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committed to the several Gaols in London and Middlesex

during the Years 1823—1829 inclusive, &c. &c.

Extract from the Report of the Keeper of the State Prison

at Auburn.-U.S.

Intelligence.

THE JURIST.

APRIL, 1832.

ART. I.-ON THE EXCLUSION OF EVIDENCE.

If Mr. Bentham had made no contributions to the science of jurisprudence beyond the volumes which are now before us,* he would yet have presented a most valuable addition to the library of the jurist, and his name would deservedly be ranked among those of the most eminent promoters of law reform. Unfortunately, these subjects, although they are rapidly forcing their way into notice, have not as yet become popular, either amongst the class of lawyers, or amongst the public at large ; and from this circumstance, as well as from the bulky size of the work, it seems not likely to meet with that general attention which it deserves. We cannot, therefore, better employ a few of our pages than in laying before our readers some account of a part of the contents of these volumes.

It is scarcely necessary to observe, that rules for the taking of evidence form an essential part of every system of law. It is from evidence that the judge must, in each case, draw his conclusions as to the state of the fact, upon which he may afterwards proceed to the due application of the law. However complete and precise. may be our definitions of civil rights, however appropriate and well devised the punishments which are denounced against the violation of those rights, and however well constituted the judicial establishments by which the civil and penal laws are to be enforced, the good intentions of the legislature will be frustrated, unless such rules be laid down for the collecting of evidence as may enable the proper tribunals to form correct conclusions on the state of the fact.

Mr. Bentham has, in the present work, entered into a very

* Rationale of Judicial Evidence specially applied to English Practice. From the MSS. of Jeremy Bentham, Esq. 5 vols. 8vo. London.

VOL. III.-JU.

A

complete and masterly examination of the whole subject of evidence, pointing out the rules which he conceives to be best calculated to promote the object in view, with the reasons for his opinions, and commenting on the defects in the practice of the different English courts of justice and in the Roman law. We shall not attempt to follow him through so wide a field; but we shall, for the present at least, confine ourselves chiefly to that part of the subject which relates to the exclusion of evidence-the part in which the practice of the English courts of common law seems to be more peculiarly defective.

Two reasons have been stated for excluding evidence in certain cases, viz. the avoiding of delay and expence, and the apprehension of misdecision on the part of the judge.

There can be no doubt that delay and expence must, in some cases, constitute a sufficient ground for the exclusion of evidence. To take, for example, an extreme case put by Mr. Bentham :Suppose that the testimony of a witness, who happens to be in the East Indies, is required, in order to enforce the payment of a small fine, for the infraction of some regulation of police: it is obvious, that in such a case the necessary delay and expence would much more than counterbalance any advantage to be derived from the attendance of the witness. Such is the principle on which the legislature or the judge ought to found their decision on all similar questions. They must consider whether the evils resulting from the production o. the evidence preponderate over those of neglecting to enforce the law. In some cases they may be able to steer a middle course, by permitting the production of evidence of an inferior kind, -of written, for example, instead of oral testimony, În others, where there may be a probability of the evidence in question becoming attainable at some future period, it may be found expedient to allow of a provisional decision, requiring at the same time that security shall be taken from the successful party, in case it should be found necessary, on the subsequent production of the evidence, to reverse the judgment. For a more full development of all these questions we must refer our readers to Mr. Bentham's work.

Secondly, it is said that the apprehension of misdecision on the part of the judge is, in certain cases, a sufficient reason for excluding evidence; or, in other words, it is asserted that there are certain articles of evidence which are more likely to lead the judge to a wrong than to a right conclusion; and that it is in the

power of the legislature to point out beforehand what these articles of evidence are, so as to exclude them by general rules. Such, for instance, it is said, is the evidence of persons having an interest in the result of the cause, of persons who have been previously convicted of offences against the law, and of many others to which we shall have occasion to refer hereafter. This is a subject which deserves the most serious attention of all who are friends to the due administration of justice, as these questions are of constant occurrence in

every one

of our courts of common law; and as it must be admitted that their rules on this subject are strangely at variance with each other, and are founded on no general principle, if not utterly inconsistent with reason and justice.

