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Front Page Titles (by Subject) BOOK X.: INSTRUCTIONS TO BE DELIVERED FROM THE LEGISLATOR TO THE JUDGE, FOR THE ESTIMATION OF THE PROBATIVE FORCE OF EVIDENCE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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BOOK X.: INSTRUCTIONS TO BE DELIVERED FROM THE LEGISLATOR TO THE JUDGE, FOR THE ESTIMATION OF THE PROBATIVE FORCE OF EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) [1843]Edition used:The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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BOOK X.INSTRUCTIONS TO BE DELIVERED FROM THE LEGISLATOR TO THE JUDGE, FOR THE ESTIMATION OF THE PROBATIVE FORCE OF EVIDENCE.CHAPTER I.PRELIMINARY OBSERVATIONS.§ 1.Use of instructions from the legislator to the judge, relative to the probative force of evidence.We have seen the causes—the psychological causes—by the operation of which on the mind of the witness, deception is liable to be produced in the mind of the judge: sinister interest, improbity, and imbecility,—to one or other of these we have seen all those causes to be referable. Had the immediate causes alone been to be taken into the account, the catalogue might have been still shorter: improbity might have been omitted; since it is only in as far as it is coupled with sinister interest—it is only through the intervention of sinister interest, that, to this purpose or any other, improbity is capable of operating in the character of an active principle. We have seen that in no instance can any one of these circumstances be employed with propriety as a ground for the exclusion of any article of evidence. But what we have also seen, is, that there is not one of them by which a just cause is not presented for regarding the evidence with a suspicious eye; for regarding the trustworthiness of it as diminished by the influence of the circumstance. Hence the propriety of delivering a set of instructions to the judge, pointing out to his observation the source and degree of its inferiority in point of trustworthiness—of its tendency to produce deception; and thus putting him upon his guard. For exclusion, substitute the rival remedy, instruction: nothing, it will be seen, can be more innocent; nothing, in every point of view, more unexceptionable. In so far as the instruction is operative, all the good that could have been done by the rough remedy of exclusion, is done by this gentle and rational substitute. If inoperative, inasmuch as the same line of conduct as that which is indicated and recommended by the instruction, would have been practised without it,—even then, and at any rate, it does no harm. But, under the system of instruction, and in spite of the instruction—in this and that instance (it may be said) it may happen to the judge to give credence, or appear to give credence, to this inferior evidence; and thus being, in reality, or perhaps in appearance only, deceived and misguided by it, misdecide in consequence: an injustice which, if the deceptitious article of evidence had, by an obligatory rule of law, stood excluded, would not have taken place. True: after hearing, under the system of instruction, an article of evidence that under the exclusionary system would have stood excluded, it may happen to the judge to misdecide. But so it may, and ever and anon does, happen to the judge to misdecide, after hearing evidence of a sort to which no exclusion has, under any system, been applied. Under the system of instruction, the judge has before him the instruction, which, in its nature, cannot be so much as intended to serve as a guide to the understanding of a judge, without also serving as a check upon his will-serving on each occasion to point the attention of the public to the course taken on that occasion by the judge. Of the exclusionary system, in so far as it extends, the effect is to tie up the hands of the judge. It is the application of will to will—of arrogance to subjection—of a man without understanding, to another labouring (as he presumes) under the like misfortune. It is the policy of one to whose perverted optics all men are liars, and all judges fools. So many exclusionary rules, so many insults offered by the author of each rule to the understanding of those whose hands are expected to be tied by it. Coming from the legitimate legislator, addressed by him to his subordinate, the judge,—whatsoever self-conceit and rash presumption there might be in it, there would be, at least, no usurpation, no pretergression of the bounds of official authority: the hands he ties up are the hands of his constitutional subordinate—hands to which, be the occasion what it may, in some way or other he applies additional bands by every word he utters. But, in fact, so it is that (in England at least) the exclusionary rules have not, in any instance, had the will of the legitimate legislator for their source: in every instance they have had for their author some lawyer, in the character of a judge, who, tying or pretending to tie his own hands, has provided a set of manacles—ready made manacles, into which his successors, to save the trouble of thinking, have spontaneously introduced their hands. But though in this, or in any other system of incongruous arrangements, the influence of folly ought never to be left out of the account, there seems reason enough to suspect, on the grounds so often already referred to, that, in the composition of this system, improbity, lawyercraft, acting under the spur and the direction of sinister interest, had an important share. Hitherto, whether in the character of legislator or pseudo-legislator, man has manifested (and certainly not altogether without reason) less confidence in the ascendency of his understanding than in the efficiency of his will: had it been otherwise, laws would have been somewhat less numerous; instructions (I mean from the legislator to the judge) would not have been, as they are to this day, almost without example. One consolation is, that, in the way of instruction, it is not altogether out of the sphere of industry and intelligence, though unclothed with power, to be of use. When the individual is out of the way, jealousy dies with him; and then comes the time for his words to pass for whatever may be their value. Among the living, wisdom is nowhere to be found but in the seat of power: she lodges under the privileged robes, and is passed from hand to hand, in company with seals and purses. In the ensuing pages, a sample may be seen of the instructions, which, on the subject of evidence, it might be of use for the legislator to furnish, to serve as a light to guide the footsteps of the judge. The more plainly true it may happen to them to be, the less extraordinary they will appear, and the less free from all pretension to be taken for anything beyond the obvious dictates of simple common sense. In the case of a body of instructions,—supposing a code of that description to be inserted in the aggregate body of the laws,—one comfortable reflection presents itself, viz. that by this part no addition need, nor therefore ought, to be made, to that part which, in the shape of an inevitable load, is imposed upon the memory of individuals. The subject, the private citizen, as such, has no need to load himself with it; it belongs not either to the catalogue of his duties, or to the catalogue of his rights. The person whose judgment it is calculated to assist, is the judge, and no one but the judge: the person for whose assistance, in the way of instruction, it is designed, is the judge. To the individual it is of no use, but in the event of his having the misfortune to become a suitor: nor then, but in the event of his observing, on the other side, some witness or witnesses whose testimony he observes or suspects to be exposed to the action of some interest—some sinister interest, against the seductive influence of which it concerns him that the judge should be sufficiently upon his guard. § 2.Instructions to the judge not given under existing systems, and why.Under existing systems, when a lot of testimony, exposed on any particular score to suspicion, is brought forward, the grand, or rather only, object of consideration is, whether or no it shall be admitted. If admitted,—what degree of credit shall be attached to it (i. e. what circumstances there are in the situation of the witness, by which the degree of confidence that might otherwise be reposed in his testimony may be diminished,) is a topic scarce ever so much as glanced at. It is, accordingly, only for the purpose of serving as a ground of exclusion, that any circumstance, in the character of a cause of comparative untrustworthiness, is ever brought to view. If, in the character of a legal ground for exclusion, the circumstance is sustained, it is then pronounced an objection—a good objection—to the competency of the testifier: if in that character it be repelled, it is then said to be not good as an objection to the competency of the witness, but as an objection that goes to his credit; and in that character, if it be a jury-cause, to be considered by the jury. Here then, and without any sort of instruction or assistance from the official judge,—the jury, by the light of common sense, are supposed to be natural, competent, and perfect judges of the degree of credence proper to attach to any the most suspicious evidence, against which the door of the witness-box is not peremptorily shut:—while, as to the question, whether it shall be heard or no, it is at the same time taken for granted, that they are radically incapable of forming any tolerable judgment, even with the help of all that official wisdom to which, where the question is concerning the interpretation to be put upon an article of law (whether jurisprudential, that is imaginary, or statutory, that is real law,) they are expected to pay the most implicit deference. The question thus referred to the jury, one might here suppose, might be an occasion for the advocates on both sides to display their eloquence: on one side in exaggerating—on the other in depreciating, the force of the mendacity-promoting interest, or other supposed cause of untrustworthiness, whatever it may be. In fact, an allusion of this sort cannot but now and then be made; but as for any argument at large—any regular debate, it may be questioned whether one instance of any such argument be to be met with anywhere. The reason (one reason at least) seems not difficult to divine. Besides, the universal absurdity, so inconsistent are the exclusionary rules, that, while interests purely nominal, plainly incapable of exciting in the breast of any human being any the smallest particle of interest—of exercising in it any the smallest particle of influence, are received as grounds for absolute exclusion,—a dose of interest, compounded of the strongest ingredients that human nature furnishes, is not received in that character. The consequence is, that against calculation, comparison, ratiocination, the door is shut by a kind of instinct. Ground thus laid out is as unfit a field for rational argument, as a crowded china or glass shop would be for a fencing or a boxing match. By the same considerations it is rendered pretty obvious how it has happened, that, for the guidance of the jury, little or nothing in the way of instruction can rationally be expected from a judge. Instruction to a jury from an English judge? Not a proposition—no, not a syllable, could he utter, on any part of the whole subject, without running full butt against some one or other of his rules—without proclaiming the absurdity and mischievousness either of some exclusionary rule, or of some exception taken out of it. Well, therefore, may he leave this exercise of the judicial faculty to the jury—to anybody who will exercise it, or profess to exercise it: feeling, as he cannot but feel, his utter inability to afford to them any the smallest assistance, without exposing to merited contempt the system of doctrine to which he is tied down,—doctrines for which neither defence nor apology can be found by any human being, and of which, in his situation, it would not be decorous to speak the truth. On the score of interest (for example,) to what use could it be for a judge to set about weighing grounds of objection, when in so many instances a party is admitted to testify in his own behalf, in his own cause?—on the score of improbity,—when a criminal, confessedly tainted with improbity in the highest degree, is admitted, under the impression of a mass of interest, of which one ingredient is itself the strongest that human nature can be urged by? Thus it is, that by the learned judges feeling themselves completely unequal and radically incompetent to the task, it is abandoned altogether to that class of men—of ephemeral judges—whom (on pretence of their inability to understand those books, which, made or not made, promulgated or not promulgated, every man is punished for not understanding,) they are so forward on all other occasions to lead like infants in a string, frequently to pull them about and speak for them, as if they were puppets. From such a source, it may now be imagined whether it be in the nature of things that any discourse capable of bearing the name or calculated to answer the purpose of instructions, should ever have come: whether from the bench, in bits and scraps, brought out pro re natâ, like the rules of their phantasmagoric system of law, to serve the purpose that happens to be in hand; or from the study, in the form of a treatise, from a learned author of whatsoever class, whether it be a briefless advocate or a superannuated judge. Incapable of finding a source anywhere in jurisprudential law,—should such a body of instructions be looked for, with any better prospect of success, in statute law? But from what sort of person, then, shall it come?—from the attorney,—who, being paid at so much a sheet, exhausts his powers in the efforts made to find surplusage, screwing up to its maximum the multitude of the sheets?—or from the scantily-pensioned draughtsman, whose occupation it is, while an exhausted treasury is gaping for sustenance, to draw tax-bills against time; and who, never having opened his eyes to anything better, looks up to surplusage, to the works of the attorney, as the only models for his works? From whom can any such information be looked for, but from one by whom the field has been surveyed, and surveyed in all bearings, with views directed to the ends of justice? But, under the fee-gathering system, in what corner of any inn of court or chancery can any such person be looked for, with any expectation of finding him? To what ends, in any of those receptacles of sham–learning can men's views have ever been directed, but to the ends of existing judicature, the very opposites of the ends of justice? § 3.Object and character of the following instructions.Of the ensuing body of instructions, the object will be, to point out to the notice of the judge the several circumstances which, by the influence they exert on the will of the witness, or the indications they afford of his disposition and character, moral and intellectual, present themselves as having the effect of demonstrating the trustworthiness of his evidence,—the probability of its being at once correct and complete,—of its conforming itself throughout the whole course of it to the line of truth:—or else diminishing this probability on the part of the testimony, and thence diminishing the degree of the probative or persuasive force with which it is fit that it should act on the mind of the judge. Antecedently to the present stage of the work, this topic never presented itself for consideration. Why? Because, from the first to the last, the proposition maintained has been, that, be the degree of trustworthiness ever so small, ever so low, it can in no case form a rational ground for the exclusion of the evidence. But supposing this granted, then, and not till then, comes the question, what degree of persuasive force to attribute to it. As to a great part (perhaps by much the greatest,) they will be found so obvious to the most uninformed mind, that, in the character of information, nothing could be more superfluous, and even impertinent; but in the way of memento, the faculty of recurring to them may not be the less useful and commodious. Of a dozen considerations, immediately following one another, it may happen that there is not a single one that would not to the most uncultivated understanding be an obvious one. But it may happen, that, for want of a simultaneous view, some one of them may be out of mind: and for want of that one, the decision, the judicial operation, may fail of being so correct as it might and ought to have been. If, in the instance of the merely curious reader, there be anything in them capable of affording to his understanding the slightest degree of instruction, or exciting in his mind the smallest spark of interest, it must be the continually repeated contradiction and disproof they give to the rules which govern the existing practice. For in this quarter of the field of law (not to speak of so many others,) the art of the English lawyer (not to speak of other lawyers) has two branches: the art of knowing that which has no existence, and the art of not knowing what is known to everybody else. Throughout the whole course of these instructions, the English reader, and more particularly the English lawyer, would be apt to expect, and thence to be more or less disappointed at not meeting with, a number of technical terms, which, in the part here in question of the field of law, are in present use. Had they been found capable of answering the purpose of correct information, there is not one of them that would not have all along been employed. But, in this, as in other branches of science, it is not in the nature of terms of extensive import—of generic terms, where they are the result of erroneous views of the subject, to be capable of serving for the enunciation of truth. Of the classes among which transgressions productive of real mischief have been distributed in another work,* ten or a dozen characteristic properties have been enumerated, as respectively belonging in common to the offences aggregated to each respective class:—such and such properties to all offences against other individuals; such and such to offences, or supposed offences, against a man's self; such and such to offences striking not against any assignable individuals, but undistinguishably against all the individuals of which the public is composed. But, of the classes of offences, and other acts and objects, as made up by the technical denominations employed by the technical system, it is a property (and the only property they have in common) to have no natural property in common;—to have nothing in common but the artificial arrangements made under that system in relation to those objects. Take, for example, the words crime, misdemeanor, felony, præmunire, tort, larceny, arson, &c. &c. The omission was indispensable. Throughout the whole course of the work, the purpose of it being to deliver useful truth, and nothing else,—terms which could not be employed without disseminating error, pernicious error, were incapable of being rendered subservient to the purpose: just as a mixture composed of arsenic and sugar would be incapable of being made into syrup, as a vehicle for any useful medicine. But, from this omission, no sort of privation or inconvenience in any shape will accrue to anybody—at any rate, to the non-lawyer.—The words which, in the room of these technical ones, are employed,—these natural expressions, though they belong not to the language coined by lawyers, belong not the less in fact, and by rather a better title, to the English language. The words thus carefully, because necessarily, excluded, belong all of them to a sort of cant or slang, the opprobrium of the body of the language: a sort of slang never used but to a bad purpose—incapable of being ever applied to any good one. By the omission of this lawyers' jargon, the reader (the non-lawyer at least) is no more left at a loss, than he is by the omission of that other sort of flash language called the thieves' cant or slang, the language in use among unlicensed depredators. The judge, for whose use these instructions are designed, is a judge whose views (the source of corruption being supposed to have been previously dried up) are directed, not to the established ends of judicature, but to their opposites, the ends of justice: and to such new views the common language of Englishmen will be found as congenial, as the established lawyers' slang will be found inapplicable. CHAPTER II.OF INTEREST IN GENERAL, CONSIDERED AS A GROUND OF UNTRUSTWORTHINESS IN TESTIMONY.Whatsoever be the general disposition and character of the proposed witness, the trustworthiness of his testimony is liable to be affected by the interests of all kinds, to the action of which, at the time of delivering such his testimony, he happens to stand exposed. Between the ideas respectively denoted by the words interest, motive, hope, fear, good, evil, pleasure, and pain, the connexion is inseparable. Without motive there is no interest; without hope or fear there is no motive; without good* or evil, there is no hope or fear;† without pleasure or pain there is no good or evil. To the several sorts of interest, therefore, correspond so many sorts or modifications of motives, hopes and fears, good and evil, pleasure and pain. The interests, the influence of which is strongest, and most likely to be exerted upon testimony, are those which arise out of the following classes of pains and pleasures:—
