narrator find the task of framing an accurate
report of a conversation from his unaided
memory! But witnesses are rarely, in a moral
sense, disinterested. They make themselves
partisans; their memories are unconsciously
acted upon by their desires; and they succeed
all the better in misleading others by having
first misled themselves; so that their perversions
are given out with the air of truth.
This disposition is so general, that the practice
of our courts has always been to treat a wit-
ness as the partisan of the side by which he
is called, in order to guard the administration
of justice against the error arising from such
a state of things. The best safeguard,
however, has been hitherto rejected; namely,
the hearing of an opposite partisan; and
judging between the two, or correcting the
testimony of each by that of the other,
which is oftentimes a very easy task. Yet
the circumstances of the case may be such
and frequently are such as to furnish no
other partisan on the opposing side, but the
principal himself.

But although the instances to which we
have referred are striking; yet a little reflection
will show that the most oppressive cases
do not occur in court; for the special defect
of the law under consideration, actually
prevents the cause being brought there.
Suppose a plaintiff has, from time to time, supplied
a defendant in person with goods at his
shop; no one but the two parties being present.
The defendant refuses to pay. What is, or
rather what was, to be done? The plaintiff,
devoid of witnesses, could not be heard to
testify in his own case; nor could he put the
defendant into the witness-box to admit the
facts. If the amount were very large, he
could go into a Court of Equity; and, by an
expensive proceeding, called a Bill of
Discovery (the cost of which always fell on
himself), compel the defendant to answer certain
questions on his oath; but all this was done in
private and in writing. The defendant had
the aid of lawyers to prepare his answer; and
experience has, for ages, established the fact,
that very few defendants ever injured their
defence, however much they may have damaged
their conscience, by what was done upon a
Bill of Discovery. What a strange perversity!
On one side of Westminster Hall the doctrine
was, that such is the inherent influence of
interest over truth, that the most unlimited
power of cross-examination before a public
audience—where questions followed in such
rapid succession that falsehood could have
but little time for the task of fabrication, and
where, consequently, the danger of contradiction
was imminent—was insufficient to make
the evidence of a party concerned worthy
of trust. Yet, you tell the plaintiff that
he may go to the other side of the Hall,
and there try the hopeful experiment of
extracting the truth without any of the aids
of open trial; but, on the contrary, under
the most favourable circumstances, in aid of
colouring or falsification;—namely, deliberation
and the aid of a clever special pleader.

Such, however, is the inertness of society,
that, although this absurdity was exposed to
contempt nearly two centuries ago by the
sarcasms of Butler, it has lingered up to the
present day. It even yet remains to be seen
whether or not it has received its death-blow.
"Does not," asks Hudibras,—

"Does not, in Chancery, every man swear
What best makes for him in his answer?"

In this couplet—as throughout the whole of
the scathing attack on lawyers and the
administrators of the law of which it forms a
part—we may be sure that the poet struck at
none but well-known abuses, felt and
appreciated by every reader. None other would
have suited his purpose.

It is remarkable, with how little debate
in Parliament this great change was
accomplished. Perhaps, if the attention of Members
of the House of Commons had been called to all
the consequences of the bill, it might not have
passed so easily as it did. Its operation on
Election Petitions will, probably, startle some
who refrained from opposing it. Suppose, in a
case in which bribery is charged, the sitting
Member be himself called. It is quite true
that if a question—the answer to which might
tend to criminate himself—is put to him, he
may decline to answer it; but he must decline
on that express ground, and it must appear
also to the committee that the question has
a tendency to criminate him, before they can
admit the excuse. But what will be the
practical effect on his case if he takes this
course?  It will prove that he has something
to conceal; and although such evidence would
not suffice of itself to establish a charge of
bribery; yet, in giving point and weight to
other testimony, it will often make all the
difference between victory and defeat.

"This may help to thicken other proofs
That do demonstrate thinly."

A complete history of the practice of courts
of justice at home and abroad, in rejecting
witnesses on the ground of pecuniary interest,
or on that of connexion by blood, marriage, or
service with a party to the suit, (for each of
these relations has furnished ground of
disqualification), would throw great light on the
state of veracity in different ages and countries.
Mr. Phillimore's "History of the Law of
Evidence" is a valuable work, replete with
sound learning, the fruit of wide research;
but it is ill-digested, and often sins against the
first principle of good writing, which requires
above all things that what a book professes to
teach, it should not presuppose its readers to
be acquainted with already. The student,
however, who will pursue his object, though
the path be sometimes rough and thorny, may
gather much instruction from Mr. Phillimore,
and will often be rewarded, amidst much
which is obscure, and more which is unwisely