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Section 5.: Mischiefs —1. Contributing to the Mendacity-Licence granted by Judges. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) [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. 5.

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

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Section 5.

Mischiefs—1. Contributing to the Mendacity-Licence granted by Judges.

In the abridged work on the Rationale of Evidence,—in speaking of the securities for trustworthiness there mentioned in the character of true ones,—under the head of punishment, explanation was given of the mendacity-licence;—of the mode in which it was and is granted, and, in general terms, of the mode in which the ceremony termed an oath was made subservient to that flagitious purpose. On the occasion of judicial testimony, be the mendacity ever so pernicious, punishment (it has there been seen) stands in general confined to the case, in which, as a security against the practice of that vice, this ceremony had, on the occasion of the delivery of the testimony, been applied to it. In this, as in other cases where prevention has been desired, by the application of punishment, the effect of a prohibition was and is produced: in this, as in other cases where prevention has been matter of indifference, or production an object of desire, by omission to apply punishment, whether the omission had for its cause design or inadvertency, the effect of a licence was and is produced: and, so surely as the omission has design for its cause, or observation of the effects for its accompaniment, so surely is not only the effect of a licence produced, but, in whichsoever of a variety of imaginable forms, the licence itself is in substance granted.*

When, for the purpose of revenue, an occupation or transaction not meant to be prohibited is thus clogged by a licence, money, with the effect, though not under the name of purchase-money, is exacted for it, and that money is applied to the use of the community at large, through the medium and by the hands of government. In the case of the licence here brought to view under the name of the mendacity-licence—(the judicial or testimonial mendacity-licence) a licence by which, through the medium of wilful falsehood, a man was, and is, allowed and empowered to work injustice to an unlimited amount, the tax being imposed by the authority of the judges, the produce of it was and is divided, though in casual and not distinctly discernible proportions, between themselves, their subordinates, and other their confederates, in various situations and of various denominations, partners in the traffic of justice and injustice.

Nothing could be more artful, nothing was ever more successful, than this their scheme of policy: without any of the infamy, they derived all the advantage of encouragement given to the profit-yielding vice: and, by the impenetrable secresy by which it was concealed, the value of the profit, so far from being diminished, was proportionably increased.

To the purpose of this disguise, the ceremony was in an eminent degree serviceable. If, for producing the effect of a licence, no such ceremony being in use, no instrument had been employable but punishment, undisguised punishment,—employable, viz. by the direct and manifest forbearance to apply to mendacity, on one occasion, that punishment which on another occasion, and that not presenting any greater demand, was applied to it,—the device might have been too transparent to be hazarded. But when, in the character of an intermediate instrument, the ceremony, with its terrors, was called in, and set to work, its mysteriousness served as a curtain, behind which the eyes of the awestruck multitude were terrified from any attempt to penetrate.

What was conspicuous enough, and to every eye, was the assistance lent to justice in most of the instances in which this sanction was employed:—for, inefficient as on these occasions it would have been of itself—and, as on every occasion, in which it is without support from shame or punishment it is found to be,—yet, when backed by punishment, as on these occasions care was taken that it should be, it derived from the punishment such support as in each case it was in the nature of the punishment, such as it was, to give. What was seen, and by everybody, was, therefore, the assistance that, by this instrument, was lent to justice, in the cases in which it was applied. What was not seen by anybody, those excepted whose interest it was not to speak of it, was the debility—the state of prostrate debility—in which the hand of justice was left, in every case in which this necessary armature was not given to it.

Had neither oath nor punishment attached upon any part of the mixed mass of evidence, shame would, in case of falsehood, and with a degree of force proportioned to what was understood to be its degree of mischievousness, have attached upon every such polluted part. But, when the distinction that was made was to such a degree conspicuous, the two combined sanctions (the only two which are under the direct command of government) being to one part of the mass applied in combination, while to the other part neither of them was applied, shame could not in the unmarked part find any sure ground to fix upon. Unless it were the issuing, in express terms, a declaration pronouncing falsehood blameless, neither licence nor so much as approbation could, by these official guardians of public morals, have in any other way been given to this their cherished and richly profitable vice.

