Front Page Titles (by Subject) CHAPTER VII.: OF SHAME, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY. - The Works of Jeremy Bentham, vol. 6
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CHAPTER VII.: OF SHAME, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF 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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OF SHAME, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
Shame may be considered as operating in the character of a security for trustworthiness in testimony, in so far as, on the occasion of a man’s delivering testimony, the contempt or ill-will of any person or persons is understood to attach, or apprehended as being about to attach, upon a deviation, on his part, from the line of truth.
Shame, it is but too evident, in the character of a principle of action, cannot upon all occasions be relied upon as a sufficient security, without the aid of legal punishment. Some men are below shame; some men are above it. Power will, in some situations, place a man above shame. In England, however, power is hardly sufficient to place a man above shame, without a pedestal of false science. In England, a king, were he ever so much inclined, could scarce dare to deliver a notorious falsehood from the throne. In the same country, however, no judge (I except always the judges for the time being) ever yet feared to deliver from the bench notorious falsehoods, under the name of fictious (and the whole system of common law procedure is made up of fiction)—or to suborn jurymen to deliver falsehoods not less notorious, and aggravated into perjury.
Happily, however, for mankind, shame, in this its character of a security for trustworthiness, is not altogether without its influence on uncorrupted minds,—I mean on minds which, howsoever it may be in respect of corruption from other sources, have not the misfortune to be exposed to that corruption which is poured down in such torrents from the heights of English judicature.
In the Danish courts of justice denominated Reconciliation Offices, oath is out of the question, punishment is out of the question; truth has no other support than the sentiment of shame. Yet, strange to tell—strange at any rate to an English ear—more causes in that country are determined in these courts, from which the professional lawyer is excluded, than in all the courts put together in which the system of technical procedure, with its apparatus of oaths and punishments, bears sway.
Even in England, cases in which the only punishment that bears upon the case is that which consists in shame, are neither unknown to lawyers, nor unheeded by the legislature. Awards, for the correctness and completeness of the testimony on which they are grounded, having nothing else to trust to: and by an act of the legislature,* the power of the regular tribunals is applied to the giving force to these decisions—decisions pronounced by judges, learned or unlearned, constituted by the joint choice of the parties.†
The force of the moral sanction, as applied to this purpose, is a most commodious and valuable supplement to that of the political. It condemns upon less evidence: it inflicts a punishment pro more probationum, reduced in intensity in proportion to the faintness of the evidence: it admits of a middle course between condemnation and acquittal—an expedient which in general cannot be, or at least is not usually, resorted to by the punishment of the political sanction, as applied by judicial procedure: upon the appearance of fresh lights, it is able, without difficulty, to divest itself of any such undecided character, and either fill up the measure of its punishment, or strike it off altogether, according to the complexion of the case.
Much of that which appears to be done by fear of punishment alone, is really done by fear of shame—a fear which, howsoever backed and strengthened by fear of punishment, would not of itself have been by any means without effect.
In the course of this work, we shall have but too frequent occasion to observe the debility that has been introduced into the constitution of the political sanction by the rashness that has given birth to the established rules of evidence. In these cases, the force of the moral sanction—the force of public opinion—steps in, and supplies to a certain degree (however incompletely) the place of that force which, by the unskilfulness of the commanders, has thus been rendered unserviceable. It prevents nominal and apparent impunity from being altogether equivalent to real; and helps to moderate, when it does not do away entirely, the triumph of successful guilt.
When accused for the purpose of punishment, a delinquent, in escaping from punishment, does not always escape from shame. Judges, when by their quibbles—statesmen, when by their intrigues with judges—they save a man from merited punishment, do not always save him from shame. Judge and Co., in selling exemption from punishment,‡ and thus far impunity, do not—cannot (where evidence is heard, and not excluded by other quibbles) sell exemption from shame.
