Front Page Titles (by Subject) CHAPTER XXIII.: SAFEGUARDS AGAINST SUSPICIOUS EVIDENCE: INCLUDING INSTRUCTIONS CONCERNING THE WEIGHING OF EVIDENCE. - 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 XXIII.: SAFEGUARDS AGAINST SUSPICIOUS EVIDENCE: INCLUDING INSTRUCTIONS CONCERNING THE WEIGHING OF EVIDENCE. - 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.
SAFEGUARDS AGAINST SUSPICIOUS EVIDENCE: INCLUDING INSTRUCTIONS CONCERNING THE WEIGHING OF EVIDENCE.
Demand presented for such Safeguards, by the fear of change in case of the abolition of Exclusions.
Throughout the whole texture of this work one practical conclusion is continually presenting itself: for fear of deception exclude not any evidence.
How incontestable soever may be the propriety, such at the same time is the novelty of this recommendation, that, for obviating the reluctance which, in spite of reason, habit and imagination are on every such occasion so sure to produce, no safeguards which the nature of the case presents as capable of being opposed to apprehended mischief, seem much in danger of being regarded as superfluous.
In this character, three proposed arrangements will here be brought to view:—
I. Declaration of credence on the part of the exhibitant.
II. Code of instructions, as from the legislator to the judge, concerning the weighing of evidence.
III. Appropriate recordation;—viz. recordation of the cases in which suspicious evidence—evidence characterized by any cause of infirmity—has been exhibited—with the result, i. e. the decision that has ensued, and thence the credence or discredence which was produced by it: viz. in so far as, from the nature of the aggregate body, of which the particular article of evidence in question, in a case where it is not the only evidence, forms a part, any decided and well-grounded inference can be deduced.
First Safeguard—Declaration of Credence from the Exhibitant.
Of the sort of safeguard here in question, one exemplification or application has already been brought to view, viz. the declaration of credence proposed to be made by the party exhibitant, in the case of exhibition, made of a script in the character of an article of written evidence.
Of a declaration to this effect, the subject-matter there in question extended not beyond the genuineness of the script; but the principle there brought to view will be found susceptible of an application somewhat more extensive.
Among the objects and effects of the technical system, has been seen to be the giving to improbity, and thence to its principal instrument, fraud, every possible advantage: and, in particular, the providing for it a lurking place, where it may do its work in safety, secure not only against punishment so called, but against detection, and thereby against shame: to fraud in a negative shape thus securing, and without danger, that benefit which, at the hazard of so much danger, is sought for by fraud in its positive shape:—to fraudulent reticience, the benefit which, on other occasions, cannot be put in for, but under the perils which attach upon fraudulent mendacity.
Of the natural system the object is, and in proportion as it prevails, the effect will ever be, to divest improbity and fraud of this, as well as so many other subterfuges: to force improbity either to give up its purpose altogether, or to give to its instruments its more odious as well as only punishable shape: to compel fraud to divest itself of the veil of reticience, and to stand forth in the stark nakedness of positive mendacity.
For effecting this exposure, nature has offered to justice the efficient instrument so often brought to view, viz. interrogation: especially extemporaneous vivâ voce interrogation.
At every meeting of the parties coram judice, this instrument, in the instances that have been already brought to view, has been seen applying itself as of course: no mind so rude and uncultivated as not to be able, with more or less facility, to apply it: none so inexperienced and helpless as not to be disposed and ready to apply it.
But in that most efficient of its forms which has just been brought to view, the application of this instrument supposes mutual presence: existence of at least three persons in the presence of each other, viz. the two parties and the judge.
At the same time, as there has been such frequent occasion to observe, cases are not wanting, in which, either physically or prudentially speaking, such tripartite presence is impracticable: and from the existence of this state of things, results the need of a succedaneum to such vivâ voce interrogation, viz. interrogation in the epistolary form:—or what may perhaps in some instances be made to perform the like office, and at any rate with less delay, vexation, and expense, uninterrogated declaration in the terms of a preappointed formulary.
