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CHAPTER I.: GENERAL VIEW OF THE CASES IN WHICH EXCLUSION IS PROPER. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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GENERAL VIEW OF THE CASES IN WHICH EXCLUSION IS PROPER.
Of the production of evidence, pecuniary expense is an ordinary vexation,—in some shape or other, in some degree or other, an inseparable, consequence. To warrant the production of any lot of evidence, the necessity of it to some one of the other purposes of justice (ultimate decision, when due, on the plaintiff’s side, ultimate decision, when due, on the defendant’s side) is an indispensable condition. A lot of evidence is proposed to be produced. The advantage proposed from the production,—is it imaginary?—is it outweighed by the inconvenience? In either case, exclusion is the result.
The cases, then, in which exclusion may be proper, may be distributed under two grand heads:—
I. To the first head may be referred, those in which no mischief at all can result from the exclusion.
If this be the case, it must be either—1. because the suit itself is of such a nature that no good can come from it; or, 2. because, though the part taken by the party by whom the evidence is called for be necessary to justice, the evidence in question is not necessary to his making it good. The plaintiff being in the right, the evidence is not necessary to the establishment of his demand; or, the defendant being in the right, the evidence in question is not necessary to his defence—to the saving him from that burden which the demand seeks to throw upon him.
To the first of the two divisions belong all those cases in which obtainment of the information sought for, is sought for, not in the character of a means, but in the character of an end: where, instead of calling for the evidence for the purpose of the suit, the suit itself is instituted for no other purpose than that of coming at the evidence: coming at the information wanted, by demanding it and employing the hand of the judge to extract it by force of law, in the character of evidence. The suit in this case is what has been called a feigned suit, or might better be called a sham or fraudulent suit; for the suit itself is real, though the object of it be disguised.
On this occasion, however, if the exclusion be to be justified, it must be understood that the party (say the plaintiff) has no right, on any score, to the information called for by him on the score of evidence: which is as much as to say, that he could not have obtained it by a suit professedly directed to that end. For if, having a right to it, he obtains it like a corollary in mathematics, in the form of evidence called for on the occasion of another suit, so much the better: the business of two suits is done in one: two birds are killed with one stone. If, in prosecuting for one crime or one wrong, you get evidence that enables you to punish, or compel satisfaction, as for another, so much the better: out of two lots of vexation, expense, and delay, one is saved.
Thus to the man of reason: not so to the man of law. To him it will be downright cheating—cheating him out of that part of the expense which becomes profit in his hands. If, of the evidence which the case affords, there be any material part behind, there wants no other ground for postponing the decision, though the suit be a single one. But if, of the mass of evidence sufficient for warranting a dozen decisions, in allowance or disallowance of so many different demands, the whole be brought forth on the occasion of one demand,—the controversy is as ripe for the dozen decisions in this case, as for the single decision in the other. But this sort of arithmetic does not accord with the books of the man of law. The ends of justice only are served by it : the ends of judicature are sacrificed by it.
To the other division belong all those cases in which, howsoever it happens, the information tendered or called for in the character of evidence, is not necessary to justice: it is irrelevant, or, though relevant, useless, because there is enough without it, whether from a different source, or of a better kind from the same source; or whether there be enough without it or no, it is still useless, because sure to be refuted or outweighed by other evidence.*
In all these cases, as in the former, if the evidence in question were produced, the vexation, expense, and delay, attendant on the production of it, would be so much pure mischief, unpaid for by any advantage. There is more or less to put in one scale; there is nothing to put in the other.
II. Thus much for the first principal head. To the other, belong all the cases in which there is more or less to put in each of the two scales: in the one, the mischief from the exclusion of the evidence (a mischief, in the composition of which, misdecision, or the danger of it, will in general be either the chief or the sole ingredient:) in the other, the mischief from the admission of the evidence; a mischief which resolves itself into vexation, expense, and delay, jointly or separately, as already so often mentioned.
In all these cases, we may see work, more or less, for the judge: for the legislator, none: at least if, in the drawing of his first lines, he has wrought with a skilful hand. In every instance there is a question of fact to be tried; in no instance need there be, ought there to be, any question of law. Understand, any new question of law, created by the arrangements here proposed to be made, relative to exclusion and admission: for the question, whether a man has a right to the information on any other score than that of evidence (evidence in relation to a different suit,) is indeed professedly a question of law, but a question supposed to have been already settled, on its proper grounds.
I. First grand and proper head of objection to the admission of the proposed evidence. The information is not really wanted as evidence, and is such as the party has no right to on any other score. Or, though called for under the notion of its serving as evidence, it is not capable of being of any use.
Questions for the consideration of the judge:—
1. Has the party a right to call for the information in question, by a suit on purpose, having that object and no other? A question of law; but supposed to be already settled.
2. The evidence proposed for delivery, is it necessary to justice? Is it relevant? Is either party in want of it? To either party is it capable of being of use? Questions which are, all of them, questions of fact: questions upon which no light can be thrown by reference to rules of law, deduced or deducible from anything that has been done in any preceding cause.
