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CHAPTER VII.: THAT THE EVIDENCE SHOULD BE COLLECTED BY THE SAME PERSON BY WHOM THE DECISION IS TO BE PRONOUNCED. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.

Part of: The Works of Jeremy Bentham, 11 vols.

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CHAPTER VII.

THAT THE EVIDENCE SHOULD BE COLLECTED BY THE SAME PERSON BY WHOM THE DECISION IS TO BE PRONOUNCED.

One person to receive, and help to extract, the testimony—another person to decide upon it. Any such division of labour,—ought it to be made? No, surely: unless in cases (if any such there be) where the union which it cuts asunder is either physically, or (in respect of delay, vexation, or expense) prudentially, impracticable.

To what one of all the ends of justice can it ever be subservient? What one of them all is there that is not counteracted by it?

On which side, and in what way, can it in any conceivable case tend to prevent misdecision on the ground of the evidence?—misdecision to the prejudice of the plaintiff’s, or to the prejudice of the defendant’s, side?

Death, incurable infirmity of mind or body, a motion from the office or from the spot,—in each of these we see an event that may at any time intervene to render the function of decision physically impracticable to him by whom, in the function of receipt and extraction, a progress of any length, from commencement down to termination, has been made. Has any such irremediable impediment taken place? Either ultimate non-decision, with the consequent injustice to the plaintiff’s side, must be the result, or a decision (if pronounced) must be the work of another judge.

Infirmity of mind or body, to appearance not incurable, but (as in respect of future duration, all such indisposition is) of uncertain promise,—time of vacation (if any) to be allowed to the judge, for the pursuit of his personal health, business, or amusements:—in what cases shall these temporary causes of cessation be allowed to have the effect of transferring the business from the hands of one to those of another judge? Topics these of particular detail, the solution of which, depending in no inconsiderable degree upon circumstances of a local and temporary nature, will hardly be looked for here.

The subject of inquiry here is,—where no natural impediments stand in the way of the finishing of the cause by the same hands in which it took its commencement, the deciding upon the evidence by the same person by whom it was collected,—shall the two functions be consigned to two different persons?

From the severance, no advantage can be seen to result in any shape: no advantage (understand) with reference to the ends of justice; how abundant soever (of which presently) the advantage with reference to the actual ends of judicature.

Disadvantages may, on the other hand, be seen in abundance.

1. Loss of the benefit of that most instructive species of circumstantial evidence, which is afforded by deportment: concerning which, see the book on Circumstantial Evidence.*

It is not in every suit, that, from deportment, any instructive indication can be derived. True: in every individual suit, not: but in every imaginable species of suit, yes.

2. Danger of incorrectness and incompleteness on the part of the written minutes, in the character of representations of the testimony orally delivered. In this respect, the infirmity of the evidence is of the nature of that which is essential to hearsay evidence.†

Hence, danger of deception and consequent misdecision: hence, in other words, disadvantage with reference to the direct ends of justice.

3. By this division, writing, minutation and recordation (as will be seen farther on,) is necessitated: necessitated, as well in such causes as are not recordation-worthy, as in those that are so.‡

Hence, inconvenience in the shape of delay, vexation, and expense: disadvantage with reference to the collateral ends of justice.

To the reasons which thus plead against the severance, no just reasons in favour of it can be opposed.

In vain would it be said, To a head which is competent to collect the evidence, it may happen not to be competent to the framing of the decision which is to be grounded on it.

1. It is with a view to whatsoever decision may be proper to be grounded on the evidence, that the collection of the evidence ought to be performed: without such view, it will not be appositely performed. Decision is the end; collection of the evidence on which that decision is to be grounded, is the means: the head that is not adequate to the end, is not adequate to the means.

2. In the process of collection, the whole body of the evidence will necessarily have passed under the review of the judge (for such he is) by whom it has been collected. In the course of this process, it can scarcely happen (supposing, as is the most common case, the whole of it thus collected at once, and by the same judicatory) but that an opinion in relation to it, i. e. in relation to its probative force in regard to the fact in question, must have been formed. But, the opinion formed, the decision follows of course; and it requires but a minute or two, and a word or a line or two, to pronounce it. The decision pronounced; if all parties are satisfied with it, there ends the cause: if on either side a party is dissatisfied with it, then, and then only, is appeal of any use. The ulterior judicatory is thus charged with the suit, in those instances alone (but in all such instances) in which, in the judgment of those to whom it properly belongs to judge, it can be of use.

