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Truth-Telling in the Eighteenth-Century English Courtroom

Published online by Cambridge University Press:  28 October 2011

James Oldham
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Extract

Mirjan Damaška, in his 1973 comparative study of criminal procedure in the Anglo-American and continental traditions, asserts that “the continental non-adversary system of procedure is more committed to the search for truth than is the Anglo-American adversary system.” He reasons that the stronger procedural obstacles to truth-finding in the adversary system derive from a collective horror of convicting innocent people.

Type
Symposium: English Legal History in the Age of Mansfield
Information
Law and History Review , Volume 12 , Issue 1 , Spring 1994 , pp. 95 - 121
Copyright
Copyright © the American Society for Legal History, Inc. 1994

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References

1. Damaška, Mirjan, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Perspective, 121 U. Pa. L. Rev 506, 580 (1973).Google Scholar see also Langbein, J. H., The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985).Google Scholar

2. See Damaška, supra note 1, at 579–80.

3. Id. at 581.

4. See notes 111–12, infra.

5. See, e.g., Ekman, P., Telling Lies (1985)Google Scholar; Loftus, E., Experimental Psychologist as Advocate or Impartial Educator, 10 L. & Hum. Behav. 63 (1986).Google ScholarSee also the discussion of Bentham's and Evans's ideas, text accompanying notes 6–17, 27–34, infra.

6. The publication of collected works and papers of Bentham is a small industry, and the volume of work is daunting; on questions of evidence, however, Bentham is made accessible by William Twining's excellent book, Theories of Evidence: Bentham Wigmore (1985). Another useful recent work is Dinwiddy, John, Bentham (1989).Google Scholar

7. Twining, supra note 6, at 89.

8. Kant took the position that lying was morally wrong under nearly all circumstances. See infra note 111.

9. Twining, supra note 6, at 89, quoting Fried, Charles, Right and Wrong 59–60 (1978).CrossRefGoogle Scholar

10. Twining, supra note 6, at 90–91.

11. Dinwiddy, supra note 6, at 66.

12. Id. at 67. Dinwiddy adds that part of the explanation may be that, in Bentham's scheme as laid out in his Constitutional Code, “professional lawyers—the ‘whole train’ of whose occupation engaged them in a ‘perpetual endeavour to promote injustice’— would have been disqualified from becoming judges.” Id. at 68.

13. He did attack what he perceived to be the widespread practice of jury-packing; indeed, he devoted a treatise to the subject: Bentham, J., The Elements of the Art of Packing, as Applied to Special Juries, Particularly in Cases of Libel Law (E. Wilson, London, 1821)Google Scholar.

14. Dinwiddy, supra note 6, at 67.

15. See infra, text at note 26.

16. Dinwiddy, supra note 6, at 67.

17. The story is fully told by one of John Langbein's former students: Bodansky, Joel N., The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 Ky. L.J. 91 (1981–1982)Google Scholar. See also 1 Wigmore, J. H., A Treatise on the System of Evidence in Trials at Common Law 698–707, 709–16Google Scholar (sees. 576–77, 579–80)(1904).

18. Shapiro, B., “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence 187 (1991).Google Scholar

19. See Shapiro, supra note 18, 25–40, 220–41; Langbein, J., The Criminal Trial Before the Lawyers, 45 U. CHI. L. Rev. 263 (1978).Google Scholar

20. Reported in 2 Oldham, J., The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century 851, 1022 (1992)Google Scholar; also in pamphlet form as Two Actions, Between John Howe, Esq. and George Lewis Dive, Esq., Tried by a Special Jury, Before Lord Mansfield, at the Assizes holden at Croyden, on Wednesday the 15th of August, 1781 (hereinafter Two Actions) (G. Kearsley, London, 1781). The case is discussed in detail infra.

21. Two Actions, supra note 20, at 24.

22. Morning Chronicle, December 6, 1777.

23. Id., November 28, 1785.

24. See 2 OLDHAM, supra note 20, at 1066–77.

25. Id. at 1069–70.

26. Twining, supra note 6, at 61; see generally id. at 56–60.

27. Pothier, M., A Treatise on the Law of Obligations (Evans, W. D. trans., Small, Robert H., Philadelphia, 2d ed. 1839).Google Scholar

28. 13 Holdsworth, W., A History of English Law 467 (1966).Google Scholar

29. 2 Pothier, supra note 27, at 182.

