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CHAPTER IV.: ON THE INTERNAL SECURITIES FOR TRUSTWORTHINESS IN TESTIMONY. - 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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ON THE INTERNAL SECURITIES FOR TRUSTWORTHINESS IN TESTIMONY.
1. First internal security, particularity of the statement.
In this respect, we may conceive the statement as resting altogether in generals, or as descending lower and lower in the region of particulars, till at last everything is in such a degree particular as to become individualized: persons, things, portions of space, and portions of time.
The more particular it is,—the more instructive, the more satisfactory, the more trustworthy. Why? The reason is very simple. The more completely it thus descends into particulars, the more matters of fact it contains and exhibits, in respect of each of which, supposing it to vary from the truth, its variation is liable to be disproved, and the witness convicted of mendacity, or error at least, by other evidence. Every step it takes in the region of particulars, whether downwards in the Porphyrian scale, or sideways all round in the field of circumstances, affords an additional security. The degree of particularity proper to be insisted on in each case cannot be indicated by any description applicable to all cases. But, in jurisprudential practice, examples are not wanting of a degree of generality so vague, that, to a judgment unblinded by prejudice, it will be manifest at first glance, that scarce any the slightest degree of trustworthiness can reasonably be attached to it. Yet, in these very instances, the testimony has not only been received, but treated as conclusive.*
Hence one cause of the comparative untrustworthiness of purely spontaneous testimony. Why? Because, by the supposition, there being no room for interrogation, the degree of particularity rests altogether at the deponent’s choice. In the function and right of putting questions, is included the right of commanding the deponent to descend to any degree of particularization, of which, with or without any deceptious design on his part, he may have stopped short.
Give to any person—for example, to the judge—this scrutinizing power,—the testimony, supposing it to abide this test, possesses a degree of trustworthiness which otherwise could not have belonged to it.
Under the head of particularity, two qualities may be included:—speciality, or rather individuality—and circumstantiality: qualities, which, how intimately soever connected, will be found distinct in their nature, and in some respects in their application to the purpose now in hand.
For the purpose of forming a ground for decision, so long as the fact is in other respects exposed to doubt, a relation is never particular enough, unless the fact be individualized, that is, fixed and circumscribed in respect of time and place.
Titius has killed a man: a relation to this effect is as yet no evidence; though repeated by a hundred deponents, each declaring himself an eye-witness, this would not as yet be ground sufficient for a decision pronouncing Titius convicted of homicide. Titius has killed an Englishman or a Frenchman, an old man or a young man, a tall man or a short man: by no such specification would the deficiency in the former relation be sufficiently supplied. Titius has killed Sempronius: this is nearer the mark, but neither is this sufficient. At what time was the act committed? In what year, month, day, hour?—in what place?—in what province, township, road, field, garden, house, room in the house? It is not till all these points have been fixed, that the fact has been individualized: and till the fact has been thus individualized, the evidence is scarce as yet brought to the level of direct evidence; it hangs still in the air, in the character of circumstantial evidence.
“Quis? quid? ubi? quibus auxiliis? cur? quomodo? quando?” says a verse, useful for memory, and to be found in the institutional books of ethics.
By the ubi and the quando, place and time are designated; and by the answers to those questions, if sufficiently particular for the purpose, the fact is individualized.
As to the other questions, so far as they go,—by the answers to them, the fact, besides being individualized, is circumstantialized, circumstantiated.
So many circumstances, so many criteria by which, supposing the testimony false in any point, the falsity of it may be indicated and detected. Hence, the more circumstantiated the testimony, the greater the security it affords against deception and consequent misdecision, on the part of the judge.
Between speciality and circumstantiality there is this difference: Circumstances which contribute to the giving speciality, down to individuality, to the statement, will all of them be found relevant to the purpose or object to which the testimony is directed—to the substantiating the demand, or the defence—to the showing that the individual fact in question belongs to the species of fact to which the law has intended to annex such and such consequences. They belong, accordingly, to the list of those circumstances, which, in so far as they happen to be present to his recollection, it is proper that he should bring to view in the first instance.
To the head of circumstantiality, considered as distinct from speciality and individuality, belong all those circumstances which, without being relevant to the purpose in question, may yet serve as tests or criteria of the correctness of the deposition—of the veracity and attention of the deponent.