In regard to pleasures and pains, besides those which are to be found in the above list, a variety of others are exemplified in experience. But, in whatsoever number and variety those which are not inserted in it may be to be found, they will (it is supposed) be found to come, all of them, under this description, viz. that the pleasures are such as to be at the command of whosoever possesses the taste or relish on which their existence depends, and by that means are incapable of exerting an influence on testimony; the pains such, that the avoidance of them depends not upon testimony. If, in the case of a pleasure, it be of such a nature as to be on some occasions at a man's command—on other occasions not at a man's command without his being in possession of some object serving as the instrument of that pleasure, and the possession of such instrument is not to be obtained without money, but is to be obtained by money,—the pleasure, in this latter case, comes under the head of the pleasure of possession, with relation to the matter of wealth—and becomes pregnant with one of the interests capable of acting upon testimony, viz. pecuniary interest. Thus (as was the case with the earliest astronomers,) if a man, having a taste for astronomy, can content himself with the pleasure of contemplating the celestial objects on a clear night, so far the pleasure he enjoys belongs to the class of those which are not pregnant with an interest capable of operating upon testimony. But if, to enable him to reap this pleasure, he requires an instrument, such as a telescope, the property or use of which is not to be obtained by him but for money,—in that case his pleasure is pregnant with a sort of interest which is either the same with pecuniary interest, or equally capable of exerting an influence on his testimony. So, again, if it requires him, as the study of astronomy by a clear night without an instrument would do, to be at liberty—and for want of money to purchase his liberty, he is confined to a chamber lighted only from within. So, again, if, having a relish for the pleasures derived from the ideas of the sublime and beautiful, as presented by natural objects, such as the sun, the moon, mountains and valleys, seas and rivers, the objects themselves are not sufficient for him, without the assistance of Macpherson's Ossian, or Thomson's Seasons, or Burke on the sublime and Beautiful—and the books are not to be had without money, nor the money without testimony. So, again, in regard to pains: for example, the pains attendant on this or that disease or indisposition. If, truly or falsely, they are understood to be out of the reach of cure, they too, like the pleasures, are incapable of giving birth to any of those interests by which an influence is occasionally exerted on testimony. But if, being understood to be within the reach of cure, the administration of the cure is (as in general it will be) necessarily attended with expense, then they come within the description of those pains which, by the interest with which they are pregnant, are capable of exerting an influence upon testimony. Without wine, for example, or without sea-bathing, relief (it is understood) is not to be had; by means of wine, or of sea-bathing, it is to be had: but the wine, or the sea-bathing, is not to be had without money, nor the money without testimony. Thus much for illustration, and for removal of objections. But in the cases here exemplified, it is sufficiently evident, that, though at a first view it may appear that by the pleasures or pains in question an influence is exerted upon testimony, and that on that score they ought to have been comprehended in the list; yet, upon a closer examination, it appears that the interest by which the testimony is acted upon in those cases, is neither more nor less than pecuniary interest; and that the force of it is proportioned to the pecuniary value of the several instruments in question—the instruments by which the pleasure is expected to be procured, or the pain removed. The degrees of which the scale of testimonial trustworthiness is susceptible, can rarely be anything better—anything more precise, than merely relative: absolute, the nature of the subject does not, in general, allow them to be. In some instances (as will be seen presently,) and only in some instances, you can say that, whatever be the trustworthiness of the testimony in this first case, it is less in that other case—still less in that third case; but how much less, is what you cannot say in either case: language furnishes you not with the means. It is not with trustworthiness in psychology, as with temperature in physics; in which you can say not only, it was cooler yesterday at noon than to-day at the same hour; but, by observation taken each day on the thermometer, you can express the difference, by numbering in each case the degrees. The only state of things in which the force of an interest (whether in the character of a mendacity-promoting or in that of a mendacity-restraining interest) is susceptible of measurement, is that in which the correspondent pleasures or pains have for their efficient cause an object susceptible of mensuration. Out of all the species of interest, it is only in two that this case is verified, viz. pecuniary interest, and the aversion to labour. In the case of pecuniary interest, for example, everybody sees, that upon a given person (proximity and probability being in both cases the same,) the operative force of a sum of £20 will be, practically speaking (though not in mathematical strictness,) double that of £10. So, in the case of aversion to labour, the operative force of a course of labour for two hours, will be, practically speaking, double that of a course of labour of the same sort for one hour, and, mathematically speaking, something more. The irksomeness of labour depending so much more upon the species than upon the quantity as measured by time; and of labour, the same in species as well as quantity, the degree of irksomeness being so widely different to different individuals, in such sort, that a quantity of labour which to one man is highly irksome, shall to another be not merely indifferent, but highly agreeable;—quantity of labour forms but an imperfect and incompetent subject of mensuration. There remains, therefore, money, as the only efficient cause of interest, and pecuniary interest as the only interest, the force of which, in the character of a mendacity-restraining or mendacity-promoting interest or motive, is commodiously measurable. Yet, this measuring rule once obtained,—by reference to this (by means of the principle of commercial or commutative exchange) cases will happen in which the force of any other species of interest may by accident become susceptible of mensuration. Thus, suppose two political situations affording honour or power (both or either,) without profit:—considering each by itself, it may be difficult to form any sort of estimation of the degree of force with which, in the character of mendacity-restraining or promoting interests, they may respectively operate upon the mind of a given person. But suppose them to have been, each of them, the objects of purchase and sale—the one having been bought and sold for £2000, the other for £4000:—in this case, the force of the interest constituted by them respectively is as susceptible of mensuration as that of an interest constituted by money. For an injury done, or supposed to be done, the party injured prosecutes the supposed injurer. He knows beforehand, that (such is the course of practice) he will not, even in the event of his succeeding in the prosecution, receive satisfaction in any pecuniary shape: he understands, on the other hand, that the amount of the expense on his side is not likely to be less than £50. He prosecutes notwithstanding, and delivers his testimony. The interest by which he has been engaged to embark in this prosecution, is the interest created by that modification of the pleasure of antipathy, called the pleasure of revenge. Here, then, not indeed the exact force of that interest, but the minimum of it, is given, and expressed in money. It is certain that it acts upon him with a force at least equal to £50,—that is, to the apprehension of losing £50; since he pays £50 for the purchase of a chance of it. With how much greater a force, does not appear: since it does not appear how much more he would have spent in prosecuting, rather than not obtain the pleasure of the revenge. There are five species of interest, to the action of all, or most of which, a witness is generally exposed: all concurring in exercising on his testimony a tutelary—a mendacity-and-falsity-restraining, influence; an influence such, that the stronger it is, the greater is his trustworthiness: acting consequently in the character of so many sanctions,* contributing, all of them, to bind him to the observance of the laws of truth. They are: 1. The fear of labour, or love of ease; produced by the difficulty of composing, for the occasion, and on the spot, a statement which, being more or less false, must, to answer any purpose that can be answered by falsehood, wear the appearance of being true. Corresponding sanction, the physical sanction, viz. the self-regarding branch. 2. The fear of shame; viz. of the shame, and consequent contempt or ill-will, which mankind in general are apt to entertain towards one who, on any such important occasion, is supposed to have willingly departed from the line of truth. Corresponding sanction, the moral or popular sanction. 3. The fear of punishment—legal punishment; viz. suffering, under the name of punishment, in general expressly attached, by the power of the law, to every departure, at least when wilfully made, on any such occasion, from the line of truth. Sanction, the political sanction. 4. The fear of supernatural punishment—of the punishment to be expected in case of every such transgression, at the hands of Almighty Power. Sanction, the religious sanction. 5. Regret at the thoughts of the evil, of which, at the charge of this or that individual or assemblage of individuals (the witness himself not included,) the transgression in question may be considered as more or less likely to be productive. Sanction, the sympathetic sanction; another branch of the physical sanction, the social branch.† In the instance of sympathy, the direction in which it acts is far from being so uniformly and steadily on the tutelary or mendacity-restraining side, as that of any of the four preceding sanctions. In a cause of a purely criminal and penal nature, presenting a defendant thereby exposed to punishment, and no individual specially injured on the other side, and the witness satisfied of his guilt;—in this case, the action of this interest (supposing all the other tutelary and mendacity-restraining interests out of the question) would be solely on the mendacity-promoting side. In a suit between one individual and another (punishment out of the question, and nothing in dispute but money or money's worth, claimed by one, and refused to be given up by the other,) love of justice, as well as all partial regard, out of the question, this interest could have no place on either side. Remains, as the only case in which this interest regularly joins its force to that of the other masses of interest above mentioned as constituting the four regularly acting mendacity-restraining sanctions, the case where, the suit being purely penal, the defendant was not guilty; i. e. does not present himself as being so, to the mind of the person whose testimony is considered. Of the several sorts of interest mentioned in the table, there is not one that is not capable of acting on a man's testimony in a sinister direction, that is, in the character of a mendacity-promoting interest. Nor is there one to which it may not by accident happen to act in the opposite direction; that is, in the character of a mendacity-restraining interest, an occasional, casual, mendacity-restraining interest, acting in conjunction with the standing tutelary or mendacity-restraining motives above mentioned. Nor is there, consequently, a sort of witness to whose testimony, in almost any sort of cause, it may not happen to be exposed to the action of any number of casual interests on either side, or on both sides. All other circumstances being the same,—the greater the affliction of the party suffering by the testimony will be apt to appear in the eyes of the witness—and thence (unless in as far as any difference can be seen to have place) the greater it is in reality, i. e. in the eyes of the judge,—the greater the improbability of the testimony being mendacious. 1. One reason is, that the greater the suffering of the party against whom the testimony operates, the greater is the force with which, on a person whose individual character is unknown, one of the five mendacity-restraining sanctions—viz. the force of sympathy—may be expected to act. Thus, in a criminal case, the punishment being capital, or in any other way ultrapecuniary,—it is less probable, that, by a pecuniary interest of a given magnitude, or by the interest of revenge, a man should be induced to aim at producing the conviction of an innocent defendant by false testimony, than if the affliction to the defendant were confined to a mere pecuniary loss, or any other punishment not beyond pecuniary. 2. Another reason is to be found in that love of justice, which, at least in a civilized state of society, may be considered as having more or less hold on every human breast.* The criminal fact being by the supposition false, and, by the witness in question, known to be so,—the punishment (supposing the infliction of it produced by the testimony) will, by the supposition, be unmerited, unjust. Were it not for this love of justice—the punishment about to be produced by the testimony, in case of its being mendacious, being the same—the disinclination to give in to the mendacity would be the same, whether in point of fact the charge were true or false, and the punishment, accordingly, merited or unmerited. But, of a disposition contrary to such indifference, the prevalence seems to be indicated by general experience. To exert an influence on testimony,—an interest, be it what it may, acting in which of the two opposite directions it may, must exist (the idea of it as existing must at any rate be present to the mind) at the time of delivering the testimony. If, at that time, a man does not stand exposed to the action of any interest urging in a sinister direction, it matters not to what interest acting in that direction he may have stood exposed at any former period. His testimony will not be a less correct or complete expression of the recollections presented by his memory at that time. But, should that have happened which is very apt to happen, and which in almost all instances will have happened,—viz. that, antecedently to the judicial statement which a man makes on the judicial occasion under the authority of the judge, he has held discourse relative to the fact in question (whether in writing or vivâ voce) in the presence of any other person or persons;—in this case he has an interest in not delivering, on any judicial occasion, any such testimony as shall be irreconcilable with the antecedent discourse. This interest is, at any rate, the interest of his reputation: the motive for perseverance, the fear of shame: and to this must be added, in many cases, the fear of punishment; viz. of punishment which the falsehood may be a means of drawing down upon him, in case of a prosecution as for perjury, supported by the testimony of the persons in whose presence it happened to him to deliver, on that former extra-judicial occasion, a statement with which his present judicial testimony is irreconcilable.† To the action of this interest a man stands exposed, whether the antecedent extra-judicial statement was true or false. If false, here, then, are two of the standing tutelary and mendacity-restraining interests—fear of shame and fear of punishment—acting by accident (one or both of them) in the direction and character of mendacity-promoting motives. Not that in this case they act in general, either of them, with their whole force on the sinister side. For here, the testimony dictated by the fear of shame, with or without the fear of punishment, is, by the supposition, false and mendacious: it being false, the discovery of its falsity will, in a greater or less degree, be probable: and should such discovery eventually take place, then comes the shame and the punishment on that side. Though it is only where present at the time, that an interest of any kind, acting in a sinister mendacity-promoting direction, can exercise any influence—produce any falsity, in the testimony; yet neither should the influence of any interest by which it may have happened to the testimony to have been acted upon at any antecedent period, be in every case disregarded. Supposing the witness not tied down by any antecedent extra-judicial statement as above, there is no interest prompting him to represent the matter in any other light than that in which it presents itself to his recollection at the time. But the influence of interest is not confined to the operation of delivering the testimony, nor to the point of time at which that operation is performed. At the time when the fact in question took place, it may have influenced, perverted, and partialized, the perceptions presented by it—the sort of cognizance taken of it: at any succeeding point of time, it may have influenced in like manner the recollection of it, the picture retained of it in the mind. For the will is on all occasions liable to be influenced by interest. Attention is in great measure at the command of the will: and by a partial direction given to the faculty of attention, conception and recollection are both capable of being rendered imperfect, and partial to one side. On looking over the list of interests and motives, this or that one will be apt to present itself as being likely, upon an average, to act with greater force than this or that other. But there is no species of interest, the action of which has not, by the testimony of experience, been proved to be occasionally susceptible of every, or almost every, degree of force, from the lowest to the highest. In particular, there is none the action of which is not susceptible of a degree of force equal at least to that of pecuniary interest created by the greatest sum of money that has ever been depending upon a man's evidence. A consequence is, that from the mere observation of the species of the interest to which the action of a man's testimony is exposed, no just inference can be formed respecting the degree. Another consequence is, that neither on the number of interests and motives acting on the same side, can any such inference be grounded. For suppose half a dozen motives acting on one side, and on the other no more than one: in the instance of each of the half dozen interests, the degree of force may be so low, and at the same time that of the single interest so high, that the single one may preponderate. This state of things is actually exemplified in the case of perjury for lucre. In the character of a seducing, a mendacity-promoting motive, the force of pecuniary interest preponderates over that of all the standing tutelary and mendacity-restraining motives—love of ease, fear of shame, fear of punishment, fear of God, sympathy for the injured: two, three, four, or all five of them, as the case may be. If, from the action of five interests of as many different species on one side, while there is but one that acts on the opposite side, the inference of the preponderancy of the five over the one is not conclusive,—much less can the opposite inference be so—the preponderancy of the one over the five. On this subject, though no just inference, fit for the guidance of judicial conduct, can be deduced from numbers, yet if it were necessary to frame such an inference, the one nearest to truth would be that which should pronounce the chance in favour of the preponderancy of the five to be as 5 to 1. As the conformity or disconformity of a man's testimony to the line of truth, will, in relation to each distinguishable fact, depend upon the clear amount of the aggregate force of interest acting upon it in relation to that fact,—and that amount will depend upon the difference between the sums of the forces on both sides,—it is equally the business of the judge (in order to enable himself to form a right judgment concerning the credence due to the testimony,) to bring to light all those interests. To confine his consideration to any one of them, would be as effectual a means as he could employ, were it his desire to be deceived. The testimony of every man being at all times exposed to the action of the tutelary, the mendacity-restraining interests, some or all of them,—while his being exposed to the action of any interest acting in a sinister direction—acting in the character of a mendacity-promoting interest, is but matter of accident,—it follows, that in the case of any given witness (antecedently to, or abstraction made of, his particular situation and circumstances,) truth is, in every part of his testimony, more probable than falsehood. The only interest he has, acts, on this supposition, on the side of truth. On this supposition, the absence of mendacity, and even of bias, is on his part certain. The truth of his testimony would also be equally certain, were it not for the infirmities to which, in the character of a witness, the intellectual part of every man's frame is liable;—viz. 1. Original mis-conception or non-perception; 2. Subsequent oblivion or mis-recollection; 3. Mis-expression. So many different facts as there are, that it falls in a man's way to speak of in the delivery of his testimony; to the action of so many different groups of interests may it happen to his testimony to be exposed. A consequence is, that the testimony of the same man may be true in some parts, false and mendacious in others. Where a man's testimony is not exposed to the action of any interest acting in a sinister direction, he will have either no wish at all in relation to the event of the cause, or if he has any wish, it will be on the side of truth and justice. If, at the same time that it stands exposed to the mendacity-restraining force of the tutelary interests, it is exposed to the force of any interest or group of interests acting in a sinister direction, his wishes will be on that side: and his testimony, if true, will pro tanto have run counter to the current of his wishes. If, at the same time, it is exposed to the force of any particular occasional interest acting on the same side with that of the standing tutelary ones, there will then be interest against interest; and his wishes will be on the one side or the other, according to the comparative force of the contending masses of casual interest. When the testimony of a man is delivered, in a cause in which he is a party concerned in interest,—in respect of every fact which, to his eyes, presents itself as of a nature to exercise an influence on the event of the cause, his testimony is exposed to the action of interest in a sinister direction; and by whatever part of his testimony (if any) a fact is asserted, the tendency of which is to contribute anything towards causing the suit to terminate to his disadvantage, that part of his testimony runs counter to the current of his wishes. As often as this is the case (i. e. that a fact possessing such a tendency is disclosed by his testimony,) there is, in regard to every such fact so asserted by him, a certainty that the disclosure of it has not been brought about by the action of any sinister interest; and therefore, that, if not true, it is at any rate not believed by him to be false: and that the falsity (if there be any) is the result not of any sinister interest acting on the will, but of some infirmity (as above) the seat of which is in the intellectual branch of his frame. In so far, therefore, as the testimony a man gives is of a nature to operate to his disadvantage, it presents a stronger reason for its being regarded as true, than can be presented by testimony to the same effect by any other person. As far as a man's testimony makes against himself, it produces naturally on the mind of the judge a stronger persuasion of its truth, than can be produced by the testimony of any extraneous witness. To gain credence for a fact which, true or false, has been believed by the witness to be true,—instances have sometimes happened, where, by his testimony, he has deposed to facts, of the falsity of which he himself was conscious at the time.