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The difficulty is not in pointing out the evil, which is plain enough, but in suggesting a remedy. The right of cross-examination is one of the most important instruments provided by the machinery of our law for the discovery of facts, and on the credibility of witnesses all cases hinge. The moment we begin to limit it by fixed rules we enter on dangerous ground. It might seem as if the solution of the problem lay in the enactment of a rule that witnesses should only be cross-examined as to their general reputation with regard to truth, and as to the matters involved in the case directly affecting their credibility; but this would by no means do. Suppose, for instance, that the suit is a common action for the purchase-money of a piece of cloth, and the defendant brings a witness who swears that he saw the defendant pay the money to the plaintiff, while the plaintiff has only his own evidence to rely upon in proof of non-payment; if, in such case, the plaintiff were merely allowed to cross-examine the witness directly, he would in all probability lose the case. The testimony would be two to one against him, and the story of the witness as the only disinterested person would probably be believed by the jury. But suppose that, on cross-examination, it turns out that this witness can give no good account of his manner of earning his living or of his place of residence; that he had been arrested not long before as a vagrant, and that down to the time of the action he had no respectable clothes, and that he suddenly became possessed of some; that he deserted from the army immediately after getting his bounty-money, and so on, there can be little doubt that his credit with the jury would be much impaired, and justly so, although no direct evidence of his being a perjurer had been introduced, and not a particle of his testimony had been strictly controverted. Everyone who has followed with any care the evidence taken in celebrated murder trials or divorce cases knows how frequently a rigid cross-examination lays bare motives and prejudices on the part of witnesses which, often without their knowing it themselves, tend to bias their account of facts.

The problem, therefore, is to devise some means by which these benefits of a searching cross-examination may be retained and yet the abuse got rid of. The only feasible way of meeting the difficulty yet proposed is that of drawing up a series of rules or general directions as to evidence which shall not attempt to prescribe formal limits for cross-examination, but shall lay down in explicit words the general principles which should govern a judge in such cases. These rules would practically be a definition of the “discretion” he is now supposed to exercise. They would, for example, direct him not to allow an examination into matters so remote in time from the case in hand that they can have no bearing on the credibility of the witness; not to allow questions to be put which are plainly malicious and asked for the purpose of irritating the witness; and not to allow any examination into transactions which, though they may have a bearing on the character of a witness, have none on his credibility, e.g., an inquiry, in a murder case, of a witness in good standing, as to domestic difficulties with a deceased wife. It is not easy to lay down beforehand any rules by which we can discriminate the kind of evidence as to transactions involving moral character which ought not to affect credibility, but every one can easily imagine instances of such evidence. General directions of the kind we have just suggested are no more than a formal enunciation of the manner in which the “discretion” of a good judge would be and is exercised. They do not change the law, but they remind judges of what they may forget, and they may be appealed to by a persecuted witness with far more certainty than judicial “discretion.” In the Indian Code, which is probably the best body of law that the legal reform movement begun by Bentham in the last century has yet produced, rules of this kind have been laid down, and we believe have been found to work with success.