30. Id. at 184.

31. Ekman, supra note 5, ch. 6 (“Dangers and Precautions”).

32. 2 Pothier, supra note 27, at 185.

33. Id. at 195–96.

34. Id. at 196–97.

35. See, e.g., 4 Pufendorf, S., Of the Law of Nature and Nations ch. II (“Of an Oath”) (Kennet, B. trans., R. Sare, London, 3d ed. 1717)Google Scholar.

36. 1 Atk. 21 (1744).

37. Id. at 46.

38. Id. at 44–45.

39. R. v. White, Leach 368 (1786). Another context in which the courts continued to encounter the question of a potential witness's understanding of the implications of the oath was that of the abused child who was the alleged victim in an assault or rape case. In R. v. Baxter, Lancaster, August 10, 1758 (2 Oldham, supra note 20, at 1397), the victim, Anne Worthington, was eight years old; she was allowed to testify after stating that she “knows the nature of the oath & the consequences of speaking false.” There was no age fixed below which children could not testify, “but the Reason and Sense of their Evidence is to appear from the Questions propounded to them, and their Answers to them.” Gilbert, G., Law of Evidence 147 (W. Owen, London, 3d ed. 1769)Google Scholar. According to Buller, “it seems to be settled, that a Child under the Age often shall in no Case be admitted; but after that Age, if the Child appear to have any Notion of the Obligation of an Oath… the Child shall be admitted to prove the Fact.” Buller, F., An Introduction to the Law Relative to Trials at Nisi Prius 293 (C. Bathurst, London, 2d ed. 1775)Google Scholar.

40. Gilbert, supra note 39, at 152.

41. Id. Later, of course, the importance of being able to cross-examine the absent witness came to be recognized as a critical justification for the hearsay rule, together with the fact that the common jury could not be trusted to evaluate properly hearsay evidence.

42. I draw these conclusions from the thousands of cases that I have examined from Lord Mansfield's trial notes and from the Old Bailey Sessions Papers. Only in a handful of occasions was any question raised about the oath, and when the question did arise, it was usually with regard to a child or a mentally unstable person.

43. See supra, text at notes 23–24.

44. 1 Atk. 21, 46 (1744). The “necessity” exception was frequently resorted to in order to admit an interested witness. See infra, note 69. The standard eighteenth-century books on evidence, however, do not mention the concept in connection with the hearsay rule. They do state that hearsay was acceptable in corroboration of other evidence. See Gilbert, supra note 39, at 153; Buller, supra note 39, at 294. Evans, in his disquisition on evidence, gives the hearsay rule careful attention. 2 Pothier, supra note 27, at 215–26. By 1806 (the time he wrote), the rule had acquired numerous exceptions, which he elaborates, though without any concern about the absence of the oath in those cases in which hearsay was admissible.

45. See Langbein, supra note 19, at 301–2.

46. I will not burden this article with more than a few examples. See, e.g., Lewis v. Watkins, London, December 20, 1781, 1 Oldham, supra note 20, at 568 (the references by several witnesses to what one Fuller said); Ledwith v. Catchpole, London, July 23, 1783, 2 id., at 1058 (Anne Reid's testimony about what Stevens said); R. v. Wilkinson, Middlesex, February 19, 1785, Id. at 1061 (Anne Ball's testimony about what Mary Jones said).

47. Middlesex, December 5, 1783, 1 Oldham, supra note 46, at 387. (The defendant was Richard Brinsley Sheridan, well-known playwright and member of Parliament.)

48. Middlesex, February 19, 1782, Id. at 651.

49. See 2 Oldham, supra note 20, at ch. 17.

50. 1 Burr. 391, 393 (1757).

51. 1 Vaughan 135 (1671).

52. Green, T. A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (1985), esp. ch. 6.Google Scholar

53. See the quote from Madan (whose book was first published in 1784, London), Id. at 307 (when sympathetic circumstances appeal to the jurors, “they forget their oath … and take it upon themselves to acquit the prisoner”).

54. See id. at 308.

55. See id. at 310–11. Green points out, however, that the institution of the trial jury— “more than any other institution within the administration of the criminal law”— “reflected the limits of power that authorities could bring to bear on those they ruled.” Id. at 313.

56. See, e.g., 3 Blackstone, W., Commentaries on the Laws of England 379 (University of Chicago Press 1979) (1765–69)Google Scholar (“The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law”); 4 Id. at 342–43 (“The trial by jury… is also the trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter”).

