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nishment, which is sought to be inflicted, is fine and imprisons ment, or death.
Though no line of demarcation can be drawn to any useful purpose, as a guide in evidence, between judicial and other facts, or between judicial facts, according as they may be the materials of civil or criminal proceedings; nevertheless, two classes of facts exist, with a broad and tangible division, whatever neutral space may lie on either side. A clear observation of this boundary must be, in many cases, the only proper test of the degree of credit rationally due to inferior sorts of evidence. Under certain circumstances, it founds even at present the most plausible, as (with better measures and facilities of no difficult adaptation) it might be raised into one of the safest and most justifiable principles of exclusion. There are deliberate acts and events of regular recurrence on one hand; there are on the other, injuries, accidents, and acts which must be done on a moment's spur. This plain distinction has been very partially attended to, and professedly only in one direction; that of straitening the general rules by additional restrictions in certain cases of the first class, seldom, if ever, in that of relaxing them under the last; except where, as has been already observed, necessity has been allowed occasionally, but most imperfectly and capriciously, to break in upon the strictness of incompetency in aid of the public peace. A prudent legislator would marshal the corresponding facts under twogreat classes :- 1. Those which depend upon voluntary disposition and contract. 2. Those which depend upon compulsory or accidental causes, beyond the control of the party to be affected by them, as principally, trespasses and crimes. Having done this, he would give efficient notice of the precautions which he requires to be taken under the first division, and provide opportunities for complying with his requisition. After such arrangements were once recognised, whoever, instead of being armed with the appropriate guarantee, should, without special cause, resort to inferior evidence, would justly fix on himself whatever objections appertain to the guest that forgets his wedding garment. Besides, with the view of encouraging that degree of caution which it is the interest, and therefore the right, of a community to exact, there is nothing unreasonable in saying, that a party who has been accommodated with the knowledge and the means of giving to society a specified degree of security for his legal title, shall not, through perplexities of his own creating, make others partners in the consequerces of his own folly. Courts of justice exist for the common benefit, like the parish pump and county dispensary; yet the applicants in one case, is expected to bring a bucket, not a sieve ; and in the other, a prescription which the servant asked to make it up can read. So every man is bound to get his cause into a state fit for adjudication ; least of all, not to tangle the skein bimself, and then call on the public officer to untie his knots. A country is a great insurance company, which undertakes only against certain risks, and in the use of ordinary prudence. There are no rights, however originally clear, but what may be lost by mismanagement, or waived by negligence: it must be so under any system, unless society will resolve into one eternal committee of litigation, and carry the play of the Plaideurs into real life, for the benefit and torment of each other. Half-a-dozen Mr Bruce's would want a court of Chancery for themselves.
However, let us suppose more to have been done in the way of preappointing and preserving evidence, than any legislature bas ever yet attempted, or any legislature can possibly perform. Were every third man turned into a notary, and were it made penal to go to sleep without a police-officer in the room, bundreds of facts, whose proof might be indispensable to the justice of to-morrow, would be as far as ever from being surrounded by the circumstances and witnesses of our choice. The business of a single day would shiver to atoms, in its effervescence, the pedant apothecary phial, where it was thus attempted to seal pature hermetically down. In cases of the first class occasionally, in those of the second constantly, the only evidence that justice can obtain, will be the oral testimony of such persons as bappened to be witnesses of the transaction, or evidence of a less satisfactory description than it would have been wise to stipulate for, in case witnesses and evidence were things to be had for asking for. As far as they will come when we do call,' there can be no dispute respecting the propriety of calling for the best. But when the dilemma is clearly made out to be, this or none :-Burely the force of imagination is more apparent than the force of judgment, in the negative alternative that all nations have preferred. It is worth while to remark briefly the facts, whether assumptions or consequences, attending either plan.
On the side of exclusion, rules of this kind imply two suppositions equally unjust: the first, unjust to the witness; the second, to the tribunal. To proscribe whole classes as unworthy of credit, is to misread and libel human nature: to conclude, that whenever evidence is treacherous, we must be deceived by it, is to stultify ourselves. Moreover, any particular set of disqualifications, invented in one age to bind the opinions and conduct of another, presupposes a prophetical infallibility, that (if absurd in any case) is particularly absurd, in relation to those moral quicksands, which change as society changes. The com
parative force of the religious sanction, as embodied in the form of a judicial oath, must have fluctuated in value at different times, as much as the grand larceny twelvepence of Henry I.'s exclusion; or as the evaluation of certain sorts of evidence, as equivalent to nothing, (supposing the calculation to have been true five centuries ago,) may become a mere incumbrance when charged as a perpetual mortgage on society, in the shape of an attempt to fix beforehand what varies according to circumstances that cannot be foreseen. A government might as well settle by legislation as constant qualities, the extreme points between which wages and prices shall be allowed to oscillate. Queen Elizabeth's purveyor was just as much entitled to establish, for ever, by his book of rates, the minimum at which a bushel of wheat, or a yard of broad cloth, should be sold, as her ChiefJustice pretend to have discovered universal propositions concerning the limits of human credit. This is the real incompetency.
