Front Page Titles (by Subject) CHAPTER VIII.: OF WRITING, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY. - The Works of Jeremy Bentham, vol. 6
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CHAPTER VIII.: OF WRITING, 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 WRITING, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
The art of writing, besides its other infinitely diversified applications, has been productive of such important effects, good and bad, in relation to evidence, and thence (as well as in many other ways) to judicature,—that a few words, for the purpose of giving a general and comprehensive view of its application in both directions—in the way of conduciveness, and in the way of opposition, to the ends of justice,—may not be misemployed.
Of this inquiry the practical object is almost too obvious to need mentioning: to prepare the mind of the legislator, on the one hand, for pushing to its maximum the use—on the other, for reducing to its minimum the abuse—of so powerful an instrument in the hand of justice or injustice.
In this, as in so many other instances, the union between the use and the abuse is unhappily but too close: the chemistry by which they may be separated, and the abuse precipitated, is not of easy practice.
In the character of an external security for the correctness and completeness of testimony, the uses of writing are as obvious as they are various:—
1. Of distinctness it is oftentimes a necessary instrument. Where the mass of testimony is small,—the string of facts requiring to be brought to view short,—the employment of this security may be unnecessary. But, let the mass be swollen to a certain bulk,—the deponent who is able to give it the distinctness requisite for producing a clear conception of the whole in the mind of the judge, without using a pen of his own, or borrowing that of another, will not often be to be found.*
2. In the same case, the use of it to the purpose of recollection—complete as well as correct recollection—may be equally indispensable. Accordingly—where writing is in common use, and testimony (as under English law) is delivered vivâ voce, and the transaction of which a man has been a percipient witness, has, in respect of its importance, appeared to him to be of a nature to create a probable demand for future testimony—it is no uncommon incident for a man to have given ease and certainty to his memory, by committing to writing a statement of the perceptions entertained by him at the time; and by English practice, such memoranda are allowed to be consulted by him while he is in the act of delivering his evidence. At any rate, if interrogation be employed for the extraction of the testimony, and the string of questions be long, and presented to the witness, all of them, or a considerable number, at a time, the having the questions in writing, for the purpose of giving occasional refreshment to the memory under the burthen thus laid upon it, may be altogether indispensable. For, in this case, it is not sufficient for a man to recollect the perceptions presented to him at the time by the mass of facts in question; he must, besides this, have continually present to his mind the conception of the several questions put to him—of the several facts to which he has thus been called upon to depose.
3. It is to the art of writing that testimony is altogether indebted for the quality of permanence, and thence for the security which that quality affords for the correctness, as well as completeness, of whatever testimony has been delivered: understand, for its correctness and completeness (when it has swelled to a certain bulk) on any day, not to say hour or minute, subsequent to that on which it has been delivered.
4. One case there is, and that of no small extent, in which testimony is indebted to writing for its very existence. This is where, for any cause, the appearance of the witness (the percipient witness) at the judgment-seat—the place where the judicial testimony would have been to be delivered—either is physically, or is deemed to be prudentially, impracticable.†
In every such case, were if not for the use of writing, either the testimony would be altogether lost, or if delivered at all, it would not be delivered without being degraded from the rank of immediate to that of hearsay evidence: suffering thereby, in point of trustworthiness, that defalcation, the nature and value of which will be brought to view in its place.‡
Such is the importance of good judicature to general civilization—such the importance of writing to good judicature—that,—independently of the application of this master art to the several other departments of government,—the absence of it as applied to judicature would of itself (it is probable) have been sufficient to stop the progress of civilization at a stage greatly below any that we see at present anywhere in Europe.
Causes of a certain degree of simplicity,—and happily the great majority of causes are within this desirable degree,—may, supposing probity on the part of the judicatory, be tolerably well decided without writing: because decision may follow upon evidence before the memory of it in the breast of the judge is become incorrect or incomplete. In a cause involved in a certain degree of complication, the use of writing is in a manner necessary to good judicature. But civilization must have stopped far short of its present advanced stage, if complicated causes had not been susceptible of just decision as well as simple ones.
If, under natural procedure (as in the small debt courts) causes are in general sufficiently well decided without the committing of the evidence to writing, it is because the description of the case is there so extremely simple: and even in these cases, security against misdecision is sacrificed in some degree to the avoidance of vexation and expense.
