Front Page Titles (by Subject) CHAPTER XXI.: EXCLUSION CONTINUED—CAUSES FOR WHICH IT CANNOT BE PROPER. - The Works of Jeremy Bentham, vol. 6
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XXI.: EXCLUSION CONTINUED—CAUSES FOR WHICH IT CANNOT BE PROPER. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
EXCLUSION CONTINUED—CAUSES FOR WHICH IT CANNOT BE PROPER.
Avoidance of Deception: viz. I. through Imbecility.
A class of cases in which (as there has already been more than one occasion incidentally to observe,) exclusion of evidence cannot (it will be seen) be in any instance proper, that is, subservient to the ends of justice upon the whole, is that in which it has for its sole ground or cause, a regard for the direct ends of justice, viz. the desire of preventing misdecision, in respect of the question of fact—and thence of preventing deception, deception by the operation of the evidence, against which, in the character of a safeguard, the exclusion of it is proposed. Say for shortness, exclusion on the score or ground of deception;—or, exclusion for fear of deception.
Imbecility, interest, improbity, viz. on the part of the individual whose testimony is in question: to one or other of these heads will, it is supposed, be found reducible every plea for exclusion, in the case where it has danger of deception for its ground.
As for imbecility—intellectual infirmity—were it not for the purpose of showing that it has not been overlooked, it would, in so abridged a sketch as the present, be scarcely worth mentioning. In the body of the work, it will be brought upon the carpet, and with it the imbecility displayed upon the subject by English judges, who are not the less good witnesses.
Mental derangement, non-age, superannuation: these three words may suffice to bring to view its modes,—its modes as deduced from its causes. As to trustworthiness, it depends in this case altogether upon degree: depending upon degree, it depends upon idiosyncrasy: and of idiosyncrasy, examination, which cannot be without admission, presents the only test.
Through Interest; viz. Sinister Interest.
1. Of interest, it may perhaps by this time be suspected at least, that no proper cause of exclusion will be found capable of being deduced from it.
If by interest, a proper ground for exclusion were afforded, all evidence that has the human breast for its source, would be to be excluded: all personal evidence; and along with it, all justice.
2. Of interest it has been shown (Ch. VII.) that but for its influence, no evidence at all would ever be produced: that if it be by interest that all mendacious incorrectness and incompleteness is produced, so it is by interest that all security against deceptious,—against mendacious, as well as against temerarious incorrectness and incompleteness,—is produced.
3. From interest, it is only through the medium of incorrectness or incompleteness that deception can be produced. From interest, the worst that is apprehended as the immediate effect of it—the effect of it on the testimony of the witness, is falsehood; i. e. material incorrectness or incompleteness. Now from such falsehood, no evil effect—to the purpose of the individual occasion at least, is produced, but in so far as deception is produced. But of falsehood, even of meditated falsehood, deception is no necessary or constant consequence; and in so far as antecedently to decision it is detected, instruction,—and in so far, not misdecision, but right decision, is the natural fruit of it.
4. In the case of mendacity-prompting interest,—in proportion as its mendacity-prompting influence is obvious,—obvious to all mankind, exactly in that same proportion is it unlikely to prove deceptious.
5. A pecuniary shape, is that shape in which its mendacity, and temerity-promoting influence is most plainly and most universally obvious. It is in this shape, and scarcely, if at all, in any other, that interest has been taken for a ground of exclusion by the founders of the English law of evidence. Love of power,—regard for reputation,—sensual appetite,—sympathy,—antipathy,—in none of all these shapes, single or in combination—no, not though all were combined together,—is any influence, worth the employing of this their universal remedy for guarding against it, attributed to interest, by these sages. Such is the truth, such the depth, of their system of psychological dynamics;—love of money is the only love which in their theory has any force.
