Front Page Titles (by Subject) PROSPECTIVE VIEW. - The Works of Jeremy Bentham, vol. 6
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PROSPECTIVE VIEW. - 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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Before entering on the perusal of the following work, it may afford some satisfaction to the reader to understand, from a general intimation, the nature and extent of the information which he may expect from it.
The results may be comprised in three propositions: the one, a theorem to be proved; the other two, problems to be solved.
The theorem is this: that, merely with a view to rectitude of decision, to the avoidance of the mischiefs attached to undue decision, no species of evidence whatsoever, willing or unwilling, ought to be excluded: for that although in certain cases it may be right that this or that lot of evidence, though tendered, should not be admitted, yet in these cases the reason for the exclusion rests on other grounds; viz. avoidance of vexation, expense, and delay. The proof of this theorem constitutes the first of the three main results.
To give instructions pointing out the means by which what can be done may be done towards securing the truth of evidence: this is one of the two main problems, the solution of which is here attempted. The solution of it is the second of the three main results.,
To give instructions serving to assist the the mind of the judge in forming its estimate of the probability of truth, in the instance of the evidence presented to it; in a word, in judging of the weight of evidence: this is the other of the two main problems which are here attempted to be solved. The solution of it constitutes the third of the three main results.
Of these propositions, the first, which is the only one of the three by which an opinion is announced, can scarce have failed to present to the mind of the professional lawyer the idea of novelty, and not of simple novelty only, but of paradox. Of my own country I speak in the first place; and the observation may, without much danger of error, be extended to every other of the most highly enlightened nations. Many and extensive are the masses of evidence against which an inexorable door is shut by obligatory rules. But, of the masses of evidence thus excluded, the composition is more or less different as between nation and nation.
As to the third problem,—to give instructions for judging of the truth of evidence,—so far as the proposition contained in the leading theorem is contradicted by authoritative practice, the solution of this problem is rendered unnecessary. An exclusion put upon a lot of evidence saves all discussion respecting the degree of weight to be allowed to it. Shut the street door in a man’s face, you save the trouble of considering the degree of attention that shall be shown to him in the house.
Objections, the effect of which (if allowed in that character) is to exclude the testimony of a witness altogether, are in the language of English law styled objections to his competency.
Translated, then, into the language of English law, the following is the import of the first of the three propositions:—In the character of objections to competency, no objections ought to be allowed.* Willing or unwilling, witnesses of all descriptions ought to be heard: the willing not to be excluded on any such grounds as those of imbecility, interest, or infamy; the unwilling not to be excused on any such ground as that of their unwillingness, either established or presumed; not even in any such cases as those of family-peace-disturbing, trust-betraying, self-convicting or accusing, self-disgracing, or in any other way self-prejudicing evidence.
Of the matter contained in any English law-book bearing the word Evidence on its title-page, a principal part consists of references to decisions by which objections to evidence have been either allowed or disallowed in the character of objections to competency. In the character of objections to competency, so far as the proof here given of the first of the three above-mentioned propositions were deemed satisfactory, they would be disallowed, all of them, in the lump.
But even in this case, the experience and reflection which dictated the allowance given to those objections in judicial practice, would not be altogether lost. Disallowed in the character of objections to competency, there is not one of them (those only excepted, in which the exclusion turns on the ground of unwillingness) that would not be to be allowed in the character of an objection to credit—to credibility. And it is in this character that they will afford so much matter to be employed in the solution of the latter of our two problems: they will serve in the framing of the rules or instructions for estimating the weight of evidence.
In stating the dispositions of the English jurisprudence on the subject of evidence, there will be occasion to lay down and establish the following propositions:—
1. That the system, taken in the aggregate, is repugnant to the ends of justice: and that this is true of almost every rule that has ever been laid down on the subject of evidence.
2. That it is inconsistent even with itself; and in particular, that there is not a rule in it which is not violated by a multitude of exceptions or counter-rules, which are observed in cases in which the reason of the rule so violated applies with as much force as in the cases where it is observed.
3. That this inconsistency has place, not only as between rule and rule, but as between period and period: between the system observed in former periods, and the system observed in later periods.
