Front Page Titles (by Subject) CHAPTER XIV.: GENERAL VIEW OF THE INCONGRUITIES OF ENGLISH LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XIV.: GENERAL VIEW OF THE INCONGRUITIES OF ENGLISH LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE. - 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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GENERAL VIEW OF THE INCONGRUITIES OF ENGLISH LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE.
Taking the ends of justice, and, in so far as any contrariety or opposition is discernible on the part of any one as compared to any other, taking the aggregate interest of justice, as constituted by the preference due to this more important end,—the above rules, are they conformable to those ends? If yes, every arrangement contrary to any one of them, is, pro tanto, contrary to the ends of justice, and (in so far as the ends of justice meet with regard on the part of those on whom the state of the law depends) will not be suffered to continue. So many instances of departure from the above rules, so many instances of incongruity in the established practice.
To any one to whom the general spirit of the established systems (which is as much as to say, the existing modifications of the technical system) is known, it must already be pretty apparent, that whichsoever of them be taken, and subjected to this test of propriety, will be found altogether incapable of abiding it.
Referred to this test, the incongruities of the Anglican modification of that system will be found more numerous and more flagrant than those of any other. Not that it is upon the whole more adverse, perhaps, than every other to the ends of justice; but that the others, or at least its grand rival the Roman system, being in its deviation from the rule of right more uniform, those of the Anglican system will be found more numerous, more diversified, more inconsistent, and, in respect of their inconsistency, upon the whole more revolting to the scrutinizing eye.
As to the possible modes of incongruity, or deviation from the track marked out by the ends of justice,—in this part of the course, as in every other, they are of course innumerable. Imagination being here at fault, it is to observation that we must have recourse for examples. Directed to the field of English procedure, observation will accordingly afford us but too ample a stock. At every line it will become more and more evident, that, taking altogether the arrangements which will be referred to, or brought to view, it is scarce possible that, in the framing of them, any sincere regard should ever have been had to the ends of justice.
The standards of congruity, and thence the tests of incongruity, having already been established, no more remains to be done at present, than, upon a view of the several leading arrangements of Anglican procedure (so far as the present part of the subject is concerned,) to mark out—in the first place, the several incongruities,—in the second place, the several institutions in which they have respectively been exemplified.
The following are the heads under which the principal incongruities belonging to this part of the field of evidence appear reducible:—
1. Receiving testimony in the ready-written, that is, the less trustworthy, form, without any regard to expense, vexation, and delay; and thence, in instances in which the sacrifice of the direct ends of justice is pure and simple, uncompensated by any saving or advantage, having respect to these incidental or collateral ends.
2. Receiving testimony exempt from that security which is afforded by punishment against mendacity and temerarious falsity; and that in cases in which punishment is applicable for that purpose, with no less propriety than in any of the other cases in which punishment is actually thus applied.
3. Receiving testimony exempt from that security which is afforded against mendacity and temerarious falsity by the sanction of an oath; and that in cases in which that sanction is applicable for that purpose with no less propriety than in any other of the cases in which it is actually thus applied.
4. Receiving testimony, whether in the vivâ voce or the ready-written form, exempt from that security which is afforded as well against mendacity and temerarious falsity as against undesigned incorrectness and incompleteness, by the faculty of special interrogation, especially by or on behalf of the party adverse to him by whom the testimony has been called in; and this too not on any such score as that of a regard to preponderant inconvenience in the shape of expense, vexation, and delay.
5. Receiving testimony (vivâ voce testimony) in secret—i. e. without the benefit of publicity, in cases in which no ground of demand for secrecy applies: in cases in which the general advantages attached to publicity do not stand counterweighed by any of the inconveniences which, in the shape of vexation, are apt in particular cases to result from the employment of that security.
6. Receiving testimony (vivâ voce testimony) in public, in cases in which either no considerable advantage results from the employment of that security, or such advantage (if any) is outweighed by the inconvenience resulting, as above, from the employment of that security in particular cases.
