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clusive, this is in effect to exclude all additional testimony on the subject. . After what has been already said, it is scarcely necessary to add, that the tendency of all such rules is injurious to the ends of justice. It is impossible for the legislature to point out beforehand, by any general rules, what testimony is worthy of belief. For as we have seen that no class of witnesses is so wholly unworthy of credit, that their testimony may not, under some circumstances, be serviceable in the discovery of the truth ; so, on the other hand, it may be safely affirmed, that no particular species of evidence, which can be specified beforehand by any general rule, is so excellent as to deserve implicit confidence. Suppose that a great number of witnesses of respectable character, and apparently disinterested, are perfectly clear and consistent in their testimony. Even in this strong case it is impossible to say that the fact is established with such perfect certainty as to justify the exclusion of all additional evidence. The witnesses may be proved all to labour under some common mistake or delusion; they may be shown to have some secret and strong interest in the event of the cause; they may be contradicted by more numerous or more respectable testimony; or their evidence may be proved to be inconsistent with known and indisputable facts. At all events, if truth be the real object in view, it must be most inexpedient to compel the judge to shut his ears against a part of the evidence, when that evidence may be serviceable, and cannot possibly be injurious to the ends of justice. Yet, under the technical system established by the law of England, numerous cases of this kind will be found to exist; for a detailed account of which we must refer our readers to Mr. Bentham and his editor.
There is one case in which it may, at first sight, appear neither unreasonable nor inexpedient that evidence should be declared to be conclusive by an act of the legislature. There are some offences which it may often be difficult to bring home to the perpetrator by satisfactory evidence, although it may be comparatively easy to prove the commission of acts intended, in all probability, to facilitate their perpetration. Such is the case when it is only possible to prove against the accused the manufacture or possession of certain tools or other articles evidently calculated to aid in the violation of the law. It may be contended, that proof of these acts may, with propriety, be declared to be conclusive evidence of the commission of the offence, and that there is no hardship to the accused in such a regulation, provided he has previous notice of its existence, and provided the act so declared is wholly unnecessary, except for a guilty purpose.
It cannot be doubted that it may often be expedient to prohibit certain acts, innocent in themselves, with the view of more casily or more certainly preventing the commission of crimes. But it remains to be shown why this object may not be effected in a more simple and reasonable manner, by at once declaring such acts to be offences in themselves, rather than by deeming them to be conclusive evidence of other offences, which may or may not have been really committed. Such is the more natural and reasonable course, and the one which has usually been adopted by the legislature. When, for instance, it was thought proper to give the Bank of England the exclusive privilege of manufacturing paper with a particular water-mark, the manufacture of such paper by other persons was not declared to be conclusive evidence of forgery, but it was very properly prohibited as a distinct offence. And not only is the other mode of proceeding less simple and reasonable in itself, but it is calculated, in son cases, to cause offences of a very different complexion to be confounded together, and thus to give rise to improper legislation. When, for instance, the Scottish Parliament of William and Mary thought proper to pass an act declaring the concealment of the birth of an illegitimate child to be conclusive evidence of infanticide--if this rule had been observed, and the bill had been differently worded, so as to express directly that the concealment of the birth should be a capital offence, it is scarcely possible to believe that the injustice and cruelty of the law would not have become sufficiently glaring to ensure its rejection.
We have now discussed, as fully as our limits will allow, the expediency of most of those rules by which evidence is excluded from our courts of law. We have seen that these rules are in general ill calculated to promote the discovery of the truth, or to serve the ends of justice; and we have endeavoured to prove that the general rule which ought, with very few exceptions, to prevail on this subject, is the universal admissibility of evidence; leaving it to the judge or jury to form a due estimate of the value of the tes timony, according to the peculiar circumstances of each case. We have seen also that the English law of evidence is very
far removed from this simple and intelligible principle, and that its rules are utterly inconsistent with each other, and irreconcilable with reason or justice. The impolicy of the present system can no longer be denied, as attempts have frequently been made to remedy its acknowledged evils by legislating for particular occasions, or in favour of particular classes of witnesses. But experience has proved that, though these acts of petty legislation may have alleviated the inconvenience in some instances, they have operated but as a very imperfect remedy, and have served to render the different parts of the system still more inconsistent and contradictory than they were before. In short, the necessity for these very numerous exceptions has been the best possible practical proof of the impolicy of the general rule.
It is to be hoped, therefore, that the time is approaching when the whole subject must be brought under the consideration of the legislature; and when it will be found necessary to sweep away the numerous absurd and inconsistent provisions with which this branch of our law is loaded, and to legislate anew upon some rational and uniform system. It is difficult to conceive a case in which an important measure of legal reform could be effected with greater ease and security. Little more would be necessary than to repeal a variety of useless and mischievous rules, by which evidence is excluded from our courts of justice. And it is not the least recommendation of this simple reform, that it would not only contribute essentially to facilitate the inquiry, but that it would also render the administration of the law more consistent with the ordinary notions of justice entertained by the public; and would put an end to many of those glaring and offensive cases, in which the due course of law is obstructed, and justice openly denied, in consequence of some technical rule which, to ordinary minds at least, appears to have no bearing upon the merits of the cause.