If the answer to these several questions be in the negative, there is no account to be taken of vexation, expense, and delay. To some amount, inconvenience in all these shapes cannot but be attendant on the production of the evidence: but, as to the quantum, it is needless to inquire, since, for the purpose of the exclusion, there is sure to be enough; there is nothing to set against it.
II. Second and last grand and proper head of objection to the admission of the proposed evidence. The delivery of it is attended with collateral inconvenience, in the shape of vexation, expense, and delay, to an amount greater than the advantage derivable from the admission of it; that is, than the mischief, in the shape of danger of misdecision, attendant on the exclusion of it.
Questions for the consideration of the judge:—
1. Amount of the mischief of misdecision (or, what comes to the same thing, failure of justice for want of decision.) This depends upon the nature and importance of the cause: its nature, whether criminal or non-criminal; its importance,—if criminal, measured, on the side of the public, by the magnitude of the mischief—on the side of the defendant, by the magnitude of the punishment: if non-criminal, measured on both sides by the value of the benefit and burthen at stake, taking into account the circumstances influencing sensibility on both sides.* This will be at any rate a question of fact, including or not including questions of law, according as the legislator has done or left undone, done well or ill, the duty of giving a complete catalogue and set of definitions of the several crimes, with their respective punishments, of the several sorts of rights, with the several modes of satisfaction attached to infringement in each case. But, be there ever so much of law, it will be a sort of law the demand for which is to be set down to other accounts, and not to this.
2. Amount of the danger of misdecision; i. e. of the probability of misdecision, considered as liable to result from the exclusion proposed to be put upon the evidence: this will at any rate be a pure question of fact.
Under each of these several heads, five propositions have presented themselves as true:—
1. That, on each of the grounds indicated by these heads, cases may arise in which, whatever mischief may result from exclusion, a greater mischief may arise from non-exclusion: a mischief, viz. in the shape of the vexation, expense, and delay, to which, separately or in conjunction, it may happen to be inseparable from the admission of the evidence.
2. That, between the cases in which the quantities on the one side are the greater, and the cases in which the quantities on the other side are the greater, the separation is not in general (if indeed in any instance) so clear, as to be capable of serving with advantage as a foundation for any general rules.
3. That therefore it is in all these cases incumbent on the legislative authority to leave, or rather to place, in the hands of the judicial, such a latitude of discretionary power, as shall enable it to form the estimate on both sides, and thence to draw the balance in each individual instance, on the occasion of each individual suit.
4. That, inasmuch as on these grounds general rules cannot to any good purpose be laid down in the way of statute law, by the legislature itself—by the only authority avowedly and directly competent, at any given point of time, and of its own motion, and by its own authority, to lay down general rules,—much less can any such rules be laid down, to any good purpose, in the way of jurisprudential law, by a man exercising, under the mask of the judge, the authority of the legislator; professing obedience, when he is exercising power; pretending to find ready-made—made already by an imaginary being, the law, the very law which he himself is making at the time.
5. That, to obviate this propensity to do by bad means that which on this occasion ought not to be done by any even the best means, the legislator ought not to content himself, on this occasion, either with simply abstaining from tying up the hands of the judge, or even with committing to his hands the requisite latitude of discretion in express terms; but that it will be further necessary expressly to declare, that in no instance shall the judge, on forming his decision for the admission or exclusion of the evidence in that individual cause, make or admit of any reference to what may have been done by any other judge, or even by himself, in any preceding cause: any more than a jury does, in giving damages for a trespass against person or goods: for that, in these cases, the path of precedent is the path of constant error.
Of the absence of the discretionary power here contended for, what is the consequence? That the chances against right decision will be all along as infinity to one; in a word, that the decision pronounced will be almost always wrong and mischievous. The ground of decision in each case will be, not the circumstances of that individual case, not the proportions between the quantities in that case, but the circumstances of, the proportions between, the quantities in some other case: some other case, in which they have but one chance against an infinity of chances for not being different from what they are in the case in hand.
In a word, in a case of this description, the looking to precedent for a rule would be exactly as incongruous and mischievous as if, on an account between A and B, the balance were to be deduced, not from a comparison of the sum of the items on one side with the sum of the items on the other, but by copying the balance of a former account, in which the items, as well as the persons, were all different: an account between C and D.
In other words, and those more familiar to English ears, the question as between admission of the evidence on one hand, and exclusion on the ground of vexation, expense, and delay (jointly or separately,) on the other, ought in every instance to be treated as a question of fact, in no instance as a question of law: and accordingly it should be the special care of the legislator, by apt prohibitory words, to make sure, as far as it depends upon him, that no question of law shall ever be made of it.
[* ]As in the case of an incorrect transcript tendered on one side, the original being to be produced on the other.
[* ]Dumont’s Traités de Législation. “Introduction to Morals and Legislation.” (See Vol. I. p. 21.)