7. In the case of testimony delivered vivâ voce, neglecting to make any express provision, or any provision at all, for recordation: and—where, without any such provision, such means have actually been brought into existence as it were by accident—making no adequate use of them, but suffering evidence of a less trustworthy, and comparatively highly untrustworthy, complexion, to be employed, and even to the exclusion of the most trustworthy sort above mentioned.
8. Providing to causes of one denomination, viz. criminal causes, one mode or plan of collection: to causes of another denomination, viz. civil causes, another mode or plan of collection altogether different: allowing, at the same time, the same individual case to be inquired after in either or both of those widely different modes.
9. Applying to suits of the same denomination (viz. criminal causes,) modes or plans of collection altogether different, according as this or that arbitrarily allotted sub-denomination happens to have been given to them, such as indictment, information, attachment: allowing, at the same time, the same individual case to be inquired after in any one, or in several together, of those modes; amongst which, as compared one with another, the difference is again extremely wide.
10. Applying in like manner to divers suits, all comprehended under the same general denomination of civil suits, modes or plans of collection altogether different, according as this or that arbitrarily allotted sub-denomination happens respectively to have been given to them, such as action, bill in equity, petition in bankruptcy, suit in ecclesiastical court: allowing here also the same individual case to be inquired after in any one, or in several together, of those modes; amongst which the difference is again extremely wide.
11. Applying, in the course of the same suit, modes and plans of collection altogether different, according as the fact or question forming the subject of inquiry were the principal, or an incidental one, and the inquiry thereupon considered as definitive, or but preparatory: and this, although in both the importance be exactly the same, the fate of the cause being as effectually determined by a decision on the incidental question, as by a decision on the principal question.
12. Rendering it necessary that one and same fact or question should in all cases be inquired into several times over; and this not in respect of any special demand which in this or that individual instance may present itself for such repetition, but in virtue of a general unbending rule, grounded on the denomination under which the species of cause or demand happens to have been aggregated, by an appointment altogether arbitrary, as above.
Should it enter into the conception of any admirer of technical procedure to fancy, or pretend, that, in the allotment of the modes of collection to each case, any regard has really been paid to the different demands presented by different cases for closeness and elaborateness of scrutiny; or, in other words, that any symptoms have been manifested in it of any consideration had of the interests of truth and justice, unless it be in the view of making the more complete sacrifice of them on the altar of professional profit; let him take into mind the following example, and then answer, if he has courage enough for the task.
Læsus, having (as he says) sustained a personal injury from personal violence offered to his person by the hand of Furius, has it in contemplation to call him to account in the way of law. In this, one of the most simple and common of all cases, the following are the options he has, in the first place, of the courses or modes of procedure which he will pursue, and thence of the modes of collection which will be pursued in relation to the testimony by which the fact of the offence is to be established.
I. In the first place, he may proceed by action—civil action: and in this case the collection of the evidence is twice performed, each time in a different mode; viz. 1. At the outset of the cause, by the declaration: the instrument so called, in which the plaintiff, without the sanction of an oath, and without being subject to examination, is made to assert in general terms the fact of the offence, coupled with the designation of the person of the offender, and the individual person who has been the subject of the offence. 2. At the trial: but on this occasion, so far from being deemed necessary, the testimony of the plaintiff is universally excluded. Extraneous witnesses, such, if any, as the transaction happens to have furnished, are (unless excluded upon some other pretence, out of the legion of pretences which, in the technical system, men of law have started upon this ground) heard and examined vivâ voce, in the mode in that behalf already indicated.
II. In the next place, he may proceed by indictment, with or without previous application to a justice of the peace. In the case of the indictment, he is twice heard, if he thinks proper, in the character of a witness in his own behalf, in his own cause, with or without extraneous witnesses, as the case may be (the same person who, had he proceeded in the mode of procedure called action, would have been too untrustworthy to be heard;) both times deposing vivâ voce, and subject to interrogation on the part of the judge—1. At the inquiry before the grand jury, without being subject to cross-examination by or in behalf of the defendant; 2. At the definitive trial, before the petit jury, subject to that scrutiny.
