Front Page Titles (by Subject) CHAPTER XX.: RECAPITULATION. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XX.: RECAPITULATION. - 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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From the view that has above been taken of the practice of English and Roman law in relation to the collection of evidence, the following propositions seem deducible:—
1. That there is but one perfectly good and fit mode of collecting testimony.
2. That this is no other than what common sense suggests: and, as far as power and opportunity admit, and the importance of the occasion appears to demand, is naturally and commonly practised in the bosom of every private family.
3. That, to give precision and permanence to the information thus collected, so as to adapt it to the use of all times and all places, nothing more or less is necessary than the committing the testimony to writing in proportion as it issues from the lips of the person deposing or examined.
4. That, so far as writing is concerned, there is but one cause that can in any case warrant any departure from this most perfect mode; and that is, the expense, vexation, and delay inseparably attached to that invaluable mode of fixation and perpetuation.
5. That the mode of collecting evidence by means of its delivery vivâ voce, and subsequent though immediate consignment to writing, is essentially preferable to the mode which operates by the delivery of the testimony in writing in the first instance.
6. That there are but two justificative causes that can warrant the use of the inferior mode, in contradistinction to the superior mode; viz. physical impracticability, and prudential impracticability—prudential impracticability, in respect of preponderant inconvenience in the shape of expense, vexation, and delay.
7. That, on the part of the superior mode, physical impracticability may for an indefinite length of time be constituted by local distance, for ever by expatriation, as contradistinguished from exprovinciation,—prudential impracticability, for a time, or for ever, by preponderant expense, vexation, and delay, the result of local distance.
8. That English lawyers, recognising the incontrovertible superiority, not to say the exclusive fitness (where practicable,) of the above-described superior mode,—yet, so far from employing it exclusively on every occasion in which the employment of it is not impracticable, depart from it in all manner of ways, employing inferior and bad made-before it, after it, and instead of it: in cases, too, in none of which can any warrant for such departure be found under the head of impracticability, either physical or prudential, as above explained.
9. That, on these occasions, so far is the prudential impracticability (viz. in respect of expense, vexation, and delay) from being the cause of the departure from the most trustworthy mode, that, when the less trustworthy modes are attended with a superior share of that triple inconvenience, it is then that they are employed—employed to the exclusion of that superior mode which, besides its superiority of trustworthiness, has the advantage of being comparatively free from that collateral inconvenience.
10. That, taking together the entire system of procedure of which the collection of evidence forms a part,—the inferiority of the technical mode, in the English form more especially, in comparison with the natural mode herein-above recommended, is, in respect of expense, vexation, and delay, too flagrant and notorious not to be recognised by everybody—men of law themselves not excepted: but that, as often as this disadvantage is brought to view, if the system be defended notwithstanding, it is always on this ground, viz. that the mass of inconvenience attached to it in this form is (if not wholly and absolutely unavoidable) at any rate compensated for, absolutely compensated, by a preponderant mass of advantage in respect of superior security against ultimate injustice, whether by misdecision or by failure of justice: against ultimate injustice, from whatever causes derivable—whether from improprieties in respect of the mode of collecting the evidence, or from any other causes: and that, accordingly, it is its supposed superiority in respect of the mode of collecting the evidence, that constitutes either the source or at least one of the sources of that compensation, that ample compensation which it is supposed to afford on the score of superiorly good ultimate justice, for whatever inferiority may be observable in it in respect of the provision made by it against collateral inconveniences, viz. against delay, vexation, and expense.
11. That so far is this supposed compensation from being in any degree real, that in truth its deficiency in respect of security against delay, vexation, and expense, remains altogether unaccompanied by any compensation in any other shape: and that, in respect of security against misdecision and failure of justice (so far at least as the system employed for the collection of evidence is concerned,) its defects are such as to constitute an enormous addition and heavy aggravation to the load of imperfection attached to it in all those other shapes.
12. That it is not in human nature, that, in the forming a system, in which, in the pretended pursuit of the same ends, so many discordant and inconsistent courses are employed (discordant as well with one another, as, all of them, with the modes actually and from the beginning employed in pursuit of the same ends in the daily intercourse of private life,) the ends professed and pretended to have been pursued, viz. the real and genuine ends of justice, should have been the ends and objects really, steadily, and exclusively (not to say ever, and in any degree) pursued.
13. That, under the circumstances under which the existing system took its rise,—as it is not natural that in the adjustment of the detail the faculties of observation and invention should have been, so neither in fact do they appear to have been, steadily and anxiously occupied in any other endeavour than that of adding to the load of inconvenience and mischief in all imaginable shapes, in so far as profit and advantage in all shapes to be reaped by the authors and contrivers of the system, could be made to spring out of it.
14. That, in like manner, in regard to the real ends of justice,—as it was not natural that in the construction of that system they should have been taken (at least any otherwise than incidentally and occasionally, and in subordination to those sinister ends) for the objects aimed at,—so neither does it appear that in fact they have, it at all, been pursued in any other character: insomuch that the attainment of them, in so far as in fact they have taken place, is to be regarded no otherwise than in general as the accidental result, and at best no otherwise than as the occasional object, of the exertions actually made on this ground.
15. That, for ages together, the object of the contrivers and conductors of the existing system (in so far as anything that can be called an object appears to have been kept by them with anything like constancy and consistency before their eyes) will appear to have been neither more nor less than the employing the powers and privileges attached to their respective offices, and professions in the character of an instrument of depredation—licensed and unpunishable depredation: the ends of justice, as before, being, if ever, only occasionally, an object, and then a subordinate one, though constantly and invariably a pretence.
