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CHAPTER IV.: EXCLUSION ON THE GROUND OF DELAY, IN WHAT CASES 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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EXCLUSION ON THE GROUND OF DELAY, IN WHAT CASES PROPER.
A lot of evidence being proposed,—the delay in question in the character of a ground of exclusion, is that which might in some cases happen to be produced by a determination to give admission to that evidence. The question for decision then is:—of the two mischiefs, the two opposite, and, as it were, rival, mischiefs and injustices, which is the greater?—the injustice attached to the misdecision or danger of misdecision that would be produced by the exclusion of the evidence? or the collateral injustice attached to the quantum of delay (of extra delay, it must here be understood) that must be incurred, if, antecedently to the decision, that quantity of time be allowed, which is understood to be necessary to the production of the evidence?
Were all the material evidence forthcoming which the case has happened to furnish, a decision might be pronounced to-morrow. But, of this existing and obtainable stock, a part, more or less material, exists at the antipodes. Shall the decision wait till a correspondence can be had with the antipodes for that purpose?
The cause having but one party on each side—the cause being, in that respect, and in that sense, a simple one,—the proposition for the exclusion, if any such proposition come at all, must come either from the party who conceives himself to stand in need of the evidence (say the plaintiff,) or from the opposite party. From the party whose wish it is to see the evidence delivered, no such proposition can come: since he has but to forbear calling for the evidence, and the exclusion thus attaches upon it silently and of course.
If, in this simple case, a demand be made for an exclusion to be put upon the evidence—a demand having for its ground the delay that would be necessary for the production of it,—it is from the opposite side (say the defendant’s) that the demand must come. For anything I know, the evidence alleged by the plaintiff to exist, may or may not exist: the effect of it, if produced, may or may not be more or less material, more or less necessary, more or less conclusive. But the case is such, that, if the decision be not passed till the requisite time has been taken for the arrival of the evidence, added to what notice may be to be taken of it, the mischief resulting to us from that delay will be greater than the mischief resulting to the plaintiff from the disallowance of his claim: at any rate, than whatever chance of such miscarriage may be the result of the non-production of that evidence.
Reverse the case, the mischief of the delay will be more sensible. It is the defendant that applies for the delay, to save the exclusion (the negative sort of exclusion) that, for want of it, would be put upon the evidence he has to produce. No, says the plaintiff;—the mischief from this delay would on my side be so great, that, in consideration of it, my petition is that the cause may go on in its natural course—that the delay prayed for may be refused: although of such refusal the sure consequence will be, that an exclusion will thus be put upon the article of evidence.
Again, let the cause be a complex one—complex in respect of its affording divers parties (say five) on a side: and first, say, on the plaintiff’s. One plaintiff applies for the delay, as necessary to the delivery of the evidence: the other plaintiff opposes the delay; in other words, applies for the exclusion, the evidence not being, in his view of the matter, worth the purchase. To the present purpose, this third case differs from the first only in name. The parties stand on the same side of the cause, but, on this point at any rate, their interests are opposite. The plaintiff, by whom the application for delay is opposed, is to this purpose, as against his co-plaintiff, a defendant.
The two quantities here compared with one another, being both of them in their nature susceptible of variation upon a scale of almost indefinite length—on the one hand the materiality, the probative force, of the evidence, on the other hand the duration of the delay; the ratio of each to the other is of course susceptible of variation upon a correspondent scale.
If, however (as will frequently be the case,) the evidence in question be indispensably necessary to warrant a decision on that side,—the mischief of mere delay, that is, mere postponement of the decision on one side of other (abstraction made of the contingent mischiefs with which it may happen to it to be pregnant, viz. on the one side deperition of the matter of satisfaction, on the other side deperition of counter evidence,) can seldom be equal to the mischief of the exclusion. From the exclusion of the evidence, results in this case, by the supposition, and that as a necessary consequence, misdecision to the prejudice of that same side: and the mischief resulting from that misdecision, perpetual and irremediable: whereas from delay, considered in respect of that part of its mischief which is certain, no worse effect ensues than the temporary duration of that same mischief, which, in case of exclusion, is perpetual.