As to the defendant, Furius:—at the inquiry before the grand jury, he cannot depose, either for or against himself, being excluded from both faculties by the physical bar of absence: at the inquiry before the petit jury, he stands also excluded from both, but by the legal bar of positive institution. No question can be put to him by the advocate on the other side; no question can be put to him by his own advocate. He has a right, if he thinks fit to exercise it (a right which, if he listens to the advice of his advocate, he will not exercise,) to speak, as the phrase is, in his own defence: but as the oath cannot be tendered to him on his own application, any more than at the instance of the adversary, what he says is not considered as testimony.
3. Previously to the application to the grand jury for the allowance, on their part, necessary to the production of the evidence before the petit jury, Læsus has, if he has thought fit, made application to a justice of the peace: on which occasion, Furius having also, by summons or warrant (i. e. without or with bodily force,) been brought before the magisstrate in the presence of Læsus, the whole transaction may have been completely brought to light by a mass of testimony collected in a mode not differing by any features worth expatiating upon, from the mode just mentioned as observed on the occasion of the definitive inquiry, the trial before the petit jury.
III. In the third place, he may proceed in the way of information: in which case are exhibited the two or the three courses of inquiry and masses of testimony above stated under that head, viz.
1. Affidavit work, on the occasion of the motion made by the advocate of Læsus for the rule upon Furius to show cause why the information proposed to be exhibited against him by Læsus should not be filed; i. e. entered among the records, to form a groundwork for the definitive inquiry called the trial. On this occasion, Læsus exhibits his own testimony, his own ready-written and uninterrogable testimony, in the shape of an affidavit, together with the testimony of any such extraneous witnesses as (the transaction having happened to furnish them) can be persuaded voluntarily to join their affidavits to his.
2. On the occasion of showing cause, as above, comes, on the part of the defendant Furius, his own testimony in his own behalf; which, being in the ready-written form, and secure against the scrutiny of adverse interrogation, is therefore admitted without scruple. Of course, unless subject to any special objections, so are the affidavits of as many extraneous witnesses as he can prevail upon to take part with him: for in this stage the cause affords not, on either side, any compulsive process for the obtainment of evidence: so that, on this stage, upon which the remaining ones are built, there cannot be any other witnesses than partial ones.
3. At the time of the trial, the evidence and the mode in which it is collected stand on the same footing here, in the case of information, as above in the case of indictment. But, compared with the views of reason and justice entertained or professed to be entertained at an anterior stage, procedure by information affords a contrast not exhibited in the procedure by indictment. The self-same person who, on the preliminary inquiry, discoursing in the way of ready-written and uninterrogable testimony, has been received to depose upon oath, is now, on the trial, subjected to the same disadvantage, and screened by the same privilege, as in the case of the indictment. He can neither be compelled by questions, with or without the sanction of an oath, to bring forward or admit such truths as make against him; nor suffered, under the same sanction of an oath, to bring forward such truths as make for the advantage of his cause. The oath which, in the same case and the same cause, was no hardship, is now become, on a sudden, an intolerable one: the same individual, upon whose credibility the fate of the cause has been depending, now becomes so completely incredible as to be unreceivable.
4. In case of conviction, after the trial, comes (though not necessarily yet frequently, perhaps most frequently) the fresh batch of affidavit work, as above described. The credibility, the trustworthiness, now remains or is revived on all sides: the incredible prosecutor (incredible, had his suit been called an action) is now encountered, and for the second time, by the lately incredible, and now again credible and trustworthy, defendant. They are now again both credible: why? Because it is in the least trustworthy of all modes of testification that they both of them make application to be heard.
IV. It was (suppose) on the occasion of the serving on Furius the process of the court (the court in which the new mode of procedure now to be spoken of is instituted,)—that is, of conveying a summons issued from the court, or ministering in some other way to the power and authority of the court,—that Læsus received from him the injury complained of. It is a case that happens every now and then, and may happen at any time. In this case, another option he has, is, to proceed by way of attachment.