57. Green, supra note 52, at 297–98. See also id. at 295, 360, 363.

58. A Guide to English Juries 49–50 (Thomas Cockrill, London, 1682)Google Scholar. Barbara Shapiro points out that the Guide was a “party document” reflecting Whig views. SHAPIRO, supra note 18, at 71. This is true especially in the section of the Guide devoted to the grand jury and the entreaty that grand jurors “find the truth” (instead of merely probable cause), despite having heard only one side of the evidence. Compare the criticism of this idea by Sir James Astry, quoted by Shapiro at 76.

The oath itself was quite simple. Here is the version of the “oath of the jury of life and death” as given in The Office of the Clerk of Assize … Together with The Office of the Clerk of the Peace 45 (Henry Twyford, London, 2d ed. 1682): “You shall well and truly try, and true deliverance make between our Soveraign [sic] Lord the King, and the Prisoners at the Bar, whom you shall have in charge, and a true Verdict shall give according to your Evidence, so help you God.”

59. See 1 Duncombe, G., Trials per Pais: or, the Law of England Concerning Juries by Nisi Prius, & c. With a Compleat Treatise of the Law of Evidence 258 (T. Waller, London, 8th ed. 1766)Google Scholar. See also 1 Oldham, supra note 20, at 138–39; 2 id., at 989 n.l.

60. 1 Duncombe, supra note 59, at 258.

61. 9 Holdsworth, supra note 28, at 194.

62. Id. at 195.

63. Id. at 196.

64. Gilbert, supra note 39, at 122.

65. Middlesex, 9 December 1776, 2 Oldham, supra note 20, at 929, 1004; Id. at 929–30.

66. Id. at 929.

67. Leach 199 (1779).

68. 9 Holdsworth, supra note 28, at 194–95.

69. 6 Cobb v. Heybon, MS 1142, Harvard Law School (“Hollinsheds Reports”) fols. 565–68 (c. 1710). The case was an insurance action on a ship that was lost by allegedly having been captured at sea, and the plaintiff called the Master of the ship to prove that she was taken. The Master's testimony was objected to because he had taken out insurance on the ship and thus had an indirect pecuniary interest in the outcome. The MS reflects extensive arguments of counsel and commentary by the judges, but the case was adjourned with no resolution indicated. Counsel for plaintiff argued that the case was one of necessity, that it was no different than other circumstances, such as seamen testifying despite receiving wages from the shipowner, or from the prosecutor allowed to testify in a burglary case even though he collects ten pounds on conviction. These were countered by defendant's counsel by pointing out that seamen's wages do not create an insurable interest in the ship, whereas the Master is ordinarily part owner, and by the fact that the prosecutor testifies out of necessity “for he may be alone when robbed,” whereas the ordinary informer entitled to a penalty is not a competent witness. Another interesting example given for the plaintiff was the case of the action by the owner of goods against a common carrier for loss or damage to the goods, in which the porter who delivered the goods to the carrier is allowed to testify, “yet he may be under a Byass, for if he swears he did not deliver the goods, he is liable for his own neglect, if he says he has delivered them then he dischargeth himself & chargeth the carrier.” Chief Justice Parker seemed inclined against allowing the Master's testimony, differentiating the case from those put by plaintiff's counsel. The porter to the carrier gained no advantage from testifying that he delivered the goods; he merely saved himself from being sued in case he were to testify that he did not deliver, the goods (which he surely would not do as a witness for the owner of the goods). Seamen must testify when they are the only ones who can know about matters in dispute; the same is true of the prosecutor in the burglary case, and besides, not allowing him to testify would be “against the words of the statute.”

70. The exception was because, legally speaking, the husband and wife were one. But, as already noted (text at note 44, supra), even a spouse could testify against spouse in cases of extreme necessity (e.g. in cases of physical violence by husbands against wives – see Gilbert, supra note 39, above, at 137).

71. Interestingly, these connections to a party would be valid bases to strike a potential juror. See 2 Duncombe, supra note 59, at 378.

72. R. v. Lookup, 3 Burr. 1901 (1766), PRO/KB 21/39; 1 Oldham, supra note 20, at 262.

73. See, e.g., Freemantle v. Heming, London, November 20, 1761, 2 Oldham, supra note 20, at 1272; Poole v. Hewitt, Middlesex, February 19, 1771, Id. at 1291; Preston v. Foster, Middlesex, June 2, 1778, Id. at 1300.

