Front Page Titles (by Subject) CHAPTER XXVII.: RECAPITULATORY EXAMINATION, OR QUASI-TRIAL. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XXVII.: RECAPITULATORY EXAMINATION, OR QUASI-TRIAL. - 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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RECAPITULATORY EXAMINATION, OR QUASI-TRIAL.
In certain cases, superadded to the usual examination of the evidence, is another, styled a recapitulatory examination, in which cases the preceding examination is for distinction’s sake styled the original examination. Synonymous to recapitulatory examination is quasi-trial, as being before a quasi-jury.
At the recapitulatory examination, whatsoever evidence was received in the course of the original examination at one or any greater number of sittings and hearings, is received a second time, and if possible altogether, at one and the same sitting; no adjournment being made, unless at that sitting the time capable of being employed at one sitting be exhausted.
At the recapitulatory examination, no evidence is received which was not received at the original examination.
At the recapitulatory examination, the question of law may, at the desire of a party on either side, be reconsidered.
The original examination was performed by a judge acting singly. No recapitulatory examination is performed except before a quasi-jury. The judge has them for assessors. To bring the suit under the cognizance of this section of the public-opinion tribunal, is one principal purpose of this second examination.
Exceptions excepted, by what judge soever, whether principal or depute, the original examination was performed, so may the recapitulatory.
The cases in which a recapitulatory examination has place, are the following:—
1. Where, for his own satisfaction or that of the public, the judge himself desires it: for his own satisfaction, to wit, that the several portions of evidence which had been received on the original examination may be re-exhibited, confronted, compared, and reconsidered.
2. Where, on either side, any party is desirous that it should have place.
In certain cases, consideration had of the necessary severity of the punishment, and the probable helplessness of the class of persons most liable to be exposed to it, the law, for the better security of the defendant, requires the check of a quasi-jury to be applied to the power of a judge.
When the original examination has been gone through, it will rest with the judge either to pronounce the definitive opinative decree, or to appoint a recapitulatory examination; adding, in this case, the day on which, and the judge by whom it shall be performed.
The opinative decree pronounced, together with the imperative decree grounded on it,—it will rest with parties on both sides either to acquiesce in it, or to make requisition for a recapitulatory examination: which examination will, at the requisition of any party, be accordingly performed, unless preponderant evil in any shape shall have been shown as resulting from it; for example, intolerable expense to any party, or in consequence of the delay, a loss of evidence. A requisition for this purpose differs from an appeal in the ordinary sense of the word, no otherwise than in this, namely, that it may be from the judge in question at one time, to the same judge at another time: and by this quasi-appeal, the expense, delay, and vexation, produced by the transference of parties and evidence, to another and commonly more distant judicatory, is here saved.
If appointment made of the recapitulatory examination be on the part of the judge spontaneous, it will be desirable, if the other business of the judicatory permit, that the judge by whom it comes to be performed should be the judge by whom the original examination was performed. By the recollection of the lights afforded by the original examination, especially in respect of consistency and inconsistency as between the testimony given by a witness on the one occasion, and the testimony given on the other occasion by that same individual, additional clearness, correctness, and completeness, may frequently be given by the conception formed on the later occasion by the judge.
When by the judge no recapitulatory examination is desired, he so declares, and thereupon pronounces his definitive decrees: puting it at the same time to each of the several parties, whether it be his desire to have such examination or not: if of any one of them the answer be forthwith in the affirmative, a day and hour are thereupon appointed: if by any one, time for consideration is requested, a day and hour are appointed for the answer; and in the event of its being in the affirmative, the appointment of day and hour for the quasi-trial remains.
Till such answer is given, the decrees are declared provisional: when the answer is given in the negative, they are declared peremptory.
If it be at the requisition of a party, it may be matter of doubt and discussion, whether on the latter occasion it be better that the judge be the same, or a different one. To set against the advantages of identity as above, there may in this case be the disadvantage resulting from mutual dissatisfaction as between party and judge; the danger lest, from the dissatisfaction testified by the requisition, displeasure, with correspondent partiality, be produced in the mind of the judge: to obviate uneasiness on this score, as far as may be, will of course be among the objects of his solicitude.