If it be fixed by a preappointed formulary, a declaration of this sort is not, however, by any means exempt from danger. The danger is—lest, by inappropriate penmanship, a man whose mind it finds in a state of probity and sincerity should be forced by it, not merely into insincerity, but into mendacity, as it were in his own defence: thus becoming productive of the very evil against which it is employed in the character of a remedy.*
To testimony of the ordinary stamp, about to be delivered by a person in the character of a witness, it will scarcely be found applicable. Generally speaking, except in the case of preappointed evidence, the persons to whose service, in the character of witnesses, a man finds himself obliged to have recourse, are not of his choice:—1. The character and disposition of the witness may be dishonest and mendacious, and the party know nothing about the matter;—2. It may be not only mendacious, but even known by himself to be hostile to himself, and he not the less obliged to have recourse to it;—3. Mendacious to any degree, it may still throw upon the subject such instructive lights as could not be had from any other source; for when recognised for what it is, falsehood itself becomes a guide to truth; and the grounds on which the probity and veracity of a proposed witness are suspected, may be sufficient to warrant the suspicion while retained by the party in his own breast, without being sufficient to warrant the divulgation of them, and thereby the imprinting on the character of the witness the stain of infamy, which, at the same time may be altogether undeserved.
On the technical theory, according to which, as above, the person of whose testimony a party happens to stand in need is to be considered as his own creature—the work of his own hand—it belongs not to you “to discredit your own witness;” that is, when you find him mendacious, to use any endeavours to cause him to be regarded as such—any more than it belongs to a workman to discredit his own work.
If to the lot of the inventor of that maxim it had fallen to pen a declaration of credence to be made by a party exhibitant, and to be applied to the testimony of the witness produced by him,—what would have been the effect of it on the shape that would have been given to it by the learned pen? In the instance of every witness, except the comparatively few of whose probity the party happened to stand well assured, he would have found himself compelled to deprive himself of the benefit of their testimony, or else to purchase it by a lie.
So much for orally and other judicially delivered evidence. In the case of written, viz. already written evidence, in addition to the genuineness of the script exhibited by him, if there be any other matter of fact to which a declaration of credence, to be delivered by the party exhibitant, according to a preappointed formulary, be safely applicable, it will be, in the case of an instrument of contract, the fairness of the contract.
Perhaps also, in some cases, where in and by the script in question, this or that matter of fact is averred or assumed by a statement of which, by the exhibition of the script in the character of evidence, he seeks to avail himself, an additional subject of his declaration of credence may be the verity of the whole, or of this or that part of the contents of the so-exhibited script.
With these observations, the applicability of a declaration of credence—understand always according to a preappointed formulary—may be left, till the time shall come for putting the instrument to the test by the application of it to this or that particular case.
But let it not be forgotten, that the declaration of credence to which the above-mentioned objections apply, is only of that sort which would be consigned to a preappointed formulary. Extracted by interrogation, the declaration is not the less a declaration of credence: and in this shape it may be rendered obtainable, without any of that danger to which, as above, it would, in the case of a preappointed formulary, stand exposed.
Correspondent in some sort to the declaration of credence as above described, on the part of a party exhibitant, is, on the other part, the declaration of discredence which, by the relation it bears in the way of opposition to the other, seems sufficiently explained: it is a sort of counter security, that presents itself as requisite to be given, in return for and in consideration of the other.
The object of the one is to prevent dishonest and insincere exhibition: of the other, to prevent dishonest and insincere contestation;—that sort of contestation, by which, under the encouragement given by the technical system, a party in whose mind no doubt respecting the verity, or as the case may be, the genuineness of this or that article of evidence which is ready to be exhibited on the other side,—or in case of an instrument of contract, the fairness of the contract,—requires the proof of it, partly for the purpose of oppression, viz. by means of the delay, vexation, and expense, partly for the chance of succeeding by misdecision; by misdecision, the looked-for result of accident, by which the forthcomingness, or the authentication of the articles of evidence in question, may be prevented: and the perpetually recurring result of that system under which, from the non-observance of some unpreappointed and ex post facto established condition, on grounds frequently not so much as pretended to have any relation to the merits of the cause, a pretence for refusing to the plaintiff the promised service, is, at the suggestion of a dishonest defendant’s law-assistants, extracted by the judge at pleasure.
Second Safeguard—Code of instructions concerning the weighing of Evidence.
