§ 811. Secondly; Suggestedness or Unsuggestedness. On this Bentham writes:(k)

"When a man delivers false testimony, what there is of falsification in it may be either of his own invention, or of the invention of some one else: either home-made or imported.

"Made at home or abroad, the inventor of it must have had a stock, a ground, composed of true facts to work upon.

"To the true man, knowledge of facts of any other facts than what are presented to him by his own memory, is of no use. Why? Because all true facts are consistent with each other; his facts being true, they cannot receive contradiction from any other facts that are so likewise.

"To the mendacious deponent, on the contrary, knowledge of other connected facts is indispensable: his stock of this sort of information cannot be too extensive, for his security against detection: it can never, indeed, be sufficiently extensive: because every true fact that has any discoverable bearing upon the case, presents a rock upon which, if unseen, his false facts, one or more of them, are liable to split.

"So they be but relevant, true and false information may be alike subservient to the purpose of the mendacious deponent: or rather, on the single condition of being relevant, truth cannot but be of use to him; whereas the use he can make of suggested falsehood will depend, not only upon its being well adapted to his mendacious purpose, but also upon its being better adapted than any which his own invention could, on that same occasion, have supplied him with.

"Upon this view, the importance of the quality of unsuggestedness appears already in its true light."

It is on this ground that leading questions which suggest a particular answer are so open to objection.

§ 812. Thirdly: Interrogatedness. That is to say, that the evidence shall be elicited by examination in the form of question and answer, instead of the witness being permitted to pour forth his own story in his own manner. The task of interrogation requires much experience. The practice in Company's Courts, I believe, is to allow the witness in the first instance to tell his own story, and then for the Court and parties to found any questions they please upon his statement. I prefer the plan of compelling a witness to answer questions in the first instance. When the story is made up, it is evident that the witness has a much easier task in simply

(k) Page 294,

giving an uninterrupted narrative, than in delivering himself of it in such order as his interrogator may choose. Time too is saved, if the witness be compelled to answer succinctly the question put to him, and he be not allowed to ramble into immaterial or impertinent statements. Bentham writes thus:(?)

"A mass of testimony, extracted from a man by the process of interrogation, will almost always be more or less different, in substance as well as in form, from the testimony of the same man on the same occasion if spontaneously delivered, without the assistance or control of any such operation. To the external security created by that process, corresponds, therefore, an internal security, afforded by the texture which, under the influence of that operation, the testimony itself has been made to assume. Nor is the case materially different, where, a mass of testimony having been delivered in the first instance without the aid of interrogation, the extractive force of that process is afterwards employed in adding to the original a supplemental mass.

"It is by interrogation, and not without interrogation, that testimony too general for use is brought down to individuality, and clothed with instructive circumstances: it is by interrogation, and not without interrogation, that indistinct testimony is rendered distinct-cleared from the clouds in which it has involved itself, or been involved.

"It is by interrogation, aptly and honestly applied, though not exclusively by interrogation, that testimony is assisted by information subservient to it in respect of correctness and completness. It is by the skilful application of this instrument that a mass of testimony, while left in possession of that degree of recollectedness which is necessary to correctness and completeness, is deprived of the quality of premeditatedness in a state of things in which the time demanded on pretence of recollection, might be but too apt to be employed to the purpose of fraud."

§ 813. Fourthly: Distinctness. On this point Bentham writes: (m) "Distinctness, like health, is a negative quality in the garb of a positive one. Health, in the natural body, is the absence of disease: distinctness in a body of evidence, is the absence of a most pernicious disease called indistinctness: a disease for which, as will be seen, under the natural system of procedure in its original simplicity, there is no place; a disease, which owes its birth in its most cases to the implanting hand of the regular bread-practitioner. Even when not planted by art, the seeds of it are attached as it were to the nature of written evidence: is vivá voce evidence, if for a moment it makes its appearance, interrogation, if admitted, drives it out the next.

"An article of testimony, so long as it is indistinct, may be neither general nor particular, and neither true nor false. Until subjected to that process, by which it may be ascertained whether the confusion in it be the result of honest weakness or of dishonest artifice, no indications, no decision, can be justly ground on it. It is worse than false evidence, it is worse than no evidence : for, from falsehood, when seen to be such, as well as from silence, indications highly instructive, may be, and are every day deduced: but from indistinct testimony, till it be understood to be tantamount to silence, nothing can be deduced."(n)

§ 814. The external securities for veracity Bentham thus classifies

1st. The fear of punishment.

