Front Page Titles (by Subject) CHAPTER X.: OF THE RECEPTION AND EXTRACTION OF EVIDENCE, viz. WITH THE HELP OF THE ABOVE SECURITIES. - The Works of Jeremy Bentham, vol. 6
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CHAPTER X.: OF THE RECEPTION AND EXTRACTION OF EVIDENCE, viz. WITH THE HELP OF THE ABOVE SECURITIES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF THE RECEPTION AND EXTRACTION OF EVIDENCE, viz. WITH THE HELP OF THE ABOVE SECURITIES.
Oral Interrogation—Minutation or Notation—Recordation or Registration.
Reception and extraction—under these two words may be included all the several modes in which, and operations by which, an article of evidence can make its way, and present itself to the faculties of the judge.
It, on the delivery and reception of the article of evidence, not only the person by whom it is delivered, but the judge by whom, or under whose direction, it is received, and everybody else, is, with the exception of the acts just mentioned, purely passive,—reception presents itself as being in that case the proper term.
If, for the purpose of producing or promoting the delivery, any operation be performed, that operation will be found to be an act of interrogation; and, in so far as any evidentiary discourse, that follows in the form of a response, is considered as the fruit or result produced by the operation, the operation may be termed extraction, and the evidence thus obtained may be said to be extracted.
Of reception as applied to evidence—of an operation so eminently simple,—little, it is obvious, can naturally require to he said. On the subject of extraction—a business of no slight complexity and difficulty—no inconsiderable part of the work will unavoidably be expended.*
By interrogation in the oral form, by interrogation in the epistolary form, or by any such mixture of the two as by incidental convenience may happen to have been indicated,—by any of these three means—in any of these three modes, may evidence be extracted. In the body of the work, how to employ each to the best advantage, will be found a principal subject of inquiry, in the book of which this chapter bears the title.
Answers, impromptuary—called forth without time allowed for mendacity-assisting invention or recollection—questions put singly—questions deduced from and grounded on the answers,—from these circumstances, which attach themselves as of course to the oral mode, the efficacy of that mode of extraction, and, except in particular circumstances, its superiority over the epistolary mode, will be deduced: its superiority, viz. with reference to the direct ends of judicature, over and above its more manifest superiority with relation to the collateral ends of judicature,—viz. avoidance of delay, vexation, and expense.
Of the advantages deducible from this mode of extraction, a part, which in some cases will be in no inconsiderable degree pregnant with instruction, will in effect be lost, if the judge by whom, on the matter of fact, the decision is to be pronounced, be not present on the occasion; himself a percipient witness of the deportment of the person from whose lips the verbal information is extracted:—deportment, that mode of expression and source of instruction, by which, on the theatre of amusement, without any aid from words, whatever is meant to be communicated is not unfrequently expressed.
Notes or memorandums in writing, in any and what cases—on any and what conditions—by any and what persons—shall they be consultable, under examination? Interrogation of a suggestive nature—in any and what cases—by or from any and what persons—shall it be allowed? Discreditive interrogation—interrogation, the effect of which may be to reflect discredit on the examinee—to fix a stain, or cast a shadow of doubt upon his reputation for probity, and thereby diminish the apparent trustworthiness—the probative force—of his testimony, shall it, in any and what cases, be allowed? In the body of the work, to all these several questions, answers are endeavoured to be provided.
Be the evidence thus extracted what it may, it would lose much of its eventual use, and of any decision grounded on it, the chance of its being conformable to justice would be very precarious,—if, in the article of permanence, in the event of its being, in the opinion of a party on either side, worth the trouble and expense, it were not capable of being put upon the footing of ready-written evidence.
Hence comes the demand for registration or recordation;—the two words being considered as synonymous, and taken in the large and simple sense thus indicated,—and not perplexed and narrowed by technical restrictions.
Hence again, on the present occasion, the demand for minutation or notation,—on the present occasion, the necessarily attendant operation by which the matter for registration must be supplied.