In respect of the evidence, the supposed temporary absence of which produces the demand for the delay,—what are the expectations entertained by the plaintiff (or the defendant, if the delay be prayed for on his side;) and what the grounds of them? What assurance has he that the witness cannot now be forthcoming? that he will be forthcoming within any reasonable space of time? that he knows anything about the matter, and that what he knows will, if truly reported by him, operate to the effect alleged, and with a sufficiently persuasive force? All these questions together constitute a sort of incidental cause, collateral indeed to the principal cause, but sometimes not inferior to it in importance, because the main cause itself may altogether turn upon it. All these questions, with others that might be added, constitute a complex question—a question of fact, which, like any other question of fact, must be tried by the light of its own evidence,—of such evidence as it happens to afford: direct evidence, circumstantial evidence, the evidence of the prosecutor if necessary, the evidence of any other individual as it may happen. The witness (understand, he in whose absence the demand for delay originates) was an inmate of the owner of the goods taken in the way of theft or robbery,—he was in the house at the time: he was a lodger in the house of the individual killed, and of whose murder the defendant stands accused,—he was in the house at the time, or came in soon afterwards. The question, whether the alleged witness was in a situation that would qualify him to give evidence, is a question of fact, to be tried, like any other question of fact, upon its own evidence. Does the main cause turn upon it? It is a question that requires to be examined into with the same care, and therefore with the assistance of the same securities for trustworthiness, as those which are looked upon as indispensable to the principal cause.
Between delay for the sake of evidence, on the one hand, and exclusion of the evidence, for want of the requsite delay, on the other, the connexion will, after all, it carefully and honestly looked into, he found (like so many other of the evils with which the system of procedure is pregnant) in a much greater degree factitious than real. Such will be the result presented by the chapter,* the business of which is to bring to view the arrangements capable of serving in lieu of absolute exclusion, in the character of remedies to vexation, expense, and delay.†
The strongest case, in favour of the exclusion, is where imprisonment, itself tantamount in vexation to a severe punishment, is the lot of the defendant during the coutinuance of the delay. Here, then, is punishment—a perfectly distinct and incontestable lot of punishment, inflicted: inflicted, where perhaps it is undue, and, at any rate, before it is proved to be due.
In this case, however, there is an evident medium between the continuance of this perhaps unjust punishment, and exclusion of the evidence—whence acquittal from all punishment. Bail him, if he can find bail: if he cannot, it will in general be a further presumption of delinquency: if no bail, take other securities for appearance, of which many might be enumerated, if the present were a fit place for it: in default of all such securities, discharge him out of prison, even without security. But liberation from prison is one thing—definitive acquittal is another:—because the plea is sufficient when applied to the one, it follows not that it must be so when applied to the other.
At any rate, the question (it will be seen) turns still upon proportions. The perhaps altogether undue or excessive vexation being a determinate quantity, the proportion will depend upon the quantity of the delay. Admitting it to be better that a delinquent should go unpunished, than that a punishment should remain hanging over his head for years,—it follows not that the proposition would be true, if, instead of years, a man were to say days or weeks.
All this while, an argument that pleads against the delay, and therefore in favour of the exclusion, ought not to be lost sight of. The evidence, if produced, will tend to conviction: will operate in disfavour of the defendant. A result this, of which the probability at least must be assumed, to justify the delay, with the vexation thus attached to it. But the supposed probability, on what is the persuasion of it grounded? It is on the part of the plaintiff that the evidence is called for: a considerable presumption this, but by no means a conclusive one.
Expecting to see the defendant proved guilty, expecting to find the guilt established by this evidence, he applies accordingly for the delay necessary to the obtainment of this evidence: on this supposition, indeed, it is a matter scarcely to be apprehended that it would be the endeavour or wish of the plaintiff to extend the quantity of delay for the purpose of vexation,—to extend it beyond the exigency of the case; for, the longer the delay continues, the longer the manifest object of the prosecution, the natural wish on the part of the plaintiff, continues unaccomplished.
So much for ordinary probability. But a case neither improbable, nor perhaps altogether without example, is this:—The plaintiff has no expectation that the evidence he applies for will operate to the conviction of the accused: he entertains no such persuasion or suspicion as that the accused is really guilty of the crime: the object, the real object, of the application for delay, is not justice, but vexation: the vexation of an individual, of whose innocence the accuser himself is conscious.
The case is a possible one; though, if examples of it were to be looked for, happily for mankind they would be found (I believe) extremely rare. But the case where, on the part of the plaintiff, an ill-grounded but sincere persuasion of the defendant’s guilt, or an exaggerated estimation of it, has been productive of an ill-grounded prosecution, is much less rare.
On the ground of that one of the evils opposite to the ends of justice which we are now considering,—in so far as evidence (i. e. an extra quantity of delay, considered as being necessary to the production of it) is the cause of the disease, and exclusion proposable as the cure,—English law, however heedless, is not quite so impotent, as on the ground of either of the two preceding ones.