* Hence another consideration, helping to show the weakness of the inference, that, because in one part of his testimony a man has been false, even to mendacity, therefore in all the other parts of his testimony he has also been false: the erroneousness of the rule, False in one thing, therefore in everything; or, Once false, and always false. Without being mendacious, it may happen to a man's testimony to be false; and that, too, even in consequence of the action of interest: this is the case of bias. By the force of bias, understand the force of any interest acting on his testimony in a sinister direction, and in such manner as to produce, on the part of such his testimony, a departure from the line of truth, but a departure such as he is not conscious of. Falsehoods produced by bias, are such, and such alone, of the falsity of which, he by whom the false testimony is delivered is not conscious at the time. It is not every sort of falsehood that a man is capable of uttering, or at least apt to utter, without being conscious of. The sorts of falsehoods into which a man is most apt to be led, are the following, viz. 1. Negative falsehoods; falsehoods consisting in the denial of some fact or circumstance which in reality took place. A man's attention is, in a great degree, at his command: which is as much as to say, under the direction of his wishes. What, on any account, he finds a pleasure—an unmixed pleasure, in attending to, he attends to of course: what it gives him pain to attend to (understand, a clear balance on the side of pain,) he withdraws his attention from; unless the pain produced by the perception be so great as to divest him of the command he possesses over his attention in slighter cases. 2. Falsehoods in degree; or, in other words, falsehoods of exaggeration: falsehoods respecting degree,—viz. in number, weight, or measure. Of the exact degree he has no recollection, of the correctness of which he is himself persuaded: if he has, the falsity is mendacity, not the pure result of bias. He is fearful of departing from the truth, to the prejudice of that side to which his wishes are attached: by this fear he is driven into an error on the opposite side—an error to the prejudice of the opposite side. Suppose the falsity consists in representing the degree greater than it is. Under the apprehension of representing it as less than the reality, he has represented it as being greater. The considerations which pleaded in favour of increase being conformable to the bent of his wishes, being agreeable to him, being sources of pleasure, the force of his attention was directed upon them, since it went to increase that pleasure. On the other side, pain being the consequence and accompaniment of the attention, the attention as naturally turned aside from it. CHAPTER III.OF PECUNIARY INTEREST, CONSIDERED AS A GROUND OF UNTRUSTWORTHINESS IN TESTIMONY.*In estimating the force of a pecuniary interest in its action upon the testimony of a man whose character in respect of probity is not taken into consideration, two main points are to be considered:— 1. The value of the respective interests in themselves. 2. The pecuniary circumstances of the person. In estimating the value of a pecuniary interest, four points are to be considered:— 1. The magnitude of the sum by which it is represented. 2. The value of it in respect of time; i. e. according as it is in possession or not in possession. 3. If not in possession, the value of it in respect of certainty, according as the interest is vested, or the possession depending for its commencement upon contingencies. 4. The duration of it: in respect of which (in so far as the interest is represented by a sum of money) perpetuity, unless anything be specified to the contrary, is supposed. In whatsoever shape the property creative of the interest happens to be—where (for the purpose of comparison with another interest) any correct estimate is to be formed of it,—it must, if not already existing in the shape of a sum of money, be reduced to that shape. The value, and consequently the mendacity-promoting force, of a pecuniary interest, the money not being in hand, is less and less, in proportion as the time at which it is to be in hand is more and more distant: So (the time at which, if at all, it is to come in hand, being given,) in proportion as the event of its coming in hand is more or less uncertain; i. e. in the proportion between the number representative of the chances against its coming in hand, and the number representative of the chances in favour of its coming in hand. In regard to uncertainty, a distinction must be noted between the case where the event depends merely upon physical causes, not depending in ordinary cases upon the will of man (such as the death of Titius before that of Sempronius;) and the case where it depends wholly or partly upon moral causes (such as the will of Titius or Sempronius.) In the former case, the interest will in general have a rateable value; and the force of it may be rated at the sum which, if sold, it would (as supposed) produce. In the other case, it cannot, generally speaking, have any rateable value; and yet the force of it, when acting upon testimony, may be little different from that which it would act with, were the receipt of the sum regarded as not subject to uncertainty. Suppose a son, the only child of his father, the father a widower, and beyond the age at which it is usual for men to marry, or, if married, to beget children: the estate of the father at his own disposal, not assured to the son by law: of the disposition of the father, in respect of amity towards the son, nothing known, therefore amity to be presumed. At market, the interest of the son in the property in possession of the father (he not joining in the sale) would not be saleable. Yet, suppose the title of the father to the whole estate to be in dispute, and the son examined as a witness: the force with which the mendacity-promoting interest created by the value of the estate, acted upon his bosom, would not be in this case materially less than what it would be had the estate been assured to him by law,—viz. to be received by him after and upon his father's decease. In like manner (even setting aside whatever interest might in this case be constituted by the tie of sympathy,) the force with which their respective interests in the estate acted on their respective bosoms, would not, in the bosom of the son, he diminished by a sum so great as the sum representative of the value of the estate for and during the father's life; inasmuch as, during the life of the father, the son is naturally a sharer in the advantages attached to the father's property, notwithstanding the legal dependency of the quantum of that share upon the father's pleasure. In a rough way, and even in a way sufficiently adapted to divers other purposes, the state of a man's circumstances may be expressed by the difference between the saleable value of his property in hand, and the sum of the debts (including pecuniary obligations of all sorts) to the discharge of which he stands bound. But, for the purpose of estimating the seductive force with which a given mass of pecuniary interest may be considered as acting on a man's testimony, several other circumstances will require to be taken into account, viz.— 1. The state of his pecuniary circumstances in respect of present exigency or the proportion between present need and present means: and this, whether the sum in question be needful for the purpose of procuring greater profit, or of saving him from greater loss. Remember, to this purpose, the story of Esau, who, under the pressure of hunger, sold his birth-right for a mess of pottage. 2. Proportion between his exigencies, in respect of domestic relations, and his pecuniary means; according as the effect of such relations is to charge him with pecuniary obligations, or to afford him pecuniary support. Whether the proposed witness be of the one sex or the other; be unmarried or married; be childless or have children, and in what number, and whether arrived or not arrived at a state of self-maintenance; whether they be respectively of that sex which has fewest wants and most resources, or of that which has most wants and fewest resources; with what other relations (if any) in any of the lines of natural relationship, descending, ascending, or collateral, the witness has any connexion, contributing, as above, to augment the sum of his resources on one hand, or that of his exigencies on the other. 3. Proportion between his pecuniary means (viz. the clear amount of them, after addition of the amount of domestic supplies, and deduction of the amount of domestic charges, as above,) between his pecuniary means thus explained, and his exigencies (if any) in respect of political station in life: since, of two persons with the same quantum of clear pecuniary means—one, low in rank, may be in a state of affluence—another, high in rank, in a state of indigence. 4. Habitual rate of expense is not in this respect altogether without its influence. Two men, in pecuniary circumstances in every respect equal—the one habitually spending his whole income, the other but the half of his,—a sum to a given amount, whether coming in, in the shape of extraordinary gain, or going out, in the shape of extraordinary loss, will be apt to find the testimony of the non-saving man more sensible to its influence than than that of the saving man. For the guidance of the judge's mind, in the formation of his estimate of the trustworthiness of the deponent's testimony, it will in most cases not be worth while for him to subject either the deponent or himself (not to speak of extraneous witnesses) to the vexation attached to a chain of investigation thus particular and intricate. But there are cases in which it may: and since it will often happen that, of the above particulars, a number more or less considerable will come to light in the course of the cause, as it were of themselves, or without any trouble worth regarding,—on this account it seems desirable that the influence of them should be habitually present to the mind of the judge. The sum in question—and a man's sensibility to pecuniary induence, in so far as it can be collected from circumstances of an external nature (as above,)—being both given—the influence of the same sum will be greater—much greater, in the case of its going out of hand, in the shape of antecedently unexpected loss, than in the case of its coming into hand, in the shape of antecedently unexpected gain. Value of a man's property to-day, say £1000: sum at stake upon his testimony, £500. Let this sum be taken from him to-morrow,—the amount of his property to-day is twice as great as what it will be to-morrow. But let this same sum be given to him to-morrow,—the value of his property to-morrow will not be twice as great as it is to-day. But suppose that it even were twice as great: the matter of wealth is of no value, but in proportion to its influence in respect of happiness. Multiply the sum of a man's property by 2, by 10, by 100, by 1000, there is not the smallest reason for supposing that the sum of his happiness is increased in any such proportion, or in any one approaching to it: multiply his property by a thousand, it may still be a matter of doubt, whether, by that vast addition, you add as much to his happiness, as you take away from it by dividing his property by 2, by taking from him but the half of it. In many instances there will be a difficulty in deciding, in the case of receipt of money, whether it be to be placed to the account of gain, or of exemption from loss: and, in like manner, in case of disbursement, whether to the account of loss, or of non-receipt of gain. Of this difficulty, when it occurs, it concerns the judge to be aware: but there are many instances in which it has no place. CHAPTER IV.OF INTEREST DERIVED FROM SOCIAL CONNEXIONS IN GENERAL.Gain or loss may be expected either from the compulsory operation of law, or from the uncoerced conduct of individuals. The value of the sum at stake being given, and the degrees of proximity and certainty respectively attached to the receipt or loss of it being given,—whether it be from the dispensations of law that the assurance of acquisition or loss is derived, is a question, the answer to which makes (it is evident) no difference in the value of the interest, nor thence in the force with which it is likely to act upon testimony in the character of a mendacity-promoting or mendacity-restraining motive. If (in respect of the value of the interests created, and the force with which they respectively act upon testimony) acquisition and loss, when considered as resulting from the dispensations of law, are in general superior to acquisition or loss to the same amount when expected from causes with which law does not interfere,—this superiority is far from being constant or universal. Of the operations of law the effect can never be so prompt as the effect of operations in which the law has no concern is in many instances. And, how necessary soever the coercive and protective force of law may in general be, to the giving to men's possessions a degree of certainty not derivable from any other source,—yet, in many instances, acquisition or loss, looked to from this or that source, will appear to a particular individual still more certain, as well as prompt, than any acquisition or loss to the same amount that could have been expected by him from the hand of law. For years together a journeyman has been employed by the same master at a guinea and a half a-week: from any other master he would not expect to get above one guinea a-week: it is in the power of the master, any Saturday evening in the year, to break off all connexion with him on paying him the guinea and a half for his week's work. Says the master to the journeyman, On Friday next you are to appear in such or such a court: if, on that occasion, you do not give testimony to such or such an effect, the wages you receive the next day will be the last wages you ever receive from me. Who does not see that the force with which a threat to this effect acts on the testimony, will be greater than if, in the event of his giving a testimony opposite to that required of him as above, he were to incur a legal debt to the amount of twenty-six guineas (a year's extra wages,) he not being destitute of the means of paying it? Vary the case, by substituting for employer and journeyman, customer and dealer: both of these in the condition of masters: the result, in respect of the action of the interest on the testimony of the witness, will not be materially different. Let the event, on which the supposed debt of twenty-six guineas attaches upon the journeyman, be this,—viz. that of the master's gaining the cause. Here, then, is an apparent interest, appearing to act upon the witness in such manner as to incite him to testify against his master, though it were at the expense of truth; while yet, in fact, he is incited to testify in favour of his master, by an opposite interest, which, though perhaps not apparent, is much stronger than the apparent one. Ties of this sort are alike obvious and numerous. In point of force—even supposing the interest created in each instance to be a mere pecuniary interest, unfortified by any mixture of sympathy—it is no more susceptible of any determinate limits than the interest constituted by a liquidated sum payable on the spot. If, then, to the exclusion of these less conspicuous but not less powerful ties, the judge were to keep his eye fixed on the interest constituted by a liquidated pecuniary sum, he would be in a way to be continually deceived.* If, in the cases where it is thus, as it were, latent and unconspicuous, the single force of pecuniary interest is capable of rising to a level with any to which a conspicuous interest of the same kind is usually wont to rise,—much more is it where it happens to it to be corroborated by the force of sympathy. In this situation, in the ordinary state of things, are to be found the several descriptions of persons who stand connected with others by the ties of natural relationship:— 1. The child, with reference to the father, or mother, or both. 2. Any person junior in age, by whom expectations are entertained from the bounty of a relation senior in age; whether in the simple ascending line (as grandfather or grandmother,) or in the double or collateral line (as uncle or aunt in any degree, or their descendants in any degrees.) Exclusive of the complex interest composed of a mixture of pecuniary interest and natural sympathy, is the interest which has place where the one of the parties is subject to the direction and government of the other. The case in which this sort of interest is capable of existing in its purest state, unmixed with any of the other interests that are so naturally connected with it, is that which, in the bosom of the ward, is created by his dependence on the guardian. Pecuniary interest, howsoever accidentally combinable with it, belongs not to the case: and as to sympathy, if it be a natural accompaniment, neither is antipathy an unnatural one: at any rate, if it be supposed that upon an average there is a balance on the side of sympathy, it cannot be supposed that this balance can in its amount approach near to that which has place in the more ordinary case, where the relationships of guardian and parent are combined in the same person. Now the interest created by dependence on natural domestic power,—of what is it composed? Of the fear of pains of many kinds, added to the hope of pleasures of most kinds. The interest capable of being created in the bosom of the domestic subordinate, by his dependence on his correlative superordinate, is so obvious, as scarcely to require mention, though it were only in the way of memento. The interest capable of being created by the same relationship in the bosom of the superior,—this interest, howsoever obvious, is somewhat less obvious than the interest created in the correlative and opposite case. In general, and throughout the circle of domestic relationships, the social interest—the interest of sympathy, is apt to exist in greater force in the bosom of the superordinate, than in the bosom of the subordinate—in the bosom of the parent than in the bosom of the child; and so on through the string of more and more distant relationships, which are, as it were, the images, fainter and fainter the oftener they are transmitted or reflected, of the relationship betwixt parent and child. Of this disparity, the cause is to be found in the pleasure of power peculiar to the parent, and in which the child, though the source of it, has no share. If in this or that instance the balance be reversed, the cause is to be looked for partly in the superior sensibility of youth, partly in the idiosyncratic temperament of the individual. But besides this social interest, the relationship of the superior to the subordinate is susceptible of giving lodgment to an interest of the self-regarding kind, which must not be overlooked. In the case of parent and child, the superior stands bound by a variety of ties to make provision for the sustenance of the subordinate. But, the more of his sustenance the child draws from sources other than the pecuniary funds of the parent, the less is the quantity by which it is necessary he should diminish the amount of these funds. As often, therefore, as money is at stake in a suit to which the child is party, and the parent a witness,—the interest to the action of which the testimony of the witness is exposed, adds to the universally-operative social interest an interest strictly pecuniary, an interest of the self-regarding kind. And so, in regard to all persons standing in this respect in the place of parents: allowance being made for the comparative faintness of the obligation, legal or moral, in their respective cases. An interest exerting its influence on testimony, is alike capable of being created by the hope of good, and by the fear of evil. On many occasions, the object being given, hope and fear looking to that object run into one another, and are undistinguishable: for when a good of any kind has been habitual in a degree sufficient to keep up expectation of its continuance, it is difficult to say to which of the two denominations, hope or fear, the expectation entertained in relation to it ought to be referred in preference—to the hope of retaining, or to the fear of losing it. In a more particular degree, the observation holds true in regard to that particular species of good, which is composed of, or has for its efficient cause, the matter of wealth: money, money's worth, and whatever may be to be had by means of money. Here and there, perhaps, a mass of interest may be found, consisting of the fear of evil, without any hope of good—a mass of interest having no connexion in any way with the matter of wealth. Suppose two persons in office, military or unmilitary; the one, to some purposes, under the direction of the other; from the favour of the superior, the inferior is not in the habit of deriving, nor in the way to derive, money or money's worth: on the part of the inferior, therefore, the fear of evil (if it exists) exists in a state of relative purity, unmixed with the hope of good. Suppose, then (what is generally the case,) that without committing himself in any way (i. e. without subjecting himself in any degree to legal punishment, or even, to appearance at least, to any certain and decided portion of shame,) it is in the power of the superior to inflict habitual vexation on the other: the force of this vexation, is the force with which the will of the superior is capable, in an influential way, of acting on the conduct of the inferior, on any such occasion as that of delivering testimony, as well as on any other. Let the degree of vexation thus producible be such, that whereas the official emolument of the inferior is equal to £100 a year,—to rid himself of this vexation, he would be content to render, under another superior, the same official service for £20 a-year less. On this supposition, the non-pecuniary interest by which the testimony of the inferior may be acted upon in any direction, proper