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becomes interested in establishing the justice of his suspicions, which must produce a state of mind far removed from that impartiality which is becoming to his office.. It is much better that the examination should be conducted by counsel, under the superintendance of the presiding judge, who should be bound to interfere for the protection of the prisoner, whenever he is treated with unnecessary
harshness, or whenever unfair inferences seem likely to be drawn from his admissions. This interposition is sometimes required even in the case of an ordinary witness, and of course is much more necessary for the protection of the accused party himself, whose mind is more likely to be agitated and confused in consequence of the anxious situation in which he stands.
So far, at present, is the English law from sanctioning the examination of the accused, that, according to the practice of some judges, he is scarcely allowed to admit his guilt, even when desirous to do so. Nothing is more common in our courts, than to hear a judge advising, nay, sometimes almost entreating, a prisoner to withdraw a plea of guilty, in order that he may take his chance of escape in consequence of some defect in the evidence, or of some irregularity in the proceedings. It is scarcely possible to conceive a scene more disgraceful to the jurisprudence of a civilized country, or more inconsistent with the most ordinary sentiments of morality, than that an exalted minister of justice should, in the execution of his important office, publicly recommend the telling of a deliberate falsehood, for the avowed purpose of defeating the ends of justice.
Our law is, however, on this subject, as on many others, full of inconsistencies. At the same time that it will not allow a particle of evidence to be obtained from the accused at the time of his trial, it receives, without scruple, any confession which he may have previously made in writing, or even the report of any admissions which
may have fallen from him in the course of conversation : thus excluding his direct testimony, whilst it admits hearsay evidence of any thing which may have dropped from his lips.
The same arguments, which we have used respecting the examination of accused persons, are also applicable to that rule of law, by which the evidence of a witness is excluded when it is calculated to criminate or to disgrace himself. If such evidence should lead to the conviction of the witness, this, instead of being an objection, is an additional argument in favour of its admission; the punishment of an offender being, in all cases, an advantage to the public. And, in case the testimony is only disgraceful to the witness, it is too much to expect that the ends of justice should be sacrificed to the feelings of an individual; although, of course, the exposure ought not to be greater than is absolutely necessary. It is said to be hard that a man should be obliged to criminate himself. If, by
hard, it be meant that it is disagreeable, it cannot be denied that it is disagreeable to every offender to be convicted at all; although it does not appear likely to make any great difference in his sufferings, whether the evidence on which he is convicted be obtained from his own lips or from those of some other person. At all events, it may be worth considering, whether it is a greater hardship that a guilty man should criminate himself, or that the public should be left without due protection for their persons and property.
A question has been raised between Mr. Bentham and his opponents, as to the propriety of the rule of law by which professional persons are precluded from disclosing in evidence facts which they have learnt from their clients in the exercise of their professional duties. Mr. Bentham contends that this rule affords facilities for the escape of the guilty, without giving the slightest additional protection to the innocent. He maintains that no innocent prisoner, or honest suitor, can have any reasonable objection to the disclosure of any communications he may make to his professional adviser; and, on the other hand, that the probability of such disclosure will operate as a powerful check to the guilty and dishonest in framing a false defence.
The objections which have usually been made to this argument are of the most inconclusive kind. They amount to little more than an expression of horror at the idea of lawyers betraying their clients, and of fear lest, under such a system, no honourable men should be found to enter into the profession. Such an objection betrays some confusion of ideas as to the nature of the question. There can be no doubt that it is dishonourable in a lawyer, or in any man, to betray the confidence which has been reposed in him. But, by the supposition, there is here no confidence in the case. Both parties are, from the first, fully aware that the lawyer is always liable to be called upon to disclose the communications of his client. Where there is no confidence there can be no treachery or dishonour.
At the same time, however, that we admit the fallacy of this objection, we cannot concur in Mr. Bentham's view of the subject, and we believe that his argument will not be found to embrace all the cases which may arise. It is easy to conceive many reasons which may render even an innocent man justly unwilling to have all the circumstances of his case publicly disclosed. Suppose, for instance, that, although he is wholly innocent of the crime laid to his charge, there are circumstances connected with the transaction which, if disclosed, will render him liable to incur public odium or the displeasure of his friends or relations. Or, suppose that a publication of the facts is likely to be prejudicial to an intimate friend, or injurious to the reputation of a female. In any of these
cases, if the practice prevailed of compelling a lawyer to disclose the private communications of his client, the prisoner would, in all probability, make a false or partial statement of the facts to his professional adviser, under the false hope of escaping conviction for the offence, and, at the same time, of avoiding the evil consequences of publishing the circumstances of the case.
And in some instances, vithout doubt, the effect of this want of confidence would be, to render the defence of the prisoner imperfect, and thus to lead to an unjust conviction. If, on the other hand, the accused had been able to place full reliance in the secresy of his adviser, both his objects would, in all probability, have been effected; or, if that were impossible, he would, at any rate, have been convinced of the necessity of allowing such a disclosure of the facts as might secure his acquittal. A similar evil result might be produced by this want of confidence, in all cases where a prisoner was guilty, not of the crime laid to his charge, but of some minor offence; where, for instance, he was indicted for murder or burglary, but was really guilty only of manslaughter or larceny; as, in the hope of escaping punishment altogether, he might probably conceal the real facts from his lawyer, and might thus be unjustly convicted of the more serious offence.