6. In the ordinary concerns of life, business in general is undertaken and carried on, in part or even wholly, on the ground of information from persons, in whose breasts, not only interest, but interest in a pecuniary shape, is acting, and that with no less force than what it would, on a judicial occasion, be acting with within the breast of a witness or party, and without that restraint which, in the case of judicial testimony, is applied by the fear of punishment and public shame. Under these circumstances, deception is, it is true, but too common; yet, in comparison of undeceived judgment, rightly deduced from statements true or false, or partly in the one case, and partly in the other, the case of deception is still comparatively but a rare one. Deception as often as it occurs—deception, as being a case comparatively extraordinary, is sure to attract notice:—right judgment, being the ordinary case, passes unobserved, and no account is taken of it.
The giving admission to what is called interested evidence (as if there were any evidence that were not in some way or other under the influence of interest,) is therefore not a rash projected experiment that remains to be tried:—it is a course of experience that has been carrying on, and with success, as long, and to as great an extent, as human life itself.
Through Improbity—including Religious Persuasion.
In the order of consideration after interest comes improbity. Why? Because it is only through the medium of interest, that, in the case of improbity, danger of deceptious incorrectness or incompleteness can be produced. Exposed to shame at any rate, and to punishment, unless in this respect, in manner before mentioned (Chap. IX. Oath,) the legislator has been unobservant of his duty, the testimony of the most profligate man will not be any more likely to turn aside into the path of mendacity,—no, nor even into the less crooked path of temerity—than that of the most virtuous, unless led into it by the promoting influence of interest—of interest in some sinistrously-directed shape.
To the head of exclusion on the score of improbity, belongs exclusion on the score of religious persuasion—persuasion on the subject of religion. Not that to persuasion, howsoever erroneous, nor even how mischievous soever the error resulting from it,—not that even to such persuasion, supposing it sincere, any such imputation could consistently with justice be attached, but that such is the imputation which in fact men are but too generally found in such cases to attach to it.
Concerning atheism, it can scarcely fail of being acknowledged as soon as mentioned, that the mode of persuasion indicated by it is of that sort which cannot ever be proved upon a man but by means of veracity on his part—and that to a degree of which, even among Christians, the extreme rarity is proved by experience, unhappily but too incontestibly:—veracity in circumstances in which, in case of mendacity, detection is impossible. For in such security rests every false declaration of internal persuasion, of the falsity of which no special indication can be given by any special external sign or act.
As to cacotheism, it is an appellative, which by any person to whom the grammatical import of it is known, cannot be refused to any religious persuasion, in so far as to the Almighty are ascribed by it any such qualities as those of malevolence and maleficence. But such unhappily are his attributes in the eyes of religionists in general: malevolent in description, he is benevolent only in name. But surely, consistently either with moral justice or grammatical propriety, not even on the ground of any such persuasion, how pernicious soever in its effects, can any such imputation as that of improbity be attached—that imputation, which, on the ground of simple non-belief as above, as if in revenge for contradiction, men in general are so forward to attach.
Avoidance of Vexation by Self-Inculpation.*
In the last preceding chapter, in the case of a conflict betwixt any one and any other of the ends of justice—say the direct and collateral—the comparative magnitude of the good and evil in question were held up to view, as constituting the proper criterion by which, in every such case, the choice should be determined. The principle itself will scarcely be regarded as subject to error: in the application of it, should any error ever be suspected, it is in the mode of application, if anywhere, never in the principle itself, that the cause of the error will be found:—on one side or other, for example, some item left out of the account: on one side or the other, to this or that item, such a quantity ascribed, as turns out to be more or less above, or more or less below, the truth.
In the case of a penal law, for example, the vexation which, in a given individual instance, would, by the execution of it, be unavoidably produced in the breast of an unoffending third person,—would the evil of it be greater than that which, in the same individual instance, would result from impunity on the part of an offender? If yes—then, rather than the vexation should be produced, the impunity ought to be suffered to take place. By impunity given to an offender, the ends of justice contravened are indeed the direct ends; by vexation, inflicted on that same occasion, the ends of justice contravened are but the collateral ends. True: but the question of real importance, the question on which depends the propriety or impropriety of the choice is—not that of which words, but that of which sensations, are the subject; viz. as between two lots of good or evil, which is the greatest, which the least.