At whose instance should any such transference be made?

1. At the instance of the collecting judge? This is what has been called remitter. For declining to pronounce a decision, what can be the pretence? Knows he not how? Is his judgment unable to satisfy itself? Let him at any rate try whether he cannot satisfy the parties. Better decide by cross and pile, than not decide: if the parties are satisfied with the decision, everything is as it should be: if either be dissatisfied, the worst that can happen is, the doing for that good reason, what, in the other case, it is proposed to do without reason.

2. At the instance of a superior judge? This is what is called evocation: but still evocation without reason. Whether in any and what cases evocation can be grounded on sufficient reason, is a question that belongs not to this place. Is it to put an end to delay?—at any rate, the delay, the ill-grounded delay, ought to have been proved, and (if this be the only ground) an option given for the removal of it by decision pronounced within the time.

3. At the instance of a party? This is what is called appeal. But, before a party prefers an appeal, let him stay till a ground is made for it: before he complains of the decision, let him stay till he knows what it is. And what must the malcontent party say in this case? Stop, pronounce not your decision, for fear lest, when I hear it, it should not be agreeable to me.

When, however, judicature cannot be performed in the best mode, it follows not that it ought not to be performed in any inferior mode: judicature must be badly performed indeed, if denial of justice be preferable to it.

1. A case that will sometimes happen, is, that the whole of the evidence is to be sought for at the hands of one or more proposed respondents (whether parties or extraneous witnesses,) of whom no one, to the purpose of forthcomingness in order to testification, is subject, in point of fact, to the power of the judicatory by which the decision is to be framed.

In the case of expatriation, this bar may have been opposed by the insuperable nature of things: in the case of exprovinciation, by the shortsightedness or negligence of the legislative branch of government.

2. Another case that may happen, is,—part of the necessary evidence is thus forthcoming; another part, not.

3. In either of the above cases, it may happen, that the securing the requisite forthcomingness is an operation which, though not physically, is prudentially, impracticable: not practicable without preponderant inconvenience in the shape of delay, vexation, and expense.

4. Another case that sometimes happens, is this: A mass of evidence, which, at any distance of time, was collected for the purpose of another cause,—whether on the occasion of the same or a different demand,—between the same parties, between parties altogether different, or between parties in one or more instances the same, in others different,—may contain in it matter applicable to the suit in hand: of the witnesses in question, the forthcomingness being at present either physically or prudentially impracticable.

Whether it he more conducive to the ends of justice, that evidence in this inferior shape be, or that it be not, admitted, will depend upon the class of the cause, and the side on which the admission is applied for: whether the cause be of the non-penal or of the penal class: whether the side on which the admission is called for be the plaintiff’s or the defendant’s side. But for such details this is no fit place.

When the judicatory by which the decision grounded on the evidence is framed, is different in any respect from the judicatory by which the evidence was collected, the difference may be complete, or partial: complete, if the deciding judicatory does not contain any one member who was a member of the collecting judicatory; partial, if it does contain one or more.

If the separation be thus complete, the mischief of it stands exactly upon the footing above represented. If the deciding judicatory contains in it one or more persons who were members of the collecting judicature (say, for example, one,) the mischief stands upon a footing somewhat different:—1. The benefit of deportment evidence is not so completely lost. There sits the collecting judge, by whom some account, such as he pleases, may be given of it to the rest. 2. The danger of incorrectness and incompleteness on the part of the minutes is not quite so great. There sits the collecting judge, who, in answer to any doubts or inquiries that may be started on that head, may give any such elucidations—make any such confessions—as it is agreeable to him to make.

The mischiefs of severance are thus in some indeterminate and ever-varying degree diminished, but far indeed from being removed.

In this case, we see a judicatory composed of a number of members, one of whom is perfectly, the others but imperfectly, competent to the purpose of the decision, in the formation of which they bear each of them an equal part.