1. Affidavit work, the least trustworthy of all modes of collection, now completely supersedes and renders unnecessary every other, that is, every better, mode. Grand jury and petit jury are now found to be mere lumber, and, as such, thrown into the dust-hole. Both fools’ baubles being thus put out of the way, the Chief justice, like Cromwell in the House of Commons, wields the rod of power and punishment at his ease: and this he is suffered to do by the worshippers of the idol with twelve heads: always on condition of his acting upon improper evidence—upon evidence too untrustworthy ever to be offered to that idol.
2. When, on the ground of the mass of evidence thus collected, the defendant Furius has been convicted and consigned to punishment (to imprisonment) in consequence of the attachment’s having gone against him, as the phrase is; then comes the fresh inquiry above mentioned under that head—the inquiry by interrogatories. This mode, being different from the former, can therefore scarcely avoid being better. Though the questions be premeditated, and (unless by a discretionary latitude assumed by the subaltern judge) incapable of being accommodated, each succeeding one, to the preceding answers, the answers at any rate are unpremediated: or at least may be, for aught that appears to the contrary, if the judge ad hoc (the master) thinks fit to insist on their being delivered on the spot. But, lest the mode of inquiry should be too good, it is now carefully wrapped up in official darkness: and, after everything has been brought to light that was deemed necessary to warrant the punishment imposed, a deep secret covers the rest. The party injured, too—the prosecutor Læsus—from whose suggestions further questions and further lights might have been expected with more reason than from anybody else, had any such further lights been necessary,—finds the door of this secret court shut against him, as against everybody else. As far as zeal is worth looking for on the part of the master, the subaltern of the great judge, against whose authority the contempt has militated, as much may perhaps be not unreasonably looked for, as may in general be sufficient for the purpose. But all the zeal in the world will not stand in the place of information: and, if the case were of a sort to need any, the only person on whose part it can rationally be looked for, is the prosecutor; on whose face, for anything that appears, the door of the closet is shut, as well as against every other but the examiner and examinee, with or without a third person in the character of scribe.
Meantime, should that be true which has pretty much the air of being so, viz. that the supplemental inquiry is an inquiry without an object, unless it be the extracting from the examinee the fees for the exercise thus given to his patience,—any defects observable in the plan of operation will be the less to be regretted.*
* V. Let Læsus be a clergyman: the misfortune is of the number of those to which a clergyman, no less than any other man, is exposed. In this case he has the option of yet another remedy,—a remedy by suit in the ecclesiastical court. The badness of the mode of extraction employed in courts of that class will be hereafter seen.
Amidst all these remedies, with the corresponding manipulations for the collection of testimony—a question that to a thinking reader can scarce fail to present itself, is—can they all, or any, and which of them, be employed together? To meet this question by an all comprehensive and at the same time determinate set of answers, is what the most experienced lawyer would scarcely take upon him.
When, for an injury of this nature, a man has prosecuted the wrong-doer in the way of indictment and (the indictment still pending) has afterwards sued him in the way of action,—instances have been known where (on application made in the way of motion) the court have compelled the plaintiff to make his election between the two remedies, by staying, or threatening to stay, the action, till he has undertaken not to go on with the indictment.
On inquiry, it would perhaps turn out that the restraint thus put upon multiplied litigation, for the same cause, may have been modified in other ways besides the above. But the changes that might be rung in this way would, if taken in hand by a mathematician, be found in no small degree numerous; and amongst them might perhaps be found as many for which, for want of precedents, a circumspect lawyer would not take upon him to answer, as of those concerning which the oracle would not scruple to pronounce: especially as ecclesiastical law would require to be included in the sphere of his meditations; and, the law (ignorance of which is not excused in any man) being, for the general convenience of the practitioners, divided into divers branches, some of them having little communication with their rivals, the judge who is erudite in the one, confesses himself, with habitual modesty and reciprocally-requited candour, less than a tyro in the other.