To the efficiency of this security, unhappily the limits are but too apparent. Shame, to constitute on this occasion an adequate succedaneum to legal punishment, supposes on the part of the deponent a certain degree of moral sensibility—a certain degree of probity. But, be that degree what it may, the cases in which the demand for coercive judicature is the most urgent, are those in which no such degree of probity is to be found.
On this as on every other occasion, the influence of shame depends, in no small degree, upon mutual presence—upon the interchange of the language of the eye, between those on whose part the contempt and ill-will is apprehended, and him in whose breast the apprehension of those sources of incalculable affliction is excited.
On this account, the influence of shame is attached, in no small degree, to that mode of collection in which the testimony is delivered vivâ voce—delivered by the deponent in the presence, if not of the adversary, at any rate of a judge, or (what is most usual) an assembly of judges, with his or their ministerial officers and subordinates.
Accordingly, in the procedure of the Danish Reconciliation Courts, this mode of delivery is an essential feature. On the part of the party, or (what comes to the same thing) a non-professional substitute by whose acts and words he is bound—personal appearance,—not sham personal appearance, as at the English regular courts, but real personal appearance—attendance (by what words shall the idea be conveyed to the mind of an English lawyer?)—is an indispensable requisite.
The natural securities for trustworthiness in testimony have been adverted to in the preceding Book:* and of these, that for the designation of which the word shame is here employed, was one. In the present Book, this same principle of action has been comprised in the list of factitious instituted securities. Why? Because to this security, standing by itself, no inconsiderable part of the business of factitious judicature hath, as we have seen, been entrusted: because, in the instance of the Danish Reconciliation Courts, the admission of this security, to the exclusion of factitious punishment, required and called forth a positive act of the Danish legislature: and because the choice of that mode of testification, on which the efficacy of this principle of action in so great a degree depends, is another positive institution, in the establishment of which the will of the sovereign must take an active part.
When punishment, factitious punishment, to be attached to the species of delinquency in question by an express act of will to be exercised by the legislator, was the principle of action in question,—rules were found necessary to be brought to view, for the purpose of guiding the application of it: rules, the demand for which, on this occasion as on others, had been created by non-observance. The legislator, on this as on so many other occasions, acting under the guidance of hands engaged by interest to mislead him, has on this as on so many other occasions, acted in continual opposition to the dictates of utility and justice.
The public, whose finger, on this as on so many occasions, the power of shame is in the habit of following, with a degree of obsequiousness such as it knows better than to bestow upon the “finger of the law;”—the public, in its application of the principle of shame to the subject in question (in so far as the force of that principle is at its disposal,) is already in the habit of following those same rules, which, for the direction of the force of legal punishment, it became necessary, as above, to bring to view.
1. Applied to falsehood in the shape of testimony, punishment (says one of these rules) should attach upon temerity, as well as upon mendacity. And so, under the dispensation of the tribunal of public opinion, does the punishment of shame: making the proper distinction between the degrees of delinquency in the two cases.
2. Applied to falsehood in the shape of testimony, punishment (says another of these rules) should apply to every occasion without exception, in which it is uttered in that shape. And so, with this unerring and unsleeping steadiness, under the uncorrupted dispensation of the tribunal of public opinion, does the punishment of shame: making (in proportion to the instruction it has imbibed from the principle of utility) a distinction, in respect of the severity of its punishment, corresponding to the shades of depravity dependent on the occasion on which it may happen to falsehood to be uttered in this shape.
As to the remaining rules brought to view under that head, they will be seen to bear no application to the present purpose.
[* ]9 and 10 W. III. c. 15, anno 1698.
[† ]If, previously to any regular application to a technically proceeding tribunal, a plaintiff were obliged to address his demands in the first instance to a tribunal proceeding in the mode indicated by natural justice, these arbitration courts would in that respect coincide in their nature with the Danish Reconciliation Offices. But these occasional arbitration courts not having existence but by the joint act of both parties, such coincidence is impossible.
[‡ ]Vide infrâ, Book VIII. Technical Procedure, Chap. XIV. Nullification.
[* ]Book I. Chap. XI. Moral causes of correctness and completeness.