Not that even of declarations, little if anything less express and open, examples but too frequent might not be found. A penitent criminal confessing his guilt, the judge urging him to deny it:—contests of this sort may be seen in print, between a falsehood-hating felon and a falsehood-loving judge: and, lest the poison of mendacity should not with sufficient certainty and effect work its way into the public breast, hypocrisy has thus been seen stirring in the honey of humanity to sweeten it.*

[* ]Of the aggregate mischief of the institution here in question, the judicial abuse, which in the work mentioned in the text has been designated under the appellation of the mendacity licence, forms so material a part, that, unless the view there given of it were here inserted, any conception that could hence be formed of it would want much of being an adequate one. As the present tract, though, if room can be found for it, designed to constitute an appendix to the above-mentioned work on Evidence, is moreover designed to appear in the form of a separate publication, it has been deemed advisable to reprint in this place that part of the work on Evidence, in which the abuse here in question has been more fully delineated and explained.

It forms the fourth section of the 8th chapter, intituled, Of the Securities for Trustworthiness in Evidence, and is in these words, viz. § 4.

Judge and Co.—False Evidence rendered by them dispunishable, where profitable to themselves.—Mendacity licence.

Thus much as to propriety:—for practice, learned ingenuity has discovered and pursued a more convenient course.

Under the English, not to speak of other systems of technical procedure, by means of the command, so easily, when indirectly, exercised by power over language, an expedient was found for rendering mendacity punishable or unpunishable at pleasure. In the person of a party litigant, or a witness, when it was to be rendered punishable, the allegation or statement was called evidence; and, to mark it as such, a particular ceremony—the ceremony of an oath—was made to accompany the delivery of it. When it was to be rendered dispunishable, it was not to be called evidence:—it was to be called pleading—pleadings—anything but evidence:—and the ceremony was to be carefully kept from touching it.

At this time of day, few tasks would naturally be more difficult, than that of satisfying the English lawyer, that pleadings not upon oath—that anything, in a word, which in legal use has been carefully and customarily distinguished from evidence, can with propriety be termed evidence. But though, thanks to his ingenuity, so it is that pleadings—all pleadings at least—are not evidence in name, yet so it is, that every thing that goes by the name of pleading is evidence, in effect. All testimonial evidence is statement—narration—assertion: every thing that goes by the name of pleadings is so too. Of evidence, the use, and sole use, is to command decision:—by pleadings decision is commanded, and that in cases to a vast extent, and in continual recurrence, and with a degree of certainty altogether denied to evidence.

To the purpose of imposing on the adverse party the obligation of going on with the suit, the contents of every instrument included under the name of pleadings, how replete soever with manifest falsehood, are taken for true, and as such, without the name, have the effect of evidence. This effect (it may be said) is but provisional: but definitively, to the purpose of giving to the suit a termination favourable to the party by whom the instrument is exhibited,—to the purpose of producing a decision—a decision as favourable to him as could be produced by anything to which the name of evidence has been left,—to the purpose of producing the self-same decision, which, by evidence, supposing it believed, would be produced—it has the effect—not simply of evidence, but of conclusive evidence:—the party who fails to meet the instrument in question,—by some instrument which, at the next step that, on the otherside, ought in the appointed course to follow it,—loses his cause.

Of this eventually-conclusive evidence, the power, it may be said, cannot be great, since—by so proper and simple an operation, as that of exhibiting the corresponding counter-instrument, the party, to whose prejudice the conclusion would operate—gets rid of it. Simple enough, yes: but instances are but too abundant, in which the operation, simple as it is, is impracticable—foreknown to be impracticable. To the performance of the operation, money is necessary: and on that side—money being by the other side known not to be forthcoming—what is thereby known is, that the exhibition of the counter-instrument is not practicable. It is accordingly because foreknown to be impracticable, that the operation is thus called for: for which purpose, falsehood, the most barefaced falsehood, is admitted to serve—admitted by those judges to whom its quality is no secret:—admitted with exactly the same composure as if it were known to be the strictest truth.

Thus it is, that under favour of the mendacity-licence thus established, every man, who, being to a certain degree opulent, has, or desires to take, for his adversary, a man to a certain degree less opulent, has it in his power, whether on the plaintiff’s side, or on the defendant’s side, to give, to his juridically-delivered allegations, by what name soever denominated—pleadings or any other,—the effect of evidence:—the effect, not only of evidence, but of conclusive evidence.

And thus it is, that by the forbearance—the astute forbearance—to give, to the security afforded by punishment, the extent necessary to justice, mendacity is generated and cherished, injustice, through misdecision, produced:—the evils opposite to the direct ends of justice produced, by means of the evils opposite to the collateral ends of justice.