But the truth is, that methods of this character are at all times essentially unfit for the purpose which they affect the administration of substantial justice. They are abdications, or rather forfaulters, (it is the better word,) of the real royalty of rightful tribunals, by a refusal to investigate, in the only way in which it can be thoroughly investigated, the causes that they yet venture to decide. Iron and unbending rules are the last expedients to which baffled Patience and Sagacity fly in their despair; for Synods of Dort and Savoy conferences, giving us subscriptious and articles of faith; and, where to satisfy and convince has been found a hopeless project, seeking to cover up all difficulties and doubts with the peace and silence of an external uniformity. Windham properly described general regulations that were to supersede all individual discrimination and forbearance, as things which nothing but an unavoidable necessity could justify; comparing them to the mill, which, with equal indifference, would grind either the miller or his corn. With Mr Bentham they are a sbaving machine, which clears away at once all protuberances, nose as well as beard. The folly is, that in the present instance, we are volunteers. These flaws and jeofails are not nature's doings, but our own. No overruling difficulties call for such a compromise ; and the four-pronged instrument, whose every stroke may tear up our flowers and weeds together, is only a sort of lazy tongs, to save ourselves the trouble of weeding with the hand. Meanwhile, no table can be constructed, furnishing even a guess at the extent to which the promises contained in the great body of the law are neutralized, falsified, and repealed, by
the demand for their fulfilment being weighed down by a burden of unnecessary proofs.
Reverse the picture: Suppose the present disqualifications to be repealed, there is nothing to take for granted, but such qualities in the tribunal, and such arrangements in conducting the examination, as are easy to be obtained, and as ought always to exist, in order to confine, within a very limited range indeed, any possible disadvantages that the alteration might introduce. Lite admits no greater certainty than is to be derived from the just exercise of our faculties. With this security, we shall be as safe as God has meant and enabled us to be. If, after comparing the sanctions for truth, with the temptations to falsehood, arising from character and circumstances, of any given wit. ness, a tribunal may still err, it will at least have the satisfaction of having taken the only reasonable means of avoiding error. It must still be better to have trusted to the known, than to the unknown; and, according to the prayer of Ajax, to perish in daylight than in the dark. In thus throwing our halfopened window entirely up, and letting in the sun, nothing is assumed beyond this, that it is with causes as with men-and that the dishonest only can be losers by being searched. Nothing is assumed for the witness, except that, as a human being, he is governed by the principles which comprise all our knowledge of the springs of our common nature. Nothing is assumed of the court, except that it is competent to the discharge of its duties. Nothing of the mode of procedure, except that it takes the natural cautions for extracting truth. Panic terrors may mystify any question ; but considering the task which all tribunals that are engaged in the administration of justice have already to perform, the dangers apprehended from the additional sagacity that would be required of a jury, or from the additional discretion that must be confided to a judge, are such as might be more than guarded against, by a few precautionary arrangements. If the camel can indeed carry its present burden, this will not be the supplemental straw which is destined to break its back. In the first place, witnesses of this description would not be brought forward to load or taint a cause which supplied other witnesses of a higher order; therefore there is little fear of any embarrassment, from a great addition to their numbers. Next, were a witness branded with such suspicions, the only, or principal witness in the cause, there can be as little risk that a jury would extend to him a greater degree of credit than they found at last they could not possibly withhold. The exaggerated alarms entertained at this sort of evidence, are the strongest guarantee against our being misled by it. In this way, the rules of exclusion turned into
rules of suspicion, would become most valuable guides : As such, Cobbett ought to have the drawing up a register of them, of which the Sheriff should be bound to leave a copy with every freeholder on his list. Should there remain complicated and ambiguous cases, which these observations may not reach, reserve them for some other tribunal, or raise the constitution of this, till it be made capable of scrutinizing and comprehending whatever considerations are necessary to justice. To beat down the evidence to the standard capacity of the jury, instead of raising the jury to the nature of the evidence, is cutting the statue to fit the niche, and not the niche to hold the statue.
In respect of the aid which it is one of the most important parts of the office of a judge to give a jury, both by his opinion and control, there is no reason, either in the amount or nature of the evidence that would flow in upon the removal of the present absolute incompetencies, to suppose that the same salutary discretion which the court has always exercised, in its analysis of the part of the evidence hitherto admitted, would not be sufficient for the purposes of justice, when extended over the whole. There can be no objection, however, to investing the judge with a farther latitude over this new-imported portion. Rossi's apprehension of the effect of such proofs as would be delusive oftener than directory, or, as were too feeble to make up for the trouble of taking them, would be anticipated by this power of rejection, no longer a compulsory blindness, but a judicial act, casting out of the crucible the rubbish that supplied an ore too scanty or too base. There are checks in abundance to prevent the possibility that such a power could be abused, whilst powers much more delicate and dangerous must be left with every court. The suspicion that denies a judge the degree of credit implied in the execution of this additional authority, supposes him alike incapable and unworthy of his office. Undue suspicion is as foolish as undue confidence. Entire confidence, –and no rules are necessary. Entire suspicion, and they are without end. Try what we may, no novelty can be so unreasonable as our present course; for greater political contradiction can scarcely be imagined, than intrusting a court (however constituted) with the adjudication of causes, and then declaring the necessity of starving, into a manageable shape, the evidence which these causes properly supply.
The exceptions which, under the imperious force of some pressing necessity, have cut deep into these exclusionary rules, have naturally gone by far the deepest into that of interest; much the most important of them all. The present confusion between the rule and the exceptions is often so inextricable,