In entering upon this subject, the question naturally suggests itself, what would be the conduct of a sensible man, unfettered by rules of law, in endeavouring to inform himself upon a question of fact? What, for instance, would be the conduct of a master of a family in settling a dispute between two of his children or servants ? Would he resolutely shut his ears against a part of the evidence ? Would he refuse to hear one witness, because he might have some interest in the decision of the dispute; another, because he had, at some former period of his life, been guilty of deception or some other offence; and a third, because he was of too tender an age to have clear ideas on the nature of the obligation to speak the truth ? Would he not, on the other hand, instead of rejecting the testimony, consider these circumstances only as reasons for hearing the evidence more patiently, and sifting it with greater care? Instead of refusing to hear the story of an interested witness, he would rather examine the nature and extent of the interest, so as to be able duly to appreciate the value of his testimony; and in case the tendency of his evidence should prove to be opposed to his interest, this circumstance would of course add to its weight. He would, moreover, be careful to notice how far the different parts of the story were consistent with each other, how far they were confirmed by the testimony of other witnesses, and whether the evidence was consistent with such known facts as it was impossible to falsify. Lastly, he would observe the manner in which each witness delivered his testimony, and whenever there appeared to be ground for suspicion, he would strictly cross-examine him, so as to obtain unpremeditated answers to unexpected questions; and he would thus, in some cases, obtain the most satisfactory evidence from an unwilling witness.

Of course it is not meant to assert, as some writers seem to suppose, that precisely the same course of proceeding, which is found to be conducive to the ends of justice in the domestic tribunal of a private family, would be applicable to the practice of courts of law. But, at any rate, it rests with the advocates of the system of exclusion to establish the propriety of the exceptions; and it may be most useful to inquire whether any just grounds can be shown for so wide a departure from this natural system of procedure as is displayed in the practice of the English courts of common law. It is not very difficult to point out some of the causes which

have given rise to the English system of excluding evidence, and to show that, whatever may be the tendency of the rules in question, they originated rather in the ignorance than in the deliberate wisdom of our ancestors. It was very natural that, in the barbarous ages, credit should be attached to evidence, with reference rather to the number of the witnesses than to any other circumstance. It was easy for the most uninstructed person to perceive that, if ten witnesses gave an account of a matter of fact, whilst five others gave a different report of it, the testimony of the larger number was to be preferred. But it was a much more difficult task, and one in all probability far exceeding the skill of the judicial tribunals of an uncivilized people, to examine all the various and minute circumstances by which the credibility of each witness might be affected, so as to give to every particle of evidence its due weight. Thus it will usually be found that, amongst all nations in an early stage of civilization, the number of the witnesses is the chief consideration in estimating the value of evidence. According to the laws of the Hindoos, as well as by the Gentoo code, the evidence of three witnesses is required for the decision of every question. And, by the common law of England, two witnesses are required to establish a charge of perjury; because it is said that, “otherwise, there would only be one oath against another;" as if the value of an oath were always the same, independent alike of the character of the witness and the circumstances under which his testimony might be given. Or, to take one still more striking example from our own law :-In certain civil actions a defendant was allowed to avail himself of what was called wager of law; that is to say, he had only to come into court in person and swear that he did not owe the sum demanded of him, at the same time bringing with him a certain number of his friends, who were to swear, not that they knew any thing of the matter, but simply that they believed his statement; and this was considered in law a conclusive defence to the action. Nay, strange as it may appear, such is the law of England even at the present moment, and it is not long since a person was known to avail himself of such a defence. *

These few instances will be sufficient to illustrate the tendency of all uncivilized nations, and of our own ancestors amongst the rest, to estimate evidence rather according to the number of the witnesses than according to the weight of their testimony. In these cases, however, a difficulty would force itself upon the attention of the judge. Witnesses would occasionally present themselves who might have a strong pecuniary interest in the event of

* King v. Williams, 2 Barn, and Cress. Rep. 538.

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