Supposing them all equally instructed,—all, except one, are (if what has been endeavoured to be shown elsewhere* be just) much worse than useless: still more, if all above one are comparatively uninstructed. Do the rest suffer themselves to be governed by that one? A decision which in fact had but one author, enjoys (in the event of its being erroneous) so many other apparent co-authors, to compose a screen for the error, and save it from the merited censure.—Do the rest disagree with that one? Here, then, is a number of judges comparatively ill instructed, opposing themselves, and with success, to the only one who is, comparatively, well instructed.

In the French and other continental editions of the procedure of the Roman school, the mischief of the severance has commonly this palliative. In the several English editions of that procedure, viz. those used in the equity courts, the ecclesiastical courts, and the admiralty courts, it has no such palliative. In the Scotch editions, it is for the most part, though not completely, without the palliative. In the principal and highest judicatory by which the decision on the evidence is framed and pronounced, it may happen, and now and then (but rarely) has happened, that some one among the fifteen judges, in the character of Lord Ordinary on oaths and witnesses, had in charge, and (if so) singly in charge, the collection of it.

In this instance, as in every other, the cause of whatever is amiss in judicial procedure may, by every eye that can endure the light, be seen in the opposition between the ends of judicature and the ends of justice. Love of power, ease, profit,—all these persuasive considerations concurred in pleading for the severance.

1. It is by decision—an act of the will—that power is exercised. Previous inquiry—receiving and collecting evidence—hearing arguments on both sides—and supporting the decision by reasons,—all these acts of the understanding are not additions to the power, but clogs upon the exercise of it.

To decide, is an operation that does not necessarily require more time than it is agreeable to the decider to bestow upon it. The performance of those other operations—of those exercises of the understanding,—and in such manner as not to expose a man to disrepute,—requires, for the purpose of each decision, an expense of time any number of times greater than what is necessary for the formation and utterance of the decision itself.

If the extent and quantity of the power in question be measured by the number of decisions pronounced within a given space of time (say a year,)—a hundred, a thousand, any number of times the power may be exercised within the year by the judge who is unshackled, that can be exercised by one who is shackled, with those clogs. And, where the importance of the case is given, this is the fair and proper measure.

2. Witnesses are persons of all castes: and as the great majority of the people are of a low and ignorant caste, they constitute in proportion bad company with relation to the judge. In the advocates on both sides, by whom the comments on the evidence when collected—no matter by whom or how—are delivered, the judge beholds so many brethren, and these brethren learned ones; men of the same caste, superior to all other men, inferior only to himself; in every respect the very pleasantest of company.

Ease, accommodation, convenience (whatever word be the most convenient and agreeable,) are thus, along with power, promoted and augmented by the severance.

3. Where, on the evidence collected by one man or set of men, a decision is to be pronounced by another, writing is an operation not merely of use but of necessity. In the early ages of jurisprudence, writing was an art, the exercise of which was too rare not to be well remunerated: the art even by itself; much more when found in conjunction with the still rarer science of jurisprudence. The greater the expenditure in the article of art and science, the greater the receipt necessary in the article of profit—pecuniary profit—to balance the account.

Profit thus added its influence to those of power and ease.

Whatever part of the business could be turned over to subordinates, those subordinates would take care to be paid for: and the fee paid to the subordinate would be in addition to the fee paid to the principal. Hence, so much patronage in præsenti: and patronage in præsenti becomes, in some shape or other, profit in futurum, if it suits the inclinations and situation of the patron to apply it to that use.

Besides being so much more favourable to his interest, this arrangement was much more directly and certainly in the power of the judge, than the only one that would have been well adapted to the interests of the suitors and the ends of justice. Subordinates could be employed by his own authority: co-ordinates could not be obtained but by the authority of his superiors. The quantity and quality of the business turned over to the subordinate, might be adapted to the convenience of the superior: the quantity and quality of the business done by a co-ordinate would not be thus obsequious.

For illustration, look to the English Court of Chancery.

In the beginning, when causes were comparatively few, the Chancellor,—this new sort of judge, to whom a commission had been given to judge secundum æquum et bonum, (it being but too manifest how widely the rules pursued by the established judges differed from this character,)—this new-made judge proceeded (as any man would naturally proceed in his place)—proceeded as the inferior judges called justices of the peace proceed at this day. He heard the evidence, and then he decided upon it. The evidence on which he was about to decide, he heard with his own ears.

