In 1904, Northwestern University Law School dean John Henry Wigmore described the cross-examination as the “greatest legal engine ever invented for the discovery of truth” (9). With Engines of Truth: Producing Veracity in the Victorian Courtroom, Wendie Ellen Schneider, who has both a JD and a PhD in history, casts new light on this often-overlooked aspect of legal history.
Most historical studies focus on trial outcomes and their impact on society, rather than on what happened inside the courtroom. For this reason alone, Engines of Truth merits a wide reading among British studies researchers. Although the technique of examining a witness is an ancient practice, Schneider explains, the modern form of cross-examination was a nineteenth-century invention, subject to vigorous debate in Victorian Britain. Initially dismissed as the competitive twisting of words, it came to supersede prosecution for perjury as the primary means of guaranteeing witness veracity. Schneider concludes: “With the extension of the right to testify to the criminal defendant, and the incorporation of cross-examination as the quid pro quo for that right, the modern Anglo-American trial took the form we still recognize today” (209).
The common-law trial of today is a product of a long process of compromises and lessons learned from failed experiments. Before the cross-examination there were alternative means to manage mendacity—to “produce veracity”—in the courtroom. Previous works that illuminated Victorian legal procedures include that by Barbara Shapiro and Christopher Hamlin on the rise of expert witnesses from 1860 to 1885, Jennifer Mnookin on the “image of truth,” and C. J. W. Allen's The Law of Evidence in Victorian England (2011). The work of these and other scholars has added to our comprehension of Victorian trial practices in relation not only to legal solutions and institutions, but also to the historical contexts in which they were taking shape. Schneider adds to these with significant new information about the fluctuating status of the cross-examination in British legal experiments with truth finding. Using newspaper accounts of cases, novels, and works of psychology, as well as traditional sources of legal history, Schneider relates the history of Victorian trials both to British colonial history and to metropolitan Victorian culture.
In mid-nineteenth-century Britain, new laws were expanding the numbers of witnesses allowed to testify in court cases. Before the 1850s, most common-law trials were conducted without the testimony of the parties themselves. Disqualification of witnesses for fear of perjury was justified on the grounds that it would protect the parties from perjuring themselves and guard the legal system against false testimony. This situation changed as new laws were passed such as the Evidence Amendment Act of 1851, which allowed parties in civil cases to testify. The abolition of these disqualifications was seen by contemporaries as nothing short of revolutionary (17).
Schneider shows that after the abolition of disqualifications, there was a rise in perjury prosecutions, stimulating a search for an alternative means of regulating witnesses (17). Yet cross-examination was both “deeply resented and indispensable” to the Victorian legal system (48). The Victorian bar sought therefore to limit abusive cross-examination while preserving the counsel's discretion in posing questions (48).
Here Engines of Truth touches on larger issues of social history, as Schneider observes that “For cross-examination to be transformed from a disreputable practice into a legitimate facet of the lawyer's ‘art’ … it needed to be reinterpreted and systematized in ways that seemed to evoke masculine honor” (51). This effort coincided with, and reinforced, a rise of professional autonomy for lawyers, and the acceptance of standards and norms—including independence from the client's direction (51). Victorians generally regarded cross-examination as a distinctively masculine pursuit, but one that “required the barrister to place limits on his manly urge to dominate” (51). Schneider examines two celebrated cases in the 1860s and 1870s where barristers were disciplined for excessive zeal: those of Edwin James and Edward Kenealy.
In the second part of the book Schneider examines experience with perjury practices outside the traditional common-law trial: in the colonial courts of British India and the new Divorce Court (significantly, both contexts in which it was widely thought that witnesses would inevitably lie) (11). The British developed novel strategies for the production of truth in the courtroom in India as they revisited the question of perjury constantly, from the late eighteenth century through the Charter Act of 1833 and the Indian Evidence Act of 1872. The latter codified practices in India and was subsequently proposed as a model for changes in Britain itself. While the British sought to retain Islamic criminal law in Bengal, they found it impossible to maintain Islamic law regarding perjury (115).
In a chapter about the queen's proctor, Schneider presents the Divorce Court as what she calls an “inquisitorial experiment” (143). The Divorce Court actively tried to determine the true causes of marital disputes: “What happened to social expectations of stories when all the participants are expected to lie?” (145). This topic was also discussed in Deborah Cohen's important book, Family Secrets: Shame and Privacy in Modern Britain (2013), which Schneider does not cite. However, Schneider helpfully explains the challenge of adapting a common-law system to an inquisitorial model. There were fears, she explains, that this change would erode the responsibility of judges, with “[a]dvice, discretion and moral complexity” all neglected in the search for “conclusive facts” (179).
In her conclusion Schneider examines the Criminal Evidence Act of 1898, which allowed defendants in criminal cases to testify—50 years after that right had been extended to the parties in civil cases (183). Allowing testimony by the accused “dovetailed with the Victorian doctrine of personal character and responsibility by insisting on accountability and by treating the accused as a fully rational agent” (185).
Schneider shows how the evolution of law was shaped by wider social concerns, contemporary attitudes, practical demands, and she outlines the contingencies and failures. As noted above, the sources that she consulted for the book range far more widely than many legal histories, considering newspaper accounts of trials, novels, and writings on psychology. Although not explicitly, Engines of Truth examines what have come to be termed, in another context, “legal ethnomethods,” or the study of the methods and practices courts use for understanding and producing legal outcomes; it therefore bears a family relation to recent histories and sociologies of knowledge production of science and law, including studies by Simon Cole, Michael Lynch, Ian Burney, Christopher Hamlin, Sheila Jasanoff, and others. The book would have benefited from more sustained engagement with such recent scholarship.
In sum, this well-written book makes a fascinating, original, and important contribution to our understanding of the dynamics of the modern trial, of Victorian practices for enforcing truthfulness, and of colonialism as a system of production and control of knowledge. It deserves a wide reading among scholars of British studies, as well as those of critical legal studies, law and literature, and Victorian society and culture.
