is not altogether necessary. An instrument of this sort, put together, in a form however imperfect, out of such materials as honest diligence unarmed with power could command, forms accordingly part of the matter contained in the body of this work.*

Of the circumstances which, with so blind a precipitancy, have by temerity or dishonesty been taken for grounds of exclusion, many will naturally be found to serve in the character of grounds of suspicion,—but, even in that character, not all of them.

Of instructions, furnished as here by an uncommissioned hand, one advantage is—that under so powerful a check as that which will be so sure to be opposed to them by adverse authority, exerted by sinister interest and intrenched in prejudice, they are in little danger of operating with greater force than is their strictest due:—a disadvantage is, that over whatever part of the field the iron hand of exclusion stretches, the voice of instruction, for any effect it can produce, is powerless, and might as well not be lifted up.

§ 4.: Third Safeguard—Recordation of cases where suspicious evidence has been received.

By the substitution of the system of instruction to the system of exclusion, could any real fear of prevalent deception and consequent misdecision be produced? By the testimony of experience, as recorded under a set of appropriate heads in the official books, all such fears might effectually be dispelled.

1. Causes in the year so many;—2. Whereof, causes in which, to suspicious evidence, of such and such species, distinguishing each species, admission had been given, so many;—3. Among which, the instances in which the result had been in favour of the suspicious evidence, are so many;—4. In the number of those in which the result was in favour of the side on which the suspicious evidence was admitted, would be seen the maximum of the mischief, if any, that could have been thus produced by the abolition of the exclusionary system: I say, if any; for, on the occasion of any given suit or cause, it is only from the view of the whole body of evidence, and not from the mere circumstance of admission given in each individual instance to suspicious evidence, coupled with that of a decision pronounced in favour of that side, that any just ground could be made for any such inference as that deception, misdecision, and thence mischief, had in that cause been the result.

In regard to scripts in general, and instruments of contract in particular, it has been stated as a matter of general notoriety, that in comparison of the whole number exhibited, the number of those of which the genuineness has been matter of real distrust or doubt, and as such has been rendered the subject-matter of contestation, is small in the extreme.

Of the here proposed system of recordation, one effect would be the exhibiting the exact number of, and thence the exact proportion between, these two aggregates: and so, in the case of those instruments of contract, in the instance of which the fairness of the contract itself,—of the engagement entered into, or the disposition made—became a subject of contestation.

In the same way, in the list of contested instruments would be noted and preserved the difference between the number of those in which, to appearance, the prescribed formalities had been observed, and the number of those in which, in that respect, failure was in any shape visible; notice being likewise, in each instance, taken of the particular shape or shapes in which the failure had presented itself.

§ 1.: Subject-matters of Authentication and Deauthentication.

Three main species or parcels have again and again been mentioned, as comprising together the whole possible matter of evidence—real, oral, and written. The same term, authentication, may be employed with reference to Edition: current; Page: [120] each of them: but the import of it in the three cases differs to a certain degree, according to the different natures of the subject-matter to which it is respectively applied.

1. In the case of real evidence, to authenticate the evidence is to establish the identity of the body (whatever it be) which is the source of the evidence,—the body, the appearances of which constitute the evidence,—together with the authenticity of those appearances: to make it appear, to the satisfaction of the judge, that the body exhibiting certain appearances at the time of its being produced in court, or subjected to the examination of a scientific witness (acting on that occasion in the character of a subordinate and deputed judge,) is the same body as that by which the evidentiary appearances were exhibited in the first instance; and that the appearances exhibited by it at the two points of time, and during the intervening interval, are the natural consequences of the principal fact, and have not been either fabricated or materially altered, either by design or negligence.

2. In the case of personal oral evidence, to authenticate the evidence is to establish the identity of the person who, in the character of a deposing witness, is subjected to oral examination,—who, in the character of a deposing witness, is admitted to give his testimony in the presence of the judge,—1. That he who speaks of himself as being such or such a person, is really that person; 2. That the person who, at the time in question, in presence of the judge, speaks of himself as having been present on a certain past occasion, on which a person known by a certain name was actually present, is that same person:—whether, on the occasion in hand, he call himself or is called, by the same, or by a different name.

3. In the case of written evidence, to establish the genuineness of the document is to make it appear, to the satisfaction of the judge, that the document exhibited as containing the discourse expressed by a certain person on a certain occasion, does really contain the discourse of that same person; and (where the occasion is material) that this discourse did really issue from him on that same occasion.

Correspondent to the respective natures of the respective species of evidence, will be the several courses requisite and proper to be taken for establishing their authenticity.

1. The case of real evidence admits of safe custody:—an expedient that applies not at all, or not with equally and uniformly unexceptionable propriety, in either of the other cases. For this purpose, a particular sort of person is not unfrequently appointed by law, in contemplation of his presumed trustworthiness with reference to this purpose. He takes charge of the article, keeps it in his possession till the time comes for its being produced in the character of evidence before the judge; and it is partly by the fact of his having thus kept it in his custody, partly by the testimony he gives, or is considered as giving, of its having been so kept without any fallacious alteration, that its authenticity is established.

2. The case of personal oral evidence—that is, of a person appearing before the judge to give his testimony—admits not of any appropriate mode of authentication. His being the same person as he who (commonly under the same name) is stated by him as having been present on the occasion in question—been present in the character of a percipient witness—is included of course in the testimony he gives. The fact of his identity (if there be any doubt about it) will, like any other matter of fact, be to be proved or disproved, as the case may be, by such evidence of any kind or kinds as the occasion furnishes.

3. It is in the case of written evidence that the business of authentication admits of the greatest diversity, and demands a proportionable degree of attention. The different modes of authentication may be divided into direct and circumstantial;—but for a detail of the different species of evidence requisite, and of the relative trustworthiness of each, reference must be made to the body of the work.

In questions relative to authenticity, the affirmative proposition is, except in here and there an extraordinary instance, the true one:—but since instances of this extraordinary description are unhappily found to exist, hence an operation opposite to authentication comes sometimes to be performed. Correspondent, in good measure, to the list of modes of authentication, will consequently be the list of modes of deauthentication. For the variations and additions, reference must be made, as above, to the body of the work.

§ 2.: Proper course where Genuineness is unsuspected.

Such being the subject-matters of authentication and deauthentication; next comes the inquiry, what is the proper course to be pursued upon any given occasion.

Here a distinction must be taken, in the first instance, between provisional and definitive authentication.

By provisional, I mean that evidence which may be received as sufficient for the authentication of the article in question, provided that no suspicion of its authenticity be expressed on the other side. By definitive, I mean that which, if satisfactory in itself, shall be deemed sufficient proof of the authenticity of the instrument, notwithstanding all protestations and contestations on the other side.

For the purpose of provisional authentication (that is, in all ordinary cases,) that Edition: current; Page: [121] mode of authentication will be the most eligible, which in each instance can be employed with least vexation, expense, and delay. But should the authenticity of the document be disputed on the other side,—in a word, should it be accused of forgery,—in such case, the subordinate consideration referring to these collateral inconveniences must give way to the superior consideration referring to the direct justice of the case:—always supposed, that the imputation of forgery may not be allowed to be made through wantonness, much less in the express view of giving birth to those collateral inconveniences; and that accordingly, in the case of malâ fides or temerity, the burden of the inconvenience may rest ultimately on the head of the party to whose misconduct it owed its birth.

If the mode of authentication, which is not needful but in case of contestation, be regularly employed where there is no contestation, where no doubt of the authenticity of the document is really entertained; and if, between the two modes of authentication necessary in the two cases, there be, upon an average, any considerable difference in respect of vexation, expense, or delay;—the aggregate mischief unnecessarily produced in those three shapes must be prodigious indeed. Among the writings of all sorts which come to be exhibited in a court of judicature in the character of evidence, if there be one out of a thousand in respect to which any such suspicion as that of forgery is really entertained, the proportion would prove much larger than I should expect to find it. Upon this supposition, in nine hundred and ninety-nine instances out of every thousand, this mass of inconvenience will be created without necessity or use, if in pursuit of a phantastic idea of regularity, the employment of the definitive mode of authentication be insisted on, to the exclusion of the provisional mode—the most convenient, i. e. least vexatious, expensive, and dilatory mode, which might so unexceptionably have supplied its place. This oppressive plan of authentication we shall find established in English jurisprudence.

In the adjustment of the modes of authentication to be established in regard to written evidence, the leading points or ends require to be kept in view:—on the one hand, satisfaction in respect of trustworthiness—on the other hand, avoidance of delay, vexation, and expense, the three inseparable modifications of collateral inconvenience.

Of these two ends, this first mentioned, being the main and principal end, has in general been pursued with a degree of preference, which would have been very proper, but that the sacrifices that have been made to it, at the expense of the triple collateral ends, have been inordinate, and much beyond anything which good economy in this respect would be found to authorize.

The supposition upon which judges and legislators have proceeded, in the fixation of the modes of authentication which have been prescribed, has been that of a universal and constant disposition on the part of all suitors to commit forgery:—or if that supposition have not, in every instance, been actually entertained, it is the only one on which the modes prescribed are capable of being justified—the only one by which the price paid in the shape of delay, vexation, and expense, for the supposed advantage in the shape of satisfaction in respect of trustworthiness, would not be recognised to be excessive and oppressive. If among a thousand cases in which the legal effect of a piece of written evidence is in dispute, there be not so much as one in which the authenticity of it is a matter of real doubt on the part of the suitor against whom it is produced,—it is only in the one case where it is matter of real doubt, that the price paid for authentication in the shape of delay, vexation, and expense, or all together, need be so considerable as to be worth counting. Under the existing system, there is scarcely a cause in which it is not considerable, and in many a cause it would be found to be seriously oppressive.

Thus it happens, that for one grain of mischief produced, or that would or could be produced, by fraud in the shape of forgery, a thousand, ten thousand, are produced by fraud in the shape of chicane: of chicane, produced partly by the enmity of suitors, partly by the rapacity of agents, abetted by that of the subordinate officers of justice; both passions protected and encouraged and engendered by judges and legislators. Familiarized with the spectacle of continual misery, generated according to rule and custom, and therefore on their parts without blame; the reduction of the mischief to its minimum—the reduction of it so much as within narrower bounds, never presents itself to them as worth regarding. Like so many other processes, which go on as it were of themselves, according to pre-established and never-considered rules, the authentication of evidence is considered as a sort of mechanical operation, the pathological effects of which have no claim upon them for so much as a thought. Whence all this composure? For the observance of the established rules, the man in office is responsible:—for the propriety of these rules, for their subservience to the ends of justice, he is not responsible.

§ 3.: Course remaining where Suspicion has been declared.