It could not be long before business of this judicial kind would crowd upon him in a much greater quantity than his other business, of which he had no inconsiderable quantity, would allow him time for. What was to be done? Of a co-ordinate, a rival in office, a sharer in the dignity, power, and emoluments attached to it, it was not natural that he should be desirous; nor, had he even been desirous, could he have been sure of obtaining of the king any such coadjutor; at any rate, without such solicitations as it suited not to him to make. From the first, he had of necessity (were it only for the mere mechanical, the writing, part of his business) a number of clerks under his orders; the number of these clerks soon rose to twelve. In process of time, these clerks, not being yet enough, contrived to have other clerks under them: the original sort of clerk became distinguished by the name of Masters. As the writings accumulated,—many of which, if not all, were for some reason or other to be preserved, and for the purpose of occasional consultation, to be put and kept in some sort of order,—this charge, a charge of no small trust, was committed to one of those clerks, who thus became distinguished from and above the rest. In those days, paper had not been invented, or at least was not in common use: parchment was the only substance to which the characters, which written discourse is composed of, was applied: the art of bookbinding was little in use: economy suggested, as the most convenient mode of adding sheet to sheet, and in such successive quantities as came to be required by successive incidents, the tacking them together in such manner that the whole length might be wound up together in the form of spiral rolls. The clerk, in whose keeping these rolls were, was thus distinguished by the name of the clerk of the rolls. When clerks became masters, the clerk of the rolls became Master of the Rolls.

Of the business committed to the Chancellor, such business as was least pleasant to him to do himself, he turned over, of course, to these his clerks. In some instances, entire causes,—decision, as well as collection of evidence. But in general it came to be felt that decision was a more pleasant operation than inquiry: decision has more of power in it—inquiry more labour: inquiry takes up more time, and creates a greater demand for patience. The business of collecting the evidence thus fell into the hands of the twelve master clerks: but more particularly of the head one amongst them, the clerk of the rolls.

The evidence thus collected, was collected by the clerks: but the Chancellor, by whom a decision was to be grounded on it,—how was the purport of it to be presented to his knowledge? The surest channel was the tenor: but that required it to be committed to writing. So much the better: on the account of the suitors, in respect of security against misdecision, for obvious reasons: on the account of this great officer, and these his subordinates, for other reasons not less obvious. Writing is labour:—but the labourer is worthy of his hire: and the labourer acted under the orders of one, in whose hands were vested the easiest and surest means of exacting from his employer, the suitor, whatever it should be thought prudent to demand, on the score of hire.

On interlocutory points, the power of decision, provisional decision, subject of course to appeal to the principal judge (the only judge recognised in that character,) came thus, little by little, to be exercised by all these clerks. Even on definitive points, the like power, though always subject to appeal, came by degrees to be exercised by the chief clerk, or the Master of the Rolls.

Of the whole business of procedure, the part that afforded most trouble, and by assignment had been made to afford additional profit, was that which consists in the collection of the oral part of the evidence: This portion of the business had overflowed (we have seen how, and at how early a period,) from the hands of the Chancellor, into the hands of his head clerk or official servant: the same causes continuing to operate, made it necessarily overflow into still lower and lower channels. The clerk, now become master, of the rolls, turned it over to his “servants.” Servants, not so much as distinguished by the name of clerks, were deemed good enough for this laborious part of the business: what sort of servants (pages, footmen, grooms, or stable-boys) is not said.

These servants kicked it down to servants or deputies of their own.

From page, or foot-boy, or whatever else happened to be his original occupation, the servant rose into a clerk,—the examining-clerk,—the examiner. The examiner has long been rich enough to be above his business: he keeps a deputy, and the deputy acts by his clerks, all for the good of the public, not forgetting the master of the rolls. All these offices have their value: to all of them the nomination is in the master of the rolls: whatever may be the rational cause, the historical cause is at any rate sufficiently apparent.

The king’s turnspit used to be a Member of Parliament:* the clerk of the deputy of a servant of a clerk of the keeper of one of the king’s seals, is still a Judge.

[* ]Vide infra, Book V. Circumstantial.

[† ]Book VI. Makeshift; Chap. IV. Hearsay Evidence.

[‡ ]Vide supra, Chap. VI. § 2, p. 410.

[* ]Scotch Reform, Vol. V. Letter I.

[* ]Burke’s Speech on his Economy Bill.