Front Page Titles (by Subject) CHAPTER XII.: OF RE-EXAMINATION, REPETITION, OR RECOLEMENT. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XII.: OF RE-EXAMINATION, REPETITION, OR RECOLEMENT. - 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 RE-EXAMINATION, REPETITION, OR RECOLEMENT.
Re-examination, with faculty of amendment, how and in what cases proper.
Under the head of repetition, in French recolement, we have to speak of an operation, the nature and the use of which will be apt to appear strange to an English eye. In England, no such thing was ever heard of: whence can come the demand for it anywhere else? Are witnesses a different set of people, testimony a different sort of thing, elsewhere, from what they are in England?
Repetition, however, is no less familiar on the north side of the Tweed, than it is strange on the south side. It is a term borrowed by Scotch from Roman law. Recolement is exactly the same thing in French law. French recolement, though in point of signification in an irregular sort of way, is a conjugate of Roman and English recollection. A deponent or his testimony is in Scotch said to be repeated, in French recoled (recolé or recollé), when, after having been interrogated at one time, he is at another time brought again to the judgment-seat, for the purpose of its being put to him whether to abide by his antecedently-delivered testimony, or amend it.
Not that, under any system of law, opportunities of this sort can be altogether wanting. Under English law, if in some sorts of causes they are altogether wanting, in other sorts of causes (and those grounded on the same facts) they present themselves in abundance. But, in English law, they present themselves without design—without any thought on the part of the legislator or the judge. Under Roman law, the faculty in question is the subject of anxious care and inflexible regulation: care, that is to say, as applied to a certain sort of causes, and as complete neglect in all the others. Problem for an academical prize:—Which of the two sets of jurists, the Roman and the English, has on this occasion shown itself blindest to the ends of justice?
In one quarter or another, three distinguishable objects appear to have been aimed at in the institution of this process:—1. Providing for the correctness and completeness of the testimony taken by itself, all seductive influence out of the question; 2. Preserving the purity of it from being violated by seductive influence, whether terrific or alluring, on the part of the judge; 3. Guarding against incorrectness and incompleteness, from this or any other cause, such minutes as may happen to have been taken of it.
Of these three objects, the first is the only one that appears to have met with any considerable regard under the original and generally prevalent system of Roman procedure.
In regard to the two other objects, the only system in which any indications can be found of their being looked to on this occasion, is the ecclesiastical branch of Anglo-Roman law. The deponent, after having been examined in the first instance by one sort of judge at one time and place, is, for the purpose of a sort of repetition (though in very general terms) brought before another sort of judge, a judge of superior dignity, at another time and place. The object of this change is made no secret of. It is to give the deponent, in case of misbehaviour to his prejudice on the part of the judge below, protection and redress at the tribunal of his superior.
No such advantage could have been looked to by the framers of the French ordinance. In France, at any rate, if the judge before whom the re-examination were taken were a different person from him by whom the original examination had been taken, he would have been a judge from the same bench—a judge of co-ordinate rank, not superordinate. But, if any such change took place, it could only be by accident: for in the ordinance it is assumed, or at least presumed, that, on the occasion of the several successive operations, the learned operator is the same.*
To the prosecution of these two collateral objects, a change in the person of the judge is an arrangement, the necessity of which seems obvious and indisputable. On the part of one and the same judge, seduction, if effected on the first occasion, would be persevered in on the second: if, by the tenor of the minutes, the testimony actually delivered had been misrepresented at the one time, the misrepresentation would hardly be corrected at any other.
On any such second occasion, the power of the check would of course be rendered more impressive by superordinate power on the part of the judge: but (though superiority were out of the question) the check afforded by the intervention of another person, though it were only in the character of a witness, much more if in character of a co-ordinate magistrate, could not but be in a very considerable degree impressive.
An objection is,—the information gained by the first judge, including the whole body of circumstantial evidence afforded by the deportment of the respondent, would be lost to the second judge. The objection is good in itself; but, by the legislators in question, not receivable. For under their system, be the number of judges by whom the evidence is decided on ever so great (and, were it not for the expense, the notion there is, or at least was, that there could never be too many,) no more than one of them is ever to set eyes on the evidence, or any species or part of it.
Henceforward, then, in speaking of this security, let us consider it in its application to the first object only; viz. the making better provision for the correctness and completeness of the testimony, by affording opportunity for the delivery of amendments on the ground of their having presented themselves since the time when the original mass to which they are applied was delivered.