To the judge, for the purpose of occasional recollection,—against the judge, in the case of incidental misconduct, or misdecision, if accompanied with blame,—both ways, to and for the benefit of the parties on both sides of the suit in hand, and more especially to the party on that side which is most in the right,—in some cases, to the parties eventually concerned in future contingent suits, in which it may happen to the same matter of fact to come, any part of it, into question,—to parties to whom, but for the evidence thus preserved, it might happen to find themselves under the necessity of endeavouring to establish this same matter of fact, and to that purpose to engage in a contest which by this means is prevented,—lastly, to the legislator, in respect of the grounds, on which, in case of admittance given, as hereinafter proposed, to suspicious evidence, he may, by observation taken of its nature and result, feel himself disposed and authorized to give confirmation to any rules, to which in this behalf he may have thought fit to give a provisional acceptance, or to substitute other rules in their stead;—in all these ways, the transformation of oral into written evidence will be seen to have, in cases to an indefinite extent, its use. Notation, or say minutation,—followed by recordation, or say registration,—are the operations by which this transformation is effected.
In what cases shall these operations be performed?—by what person or persons, and in what mode? Such are the questions for which, under this head, answers are, in the body of the work, endeavoured to be provided.
Extraction should not be severed from Decision.
Superintending, at the very time of extraction, the extraction of the evidence which is to form the ground of the decision,—and forming the decision which has that evidence for its ground,—between these two operations so intimate is the connexion, that without considerable danger of misdecision they cannot (reason may have already been seen to suspect) be severed and allotted to different minds. The one is no less essentially a judicial function than the other. By any deficiency, in respect either of skill or probity, on the part of him by whom the grounds for the decision have been formed, the most consummate measure of both these qualifications in the breast of him by whom, on these same grounds, the decision is pronounced, may have no better effect than that of rendering misdecision the more sure; and whoever is not fit to be intrusted with the definitive function, it seems not easy to conceive how he should be fit to be intrusted with that which, in the way that has just been seen, is preparatory to it.
When the judge, by whom a decision on the evidence is pronounced, was not present at the extraction of it, the loss of the information afforded by deportment creates a deficiency, the value of which presents, as already intimated, a consideration, to the force of which, no preponderant force, it should seem, can be opposed.
When the judicatory, being a many-seated (as a mathematician would say, a poly-hedrous) judicatory, one judge, who, alone or with others, had been employed in the business of receipt and extraction, is, in conjunction with those, if any, and with others in additional numbers, employed in the forming the decision,—it may be a question whether, under this palliative, the mischief of the severance be diminished or increased. Adding to a judge, whose means of judging are superior, a number of others, with equal power, whose means are inferior, is an arrangement which, upon the face of it, presents no very great probability of superior rectitude.*
In the case of appeal, if on the question of fact appeal be allowed, this disadvantage must be submitted to: and under whatsoever forms, and by whatsoever names, an appeal on the question of fact is carried on, whatsoever advantages may be found attached to it, will have this disadvantage to contend with.
Of a severance, upon the very face of it so unnatural, the not very deep-seated causes will be pointed out: and it will be seen how far they are from coinciding or being consistent with any sincere regard for the interests of truth and justice.
In judicial procedure, everything having for its author the man of law—everything, on this as on other occasions, under favour of the darkness of the age, had everywhere, of course, for its chief, not to say its sole object, in as far as circumstances admitted, the convenience—the advantage in every shape—of the man of law.
To this cause may be referred, without difficulty, so many pernicious applications as in this field may be seen made of the principle of the division of labour;—that genial principle, the fertility of which is, in the field of political economy, so salutary.
Beneath, as well as on, the bench, in each offset, into which by division the polypus—not to say the leach—has contrived to multiply himself, behold at the same time a screen, by which the light of true information is shut out,—a discolouring medium, by which false light is let in,—and a sponge, by which the substance of the litigants is absorbed.
The judge, decomposing himself into the evidence-collecting and the deciding judge:—the agent of the party, into the attorney and the advocate:—each of these again into a cluster of sub-offsets, the more numerous, the more favourable to misrepresentation,—to its consequence, misdecision,—to the boundless increase of factitious and needless delay, vexation, and expense.
