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CHAPTER XI.: EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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Indicative and appropriate.
By appropriate evidence, or ultimately employable, understand all such evidence as is fit to enter into the composition of the grounds of the judge’s opinative decree, so far as depends upon the question of fact.
By simply indicative evidence, understand such as is not of itself fit to enter into the composition of those same grounds, but affords an indication of some source from whence, supposing the matter issuing from it true, evidence which is appropriate may probably be collected:—as where a person, who was not present at the place and time at which the fact in question took place, states himself as having heard of some other person as having been so present.
Widely different in investigational procedure, is the character of Roman-bred, and English-bred procedure: teeming with imperfections both of them.
As to Roman-bred procedure: throughout the penal branch of the field of law, solicitous and extensive has been the application given to such provision as it has made; in the non-penal branch, on the other hand, the provision has been comparatively scanty, the solicitude remiss.
At the same time, for want of a clear and correct conception of the difference between appropriate and simply-indicative evidence, it has given to evidence, which has been simply indicative, the effect of appropriate evidence. In the affair of Oates, for example, to such a length did this confusion proceed, that between simple indicative evidence presented to the judge, and the apprepriate evidence, supposing any to exist, there were four or five portions of simply indicative evidence interposed. It has notwithstanding been received, and made to operate, as if it had been appropriate evidence. Standing before the judge, I, said A, heard from B, that he had heard from C, that C had heard from D, that he had heard from E, that E saw done, by the accused, the deed with which the accused is charged.
English-bred procedure, on the other hand, limits to the penal branch of procedure—and of that branch to no more than a part—the application of the investigational process: to the non-penal branch, it has made no application of it, how great soever may be the importance of the matter in dispute.
On the other hand, in the cases in which it employs the process, it keeps clear of the mischievous absurdity with which, as above, Roman-bred procedure has distinguished itself.
Meantime, nothing can be more manifest than that, if necessary to the discovery of truth in the case of any one species of suit, it cannot be less so in any other.
Of the whole list of vulgar errors, few indeed are so mischievous, few so gross, as that which supposes that, in the minds of that class of men who are styled ministers of justice, minimization of injustice has been the end to which their labours have been directed: to minimization substitute maximization, you will be near the truth.
That injustice might be maximized, it has been their interest, that of the use of falsity (the general instrument of injustice) the frequency should be maximized—the falsity itself maximized—and, moreover, so also the credence given to it.
To this end it is, that to so many various descriptions of persons, on this special occasion, for this special purpose, the licence to commit judicial falsehood with impunity—in one word, the mendacity-licence—has been granted, to an extent so all-comprehensive: and to this licence, in place of punishment, reward upon the most all-comprehensive scale has been awarded.
Descriptions of persons to whom the mendacity-licence has thus been granted, are these—
1. Parties on the pursuer’s side.
2. Parties on the defendant’s side.
3. Professional assistants, of the order of attorneys.
4. Professional assistants, of the order of advocates.
5. The judges themselves.
Of the error just mentioned, the mischievousness consists in the support given to a system thus deleterious, by the respect with which the authors and supporters of it have down to this time been, and are at this time now regarded.
Correspondent to the mischievousness of this error is its grossness. The mischievousness of the system, so manifest to the eyes of all, so severely felt by all, yet still, in the teeth of universal experience, with very small abatement, the error continues.
More than ten years* have elapsed since, by the hand by which these lines are penning, the opposite truth has been announced in print, and not only announced, but by the most abundant, and particular, and irrefragable proofs, demonstrated.
Imputations more reproachful can scarcely be cast by man on man, than in that work† have been cast upon all implicated; yet still all is silence: and if in any case silence under accusation were confession of guilt, surely so has it been, and so continues it to be in this.
A more flagitious act of calumny could not have been committed, than would by this account have been committed, had the matter of it been other than true.
In no part of the civilized world are the name or the works of the author unknown: on no author that ever applied his labour to this field, have any such marks of approbation and applause been ever bestowed as on him. Ignorance, therefore, of the fact of the accusation, or of the prosecuting of the accusation, cannot, with any shadow of truth, be pleaded; yet still from all these quarters reigns the most imperturbable silence.