On the principle of utility, the course which presented itself as proper to be taken in relation to this point, has been already brought to view: in the first instance—(to prevent, in case of mala fides, mendacity-serving recollection, and at any rate to save unnecessary delay, vexation, and expense)—interrogation on all sides vivâ voce, if practicable: then (if by the judge deemed necessary for the assistance of recollection, and not otherwise,) interrogation on all sides ex scripto: then again, interrogation vivâ voce ad explicandum, if deemed by him necessary for explanation of the scriptural testimony so obtained in the second instance, and its reconciliation with the original or first extracted mass of vivâ voce testimony, according to the minutes taken of it: the third again, if deemed by the judge necessary for the clearing up any doubts or differences remaining, according to his conception, upon the face of the two first,—and not otherwise: in each succeeding instance, the opportunity afforded, in case of special and adequate reason, but in no instance, of course.
By what description of persons, on each such occasion, it seemed proper that the process of interrogation should be performed, has also been brought to view: a system of all-comprehensive interrogation having on that occasion been proposed, as alike adapted to all sorts of causes: to all parties having a distinct and opposite interest, the faculty to be considered as belonging de jure: as likewise to the judge: and to extraneous witnesses, not without special allowance from the Judge, for special cause, in a case of difficulty.
If, with or without such supplemental and extraordinary (though regular and established) examinations, a suggestion should be presented from any of those quarters, urging on special ground the propriety of receiving from any such deponent an alleged amendment to his already delivered testimony,—better the door should (at any time before judgment, or even before execution) be opened, though out of time, than that incorrect or incomplete evidence should prevail, and misdecision and ultimate injustice be the consequence.
On these conditions, and these conditions only, does any operation analogous to the repetition or recolement of Roman law present itself as conducive to the ends of justice.
On the contrary, if no such special demand for re-interrogation should present itself, to what end have recourse to any such process? the delay, vexation, and expense attached to it, would be so much inconvenience in waste.
In any sort of cause, so to order matters as that the performance of the operation shall be matter of necessity, is entailing upon the public a certain and constant inconvenience, for the sake of a casual advantage.
And if one such re-examination must come of course, why not another? and so on, another and another without end?
In the three forms or stages of examination above proposed (vivâ voce once for all, or primary; ready-written; and vivâ voce explanatory,)—the application for each succeeding examination has been supposed to originate with one or other of the parties: the demand being presented, in the case of the second examination (the object of which is to afford the necessary time and opportunities for recollection, and opportunities of investigation and arrangement) by the nature of the case; in the instance of the third examination, by some casual inconsistency, real or apparent, between the two preceding ones.
In the present instance, the object to be provided for is that of a casual recollection, or alleged recollection, on the part of the deponent himself—operating in correction or completion of the deposition antecedently delivered. Supposing such alleged recollection sincere and real, no doubt surely can be entertained of the propriety of its being received—no reason suggested why deception, and consequent misdecision, should be admitted, for want of lights attainable from this quarter and in this mode, any more than for want of lights attainable from any other quarter or in any other mode.
In fact, it is from this quarter and in this mode alone, that it was the object of the Roman institution of recolement to throw lights upon the cause: for it is only in the case where the application proceeds from the quondam deponent himself, that any addition is on this occasion made to his evidence. Do you persist in your former evidence? If his answer be in the affirmative, no fresh interrogatory is put to him. If indeed his answer be, Yes, but my wish is, that an addition be made to such or such an effect, or that an alteration be made to such or such an effect,—then indeed, if in what he says on that occasion there be anything which in the conception of the judge requires elucidation, nothing can be more natural, or frequently more necessary, than that question should succeed question, until such a set of answers as shall have appeared productive of the requisite degree of distinctness, have been obtained. This being the case, a recolement exhibits, as it may happen, the characters of an additional examination, or those of a pure and simple confirmation of the testimony delivered on a preceding one, according to circumstances.
The fixation of an interview on purpose, at a more or less distant period of time, for the purpose of affording an opportunity for alterations in testimony, whether the deponent applies for it or no, and whether the judge thinks it of any use or no, forms a strange contrast with the blind confidence reposed in the Roman judge in so many other respects, especially in that of the total absence of publicity. The power of the judge being left without controul in so many other points, the coercion imposed upon him in this respect may be numbered among the inconsistencies of this system, as well as among the incongruities.
The capital feature, the radically pernicious and corruptive feature, of close secrecy, being established, partly upon avoidable grounds, partly upon unavoidable ones—partly for the obstruction it afforded to mendacious invention, partly for the facility it afforded to corrupt judges for doing as they pleased; the pretence it afforded for a regular addition to the mass of official and professional profit in the shape of fees, had probably at least as large a share as any other circumstance, in the composition of the mass of psychological and final causes.* For, that the expenses of criminal procedure were considerable, and that, by the particular operation here in question, a considerable addition was made to the aggregate mass, are facts sufficiently established.