Being, with respect to the purpose in question, irrelevant, they will not come with propriety from the deponent in the first instance. But if (as by interrogation) it be required of him to give to his statement the additional extent in question, an extent that shall embrace the circumstance or circumstances indicated to him for that purpose,—in that view it is, that, the question being relevant, the answer will be so too, and both question and answer proper and instructive.
Take, for example, the case of Susanna and the two Elders. To the head of speciality, down to individuality, belonged the several circumstances which these false accusers thought it advisable to bring to view of their own accord, for the purpose of producing in the mind of the judge a persuasion of the delinquency of the intended victim of their malice.
But, by way of test of their veracity, the ingenuity of her advocate suggested, and called upon each of them to speak to, a topic in itself irrelevant. Affirming that it was under a tree that the fact was committed, and that in the supposed scene of the transaction trees of different sorts were included,—of what sort was that tree? The witnesses being examined out of the hearing of each other, each out of the way of receiving mendacity-serving information from the other,—one pitched upon a tree of one sort, the other upon a tree of a different sort; and, by this mutual contradiction, the falsity of their statement was detected.
Whether under a tree, or not under a tree,—and if under a tree, under what sort of tree,—were circumstances, the irrelevance of which, with relation to the guilt of the supposed transaction, was altogether manifest; but, from the contradiction thus produced, these irrelevant circumstances acquired a sort of accidental relevancy; and the purpose for which they were brought to view was accomplished.
2 and 3. Recollectedness and unpremeditatedness.
These qualities are, as logicians say, simul naturâ: and primâ facie directly opposite, and mutually exclusive of one another.
Recollectedness to every good purpose, unpremeditatedness to every bad purpose: recollectedness to the purpose of a man’s searching into the storehouse of his memory, and spreading out before the judge the articles it contains: unpremeditatedness to the purpose of a man’s setting his judgment and invention to work upon these same articles, in the view of suppressing, disguising, or altering, any of the facts his memory has furnished him with, or delivering false facts in lieu of them, or along with them. Even in this closer view, the two qualities still present themselves as mutually exclusive and incompatible. For, if recollection be necessary, time must be allowed for it: and unless it be by the allowance of suggestion (of which presently,) it is only by the allowance of time that any assistance, tending to put the testimony in question in possession of this quality, can be afforded by the legislator. But if time be allowed for this honest and desirable purpose, what shall hinder its being employed for the opposite dishonest and undesirable one?
Notwithstanding these unfavourable appearances, a still closer view will show it not to be altogether out of the reach of the ingenuity of the legislator to afford the necessary assistance to the desirable result, and at the same time to throw no inconsiderable obstruction in the way of the undesirable one.
No man but must have felt—no man but feels every day of his life, the necessity of recollection for his own use,—the necessity of recollection, and thence of time to be applied to that purpose: for his own use, and therefore when the existence of any desire to deceive is impossible.
As to the quantity of time that may by possibility be necessary to this purpose,—necessary to a man in the character of a deponent,—there is scarce any assignable limit to it. Does Titius owe anything, and what, to Sempronius? To enable the deponent to find an answer, and that with truth and full assurance, perhaps not a second of time may be necessary—perhaps a number of weeks, or months, not to say years. Titius and Sempronius are both merchants, dealing to all parts of the world: the accounts between them are long and complicated:—or, Titius is an executor, his testator a man possessed of large property in a variety of shapes, burthened with a variety of debts; among assets and among debts, a number of articles depending upon so many diversified contingencies.
Nor is the demand for recollection terminated in every instance by the moment which completes the delivery of the testimony:—forgetfulness or mis-recollection is but too frequent, when it is for a man’s own use that he makes his search, and when, as before observed, the existence of any desire to deceive is impossible. But if the testimony brought out in the first instance has been in any material respect incorrect or incomplete, there remains a demand for ulterior recollection on the part of the same deponent: recollection, if possible, of new facts, for the correction or completion of the mass delivered in the first instance.
It is for this contingency that we shall see provision made by design, though with a hand not always equal, and sometimes rather scanty under the names of repetition and recolement, by the Roman law: as also (though without a name, because without design, and consequently in some instances with great redundance, in other instances not at all,) by English law.
4 and 5. Suggestedness and unsuggestedness: the quality of having been assisted by suggestions to every good purpose, and the quality of not having received any such suggestions to any bad purpose.