Among lawyers, and mere especially among English lawyers, so commodiously, and thence so universally, is custom accepted as an adequate substitute to reason—so unprecedented is it for a man to trouble himself with any such thought as, in regard to any of the established torments, out of which his comforts are extracted, what, in point of utility and justice, may have been the ground for the establishing of them—or so much as, whether they have, or ever had, any such ground at all—that, at the first mention, a question to any such effect will be apt to present itself to them, as no less novel, than idle and absurd. But concerning judgment by default, and everything that is equivalent to it,a —be it in a House of Commons,—be it in a House of Lords,—be it in any other place,—should any such misfortune happen to him, as to feel himself under a necessity of finding something in the character of a reason to give, in answer to the question—why it is that judgment by default is made to follow upon default, his reason would be this or nothing, viz. that in this case, on the defaulting side, want of merits is inferred; and not only so, but that it is from the allegations contained in the instrument last delivered on the other side—it is from that, and nothing else, that the inference is deduced.

At the same time, that which, be he who he may, is well known to him—or at least, but for his own wilful default, would be known to him—that which he has always in his hands the means of knowing—means beyond comparison more ready than any which are possessed by the vast multitude, who at the instance of his tongue, and by the power of his hand, are so incessantly and remorselessly punished,—punished for not knowing that which it has so diligently and effectually been rendered impossible they should know, is—that, in the case of an average individual, the chances against the truth of the conclusion, thus built and acted upon, aremany to one.

To be assured of this, all that a man has to do on the one side of the account, is to look at the average, or even at the minimum amount of the costs on both sides, which, on each side, a party subjects himself to the eventual burthen of,—or though it were at those on one part only;—on the other side of the account, at the annual amount of what an average individual of the labouring class (beyond all comparison the most numerous class)—or even though it were an average individual of the aggregate of all classes, the very highest not excluded—has for the whole of his possible expenditure. This comparison made, then it is, that any man may see, whether, by forbearance to go on with an existing suit, at any stage, on either side,—whether, on the plaintiff’s side, by forbearance to commence a suit,—any preponderant probability be afforded, of what is called a want of merits.

[* ]Under the French system of regular procedure, the range of the mendacity-licence was still more extensive than under the English. Those incidental or interlocutory instruments, applications, and other operations, which, under the English system, require, to give them effect, testimony delivered upon oath (viz. in the shape of a ready-written affidavit) were, under the French system, with little or no exception, made, and performed, and effect given to them without oath.

In the 864 small-typed pages of a quarto volume (Ravaut—Procédure Civile du Palais) not the least trace of an affidavit, or anything that, in respect of oath or punishment, could have been calculated to answer the purpose, could be discovered.

The consequence was—that, for protracting litigation, lies, so they were but in writing, were, by French, uttered and received for truth with still less reserve, if possible, than by English justice. Still more perhaps than here, confusion was thickened, and litigation lengthened, by diversity of courts and appeals.

The pace of English common law was out-lingered in the Westminster Halls of France. By any such distinction as that between common law and equity, with different though confederated sets of shops for the sale of them, the understandings of mankind have nowhere been insulted but in England. But, derived as it was from the same Roman source, French common law, such was its dilatoriness and predatoriness, might, like the Scottish, be said to be all equity. What was worse, even their criminal law was in this respect all equity. Of the causes reported in the Causes Célèbres, the average duration was found to be about six years. There, as here, the mass of writing was a gold mine to judges and their creatures.

Linguet (Plaidoyers, vii. 118, Leloir’s case) mentions as one of the particularities of that case, that, while, of such part of the costs as went to pay the advocate and the attorney, the amount was no more than 60 livres, that part that went to the judges, being under the names of épices and vacations, paid to them for l'arret (viz. the judgment or a copy of it) was more than 400 livres. Under the French edition of Rome-bred procedure, these costs of the arrêt corresponded to the costs of the extraction of the decreet in the Scotch edition. It was among the undisguised endeavours of the professional assistants of the parties to save their clients from judicial depredation in this shape.

Adam Smith (chapter on the Expense of Justice) proclaims the purity of the French judges. Pure they were, it seems true enough; but as their brethren in England were pure also: pure, where impurity would have been dangerous to the hands that dabbled in it—impure, where it was safe.

On the other hand, of natural procedure, out of the pale of which, what is called justice has nowhere in design been any thing better than regulated pillage, but with effects beyond comparison more grievous than those of pillage to the same pecuniary amount, the range was much more extensive there than here.

Witness the judicatories called consular courts.

Of the nuisance called equity, a lover of justice will be glad to know, that in the American United States she has already in a great degree rid herself, as of so many other English nuisances.