In the eyes of the people at large has this demonstration of all this guilt—this confession of guilt—been all this while manifest: the approbation and applause thus bestowed upon the author is such as to him would be sufficient reward, had he but the satisfaction of observing that the people for whom all this labour has been bestowed, and such a load of odium from the highest quarters voluntarily taken upon him, would but derive their profit from what has thus been done for them. But no such reward or satisfaction, so long as he lives, does he seem destined to receive. He pipes, but they do not dance—he makes the advances, but they do not follow. Through the paths it has been his endeavour to lead them, none are at once willing and able to follow.
Exclusion of party’s testimony, its ill effects.
Fertile source of injustice and oppression, the exclusionary rule which shuts the door against the testimony of the party.
Observe the consequences of the rule on the occasion of those dealings which have place, where the party on the one side is in a state of opulence, the other in a state of comparative indigence—say landlord and tenant—opulent customer and dealer—borrower and lender. The comparatively opulent man never acts, or treats of himself: everything he does is by the hand, or the help of an agent—in a word, an attorney. The comparatively indigent man, not being able conveniently to afford the purchase of any such expensive assistance, does everything by himself, and without the assistance of an attorney, deals with the attorney on the other side. Now observe the consequence: to the patrician’s attorney the law secures a complete mendacity-licence; everything that he says on behalf of his noble client is evidence—good evidence. How stands it with the plebeian? Nothing that he can say on his own behalf will be so much as heard. On the part of the attorney, suppose the most palpable, the most fiagrant perjury: What has he to fear for? Absolutely nothing. By no indictment for perjury, can the man who is injured by the perjury have any the smallest chance for satisfaction in any shape. In the wretched shape of vengeance? Not he indeed: give his testimony he may, but no effect can it ever have. Here is oath against oath: on no such evidence will conviction be ever suffered to have place.
What is observable is, that in this source of injustice and oppression, the aristocracy as such have an obviously strong and sinister interest: whether it be in the nature of the case that they should fail of being fully sensible to the value of this sinister interest, let every one judge.
Received in every case from the applicant may be as well simply-indicative as appropriate, or say ultimately-employable evidence.
Rationale.—Reasons for the admission:—
1. The individual whose interest the evidence serves or stands to serve, may be unknown to the informant.
2. To the informant more delay, vexation, and expense, if any, may be produced by intercourse (or perhaps previous fruitless endeavours to obtain intercourse,) with persons interested, than by repairing at once to the judicatory, open as it is to him, and to everybody at all times, and provided with evidence-extractive powers, of which he is destitute.
3. A case that frequently has place is, that by fear of others on whom he is more or less dependent,—hope in like manner from others, or sinister counsel,—a person whose lawful interest would be served by giving the information which is in his power, is prevented from so doing: whereas, if, in consequence of simply-indicative evidence furnished by another person, he had, on receiving an appropriate mandate from a judge, attended and delivered his evidence, being thus seen acting under a manifest legal necessity, no such displeasure on the part of the apprehended oppressor would probably have been entertained: at any rate, it would have prevented it from producing any such evil effect as that of a denial of justice.
4. It may happen, that though the question of particular interest is between individual and individual, there has been, in the act indicated, a degree of turpitude, such, that on the account of the public it would be of use that the evil disposition of the agent should become generally known.
Particularly important is the need of simply-indicative evidence, in the case where, by the regulation for the extraction of self-notificative evidence, a person of bad repute would as such be naturally disinclined to pay spontaneous attendance: on the ground of the simply-indicative evidence, any such person might nevertheless be made compellable.
Simply-indicative evidence, however, although, with reference to the particular fact in question, unappropriate, will not however be to be omitted out of the record.
Rationale.—1. It may serve either to impugn or to confirm the trustworthiness of the person from whom, in pursuance of the indication given, appropriate evidence shall have been elicited.
2. In case of criminal or culpable falsehood on the part of an indicative witness, it may be necessary for his conviction of, and punishment for that offence.
Frequently from the same source—for example, from the statement of the same person, evidence of both descriptions will come at the same time: in this case, the distinction will with particular care be to be adverted to, and held up to view by the judge.