or sinister, is equal to a pecuniary interest constituted by the eventual assurance of a loss (he having the means of sustaining it) equal to the present value of an annuity of £20 a year for his life; at twelve years' purchase, say £120. In the case of these several relationships, comparison being made between sympathy and antipathy,—sympathy will naturally be regarded as the sort of affection predominant, on an average: the balance of such affections as are not of a self-regarding nature, will naturally be looked for on that side, and as adding its force to whatever may happen to be exerted by the pecuniary interest, and the other self-regarding ones. But it would be a gross oversight, and a copious source of deception to the judge, if (to the purpose of judging of evidence, or to any other purpose) he were to be altogether unaware of the casual predominance of the dissocial affection of antipathy, even between the nearest relations. On a variety of occasions which force themselves upon his view, he beholds the marks and fruits of their antipathy in the suits to which they are the contending parties: and well may he conceive that the cases in which the antipathy thus manifests itself, form but a part, and that a small part, of those in which it exists, and that in a degree capable of exercising on testimony a sinister influence. The inference, therefore, which is to be grounded on the several relations, domestic and political, is,—a general presumption of mutual sympathy—stronger or weaker according to the nature and degree of the relationship,—but, on every occasion, liable to be rebutted by special evidence. CHAPTER V.OF INTEREST DERIVED FROM SEXUAL CONNEXIONS.I. The superiority of the interest which the relation of husband and wife is capable of creating, when compared with the interest capable of attaching itself to any of the others, is too obvious, and too clear of dispute, to need bringing to view by any special observations. The only particulars to which, on the subject of this relation, it can ever happen to need bringing to view, are the cases forming so many exceptions to the general rule: the cases in which the interest commonly attached to this relation, and acting on testimony in a correspondent direction and with a correspondent degree of force, may happen to act with an inferior degree of force, though in that same direction; or even in a direction plainly opposite. The general rule is too obvious to admit the possibility of the judge's regarding it in any case with a degree of attention inferior to that which is its due. On this occasion, as on others, one great use of a body of instructions from the legislator to the judge, is the preventing him from seeking, in the cover afforded by general rules, a cloak for imbecility, or indolence, or negligence, or indifference, or partiality, or corruption of a still grosser nature:—in the present instance, for affecting to see an influencing interest where there is none, or to see such interest where there is an opposite one: for presuming the bias of the witness to be on one side, when the facts in the cause, if he chose to look at them, would show it to be acting on the opposite side. A suit or cause, criminal or civil; the husband, plaintiff or defendant: on his side, or on the opposite side, the testimony of his wife is called in. If nothing else appears in the cause than that she is his wife,—if, of the terms on which (in respect of amity or the contrary) they live, no special indications present themselves—nothing but the existence of the matrimonial relation,—the ordinary degree of affection must, and will of course, be understood to subsist. But this presumption ought to be understood as capable, for this purpose, to be rebutted at any time, by the proof of special facts indicative of the contrary: such as separation, whether by consent, or by authority of law; elopement on the part of the wife; habitual and open adulterous cohabitation, on the part of the wife, in a house separate from that of the husband. But neither should these indications, howsoever strong the presumption which they afford, be regarded as conclusive evidence of the absence of all interest. Separation will not take away the pecuniary interest which the wife has in the gain or loss that may happen to her husband, unless her maintenance is fixed, has been so for a length of time, and all intercourse between them has ceased: nor even then altogether, since pecuniary loss on the part of the husband would in some cases disable him, wholly or in part, from affording such maintenance. Notwithstanding separation, elopement, or adulterous cohabitation still subsisting, the common interest may have regained its original force, if from other incidents there appears reason to believe that a reconciliation has already taken place, or is likely to take place. The interest, and its influence on the testimony, depending not on the outward and factitious bond or symbol of connexion, a token given at some distant point of time—but upon the affections prevalent in the bosom of the witness at the very time of the utterance of her testimony,—whatever indications of a contrary interest happen at that time to present themselves, present the same demand for the judge's attention as any other evidence by which the trustworthiness of testimony may be affected. On this occasion, however, it concerns the judge to keep his attention open to two circumstances. 1. One is, that—where the importance of the cause, in its own nature or in the eyes of the party and witness, is such as to create an interest capable of supporting them under the trouble of the imposture—appearances of dissension, and even enmity, between the husband and the wife, may be put on, for the purpose of rebutting the presumption of conjugal partiality, and thence gaining for her testimony a degree of credit beyond what properly belongs to it. 2. Another is, that whatsoever ill-humour or antipathy may be really prevalent at the time, the pecuniary interest (a self-regarding interest, an interest in a considerable degree inseparable from the legal obligations attached to the connexion) remains on the other side to oppose its force to that of the dissocial interest: so that unless the case be such that the disadvantage that would fall on the husband in consequence of the loss of his cause, would have no material effect on his purse,—her testimony will not, by any such disagreement, be divested of all bias in favour of his side of the cause; unless (as is sometimes the case between adversaries, e. g. in all acts of aggression so open as to expose the aggressor to inevitable punishment) her antipathy for her husband has for the moment become stronger than her regard for herself. The estimation in which a woman is held, is apt to be more or less disadvantageously affected, when, after her having cohabited with a man in the character of his wife, a discovery is made that there was no marriage, or that for some cause or other the marriage was void. In general, therefore, were no other interest at stake than the interest of her reputation,—in a cause in which the fact or validity of the marriage were in question, the testimony of the wife, if examined on that side, would be drawn by a strong bias to the affirmative side. Yet cases are not wanting in which the bias would be still more incontestably on the other side. For example, where the wife is prosecuted for bigamy. If she can induce a persuasion that the supposed former marriage never took place in fact, or was not legal, she thereby exempts herself from whatever punishment is attached to that offence. In adultery on the part of the wife, concealment is commonly an object with both delinquents; and so far as it is preserved, reputation remains unaffected. But open adultery is likewise not without example: nor is the case without example, in which, for the purpose of divorce, proofs of the transgression have been purposely furnished by the wife. In a cause in which the husband is a party, concealed adultery on the part of the wife cannot with reason be regarded as a circumstance diminishing in any considerable degree (much less destroying) the complex and powerful interest by which the testimony of the wife is drawn towards the husband's side. The unity of pecuniary interest, and of that sort of reputation which is attached to condition in life, remains unimpaired. With ill-will, in any degree, the transgression has on her part, though a most natural, not a necessary connexion, either in the character of cause or in the character of effect. Friendship may remain unchanged. The only thing certain is, the existence of a man in whose society she has reaped a sensual gratification, which (by reason of absence, or debility, or indifference, or estranged appetite, or inferiority in personal accomplishments,) she has failed of experiencing in the arms of the man to whom she is joined by law.* For rebutting the presumption of partiality created by the legal connexion—a partiality in general little inferior in strength to that which either, being alone, would feel for his or her own cause,—the judge will naturally carry to account whatsoever counter-indications happen in any case to present themselves. But it is seldom that the utility of such lights, with reference to truth, and security against deception and consequent misdecision, will be important enough to outweigh the vexation, expense, and delay—more particularly the vexation—that would naturally be inseparable from an inquiry carried on for that special purpose. Cases, however, warranting and prescribing such inquiry, are not altogether out of the natural course of things. Suppose a homicide, and the husband under prosecution for the murder. In the ordinary state of things, and to judge on the ground of general presumptions, the testimony of the wife should be little less partial to the husband's side than his own would be. But cases have happened, in which a wife, by herself, or in conspiracy with others, has been concerned in the murder of her husband; and the case may be, that bearing towards her husband a degree of ill-will strong enough to have determined her to the enterprise of ridding herself of him by such flagitious means (her husband being innocent of the crime, and known by her to be so,) her design is to employ her testimony to the purpose of procuring him to be convicted. In this case, the prevention of the tremendous calamity of judicial homicide may depend on a scrutiny into the particulars of the habitual intercourse between the husband and the wife. II. For the particular purpose here in question,—for the purpose of judging of the influence of social connexion upon testimony,—it will not always be easy to say whether, in the case of the female testifying in a cause in which the male is a party, the action exerted on the testimony by the interest resulting from the connexion, is likely to be most powerful in the case of the wife, or in the case of the concubine. In the case of the wife, the bond of connexion (excepting in the extraordinary case of divorce) is perpetual: in the case of the concubine, it may be dissolved at any time, at the pleasure of either of the parties. But, in the case of the concubine, the proof of sympathy borne to her by the male is more conclusive than in the case of the lawful wife; for if no such affection existed, the probability is, that he would not maintain her in that character: whereas in the case of the wife, though aversion had taken the place of amity, she would not be the less his wife. On the other hand, again, the point in question here is not the affection of the male as towards the female, but the affection of the female as towards the male. But, of the affection on the part of the female towards the male, the existence of the sexual connexion is comparatively but a remote article of evidence. Without affection on the part of the male, the connexion would not continue: but it may continue without any affection on the part of the female; since her means and even prospects of subsistence may depend upon it. It may be, that from the first the sentiment never had existed: perhaps, having originally existed, it has become extinct: perhaps it has not only become extinct, but given place to the opposite sentiment, antipathy. Let the cause in which the male is a party be of the number of those in which money is at stake. Let it be considered, in this particular case, what differences are presented between the situation of the wife and the situation of the concubine. In the ordinary state of things, the interest of the wife in this case is identified with the interest of the husband. Sharing together, and in the company of one another, the common property (though in proportions in some degree dependent on the pleasure of the stronger party,) the gain of the husband is the gain of the wife, the loss of the husband the loss of the wife. In the case of the concubine, the identity wants much of holding good, since the connexion may be dissolved at any time. But whether there be gain or loss, the wife will be still the wife. In case of gain, her share in the additional mass will not be apt, in her expectation, to differ from the share she had been accustomed to occupy in the original mass: and so (mutatis mutandis) in the case of loss, her share will be, in her expectation, naturally in the same proportion. On the other hand, in the case of the concubine, the gain (if to a certain degree considerable) may, in her expectation, be liable to excite his thirst for pleasure, and send him in search of more agreeable connexions, either in the same way, or in the way of marriage: but, moreover, in case of loss, the loss (if to a certain degree considerable) may render the pecuniary burthen too heavy to be borne by one who has it in his power to rid himself of it at any time. One case there is, in which it is but natural that the interest of the concubine should act with much more force on her testimony, than the interest of the wife on her's. This is where, though the marriage has not been dissolved to the purpose of giving room for another marriage, the wife lives separately from her husband, and at a fixed allowance. In this case, be the gain of the husband what it may, the expectation of sharing in it is not likely to have place in the bosom of the wife: whereas, in the bosom of the concubine (unless where the gain appears considerable enough to excite new projects,) an expectation of a share in the concern will come of course. As to loss,—in the bosom of the concubine, the prospect of it will excite a double apprehension—the apprehension of seeing her share diminished, and the apprehension of experiencing a total dissolution of the connexion from which it should have flowed. But to any such loss the separated wife may be comparatively indifferent; unless among the effects of it be that of trenching upon her separate maintenance. Two obvious circumstances there are, by the force of which the condition of a concubine is gradually led towards a coincidence with the condition of the wife. One is, the birth of children: especially when, by their continuance in life, their existence adds every day to the force of the bands by which their parents were united in the first instance: the other is, the duration of the connexion between the parents themselves.* Where the importance of the cause is such as to warrant the inquiry, the judge will perceive that the force with which an interest of this nature is capable of acting upon testimony, has at least as good a claim to be taken into the account as that of any interest of a nature merely pecuniary, expressible by a definite sum, liable to be gained or lost by the testimony, according as the result of the cause is in favour of the one party or the other. From the addition of any other interest or interests operating in the same direction (be their force what it may,) pecuniary interest cannot but receive additional strength and efficacy. And if, in the case of a pecuniary interest derived from this or any other of the social relations, the quantum is not so apt as in the case of a simple pecuniary interest, to be susceptible of liquidation—of being expressed by a determinate sum,—the force with which it is apt to act on testimony is scarcely on that account the less considerable. Of a sum not liquidated by any arithmetical process, the dimensions are left to be adjusted by the imagination; and in a case of this sort, the imagination is not less apt to err on the side of increase than on the side of diminution. The relation of concubine to keeper is not recognised by the laws, or it would not be what it is: it would be changed into that of wife to husband. In some countries it has been—in any country it is capable of being, taken for a ground of punishment. That which the legislator is disposed to punish—that which he would wish to prevent—that which he would prevent if it were in his power, and if the mischief of the coercion necessary to prevention would not outweigh the mischief of the obnoxious practice,—cannot be regarded with satisfaction by the legislator, nor ought in general to be so by the judge. But in his displeasure, how strong soever it be, neither the one nor the other will find any sufficient warrant for withdrawing their attention from the object by which it is called forth: from the object, or from the effects, good or bad, which flow from it on all sides. Where the existence of such a connexion is taken for a ground of punishment, it might be a severe task upon the sympathy of the judge, were it out of his power to form his opinion relative to the existence of such a connexion for the purpose of judging of its influence upon testimony, without proceeding to apply such his opinion to the same fact considered in the light of an act of delinquency, and thereupon to apply punishment in consequence. Fortunately, no such collateral conclusion need be formed. To warrant the application of pure punishment—of a suffering which produces not, on the part of any other individual, any enjoyment to counterbalance it,—stronger and more cogent proof is requisite, than in the case in which that which passes out of the hand of one man in the shape of loss, passes into the hand of another man in the shape of gain; insomuch that, by the transference, though something in the way of happiness, yet not everything, is lost upon the whole. For the purpose of punishment, neither community of abode, nor domination of the female by the male, nor both together, ought to be accepted as sufficient proof, in the character of circumstantial evidence: but, for the purpose of judging of the influence of domestic relation upon evidence, such intercourse may well serve for sufficient proof, subject to the effect of any counter-evidence deducible from other sources. In the case of concubinage, the common subsistence is, for a variety of obvious reasons, most apt to have for its source the property of the male. Hence, in the relation between keeper and concubine, the station of keeper is (in the ordinary course of language, as in the ordinary course of practice) referred to the male sex—that of concubine to the female. Instances, however, in which the parts have been reversed, are not without example; and to the judge, as to the legislator, nothing that can ever happen to call for his attention ought to be strange. To a case thus deviating out of the ordinary course of things, it seems scarcely necessary that any detailed instruction should be adapted. In what respects this converse case agrees with the ordinary case, will be easily pointed out by analogy: in what respects they differ, may, with little more difficulty, be discovered by the light of contrast. III. It remains to consider the simple case of the relation between two lovers. The passion of love is a passion of the force of which, on other occasions, it cannot well happen to the judge not to be aware: it would be a sad oversight, if, on an occasion of such importance as the one here in question, its influence were to be overlooked.