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CHAPTER II.: DANGERS TO BE GUARDED AGAINST, IN REGARD TO TESTIMONY, BY THE ARRANGEMENTS SUGGESTED IN THIS BOOK. - 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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DANGERS TO BE GUARDED AGAINST, IN REGARD TO TESTIMONY, BY THE ARRANGEMENTS SUGGESTED IN THIS BOOK.
The proper object of the judge, according to the most general description that can be given of it, is, on every occasion to pronounce such a decision as shall be called for by the law, on the ground of the facts of the case: and, for that purpose, to form, in relation to each material fact, by means of a statement afforded by human testimony or otherwise, a conception exactly conformable to the truth; so far at least as is material to the decision which he is called upon to pronounce:—
In this endeavour he will be liable to be defeated by any of the following results.
1. If in relation to any such material fact the testimony be in any point incorrect, although such incorrectness be unaccompanied with that self-consciousness which mendacity implies.
2. If in relation to any such fact it be incorrect in the way of mendacity, as above.
3. If the collection of the facts thus presented to his conception, be in any respect incomplete.* By such incompleteness, the rendering of the decision duly adapted to the case may be as effectually prevented as by incorrectness or mendacity itself. To warrant a decision (say on the plaintiff’s side,) let proof of certain facts, in a certain number (say four,) be necessary. If three of these only be proved (say each of them by two witnesses, the testimony of each witness being correct in the extreme) and not the fourth, the plaintiff will be as effectually debarred of his right, as if there had not been a single particle of truth in the testimony of so much as one of their number.
Incorrectness, mendacity, and incompleteness—such are the imperfections from which it will be the object of the legislator to preserve, on each occasion, the evidence that, in the shape of human testimony, comes to be presented to the judge.
The idea of incorrectness being included in that of mendacity, the mention of the word incorrectness may be apt to appear superfluous.
The distinction will, however, be found to be highly material, and that to more purposes than one:—
1. In the first place, as will be seen, the list of securities is not the same in the two cases. Suppose bona fides, for example:—prompting—suggestive indication and interrogation, would in many cases be highly conducive to the correct and complete disclosure of the truth of the case; highly useful against false asseveration, false negation, and, in particular, false omission; and, comparatively speaking, free from danger: suppose mala fides, the same sort of assistance may be to be guarded against with the legislator’s utmost anxiety and diligence.
2. The other purpose regards punishment. Unaccompanied with temerity, simple incorrectness presents, it is obvious, not the least demand for punishment: accompanied with temerity, it may present a demand for punishment, viz. in some comparatively inferior degree, not rising above that which is insuperably attached to the burthen of rendering pecuniary satisfaction in case of injury: accompanied with mala fides, it rises into that serious crime, which, by a very intimate, though, as will be seen, a very unfortunate association, has, in the cases where punishment has been attached to it, been designated by the name of perjury.
So far as the failure is accompanied with bona fides, the legislator finds, by the supposition, no will acting in opposition to him; he has scarce any difficulty to contend with; the demand for securities is inconsiderable. When, on the contrary, the transgression is accompanied by, and originates in, mala fides, it originates in design, in fraud: he finds human will, perverse will, acting against him with all its might; and all the securities he can muster, with all the force it is in his power to give to them, prove but too often inadequate to his purpose.
Were it possible for the legislator, viewing each transaction from his distant station, to draw a line in each instance between the two cases, and say to himself, this man is in mala fides, but this other in bona fides, his task would still be comparatively an easy one. Unfortunately, from the distant station he occupies, no such determinate line can be drawn: of one sort of man, he may say he is most likely to be in mala fides, as in the case of an accomplice; of another sort, he is most likely to be in bona fides, as in the case of official evidence:* but, with sufficient grounds of assurance, he can never ground his arrangements exclusively either on the one supposition or on the other, in any instance. A determination of this kind must either be abandoned altogether, or (under favour of the appropriate information extractible from each individual case) intrusted to the probity and prudence of the judge.
There being no individual whatever, of whom the legislator, in his position, can be warranted in regarding himself as completely sure that his testimony will be altogether pure from mala fides—there is no individual soever, for whose case he can avoid providing—to be applied eventually at least, and sooner or later—whatever securities it is in his power to supply, for the purpose of combating those sinister motives, to the action of which human testimony can never cease to be exposed.
To the three imperfections above enumerated, must be added, for practical reasons that will be presently seen, that of indistinctness—an imperfection which, though not exactly synonymous either with incorrectness or incompleteness, may, according to circumstances, have the effect of either. In truth, one of the two effects it must be attended with, to be capable of giving birth to deception, and thence to misdecision: if it be not productive of this bad effect, the only remaining bad effects of which it is capable of being productive (and of those it is but too apt to be productive,) are reducible to the heads of vexation, expense, and delay.
To the consideration of the dangers to be guarded against by the securities in question, must be added that of the stations to be guarded against those dangers: these are, all of them, reducible to two—that of the deponent, and that of the judge.