For example: though, in the order above exemplified, the restriction is applicable, it follows not that it would be so, were the order, as between remedy and remedy, reversed. By an action for the injury, a man recovers damages—obtains money under the name of damages: it follows not by any means, that an indictment brought afterwards for the same offence could be got rid of on that ground. In case of conviction, in considering the amount of the penalty (if pecuniary) to be inflicted, the court might, and probably enough would, consider the prior burthen so imposed: but, though the penalty should be reduced to a nominal one, the costs would remain without reduction; and, in comparison with that part of the burthen which is not capable of being adjusted to merits and demerits, the part which is capable of such adjustment is commonly very inconsiderable.
Another consideration which the oracle would know better than to bring to view, is, that, for a man to take his chance of getting rid of one such burthen, it would be necessary for him to begin with taking upon himself another. For, in an English court of justice, nothing is done out of the way without motion, nor any regard paid to a motion unless supported (and in general with the faculty of being combated) by affidavit work: a sort of contest which is in fact a suit of itself, in everything but the name; being, as hath already been seen, that sort of suit in which matters of any degree of importance may be and are determined.
One point on which a man may venture to pronounce with greater confidence, is, that, in the case of the clergyman (for example,) the three remedies, as they are called, each with its proportion of irreducible and previously unascertainable costs, must each of them be brought into action, or a correspondent end of justice (at least according to Blackstone’s, which is the technically correct conception of the ends of justice) remain unfulfilled. Reparation of the breach made in the king’s peace, reparation of the damage sustained by the party injured, and reparation of the damage done by the sin to the sinner’s soul,—these are the objects to be provided for; and, where money is the healing matter, it requires for each a different sum to be levied by a different set of hands.† By a sum of ten pounds, for example, conveyed into the pockets of the individual injured, the injury sustained by that individual (that is to say, to the extent of the sum, and in consequence of its repairing or healing property,) is repaired. But by this ten pounds no sort of repair is applied to the breach that had been made in the king’s peace: to make this second repair requires another sum, suppose a like sum of ten pounds, by which, if duly conveyed into the pocket of the king—(what in law is said of the king is commonly a fiction, but here it is plain truth)—duly conveyed into the royal pocket by the surveyor of the green wax (there is much learning in that green wax,* ) may be presumed to produce that salutary effect.
As little, although put into the pocket of a clergyman, does this same ten pounds contribute to the repair of the damage done by the assault to the sinner’s (the assaulter’s) soul: the soul remains as sinful and as sick as ever, unless and until a third sum, say also of ten pounds (according to Blackstone, it must be a round one,) has found its way into the pockets of the officers of the court, by way of “commutation of penance.”† Thus stands the matter according to Blackstone, to whose peering eyes depredation is an object of scorn or adoration, according to the power of the depredator; and by whom every fee that finds its way into the pockets of those by-practitioners is regarded as so much stolen from the superior college.
If Blackstone were to be trusted to, “these three kinds of prosecution may, all of them,” (he says not, any of them,) be pursued for one and the same offence. Interrogated about the stop that might be put to the action, he might probably enough have replied, that to pursue is one thing, to pursue with effect is another. But he who, on any occasion, trusts to Blackstone, leans on a broken reed: and it is among the privileges of an interpreter of English jurisprudence, that his interpretations may always be deceitful, without ever being false.
On the subject of testimony, the following presents itself as a tolerably correct and tolerably complete list of the sources from whence the distinctions struck out by the sinister industry of the man of law have been derived:
1. The relation borne to the cause by the proposed deponent: that of an extraneous witness, with or without interest—(not that his being without interest is a point that, to the purpose of its sinister effect on the mind, ever can be ascertained)—or that of plaintiff, or that of defendant, in the cause.
2. The modification given to the course of procedure, as distinguished by the terms criminal and civil.
3. The sub-modifications given to that course, as further distinguished by the appellations of indictment, information, appeal, criminal suit in the spiritual or ecclesiastical court, action, mandamus, prohibition, bill in equity, petition, civil suit in the spiritual or ecclesiastical court.
4. The stage to which, according to the sub-modification to which it has been referred, the inquiry by which the evidence in question is called for happens to belong:—on an indictment for felony or breach of the peace, the preparatory examination; the inquiry before the grand jury; the trial (except in case of felony;) the supplemental affidavit work, preparatory to the pronouncing of judgment or sentence:—in an information, the preparatory affidavit work; the trial; the supplemental affidavit work preparatory to the receiving judgment or sentence: and so on.