But though, in respect of their number, the causes simple enough to have been suffered to be decided in the way of natural procedure constitute the most important class; yet, individually taken, causes in the highest degree complicated, possess, in general (so far as property is concerned) a proportionable degree of importance: witness bankruptcy causes, and causes relative to testaments, in each of which property to the amount of millions may be at stake upon a single cause.
If such be the importance of writing, even on the supposition of undeviating probity on the part of the judicatory, its importance is in a much higher degree exemplified in the character of a security against improbity: and, in particular, in the character of an instrument of extensive and lasting publication.
As it is only by writing that the grounds of decision can be made known, beyond the narrow circle composed of the few by-standers; hence, without writing, there can be no tolerably adequate responsibility on the part of the judge. But for writing, a single judge would decide on every occasion as he pleased: an oligarchical bench of judges, as they could agree; a democratical bench (as indeed it is too apt to be the case, notwithstanding the benefit of writing,)—a bench, howsoever composed, if the number be such that the idea of individual responsibility is destroyed,—would decide according to the caprice or passion of the moment.
Of the deplorable state in which, for want of the application of writing to this purpose, the business of judicature may be left in a democratically-constituted tribunal (a tribunal composed of numerous assemblage of judges, no matter of what rank,) the character of Election Judicature in the House of Commons antecedently to the Grenville Act, will afford an impressive example. Under favour of the confusion,—the absolute want of all permanent memorials of the grounds which the several suffrages had to rest upon,—and the consequent mischief, the equally complete want of all individual responsibility,—no man’s vote was ever grounded on any other considerations than those of personal convenience.*
By adding to the natural and unavoidable degree of complexity attached to the cause, a suitable dose of factitious, a party in the wrong (especially it favoured by the co-operation of a colluding judge) may give to his bad title an equal chance with the best one.
By lumping charges together, and (after a lumping mass of proof) pronouncing a lumping judgment on the whole mass,—a precedent has been set,† under which a delinquent’s chance of impunity is not in the inverse, but in the direct ratio of the number of his crimes. Such judicature having been found practicable, notwithstanding the check applied by the art of writing, what would it have been without that check?
In the cases of Peru, Mexico, and Tlascala, may be seen a specimen of what degree of civilization it is possible for society to reach without the application of writing to the fixation of the grounds of decision in judicature: higher than in those instances it could hardly have risen without that help.
In its original constitution, jury-trial, being unaided by writing, would in England have been sufficient to confine civilization within bounds as narrow as those which circumscribed it in Peru, Mexico, and Tlascala. If, under jury-trial, writing has latterly been applied to the fixation of the grounds of decision, it is unhappily in but an accidental and imperfect way. Hence it has happened, that, in cases to a certain degree complicated, this mode of judicature is seen to be inapplicable; being in some cases recognised as such by established usage, equivalent in force to law—in others, though not by law, in necessary practice.
Writing being of use, and frequently in a great degree even matter of necessity, in all stages of the suit; so is it in the hands of all classes of persons concerned in it.
In the hands of the parties, it serves to give permanence to evidence—to constitute the matter of the instruments exhibited in the character of sources of evidence.
In the hands of the judge, and his official subordinates, it serves to preserve the memory of operations—to register, to record, to consign to permanent characters, in proportion as they are performed, the fact of their having been so.
But the delivery of an instrument to this or that effect, is itself a capital article in the catalogue of those operations. Hence registration of instruments, as well as of operations, falls naturally within the province of the judge.
The indication which has been given of the uses of writing, as applied to the subject of evidence, has a sort of claim to be accompanied with a correspondent sketch of its uses, as applied to the business of registration.
Subjects for judicial registration, with their uses:—
1. Representation of operations successively performed, and instruments successively presented, for the purpose of grounding such subsequent operations and instruments, as may come to be called for, or warranted, by such preceding ones.
2. Representation of operations performed, and orders given, or other instruments made, by or under the authority of the judge, on the occasion of the operations and instruments emunating from the parties as above.
3. Grounds and reasons of such operations and instruments, as aforesaid, on the part of the judge.
N. B. To be of use, these grounds and reasons will not consist of argumentation uttered on each occasion by the judge himself, but of the indications given of so many matters of fact brought to light in the course of the cause—indications given in the concisest possible form, under heads prescribed by the legislator for that purpose.