To attempt in this place to combat the triple-headed monster of delay, vexation, and expense, by any proposed regulation of detail, would be to touch upon the topic of procedure: Edition: current; Page: [122] a general observation or two may serve to indicate the course. Authentication in the ultimate, and what may be styled the adverse mode, ought, instead of being the routine of practice, to be the dernier resort, the extraordinary resource. The process of authentication should be carried on, not at the time of trial, but between party and party at a preliminary meeting, either in the presence of the judge, or before some inferior minister of justice, whose time can best be spared.

The party who has a document to produce, produces it in the first instance to the adverse party, who either admits the authenticity of it, or declares his intention to contest it. If he admit it, he marks it as admitted. If he choose to contest it, he has a right to do so, but he uses it at his peril; at the peril of simple costs in case of simple temerity; at the peril of extra costs in case of mala fides. The end in view is, in every instance, to save the suitors from the delay, vexation, and expense of adverse authentication, in so far as these several inconveniences are avoidable. The means to be employed in the prosecution of that end, is the making such arrangements as shall render it the indisputable interest of every individual concerned, each in their several stations—(parties, agents of parties, officers of justice of all classes)—to abstain from giving birth to these several inconveniences any further than as they are necessary.

The virtual penalty inflicted on this occasion by imposition of costs with the above views, should not depend on the ultimate decision of the cause, but should be inflicted pro unaquâque vice, for each act of authentication unnecessarily performed. Otherwise, to the enmity of a suitor, who was persuaded of his having the law on his side, the proposed remedy would apply no check. The principle would remain unapplied, unless to each particular act of vexation, its own particular penalty stood opposed.

To rash, as well as to malâ fide contestation, various are the other checks that might be, and if the ends of justice were the objects, naturally would be applied. If, for example, by the production of a source of evidence, the needfulness of which (after the mutual explanations in question) appeared more or less doubtful to the judge, delay and expense to a certain amount would manifestly be necessitated;—not only would eventual compensation for the damage by such delay be secured; as well as the expense attendant on the production of the evidence in question cast upon the party by whom the production of it was thus insisted on;—but if, by the exhibition of this evidence, a demand for counter-evidence to be exhibited by the adverse party were produced, the expense of such counter-evidence might provisionally be charged in the first instance, upon the party thus insisting; rather than that by such means it should be in his power to oppress his adversary, by exhausting his means of maintaining his post in the field of litigation—his means of pursuing, in the character of plaintiff, his own claim, or repelling, in the character of defendant, that of the party on the other side.

In some cases, for the purpose of provisional authentication, instead of the executed, or rather say recognised instrument, a transcript or an archetypal draught* may be employed;—and by this means, useless delay, vexation, and expense may be avoided.

Of the actual execution, and thence of the genuineness, of the proper instrument—so likewise of the correctness and completeness of the succedaneous script; even in case of contestation or doubt,—for saving of delay, vexation, and expense, evidence less conclusively probative than for the purpose of a definitive decision might be necessary, might for the purpose of a provisional decision be received on either side.

Even if contested, a script which is authentic ab intrà (i. e. which on the face of it presents the signature of the apparent author affixed to it for the evident purpose of authentication) need not be authenticated ab extrà in the first instance. Why? Because, unless it be supposed to be tainted with forgery, its authenticity cannot appear dubious. But delinquency ought not in any case to be presumed without special ground; much less delinquency of so high a cast.†

Inability to affect the authentication of a script, on or before a certain day, need not, ought not, to be rendered so much as a cause of delay, much less of ultimate miscarriage. A decision, in all other respects ultimate, might be made provisional, dependent upon the subsequent authentication of the instrument on or before a day to be named: nor need even that nomination be so inexorably peremptory, as to allow accident, much less fraud, to triumph over justice.

§ 4.: Advantages from the here proposed, compared with the established course.

In all these cases, the advantage and propriety of giving provisional admission and effect to such succedaneous evidence as above, depends upon the relative quantity of the inconvenience saved by it in the shape of delay, vexation, and expense. But, let it not be forgotten, that to this quantity there are no limits other than those of the earth’s circumference.

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Note, moreover, that so far as concerns written evidence (including the fact of its genuineness and the nature of its contents,) the savings capable of being made in case of contestation would, the whole mass of them put together, be inconsiderable in comparison of that which, in the case of the supposed proper script upon a call made by the party exhibitant, would have place by reason of admission without contestation as above.

To these savings in the shape of delay, vexation, and expense, may be added a saving that in the account of an honest man will not be regarded as fit to be neglected—a saving in the article of improbity: improbity on the part of the parties and their professional advisers,—improbity on the part of the judges,—improbity on the part of the custos morum,—improbity on the part of the keeper of the royal conscience.

In the ordinary intercourse of life, a man to whom it has happened to deny his own hand-writing is pointed at as a man of lost character; and to such a degree lost, that, to a person to whom the like loss is not a matter of indifference, it may be scarcely safe to associate with him.

On what ground is it that, for such a mode of conduct, a man is thus consigned to infamy? On this, or on none, viz. that in this way he was knowingly and wilfully guilty of falsehood:—wilful and deliberate falsehood for the purpose of injustice.

The man by whom his adversary in litigation is loaded with the delay, vexation, and expense of proving (as well as exposed to the peril of not being able, after all, in the teeth of so many opposing quirks, to prove at any expense) the genuineness of a document, of which there exists no real doubt;—literally speaking, and to outside appearance, this man does not commit the falsehood that would have been committed, had the question, “Is the genuineness of this document matter of doubt to you?” been put, and answered in the affirmative. The falsehood is not committed:—but what is committed is an injustice;—an injustice which, in point of mischievousness, is exactly upon a level with such falsehood: the injustice, in which such falsehood would have found its sole object, and its sole advantage.

The falsehood has not been committed:—but why has it not? Only because the judges (in whom the practice in this behalf has found its creators and preservers) have taken such good and effectual care to secure, to every dishonest man who in this way finds his account in making himself their instrument, the benefit of such falsehood; without that risk which, had the eventual necessity of it been left subsisting, would have constituted the expense of it.

In so far as concerns justice and veracity, there are two codes of morality that in this country have currency and influence;—viz. that of the public at large, and that of Westminster Hall. In no two countries, can the complexion of their respective legal codes be easily more opposite, than that of those two moral codes, which have currency, not only in the same country, but in the same societies:—and if so it be, that, in the public at large, the system of morals that has place in practice is upon the whole honest and pure;—it is so, not in proportion as the morality of Westminster Hall (of which so many samples have already been, and so many more will be exhibited) is revered and conformed to, but in proportion as it is abhorred. So far as concerns love of truth and justice, the greatest, but at the same time the most hopeless improvement would be, the raising of the mind of a thorough-paced English lawyer, on a bench or under a bench, to a level with that of an average man taken at random, whose mind had not, for professional views and purposes, been poisoned with the study of the law:—as, on the other hand, in point of sound understanding and true wisdom, the raising the same sort of mind to a level with that of a man of competent education, of the nature of that to which the term liberal is commonly applied.

Yes:—it is from novels such as Maria Edgeworth’s, that virtues such as the love of justice and veracity,—it is from the benches, the bars, the offices, the desks, in and about Westminster Hall, that the hatred of these virtues, and the love of the opposite vices,—is imbibed.—But that which to Maria Edgeworth was not known, or by Maria Edgeworth was not dared to be revealed, is the genealogy of her Lawyer Case: that that very ingenious and industrious gentleman had for his elder brother the Honourable Charles Case, barrister-at law, M. P. in the lower house; and both of them for their father, the Right Honourable the Lord Chief-Justice Case, Christopher Baron Casington, in the upper:—and that it was only by executing the powers given or preserved to him, and earning the rewards offered and so well secured to him, by his noble and learned father, that the younger son became what he was.

How long, for the self-same wickedness, shall the inferiors in power and opulence—the inferiors, who are but instruments,—be execrated, and the superiors, who are the authors of it, adored? Attorneys, solicitors,—were they makers of common-law?—were they the makers of the technical system of procedure?—were they the makers of the law of evidence?

§ 5.: English Practice.—Case 1. Authenticative Testimony of Parties excluded.

The distinction between provisional and definitive authentication is unknown to English law. In all cases alike, it insists upon Edition: current; Page: [124] having the authentication performed in the same mode:—without allowing of any exceptions on the score of vexation, expense, or delay. It presumes all mankind to be forgers;—and where there is forgery, affords no facilities for the detection of it. It guards against deception where there is none to guard against; and where deception is at work, interdicting the interrogation of the suspected person, it interdicts the most efficient means of scrutiny.

Previous meeting between the parties, for the purpose of ascertaining whether any and what documents presented by one party are contested by the other, there is none:—disputed or not, the authenticity of every document must be proved.

True it is, that for saving of delay, vexation, and expense, sometimes it does happen, that on one or both sides the genuineness of this or that instrument of contract or other script (or, as it may happen, of all the scripts meant to be exhibited) is admitted. But it is only in so far as on both sides, or (if it be an equity suit or cause) on all sides, and that to an indefinite number, all persons concerned, law advisers as well as suitors, are honest,—and not only negatively honest, but completely and actively and zealously honest,—that any such admission, with the consequent savings, can have place.

In regard to the species of fact here in question, as in regard to every other, the most satisfactory, and on every account beyond comparison the most eligible, evidence (need it again be said?) is that of the parties;—viz. in relation to each fact, that one of the parties against whom it makes.

By the exclusion put upon the preliminary meeting, this evidence stands excluded, from the commencement of the cause. And when, at the end of half a year, or a whole year, or some number of years, from the day of the commencement, that inquiry which ought to have begun, and in most instances would have been concluded on that same day, is under the name of the trial suffered to take place,—upon this same best evidence is an exclusion again put, by means of another exclusionary rule.

In the eye of common sense, this is the best evidence possible: in the eye of the law, it is no evidence at all; therefore not the best evidence. For on this part of the field, when exclusion is the object, out of the word best, is formed the basis of the pretence.

Always excepted (I mean from the exclusionary rule) the case where an extra price, and that a most enormous one, is paid for opening the door to that which otherwise would be the excluded evidence;—viz. at the equity shop, and elsewhere. By the immeasurable and profitable addition thus made to vexation and expense together, coupled with the comparative badness of the shape in which the evidence is extracted, the objection which would have been so peremptory, is now removed.

Rather than give admission to that best and most satisfactory of all evidence, no evidence so loose and unsatisfactory, but that admission will be given to it:—in the case of an instrument of contract, for example, proof (i. e. what is called proof, viz. mere circumstantial evidence) of the genuineness of a couple of words, purporting to be the name of an attesting witness. Look at these words, viz. John Smith. Did you ever know any person who ever bore that name? Yes. Did you ever see him write, or receive letters, which you understood to have been written by his hand? Yes. Judging from these opportunities, do you believe these words to have been written by him? Yes.