An objection is often made against proposals for the reform of the law, especially by members of the legal profession, on the ground that the different parts of the system are so connected together, that it is difficult to make any alteration in one branch of it without materially interfering with another. And on this ac.. count, it has been said, the effect of legal reforms can never be duly appreciated, except by persons of great legal learning, and their execution ought to be entrusted only to the most cautious hands. The present proposal seems scarcely liable to this objection, relating, as it does, simply to the best means of inquiring into the state of the fact. The question, therefore, is one which requires no stock of legal learning, but is in all probability more likely to be properly understood by any intelligent person, well acquainted with human nature, and accustomed in practice to form an estimate of human testimony, than by a lawyer, habituated to the technicalities of our courts. The legislature and the public will do well to consult their own reason, and form their own judgment, upon the subject, unbiassed by the dicta of judges, or by the authority of rules of law, which have been handed down from bar
Let us, however, not be misunderstood, as desirous of throwing any unmerited stigma upon the members of the bar, or, above all, as disposed to undervalue the services of those eminent legal reformers who are to be found in the profession. It is one of the most encouraging signs of the present times, that lawyers are in general beginning to canvass questions of legislation with more enlarged and liberal views; and that there are to be found amongst them individuals of great legal learning and general information,
who are prepared to devote their energies to the support of the great cause of legal reform. And we cannot but think that Mr. Bentham has been a little too unsparing and indiscriminate in his censures upon the members of the profession.
We are quite willing to admit that Mr. Bentham has conferred a great benefit upon the public, in demonstrating the interest of lawyers in promoting delay and expence. We have no doubt that the defects of our law may in a great measure be ascribed to this source, and we think it of great importance that this fact should be distinctly made known to the public. Keeping this object constantly in view, and having a strong conviction of its utility, Mr. Bentham has, perhaps, in some instances, gone too far, in ascribing that to sinister interest and deliberate design, which was really to be attributed to ignorance or mistake. He seems also, in some cases, to have been not sufficiently guarded in the use of language, in attributing the conduct of judges and lawyers to corrupt motives, as they are commonly termed ; that is to say, to motives of direct pecuniary interest. It is one thing for a judge to make a rule for the purpose of putting a sum of money into his pocket; another, if he performs the same act for the sake of promoting the interest of the class amongst whom he lives, or with the view of obtaining their good opinion, or avoiding their censure.
In the one case, the motive is strictly selfish, in the other it is social, and may sometimes be opposed to the private interest of the individual ; at all events, it is only necessary that its scope should be more widely extended, in order to become an effectual sanction for good conduct. There is, therefore, a manifest distinction between the two
In pointing out this distinction, however, we have no wish to represent the one motive as less injurious in its consequences than the other. On the contrary, we believe that, in a highly civilized country like our own, greater danger is to be apprehended from motives to misconduct, in proportion as their evil tendency is less glaring; and there is, perhaps, no one circumstance which has contributed in a greater degree to the injury, both of our legal and our political institutions, than the tendency of particular classes of persons to frame for themselves a standard of morality distinct from that which ought to be the rule of their conduct as members of the community. Individuals, even of the least selfish characters, are too apt to sympathise with, and promote the interests of their own class, in preference to those of the public at large. A judge, who would reject a bribe with indignation, would yet perhaps enforce a rule for the benefit of the Bench or the Bar, though it might be productive of infinitely greater evil to the suitors in the shape of delay and expence, than many acts of direct corruption. And a statesman, who would scorn to prefer his own selfish in
terests to those of the public, will yet feel no reluctance in avowing his determination to support the interests of the order to which he belongs. These instances will be sufficient to explain our meaning. We regret that.Mr. Bentham should not have pointed out this distinction with greater clearness, not only for the sake of showing the real nature of the obstacle to improvement, but also lest his readers, when they hear a class of persons of acknowledged respectability and integrity charged with corrupt conduct, should be led to distrust the reasoning from which such results are obtained.
In conclusion, we must again warn our readers that we have attempted only to give an outline of a small part of Mr. Bentham's most valuable work; and we shall rejoice if our remarks shall induce them to refer to the original for more full and accurate information upon this important subject.
ART. II.-HISTORICAL ILLUSTRATIONS OF THE
“Now it is to be observed that oftentimes, for the better understanding of our bookes, the advised reader must take lights from our historie and chronicles.”_Co. Litt.
No. I.-THE JUDGES.
The relation between jurisprudence and history is almost as intimate as, in medicine, the connection between the symptoms and the remedy. Without a knowledge of the circumstances under which a law was enacted, and to which it was originally applied, it is impossible to form an opinion upon its character and utility, or duly to estimate its application to present circumstances. It is, therefore, not only an amusing and interesting, but likewise an instructive study, to trace the history of our laws to their source, to develope the motives which led to their enactment, to study their original application and effect, and to examine their operation at various periods of our history. Closely connected with the progress of our jurisprudence, is the character of those by whom the laws have been administered.
The character of the great officers of justice in this country has varied strangely with the varying habits and feelings of the times. The ermine of our modern judges is seldom soiled by the touch of the slanderer; but, in former ages, the Bènch was but too frequently loaded with corruption and impurity. If we may believe the author of the “Mirror of Justices,” who is said to have written in the reign of Edward I., there were almost as many judges as