[* ]Of the aggregate mischief of the institution here in question, the judicial abuse, which in the work mentioned in the text has been designated under the appellation of the mendacity licence, forms so material a part, that, unless the view there given of it were here inserted, any conception that could hence be formed of it would want much of being an adequate one. As the present tract, though, if room can be found for it, designed to constitute an appendix to the above-mentioned work on Evidence, is moreover designed to appear in the form of a separate publication, it has been deemed advisable to reprint in this place that part of the work on Evidence, in which the abuse here in question has been more fully delineated and explained.

It forms the fourth section of the 8th chapter, intituled, Of the Securities for Trustworthiness in Evidence, and is in these words, viz. § 4.

Judge and Co.—False Evidence rendered by them dispunishable, where profitable to themselves.—Mendacity licence.

Thus much as to propriety:—for practice, learned ingenuity has discovered and pursued a more convenient course.

Under the English, not to speak of other systems of technical procedure, by means of the command, so easily, when indirectly, exercised by power over language, an expedient was found for rendering mendacity punishable or unpunishable at pleasure. In the person of a party litigant, or a witness, when it was to be rendered punishable, the allegation or statement was called evidence; and, to mark it as such, a particular ceremony—the ceremony of an oath—was made to accompany the delivery of it. When it was to be rendered dispunishable, it was not to be called evidence:—it was to be called pleading—pleadings—anything but evidence:—and the ceremony was to be carefully kept from touching it.

At this time of day, few tasks would naturally be more difficult, than that of satisfying the English lawyer, that pleadings not upon oath—that anything, in a word, which in legal use has been carefully and customarily distinguished from evidence, can with propriety be termed evidence. But though, thanks to his ingenuity, so it is that pleadings—all pleadings at least—are not evidence in name, yet so it is, that every thing that goes by the name of pleading is evidence, in effect. All testimonial evidence is statement—narration—assertion: every thing that goes by the name of pleadings is so too. Of evidence, the use, and sole use, is to command decision:—by pleadings decision is commanded, and that in cases to a vast extent, and in continual recurrence, and with a degree of certainty altogether denied to evidence.

To the purpose of imposing on the adverse party the obligation of going on with the suit, the contents of every instrument included under the name of pleadings, how replete soever with manifest falsehood, are taken for true, and as such, without the name, have the effect of evidence. This effect (it may be said) is but provisional: but definitively, to the purpose of giving to the suit a termination favourable to the party by whom the instrument is exhibited,—to the purpose of producing a decision—a decision as favourable to him as could be produced by anything to which the name of evidence has been left,—to the purpose of producing the self-same decision, which, by evidence, supposing it believed, would be produced—it has the effect—not simply of evidence, but of conclusive evidence:—the party who fails to meet the instrument in question,—by some instrument which, at the next step that, on the otherside, ought in the appointed course to follow it,—loses his cause.

Of this eventually-conclusive evidence, the power, it may be said, cannot be great, since—by so proper and simple an operation, as that of exhibiting the corresponding counter-instrument, the party, to whose prejudice the conclusion would operate—gets rid of it. Simple enough, yes: but instances are but too abundant, in which the operation, simple as it is, is impracticable—foreknown to be impracticable. To the performance of the operation, money is necessary: and on that side—money being by the other side known not to be forthcoming—what is thereby known is, that the exhibition of the counter-instrument is not practicable. It is accordingly because foreknown to be impracticable, that the operation is thus called for: for which purpose, falsehood, the most barefaced falsehood, is admitted to serve—admitted by those judges to whom its quality is no secret:—admitted with exactly the same composure as if it were known to be the strictest truth.

Thus it is, that under favour of the mendacity-licence thus established, every man, who, being to a certain degree opulent, has, or desires to take, for his adversary, a man to a certain degree less opulent, has it in his power, whether on the plaintiff’s side, or on the defendant’s side, to give, to his juridically-delivered allegations, by what name soever denominated—pleadings or any other,—the effect of evidence:—the effect, not only of evidence, but of conclusive evidence.

And thus it is, that by the forbearance—the astute forbearance—to give, to the security afforded by punishment, the extent necessary to justice, mendacity is generated and cherished, injustice, through misdecision, produced:—the evils opposite to the direct ends of justice produced, by means of the evils opposite to the collateral ends of justice.