True it is, that, when no better is to be had, the exigence of the case necessitates the reception of this loose, this circumstantial evidence. But when the case affords not only direct evidence, but the most trustworthy of all direct evidence,—to exclude that best evidence, and admit this loose evidence instead of it—how inexplicable the folly, were it not for the sinister interest that lurks at the bottom of it!

Wounded by the rule itself, justice is again wounded by the evasions of the rule.

1. Three obligors jointly bound in a bond. Proof by extraneous witnesses (it must be supposed) being somehow or other unobtainable, one of the obligors is called to prove the execution of it. But for this purpose, he must have been left out of the action, and the recourse against him lost. Just as it happens in penal cases, where one of two malefactors is let off, that his testimony may be employable against the other.

2. If a subscribing witness is become infamous,—on producing his conviction, his hand may be proved as if he were dead. Here inferior evidence is let in, to the exclusion of the best:—circumstantial, to the exclusion of direct. So much for security against deception. Moreover, the conviction must be produced:—a lumbering record, lugged in at a heavy and unnecessary expense, to prove a fact in itself notorious, and capable of being sufficiently proved by less expensive means; and which, after all, cannot be sufficiently proved by this means. John Brown was convicted:—true, but how does the dead parchment prove that it was the same John Brown?

3. So, when an attesting witness being the only surviving witness, had become interested,* without any prejudice to his character, his hand was allowed to be proved by somebody else, on the presumption that he himself would have denied it. Pre-established Edition: current; Page: [125] rules apart, the experiment might have been tried, at least, and if he had perjured himself, then might it have been time enough to encounter the perjury by other evidence.

§ 6.: English Practice.—Case 2. Authenticative Testimony of non-attesting Witnesses excluded.

Witnesses to the number of half-a-dozen, or half-a-score, all of them unexceptionable, are ready to be produced; each of them ready to say, “I saw the several parties attaching their respective signatures to this instrument, saying (each of them) I deliver this as my act and deed.”

Quibbleton, counsel for the defendant, addressing himself to the first of these witnesses—“What is your name?”

Answer—“John Stiles.”

Quibbleton—“My Lord, here is the deed: two (your lordship sees) and but two attesting witnesses;—neither of them is named John Stiles.”

Judge—“Set aside this witness.”

Half-a-dozen, or half-a-score, all of undisputed character, all ready to speak to this plain fact, and not one of them permitted. Why not permitted? Answer: Because, in the first place, if permitted, they would all of them perjure themselves; they would all of them, in spite of counsels’ cross-examination and judges’ direction, obtain credence. Two persuasions these, neither of them (it is true) avowed, because, when absurdity or improbity enter upon the stage, they do not, either of them, present themselves stark naked. But to give to the exclusion so much as the colour of being conducive to the ends of justice, these persuasions must both of them be entertained; or, at any rate, of the matters of fact respectively predicated by them, the certainty, or (to speak with a degree of correctness new as yet to lawyers’ language) the preponderant probability must be assumed.

But supposing these persuasions entertained, on what ground is it that they must have been entertained? On this ground, and no other, viz. that the names of these persons are not to be found upon-the face of the instrument, in the character of attesting witnesses.

Exists there, then, any article of law, by which it is required (on pain of nullity, or any other pain,) that upon the face of every deed of the sort in question (wills being out of the question,) there shall be visible the names of two persons in the character of attesting witnesses? No:—neither of any article of real (i. e. legislative) law, nor so much as any rule delivered in the shape of judge-made law.

On what ground, then, stands the rejection? Answer: On this ground, viz. that when the name of a person, purporting to have been written by him in the character of an attesting witness, is visible on the face of the instrument,—the testimony of any number of persons who (if they are to be believed) actually saw what it is there declared that this man saw, is not, with relation to the fact in question, the best evidence.

Non-lawyer: What!—the evidence being good enough to produce a complete (or at least preponderant) persuasion;—in this case, by the mere circumstance of its not being the very best imaginable (admitting, for argument’s sake, that it is not the very best,) by this one circumstance, is any sufficient ground afforded for shutting out this evidence, when there is no other?—and when, in consequence, if this be shut out, the party who has right on his side must lose his cause?

Lawyer: Oh! but where, there being upon the face of the deed an attesting witness, he is not produced, but instead of him others are produced, whose names are not upon the deed: here is an omission; from which we draw a conclusion:—and the conclusion is, that, had the attesting witness been produced, his testimony would have been against the genuineness of the deed.

Non-lawyer: And on this conclusion it is that you build the two other necessary conclusions, viz. that the non-attesting witnesses, being all of them so many intended perjurers, would all of them have affirmed the genuineness of the deed, the fact being otherwise, and thus falsely affirming it would have gained credence!

With submission, suppositions of a contrary tendency might be raised in any number, any one of them less improbable than the above.

Independently of regulation—positive and effectually notified regulation—it is difficult to say what there is that should determine the choice of the party in favour of a supposed attesting, to the exclusion of (or even in preference to) a non-attesting, but by him equally known to have been a percipient witness. True it is, that, by the signature of the attesting witness, proof is so far given, that in relation to the transaction in question he was a percipient witness. Yes;—but is it a proof that no other person was?—a proof too, which by those who know that the contrary is true, is to be regarded as a convincing one?

The attesting witness would cost (suppose) so much money to produce: the non-attesting witness may be had for a few shillings less. This, in the eye of a considerate, and, especially in the eye of a poor man, honestly advised, should suffice to give the preference to the non-attesting witness. The attesting witness would, after all expenses paid him, suffer inconvenience (suppose) from the attendance:—the non-attesting witness would Edition: current; Page: [126] not suffer any inconvenience:—this, in the eye of a humane and considerate man, would suffice for securing the like preference.

Oh! but we have a rule about the best evidence, viz. that in no case shall any evidence be received but the very best evidence which the nature of the case admits of.

Preciously instructive rule! We receive no evidence but what we receive:—for anything more precise, or intelligible, or wise, or honest than this, will not be found in it.

No evidence do we ever receive other than the best evidence. And what is the best evidence? Answer: It is, on each occasion, that which we receive as such.

They know not themselves what their own rules are. Strange indeed it would be if they did: for that which has no existence, how is it to be known to anybody? They know not themselves what their own rules are: they resolve that every other man shall know them;—that is, without the possibility of knowing them, shall, as often as occasion offers, be punished for not knowing them.

Nemo tenetur ad impossibilia, says another of their maxims. But in any one of their maxims, so sure as there is anything good, so sure is practice opposite.

Once more: Partly upon the source, partly upon the shape, depends the goodness of an article of evidence. As to the shape:—in so far as depends upon themselves, in none but the very worst shape (come it from what source it will) do they receive any evidence:—and so it be in this worst shape, no source so impure but that from that bad source they are ever ready to receive it. Yet such is their delicacy, that (as if for evidence, as for meat, there were a market at which, with money in his hand, a man may pick and choose) none, forsooth, will they put up with, but the very best of evidence.

§ 7.: English Practice.—Case 3. Admission given to Instruments without Authentication.

By the man of law, wherever you see a gnat strained at, on a second glance make sure of seeing a camel taken up and swallowed.

Behold an instrument, for the authentication of which, to-day, a whole score of witnesses, who (every one of them, if they are to be believed) were percipient witnesses of the execution of it (they not being attesting witnesses) will not suffice: it is accordingly dealt with as if it were forged. Wait till tomorrow, this spurious deed becomes genuine: and so plainly genuine, that for the proof of its genuineness no evidence is required.

This metamorphosis, by what was it effected? Answer: By time. Yesterday, the script wanted a day of being thirty years old: to-day, the thirty years are fulfilled.

This admission has neither quite so much absurdity in it, nor quite so much mischievousness, as the exclusions. The instrument, if it be not what it purports to be, is a forgery. Forgery, a flagitious and pernicious crime, is not to be presumed. Independently of particular argumentative grounds, the odds against the fact, as testified by experience, are prodigious:—for every forged instrument, you have genuine ones by thousands.

Not but that to this crime (by the exclusion put upon the interrogated testimony of the party by whom, or in whose behalf, the instrument is produced) every encouragement has been given, which it has been in the power of Judge and Co. to give to it. Suppose the party to have forged it: he puts it silently into the hands of his lawyer, and it is the lawyer’s business to fight it up. At the lawyer’s elbow, if so it please him, sits the forger. There he may sit till he is tired, for he is in no danger; the law has taken him under her care: not a single question can be put to him.

Convenient as this law is to every criminal, to an honest man it may happen but too frequently to be laid by it under an embarrassment, out of which it seems not altogether easy to say how he is to be delivered.

The instrument purporting upon the face of it to be thirty years old or more: this antiquity, coupled with possession (i. e. with the relation borne to the suit or cause, or to the fact in question, by the individual in whose possession it has been,) is accepted as evidence sufficient for the authentication of it. But the individual (suppose) in whose possession it is, is the plaintiff;—and for the whole of the time that has elapsed since the execution of it, or for a part, more or less considerable, of that length of time, he has kept it locked up in his strong box: not having in all that time shown it (because in all that time no occasion has called upon him to show it) to any person who is without interest in the suit or cause. By whose testimony, then, is the custody of it to be proved? By his, the plaintiff’s? Oh no: that would be contrary to the inviolable rule. But if not by his testimony, it cannot—by the very supposition it cannot—be proved by that of any one else.

Yes: if he had had information, timely information, of the existence of this rule of law; for in that case he might have got this or that uninterested person to look at it. But if any such information had reached his mind, the care and pains taken by Judge and Co. for so many centuries to keep it out of his reach would have been frustrated. By keeping them from receiving existence in and from any determinate form of words, care has been taken—very effectual care—that neither by non-lawyers, nor by lawyers themselves, shall any of these portions of imaginary law be laid hold of by inspection. By their uniform repugnance to every conclusion that would be drawn by Edition: current; Page: [127] common sense, care not less effectual has been taken that they shall never have been laid hold of by inference or conjecture.

If, in this case, the exemption granted from the obligation of authenticating the document by evidence ab extrà be proper, it can only be because, in the other cases, the obligation is itself improper, being needless. Forgery is not the crime of any particular point of time;—whatever be the probability of it at this present day, it was not less on this day thirty years. A deed purporting to have been fairly executed thirty years ago, may have been forged or falsified at any subsequent point of time. Forged writings, of an apparent date two hundred years anterior to their real date, forged writings ascribed to Shakespear,* have been known to deceive the very elect among English lawyers.

§ 8.: English Practice.—Case 4. Shifts where the Script is in the power of the adversary.