Immediately under the bench, the scribe has decomposed himself, or rather has been decomposed by his master the judge, into a similar cluster of the like offsets, that in each of them the master may find an additional sponge. By the whole tribe together, as much as possible done of that by which fees are collected; as little as possible,—and little indeed that is!—of that by which the purposes of justice—the true ends of judicature—are served.†
In certain cases, the employment of the written, viz. the epistolary, mode of extracting evidence becomes matter of necessity or convenience:—what (it will be asked) is the description of these cases? For furnishing an answer expressed in general terms, two classes of cases may be brought to view: 1. Where, by the nature of the case, for the formation of such answers as shall be necessary to the correctness and completeness of the mass of evidence, a greater length of time employed in recollection and consideration is necessary, than is compatible with the operation of extraction, when performed in the oral mode; 2. Where, by the remoteness of the abode of the examinee from the seat of judicial inquiry, the employment of the oral mode is rendered either physically or prudentially impracticable.
For the better securing the efficiency of the interrogative process when carried on in this mode, two arrangements, in the character of sub-securities, will be brought to view: for the sense of responsibility, responses (as under natural procedure) in the first person, not (as under technical procedure) in the third;—for distinctness and facility of reference, thence also for responsibility, paragraphs, limited in length and numbered.
Of these practical arrangements, the rationale is particularly developed in detail: and if such as is supposed be the demand for them, notwithstanding the security afforded by an instrument so powerful as the practice of interrogation is under whatsoever disadvantages applied,—much greater must it be in the case, in which the declaration is delivered without the benefit of any such security, as in the case of a bill in equity,—an answer in equity,—a paper of special pleading at common law,—or an affidavit.
Modes of Interrogation principally in use.
The form of the discourse, viz. oral or scriptitious,—the constitution of the judicature,—and the distinction, such as it is, between publicity and privacy:—out of these three circumstances put together, five distinguishable, and alike established modes of examination or interrogation may be seen composed:—1. The oral mode, per partes, coram judice et assessoribus publice;* 2. The epistolary mode per partes;† 3. The oral mode, in secreto per judicem delegatum;‡ 4. The oral mode, in secreto per judices utrinque electos;∥ 4. The oral mode, per judicem publice:¶ —Of these several modes, the comparative subserviency to the purposes of justice is in the body of the work endeavoured to be brought to view.
Browbeating—I mean the species of professional or rather official insolence and oppression (I say official, for the advocate cannot offend unreproved, but he has the judge for his accomplice)—browbeating presents an objection, which by practitioners under the secret mode has been urged§ against the first of these modes, and with but too much justice, if, as it seems to be tacitly assumed, the abuse were an irremediable one. A remedy, if not absolutely sanative, palliative at least, will be found suggested.
Oral or Epistolary mode—which to employ?
By the oral mode in its best form, or by the epistolary mode in its best form,—by which, in any given case, will, upon the whole, be rendered service the most profitable to the purposes of justice? The answer has been seen already, and has an unavoidable dependence on the individualizing circumstances of each individual case. Among the cases—(extensive the collection of them will be seen to be)—in which a conflict is apt to take place between the direct and the collateral ends of judicature, this will be seen to be one. In many instances, where for rectitude of decision the oral mode might be preferable, for avoidance of delay, vexation, and expense, attached to personal attendance, the epistolary mode may be the only mode prudentially, in others the only mode physically practicable. In other cases, where, for assistance to the oral, the epistolary mode, or vice versa, might not be altogether without its use, the additional load of delay, vexation, and expense, that might be found inseparable from it, might recommend the sacrifice of it.
The proposed examine,—in what quarter is his station in the theatre of justice?—on the defendant’s side, on the plaintiff’s side, or in the witness’s box? Correspondent to these differences in position, different answers may be found best adapted, upon the whole, to the purposes of justice.
Epistolarily extracted,—shall it, in any, and what cases, be deemed sufficient, without orally-extracted evidence? In the first instance and provisionally, the answer will be seen to depend, as above, upon the particular circumstances of the individual case. But, in ultimate resort, the conflict between affirmance and disaffirmance still remaining, no decision that is to be immediately definitive, will, it is believed, be found sufficiently grounded, that has not for its warrant an examination, coram judice, et partibus, face to face.*
Cross-examination—Anglicé, and Romano-Anglicé.
Under the general head of interrogation, cross-examination has been mentioned as a term pregnant with confusion: for an attempt to dispel that confusion, matters are now ripe.