Antecedently to this examination, to obviate useless delay, vexation, and expense, the judge will call upon the parties on both sides to admit all such relevant facts, in respect of which no sincere doubt can have place anywhere: giving them to understand, that of all delay, vexation, and expense, produced by insisting on the re-exhibition, or exhibition of evidence of a matter of fact in relation to which no sincere doubt can have place, the burthen will be made to fall on the head of him or them by whom the evil in this same shape has been produced; and that for any such insincerity, over and above the burthen of making compensation, punishment, under the name of punishment, may, whenever the occasion calls for it, eventually be inflicted.
The recapitulatory examination may have either, or both, of two purposes—namely, 1. Deriving additional instruction out of the mass of evidence; 2. Exposing the conduct of the judge to scrutiny and comment at the hands of the committee of the public-opinion tribunal specially commissioned for that purpose. To the first end it may be contributary, even where there is but one piece of evidence, and that a mass of oral testimony delivered from the mouth of one individual; though the case in which the probability of its usefulness is likely to be greatest, is that in which, by the collision of mutually contradictory testimonies, new lights indicative of the truth are struck out or endeavoured to be struck out: but although, in the case in question, it should be clear that in this shape no good can be produced, there remains that other shape in which it may in any case be produced.
The judge does what in him lies, to the purpose of preventing the right of requiring a recapitulatory examination from being employed by insincerity as an instrument for the manufacture of useless delay, vexation, or expense.
In this view, if upon completion of the examination the requisition appears groundless, he imposes upon the parties concurring in the requisition the burthen of making compensation for the damage produced by it in all shapes: if, moreover, it appears to him, that in the mind of the requisitionist it had no other object than the production of useless delay and expense, to the injury of any other party or parties, he imposes, in addition to the burthen of compensation, a pecuniary punishment to the use of the public; or in case of insolvency, the succedaneous punishment provided by the penal and non-penal codes. But the quasi-jury may, if they think fit, reduce in any proportion the ulterior punishment.
A requisition is said to be accompanied with insincerity, where the nature of the case being such, that on the part of the individual in question, while any such belief as that, by a recapitulatory examination, the evidence can be placed in a light in any respect new, is morally impossible, he perseveres in making his requisition notwithstanding.
In certain cases, the course of the original examination will lead it to assume the character of an explorative, or say an evidence-discovery examination;—during which, the procedure will wear the character, and be designated by the name, of investigatorial procedure.
Investigatorial procedure (as will have been seen in the chapter on Evidence,) has place, in so far as one lot of evidence is employed for the discovery of another.
A lot of evidence, which of itself would not throw light in any shape upon the fact in question, and which accordingly would not be fit to enter into the composition of the grounds on which the opinative decree is founded, may be not the less well adapted to the purpose of bringing to the cognizance of the judge, apt and appropriate evidence: as where auditor says, “I did not see anything that passed; but by oculator I have been informed that he did.” Here, then, from auditor, whose testimony with relation to the fact in question is not relevant, the judge is informed of the existence of another individual whose testimony, if the former said true, will, with relation to that same fact, be apt and appropriate evidence; the testimony delivered by auditor will, with relation to that same appropriate evidence, be indicative evidence.
It may happen, that not only the evidence of the same person, but the same article of evidence, shall operate on the same occasion in both characters—that of appropriate, and that of simply indicative evidence; as if auditor were to say, “I saw what happened, and so at the same time did oculator: he being at that same time near me, and looking the same way.
On the occasion of the recapitulatory examination, all evidence which has been merely indicative, and not appropriate, will of course be omitted; that is to say, the individual by whom it was exhibited will not on this occasion be examined; unless perchance such examination should prove necessary to the purpose of corroborating or infirming the testimony of him whose evidence had been stated as being relevant and appropriate evidence: as if oculator, though stated by auditor as having been present on the occasion in question, and upon the original examination admitted his having been so, should, upon the recapitulatory examination, deny his having been so; in this case it might be of use that auditor should be forthcoming for the purpose of being confronted with him, that so, with the help of mutual interrogation, the truth of the matter may be brought to light.
