Front Page Titles (by Subject) CHAPTER XXXII.: LIBERALISTS AND RIGORISTS—PARTIES BELLIGERENT IN THE FIELD OF JURISPRUDENCE, AND IN PARTICULAR OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXXII.: LIBERALISTS AND RIGORISTS—PARTIES BELLIGERENT IN THE FIELD OF JURISPRUDENCE, AND IN PARTICULAR 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.
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LIBERALISTS AND RIGORISTS—PARTIES BELLIGERENT IN THE FIELD OF JURISPRUDENCE, AND IN PARTICULAR OF EVIDENCE.
As formerly, under the Roman law, there were the Proculian and Sabinian sects,—so, under English law, judges and law-writers may be considered as divided into Liberalists and Rigorists: not that between the two sects there is any gulph fixed, but that from either the one to the other an individual may pass, and back again at any time, as often as it happens to him to find it convenient. Praise in one shape or the other he is equally sure of, which soever side he takes: his only difficulty is, on any given occasion to choose between the two shapes, in which of them on that occasion it shall be served up.
The law of evidence, as has been seen, is almost exclusively composed of exclusionary rules; and these rules, as already there has at least been seen reason to suspect, almost exclusively absurd and mischievous. Being thus absurd and mischievous, sufficient reason for the infringement of them can never be wanting:—being at the same time acknowledged rules, over and over again acted upon and conformed to, as little can abundantly sufficient reason ever be wanting for conforming to them: and as often as it is found more agreeable or convenient to conform to the rule than to break it, the chains by which the reverend and learned person feels himself bound to the observance of it, are adamantine chains.
Lord Mansfield, in his day, used to be considered as the great champion and leader of the liberalists:—Lord Camden, his rival and bitter enemy, of the rigorists.
In a fit of courage, Lord Mansfield ventured to give the Bar to understand, that the decisions of his predecessors were apt to be very absurd, and very unfit to set the rule to future ones:—which, when compared with so many rules of statute law, was altogether true, but compared with the absence of all rules, altogether false.
“We do not sit here,” says he,* “to take our rules of evidence from Siderfin or Kelk:”—in plain English, when so it happens that a rule laid down by a predecessor of mine in office is not to my taste, I will not hold myself bound by it. At the sight of this flourish, down falls upon the knees of his heart the author of that useful work on evidence, by whom so much labour has been saved to the author of this work, and acknowledges the mind of the judge in question, for one of those “great minds” who exercise the right of thinking for themselves, before they assent to the authority of others.
On another occasion, “The absurdity of Lord Lincoln’s case,” says the same great mind, “is shocking; but it is now law.”—What was the plain English here? That on this occasion he had no particular wish to pronounce a decision repuguant to the rule deducible from that case. Here, then, may be seen the liberalist and the rigorist under one hood: tribute of admiration and applause belonging to both characters received into one box. Speaking with the liberalist, he acted with the rigorist.
Between the first Lord Mansfield and the first Lord Camden—at least as towards the first Lord Mansfield in the breast of the first Lord Camden—there existed not only a rivalry, but a sort of hostility, which, among the partisans and admirers of the “indiscriminate defence of right and wrong,” attracted in its day a measure of attention, scarcely inferior to that which, at a later period, has been bestowed upon the contests of Crib and Molyneux by the amateurs of pugilism:—and in the titled pair of boxers, the regard for the welfare of mankind, and for unsophisticated justice, might, without flattery, be stated as not being, primâ facie, inferior to what it may reasonably be supposed to be in the untitled ones.
By the accidents of the war of party, the junior of them had been placed on the side which had found its account in taking a line of conduct less unfavourable to the interests of the great community than that which, by so many motions of course, had been travelled in by the other.
In the course of the contest, the word discretion, being on every occasion employed by every judge, had probably enough been employed by the Lord Chief-Justice of the King’s Bench:—and by that noble and learned person, on that occasion as on others, discretion had probably been spoken of as a sort of faculty or mental qualification, which, in the execution of his office, it might not be altogether improper for a man in the situation and character of a judge to be provided with and to exercise. Not a syllable more was then and there wanting to satisfy the learned and right honourable the Lord Chief-Justice of the Common Bench—then not as yet a Lord of Parliament—that discretion was not only a bad quality, but a quality at least, if by an oblique cast it could be stuck upon the sleeve of the Lord Chief-Justice of the Upper Bench, odious: odious, if not absolutely and to everybody without exception, at any rate to every man whom it found disposed to hate Lord Mansfield for doing what he did, whatever that might be.