74. London, March 5, 1778, 1 Oldham, supra note 20, at 328. Although the defendant won the verdict, Lord Mansfield wrote a note to himself that he had been misled by plaintiff's counsel, and he later realized that plaintiff was indeed entitled to recover. He therefore invited plaintiff to move for a new trial without costs, but instead, the parties referred the matter to arbitration. Id. at 330. For other commercial cases featuring testimony by close relatives, see Wheeler v. Shortney, Middlesex, February 21, 1764, Id. at 270; Vaux v. Whitfield, Middlesex, July 17, 1764, Id. at 271; Taylor v. Jefferies, Middlesex, June 27, 1770, Id. at 298; Legge v. Legge, Middlesex, December 5, 1776, Id. at 319; Holworthy v. Clark, London, June 14, 1781, Id. at 345; Myers v. Duck, July 3, 1759, Id. at 422; Delaval v. Saville, Middlesex, May 31, 1776, Id. at 615. In Perry v. Scholey, Middlesex, May 2, 1785, Id. at 396, plaintiff's only witness was plaintiff's close friend and companion who, with plaintiff, had captured a thief in Ostend per an agreement with defendant. The witness appeared to stand to benefit financially by a favorable verdict, but no objection was made to his testimony. (Compare R. v. Hughes, London, February 15, 1762, 2 Oldham, supra note 20, at 958, in which Lord Mansfield questioned whether the prosecutor in an action for conspiracy to extort money was a competent witness, apparently because, if the action were successful, he stood to benefit by not being liable on the promissory note he signed as a result of the alleged extortion.)

75. Gilbert, supra note 39, at 138. Buller reiterated this flimsy observation. Buller, supra note 39, at 287.

76. Bentham, J., Rationale of Judicial Evidence (1827)Google Scholar, as quoted in Bodansky, supra note 17, at 96. Wigmore quotes Bentham's reasoning at length. 1 Wigmore, supra note 17, at 700–703.

77. See, e.g., the discussion of the conviction of Richard White: 1 Oldham, supra note 20, at 114; see also R. v. Adams, Middlesex, December 1, 1770, 2 id., at 986. On the procedure generally, see J. M. Beattie, Crime and the Courts in England 1660–1800, at 457–58. Beattie quotes from a 1729 letter by the Recorder of London to the effect that in assault cases, it was usual “for the Defendant to make satisfaction to the Prosecutor for his wounds, and costs and charges — before the Court sets the fine.” And although Beattie notes that Blackstone (in his Commentaries) disapproved of the practice, Beattie states that “it was plainly very common indeed.” Id.

78. Sayer, J., The Law of Damages 92–93 (J. Moore, Dublin, 1792)Google Scholar. “The Master” was an official of the Court of King's Bench who often fixed damages and taxed costs.

79. R. Paley, The Crown Side of the Court of Kings Bench: Litigants and Litigation in Hanoverian London 11 (unpublished paper).

80. Id. at 11–12. After 1755, the practice changed, but exactly how is unclear. The process of trebling the prosecutor's costs evidently ended, or ceased being standard.

81. See note 44, supra. See, e.g., Wyndham v. Chetwynd, 1 Burr. 414 (1757); Abrahams v. Bunn, 4 Burr. 2251 (1768); 1 Oldham, supra note 20, at 145.

82. See R. v. Montague, London, February 22, 1770, 2 Oldham, supra note 20, at 978; and R. v. Gurney, Middlesex, May 31, 1770, Id. at 981. Both prosecutors, when defendants, were acquitted.

83. R. v. Walker, MS 1110, Harvard Law School (reports, probably by William Taylor) fols. 21–22 (1731).

84. The outcome of the case is unclear, but the manuscript report suggests that Walker lost, Fazakerley's argument notwithstanding.

85. R. v. Mason, as reported in the Morning Chronicle, June 16, 1778. See 1 Oldham, supra note 20, at 141–42.

86. 1 Oldham, supra note 20, at 154.

87. Cited at note 20, supra.

88. This point was explicitly made by plaintiff's counsel, Mr. Peckham, in addressing the jury: “If you give small damages, you tell Mr. Howe that you disapprove of his conduct in applying to the laws; you declare that a Jury will give him no satisfaction; but that if he is injured, he must in defiance of the laws of God and man carve out his own satisfaction, by plunging his sword into the heart of the offender.” Two Actions, supra note 20, at 2.