* Without any aid from pecuniary interest, the interest created by this passion is capable of rising beyond any height to which pecuniary interest (particularly in a state to act on testimony) has ever been known to arise. But, in the state of things in which love aims at marriage, pecuniary interest is capable of adding its whole force. In the case of the male, the impression made by the personal charms of the female may have risen to any degree of strength; there are no limits to the quantum of the property in possession or expectancy, in which he may be entertaining expectations of possessing a husband's share, and the right to which may be dependent on his evidence; his own may amount to anything or nothing; nor are there any assignable limits to the load of debt under the pressure of which it may happen to him to labour. Change the sexes: what difference there may be, will be scarcely worth noting for this purpose. The power which, by marriage, the female acquires over the property of the male, is not in general so great as the power which, by the same contract, the male acquires over the property of the female. In this respect, the force with which the interest created by the relation in question is capable of acting on the testimony of the female, may be considered as suffering some diminution in comparison with the opposite case, though a diminution so precarious, as, on the present occasion, to have scarcely any claim to notice. On the other hand, as property is apt to fall in larger masses into the lap of the female than into that of the male, at the same time that the male is less restrained than the female in his choice, elevation by this ladder has been more apt in the instance of the female sex than in the instance of the male, to have risen to extraordinary heights. From the very lowest origin, females have been raised by marriage even to the throne. Men, though they have been raised to a station equally high, have never, by that same ladder, been raised from a station equally low. CHAPTER VI.OF INTEREST DERIVED FROM SITUATION WITH RESPECT TO THE CAUSE OR SUIT.In every cause, each party (except in so far as it may happen to him to be a mere trustee, and not connected by any tie of sympathy with any party having a self-regarding interest in the cause,) each party has of course, in virtue of his being a party, some sort of interest in the cause: and, supposing him heard or examined in the character of a witness, the direction in which this interest acts (in so far as it acts with any sensible degree of force) will be in the mendacity-promoting line. But, independently of legal forms (such as that which requires the concurrence of trustees who have no self-regarding interest, and perhaps no interest of sympathy, in the cause) it will frequently happen, that the interest which a man derives from his situation in the character of party in the cause—be it on the plaintiff's side, be it on the defendant's side,—will be practically imperceptible. This casual minuteness is, however, confined in a manner to the class of cases which exhibit a multitude of parties on the same side: for if a man stands alone, the fact of his subjecting himself to the vexation and expense incident to litigation, affords effectual proof, that the interest derived from his station in the cause possesses a magnitude sufficient to exert a real influence. In general, the interest which the proposed witness thus possesses in virtue of his station in the cause, will be the only interest, except that of the standing tutelary interests, to the action of which his testimony will, on either side, stand exposed. But as it may happen to the testimony of any man in the station of extraneous witness, so may it to that of any man in the station of plaintiff or defendant, to stand exposed to the action of any number of casual interests, on either side, or on both sides; and these, each of them, in any degree of force. On any occasion, it may consequently happen, that the force of this standing mendacity-promoting interest shall be counter-balanced and over-balanced by casual interests acting on the other side,—that is, in conjunction with the standing tutelary ones. And to any such casually operating interest it may happen to apply to the whole of the party-witness's testimony, or to any part or parts of it less than the whole; that is to say, one or more of the entire assemblage of facts comprised in it. Out of this state of things, several anomalies will be apt now and then to arise; of the possibility of all which, it becomes the judge to be advised. The interest which a party (be he defendant, be he plaintiff) has in the cause, will not, of itself, be sufficient to restrain him from giving false testimony to the prejudice of that interest, if there be any interest to a greater amount that acts upon him on the opposite side. There is no defendant, who, all other interests apart, would not yield to an unjust demand of £10, and even confess the justice of it, if by so doing he were assured of gaining £20. There is no plaintiff, who, all other interests apart, would not desist from a just claim to the same amount, and even confess the injustice of it, for the same recompense. But, so far from being absolutely certain and uniformly efficient is even the united force of all the tutelary mendacity-restraining interests, that instances might be found in which the slightest casual interest (of the pecuniary kind, for example) acting in a mendacity-promoting direction, has been seen to overcome their united force. The proposition, therefore, which was true, reservation made of the influence of those tutelary interests, may still be given for true, even without any such reservation. Of the several species and degrees of interest thus attached to the party's station in the cause, there is scarce any one to which, by accident, it may not happen to find itself opposed by a stronger interest, acting in a mendacity-promoting direction, and overpowering it. Feeble as interests of the social class generally are, in comparison with those of the self-regarding class, there is not of the self-regarding class any interest so high and strong as not to be liable to be opposed by an interest of the social class capable of overpowering it. Instances have been known in which delinquents have endured the very extremity of torture, rather than disclose their coadjutors. In England (till comparatively of late years) has existed a practice, in virtue of which, if a defendant in a capital prosecution, on being called upon to say, in general terms, Guilty or Not Guilty, forebore to answer, he was tortured to the very death: but, on condition of his submitting to this infliction, his property, which, in the event of his conviction in the ordinary way, would have been taken from his natural representatives by the king to his own use, was suffered to take its ordinary course. Instances (it is said) have not been wanting, in which men have thus submitted to death, preceded by the extremity of corporal sufferance, rather than expose the objects of their affection to that loss. In this case no falsehood was uttered, nothing at all being uttered; nor was falsehood, in any shape, conducive or necessary to the purpose. But, inasmuch as an interest of any degree of slightness will sometimes be sufficient of itself to overpower the united force of the standing tutelary motives, the supposition has nothing improbable in it, that, for the same purpose, in addition to the corporal agony, falsehood would not have been grudged. In the case where men have suffered themselves to be tortured to death, rather than give up their companions in delinquency, falsehood must in general have borne a part. For, in all such cases, the defendant has, in course, been plied with questions; and an answer denying his having had any such companions will have been a much more natural result, than a confession of his having had associates, accompanied with a refusal to disclose them. Even the tutelary interest created by religion, the religious sanction—notwithstanding the uniformity with which it acts, in opposition to mendacity, on all ordinary occasions—may (such have been its anomalies) be regarded, without any extravagant stretch of supposition, as capable of driving a man into this transgression, instead of saving him from it. In Denmark (it is said,) the country was infested by a set of religionists, in whose conceptions there was no road to everlasting happiness so sure as the scaffold; nor to the scaffold any road, on that occasion, so eligible as that of murder; especially if some child, within the age of innocence, were taken for the subject of that crime. If, in that case, instead of a blood-stained hand, a mendacity-stained tongue had been chosen as the more eligible instrument, the aberration from the line of reason and utility would hardly have been more wide. The cases above brought to view are all of them out of the ordinary course of things: so much so, that there is none of them of which the existence ought to be presumed, or the supposition of it acted upon, unless the probability of the case be indicated by some special circumstance. In the ordinary state of things, therefore, the following are the rules that may serve for expressing the comparative trustworthiness of self-regarding evidence:— 1. So far as it makes against himself, a man's own evidence is the best evidence: more so than that of an extraneous witness. For in this case, such part of his testimony as has this tendency (that is to say, so much of it as is understood by him to have this tendency) cannot, for anything that appears, have found any sinister interest to give birth to it. On the other hand, to prevent the utterance of it, had it been otherwise than true, there was the united force of the several tutelary sanctions, strengthened by the accession of the casual interest in question (whatever it be) that is at stake upon the event of the cause: self-preservation against death, if capital; pecuniary interest, if pecuniary and non-criminal; and so forth. 2. So far as a man's testimony makes in favour of himself, it is inferior in trustworthiness to that of an extraneous witness not known to have an interest depending on the credence given to or withholden from the facts asserted in such his testimony. The following cases, however, present themselves as so many exceptions to these rules:— 1. If the interest which the extraneous witness has at stake be of more value than that which the party has by whom the self-regarding testimony is delivered. 2. If, the interest being in both cases equal in value, the party by whom the self-serving or self-disserving testimony is delivered be in point of reputation upon a level superior to the ordinary level: the reputation of the self-serving or self-disserving extraneous witness being on the ordinary level, as is the case where it happens to be perfectly unknown to the judge. 3. If, the reputation of the party being at the ordinary level, the appropriate reputation of the extraneous witness is decidedly below it: as where it has already happened to him to be convicted of testimonial mendacity (denominated in most cases perjury.) The sum at stake, and all other circumstances (as above mentioned) being equal in both cases,—the force of the interest will in general be greater upon a party testifying in the character of a witness, than upon an extraneous witness: and this on several accounts:— 1. In the instance of the party—the suit on which the money depends being actually on foot, and thus far in advance,—the money, if lost, will in general be sooner parted with, if gained, be sooner received,—than in the instance of the extraneous witness. But if, in this respect, it so happens that there is no difference, then this reason has no place in the account: if the difference is on the other side, then of course the reason operates on the other side. 2. Of a state of litigation, a degree of irritation is a natural, and almost a necessary, accompaniment. By the influence of this irritation, the party is already acted upon; the extraneous witness not yet. This is as much as to say, that the testimony of the party stands exposed to the action of two sinister interests, to but one of which that of the extraneous witness is exposed. If, then, so it happens, that the ill-will borne by the extraneous witness towards his antagonist is more intense than that borne by the party to his, this reason fails. 3. To the pecuniary loss necessarily resulting from the loss of the cause,—the loss resulting from the obligation of reimbursing to the winning party his share of the costs of suit, is a natural, though not an inseparable, appendage. In the instance of the party, this ulterior loss is already in immediate contemplation: in the instance of the extraneous witness, not so certainly: because, in the instance of the extraneous witness, it may happen that, no suit being as yet commenced, none will be commenced: for that the demand will either not be made, or will be acceded to without suit. But this reason also is liable to fail: viz. in the opposite case. On this account (the sum at stake, and in that respect the strength of the temptation, being the same,) the improbability of mendacity will be less on the part of a party on either side of the cause, if there be no extraneous witness on that same side to that same fact, than on the part of an extraneous witness, if it be a fact that is not supposed to have come under the party's cognizance. The reason is, that, in the case of the party deposing in his own favour, there is, in case of mendacity, but one person to be reconciled to the wickedness, and that himself, without need of confession to any one else: whereas, in the case of the extraneous witness, there is a probability that the suit would not have been instituted or defended (as the case may be,) without a concert between the party and the extraneous witness supposed to be mendacious; which concert supposes, on the part of each partaker in the conspiracy, a confession made of his wickedness to the other; and besides the comparative improbability of it, such double wickedness affords additional chances of detection. In the situation of party delivering his own testimony on his own behalf, it depends upon any man to originate the opportunity of employing, to a purpose chosen by himself, mendacious evidence; viz. by instituting the unjust demand, or hazarding the unjust defence, and then delivering his own testimony in support of it. In the situation of extraneous witness, neither the demand is instituted, nor the defence determined upon, by the individual whose testimony is in question. Without the previous act of another person (viz. a plaintiff or defendant,) the advantage derivable to the interested testimony cannot be reaped. In the case of a design to raise money by groundless demands, to be supported by mendacious evidence; a demand to be made by a plaintiff in the character of an informer (i. e. to gain a reward offered by the law, payable in the event of a delinquent's being convicted of an offence,) presents a more natural and generally practicable mode of carrying into execution, by abuse of law, a plan of depredation to an unlimited amount, than a demand of money as due on account of any of the ordinary transactions between individual and individual: since a transaction of that sort can seldom have taken place without some special relation between the parties,—an incident not necessary in the other case. As between plaintiff and defendant (to judge from the mere consideration of their respective stations in the cause, and nothing else,) in a cause where money is at stake, the probability of mendacity will be greater on the part of the defendant than on the part of the plaintiff. The reason is, that, in the station of the defendant (the sum being in both cases equal,) the mendacity-promoting interest is constituted by the fear of loss: in the case of the plaintiff, by hope of gain to the same amount. And, sum for sum, as already observed,* the sufferance from loss is greater than the enjoyment from gain. But this proposition does not take place, except upon the supposition that the case is such that the defendant has already been established in the habit of regarding the money as his own, the plaintiff not. Suppose the strength of the persuasion in this respect equal on both sides, the seductive force of the interest will in this respect be equal on both sides: suppose the persuasion stronger on the plaintiff's side, the strength of the mendacity-promoting interest will be greater on the plaintiff's side. Without pretence of title, conscious of his having none, Rapax has contrived to get possession of an article of property belonging to Humilis, confiding in his supposed inability to take upon himself, or to sustain throughout, the burthen of litigation. Circumstances intervening to disappoint the speculation, Humilis seeks his remedy notwithstanding. In this state of things, though, at the commencement of the suit, the subject-matter was in possession of Rapax defendant, yet, though he lose the cause, his condition will be, not that of a man who has sustained a loss, but that of a man who has miscarried in his pursuit of a gain: while that of Humilis, in the event of his failing in his demand, will be not merely that of a man who has miscarried in the pursuit of a gain, but that of a man who has been struck by an unexpected loss.† CHAPTER VII.OF IMPROBITY, CONSIDERED AS A CAUSE OF UNTRUSTWORTHINESS IN TESTIMONY.On the present occasion, the object is, to determine, with what degree of assurance expectations of mendacious testimony in the cause in hand can with propriety be grounded on moral improbity in its several shapes, and in particular in the shape of testimonial mendacity, as manifested on some former occasion or occasions. Though all men are not liars (at least on occasions so important as those of judicial testification,) yet in that situation all men are almost continually exposed to the temptation of becoming so. Supposing it certain, that, at the time in which the witness is delivering his testimony, he is not exposed to the action of any mendacity-promoting interest,—it is equally certain, that improbity (in whatsoever shape or degree his disposition be stained by it,) cannot exert any sinister influence on his testimony; that mendacity—wilful and intentional mendacity—is no more to be apprehended from him, than from the most virtuous of mankind; and that, in respect of trustworthiness, between the one and the other the only difference is, that, in consequence of the habitual influence of the tutelary sanctions, the virtuous man will apply himself to the giving to his testimony that completeness as well as correctness of which it is susceptible, with a degree of solicitous attention, which in the case of the profligate man will find a substitute in indifference. But it is seldom that any such certainty either presents itself, or can by any scrutiny be acquired. One case there is, in which the opposite certainty presents itself: that is, where the person whose testimony is in question is a party in the cause: which conspicuous interest is, however, by accident, liable (as before observed* ) to be counter-balanced and even outweighed by other and stronger latent interests acting on the other side. Another case is, where, though not a party, he has a known and manifest interest in the event of the cause. In all cases, whether he have or have not any manifest interest in it, he is liable to be exposed (as well in the mendacity-promoting as in the mendacity-restraining direction) to the action of latent interests, of any nature and in any number. Suppose the point ascertained, that the individual in question (at present an extraneous witness) cannot be under the action of any sinister interest, unless the impulse has the suborning solicitations of the party for its source,—in such case, if the party be regarded as incapable of seeking to exert any such sinister influence, the probity of the party operates on that supposition as a security, and that an effectual one, against the improbity of the witness. By this circumstance, in so far as it has place, the probability of mendacity is, it is evident, diminished: but what is equally evident is, that it is not altogether done away. From past improbity, established by any manifest and notorious inquiry—from past improbity, though, to indicate the disposition, there be no more than a single act,—mankind are apt enough to predict, and infer with sufficient assurance, the manifestation of the like disposition on any individual occasion that presents itself. If on this head instruction be needful to the judge, it is not so much for the purpose of pointing out to him the inference, as for the purpose of putting him upon his guard against the propensity to allow it to take a stronger hold on the mind, than, upon an attentive consideration, it would be found entitled to possess. Of the testimony of this or that person, on whose part improbity (in the shape of mendacity, or even in other shapes) is supposed to be notorious, it has been a common expression to say, It is entitled to no credit whatsoever,—or, No regard whatsoever ought to be paid to it. Applied to judicial testimony, the impropriety of any such proposition, will, on a more attentive consideration, be found (it should seem) undeniable. And this, not only because falsehood, known falsehood, is frequently a key as well as a guide to truth; but because, everything depending upon interest, a man of the most depraved character, of whom it could be ascertained that he was not under the action of any sinister interest, would with more safety be depended upon, than an average man deposing under the action of any interest, the magnitude of which could, reference being had to his situation, be pronounced considerable. In a general point of view, and denoted by the concisest expression that can be found for it, the degree of probity habitually manifested in the disposition of a human being, will be directly (and that of improbity inversely) as the force habitually exercised upon it by the permanent tutelary interests and motives so often spoken of, in comparison with the force habitually exercised upon it by the seductive interests and motives.