4. That, consequently, the objections drawn from the topics of innovation, subversion, &c. do not bear, in the present case, against the introduction of a rational and consistent system: inasmuch as reasonable dispositions might be substituted, in many if not most cases, by the mere adoption of the exceptions, to the exclusion of the general rule.
5. That the fittest hand for introducing improvement into this branch of legislation, would be that of the legislature.
6. But that it might be introduced even by the judicial authority, without that inconvenience which would attend the making changes by this authority in the texture of the substantive branch of the law. The exclusive rules relative to evidence belong to the adjective branch of the law: the effect of them is to frustrate and disappoint the expectations raised by the substantive branch. The maintenance of them has this effect perpetually: the abolition of them, even though by the judicial power, would have no such effect, but the contrary.*
If the discovery of truth be the end of the rules of evidence, and if sagacity consist in the adaptation of means to ends, it appeared to me that, in the line of judicature, the sagacity displayed by the sages of law was as much below the level of that displayed by an illiterate peasant or mechanic in the bosom of his family, as, in the line of physical science, the sagacity displayed by the peasant is below the sagacity displayed in the same line by a Newton. No peasant so stupid as to use a hundredth part of the exertion to put it out of his own power, for his own benefit and that of his family, to come at truth and to do justice within the circle of his family, as what have been employed by those sages to put it out of their power to discover truth and do justice for the benefit of their fellow-subjects within the circle of the state.
Such were the reflections that presented themselves to an uninformed, but happily a new and uncorrupted understanding, on the opening of the grand fountain of legal instruction on the subject of evidence, the work of the Lord Chief-Baron Gilbert.
At the distance of half a century, the first conceptions of youth have been submitted to and confirmed by the cautious scrutiny of riper years. The result of that scrutiny is now submitted to the public eye.
It appeared to me, that no private family, composed of half a dozen members, could subsist a twelvemonth under the governance of such rules: and that, were the principles from which they flow to receive their full effect, the utmost extravagance of Jacobinism would not be more surely fatal to the existence of society than the sort of dealing, which in these seats of elaborate wisdom calls itself by the name of justice. That the incompre-hensibility of the law—a circumstance which, if the law were wise and rational, would be the greatest of all abuses—is the very remedy which in its present state preserves society from utter dissolution; and that, if rogues did but know all the pains that the law has taken for their benefit, honest men would have nothing left they could call their own.
Such was the prospect that presented itself to me on my entrance upon this branch of moral science. I had come warm to it from the study of physical science. I had there seen the human mind advancing with uninterrupted and continually accelerated progress towards the pinnacle of perfection: facts wanting, but, by the unmolested and even publicly assisted industry of individuals, the deficiency continually lessened, the demand continually supplied: the faculty, the organ, of invention sound, and by wholesome exercise increasing in vigour every day: errors still abundant enough, but continually and easily corrected, being the result not so much of prejudice as of ignorance: every eye open to instruction, every ear eager to imbibe it. When I turned to the field of law, the contrast was equally impressive and afficting.
Plowden, one of the heroes of jurisprudence, of the growth of the sixteenth century, was a deserter from one of those professions which are built on physical science: he flourished towards the latter part of the reign of Elizabeth. From the report of a cause relative to a mine, he took occasion to unfold to the eyes of his brethren of the long robe the wonders of mineralogy: a terra incognita, as strange to them as America had been to their immediate progenitors. “The theory of mineralogy,” said he, “is to the last degree a simple one. In sulphur and mercury, the Adam and Eve of the mineral creation, the whole tribe of metals behold their common parents. Are they in good health? the two perfect metals, gold and silver, are the fruits of their embrace. Do they labour under any infirmity? the effects of it are seen in the imperfect metals, their imperfect progeny.”
It rests with the reader to judge, whether the principles of mineralogy as delivered by Plowden, are more absurd in comparison of the principles of the same science as delivered by Lavoisier, than the principles of the law of evidence as delivered by Gilbert, and practised by the infallible and ever-changing line of succeeding sages, will be found when compared, I will not say to the truest principles, but to the rules unconsciously conformed to in the humblest cottages.
The peasant wants only to be taught, the lawyer to be untaught: an operation painful enough, even to ordinary pride; but to pride exalted and hardened by power, altogether unendurable.