Moreover, if in any one sort of cause, why not in every sort of cause? Is there any one sort of cause in which it may not as well happen to a man to forget a fact at one time, to recollect it at another time, as in any other? The principal circumstances on which the demand for recollection-time is apt to depend, are, 1. Impressiveness of the transaction (i. e. its relative importance in the eyes of the percipient witness;) 2. Complexity; and 3. Remoteness or staleness. The degree of these respective qualities being given, the natural result should be, that the transaction should be more correctly and completely present to the mind at any antecedent point of time, than at any subsequent one. True: and so it will be in general: on the other hand, in virtue of the principle of association, so it will now and then happen,—so in every man’s experience it does happen,—that a circumstance which at one time will not present itself, notwithstanding the sincerest and most anxious search that can be made for it, shall, by means of some train of ideas with which it has happened to it to have associated itself, be brought up, as it were, by accident, at some subsequent point of time.
At any rate,—on whatever it may be that the demand for opportunity of amendment may happen to depend,—what it never does depend upon is the nature of the cause, as characterized by any such terms as criminal and civil, criminal and non-criminal. If, therefore, it be fit that the opportunity be afforded in all criminal cases, so is it in all other cases.
No (says somebody:) it is not that in criminal causes the probability of a demand for recollection is greater than in non-criminal ones; but that, should the mischief of misdecision take place for want of recollection, for want of that amendment which the recollection would have given to the aggregate mass of evidence, this mischief is much greater in the one case than in the other, and consequently creates a greater demand for this as well as all other securities that present a chance for the prevention of it.
True: but, in the first place, all that can be admitted in regard to the superior importance of criminal causes, as compared with non-criminal ones, resolves itself into this, viz. that, upon an average of all sorts of each description, the importance of a criminal suit will be greater than that of a non-criminal one. But, this being admitted, it will not be the less true that there will be many and many a non-criminal cause superior in importance to many and many a criminal one.
In the next place, whatever be the superior importance of an average criminal cause, it will never follow, either that, in a criminal cause, recollection-time, with the delay, vexation, and expense attached to it, should be given where it is not wanted; or that, in a non-criminal cause, it should be refused where it is wanted.
It certainly is not in every instance, in every individual instance, that the need of this opportunity presents itself. In English law it is not granted, eo intuitu, in any instance.
If this be true, it might surely have been sufficient so to have left the door open to it, as to have rendered it obtainable on special order of the judge, either of his own motion, or at the application of the deponent himself, or of some other person having an interest in the correctness and completeness of his testimony.†
Faculty of amendment, in what cases refused in English Equity practice.
If the practice of English equity courts be tried by the standard which we have now laid down, it will be found inconsistent in a most extraordinary degree.
In equity, a deposition is sometimes called a deposition, sometimes not. I shall begin with the depositions which are not called depositions, and then go on to those which are.
1. Depositions called answers, containing the testimony of a party on one side, viz. the defendant.
In some instances, the equity courts have allowed a defendant to amend his answer: and in all those instances they have done well.
In other instances they have refused this liberty: and in all these instances they have done ill.
In the sort of thing called an answer, two instruments of very different kinds are confounded: 1. Claims, or demands; viz. on the part of a defendant (for a plaintiff in equity never makes answers,) counter-claims, counter-demands; and 2. Responses, in the way of testimony, extracted by the interrogatories.
On this occasion, as on many others, to refuse to a man, at any time, the faculty of preferring any such claims as he conceives himself able to make good in law, is manifest iniquity. A claim may indeed be ill-timed; and, on that ground, the reception of it may with propriety be refused at that time. But that is not the ground of refusal here; for, in a variety of instances, amendments to answers have been permitted.
Rational cause, none: probable historical, psychological, final cause, desire of making business. Let it not be thought that the counter-claim, be it what it may, would never be entertained. No claim can be framed so unreasonable as not to be received; but there must be another suit for it. File your bill, defendant; change yourself into a plaintiff, and treat the court with a fresh suit: that you may do, and welcome.
To refuse to a man whose testimony has been incorrect or incomplete, the liberty of making it correct and complete, is iniquity equally gross, and something worse: it is producing the effect of false testimony, without incurring the punishment.
Oh, but, instead of adding truth to falsehood, he may add falsehood to truth.
Answer 1. The objection, if good in any instance, would be good in all instances. Yet still your cases are open to applications for this liberty.
Answer 2. What if that which he now wishes to add be false,—are you under any obligation to believe it? The second deposition, will it prove inconsistent with the first? Inconsistency is one of the means of detecting falsehood.