Modes of interrogation to be abstained from.
1. Fact-assuming interrogation.—In this mode, of the fact, the existence or non-existence of which is the subject-matter of inquiry and proof, the existence is assumed and taken for granted.
Example:—“At what distance were you from your friends when you fired at them?”—the subject-matter of pursuit being the alleged offence of firing a gun at those same friends.
For a question of this sort put by a judge, or without reprimand suffered by him to be put, the judge will be reprimanded, and a memorandum of such reprimand entered on the judicial-delinquency register, kept respectively by the appellate judges, and the justice-minister.
For a question so put, for the purpose of entrapping a defendant into a confession, he may be dislocated.
Choice as between species and species of Evidence.
Avoid, as far as may be, all recourse to character evidence—employ it not, but where the event of the suit depends altogether upon the degree of credit given to the individual witness, to whose character objection is made.
To this purpose, consider, that in English practice the punishment of death has every now and then been inflicted on the ground of no better or other evidence than the testimony of some one individual, to whom as disreputable a character as can be imagined has at the same time been seen to belong: he at the same time being apprized that the preservation of his life depends upon his giving his testimony in a certain direction.
To the judge’s notice the observation will not escape, that to the thread of character-evidence, when once begun to be spun, there is no certain termination.
Generally speaking, where, as under this code, the power of interrogation is given to every description of person, in whose instance it affords a promise of being of use, and the exercise of it is unfettered by needless and useless rules, few mendacious witnesses will pass undetected, and any additional light that by possibility might be afforded by examination into general reputation, will be of little worth: the mode of communication at all future times with every witness being secured, and the faculty of re-examining at any time during or subsequently to the continuance of the suit in question being reserved. Under English practice, it is to the inaptitude of the whole system that character-evidence and alibi-evidence are principally indebted for the importance ascribed to them, and the use made of them.
Alibi evidence.—Against deception, and from evidence of this description, the judge will be in a great degree guarded, by the indispensable arrangement, the communication-securing arrangement: carried into practice, as it will be, in the instance of every individual who makes his appearance before a judge, either in the character of applicant pursuer, defendant, or extraneous witness.
This is of the number of the cases in which an adequate demand for character-evidence is most apt and likely to have place.
Causes of mendacity—Practice of English judges.
Of Hudibras it is recorded thus:—
Of an English lawyer, and more especially of an English judge, the same thing may be recorded with much more truth and reason, though without rhyme, if for the word trope, the word lie be substituted.
The judges more especially, as being the causes that lies are in other men, may be termed with distinction, ϰατ’ εξοχην, the fathers of lies: for it is by them, that from first to last, lies have not only been tolerated and uttered, but actually compelled—compelled on pain of outlawry.
If veracity be part of morality, if in mendacity there be criminality,—one of two things, to any one, be he who he may, is inevitable:—either morality itself must be an object of his contempt, or the whole tribe of English judges: they by whom, if at their instigation a man refused to defile himself by a lie, he would be punished by them as for a contempt—(for that is the appropriate phrase)—for contempt manifested to their authority.
Evidence immediate and intermediate, or say interventional. By immediate, understand a statement made by a self-alleged percipient witness, in relation to the matter of fact reported by him.
By intermediate, or say interventional evidence, understand a statement made by a person who is not, with relation to the matter of fact, a self-alleged percipient witness, but in relation to the matter in question has received his conception from some person, represented to him in the character of a percipient witness; to wit, either immediately, or through the medium of any number of intermediate witnesses, making a statement to the same effect the one to the other, in a chain of any length.
Uses of intermediate evidence:—1. Serving for the procurement of immediate evidence; 2. Eventually serving in lieu of, or in addition to, immediate evidence.
Exceptions excepted, intermediate evidence will not be ultimately employable; to wit, in the character of a ground, or constituted part of a ground, for a judicial decree or mandate.
Exception is, where the alleged percipient witness is not examinable, but at the expense of preponderate evil, in the conjunct and aggregate shapes of delay, vexation, and pecuniary expense.