4. At the special instance of either party, this or that proposition, or even word, that may have dropt from the lips of the judge. In the particular suit upon the carpet, be the importance of the subject-matter in dispute ever so trifling, the language used by the judge may be to any degree important. By language (not to speak of deportment, which is not so easily rendered the subject of registration,) disposition is manifested: and, in a judge, the effects of disposition extend to whatever suits are liable to come under his cognizance. Not a blemish of which the judicial character is susceptible, but language may have served for the manifestation of it.
In each house of parliament, whatever word is spoken by any member, is liable to be taken down at the instance of any other. This check, instead of being an infringement, is the most efficient security for that just liberty of speech, without which such assemblies would be worse than useless. The beneficial efficacy is in reality the greater, in proportion as it is less manifested; it is composed of the improprieties that but for this check might have been uttered, but are not uttered.
In the practice of the courts of justice (the regular courts) this institution is not without example. Witness the bill of exceptions. But in that instance the application of it is confined within narrow limits: whereas there, as in parliament, the demand for it has no limits.
Uses of the above registrations:—
1. To the several parties, on the occasion of the suit in hand, the use of them, in a direct way, is already evident.
2. So, in a less direct way, in respect of the check they apply to abuse in every shape on the part of the judge,—corruption, undue sympathy, antipathy, precipitation through impatience, delay through indifference and negligence.
3. With a view to appeal on the occasion of the suit in hand,—the service capable of being rendered by such registration to both parties (and especially to him who is in the right,) by the complete and correct indication of all grounds of appeal, justly or unjustly alleged, seems alike evident.
4. In respect of future contingent suits, considered as capable of being produced, prevented, or governed, by the result of, or previous proceedings in, the cause in hand,—suits considered as liable to arise between the same parties, or their legal representatives,—the utility is alike manifest.
5. In respect of future contingent suits, considered as liable to be produced by like causes, or to give birth to like incidents and occurrences,—causes as between other parties having no connexion with those in question; the use of such registration in the character of a stock of precedents seems alike indisputable.
The service thus capable of being rendered, will be rendered partly to individuals at large, in the character of eventual suitors in such eventual causes, in respect of their respective interests; partly to the judge, in respect of security, facility, and tranquillity, in the execution of his official duty.
6. To the legislator, the guardian of the people, and through him to the people at large, the service rendered by the aggregate mass of the facts thus registered, will be seen to be more and more important, the more closely it is considered.
By the abstracts made of the body of information thus collected (abstracts prepared under a system of appropriate heads, and periodically presented and made public,) he will see throughout in what respects the existing arrangements fulfil—in what respects (if in any) they fail of fulfilling—his intentions: how far they are conducive—in what respects (if in any) they fail of being perfectly conducive,—to the several ends of justice.
With the sketch of what is here stated as capable of being done, confront the loose sketches that will hereafter come to be given of what is actually established: the difference between use and abuse will present itself in colours not very obscure.
If the services thus rendered to the interests of truth and justice by the art of writing are thus great, neither are the ways in which it is liable to be made to operate, and to a great extent is continually made to operate, to the injury of those interests, by any means inconsiderable.
1. If, on certain occasions, and in certain ways, it is capable of being employed as an instrument of distinctness for giving that indispensable quality to a mass of evidence,—on other occasions, and in other ways, it is but too apt to be employed in such a manner as to give to the evidence a degree of indistinctness, from which, but for the abuse made of this important art, it would have been free.
The reason (meaning the cause) of this abuse is extremely simple. To the quantity of irrelevant matter, to which (under the spur of sinister interest) the pen of a writer is, on this, as on so many other occasions, capable of giving birth, there are no determinate limits; nor yet to the degree of disorder, and consequent indistinctness, with which the whole mass, made up of irrelevant and relevant matter jumbled together, may be infected: and the same mischief which thus, to an infinite degree, is liable to be produced by mala fides on the part of the suitor or his professional assistant, may (though in a less degree) be produced by mere weakness of mind on either part: whereas, in the case of vivâ voce testimony extracted by, or substituted to, interrogation,—no sooner does an irrelevant proposition make its appearance, than the current of the testimony in that devious direction is stopped, and the stream forced back into its proper channel.