89. Id. at 26. After the verdicts were announced, Howe told Lord Mansfield that he (Howe) did not bring the actions for pecuniary reasons, but only to vindicate his honor, and he requested that Mansfield name a charity to receive the money. Mansfield responded: “You do very right; but the application shall be for the Jury's consideration.— Gentlemen of the Jury,… you are the properest branch to direct to what charity it should go.” The jury instructed that the damages be divided between the Dispensatory for the County of Surrey, and the Marine Society.

90. Id. at 15.

91. Id. at 12.

92. Id. at 20.

93. Dunning was one of the most respected members of the bar at the time. See 1 Oldham, supra note 20, at 73–75.

94. Id. at 14.

95. Id. at 24–25.

96. Text at note 92, supra. See also Lord Mansfield's remark about “an action for words,” text at note 94, supra.

97. See 1 Oldham, supra note 20, at 137.

98. Two Actions, supra note 20, at 14.

99. Id. at 18.

100. Several character witnesses for Howe, although supportive of him, admitted that Howe was “an odd fox, an odd kind of creature” — “singular, and negligent in his dress” — “very studious, reserved, and recluse.” Id. at 15–16.

101. Id. at 25. In his recapitulation of Green's evidence, Lord Mansfield omitted Dive's statement to Howe (as reported by Green) that “you mistake your man.” This expression, together with “looking oddly in Dive's face,” and “stroking his foot” could easily be viewed as implying an attempt to commit sodomy.

102. See text at note 21, supra.

103. Two Actions, supra note 20, at 25.

104. Id. at 17.

105. Id. at 18.

106. Smith testified that, as soon as he came upon the scene of confusion, “Mr. Dive saw me, and said, ‘Oh, here is Smith: he will tell us who that damn'd odd-looking fellow is.’” It was after this that Smith reported Dive's comment that Howe “wanted to b—gg—r me.” Id. at 12, 13.

107. Id.

108. Id. at 26.

109. See The Good Lawyer 93 (Luban, David ed., 1984)Google Scholar. See ch. 4 (“The Adversary System Excuse”).

110. Id. at 112. Compare Damaskš, supra note 1, at 580. See also Gerber, R. J., Victory vs. Truth: The Adversary System and its Ethics, 19 Ariz. St. L.J. 3 (1986)Google Scholar; Langbein, supra note 1, at 823. Langbein asserts: “If we had deliberately set out to find a means of impairing the reliability of witness testimony, we could not have done much better than the existing system of having partisans prepare witnesses in advance of trial and examine and cross-examine them at trial.” Id. at 833. By contrast, “German procedure totally avoids the distortions incident to our partisan witness practice.” Id. at 835.

111. Sissela Bok begins her first chapter with Pilate's response to Jesus's claim (John 18:37) that he came into the world to bear witness to the truth. Pilate responded: “Truth? What is that?” Bok observes that “no concept intimidates and yet draws thinkers so powerfully” as the concept of “truth.” She acknowledges that “the whole truth is out of reach,” but argues that “this fact has little to do with our choices about whether to lie or to speak honestly.” She states: “I believe that we must at the very least accept as an initial premise Aristotle's view that lying is ‘mean and culpable’ and that truthful statements are preferable to lies in the absence of special considerations.” Bok, Sissela, Lying: Moral Choices in Public and Private Life 4–5, 30 (1978)Google Scholar. Among the useful attributes of her book is the informative appendix, setting out excerpts from the writings of Augustine, Aquinas, Bacon, Grotius, Kant, Sidgwick, Harrod, Bonhoeffer, and Warnock on the subject of lying. On Bok's work, see Farey, C., The Political Philosophy of Sissela Bok, 8 J. App. Phil. 87 (1991)Google Scholar. For other work on truth-telling generally, see Ekman, supra note 5; FRIED, supra note 9, esp. ch. 3 (“On Lying”); Minnich, E. K., Why Not Lie? 68 Soundings 493 (1985)Google Scholar; Christy, W. H., Truth-Telling: Illustrating the Moral Dilemma, in For Me to Live: Essays in Honor of James Leon Kelso (Coughenour, R. A. ed., 1972)Google Scholar. For specific treatment of Kant's philosophy about truth-telling, see Korsgaard, C. M., The Right to Lie: Kant on Dealing with Evil, 15 Phil. & Pub. Aff. 325 (1986)Google Scholar; Caton, H., Truthfulness in Kant's Metaphysical Morality, in Essays in Metaphysics (Vaught, Carl G. ed., 1970)Google Scholar. In a recent review essay of Daniel Bruhl-Meier, Die Rechts-und Staatslehre von Adam Smith und Die Interessentheorie der Verfassung [The legal and political philosophy of Adam Smith and the interests theory of constitutions], John Christian Laursen observes that Adam Smith “prefigure[d] Kant with the claim that morality absolutely forbids lying; and Bruhlmeier points out that it is remarkable that such a thorough and careful book as Sissela Bok's Lying… omits any reference to Smith.” Laursen, J. C, Adam Smith as Legal and Constitutional Theorist, 16 L. & Soc. Inq. 615, 621 (1991)CrossRefGoogle Scholar.