Between this pair of antagonizing qualities and the former, there is manifestly a very intimate connexion. And here again recurs the mystery, by what contrivance the good purpose can be promoted without the bad—the bad obstructed without the good.
The same experience—the same constant and universal experience, which evinces to every man the need he may have of whatever information can be derived from his own memory, evinces to him also the need he may have of whatever assistance can be derived to his memory from the memory of others: and that, too, where the existence of any desire to deceive, or to be deceived, is alike impossible.
On this ground, as on the former, first appearances are apt to be fallacious; shutting out a hope which a closer scrutiny will show not to be an unreasonable one. To suggestions from without, what possible obstruction can ever be thrown, it may be asked, by any obstacle which it lies within the power of the legislator to apply?
When a man delivers false testimony, what there is of falsification in it may be either of his own invention, or of the invention of some one else—either home-made or imported.
Made at home or abroad, the inventor of it must have had a stock, a ground, composed of true facts, to work upon.
To the true man, knowledge of facts—of any other facts than what are presented to him by his own memory, is of no use. Why? Because all true facts are consistent with each other: his facts being true, they cannot receive contradiction from any other facts that are so likewise.
To the mendacious deponent, on the contrary, knowledge of other connected facts is indispensable: his stock of this sort of information cannot be too extensive for his security against detection; it can never, indeed, be sufficiently extensive: because every true fact that has any discoverable bearing upon the case, presents a rock upon which, if unseen, his false facts, one or more of them, are liable to split.
So they be but relevant, true and false information may be alike subservient to the purpose of the mendacious deponent: or rather, on the single condition of being relevant, truth cannot but be of use to him; whereas, the use he can make of suggested falsehood will depend, not only upon its being well adapted to his mendacious purpose, but also upon its being better adapted than any which his own invention could, on that same occasion, have supplied him with.
Upon this view, the importance of the quality of unsuggestedness appears already in its true light: at the same time, the difficulty of promoting it by any arrangements within the power of the legislator, presents itself as yet in a false, and, happily, an exaggerated light. What are the problems that seem to present themselves to him for a solution? Required, on the present occasion, to exclude a man from all intercourse with his fellow men,—on the former occasion, to deliver him from all access to his own thoughts, from all communication with himself.
Thus much indeed is true, that in every instance there exists a point of time, down to which recollectedness and suggestedness are qualities of which no man’s testimony can be deprived, unpremeditatedness and unsuggestedness, qualities which no ingenuity on the part of the legislator can endow it with. Equally true it is, that from and after that point of time, no inconsiderable degree of security is actually produced (not to speak of what may be produced) by arrangements lying within the power of the legislator and the judge. What will also be seen is, that from the commencement of this period there is no such absolute incompatibility as hitherto there has appeared to be, between the antagonizing qualities compared with one another—between recollectedness and unpremeditatedness—between suggestedness and unsuggestedness: no such incompatibility but that a sufficient portion of time to a good purpose—time applicable to the purpose of recollection, and opportunity sufficient for receiving information assistant to that same purpose, may be allowed to a deponent; while the time and information capable of being employed in the fabrication, or receipt and adoption, of false and mendacious testimony, may in no inconsiderable degree be kept out of his reach. But the designation of this critical point of time, as well as the delineation of the requisite system of arrangements commencing at that same date, will be more clearly apprehended, when, under the head of external securities, we come to speak of interrogation.
6. Interrogatedness.—A mass of testimony, extracted from a man by the process of interrogation, will almost always be more or less different, in substance as well as in form, from the testimony of the same man on the same occasion, if spontaneously delivered, without the assistance or controul of any such operation. To the external security created by that process, corresponds, therefore, an internal security, afforded by the texture which, under the influence of that operation, the testimony itself has been made to assume. Nor is the case materially different, where, a mass of testimony having been delivered in the first instance without the aid of interrogation, the extractive force of that process is afterwards employed in adding to the original a supplemental mass.
It is by interrogation, and not without interrogation, that testimony too general for use is brought down to individuality, and clothed with instructive circumstances: it is by interrogation, and not without interrogation, that indistinct testimony is rendered distinct—cleared from the clouds in which it has involved itself, or been involved.
It is by interrogation, aptly and honestly applied, though not exclusively by interrogation, that testimony is assisted by information, subservient to it in respect of correctness and completeness. It is by the skilful application of this instrument, that a mass of testimony, while left in possession of that degree of recollectedness which is necessary to correctness and completeness, is deprived of the quality of premeditatedness in a state of things in which the time demanded on pretence of recollection might be but too apt to be employed to the purpose of fraud.