Delay? Oh yes: of that there is no want: but, for exclusion to be put upon evidence for the avoidance of preponderant delay, no tokens of any provision—no token of so much as a thought.
To the allegations on both sides, in general terms, respecting the general matters of fact on which depend the propriety or impropriety of excluding an article of evidence to save the delay that would be necessary to the production of it, the ears of the courts are open. But, as to any tolerable security for the truth of these allegations, on this occasion as on all others, learned judges know better than to suffer themselves ever to receive it.
Between every two operations, needful or needless, a determinate length of delay being fixed* by general rules—a length in most instances too great, in here and there an instance too scanty,—where, on the ground of the impracticability of causing the evidence to be forthcoming at the regular time, coupled with the probability of obtaining it at a more distant period of time, a further length of time is or is pretended to be needful, a special application is made to the court for this indulgence. In this case, if the materiality of the article of evidence in question be out of dispute, and yet the demand of the delay be resisted, the consequence of such resistance, if successful, is a virtual exclusion put upon the evidence; and this on the score of delay, i. e. of the undue delay that would be the necessary result, if the lot of evidence in question were to be received. It is in this way, and this way alone, that, on the ground of delay, i. e. of the mischief that may come to be the result of it, any exclusion can be put upon any article of evidence.
The question here concerned is of the number of those incidental questions, on which the fate of the cause is liable to be completely dependent: as completely as upon any evidence respecting the principal matter in dispute.
For the truth, correctness, and completeness, of the evidence on which the decision of this incidental point is founded, there is in every such case exactly the same demand for the best security that can be afforded (whatever that security may be,) as for the correctness and completeness of the evidence respecting the principal matter in dispute.
Note, that, independently of all ultimate loss by deperition of evidence, or of the matter of satisfaction, mere delay may, to a malâ fide defendant, be productive of certain gain, at the expense of an injured plaintiff, to an amount to which there is no certain limit. Sum in dispute £10.000; trial staved off till next assizes, six months distant; interest at five per cent.; sure profit £250: deducting only the expense of the business thus made, as the reward to the law partnership for their service, the price of the delay thus manufactured.
For grounding an application for delay on the score of the absence of a material witness, forms, every day in use, are given in the books of practice: the testimony of a witness (a single witness is sufficient,) delivered in the affidavit mode. Thus far, nothing particular; learned judges (as above mentioned) never suffering themselves to receive testimony in any but this worst of shapes. But the evidence received in this bad shape is hearsay evidence: supposed declarations, supposed to have been made extrajudicially, and even by persons undesignated,—by the common voucher, the French On; this supposed testimony thus transmitted to the court, through the pen of the affidavit-man’s attorney, when the immediate testimony of these supposed extrajudicially-speaking witnesses might, for anything that appears, have been obtained—obtained with as little trouble, and without the expense. And, unless opposed on the other side (opposed by testimony, which, so far as the mode of delivery at least is concerned, cannot be of any better complexion,) the evidence is conclusive.†
Observe the form stated as being in common use in the King’s Bench.‡ 1. “The deponent (as he is advised and believes) cannot safely proceed to the trial . . . without the testimony of” [the proposed witness.] No averment, even in the way of opinion, in general terms, that he can safely proceed with such testimony,—that he has any just ground to stand upon.
2. “In consequence of the notice of trial . . . he, this deponent, caused inquiry to be made,” &c. (stating [says the form] the nature and result of the inquiry made after the witness, and the time when he is likely to attend.)
Here we see hearsay evidence of the second remove: the persons inquired of, if any such there were, not upon oath, not judicially examined, nor even, without examination, judicially deposing: the supposed inquirer again in the same case.
Such is the sort of evidence which, if the statement be correct, is habitually received, and (unless victoriously opposed by counter-evidence) habitually acted upon as conclusive by the King’s Bench.
The Common Pleas seems not much more nice. The following extracts are from a learned practiser in that court,* who does not express indeed that it is exclusively, or more frequently, in use in that court, than in the King’s Bench.
Here divers particulars respecting the nature and result of the inquiry (as above) are given . . . “He, this deponent [no intermediate inquirer here,] hath been [not said when] to the house of the said P. W. [the proposed witness] and was informed [not said by whom] that he was gone to Norwich [not said when,] and that he, this deponent, hath sent there [not said whom nor when] for the purpose of subpœnaing him; but that the said P. W. is gone from thence, as this deponent hath heard [not said from whom,] and verily believes to be true: and that he, this deponent, cannot get any information where the said P. W. is, but is informed [not said by whom, or when, or where, nor that he so much as believes the information to be true] that he will be at home in two months. . . . .”
