Front Page Titles (by Subject) CHAPTER XVIII.: INCONGRUITIES OF ROMAN LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XVIII.: INCONGRUITIES OF ROMAN 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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INCONGRUITIES OF ROMAN LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE.
For the extraction and receipt of testimony, the Roman system admits of but one of the two modes—the vivâ voce mode: the mode by written correspondence has no place in it.
Except in one case, and that a narrow one, viz. the case of confrontation, as between a prisoner defendant and the witnesses on the other side (of which presently,) the practice of cross-examination is unknown to it. Cross-examination, a term of English jurisprudence—a term for which (like the terms witness, testimony, right, obligation, and other terms of natural jurisprudence) one should have expected to have found an equivalent in every language—has actually out of Britain no single-worded equivalent in any European language.
Hence the door is left wide open to mendacity, falsehood, and partiality, whether from unblameable incorrectness, from temerity, or from mendacity: against mendacity, in very gross cases, some faint and inadequate prospect, perhaps, of punishment at some future contingent period; but for prevention, cross-examination being unknown, nothing can be done immediately, and upon the spot.
In the perusal of the Causes Célébrus, an observation that presented itself almost in every cause, was the extraordinary frequency of the cases of repugnant testimony, in comparison with anything which is presented by the ordinary run of causes on the occasion of the trials conducted in the English mode—a repugnancy which, for want of cross-examination, remains uncleared up; and that in cases where, from the nature of the fact, it appears evident, that by a few questions put in the way of cross-examination, or (in Romano-Gallic language) by confrontation, if confrontation were extended to these causes, the contradiction would be naturally, and in all probability satisfactorily, cleared up.
In looking for the cause of this repugnancy, and of the superior frequency of it in the Romano-Gallic practice in comparison with the English, a more candid and consolatory mode of accounting for it presents itself than would be presented by any supposed difference on the ground of morality between the two nations. False testimony is so much more frequent in France than in England—why? Because the witness, though examined vivâ voce and extemporaneously in France as in England, had in France no apprehension of seeing questions put to him in that same way, and on that same occasion, by the experienced sagacity of the legal assistant on the other side.
Whatever be the nature and rank of the cause—higher penal, lower penal, or non-penal,—the person, the only person by whom testimony could be either received or extracted, was the judge. But, unless by mere accident, it is not in the nature of things that the judge should of himself know anything about the facts on either side. In the way of extraction—that is, of interrogation, examination, putting questions,—whatever can be done from that commanding station cannot have any other ground to proceed upon, any other lights for guidance, than such facts or supposed facts as are furnished by one of the parties. The judge is, or ought to be,—the judge is supposed to be (and let him be supposed to be) impartial; but, in the instance of each witness whom he examines, the instructions, the only instructions he acts or can act from, are partial instructions, furnished by one alone of the contending parties, viz. that one by whom the testimony of the witness is invoked.
When each witness is examined by the parties—examined by both parties—examined primarily by the party by whom his testimony was called for (if called for by both,* by the plaintiff,) cross-examined by the adverse party; he is examined by two persons, who, taken together, have every interest which the matter at stake in the cause can give them, to draw from him the whole truth: each having every interest which the value of the matter in dispute to himself can give him, in drawing forth so much of the truth as makes in favour of his side. So far as the extraction of the truth is concerned, justice, under this system, has nothing to fear but such casual deficiency as may happen to take place in respect of the intellectual sufficiency of the parties and their agents in relation to this task.
Deficiency of zeal, the result of deficiency of interest, is not to be apprehended on either side. Excess of zeal, the result of excessive sensibility to the sinister action of interest, may naturally be apprehended on both sides; but its operation on each side is checked and compensated by its operation on the other.
When the business, the proper business, of both parties, is taken out of the hands of both parties, and lodged in the hands of the judge,—so far as depends upon the state of the affections, of motive and interests, the business is as badly arranged as possible. General deficiency of zeal, variegated by occasional excess of zeal, and that on one side only—general carelessness, variegated by occasional partiality, both of them almost without controul,—such is the natural result of so incongruous a state of things. Are the parties, both of them, unknown—the interests of them alike indifferent—to the judge? His interest is to get rid of them and their dispute as quickly as possible. The points he cannot help examining the witnesses to, he examines them to: the points he can help examining them to, he suffers to pass without notice. Attentive only to his own case, inattentive alike to the interests of both parties, the merit of impartiality cannot be denied to be his due. On the other hand, does it happen to him, from amity, enmity, or self-regarding interest, to have any leaning on either side? All facts operating on that favoured side find him eager to draw them forth; all facts operating in favour of the opposite side find him as determined as the care of his reputation suffers him to be, not to think of them. Under the eye of a scrutinizing public, such studied blindness would not at all times be equally safe. But, in the Roman system, whatever is done in this way is done under the veil of secrecy: besides the judge and the person under examination, no one is present but the judge’s subordinate, the recording scribe. If the object were to push carelessness and corruption to their maximum—to render, in one or other way, misdecision as frequent as possible,—no means could be better adapted to that end.