Whilst, for these reasons, we differ from the opinion of Mr. Bentham, that no danger would be incurred by the innocent in consequence of the destruction of professional confidence; we also doubt whether such an alteration of the law would materially increase the difficulty of fabricating a defence for the guilty. It would always be in the power of the prisoner or his friends secretly to consult with a legal adviser, and to employ him in drawing up instructions for the defence; which instructions the prisoner might himself afterwards put into the hands of his attorney or counsel, without giving him any farther information on the subject.
And this mode of evading the rule is much more likely to be understood and practised by the hardened offender than by the innocent or inexperienced.
Another question on which Mr. Bentham and other writers are at issue, is, the propriety of requiring the husband and wife to give evidence against each other. Mr. Bentham has, we think, satisfactorily shown, that danger of deception has, in this case, been improperly alleged as a ground of exclusion ; and that the same arguments in favour of admissibility are applicable, in this instance, as in those of other interested witnesses. Some of his opponents, however, defend the exclusive rule, not as conducing to the ends of justice in the particular case, but on grounds of general utility. They remind Mr. Bentham, that he himself admits the impropriety of requiring Catholic priests to give evidence of facts which they may have learnt through the medium of confession ; and that he has stated, as one of his reasons for this opinion, his belief that the practice of confession is, in many cases, of public utility, and that it could not exist if not protected from disclosure. They contend that a similar argument is applicable to the case of married persons; because it is undeniably important that, in the marriage state, the most perfect confidence should exist between the parties; and, they say, this can scarcely be expected, if either is liable to be called upon for a disclosure of confidential communications. This argument, though certainly not without weight, seems scarcely sufficient to establish the propriety of the exception to the general rule of admissibility ; because the cases in which married persons would be called upon for such disclosures would, in all probability, be too few to have any assignable effect upon the happiness of married life; whilst, on the other hand, cases may not unfrequently occur in which valuable and unexceptionable evidence may be rejected by maintaining the exclusive rule. The question, however, is undoubtedly not without difficulty.
Great confusion has arisen, in treating of subjects of jurisprudence, in consequence of not distinguishing the question of the utility of any particular law, considered in itself, from that of its bearing upon the other laws which may happen to exist under an imperfect or technical system. To take an example from the case which we have been just considering, that of husband and wife :Suppose that the laws which regulate property are so imperfect that positive injustice is likely to be committed, in case they are strictly enforced, by obtaining the best evidence respecting the private affairs of individuals: this may be considered a strong additional objection against requiring the testimony of any witness who is almost necessarily admitted to the confidence of the party, as is usually the case between married persons. Or, to give a more striking instance:- According to the law of England, no charge of high treason can be established without the evidence of at least two witnesses. Now we have already seen that, so far as regards the immediate object of inquiry, nothing can be more absurd than any
limitation to the number of the witnesses. Yet, at the same time, we will not pretend to say that this very rule may not have been of service in protecting the lives of the innocent, and in checking the encroachments of arbitrary power; because, in former periods of our history, the law of treason was so ill-defined, and was often administered by judges and juries so servilely disposed, that
any rule which favoured the escape of the accused could not but be regarded as a public benefit. It is obvious that, in these, and all similar instances, one bad law becomes useful, only because it tends to prevent the execution of another. But it would be ridiculous on this account to ascribe to it any positive merit
. It would be a palpable absurdity to contend, generally, that the
execution of the law is a public evil, and that, therefore, it ought to be the object of rules of evidence to prevent the discovery of the truth. On the contrary, it must be assumed that, in all cases, the object of the legislator is the execution of the law, and that every rule of evidence is advantageous exactly in proportion as it tends to effect this object; and if any law is so bad that its execution is found to be an evil, this is a reason for altering the law, not for maintaining a bad rule of evidence. At the same time it must be admitted, that if, for any reason, it is impracticable at once to alter the law, this affords a good reason for delaying the amendment of the rule. But it should always be recollected, that a bad rule of evidence is only useful so far as it affords an opportunity of evading a bad law; that its effect is, in fact, precisely the same as if a prisoner were allowed a certain chance of escape, either by lot, or in any other mode perfectly without reference to the merits of the case.
We are the more anxious to insist upon the necessity of making this distinction, because substantial improvements in our law are too often resisted by arguments similar to those to which we have just adverted. Suppose, for example, it is proposed to repeal some rule of law which gives the accused a chance of escape, on grounds entirely independent of the merits of the case, such as that which renders a clerical error in an indictment fatal to the proceedings : an argument is sometimes raised against such an amendment, founded on particular cases of oppression recorded in our history, where it is presumed the rule in question was, or might have been, beneficial. To such an argument it may always be replied, either that the law no longer permits such instances of oppression, or, if that be not the case, that more direct and effectual means ought to be taken to prevent their recurrence. similar error is to be ascribed the frequent application of the term merciful to laws, with reference, not to the apportionment of the punishment, but to the facilities which they afford for the escape of the accused. To style a law merciful, because it affords to all prisoners indiscriminately a certain chance of escape, is an abuse of language. There is as little mercy to the public in allowing the guilty to escape, as there is to the accused in punishing him when innocent. According to this application of the term, that system of law is most merciful,
under which the innocent man has least chance of redress for injuries, and which affords the smallest protection to our persons and property.
There is one remaining class of exclusions, which is too important to be passed over without notice. We refer to all those cases in which any evidence is excluded, in consequence of rules of law which render some particular evidence conclusive. If the law directs that evidence of a particular kind shall be considered con