Finally, for useful works on the hard question of truth-telling in historical writing, see Novick, P., That Noble Dream: The “Objectivity Question” and the American Historical Profession (1988)CrossRefGoogle Scholar; Haskell, T L., Objectivity is not Neutrality: Rhetoric vs. Practice in Peter Novick's That Noble Dream, 29 Hist. & Theory 130 (1990)CrossRefGoogle Scholar; Pork, A., History, Lying and Moral Responsibility, 29 Hist. & Theory 321 (1990)CrossRefGoogle Scholar; White, G. Edward, Truth and Interpretation in Legal History, 79 Mich. L. Rev. 594 (1981)CrossRefGoogle Scholar.

112. See, e.g., Blackburn, S., Spreading the Word: Groundings in the Philosophy of Language (1990), esp. ch. 2 (“How is Meaning Possible?”)Google Scholar; Thiersma, Peter, The Language of Perjury: “Literal Truth,” Ambiguity, and the False Statement Requirement, 63 S. Cal. L. Rev. 373 (1990)Google Scholar; deTurck, M. A. et al., Effects of Information Processing Objectives on Judgments of Deception Following Perjury, 16 Comp. Res. 434 (1989)Google Scholar; Wonnell, Christopher, Truth and the Marketplace of Ideas, 19 U.C. Davis L. Rev. 669 (1986)Google Scholar. For an excellent study of religious rationalizations on the use of the half-truth in seventeenth-century England, see Halley, Janet, Equivocation and the Legal Conflict Over Religious Identity in Early Modern England, 3 Yale J.L. & Human. 33 (1991)Google Scholar. Halley builds her discussion around a pamphlet introduced into evidence by Sir Edward Coke in the Guy Fawkes trial, a pamphlet initially titled A Treatise of Equivocation and later retitled A Treatise Against Lying and Fraudulent Dissimulation. The “treatise” explained the methods by which Catholic priests in England were justified in giving evasive answers when questioned. These polemics about equivocation Halley calls “an implacable disagreement about what language is.” Id. at 41. Consider, for example, the following gem of casuistry (taken from a case “composed to train priests preparing for the English mission”), quoted Id. at 44: “The interrogation of a judge, by its very nature, means this: ‘According to the power I have and the jurisdiction I have in this case, I ask you to confess to me your superior whether you are Peter.’ Wherefore, if he is not a legitimate judge, my reply is to a man, not a judge; and so, by denying that I was ever called by that name, I do not simply deny that I was ever called by that name, but I deny that I am ‘… Peter who is bound to reply to you as a judge endowed with the sort of power and jurisdiction which you have.’”

113. See Moglen, E., Legal Fictions and Common Law Legal Theory: Some Historical Reflections, 10 Tel-Aviv U. Stud. L. 33 (1990)Google Scholar. (Legal fictions were another Bentham pet peeve, as Moglen points out. Id. at 39.)

114. A caveat to my conclusion is that it speaks more to the broad array of civil litigation, and to the prosecution of misdemeanors (which together made up all of the trial business of the Court of King's Bench in London and Westminster) than it does to the prosecution of capital crimes.

115. Herzfeld, Michael, Pride and Perjury: Time and the Oath in the Mountain Villages of Crete, 25 Man (n.s.) 305 (1990)Google Scholar.

116. Id. at 306.

117. Id. footnotes omitted.

118. Id. at 312.

119. Id.

120. Id. at 318.