Cross-examination being performed, as above, in the only genuine and rational—in the English-bred mode,—the questions put on one side have in part, for their ground, the answers given to the questions put on the other:—performed in the Rome-bred mode, the questions are all framed, by a person, from whom all questions on the other side, consequently all errors of which they can be productive, are kept avowedly and anxiously concealed.
In Rome-bred procedure, the process of extraction, for how many days or weeks continued, being kept involved in impenetrable darkness, what the nature and effect of cross-examination thus performed is, may be a secret,—not only to the non-lawyer, but even among lawyers, to any except those whose particular branch of experience has initiated them into the mysteries of that antique and adscititious system of procedure.
Confrontation and Repetition Romanicé.
In Rome-bred procedure, two courses or stages of proceeding,—the one confrontation, the other re-examination, Romano-Gallicé recolement,—Romano-Scoticé repetition,—Romano-Anglo-Ecclesiasticé, also repetition,* —both of them, in name at least, and in the character of distinct processes, and causes of proceeding, in substance alike unknown in English-bred procedure, occupy each of them a conspicuous place.
If so it be, that on a question of fact, in all places, and at all times, not to speak of all causes, the means and modes of forming a just ground for decision cannot but be much the same,—how comes it, that two operations, to which, under the governments of civilized countries in general, modern as well as ancient, so much importance has been attached, should be in a manner unknown to English practice?
On the continent, both confrontation, and the examination called recolement and repetition, are confined to penal cases of the higher order. By confrontation, the system of dark seclusion being, for this purpose, and pro tanto, subjected to a partial and momentary relaxation, supposed co-delinquents, with or without the addition of unsuspected witnesses, are brought together, and set to ply each other with mutual interrogations:—scene, the darkness of the judicial closet,—under the inspection of the judge—with or without his scribe,—at any rate, with no other check upon him than what may be supposed to be applied by the presence of that more or less dependent subordinate. Establishing the identity of the supposed delinquent, and promoting the disclosure of all relevant matters of fact, are the objects which confrontation is stated as having in view.
Securing correctness and completeness against misrecollection on the part of the examinee,—securing his freedom against seduction, whether in the form of intimidation or enticement, considered as capable of being administered to him by the judge,—securing the authenticity of the minutes against misrepresentation at the hands of the judge,—such are the purposes, to which the system of regulations relative to these objects appears, how unsuccessfully soever, to have been directed.
Between these two operations, thus upon the face of them so dissimilar, so close however is the analogy imagined and ascribed to them, that, under the Romano-Gallic procedure, cases are laid down, in which confrontation is to find in repetition a declaredly adequate substitute.
In the case of confrontation, the scantiness of its application,—as if there were any sort of case in which light from all quarters were less conducive to rectitude of decision than another,—in the case of repetition as well as confrontation, their conjunct insufficiency to every useful purpose, in comparison of the security afforded by publicity and open doors, will be held up to view.
Under the English mode, without the name and form, jury-trial, whether preceded or not by the preliminary examinations performed by a magistrate, gives in part the effect, and by a slight extension of the right of interrogation might be made to give the whole, of the effect of confrontation. In regard to repetition, preceded by that same preliminary examination, it gives actually part of the good effect, and might easily be made to give the whole of the good effect, so vainly aimed at by repetition when performed in the close mode.†
[* ]Book III.
[* ]Under Rome-bred procedure, in the French edition of it, in the deciding judicatory, the judge by whom the mass of evidence had been received and extracted, was called the Juge-Rapporteur:—and so in other countries in which Rome-bred procedure is principally employed.
[† ]For examples of a sort of matter which might with advantage be consigned to remembrance, and is not, see Chaper XXIII. Safeguards, &c.
[* ]As in jury trial.
[† ]As by a bill in equity.
[‡ ]As in the court of chancery’s examiner’s office, in town causes.
[∥ ]As under the commissions issued by the court of chancery, for taking evidence in country causes.
[¶ ]As on examination taken by a justice of peace.
[§ ]Brown, I. 479.
[* ]Thus, after an answer put in upon oath to a bill in equity, the contest is liable to conclude (though by a separate cause) with jury-trial, on an indictment for perjury. Add to this the more frequent case of an issue.
[* ]Brown, I. 479.
[† ]Viz. by undequaque interrogation, if substituted to the incomplete mode in use.