2nd. The obligation of an oath (or affirmation.)

3rd. The fear of shame and infamy.

4th. Interrogation.

5th. The reception of testimony in a written form.()

(n) Bentham adds 'two other considerations which it is not necessary to do more than glance at here. First, Permanence; by which he alludes to the benefits which attend the practice of recording testimony: Secondly, Publicity; which is indeed a safeguard for the suitor, the witness, the Judge, and the State.

(0) The question how far writing should be applied to all evidence is yet a moot one. In Courts of trifling original jurisdiction, it is perhaps better that the evidence should not be formally taken down, the Judge's note sufficing. The object of writing is to secure distinctness and permanence. But it is very open to abuse: inasmuch as it leads to vexation, delay and expense, where too voluminous a record is required. Instance the repetition of recorded examinations in Mofussil Criminal Cases; where the record consists of the written examination of the witnesses before, 1st, the Police; 2nd, the Magistrate; 3rd, the Subordinate Court; 4th, the Session Court. Bentham's remarks are so cogent that I need not apologize for giving them in some detail. He says:

"Causes of a certain degree of simplicity—and happily the great majority of causes are within this desirable degree,-may, supposing probity on the part of the judicatory, be tolerably well decided without writing; because decision may follow upon evidence before the memory of it in the breast of the Judge is become incorrect or incomplete. In a cause involved in a certain degree of complication, the use of writing is in a manner necessary to good judicature. But civilization must have stopped far short of its present advanced stage, if complicated causes had not been susceptible of just decision as well as simple ones.

"If, under natural procedure (as in the small debt courts,) causes are in general sufficiently well decided without the comitting of the evidence to writing, it is because the description of the case is there so extremely simple: and even in these cases, security against mis-decision is sacrificed in some degree to the avoidance of vexation and expense.

"But though, in respect of their number, the causes simple enough to have been suffered to be decided in the way of natural procedure, constitute the most important class: yet, individually taken, causes in the highest degree complicated, possess, in general (so far as property is concerned) a proportionable degree of importance: witness bankruptcy causes and causes relative to testaments, in each of which property to the amount of millions may be at stake upon a single cause.

"If such be the importance of writing even on the supposition of undeviating probity on the part of the judicatory; its importance is in a much higher degree exemplified in the character of a security against improbity; and in particular in the character of an instrument of extensive and lasting publication.

"As it is only by writing that the grounds of decision can be made known, beyond the narrow circle composed of the few by-standers; hence without writing there can be no tolerably adequate responsibility on the part of the Judge. But for writing, a single

6th. Notation, by which he means making the written evidence a solemn record.

9th. Investigation, by which he means the discovery of one piece of evidence through means of another, or of information not strictly evidence.

Judge would decide on every occasion has pleased; an oligarchical bench of Judges, as they could agree; a democratical bench,-(as indeed is too apt to be the case, notwithstanding the benefit of writing)—a bench, howsoever composed, if the number be such that the idea of individual responsibility is destroyed, would decide according to the caprice or passion

of the moment.

The use of registration he says are these:

"To the several parties, on the occasion of the suit in hand, the use of them, in a direct way, is already evident.

So, in a less direct way, in respect of the check, they apply to abuses in every shape on the part of the Judge: corruption, undue sympathy, antipathy, precipitation through impatience, delay through indifference and negligence.

"With a view to appeal on the occasion of the suit in hand, the service capable of being rendered by such registration to both parties, (and especially to him who is in the right), by the complete and correct indication of all grounds of appeal, justly or unjustly alleged, seems alike evident.

"In respect of future contingent suits, considered as capable of being produced, prevented, or governed by the result of, or previous proceedings in the cause in hand,--suits considered as liable to arise between the same parties, or their legal representatives,-the utility is alike manifest.

"In respect of future contingent suits, considered as liable to be produced by like causes, or to give birth to like incidents and occurrences, -causes as between other parties having no connection with those in question; the use of such registration in the character of a stock of precedents seems alike indisputable."