Among lawyers, and mere especially among English lawyers, so commodiously, and thence so universally, is custom accepted as an adequate substitute to reason—so unprecedented is it for a man to trouble himself with any such thought as, in regard to any of the established torments, out of which his comforts are extracted, what, in point of utility and justice, may have been the ground for the establishing of them—or so much as, whether they have, or ever had, any such ground at all—that, at the first mention, a question to any such effect will be apt to present itself to them, as no less novel, than idle and absurd. But concerning judgment by default, and everything that is equivalent to it,a —be it in a House of Commons,—be it in a House of Lords,—be it in any other place,—should any such misfortune happen to him, as to feel himself under a necessity of finding something in the character of a reason to give, in answer to the question—why it is that judgment by default is made to follow upon default, his reason would be this or nothing, viz. that in this case, on the defaulting side, want of merits is inferred; and not only so, but that it is from the allegations contained in the instrument last delivered on the other side—it is from that, and nothing else, that the inference is deduced.

At the same time, that which, be he who he may, is well known to him—or at least, but for his own wilful default, would be known to him—that which he has always in his hands the means of knowing—means beyond comparison more ready than any which are possessed by the vast multitude, who at the instance of his tongue, and by the power of his hand, are so incessantly and remorselessly punished,—punished for not knowing that which it has so diligently and effectually been rendered impossible they should know, is—that, in the case of an average individual, the chances against the truth of the conclusion, thus built and acted upon, aremany to one.

To be assured of this, all that a man has to do on the one side of the account, is to look at the average, or even at the minimum amount of the costs on both sides, which, on each side, a party subjects himself to the eventual burthen of,—or though it were at those on one part only;—on the other side of the account, at the annual amount of what an average individual of the labouring class (beyond all comparison the most numerous class)—or even though it were an average individual of the aggregate of all classes, the very highest not excluded—has for the whole of his possible expenditure. This comparison made, then it is, that any man may see, whether, by forbearance to go on with an existing suit, at any stage, on either side,—whether, on the plaintiff’s side, by forbearance to commence a suit,—any preponderant probability be afforded, of what is called a want of merits.

[a ]Equivalent to it.] Examples—In common-law practice, judgment as in case of a nonsuit: in equity practice, taking of the bill pro confesso, in case of what is called contempt; for,—when, by the ruin of his fortunes, and consequent inability to pay the appointed price for a chance of justice, a man has been reduced to the lowest pitch of humiliation,—contempt, the offspring of pride, is imputed to him: and it is for this pride that he is punished:—punished, by being excluded from that chance.Of two all-pervading masses of instances, in which, throughout the whole system of technical judicature, conclusions, having been built, are continually acted upon,—acted upon by men, to whom, one and all, the premises on which those conclusions are built, and thence the conclusions themselves, are—or, without their own wilful default, would be—known to be false, this is the first, for the mention of which the occasion has here happened to present itself.Under the head of non-observance of formalities, a failure considered as being, or at least dealt with as if it were, evidence—evidence conclusively probative of unfairness on the part of a contract, or spuriousness on the part of an instrument of contract—under this other head, mention of another instance will come to be made in the chapter on pre-appointed evidence.Nullification,—to which belong conjugates and quasi-conjugates much too abundant to be here collected,—null, void, bad, quash, set aside, and so forth—nullification is the name given to the factitious engine of iniquity, by which the sort of effect here spoken of, is in both instances produced. Instruments and operations of judicial procedure—contracts and instruments of contract—whatsoever has been the subject to which it has been applied, lawyer’s profit is what the machinery will be found to have had exclusively for its object, lawyercraft for its inventor and constructor, iniquity and misery for its effects.By encouragement as well as impunity thus given to mendacity,—if it be on the plaintiff’s side, the number of suits is made to receive that addition, which is brought to it by those in which the dishonesty—the mala fides, as the phrase is—is on the plaintiff’s side: by the like boon bestowed on the defendant’s side, the like addition is made to the number of those to which continuance is given by dishonesty on the defendant’s side.See more to this purpose under the head of Oath.On all these occasions, partner and accomplice in the fraud on one side of the cause, in the oppression on the other, the judge, as well as his collaborators, extracts emolument out of the mendacity thus produced under the name of pleadings,—the mendacious evidence thus suborned is all in writing,—and the mass of writing is a mine of fees.a

[a ]To quote or refer to the instances in which profit-yielding mendacity is thus generated, would be to quote or refer to the whole contents of the several law-books, in which, under the name of books of practice, for the use and benefit of the members of the profession, the course of judicial procedure is delineated.

[a ]To quote or refer to the instances in which profit-yielding mendacity is thus generated, would be to quote or refer to the whole contents of the several law-books, in which, under the name of books of practice, for the use and benefit of the members of the profession, the course of judicial procedure is delineated.