Probation is an operation, which in all cases must be performed on the pursuer’s side, and in many instances comes to be performed on the defendant’s side.
On the pursuer’s side, under this system of procedure (it being the natural one,) a course of probation is complete, or incomplete and partial, as it may happen, being involved in the operation of application by and with which the suit commences.
It includes in it constantly two assertions: the matter of one of them being the matter of law, declaring the existence of a portion of the code, to this or that effect; the other having for its subject-matter fact; to wit, an individual fact, in relation to which an arrangement to the effect stated as above has been made by the portion in question of the text of the law.
Of the application, the substance and effect has been to demand at the hands of the judge a certain judicial service. This service consists in giving, on the occasion in question, execution and effect to a certain portion of the text of the code, viz. the portion just spoken of: and the warrant for the operation which the judge is so called upon to perform, is the existence of the above-mentioned matter of fact, bearing such relation as above mentioned, to the above-mentioned portion of the matter of law.
Example:—Suppose the service demanded, compensation at the charge of a defendant, for a wrong alleged to have been done by him to the pursuer, by a blow given to him on a certain part of the body. By the wrong thus done, an offence, belonging to a certain genus of offences, has been committed—a genus of which the denomination is, wrongful corporal vexation.
In this case, the matter of fact has for its alleged percipient witness the applicant himself, who, if he is to be believed, has been the immediate sufferer by the wrong.
But suppose, according to the case stated by him, the person on whose body the wrong was inflicted—the offence committed—was not the applicant himself, but a child of his, too young to be capable of stating the matter of fact.
In this case we see two distinguishable matters, or alleged matters of fact:—
1. The act by which, if the allegation be true, the blow was given: call this the principal fact.
2. The act performed by the applicant in making the allegation to this effect: call this the evidentiary fact.
By the allegation thus made, the existence of the principal fact has been provisionally, or say eventually proved: if, in the opinion of the judge, the assertion so made is true, insomuch that the principal fact asserted by it to have happened, did really happen at the time and place asserted, i. e. supposing him inclined to believe it;—failing proof to the contrary, he will declare accordingly. But it may be (for so the experience of the judge will have demonstrated to him,) that the allegation the applicant has thus been making is, in the whole, or some essential circumstance, untrue: by the applicant or his child, no such blow was received—or if received, received from accident, such as an unintended push by another person, or the fall of some utensil from a shelf. &c.: any of which matters of fact, the defendant might and would with truth assert, if the opportunity were given him of being heard. Relation had to the evidence so delivered as above, such evidence, if delivered by the defendant, would be counter-evidence: it may be delivered either by the defendant himself, who, in virtue of being himself the deliverer of it, would be a party witness, or say a litigant witness; or by a third person, who (not having been placed by the pursuer either on his side, in confirmation of the demand as a co-pursuer, or on the defendant’s side, as a co-defendant) may be styled an extraneous witness.
But what may also be is, that all the pursuer has said is exactly true; and yet the fact thus averred, and we will suppose and say proved by him, will not be sufficient to warrant the judge in rendering to him the service so demanded, as above. It may be, that though the defendant gave him the blow, it was not till after he himself had given the defendant a blow, and that a more violent one; and that the blow so given to the pursuer had no other object than to prevent him from giving the defendant other blows, which he saw the pursuer prepared to give. Making an assertion to this effect, he will be delivering another species of counter-evidence, evidence probative of a fact, not consisting of the negative of the fact asserted by the pursuer, but of a totally distinct fact, of the positive kind, the effect of which, in respect of the destroying the ground of the demand, would be the same as that of the just-mentioned negative one.
Evidence as to character.
By evidence as to character, or say character-evidence, understand evidence having for its subject-matter the aptitude of the individual—aptitude, moral, intellectual, and active, with relation to the part acted or proposed to be acted by him in the suit; whether it be that of—1. Party-pursuer; 2. Party-defendant; or 3. Extraneous witness.
Case the 1st, that of a party on the pursuer’s side.
On the subject of the aptitude of the individual to be received in the character of pursuer, no evidence will be received. Reason: No person should be excluded from the capacity of demanding remedy in every shape, from wrong in any shape.