The abuses are thus pourtrayed :-

"If, on certain occasions, and in certain ways, it is capable of being employed as an instrument of distinctness, for giving that indispensable quality to a mass of evidence; on other occasions, and in other ways, it is but too apt to be employed in such a manner as to give to the evidence a degree of indistinctness, from which, but for the abuse made of this important art, it would have been free.

"The reason (meaning the cause) of this abuse is extremely simple. To the quantity of irrelevant matter, to which (under the spur of sinister interest) the pen of a writer is, on this as on so many other occasions, capable of giving birth, there are no determinate limits; nor yet to the degree of disorder, and consequent indistinctness, with which the whole mass made up of irrelevant and relevant matter jumbled together, may be infected; and the same mischief which thus, to an infinite degree, is liable to be produced by mala fides on the part of the suitor or his professional assistant, may (though in a less degree) be produced by mere weakness of mind on either part. Whereas in the case of viva voce testimony extracted by, or substituted to, interrogation-no sooner does an irrelevant proposition make its appearance, than the current of the testimony in that devious direction is stopped, and the stream forced back into its proper channel.

"When writing is employed in the extraction, and thence in the delivery, of the testimony; time applicable, and but too often applied, to the purpose of mendacious invention is a natural, and practically (though not strictly and physically) inseparable result; as will be seen more particularly in its place.

"In the same case, a result, no less closely connected with the use of writing than the former, is the opportunity afforded by it for receiving mendacity serving information from all sorts of sources; a danger, from which viva voce deposition, though by no means exempt, is more easily guarded.

CHAPTER XLV.

CIRCUMSTANTIAL EVIDENCE.

§ 815. With reference to Indirect or Circumstantial evidence, all that has before been said on that head, and the whole of the Lectures on Presumptions must be remembered by the Judge. There are some remarks which must be made in order to aid him in appreciating this class of evidence as opposed to the class of direct evidence.

§ 816. It is often said that circumstantial evidence is in its nature inferior to direct evidence. Thus we hear much declamation about the danger of convicting on circumstantial evidence. This is a

"On the other hand, where writing is employed for the delivery and extraction of evidence; the superior facility which it affords for planning the means of deception, is accompanied and in a considerable degree counteracted and compensated on the part of the adverse party and the Judge, by a correspondent quantity of time (and thence a correspon dent means) applicable to the purpose of scrutinizing the supposed mendacious testimony, and so divesting it of its deceptious influence.

"Hitherto we have considered the art in no other light than that of its capacity of being made subservient to the purposes of that species of injustice which is opposite to the direct end of justice: subservient to deception, and thence to mis-decision.

"But the grand abuse, and that in comparison of which what has hitherto been brought to view shrinks almost into insignificance, is the perverted application that has been made of it to the purposes of that branch of injustice which stands opposed to the collateral ends of justice: of that branch of injustice which consists of fictitious delay, vexation, and expense, heaped together for the sake of the profit extractable and extracted from the expense.

"In a word, it is in the art of writing thus perverted, that we may view the main instrument of the technical system, and of all the abominations of which it is composed: an instrument by which the baneful system, wheresoever established, has all along operated and without which it could scarcely have come anywhere into existence.

"It is no pretence of something that has been written, or that might, could, er should have been written, that whatever portion of the means of sustenance has, on the occasion or on the pretence of administering justice, been wrung from the unfortunate suitor, has been demanded and received. Statements that ought not to have been made, have, to an enormous extent, been made: statements that required to be made, have been swelled out beyond all bounds; stuffed out with words and lines and pages of surplusage, oftentimes without truth, sometimes even without use. This excrementitious matter has been made up into all the forms that the conjunct industry of the demon or mendacity, seconded by the genius of nonsense, could contrive to give to it. Having by the accumulat ed labors of successive generations been wrought up to the highest possible pitch of voluminousness, indistinctness, and unintelligibility: in this state it has been locked up and concealed from general view as effectually as possible: in England it has been locked up in two several languages, both of them completely unintelligible to the vast majority of the people. Office upon office, profession upon profession, have been established for the manufacturing, warehousing, and vending of this intellectual poison. In the capacity of suitors, the whole body of the people (able or unable to bear the charge) are compelled to pay, on one occasion or another, for everything that was done, suffered, or pretended to be done, in relation to it: for writing it, for copying it, for abridging it, for looking at it, for employing others to look at it, for employing others to understand it, or to pretend to understand it: interpreting and expounding imaginary laws, laws that no man ever made."