* As it is only through the medium of the habitual frame of mind, that any indication can be drawn from past acts, relative to the present frame of mind or disposition of the witness, and thence relative to the probability of a departure on the part of his testimony from the line of truth,—it concerns the judge to look, in the first instance, to the habitual frame of mind, and in that view alone to have regard to any individual act. One practical use of this caution is, to preserve him from deducing too strong a persuasion from some single act, as established by some conspicuous proof, and not deducing a persuasion sufficiently strong from habit, i. e. repeated acts, as established or indicated by proofs or tokens less conspicuous. By a judicial conviction (of theft, for example,) improbity on the part of the convict (viz. the degree of improbity necessary to the commission of such a crime) is established by proof of the most conspicuous kind. But, however conspicuous the proof, no stronger presumption is afforded of a frame of mind habitually disposed to the commission of that crime, than what is capable of being afforded by one single act. On the other hand, suppose it established in the mind of the judge, to a degree of probability sufficient for this purpose, that to another witness, Furfur, it had twice happened to have been detected in a theft, to about the same amount as that of which the first thief, Fur, was convicted; but that, through the lenity of the party injured, or some other accident, conviction had in both instances been escaped. In the case of Furfur, it is evident that, though evidenced by proof less conspicuous, the ground for suspicion is decidedly stronger than in the case of Fur. From proofs of so conspicuous a nature, if exclusively attended to, the conclusion liable to be drawn would be more apt, perhaps, to afford fallacious lights, than true and useful ones. Furfur is a depredator by profession: depredation, in one shape or other, has been his habitual source of subsistence: he has had no other. Fur has been convicted of a single act of depredation once committed. Whatsoever indication of future testimonial mendacity may be to be collected from past delinquency in the line of depredation, is evidently many times as strong in the case of Furfur. But, in the judicial memorials of the respective prosecutions—unless (what in England has never yet happened) the difference in this respect have been brought to view—both documents, and assuredly that which exhibits the case of Furfur, will to the purpose have been incomplete, and thence liable to be fallacious. Superior magnitude of the punishment in the one of two cases of depredation, as compared to the other, is another indication, which, by being conspicuous, is but the more liable to be fallacious. Proper or improper upon the whole, it is natural and frequent for depredation, in whatever shape, to be made punishable, upon a scale rising in some proportion with the value of the article which has been the subject-matter of the offence. With a view to one of the ends of punishment (viz. prevention,) the difference has this obvious use,—viz. its tendency to lead the delinquent to the desire of the less mischievous of two offences, in preference to the more mischievous. But, if in this case any such inference be drawn, as that, because the depredation to the greater amount is punished with the greater punishment, therefore, as between Fur Magnus who has been punished with the greater punishment, and Petty Fur who has been punished with the lesser punishment, the probability of testimonial mendacity on the occasion in hand is greater in the instance of Fur Magnus than in the instance of Petty Fur, the conclusion would be more likely to be crioneous than just; for, the greater the sum stolen, the stronger the temptation: and because a man's probity has sunk under the stronger temptation, it follows not that it would have sunk under the weaker. With regard to the probability of testimonial mendacity on the given occasion (as indeed with regard to improbity in most other shapes,) indications much more conclusive may in many instances be drawn from factitious consequences foreign to the nature of the transgression, than from the nature of the transgression itself, even if known in all its circumstances. Maculatus (at the time of his only offence, not a professional depredator) has, in virtue of his punishment, in the choice of which reformation was not so much as aimed at, been confined for years together in the company of a promiscuous and uninspected herd of professional depredators. Furfur, convicted of a theft to the like amount, has, during the same space of time, been confined in a state of constant occupation, either in solitude, or under an unremitted course of inspection in assorted company. Whatever be the indication, deducible from depredation, of the probability of improbity in a shape so different as that of testimonial mendacity,—it seems evident that, in the case of the ever solitary or constantly inspected convict, the strength of the indication can never be nearly equal to what it is in the case of the convict kept for the same length of time in a state of corruptive pupilage. No anomaly of which moral conduct is susceptible, ought to be altogether strange to the conception of the judge. Presenting itself in a specific shape, temptation has been known to overpower the force of the improbity-restraining motives, in a mind on which, presenting itself in the general shape of money (though to appearance in much greater force,) it would have made no impression. Those who, for any purpose (for a negotiation of any kind, unlawful or lawful,) have to deal with gross and uncultivated minds, have frequent occasion to observe, that by money presented in the specific shape of liquor, a much greater effect may frequently be produced, than by the same quantity of money presented in its own genuine shape. In a higher sphere, many a man, whom a mass of uncounted money to a hundred times the value would have found temptation-proof, has felt his probity sink under the temptation presented in some specific shape peculiarly adapted to his taste and fancy: some choice and not readily obtainable production of art or nature—a gem, a manuscript, a tulip-root, or a cockle-shell. Standing in a witness-box, a much more beautiful and choicer gem, parchment, root, or shell, would have been repulsed with horror, if presenting itself as the price of a deliberate departure from the line of truth. Yet, in a book presenting a general list of convicts, or even in the memorial made of the conviction of this particular individual, it might happen that the case and character of this man should remain undistinguishable from the case and character of the professional malefactor, accustomed from infancy to behold in the habit of depredation the only source of his subsistence. Whatsoever be the degree of improbity indicated by the past act or habit,—with reference to the testimony in hand, the indication afforded by it of probable testimonial mendacity will naturally act with a particular degree of strength, where, on the past occasion, the shape in which it showed itself was that same shape; viz. that of an act or habit of testimonial mendacity. The reason is, that in this case it serves as an indication not merely of improbity (a weak and vicious state of the moral part of the man's frame,) but such a state of the intellectual part as hath disposed him to employ, and (according to his own conception at least) qualified him for employing, this particular sort of instrument (mendacity) for the compassing of his sinister and immoral ends. To be able to frame a false story, capable not only of passing muster in the first instance, but, upon occasion, standing whatever scrutiny is in a way to be applied to it by means of counter-interrogation and counter-evidence, requires a sort of intellectual firmness and vigour, the degree of which—howsoever it may happen to be employed in the service of the sinister interests—has no connexion with their comparative strength and influence. By setting fire to a crowded fleet of ships, or by drawing up a sluice, and so laying a whole town or province under water, a man may produce an abundantly greater quantity of mischief than has ever been produced by an act of testimonial mendacity: but a man who on a former occasion has thus employed fire or water as an instrument of mischief, will not be so apt on a second occasion to employ a mendacious tongue for a purpose of the like nature, as one who, for the like purpose, has already made choice of the same living instrument. Where, on the former occasion, testimonial mendacity was the shape in which the improbity manifested itself,—indications respecting the probability of testimonial mendacity in the cause in hand may be deduced from the consideration, to which of the several modifications of which testimonial mendacity is susceptible, the mendacity belonged in that instance. These modifications, in so far as they belong to the present purpose, will turn upon the degree of improbity manifested by the mendacity in the former instance; and thence either upon the strength or weakness of the influence of the standing tutelary sanctions—the improbity-and-mendacity-restraining interests, or upon the strength of the temptation which that influence had to contend with, and by which it was overcome. The distinctions of which testimony is susceptible, considered with reference to the person whose interest is affected by it, and the manner in which it is affected, have been already brought to view. Veracious or mendacious, those distinctions are alike applicable to it; testimony self-regarding or extra-regarding: in both cases, servitive or disservitive: if disservitive, criminative or simply onerative; if servitive, exculpative, exonerative, or locupletative. Here follow certain indications afforded concerning the probability of testimonial mendacity in the case in hand, from the consideration of the nature of the mendacity in the former instance:— 1. Where, in the former instance, the object of the mendacity was to save another person from punishment, no evil being thereby done to any other individual, or none more than equal to the good done to the party favoured by it,—the probability of mendacity in the case in hand, as deducible from such former mendacity, seems scarcely to be so great, as where, in the first instance, the man's object had been to save himself from punishment to the same amount. The reason is, that in the one case a proof is given of an extraordinary degree of force on the part of the principle of humanity, the interest of sympathy: which proof is not given in the other case. But this indication is not afforded, except on the supposition of the entire absence of every interest of the self-regarding kind: a matter of fact which will not often have place, nor, when it has place, be very easily ascertained. 2. Where, in the former instance, the object of the mendacity was to save a man's self from evil of any kind, whether under the name of pure punishment, or satisfaction to another for injury,—the greater the evil, the less the probability it affords of mendacity in the case in hand: or, conversely, the less the evil, the greater the probability of mendacity in the case in hand. The reason is, that, because a mendacity-promoting interest of a given magnitude had the effect of overpowering the mendacity-restraining force of the tutelary sanctions, it follows not that a mendacity-promoting interest of less magnitude would have been productive of the same effect. Every one sees, that though, to save his life, or to save himself from a pecuniary punishment, or from a pecuniary obligation on the score of satisfaction, to the amount of £500 (being the whole amount of his property,) he fell into this transgression,—it follows not that he would have fallen into the same transgression, to save himself from the obligation of paying £5, being but one hundredth part of the whole amount of his property. 3. Where, in the former instance, the object of the mendacity was to save another person from merited punishment,—the probability of mendacity in the case in hand, as deduced from such former mendacity, seems not so great as where, in the former instance, the object was to consign another person to unmerited punishment. The reason is, that in the one case indication is given of the prevalence of the interest of sympathy or principle of humanity (one of the standing tutelary sanctions,) to an extraordinary degree: whereas, in the other case, an indication is given of an extraordinary degree of insensibility to the force of that sanction, as well as of most, or all, of the other tutelary sanctions. 4. Where, in the former case, the object of the mendacity was to obtain, for a man's self, an undue gain,—the probability of mendacity, in the case in hand, as deduced from such former mendacity, seems still greater than where in the former case the object was merely to subject another person to unmerited punishment. The reason is, that the interest of ill-will (the seductive interest by which the mendacity was produced in the one case,) especially where the correspondent passion has risen to so high a pitch in respect of duration as well as intensity,—has but a casual existence, and cannot be produced but by some comparatively rare occurrence or state of things: a man's probity may, therefore, on a particular occasion, be overpowered by it, and yet (far from being seduced) it may never happen to him to be so much as solicited, by the same sinister interest, to give in to the like evil course at any other period of his life. Whereas, pecuniary interest, not requiring any such special incident, or special object, for the creation of it, is created and kept alive at all times by the matter of wealth in all its shapes: and is, therefore (particular purposes being alike laid out of both cases, and the sum constitutive of the interest being supposed to be the same in both cases,) as likely to have place and be prevalent in the one case as in the other. N.B.—In this case, much (it is evident) will depend upon the circumstances of the case in hand. For if, in the case in hand, all self-regarding as well as social interest on the part of the testifier is clearly out of the question (as may be the case, for example, where the testifier is prosecutor, and the only effect capable of resulting from conviction is punishment,) the prevalence of ill-will in the former case may afford a stronger indication—a greater probability, of the prevalence of the like passion in the case in hand, than would even have been afforded by the prevalence of pecuniary interest in the former case. But in the case of pecuniary interest so much depends upon the sum, and its proportion to a man's habitual expense and present exigencies, that every comparison which has this interest for one of its terms, is liable, as every one must perceive, to great uncertainties. 5. Where, in the former case, the object of the mendacity was to save or obtain a gain,—the probability of mendacity in the case in hand, as deduced from such former mendacity, seems to be greater than if, in the former case, the testifier's object had been to save himself from a loss to the same amount. The reason is, as already observed,* that the influence of a given sum on the well-being of the individual, when considered as passing out of his hands in the shape of loss, is greater than that of the same sum when coming into his hands in the shape of gain; and therefore, that the force of the interest is, in the same proportion, greater in the one case than in the other: and it follows not, that because the force of the mendacity-restraining interests has been overcome by a given force, therefore it will by any less force. But as to the point whether, with reference to a given individual, the sum in question, if coming into his hands, is to be considered as passing into them in the shape of gain, and so gained, or only as passing into them in the shape of security against loss, and so simply not lost; or, on the other hand, if going out of his hands, is to be considered as going out in the shape of loss, or as simply not staying in, in the shape of gain; this point, though in many instances clear and out of doubt, will in many instances be subject to doubt, and to doubts absolutely insoluble. The matter depends upon the strength of his persuasion; and this, too, taken at a point of time not always easy to be settled. If, at any given point of time, with an equal degree of persuasion, two contending parties expect, each of them, concerning the same sum, either that it shall not go out of his hands, or that it shall come into his hands,—the not coming in, in the one case, and the going out in the other, may, in the instance of either of them, be alike productive of the sensation of loss. On the part of a person in whose breast the existence of improbity in a very high degree is notorious, either from proof made on a past occasion, or from the light in which he appears in the cause in hand,—there are several circumstances, each of which may, in aid of the standing mendacity-restraining sanctions, contribute to lessen the probability of mendacious testimony in that case.—These are— 1. Extraordinary difficulty, real, and thence apparent, of carrying through (in the particular circumstances of the cause in hand, and of the part taken by him in that cause,)—of carrying through a scheme of mendacity with safety and success.* 2. (In a case in which an effect of the mendacity, if successful, will be the bringing down upon the head of any particular individual—naturally the defendant—a burthen of affliction particularly severe, such, for instance, as unmerited capital punishment)—the extraordinary severity and afflictiveness of such burthen. To the joint influence of these causes, on minds on which the influence of the three other tutelary sanctions (the political, the moral, and the religious,) especially the two latter, cannot but have been at its lowest pitch, may (it should seem) be ascribed, in great measure at least, the comparative unfrequency of criminative perjury: and the innoxiousness (as far as can be judged) and utility of the judicial practice by which, under the highest temptation that can be offered, the testimony of known malefactors of the most profligate description is every day admitted as the principal, and sometimes even as the sole, ground for convicting men of the highest crimes, and thence subjecting them to the most rigorous punishment afforded by the law. That the social principle of sympathy bears some part in the production of the effect, there seems no reason to doubt. But that the part it bears, is, in comparison with that of the other (the self-regarding principle,) much the least considerable, is rendered but too manifest by very conclusive indications. In some countries, standing funds of reward have been established by law, for the purpose of engaging men to pursue to conviction offences of this or that particularly obnoxious description; such as depredation in the various shapes in which—though the mischief of the first order (the loss actually produced) is confined to assignable individuals—by far the greater part of the mischief—viz. the danger and alarm—diffuses itself over an indefinite space in the circle of the community at large. Influenced by these rewards, instances have been known, in which men have formed themselves into confederacies for the purpose of reaping the rewards in question at the expense of the ruin of a set of victims, to whom, in one sense, the word innocent would not be misapplied. To entitle themselves to the receipt of the reward, to the payment of which conviction was the previous condition, it was necessary that evidence of the offence, evidence constituting a sufficient ground for the conviction, should have been delivered. To give birth to this evidence, what did they? They gave birth to the offence itself: an offence—an individual offence—of the description in question, was to be produced, that a body of evidence, effectual to the purpose, might be sure to be delivered. On such occasion, an innocent man—a man till then innocent—was to be seduced into the commission of the offence. The offence being really committed by him, care was at the same time taken, that the circumstances in which it was committed, should be such as to leave no deficiency in the necessary mass of evidence.† To what cause is this characteristic part of the contrivance to be referred? Not, in any respect, to sympathy: for the suffering to which the victim was consigned, after having been thus drawn into guilt, was not inferior to the suffering to which he would have been consigned, had he been left in possession of his innocence. There remained, therefore, this one cause: viz. a view of the advantage which, in respect of its comparative chance of obtaining credence, under the security afforded against deception by the faculty of vivâ voce cross-examination, a true story is so sure to possess over a false one. For, by the delivery of a true story, no other faculty is called into exercise but the memory—a faculty in respect of which, to any such purpose as that here in question, no deficiency can exist in the mind of any man. For the delivery of a false story adequate to the production of the same effect, the exercise, and the successful exercise, of two other faculties, each of which must be possessed in an extraordinary degree of perfection—viz. invention and judgment—is indispensable. The grand instrument, the touchstone by which falsehood is detected, is inconsistency. In the delivery of a true and correct narrative, inconsistencies are impossible; for, of any two, or any number of real facts, to say that any one can be inconsistent with any other, is a contradiction in terms. Falsehoods, to escape detection, must to appearance be equally clear of inconsistency: of inconsistency, as well with respect to each other, as with respect to all known and indisputable truths. But to invent a number, though it were but a small number, of falsehoods, which shall not only at the moment but on all future occasions stand clear of every such inconsistency, is in general (especially under the check of cross-examination) a task of extreme difficulty: and, by the force of that check, the number of such facts which a man shall be called upon to invent—to invent at the moment, on pain of seeing the expected fruit of his labours gone, and punishment ready to fall upon his head instead of it, is without limit: and in the exercise thus given to it, the faculty of invention must at every step be accompanied and supported by the faculty of judgment, and that at a pitch of perfection, such as the strongest mind can never feel itself assured of rising to. Where, as in the sort of case in question, the perceptions obtained were at the time associated with such an idea of their importance as was sufficient to command a force of attention sufficient to fix them in the memory,—and the first depth of the impression has not been defaced in any considerable degree by the hand of time,—the images presented by the memory are at all times the same: no danger of inconsistency between the account given of a fact at one time, and the account given of the same fact at another time. But the images of which the picture given of a false fact is composed,—these images, having no real standard by which they can be adjusted, no real archetype by which they can be fixed, will be at every moment liable to be changed: and as often as a change (though it be in any the minutest particular) takes place, so often is an imminent danger of inconsistency, and thence of detection, produced along with it. Let it not here be forgotten, that for these always dangerous, though perhaps necessary, remuneratory arrangements, the demand is produced, in no inconsiderable degree, by the exclusionary system; viz. by that branch of it, which, on the score of vexation (if for any reason at all,) forbids the application of judicial questions to any such purpose as that of extracting evidence of guilt from the lips of malefactors. And moreover, that among the effects of it is that of making it men's interest to nurse less mischievous malefactors, capable of yielding but small rewards, till they have ripened into malefactors of a more mischievous description, yielding larger rewards. By this means, while mischief is weeded out with one hand, it is sown with another. But this part of the mischief seems referable rather to the gradation established between the quantum of reward in one case and that in another, than to the application of remuneratory arrangements in aid of penal ones. CHAPTER VIII.OF THE COMPARATIVE MISCHIEF IN THE EVENT OF MISDECISION, TO THE PREJUDICE OF THE PLAINTIFF'S OR OF THE DEFENDANT'S SIDE.The above-mentioned particulars, such of them as the nature of each case has happened to present, having been taken into consideration, and the trustworthiness of the witness or witnesses on one or both sides remaining in doubt, and with it the decision proper to be grounded upon the evidence,—a consideration to which it may be of use that the mind of the judge should not be wholly inattentive, is the difference (if any) in point of mischief, that may be incident to the decision; viz. according as it happens to have for its sole or principal ground the testimony of an extraneous witness, or that of a party, and, of the parties, that of a defendant or that of a plaintiff. For if, as between right decision and misdecision, the scales of probability appear to hang upon a level, his choice will naturally fall on that side on which, if to the prejudice of that side misdecision should ensue, the quantity of the mischief resulting from it will be at the lowest pitch. I. Mischief of plaintiff's mendacious self-serving testimony, compared with that of defendant's ditto. In general, in a case where money is at stake, the quantum of mischief liable to result from an erroneous decision pronounced in favour of the plaintiff's side, and grounded on the mendacious testimony of the plaintiff, is greater than what is apt to result from an erroneous decision pronounced in a case where the same quantity of money is at stake upon the ground of the mendacious testimony of the defendant. The reason is, that in the station of plaintiff it rests with every man to multiply suits at pleasure; to harass with suits any persons and any number of persons at pleasure. If, then, by his own testimony alone, he has obtained a judgment against this or that one person, that testimony being generally understood to be mendacious,—in such case, this one groundless demand having succeeded with him, there is a danger lest he should extend his enterprises to another, and then to another, and so on without limit.