Laying out of the case all danger to innocent third persons, confine now the evil to the offending breast. No evil here of that sort which stands opposed to the direct ends of justice: as little—for let that too be part of the supposition—any evil of that sort which stands opposed to the collateral ends of justice: no evil but that of the punishment, and, by the supposition, that punishment not falling but where it is due. But in this case, though of punishment there be not any but what is due, of vexation there is not less in this case than in the other. Punishment itself is in itself neither more nor less than vexation—vexation inflicted on purpose, and for a particular purpose. But because there exists not that punishment, to which, as often as it is inflicted, the name of vexation may not also, and without impropriety, be applied, does it follow that punishment ought not in any case to be inflicted? Extravagance such as this has never yet been exemplified.
Not only is punishment vexation—vexation at the time of its being inflicted, but to the individual on whom, in the event of its being inflicted, it will be applied, all inquiry tending to such infliction is already productive of vexation. But, from this, does it follow that no such inquiry ought in any case to be made? In the scale of extravagance, let the supposed notion just mentioned stand ever so high, this can scarcely be placed below it.
Among the singularities of English law, and (note well) of judge-made law—for under legislators’ law, it will be seen, the case is different—may, however, be seen a rule, composed of this very extravagance. To a defendant in a penal cause, not to speak at present of non-penal ones, be the cause what it may, no question, from the answer to which, supposing him guilty, the discovery of his guilt may be facilitated, ought judicially to be put:—if put, he is not bound to answer:—nor, from his silence, should any such inference as it is impossible for common sense to avoid deducing, be deduced by law. And thus it is, that an exclusion is put upon one of the most instructive species of circumstantial evidence.
But it is in the practice under this rule that anything like consistency is no more to be found, than in the practice under any other rule belonging to the law of evidence—not to speak of any other part of the mass of judge-made law. But whatsoever be the deduction that may here be found to have been made by inconsistency, what remains will present but too much matter for regret to every eye, to which, by sinister interest, the spectacle of human suffering has not been rendered an object of satisfaction or indifference.
In proportion as absurdity is gross and palpable, the imputation of trifling is a reproach to which it exposes every observation that can be employed in the manifestation of it.
In the course of those which follow, not a step can be taken but this imputation must be encountered. But so replete with mischief, and at the same time so deplorably strong and inveterate, is the prejudice in which this rule is grounded—so completely under the direction of interested lawyer-craft have barbarity and absurdity succeeded in passing themselves upon the public mind for humanity and wisdom—that few occasions, it is supposed, would be to be found, in which any such peril could be encountered for a worthier cause.
1. Be the defendant ever so guilty, the only ultimate evil that can befal him, whatsoever be the evidence by which his guilt is manifested, is that of the suffering, to which, on the score of punishment, it may happen to the question so addressed to him, to be contributory. But if, for forbidding such questions, so it be, that the danger of this evil constitutes a sufficient reason, where the individual to whom the questions are addressed is the defendant himself, so must it in the instance of every other individual that can be mentioned: an equally sufficient reason must it afford for prohibiting all questions of that tendency, to whatever other individual it may happen to them to be addressed:—in other words, for offering impunity to every delinquent whatsoever.
2. Different, in this respect, might be the case, if, in the first place, so it were that, on the part of men in general, when under prosecution with a view to punishment, there existed any such propensity as that of subjecting themselves to the punishment, when, in truth, they are innocent; if, moreover, in the next place, such were the strength of that propensity, as to render the danger of a man’s being made to suffer such undue punishment by means of testimony given by him against himself, greater than by testimony given against him by other persons at large: all such included, as by injury supposed to have been received from him, or on any other score have been placed in the number of his particular enemies. But if in human nature there be really any such self-hostile propensity, no traces of it seem as yet to have come to light.