The hostility of the technical system to the ends of justice—the consciousness of that hostility on the part of those who, while they are acting under it, are profiting by it,—the violation at the same time so continually offered by themselves to the very principles to which by themselves the highest importance is attached,—all this may be seen exemplified in a case which shall now be brought to view.

When the article of written evidence which the party in question stands in need of, happens to be in the hands of a party on the other side;—when an instrument which a plaintiff (for example) stands in need of, happens to be in the possession of the defendant;—the sort of shift that has been made is truly curious.

Under a rational system of procedure, the course is plain and easy;—the evidence acted upon is of the best kind imaginable. Both parties being together in the presence of the judge, the plaintiff says to the defendant—“To make out my case, I have need of such or such an instrument” (describing it:) “you have it, have the goodness to produce it.” “Yes,” says the defendant (unless his plan be to perjure himself,) “and here it is:” or—“I have it not with me at present—but on such a day and hour as it shall please the judge to appoint, I will bring it hither, or send it to you at your house, or give you access to it in mine.”

Under the technical system, no such meeting being to be had, no such question can at any such meeting be put. But, at the trial (viz. under the common-law, alias non-equity system, of which jury-trial makes a part,) at the trial, that is, after half-a-year’s or a year’s, or more than a year’s factitious delay, with its vexation and expense; then it is, that, for the first time, a chance for procuring the production of a necessary instrument may be obtained.

Though either for any such purpose, or for any other, neither to the party on either side, nor to any agent of his, can anything in the shape of a question be put vivâ voce by a party or agent on the other side,—the question (for example) the instrument (describing it,) have you it or no?—yet under the name of a notice, a sort of requisition in writing calling upon him to exhibit it, may be, and every now and then is, delivered. Of this notice to exhibit the instrument, what is the effect?—that the defendant is under any obligation to exhibit it? No such thing. To produce any such effect would require nothing less than a suit in equity; whereupon the instrument would be exhibited or not: and if exhibited, not till the end of the greatest number of years to which the defendant (having an adequate interest) had found it in his power to put off the exhibition of it. To have enabled the party thus far to have obtained justice without aid from equity, would have been robbing the Lord Chancellor and the Master of the Rolls, and the swarm of subordinates, of whose fees the patronage part of their emolument is composed.

What, then, is the effect? Answer: That after this notice, if that best evidence which is asked for be not obtainable,—not obtainable only because those on whom it depends do not choose that it should be obtained,—what is deemed the next best evidence that happens to be in the plaintiff’s possession is admitted: and on this occasion no evidence is too loose to be admitted.

After such notice given, one succedaneum that has been admitted is a supposed transcript:—“an examined copy,” are the words.—Another is, “parol evidence of the contents.”

In the midst of all this laxity, observe and admire the strictness:—“In case it be a copy that is offered, it must first be proved that the original, of which it purports to be a copy, was a genuine instrument.” So much the more business for the benefit of the man of law:—so much the more chance of failure, for the benefit and encouragement of the wrong-doer.

But suppose no such copy producible,—the best and only evidence which it is in the plaintiff’s power to produce, being as above, “parol evidence of the contents,” i. e. some account given of the supposed instrument, by a person into whose hands, by some accident or other opportunity of bestowing upon it a perusal more or less adequate,—of throwing over it a glance more or less correct and complete,—it has happened to find its way.

This casual reporter,—for his report to Edition: current; Page: [128] be received, is it necessary that he (or, in his stead, the party by whom he is called in) should have established in due form the genuineness of the instrument, which, for ever so short a time, chance had thus thrown into his hands?

In this one point may be seen a mine, a rich mine, of future cases.

Behold now another mine. The two sorts of make-shift evidence thus brought to view in the case of a deed,—viz. a supposed transcript (copy examined or not examined,) and parol evidence of supposed contents,—shall they apply, and under any and what modifications, to any and what other sort of scripts?

Delight paints itself on the countenance of the man of law, at the thoughts of such a mine of non-suits, and to the lawyer at any rate, if not to the client and suitor, of agreeable surprises.

Good all this, as far as it goes; when so it is that a man’s good fortune has put into his hands any such make-shift evidence. But if not, what in that case becomes of the notice? In that case, the wrongdoer triumphs: the party who is in the right loses his right, whatever it may be; and so the matter ends.

Did but the judge deign to admit, at the outset, into his presence, the persons whose properties and liberties he has contrived, with so little trouble, to dispose of,—whatsoever were the instrument wanted, if it were not found in one of two hands in which it was expected to be found, it would be in another: every instrument that was necessary to justice would be ferreted out; as it actually is, in the case where, justice being necessary to his own personal protection as well as that of the public, it has been the pleasure of the man of law that the necessary instruments should be made forthcoming,—viz. in the preparatory examinations taken, as in a case of murder, robbery, or other felony, by a justice of the peace. No loophole (or at least not so many loopholes) would then be left for the wrong-doer to creep out of; thus foiling for a time, or for ever, the party whom he has wronged.

But, under the technical system, this business of notices affords to the wrong-doer an inexhaustible fund of chances: in this lottery, a nonsuit (the produce of which is an additional suit) constitutes the prize, in which Judge and Co., with their protegés and partners, the wrong-doers, are sharers.

In one sample more, read at once the nature of judge-made law in general, and therein read the technical system of procedure; and therein, again, the law of evidence in particular.

When the script you want is in possession of your adversary, you have seen already what the succedaneum is, and what sort of chance there is of its being obtainable.

When the script is in possession of a person capable of being a witness (a non-litigant witness,)—for the purpose of having it exhibited, you serve him with a writ called a subpæna duces tecum, by which he is ordered to attend, and bring with him the script. If he obey, it is well:—if he obey, that is, if so it be that he not only attend, but bring it. But, what if he come without it? To this hour it is not settled what is to be done with him, nor how the script is to be got at, and applied in the character of evidence. At any rate, to the party who, being in the right, has need of the evidence, the cause is lost for that time:—saved to him, or not saved, the liberty of trying a new one.

§ 1.: Relation of this to preceding topics, viz. Preappointed Evidence, Exclusion, Authentication, &c.

Remains for consideration one head of practice, in the examination of which four several topics, which have already, each of them, received a separate consideration, viz. preappointed evidence, exclusion, and nullification, authentication and deauthentication, will require to be brought under review together.

To the purpose of evidence—on all occasions, and in each of the two periods or stages of its existence, viz. the period of perception, and the period of narration or statement, on a judicial occasion, or for a judicial purpose—the utility of written, say scriptitiously expressed discourse, in contradistinction to orally expressed discourse, has already on several occasions been brought to view.*

Impressed, or pretending to be impressed, with a general sense of the extreme utility of that master art, and, in particular, in respect of the application it is susceptible of to so important and all-comprehensive a subject as that of legally operative evidence—impressed perhaps with at least a due sense of this public and social use of it, and certainly not insensible to the more private benefit derivable by men of their own order in the character of professors of it, in its application to the profit yielding sort of purposes here in question, men of law have, in England as elsewhere, applied their power to the purpose of compelling men, on the occasion of their several Edition: current; Page: [129] legal transactions—their agreements—the dispositions made by them of their property—to have recourse to it.

Their power has been accordingly applied: and in what way? On this and that occasion, if by the party or parties in question, for the giving expression to contractual matter of any kind, as above designated, orally expressed, in contradistinction to scriptitiously expressed discourse, has been employed, they have taken upon them to put an exclusion upon whatsoever evidence might be necessary or conducive to the establishment of such contract—upon all evidence, in so far as applied to the proof of such discourse, i. e. to the fact of its having been holden, and consequently to the statement of its contents.

Of this exclusion, what has been the consequence?—1. Every contract, or mass of contractual matter, upon the evidence of which such exclusion has been put, has been thereby nullified:—nullified—and on what ground? On the ground that contractual matter, the genuineness of which has no other proof than the sort of evidence thus excluded, ought to be considered not as genuine, but as spurious.

Here, then, by the want of that formality, viz. writing, which is of the essence of preappointed evidence, and of more value than all other possible formalities put together, an exclusion is put upon evidence; and by means of such exclusion, matter of a contractual nature is considered as deauthenticated; and thereby the contract—be the expression judicially declared to have been given to it ever so genuine—nullified.

Disguised, is the class to which the sort of exclusion here applied seems referable. For the deception, the apprehension of which has been the source or efficient cause of the precaution thus taken, has had for its ground not any quality ascribed to this or that class of witnesses—for the exclusion applies alike to all witnesses—but the consideration of the infirmity of the vehicle, viz. orally expressed discourse, employed in the conveyance of it.

In regard to the exclusion here in question, one observation that will be apt enough to present itself is—that the ground, on which in point of reason and utility it rests, is much stronger than in any of those cases which have been brought already under review.

This being acknowledged, still it will appear that the ground, how much soever less weak in this than in those other cases, wants much of being strong enough to support the structure that has been built upon it.

§ 2.: —Case 1. Writing not employed: object of the exclusion, preventing or frustrating spurious Contracts orally expressed.

The exclusion which, in this way, has been put upon orally expressed contractual matter, in favour of scriptitiously expressed contractual matter, has been put upon it in two very distinct cases:—

1. Where, in relation to the same transaction, no scriptitiously expressed contractual matter is forthcoming: in which case, the exclusion may be said to be absolute.

2. Where, in relation to that same transaction, scriptitiously expressed matter having been brought into existence, is forthcoming and exhibited: in this case, the exclusion may be said to be limited—limited, viz. to the case in which, in relation to the same transaction, contractual matter scriptitiously expressed makes its appearance.

In these two cases, the propriety of the nullifying exclusion will be seen to stand on grounds considerably different.

In the first place, presents itself as being the most simple, the case in which the exclusion is, in the sense just explained, absolute.

§ 3.: Impropriety of the Exclusion, &c. in this case.

In the character of an objection to the exclusionary system, one observation presents itself in limine. Writing, in its application to the preservation of evidence,—writing, the art of writing, is, comparatively speaking, of modern date. When as yet it was unknown, not only a man’s property liberty, reputation, and condition in life, but his very life, was disposed of on the mere ground of orally expressed evidence. What!—every judicial act by which, at the stage of society anterior to that in which writing came into common use any of those possessions were disposed of, was it an unjust act?—the evidence on which it was grounded, was it in every instance spurious or false?

This consideration, were even this the only one, might of itself suffice to dispose a man to pause before he acceded to the propriety of the application so lightly made of the evidence-excluding principle on this as well as so many other occasions.

Against the employment of so harsh an instrument, the same objections, which apply in every other occasion, will be found to apply in this; whilst, in the character of a highly advantageous substitute to so harsh an instrument, still the same succedaneum presents itself; viz. declaration of suspicion, notified by effective promulgation.