5. The station of the demand on the occasion of which the testimony is proposed to be received; viz. whether it be the principal demand, which gave beginning to the cause, or some incidental demand, made (whether by the plaintiff or by the defendant) in the course of the cause.
6. The person at whose instance the testimony is proposed to be exhibited; whether the proposed deponent himself, the judge, a plaintiff, a defendant, a co-witness, or an advocate, on the one side or the other: and (in each case except the two first) whether the party on whose side the deponent was first called upon to depose, or any other person calling for his testimony on the same or on the opposite side.
7. The willingness or reluctance, whether on the part of the proposed deponent himself, or on that of either party or any co-witness, in respect of his coming to act in that character, according to which modifications, his testimony, if admitted, is admitted either without compulsion or on compulsion; if excluded, is excluded either on the score of reluctance, or notwithstanding willingness.
8. The condition of the testimony in respect to particularity: whether resting altogether on generals, or descending more or less deep into particulars, through the fixation of limited or individual portions of time and place, and the designation of the things and persons that are the subjects of it, by classes, determinate assemblages, or individuals.
9. The occasion, whether judicial or extrajudicial, on which the testimony in question is proposed to be, or has been, delivered.
10. The nature of the signs by which it has been or is proposed to be expressed, at the moment of its first utterance, or afterwards: i. e. whether delivered by evanescent signs, as vivâ voce, or by permanent signs, as in the state of a ready-written document; and if by evanescent signs, whether fixed or not fixed, during its utterance, or at any subsequent period of time, as by written notes or minutes.
11. In case of falsehood with mendacity, or falsehood through temerity (though this latter species, materially as it differs from the other, is scarcely distinguished;) the annexation or non-annexation of punishment to a deviation from the path of truth.
12. In the above cases, the performance or non-performance of the ceremony called swearing, or taking an oath—a ceremony instituted for the purpose of binding witnesses the more effectually to an adherence to the line of truth, on the occasion of their acting in the character of deposing witnesses.
It is of distinctions like these that nineteen parts out of twenty of the chaos of jurisprudential law are composed. It is from effusions like these, that the manufacturer of that chaos of fraud and imbecility derives, from his accomplices and his dupes, the praise of ingenuity and science.
To the eye of common sense and common honesty, looking to the ends of justice, all these distinctions are the baseless fabric of distorted vision. In the estimation of common sense and common honesty, it matters not—
1. What relation the individual whose testimony is in question, bears to the cause—whether that of extraneous witness (interested or not interested,) plaintiff, or defendant.
2. Nor whether the suit be called criminal or civil.
3. Nor, in either case, by what capricious, or accidental, or obsolete, or insidious modifications, the course of procedure in it has been diversified, and by what denominations those modifications have been distinguished.
4. Nor in what stage the inquiry is: and so on, as the reader may easily pursue for himself, through the twelve sources of distinction.
[* ]If, after an offender has been convicted, the process of subjecting him to an examination of the inquisitorial kind,—this is the appropriate denomination, I use it not in the character of a vituperative one,—if this process be a useful process in any case, why in this case to the exclusion of all others? Why not in many other cases as well as this, or in preference to this? Why not, for example, to ascertain the state of his finances, for the purpose of observing the weight of the pecuniary burthen he is able to bear in the character of satisfaction or of punishment? Why not, in case of apprehended insolvency, for the purpose of securing what remains for the benefit of creditors, in just proportions? Why not, in the case of criminality in the way of depredation, for the purpose of investigating former depredations, and restoring to the persons injured such fruits as may be to be recovered? Why not—but questions of this nature proceed on the supposition—the perpetually-disproved supposition, that the arrangements of technical procedure have for their objects the ends of justice.
[* ]Vide infra, Chap. XVII.
[† ]Bl. Comm. IV. Chap. 15.
[* ]See 23d Report of the House of Commons Committee on Finance, anno 1798.
[† ]IV. Comm. Chap. 19.