3. In the character of a separate suffering, resulting from the particular mode in which, in this case, the evidence is obtained,—vexation, hardship, suffering—everything of this sort is altogether imaginary. The suffering consists in the punishment. The punishment being given, is it in the nature of man, that to him who is to suffer it, whether the evidence, by means of which the suffering is produced, be obtained from this source, or any other source, in this shape or in any other shape, it should make any the smallest sensible difference? Before the affirmative be asserted, first let some one man be found who, having his choice, rather than be made to pay £5 by means of this sort of evidence, the fact of the delinquency being in both cases rendered equally manifest, and equally notorious, would put his hand into his pocket, and pay down £6.
4. Those who are free from guilt,—is it possible that these should have been the persons for whose protection the rule was intended? They are exactly the very persons, and the only persons, to whom it cannot ever be of any use. Take any such person, for example: by the supposition he is free from guilt: but by the same supposition he is suspected. This being the case, the suspicion of which he is the object, it is surely his interest—if he be of sound mind, it is no less surely his wish—to remove: it is accordingly as well his wish as his interest that all such explanations as can contribute to that removal, and such, in particular, as afford the best chance for it, should be afforded. But from what other quarter can any explanations be expected, of which there can be so good a chance—if chance be here the proper term—of their being directed to that end?
5. All other evidence—all evidence except the testimony of the defendant himself—that would have been the evidence, to which to have applied the exclusion, supposing the eyes on which it depended open to this one object, shut against every other. But by such a substitution, supposing it practicable, neither the interests, nor consequently the purposes, of the contrivers of this rule, would (as will be seen presently) have been served.
6. If the saving a guilty defendant from the hardship of observing that the evidence by which his delinquency is exposed and his punishment produced, had been extracted from his own bosom,—if this be the object, in pursuit of which the exclusion was established, this object is after all not compassed. For not only is any letter or memorandum, which to the effect in question he has been deemed to have written, read against him, but any oral discourse, which to that same effect he is reported to have uttered, is delivered in evidence against him, delivered in his hearing, and without scruple or reserve. In its purest and most perfect state, in its acknowledged best state,—it is only in that state that evidence from this source finds the technical door so inexorably shut against it. Yet open this shut door is to evidence from this very source, when once it has been strained through other lips, and by that means reduced to the universally acknowledged inferior shape and condition of hearsay evidence.
7. Of the exclusion in the one instance, coupled with the admission in the other instance, what is the effect of the rule, as towards the only person for whose sake, if for anybody’s, it professes to have been established?
For want of such explanations, as very frequently are neither obtained nor obtainable from any other mouth—explanations of which, if true, the effect might have been to substitute exculpation to conviction,—a lighter at least, to a deeper shade of delinquency,—conclusions to any degree dangerous to him are liable to be drawn from such casually written or hearsay evidence: and explanations to any such effect are not received from him in the character of evidence.
8. Of the exclusion thus put upon first-hand evidence, while admission is given to second-hand evidence, behold in one view the consequences:—
1. Whatsoever be the purpose in question, to that same purpose the information thus received is almost sure to be incomplete—deceptiously incomplete: for in relation to the matter of fact in question, whatsoever, if anything, it be, that on the extrajudicial occasion was said by the party in question, it is only so much as the deposing witness is at the same time able and willing to recollect, that is thus brought forth in evidence.
2. Of the remainder, which is not altogether suppressed, the account thus given may, by want of recollection, by negligence, or by improbity, have been rendered in any degree incorrect.
3. By the party himself, the incompleteness might be completed—the incorrectness corrected. No such completion—no such correction, is permitted.
4. From the substitution of such almost necessarily incomplete to less incomplete, of such naturally incorrect to less incorrect evidence, the only means of completing the incompleteness and correcting the incorrectness being at the same time excluded, the innocent are injured, as well as the guilty served.
9. In those situations, and on those occasions, in which the existence of real tenderness for the feelings of the individual concerned, as well as of the desire of coming at the truth, are most indubitable, no such determination against drawing information from the most instructive source—no such predilection for second-hand, to the exclusion of first-hand evidence, is ever to be found.
In the case of a servant, or a child, if any instance of supposed misbehaviour is to be inquired into, where is the master of the family, where is the schoolmaster, where is the father, where is the mistress, where is the mother, weak enough to take for the model of his or her conduct, in this particular, the practice of English judges?