“The discretion of a judge,” says he, in his Genuine Argument,* bawling out all the way to the eye in capitals—“the discretion of a judge is the law of tyrants; it is always unknown: it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every folly and passion to which human nature is liable.”
Till this time, discretion had passed, if not for an heroic virtue, at any rate for an innocent and not altogether useless quality: nor, in the situation of a judge, not to speak of inferior ones, would it have been pleasant to a man to be thought altogether destitute of it.
From that time, by the worshippers at least of the first Lord Camden, it has on all proper occasions been deemed and taken to be that bad thing which he discovered it to be: and indefatigable was the applause which the discovery had been worth to him in his time.
Now suppose two professors of the art of venal eloquence—one paid for being a liberalist, the other for being a rigorist. Out comes the one with the vapouring about Siderfin and Kelk: out comes the other with the invective against discretion: to which of them will the laurel be due? Judgment-seat the jury-box, gifts of nature equal: Answer—To him who with most fruit has sitten at the feet of Siddons. Judgment-seat the bench: Answer—Who dare!
The curious thing is, that the dart thus aimed at the enemy goes through and through the very heart of their common mother, Common Law herself. What, in the way of insinuation, was predicated of, and meant to be deemed and taken to be peculiar to the works of that one of her children, would, upon the strictest examination, be found to be with the strictest truth predicable, and, if she should so long live, will continue for ever predicable, of herself and all her works. The picture is drawn in lively colours, and, to render it a most correct likeness, needs no other change than of the name—for discretion of a judge, read common law.
Behold here, then, the great, the important difference—that between common and statute law. As to the demirep’s two fighting children, of whom the Tory was the better tempered and the better bred, the difference was never to an honest man worth thinking about. “It was casual, and depended upon situation.” Had Murray been a Rigorist, Pratt would have been a Liberalist: had Murray been a Whig, Pratt would have been a Tory: The difference? It was between Bavius and Mævius. Both were enemies, as every admirer of common, in contradistinction to statute law, is, and ever will be,—both alike sworn enemies to security in society, to certainty in law.
By such “exercise,” as has been seen—by such “exercise of the right of thinking for themselves,” not to speak of others—by such a course it is, that, “rejecting those cases which were not supported by principles, that great judge established a system (as it seemed to the learned author above mentioned) for his successors to follow: and competence and credibility,” continues he, “so frequently confounded together, are now accurately defined and well understood.”
A system for his successors to follow?—What system?—a system of doing what they pleased? This, as has been seen, was the system not only taken up, but avowed by this great judge; and if, what we are to understand from the learned institutionalist be, that this was the system which it was the design of the great judge should be followed by his successors, and that, whether it were or no, it is the system that has been followed by those same successors, these are propositions from which it may be neither necessary, nor upon any good grounds an easy task to dissent.
Competency and credibility, so frequently confounded together, are now accurately defined and well understood. Of these three propositions, the first is altogether above dispute: to the two others, or either of them, the assent given cannot be altogether so clear of reserve. Frequency of confusion;—admitted:—accuracy of definition;—doubtful:—goodness of intellection;—doubtful likewise.
That minds are not wanting by which they are well enough understood, may very well be: but as to any definitions that have been given, whether by that great judge or any other, whether it be by means of, or in spite of such definitions, that the act of intellection has taken place, may be not altogether free from doubts.
Yes: if even now so it be that the matter in question be understood, it is not by means, but in spite of, any discourse of which the words competence and credibility, as opposed to each other, are the leading terms, that the intellection must take place: for seldom have any words that have been employed with reference to the purpose for which they were employed, if clear conception be that purpose, been so incompetent as are these two words, of the use of which, confusion having been the object, confusion has so successfully been the effect.
On each occasion, nothing can be more simple than has been the question, when expressed in that simple language, which is adapted to the expression of it. Tender has been made of a person in the character of a deposing witness. Question: Shall he be, or shall he not be, admitted? Admit or not admit, would have been the simple, the proper language, or, still shorter than not admit,—exclude. What is called for is a plain act of will:—but in technical procedure, will is never either so safe or so powerful as when it is in disguise: those adventurous persons, whose exploits gave a subject and occasion to the act called the Black Act—those are the public men whose line of policy, those great men, who conduct and act under the technical system, find so much convenience in pursuing.
To exclude or not to exclude, is the determination which the judge has come to in his own mind: such is the result of his will: required to find a cloak for it? To do this, a discovery is made of two qualities—competence and credibility—in the character of properties inherent in the nature of the testimony itself,—the testimony which, if admission were given to the witness, he would give. To admit him? Is that your determination? You say he is a competent witness:—he belongs to that class of persons to whose testimony the property of competency appertains:—and he being admitted and quietly stationed in the witness’ box, then comes the question of credibility—a question on which the determination cannot be given till after his testimony has been heard and produced, whatsoever impression it may be found calculated to produce.