Answer 3. On an indictment in the King’s Bench for an assault, the same deponent, the prosecutor, tells his story three or four times over: three or four times, on the occasion of so many stated inquiries, besides any number of casual times on the occasion of the first of those three or four inquiries.
But when, in order to make the amendment, a part of the answer is obliterated, the inconsistency does not appear. It is only in one of two modes of amendment that this can happen: nor in that can it happen, but by your fault. First you make the inconvenience, and then you plead it.
The amendment which the defendant wishes to make,—the tendency of it may be to his advantage, or it may be to his adversary’s advantage. In the latter case, the iniquity is doubled: you will not suffer the defendant to speak truth—you will not suffer the plaintiff to have justice.
“An answer,” it is said, “shall not be amended, after an indictment for perjury, preferred or threatened, in order to avoid the indictment.”* “Upon a motion to amend a schedule to the defendant’s answer, an indictment for perjury having been preferred, or at least threatened, the Lord Chancellor refused to interfere, although he took it to be clear that the defendant did not intend to perjure himself, as he had no interest in so doing. The question would be proper before the Grand Jury, who, if they thought the defendant did not intend to perjure himself, would throw out the indictment: on the other hand, if there were ground for the indictment, it would be wrong for him to interpose.”
“The reporter” (says a note) “has been informed, a similar application had been rejected a few days before, in the case of Vaux v. Lord Waltham, where, however, the Lord Chancellor seemed inclined to grant the motion, if the affidavit had clearly shown it to be a mistake.”
The amendment not made, the Grand Jury would have found the bill or thrown it out: and the amendment made, what should have hindered them from doing exactly the same thing? If those to whose prejudice the refusal operated had not been thus injured, in what way, unless by positive and needless institution, would the authority of the Grand Jury have been obstructed?
Observe the wavering: a natural effect, where reason is unknown, and precedents, as usual, opposite. Observe too the process: testimony actually received, to know whether testimony, and from the self-same person to the self-same point, shall be allowed to be received: folios upon folios written and received, to know whether a word or two of the words contained in them shall be received.
On this footing stands the business of repetition, or of making amendments to answers, in the practice of English equity. By what combination of power and industry could it have been placed on any footing more favourable to the maintenance of profitable uncertainty,—less favourable to the extraction of truth and the maintenance of justice? “Shall the amendment be permitted?” is a point always subjected to contestation. But, if it be received, it is received in the mode in which falsehood receives as little discouragement as it can receive:—no room for ulterior interrogation—no room for vivâ voce scrutiny.
Besides whatever number of unreported cases that may remain lost to the world, carent quia vate sacro, the books afford I know not how many reported ones: in some of these the liberty was granted, in some refused: and, upon the whole, the man of law may read for his encouragement, and the suitor, if he has eyes for looking into such books, to his dismay, that “there are no certain rules for amending answers.”*
Take a case in which the object of the defendant in his amendment was to speak, not in the simple character of a deponent, recollecting himself, correcting himself, and delivering confessorial testimony, but in the mixed character of a deponent and a party defendant, delivering self-serving testimony, asserting a fact for the purpose of grounding on it a fresh counterclaim. At a time subsequent to that of the putting in the answer, the fact wished in this way to be brought to view had taken place. The fact is true: is the defendant to be suffered to allege it? The claims founded on it are just: is he to be suffered to take the benefit of them? Not he, indeed. And why is he not? because he would have his due a year or two sooner: because the man of law, in all his hundred shapes, would thus be defrauded of his prey.
“To order the cause to stand over, till a new bill, in which the fact can be put to issue, be brought to a hearing with the original suit,”—this is what, in the eyes of the then learned, and since by such learning ennobled, treatise-writer, “seems to be the proper way.” Suitor, would you grudge your hundred pounds, or your two hundred pounds (supposing you to have it)? Can you be so unreasonable, when you are informed that, in the eyes of the same supremely learned person, a bill for this purpose seems to be in the nature of a plea puis darrein continuance at common law?—so that equity, it seems, consists in catching with avidity at every pretence for the manufacture of delay, vexation, and expense, that can be found in the storehouse of the special pleader. The fact is ready to be seen, but the man of law is not yet ready to see it: the parties must first have been under a fresh course of vexation and pillage for a few months or years. All this while, observe that, by the plea puis darrein continuance, the party receives the benefit of a fresh fact without the misery of a fresh suit: and the proposal here is, that the party shall not have the benefit of any fresh fact without a fresh suit: such is the logic, such the morality, of this learning: such is the improvement made upon common law by equity.