Of the lightness, not to say the absolute nothingness of the mischief, by the apprehension of which this weapon of defence—this instrument of supposed security—was put into the hand of the man of power, still the same evidence, still the same demonstration afforded by experience. I mean the experience afforded by the inconsistency by which the practice under this head has been marked; viz. the inconsistency between the application Edition: current; Page: [130] made of the instrument in some cases, and the refusal to make application of it in other cases.

The object of apprehension, the fraud apprehended, is the employing of false testimony to the setting up as genuine, and really entered into by the parties in question, this or that matter of contract, which, though pretended to have been agreed upon by them, was not really agreed upon by them.

But on this, as on other occasions, what is manifest is—that if, antecedently to regulation, fraud to any given amount or effect be capable of being with equal facility operated with success, in each one, say of half-a-dozen shapes,—then so it is, that, by regulation which, how effectual soever in preventing the commission of the fraud in four of the shapes, leaves it in the remaining two no less practicable than before, the quantity of fraud commissible is not really diminished, nor is any real advantage gained:—instead of its being dried up, all that can have been done with the current is to turn it out of this or that one into this or that other channel.

By this inconsistency, whatsoever may be the supposition concerning the veracity of an indeterminate and consequently unknown witness, the course taken by this exclusionary policy is rendered equally indefensible:—veracious, a man ought not to be excluded when he is excluded: mendacious, he ought not, upon the principles of the system, to be admitted when he is admitted.

Another circumstance that ought naturally to operate with considerable effect as a sedative against all apprehensions of considerable public mischief by fraud in this shape, if the supposed security afforded by the nullifying exclusion were taken away, is this,—viz. that all along, how slight soever the orally delivered testimony by which the imputation has been supported, the imputation of fraud has all along been considered sufficient to deauthenticate and destroy the effect of the most formally as well as scriptitiously expressed instrument of contract.

True it is, that of the mischief to which men are thus exposed by means of mendacious orally-delivered evidence, the extent is not so great under the exclusion put upon evidence of orally-expressed contractual matter as in the other case,—the extent is not in a manner unlimited, as in the other case: inasmuch as the persons exposed to suffer by mendacious evidence, by which fraud is falsely imputed to this or that one of a number of persons concerned together as parties to a contract,—that contract being of the number of those which have found their expression in the form of a written instrument,—are such and such only to whom it has happened to have been engaged in some contract or other so expressed.

But how far soever from being equal to the unlimited number above mentioned, so great is the number of persons who, having been actually engaged in a scriptitiously expressed contract of this or that nature, have thereby stood exposed to become sufferers by the sort of fraud which consists in the seeking to nullify the genuine written expression of a bonâ fide contract by means of the imputation of fraud cast upon this or that one of the parties engaged in it, that by the continuance which, without complaint or objection, has for so many centuries been given to a practice under which credence is given to the orally-expressed evidence of perhaps no more than a single witness, in opposition to scriptitiously expressed preappointed evidence concerning that same transaction, no slight presumption seems to be afforded, that the amount of any mischief that can have been produced by orally-expressed mendacious evidence, delivered without the check afforded by a scriptitious instrument of contract relative to the same transaction, in support of a falsely-partied orally-expressed contract, cannot have been very considerable.

In all the cases in which, under the notion of saving a jury from being deceived by false evidence, and the individual from being made a sufferer by it, an exclusion in the character of an extraordinary safeguard is thus put upon evidence, safeguards of the ordinary kind may exist in any number, and in any degree of force;—in every instance counter-interrogation, to wit, applied to each mendacious witness, and as it may happen, counter-evidence from the mouth of whatsoever number of honest witnesses the individual case in question may happen to afford; while, from the fraud which, upon invitation even by the law, is committed by those who plead the law against a contract which, though in this secret way nullified by the law, was really entered into, there exists no possible means of escape: if so the case be but of the number of those to which the exclusion extends, so sure as is the fraud attempted, so sure is it committed.

In favour of the exclusionary and nullification system, as applied to evidence in support of supposed orally expressed contracts, an argument has been produced and fabricated out of that other application of the exclusionary system, by which, in jury-trial in the common-law courts, an exclusion is put upon the testimony of parties on both sides of the cause.

Suppose an altogether imaginary contract, supposed to have been entered into between two parties between whom no such transaction ever passed—and this is the case in which, in respect of the number of persons threatened by it, the danger assumes the most formidable aspect;—in the conflict that would take place between testimony and testimony Edition: current; Page: [131] in the presence of the judge, with what advantage would not the injured party have to contend against his mendacious adversary!—with all that advantage which self-conscious truth and innocence have over self-conscious mendacity and guilt.

But this is among the means of detection, by which the technical system has taken care that its most profitable servant and best customer, the mendacious depredator—the depredator whose instrument of depredation is composed of fraud, shall not be embarrassed and annoyed.

Pernicious in the extreme is the spectacle where insincerity and improbity are universally and indubitably seen to be crowned with success, and that success is with equal invariability and certainty seen to have had for its cause, the encouragement given to those vices by the law itself.

Under the system of exclusion and nullification, in its application to orally-expressed contractual matter—this unseemly state of things may be exhibited in a variety of ways:—

1. Of the expression given to the orally-expressed contractual matter, there may have been percipient witnesses in any number, all perfectly agreeing in the account given by them of the transaction, and each of these giving to his statement any degree of publicity that may be imagined.

2. When, by the assistance of the law, a man whom it has found or made dishonest, thus gets rid of his engagement, not only is this corruptive quality of the law known to the man himself, in whose hands it has been an instrument of miquiry, but by extrajudicial discourses of his, whether of a confessional or a jactantial nature, it may happen to it to be rendered notorious to other persons in any number: yet all this while, the law being peremptory, the notoriety of the fraud will not detract anything from its nullifying force. And in the sight of everybody there remains the law, at all times, and on any number of occasions, able and ready to give to the like fraud the like existence, and to secure the like success.

Under the system of declaration of suspicion, no such corruption, no such pernicious notoriety, can have place. Notwithstanding the warning given by it, suppose a plan of predatory mendacity, such as the statute professes to prevent, formed and executed with success; with success, the jury being deceived by it: no such general disastrous expectation is produced here. One jury has been thus deceived; but it follows not that any other will be: whereas, by the nullifying law, the judge, though not deceived, is, in the eyes of all, seen to be not only authorized but forced to act, and ever more to act, as he would do if he were deceived.

The facility afforded for the admission of truth under the exclusionary system,—compare it with the facility afforded by the warning system.

Under the warning system, notwithstanding the warning, each article of evidence on the one side, as on the other, is left capable of being estimated at its exact worth,—left to operate with its proper degree of probative force: and this on both sides. Under the nullification system, by means of exclusion,—under the exclusionary system, be the number of evidences on that side, and the aggregate of the probative force, ever so great,—they are, in every case alike, divested of the whole of it—stript of their whole value: the whole body of it is smothered and suppressed.

From the exclusionary system, and in particular in its application to the present case, whatsoever utility can be expected, depends altogether upon the notoriety of the regulation made by it—upon the efficiency of the measures, if any, taken for the purpose of causing it to be present to the several minds on which the effect aimed at by it is to be produced. Whatsoever good it has any chance of doing, is in proportion as it is known: in proportion to the number of instances in which, on the occasion in question, it is present to the mind on which it is designed, or pretended to be designed, to operate. Of the mischief which it is so much more assured of doing, the quantity runs in proportion to the number of instances in which, on the occasion in question, it fails of being present to the mind on which it is designed, or pretended to be designed, to operate.

Of the authors of the technical system, of which the evidence-excluding system makes so essential a part, it being the interest that the good should be at its minimum, and the evil at its maximum, such accordingly has been the result.

Upon a state of things so unexampled, and as yet so hopeless, as that of a tolerably efficient system of promulgation, the efficiency of the warning system, in the character of a preservative against deception from the source here in question, has no such strict dependence. No doubt but that the thing to be desired in the first place is, that no such attempt should be made: no vexation of that sort which, even in the least vexatious mode possible, it is impossible that litigation should not produce: no expense in the article of money on either side—no expense in the articles of probity and veracity on one side—should be incurred to ensure the accomplishment of this object. But in the next place, to whatsoever attempts of the sort in question it may happen to be made, the thing to be desired is, that they may be frustrated: and to this purpose, even the monitory observation, without any antecedent promulgation—the monitory Edition: current; Page: [132] observation from the mouth of the judge, or though it were but from the mouth of the party interested, especially on the supposition of its having received the sanction of the law, and been adopted into the text of the law, may suffice.

Compared with the system of exclusion and nullification, the system of warning presents another great advantage: the utility and even the innoxiousness of the system of exclusion and nullification is completely dependent on the skill of the legislative draughtsman—on the correctness, completeness, and clearness of the description which he has given of the cases to which it has been his meaning that the exclusion should apply, and of the cases to which it has been his meaning that it should not apply.

Of any failure in this respect, the natural consequence will be, that even should it have been his sincere intention and endeavour to do nothing but good, the result of these endeavours may be productive of nothing but evil: of the entrance left open to fraud at some other hole while one hole is stopped up, the effect will be, that the fraud which he has it in view to exclude will not be diminished: and thus, of the sort of fraud to which in the very nature of the case no such exclusion can avoid giving encouragement and existence, the mischief will stand uncompensated, constituting the only fruit of which this policy is productive.

And such, accordingly, has been the product of that work, the which, under the name of the statute of frauds, is said to have had for its efficient cause the united wisdom of the most eminent lawyers of that time, including the twelve judges.

To the system of effective promulgation and declaration of suspicion, no such nice workmanship is necessary. For it to produce not only all the effect which it is capable of producing, but all the effect which is desirable, nothing more is necessary than on each occasion the pointing the attention of those, to whom it belongs to judge, to a plain suggestion of common sense, deduced from experience,—in a word, to those very considerations, in which, though so unhappily applied, the system of exclusion and nullification took its rise:—to a plain suggestion of common sense, leaving the application of it to be governed, as in each individual case it ought to be governed, by the peculiar circumstances of each individual case.

§ 4.: —Case 2. Writing employed: object, preventing or frustrating spurious orally-expressed alteration.

Comes now the case in which the application of the nullifying exclusion put upon orally-expressed contractual matter, in favour of scriptitiously-expressed contractual matter, is limited: limited, viz. to the case by which, in relation to the same transaction, contractual matter scriptitiously expressed makes its appearance.

In this case, matter of either description may, in its relation to matter of the other nature and quantity, be considered entitled to the appellation of principal matter, leaving thus, for the distinctive appellation of the other, the epithet accessory.