Under the designation of deponent must here be comprised, not only extraneous witnesses, but each and every party in the cause, where it happens to him, whether at his own instance or that of an adversary, to deliver his testimony in the cause.*
The quarter from which the imperfections above mentioned are most to be apprehended, is evidently that of the witness. But as judges, as well as witnesses, are men, both of them exposed, though not altogether equally exposed, to the seduction of sinister interest, the station of the judge is not, any more than that of the witness, to be wholly overlooked in the precautionary arrangements taken on this ground. As it may be, in a certain sense: the interest, and at any rate the endeavour, of the witness, to suppress the truth, in the whole or in part, so may it be that of the judge: as it may be the endeavour of the witness to convey false impressions to the judge, so may it be that of the judge to receive, or to have a pretence for acting as if he had received, such false impressions, in preference to true ones. In a certain sense, the judge will always have an interest in receiving the evidence in an incomplete state; because the farther it is from being complete, the less his trouble. One species of sinister interest there is, the love of ease, by which, on every occasion, the judge will be prompted to receive the evidence in an incomplete state. The influence of this cause of seduction will become but too manifest as we advance.†
This interest is, on this occasion, the more dangerous, inasmuch as it is opposed with so little force by the tutelary sanctions, the political and the popular, and its agency is so little apt to betray itself to the eyes of those to whom the application of the castigatory force of these sanctions respectively appertains. The exertions a man makes in this way, to preserve himself from trouble, are oftentimes scarce perceptible even to himself. Against corruption on the part of a judge, all mankind are up in arms—all mankind are constantly upon the watch; ready to impute it upon strong grounds, upon slight grounds, and sometimes without any grounds. To precipitation, to inattention, on the part of the judge,—his suitors, his auditors, his superiors—in short, mankind in general, are comparatively inattentive.
The transgression of the deponent is as nothing, any farther than as it is productive either incidentally of vexation, expense, and delay, or ultimately of misdecision, the transgression of the judge. But of the judge’s possible sphere of transgression, that of the deponent forms no more than a part. On the part of the judge, misdecision may indeed have been produced by some transgression (occasioned either by his inattention, or by his ill-directed attention) on the part of the evidence. But it is equally possible for the judge to transgress, to misdecide, without any regard to the evidence.*
Correspondent to the nature of the several imperfections, is that of the respective remedies. To incorrectness and mendacity,—detection, and thence, if possible, correction, by the substitution of correct evidence in the place of it. To incompleteness,—detection of the incompleteness, and thence acquisition of evidence concerning the facts not brought forward by the evidence in its original incomplete state.
A remedy of a higher nature than the above—a remedy never to be lost sight of in such remedial measures, such securities for trustworthiness, as come to be employed,—is prevention in the first instance—prevention of incorrectness and mendacity, especially the latter; prevention also of incompleteness.
But the two objects—detection on the one hand, prevention on the other—these two objects, distinct as they are in a theoretical view, will, in a practical point of view, be found to coincide. Why? Because the one of them cannot be pursued but through the other; the means by which the prevention of the malpractice is aimed at, being no other than those, by the use of which, supposing the malpractice hazarded, detection, it is wished and expected, may ensue. The witness is incompassed with the fear of detection, and of the unpleasant consequences in its train—a misadventure which he sees ready to befal him, in the event of his swerving from the path of truth. The prospect of this miscarriage is before his eyes; and, by the fear which it inspires, the wish and expectation is, that his footsteps will all along be confined to that desirable path, the only one that leads, directly at least, to justice.
By the detection and correction of the above several imperfections on the part of the evidence, the danger of the correspondent failures on the part of the judge—viz. deception and non-information, and in either case misdecision, is obviated, as far as that danger has its source in the tenor of the evidence.
To the above imperfections and dangers, the remedies immediately applicable are as above. These, however, being altogether obvious—too completely so to be the objects of remark, are not the remedies, are not the securities, we are in quest of. If they are worth mentioning here, it is only in the way of memento, not of instruction, and for the purpose of keeping the line of investigation and arrangement unbroken and complete. The remedies that require research, and are of a nature to pay for it by their importance, are those remedies of a higher order that will meet us a little farther on, under the appellation of securities for trustworthiness in testimony.
Among these, so far are they from being obvious, we shall find some, and those among the most efficient, which, with a comparatively narrow exception, have hitherto remained hidden from the eyes of the most enlightened nation on the globe.
[* ]Regarded in a certain point of view, the two imperfections—falsehood (including incorrectness and mendacity,) falsehood and incompleteness—may appear to coincide. Previous to the exhibition of the testimony, an oath, suppose, is exacted from the deponent—an oath promising completeness. Such oath having been taken, if the deposition be in any respect incomplete, it is in so far false.
[* ]See Book IV. Preappointed, Chapter VIII. Official Evidence.
[* ]Witness (to speak here of deposing witness) is an appellation that with propriety may be, and sometimes at least of necessity must be, applied to the designation of every person whose discourse, when exhibited to a court of justice, is employed in the character of testimony, or say evidence. If this be true, it must be applied, every now and then, to those who are parties in the cause, as well as to persons who, not being parties, are more commonly meant when the word witness is employed.
[† ]See Book IX. Exclusion.
[* ]In general, whatever security serves to guard the station of deponent by operating as a check to transgression in his sphere, will apply, with more or less efficiency, to the station of judge, by operating as a check to transgression in that superior sphere. But there are some—publicity, for example—that apply, either exclusively, or with a more particular energy, to the station of judge.