2. When writing is employed in the extraction, and thence in the delivery, of the testimony,—time applicable, and but too often applied, to the purpose of mendacious invention, is a natural, and practically (though not strictly and physically) inseparable, result, as will be seen more particularly in its place.*
3. In the same case, a result no less closely connected with the use of writing than the former, is the opportunity afforded by it for receiving mendacity-serving information from all sorts of sources—a danger from which vivâ voce deposition, though by no means exempt, is more easily guarded.
On the other hand,—where writing is employed for the delivery and extraction of evidence, the superior facility which it affords for planning the means of deception is accompanied, and in a considerable degree counteracted and compensated on the part of the adverse party and the judge, by a correspondent quantity of time (and thence a correspondent means) applicable to the purpose of scrutinizing the supposed mendacious testimony, and so divesting it of its deceptitious influence.
Hitherto we have considered the art in no other light than that of its capacity of being made subservient to the purposes of that species of injustice which is opposite to the direct end of justice: subservient to deception, and thence to misdecision.
But the grand abuse, and that in comparison of which what has hitherto been brought to view shrinks almost into insignificance, is the perverted application that has been made of it to the purposes of that branch of injustice which stands opposed to the collateral ends of justice—of that branch of injustice which consists of factitious delay, vexation, and expense, heaped together for the sake of the profit extractible and extracted from the expense.
In a word, it is in the art of writing thus perverted, that we may view the main instrument of the technical system, and of all the abominations of which it is composed—an instrument by which this baneful system, wheresoever established, has all along operated, and without which it could scarcely have come anywhere into existence.
It is on pretence of something that has been written, or that might, could, or should have been written, that whatever portion of the means of sustenance has, on the occasion, or on the pretence of administering justice, been wrung from the unfortunate suitor, has been demanded and received. Statements that ought not to have been made, have, to an enormous extent, been made: statements that required to be made, have been swelled out beyond all bounds—stuffed out with words and lines and pages of surplusage, oftentimes without truth, sometimes even without meaning, and always without use. This excrementitious matter has been made up into all the forms that the conjunct industry of the demon of mendacity, seconded by the genius of nonsense, could contrive to give to it. Having, by the accumulated labours of successive generations, been wrought up to the highest possible pitch of voluminousness, indistinctness, and unintelligibility; in this state it has been locked up and concealed from general view as effectually as possible. In England it has been locked up in two several languages, both of them completely unintelligible to the vast majority of the people: office upon office, profession upon profession, have been established for the manufacturing, warehousing, and vending of this intellectual poison. In the capacity of suitors, the whole body of the people (able or unable to bear the charge) are compelled to pay, on one occasion or another, for everything that was done, or suffered or pretended to be done, in relation to it—for writing it, for copying it, for abridging it, for looking at it, for employing others to look at it, for employing others to understand it, or to pretend to understand it; interpreting and expounding imaginary laws, laws that no man ever made.
Thus much for this branch of the abuse: thus much for a bird’s-eye, or rather an ærostatic, view of it. To consider it heap by heap, is a task that belongs not to this place—a labour that will continue to press upon us through every part of this toilsome and thankless course.
The uses and the abuses of writing in judicial procedure have now been briefly enumerated: the various arrangements which have for their object to bring the use to its maximum, and the abuse to its minimum, will be severally brought to view in the proper place.
[* ]On this occasion, a distinction necessary to be kept in view is the distinction between the effect of the vivâ voce mode on the quality, the distinctness, of the testimony itself,—and the effect of the same mode on the conception capable of being formed and retained, in relation to that same testimony, by the judge. On the part of the testimony itself, vivâ voce delivery (coupled, as it must be, with vivâ voce interrogation) may often be a necessary bar to the indefinite accumulation of irrelevant matter, and consequent increase of indistinctness: on the part of the conception formed of it by those by whom a judgment on it is to be formed, all chance of adequate distinctness would soon vanish, if the assistance of the art of writing were not called in, to give permanence to the words to which it has been consigned.
[† ]As on other occasions, so on the occasion of any operations which may come to be performed in relation to evidence, impracticability may be distinguished into physical and prudential.
[‡ ]Book VI. Makeshift, Chapters III. & IV.
[* ]The great Douglas cause, and the trial of Mr. Hastings, will by many be regarded as exemplifications of a similar result produced by an opposite cause. Why? Because, where writing is concerned, too much may have the effect of too little. By supersaturation, as well as by inanition, the powers of the mind, as well as those of the body, may be destroyed.
[† ]See the Trial of Warren Hastings.
[* ]See Book III. Extraction.