At the same time, considering the obvious advantage with which the use of writing is in this as in so many other cases attended,—to the scriptitious matter, if the case afford any, will the epithet principal be in general found to be with greatest propriety applicable.

In this case, the contract is the appellation by which the aggregate quantity of scriptitiously expressed matter, or if it consist of scripts more than one, the principal script, will naturally be designated. In this case, accessory contractual matter will be the denomination expressive of the sort of relation which the orally-expressed contractual matter bears to the other.

And here at the same time it appears how inadequate the existing nomenclature is to the exigency of the case, and why it is, that, for the purpose of comprehending at the same time whatsoever matter is considered as principal, and whatsoever matter is considered as accessory, the term contractual matter has been employed.

Placed upon this footing, the practical question here to be considered is—a contract scriptitiously expressed: in other words, an instrument of contract being forthcoming, shall or shall not an exclusion be put upon evidence, the effect of which is to assert the existence and exhibit the supposed contents of contractual matter orally expressed, supposed to have been agreed upon in relation to the same transaction between the same parties? and thereupon to constitute so much accessory matter applicable in explanation or alteration of such principal matter?

If admission be given to the supposed accessory matter orally expressed, a supposition virtually included in such admission is—that without the addition of the orally expressed matter, the statement and representation given by the scriptitiously expressed matter, and in particular by the instrument of contract, is incomplete.

But note, that in this same case, if the existence of such supposed orally expressed contractual matter be considered as established, and the purport of it sufficiently ascertained, the consequence is, that without it, the expression given to the contract by the scriptitious matter alone cannot but be considered as incomplete, and in proportion to the nature and importance of the deficiency, deceptious.

§ 5.: Greater impropriety of the Exclusion in this case.

Whatsoever considerations have been seen pleading against the nullifying exclusion in the preceding case, will be seen pleading against it in this case: pleading against it, but with augmented force.

1. In the first place, of the apprehended mischief to which the exclusion has been applied in the character of a remedy, the extent is in that case beyond comparison greater than in the present: in that case unlimited, in the present case limited.

Among persons capable of contracting in the way in question, there exists not any person against whom pretended contracts may not to any amount be by possibility set up, supported by mendacious evidence, and who is not consequently exposed to be made a sufferer to an unlimited amount by fraud in that shape: whereas in the present case, the persons exposed to be made sufferers by fraud in the shape here in question, are, by the supposition, such and such only to whom it has happened to have been engaged in a contract of some sort or other scriptitiously expressed.

2. In the next place, supposing evidence of the supposed orally expressed matter admitted, the danger—i. e. the probability of the mischief in question, wants much of being as great in this as in that other case.

The circumstance to which this diminution of probability is owing is this, viz.—

In the present case, by the supposition, by the parties in question, in the course and for the purpose of the transaction in question, writing has been actually employed. Out of this established fact arises a material inference, an apparent probability, that the importance of this mode of expression to the purpose of giving to the contractual matter in question a determinate, permanent, and invariable existence, was by these same parties understood. But, admitting this mode of expression to be understood by them to be the fittest and most eligible mode, it is inconsistent—it is in a high degree improbable—that in the course of the same transaction the same parties should, even for the explanation, much more for the alteration of the matter expressed in this most trustworthy mode, apply other matter, expressed no otherwise than in that other and least trustworthy mode.

Here then, as often as, in the sort of case in question, by orally or otherwise expressed direct evidence, the existence of orally expressed contractual matter, agreed upon at the time in question by the parties in question, is affirmed, so it is that this direct evidence finds itself encountered by an article of circumstantial evidence, to the effect above described:—principal fact evidenced or probabilized, spuriousness of the supposed orally expressed matter;—correspondent evidentiary fact, improbability—psychological improbability—improbability, viz. that under a persuasion of the superior eligibility of the scriptitious mode of expression, the oral mode should by all parties have been employed: employed, and if for the purpose not of mere explanation, but alteration, employed for the purpose of its operating pro tanto in contradiction of matter expressed in a mode, of the superior trustworthiness of which there is room to suppose, as above, that on the occasion of this same transaction, they themselves were duly sensible.

Such is the consideration on which all direct evidence, true or false, exhibited in proof of supposed orally-expressed contractual matter, supposed to have been grafted in the character of accessory matter upon principal matter scriptitiously expressed, finds a constantly attendant article of counter-evidence.

Such at the same time is the consideration in which the judicatory, to which the evidence is exhibited, finds a natural and constant warning, putting it upon its guard against all deception, to which in such case it can stand exposed to be subjected to by false evidence.

And though, together with whatsoever matter of law happens to bear upon the species of contract in question, the factitious warning supposed to be expressed and notified by the legislator can never receive a too universal and universally efficient notification, yet the more powerful is the operation of the natural warning thus afforded by the nature of the case, the less is the need of the artificial warning, the less the inconvenience liable to result from any deficiency in the effective notification given to it.

And what is the consideration which it may be the expectation of the legislator to find already present in case of litigation,—present to the mind of the judges, and which, for the prevention of litigation, it is or ought to be his design and object to impress beforehand,—to impress at the time of entering into the contract, and giving to it its expression,—on the minds of the parties? It is no other than the very consideration which, in the minds of the authors of the exclusionary and nullifying law, or rule of law,—supposing their intention upright and sincere,—must, in the character of efficient or productive motive, have given birth to the measure by which the nullifying exclusion was thus applied.

To evidence assertive of the existence, and stating the alleged contents of an instrument of contract, therein and thereupon asserted to have been destroyed, admission has been given without scruple, and thereupon credence bestowed upon it, upon the testimony of a single witness. Comparatively speaking, in a case in which no such instrument ever was in existence, Edition: current; Page: [134] how easily and safely might not a false tale, assertive of its existence, be fabricated;—how much more difficultly and perilously, where, operating in the character of a check upon any such falsely asserted accessory matter, declared to have been orally expressed, there exists principal matter, in a scriptitious form,—in the form of an instrument of contract, of which the genuineness is out of dispute!

§ 1.: Course prescribed, in relation to this head, by Natural Procedure.

Follow in relation, to this head what present themselves as the proper subjects of inquiry:—

1. To the alleged creditor, by the alleged debtor, to the amount in question or to any other amount, and in the case of mutual accounts upon a balance, is a debt due?—is there any, and what, reason for supposing, that upon inquiry any such debt will be found to be due?

2. If due, in the possession or in the power,—at the command—of the debtor, is there in existence property, or other lawful means of compensation in any shape, to the amount of the debt, or any part of that amount?

3. Over and above the alleged debtor in question, are there any, and what person or persons, who jointly with him, in any and what proportion, or in his default, absolutely or eventually stand bound for the discharge of it?

4. To the alleged debtor in question, on the occasion of the contracting of the debt, or in respect of the non-discharge of it, is blame in any and what shape imputable?

5. If yes, in what shape? In the shape of fraud or rashness, or negligence;—and in each case, is any and what circumstance of aggravation on the one hand—of extenuation on the other hand, to be found attaching upon the offence?

6. In addition to the alleged creditor at whose instance, on the occasion in question, the demand is made, exist there any other and what persons, who on any and what score respectively, upon the effects of the alleged debtor have any such claim, as by satisfaction administered to the demand made on the present occasion, would to any and what amount be prejudiced?

Such are the points, or at least among the points, in relation to which, had justice been the object and humanity the guide, evidence would have been thought fit to be heard, or if not heard, at any rate in the best producible shape received and read:—heard or read, as the case may be, before any such sufferings as those which are attendant on imprisonment or local confinement had either definitively or provisionally, in execution or on mesne process, as the phrase is, been inflicted.

Evidence received?—from whom?—and in what shape? Answered a thousand and a thousand times over:—from the parties at the initiative meeting in the presence of the judge—in the orally expressed shape,—subject to interrogation,—unless in so far as personal appearance is by accident rendered on either side physically or prudentially impracticable.

Forewarned, an insolvent debtor might withdraw his person or his effects out of the track of justice:—suspicion to this effect declared, at the plaintiff creditor’s peril, on record, no reason why, with the secresy and suddenness that have place at present, the debtor should not be arrested, provided always, that instead of jail or spunging-house, he be brought immediately into the presence of the judge, there to undergo examination, as above.

§ 2.: Course actually pursued in relation to this head, by English Technical Procedure:—groundlessness and needlessness of the infliction in this case.

Above we see what ought to be:—now as Edition: current; Page: [136] to what is.—Under technical procedure—under Westminster-Hall procedure, on scarcely any of these points is evidence in any shape at any time received: on almost all of these points, evidence in all shapes stands at all times excluded.

Look to the efficient cause, and no further: in all this nothing will be seen but that sort of error which, throughout the greater part of this work, has been seen exercising its baneful rule—exclusion of evidence.

Include in your view the consequences and the final cause, the author’s end in view, and the means—everything will be seen by which the heart or the head of a man is most disgraced.

1. For consigning a man to imprisonment definitively till the debt is discharged—that is, bating the accident of insolvent acts, or release given by the injured creditor, to the end of life—in the ordinary course, viz. the common-law course of procedure, all that is required is, direct proof of the debt,—or what is considered as an equivalent, in the character of circumstantial evidence of it, and that conclusive,—inability to defray the charges of defence.

2. For consigning a man to imprisonment provisionally, viz. on mesne process, till he find responsible persons who engage, in the event of a judgment in affirmance of the debt, either to discharge the debt themselves, or deliver up his body to the definitive imprisonment—to imprisonment, viz. in a common goal, or if he able and willing to bear the extra expense, to a place of less incommodious confinement, commonly called a spunging-house, till the reign of George II., nothing more was necessary than repairing to one of the justice-shops (officinæ justitiæ, as in lawyers’ Latin they have been called,) in which the liberty of the subject was and continues to be sold at a fixed price, by and for the benefit of the judges;—going to one of these shops, and paying to the agent of the judge the price of the lying instrument, by which authority for the exercise of this act of oppression was and is conferred.

At present, the matter stands not exactly upon this footing. Anno 1725, at the end of a term of oppression of several hundred years continuance, without so much as the faintest colour of justice (after the degree of opposition that may be imagined,) what was pretended to be a remedy was applied.

Antecedently to arrest, as a condition precedent to the issuing the warrant for arrestation, an affidavit was required to be exhibited by the plaintiff creditor—an affidavit in which the existence of a debt not less than to a certain amount, as due to him from the alleged debtor, was asserted, but in the most general terms, without any the slightest indication given of the ground of the demand—without any such assertion as that that or any other amount was due upon the balance, or that for the vexation, inconvenience, and expense to which the alleged debtor was thus subjected, there existed any such reason as that which would be afforded by his probable insolvency, coupled with his eventual nonforthcomingness for the purpose of definitive imprisonment, as above.