To exclude him? Is that your determination? Without suffering him to open his mouth to say anything, at least anything that is to the purpose, you turn him about, and observing how in regard to externals he is circumstanced, you pronounce the word incompetent;—the man, you say, is an incompetent witness;—his testimony, of which you know nothing not having heard it,—whatsoever, if it were suffered to be heard, it would be,—is incompetent evidence.
Two lawyers or sets of lawyers, having each of them been employed in drawing an act of parliament,—say for shortness, two lawyers, neither of them knowing what they meant,—employed in the description of a witness, one of them the word competent, the other the word credible. Placed where they are, both of these epithets were words of surplusage; neither of them had any distinct meaning attached to it; each of them was much worse than useless.
Credibility, employed on such an occasion, or on any occasion, to designate a property as belonging to a witness,—nothing can be more idle. Credibility is capacity of being believed. Being convicted on the oath of a credible witness—where is the possible witness that is not credible? Where is the witness whose testimony, if it find men who believe it, is not capable of being believed, is not actually believed:—of this word credible, what is the design? To prevent men from believing testimony which cannot by possibility be believed?—or to prevent men from believing testimony which ought not to be believed? Is this the use expected from the word? But if so, in what way is it expected to be productive of or contributory to that effect?
Equally incapable of serving any useful purpose, is the other word competency when so placed. Competent testimony—what is it, if anything, but testimony which ought to be received—which ought not to be excluded?
At no time can there have existed any lawyer in whose mind the faculty of clear conception can have been so completely destroyed as to have been incapable of learning so plain a matter of fact; a subject of such continual experience as that, while in some cases testimony is admitted, in others it is excluded: and that in each case, for determining which shall be a man’s lot, ill observed, as well as ill deserving to be observed, as they are, there have always been a set of rules.
Now then, in putting before the expression witness the adjunct competent, what, if he had had any beyond the making up the customary mass of surplusage, could have been his meaning? Was it that in the instance of a witness to whose testimony it should happen on any such occasion as that in question to be tendered, application should be made of these rules? Their not being applied was a misfortune, which he could not have had any ground for apprehending, neither had any such obscure and inexpressive word as the word competent any tendency to prevent it. Was it that of these rules, on the particular occasion in question, application should not be made? Still less by the insertion of the word in question, could any such design be promoted: on the contrary, it could not but be counteracted.
Taken by themselves (can it be necessary to observe?) neither in the one word nor in the other is there any meaning, applicable to any such purpose as that of the dispute on the occasion of which they are employed: viz. on the occasion of the individual suit in hand, whether, in the character of a proposed witness, the individual person in question should be admitted or excluded.
To any such purpose, definition therefore is an operation of which they are not either of them susceptible. So far as concerns this purpose, everything depends on the sentences, the entire sentences, in which they are respectively employed—and of these sentences no mention has been ever made.
In regard to these much celebrated words, what upon the whole is the result? That they are both of them words to which, on the occasion in which they were employed, in the minds of the persons by whom they were employed no distinct meanings were annexed: that, employed where and as they have been employed, they have been words without meaning—words, consequently, from which no just conclusions would ever be drawn, by which no light can be reflected on that subject or any other;—that in the character of words significant of so many different attributes of testimony, or of evidence in any other shape, they are not fit to be employed;—that they never have been, nor ever can be accurately defined;—that they never have been, nor ever can be well understood.
What, then, have they been? This is what they have been: Portions of rubbish picked up from the lay-stall upon which they had been shot down; picked up, and by imposture converted into masks for arbitrary power to disguise itself in; designed originally for, and made up into masks, but in the course of a pancratium which had place between two heroes of the technico-jurisprudential school, taken up by each of the combatants, and employed instead of brickbats, to pelt his adversary with.
Of the same convenient character there are two maxims, by which, on all points open to litigation, what is done or proposed to be done, be it what it may, may be defended. The one is stare decisis, the other is malus usus abolendus est. These are for use under jurisprudential, alias common law, at the bar or on the bench.
In a legislative assembly, instead of stare decisis, an Englishman has nolumus leges Anglicæ mutare; and to the remembrance of these words, the assistance of Von Feinagle is not necessary: but so soon as they are uttered, the hearer may be assured, that what is proposed to be changed is so execrably absurd and mischievous, that but for these four words, there could not be found a one word to say for it.
[* ]Blackstone, I. 366.
[* ]4to. Printed for Wilkie 1771.