Can any danger attend the attempt, successful or unsuccessful, to stave off a just demand for an indefinite length of time, or for ever, by false representations thus conveyed?
The application may, it is true, be opposed: but with what effect? Not a question can the opponent (the plaintiff) put to any one in this chain of witness. It may be a complete tissue of lies: and nothing can he do that can contribute to the detection of any one of them. The defendant’s attorney being the deponent, his client may have posted persons to give such false answers or statements (not that it is worth the while;) or the like friendly deception may have been put by the attorney upon the defendant, his client.
The least unpromising course seems to be to follow the precedent of the ingenious attorney, who, to combat the forged bond, forged the release. The plaintiff makes a counter-affidavit, saying nothing of the defendant’s story (for, be it ever so false, what can he say of it to any purpose?) but telling a like story of his own, showing how he has an equally material witness now forthcoming, but whose testimony, were the required delay granted, would be lost.
If to a dishonest defence success may thus be given, defeat to a just demand,—so, on the other hand, may defeat be given to a just defence, success to an unjust demand, by the same system of—what shall we say? Inquiry? where not a question can be put? say at any rate receipt of evidence. Affidavit,† “that A B and C D are material witnesses for defendant in this cause, without whose evidence defendant cannot safely proceed to trial, as defendant is advised and verily believes,” was held bad; “because the belief seemed to go through the whole, as well to A B and C D being material witnesses, as to the other necessary part of the affidavit, that the party cannot safely make defence without their testimony; the former part, respecting A B and C D being material witnesses, ought to be positively sworn; belief as to it is not sufficient, but as to the latter part it is.”
“Held bad:”—and certainly not without something like a pretext, at any rate. Possibly, in the way above suggested, evasion was designed: but possibly, and much more probably, not. But to what use pretend to stop up this loop-hole, when so many doors are left wide open in so many other places?
To the materiality of the evidence, “belief” not sufficient, “positive swearing” necessary. Precious distinction! as if anything could ever be sworn to, howsoever positively, but belief: as if the materiality of an article of evidence were not a matter of opinion; and not only of opinion, but (for so it has been made by lawyers) a matter of law. What an indignation was once manifested at the presumption of a deponent, who took upon him to “swear the law!” Ignorant and presumptuous man! to pretend to know the law!
Held bad: and what was the consequence? Was the cause called on, without the defendant’s material, and (if his statement were true) necessary, witness? and was the subjecting him to the obligation of complying with an unjust demand the ultimate result? Let us hope rather, though it is not said, that the badness of the expression was not so fatal but that opportunity was given to amend it; viz. by ulterior affidavits.
But the badness, the real badness, where is it? Not in the suitors, justly and unjustly suspected of evasion, but in the practice of the court, by which questions are never tried but upon evidence so bad, as to afford to insincerity a perpetual chance of success, without the smallest danger of punishment, or even of shame.
Suppose the maker of this “bad” affidavit present in court, answering upon oath, impromptu; instead of having employed, as many days as he thought fit, in studying means of evasion, with his attorney at his elbow. A word or two in the way of question, half a minute in the way of time, and the ambiguity would have vanished.
A case must not be omitted,—a case of prodigious extent in the field of law,—in which no competition takes place between the mischief of delay and the mischief of exclusion; but, the delay (with or without design) taking place, the exclusion follows without remedy—follows by act of law.
It results from the principle of fixed times with long intervals. The time for the trial is come: it has been fixed, as it is of course, by a blind rule. A witness, or an article of written evidence, that was to have been produced, fails of being produced. A few days, hours, or minutes more, the evidence would have been produced. But the time is past. It therefore cannot be produced. In the first place, suppose the failure on the plaintiff’s side: what is the consequence? Misdecision, to the prejudice of that side. To the plaintiff, loss of the right in respect of punishment: to the malefactor (whatever may have been his guilt,) impunity; temporary or ultimate, according to circumstances.
In this case, the exclusion of the evidence, that is, the non-forthcomingness of it for want of the delay, may have been designed or undesigned: the work of man, or the work of adverse fortune. But the mischief resulting from it, the misdecision, is the work, exclusively the work, of the man of law: the work of the technical system, with its fixed days and excessive intervals. Considered in respect of its duration, the exclusion may be distinguished into two periods. The first is not the work of the man of law: his is not the blame: accident, or unlicensed misbehaviour, is the cause: but the second is his altogether. A slight evil he sees produced without his participation: this does not satisfy him; but, upon the mere ground of this slight evil, he inflicts another—in all cases a much greater, in some cases an infinitely greater, evil, of the same kind.