Under this system, the arrangements recommended (as above) as subservient to the purpose of cross-examination, are indeed admitted; the testimony delivered in the shape of answers to questions; each answer extemporaneous, following immediately upon the question which called for it, and in so far unpremeditated; the questions put separately—not uno flatu, in a simultaneous string; each question having the whole string of preceding answers, and in particular the last preceding answer, for a ground to work upon, for a light to work by. True: but of these subordinate arrangements, useful as they are, what is the chief use? Answer—to give effect to cross-examination: but, in the system which thus employs them, cross-examination has no place.
The notes of the evidence are taken down, not by the judge himself, but by a scribe who attends him for that purpose. Of what passes, or of what does not pass, more or less is set down, as the superior and his subordinate can agree. To the account there given of what has passed, or is supposed to have passed, the person examined is indeed made to annex his signature; but the words, even of the answers, are not so much as supposed to be given—much less, of the questions. Of the answers, no more than the substance, or supposed substance; of the questions, not so much as the substance, except such part as is, as it were, seen through the answers—such part without which the answers would not be intelligible. Negligence, violence, subornation effected or attempted by threats or promises, with or without the intention of fulfilling them—misbehaviour in every imaginable shape, may on the part of the judge have been committed, yet not the slightest trace of it need, or is at all likely, to appear upon the face of any of these minutes.
Had it been really an object to guard individuals against a species of injustice, which in capital cases would amount to legal murder aggravated by torture,—arrangements so obvious as those which in this view might be imagined, would hardly have been so universally omitted.
Without being stationed so near the prisoner as to be capable of prompting him without the observance of the judge,—a friend and nominee of the prisoner might be in the same apartment, effectually present to the purpose of hearing everything that passed.
If, for fear of prompting by signs, it were not thought fit that this assistant should be present during any part of the examination, he might at any rate be present at the final reading of the minutes. In case of their being in every respect correct, and acknowledged to be so, he might be present at the time when the prisoner, being finally interrogated concerning their correctness, confessed them to be correct, either by positive assent, or (what would be equivalent) by silence:—present to the purpose of hearing and testifying his assent, observing and testifying his silence. In case of the prisoner’s objecting to any part of the minutes as incorrect or incomplete, he might be present to the purpose of hearing, seeing, and attesting the discussion produced in consequence; he might be present to the purpose of doing, what in most cases he would naturally have to do, and think fit to do—viz. to confirm by his subscription the statement drawn up on that occasion by the official scribe, or (in the extraordinary but still possible case of an irreconcilable disagreement) entering upon the minutes his dissent, together with whatever observations he might think fit to add to it.
This assistant would naturally have been a professional assistant, of the attorney or advocate class, as most competent to the business: it might have been a non-professional friend. The prisoner (for no possible case ought ever to pass unprovided for) is too poor to purchase assistance—he is too friendless to obtain it gratis. What is to be done? Shall it rest with the judge to provide him with an assistant? An assistant so named would afford but slender security against any possible mal-practice on the part of the functionary by whom he had been named.
But wherever the Roman system of jurisprudence has been prevalent, other functionaries have never been wanting, whose function, while it has made the exercise of such charity a duty, has secured to them the requisite portion of public confidence. The confessor, for example, by whom the prisoner, if capitally convicted, would have been attended and supported in his last moments,—he, or some one of his cloth, would be the person to guard him (as above) from such oppression as might involve him in any such suffering without its having been his due.
Thus hostile is the Roman system of procedure to every end of justice—thus subservient to the sinister interests by which it has been created and preserved.
By the several governments of the American states—by those republican legislators, though bred in the sink of English corruption, this abomination has for these many years been extirpated.
Even by Napoleon, the most absolute of all despots that the world ever saw, it has been extirpated.
In this, as in its other shapes, republicans abhor corruption—despots have no need of it.
In England alone is it an object of worship; rulers protesting, and people sottish enough to believe, that the very life of the government depends upon it, and that without it everything would fall to pieces.
[* ]It is very evidently possible, but from various causes not a frequent case, that the testimony of one and the same witness shall have been invoked on both sides.