* This might be the case, for example, if, in the character of an informer, a man were to take upon himself to raise money by his own mendacious testimony: instituting, or causing to be instituted, against a person altogether innocent, a charge of having committed some offence, to which a pecuniary penalty, payable in the whole or in part to the informer or witness, stands annexed; and supporting the charge by his own testimony: that testimony (the defendant being innocent) of course mendacious. But though, on the supposition that any such practice as that of making a trade of giving groundless informations supported by false testimony were habitual, the danger indicated and the alarm produced by a given sum raised in this way by a given number of suits, would be greater than the danger indicated and the alarm produced by the same sum raised by evidence equally false in the same number of suits of all other kinds taken together; yet it follows not that, in any given suit taken by itself (and, independently of any such habitual practice, the existence of which is supposed, for mere illustration, to have been ascertained,) mendacity in this case is at all more probable, than, under the action of a pecuniary interest of equal value, it would be in any other sort of suit, whether on the plaintiff's or on the defendant's side. An informer is one who, at the invitation of the law, lends his hand to the administration of justice. It follows not, that because a man is ready for a certain price to give true evidence, he is ready to give false evidence for the same price: it follows not, any more than that because a man is ready, in the capacity of a judge, for a certain salary, to engage to administer justice, and do his part towards the due execution of the laws, he is ready, for the same salary, to engage to practise depredation under the name of justice. It follows not, any more than that because for a given price a man is ready to engage to contribute to the defence of his country against the invasion of a foreign enemy, therefore for the same price he is ready to engage to contribute to the destruction of his country in the service of the enemy. It follows not, that because by swearing truly he expects to gain £10, therefore he will depose falsely for that purpose; nor that, because, at the expense of the same sum expended in costs of prosecution, he seeks the pleasure of revenge at the expense of any person who, no matter on what account, has become the object of his ill will,—therefore, to gain the end of the prosecution, he will, in the character of witness for the prosecutor, deliver mendacious criminative evidence. In various ages and countries, mischief in vast quantity has been operated by men in the character of informers. But the testimony by which in these instances it has been operated—the testimony which has served as the instrument of the mischief, has been, not mendacious, but veracious testimony; the fault has lain, not in the informers, but in the laws. England, in the time of Henry VII., afforded a remarkable example—probably the most remarkable that is to be found in the history of any age or nation—of mischief flowing in prodigious masses from this source. But, in so far as it was the cause of terror, and a fit object of blame, the mischief was the sole work of the legislator. Laws were sown, that forfeitures might be reaped. II. Mischief of party's mendacious testimony, compared with that of extraneous witness's ditto. In general, the quantity of mischief apt to result from misdecision in favour of either side, when grounded on mendacious testimony on the part of an extraneous witness, is not so great as when grounded on the mendacious testimony of either party, testifying in his own favour. The reason is, that it depends not on an extraneous witness to originate the suit, in the course of which his testimony is delivered: it lies not therefore in his power, as in that of a plaintiff, to multiply suits at pleasure, and (if gain were to be made by unjust demands, supported by mendacious testimony) to multiply at pleasure occasions of employing testimony as an instrument of legal depredation. To originate causes of suit—and thence in a remote way (though not to a certainty) to originate suits themselves—is competent to any man: and thence to a man who, when the suit takes place, occupies the station of defendant. To originate a suit immediately, and without needing the concurrence or antecedent agency of any other individual, belongs also to any individual: which individual, as soon as the suit is instituted, assumes thereby the character, and occupies the station, of plaintiff. But to originate any sort of suit, either remotely, as in the character of future contingent defendant, or immediately, as in the character of actual plaintiff, is the exclusive character of a party, and is incompatible with the station of extraneous witness. III. Mischief of party's self-disserving, compared with that of his self-serving, mendacious testimony. In the case where it happens to a man's testimony to be mendacious to his own prejudice, and not to the prejudice of any one else,—in such case, if a decision conformable to it be grounded on it, which decision thereby comes under the description of misdecision, the mischief of such misdecision does not stand upon so high a footing as that of a misdecision to the same effect produced by any of the ordinary causes. The reason is, that the mischief of the second order—the danger and alarm,* —in comparison with which the mischief of the first order is much inferior in importance, amounts to nothing in this case. A man, as often as, without being guilty, he chooses to confess himself guilty, will suffer accordingly: let this be understood. But what, in this case, is the amount of the danger?—for how few are there who will be disposed to make any such choice!—and if there were ever so many more, where is the great harm done? Nemo audiatur perire volens, says the maxim of Roman-Gallic law. But on the other hand comes the maxim, Volenti non fit injuria: why refuse to hear him whose wish it is to "perish," if, in the judgment of the person most competent, he will not be injured by it? So again as to the alarm. For, by the supposition, the choice is the man's own: if force be employed, the case quadrates not with the present case; and who is there, in whose breast any pain of apprehension can be infused by the idea of an evil to which he cannot be exposed but by his own free choice? But though, in this extraordinary sort of case, the mischief of misdecision is not so great as in ordinary cases, still neither is the case altogether free from mischief. For, by the manifest opposition of the case to the ordinary course of human conduct,—men at large, observing a man convicted on his own self-criminative testimony—on his own confessorial evidence, which afterwards is by accident discovered or suspected not to have been true, will be led to suppose or suspect it to be the result of secret subornation: subornation acting possibly by holding out hope of reward—more naturally by holding out fear of undue punishment, or of injury in some other shape. Hence one reason, why confession in general terms should never be received, to the exclusion of complete as well as correct testimony from the same source: to the end that, in case of incorrectness or incompleteness, intentional or not intentional, such self-regarding and self-criminative testimony may, from the approved sources, counter-evidence and counter-interrogation (performed at any rate by the judge,) take its chance of being rendered correct and complete: as if, instead of being self-regarding, it had been so much extraneous testimony. CHAPTER IX.ULTERIOR SAFEGUARDS AGAINST THE INCONVENIENCIES WHICH MAY PRESENT THEMSELVES AS LIABLE TO ARISE FROM THE ABOLITION OF THE EXCLUSIONARY RULES.Panic terrors, genuine and counterfeit, are among the life-guards of abuse. From reform, be it what it may, fears are professed by sharp-sighted hypocrites—fears are felt and entertained by their weak-sighted dupes. Knavery presents the phantasmagoric magnifying glass; and it is through this medium that danger is viewed by the eye of imbecility. Anything which, in the case of the reforms here proposed, may contribute to allay the accompanying apprehension, is deserving of notice. The safeguards here in view may be ranked in the first place under two heads:—1. Safeguards against deception and consequent misdecision; 2. Safeguards against vexation, in so far as unnecessary and unprofitable. Under either head may again be distinguised—1. Such as exist or would take place of themselves, but may notwithstanding be pointed out to good purpose, as being liable to be overlooked; 2. Such as, though not at present in existence, nor of a nature to take place of themselves, might (as it seems) be established to good purpose, and may therefore be considered as eventually waiting to be established. Under the head of existing safeguards, the following may be worth noticing:— One ground of alarm may be, the danger of mendacity, and consequent deception and misdecision, from the giving an unlimited admission to the testimony of the plaintiff. By way of antispasmodic against the terrors from this source, it may be proper on this occasion to bring to mind once more the testimony of experience, certifying that, in so many cases, where, by the reason of the most cogent interests, the mendacity-promoting force has been at its highest pitch, no symptoms of mischief from this source have ever been discernible: habitual and professional depredators, delivering their testimony against accomplices, under the temptation offered by impunity instead of capital punishment, with the addition of pecuniary rewards to an amount far beyond what are usually offered to individuals at large. These are rewards earnible by truth as well as by falsehood. But rewards, equally offered, and not earnible but by mendacity, are the rewards by which servants in trade, who have goods to deliver from traders, their masters, to customers, are invited to steal the goods, and then by their testimony charge the customer with the receipt of them—the customer, whose true testimony cannot be opposed to their mendacious evidence. Lawyer. The defendant will stand exposed to whatever danger is attached to the admission of the testimony of the plaintiff. Non-Lawyer. Good: but while, from the admission given to him, the plaintiff derives the faculty of delivering false testimony to the prejudice of the defendant,—so, by the admission given to the testimony of the defendant, does the defendant derive the faculty of defending himself, for which, by the supposition, the simple truth is sufficient. Truth opposing herself to the plaintiff, truth giving her support to the defendant,—plaintiff and defendant being in other respects on equal terms,—in favour of which side lie the odds? Lawyer. But a case that in reality will frequently happen, is, that the matter of fact, notwithstanding the consequences of it with relation to the interests of the defendant, has not fallen under his cognizance. If, the defendant having been wounded, it be by your hand that the wound has been inflicted, it can scarcely happen but that the fact must have fallen within your knowledge. But if it has been by the teeth of a dog of yours, or by the horns of a bull of yours, this may as well have happened, you being at a hundred miles distance, as in your presence. The plaintiff being predisposed to lie, and having his choice of lies, his care will be, that in the scene he feigns, you, the defendant, shall not be one of the actors. Non-Lawyer. Doubtless this will be his best policy; just as, under your own established and therefore faultless system, were the tradesman's servant to steal the goods, and then swear he had delivered them to the customer, it would be better policy to suppose them delivered at his house out of his presence, than in his presence; although the testimony of the customer, to whose loss the theft and the perjury are committed, would not be admitted to contest it. But, the door being, by the supposition, as completely open to the testimony of the defendant as to that of the plaintiff, and the fact on which the plaintiff grounds his claim being by the supposition a fact altogether false,—the case will be, that the defendant, if he contests the claim, believes the fact to be false. Under whatever sanction, therefore (call it oath, call it what else you will,) the plaintiff affirms, contrary to truth, his persuasion of the existence of the fact, the defendant will of course affirm his persuasion of the non-existence of it. Here, then, it must be confessed, we have a danger of deception, as we have in all cases in which testimony is admitted. But the plaintiff's story, being by the supposition an utter falsehood, has everything to fear from scrutiny, from counter-interrogation, from whatever counter-evidence can be afforded by circumstances; while the assertion of the defendant, being true, can find nothing to oppose it from either of these sources. Now observe how the matter stands under your system. Innumerable are the instances in which the fact constitutive of a right on the part of Titius, being true, would be testified and put beyond doubt by the testimony of Titius, if, Titius being plaintiff, his testimony were admitted. In perhaps the greater number of these instances, the fact being as well known to the defendant as to the plaintiff, and the defendant not being disposed to be at the expense of perjury to save paying what in justice he ought to pay, he would do one of two things: if the fact had fallen within his cognizance, he would confess it; if the fact had not fallen under his cognizance, yet, hearing it sworn to by the plaintiff, and not looking upon the plaintiff as a man who would perjure himself, he would not, upon his oath, declare his disbelief of the statement sworn to on the other side. Now what does your system in this case? To the evil-doer it insures success and triumph, without peril of perjury, or expense of litigation: to the innocent and injured, it ensures loss, without hope of safety—injury, without the possibility of self-defence. Lawyer. Well, and what then? He should have been wiser. It should have been his care to have provided himself with legal evidence. Non-Lawyer. His care! Yes: but can it be a secret to you, that in many cases such provision would be impossible? that in others the precaution would be resented as an insult, and the transaction itself (the contract, or whatever it be) out of which the right arises, be by that means rendered impossible? And suppose him (like Duke and no Duke) never to travel without a train of witnesses at his heels: have you any secret you could supply him with, to enable him to keep them alive at pleasure? He should have provided himself with legal evidence! Do you and yours, from the lowest to the highest of you, know what legal evidence is? Would you let him know, if you did? Did you ever, with your own goodwill, do anything towards letting men know what (on this subject or on any other) the law—the law which you every day compose on pretence of declaring it—is? Have you ever ceased to do whatever was in your power to prevent all such knowledge from being attainable—to keep all such knowledge out of their reach? The system which the suitor supposes to be established—the system on the confidence of which he acts, is the system declared to him by domestic experience, right reason, and common sense. This system he sees pursued, even by you and yours, in some cases: deceived by your indefatigable self-eulogiums, he concludes it to be pursued in all cases. Your exceptions, extensive and numerous as they are, how should he divine them? To give himself the least chance for it, it would be necessary for him, at the outset, to begin with discarding his ordinary guides, common honesty and common sense. Here may be the place to observe once more, that the utmost danger which can be apprehended from the treest admission of self-serving testimony on both sides, is inferior, far inferior, to that which, under the technical system, has place in every day's practice. In all cases, from the most lightly to the most heavily penal (personal injuries, acts of depredation, acts of malicious destruction,) where an injury by which an individual is the immediate sufferer is treated on the footing of a crime,—the testimony of the party injured (testifying under the influence of an interest in the strictest sense pecuniary, viz. that constituted by costs,—and always under the smart of the injury, be it what it may,) is admitted under the name of evidence: and under the sort of sanction reserved for those declarations which are received under the name and on the footing of evidence,—the sanction of an oath, fortified by the eventual punishment attached to the breach of it: while, on the other side (the defendant's,) though, under the name of the defence, the party, if present (which in slightly penal causes it is not necessary that he should be,) cannot be prevented from saying what he thinks fit,—yet, what he does say, not being corroborated by the sanction of an oath, nor being subjectable to counter-interrogation, is not received under the name nor on the footing of evidence. What is to the present purpose, is this question:—If no mischief is experienced from the partial admission of self-serving testimony, the admission of it on the plaintiff's side—on that side on which (as hath been seen) it is most dangerous,—can any greater danger be reasonably apprehended from the impartial admission of it, from the unreserved admission of it on both sides? The above observations on the safeguards which already exist, may suffice to dispel all vague fears that great prejudice to justice would result from the abolition of the exclusionary rule. An ulterior safeguard, which is not, but which might be, and ought to be established, is the registration of evidence. By the registration of evidence, I do not mean the committing of the evidence to writing in terminis; but merely the making a memorandum of the species and nature of the evidence, under apposite heads. The immediate use is, to show, on the occasion, the strength of each article of evidence: to indicate the strength of it, as far as the denomination to which it belongs, and under which it is entered, may be conducive to that purpose. The ulterior use is, to put a mark of distinction upon every cause in which, on the side in favour of which the decision was pronounced, the mass of evidence was, in point of strength, in any respect below the ordinary standard. The ultimate use is, to indicate, not indeed the exact quantity of the mischief (for when there is none, none can be indicated,) but the maximum of the mischief which, in the way of misdecision, under any head of infirmity or suspicion, can have owed its birth to the abolition of the exclusionary rule:—1. Judgment for the plaintiff. Evidence for the plaintiff, none but the plaintiff's testimony. Evidence for the defendant, none but the defendant's testimony. 2. Judgment for the defendant: state of the evidence the same. 3. Judgment again for the plaintiff. Evidence of the plaintiff delivered by him, or not delivered: the fact (the collative, or say investitive, fact, by which the right in question was conferred on him) not having fallen within his cognizance, nor any other fact serving for proof of it in the way of circumstantial evidence. Extraneous witness, Matthew Martyr: his testimony exposed to suspicion by interest derived from relationship,—he being husband, son, father, brother, partner, servant, master, to the plaintiff; or by specific pecuniary interest, in such or such a way; or by improbity, as evidenced by his having been convicted of such or such an offence. Ulterior details might, in this place, be regarded as superfluous and premature: what is above will serve for an indication of the ends to which the proposed arrangement is directed. To frame an apposite system of book-keeping, whereby, for each cause, the labour of registration could be reduced within the compass of a few words, would be a consequential task, and not a difficult one. I speak of the system of registration as exhibiting the maximum of mischief from deception and consequent misdecision having infirmity of evidence for its cause. I say the maximum; it being understood that, supposing in every cause the decision given in favour of that side of the cause on which the evidence was thus defective to have been erroneous, the greatest number of causes in which this error—error from this source—could have taken place, is thus brought to view. But so it may be, that in no one of all those instances was the decision erroneous: still, in this case, the word maximum is not less apposite than if the decision was erroneous in all those instances. On the present occasion, in speaking of infirm and suspectable evidence, those causes alone of inferiority need be thought of, that have been brought directly to view in the course and for the purpose of the present work. In a system of registration, in so far as adapted to the end here in question, the several other causes of infirmity would be equally entitled to a place. The heads being expressed by apposite denominations,—the operation of making, on the occasion of such cause, the several entries under those several heads, would present little difficulty. Mercantile book-keeping, an art which, under the existing system of nomenclature, is clouded and perplexed by obscure and unexplained fictions, presents much more.