Case the 2d, that of a party on the defendant’s side.
On the subject of the aptitude of an individual to be received in the capacity of defendant, no evidence will be received. Reason: No person should be excluded from the capacity of preserving himself from undue burthen, on the score of remedy for wrong alleged to have been done by him; if he were, he might be wrongfully subjected to whatsoever suffering is ordained by law to be inflicted, whether for the purpose of satisfaction, or the purpose of punishment.
Case the 3d, that of an extraneous witness.
In the first instance, exception excepted, no evidence will be received in relation to the character of an extraneous witness.
Exception is, where the proposed witness has been convicted of judicial falsehood, criminal or culpable, or say with evil consciousness, or through culpable inattention. In such cases, use may be made of the record in which such conviction is recorded; and this without other reference than the inspection of that record on the spot, or the procurement of it through the letter-post.
In the case when, of two witnesses the evidence being irreconcilably contradictory, and the decree as to the question of fact depending on the credence given to the one or the other,—if, in relation to one of the witnesses by a party on either side, declaration is made that he is generally regarded as a person in whom mendacity is habitual, power to the judge to elicit evidence in proof of the untrustworthiness so alleged.
But in the exercise of this power he will be guided by the consideration of the importance of the subject-matter in dispute, compared with the expense, delay, and vexation likely to result from the elicitation of the mass of evidence, the elicitation of which is likely to be on sufficient grounds demanded.
Why, in ordinary cases, put an exclusion upon character evidence?
Answer: For the reason that the effect of any evidence, in affirmance even of habitual mendacity, will not be to produce the exclusion of the individual in the capacity of a witness: sole effect, that of producing an opinion in affirmance of a corresponding degree of comparative untrustworthiness on the part of his personal evidence.
For this opinion, the utmost ground that can be afforded cannot amount to anything more than as a weakly operating article of circumstantial evidence. It follows not, that because a man has uttered wilful falsehood, in cases where in case of mendacity no punishment awaited him, he would, in anything like to an equal degree, he likely so to do in a case in which by such mendacity he exposed himself to the punishment appointed by the law for that crime.
Boundless is the delay, expense, and vexation which it would be in the power of a mala fide litigant to necessitate, if an unlimited right of calling in evidence for this purpose were established.
Boundless the number of witnesses whose evidence might be called in, in the first instance; for the need would be variable according to the importance of the matter in dispute, and the difficulty attendant on the question of fact, with or without other circumstances. Incompatible with any well-grounded decision on the question regarding evidence, would be every attempt to fix the allowable number of character-witnesses, by any general rule.
But if, in the first instance, no well-grounded limits could be put to the number of mendacity-imputing witnesses, as above, so neither could there be to the number of mendacity-imputing witnesses, whose evidence was demanded for the purpose of imputing mendacity to any or all of the first set, of mendacity-imputing witnesses. Here, then, might be a second set—thence a third set—and so on; the number increasing in a geometrical ratio.
To an assertion imputing habitual mendacity to a man—to an assertion to this effect, how decidedly soever mendacious, no punishment, as for mendacity, could be attached, unless asseveration of individual acts of mendacity, as having been committed on so many individual occasions, were received. But to give acceptance to such asseverations, would be to include in the bosom of this suit, the procedure in relation to as many distinguishable suits as those acts of mendacity so imputed; for as in other cases, so in this: if criminative or inculpative evidence were received, how, consistently with justice, could excriminative or exculpative evidence be excluded?
By the vexation which, on the part of the witnesses themselves, would be attached on the elicitation of their evidence, a proportionable objection to the elicitation of it would be afforded. As to compensation—out of no other pocket than that of the inviting party could it come; and in this case the benefit of it would be allotted exclusively to the relatively opulent, to the exclusion of the relatively unopulent.
Existing system.—It admits of character-evidence, not only in relation to extraneous witnesses, but in relation to parties defendant; not only of the dyslogistic, including the mendacity-imputing cast, but of the eulogistic cast: and altogether boundless is it, as to number: and without exception as to quality is it, as to the persons whom it renders consultable.
[* ]Written in 1823.
[† ]Scotch reform.