CHAPTER II. Design of this chapter. ELEMENTARY RULES FOR CONDUCTING THE EXAMINATION § 620. In the preceding chapter the main object of this work was brought to a close. The final chapter, at which we have now arrived, will be devoted, not to law or practice, but to certain rules for the guidance of advocates in dealing with witnesses. And if to readers experienced in such matters much of what follows appear very obvious and elementary, they should remember that it is not for them this chapter was intended (a). (a) This chapter being designed solely for those whose forensic experience has either not commenced, or is very limited, we may perhaps be excused for inserting the judicious advice given to young advocates by some eminent foreign writers. "A young man ought to present himself with an honest assurance and plead with firmness, but with modesty in his language and demeanour. He should avoid the affectation of fetching things from too far, and should not wander from his subject. If he demands a favourable hearing, let him do it with dignity, and not in a rampant tone. He ought neither exalt himself too much, nor humble himself too much, and the less he can manage to talk about himself the better. If either the manner or matter of his discourse affords room for criticism, he should bear it patiently. The best works are subject to that, and a young man, especially, must not flatter himself with being all at once above paying this tribute, from which even those who have grown old in the career are not exempt." Histoire abrégée de l'Ordre des Avocats, par M. Boucher d'Argis, ch. 11. The reader will find this in M. Dupin's work, entitled "Profession d'Avocat,- Recueil de Pièces contenant l'Exercice de cette Profession." A good warning is likewise to be found in the following: "Alii memoriæ auditorum consulturi, solis inhærebant answered. § 621. There is a very prevalent notion that all dis- An objection cussion or comment on the present subject must necessarily be useless, if not worse. This seems to have arisen partly from a superficial view of the matter, and partly from misapprehension of a passage in Quintilian, in which he is supposed to intimate his opinion that the faculty of interrogating witnesses with effect must either be the result of natural acuteness, or be acquired by practice. If the Roman critic meant, what he certainly does not express, his language being "Naturali magis acumine, aut usu contingit hæc virtus," that no rules can be laid down. for the guidance of advocates in this respect, he was most inconsistent with himself; for in the very chapter from which the above passage is taken (b) is found a series of rules for that purpose, which have been admired in every age, and are recommended by the highest authorities in our own law (c). The present chapter is in truth chiefly founded on them, as the constant references will shew. It would indeed be strange if, while perfection in all other arts and sciences is attained by the combination of study and experience, the faculty of examining witnesses with effect, which depends so much on knowledge of human nature, and acquaintance with the conclusionibus, easque modo per caussarum genera, quæ vocant, modo per quæstiones disponebant: modo se præclare suo functos officio existimabant, si ad singulos titulos aliquot casuum leviter enucleatorum centurias proponerent. . . Illi ad memoriam omnia referebant, et si qui jejuna ista præcepta edidicerant, et ad singulas quæstiones ipsa compendii verba poterant reddere, eos aliquot casuum et quæstiuncularum myriadibus suffarcinatos, et phaleris ornatos doctoralibus, ablegabant in forum, strepitum his armis non sine horrore judicis daturos:" (b) Quintil. Inst. Orat. lib. 5, (c) 3 Blackst. Comm. 374; Ph. & Am. Ev. 908; 1 Greenl. Evid. § 446, Note (1), 4th Ed. "Examination," Examination of witnesses fa cause of the interrogator. resources of falsehood and evasion, and must have been coeval with judicature itself, should be destitute of all fixed principles. § 622. The terms "examination in chief" and "crossexamination" are commonly applied, respectively, to the interrogation of witnesses by the party who presents them to the tribunal and by his adversary; the legal rules of practice governing both being, as has been shewn in the preceding chapter (d), mainly based on the principle that every witness produced must, in the first instance at least, be presumed favourably disposed towards the party by whom he is called. The very opposite is, however, often the fact; and accordingly in what follows the term " cross-examination" will be used in the sense of examination "ex adverso (e)," i. e. the interrogation by an advocate of a witness hostile to his cause, whether in form coming before the court as the witness of the advocate or of his opponent. § 623. In the former of those cases, i. e. in the intervourable to the rogation of witnesses favourable to the cause of the advocate by whom they are interrogated, the following is the advice given by Quintilian in the part of his work to which reference has been made:-"Si habet testem cupidum lædendi, cavere debet hoc ipsum, ne cupiditas ejus appareat; nec statim de eo quod in judicium venit rogare, sed aliquo circuitu ad id pervenire, ut illi, quod maximè dicere voluit, videatur expressum; nec nimiùm instare interrogationi, ne ad omnia respondendo testis fidem suam minuat; sed in tantum evocare eum, quantum sumere ex uno satis sit (ƒ)." So, when the disposition of the witness towards his cause is unknown to the advocate,-"Si nesciet actor quid propositi testis dicitur) pedetentim interro Examination of witnesses whose dispo sition towards the interro gator's cause is attulerit: paulatim, et (ut unknown. (d) Supra, ch. 1, §§ 611, 612. 500. (f) Quint. in cap. cit. gando experietur animum ejus, et ad id responsum quod eliciendum erit, per gradus ducet. Sed, quia nonnunquam sunt hæ quoque testium artes, ut primò ad voluntatem respondeant, quo majore fide diversa posteà dicant, est oratoris, suspectum testem dum protest, dimittere (g)." In another part of the same chapter he adds,-" Illæ verò pessimæ artes, testem subornatum in subsellia adversarii mittere, ut inde excitatus plus noceat, vel dicendo contra reum, cum quo sederit; vel quùm adjuvisse testimonio videbitur, faciendo ex industriâ multa immodestè atque intemperanter, per quæ non à se tantùm dictis detrahat fidem, sed cæteris quoque, qui profuerant, auferat auctoritatem: quorum mentionem habui, non ut fierent, sed ut vitarentur." nation," or § 624. On the subject of "cross-examination," or "Cross-exami"examination ex adverso," the following celebrated pas- examination sages of the same author should be attentively studied (h). "ex adverso.” "In eo qui verum invitus dicturus est, prima felicitas interrogantis est extorquere quod is noluerit. Hoc non alio modo fieri potest, quàm longiùs interrogatione repetitâ. Respondebit enim quæ nocere causæ non arbitrabitur: ex pluribus deinde quæ confessus erit, eò perducetur, ut, quod dicere non vult, negare non possit. Nam, ut in oratione sparsa plerumque colligimus argumenta, quæ per se nihil reum aggravare videantur, congregatione deinde eorum factum convincimus; ita hujusmodi testis multa de anteactis, multa de insecutis, loco, tempore, personâ, cæterisque est interrogandus, ut in aliquod responsum incidat, post quod illi vel fateri quæ volumus, necesse sit, vel iis quæ jam dixerit repugnare. Id si non contingit, reliquum erit, ut eum nolle dicere manifestum sit: protrahendusque, ut in aliquo quod vel extra causam sit, deprehendatur: tenendus etiam diutius, ut omnia, (g) Quint. in сар. cit. (h) Id. 1o. Testimony false in toto. ac plura quàm res desiderat, pro reo dicendo, suspectus § 625. In dealing with examination ex adverso, we propose to consider separately the cases:-1°. Where the evidence of the witness is false in toto. 2°. Where a portion of it is true, but a false colouring is given to the whole transaction to which he deposes, either by suppres |