By the article thus denominated, is meant to be presented to view, a body of instructions sanctioned by the legislator, and by him addressed to the judge, to serve him for his guidance.
In the character of a preservative against deception, in place of exclusion, suspicion has, in the course of this work, been all along brought to view.
In the several instances in which, under the present system, on the ground of untrustworthiness, and for fear of deception, exclusion is, with any appearance of reasonable cause, howsoever inadequate, put upon this or that article of evidence, the main object and use of such a code will be to direct the eye of suspicion upon the evidence, by indication of the circumstances by which, in the character of causes of comparative untrustworthiness, the demand for suspicion, and thence for circumspection and scrutiny, is produced.
Of the system of instructions in question, this, however, though the main object, and the only object which on the present occasion and to the present purpose comes directly in view, will not by any means be the only object, the only business, or the only use. Taken all together, the object of such a system will be, to present to, and keep under the eye of the judge, under the head of each species of evidence, a sort of table of the circumstances by which the probative force of it seems liable to be influenced.
For the construction of such an instrument of security, fortunately the hand of power—of public power—is not altogether necessary. An instrument of this sort, put together, in a form however imperfect, out of such materials as honest diligence unarmed with power could command, forms accordingly part of the matter contained in the body of this work.*
Of the circumstances which, with so blind a precipitancy, have by temerity or dishonesty been taken for grounds of exclusion, many will naturally be found to serve in the character of grounds of suspicion,—but, even in that character, not all of them.
Of instructions, furnished as here by an uncommissioned hand, one advantage is—that under so powerful a check as that which will be so sure to be opposed to them by adverse authority, exerted by sinister interest and intrenched in prejudice, they are in little danger of operating with greater force than is their strictest due:—a disadvantage is, that over whatever part of the field the iron hand of exclusion stretches, the voice of instruction, for any effect it can produce, is powerless, and might as well not be lifted up.
Third Safeguard—Recordation of cases where suspicious evidence has been received.
By the substitution of the system of instruction to the system of exclusion, could any real fear of prevalent deception and consequent misdecision be produced? By the testimony of experience, as recorded under a set of appropriate heads in the official books, all such fears might effectually be dispelled.
1. Causes in the year so many;—2. Whereof, causes in which, to suspicious evidence, of such and such species, distinguishing each species, admission had been given, so many;—3. Among which, the instances in which the result had been in favour of the suspicious evidence, are so many;—4. In the number of those in which the result was in favour of the side on which the suspicious evidence was admitted, would be seen the maximum of the mischief, if any, that could have been thus produced by the abolition of the exclusionary system: I say, if any; for, on the occasion of any given suit or cause, it is only from the view of the whole body of evidence, and not from the mere circumstance of admission given in each individual instance to suspicious evidence, coupled with that of a decision pronounced in favour of that side, that any just ground could be made for any such inference as that deception, misdecision, and thence mischief, had in that cause been the result.
In regard to scripts in general, and instruments of contract in particular, it has been stated as a matter of general notoriety, that in comparison of the whole number exhibited, the number of those of which the genuineness has been matter of real distrust or doubt, and as such has been rendered the subject-matter of contestation, is small in the extreme.
Of the here proposed system of recordation, one effect would be the exhibiting the exact number of, and thence the exact proportion between, these two aggregates: and so, in the case of those instruments of contract, in the instance of which the fairness of the contract itself,—of the engagement entered into, or the disposition made—became a subject of contestation.
In the same way, in the list of contested instruments would be noted and preserved the difference between the number of those in which, to appearance, the prescribed formalities had been observed, and the number of those in which, in that respect, failure was in any shape visible; notice being likewise, in each instance, taken of the particular shape or shapes in which the failure had presented itself.
[* ]When, to enable a man to entitle himself to right in any shape, or (to speak still more generally) to advantage in any shape, any such declaration is exacted from him as without danger of discovery may in any respect be false—falsehood, and upon a scale to which there are no bounds, is sure to be the result:—falsehood, of which the legislator who exacts or permits the exaction of any such declaration, is the suborner. In this case, the right—the advantage—is a bounty upon insincerity—upon positive mendacity; and the hand of the sovereign is the hand which offers it.
[* ]See also Appendix A.