On a day in which there is no recapitulatory examination on the paper, the quasi-jury will add itself to the company of spontaneous visitors.
When in consequence of the recapitulation, the definitive imperative decree is delivered the burthen of the costs caused by the delay so produced will be imposed by the judge on the parties, in such proportion as to him seems meet.
If it be at the motion of a party that the recapitulatory trial takes place, and such motion of the party is sincere (the judge not being an object of his distrust), it will have had for its cause a hope that when, with a quasi-jury to insure a more attentive consideration, the judge has furnished his mind with this ulterior stock of instruction, his decrees will, on this second occasion, be more favourable than they were at the first.
If the party be insincere, the act in question may have had other causes. Examples are:—1. Material evidence, which had been unfavourable to his side of the suit at the original examination, is no longer forthcoming. 2. The delay, vexation, and expense, inseparable from such ulterior examination, is such as the party on the other side would not be in a condition to support.
Supposing the first of these cases to have place, the fact in question being ascertained, it may constitute a sufficient ground for refusing the recapitulatory examination—or rather for receiving, on the occasion of the second examination, the minutes of the evidence delivered on the former occasion, in lieu of a second oral examination of the same witness, performed in the course of the recapitulatory examination.
If by a party on either side the performance of the recapitulatory examination be objected to, on the ground of his being unable to defray the ulterior expense, this may be a sufficient reason for the refusal of it, unless the party or parties requesting it will provisionally take upon themselves the expense, and make compensation for the delay and vexation in other shapes.
Subsequently to the conclusion of the recapitulatory examination, and antecedently to the exercise of his opinatively-decretive and imperatively-decretive functions, the judge addresses to the quasi-jury his recapitulatory statement.
Of the topics touched upon in the judge’s recapitulatory statement, examples are as follows:—
1. On the pursuer’s side of the suit—
1. His demand, that is to say, the service demanded by him at the hands of the judge.
2. His ground in the field of law, and whether real law, or fictitious law.
3. His ground in the field of fact: individual facts, the existence of which he asserts as belonging to a class of facts designated as giving to a person (being of the class of persons mentioned for that purpose, of which he says he is one) a title to receive at the hands of the judge the service prayed, at the expense and charge of the person or persons on the other side of the suit. By the portion of law in question, added, to the facts the existence of which is asserted, is composed the efficient cause of the pursuer’s right, or say title, to the service which he demands.
4. Evidence adduced by him in proof of the facts, the existence of which at the times and places in question was asserted as above.
5. Arguments employed on the pursuer’s side; namely, on the question of law, the question of fact, or both; arguments having for their object the inducing the persuasion that the import intended by the law is the import he ascribes to it; and that the facts, of which he asserts the existence, did at the time and place in question exist accordingly.
II. On the defender’s side of the suit—
1. His defence, if any, consisting either of the denial of the justice of the demand; or of the counter-assertion of some portion of law, or matter of fact, the effect of which is (admitting the demand to have been just) to produce the extinction of it.
2. If denegatory in respect of the matter of law, thereupon comes his counter-interpretation of the portion of law referred to on the pursuer’s side.
3. If denegatory in respect of the matter of fact, thereupon comes counter-evidence.
5. If the defence has been counter-assertive, thereupon comes on this side the same topics as those on the pursuer’s side.
The state of the case, according to the judge’s conception of it, being thus brought to view, follow such observations, if any, as in his eyes are necessary or useful, to render apparent the aptitude of the decrees, opinative and imperative, which he has it in contemplation to pronounce.
Next and lastly follows the tenor of these same decrees, accompanied or followed by such further observations or comments, if any, as in his eyes promise to be conducive to that same purpose.