Supposing all this to be true—supposing the law of evidence to be in so bad a state, all the world over, as it has here been represented, so incompetent on every occasion to the discovery of truth, so incompetent therefore, on every occasion, to the purposes of justice,—how could things have gone on as they have done? how could society have been kept together? Such are the observations that would be apt enough to present themselves on this occasion to an acute and discerning mind.
The answer is—that, all the world over, what has been done by the law towards the preservation of society, has, on this ground, as on so many other grounds, been done, not so much by what the law is in itself, as by the opinion that has been entertained of it. But as the conception, such as it is, that non-lawyers have had it in their power to obtain, and have been accustomed to entertain of it, has been derived from the only source from which it could have been derived, viz. the account given of it by lawyers; and as, according to all such accounts, the law has at all times, and through all its changes, been the perfection of reason; such, therefore, it has in general been taken to be, by the submissive and incurious multitude. By their own experience, its imperfections must all the while have continually been exhibited to their view; but experience is not sufficient always to open the eyes that have been closed by prejudice. What their experience could exhibit to them, was the effect: what their experience could not exhibit to them, was the cause. The effect, the sufferings themselves, that resulted to individuals from the imperfections of the law, were but too indubitable: but the cause to which they were imputed, was the invincible and irremediable nature of things, not the factitious and therefore remediable imperfections of the law. The law itself is perfect: this they heard from all quarters from whence they heard anything about the matter: this they heard at all times, and on all occasions, from the only men who so much as pretended to know anything about the matter.
The law is an Utopia—a country that receives no visits, but from those who find their account in making the most favourable report of it.
All this while the violations of justice have been continual. But had they been ever so much more frequent, they would scarcely have contributed more effectually than they have hitherto done, to lay open the real state of the case, the true cause of the mischief, to the public eye. To individuals, that is, to the suffering party in each case, and his immediate connexions, the suffering produced by those violations was more or less acute: but even to the individual who suffered, his own suffering, considering the source it was seen to flow from, scarce presented itself in the character of a grievance. To the public at large, it could never have presented itself in any such character: because, to the public at large, it has always been impossible to know anything about the matter. To lawyers, the suffering has all along been known, and fully known: but to lawyers, how, in the nature of men and things, has it been ever possible that it should have presented itself in the character of a grievance? What sensation is ever produced in the breast of an angler, by an impaled and writhing worm? in the breast of a butcher, by a bleeding lamb? in the breast of an hospital surgeon, by a fractured limb? in the breast of an undertaker, by the death of a father or mother of an orphan family? If a fly were to be put on the hook, in a month when a worm is the proper bait—if the lamb were to be cut up into uncustomary joints—if, in the tying up of the stump after amputation, a three-tailed instead of a five-tailed bandage were to be employed—if, in the decorations of the coffin, the armorial bearings of the deceased were to be turned topsy-turvy—if the testimony of a duke or an alderman, exposed to the temptation of a sinister interest to the value of the tenth part of a farthing, were to be admitted, and an oppressed widow or orphan family gain their rights in consequence—if the rules established in the several professions, established with reason or against reason, were to undergo violation:—these are the incidents by which, in the several classes of professional men, a sensation would be produced; meaning always a sensation of the unpleasant kind.
In English legislation, the causes—meaning the ultimate and original causes—of the imperfections the removal of which is endeavoured at in the present work, are no other than those from which the whole swarm of imperfections with which the whole body of the law is still infested, derive either their existence or their continuance.
Inclination, power, knowledge—these three preliminary requisites concurring, the work, whatever it be—the work, how useful soever, how arduous soever, is accomplished. Any one of them failing, it remains unaccomplished; the accomplishment of it is impossible. And in so far as any one of them fails, in so far must the accomplishment, should it have proceeded to a certain length, remain imperfect.
For a work which is at once so arduous and laborious, adequate inclination cannot be looked for with any rational prospect of success, unless it have been committed to some workman, and he a competent one, under the character of a duty.
A duty, be it what it may, will never be fulfilled, any farther than it is the interest of each person concerned in the work, to do that which is his duty.
Apply these well known and undisputed and indisputable principles to the work in question—the removal of the imperfections in question, as well as all other imperfections of the law.