10. In the case of those higher classes of offences which have received the name of felonies, this rule of spurious law has for centuries been acting in the teeth of the only genuine law.
By two successive statutes of Philip and Mary (1 & 2, c. 13; 2 & 3, c. 10,) in case of suspicion of felony, the justice or justices of the peace before whom the suspected person is brought, are required “to take the examination of such persons,” as well as “the information of those who bring him.” Examination?—concerning what? “Concerning the fact and circumstances thereof,” says the statute,—viz. of the supposed felony. To what end? To the end that, in case of delinquency, such answers as shall have been then extracted may, along with the other evidence, contribute to his conviction, says the statute;—for this it is, “or as much thereof as shall be material to prove the felony,” that is required to be “put in writing,” and “certified,” and so forth.
It is in virtue of these two statutes, that those examinations are taken, which are so constantly taken in every case of felony: and, if not for the purpose of eventually contributing to conviction, for what other useful purpose could any such inquiry be made, or have been ordained to be made?
Unfortunately for justice and good government, to offences below the rank of felony this did not extend, nor has the principle of it been extended. True it is, that in so far as in point of mischievousness those offences which in point of punishment fall short of being equal to felonies, the demand for such evidence falls short of being so imperious as it is in the case of felonies: but in the same proportion does the objection,—which on whatever score, and under whatever name—hardship, severity, vexation, injustice, danger, or nuisance, or whatever else the word may be, capable of being urged against the inquiry so directed,—fall short, in point of strength, of being equal to what it is in the case to which, by and under the only genuine sort of law, this most unobjectionable course for coming at the truth is ordained and pursued—pursued, viz. either in reality or in appearance, as is most agreeable to the worthy gentlemen, on whom in each individual instance it depends.
11. Yes: as is most agreeable. For in the class of cases in question, in which are comprised the most highly penal, capital cases included, by the exclusion put by judge-made law upon such evidence, coupled with the admission given to it as above by legislators law, a disguised and despotic power of pardon has been virtually placed in the hands of those magistrates. Wishing to do justice, the magistrate conducts the examination according to the intention of the legislature:—wishing to show undue favour, and at the same time make a display of elemency and legal science, he takes his stand on judge-made law, and warns the criminal against suffering the language of self-accusation to issue from his lips.
12. In the case where the punishment would be no other than pecuniary, the inconsistency of the practice with itself affords the most conclusive proof of absurdity, that it is in the power of absurdity to receive. If the case be called penal, under the name of punishment, five shillings cannot be taken out of a man’s pocket by evidence extracted immediately out of his breast, through the medium either of his lips or his hand. If the case be called civil, money to any amount—money, or money’s worth, to the amount of his whole property, be that property ever so vast, may be taken out of his pocket, by evidence extracted—not indeed through the medium of his lips, but—what in respect of the enormity of the expense is to him far worse—through the medium of his hand;—and this is among the cases in which, to perform the extraction, judge-made law takes the name of equity.
13. The class of malefactors, to which this article of judge-made law is, perhaps, most continually favourable, are those whose situation in respect of power and opulence exempts them, in the pursuit of sinister interest, from the necessity of engaging in any of those dangerous paths by which men are exposed to the hazard of being subjected to such preliminary examinations: those whose crimes, being committed on a large scale, and consisting in peculation or in abuse of public power, in some well disguised and protected shape, receive at the hands of kindred iniquity every practicable facility and indulgence: and in this effect and tendency, coupled with the contribution made by it towards the aggregate mass of disguised despotism vested in judicial hands, may be seen at least probable cause, if not of the creation, of the ever tender care bestowed upon the preservation of it.
[* ]Self-inculpation, on this occasion self-accusation, is the term that has been generally employed: nemo tenetur scriprum accusare. This, however, is not the term suited to the occasion. Accusation implies spontaneity: but where a question has been put, the act of answering to it is not spontaneous. Ill adapted to the purposes of correct expression, the term was not the worse adapted, but the better adapted, to the deception that was intended.