Think of what any one suit in equity is; think of what an additional suit must be; and think of the judge who would force men into it for such a cause!
Objection.—Was it not your own plan, that the making or not making amendments to testimony should be committed to the discretion of the judge?—Yes: on the supposition that the testimony is collected in the mode acknowledged to be the only good one, viz. by interrogation vivâ voce. Why? Because this mode, though so much more trustworthy than every other with reference to the direct ends of justice, involves a sacrifice in the way of delay, vexation, and expense. But, in the case where under the technical system the faculty of amendment is so often refused,—in the case of the answer in equity, amendments might succeed one another in any number without addition to the expense. The amendment not being to be subjected in any case to interrogation, the transmission of the few lines, or few words, that in such a case would be necessary, would not be attended with any expense worth regarding—(factitious expense excepted, to which of course there are no bounds.) The receiving it quietly without argument, would not be attended with any expense. What creates the expense, is the dispute whether it shall be received, after it has been received already for the purpose of the dispute.
On the proposed plan, everything turns upon the proportion between the advantage in respect of the direct ends of justice, and the inconvenience in respect of delay, vexation, and expense: to take measure of this proportion is what the judge is called upon to do in every case, and the only thing he has to do in any case. On the existing plan, not a thought is ever bestowed on the delay, vexation, and expense, unless it be in the manner that has been seen, for the purpose of giving increase to them.
II. Depositions called depositions: containing the testimony of extraneous witnesses.
This case is less complex than the preceding: claims confounded with testimony are here out of the question: claims are the claims of parties only: witnesses, as such, have no claim.
Six cases relative to the amendment of depositions are afforded by the books:* in the earliest and latest the faculty was refused; in the four others it was allowed.
In the 4th (Greills and Gansel) the language of the Lord Chancellor (Lord King) is so consonant to the ends of justice, so dissonant to the general tenor of the language of law and equity, that I cannot refuse myself the satisfaction of contemplating it in the very words:—“When it appears to the Court that either the examiner is mistaken in taking the deposition, or the witness in making it, I think it for the advancement of truth and justice, that the mistake should be amended, and the sooner this is done the better, in regard the witness may be dead, or in remote parts, before the hearing: it will be hard and unjust to pin a witness down to what is a mistake, by denying to rectify it: as to what has been objected of the inconvenience of amending the deposition after publication, it was impossible to know it until publication: whereupon let the deposition be amended, as desired, and the witness swear it over again.”
This was the language of a man of sense and honesty—a spring in an Arabian desert: but it was not of a nature to run long. Anno 1800, the digested index affords this note: “Motion to amend depositions after publication refused.” Ingram v. Mitchell, March 1800, 5 Ves. jun. 297.
Compare what Lord King says about amending depositions, with all that is said and done, as above, about amending answers: see whether there be anything in the situation of a defendant, that should render the interests of truth and justice less worthy of the regard of a Lord Chancellor than in the situation of an extraneous witness; or anything in the testimony of the one that should render the rectification of a mistake in it less conducive than in that of the other, to the advancement of truth and justice.
Compare the language of sense and honesty in the mouth of Lord King, on the subject of amending depositions, with the language of everybody else on the subject of amending answers: but of all things forget not to compare it with the use above proposed to be made of the plea of puis darrein continuance.
A not the least curious circumstance in this business is the utter want of reference between the cases relative to depositions and the cases relative to answers. Between two objects, in themselves so nearly approaching to coincidence, the difference of denomination seems to have raised up a barrier impenetrable to every learned mind. No allusion in arguments—no reference in books of practice, or abridgments, or indexes. The light of reason had shone upon the expanse, the whole expanse of the subject, in both its branches, from the mind of Lord King: but it was not that light that was suited to the sensibility of learned eyes. The light shone in darkness; but the darkness comprehended it not.
[* ]Predicated of the recolements only: implied probably of the confrontations. In regard to the recolement, in the first draught the identity was pointedly insisted upon: “que le même soit commis pour faire le recolement.” (Art. 4.) In conclusion the point was taken off—“que le recolement se fasse par devant lui,”—probably in contemplation of casual impediments.—Procès Verbal des Conferences, p. 175, edit. Louvain, 1700.
[* ]See the Ordinance, its commentators, and the Causes Celèbres—passim.
[† ]In a criminal cause, the ground of the question will be apt to admit of very considerable variation, according to the deponent’s station in the cause; the station of a defendant, or that of an extraneous witness: a defendant, exposed to punishment (and that perhaps capital,) or a witness, exposed to no such danger, nor anything at all approaching to it.
[* ]Bro. Ch. Rep. 1. 419.