7. Distinctness.—Distinctness, like health, is a negative quality in the garb of a positive one. Health, in the natural body, is the absence of disease: distinctness, in a body of evidence, is the absence of a most pernicious disease called indistinctness—a disease for which, as will be seen under the natural system of procedure in its original simplicity, there is no place—a disease which owes its birth in most cases to the implanting hand of the regular-bred practitioner. Even when not planted by art, the seeds of it are attached, as it were, to the nature of written evidence: in vivâ voce evidence, if for a moment it makes its appearance, interrogation, if admitted, drives it out the next.
An article of testimony, so long as it is indistinct, may be neither general nor particular, and neither true nor false. Until subjected to that process, by which it may be ascertained whether the confusion in it be the result of honest weakness or of dishonest artifice, no indications, no decision, can be justly grounded on it. It is worse than false evidence—it is worse than no evidence: for from falsehood, when seen to be such, as well as from silence, indications highly instructive may be, and are, every day deduced: but from indistinct testimony, till it be understood to be tantamount to silence, nothing can be deduced.
8. Permanence. So great, as must be obvious to everybody, is the importance of this quality, that, till the means, the only means of producing it, came into use, justice must everywhere have stood, or rather floated, upon a basis comparatively unstable.
Purport depends upon tenor—effect and substance, upon words: and if the words are forgotten, or doubtful, or in dispute, on what sort of foundation is it that the decision has to ground itself? Everything may come to depend on the question whether this word or that word—whether this word has or has not—been employed: and when the decision on this question rests on the memory of one man, opposed by the memory, or pretended memory, of another, justice is thus left to be the sport of fortune.
For the effects of all kinds produced by it at the first moment after its utterance, a mass of testimony depends upon itself; but at every moment after the first (one may almost say without exaggeration) it depends upon its having, or not having, received the quality of permanence;—in a word, on its having, or not having, been clothed in the form of written discourse. Divest it of this security, it becomes each moment more and more liable to be changed or lost; having been correct—to become incorrect, having been complete—to become incomplete: for, the instrument whereby the effect is produced upon the mind of the judge, and of all other persons taking upon themselves at any subsequent period to contemplate it in the point of view in which it is contemplated by the judge, is—not the testimony itself, but that picture of it only which is present to the conception of him by whom it is so contemplated. So that, by the want of this one security, whatever care has, with whatever success, been taken to endow the testimony with those other qualities, may be lost.
Nor is it merely by its existence that this quality is productive of the desirable effects in respect of correctness and completeness: even upon the mind of the deponent, at the very instant of giving utterance to his testimony, the assurance that nothing of it will be misrepresented or lost, will, by the force it gives to the truth-ensuring motives (whatever they may be,) to the action of which he is exposed, operate with no inconsiderable force as a security for the attention requisite on his part to invest it with those primarily essential qualities.
Such is its importance in the case of a bonâ fide deponent: for even in the case of a bonâ fide deponent (especially if, being without interest of any kind, he be completely indifferent to the issue of the cause) a certain degree of attention on his part will be necessary to his bestowing upon his testimony whatever degree of correctness and completeness it happens to be in his power to bestow upon it.
But to the supposition of bona fides and complete indifference, substitute that of mendacity, or even bias. In what case now lies the chance for correctness and completeness? It is not merely that there may be a deficiency in the force of the motives necessary to secure the measure of attention necessary to these qualities; but the motives by which the bias, or determination of mendacity, has been produced, act in a manner without check. The punishment or the shame a man may be exposed to by the falsehood of his testimony,—every security of this sort depends upon the words of it, upon the recollection which somebody has, or pretends to have, of them; and the words of it are liable at all times to be mis-recollected, or forgotten.
Before writing came into use,—in order to give the best hold that could be given upon the memory,—laws, moral sayings, and whatever other discourses were judged most worthy of remembrance, were clothed in rhyme or measure. But even among Italian improvisatores, where is the man who, along with correctness and completeness, could give measure and rhyme to testimony?