* Lawyer. What! more records? and have we not records enough already? and is there not enough in them? and is there to be nothing said about John Doe and Richard Roe? and do you mean to confound the distinction between courts of record and courts not of record? Non-Lawyer. To make answer to your questions, the matter of your records may be divided into three portions:—1. Sheer lies; 2. Impertinent and useless truths; 3. Instructive truths. The instructive truths—that is, heads for the reception of these—it is our wish to preserve; though it would require a microscopic eye to spy them out: and if they were of iron, so much the better, because in that case a magnet would save time and scrutiny. Of the sheer lies and impertinent truths, I agree with you that there is enough already, and therefore it is we propose that no further additions shall be made to that part of the stock. If your relish for the dish remainafter the odor lucri has evaporated, you know where there is enough for it. Courts of record—courts not of record! A precious distinction, truly! A precious end it aims at—and a precious use has been made of it! Know you then of that judge, whose operations will be likely to be better secured against error (designed and undesigned)—against needless delay, expense, and vexation, by the assurance that they will be buried in oblivion? Can there be so much as a pretence for omitting to perpetuate the memory, of everything that passes (except the verbiage of advocates and parties,) unless it be the little importance of the cause, compared with the delay, expense, and vexation, attached to the registration of it? And do you not know, that the use aimed at by the distinction, and by the consequences grounded on it, were to secure the judges that invented it against the competition of judges below them, and on one side of them? and that, among the civil courts not of record, the equity courts—the courts which reject, as "beneath their dignity," all causes of less than £10 value—are at the head of the list? So much as to the safeguards against misdecision. For the avoidance of unnecessary vexation, an important maxim remains to be brought to view. I suppose the ends of justice substituted to the ends of judicature. I suppose hypocrisy unmasked. I suppose honest eyes opened, imbecility in honest guidance. I suppose the door thrown wide open, not only to all willing testimony, but to all lights that are to be elicited from interrogatories administered to unwilling testimony: to unwilling testimony, whatsoever be the now terrible, the now tremendous, fruits of it: lights collected without reserve, from unwilling witnesses, although the result should be the diminishing the multitude of misdeeds of all kinds, and diminishing (if English lawyers and their dupes endure to see it diminished) the barbarity, as well as imbecility, of their penal code. In throwing open the door to self-criminative evidence, one exception, though but a temporary, and thence a limited and continually expiring one, would require to be made. No admission of such evidence against offences anterior to the promulgation of the law: the reform should not be retrospective. The reason is almost too obvious to bear mentioning. Transgressions already committed are beyond the reach of prevention: punishment would be misery in waste. Not that, because the case were called a criminal one, there would be anything gained to general utility by extending the provision to the exclusion of satisfaction on the score of injury; viz. where the author of the injury cannot be a loser but the sufferer by it must be (and to the same amount) a gainer. But under the existing technical system, such is the structure of the established forms, that if the examination of the defendant remained forbidden to the one purpose, it would remain alike forbidden to the other. To the abuse here in question, no correction would, could, or ought to be administered, but in the way of statute law. To render the correction retrospective, would include in it an operation of ex post facto law. Legislators shrink with uniform horror from the idea of such injustice. Jurisprudential law, from first to last, was formed by it. Not a step can she take on any fresh ground—not a fresh step can she take in any direction, that is not stained by injustice of this description. CHAPTER X.RECAPITULATION.Against the following errors it concerns the judge to be upon his guard:— 1. The supposing that there is any man, of whose testimony it is certain that it will throughout be true: true to the purpose of warranting the judge to treat it as conclusive, i. e. exclusive of all counter-evidence. 2. The supposing that there is any man, of whose testimony it is certain that it will throughout be untrue; viz. to the purpose of warranting the judge in refusing to hear it. Not that the certainty of its being throughout untrue, would induce anything like a certainty of its being throughout uninstructive. 3. The supposing that there exists any one sort of interest, which, on the occasion in question, can be sure so to overpower the force of the standing tutelary interests, as to render untruth on the part of the testimony certain in any part, much less in the whole. 4.—or any number of interests acting in a mendacity-promoting direction. 5. The supposing that because, as to this or that fact, the testimony in question is incontestably false, and even mendacious,—that therefore there is a certainty of its being false as to this or that other fact: much more as to all the other facts. 6. The supposing that, where there are divers interests, to the action of which the testimony is exposed on either side, there is any one of them that ought to be neglected, as if destitute of force. 7. The supposing that, where there are divers interests acting on the same side, the aggregate force with which they act is to be learnt by counting them, without regard to the separate force of each. The above propositions are the general result of this work. The anatomical view (shall we say) above given of the human mind,—does it quadrate with the truth? No person by whom this work can ever be taken in hand—no person, male or female, high or low, rich or poor, but is competent to judge. But if it be, what must we say of the picture given of it in the books of jurisprudence? of the picture of it, as referred to, and wrought from, on every jurisprudential bench? Judging of it from those books and those benches, is this branch of practical science (if science it is to be called) in any better state than the science of anatomy, when the circulation of the blood was unknown, and nerves and tendons were confounded under one name? or than chemical science, when the great Plowden, no less profound in chemistry than in jurisprudence, gave in the pedigree of the metals, certifying them to be the issue in tail lawfully begotten by Stephen Sulphur upon the body of Mary Mercury? By way of contrast to the above proposed mementos, and that the reader in whose understanding there is any predilection for reason, or in whose heart there is any concern for the welfare of mankind, might take his choice,—it had been in my intention to subjoin a view of those documents to which English judges are at present in the habit of resorting for their guidance, and which (in addition to, or in explanation of, the particular decision, the supposed purport of which has been preserved by chance,) the advocates on each side are wont to present them with in that view. These documents would range themselves naturally into two classes:—1. Considerations purely technical, i. e. having no reference to anything that will bear the name of reason: 2. Fragmenta rationalia; considerations containing in them more or less of the matter of reason. Fragments they cannot but be called; inasmuch as, containing, almost without exception, no reason but on one side, nor of that anything better than a loose and broken hint, they can never, in any instance, be considered as amounting to an entire reason, but only to a quantity of rough matter, by the help of which, with due management, a reason might be made. Of this research, what, it may be asked, would be the use? Illustration—illustration merely. Amusement, and nothing more: or, if anything beyond amusement, this:—that the portentous worthlessness and depravity of the technical system, and of that sort of trash which among lawyers goes by the name of science, may be placed in yet another point of view: that, of the mountain of their nonsense, the relative as well as absolute magnitude may be measured by the molehill dimensions of such part of their productions as, without abuse of language, may be capable of passing under the name of sense. To engage in any such research, in the hope of any instruction, which in any other point of view could afford payment for the labour, would be to scrutinize the contents of the first great dunghill that presented itself, for the possible pearls or diamonds that might be to be found in it. It would at the best be like the reading over and studying the Bibliotheca of Alchemy, in the expectation of meeting with instruction applicable to the advancement of modern chemistry. In the course of a twelvemonth, it is not impossible but here and there a result might be found presenting a fact of which no modern chemist is apprized. But, in less than a thousandth part of the time thus spent in the purlieus of folly and imposture, facts of more use and importance might be brought to certainty, and for the first time, by following the track already opened by genuine and unpolluted science. To subjoin a view of these lawyer's reasons, technical and semi-rational, to the present work, had, as already observed, been my intention. But, considering the bulk to which the present publication has already swelled, the completion of what may be found to say on this topic must be postponed. As for specimens, they have been already seen: technical considerations in the chapter on restoratives and elsewhere; fragmenta rationalia in some of the reasons for the exclusion of self-disserving evidence, in the reasons for excluding the testimony of a wife against her husband,* in the use made of the words necessity, course of trade,† &c. [* ]Introduction to Morals and Legislation. Dumont, Traités de Législation. [* ]The word good, in as far as any precise signification is annexed to it, denotes indifferently either pleasure, or the negation of pain (present or future,) or whatever is regarded as a cause more or less probable of pleasure, or of the negation of pain, i. e. as a security against pain. Take away the ideas of pleasure and pain, you have the word good without a meaning: your good, if so you persist in calling it—your good, if such it be, is of no value. By a few obvious changes, this same account will serve as well for evil as for good. [† ]Expectation of an event, is the persuasion, more or less strong, of its probability. Hope is expectation of good—fear, expectation of evil: in the import of each of these words, therefore, two distinct ideas—one of the persuasion, the internal judgment or sentiment—the other of the event, the exterior subject or object of the judgment, is included. [* ]See the last Chapter but one of Book I. [† ]These several species of interest are termed different species, not as corresponding to so many different species of pain or pleasure, but to pain or pleasure in general, considered as apt to flow from so many distinguishable sources. [* ]This love of justice, commonplace moralists, and even a certain class of philosophers, would be likely to call an original principle of human nature. Experience proves the contrary: by any attentive observer of the progress of the human mind in early youth, the gradual growth of it may be traced. [† ]Of the influence above spoken of in the text, the case of Elizabeth Canning, anno 1754, reported in the State Trials, affords a memorable example. Out of the knowledge of her friends, she had been absent from home for about a month, upon some love errand. On her return, being pressed by interrogations, she fabricated a story of her having been carried off for the purpose of violation to a house of ill-fame, a few miles from her abode in London; from whence, after being kept without food for weeks, in a manner almost miraculous, she at length made her escape unviolated. The story exciting public attention, two women were apprehended, and tried for their lives, as for having robbed her in that house, and one of them convicted. The story being a compound of improbabilities, the convict was respited; and in the interval, counter-evidence of the alibi kind presenting itself in abundance, she was prosecuted for perjury; and, after a trial of the unexampled duration of fourteen days, convicted: on evidence which—though at that time it divided the bench at the Old Bailey (composed chiefly of aldermena ) into nearly equal parts—leaves, at this time of day, not the smallest doubt. She was in consequence transported to America for seven years. [* ]To apply this to religion. In perhaps all religions there have been sham miracles performed, and false accounts of miracles never performed. But, from a man's having joined in the performance of a sham miracle, or fabricated an account of a miracle known by himself never to have been performed, we are not to conclude that in each instance he has disbelieved the existence of miracles of earlier date, said to have been wrought under the same religion. These miracles (says he to himself) are true; but at the present conjuncture they do not produce that general conviction which it were so much to be wished they did. Let us aid the efficacy of truth by a pious and useful falsehood. [* ]If the slight sketch, in the way of instruction, here given, be of use with reference to the present purposes, so will it for the purpose of divers other operations performable on the field of judicature: as, for example:— [* ]In virtue of the existing exclusionary rules, this state of constant deception has been, time out of mind, the lot of English judges. But, the mischief falling exclusively upon the party in the right, while the advantage of it is shared between the party in the wrong and the firm in which the judges are the acting partners, no deception (it has been seen) was ever submitted to with a more unruffled acquiesence. [* ]Among the Lacedæmonians and Romans, though adultery was no more dispunishable than horse-stealing, a man would lend his wife to a friend as he would his horse. To whatsoever degree illaudable, the custom does not the less prove the rashness of any opinion that should regard adultery on the part of the wife as a proof of the extinction of that partiality, by which, in a cause in which the husband is party, her testimony will naturally be drawn towards the husband's side. [* ]Of this latter circumstance such is the force, that, under the laws of some countries, cohabitation, without further proof, unless it be the acquiescence of the man in the assumption of his name by the woman, is regarded as possessing, to that purpose, whatsoever force has been given by law to the prescribed solemnities.—[This may be said to be the case in Scotland, where parties are held as married, if they have lived "habit and repute as man and wife;" that is, if they have allowed themselves to be treated by society as man and wife, without taking measures to show that they wish their connexion to be held in another light. Were it proved, however, that the passing for husband and wife was in pursuance of a design concocted beforehand by the parties, to serve a separate purpose,—say to save the woman's reputation,—marriage would not be held to have taken place. It has to be observed, that the cohabitation does not, of itself, constitute marriage;—it is merely held as a proof of its existence—of the parties having consented to be married.—Ed.] [* ]It is completely so by English law. [* ]Supra, p. 575. [† ]In the above case, by the supposition, Rapax is the wrong-doer, Humilis the party injured, and conscious of his being so: a particular supposition naturally included in that general one, is, that of his being persuaded of the truth of the facts to which he deposes: in which case—though subject to the action of an interest promotive of mendacity, had he been in a condition to stand in need of such criminal assistance,—yet, not (by the supposition) standing in need of it, the epithet mendacity-promoting may appear unsuitable to the case. [* ]Suprà, Chap. VI. [* ]Rules in detail for the estimation of the comparative degrees of probity and improbity in the moral part of the human frame, have been given at large in another work (Introduction to Morals and Legislation in Vol. I.:) they require too many preliminary observations to be inserted here. [* ]Suprà, Chap. III. [* ]This difficulty—in so far as concerns mere pain of exertion, mental labour, distinct from sense of danger—coincides with that principle ofaction which, under the name of the physical sanction, constitutes the first article in the list of standing tutelary, and thence mendacity-restraining, sanctions. [† ]In the year 1754 (confederacies for the purpose of availing themselves of this encouragement having been systematically organized,) mischief (effects at least, good or bad) in a quantity considerable enough to engage no small share of the public attention, had, among the lower orders, been done by them. Several persons had been convicted—one at least had suffered death—for acts of robbery, into which, it came out, that they had been seduced by the confederates. Four men, MacDaniel, Berry, Egan, and Sulivan, after having been (in consequence of a special verdict) acquitted on an indictment charging them as accessaries to the robbery, were tried and convicted on an indictment, in which, for the designation of the offence, the unmeaning appellation of conspiracy was employed.a One of them, Egan, being, in pursuance of his sentence, put into the pillory, was murdered by the populace upon the spot. Another, Berry, died of his wounds. Whether any real mischief, other than the alarm,was done by this confederacy, seems, after all, a matter of doubt. In the only case the particulars of which are known, the two victims, though engaged by a sort of treachery in the commission of the individual offence of which in consequence they were convicted, had, in pursuance of their own schemes, been habitual depredators, though, for anything that appears, in a line somewhat inferior in criminality; viz. simple theft, instead of robbery accompanied with force. This being the supposed case, the effect of the terror inspired by such practice would be purely salutary rather than otherwise, tending to the destruction of confidence among malefactors, and thereby to the destruction of that small and destructive portion of society, whose destruction is the preservation of the innocent part. The malefactors were, two of them, murdered in the pillory. The murderers, if not thieves themselves, were probably set on by those who were. [* ]In this case, however, the mischief produced in the shape of danger and alarm to the community at large, will be apt to be less where the demand had for its ground a claim of indemnification (viz. on the score of a loss already incurred, and known to be so,) than where such previous loss is out of the question. [* ]Dumont, Traités de Législation;—and see Introduction to Morals and Legislation (Vol. I. p. 69 et seq.) [* ]Thus much being said of one part of the proposed system of judicial book-keeping, a word or two, for the purpose of sketching out a general idea of the remainder, may perhaps not appear misemployed. Suggested by a collective view of all the ends of justice, the system, taken in both its parts, embraces in its design all these several ends. [* ]Suprà, pp. 480-6. [† ]Suprà, p. 167. [† ]Of the influence above spoken of in the text, the case of Elizabeth Canning, anno 1754, reported in the State Trials, affords a memorable example. Out of the knowledge of her friends, she had been absent from home for about a month, upon some love errand. On her return, being pressed by interrogations, she fabricated a story of her having been carried off for the purpose of violation to a house of ill-fame, a few miles from her abode in London; from whence, after being kept without food for weeks, in a manner almost miraculous, she at length made her escape unviolated. The story exciting public attention, two women were apprehended, and tried for their lives, as for having robbed her in that house, and one of them convicted. The story being a compound of improbabilities, the convict was respited; and in the interval, counter-evidence of the alibi kind presenting itself in abundance, she was prosecuted for perjury; and, after a trial of the unexampled duration of fourteen days, convicted: on evidence which—though at that time it divided the bench at the Old Bailey (composed chiefly of aldermena ) into nearly equal parts—leaves, at this time of day, not the smallest doubt. She was in consequence transported to America for seven years. [† ]In the year 1754 (confederacies for the purpose of availing themselves of this encouragement having been systematically organized,) mischief (effects at least, good or bad) in a quantity considerable enough to engage no small share of the public attention, had, among the lower orders, been done by them. Several persons had been convicted—one at least had suffered death—for acts of robbery, into which, it came out, that they had been seduced by the confederates. Four men, MacDaniel, Berry, Egan, and Sulivan, after having been (in consequence of a special verdict) acquitted on an indictment charging them as accessaries to the robbery, were tried and convicted on an indictment, in which, for the designation of the offence, the unmeaning appellation of conspiracy was employed.a One of them, Egan, being, in pursuance of his sentence, put into the pillory, was murdered by the populace upon the spot. Another, Berry, died of his wounds. Whether any real mischief, other than the alarm,was done by this confederacy, seems, after all, a matter of doubt. In the only case the particulars of which are known, the two victims, though engaged by a sort of treachery in the commission of the individual offence of which in consequence they were convicted, had, in pursuance of their own schemes, been habitual depredators, though, for anything that appears, in a line somewhat inferior in criminality; viz. simple theft, instead of robbery accompanied with force. This being the supposed case, the effect of the terror inspired by such practice would be purely salutary rather than otherwise, tending to the destruction of confidence among malefactors, and thereby to the destruction of that small and destructive portion of society, whose destruction is the preservation of the innocent part. The malefactors were, two of them, murdered in the pillory. The murderers, if not thieves themselves, were probably set on by those who were. [a ]This absurd custom of putting aldermen in the commission, was continued by the 4 & 5 Will. IV. c. 36. As most of these gentlemen are engaged in trade, they are frequently absent attending to their own affairs, and then the public business is effectually stopped; for unless there are two commissioners present in each of the two courts, all the proceedings would be void. The rule is to have a real judge, who does the business, with an alderman sitting by his side, reading the newspaper.—Ed. [a ]State Trials, x. 418-447. Foster's Reports, p. 121-130. |