At the preappointed time, the evidence is not forthcoming: what, in point of reason and justice, is the practical result? Appoint for the production of it the earliest open day in which, according to probability, it can be forthcoming. No, says the man of law to himself: no purpose of mine will be answered at this rate.
In cases not criminal (i. e. where, be the case what it may, the species of suit belongs to that class,) if it be on the plaintiff’s side that the failure takes place, the mischief is not irreparable. It depends upon him to suffer a nonsuit, and proceed anew, paying costs: whereupon, at the end of six or twelve months from that time, and at the expense of three or four or five score pounds, if the evidence has not perished in the meantime, he may take another chance.
If it be on the defendant’s side, it may perhaps be allowed to him to take such other chance: but it depends not upon himself; and it must be at an increased expense. On the trial in question, the verdict must be against him—he in general paying the costs on both sides,—and, if he obtains the felicity of a new trial, it cannot be till after motion and argument thereupon.
In criminal cases opens a very different scene.
If it be on the defendant’s side that the failure takes place, it seems rather difficult to pronounce, in every case, what may be the result. On an application made on the ground in question on that side, power for putting off the cause is not wanting; and in each instance the great probability seems to be, that, the judge being satisfied of the propriety of the application, due time would accordingly be given.
It is where the plaintiff’s is the side on which the failure takes place, that the prejudice applies, and the mischief flows in consequence. Breaking out on this side, no mischief is ever to be repaired: and this is called humanity and justice.
At the preappointed hour, a witness who should have appeared, fails to appear: an article of written evidence which should have been produced, fails of being produced. Had the failure been foreseen, application for time might have been made, and time granted accordingly. The failure not having been foreseen, not having been foreseeable, no time is to be granted: the omission is fatal: the malefactor triumphs.*
Behold here another exemplification of the practice of deciding, and against the merits, on grounds foreign to the merits.
Behold here again the power of pardon thrown out of the window, like medals on a coronation day, to any one that will take it up: to any witness whose testimony is necessary: to the possessor, for the time being, of any piece of paper, the production of which is necessary: to any one who, by fraud or force, discoverable or undiscoverable, will manage so as to keep the man or the piece of paper out of the way for a few minutes.
All this is in favorem vitæ. No man’s life shall be put twice in jeopardy. Hypocrites. Say, why is man’s life ever put once in jeopardy? Did ye ever, could ye ever, give any better reason for your human sacrifices, than used to be given in Mexico, and is now given in New Zealand? “Because it is what we do, and have been used to do, for so many hundred years?”
But the same hypocrisy reigns where there is no life in jeopardy. On the continent, nonbis in idem is moreover a maxim of Rome-bred law: a maxim made indeed of stretching stuff, like all maxims of all lawyers.
The malefactor in whose instance the witness or the bearer of a paper has fallen sick, or been drowned, or been made drunk, and so forgotten himself,—how much less guilty is he than if the man had come to his time? If the chance of triumph must be secured to every malefactor, let it at any rate be a fair chance: let fortune judge, not fraud in fortune’s name. Admit dice and boxes among the furniture of the temple of justice: but let the dice be fair, the boxes fairly handled; no loading or cogging, as at present.
[* ]Chapter VII.
[† ]Remedy against deperition of the evidence on the other side,—immediate collection of that same evidence.
[* ]Book VIII. Technical System; Chap. X. Sittings at Long Intercals.
[† ]What if, at what is called the trial, when proof came to be given of the matter of fact principally in question in the cause, other evidence in abundance (immediate vivâ voce evidence) being at command,—an advocate were to take upon him to produce, instead of it, this hearsay evidence in the affidavit mode? The thing is impossible: but supposing it done, the judge would suppose him out of his senses, or send him to his horn-book.
[‡ ]Tidd’s Practice, Forms, p. 196.
[* ]Sellon’s Crompton, i. 421.
[† ]Sellon’s Crompton, i. 419. Day v. Samson, Bar. 448.
[* ]This can only occur of necessity, after the jury have been charged to try the indictment in question. Before the jury are actually charged, the court will, up to the very last moment, listen to any application to postpone the trial, either on the part of the prosecutor, or of the prisoner: and such applications are made every day.—Ed.