16. That, as to the existing race of lawyers, taken at any given point of time,—pupils and successors of these learned depredators,—regarding, or pretending to regard, as perfect in its kind (it not in every minute point of detail, at least in respect of its leading features) the work of such their predecessors,—not only their endeavours and wishes, but their very pretensions and professions, are confined to the keeping it, as near as may be, to its present state of assumed and pretended excellence.
17. That, of the modifications of the plan in use for the collection of evidence, the impropriety is fully and unequivocally recognised by those under whose direction it is pursued: but that from this recognition no symptoms are anywhere observable of so much as a wish, much less an endeavour, to substitute, in the room of those which they regard as comparatively unconducive, those which are regarded by everybody (themselves in particular not excepted) as in a superior degree conducive, to the ends of justice.
The best possible mode of extracting testimony—the mode which a considerate master of a family would employ when sitting in judgment on the conduct of a servant or a child—in a word, the mode by oral interrogation and counter-interrogation,—is a production of English growth. If, on a microscopical observation, the germ of it be found discoverable in the Roman process of confrontation, the same scrutiny will show how confined was the use made of it in that its primeval state, and with how much propriety the appellation of a discovery may be applied to the vast edifice that in England has been built, or might be built, upon a foundation so narrow.
If the application made of this discovery has been found neither all-comprehensive, nor comparatively very extensive, the wonder need not be great. To England the glory of it, or at any rate (so far as it extends) the advantage of it, belongs without dispute: but whether, in the establishment of the practice, wisdom or fortune had the greatest share, may not be easy to decide. Had wisdom planned it, wisdom would have carried it as far as it would go, would not have suffered it to be arrested in its progress; but the same system which employs it in one instance, neglects it in another, to which not only with equal propriety, but with equally obvious propriety, it would have been applicable.
A circumstance which contributes in no inconsiderable degree to weaken the claims of wisdom, is, that the value which appears to have been implicitly set upon this feature in the system, has never been explicitly set upon the right ground. All mouths are open in praise of the trial by jury; and this is the mode of extraction employed on a trial by jury. But its connexion with the species of procedure in which the intervention of a court so constituted is employed, is altogether accidental: the same mode of extraction might be employed, and is employed, with equal facility and equal propriety, in a court composed of a number of permanent and professional judges, or in a court consisting of a single judge. It had been observed that somehow or other the ends of justice were more effectually accomplished in that sort of court of which the tribunal called a jury was one feature, and the use of this mode of extracting evidence another, than in other courts of a different appearance in respect of both these features: but to which of them the effect was principally to be ascribed, is a question that seems rever to have presented itself. As water was considered till of late years as a simple substance, so was the trial by jury considered as a simple institution: the sagacity by which confused perceptions are rendered clear, and composite objects are resolved into their constituent elements, had never exercised itself (for when has it ever exercised itself?) upon the field of jurisprudence. The feature which consists in the composition of the court, being the feature which on many accounts would strike with peculiar force the eyes of the herd of politicians,—this feature, while it has given denomination to the complex system, seems to have engrossed all the praise of it. Trial by jury! ever blessed and sacred trial by jury! juries for ever! is the cry: not trial by oral and cross-examined evidence.*
It is, however, to this comparatively neglected feature, that that most popular of all judicial institutions would be found to be indebted for the least questionable and most extensively efficient, if not the most important, of its real merits. Against the advantages attending the mode of extraction practised, no objection can be urged, no inconvenience opposed; while the advantages purchased by the peculiar composition of the tribunal are not purchased but by great sacrifices in other shapes: the popularity, the unsuspectedness, is not purchased, but at the expense of appropriate experience; the superiority in probity, by the sacrifice of superiority of wisdom, and of the security which individual responsibility alone can afford either for probity or for wisdom. I speak of the really useful features, in which whatever there is of excellence in the institution is enshrined: not to speak of the errors and abuses that have been worked up with it by the hand of undistinguishing barbarity; the ethnico-theological and apostolic number; the mendacious unanimity, proclaimed by perjury, after having been produced by torture: not to mention a variety of other ingredients, good, bad, and indifferent, which might be modified for the better of the worse, without destroying or very materially changing the general effect.
With these advantages in point of practical efficiency and indisputable innocence, no political institution of real worth was ever kept more completely hidden from general observation. Among those who in its native country are so cordial in their admiration of this mode of trial, there are not twenty perhaps who at this moment are aware that, in contradistinction to Roman jurisprudence, the mode of extracting the evidence on this occasion is as peculiar to English procedure as the constitution of the court. The peculiarity of the practice called in England cross-examination—the complete absence of it in every system of procedure grounded on the Roman, with the single exception of the partial and narrow use made of it in the case of confrontation,—is a fact unnoticed till now in any printed book, but which will be as conclusively as concisely ascertained at any time, by the impossibility of finding a word to render it by, in any other language.
OF PREAPPOINTED EVIDENCE.
[* ]While coupled with trial by jury, lawyers could join and even lead the popular cry, because trial by jury is trial with lawyers: by itself they could not recommend it without sacrifice of their professional interest: recommendation of this principle purely and simply, would involve a recommendation of the natural system (viz. personal attendance of the parties, with mutual cross-examination,) to the exclusion of all technical ones.