Strictly speaking, it is only in respect of its influence on the mass of testimony in question—on the correctness and completeness of it, that the consideration of the quality of permanence belongs to the present head. But the correctness and completeness—the trustworthiness, of testimony itself, is no otherwise of importance than in the character of a security against misdecision on the part of the judge. Suppose, then, the testimony vanished, or the purport of it a subject of doubt and dispute,—and, from any cause whatsoever, a disposition to misdecision, wilful or temerarious, on the part of the judge,—in what condition is the only check that can be opposed to it?
Independently of desert,—power and authority never fail to invest with a prodigious body of factitious credit the assertions, direct or implied, of every man who speaks from so commanding a station as the seat of judicature. Be the reclamations of the losing party ever so well founded, what degree of credence can they hope to find, when this security is wanting against the testimony—the implied testimony, of the judge?
In this state of things, when, either from the mendacity of a deponent, or from the unrighteousness of the judge, a suitor has received an injury, on what basis stands his chance for redress?
Nor are the benefits that depend upon the permanence of testimony confined to the station of the suitor. If in this imperfect quality the unrighteous judge finds a necessary check, the righteous judge finds in the same quality a most desirable protection. On the testimony, as really delivered, he pronounces a decision aptly deduced from that testimony. But, from the clamour of rash or mendacious tongues, the testimony, or the extra-judicial accounts thus given of it, being misrepresented and mutilated, he finds himself covered with the obloquy and disrepute due only to wilful misdecision and injustice.
Take away this security, and mark the contrast, the deplorable contrast, which is liable to be exhibited by the fates of the unrighteous and the righteous judge. The former reaps insecurity, the fruit of his unrighteousness: the latter, the righteous judge, suffers under the affliction which ought to have fallen upon the unrighteous one.
When justice was left to totter upon this fluctuating basis in the case of original judicature, what must have been its condition in the case of judicature upon appeal?
1. On the occasion of this fresh inquiry, if the evidence be collected de novo, every day, by helping to rub out the impression left upon the memory of the deponent, will lessen the probability of correctness and completeness in the testimony.
Every day, while it thus lessens the assurance for trustworthiness on the part of the testimony of the deponent, will lessen in the same proportion the security for probity, and on that ground the security against wilful misdecision, on the part of the judge.
If no part of the original mass of testimony but what is thus delivered de novo, be admitted, every day adds to the chance of deperition, by death, absentation, or latency, designed or casual, on the part of the deponents of whose testimony it was composed.
The expense and vexation attached to this second exhibition, is, moreover, so much added to the account of collsteral inconvenience.
2. If the same witnesses be not thus heard over again, there remains no other alternative but that of hearing an account of the supposed substance of their testimony from some person who has been, or pretends to have been, present at the time of its being delivered.
But, in this way, all the above-mentioned probabilities of incorrectness and incompleteness receive an indefinite increase: the whole mass of direct evidence is transformed and degraded into hearsay evidence.
Of the importance of publicity, a view will come to be taken in its place: but in how great a degree that external security will, for its possible extent and magnitude, be dependent on the permanence of the signs to which the testimony is committed, is obvious to every eye.
When the testimony was destitute of the quality of permanence, how precarious at best must have been the chance for justice, is but too apparent. But a circumstance not altogether so evident, nor yet unworthy of regard, is, in how great a degree this chance, such as it was, must have depended upon promptitude: understanding by promptitude, the shortness of the interval between the time of receiving the testimony, and the time of pronouncing the decision grounded on it.
Give permanence to the evidence,—delay no longer adds, to its own appropriate and certain mischiefs, the danger of being productive of misdecision and ultimate injustice. A body of evidence hastily delivered, must be followed in every instance by a decision hastily pronounced: lest the traces left upon the memory of the judge be obliterated or distorted, the decision must be pronounced at a period before the time necessary for due reflection has been completed, and before the tumult that may have been raised in his passions has had time to subside.
Many are the instances in which it happens that a mass of evidence, delivered or extracted on the occasion or for the purpose of one suit, may be applied with advantage to the just decision, or (what is much better) to the prevention, of another. But in how great a degree its use in this respect depends upon the permanence or impermanence of its form, is obvious at first sight. Give it but permanence—commit it but to writing,—the same mass of evidence may be applied to the decision or prevention of any number of suits, and this without any considerable addition to vexation or expense; whereas, without this instrument of economy, the quantity of each inconvenience would be to be multiplied by the number of such suits.
[* ]Ex. gr. Wager of Law.