The matter of fact deposed to, insufficient to warrant the suffering inflicted;—the sole source of the evidence the most untrustworthy of all sources,—the party testifying in his own cause, without the check of counter-evidence—that evidence received in the most untrustworthy of all shapes, viz. the affidavit shape;—to the purpose in question, this evidence taken for conclusive;—all counter-evidence excluded;—the party defendant condemned to this inconvenience, vexation, and expense, unseen and unheard:—such was the arrangement which, when applied to the abomination above described, a lawyer-led legislature was weak or wicked enough to present to the people in the character of a remedy.

§ 1.: Answer to the question, on the ground of Natural Procedure.

The obligation of adducing proof, on whom—i. e. on which of two contending parties—shall it on each occasion be imposed? In this may be seen a question, the answer to which is, under the technical system of procedure, encompassed with endless difficulties.

On the ground of natural justice, which is the only justice—under the reign of natural procedure, nothing can be more simple—nothing can be more easy.

On that one of the parties, says the answer, let the obligation be, in each individual instance, imposed, by whom, in that instance, if fulfilled, the fulfilment of it will be attended with least inconvenience;—inconvenience meaning always delay, vexation, and expense.

But how and when can it be known which that party is? Answer: Under technical procedure, never:—care, as hath been seen,—effectual care—has ever been taken that it shall not be.

Under natural procedure, along with so many other points that may require to be ascertained, it becomes ascertained—ascertained of course—at the initial meeting of the parties coram judice.

Nay:—but by the party by whom the allegation is made, by him it is that the truth Edition: current; Page: [137] of it ought to be proved. Such is the aphorism which on this occasion commonly, and not unnaturally or unplausibly, presents itself.

But, besides that it is in the technical, rather than in the natural system, that it would be found to have its root, and that accordingly the collateral ends of justice, viz. avoidance of unnecessary delay, vexation, and expense, are altogether disregarded by it,—so it is, that as statutes have been drawn up, the application of it has been found embarrassed by knots more easily cut than untied.*

Under the natural system, allegation is itself proof:—at least, in so far as in relation to the principal matter of fact in question, or any matter of fact that is considered as evidentiary of it, the party alleging alleges himself to have been a percipient witness.

At the same time, generally speaking, it is not so good proof—proof to such a degree trustworthy—as an allegation to the same effect would be, if made by an extraneous witness.

Much less is it as good proof, as an allegation, made to the same effect, by the adverse party—by the party to whose interest it is adverse. In his mouth, if his evidence be to the same effect, no allegation respecting perception can be necessary;—declaration of persuasion—i. e. admission, in which declaration of persuasion is included—of persuasion, how slight soever, so it be on that side, is sufficient.

In this point of view, the opposite to the aphorism in question, has therefore more of truth in it than the aphorism itself. Supposing the matter in question to have fallen within the cognizance of the adverse party,—of the party adverse to him by whom the allegation is made—the mouth of such adverse party is the properest out of which proof of it can come:—the mouth out of which it will come in the most satisfactory shape:—the proof may in that case be considered as conclusive.

In another point of view, true it is, that the author of the allegation is the party on whom it is incumbent that proof of it shall have been exhibited, or rather that evidence shall have been bestowed upon it. Incumbent?—upon that party, in what sense incumbent? In this sense, viz. that if such evidence fail to be bestowed, he it is by whom the evil consequences of such failure will be felt.

On this occasion, the plaintiff’s side of the cause is the side which is naturally the first, if not the only one, that presents itself to view. Why? Because, on the plaintiff’s side, if his be the side that prevails, there must, in every instance, have been something that has been regarded as having been proved:—whereas to the defendant it may happen, not only to contend, but to contend with success, when and although on his side nothing has been proved, or so much as been attempted to be proved:—nothing alleged but the opposite of some proposition that has been alleged on the plaintiff’s side. For on the side of the defendant, such is the state of the case, where, on the side of the plaintiff, the allegation, together with whatsoever other proof, if any, it has found for its support, has failed to obtain credence.

§ 2.: Practice of the English Equity Courts in relation to this head.

Among the artifices of the technical system, has been the keeping the means of obtaining proof—the means of securing the forthcomingness, whether of persons or things, for the purpose of evidence, in a state of the most perfect imperfection possible. In this policy, two advantages have been sought for and obtained:—in the first place, the uncertainty whether the proof necessary to success will after all be found obtainable—that uncertainty, in which the worst cause need never despair to find more or less of encouragement and incitement to perseverance: in the next place, the plunder collectable and collected in the course of the slow and expensive steps made requisite to be taken for the obtainment of the proof, in a track, every inch of which is kept as open as possible to dispute.

In a court of equity, for example, the evidence which, under natural procedure, you might at the first meeting get from your adversary, without a farthing’s worth of expense, in a couple of minutes,—you obtain, if fortune be in your favour, at the end of as many years, and at the expense of as many hundreds of pounds:—the noble, and learned, and pious, and indefatigable keeper of the king’s conscience, with eyes lifted up to heaven, lips invoking that God to whom he is soon to render his account, right hand upon “the sacred tabernacle of truth his breast,” self-chained all the while to the judgment seat, like the pillar-saint to his pillar, and denying himself his natural rest, to expedite you:—musing ever and anon, with a mixture of pity and astonishment, on the unhappy condition of those barbarian regions, which, not only on the continent of Europe, but even in this our island, it is said, are to be found, to which the blessings which it is the province of a Edition: current; Page: [138] court of equity to dispense, are unknown,—so completely unknown, that not so much as the name of it is to be found in their language.

Here there may be seen a scantling of that state of things, in and by virtue of which a question naturally of such subordinate importance, and so easily settled, as that concerning the onus probandi, has been converted into a question of cardinal importance, on which it may often happen, that the fate of the cause, and of the parties in respect of it, may have to hinge.

§ 3.: Practice of the English Common-Law Courts in relation to this head.

Thus much as to equity procedure: observe now how the matter stands, at the stage of jury-trial, at common law.

At the trial, sits the plaintiff in one part of the court, and the defendant in the same or another. In this supposition, there is nothing of extravagance—nothing but what is every now and then realized. For the purpose of Judge and Co., had it been necessary that, in the physical sense of the word exclusion, an exclusion should have been put upon the parties in that case, that in that or in any other sense, an exclusion would long ago have been put upon them, need not be doubted—an exclusion with the same right, and the same reason, and the same facility, as that with which, so far as concerns testimony, an exclusion in cases and on pretences such as have been seen, has been put upon extraneous witnesses. But so long as, figuratively speaking, he is in the presence of judge and jury, no suitor is suffered to come into or remain in court, without a gag in his mouth,—so long as, literally speaking, a suitor on one side is not only not compelled, but not permitted to give answer to so much as a single question put to him by a suitor on the other, the doors of the judicatory remain as yet unclosed against those to whom what is called justice is administered:—and while his ruin is decreeing (for, without exaggeration, the loss of any single trial, such is the expense of it, would to any one of a vast majority of the whole number of the people, be absolute ruin,) while this is passing, the man who has right on his side may, if so it be that his conception can comprehend the explanation given him of the jargon that passes in his hearing, have the satisfaction of hearing with his own ears the proximate cause of the ruin to which, with so deliberate a solemnity and regularity, he is doomed.

Be this as it may, within a yard or two of the plaintiff (to resume the case,) sits the defendant. At this stage at last, if by half a year, or a whole year, or more than a year, spent in doing nothing but fee-gathering, the rapacity of Judge and Co. could be satiated,—at this last, or almost last stage, if the plaintiff being allowed to put a question or two to the defendant, so it were that the defendant were on pain of loss of his cause obliged to answer him, that evidence, which at the very outset of the cause might have been, would now at last be, extracted, or, according to circumstances, at least indicated.

As it is, no such question being to be put, the consequence is,—that if so it be that it being determined that it is on the plaintiff the burthen of proof lies, no other than that which is thus refused to him being at the moment within his reach—a nonsuit, or, according to circumstances, a verdict against him, is the consequence.

If it be the defendant who finds himself in the like disastrous situation, the defendant’s not being the situation in which a nonsuit can be suffered, an adverse verdict is the least misfortune by which he can be affected.

If, having right on your side, you have a verdict against you,—a misfortune which, on the part of your law advisers, any supposed breach of a rule, never declared or so much as made, may on the occasion of any suit or cause at any time bring down upon you,—then so it is, that for ultimate success your only chance depends upon a motion for a new trial; that is, a second trial in the worst mode imaginable, in order to know whether a third trial in the same less bad mode as the first shall take place.

If, instead of having a verdict against you, it be your good or ill fortune to receive the indulgence of a nonsuit, the consequence is—that on condition of retreading a certain number of useless and expensive steps, a quarter of a year, or half a year, or a whole year afterwards, according to the latitude of the scene of action—according as it is to the south or to the north—a second trial, though not in this case under the name of a new trial, is at your command.

In this statement may be seen the effect of the question, the curious and learned question concerning the onus probandi, and the use of it to those for whose profit the delay, vexation, and expense, have been manufactured:—of this question, as of questions in abundance of the like nice and curious frame, and amongst others, questions concerning evidence,—see many of the preceding chapters and the succeeding one.

Such are the questions on which, after arguments addressed to the judge alone, the jury remaining in the state of puppets, so large a part of the time which ought to be employed, in arguments on which the jury, with assistance only from the judge, should decide, is consumed.

Of the immense heap of pestilential matter of which the chaos called jurisprudence is composed, no inconsiderable proportion is composed of cases which, under the primitive Edition: current; Page: [139] system of personal appearance, could not have had existence.

Such, for example, are those which belong to the question concerning the onus probandi.*

On this head, as on so many others here touched upon,—justice, genuine justice allows but of one general rule:—the burthen of proof, lay it in each individual case upon that one of the parties on whom it will sit lightest: a point which cannot be ascertained but by the explanations above mentioned.

Look to the books, and here, as elsewhere, instead of clear rules, such as the nature of things forbids to be established by anything but statute law, you have darkness palpable and visible.

The affirmative is that which shall be proved:—plausible enough;—but affirmative or negative depends not merely on the nature of the fact, but also on the structure of the language employed in the description of it. After, and notwithstanding this rule, come exceptions: and who shall assign an end,—among lawyers, who would wish to assign an end,—to the string of exceptions?

In the onus probandi may be seen one of those innumerable gulphs into which many fortunes are destined to be thrown, but which no number of fortunes will fill up.

An offence is created, and in the creation of it, in relation to that offence in the character of causes of justification or exemption, a number of circumstances are established. On the part of the plaintiff, the existence of the act of delinquency is of course to be proved:—but of the several circumstances, any one of which suffices to exempt a man from the penalty,—to entitle the plaintiff to the service he demands at the hands of the judge, shall it be necessary for him to prove the non-existence respectively?—or shall the proof of the act in question suffice, unless on the part of the defendant the existence of one or more of them be proved?