Of the three altogether indispensable requisites, power—power in quantity and quality altogether adequate, cannot be denied to be in existence. It is the only one of the three that is.
As to inclination, and, in the first place, as to duty: what is every man’s business is no man’s business; what is every man’s duty in name, is no man’s duty in effect. Among the sharers of legislative power—that power being supreme, and the sharers in it collectively irresponsible—legislation, i. e. the proposition of laws, is to each one a right, to no one a duty.
Taking the whole body of the laws together, or with an exception made of this or that particular branch of it,—were the imperfections ever so much more numerous and pernicious than they are, there is not that individual to whom any one can say with justice—“The fault is in you; you have been neglectful of your duty.”
It not being to any effectual purpose the duty, still less is it the interest, of any one alive. With or without knowledge, there exists not, nor in the present state of things can exist, that man whose interest it can be said to be.
Were it the interest of every individual in the whole community, that interest would in each instance be worse than unavailing, if in any instance it were found to exist undirected by the requisite stock of appropriate knowledge.
One class of men there is, by whom the stock of knowledge, appropriate to this purpose, is completely monopolished and engrossed. There is not one of them whose interest acts towards the accomplishment of this most arduous of all possible works: there is not one in whom the force of interest does not act in direct opposition to it. Of all those who have any concern of any kind with the established system, there is not one who would be a gainer by its being better than it is: there are few, very few, who would not be gainers by its being worse than it is.
Yet, as often as a proposition, of the smallest or of the greatest moment, but more especially of the greatest, is presented to the legislature, a question put at the outset is, Has it the approbation of the gentlemen of the long robe? If silence, or an answer in the negative, is the result, down drops the proposition dead-born, and a mixture of contempt and indignation, instead of respect and good-will, is the return made to the proposer.
What is more, how ample soever the stock of knowledge may be that is to be found among the exclusive possessors of the appropriate knowledge necessary to the work, in quality it would yet be found far indeed from being adequate. The stock in hand is adapted to its intended purpose, but is not suitable to this other purpose.
In regard to such arrangements as may in the course of the following work be brought to view in the character of remedies to the abuses of which the existing system is composed, two general observations may be found applicable—two observations respecting the reception they may naturally expect to meet with from the two different classes of persons of which the public is composed.
To a non-lawyer, in proportion as an arrangement of this sort appears conducive and necessary to the ends of justice, it will be apt to appear needless. So perfect the system, can it have failed to make provision—the best provision which the nature of things admits of, for the attainment of those ends? The best possible provision—which is as much as to say, either the proposed arrangement, if it be a good one, or one still better.
To a lawyer, in the same proportion, it will accordingly appear odious and formidable. Conscious that no such arrangement is established—conscious that not so much as the semblance of an equivalent, much less any preferable substitute, is established—conscious, if his own horn-book be not completely strange to him, that these abuses are the stuff of which it is made, that to the mischief with which these abuses are pregnant, it contains nothing that is, or can be, or was ever intended to be, a remedy,—the light in which it will be his business to represent the remedy, represent it with the best possible effect to the non-lawyer, and therefore, if possible, to himself, will be that of a wild, fanciful, visionary arrangement,—too alien from practice, and therefore too bad or too good—no matter which, either character will serve—to be a practicable one.
On the present occasion, his task, however, will not be altogether an easy one: for in the arrangements which will be proposed in the character of remedies, there is nothing, or next to nothing, that is not in practice, everywhere and every day, before his eyes. Extension, it will be seen, is all they stand in need of.
[* ]Understand, so far as rectitude of decision is the only object. If on any other ground any exemption be established, it will be on that of delay, vexation, or expense; viz. on the supposition, that the certain mischief flowing from one or more of these sources will be more than equivalent to the contingent mischief apprehendible from the danger of wrong decision, in consequence of the exclusion of the evidence.
[* ]The terms, adjective and substantive, applied to law, are intended to mark an important distinction, first pointed out to notice by this author; viz. the distinction between the commands which refer directly to the ultimate ends of the legislator, and the commands which refer to objects which are only the means to those ends. The former are, as it were, the laws themselves; the latter are the prescriptions for carrying the former into execution. They are, in short, the rules of procedure. The former, Mr. Bentham calls the substantive law; the latter, the adjective.—Editor.