Having to his own satisfaction sufficient assurance, that on the part of him whom he is prosecuting, no one of all the appointed causes of justification or exemption has existence, so sure as the confrontation had place, being assured of finding in the answer, or even the silence of the defendant, sufficient proof,—he would exempt himself in the first instance, and ultimately the defendant, from the expense attendant on the proof, supposing it possible, of all those negatives. But the lawyers, with whose interest security on the part of suitors and clients is incompatible, have taken care that there shall not be any such assurance. In the darkness in which he is left to grope his way, the plaintiff, under the guidance of a professional adviser, whose profit increases with the burthen, under the impossibility of learning an opinion and a will which he to whom it belongs to form it has not yet formed, loads himself, if he be able, with the whole of the vexation and expense of which it is supposed that by any possibility it can happen to it to be pronounced necessary. If, sinking under the burthen, he fail in his conjecture concerning that which it has been rendered impossible for him to know, be the justice of his case ever so clear, he loses it.

It is the interest of the fraternity, that the traps thus laid on the plaintiff’s side for catching plaintiffs should be multiplied to infinity, that, on the defendant’s side, a man, be the badness of his cause ever so clear, may be encouraged to defend himself: accordingly, it was a maxim of Lord Chancellor Rosslyn, that no cause ought ever to be given up as desperate.

But men are thus discouraged from commencing a cause: and unless a cause be begun, how can it be continued? No such thing: if, setting aside the traps, the plaintiff’s cause be good, he is assured that it is good:—but nothing is said of the traps—they do not come till afterwards.

A legislative draughtsman who understood his business, would, in penning the substantive part of a new law, make due provision for the solution of these difficulties in procedure:—but as the system is constituted, it is not the interest of any legislative draughtsman to understand the business:—and if he did understand the business, what he would understand still better is,—that so long as the reproach of incapacity can be avoided, it is his interest to multiply and not to diminish the number of all such difficulties. Nor, after all, does the nature of the mischief admit of anything like a co-extensive remedy, other than the restoration of that feature of primitive justice—confrontation of the parties at the outset coram judice—which a man at the head of the law, had he as many hands as Briareus, would cut them all off sooner than he would co-operate in, or even be a witness to the restoration of.

§ 1.: Errors of this Theory—their efficient cause.

By inapposite arrangement, how vast is the mischief—by apposite arrangement, how great the service—that may be rendered to useful science!

From incorrect or incomplete conception in the first place, from incorrect judgment in the next place, inappropriate nomenclature, and the classification which is included (for in proportion to the extent of the collection of things which it is employed to designate, nomenclature is classification,) receive their existence: and, once established, give permanence to the same undesirable result from which they received existence.

In the books of English lawyers, when the topic of evidence comes upon the carpet, and in particular in those books of which evidence constitutes the sole topic, the first division made of the subject is the division of evidence into written and unwritten:—written occupying the first place:—and of the nature of this sort of evidence, description being given, such as it is, before anything is said on the subject of unwritten evidence.

For the mass to which the appellation of unwritten is allotted, is reserved everything which in the course of this work has been said on the subject of trustworthiness and untrustworthiness, including whatsoever has been done and established in the way of exclusion—that field on which the fraternity of lawyers has, so much at its ease, and with such demonstrations of vigour and delight, been seen disporting itself.

The wise and the foolish, the just and the unjust, the interested and the uninterested, the man of untainted and the man of tainted character,—thus various are the descriptions of persons out of whose mouth it may happen to evidence to have issued, according to a discovery which is made—at what period? by and not before the time at which everything has been said which required to be said on the subject of written evidence.

Of the persons from whose minds evidence not committed to writing, or whatsoever else is meant to be distinguished by the word unwritten, has been delivered,—such and such are the different characters and descriptions. Be it so:—such, in consideration of these several characters, is the disposition that has been made by English law in relation to their respective testimonies. Alas! it is but too true.

But the persons from whose minds the sort of evidence called written is delivered, what sort of persons are they?—their evidence, is it not susceptible of trustworthiness and untrustworthiness?—their character and dispositions—of wisdom and weakness, of probity and improbity?—their respective situations, are they not respectively capable of standing, unreached by, or exposed to, the action of sinister interest?

Or is it that the beings, of whose evidence written evidence is composed, are one class of beings—those of whose evidence unwritten evidence is composed, another and a different class of beings;—the authors of written evidence, as the place allotted to them imports, being creatures of a superior class, the authors of unwritten evidence of an inferior class?

By a conception implying a judgment passed on the affirmative side of the above question, does the first step taken in this line of arrangement appear to have been determined:—and of this first step such was the importance, and such the delight with which it was accompanied, that by this first step all those that followed it were determined; and whither they led—into what a labyrinth of error and absurdity the mind by which this course was thus pursued would be conducted—was a consideration for which no sort of attention had been reserved.

In the demesne of written evidence, the first field you come to is that in which the produce has the lords of this vineyard themselves for its authors; viz. that sort of written evidence, that super-sacred sort of evidence, distinguished by the appellation of a record.

Of this super-sacred and super-human class of persons, one attribute is the being exempt from all human weakness. In the king, whom the pious commentator Blackstone has pourtrayed in such glowing colours as supreme, all-perfect, immortal, and omnipresent, they behold their God: in themselves the most perfect, the most exalted, and the most justly exalted of his creatures. From this perfection on the part of the workman, follows the perfection of the work:—falsehood is a property of which no assertion flowing from such a source is susceptible. False to any degree in itself, by passing through such a medium, the assertion, whatsoever it be, is Edition: current; Page: [144] rendered true. Truth and falsehood, and by their means, right and wrong follow “the finger of the law.” Falsehood, if not, literally and strictly speaking, converted into truth, is acted upon, treated, and in every respect acted upon as if it were:—it gives rise to action on the part of the authors of all justice, and by their irresistible hand it is protected from that contradiction which it might otherwise be exposed to suffer at the hands of the profane.

Of those truths which it is the function of mathematical science to usher into the world, it is a common property not to be susceptible of contradiction: demonstration is the appellation given to that species of discourse by which a truth of this class is shown to be what it is: a diagram is a sort of figure or picture of graphical exhibition, of visible sign, or figured representation, which, for the purpose of giving facility to such demonstration, is employed by that branch of mathematical science in which the circumstance of figure is taken into account.

According to the definition given of it by Lord Chief-Baron Gilbert, a record is accordingly a diagram for the demonstration of right. The problem proposed by him to himself was—to prove all English judges, whose station is in Westminster Hall, to be infallible. Such as has here been seen is the medium of proof—such the demonstration: never was Q. E. D. written with more perfect satisfaction by the master geometrician, or received with more perfect acquiescence and admiration by his pupils.

And this diagram for the demonstration of right, what is it? The constantly filled receptacle of falsehoods, not only among the most pernicious, but among the most notorious that the repositories of profane discourse, taking the world throughout, was ever known to furnish—falsehoods which, though acted on as if they were truths, are not altogether without exultation recognised in their character of falsehoods, and under the name of fictions, confessed and delineated by Blackstone.

Of the principle of arrangement here in question, such has been the object in view—such in too great a degree the effect: to procure for the most degrading vice a species of adoration beyond what could ever be due, if bestowed upon the sublimest virtue.

In a preceding part of this work, the suggestion has been already hazarded, that official persons in general, and judicial persons in particular, are but men, made of the same mould as other men: men in whose instance, for the purpose of evidence and judicature, as for other purposes, trustworthiness is to be examined into by the same lights, and determined by the same tests, as in the instance of men of lower degree, or of no degree at all.

Whether for the formation of a right judgment on a subject of this kind, the course pointed out by the suggestion so hazarded as above, or that which has been taken by the demonstration just reported, be the more promising, is among the questions on which it will rest with the reader to decide.

To some readers, the notion by which fallibility is ascribed to the only class of persons, of secular persons at least, from whose pens, not to speak of tongues, falsehood in a larger proportion than truth, and never without yielding profit in return, is wont to flow, will be apt to appear speculative—an epithet in use among official persons for the condemnation of whatsoever proposition is too adverse to private interest not to be hated, and at the same time too manifestly true to be denied.

From this highest level in the scale of authority and excellence and correspondent trustworthiness, Gilbert descends successively to what he calls the inferior degrees; viz. public written evidence of an inferior nature to matter of record, private written evidence, and unwritten evidence.

§ 2.: Errors of this Theory—their final cause.

Demand is the parent of supply. Of the reputation of trustworthiness, of verity and veracity, the value is felt and recognised by the most stupid. Puffed off by them upon mankind as true, it was their interest that this compost of lies should be taken and accepted as true, the more thoroughly and palpably it was seen and felt by them to be tainted with the opposite vice.

Throw the business into confusion—was the order which, in a moment of agony, the vexation under which he had had to struggle extorted from a distinguished servant of the public, whose services have been so universally felt, and with the help of lawyer’s quibbles, and the barbarism, and proportion-confounding law of forfeiture, so perfidiously and ungenerously rejected.

To throw and keep in confusion had been the line of policy pursued by his crafty opponents, who, with so much power to act, had little need to speak or write, and who, if they did speak, were too powerful or too fortunate to be betrayed.

To keep the whole subject involved for ever in confusion, the very thickest confusion that can be manufactured, has been the line of policy so diligently and successfully pursued by the fraternity of lawyers throughout the whole field of law;—throughout the whole of that vast field, and nowhere with more success than in this most important and commanding part of it.

For the creation and preservation of confusion, what more effectual instrument could be chosen, than a system of classification and correspondent nomenclature, in which Edition: current; Page: [145] a subject was undertaken to be taught before any of its properties had been brought to view;—parts and particulars, of the most opposite nature and tendency being lumped together and perpetually confounded under one name, whilst the same things were introduced under two different names?

Fortunate is the man in whose favour art and nature, exertion and carelessness, ingenuity and stupidity, concur and conspire towards the production of the same results!

In this part as in others of the field of law, thus happy has been the situation and position of the fraternity of lawyers. In default of opposite interest, imbecility would of itself have sufficed to fill the paths of law and legislation with weeds and thorns; and of the facility thus afforded by nature, every advantage has been taken that could be taken by the most consummate art:—such being the direction given to everything to which any such appellation as industry, or diligence, or art, or labour, or ingenuity, can be applied: and by these means have non-lawyers been rendered unable in general to unravel the mysteries in which Judge and Co. have involved all legal proceedings, under cover of which they have with so much success pursued their own peculiar and sinister interests.